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JACKSON et al. v. UNITED STATES. No. 5914. Court of Appeals of the District of Columbia. Argued June 8, 1933. Decided June 26, 1933. John H. Wilson, Samuel Levine, and J. Flipper Derricotte, all of Washington, D. C., for appellants. Leo A. Rover, William H. Collins, and John J. Sirica, all of Washington, D. C., for the United States. Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices. GRONER, Associate Justice. Appellants were indicted, tried, and convicted of murder in the lirst degree. Their motion for a new trial was denied by the lower court, and the case is here on appeal. The killing occurred on the 7th of August, 1932, in one of the parks in the colored section of the city of Washing-ton. The victim was a police officer; Earlier that evening he had arrested two colored boys for disorderly conduct, and they had been taken in a patrol wagon to jail. Jackson, one of appellants, was incensed because of these arrests and also because the policeman ordered him off the sidewalk when he protested. A little later in the evening Jackson suggested to several of his friends, including the other two appellants, that they should get together and attack the policeman, and accordingly, after fortifying themselves with whisky, they remained around the park until about midnight, when one of them, said by one of the witnesses to be Jackson, though he himself denied it, threw a rock at the policeman, causing the latter to leave Ms automobile and come back into the park to arrest the person who had thrown the rock. The officer, after a brief conversation with another colored man, walked up to Jackson and asked if he had thrown the rock. Jackson replied he had not. The ])oliceman said that he knew he had, and thereupon placed him under arrest. The story of what followed is told by one of the government’s witnesses as follows: After placing Jackson under arrest, the officer carried Mm across the concrete to the other side of the park; the officer had Jackson by the belt, and Jackson said: “I am not going to stand for being locked up.” When the officer persisted, Jackson said: “Come on, gang, get him.” Whereupon the defendant Irvin Murray (another of the appellants) came from behind a bush and hit the officer in the back of the head with a brick, causing the officer to be knocked to the ground; Murray then reached down and took the officer’s gun, and Holmes (another of the appellants) reached down and took Ms billy and hit the officer five or six times over the face and head, after which Jackson, Murray, and Holmes ran away. Substantially the same account of the arrest of Jackson and the assault on the officer is told by other witnesses, and in its main parts was not denied by the defendants in their testimony. Tn the confessions they made to the police and which were read to the jury there is little if any variation. In his confession Jackson stated he said to the officer when he undertook to arrest him: “You ain’t going to take me nowhere unless it is over my dead body.” “Not paying attention to that, he continued to pull me, and I was pushing him, cause I knew tv hat would happen. We then go between a bush and a tree whore Irvin Murray steals from behind it, and just as he turns Ms face towards Murray, Murray hits the police a powerful blow with a half-brick, which caused the officer to release me.” Murray in Ms confession, speaking of the time immediately after the arrest, said: “Just as the officer went to look around I threw the brick and struck the officer in the head with it. Joe Jackson then shoved the officer down. The officer moaned like and I ran in and grabbed the officer’s gun out of the holster. Ralph Holmes grabbed the officer’s stick and started beating him in the face with the stick.” Holmes, speaking to the same point of time, said: “The officer then grabbed Joe Jackson in the front of Ms shirt near the collar and raised Ms nightstick, but did not hit Joe. Joe also grabbed the officer. They was tusselling, and I said, ‘Come on, boys; let’s gang him.’ The officer says to Joe, ‘I’m going to lock you up.’ Joe says, ‘You’re not going to lock me up, cause the only way you’ll lock me up is if I am dead.’ I saw ‘Shorty’ Murray go up behind the officer and hit him with something, and the officer fell to the ground. I went over and picked up the officer’s nightstick and hit the officer with it five times, while he was on the ground, in the face, and once in the chest.” Jackson, in describing the events preliminary to the assault, stated that he gathered “the park bunch” and “plotted to get the police.” Holmes said that all three appellants, together with a number of others, got together and. determined to “gang” the policeman whenever he should come up and grab one of them. Murray said he was told of the plan to attack the policeman and was asked to join and agreed. Among the witnesses for the government was Dr. Murphy, a physician and deputy coroner for the District of Columbia. He had performed the autopsy upon the body of the slain officer. His testimony was that deceased was 29 years of age, 5 feet 9 inches tall, and weighed 1891 pounds; that after the assault he had a blac-k eye, and a lacerated, ragged wound running from the bridge of the nose on the left side down to and into the left angle of the mouth; also a lacerated wound of the right upper lip running from midline to the right, 2 inches long; that he had a lacerated wound of the right lower lip, running from midline three-quarters of an inch to the right; also a lacerated wound of the chin on the right side; that he had a com-minuted fracture of the bridge of the nose, that is, a multiple or splintered fracture; that he had a fracture of the base of the skull, extending from the right temporal bone; and that his death was due to a fractured skull, with associated hemorrhage and shock. Each of the appellants testified in his own behalf, but all that appears in the record is that they admitted having signed confessions but denied certain of the incriminating statements contained in them and insisted they had been previously beaten and abused by the police. These questions were fairly submitted to the jury without objection. The appellant Murray testified he did not know whether he had hit the officer on the back of the head with a brick, though he may have done so, that he was very drunk at the time and did not remember what he did. The errors assigned on appeal are as follows: First. The court erred in permitting the assistant prosecutor to comment upon the defendants’ failure to produce bystanders to prove their innocence. Second. The court erred in admitting Government Exhibit No. 4 without proper preliminary proof. Third. The court erred in denying defendants’ counsel the right to cross-examine Lieutenant Cox with reference to matters brought out on direct examination. Fourth. The misconduct of the prosecuting attorney in referring to the statement of one Leroy Robinson. Fifth. The misconduct of the prosecuting attorney in introducing certain testimony under a promise to connect up the same, without having any such connecting evidence at his disposal. Sixth. The misconduct of the prosecuting attorney in bringing into court and leaving in sight of the jury a. package of bricks and in failing to offer them in evidence. . Seventh. In admitting in evidence brass knueks found on Irvin Murray at the time of his arrest in Virginia. Eighth and ninth. For error by the court in its instruction to the jury with relation to Jackson’s right to resist an illegal arrest, and likewise in refusing to tell the jury that they should acquit Jackson in the event they were in doubt whether he had delivered a blow at the officer in the struggle. We have read the entire record with painstaking care and have examined the brief of counsel for appellants with equal care. We are unable to find any error, either-assigned or apparent, which would justify a reversal of the judgment of the court below. The first assignment, as we have seen, is directed to the failure of the court to stop the remarks of counsel to the failure of appellants to call certain witnesses in their behalf. There is nothing in the record to enable us to determine what counsel said on this subject, and this itself is fatal to the assignment, nor is there anything in the record from which we can gather that appellants themselves denied the evidence of the assault given against them by the government witnesses, though it is stated in the brief that they denied they had conspired or agreed or arranged in advance to make the assault. If, therefore, the prosecuting attorney stated in his argument that an inference of guilt might be drawn from their failure to call as witnesses other bystanders, it would seem to us to have no relevancy and certainly could not have affected the issue in any way. When an accused is faced with evidence of guilt and is so situated that he can show by other evidence that the suspicious circumstances can be accounted for consistently with his innocence, and he fails to offer the proof, the natural conclusion is that the proof, if offered, would tend to support the charge. Graves v. United States, 150 U. S. 118, 121, 14 S. Ct. 40, 37 L. Ed. 1021. But we have no need to invoke that rule here. In the state of the record and also in view of the fact that so far as we can see the court’s attention was not at the time called to any improper statement on the part of counsel, we axe impelled to hold that there is nothing in the assignment. Assignment No. 2 appears to be based on the fact that government counsel in examing the first two or three witnesses showed them certain photographs of the place where the assault is said to have occurred and asked them to mark certain places on the photographs, and this was done, but the photographs were not then nor were they after-wards offered in evidence. They were not shown to the jury, though they remained on the counsel table during the trial. When they were first offered for identification objection was made by counsel for the defendants to their admission in evidence on the ground, apparently, that it was not shown when they were taken, and since this objection seems to have prevailed, we fail to see in what respect the fact that they were tendered to a witness for examination and marked by him could he said in any sense to be prejudicial to the accused. The third assignment is to the refusal of the court to permit Police Lieutenant Cox, who was present when the confessions were obtained, to testify why he was present. The purpose of counsel is stated to have been to show, if permitted, that it was a rule in the department that a commissioned police officer should always he present on such occasions and that this rule grew out of certain investigations that had been made prior to the time in question with relation to methods of the police in obtaining confessions. Obviously the inquiry with relation to this subject was entirely beside the question before the jury and would have tended to confuse rather than aid in the determination of the question submitted to the jury. The police lieutenant did state he was present as a result of a regulation of his department. That was enough. The reason for the regulation was of no consequence. The next assignment is the alleged misconduct of the prosecuting attorney in arguing to the jury “about the statement of Leroy Robinson which was not in evidence.” The record shows that in his closing argument the prosecuting attorney referred to a statement of one Leroy Robinson, an original defendant, hut against whom a verdict of not guilty had been directed by the court at the close of the government’s case. Robinson, like appellants, had made a statement to the police. In it he denied any participation in the assault. The purpose of the prosecuting attorney, if we may indulge some inferences, was to call attention to the fact that Robinson’s statement was not a confession of guilt, and hence to have the jury infer that appellants’ statements on the witness stand that they had been maltreated by the police were untrue. But when objection was made to his using the statement for any purpose the court promptly sustained it. It is true the prosecuting attorney was needlessly argumentative in the colloquy between himself, the court, and counsel for appellants, but what he said was so disconnected and so without point that it is most unlikely the jury had any correct idea of his purpose in the reference. It goes without saying, of course, ho should at once have obeyed the court’s warning not to refer to the subject, but we think that any possibility of prejudice to appellants was removed by the court’s statement to the jury that no inference prejudicial to appellants could he drawn from anything in Robinson’s statement and that everything therein should be disregarded by the jury. The statement itself was not prejudicial to appellants. It had been read to the jury and was, as to Robinson, a complete denial of participation in the assault, and the jury had been told by the court it could he considered only as to Robinson. In the circumstances we would be going very far indeed to set aside the conviction on a ground as nebulous as this. The next assignment is to the admission of the evidence of one Reginald Smith, who had testified that immediately preceding the assault and while Jackson was under arrest, he heard some one in the group surrounding the officer say: “Are you all going to let that cop take that man?” And also, “Let’s get that cop.” We need not consider whether this evidence was admissible or not, because, on motion of counsel for appellants, it was stricken from the record aiid the jury admonished not to regard it. The next assignment is to the misconduct of the prosecuting attorney in allowing a package of bricks to remain on the table and not offering the bricks in evidence. It is needless to comment on this. Assignment No. 7 is not pressed, and is without merit. Assignments 8 and 9 relate to the alleged refusal of the court to instruct the jury with regard to the acquittal of Jackson in the event they were in doubt as to whether or not he delivered a blow. These assignments are based upon a request of counsel at the conclusion of the court’s charge as follows: “Your Honor instructed that Jackson, in resisting arrest, if ho did so, would be guilty of manslaughter, but Your Honor did not state the position if they should find that he did not deliver a blow or if they should he in doubt, that he should be acquitted.” To this the court replied: “I do not think there should he any special request as to that.” The court then said: “Are there any other requests?” Counsel replied: “No. I think Your Honor has covered it all.” From this it is obvious that there was no exception taken to the action of the court in refusing to instruct in accordance with counsel’s suggestion, but even if there had been wo should not sustain the point for the reason that the court’s charge to the jury appears abundantly to have protected every right the defendant Jackson was entitled to in this respect. The instructions of the court contained indeed everything which any of the defendants had a right to ask. Jackson himself had stated that he provoked the difficulty and called on his “gang” to close in on the policeman and that this was prearranged. In these circumstances it would have been error if the court had instructed the jury he was guilty of no offense if he had not personally struck the officer in his struggle while under arrest or after the assault on the officer by the others of the gang. If the jury believed statements made by him to the police were voluntarily made, and this question the court submitted fairly to the jury without objection, there was no alternative than to convict him, as the jury did, of murder in the first degree. If the jury believed the statements should be disregarded as having been obtained by coercion, they still would have been obliged — if they believed the other government evidence — in finding him and his codefendants guilty of murder in the second degree. And. if, on the other hand, they had believed Jackson’s evidence given by him on the witness stand, which we assume was a complete denial of any preagreement to make the assault or of any assault by him after-wards (though his evidence is not in the record), the jury would have been obliged under the instruction which the court did give to acquit him. The court’s charge, to which there was no exception and which embraced all of the requests of appellants except that to which we have last referred, was as full and fair to appellants as they could ask. The record as a whole discloses no error which we ought to notice farther than we have already done, and we are left, therefore, no alternative than to affirm the judgment of the court below. Affirmed.

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

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

UNITED STATES of America ex rel. Craig S. OWEN, Petitioner-Appellee, v. Hon. Daniel J. McMANN, Warden of Auburn State Prison, Auburn, New York, Respondent-Appellant. No. 133, Docket 34822. United States Court of Appeals, Second Circuit. Argued Oct. 21, 1970. Decided Dec. 8, 1970. Brenda Soloff, New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Iris A. Steel, Asst. Atty. Gen., of counsel), for respondent-appellant. Richard N. Bach, Utica, N. Y., for petitioner-appellee. Before WATERMAN, Senior Circuit Judge, and FRIENDLY and FEINBERG, Circuit Judges. FRIENDLY, Circuit Judge: Petitioner Craig S. Owen was tried early in 1966 in the County Court of Oneida County, N. Y., with one Sebregandio, on charges of first degree robbery, second degree assault and first degree grand larceny. After some 13 to 14 hours of deliberation and a report of inability to agree with respect to one defendant, the jury returned to the courtroom around 2 A.M. and the foreman reported both defendants had been found guilty on all counts. When the jury was being polled with respect to Owen, one juror, Thomas S. Kassouf, inquired whether it was possible to convict only of grand larceny “or do we have to have the whole three?” When the judge declined to discuss the matter, Kassouf endorsed the foreman’s report. Evidently sensing that something might be amiss, Owen’s attorney, Mr. Tierney, obtained an affidavit from Kassouf. In addition to claiming that the foreman, Mr. Jeffrey, had told the jury that it had to find the defendants guilty on all three charges or none but that he and several other jurors had voted to convict on the grand larceny charge alone, Kassouf averred that Jeffrey and two other jurors, Mrs. Janak and Mrs. Taurisano, informed the other jurors that they “knew all about” Craig Owen, and referred to unfavorable incidents in Owen’s life which were entirely unrelated to the charge. Another juror, Mr. Tucker, made an affidavit that these same three jurors “informed the jury that they knew various things about Craig Owen and that they had reason to believe from outside information that he was guilty.” At the time of sentence, Mr. Tierney submitted Kassouf’s and Tucker’s affidavits in support of a motion for a new trial. This was denied. On appeal, Owen challenged the propriety of the alleged infiltration of extra-record evidence into the jury’s deliberations, but the Appellate Division affirmed without opinion, People v. Owen, 28 A.D.2d 824, 282 N.Y.S.2d 721 (4th Dept. 1967), and a judge of the Court of Appeals denied leave to appeal. After the second decision in People v. DeLucia, 20 N.Y.2d 275, 279, 282 N.Y.S.2d 526, 530, 229 N. E.2d 211 (1967), seemingly repudiating the New York rule against jurors’ impeachment of their verdict in the case of “inherently prejudicial ‘outside influences,’ ” Owen applied for reconsideration of the denial of leave to appeal, but without success. Owen’s petition for federal habeas in the District Court for the Northern District of New York contended, inter alia, that he had been convicted on less than a unanimous verdict and had been deprived of his Sixth Amendment right to confrontation by the jury’s considering extra-record statements about him by three jurors. Finding the state record insufficient to enable him to dispose of these issues, Judge Port conducted an evidentiary hearing. Kassouf and Tucker testified along the lines of their post-trial affidavits; a third juror, Shultz, stated only that some juror had said that “Owen’s father was always getting him out of trouble.” Mr. Jeffrey denied having made or heard any adverse statement, save only that one juror (evidently Mrs. Janak, whose husband was an investigator) had commented that Owen, while a member of the Utica Police Department, had taken a prowl car outside the city limits. Mrs. Janak and Mrs. Taurisano denied having made or heard any comments on matters not in evidence. Upon the basis of the testimony, the court found: In substance, the jurors or some of them were told by other jurors during the trial and the deliberations: that the defendant had been in trouble all his life; that he had been suspended from the police force in connection with the unauthorized use of a prowl car; that he had been involved in a fight in a tavern; that one of the juror’s husband was an investigator and that he knew all about plaintiff’s background and character, which was bad; and that petitioner’s father was always getting him out of trouble. Concluding that in consequence Owen had been deprived of his Sixth Amendment right of confrontation, therefore making it unnecessary to deal with the claim of a less than unanimous verdict, the judge set aside Owen’s convictions and ordered his discharge, unless the State retried him within 60 days, this period to be extended pending any appeal. The State has appealed. Although the findings went to the verge permitted by the evidence at the post-trial hearing, the State does not and could not properly ask us to reject them as clearly erroneous. It contends rather that, accepting them, we should reverse as a matter of law. Both parties recognize Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), to be the starting point for discussion. That case makes it plain that if a bailiff testified he had entered the jury room and had made statements such as the district court found were here made by jurors about Owen, the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth would require a judgment of conviction to be set aside. We think the result would be the same if a non-juror, who was neither a court officer nor a witness, admitted to having made such statements to the jury here. To be sure, in rejecting Oregon’s argument in Parker that no harm could have resulted, the Court said, 385 U.S. at 365, 87 S.Ct. at 470: This overlooks the fact that the official character of the bailiff — as an officer of the court as well as the State —beyond question carries great weight with a jury which he had been shepherding for eight days and nights. Cf. Remmer v. United States, 347 U.S. 227, 229-230, 74 S.Ct. 450, 98 L.Ed. 654 (1954). But that was written in a context where the bailiff’s remarks were only an unsupported statement of opinion, “that wicked fellow * * * is guilty,” and an assurance that any error by the jury in finding him so would be corrected by the Supreme Court. The Court might well have thought that if such statements had been made by a person who was neither a witness, cf. Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L.Ed.2d 424 (1965), nor an official, they would not have been weighty enough to constitute a prejudicial violation of a defendant’s rights under the confrontation or due process clauses, per contra when made by an official, however lowly. The statements here found to have been made were sufficiently more damaging to Owen than the remarks of the “apparently Elizabethan-tongued bailiff” in Parker, 385 U. S. at 367, 87 S.Ct. 468 (dissenting opinion of Harlan, J.), that the added factor of official utterance would not be required to show prejudice. If our analysis is correct up to this point, we must affirm unless (1) it makes a legally significant difference that the remarks here were by jurors rather than the hypothetical non-juror or (2) New York may lawfully rule out jurors’ testimony as a source of proof of the facts here alleged or (3) petitioner has waived his rights. Consideration of the first point takes us back to the jury’s earliest days. The thirteenth century jury was selected not because of its ignorance but because of its knowledge. “The decision upon questions of fact was left to them because they were already acquainted with them, or if not already so acquainted with them, because they might easily acquire the necessary knowledge.” 1 Holds-worth, A History of English Law 317 (3d ed. 1922). See also 2 Pollock & Maitland, The History of English Law 624-27 (2d ed. 1898). Members of the presenting jury were allowed to be members of the petty jury until a mid-14th century statute permitted challenge in cases of trespass or felony, 25 Edw. Ill, St. 5, c. 3 (1351-52). It was only gradually that the character of the petty jury changed. By 1468 Sir John Fortes-cue was “able to regard the jury as a body of impartial men who come into court with an open mind; instead of finding the verdict out of their own knowledge of the events, the parties or their counsel in open court present their evidence to the jury, and witnesses are examined upon oath.” However, “jurors were still allowed to use their own knowledge in reaching a verdict, and might reach a verdict although no witnesses and no evidence had been produced.” Plucknett, A Concise History of the Common Law 129-30 (5th ed. 1956). Another four centuries were to elapse before Parliament provided in 1856 that a jury “trial could be moved to the Central Criminal Court if it was feared that a local jury would not be impartial.” Id. at 128. The twentieth century American jury has moved a long way from its medieval origins. Today’s juror must be “indifferent” and “[h]is verdict must be based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). See also Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907). Still we would not lightly assume that the jury’s original role as the voice of the country may not sufficiently persist that neither the specific guarantees of an impartial jury and of confrontation nor the more general one of due process would be violated simply because jurors with open minds were influenced to some degree by community knowledge that a defendant was “wicked” or the reverse, even though this was not in evidence. See Irvin v. Dowd, supra, 366 U.S. at 722-723, 81 S. Ct. 1639. One, although by no means the only, purpose of the insistence on trial in the vicinage both in Article III, § 2, and in the Sixth Amendment, must have been to entitle a defendant to trial where he is known — and this may sometimes work against him rather than in his favor. Indeed there are still sections of the country where it might be impossible to find twelve jurors who were totally ignorant about a defendant. Moreover, to allow verdicts to be attacked merely for casual jury-room references on the basis of matters not in evidence would add unduly to the already fragile state of criminal convictions. See United States v. McKinney, 429 F.2d 1019, 1031-1032 (5 Cir. 1970) (dissenting opinion of Judge Godbold). As Mr. Justice Clark observed, dissenting in Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1423, 10 L.Ed.2d 663 (1963), “it is an impossible standard to require that tribunal [the jury] to be a laboratory, completely sterilized and freed from any external factors.” While Parker v. Gladden, supra, consistently with the precedents it cites, demonstrates the Court’s continuing concern with protecting a criminal defendant from the possibility of a verdict based on a consideration of facts not properly before the jury, it is thus not automatically determinative when the extra-record remarks are by jurors themselves. The invocation of the confrontation clause in Parker was entirely appropriate to shield the defendant from comments to the jury by one whose statements, if admissible at all, could have properly been received only from the witness stand, subject to the procedural safeguards which the Sixth Amendment requires. But, so far as we know, the Court has never suggested that jurors, whose duty it is to consider and discuss the factual material properly before them, become “unsworn witnesses” within the scope of the confrontation clause simply because they have considered any factual matters going beyond those of record. To resort to the metaphor that the moment a juror passes a fraction of an inch beyond the record evidence, he becomes “an unsworn witness” is to ignore centuries of history and assume an answer rather than to provide the basis for one. Although accurate knowledge of what goes on in the jury room is unhappily limited, see Kalven and Zeisel, The American Jury vi-vii (1966), we suspect there are many cases where jurors make statements concerning the general credibility or incredibility of the police, the need of backing them up even when there is reasonable doubt of guilt or putting brakes upon them even when there is none, the desirability of overcoming reasonable doubt because of the repugnance of particular crimes or of yielding to less than reasonable doubt because of their insignificance, and concerning other matters that would invalidate a judgment if uttered by a judge, see id. at 131-S2. Yet this is the very stuff of the jury system, and we have recognized, in a not unrelated context, that the standards for judges and juries are not the same, United States v. Maybury, 274 F.2d 899, 902-903 (2 Cir. 1960). The touchstone of decision in a case such as we have here is thus not the mere fact of infiltration of some molecules of extra-record matter, with the supposed consequences that the infiltrator becomes a “witness” and the confrontation clause automatically applies, but the nature of what has been infiltrated and the probability of prejudice. See, e. g., Rideau v. Louisiana, supra,, 373 U.S. at 727, 83 S.Ct. 1417; Estes v. Texas, 381 U.S. 532, 542-543, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 351-352, 86 S. Ct. 1507, 16 L.Ed.2d 600 (1966); United States v. Crosby, 294 F.2d 928, 950 (2 Cir. 1961), cert. denied sub nom. Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). On the basis of Judge Port’s findings, we think that in this ease there was “such a probability that prejudice will result that it [the verdict] is deemed inherently lacking in due process.” Estes v. Texas, supra, 381 U.S. at 542-543, 85 S.Ct. at 1633. To be sure, there is no “litmus paper test” for making such a determination. But a good definition of the right line has recently been drawn by Judge Goldberg in United States v. McKinney, 429 F.2d 1019, 1022-1023 (5 Cir. 1970): All must recognize, of course, that a complete sanitizing of the jury room is impossible. We cannot expunge from jury deliberations the subjective opinions of jurors, their additudinal expositions, or their philosophies. These involve the very human elements that constitute one of the strengths of our jury system, and we cannot and should not excommunicate them from jury deliberations. Nevertheless, while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room * * * specific facts about the specific defendant then on trial. * * * To the greatest extent possible all factual [material] must pass through the judicial sieve, where the fundamental guarantees of procedural law protect the rights of those accused of crime. Owen’s case falls on the impermissible side of this by no means bright line, although perhaps not by much. On the basis of the judge’s findings, the jurors’ statements went beyond Owen’s being something of a ne’er-do-well; they included allegations of at least two specific incidents which had not been and probably could not have been received in evidence, and which Owen had had no opportunity to refute. We thus reach the second asserted basis of distinction from the statements by a hypothetical non-juror with which we began, namely, that the evidence came from the jurors themselves. The State could not seriously contend that even if Owen were denied due process by virtue of the jury’s consideration of prejudicial extra-record facts, New York law may independently foreclose him from challenging his conviction on federal constitutional grounds, cf. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), and we do not understand it to be making such a contention. Rather, the State argues that we should be mindful of the compelling public policy considerations, emphasized by the Supreme Court, which underlie the general rule against jurors’ impeachment of their own duly rendered verdict: [L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed * * * in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference. McDonald v. Pless, 238 U.S. 264, 267-268, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915). Since the sole proof of prejudice in the instant case comes from the post-trial interrogation of the jurors with respect to what transpired during their deliberations, and since New York evidence law, following the famous decision of Lord Mansfield, Vaise v. Delavel, 1 T.R. 11 (K.B. 1785), has allegedly embraced this policy by clamping a tight seal on jurors’ revealing what they heard in the jury room, Dana v. Tucker, 4 Johns. R., N.Y., 487, 488 (1809); Clum v. Smith, 5 Hill, N.Y., 560, 561 (1843); Williams v. Montgomery, 60 N. Y. 648 (1875), we are urged to refrain from carving an exception to a rule which, it is argued, represents a firmly imbedded policy of both New York State and federal courts. While we have taken note of this policy, Miller v. United States, 403 F.2d 77, 82 (2 Cir. 1968), we have also recognized, United States v. Crosby, supra, 294 F.2d at 949-950, following the Supreme Court in Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892), that the prohibition is not an absolute. Indeed, as indicated above, we should have thought that the New York State evidence rule, so far as here relevant, had been eliminated by the second decision in People v. DeLucia, supra, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211. We would read Judge Keating’s opinion as in effect adopting for New York the rule of Woodward v. Leavitt, 107 Mass. 453, 466 (1871), approved in Mattox v. United States, supra, 146 U.S. at 149, 13 S.Ct. at 53, that “a juryman may testify to any facts bearing upon the question of any extraneous influence, although not as to how far that influence operated upon his mind,” with “extraneous” including misconduct by the jurors themselves. The distinction asserted by the State, that in DeLucia the jurors were testifying to misconduct outside the jury room, to wit, an unsupervised viewing of the seene of the crime by some of them, whereas here the misconduct was inside, will not wash. In the first place, it makes no sense, see State v. Koeiolek, 20 N.J. 92, 100, 118 A.2d 812, 816 (1955) (Brennan, J.); Proposed Rules of Evidence for the United States District Courts and Magistrates, § 6-06(b) and p. 119 (1969). The State’s approving citation of United States v. Crosby, supra, 294 F.2d 949-950 (2 Cir.), indicates it would not assert that while a juryman could testify he had read a newspaper article with extra-record information outside the jury room, he could not reveal his communication of it to other jurors within that sanctum. There is no rational distinction between the potentially prejudicial effect of extra-record information which a juror enunciates on the basis of the printed word and that which comes from his brain. As we pointed out in United States v. Crosby, supra, 294 F.2d at 950, it is the “nature of the matter and its probable effect on a hypothetical average jury,” not the source of the information or the locus of its communication, which determines whether the defendant has been prejudiced. In the second place, the distinetion would not explain DeLucia itself, since as appears from this court’s opinion in United States ex rel. DeLucia v. McMann, 373 F.2d 759, 761 (2 Cir. 1967), the jurors’ affidavits related to events inside as well as outside the jury room and the New York Court of Appeals drew no distinction on that score. However, if we were to take the inscrutable silence of the state courts to mean what the Attorney General says it does, we would be obliged to disregard a state evidentiary rule preventing what in this case is the only method of proving that the defendant had been denied due process by the jury’s consideration of prejudicial extra-record facts. Cf. American Ry. Exp. Co. v. Levee, 263 U.S. 19, 21, 44 S.Ct. 11, 68 L.Ed. 140 (1923). We intimated as much in DeLucia, supra, 373 F.2d at 762. We would reach the same result if the supposed New York rule barring a juror’s statement about improper statements within the jury room were viewed as being cast in terms of privilege. It remains only to consider the State’s claim that Owen waived his right to complain of the jurors’ misconduct by failing to object to the jury’s containing persons who might avail themselves of knowledge about him dehors the record. Here we suffer from the handicap that all efforts to find the transcript of the voir dire of the jurors have been unsuccessful. At the hearing in the district court, Mr. Tierney, Owen’s attorney, testified that he asked the jurors whether they knew Owen or his family, whether they knew of any reason why in fairness to the defendant they could not sit, and whether anything they had discussed or read would affect or prejudice their deliberations. All these questions elicited negative responses except in the case of Mr. Jeffrey, who said he knew Owen casually but that this would not affect his judgment. Mr. Jeffrey confirmed that Mr. Tierney had asked whether he knew Owen and that he acknowledged a casual acquaintance which, according to Jeffrey’s post-trial testimony, was due to a single meeting at a testimonial dinner. Mrs. Janak testified that Tierney had asked whether she knew Owen and she had replied in the negative, which was true, although perhaps not quite the whole truth since she did know something about him. While counsel may have been at fault in not asking more directly whether the jurors knew anything concerning Owen that would affect their judgment, the State has not sustained its burden of showing that the defense consented that the jurors who were to try Owen could bring into the jury room specific factual material about him that was derived solely from their personal lives rather than the evidence adduced at trial. Affirmed. . Kassouf also claimed that he requested Mr. Jeffrey to ask the judge for instructions on this point but that Jeffrey refused to do so. . Very likely this was on the basis of the initial ruling in People v. DeLucia, 15 N.Y.2d 294, 296, 258 N.Y.S.2d 377, 378, 206 N.E.2d 324, 324, cert. denied 382 U.S. 821, 86 S.Ct. 50, 15 L.Ed.2d 67 (1965), that “jurors may not impeach their own duly rendered verdict by statements or testimony averring their own misconduct within or without the jury-room ; much less can they do so by statements presented in the form of hearsay affidavits.” However, we must reiterate previous expressions of regret that in New York prisoner cases raising constitutional claims as substantial as this one, we do not have the benefit of a considered statement, however brief, by a New York appellate court. A quite different case would be presented, for example, if the trial judge or the Appellate Division had indicated disbelief in the affidavits filed. . In saying this we assume the jurors made truthful answers to questions on the voir dire. . A few instances are reported in Broeder, The Impact of the Vicinage Requirements : An Empirical Look, 45 Nebr.L. Rev. 99, 106-09 (1966), and in Miller v. United States, 403 F.2d 77, 84 n. 12 (2 Cir. 1968). . While the rule in McKinney was arguably established under the court’s supervisory powers rather than as a matter of due process, neither the opinion nor the authorities there cited indicate that any such distinction was intended and we do not believe it properly could have been. We have slightly modified the excerpt quoted in the text, so as to eliminate any suggestion that jurors become “witnesses,” with consequent automatic' entailment of the confrontation clause, whenever a juror voices any extra-record facts. Indeed the McKinney court was careful to point out that the inquiry of the jurors on the remand was to be limited to the factual issue whether a discussion of facts outside the record did take place, but that the “trial court itself must decide the question of prejudice on the basis of an independent evaluation of all the circumstances of the case.” 429 F.2d at 1030. In short, the inquiry is not whether the jurors “became witnesses” in the sense that they discussed any matters not of record but whether they discussed specific extra-record facts relating to the defendant, and if they did, whether there was a significant possibility that the defendant was prejudiced thereby. . Although we believe this to be the proper rule, see United States v. Crosby, supra, 294 F.2d at 949-950, we do not underestimate its difficulties of application. The testimony taken in this very ease drifted, almost inevitably, from what the jurors allegedly said to what its effect had been. This is a further consideration weighing in favor of a rather narrow definition of the kind of statement by a juror that will afford basis for invalidating a verdict. . Wigmore states, 8 Evidence § 2346, p. 678 (McNaughton rev. 1961) that “a juror is privileged, not to have his communications to a fellow juror [during retirement] disclosed upon the witness stand against his consent.” The language and most of the citations bear upon the case where the juror is proceeded against for contempt, perjury, or obstruction of justice, as in Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933), although what Wigmore calls Mr. Justice Cardozo’s “eloquent exposition of the policy” of the supposed privilege in that case seems in fact to leave little but the name. However, when Wigmore comes to impeachment of the verdict as such, while vigorously attacking Lord Mansfield’s rule as, among other things, tempting the parties “to seduce the bailiffs to tricky expedients and surreptitious eavesdrop-pings,” id. at § 2353, p. 699, he also says that the privilege would apply “if the jur- or to be informed against should claim it,” id. at § 2352, p. 695. Hence, as a practical matter, impeachment for misconduct in the jury room could be had only when the juror guilty of misconduct confessed. We find it hard to see how when a verdict is attacked by juror A’s testimony about what juror B said or did in the jury room, the government has standing to invoke whatever privilege jur- or B may possess; whether juror B is privileged to have juror A’s testimony excluded in a proceeding against him is another matter.

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?

CAPITAL TRANSIT CO. v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al. No. 11501. United States Court of Appeals District of Columbia Circuit. Decided Dec. 10, 1953. Order Amending Judgment Filed Feb. 25, 1954 Mr. Samuel O. Clark, Jr., Washington, D. C., with whom Messrs. Edmund L. Jones, F. G. Awalt, W. V. T. Justis and F. Keith Kelly, Washington, D. C., were on the brief, for appellant. Mr. Lloyd B. Harrison, Counsel for the Public Utilities Commission of the District of Columbia, with whom Mr. Vernon E. West, Corp. Counsel for the District of Columbia, was on the brief, for appellee Public Utilities Commission of the District of Columbia. Mr. T. Justin Moore, Richmond, Va., with whom Messrs. George D. Gibson, Richmond, Va., James Francis Reilly and Cornelius Means, Washington, D. C., were on the brief, for appellee Potomac Electric Power Co. Messrs. H. W. Kelly and Thomas E. O’Dea, Washington, D. C., also entered appearances for appellee Potomac Electric Power Co. Before STEPHENS, Chief Judge, and WILBUR K. MILLER and FAHY, Circuit Judges. FAHY, Circuit Judge. Proceedings were initiated in July 1950 before the Public Utilities Commission of the District of Columbia by the Potomac Electric Power Company for an increase in its rates. The Capital Transit Company, a customer, was permitted to intervene as an interested party. On February 12, 1951, the Commission made its order No. 3762, accompanied by an opinion. It concluded, inter alia, that a weighted rate base of $146,926,000 for the test year 1951 constituted a fair and reasonable estimate of the amount upon which the Power Company was entitled to earn a fair and reasonable return in the immediate future, that a rate of return of 5%% was fair and just, and that in order to provide the Power Company with a fair return upon its property devoted to furnishing electric service throughout its system an increase of approximately $2,-600,000 in rates was necessary. It accordingly ordered the Power Company to file rate schedules designed to produce for the system as a whole additional gross operating revenue of not more than that amount annually, based upon the year 1951. By another order, No. 3774, the Commission on March 20, 1951, made effective rate schedules so filed, insofar as they applied to the District of Columbia, finding them to be just, reasonable and nondiscriminatory. The increase for Transit’s street railways in the District was approximately $209,000 per annum, to begin April 20, 1951. Transit’s application for reconsideration was denied. With other parties it then appealed to the District Court as authorized by § 43-705, D.C.Code 1951. The court dismissed the appeal and affirmed both orders, giving its reasons in an opinion reported sub nom. Leeman v. Public Utilities Commission of District of Columbia, D.C., 104 F.Supp. 553. Whereupon Transit, but no other party, appealed to this court as also authorized by said § 43-705. I. The principal attack upon the rate schedules arises out of the fact that the Power Company serves not only the District of Columbia, to which the Commission’s jurisdiction is limited, but parts of Virgina and Maryland where its rates are subject to regulation by other commissions, and also certain interstate consumers the rates for whom are under the jurisdiction of the Federal Power Commission. In approving the increase for District consumers, however, the Commission, as has been noted, did so on the basis of system-wide schedules. It found the rate base of the Power Company by evaluating the total system properties, ascertained its revenue needs also on a system-wide scope, determined the rate of return required to meet those needs and then approved, for the District alone, rate schedules which, as applied throughout the system, would net the required revenues. Transit points out that the Commission failed to segregate or allocate, terms which we use interchangeably, costs and revenues applicable to the business in the District, separate and apart from those applicable in the other jurisdictions. It contends that, therefore, the rates fixed for the District cannot be said to be “reasonable, just, and nondiscriminatory”, the standards prescribed by the local statute. § 43-301, D.C.Code 1951. Appellees — the Commission and the Power Company — as justification for the system-wide approach point to the highly integrated character of the Power Company, with part of its generating plant located in Virginia yet essential to the total system operations in the District, in Maryland, and interstate. They point also to the relatively compact area served, to the long history of regulation on a system-wide basis, and to the great difficulty which would be encountered in segregating either properties, costs or revenues along jurisdictional lines. These are not mere arguments. They are Commission findings and conclusions with support in the evidence. In these circumstances it is not always essential in fixing rates for District consumers to segregate properties, costs or revenues merely because the total properties and services of the Power Company extend to other jurisdictions. This conclusion has involved our consideration of decisions of the Supreme Court and of this court relied upon by Transit to the contrary. The reason given in Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819, for separate treatment of the intrastate and interstate aspects of a railroad business in the fixing by a state body of intrastate rates was to avoid the inequity and unreasonableness of interstate traffic bearing more than its due burden in relation to the intrastate. No rational alternative to such separate treatment appears to have been presented as a basis for judging the validity of the state action. To avoid discrimination by the rates of one jurisdiction against those of another — to establish the reasonableness of the intrastate rates to be approved — separation of the property, costs and business involved in the intrastate business was deemed necessary. This purpose has led to the statement that allocation is essential to the appropriate recognition of state and federal authority. See Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 148-149, 51 S.Ct. 65, 75 L.Ed. 255, involving intrastate telephone rates. Minnesota Rate Cases, 230 U.S. 352, 435, 33 S.Ct. 729, 57 L.Ed. 1511, is in the same line of decisions. But thereafter, in Colorado Interstate Gas Co. v. Federal Power Comm., 324 U.S. 581, 589, 65 S.Ct. 829, 89 L.Ed. 1206, the principle of segregation of properties was said not to have been written by Congress into the Natural Gas Act as the only prescribed formula for rate regulation. So, too, with respect to the District of Columbia statute. It does not incorporate, as essential, any particular segregation formula; and although a type of segregation was used by the Commission in the proceedings considered in Colorado Interstate Gas Co. v. Federal Power Comm., the opinion of the Court permits a latitude not restricted to segregation of one kind or another. Illinois Commerce Comm. v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371, and Lone Star Gas Co. v. Texas, 304 U.S. 224, 58 S.Ct. 883, 82 L.Ed. 1304, are we think to similar effect. In the former the Court was reviewing an order of the Interstate Commerce Commission directed at removal of unjust discrimination against interstate commerce due to disparity of the intrastate and interstate switching rates of interstate carriers in the Chicago Switching District. The Court said that where conditions are found to be substantially the same as to all features bearing on the reasonableness of the rate, and the interstate and intrastate classes of traffic are shown to be intimately bound together, separation of interstate and intrastate costs and revenues is not required. In Lone Star Gas Co. v. Texas the Court upheld, without requiring segregation, an order of the Texas commission reducing natural gas rates charged by a Texas utility. The utility had been treated by the commission as an integrated system which included properties in Oklahoma. Chief Justice Hughes, who had written the opinions in Minnesota Rate Cases and Smith v. Illinois Bell Tel. Co., said for the Court: “ * * * This was not a case where the segregation of properties and business was essential in order to confine the exercise of state power to its own proper province. Compare Smith v. Illinois Bell Telephone Co., 282 U.S. 133, 148, 149, 51 S.Ct. 65, 68, 69, 75 L.Ed. 255. Here, as we have seen, the Commission in its method of dealing with the property and business of appellant as an integrated operating system did not transcend the limits of the state’s jurisdiction or apply an improper criterion in its determinations. * * * ” 304 U.S. at page 241, 58 S.Ct. at page 891. Where, as in Lone Star Gas Co. v. Texas, it appears the whole of the integrated company, lying in part beyond the commission’s jurisdiction, can be considered without interference with other governmental authority or departure from applicable rate-fixing standards, allocation of properties, or of costs or revenues, are not the only formulae available. We are unwilling to attribute to Mississippi River Fuel Corp. v. Federal Power Comm., 82 U.S.App.D.C. 208, 163 F.2d 433, a rigid rule that allocation is essential where the system operates in more than one jurisdiction. There the Commission itself had adopted allocation, within its “wide power in the selection of formulae for the ascertainment of costs.” 82 U.S.App.D.C. at page 214, 163 F.2d at page 439. We set aside the order because in applying allocation the Commission had used in part improper measures and had failed to make adequate findings. By reason of the foregoing it seems plain that at least certain steps taken by the Commission on the basis of the system-wide operations of the well integrated Power Company, without allocation of its properties, costs or revenues, withstand attack. These steps include the ascertainment of the rate base itself by inclusion of all its properties. The precedents lead us to conclude that this is not illegal in and of itself, and there is no reason peculiar to this case which renders it illegal in its present application. Mr. Justice Jackson in his concurring opinion in Colorado Interstate Gas Co. v. Federal Power Comm., supra, 324 U.S. at page 609, 65 S.Ct. at page 842, said, “ * * * I suppose a commission is free to take evidence as to conditions and events quite beyond its regulatory jurisdiction where they are thought to affect the cost of that whose price it is directed to determine. * * * ” We see no reason why findings on evidence so taken may not also be made, as was done in the case before us, in aid of the process of rate making within a commission’s jurisdiction. There likewise appears no basis for disapproving the Commission’s use of system-wide revenues and revenue needs as part of the process of reaching the approved rates. As the Commission says, its “authority to fix rates charged for electric service by the Company is limited to the District of Columbia. This does not mean, however, that the Commission must blind itself to the operations of the Company as a whole in appraising its revenue needs. * * * [Ejffective and equitable regulation requires consideration of system operations.” No fault with this approach at this further stage, that of ascertaining revenue and revenue needs, is disclosed by any ground presented, once it is held that allocation is not the only method available where more than one jurisdiction are involved. Furthermore, the fixing of a rate of return does not depend upon or require allocation. The reasonableness of the particular percentage fixed, however, is considered independently hereinafter. We reach this point in the process followed by the Commission without finding error in the system-wide method pursued. This leaves undetermined,' however, the validity of rates actually approved for District consumers.' Here the problem which gave rise to the'allocation requirement' remains even though that formula may not be the only route to its solution. We. must be able to say that the rates in the District are reasonable, just and nondiscriminatory as' a part of, or in relation to, the system rates contained in the schedules of the Power Company for areas and services beyond the Commission’s jurisdiction; that is to say,, that District consumers do not subsidize the non-District, or, indeed, vice versa. See Smyth v. Ames, supra, 169 U.S. at page 541, 18 S.Ct. at pages 431, 432; Colorado Interstate Gas Co. v. Federal Power Comm., supra, 324 U.S. at pages 593-594, 65 S.Ct. at pages 835, 836; Mississippi River Fuel Corp. v. Federal Power Comm., supra, 82 U.S.App.D.C. at page 226, 163 F.2d at page 451. In solving this final problem the continuation of a system-wide treatment is not necessarily excluded. But in order that our review of the rates.be not perfunctory, Washington Gas Light Co. v. Baker, 88 U.S.App.D.C. 115, 120-121, 188 F.2d 11, 16-17, certiorari denied, 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686, the Commission must make findings, with supporting evidence, which disclose a rational basis for those rates which it approves as part of broader schedules, which apply beyond its jurisdiction. We go-to the Commission’s opinion in search of findings which give a valid basis for the rates fixed for the District in this context of system-wide rates which apply in Virginia and Maryland and, also, to its interstate services. The Virginia area, and part of the Maryland, are classified by the Commission as urbán, as is the whole of the District of Columbia. On this premise appellees contend that where the same conditions prevail beyond as well as within the Commission’s jurisdiction the validity of a uniform rate need not be demonstrated by allocation. We think this is essentially true. To paraphrase the language of the Supreme Court in Illinois Commerce Comm. v. United States, supra, where economic conditions in the areas served áre found to be substantially the same with respect to all features bearing on the reasonableness of the rate and the areas are shown to be intimately bound together there is no occasion to separate costs and revenues according to jurisdictional lines. But the evidence and findings must bring the situation within these' tests if they are to apply. Even were we to assume the evidence would support such findings as to the entire.urban zone the Commission itself should first make them on the basis of its own consideration of the evidence. The Commission does refer in its opinion to the fact that the urban zone has been extended from time to time beyond the District of Columbia “as the population density and urban characteristics of the District of Columbia have extended into the Company’s Maryland territory.” The Commission also states the record indicates that it is desirable and equitable to extend the rates available in the urban zone to both the Virginia territory of the Power Company and to an additional area in Maryland. But we are not justified in translating these general statements either into findings of similarity of costs and revenues throughout the urban zone or into other terms which support the reasonableness of rates in that part of the urban zone comprised of the District of Columbia in relation to the rates in the remainder of the urban zone. We are reviewing in detail a rate order made from a system-wide standpoint without segregation of properties, costs or revenues as between the several jurisdictions within which the system operates. The importance and character of the subject call for findings which reflect the subsidiary and ultimate bases for the action taken, in terms pertinent to rate-fixing, namely, properties, costs and revenues, or costs and revenues, or, if not these then, as indicated in Illinois Commerce Comm. v. United States, supra, other factors by which the reasonableness of the District rates can be judged. Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554, certiorari denied sub nom. Gross v. Saginaw Broadcasting Co., 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391, and Tri-State Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 292, 96 F.2d 564, require such findings, though we are aware of the generous attitude towards findings in rate cases displayed in Colorado Interstate Gas Co. v. Federal Power Comm., supra, 324 U.S. at page 595, 65 S.Ct. at page 836, and inherent in King v. United States, 344 U.S. 254, 73 S.Ct. 259. Furthermore, there is an area in Maryland beyond the urban zone, classified as suburban. This alone accounts for approximately 6% of the business of the Power Company. Neither this nor the percentage of sales under the rate jurisdiction of the Federal Power Commission, is insignificant. Each of these areas of service, and of course their aggregate, is substantial. With respect to the suburban business, the Power Company with the approval of the Maryland commission applies a higher rate there than in the urban zone, due to higher costs, but there is no finding the suburban rate bears such relationship to higher costs as, considered from the standpoint of costs alone or together with other factors the Commission might deem to be relevant, enables us to arrive at a judgment that the District rates are reasonable in this still larger context of system-wide rates. The difficulty is not met by appellees’ contention Transit does not attack the fairness of the differential between urban and suburban rates; for it is not merely a question of differential. In fixing the District rates as part of system-wiae schedules the Commission must justify the former. The suburban rates necessarily affect those within the District when the District schedules are arrived at as part of system-wide schedules. Revenues become the system revenues. The basic problem is whether rates fixed by the Commission for the District are on a higher level than they reasonably and justly should be due to other sources not bearing their fair share of revenues. We do not now decide whether this is the fact or not. But when the problem lies across jurisdictional lines and is not solved by the permissible formulae of allocating as between jurisdictions either properties, costs and revenues, or costs and revenues, the method which is adopted must be rationally manifested in findings and conclusions, the former grounded in evidence and the latter in evidence and reasoning, which enable the court to support the District rates alone. The burden upon Transit to sustain its attack upon the orders, see King v. United States, supra, is carried when such findings, essential to adequate review, are lacking. See Mississippi River Fuel Corp. v. Federal Power Comm., supra, 82 U.S.App.D.C. at page 214, 163 F.2d at page 439; Saginaw Broadcasting Co. v. Federal Communications Comm., supra. See, also, Colorado Interstate Gas Co. v. Federal Power Comm., supra, 324 U.S. at page 595, 65 S.Ct. at page 836. The statutory authority of this court to review questions of law implies the necessity for such findings. Washington Gas Light Co. v. Baker, supra. The District rates are not sustained by the circumstance that system-wide treatment of certain factors is permissible, as we hold. Where these rates are arrived at by formulating schedules on a system-wide basis, extending into other jurisdictions, they must be supported also by findings of similar conditions pertinent to rate-fixing where the other rates are similar or, where the other rates are different, by findings of other relevant economic conditions which justify on a rational basis the District rates in relation to the other; that is, as part of the system-wide schedules. If this cannot be done then it would seem necessary to resort to allocation. The other rates here referred to are those in the urban zone in Virginia and Maryland, the suburban zone in Maryland, and those for interstate services exclusive of the interchange arrangements. II. The Commission allowed a rate of return of 5% % on the rate base. Our function, see Washington Gas Light Co. v. Baker, supra, 88 U.S.App.D.C. at page 118, 188 F.2d at page 14, is to review questions of law and to disturb findings of fact only if they are “unreasonable, arbitrary, or capricious”, § 43-706, D.C.Code 1951. Under these standards we held in the case last cited that the rate of return there fixed was not supported by the necessary evidence or inquiry. Without evidence we pointed out the lack of basis for applying any standard, leaving judicial review, though authorized, a futile gesture. Here, however, the writer of this opinion believes there was evidence dealing with the rate necessary to maintain the Power Company in a sound financial position, to permit it to attract additional capital,, the cost of capital, and as to the necessity of providing dividends and interest on funded debt. The evidence was discussed and analyzed by the Commission in its opinion. The Commission found that 5% % was reasonable and proper as a rate of return, and that this is sufficient to maintain the Power Company in a sound financial position and to enable it. to attract capital as needed in the rendition of efficient and economical electric service to the public, whereas a lower-rate basis would jeopardize its ability-to issue securities on favorable terms, and, accordingly, would be contrary to-the public interest. He finds nothing in Mississippi River Fuel Corp. v. Federal Power Comm., supra, or Washington Gas Light Co. v. Baker, supra, relied upon by Transit, which conflicts with the view that, on the record before us„ these findings are not unreasonable, arbitrary, or capricious, or so unsupported by evidence as to be legally inadequate. Chief Judge Stephens and Judge Miller, however, are of a different opinion on this Topic II and Judge Miller joins in the views expressed on that topic in the opinion of Chief Judge Stephens which accordingly becomes the opinion of the •court on Topic II. III. The writer and Judge Miller are of the view that, because of the further proceedings required by our disposition of Topic I, it is not now necessary to pass upon the validity of the share of total increase of rates in the District of Columbia required by the ■Commission to be borne by Transit. The amount of this increase is not yet finally •determined. Nevertheless we think it helpful in aid of final disposition of the problem to say now that we agree with Chief Judge Stephens that the findings presently before us are not adequate in respect of the increase assigned to Transit by the orders now under review. The judgment of the District Court is reversed and the case will be remanded to the District Court with instructions to remand the case to the Commission for further proceedings in accordance with this opinion. STEPHENS, Chief Judge. I agree with the reasoning and with the conclusions reached in Topic I of Judge Fahy’s opinion. But for the reasons stated below I disagree with the view expressed in Topic II of Judge Fahy’s opinion as to the sufficiency of the Commission’s findings on the issue as to the rate of return. And for reasons stated below I am also of the view that the discussion of the Commission on the issue as to the amount of the total rate increase to be apportioned to Transit fails to satisfy the requirements of the courts for findings. Concerning the findings on the issue as to the rate of return: The Commission reached the conclusion that a $2,600,000 rate increase should be allowed the Power Company, in the following manner: The Commission took as an acceptable test period for the purposes of the proceeding the calendar year 1951. The Commission then found — I state its findings in summary form — that: For the test period a rate base of $146,-926,000 is a reasonable estimate of the amount upon which the Power Company is entitled to earn a reasonable return. Existing rates charged for electrical energy would produce during the test period a net operating income of approximately $6,730,000 after giving effect to the applicable federal income tax. That amount represents a return of 4.58 per centum on the rate base of $146,926,000. Such a return is inadequate to maintain the Power Company in a sound financial position arid to enable it to attract on favorable terms the capital necessary for the rendering by the Power Company of the public service required of it. A fair rate of return to be applied to the rate base is 5.5 per centum. The total operating income necessary to produce 5.5 per centum on the rate base stated is $8 080,930. That amount exceeds the $6,730,000 which would be produced by existing rates by $1,350,930. In order to realize the latter amount, in view of income tax rates, a $2,600,000 total rate increase is necessary. It is apparent from the foregoing that the finding that 5.5 per centum is a reasonable rate of return is a critical part of the process by which the Commission arrived at the ultimate rate increase of $2,600,000. The Commission was applying the so-called prudent investment theory of rate regulation. In so doing it did not follow the requirements which, in my view, have been laid down by this Court of Appeals for the establishment of a reasonable rate of return. In Washington Gas Light Co. v. Baker, 88 U.S.App.D.C. 115, 188 F.2d 11 (1950), this court ruled upon such requirements, in respect of the determination by the Commission of a proper rate of return for a gas utility operating in the District of Columbia. There as here the Commission was applying the prudent investment theory of rate regulation. The court said: “Despite the broad limits allowed the Commission, it remains imperative that its findings, under whatever formula adopted, be based upon substantial evidence in the record. Here, the Commission adopted the prudent investment theory of rate regulation and, at the hearings and in its Findings and Opinion, used the traditional formula for rate-making. That required a determination of the rate base and of a rate of return on that rate base sufii-cíent to produce adequate revenues above operating expenses (including. depreciation) to pay interest on the bonds,, dividends on the stock and, in general, maintain the financial integrity of the enterprise. Although the Commission did make findings as to rate base and estimated operating expenses as well as probable revenues under.the rate schedules proposed, it made no inquiry whatsoever into issues necessary to determination of a fair rate of return. Essential to such an inquiry is a study of the capital costs of the business, such as service on the debt and - dividends on the stock, in the light of returns on investments in other enterprises -having a similar risk factor. Only upon such evidence can the Commission determine what is required ‘to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.’ In the Hope case [Federal Power Comm. v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed; 333], the Supreme Court makes abundantly clear the nature of the considerations pertinent to that issue. And, in the 1943 rate- proceeding of the Company, the Commission dealt extensively with some of these matters, discussing under Tate of return’ facts regarding • long-term debt capital, preferred stock capital and common stock capital. It was this sort of inquiry to which the Supreme Court referred when it said that the standard announced in the Hope case is not ‘so vague and devoid of meaning as to render judicial review a perfunctory process. It is a standard of finance resting on stubborn facts ’ “The only reference to rate of return in the Commission’s opinion is that ‘a return of less than 4% is obviously inadequate to maintain the Company in a sound financial position.’ Commission expertise alone cannot support so pivotal an assumption. Failure to subject this issue to inquiry at the hearing and the conse quent inadequacy of the record and the findings render the Commission’s conclusion that the rates are ‘reasonable, just, and non-discriminatory’ devoid of substance and wholly ineffective for its purpose. Without any evidence on this essential issue, there is no basis for application of any standard and the judicial review authorized by the statute becomes a formal but futile gesture.” (Footnotes omitted) (188 F.2d at 15-17) In the Washington Gas Light case this court dealt also with another requirement. It appeared in that case that the Commission in deciding upon a rate of return had relied upon a finding made on that issue in a prior proceeding involving the same utility. In respect of that the court, immediately after the statement just quoted, said: - “Although the Commission’s opinion makes no attempt to explain this fatal deficiency in the record, a review of the transcript indicates that the Commission may have based its action on one or both of two possible grounds: * * * (2)... While under certain circumstances, reliance on a prior proceeding for this purpose might be permissible, such circumstances do not exist in this case. There is nothing before us to indicate that pertinent local conditions and economic conditions generally have remained static during the intervening years. Nor does it appear that the risk factor, so important an element in fixing rate of return, has remained static. On the contrary, it appears to have been materially reduced recently by the change from manufactured to natural gas and by the treatment afforded by the Commission to abandoned plant and standby plant. Finally, the only relatively recent rate proceedings involving this Company dealt with the sliding scale arrangement which presented substantially different considerations.” (Footnotes omitted) (188 F.2d at 17) These,, rulings by this court in my view require a commission, in reaching a decision as to a reasonable rate of return under the prudent investment theory of rate regulation, to make findings upon the following underlying issues: the return necessary to service the outstanding funded debt, if any, of the utility; the return necessary to service its preferred stock, if such stock is outstanding; the return necessary to attract investors in common stock; the return on funded debts, preferred stock, and common stock in other public utilities having a risk factor similar to that of the utility under consideration; and, if the commission has relied upon a rate of return determined in a previous proceeding involving the same utility, a further finding upon the question whether or not pertinent local conditions, economic conditions generally, and the risk factor have remained static during the intervening period. The requirements thus laid down in the Washington Gas Light case are consistent with the rulings and reasoning of this court in Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554 (1938), certiorari denied sub nom. Gross v. Saginaw Broadcasting Co., 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391, Tri-State Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 292, 96 F.2d 564 (1938), and with the rulings of the Supreme Court referred to therein, particularly the rulings in United States v. Baltimore & O. R. Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587 (1935), and Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291 (1931). The decisions require a commission in a quasi-judicial proceeding to make basic findings supported by evidence and ultimate findings which flow rationally from the basic findings — this in order that the commission shall itself perform the initial function of evaluating the evidence and deciding the issues of fact, and in order that the courts, as reviewing tribunals, can decide whether or not the ultimate decision reached by the commission follows as a matter of law from the facts found as its basis, and also whether or not the facts found have substantial support in the evidence. The “expertise” of a commission usefully serves it in evaluating the evidence, but that expertise can not supply evidence and can not, without findings made upon the critical issues before it, guide a commission to a rational and lawful decision. It is without dispute in the instant case that the Power Company has an outstanding funded debt, outstanding preferred stock, and that it has issued common stock for the purpose of securing capital. It is without dispute also that the Commission, in determining the issue as to rate of return for the Power Company in the present proceeding, relied upon a rate of return finding made by it in a 1944 proceeding involving the Power Company. It is also without dispute that in the present proceeding, in determining a rate of return, the Commission made no findings upon the basic issues outlined above. In my view, unless the Commission takes evidence and makes findings upon such issues, it can not itself be assured that its decision on the question as to a reasonable rate of return is rationally, rather than conjecturally, reached and the District Court and this court, as reviewing tribunals, can not determine whether or not the Commission’s decision was rationally and lawfully reached. That the finding requirements above described are not, as contended by the Commission and the Power Company, merely formalistic, is shown by the illustrative tabulation set forth in the margin. The tabulation assumes that evidence and underlying findings might show a fair rate of return to be some percentage between 4.5 per centum and 6.5 per centum, inclusive; the tabulation is otherwise self-explanatory. It demonstrates the need of arriving at a rate of return upon a rational basis, i. e. as a result of evidence and underlying findings upon the issues outlined in the Washington Gas Light case, rather than conjecturally. For example, if the fair rate of return is not 5.5 per centum but 4.5 per centum, the operating income resulting from existing rates is $118,-330 higher than necessary to produce a 4.5 per centum return. Therefore, no rate increase is necessary. On the other hand, if the fair rate of return is not 5.5 per centum but 6.5 per centum the operating income resulting from existing rates is $2,820,190 lower than necessary to produce a 6.5 per centum return. Therefore, a rate increase substantially higher than that ordered by the Commission is necessary. Obviously, the correctness of the rate of return is of realistic, not formalistic, interest to both ratepayers and the Power Company. I have considered a contention made by the Commission and the Power Company that the existence of a so-called “sliding scale plan” for the Power Company makes unnecessary the findings required by the Washington Gas Light decision, such a sliding scale plan not having been involved in respect of the utility whose rates were therein considered. I find no merit in that contention. The sliding scale plan, as I understand it, makes provision for the possibility that actual earnings may prove higher or lower than anticipated in view of the rate of return in effect. Under the plan, excess earnings are applied to building up a special reserve account as a protection against insufficient earnings in the future, but when the reserve account reaches 3 per centum of annual revenues any further excess is refunded to consumers. But it is to be noted that the sliding scale plan thus operates in reference to earnings. It is therefore not adapted to protecting rate payers if the rate of return itself is excessive. I think, therefore, that this court, in reversing and remanding the case to the District Court, should direct that court to remand the case to the Commission and require the Commission to take evidence and to make further findings as above outlined upon the issue of rate of return. Concerning the findings on the issue as to the amount of the total rate increase to be apportioned to Transit: In the Commission’s Order No. 376

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

INSULAR POLICE COMMISSION v. LOPEZ. No. 4192. Circuit Court of Appeals, First Circuit. March 26. 1947. Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1743. Samuel D. Slade, Department of Justice, of Washington, D. C. (John F. Sonnett, Asst. Atty. Gen., Paul A. Sweeney and Emery Cox, Jr., Attys., Department of Justice, Mastín G. White, Sol., Department of Interior, and Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of Interior, all of Washington, D. C., of counsel), for appellant. Angel M. Villamil and Gaetan Roberts & Alcala, all of San Juan, P. R., for ap-pellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. Carlos M. Lopez, an honorably discharged veteran of the United States Army, filed a petition in the District Court of the United States for Puerto Rico under § 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 890, 56 Stat. 724, 58 Stat. 798, 50 U.S.C.A.Appendix, § 308. He sought a judgment ordering defendant, Insular Police Commission, an agency of the Government of Puerto Rico, to restore him to his former position as an insular policeman at a salary of $83.33 per month and to compensate him for his interim loss of salary. A motion to dismiss for lack of jurisdiction was filed by defendant; but this motion was denied for lack of prosecution, and thereafter defendant filed its answer admitting most of the factual allegations of the petition. After a pretrial conference, the district court, on May 29, 1946, filed its findings of fact and conclusions of law and its judgment in the case (67 F.Supp. 112). The court concluded that petitioner was entitled to be reinstated in his former position as insular policeman “since it does not appear that respondent’s circumstances are so changed as to make it impossible or unreasonable to reinstate petitioner to his former position and since it further appears that petitioner is qualified to perform the duties of said position.” The judgment, which is the subject of the present appeal, ordered that petitioner be reinstated to the position of insular policeman; that he be not discharged from such position without cause within one year after December 7, 1945 (the date on which he applied for reemployment), and that he “be paid his regular salary for the period beginning December 7, 1945 up to this date.” The only question presented to us by appellant is whether the court below had jurisdiction of a suit to enforce a veteran’s reemployment rights as against an agency of the Government of Puerto Rico, a territory of the United States, in the absence of a provision in the Selective Training and Service Act authorizing such a suit. Under the Organic Act, 48 U.S.C.A. § 863, the United States District Court for Puer-to Rico has “jurisdiction of all cases cognizable in the district courts of the United States,” plus certain additional jurisdiction not now relevant. As appears from the text of the Selective Training and Service Act, the pertinent portions of which are quoted above in the footnote, the only provision there made for judicial enforcement of a veteran’s reemployment rights is contained- in § 8(e) relating exclusively to positions in the employ of any private employer. It seems that the district court erroneously thought that the case came within § 8(e), for one of the court’s stated conclusions was that defendant’s circumstances had not so changed as to make it impossible or unreasonable to reinstate petitioner to his former position— a condition precedent having to do with reinstatement to private employment only, not to reinstatement to a position “in the employ of the United States Government, its Territories or possessions, or the District of Columbia”. In Lynch v. United States, 1934, 292 U.S. 571, 582, 54 S.Ct. 840, 845, 78 L. Ed. 1434,-the court said: “When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 63 L.Ed. 1011. It may limit the individual to administrative remedies. Tutun v. United States, 270 U.S. 568, 576, 46 S.Ct. 425, 70 L.Ed. 738.” So far as we can find, the legislative history of the Selective Training and Service Act is barren of any intimation that the Congress contemplated any judicial enforcement of the rights conferred as against the Government of the United States or of its territories or possessions. Though the petition based the jurisdiction of the court below solely on § 8 of the Selective Training and Service Act, appellee now suggests that jurisdiction may be based upon paragraph (14) of § 24 of the Judicial Code,'28 U.S.C.A. § 41(14), reading: “The district courts shall have original jurisdiction as follows: * * * (14) Suits to redress deprivation of civil rights. “Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.” In this connection, reference is made to 8 U.S.C.A. § 43, derived from § 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13, as reenacted with modifications in R.S. § 1979: “§ 43. Civil action for deprivation of rights. "Every person who, under color of any statute, ordinance, regulation, custom, or uságe, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall'be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” We do not think that the above provisions of law have any relevance to the present case. This is not a suit against public officials as individual wrongdoers to recover damages or to enjoin a threatened invasion of plaintiff’s rights. The object of the suit, as Well as the effect of the judgment, is to require affirmative official action putting plaintiff on the payroll as an employee of the insular government and reimbursing plaintiff out of the public treasury for his interim loss of salary. It is in substance a suit against the insular government, a subordinate arm of the Government of the United States which has not consented to such suit. Mine Safety Appliances Co. v. Forrestal, 1945, 326 U.S. 371, 66 S.Ct. 219. It is to be noted that § 8(b) (A) of the Selective Training and Service Act puts in a single category positions “in the employ of the United States Government, its Territories or possessions, or the District of Columbia”, Suppose a veteran should bring suit in a district court against an official of the Government of the United States to obtain reemployment in a federal position under the jurisdiction of such official. Cf. Ballf v. Kranz, 9 Cir., 1936, 82 F.2d 315. Such a suit obviously could not be maintained under the jurisdictional provision of § 24(14) of the Judicial Code, because the respondent official, in denying the application for reemployment, could not be said to be acting “under color of any law * * * of any State.” As judicial enforcement of a veteran’s reemployment rights could not be had in such a case, it certainly cannot be supposed, in the absence of explicit legislative provision, that Congress contemplated judicial enforcement of a veteran’s reemployment rights covered by § 8(b) (A) where the public position happened to be in the employ of a territorial government. Jurisdiction of the court below cannot be rested on paragraph (1) of § 24 of the Judicial Code, 28 U.S.C.A. § 41(1), conferring original jurisdiction upon the district courts in “all suits of a civil nature, at common law or in equity, * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, and (a) arises under the Constitution or laws of the United States * * In the first place, the requisite jurisdictional amount is lacking. In the second place, the judgment now appealed from is in the nature of mandamus; and district courts do not have general original jurisdiction in cases of mandamus, but may issue such writ only in aid of their jurisdiction in cases already pending, under § 262 of the Judicial Code, 28 U.S.C.A. § 377. For a long time, proceedings in mandamus have not been deemed to be “suits of a civil nature, at common law or in equity.” Bath County v. Amy, 1871, 13 Wall. 244, 248, 20 L.Ed. 539; Rosenbaum v. Bauer, 1887, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743, affirming Rosenbaum v. Board of Supervisors, C.C.D.Cal., 1886, 28 F. 223; Knapp v. Lake Shore R. Co., 1905, 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870; Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Barber v. Hetfield, 9 Cir., 1925, 4 F.2d 245; Torre v. Fulton, 1 Cir., 1928, 28 F.2d 1020; Ballf v. Krantz, 9 Cir., 1936, 82 F.2d 315; Youngblood v. United States, 6 Cir., 1944, 141 F.2d 912. Ballf v. Kranz, just cited, is close to the case at bar in the situation presented. The petition filed in a district court alleged that petitioner had been employed as a clerk in the district office of the United States Civil Service Commission at San Francisco, California, of which office respondent was the district manager; that petitioner was ordered to active military duty as an officer of the Reserve Corps, United States Army ; that at the expiration of said period of military service, petitioner requested restoration to his position in said district office, to which he was entitled by virtue of the Act of May 12, 1917, 40 Stat. 72, providing that “members of the Officers’ Reserve Corps who are in the employ of the United States Government or of the District of Columbia and who are ordered to duty by proper authority shall, when relieved from duty, be restored to the positions held by them when ordered to duty”; that notwithstanding this provision of law, respondent had refused to restore petitioner to said position. The prayer of the petition was for a writ of mandamus compelling respondent to restore petitioner to his position in the district office and to pay petitioner the salary of said position from the date on which he had applied for reinstatement. It was held that the district court properly dismissed the petition for lack of jurisdiction. The judgment of the District Court is vacated and the case is remanded to that court with direction to dismiss the petition for lack of jurisdiction. “Sec. 8. (a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3(b) shall be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. * * * “(b) In the case of any such person who, in order, to perform such training and service, has left ox- leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perforxn the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after dischax'ge for a period of not more than one year— “(A) if such position was in the employ of the United States Government, its Territories or possessions, or the District of Columbia, sueh person shah be restored to sueh position or to a position of like senioi'ity, status, and pay; “(B) if such position was in the employ of a private employer, such employer shall restore such person to snch position. or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable tó' do so; * * * “(e) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by tbe employer pursuant to established roles and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not bo discharged from snch position without cause within one year after such restoration. * * * “(e) In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of snch employer’s unlawful action. The court shall order a speedy hearing in any such case and shall advance it on the calendar. Upon application to the United States district attorney or comparable official for tbe district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, such United States district attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits, shall appear and act as attorney for such person in the amicable adjustment of tbe claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof to specifically require such employer to comply with such provisions: Provided, That no fees or court costs shall be taxed against the person so applying for such benefits. * * * ” In addition it could not bo said that the official had deprived the plaintiff of any right secured by the Constitution of the United States “or of any right secured by any law of the United States providing for equal rights of citizens of the United States.”

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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 ex rel. Arthur DOREY, Petitioner-Appellee, v. STATE OF NEW JERSEY and Ann Klein, Commissioner of Institutions and Agencies and Allen Hoffman, Superintendent of the New Jersey State Prison at Trenton, New Jersey, Respondents-Appellants. No. 76-2389. United States Court of Appeals, Third Circuit. Argued June 6, 1977. Decided Aug. 8, 1977. William F. Hyland, Atty. Gen. of N. J., Trenton, N. J., for respondents-appellants; Frederick S. Cohen, Deputy Atty. Gen., Appellate Section, Princeton, N. J., of counsel and on the brief. Michael Critchley, John P. Roche, Newark, N. J., for petitioner-appellee. Before WEIS, Circuit Judge, CLARK, Associate Justice, and GARTH, Circuit Judge. The Honorable Tom C. Clark, Associate Justice, Supreme Court of the United States (Retired), sitting by designation, heard the oral argument and participated in the decision in this case but died before the opinion was written. OPINION OF THE COURT WEIS, Circuit Judge. Defense counsel argued to the jury that petitioner had not participated in a burglary, though conceding that someone had committed the crime. Thereafter, the state trial judge refused to instruct the jury on the elements of breaking and entering and larceny because the facts showing breaking and entering and larceny had been admitted. In the circumstances of this case, we find no reversible constitutional error and vacate the grant of habeas corpus by the United States District Court. Petitioner was convicted by the New Jersey state courts of entry with intent to steal and larceny of a safe. The Superior Court of New Jersey, Appellate Division, affirmed, and the Supreme Court of New Jersey denied certification. Petitioner then sought a writ of habeas corpus which the district court granted, subject to the right of the State to retry him. At the trial in the state court, the prosecution introduced evidence that at about 3:00 A.M. on September 2, 1973, the night watchman for the Bamm Hollow Country Club saw two men tugging at the safe in the club office. He left the clubhouse and described what he had seen to one of the grounds keepers, who went to a nearby house and summoned the police. As the prowl car entered the club parking lot, a black Chrysler, which had gone on to the grass near the clubhouse, went into reverse and began to back into the parking lot. The police stopped the unlighted car and apprehended the petitioner and another occupant. The safe was found outside the clubhouse, leaning against a light pole a short distance from the front steps. The safe had been scraped on one side, and the slate steps of the clubhouse had been damaged as if the safe had slid down them. Paint chips from the safe were found on the steps. The metal holders in a jalousie window in the rear of the building had been bent away and a number of glass slats had been removed, leaving a gap large enough for a man to crawl through. No prying tools were discovered on the scene. In searching the Chrysler, the police found the trunk completely empty, the spare tire and tools removed. However, in the passenger’s compartment, they observed two pairs of gloves and a flashlight. The gloves were wet, and the officers noted a considerable amount of dew on the ground at the time. Laboratory examination of the gloves revealed the presence of chips of paint similar to that on the office safe. During his opening address to the jury, defense counsel argued that no fragments of glass or paint from the safe had been found on the shirt or pants of the defendants, “as you might expect they should, had they actually entered or had they been the ones who did the breaking.” He also emphasized “mere presence of people at the scene of a crime ... is not evidence of participation in that crime. . . .” In his closing remarks, the defense lawyer said that the case for the prosecution was based on possibilities, “but there are certain' things in it from which you can find certainty about which there is no dispute whatsoever. For example, there is no dispute with respect to the time . . . [t]he time you will recall that Mr. Craddock [the night watchman] sees two men pulling the safe is 3:15. The time you will recall when the Officer arrives on the scene is 4:18.” * * * * * * “[I]t’s a substantial period of time in that it approximates one hour and that is certain, that is positive testimony from that Witness Chair which is wholesome, which is reliable and which is trustworthy because it’s confirmed by different people.” * * * * * * “You can conclude, therefore that whoever came there to remove this safe abandoned the notion and left it there because if there are two men in there at 3:15, twenty minutes later at 3:35 they’d be on their way . . . In discussing the difficulties of removing the jalousie slats without a tool, he said: “No, it was as the first Officer testified and put in his report, it was, in fact, a prying instrument . . . something by way of a burglar’s tool forced open those windows and broke that glass . So query: Where is the pry bar? . They don’t have it because the people who went in there at 3:15 and probably left there like about 3:30 and didn’t return, they took that pry bar with them.” * * * * * * “So Mr. Ford [a detective] tried to do away with the necessity of breaking and entering into this building with a prying instrument where in reality, there had to be an instrument . . .” “There was a forced entry of the office door over here done as the Officer said by body . . . The closing argument’s thrust was that the two codefendants had not gone through the window and would not have been physically able to move the safe outside. Early in his charge, the trial judge said: “Now, I think as all Counsel have indicated to you, and it is quite so, the issue in this case does not evolve around whether someone broke and entered into the Club and whether someone stole the safe, because I think it’s quite apparent someone did that. The real issue in the case is whether or not Mr. Dorey and Mr. Fabio were involved in that particular criminal activity or not.” The judge went on to discuss the evidence about the safe: “Now, you infer from that quite reasonably that somebody took the safe and dragged it out of the office and down the front steps . . . . You are entitled to draw inferences such as that.” The judge also commented on the testimony about the jalousie window: “ . . . reasonable inference from that is that somebody got into the Bamm Hollow Country Club in an illegitimate way by climbing through a window. Again, it’s a reasonable inference and you are entitled to draw that kind of reasonable inference from the evidence that’s in the case.” After cautioning the jury several times that the burden of proof was on the state and the defendants did not have to produce any evidence, the judge said: “Now, in this case as we have said from the. beginning the criminal charges involved are charges of breaking and entry with intent to steal and charges of larceny. In this case there is no basis for believing other than that. There was someone who broke and entered the Bamm Hollow Country Club and that someone toted the safe out or dragged it out from the office to where it was found. “So from the proofs before you, it would be I think unreasonable to find other than that, there was, in fact, a breaking and entry and there was, in fact, a larceny.” After the instructions had been completed, defense counsel asked that the jury be charged on the elements of larceny and breaking and entering.. The trial court refused on the ground that those facts were not in dispute. The Appellate Division of the New Jersey Superior Court found that “[i]n the context of the manner in which the case was tried, there was no dispute as to whether an entry with intent to steal had occurred or whether a larceny of the safe and its contents had occurred.” The court concluded there was no error in the charge read as a whole and, moreover, any possible error was harmless. The district court, relying on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and United States v. Manuszak, 234 F.2d 421 (3d Cir. 1956), held the petitioner entitled to the requested instruction, and granted the writ of habeas corpus. The extent of reliance by the district court on United States v. Manuszak, supra, led to error in the disposition of this case. In Manuszak, the defendant was convicted of aiding and abetting a theft. The government produced evidence of the larceny, but the defendant denied all knowledge of the occurrence. In his charge, the district judge assumed the theft’s occurrence and created in the jurors’ minds the impression that their only concern was whether the defendant was implicated. We reversed, holding that all factual elements of the prosecution’s case should have been submitted to the jury. Manuszak is distinguishable because there was no concession, explicit or implied, on the part of the defense. But more importantly, Manuszak came to this court on direct appeal from the district court. It did not purport to pass upon an error of constitutional dimension but only upon a matter of federal criminal procedure. The case sub judice came to the district court on collateral attack from a state conviction. In that circumstance, a different standard of review applies. As the Supreme Court observed in Splawn v. California, 431 U.S. 595, 599 97 S.Ct. 1987, 1990, 52 L.Ed.2d 606 (1977), where the prosecutions occur in federal courts: “[0]ur authority to review jury instructions is a good deal broader than is our power to upset state court convictions by reason of instructions given during the course of a trial. See Cupp v. Naughten, 414 U.S. 141[, 94 S.Ct. 396, 38 L.Ed.2d 368] (1973); Henderson v. Kibbe, 431 U.S. 145 [97 S.Ct. 1730, 52 L.Ed.2d 203] (1977). We can exercise the latter authority only if the instruction renders the subsequent conviction violative of the U. S. Constitution.” In Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), also a habeas corpus case, the Court of Appeals relied on In re Winship, supra, in reversing denial of a writ. The appellate court had concluded that failure of the state trial court to charge on causation in a complex homicide case had resulted in “an impermissible risk that the jury had not made a finding that the Constitution requires.” 431 U.S. at 151, 97 S.Ct. at 1735. In reversing, the Supreme Court stated: “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” 431 U.S. at 154, 97 S.Ct. at 1736. The Court also noted that “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. at 155, 97 S.Ct. at 1737. In Cupp v. Naughten, supra, the Court emphasized that the test in a collateral proceeding is not merely whether the challenged instruction was erroneous but whether it so infected the entire trial that the resulting conviction violated due process. In re Winship, supra, is not determinative because, here, the trial judge did charge the jury that the presumption of innocence was applicable and at no time did he place the burden of proof upon the defendant. Moreover, as the Court observed in Patterson v. New York,-U.S.-,-, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977), a state may regulate the burden of producing evidence and persuasion unless “it offends some principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental.” Under the law of New Jersey, when a matter is undisputed and conceded, even where that fact constitutes an element of the crime charged, it is not error to instruct the jury that the fact has been established and, thus, in a practical sense, limit the jury’s role. State v. Schneiderman, 20 N.J. 422, 120 A.2d 89 (1956); State v. Mack, 131 N.J.Super. 542, 330 A.2d 631 (1974); State v. Slocum, 130 N.J.Super. 358, 327 A.2d 244 (1974); State v. Byra, 128 N.J.L. 429, 26 A.2d 702 (1942), aff'd 129 N.J.L. 384, 30 A.2d 49 (1943), cert. denied, 324 U.S. 884, 65 S.Ct. 1025, 89 L.Ed. 1434 (1944). Applying those precedents to the case at bar results in no unfairness or violation of due process. The defense’s efforts focused completely on denial of participation — not on the occurrence of the crime which was conceded. Indeed, there is no basis in the record to controvert the commission of the larceny. To hold that the conviction here was obtained in a trial which offended a principle of justice so deeply rooted as to be ranked fundamental ignores the reality of the proceeding. The defense’s strategy of admitting the commission of a crime but denying participation is not unusual and, indeed, at times may be the only course available. Although it would have been desirable for the trial judge to have charged as the defendant requested, the failure to do so under the circumstances of this case does not rise to the dimensions of constitutional error. The Supreme Court has been urged to adopt a rule of automatic reversal of criminal convictions obtained in trials infected with constitutional error. The Court, however, has reaffirmed the “harmless error” rule and measured the degree of constitutional infirmity by a standard of “harmless beyond a reasonable doubt.” Cupp v. Naughten, supra (jury instruction); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1972) (Bruton violation); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1971) (confession obtained in absence of counsel); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1968) (admission of confession of codefendant); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966) (comment on accused’s failure to testify); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) (introduction of illegally obtained evidence). Thus, even if we were persuaded that the charge was constitutionally infirm as a matter of Due Process, habeas corpus would be warranted only if the harmless error test was not satisfied. We are convinced that the requested instructions would not have altered the verdict. From the facts presented and the statements of both the court and counsel, the jury clearly understood the charge against defendants. See Henderson v. Kibbe, supra. A specific listing of the elements of the crime would not have cast any different light on the happening nor caused a jury to believe that the crimes had not been committed. The clarity and extent of the evidence in this case would not have been altered by recitation of factors already established. Accordingly, we conclude that, even if the error be classified as constitutional in scope, it was in fact harmless beyond a reasonable doubt. The order of the district court will be vacated.

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

MURPHY, DISTRICT JUDGE, FOURTH JUDICIAL DISTRICT OF NEBRASKA, DOUGLAS COUNTY v. HUNT No. 80-2165. Argued January 18, 1982 Decided March 2, 1982 Terry R. Schaaf, Assistant Attorney General of Nebraska, argued the cause for appellant. With him on the brief was Paul L. Douglas, Attorney General. Bennett G. Homstein argued the cause and filed a brief for appellee. Briefs of amici curiae urging reversal were filed by James P. Manak, G. Joseph Bertain, Jr., Lloyd F. Dunn, George Nicholson, Robert L. Toms, Donald E. Santarelli, Jack Yelverton, George Deukmejian, Attorney General of California, and Richard S. Gebelein, Attorney General of Delaware, for Laws at Work (L. A. W.) et al.; and by Daniel J. Popeo and Paul D. Kamenar for the Washington Legal Foundation. Briefs of amici curiae urging affirmance were filed by Irvin B. Nathan and David P. Towey for the American Civil Liberties Union; by David Crump for the Legal Foundation of America; by Sheldon Portman for the National Legal Aid and Defender Association et al.; and by Quin Denvir and David R. Lipson for the Public Defender of California. Per Curiam. Appellee Hunt was charged with first-degree sexual assault on a child and three counts of first-degree forcible sexual assault. He appeared on these charges in Omaha Municipal Court where his request for bail was denied. On May 23, 1980, a bail review hearing was held in Douglas County District Court. Relying on Art. I, § 9, of the Nebraska Constitution, Judge Murphy, appellant here, denied Hunt’s second application for bail. That section of the Nebraska Constitution provides in relevant part: “All persons shall be bailable . . . except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great.” For purposes of his application for bail, Hunt’s counsel stipulated that, in this case, “the proof [was] evident and the presumption [was] great.” On June 9, 1980, pending trial on the charges against him, Hunt filed a complaint under 42 U. S. C. §1983 (1976 ed., Supp. V) in the United States District Court for the District of Nebraska. He claimed that Art. I, § 9, of the State Constitution, limiting bail in cases of first-degree sexual offenses, violated his federal constitutional rights to be free from excessive bail and cruel and unusual punishment, to due process and equal protection of the laws, and to the effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments. He sought declaratory and injunctive relief only. On October 17, 1980, the District Court dismissed Hunt’s civil rights complaint. Hunt appealed to the Court of Appeals for the Eighth Circuit. Meanwhile, the prosecutions against Hunt had proceeded. On September 10, 1980 — even prior to the District Court decision — and November 5, 1980, he was found guilty of two of the three first-degree forcible sexual assault charges against him. On November 13, 1980, he was sentenced to consecutive terms of 8-15 years in prison for these offenses. On October 8, 1980, again prior to the decision of the District Court, Hunt was convicted of first-degree sexual assault on a child. On December . 11, 1980, he was sentenced to 12-15 years in prison on this charge. Hunt appealed each of these convictions to the Nebraska Supreme Court and each of these appeals remains pending before that court. On May 13, 1981, the Court of Appeals for the Eighth Circuit decided Hunt’s appeal from the dismissal of his § 1983 claim. Hunt v. Roth, 648 F. 2d 1148 (1981). The court reversed the District Court and held that the exclusion of violent sexual offenses from bail before trial violates the Excessive Bail Clause of the Eighth Amendment of the United States Constitution. Because we find that Hunt’s constitutional claim to pretrial bail became moot following his convictions in state court, we now vacate the judgment of the Court of Appeals. In general a case becomes moot “‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” United States Parole Comm’n v. Geraghty, 445 U. S. 388, 396 (1980), quoting Powell v. McCormack, 395 U. S. 486, 496 (1969). It would seem clear that under this general rule Hunt’s claim to pretrial bail was moot once he was convicted. The question was no longer live because even a favorable decision on it would not have entitled Hunt to bail. For the same reason, Hunt no longer had a legally cognizable interest in the result in this case. He had not prayed for damages nor had he sought to represent a class of pretrial detainees. We have recognized an exception to the general rule in cases that are “capable of repetition, yet evading review.” In Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam), we said that “in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” See Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173, 187 (1979); Sosna v. Iowa, 419 U. S. 393 (1975). Because the Nebraska Supreme Court might overturn each of Hunt’s three convictions, and because Hunt might then once again demand bail before trial, the Court of Appeals held that the matter fell within this class of cases “capable of repetition, yet evading review.” We reach a different conclusion. The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the test stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a “reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same complaining party. Weinstein v. Bradford, supra, at 149. We detect no such level of probability in this case. All we know from the record is that Hunt has been convicted on three separate offenses and that his counsel was willing to stipulate that, for the purposes of Hunt’s eligibility for bail, the proof of guilt was evident and the presumption great. Based on these two facts, we cannot say that there exists a “reasonable expectation” or “demonstrated probability” that Hunt will ever again be in this position. There is no reason to expect that all three of Hunt’s convictions will be overturned on appeal. Hunt’s willingness to stipulate that the proof against him was “evident” does not encourage us to believe otherwise. Nor is Nebraska Press Assn. v. Stuart, 427 U. S. 539 (1976), relied upon by the Court of Appeals, to the contrary. In that case we held that the constitutionality of a pretrial restrictive order, entered prior to a criminal trial and that expired once the jury was impaneled, was not moot even though the order had long since expired. The Court found that the controversy between the parties was “capable of repetition” because the defendant’s conviction might be overturned on appeal, requiring a new trial and possibly a new restrictive order, and because the dispute between the Nebraska Press Association and the State of Nebraska as to the use of restrictive orders was likely to recur in future criminal trials. It was the combination of these elements, both of which were capable of repetition, that permitted the Court to conclude that the matter was not moot under the standard stated in Weinstein. There is no comparable set of expectations in this case. We have no reason to believe that Hunt will once again be in a position to demand bail before trial. Accordingly, we find that the case presented is now moot. Indeed, it was moot at the time of the decisions of both the District Court and the Court of Appeals. The judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with instructions that the complaint be dismissed. So ordered. Appellee was also charged with several counts of nonsexual felonies and one count of nonforcible sexual assault. Bail was set as to each of these charges. The court relied as well upon a decision of the Supreme Court of Nebraska holding that Art. I, § 9, of the Nebraska Constitution violates neither the Sixth, Eighth, nor Fourteenth Amendment to the United States Constitution. See Parker v. Roth, 202 Neb. 850, 278 N. W. 2d 106 (1979). The remaining first-degree sexual assault charge against him was dismissed on December 11, 1980. “The constitutional protections involved in the. grant of pretrial release by bail are too fundamental to foreclose by arbitrary state decree. . . . “We hold, therefore, that the portion of Article I, section 9 of the Nebraska Constitution denying bail to persons charged with certain sexual offenses violates the eighth amendment of the United States Constitution, as incorporated in the fourteenth amendment.” 648 F. 2d, at 1164-1165. Hunt made no claim of a constitutional right to bail pending appeal. Indeed, at the time he initiated this action he had not yet been convicted. The decision of the Court of Appeals held the Nebraska constitutional provision unconstitutional only as applied to “persons charged with certain. . . offenses.” See n. 4, supra (emphasis added). Hunt’s arguments before this Court are similarly limited to the constitutional rights of a person accused, but not convicted, of a noncapital offense. The constitutionality of Art. I, § 9, as applied to a person awaiting trial is a question distinct from the constitutionality of that section as applied to a person who has been tried and convicted. The Excessive Bail Clause of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment may well apply differently in the two situations. As the Court has often noted: “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). Therefore, even assuming that Hunt had raised a claim for bail pending appeal, it would be that claim that the Court should decide — not the related but quite distinct claim for bail by a presumptively innocent person awaiting trial. For the same reasons it cannot be said as a matter of federal law that a decision holding that Hunt was unconstitutionally denied bail prior to trial will have any consequences with respect to his right to bail pending appeal and after conviction. In short, the fact that Hunt may have a live claim for bail pending appeal, does not save from dismissal his now moot claim to pretrial bail. Judge Arnold dissented from this conclusion for the same reasons advanced in this opinion. “What the likelihood of such a triple reversal might be, we have no way of knowing, since this record contains no hint of the facts relevant to Hunt’s guilt or innocence. The possibility of three reversals is wholly speculative. They could come about, but one may be pardoned, I hope, for doubting it.” 648 F. 2d, at 1166 (Arnold, J., dissenting). The Court in Nebraska Press Assn, cited our decision in Weinstein for support of its conclusion that the matter was not moot. The Court in no way purported to weaken the standard of a “reasonable expectation” or “demonstrated probability" stated in Weinstein. See also Nebraska Press Assn. v. Stuart, 427 U. S., at 585, n. 13 (Brennan, J., concurring in judgment) ("It is evident that the decision of the Nebraska Supreme Court will subject petitioners to future restrictive orders with respect to pretrial publicity. .

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?

Robert C. MACAULAY, Sr., Plaintiff, Appellant, v. BOSTON TYPOGRAPHICAL UNION NO. 13, et al., Defendants, Appellees. No. 82-1258. United States Court of Appeals, First Circuit. Argued Sept. 15, 1982. Decided Nov. 5, 1982. Robert C. Macaulay, Jr., Boston, Mass., for plaintiff, appellant. Paul F. Kelly, with whom Sharon M. Livesey, and Segal, Roitman & Coleman, Boston, Mass., were on brief, for defendants, appellees. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. Plaintiff appeals from a judgment of the district court holding that the defendants’ reclassification of plaintiff from “at the trade” to “not at the trade” was not “discipline” within the meaning of section 101(a)(5) of the Landrum-Griffin Act, 29 U.S.C. § 411(a)(5). We affirm, 474 F.Supp. 344. Plaintiff Robert C. Macaulay, Sr. entered the printing trade in 1952 and became a member in good standing of the defendant Boston Typographical Union No. 13. Following his loss of a permanent position with the Boston Herald Traveler in 1972, plaintiff deposited his union card at the Boston Globe and was assigned a number on the union’s “priority list.” His position on the priority list was determined by the date he first made himself available for work at the Globe. The priority list has a wide-ranging effect on the employment opportunities available to a printer in plaintiff’s position. First, it determines which members are entitled to a situation (union parlance for a full-time job) when one becomes available, and second, it determines which members will be hired on any given day when substitute printers are needed. Under this system, plaintiff had priority for any employment opportunities over union members who made themselves available for work at the Globe at a later date than did plaintiff. To obtain a place on the priority list, a member must be classified as “at the trade.” The union’s Dues Circular, a document containing Executive Council interpretations of Article IX of the International Typographical Union Constitution, explains that to be classified as “at the trade” a member “must show up for work regularly, accept work when available and make proper effort to secure work.” A union member who is reclassified from “at the trade” to “not at the trade” loses his place on the union priority list. From 1972 until the fall of 1974 plaintiff worked the equivalent of full time as a substitute printer for the Boston Globe. In 1974 the scarcity of work forced him to seek work outside the printing industry. From late 1976 until September 1978 he ceased reporting for work at the Boston Globe entirely. Throughout this time, 1972-1978, plaintiff was classified as “at the trade.” On September 14,1978, the union’s secretary-treasurer, defendant McManus, wrote a letter to plaintiff requesting an explanation for plaintiff’s not having sought work at the Globe for about two years. Following a subsequent telephone conversation with plaintiff, McManus informed him on October 12, 1978, that because he failed to report for work, plaintiff was being reclassified to “not at the trade.” As a result, plaintiff lost his place on the priority list. He retained all his other rights and privileges as a union member. Plaintiff then requested an appeal before the union’s Executive Council, the first step in the union’s internal remedial procedures. A hearing was scheduled but plaintiff failed to appear. Macaulay sued the union in federal district court alleging that he was “disciplined” without proper procedural safeguards in violation of section 101(a)(5) of the Landrum-Griffin Act, 29 U.S.C. § 411(a)(5), which states: (5) Safeguards against improper disciplinary action. — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. The union defense was twofold: that its reclassification was not discipline and that plaintiff was barred from seeking relief because of his failure to exhaust internal union remedies. The district court found that no discipline was involved and did not reach the exhaustion issue. The basic inquiry is what union action constitutes “discipline” under section 101(a)(5). The Landrum-Griffin Act contains no definition of the term, and the legislative history is, for the most part, unenlightening. We turn to the words of the statute. Under the principle of ejusdem generis, the general expression “otherwise disciplined” should be construed by determining what acts are similar to the other specific acts included in the section, i.e., fining, suspending, and expelling. See Miller v. Holden, 535 F.2d 912, 914-15 (5th Cir.1976); Maier v. Patterson, 511 F.Supp. 436, 444 (E.D.Pa.1981). What these terms have in common is that they all “refer[ ] to punishment or adverse consequences that a union, operating through its own tribunal, can impose either by virtue of its own authority over its members or by virtue of its relationship with or influence over the actions of the employer or potential employers of its members.” Phillips v. International Association of Bridge, Structural and Ornamental Iron Workers, Local 118, 556 F.2d 939, 941 (9th Cir.1977) (footnote omitted). The defined acts are disciplinary because the union member is directly penalized or singled out from other comparable members for special treatment. The meaning of the words “otherwise disciplined” also derives from the purpose of the Act. In enacting title I of the Land-rum-Griffin Act, which includes section 101(a)(5), Congress’ “concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers.” Finnegan v. Leu, - U.S. -, -, 102 S.Ct. 1867, 1872, 72 L.Ed.2d 239 (1982) (emphasis added). The even-handed application of a reasonable union rule is not arbitrary action by a union or its officers. It would be arbitrary, however, to use a union rule in bad faith in order to punish a member; this would constitute “discipline” within the meaning of the Act. As the district court pointed out, there was no evidence of such bad faith here. The rule that discipline under the Act must entail singling out a union member (or a group of members) for punishment and its corollary, that the uniform application of a reasonable union regulation is not discipline finds support in most of the circuits that have considered the question. There are two cases directly on point. In Galke v. Duffy, 645 F.2d 118 (2d Cir.1981), the court held that the union’s reclassification pursuant to a union rule of a union member’s seniority status was not discipline. Williams v. International Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), concerned the identical situation as the instant case, the reclassification of a printer from “working at the trade” to “not working at the trade.” In finding that discipline was not involved, the court stated: The classification regulation was fairly applied to plaintiff. No showing is made of any improper motivation, of any discrimination, or of any intent to punish the plaintiff by depriving him of privileges. The Unions simply enforced their rule pertaining to members having full-time employment outside the printing trade. Id. at 1297. The Fifth Circuit has defined discipline as follows: Union action which adversely affects a member is “discipline” only when (1) it is undertaken under color of the union’s right to control the member’s conduct in order to protect the interests of the union or its membership, and (2) it directly penalizes him in a way which separates him from comparable members in good standing. Miller v. Holden, 535 F.2d 912, 915 (5th Cir.1976) (footnote omitted). In a case involving a prospective rule denying a member with excessive absenteeism arbitration rights, the Seventh Circuit found no violation of section 101(a)(5) and noted: “It can hardly be said that ‘discipline’ within the meaning of the statute includes action that may be taken, or rather withheld, by the union as a matter of policy.” Scovile v. Watson, 338 F.2d 678, 680 (7th Cir.1964), cert. denied, 380 U.S. 963, 85 S.Ct. 1107, 14 L.Ed.2d 154 (1965). Appellant’s reliance on Judge Oakes’ dissent in Galke v. Duffy is misplaced. Judge Oakes felt that there were facts showing that the union member had been singled out for special treatment: The determination whether application to an employee of a union regulation — such as the reduction of appellant’s seniority here — constitutes discipline seems to turn on whether the employee has been “singled out” and whether he disputes the facts underlying the application of the regulation to him. Galke v. Duffy, 645 F.2d at 121 (Oakes, J., dissenting). There was no such showing here: In the instant case, plaintiff is adversely affected by the union action, and reclassification was undertaken under color of the union’s authority over him. However, plaintiff has offered no evidence that he has been directly penalized or singled out from other comparable members for special treatment. It appears that the union has fairly applied a reasonable union regulation, controlling the dues and the priority of all members, to the plaintiff. Indeed, several other union members who had not sought work for a prolonged period were reclassified at the same time as plaintiff pursuant to the same union regulation. Macaulay v. Boston Typographical Union No. 13, 474 F.Supp. 344, 346 (D.Mass.1979) (citations omitted). As with the district court, we do not reach the exhaustion issue. We think it appropriate, however, to repeat the words of Mr. Justice Harlan concurring in NLRB v. Marine Workers, 391 U.S. 418, 429, 88 S.Ct. 1717, 1724, 20 L.Ed.2d 706 (1968): Finally, it is appropriate to emphasize that courts and agencies will frustrate an important purpose of the 1959 legislation if they do not, in fact, regularly compel union members “to exhaust reasonable hearing procedures” within the union organization. Responsible union self-government demands, among other prerequisites, a fair opportunity to function, (footnote omitted). Affirmed. . A member’s classification as “at the trade” or “not at the trade” also determines the dues the member pays. If a member is “at the trade,” he pays dues at a rate based on a set percentage of his earnings as a printer; a member who is “not at the trade” pays dues at a flat rate. . In July 1976 plaintiff received a letter from the Employee Relations Manager of the Boston Globe stating that unless plaintiff reported regularly to the Globe for work, he would lose his coverage under the United Newspaper General Benefits and Welfare Fund. When plaintiff informed the union’s Executive Council that he had received this letter, they directed him and all other members who received similar letters not to respond. Plaintiff argues that these events gave him just cause to believe that the union had ceased enforcing its rule requiring “at the trade” members to report for work regularly. . Counsel for the union explained at oral argument that the reclassification was the result of a new agreement reached between the union and the Globe designed to alleviate some of the harsh effects of computerization in the newspaper industry. According to this agreement, the Globe would reduce the number of situation holders to 300. This was to be accomplished by creating early retirement incentives for those printers working full-time. As they retired, substitute printers would replace them at a ratio of three to one; that is, for every three situation holders that retired, one substitute would get a situation. This three to one ratio was to continue until the Globe employed a total of 300 printers at which time the hiring of substitutes for full-time work would occur on a one for one basis. The union and the Globe agreed, however, that no more than eighty substitutes would receive situations pursuant to this agreement and that only substitutes who had priority recorded as of September 11, 1978, would be eligible for situations. The union and the Globe believed that fairness dictated that only those substitutes who had been showing up for work regularly should be included in the list of eighty substitutes eligible for full-time and part-time employment pursuant to the agreement. Thus, the union, pursuant to its rule, began reclassifying members who had not shown up for work regularly to “not at the trade,” thereby removing these members from the priority list. . Two circuit courts have discussed whether discipline was involved in action taken by the international association against a local union. In Local 37 v. Sheet Metal Workers’ Interna tional Association, 655 F.2d 892, 896-98 (8th Cir.1981), the court held that section 101(a)(5) was not implicated when the international ordered Local 37 merged with Local 3 without notice or an opportunity to be heard. The Fourth Circuit, in Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 920-22 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963), held that a charter revocation order by the international against a local union stated a cause of action under section 101(a)(5).

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"?

TI BROADCASTING, INC., Appellant v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Frank Alvin Delle, Jr., and Donald G. Fisher, d/b/a Voice of Middlebury, Intervenor. No. 20339. United States Court of Appeals District of Columbia Circuit. Argued Nov. 15, 1966. Decided Dec. 13, 1966. Mr. Howard Jay Braun, Washington, D. C., with whom Mr. Peter Shuebruk, Washington, D. C., was on the brief, for appellant. Mr. John H. Conlin, Associate Gen. Counsel, F. C. C., with whom Messrs. Henry Geller, Gen.-, Counsel, and Joseph A. Marino, Atty., F. C. C., were on the brief, for appellee. Mrs. Lenore G. Ehrig, Counsel, F. C. C., also entered an appearance for appellee. Mr. Lauren A. Colby, Washington, D. C., for intervenor. Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Tamm, Circuit Judges. PER CURIAM. Appellant, licensee of Radio Station WIPS of Ticonderoga, New York, challenges orders of the Federal Communications Commission granting the application of intervenor Voice of Middlebury, for a first local radio station in Middle-bury, Vermont. The application of intervenor was filed with the Commission on March 2, 1961, appellant’s petition to deny or designate the application for hearing was filed approximately a year later, and the Commission’s appealed-from orders were issued on April 20, 1966 and July 20, 1966. Having initially through its own inadvertences deprived appellant of the opportunity to respond to three amendments filed by Voice, the Commission reviewed appellant’s substantive arguments, set forth in its petition for reconsideration, regarding the materials in the amendments, “in the same manner as if they had been received” before the Commission’s original decision. Following such review the Commission denied the petition for reconsideration. The Commission’s corrective action also adequately disposes of appellant’s attack upon specific procedural rules of the Commission, challenged for the first time on appeal. Upon consideration of all the pleadings and data set forth by appellant on other issues, we agree with the Commission’s reconsidered determination that no evidentiary hearing was required in this 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. 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?

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

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

INDIANAPOLIS GLOVE COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. AMALGAMATED CLOTHING WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 18185, 18328. United States Court of Appeals Sixth Circuit. Sept. 13, 1968. James S. Haramy, Indianapolis, Ind., for petitioner, Indianapolis Glove Co., Inc., William E. Plane, Indianapolis, Ind., on brief, Cadick, Burns, Duck & Neigh-bours, Indianapolis, Ind., of counsel. Jacob Sheinkman, New York City, for petitioner, Amalgamated Clothing Workers of America, AFL-CIO, Robert T. Snyder, New York City, on brief. Nan C. Bases, N. L. R. B., Washington, D. C., for respondent, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lawrence M. Joseph, Atty., N. L. R. B., Washington, D. C., on brief. Before PECK and COMBS, Circuit Judges, and WEINMAN, District Judge. The Honorable Carl A. Weinman, Chief Judge, United States District Court for the Southern District of Ohio, sitting by designation. WEINMAN, District Judge. This is a consolidated case in which the Indianapolis Glove Company, Inc. [hereinafter referred to as the Company] petitions this Court to review and set aside an order of the National Labor Relations Board issued against it on September 20, 1967, and in which the Amalgamated Clothing Workers of America, AFL-CIO [hereinafter referred to as the Union] petitions this Court to review and modify the same order. In its answer to the petitions, the Labor Board requests that both petitions be denied and that its order be enforced in full. On May 31,1966 the Union filed a petition for a representative election with the Board seeking designation as bargaining representative for certain employees at the Company’s Coschocton, Ohio plant. On July 22,1966, the parties entered into a “Stipulation for Certification Upon Consent Election” defining the appropriate unit as: “All production and maintenance employees, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act.” This stipulation was approved by the Regional Director on July 25, 1966. On August 4, 1966 an election was held. Of the 154 ballots cast, 73 were for the Union, 68 were against, one ballot was void and 12 were challenged by the Union. The Union challenged the ballots of Turner and Appis on the ground that they had not worked for the Company for at least five years prior to casting their ballots and were unlikely to resume employment because of their advanced age and poor health. The Union further challenged the ballots of part-time employees Riffil, Worthington, Askrens, Chaney, Miller, Hothem, Berlean, Court-right, and Royers, on the ground that their status as part-time employees who tailored their work schedules to fit the maximum yearly earnings allowed to Social Security recipients deprived them of the requisite community of interest with the rest of the unit employees. Finally, the Union challenged the ballot of employee, Bechtol, on the ground that she was an office clerical employee and therefore excluded from the stipulated unit. The Regional Director investigated the challenges and on September 7, 1966, issued his report. With respect to the challenges to the ballots of Turner and Appis the Regional Director stated: “It is apparent that both of the employees have no reasonable expectancy of returning to work in the near future, nor can they be considered as having any present interest in the terms and conditions of employment at the Employer’s plant. I therefore recommend that the challenges to their ballots be sustained. The Horn & Hardart Company, 147 NLRB 654, 659.” With respect to the challenges to the ballots of Riffil, Worthington, Askrens, Chaney, Miller and Hothem the Regional Director stated: “All six worked as full-time employees in the Sewing Department prior to becoming eligible for Social Security benefits. Once they acquired eligibility for these benefits and decided to receive them, they presented the Employer with a schedule of hours they wished to work in order not to earn in excess of the maximum earnings allowed those who wish to receive full benefits. The schedules were approved by the Employer unless it conflicted with its production schedule. “Beginning with the receipt of Social Security benefits, all of the employees reduced their hours and earnings so they annually receive no more than the maximum earnings allowed Social Security beneficiaries. Other than receiving these benefits and being employed on a part-time basis, their terms and conditions of employment are the same as those of regular employees. They receive vacation and' holiday pay commensurate with their earnings and attendance. Their insurance benefits are the same as other employees in the unit with the exception that at age 65 their medical insurance is transferred to Medicare. “In view of their special employment status as pensioners, I find that these employees do not have a sufficient interest in common with the employees in the production and maintenance unit to warrant their inclusion in the unit. I recommend therefore that the challenges to their ballots be sustained. The Horn & Hardart Company, supra.” Having sustained the Union’s challenges to the two former employees and to six of the nine Social Security recipients, the Regional Director deemed it unnecessary to rule on the challenges to the ballots of the three remaining Social Security recipients, Berlean, Courtright and Royer, whose situation differed in that they had originally reduced their hours because of health considerations, since the ballots of these employees could not alter the outcome of the election. The Regional Director overruled the Union’s challenge to the ballot of Bechtol but since her ballot could not affect the outcome of the election, he did not order that it be opened. On September 16, 1966, the Company filed exceptions to the Regional Director’s dispositions of the ballots of employees Riffil, Worthington, Chaney, Hothem, Askrens, Miller, Berlean, Courtright, Royers and Bechtol. It did not except to the Regional Director’s ruling that former employees Turner and Appis were ineligible. The Board overruled these exceptions on December 19, 1966, and at the same time issued a Decision and Certification of Representation certifying the Amalgamated Clothing Workers Union as the exclusive representative for the purposes of collective bargaining of all employees in the above described unit. The Company’s motion for reconsideration filed January 4, 1967 was denied on January 16, 1967. The Company thereafter refused to bargain with the Union. On December 8, 1966 the Company announced an increase in wages and incentive bonus benefits without notifying or consulting the Union. This increment was implemented on January 3, 1967. The Company thereafter refused to bargain with the Union in order to test the rulings on challenged ballots. On February 10,1967 a complaint was issued alleging that the Company had violated § 8(a) (1) and (5) of the Act by refusing to recognize and/or bargain with the Union upon request and by unilaterally granting a wage increase to employees. In its answer to the complaint the Company denied that it had violated any provisions of the Act, asserting that the certification of the Union was invalid because of the Board’s disposition of challenges to election ballots. The case was heard on April 17, 1967. The parties stipulated the facts concerning the unilateral wage increase. The Company proffered testimony concerning the status of several employees whose ballots had been successfully challenged by the Union. Except for the proffer that employee Miller received gross wages of $1,821.72 from the Company for work performed in 1966, this proffered testimony did not contain newly discovered or previously unavailable evidence. The Trial Examiner considered the proffered testimony immaterial and rejected it and granted General Counsel’s motion for summary judgment. The Board affirmed the Trial Examiner’s decision with the exception that it refused to adopt the Trial Examiner’s remedy which would have required the Company to pay the Union a sum equivalent to the amount of the unilateral increase bestowed on employees from the institution of the increase to the commencement of bargaining. The Board held that the Company committed unfair labor practices in violation of § 8(a) (1) and (5) of the Act by refusing to bargain with the Union which had been certified by the Board as the exclusive bargaining representative of the Company’s employees and by unilaterally granting a wage increase to its employees. The Company admits its refusal to bargain but asserts by way of defense to its actions that the certification of the Union is invalid because of the Board’s disposition of challenges to election ballots. The Board excluded the six regular part-time employees from the bargaining unit, holding that in view of their special employment status as Social Security recipients these six employees did not have sufficient interest in common with the regular employees to warrant their inclusion in the bargaining unit. The Board has wide discretion in determining the limits of an appropriate bargaining unit. When an issue is raised as to the Board’s determination of an appropriate bargaining unit, the standard of review is whether the Board abused its discretion or acted capriciously in fixing such a unit. NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172, 182 (C.A. 6, 1967), cert, denied 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 363 (1967); Cherrin Corporation v. NLRB, 349 F.2d 1001, 1007 (C.A. 6 1965), cert, denied 382 U.S. 981, 86 S.Ct. 557, 15 L.Ed.2d 471 (1966); NLRB v. Royal Oak Tool & Machine Co. et al., 320 F.2d 77, 82 (C.A. 6 1963). The main question presented by this case is whether the Board acted arbitrarily and abused its discretion in sustaining the challenges to the ballots of regular part-time employees, Riffil, Worthington, Askrens, Chaney, Miller and Hothem, for the reason that these employees were Social Security recipients who had reduced their hours and earnings so that they would receive no more than the maximum annual earnings allowed recipients of social security. Eligibility to vote in an election to determine a bargaining representative depends on whether an employee is sufficiently concerned with the terms and conditions of employment in a unit to warrant his participation in the selection of a bargaining representative. Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 944 (C.A. 5 1959). The Board has established a policy of including regular part-time production employees in a bargaining unit with full-time production employees. H. W. Elson Bottling Co., 155 NLRB 714, 724 (1965); C. & H. Foods, Inc., 100 NLRB 1483, 1485 (1952); Dependable Parts, Inc., 112 NLRB 581, 584 (1955); Economy Food Center, Inc.., 142 NLRB 901, 910 (1963), enf’d, NLRB v. Economy Food Center, Inc., 333 F.2d 468, 471 (C.A. 7 1964); Lancaster Welded Products Inc., 130 NLRB 1478, 1479 (1961). The tests used by the Board are whether the part-time employees work at regularly assigned hours a substantial number of hours each week, perform duties similar to those of full-time employees, and share the same supervision, working conditions, wages and fringe benefits. H. W. Elson Bottling Co., supra; C. & H. Foods, Inc., supra; Lancaster Welded Products, Inc., supra. Where these factors exist, the Board has held that part-time employees have a community of interest with the full-time employees and sufficient interest to entitle them to be included in the unit. H. W. Elson. Bottling Co., supra, at 724. It is undisputed that the six employees-, involved are employed on a regularly-scheduled part-time basis and work a. substantial number of hours each week. The six employees are long time employees of the Company whose seniority dates range from 45 years to 13 years.. Other than being employed on a part-time basis, their terms and conditions of' employment are identical to those of the' full-time employees. The six regular part-time employees perform the same work, are under the same supervision, are compensated at the same rate of pay, have the same working conditions, and receive the same benefits as do the full-time employees. The six employees involved in this case meet the traditional tests applied by the Board in determining whether regular part-time employees have a sufficient community of interest with full-time employees to entitle them to be included in the bargaining unit. The sole factors distinguishing these employees from other regular part-time employees whom the Board has traditionally included in a bargaining unit are that the six regular part-time employees involved in this case are over 65 years of age and were motivated to work part-time by a desire not to receive annual earnings exceeding the maximum allowed Social Security recipients. In sustaining the challenges to the ballots of these employees the Board has relied upon new factors, the employees’ age and motive for working part-time. The age and motive of an employee for working part-time is irrelevant to a determination of whether part-time employees share a community of interest with full-time employees. One employee may work part-time because of health reasons, another in order to supplement the family income. Regardless of their motives, regular part-time employees are subject to the same terms and conditions of employment as full-time employees with the exception that they work less hours. Under the Board’s approach, employees between the ages of 65 and 71 who work on a regular part-time basis because of their desire not to receive annual earnings exceeding the maximum allowed recipients of Social Security, would be excluded from the bargaining unit. However, upon reaching age 72, when the maximum earnings limitation is no longer imposed by the Social Security Act, these employees would become eligible for inclusion in the bargaining unit even though they do not change their work schedules upon reaching age 72. The eligibility of an employee would depend on his age at the time the election is held. There is no rational relationship between the employees’ age and motive for working part-time and an employee’s community of interest with other employees. The Court concludes that the Board’s action in excluding the six part-time employees on the basis of their age and motive for working part-time is erroneous as a matter of law. Counsel for the Board contends that the exclusion of these Social Security recipients was reasonable and well within the Board’s discretion in determining the appropriate unit because these employees have different collective bargaining goals than other employees. Specifically, counsel asserts that Social Security beneficiaries will be less interested in obtaining wage increases than regular employees with a growing family to support. Under this reasoning the fact that the disfranchised employees met the objective tests for determining community of interest— similarity of work, wages, fringe benefits, supervision, and whether the employee works substantial hours per week on a regular basis — became irrelevant and the employees’ right to be included in the bargaining unit depends on the Board’s speculation as to the collective bargaining goals of employees. The Board’s action in excluding these employees from the bargaining unit on the sole basis of the Board’s speculation as to their bargaining goals instead of on the basis of objective factors showing a lack of community of interest is totally unreasonable and arbitrary. While the Board has wide discretion in determining the appropriate unit, the exercise of that discretion is limited by the requirement that the Board “ * * * assure to employees the fullest freedom in exercising the rights guaranteed by this sub chapter * * § 159(b) Title 29 U.S.C. In disfranchising these regular part-time employees solely on the basis of their status as recipients of Social Security the Board has violated this statutory directive. The practical effect of the Board’s action in sustaining the challenges to the ballots of these Social Security recipients who work on a regular part-time basis is to deny these employees the rights guaranteed them by the National Labor Relations Act solely because they seek to enjoy the fullest rights granted them by the Social Security Act. While a part-time employee who receives Social Security benefits may not have sufficient interest in common with other employees to justify his inclusion in the bargaining unit because he is employed on an irregular basis or fails to meet other objective standards established by the Board for determining community interest, the Court does not believe that regular part-time employees who work a substantial number of hours per week on a regular weekly schedule and who are subject to the same terms and conditions of employment as full-time employees, can be excluded from the bargaining unit solely on the ground that they seek to enjoy rights conferred upon them by the Social Security Act. There is nothing in the National Labor Relations Act which shows a congressional intent to deny employees their Section 7 rights to select a bargaining representative and participate in collective bargaining with their employer because they elect to receive full Social Security benefits. The Board declined to consider the issues raised by the challenges to the ballots of employees Berlean, Courtright, and Royer because their ballots could not affect the results of the election. The Board erred in sustaining the challenges to the ballots of Riffil, Worth-ington, Askren, Chaney, Miller and Hoth-em. The votes cast by these six employees could affect the results of the election. Accordingly, the three ballots of Berlean, Courtright and Royer could also affect the election results and the .question of their eligibility to vote must be resolved. It is undisputed that the three employees are Social Security recipients who work part-time averaging approximately twenty hours per week. They are distinguishable from the other six Social Security recipients in that they began working part-time for health reasons from ten to fifteen years prior to the time they began receiving Social Security benefits. Once they were eligible for Social Security benefits their work schedules needed little revision because their past earnings closely approximated the maximum earnings allowed under the Social Security Act. These employees met all the traditional tests applied by the Board for determining community of interest. The fact that they now receive Social Security does not justify their exclusion from the bargaining unit. The consideration of the eligibility of these employees to be included in the bargaining unit further demonstrates the arbitrary nature of the Board’s decision to exclude Social Security recipients solely on the basis of their status as pensioners. Under the Board’s approach the three employees will be eligible to be included in a bargaining unit so long as they work part-time for health reasons but upon becoming eligible to receive Social Security they would be disqualified from further participation in the bargaining unit, in spite of the fact that their hours, wages, work schedule and other terms and conditions of employment would not materially change. The Petition to Review and Set Aside the Order of the Board is granted. Since the Court has set aside the order of the Board, the issue raised by the petitioning Union as to the propriety of the remedy adopted by the Board has become moot. The Union’s Petition to Review is hereby dismissed.

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"?

Charles F. KRAUSE, Administrator and Personal Representative of George T. Stubbs, for and on behalf of Janet Lenora Baker Stubbs, and the minors Mary Margaret Stubbs and Laurie Lucille Stubbs, Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant. Dorothy Cobb WADE, as Administratrix and Personal Representative of Luke Hampton Wade, Jr., deceased, and for and on behalf of herself and Linda Anne Wade, David Lawrence Wade and Michael Alan Wade, and Norma Delatte Nicol, as Administratrix and Personal Representative of Harold J. Nicol, deceased, for and on behalf of herself and Barbara Ann Nicol, Rebecca Marie Nicol, Theresa M. Nicol, Joette Y. Nicol, and Harold J. Nicol, Jr., Libelants-Appellees, v. SUD-AVIATION, SOCIETE NATIONALE DE CONSTRUCTIONS AERONAUTIQUES, Respondent-Appellant. Nos. 410, 411, Dockets 32944, 32945. United States Court of Appeals Second Circuit. Argued March 5, 1969. Decided July 2, 1969. Charles F. Krause, New York City (Speiser, Shumate, Geoghan, Krause & Rheingold and Peter J. Magee, New York City, on the brief), for libelants-appellees. William Rand, New York City (Coud-ert Brothers, New York City, on the brief), for respondent-appellant. Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and McLEAN, District Judge. Of the Southern District of New York, sitting by designation. LUMBARD, Chief Judge: These suits in admiralty, based upon the Death on the High Seas Act, 46 U.S.C. § 761 et seq., arose out of the crash of an Alouette II helicopter in the Gulf of Mexico off Leeville, Louisiana on November 30, 1959, killing the pilot and two passengers. , Libelants, in their representative capacities, sought recovery from Sud-Aviation, Societe Nationale De Constructions Aeronautiques (SUD), the manufacturer of the helicopter, claiming that a defect in the construction of the helicopter caused the crash. After a seven-day trial without a jury, on the issue of liability alone, the district court found against SUD, holding that the aircraft had been negligently manufactured and that SUD had breached an implied warranty of fitness. This appeal by SUD questions whether the district court properly allocated the burden of persuasion and whether there was sufficient evidence to support the finding of liability. Since we find no error, we affirm the judgment of the district court. The Alouette II helicopter, U. S. registration #N519, was built by appellant SUD in France and sold to Republic Aviation Corporation in 1957. It was delivered to Republic in France in February 1959 and shipped to the United States in a partially disassembled state by Republic, who reassembled it and used it for approximately 437 flight hours as a demonstration model. On August 1, 1959, Republic leased it to Petroleum Helicopters, Inc. (PHI) for use in its business of supplying air transportation to companies conducting oil exploration in the Gulf of Mexico. The crash occurred on November 30, 1959, while PHI pilot George Stubbs was ferrying Luke H. Wade, Jr. and Harold J. Nicol, employees of the Gulf Oil Corp., to an off-shore rig in the Gulf of Mexico. All three were killed when the helicopter fell into the water while Stubbs was attempting to return the disabled craft to land. It is agreed that the crash resulted from a break or “failure" in the structural steel of the helicopter’s tail, on the upper right longeron (one of the three steel tubes making up the tail boom) at a point where the horizontal stabilizer bracket was welded to the longeron. At issue is whether the break was caused by a defective weld at the point of failure, or by some other cause for which the manufacturer would not be responsible. At the trial libelants attempted to prove that the longeron broke because of “incomplete root penetration” in the weld, which caused unusual stress on the longeron and led to the failure. Appellant, on the other hand, maintained that the weld was not defective and that some unusual shock or strain, resulting from mishandling by PHI, caused a crack in the longeron, near the weld, which progressed over a period of time to a complete fracture. Evidence to support the theory that a defective weld caused the accident came largely from libelants’ expert witnesses, William L. Holshouser, whose deposition was read into the record at length, and Isaac Stewart, who testified in person. Holshouser, a Bureau of Standards metallurgist, deposed that his .examination of the broken pieces revealed insufficient root penetration in the weld around which the break occurred. The root of a weld is the point at which the surfaces of the two pieces of metal being welded come together, at right angles in the present case. Incomplete root penetration occurs when the weld metal does not sufficiently penetrate this area where the surfaces of the metals are in contact. Holshouser testified that incomplete root penetration would result in increased stress concentration at the point where the weld metal is joined to the tubing, near the root of the weld, and would reduce the load which could be transmitted between the horizontal stabilizer bracket and the longeron. Expert Stewart testified, largely from close-up photographs of the broken pieces, that there was definitely lack of root penetration. He testified in detail to the effect that incomplete root penetration in the weld would cause normal stresses originating in the horizontal stabilizer to be sidetracked through the weld metal to a necessarily weaker and more brittle part of the weld area rather than being passed directly through the root of the weld. SUD’s case consisted mainly of testimony from three experts in support of its theory that it was not a defect in the manufacturing which caused the accident. Two of these experts, Everett Chapman and William Cobey, testified that their examinations of the broken pieces revealed nothing unusual about the weld and that it appeared to be a good weld. They also testified that the break which led to the crash could have been initiated by an incident which occurred about three months before the crash, when the tail rotor blades of the helicopter were accidentally dipped into the water during flight. Although there was testimony from libelants’ witnesses that this tail-dipping was not severe, and that the damage caused thereby was minor, there was evidence that extensive repairs were made after the incident. SUD also brought out that the helicopter operating company, PHI, had not conducted a 600 hour inspection, which would have included an examination of the welding to check for cracks, at the time of the crash, which occurred at 622 hours. SUD also introduced testimony concerning the high quality of the welding techniques used in its manufacturing of Alouette helicopters. Judge Croake, in a detailed opinion, found that libelants “displaced stress” theory presented the most probable explanation of how the break in the lon-geron occurred. In addition to crediting Mr. Stewart’s testimony on this matter, the court stated: “The fact that one breakline ran along the edge of the bracket lends support to the theory that a bending stress was applied that the longeron was unable to withstand. It appears that the bracket may have acted as a fulcrum around which the longeron was bent when the displaced stress was applied at a point on the longeron some distance away from the root of the weld.” * * * * * * “The fact that the second breakline runs along the edge of the weld fillet also supports the theory that some of the stress was displaced through the weld metal to the weaker, heat-affected zone.” The court expressly rejected SUD’s theory that “rough handling” by PHI caused the accident, finding that this explanation had many weaknesses and was not persuasive. On the basis of these findings, the court concluded that SUD was liable in both negligence and implied warranty. On appeal SUD contends that libel-ants did not establish by a preponderance of the evidence that the weld was defective and that the defect in the weld caused the crash, the two elements admittedly essential for a finding of liability based upon negligence or breach of warranty. In support of this position, SUD argues that the district court, rather than basing its finding of liability upon findings that the weld was defective and that this caused the crash, based it upon SUD’s inability to prove that the weld was not defective or that something other than a defective weld caused the accident. In other words, SUD claims that the court erroneously placed the ultimate .burden of persuasion upon it rather than upon libelants. While we agree with the appellant that the ultimate burden of proof remains on the libelants throughout a case such as this, Swain v. Boeing Airplane Co., 337 F.2d 940 (2 Cir. 1964), we do not agree that the trial court erroneously placed this burden on SUD. It is true that the court’s discussion of the burden of proof is ambiguous, especially where it speaks of appellant’s “burden of establishing as a cause of the accident some factor unrelated to a defective part.” We think, however, that the opinion read as a whole makes it sufficiently clear that the court accepted libelants’ insufficient root penetration explanation, together with the fact that the failure occurred during normal operating conditions, as establishing that the weld was defective and that this probably caused the crash. This placed upon SUD a burden of going forward with evidence of another possible cause; the rejection of SUD’s evidence left the failure of the defective part as the cause. In short, we think the court left the ultimate burden of persuasion on the libelants, holding that their proof and the inferences drawn from it (together with the absence of any other plausible explanation) established that it was more likely than not that faulty manufacturing caused the accident. Cf. Swain v. Boeing Airplane Co., 337 F.2d 940 (2 Cir. 1964); Prosser, Torts, at 215-216 (3 ed. 1964) The evidence adequately supports the court’s findings. There was testimony, which the court credited, that there was a defective weld and that this defect would have caused abnormal stress in the area of the break. This evidence, together with the inferences which the district court drew from it and from the other evidence in the case, provides ample support for holding the manufacturer liable. Cf. United States v. Springfield, 276 F.2d 798 (5 Cir. 1960). We also find that there was evidence to support the district court’s rejection of SUD’s claim that the accident was caused by rough handling rather than by faulty manufacturing. One of the reasons for rejecting this claim, which we find persuasive, is that the fracture apparently was not a “fatigue” fracture but was a sudden or “brittle” fracture. For rough handling to have caused the crash, a crack would probably have resulted from the tail-dipping incident, three months before the crash, and progressed by fatigue until the final failure. In addition, it is apparent from the opinion below that the court credited testimony that the tail-dipping incident was not severe and that the repairs made thereafter were largely precautionary in nature. We cannot overturn the district court’s factual determinations, which were made after a full trial and which obviously involved the credibility of the witnesses who testified, unless on all the evidence we are left with a definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Montgomery v. Goodyear Aircraft Corp., 392 F.2d 777 (2 Cir. 1968); Fed.R.Civ. P. 52(a). After reviewing the entire record on appeal, we cannot say that Judge Croake’s findings are clearly erroneous. Judgment affirmed. . Libelants also sought recovery in this suit from Republic for negligence and breach of warranty in failing to properly inspect the aircraft. The district court held in favor of Republic on this matter and dismissed the claims against it. No appeal is taken from the part of the judgment involving Republic. In 1960, libelants Wade and Nicol brought actions, separate from the present ones, in the Eastern District of Louisiana, against SUD, Republic and PHI. The actions against PHI were settled and apparently releases were executed. The actions against SUD were dismissed for lack of jurisdiction. . Other periodic inspections had been made, however, and there was testimony that the 600 hour inspection was not yet overdue, under the appropriate regulations, at the time of the crash. Because of its findings discussed below, the trial court did not determine whether PHI had wrongfully failed to conduct the 600 hour inspection. See note 3, infra. . The court also rejected SUD’s claim that the pilot, George Stuhbs, was contribu-torily negligent because he attempted to return to the base after the first sign that something was amiss, rather than immediately setting the helicopter down on the water. We agree that under the circumstances, Stubbs was not negligent. Judge Croake also held that, since he had rejected the theory of a fatigue crack initiated at the tail-dipping, the failure to make the 600 hour inspection, even if negligent, could not have proximately caused the crash. . Had libelants established only that defective manufacturing was one of two or more equally possible causes, it would not, of course, have satisfied its burden of proof. Prosser, supra, at 215-216; cf. Smith v. General Motors Corp., 227 F. 2d 210, 213 (5 Cir. 1955); Alexander v. Inland Steel Co., 263 F.2d 314 (8 Cir. 1958). . Although there was some evidence that this might have been a fatigue break, there was considerable testimony from the experts that the characteristic fatigue markings were not present and that it probably was not a fatigue fracture. Appellant’s own witness, Chapman, first stated that “it was not a fatigue crack,” although he later revised this opinion. . In this respect, the district court indicated that SUD’s expert Chapman was inconsistent and that Cobey was evasive. The appearance and demeanor of the other witnesses undoubtedly also played a part in the court’s evaluation of their testimony.

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

CHISHOLM et al. v. HOUSE et al. No. 3996. United States Court of Appeals Tenth Circuit. July 26, 1950. Creekmore Wallace, Oklahoma City, Old., and H. B. Parris, Eufaula, Okl. (Roy White, Eufaula, Okl., was with them on the brief) for appellants. Thomas M. Finney, Tulsa, Old., (Villard Martin, Garrett Logan, Robert J. Stanton and Donald P. Moyers, all of Tulsa, Okl. were with him on the brief) for appellees. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. MURRAH, Circuit Judge. This appeal is a sequel to Chisholm v. House, 10 Cir., 160 F.2d 632, and is related to Bradburn v. McIntosh, 10 Cir., 159 F.2d 925. It involves the correctness of the trial court’s judgment in the proceedings in pursuance of our mandate in the Chisholm appeal. The factual background and much of the pertinent facts are to be found in the former appeals. In resume, however, the suit was commenced in Í940, in the District Court of Muskogee County, Oklahoma, by the heirs at law of Cussehta Yarhola, a full-blood Creek Indian, alleging a conspiracy on the part of the named defendants to cheat and defraud Cussehta of his legal share of the proceeds of the productive allotments of his deceased wife, Linda, and deceased daughter, Maley Fiers. The purpose of the suit was to void a certain trust instrument executed in 1924 by Cussehta, on the grounds of incompetency; cancel releases and acquittals of the trustees; establish liability for maladministration, and secure an accounting for funds, securities and profits held by them during the administration of the estate under the purported trust agreement. The United States intervened on behalf of the Indian heirs in support of their allegations, and removed the case to the Federal Court under Section 3 of the Act of April 12, 1926, 44 Stat. 239, 240. After removal, all of the plaintiffs adopted the Government’s complaint in intervention, and the issues were joined thereon. At the conclusion of the evidence for plaintiffs, the trial court dismissed the action and entered judgment for the defendants. We reversed holding the evidence sufficient to establish that defendants “House, Hill Moore and Grayson entered into a scheme to obtain control and management of Cussehta’s estate, with the design and purpose of deriving improper personal advantage and gain therefrom;” that they and persons acting in their behalf, induced Cussehta to execute the original trust agreement and the instruments supplemental thereto, and place such estate under the control and management of Hill Moore, Grayson and House; that later, D. W. Johnston entered into such scheme; that House, Hill Moore, Grayson and D. W. Johnston fraudulently induced Cussehta to agree to pay, and did pay, unconscionable and exorbitant fees to the trustees, and fraudulently induced Cussehta to execute acceptances of reports by the trustees which purported to discharge them and their sureties on their bonds from liabilities for the acts of the trustees; that the trustees made loans to Lake Moore, father of Hill Moore, which were not repaid, and failed to collect loans made by the trustees to D. W, Johnston; that the trustees made reports to •Cussehta which were false and incomplete; that D. W. Johnston and Grayson made a report to Nancy and Lessey which was false and incomplete, and in so doing, the trustees violated their fiduciary obligations to Cus■sehta, Nancy and Lessey. We accordingly concluded that the Unit•ed States was entitled to an accounting from the trustees with respect to the interest in the allotments of Maley and Linda, which passed to Cussehta and later to Nancy and Lessey; that the other plaintiffs were entitled to an accounting with respect to the trust estate, and on an accounting, the court should scrutinize the administration of the trust estate by the trustees, should require the repayment by the trustees of the exorbitant and unconscionable fees charged by them, and determine their liabilities for the breaches of their duties and the maladministration of the trust estate. We further held the defendant Johnston liable to the plaintiffs, other than the United States, upon the loans made to him by the trustees which he failed to collect after he became trustee, and which he ■omitted from his final report to Nancy and Lessey. We voided House’s contract with Cussehta for ten per cent of the value of his estate in the sum of $30,600.00 to have him restored to competency; held such fee •exorbitant, unconscionable, and fraudulently obtained, and that the plaintiffs were •entitled to recover the amount paid. We •sustained the trial court’s dismissal as to defendants McKinney, Randles, Chowning and the Okemah National Bank, holding the evidence insufficient to show that they had knowledge of the conspiracy or participated therein. We also sustained the trial court’s dismissal as to the Shell Petroleum Company, the purchaser of the oil runs, on the grounds that the judgment of the County Court of Okfuskee 'County restoring Cussehta to competency not being void, the payment for the oil runs to the trustees under the trust agreement constituted a valid discharge of its liability. We were unable to determine whether, from the evidence adduced, defendants Martin, Lake Moore and McKinney were liable on the bound of trustees Hill Moore and Grayson. We accordingly vacated the judgment of dismissal as to them. We reversed as to the other defendants, and remanded the case with directions to proceed in conformity with our opinion. In its order on the mandate, the trial court ordered the defendants Johnston and Grayson to file their accounts as trustees within sixty days, and that the defendant Martin, within the same time, cause to be filed for Hill Moore, deceased, and Gray-son, or in his own behalf for them, an accounting for the period during which he was surety on their bond. The accounting was ordered without prejudice of the right of the defendants or any of them to raise appropriate defenses not inconsistent with the opinion and mandate of this court. Before the case was tried, the defendant Johnston paid plaintiffs the sum of $15,-000.00 in settlement of all claims against him, and the case was dismissed as to him, without prejudice however to the plaintiff's right of action against the remaining defendants. Grayson is an old insolvent Indian. He made only nominal defense in the former trial and did not personally respond or appear in these proceedings. Hill Moore died before this suit was commenced, and his. estate was never made a party. His father, Lake Moore, died after the commencement of this suit, and it was never revived against his representatives. McKinney is judgment proof and unconcerned. The Government did not participate further after remand, and is no longer actively interested. We exonerated Martin of any participation in the fraudulent scheme in the former appeal. The trial court has again found him innocent of any active participation or guilty knowledge of any fraudulent scheme, and we agree. The primary issue on this appeal is Martin’s liability as a .surety for Hill Moore and Washington Grayson from April 15, 1925 until December 19, 1929, when Hill Moore resigned and D. W. Johnston succeeded him as co-trustee. By the terms of the surety bond, Martin and the other sureties guaranteed the faithful performance of the trust, and by separate writing, Martin assumed joint control of the estate, with power to disapprove any transaction of the trustees. The basis of Martin’s liability then is as surety for the trustees with power of joint control. The assets of the trust estate in the custody of trustees Moore and Grayson, when Martin became surety with joint control on April 15, 1925, consisted of $2,899.63 cash, Cussehta’s interest in the allotments of his wife Linda, and his daughter Maley, and eighty-three notes and mortgages, bearing eight per cent interest, with a face value of $281,500.00 The notes and mortgages represented loans on real estate in the Town of Okemah and the County of Okfuskee, Oklahoma, made by Cussehta’s guardian before the creation of the trust estate in 1924, and by his trustees before Martin became surety. During the period of Martin’s suretyship, the trustees continued to collect the interest on the outstanding loans and reinvest the trust funds in real estate mortgages in Okemah and Okfuskee County. In pursuance of the order of the court, Martin filed an accounting for the period of his suretyship. Exceptions were taken, an amendment was filed, and after further exceptions, another amendment was filed. Thereafter, upon a hearing on the plaintiff’s exceptions, Martin testified from memory and records available to him concerning each and every transaction of the trustees while he was surety on their bond, and exercising joint control. From this evidence, the trial court scrutinized the nature and circumstances of each and every challenged transaction; if a loan, the value of the security at the time it was made and all other circumstances bearing upon the prudent and faithful administration of the trust estate. The court found no fraud or conspiracy on the part of the trustees Hill Moore or Grayson, or any of the defendants, in the administration of the estate during Martin’s suretyship. That is to say, that during this time, the trustees accounted for all of the assets coming into their hands or acquired by them, and delivered the same to their successor trustees; and that there was no evidence of misappropriations, “secret commissions” or “kickbacks.” Appellants invoke our general finding of a fraudulent scheme or conspiracy in the former appeal, and assert that no countervaling evidence was introduced in the subsequent hearings. They contend, therefore, that the defendants House, Moore, Grayson and Johnston stand guilty of a scheme to cheat and defraud Cussehta, and that it remains only for the court to enter judgment on the mandate against the trustees and their surety for the amount of the trustee and attorney fees paid during the trusteeship, as well as the exorbitant fees paid to House prior thereto. We haven’t any doubt that a scheme to cheat and defraud the Yarhola family was devised by House and his associates before the creation of the trust estate, and that it continued in one form or another throughout the existence of the trust, and even after its dissolution. But the existence of the fraudulent scheme does not necessarily mean that every act or transaction of any of the defendants was in furtherance of that plan or scheme, or was within itself actionably fraudulent. Fraud in the air, so to speak, is not actionable. It is the operative effect of the fraud that gives rise to the cause of action and conditions the extent of recovery. Under the mandate of the court, the duty rested upon the trustees to account, and the burden was upon them or their sureties to establish the correctness thereof ; to disclose fully and fairly the nature of each and every challenged transaction, and to satisfy the court that the administration of the trust was in accordance with the provisions of the trust instrument and the honor and integrity of a fiduciary. Neel v. Barnard, Cal.App., 143 P.2d 513; Neel v. Barnard, 24 Cal.2d 406, 150 P.2d 177; Davidson v. Young, 290 Mich. 266, 287 N.W. 459; Purdy v. Johnson, 174 Cal. 521, 163 P. 893; Garrett v. First Nat’l Bank & Trust Co., 5 Cir., 153 F.2d 289. In judging the conduct of the trustees, we must keep in mind that Cussehta could neither read nor speak the English language, and that he imposed trust and confidence in the trustees and those who influenced him to execute the trust, and designate Hill Moore and Grayson as trustees to administer his estate for him. We must also not forget that in the administration of the estate, and a rendition of their accounts, the trustees owed this old simple minded unsuspecting Indian a standard of conduct "stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive * * *” was the standard for their behavior. Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546, 62 A.L.R. 1; see also Wootten v. Wootten, 10 Cir., 151 F.2d 147; Id., 10 Cir., 159 F.2d 567. The trustees made loans to Lake Moore, father of Hill Moore and co-surety, and to their attorneys and other parties prominently identified with Cussehta’s affairs, all with Martin’s approval. After carefully scrutinizing these particular loans, the court held that they were neither fraudulently nor imprudently made. Two loans to Lake Moore were paid in full from the proceeds of the so-called Owens note and mortgage, which the trustees bought from him, and which the trial court found from the evidence was well secured and delivered to the successor trustees, who arbitrarily compromised it at a loss to the estate. In that connection, the court specifically found that O. 0. Owens, the endorser of his brother’s note, was at all times financially able to pay the note when due. The court further found that the other loans to Lake Moore, or to the attorneys for the trustees, were prudently made; that either the mortgages or deeds to the mortgaged properties were delivered to the successor trustees, and by them delivered to the heirs of Cussehta upon the termination of the trust. With commendable care, the trial court took up and separately considered each loan to determine whether or not it was prudently made, and if not, whether the estate had suffered a loss as a result of such imprudency. It found and concluded that most of the challenged loans on the real estate were prudently made, and absolved the trustees and surety from liability thereon. Its analysis and conclusions on these transactions are not clearly erroneous, and they must stand. The court found that the fees paid to the trustees Moore and Grayson during Martin’s suretyship, although in accordance with the express provisions of the trust, were unreasonable and disproportionate. Since trustee Grayson offered no evidence of the value of his services, he was surcharged for the full amount received under the trust instrument during the period in question and while he acted as co-trustee with D. W. Johnston. But since the fees were paid in accordance with the express provisions of the trust, Martin was rightly held not liable as surety for the performance of its provisions. One of the challenged items, shown on the semiannual reports of the trustees, was a special allowance to Cussehta in-the sum of $5,000.00. On the accounting, Martin’s itemized statement and explanation showed that $3,000.00 of this sum was paid to Sid White, attorney for the trustee, for services rendered in resisting a proceedings in the County Court of Okfuskee County to have Cussehta adjudged incompetent. The other $2,000.00 represented expenses incident to the litigation. The court correctly reasoned that since these funds were expended at Cussehta’s request, and were expressly authorized and ratified by him, they were not improper, and neither the trustees nor their surety should be surcharged therefor. Some of the loans were found to have been imprudently made. One of them, in the sum of $15,000.00, was made to D. W. Johnston (later trustee). Martin explained that Johnston was a banker at Weleetka who had borrowed money from his bank in Okemah on his open note, and that this particular loan was secured by bank stock having a reasonable value of $7,500.00, and stock in a lumber company, the value of which Martin was unable to testify. Johnston paid the interest on the note during Martin’s liability, and Moore and Grayson delivered the note and stock to their successor Johnston and Grayson in December of 1929. Cussehta agreed with Johnston to cancel the note as a condition to Johnston’s becoming Moore’s successor trustee, and the loan was thus cancelled without any attempt being made on the part of the successor trustees to realize on the note and mortgage. The court concluded that the loan to Johnston was imprudent because not adequately secured, but that the proximate cause of the loss was the failure of the successor trustees, Johnston and Grayson, to collect the note from Johnston, instead of cancelling it. The court surcharged Grayson for the amount- of the note with interest at 8 per cent, ‘but exonerated Martin on the grounds that the initial imprudence was not the proximate cause of the loss to the estate. ' As to other loans found to have been imprudently made, the court was of the opinion that the loss to the estate, if any, was either not the proximate result of the imprudence, or it was unable to determine whether any loss had been eventually sustained after tracing the notes and mortgages, or the deeds to the mortgaged properties, to the successor trustees, and ultimately to Cussehta’s heirs upon termination of the trust. We think we must accept the court’s conclusions with respect to these items as not clearly erroneous. The court found that the Pemberton loan was imprudently made, resulting m an eventual loss to the estate in the amount of $2,476.92. It also found that the so-called Lud King loan was an imprudent transaction, resulting in a loss to the estate in the sum of $476.00. During the period of Martin’s suretyship, the trust instrument provided for the payment of reasonable attorney fees for the trustees, not to exceed $3,000.00 per year. The attorneys were, however, paid the full $3,000.00 per year for all this period. The trial court found that any fees paid to the attorneys in excess of $100.00 per month were unreasonably excessive. The court surcharged the trustee Gray-son with the amount of the losses in the Pemberton and King loans and for the excessive attorney fees, but it held the claim against the surety for these items barred by limitations and laches. We accept the trial court’s analysis and conclusions on the accounting; that is, whether in each case the transaction was fraudulent, prudent or imprudent, and if imprudent, the consequent loss to the estate. Although the court did not specifically hold limitations or laches inapplicable to bar the claim against Grayson, a holding to that effect is, we think, implicit in its judgment of liability. But in any event, we do not think limitations or laches admissible to bar plaintiffs’ claim against the trustees. “The beneficiary cannot hold the trustee liable for a breach of trust if he fails to sue the trustee for the breach of trust for so long a time and under such circumstances that it would be inequitable to permit him to hold the trustee liable.” Restatement Trusts, Sec. 219. And where, as here, the action is commenced after the lapse of the applicable statute of limitations, the burden is upon the plaintiffs to allege and prove that the fraud was not discovered until within the statutory period before the commencement of the action. Pepper v. Truitt, 10 Cir., 158 F.2d 246; Gulf Coast Western Oil Co. v. Trapp, 10 Cir., 174 F.2d 339. Concealed fraud was the gravamen of the plaintiffs’ suit. It was in issue, tried and decided in the case. “The question of whether a claim is barred by laches must be determined by the facts and circumstances in each case, and according to right and justice. Laches in legal significance is not merely delay, but delay that works a disadvantage to another.” Stallings v. White, 194 Okl. 649, 153 P.2d 813, 817. And, “Laches will not be imputed to one who has been justifiably ignorant of the facts -creating his right or cause of action, and who, therefore, has failed to assert it.” Alexander v. Phillips Petr. Co., 10 Cir., 130 F.2d 593, 606. See also Phelan v. Roberts, 182 Okl. 202, 77 P.2d 9; Lawson v. Haynes, 10 Cir., 170 F.2d 741. “One cannot acquiesce in the performance of an act of which he is ignorant.” Pomeroy’s Equity Juris., 4th Ed., Vol. 4, Sec. 1447. Equity does not bar a claim of this kind unless it is inequitable not to do so. Oldland v. Gray, 10 Cir., 179 F.2d 408. Thus, “The beneficiary will not ordinarily be barred by laches from holding the trustee liable for a breach of trust of which the beneficiary did not know, and had no reason to know.” Restatement Trusts, Sec. 219, Comment c. Appellees insist that the action is governed by the Oklahoma two or five year statutes of limitation as one arising out of a surety contract, citing Foster v. Walker, Okl., 217 P.2d 533, to the effect that statutes of limitation apply equally to actions at law and suits in equity. We do not understand that by this pronouncement the Oklahoma court intended to repudiate the rule so well rooted in its jurisprudence to the effect that actions cognizable in equity are governed by equitable considerations. Wilhelm v. Pfinning, 191 Okl. 321, 129 P.2d 580; Harrison v. Eaves, 191 Okl. 453, 130 P.2d 841; Dunavant v. Evans, 191 Okl. 208, 127 P.2d 190; Hester v. Watts, Okl., 218 P.2d 641. But even so, neither the statute of limitations nor laches operate to bar a claim based upon undiscovered fraud or fraud of which the plaintiff was justifiably ignorant. Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L.Ed. 636; McMullen v. Wilfield Building and Loan Ass’n, 64 Kan. 298, 67 P. 892. In determining whether Cussehta or his heirs were justifiably ignorant of the default of the trustees, it is relevant to consider his powers of understanding and comprehension in respect to the administration of the trust affairs, as well as the degree of trust and confidence imposed in the trustees and those who influenced their administration'of the trust. True, as the trial court observed, Cussehta was. legally competent, and for that matter, competent in fact, when he executed the trust agreement and approved the semiannual accounts of the trustees and executed releases and acquittals on which the parties rely. But, it is also true, as we observed in the former appeal, that “a competent person may be defrauded.” A release or contract is not effective to discharge the trustee’s liability ■for a breach of trust if inter alia “the beneficiary did not know of his rights and of the material facts which the trustee knew or should have known and which the trustee did not reasonably believe that the beneficiary knew.” Restatement Trusts, Sec. 217. In 1917, when Cussehta was fifty-five years of age, he was declared incompetent as an illiterate Indian who did not realize the value of his estate, and as a person who was easily overreached by those whom he trusted. In 1923, he paid $10,000 to avoid being declared competent. In 1924, he paid $30,000.00 to be adjudged competent Some of the same persons who testified to his incompetency in 1917, testified that he was competent in 1924. As an Indian who could neither read nor speak the English lan-. guage, he knew and understood only what was explained to him through an interpreter, and even then it is manifest on this, record that he had little or no knowledge or understanding of his affairs, or the manner in which they were being administered. We have held the acts and contracts of Indians of weak understanding void where facts justify the conclusion that the party has not exercised deliberate judgment, but has 'been imposed upon or unduly influenced, although the Indian may have been legally and factually competent. Whitchurch v. Crawford, 10 Cir., 92 F.2d 249; Lawson v. Haynes, 10 Cir., 170 F.2d 741. We have said that although this trust agreement was not void as against innocent third parties, it was fraudulently induced and voidable as to those parties who had knowledge of or participated in the fraud, including the trustees Hill Moore and Washington Grayson. It is clear beyond dispute that Cussehta had implicit confidence in his trustees, and believed without question every representation made to him. He continued under their influence and domination until his death in 1936. Hill Moore resigned in 1929, and Martin was discharged on the bond, but successor trustees continued to control and manage the property under the trust agreement until after Cussehta’s death in 1936. In 1937, the parties sought to terminate the trust and exonerate themselves by judicial decree of the District Court of Okfuskee County, but we held this judgment void and ineffectual for extrinsic fraud. Chisholm v. House, supra, 160 F.2d at page 643. Before the trust was terminated in 1937, the estate was restored to the control of House as attorney-in-fact for plaintiffs Lessey and Nancy as the heirs at law of Cussehta. Thus, the trust was conceived, born, lived and died in fraud. From the whole record, we are convinced that Cussehta never understood the nature of his acts or contracts or their legal import. He was justifiably ignorant of the default of the trustees, and limitations or laches did not therefore run against him during his lifetime. It is not clear when House relinquished management and control of the estate and the affairs of Lessey and Nancy, but it was after 1937, and this suit was commenced in 1940. The record also shows conclusively that Lessey and Nancy were illiterate and incapable of understanding the nature and consequences of their acts. They had been alternately declared incompetent and competent, as suited the purposes of those who were managing their affairs, for their selfish benefit. They were always under the domination of the same parties who administered Cussehta’s trust and affairs, and the administration of their estates followed the same pattern. We are certain that they were also justifiably ignorant of the default of Cussehta’s trustees, and that their claims as his heirs are not barred by limitations or laches. The question remains whether Martin as surety for the defaulting trustees can invoke limitations or laches when they are unavailable to his principal. The liability of the trustees arises out of the trust agreement, and is based upon the faithful performance of the trust. The liability of Martin as surety arises by contract, and is governed by its terms and conditions. Its terms are to be interpreted by the same rules observed in other contracts. Title 15 O.S.A. 374. Dolese Bros. Co. v. Chaney & Rickard, 44 Okl. 745, 145 P. 1119. But, having guaranteed the faithful performance of the trust, Martin’s liability as surety is measured precisely by the liability of the trustee— whatever discharges the trustee discharges Martin. Anderson v. Shaffer, 98 Cal.App. 457, 277 P. 185; Eising v. Andrews, 66 Conn. 58, 33 A. 585, 50 Am.St.Rep. 75. And, conversely, whatever binds the trustees binds Martin, for as surety he can make no defense which the trustees waived, or by their conduct precluded themselves from making. Commercial Casualty Ins. Co. v. Breckenridge, 128 Okl. 215, 262 P. 208; M. S. Cohn Gravel Co. v. Southern Surety Co., 129 Okl. 171, 264 P. 206; 50 Amer.Juris. Suretyship, Sec. 30, p. 921. Any act of the principal which estops him from setting up a defense personal to himself, operates equally against his surety. Boone County v. Jones, 54 Iowa 699, 2 N.W. 987, 995, 37 Am.Rep. 229 ; 50 Amer.Juris.Suretyship, Sec. 140. Thus, where the trustees’ concealment of their default, or the justifiable ignorance of Cussehta and his heirs, prevents the running of the statute of limitations or laches as against them, they do not run against Martin as surety, even though he was innocent of any fraud or concealment. The rationale is that “so long as the original duty of the principal continues, the liability of the surety persists,” especially where, as here, the “relations of the principal and surety are such that the surety is in a better position than the creditor to know the facts regarding the principal’s performance of his duty.” Restatement Security, Sec. 121, Comment a; see also 50 Amer. Juris.Suretyship, Sec. 184, p. 1023. We conclude that limitations or laches not being available to the trustees, they are not available to Martin. But Martin took a separate and independent release from Cussehta on December 23, 1929, four days after Hill Moore resigned as trustee and Martin was discharged as a surety on the bond. The release was prepared by an attorney wholly unconnected with the administration of the trust. It recited the execution of the original and supplemental trust instruments, and the surety bond for its faithful performance; the rendition of a complete written inventory and accounting disclosing the condition of the estate, and the manner of its administration. It also significantly recited examination and verification by Cussehta. The instrument, by its terms, fully, finally and completely discharged and acquitted the trustees and their sureties from “any and all responsibility or liability of any kind whatever because of the administration of the trust estate” to that date by reason of the execution of the bond, or of the delivery of the assets under the agreement. The report and inventory were attached. Cussehta signed by his thumb print before witnesses who swore that they had translated and interpreted the release to Cussehta in the Creek language, and that he fully understood the same and the effect thereof. The trial court observed, and it was conceded at the trial, that the release was without consideration. And see 50 Amer.Juris.Suretyship, Sec. 101. Since, however, the trial court disposed of the case on laches, it had no occasion to consider Martin’s equitable plea of estoppel. Martin contends that since the execution of that release, he has relied upon it and has changed his position to his detriment. He points out that since its execution, one of the trustees has died, and the other has become insolvent after having received large sums of money as trustee of the estate after Martin’s discharge'on the bond; that the records have been lost, his memory dimmed with age, and that Cussehta or his heirs were therefore estopped from denying the validity of the release. Although concededly Martin did ■ not fraudulently induce Cussehta to execute the release, it is clear that he was as ignorant of its nature and legal consequences as any other instrument he executed while under the influence of his defrauders. As a banker having joint control of the estate, Martin had superior knowledge of the nature of the transactions held to be action-ably imprudent, and for which he as surety would have been liable, in the absence of the release. Estoppel, like laches, has its roots in equity, and is governed by equitable considerations. Dunavant v. Evans, 191 Okl. 208, 127 P.2d 190. One of the essential elements of estoppel is that the facts relied upon as a basis for estoppel must be known to the party estopped, or knowledge of them must necessarily be imputed to him. Another essential element is that the truth of these facts must be unknown to the one claiming the benefit of the estoppel. See Pomeroy’s Equity Juris., Vol. 2, Sec. 805; 19 Amer.Juris.Estoppel, Sec. 34. It seems fair to say on this record that neither Cussehta nor his heirs had any knowledge of the basic facts, and that Martin did. We conclude that the basic elements of estoppel are lacking, and that Martin is therefore liable along with his trustees for the excessive attorney fees, and the loss sustained on the Pemberton and King loans, all as heretofore determined by the trial court. In the former appeal, we held the $30,-600.00 fees paid to House in 1924 for securing Cussehta’s restoration to competency exorbitant, unconscionable and fraudulently obtained, in violation of the confidence imposed in him by Cussehta, and that 'Cussehta was entitled to recover the same. On remand, the trial court construed our mandate on the opinion as leaving a discretion in the trial court to award House reasonable compensation on quantum meruit. It accordingly fixed a reasonable fee of $2,600.00, and entered judgment against House for the sum of $28,000.00, with interest from the date of the judgment. It is plain from the record, we think, that the servicés rendered by House, and for which compensation was paid, were in furtherance of his scheme to cheat and defraud Cussehta, and were therefore in furtherance of his. own self interest. We can find no legal or equitable justification for compensating him for such services. In its judgment against House and the trustees for their default, the court allowed interest at the rate of six per cent per annum from the date of the judgment. Appellants complain of the failure of the court to allow interest from the date of the default. We have recently said, following Oklahoma law, that as a general rule, interest on an unliquidated amount or claim is not recoverable until the amount due is fixed by judgment. Robberson Steel Co. v. Harrell, 10 Cir., 177 F.2d 12, 17. But this rule has application to actions in law. “Where a trustee commits a 'breach of trust and becomes liable for a sum of money, he is ordinarily liable for interest thereon.” Scott on Trusts, Vol. 2, Sec. 207; see also Amer.Juris Interest, Sec. 27, p. 21. But, in the last analysis, whether interest will be allowed and the rate thereof, is “wholly in the discretion of the court.” 4 Bogert on Trusts and Trustees (Part 1), p. 418; see also Greenberg v. Paramount Pictures, 2 Cir., 85 F.2d 42, 106 A.L.R. 1116; 47 C.J.S.Interest, § 3, p. 13. In view of the lapse of time from the default until the assertion of the remedy, we think the allowance of the legal rate of interest from the date of the court’s judgment was equitable and just. The cause is reversed and remanded with directions to enter judgment in favor of the plaintiffs, and against Martin for the excessive attorney fees, and the loss shown to have been sustained on the Pemberton and King loans, with interest at the rate of six per cent from the date of the judgment against the trustees; and against House in the sum of $30,600.00, with interest at the rate of six per cent from the date of the judgment against him. In all other respects, the judgment is affirmed. The costs herein shall be assessed equally between the parties.

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?

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

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 45. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 45? Answer with a number.

UNITED STATES of America, Plaintiff-Appellant, v. Oranna Bumgarner FELTER, Defendant-Appellee. No. 82-1745. United States Court of Appeals, Tenth Circuit. Jan. 17, 1985. Martin Green, U.S. Dept, of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Raymond N. Zagone and Robert L. Klarquist, U.S. Dept, of Justice, Washington, D.C., Brent D. Ward, U.S. Atty., Bruce Lubeck, Asst. U.S. Atty., Salt Lake City, Utah, were also on the briefs), for plaintiff-appellant. Kathryn Collard of Collard, Pixton, Iwasaki & Downes, Salt Lake City, Utah, for defendant-appellee. Martin E. Seneca, Jr., Washington, D.C., argued and submitted briefs for amicus curiae, the Ute Indian Tribe. Mary Ellen Sloan, Salt Lake City, Utah, submitted a brief for amicus curiae, the Paiute Indian Tribe. Before HOLLOWAY, Chief Judge, McWILLIAMS, Circuit Judge, and KERR, District Judge . The Honorable Ewing T. Kerr, United States District Judge for the District of Wyoming, sitting by designation. HOLLOWAY, Chief Judge. The Government appeals the district court’s ruling that defendant, a mixed-blood Ute Indian, did not unlawfully fish within the Uintah and Ouray Indian Reservation in violation of 18 U.S.C. § 1165. The Act of August 27, 1954, ch. 1009, 68 Stat. 868, codified at 25 U.S.C. §§ 677-677aa (“1954 Act”), divided the Ute Tribe into two groups: mixed-blood members and full-blood members. The district court held that persons identified as mixed-blood members under the 1954 Act for purposes of distributing tribal assets, and for purposes of terminating federal supervision over the property of mixed-blood members, retained the right to fish and hunt within the reservation. We are persuaded by the reasoning of the district court’s scholarly opinion, 546 F.Supp. 1002, and we affirm. I A. The 1954 Act During the 1950s, Congress developed a new approach in federal Indian policy. Congress passed legislation to end the special relationship between certain Indian tribes and the federal government. This legislation terminated federal supervision and services in relation to these tribes. See generally F. Cohen, Handbook of Federal Indian Law 152-80 (1982). The 1954 Act terminated the federal mixed-blood Ute Indians of the Uintah and Ouray Reservation in Utah. See Ute Indian Tribe of the Uintah and Ouray Reservation v. Probst, 428 F.2d 491, 495-96 (10th Cir.) (“The [1954] Act was intended to distribute tribal property and terminate federal supervision over the mixed-bloods.”), cert. denied, 400 U.S. 926, 927, 91 S.Ct. 189, 27 L.Ed.2d 186 (1970). Under this Act, Congress divided the Ute Tribe into two groups: full-blood members (those with one-half degree of Ute Indian blood and a total Indian blood in excess of one-half) and mixed-blood members (those with insufficient Indian or Ute blood to qualify as full-blood Utes, or those full-blood Utes who elect to be treated as mixed-blood members). 25 U.S.C. § 677a(b), (c). The Act required the preparation and publication of rolls listing the full-blood and mixed-blood members of the Tribe. Id. § 677g. These rolls were published in the Federal Register on April 5, 1956. 21 Fed.Reg. 2208-12. Defendant was listed on the roll of mixed-bloods. Id. 22 — . The Act provided that upon publication of the rolls, “the tribe shall thereafter consist exclusively of full-blood members. Mixed-blood members shall have no interest therein except as otherwise provided in this subchapter.” 25 U.S.C. § 677d. The Act required the division between the full-blood and the mixed-blood Utes of tribal assets “susceptible to equitable and practical distribution.” Id. § 677i. Mixed-blood members received “unrestricted control” of their proportionate share of the divided property. Federal supervision of mixed-blood members and their property was terminated, “except as to [their] remaining interest in ... tribal assets not susceptible to equitable and practicable distribution.” Id. § 677o(a). The Act extinguished the Federal trust relationship with mixed-blood members; these members were no longer “entitled to any of the services performed for Indians because of his status as an Indian.” Id. § 677v. B. The Facts The material facts of the case are reported in the district court’s opinion, United States v. Fetter, 546 F.Supp. 1002, 1003-04 (D.Utah 1982), and are not in dispute. On June 6, 1980, defendant was issued a Federal misdemeanor citation for violation of 18 U.S.C. § 1165, by fishing without a tribal permit at the Bottle Hollow Reservoir within Indian Country and upon lands in the Uintah and Ouray Indian Reservation held in trust by the United States for the Ute Indian Tribe. I R. 1. At trial before a magistrate, defendant did not deny fishing at that time and place. Instead, she contended that she had a legal right to fish on the reservation which would negate any liability under § 1165. Defendant maintained that as a mixed-blood Ute Indian, her right to fish the waters located on the reservation was not abrogated by the 1954 Act. The magistrate held that the 1954 Act terminated the right of the mixed-blood Utes to hunt and fish on the reservation. The magistrate relied primarily on Menom inee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). I R. 219-22. The Supreme Court there held that the Menominee Indian Termination Act of 1954 (“Menominee Termination Act”), ch. 303, 68 Stat. 250, did not abrogate the hunting and fishing rights of the Menominee Indians in Wisconsin. Although the Menominee Termination Act did not mention hunting and fishing rights, the Court held that the Act had to be read in ;pari materia with Public Law 280, Act of August 15, 1953, ch. 505, 67 Stat. 588, which stated that “[njothing in this section ... shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.” Id. The Court concluded that because Wisconsin was one of the states to which Public Law 280 ceded jurisdiction over offenses committed by Indians within the state, Public Law 280 and the Menominee Termination Act, read together, compelled the finding that Menominee Indians retained the right to fish and hunt. The Court held that this conclusion was consistent with § 10 of the Menominee Termination Act, which stated that “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe”; the Court emphasized that the Menominee tribe’s hunting and fishing rights were a creature of an 1854 treaty. The magistrate held that the Court’s decision in Menominee Tribe required the conclusion that the 1954 Act abrogated the right of mixed-blood Utes to fish and hunt for two reasons. First, Public Law 280 did not apply to the State of Utah. Second, the Utes’ right to hunt and fish was based on an 1864 Act of Congress, not on a treaty. Act of May 5,1864, Ch. 77,13 Stat. 63. See 546 F.Supp. at 1010 & n. 22; I R. 7-9. The district court reversed. The court agreed that Menominee Tribe was relevant, but disagreed with the two reasons cited by the magistrate to distinguish that case. First, the district court stated that Utah’s decision not to voluntarily assume jurisdiction over its Indians under Public Law 280 should not affect the analysis in Menominee Tribe on reading Public Law 280 in pari materia with contemporaneous Indian termination acts like the 1954 Act. 546 F.Supp. at 1016-18. Second, the district court noted that the statutory basis of the hunting and fishing rights did not distinguish the case from Menominee Tribe where these rights were based on a treaty. Id. at 1011-14. The district court then stated that, “[ljike the Supreme Court in Menominee [Tribe ], this Court will readily ‘decline to construe the [1954] Act as a backhanded way of abrogating the hunting and fishing rights of these Indians.’ ” Id. at 1014 (quoting Menominee Tribe, 391 U.S. at 412, 88 S.Ct. at 1711). The district court “refuse[d] to find a complete abrogation of the mixed-blood Utes’ hunting and fishing rights for the simple reason that Congress did not provide for one.” 546 F.Supp. at 1018. The district court held that the provision in § 677d that “[m]ixed-blood members shall have no interest therein except as otherwise provided in this subchapter” did not abrogate the hunting and fishing rights because these rights constituted “assets not susceptible to equitable and practicable distribution” under § 677i in which the mixed-blood Utes retained an interest in common with the tribal membership. 546 F.Supp. at 1023. The Government appeals. II The narrow question involved in this appeal is whether defendant can be held criminally liable under § 1165 for unlawfully hunting and fishing on the reservation. The Government argues that defendant is subject to liability under § 1165 because the 1954 Act abrogated the right of mixed-blood Ute Indians to hunt and fish on the reservation. The Government contends that § 677d “is the nub around which this case pivots.” Reply Brief for the United States 1. According to the Government, by providing that the Tribe shall “consist exclusively of full-blood members” and that “[m]ixed blood members shall have no interest therein except as otherwise provided in this Act,” § 677d “unambiguously” states that mixed-blood Ute Indians no longer possess the right to hunt and fish on the reservation. Brief for the Appellant 6. Defendant responds that the mixed-blood members retained the right to- hunt and fish because the 1954 Act “otherwise provided” in § 677i that mixed-blood members retained interest in “tribal assets not susceptible to equitable and practicable distribution.” Brief of the Appellee 3-6. At the outset, we note that the 1954 Act does not contain provisions specifically treating the right to hunt and fish. We believe that proper construction of the 1954 Act compels the conclusion that the mixed-blood Ute Indians retained the right to hunt and fish on reservation land. The Court’s reasoning in Menominee Tribe is instructive. The Court there held that the Menominee Termination Act did not abrogate the rights of the Menominee Indians to hunt and fish on the reservation free from state regulation. The Court emphasized that because the Termination Act contained no “explicit statement” abrogating the hunting and fishing rights, the Court “decline[d] to construe the Termination Act as a backhanded way of abrogating the hunting and fishing rights of these Indians.” 391 U.S. at 412-13, 88 S.Ct. at 1710-11. The Government attempts to distinguish Menominee Tribe by noting that the Court protected the Tribe’s hunting and fishing rights, while this case involves the rights of mixed-blood Ute Indians who, by virtue of § 677d, are no longer tribal members. Brief for the Appellant 20-21. The flaw in the Government’s position, however, is revealed by its attempt to treat mixed-blood Ute Indians as “ordinary American citizens [who] do not possess the right to hunt and fish upon lands included in Indian reservations.” Id. at 21. The right to hunt and fish on reservation land is a long-established tribal right. See generally F. Cohen, Handbook of Federal Indian Law 441-456, 464-70 (1982 ed.); Reynolds, Indian Hunting and Fishing Rights: The Role of Tribal Sovereignty and Preemption, 62 N.C.L.Rev. 743 (1984). Individual Indians, however, enjoy a right of user in the tribe’s hunting and fishing rights. See Kimball v. Callahan, 590 F.2d 768, 773 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979) (“Kimball 77”); Whitefoot v. United States, 293 F.2d 658, 663 (Ct.C1.1961), cert. denied, 369 U.S. 818, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962); Felter, 546 F.Supp. at 1021-23; Attorney General v. Hermes, 127 Mich.App. 777, 339 N.W.2d 545, 549 (1983); F. Cohen, supra, at 605-09. The parties do not dispute that defendant, as a member of the Ute Indian Tribe, possessed the right to hunt and fish on the reservation before passage of the 1954 Act. E.g., I R. 218-19. The Government’s attempt to treat mixed-blood Ute Indians as “ordinary American citizens” therefore fails because, at least before 1954, these mixed-blood Ute Indians enjoyed the right to hunt and fish on the reservation, unlike “ordinary American citizens.” Other cases support our conclusion that Menominee Tribe directs us to not read the 1954 Act as a “backhanded way of abrogating the hunting and fishing rights” of mixed-blood Ute Indians in the absence of any “explicit statement” abrogating those rights. For example, the Ninth Circuit in Kimball v. Callahan, 493 F.2d 564 (9th Cir.), cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974) (“Kimball /”), relied on Menominee Tribe in concluding that members of the Klamath Indian Tribe who withdrew from tribal membership pursuant to the Klamath Termination Act retained the right to hunt, fish and trap on former reservation land free from state fish and game regulations. The Ninth Circuit also has held that Klamath Indian Tribal members retained hunting, fishing and trapping rights free from state regulation on lands ceded to the United States in 1901 and ratified by Congress in 1906. Klamath Indian Tribe v. Oregon Department of Fish and Wildlife, 729 F.2d 609 (9th Cir.), cert. granted, — U.S. —, 105 S.Ct. 242, 83 L.Ed.2d 180 (1984). The Ninth Circuit there “[e]mphasize[d] that nowhere in the 1906 act are hunting, fishing and trapping rights mentioned,” and concluded that “the state has not shown the clear congressional intent required” to abrogate the Tribe’s rights to hunt, fish, and trap. Id. at 613. We have recognized that “the Supreme Court has been solicitous in its protection of the hunting and fishing rights of Indians.” Cheyenne-Arapaho Tribes of Oklahoma v. Oklahoma, 618 F.2d 665, 669 (10th Cir.1980). We held there that the hunting and fishing rights of Indians on allotments and on tribal trust lands survive disestablishment of an Indian reservation, and, because the land remains in Indian Country status, they are not subject to state regulation. Menominee Tribe and its progeny reflect the courts’ reluctance to impute congressional intent to abrogate Indian rights to hunt and fish, absent explicit language to that effect. See also Cohen, supra, at 468-70. The Government contends that § 677d unambiguously abrogates the right of mixed-blood Ute Indians to hunt and fish on reservation land. Yet § 677d does not mention hunting and fishing rights; the section instead provides that the Tribe shall “consist exclusively of full-blood members. Mixed-blood members shall have no interest therein except as otherwise provided in this [Act].” The parties differ over whether § 677i “otherwise provide[s]” that mixed-blood members retain the right to hunt and fish on reservation land. Section 677i, in pertinent part, provides that: All unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets not susceptible to equitable and practicable distribution shall be managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group, subject to such supervision by the Secretary as is otherwise required by law, and the net proceeds therefrom after deducting the costs chargeable to such management shall first be divided between the full-blood and mixed-blood groups in direct proportion to the number of persons comprising the final membership roll of each group and without regard to the number of persons comprising each group at the time of the division of such proceeds. 25 U.S.C. § 677i. The Government contends that “neither the Magistrate nor the district court focused upon [§ 677d], and the consequences with respect to hunting and fishing rights it clearly has.” Brief for the Appellant 11. The district court, however, quoted both § 677d and § 677i when it stated: Are hunting and fishing rights susceptible to “equitable and practicable distribution” between the mixed blood and the tribe? ____ Aside from the right to hunt or fish on tribal lands to the exclusion of others, the tribe possesses the discretion inherent in the police power to regulate and allocate the fish and game resources as it sees fit, within the constraints imposed by law. Is that authority readily susceptible to “equitable and practicable distribution,” i.e., to wholesale delegation? Probably not. Nothing in the Act, or in the organizational documents of the mixed-blood corporations reflects any such intent. 546 F.Supp. at 1023 (citations omitted). The Government urges on appeal that the district court’s interpretation of the phrase “all other assets not susceptible to equitable and practicable distribution” in § 677i should not insulate defendant from liability under § 1165 for hunting and fishing on the reservation for two reasons. First, the Government argues that the district court decided only that the tribe’s authority to regulate and allocate fish and game on reservation land is “probably not” susceptible to “equitable and practicable distribution”; the Government contends that the district court did not determine whether the tribal right to hunt and fish on the reservation is a tribal asset susceptible to equitable and practicable distribution. The Government asserts that since the statute is silent on this question, the only result which the court could have reached is that the tribe is not divested of any portion of the tribal hunting or fishing right: the well settled rule, in the construction of statutes relating to Indian Tribes, being that a legislative extinguishment of tribal rights is not to be lightly implied. Reply Brief for the United States 4. We believe the canon of statutory construction cited by the Government requires us to conclude that, because the 1954 Act is silent on the issue of whether the mixed-blood Ute Indians retained the right to hunt and fish on the reservation, we should not impute an intent on the part of Congress to abrogate this right of the mixed-blood Ute Indians. This “eminently sound and vital canon” of construction, Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n. 7, 96 S.Ct. 1793, 1797 n. 7, 48 L.Ed.2d 274 (1976), provides that “statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 42, 63 L.Ed. 138 (1918); see also Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976); Antoine v. Washington, 420 U.S. 194, 199-200, 95 S.Ct. 944, 948, 43 L.Ed.2d 129 (1975); see generally F. Cohen, supra, at 221-25. The Government’s crabbed reading of this canon of construction to exclude mixed-blood Ute Indians from its protections is not supported in the case law or by the purposes of the canon. The leading treatise in this area explains that: The rules for construing federal statutes in Indian affairs have a pervasive influence in Indian law. The canons are variously phrased in different contexts, but generally they provide for a broad construction when the issue is whether Indian rights are reserved or established, and for a narrow construction when Indian rights are to be abrogated or limited. These canons play an essential role in implementing the trust relationship between the United States and Indian tribes and are involved in most of the subject matter of Indian law. F. Cohen, supra, at 224-25. We reject the Government's position that this canon is inapplicable to mixed-blood Ute Indians because they are like “ordinary American citizens.” Unlike the “ordinary American citizen,” these mixed-blood Ute Indians enjoyed the right to hunt and fish on the reservation before passage of the 1954 Act. Following the teaching of the Supreme Court in Menominee Tribe, we decline to construe the 1954 Act “as a backhanded way of abrogating the hunting and fishing rights of these Indians” in the absence of an “explicit statement” in the 1954 Act abrogating these rights. Menominee Tribe, 391 U.S. at 412-13, 88 S.Ct. at 1710-11. We believe the preferable course is to refuse to impute to Congress an intent to abrogate the right of the mixed-blood Ute Indians to hunt and fish on reservation land and instead hold that the right to hunt and fish on the reservation is an “asset[] not susceptible to equitable and practicable distribution” under § 677i. Second, the Government argues that “even if we were to assume that hunting and fishing rights are tribal assets not susceptible to equitable and practicable distribution ... [defendant] still would not have the right to hunt or fish without authorization from the Tribe.” Reply Brief of the United States 4. The Government reasons that “assets not susceptible to equitable and practicable distribution” are not subject to appropriation at the whim of individual full-blood or mixed-blood Utes, but are “managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group” ____ [Defendant therefore does] not have the right herself to go on the land, whither she will, to hunt and fish. Id. at 5-6. We agree with the district court, which held that defendant’s conviction could not stand under § 1165 because the Government failed to prove that defendant “was not in fact exercising the rights retained by her as explained in this opinion.” 546 F.Supp. at 1027. We agree that: To convict a mixed-blood Ute enrolled upon the final mixed-blood roll of hunting or fishing in violation of 18 U.S.C. § 1165, the Government must establish that the defendant was acting in violation of an applicable tribal regulation as to the time, method and manner of fishing or hunting by tribal members. Upon review of the record in this case, this court must find that as a matter of law the conviction cannot be sustained due to the failure of the Government to overcome the defendant’s claim of right. Id. Ill For the foregoing reasons, the judgment of the district court is AFFIRMED. . Section 677 states that [t]he purpose of this [Act] is to provide for the partition and distribution of the assets of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah between the mixed-blood and full-blood members thereof; for the termination of Federal supervision of the trust, and restricted property, of the mixed-blood members of said tribe; and for a development program for the full-blood members thereof, to assist them in preparing for termination of Federal supervision over their property. 25 U.S.C. § 677. . The House report accompanying the Act indicated that "[a]ccording to testimony from members of the Ute Tribe, the majority of the mixed-blood group feel that they are ready for a termination of Federal supervision over their property and fullblood Indians believe that they are not ready for such action." H.R.Rep. No. 2493, 83rd cong., 2d Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 3355, 3356. . The Act provided that the Federal trust relationship with mixed-blood members would be extinguished upon publication of a proclamation in the Federal Register. This proclamation was published in the Federal Register on August 24, 1961. 26 Fed.Reg. 8042. . This section also provided that: All statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to such member over which supervision has been terminated, and the laws of the several States shall apply to such member in the same manner as they apply to other citizens within that jurisdiction. 25 U.S.C. § 677v. . Section 1165 provides that: Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more that [sic] $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited. 18 U.S.C. § 1165. . Public Law 280, as subsequently amended, is codified at 18 U.S.C. § 1162, 28 U.S.C. § 1360, and 25 U.S.C. §§ 1321-1326. . Under current law, Indian tribes must consent to any state assumption of jurisdiction over "Indian country.” See 25 U.S.C. §§ 1321(a), 1322(a). Although Utah since has indicated its willingness to assume this jurisdiction, no Indian tribe has accepted its offer. See Utah Code Ann §§ 63-36-9 to 63-36-21; see also 546 F.Supp. at 1016 n. 32. . The Government attempts to distinguish Kim-ball I from the present case on the ground that the plaintiffs in Kimball I "were not seeking to hunt or fish on lands which remained in tribal ownership," but were seeking to hunt and fish “ 'on the former Indian land that was sold to pay them for their shares in tribal property.’” Brief for the Appellant 16 (quoting 493 F.2d at 567). In addition, two other features of Kimball I are different from the instant case. First, the Klamath Termination Act provided that "[n]othing in this subchapter shall abrogate any fishing rights or privileges of the tribe or members thereof enjoyed under Federal treaty." 25 U.S.C. § 564m(b). The 1954 Act does not contain a similar provision. Second, Public Law 280 gave Oregon jurisdiction over offenses committed by Indians on Indian country within Oregon (except the Warm Springs Reservation). 18 U.S.C. § 1162(a). Public Law 280 did not similarly cede jurisdiction to Utah. These distinctions do not detract from the Kimball I court's reliance on Menominee Tribe as pronouncing the "requirement that Congress clearly indicate when it intends to abrogate treaty rights.” 493 F.2d at 569. This requirement is equally applicable to abrogation of Indian rights based in federal statutes. See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.F.d.2d 710 (1976); see generally F. Cohen, supra, at 223-25. . Defendant argues in her supplemental memorandum dated April 9, 1984 that this case supports her position that the 1954 Act did not extinguish the right of the mixed-blood Ute Indians to hunt and fish on the reservation. . In its Brief as amicus curiae, the Ute Indian Tribe of the Uintah and Ouray Reservation of Utah similarly argues, without any case support, that the canon of construction favorable to Indians applies only to the full-blood Ute Indians and not to the mixed-blood members. Brief of the Ute Indian Tribe of the Uintah and Ouray Reservation, Utah as Amicus Curiae 14. In its Brief as amicus curiae, the Paiute Indian Tribe of Utah contends that this canon of construction applies to mixed-blood members as well. Brief of the Paiute Indian Tribe of Utah as Amicus Curiae 3-4. . The district court also explained that: Though entitled to the fishing rights of a member of the tribe, Oranna B. Felter is no longer so enrolled, nor is she federally recognized as “Indian.” Her situation is, therefore, distinguishable from that of the defendant in United States v. Jackson, 600 F.2d 1283 (9th Cir.1979), in which the United States Court of Appeals for the Ninth Circuit held that 18 U.S.C. § 1165 was not applicable to tribal members who hunted in violation of tribal regulations. Tribal jurisdiction over such minor offenses remains exclusive. Id., at 1286-1288; United States v. Wheeler, 435 U.S. 313, 323-326 & nn. 20-23, 98 S.Ct. 1079, 1086-1087 & nn. 20-23, 55 L.Ed.2d 303 (1978). Indian tribes lack jurisdiction to try and punish non-Indians for criminal offenses, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209, 98 S.Ct. 1011, 1021, 55 L.Ed.2d 209 (1978) and 18 U.S.C. § 1165 was designed to fill that gap in enforcement powers as to non-Indians hunting or fishing on tribal or other Indian lands without tribal permission. Id., 435 U.S. at 206, 98 S.Ct. at 1019; United States v. Jackson, supra, at 1286-1287. Because of the [1954] Act, Oranna B. Felter would fall into the "non-Indian” category. 546 F.Supp. at 1026. . Defendant’s Brief requests that we award her attorneys’ fees incurred in this appeal. Brief of the Appellee 8-9. Defendant does not direct us to any authority which would permit us to award attorneys’ fees against the Government on appeal in a criminal case apart from the provisions of the Criminal Justice Act. 18 U.S.C. § 3006A. In these circumstances, we must decline the request for attorneys’ fees.

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

COLLINS v. FEDERAL LAND BANK OF ST. PAUL. No. 11898. Circuit Court of Appeals, Eighth Circuit. April 18, 1941. Charles G. Bangert, of Enderlin, N. D., for appellant. John F. Lord, of St. Paul, Minn. (John Thorpe, Michael A. Schmitt, and Robert J. Barry, all of St. Paul, Minn., on the brief), for appellee. Before WOODROUGH, JOHNSEN, and VAN VALKENBURGH, Circuit Judges. JOHNSEN, Circuit Judge. The question presented is whether, in proceedings for an agricultural composition under section 75 of the Bankruptcy Act, as amended, 11 U.S.C.A. § 203, a foreclosure suit on' real estate, to which the debtor holds title by unrecorded deed only, is within the operation of the automatic stay provision in subsection n. The trial court appears to have taken the view that a foreclosure proceeding is not automatically stayed under subsection n, unless the debtor has record title to the property. The case is here on an appeal by the debtor. The real estate involved consists of a half section, located in Richland County, North Dakota. It had been owned by appellant’s father, who had executed a mortgage on it to appellee. In 19,33, the father conveyed the land to appellant’s brother, who in turn deeded it to appellant in 1937. The validity of these instruments is not questioned. Under the statutes of North Dakota, however, a deed to real estate cannot be recorded until all the taxes on the property have been paid. N.D.Comp.Laws 1913, Supp.1925, § 2212. Appellant claims that he was never able to pay the taxes on the land, and hence it was impossible for him to record the deeds. He and his family had continuously lived upon the land, however, and farmed it since 1927. The father had died in 1934, but there had never been any administration proceedings in connection with his estate. In 1938, appellee instituted foreclosure proceedings on its mortgage, naming the six sons and daughters of the mortgagor as parties defendant, and summons was duly served on appellant as one of such defendants. A decree of foreclosure was regularly entered, and on April 15, 1939, sheriff’s sale was held, at which the property was bid in by appellee, and- a sheriff’s certificate was issued to it. Under the laws of North Dakota, the period of redemption would have expired on April 15, 1940. On March 1, 1940, appellant filed a petition for agricultural composition under section 75 of the Bankruptcy Act, as amended, of which proceedings appellee was duly notified, and in which it filed proof of claim, “reserving question of ownership and jurisdiction.” Appellant failed to obtain an acceptance of his composition proposal, and, on July 1, 1940, he filed an amended petition under subsection s, asking to be adjudged a bankrupt. On August 20, 1940, after appellant had been duly adjudicated a bankrupt, and after he had petitioned the court that his property be appraised, appellee filed a motion for an order “abandoning * *. * and striking from the schedule of assets” the real estate here involved, “for the reason that the above named bankrupt is not the sole record owner of said real estate, and that the Court does not have jurisdiction of parties indispensable to the proceeding.” On September 12, 1940, the district court entered an order that “the above described real estate be abandoned from the above entitled proceedings and stricken from the schedule of assets herein.” The record does not favor us with any expression of the trial court’s reasons for this order, but, from appellee’s attempted justification of it, it appears to have been made on the theory which we have indicated above, that the automatic stay or extension provision in subsection n was intended to apply only to real estate to which the debtor holds actual record title. Such a distinction between property would defeat in part the salutary purpose which Congress was seeking to accomplish, and can hardly be justified under the specific language of the Act. Subsection rt expressly provides that the filing of a petition for composition or extension “shall immediately subject the farmer and all his property, wherever located, for all the purposes of this section, to the exclusive jurisdiction of the court, including all real or personal property, or any equity or right in any such property, including, among others, contracts for purchase, contracts for deed, or conditional sales contracts, the right or the equity of redemption where the period of redemption has not or had not expired, or where a deed of trust has been given as security, or where the sale has not or had not been confirmed, or where deed had not been delivered, at the time of filing the petition,” and that “in all cases where, at the time of filing the petition, the period of redemption has not or had not expired, or where the right under a deed of trust has not or had not become absolute, or where the sale has not or had not been confirmed, or where deed had not been delivered, the period of redemption shall be extended or the confirmation of sale withheld for the period necessary for the purpose of carrying out the provisions of this section” (Italics ours.) Appellee points'out that under section 5594, N.D.Comp.Laws 1913, an unrecorded deed is “void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any part or portion thereof, whose conveyance * * * is first duly recorded; or as against any attachment levied thereon or any judgment lawfully obtained, at the suit of any party, against the person in whose name the title to such land appears of record, prior to the recording of such conveyance.” But this statutory provision, which is not an uncommon one, did not prevent title to the property from vesting in appellant under his unrecorded deeds. Another North Dakota statute (§ 5598) expressly provides that “an unrecorded instrument is valid as between the parties thereto and those who have notice thereof * * *.” The effect of section 5594 therefore is simply to give priority to subsequent purchasers and attachment or judgment lien creditors,’ without notice, over the rights of an unrecorded deed holder, as a matter of estoppel. The holder of such an instrument, however, has definitely succeeded to all the rights of the record owner in the property, and so would be entitled to redeem from any judicial sale thus held against his grantor. N.D.Comp.Laws 1913, § 8085; Cathro v. McArthur, 30 N.D. 337, 152 N.W. 686. But these statutory provisions do not require further consideration here. Appel-lee’s status as a mortgagee certainly was in no way prejudiced by the unrecorded deed. Its foreclosure proceedings were not affected by the fact that the instrument was not recorded. N.D.Comp.Laws 1913, § 8026. No substantive priority would be accorded to appellant’s unrecorded deed, over appel-lee’s mortgage or decree rights, by holding the automatic stay provison of subsection n applicable to the property. Appellee will occupy exactly the same position as if a record owner had been seeking to effect the agricultural composition. And it will hardly be gainsaid that a farmer, who, like appellant, cannot get his deed recorded because of an inability to pay his taxes, is quite as much, and possibly even more, in need of the automatic stay provided for in subsection n, as any other farmer, and, so far as the language of Congress is concerned, he is equally entitled to it. Appellee suggests that if the holder of an unrecorded deed desires to have foreclosure proceedings upon the property stayed in order to try to effect an agricultural composition, he ought at least to be required to sue out a writ of injunction against the mortgagee. The brief says: “Appellee does not contend that the bankruptcy court, where the bankrupt is in possession of property, does not have power, upon proper application and proof, to enjoin transfer of the property or maintain the status quo in regard to it, until its jurisdiction is determined. Nor does appellee contend that upon such proper application and proof of interest, the bankruptcy court did not have power to stay by injunction the expiration of the period for redemption in this case.” The obvious answer to this suggestion is that, in providing for an automatic stay, Congress specifically eliminated the requirement which appellee here seeks to impose. The status quo is preserved by the language of the Act, and no judicial order is necessary. The order of the district court in this case accordingly fails to give effect to the language of subsection n, and ignores the hospitable construction of the Act toward which Wright v. Union Central Life Insurance Co., 304 U.S. 502, 58 S.Ct. 1025, 82 L.Ed. 1490, John Hancock Mutual Life Insurance Co. v. Bartels, 308 U.S. 180, 60 S.Ct. 221, 84 L.Ed. 176, and Borchard v. California Bank & Trust Co., 309 U.S. 648, 60 S.Ct. 721, 84 L.Ed. 1000, point. Appellant was entitled, in the situation here presented, to have the real estate involved dealt with in the proceedings under section 75, on the same basis as if his deeds had been duly recorded. The court could not make an arbitrary stonecast of the property- Reversed. § 75, sub. n, provides in part: “In all cases where, at the time of filing the petition, the period of redemption has not or had not expired, or where the right under a deed of trust has not or had not become absolute, or where the sale has not or had not been confirmed, or where deed had not been delivered, the period of redemption shall be extended or the confirmation of sale withheld for the period necessary for the purpose of carrying out the provisions of this section.”

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

Eartha L. ST. ANN, etc., et al., Plaintiffs-Appellants, v. Vincent PALISI, etc., et al., Defendants-Appellees. No. 73-2558. United States Court of Appeals, Fifth Circuit. June 6, 1974. Rehearing Denied July 24, 1974. William E. Rittenberg, Nils R. Douglas, Ronald P. Nabonne, New Orleans, La., for plaintiffs-appellants. Franklin V. Endom, Jr., Samuel I. Rosenberg, New Orleans, La., for defendants-appellees. Before TUTTLE, GEWIN and RO-NEY. Circuit Judges. GEWIN, Circuit Judge: On this appeal Mrs. Eartha St. Ann, individually and on behalf of her minor children, presents a substantive due process challenge to Orleans Parish School Board Regulation XIX which allows school children to be suspended for their parents’ misconduct. We vacate the district court’s order of dismissal insofar as it relates to the claims of the minor plaintiffs and remand. The challenge presented is prompted by the following occurrences. On September 27, 1972, the appellant’s son, Maurice, received a three day suspension from his seventh grade classes at Martin Behrman Middle School because of excessive tardiness and absenteeism. The following day Mrs. St. Ann went to the school with her daughter, Lavida, in order to check her into school because she was tardy. While in the school office, she inquired about her son’s suspension. A disagreement ensued between Mrs. St. Ann and the assistant principal,' Mr. Achary. Mrs. St. Ann became enraged and struck Mr. Achary on the face with her fist in which she was holding a key chain. As a consequence Mrs. St. Ann was charged with battery and pled guilty in Orleans Municipal Court. Because of their mother’s attack and pursuant to the aforementioned regulation, Mrs. St. Ann’s two children were suspended from school by notices dated September 29, 1972. The principal, Vincent Palisi, recommended that the suspension be for an indefinite period of time. The District Superintendent, Mr. Monie, scheduled a conference concerning the suspensions for October 10th, but due to her change of address Mrs. St. Ann did not receive notice of the conference. When she failed to appear on October 10th, Mr. Monie telephoned her in an attempt to schedule another conference, but Mrs. St. Ann advised him that the matter had been referred to her attorney. She subsequently filed suit on October 13th. At the district court’s request a conference between the parties was held on October 25, 1972. The conference did not result in the children’s reinstatement at Martin Behrman, however, because Mrs. St. Ann refused the school officials’ demands for an apology. After this conference the two children were transferred officially to Karr School which they had been attending since October 17, four days after the suit was filed. The district court concluded that “Regulation XIX does not abuse the discretion allowed to school authorities to formulate rules for the maintenance of discipline in the public schools, Accordingly, Regulation XIX was held not to violate the substantive due process guarantee of the fourteenth amendment and the complaint was dismissed with prejudice. As the district court indicated, school principals must be given considerable freedom to achieve effective school administration, but courts should not hesitate to act when fundamental constitutional liberties are contravened. Freedom from punishment in the. absence of personal guilt is a fundamental concept in the American scheme of justice. In order to intrude upon this fundamental liberty governments must satisfy a substantial burden of justification. Since the school officials have failed to meet this burden we must vacate the district court’s order of dismissal with prejudice with respect to the claims of the minor plaintiffs, and remand for proceedings consistent with this opinion. I The due process clause of the fourteenth amendment protects from state encroachment those fundamental concepts of justice which lie at the base of our civil and political institutions. It is established beyond question that these substantive due process rights are not limited to those liberties specifically enumerated in the Bill of Rights. The rights of marital privacy and interstate travel are but two examples of protections which arise from a free society but are not explicitly mentioned in the Constitution. The appellant contends that predicating punishment only upon personal guilt is such a fundamental notion that it should be placed in the same category. The school’s policy which attributes a parent’s misconduct to other family members is asserted to be guilt by association wholly alien to American liberty. Substantial Supreme Court authority supports the appellant’s contentions. Traditionally, under our system of justice punishment must be founded upon an individual’s act or omission, not from his status, political affiliation or domestic relationship. This principle has often been recognized by the Court in cases involving membership in subversive organizations. In Scales v. United States Justice Harlan emphasized the personal guilt requirement: In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Further evidence of judicial solicitude for the concept of personal guilt appears in the Court’s acknowledgement that the indiscriminate classification of innocent with knowing activity must likewise fall as an impermissible assertion of arbitrary power. Accordingly, a state cannot punish innocent membership in a group without regard for the accused’s knowledge of the nature of the group. Moreover, personal guilt has not been confined to problems involving political associations. In Levy v. Louisiana an equal protection violation was found when illegitimate children were denied an opportunity to pursue an action for the death of their mother under the Louisiana wrongful death statute. The illegitimate children were not to be deprived due to the indiscretion of their parents. Recently Louisiana’s workmen’s compensation laws which discriminated against illegitimate dependents were invalidated on similar 'grounds. Writing for the Court, Justice Powell stated: The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible laisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffee-tual — as well as unjust — way of deterring the parent. II These Supreme Court pronouncements provide ample indication that personal guilt is a fundamental element in the American scheme of liberty. The appel-lees do not forcefully dispute this conclusion. Rather they assert, for a variety of reasons, that personal guilt considerations are inappropriate here. Initially the appellees contend that substantive due process is not applicable unless a federal statutory or constitutional right is being violated. Furthermore, they claim that since San Antonio School District v. Rodriguez, it has been settled that the right to a public education is not a right guaranteed by the Constitution or by Congress. Therefore, appellees conclude that substantive due process cannot be applicable here because no right is being violated. This syllogism is, of course, irrelevant and erroneous and must be rejected. The argument is irrelevant because the children do not complain that they were denied the constitutional right to an education, but that they were punished without being personally guilty. Thus a cardinal notion of liberty is involved and substantive due process is applicable. Secondly, the appellees are in error if they regard San Antonio as granting the states the power to arbitrarily deny individuals the right to a public education. Finding that education was not a right explicitly or implicitly protected by the Constitution was merely the Court’s analysis of why education is not regarded as fundamental for purposes of “strict scrutiny” under the equal protection clause. Appellees also argue that there has been no punishment without personal guilt present here because there has been, in fact no punishment. The suspension and transfer were allegedly not designed to punish the St. Ann children. According to school authorities these actions were taken in order to maintain discipline and decorum at the Behrman School. This argument, however, is belied by the language of Regulation XIX itself. It provides: Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere, verbally or in writing, by a parent or guardian, the child or ward of such parent or guardian shall, by reason of such conduct, be liable to suspension or other punishment. (emphasis added) Furthermore, this court has recognized that a lengthy suspension does constitute a serious punishment, the imposition of which must be preceded by a due process hearing. Since the regulation provides for punishment and the St. Ann children were in fact suspended and transferred, the conclusion is inescapable that punishment resulted. The motives of the school officials are not controlling. Ill Having established a significant encroachment upon a basic element of due process, the state, in order to justify this encroachment, must satisfy a substantial burden. In order to assess the strength of the school officials’ interest one must examine the circumstances allegedly creating the need for such a regulation and the reasonableness of the methods used. The school officials argue that Regulation XIX facilitates preservation of discipline and decorum in the schools. We do not question either the necessity or authority of the Orleans Parish School Board in establishing regulations and rules for the maintenance of discipline and decorum in its schools. But the focus must be more narrow here. One must analyze the compelling reason for a regulation which punishes a child for the misconduct of the parent. It should be noted that the school officials commendably do not appear to argue that such a regulation will deter parental misconduct. Rather the argument appears to be that all children tend to ridicule a teacher who is insulted or attacked by a parent, and that if the children of the offending parent are removed from the school the ridicule will allegedly cease and discipline and teacher authority will be restored. Initially the premise upon which this argument is based might be challenged; for an arbitrary exercise of the power to punish may do more to destroy respect for those in authority than to restore it. This is, however, essentially a legislative judgment, and if it were the only weakness in the appellees’ argument we would not substitute our judgment for that of a legislative body without further evidence. Nevertheless, there are further indications that Regulation XIX was less than essential. This court was informed upon oral argument that the Orleans Parish School Board has abolished Regulation XIX subsequent to the district court judgment. The repeal itself supports the contention that the challenged regulation is not completely indispensable even if it may arguably serve to restore an offended teacher’s authority. After an examination of the exigency for the questioned regulation, an inquiry should be made as to the existence of reasonable alternative means for fulfilling that need. Non-students upon school property can be controlled or excluded by local regulations. Persistent violators may be enjoined or prosecuted under state law. Those who attack school officials are subject to state civil and criminal penalties just as Mrs. St. Ann was in the instant altercation. These are traditional and effective remedies for school officials who are disturbed by non-students. All these remedies place restraint on the offending individuals, not on the innocent members of the family. School officials can be relatively certain that news of such remedies will reach the school children, and perHaps the children will realize that the remedy did not arise from the arbitrary use of power but from the traditional precepts of justice in our society. Since there are alternative paths to restoring teacher authority, and since Regulation XIX is not justifiably or reasonably necessary we must hold that the school officials have been unable to demonstrate a compelling governmental interest. Therefore, this inroad upon the theory of personal guilt cannot be sustained. Even if the challenged regulation were only to be tested against the “mere rationality” standard its constitutionality would be a matter of serious concern. The question would then become whether the regulation is a rational means of advancing a valid state interest. The state may find it difficult to show by more than testimonial surmise that punishment of this type actually creates a better educational atmosphere. Furthermore, statute's that make parents liable for the misconduct of their children have been similarly criticized as irrational and violative of personal guilt. At least in parent-child cases, however, the parent arguably has the power and duty to control his children. Clearly the children do not have the same opportunity. Conclusion Because the school officials cannot justify this infringement of a fundamental liberty guaranteed by the due process clause of the fourteenth amendment, we vacate the order of the district court dismissing the appellants’ case insofar as it relates to the claims of the minor plaintiffs and remand for proceedings consistent with this opinion. We only hold that the court committed error in dismissing the appellant’s complaint on behalf of the minor plaintiffs and make no suggestibn or intimation with respect to the value or lack of value of her claim for monetary damages on their behalf. That issue must be decided by the district court in the first instance. Vacated and remanded. . Orleans Parish School Board Regulation XIX provides: A parent or guardian dissatisfied with the conduct of any teacher toward his child or ward shall first lay his complaint before the teacher, and, if not satisfied, may appeal to the principal. The principal shall hear such complaints only in the presence of the teacher concerned. If the matter is not satisfactorily resolved, the parent or guardian may appeal to the assistant superintendent in charge of the district, who shall hear the case only in the presence of the principal and teacher. Should the principal or teacher be called to account or be reproved in an offensive manner in the classroom or elsewhere verbally or in writing, by a parent or guardian, the child or ward of such parent or guardia/n shall, by reason of such conduct, be liable to suspension or other punishment. Said suspension or other punishment shall not be made until after the parent or guardian has refused to make proper amends. (Emphasis added) . Murray v. West Baton Rouge Parish School Board, 472 E.2d 438, 444 (5th Cir. 1973). . Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (5th Cir. 1972) (En Banc). . Nothing we say should be construed as an approval of Mrs. St. Ann’s conduct. This opinion relates entirely to the rights of the minor plaintiffs she represents, her two children. Mrs. St. Ann has not asserted or demonstrated any error by the district court in dismissing her individual claim; therefore we affirm that portion of the order. . Powell v. Alabama, 287 U.S. 45, 67, 53 S. Ct. 55, 63, 77 L.Ed. 158,169 (1932). In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the “traditions and [collective] conscience of our people” to determine whether a principle is “so rooted [there] * * * as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 332, 78 L.Ed. 674, 677 (1934). Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510, 520 (1965) (Goldberg, J. concurring). . Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972) (En Banc). . Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). . Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969). . See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (State cannot make the “status” of narcotic addiction a criminal offense). . 367 U.S. 203, 224, 225, 81 S.Ct. 1469, 1483, 1484, 6 L.Ed.2d 782, 799 (1961). . The restraints imposed upon legislation by the due process clause of the fifth and four-' teenth amendments are generally considered the same. Heiner v. Donnan, 285 U.S. 312, 326, 52 S.Ct. 358, 361, 76 L.Ed. 772, 779 (1932). Even if different constructions of the provisions may be proper in appropriate eases there is no indication that such a distinction is relevant here. . Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216, 222 (1952). . Id. The concept has been further refined to require a showing of a specific intent to assist in achieving an organization’s unlawful ends. Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238,16 L.Ed.2d 321 (1966). . 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). . See also Glona v. American Guar. and L. Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L. Ed.2d 441 (1968). But cf. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). . Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) . . Id. at 175, cited with approval Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, 591 (1973). . 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) . . Indeed the Court mentioned with approval several eases that have held the right to acquire useful knowledge a constitutionally protected liberty. Id. at 30. . Black Students v. Williams, 470 F.2d 957 (5th Cir. 1972). Ten days was held to be a substantial period of suspension so as to require a due process hearing. . Griswold v. Connecticut, 381 U.S. 479, 504, 85 S.Ct. 1678, 1692, 14 L.Ed.2d 510, 527 (1965) (White, J., concurring), quoting Bates v. City of Little Bock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480, 486 (1960); Karr v. Schmidt, 460 F.2d 609, 615, n. 12 (1972). The United States Supreme Court has consistently distinguished between regulatory statutes in the economic sphere and those which are aimed at restricting more personal freedoms. In the case of economic regulation, the Court has stated that a “rational basis” for the legislation will suffice to meet the constitutional requisites of due process; on the other extreme, a clear and present danger to the public safety is required to justify a restriction on the first amendment right to free speech, (footnotes omitted). Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321,1325 (1972). . See p. 428 infra. . The appellants seek an award of monetary damages as well as declaratory and injunctive relief. The repeal of Regulation XIX may indeed moot all claims except that for monetary damages. See Nat’l Lawyers Guild, Univ. of Texas Chapter v. Bd. of Regents of the Univ. of Texas Sys., 490 F.2d 97 (5th Cir. 1974) and the cases cited therein. . An inquiry into reasonable alternative means to achieve a goal is an appropriate inquiry when analyzing a fourteenth amendment 1 due process challenge. In Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) the Court held that Connecticut could not create an irrebuttable presumption of nonresidence for college tuition purposes when the state had reasonable alternative means for determining residence. Id. at 452. . See note 21 supra. . E. g. Thompson v. Gallagher, 489 F.2d 443 (5th Cir. 1973). . See Note, A Constitutional Caveat on the Vicarious Liability of Parents, 47 Notre Dame Lawyer 1321 (1972); cf. Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea, 10 Hous.L. Rev. 1039 (1973).

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?

TRUCK INSURANCE EXCHANGE, an Interinsurance Exchange, a Corporation, Appellant, v. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellee. AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant, v. TRUCK INSURANCE EXCHANGE, an Interinsurance Exchange, a Corporation, Appellee. No. 19137. United States Court of Appeals Ninth Circuit. Nov. 13, 1964. Clifford Mitchell, Mitchell & Henderson, Eureka, Cal., for appellant-cross appellee American Sur. Co. of N. Y. Gerald P. Martin, Richard G. Logan, Clark, Heafey & Martin, Oakland, Cal., for appellee-cross appellant Truck Ins. Exchange. Before BASTIAN, sitting by designation, MERRILL and DUNIWAY, Circuit Judges. MERRILL, Circuit Judge. The parties to this diversity action are insurers of persons whom a California state court has adjudged liable for damages in wrongful death resulting from their negligent conduct. The issue here is as to the apportionment of the California court judgment between the insurers. Defense of the state action was tendered to Truck Insurance Exchange and was refused. Defense was then undertaken by American Surety Company. Judgment in the sum of $73,561.56 was paid by American which then brought this action to secure a declaration of the proper apportionment between the insurers. The accident occurred when a logging trailer owned by one Dixon was being unloaded on premises of the J & W Lumber Company in Orrick, California. During the course of unloading a log fell from the trailer, killing Dixon. The action was brought against J & W Lumber Company and one Wescott, its employee, who had been assisting Dixon in the unloading operation. The complaint charged Wescott with negligence in the unloading of the trailer. It charged J & W with negligence in the maintenance and operation of the log landing and also stated a cause of action against the company for Wescott’s negligence on the theory of respondeat superior. The jury brought in a general verdict against both defendants. At the time of the accident a liability policy issued by American Surety Company was in effect, insuring J & W with a limit of $200,000 for injuries to one person. It did not cover J & W for the acts of its employees. At that time a liability policy issued by Truck Insurance Exchange was in effect, issued to Dixon covering the logging truck and trailer which were in use at the time of his accident, with a limit of $100,000 for injuries to one person. The policy did not by its terms extend coverage to non-owners using the truck and trailer with the owner’s permission. Section 16451 of the California Vehicle Code, however, provides such extended coverage by operation of law as to loss arising out of such use. Section 875 of the California Code of Civil Procedure provides for equal contribution between joint tortfeasors against whom judgment has been rendered. The District Court concluded that Wescott was insured by Truck Insurance Exchange as a user of the trailer under the extended coverage provided by California Vehicle Code § 16451; that J & W was insured by both companies: by American under the policy issued by that company and, as a user of the trailer, by Truck Insurance. The Court adjudged Truck Insurance liable for Wescott’s half of the judgment and that J & W’s half should be apportioned between the two companies on the basis of their policy limits, one third to Truck Insurance and two thirds to American, and that American was entitled to contribution from Truck Insurance on this basis. The judgment against Truck Insurance included interest from the date American satisfied Dixon’s claim in the wrongful death action until the entry of the judgment below. The sum upon which interest was due consisted of Truck Insurance’s pro rata share of the judgment in Dixon’s suit and the costs of the defense conducted by American. Both companies have appealed from that judgment. Appeal of Truck Insurance Exchange 1. Appellant contends that since its liability arises by operation of law, due to the requirements of § 16451 of the California Vehicle Code, and that since that section only requires coverage to the extent of $10,000, its liability should be limited to that amount. California law, as evidenced by Globe Indemnity Co. v. Universal Underwriters Ins. Co., 201 Cal.App.2d 9, 20 Cal. Rptr. 73 (Dist.Ct.App.1962), is to the contrary. 2. Appellant contends that § 875 of the California Code of Civil Procedure should not apply in an action between insurance companies to secure proration of their liability for the same loss; that the apportionment in such cases should be on the basis of the respective policy limits. Section 875, however, implicitly recog. nizes that the loss suffered by one joint tortfeasor is not the “same loss” as that suffered by another, in the sense in which appellant uses that term. Section 875 (e) provides: “A liability insurer who by payment has discharged the liability of a tortfeasor judgment debtor shall be subrogated to his right of contribution.” 3. Appellant contends that even if § 875 did give American Surety a right of contribution the two insurers should have shared the loss equally. In this we agree with appellant. Section 876 of the California Code of Civil Procedure deals with the manner in which the responsibility of joint tortfeasors as between themselves and their liability to contribution shall be ascertained. It provides: “(a)' The pro rata share of each tortfeasor judgment debtor shall be determined by dividing the entire judgment equally among all of them. “(b) Where one or more persons are held liable solely for the tort of one of them or of another, as in the case of the liability of a master for the tort of his servant, they shall contribute a single pro rata share, as to which there may be indemnity between them.” This section was apparently designed to prevent the doctrine of respondeat superior from creating another share of the liability which would ultimately have to be borne by the employee, or his insurer. In this case appellant’s responsibility for J & W’s loss was due solely to the fact that the company was a user of the trailer, and was limited to loss arising out of that use. The only company use was that of its employee, Wescott. Any loss arising out of that use resulted from Wescott’s negligence. J & W’s liability arising out of that use was, therefore, solely through respondeat superior — liability as master for the tort of its servant — for which it was entitled to indemnity from Wescott. Under § 876 the share of the judgment for wrongful death attributable to Wescott’s tort, whether borne by Wescott alone or with J & W joining in liability on the basis of respondeat superior, is one half of the judgment and no more. Judgment should therefore be modified to provide for equal apportionment, with American bearing J & W’s loss in its entirety and Truck Insurance bearing Wescott’s. 4. Appellant contends that the District Court erred in awarding interest from the date when American Surety satisfied judgment in the state action. From the principles enunciated in Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 17 Cal.Rptr. 12, 366 P.2d 455 (1961) (en banc), we conclude that such allowance was proper under California law in the light of appellant’s refusal to accept defense of the state action. Appeal of American Surety Company American simply asserts that there was in the state action no evidence that J & W was independently negligent and that the only basis for the jury verdict against that company could have been on the ground of respondeat superior; that Truck Insurance under these circumstances should be held primary insurer. The jury verdict was general and from such a verdict a presumption arises that the jury has found negligence on all material issues. Thomson v. Casaudoumecq, 205 Cal.App.2d 549, 23 Cal. Rptr. 189 (Dist.Ct.App.1962). Even assuming that American could go behind the jury verdict and show that there was no evidence of independent negligence, it has not done so. We must therefore presume that the jury in the state action properly found J & W guilty of independent acts of negligence. Judgment of the District Court against Truck Insurance Company is ordered reduced to provide for equal apportionment between the parties of the state court judgment for wrongful death plus costs, with interest as provided in the judgment of the District Court. As so modified, the judgment is affirmed. No costs are awarded in this appeal.

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

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

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

BELL v. BURSON, DIRECTOR, GEORGIA DEPARTMENT OF PUBLIC SAFETY No. 5586. Argued March 23, 1971 Decided May 24, 1971 Brennan, J., delivered the opinion of the Court, in which Douglas, HarlaN, Stewart, White, and Marshall, JJ., joined. Burger, C. J., and Black and Blackmun, JJ., concurred in the result. Elizabeth Roediger Rindskopf argued the cause for petitioner pro hac vice. With her on the brief was Howard Moore, Jr. Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and Courtney Wilder Stanton, Assistant Attorney General. Mr. Justice Brennan delivered the opinion of the Court. Georgia’s Motor Vehicle Safety Responsibility Act provides that the motor vehicle registration and driver’s license of an uninsured motorist involved in an accident shall be suspended unless he posts security to cover the amount of damages claimed by aggrieved parties in reports of the accident. The administrative hearing conducted prior to the suspension excludes consideration of the motorist’s fault or liability for the accident. The Georgia Court of Appeals rejected petitioner’s contention that the State’s statutory scheme, in failing before suspending the licenses to afford him a hearing on the question of his fault or liability, denied him due process in violation of the Fourteenth Amendment: the court held that “ ‘Fault’ or ‘innocence’ are completely irrelevant factors.” 121 Ga. App. 418, 420, 174 S. E. 2d 235, 236 (1970). The Georgia Supreme Court denied review. App. 27. We granted certiorari. 400 U. S. 963 (1970). We reverse. Petitioner is a clergyman whose ministry requires him to travel by car to cover three rural Georgia communities. On Sunday afternoon, November 24, 1968, petitioner was involved in an accident when five-year-old Sherry Capes rode her bicycle into the side of his automobile. The child’s parents filed an accident report with the Director of the Georgia Department of Public Safety indicating that their daughter had suffered substantial injuries for which they claimed damages of $5,000. Petitioner was thereafter informed by the Director that unless he was covered by a liability insurance policy in effect at the time of the accident he must file a bond or cash security deposit of $5,000 or present a notarized release from liability, plus proof of future financial responsibility, or suffer the suspension of his driver’s license and vehicle registration. App. 9. Petitioner requested an administrative hearing before the Director asserting that he was not liable as the accident was unavoidable, and stating also that he would be severely handicapped in the performance of his ministerial duties by a suspension of his licenses. A hearing was scheduled but the Director informed petitioner that “[t]he only evidence that the Department can accept and consider is: (a) was the petitioner or his vehicle involved in the accident; (b) has petitioner complied with the provisions of the Law as provided; or (c) does petitioner come within any of the exceptions of the'Law.” App. 11. At the administrative hearing the Director rejected petitioner’s proffer of evidence on liability, ascertained that petitioner was not within any of the statutory exceptions, and gave petitioner 30 days to comply with the security requirements or suffer suspension. Petitioner then exercised his statutory right to an appeal de novo in the Superior Court. Ga. Code Ann. § 92A-602 (1958). At that hearing, the court permitted petitioner to present his evidence on liability, and, although the claimants were neither parties nor witnesses, found petitioner free from fault. As a result, the Superior Court ordered “that the petitioner’s driver’s license not be suspended . . . [until] suit is filed against petitioner for the purpose of recovering damages for the injuries sustained by the child . . . .” App. 15. This order was reversed by the Georgia Court of Appeals in overruling petitioner’s constitutional contention. If the statute barred the- issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. Ex parte Poresky, 290 U. S. 30 (1933); Continental Baking Co. v. Woodring, 286 U. S. 352 (1932); Hess v. Pawloski, 274 U. S. 352 (1927). It does not follow, however, that the amendment also permits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are required to post security under penalty of loss of the licenses. See Shapiro v. Thompson, 394 U. S. 618 (1969); Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583 (1926). Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Goldberg V. Kelly, 397 U. S. 254 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a “right” or a “privilege.” Sherbert v. Verner, 374 U. S. 398 (1963) (disqualification for unemployment compensation); Slochower v. Board of Education, 350 U. S. 551 (1956) (discharge from public employment); Speiser v. Randall, 357 U. S. 513 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U. S. 373, 385-386 (1908); Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926); Opp Cotton Mills v. Administrator, 312 U. S. 126 (1941). We turn then to the nature of the procedural due process which must be afforded the licensee on the question of his fault or liability for the accident. A procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case. Thus, procedures adequate to determine a welfare claim may not suffice to try a felony charge. Compare Goldberg v. Kelly, 397 U. S., at 270-271, with Gideon v. Wainwright, 372 U. S. 335 (1963). Clearly, however, the inquiry into fault or liability requisite to afford the licensee due process need not take the form of a full adjudication of the question of liability. That adjudication can only be made in litigation between the parties involved in the accident. Since the only purpose of the provisions before us is to obtain security from which to pay any judgments against the licensee resulting from the accident, we hold that procedural due process will be satisfied by an inquiry limited to the determination whether there is a reasonable possibility, of judgments in the amounts claimed being rendered against the licensee. The State argues that the licensee's interest in avoiding the suspension of his licenses is outweighed by countervailing governmental interests and therefore that this procedural due process need not be afforded him. We disagree. In cases where there is no reasonable possibility of a judgment being rendered against a licensee, Georgia’s interest in protecting a claimant from the possibility of an unrecoverable judgment is not, within the context of the State's fault-oriented scheme, a justification for denying the process due its citizens. Nor is additional expense occasioned by the expanded hearing sufficient to withstand the constitutional requirement. “ 'While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process.’ ” Goldberg v. Kelly, 397 U. S., at 261, quoting Kelly v. Wyman, 294 F. Supp. 893, 901 (SDNY 1968). The main thrust of Georgia’s argument is that it need not provide a hearing on liability because fault and liability are irrelevant to the statutory scheme. We may assume that were this so, the prior administrative hearing presently provided by the State would be “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). But “[i]n reviewing state action in this area . . . we look to substance, not to bare form, to determine whether constitutional minimums have been honored.” Willner v. Committee on Character, 373 U. S. 96, 106-107 (1963) (concurring opinion). And looking to the operation of the State’s statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act. If prior to suspension there is a release from liability executed by the injured party, no suspension is worked by the Act. Ga. Code Ann. § 92A-606 (1958). The same is true if prior to suspension there is an adjudication of nonliability. Ibid. Even after suspension has been declared, a release from liability or an adjudication of nonliability will lift the suspension. Ga. Code Ann. § 92A-607 (Supp. 1970). Moreover, other of the Act’s exceptions are developed around liability-related concepts. Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important factor in the State’s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing. The hearing required by the Due Process Clause must be “meaningful,” Armstrong v. Manzo, 380 U. S. 545, 552 (1965), and “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., supra, at 313. It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet this standard. Finally, we reject Georgia’s argument that if it must afford the licensee an inquiry into the question of liability, that determination, unlike the determination of the matters presently considered at the administrative hearing, need not be made prior to the suspension of the licenses. While “[m]any controversies have raged about . . . the Due Process Clause,” ibid., it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective. Ibid. Opp Cotton Mills v. Administrator, 312 U. S., at 152-156; Sniadach v. Family Finance Corp., supra; Goldberg v. Kelly, supra; Wisconsin v. Constantineau, 400 U. S. 433 (1971). We hold, then, that under Georgia’s present statutory scheme, before the State may deprive petitioner of his driver’s license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. We deem it inappropriate in this case to do more than lay down this requirement. The alternative methods of compliance are several. Georgia may decide merely to include consideration of the question at the administrative hearing now provided, or it may elect to postpone such a consideration to the de novo judicial proceedings in the Superior Court. Georgia may decide to withhold suspension until adjudication of an action for damages brought by the injured party. Indeed, Georgia may elect to abandon its present scheme completely and pursue one of the various alternatives in force in other States. Finally, Georgia may reject all of the above and devise an entirely new regulatory scheme. The area of choice is wide: we hold only that the failure of the present Georgia scheme to afford the petitioner a prior hearing on liability of the nature we have defined denied him procedural due process in violation of the Fourteenth Amendment. The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The Chief Justice, Mr. Justice Black, and Mr. Justice Blackmun concur in the result. Motor Vehicle Safety Responsibility Act, Ga. Code Ann. § 92A-601 et seq. (1958). In pertinent part the Act provides that anyone involved in an accident must submit a report to the Director of Public Safety. Ga. Code Ann. § 92A-604 (Supp. 1970). Within 30 days of the receipt of the report the Director “shall suspend the license and all registration certificates and all registration plates of the operator and owner of any motor vehicle in any manner involved in the accident unless or until the operator or owner has previously furnished or immediately furnishes security, sufficient ... to satisfy any judgments for damages or injuries resulting . . . and unless such operator or owner shall give proof of financial responsibility for the future as is required in section 92A-615.1. . . Ga. Code Ann. § 92A-605 (a) (Supp. 1970). Section 92A-615.1 (Supp. 1970) requires that “such proof must be maintained for a one-year period.” Section 92A-605 (a) works no suspension, however, (1) if the owner or operator had in effect at the time of the accident a liability insurance policy or other bond, Ga. Code Ann. § 92A-605 (c) (Supp. 1970); (2) if the owner or operator qualifies as a self-insurer, ibid.; (3) if only the owner or operator was injured, Ga. Code Ann. § 92A-606 (1958); (4) if the automobile was legally parked at the time of the accident, ibid.; (5) if as to an owner, the automobile was being operated without permission, ibid.; or (6) “[i]f, prior to the date that the Director would otherwise suspend license and registration ... there shall be filed with the Director evidence satisfactory to him that the person who would otherwise have to file security has been released from liability or been finally adjudicated not to be liable or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments . . . .” Ibid. Questions concerning the requirement of proof of future financial responsibility are not before us. The State’s brief, at 4, states: “The one year period for proof of financial responsibility has now expired, so [petitioner] would not be required to file such proof, even if the Court of Appeals decision were affirmed.” Ga. Code Ann. § 92A-602 (1958) provides: “The Director shall administer and enforce the provisions of this Chapter and may make rules and regulations necessary for its administration and shall provide for hearings upon request of persons aggrieved by orders or acts of the Director under the provisions of this Chapter. Such hearing need not be a matter of record and the decision as rendered by the Director shall be final unless the aggrieved person shall desire an appeal, in which case he shall have the right to enter an appeal to the superior court of the county of his residence, by notice to the Director, in the same manner as appeals are entered from the court of ordinary, except that the appellant shall not be required to post any bond nor pay the costs in advance. If the aggrieved person desires, the appeal may be heard by the judge at term or in chambers or before a jury at the first term. The hearing on the appeal shall be de novo, however, such appeal shall not act as a supersedeas of any orders or acts of the Director, nor shall the appellant be allowed to operate or permit a motor vehicle to be operated in violation of any suspension or revocation by the Director, while such appeal is pending. A notice sent by registered mail shall be sufficient service on the Director that such appeal has been entered.” Petitioner stated at oral argument that while “it would be possible to raise [an equal protection argument] ... we don’t raise this point here.” Tr. of Oral Arg. 14. See, e. g., Fahey v. Mallonee, 332 U. S. 245 (1947); Ewing v. Mytinger & Casselberry, 339 U. S. 594 (1950). The various alternatives include compulsory insurance plans, public or joint public-private unsatisfied judgment funds, and assigned claims plans. See R. Keeton & J. O’Connell, After Cars Crash (1967).

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?

The Conjugal Society Composed of Juvenal Rosa, Pedro & Amador DE ROSA, Rosa, Rosario, Juvenal Rosa, Pedro & Amador De Rosa, Rosario, Individually, Plaintiffs-Appellants, v. CHICAGO TITLE INSURANCE COMPANY, First Federal Savings and Loan Association of Puerto Rico, Defendants-Appellees. No. 81-1802. United States Court of Appeals, First Circuit. Argued April 6, 1982. Decided June 22, 1982. Harry Segarra Arroyo, with whom Law Office of Harvey B. Nachman, Santurce, P. R., was on brief, for plaintiffs, appellants. Stanley R. Segal, with whom Ramirez, Segal & Latimer, San Juan, P. R., was on brief, for defendant, appellee First Federal Sav. and Loan Ass’n of Puerto Rico. Ana Matilde Nin, with whom McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria, San Juan, P. R., was on brief, for defendant, appellee Chicago Title Ins. Co. Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges. BOWNES, Circuit Judge. This case raises the question whether a suit attacking the cancellation of a performance bond and other guaranties during the foreclosure of a mortgage arises out of a transaction “involving . . . banking” within the meaning of the jurisdictional statute 12 U.S.C. § 632. Appellants, plaintiffs below, are Pedro Juvenal Rosa and Rosario Amador de Rosa, suing individually and as a conjugal society. They allege that they sold a parcel of land to Torre de Caparra Corp. (TCC), receiving cash and a first mortgage in the amount of $111,500 at six percent interest. TCC also mortgaged the property to Continental Mortgage Investors and one of the defendant-appellees, Chicago Title Insurance Co. (CTI). Under its mortgage, CTI guaranteed completion of construction of an apartment building on the land and issued a performance bond with a third party beneficiary clause in favor of plaintiffs guaranteeing that plaintiffs would collect their mortgage credits. Plaintiffs allege that on the basis of CTI’s representations about these guaranties, they subordinated their mortgage to that of CTI. TCC then entered into a refinancing agreement with the other defendant-appellee, First Federal Savings & Loan Association of Puerto Rico (First Federal). Plaintiffs subordinated their mortgage to First Federal’s new mortgage on the condition that the performance bond and guaranties of completion by CTI would remain in effect. Defendants, according to plaintiffs, then cancelled the bond and guaranties. First Federal foreclosed on its mortgage; plaintiffs received nothing. Plaintiffs brought suit in federal court, asserting that jurisdiction lay under 28 U.S.C. § 1332 (diversity) and 28 U.S.C. § 1337 (federal statutes regulating commerce). They later amended the complaint to add an additional jurisdictional ground, 12 U.S.C. § 632. The district court denied jurisdiction under section 1332 because of lack of complete diversity and under section 1337 because plaintiffs asserted no claim under a federal statute. As to section 632, the district court determined that it did not apply because Puerto Rico is not “a dependency or insular possession of the United States” for purposes of acts relating to national banks. Conjugal Soc’y v. Chicago Title Ins. Co., 497 F.Supp. 41 (D.P.R.1979). We reversed on the section 632 ruling. Conjugal Soc’y v. Chicago Title Ins. Co., 646 F.2d 688 (1st Cir. 1981) (per curiam); see First Fed. Sav. & Loan Ass’n v. Ruiz de Jesus, 644 F.2d 910 (1st Cir. 1981). On remand, the district court concluded that jurisdiction still did not lie under section 632 because plaintiffs had alleged fraud, which sounded in tort and which did not come within “traditional banking activities,” the only transactions encompassed by section 632, Diaz v. Pan American Fed. Sav. & Loan Ass’n, 635 F.2d 30, 32 (1st Cir. 1980). Conjugal Soc’y v. Chicago Title Ins. Co., 525 F.Supp. 268 (D.P.R.1981). The procedural mechanism for dismissal below was a Fed.R.Civ.P. 12(b)(1) motion by defendants. The district court based its order on a reading of the complaint, and, accordingly, “we consider only those facts and allegations set forth in the complaint and must view them in a light most favorable to the plaintiff,” Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976) (reviewing 12(b)(6) order). We have no occasion to address a subsidiary point raised briefly by plaintiffs, whether they were improperly precluded from introducing evidence on the jurisdictional issue. We recently considered the scope of section 632 in Diaz v. Pan American Fed. Sav. & Loan Ass’n, 635 F.2d 30. We held that a district court could not entertain, under section 632, a suit that charged the malicious or negligent filing of a criminal complaint as a result of plaintiffs alleged passing of bad checks. Id. at 32. Section 632 reaches only traditional banking activities, not all cases in which a bank organized under federal law is a party. Id. Banking activities covered by section 632 include mortgage agreements, see 12 U.S.C. § 1464(c) (federal savings and loan associations), and foreclosures on mortgages, Chase Manhattan Bk. (N.A.) v. Corporacion Hotelera, 516 F.2d 1047, 1048 n.1 (1st Cir. 1975) (per curiam); First Nat’l City Bk. v. Gonzalez & Co. Suer. Corp., 308 F.Supp. 596, 599 (D.P.R.1970); see First Fed. Sav. & Loan Ass’n v. Zequeira, 305 F.Supp. 37, 39 (D.P.R.1969). But cf. Gonzalez-Roman v. Federal Land Bk., 303 F.Supp. 482, 483 (D.P.R.1969) (action challenging prior foreclosure proceeding was attack on earlier federal judgment and did not arise from transaction involving banking). Section 632 is not limited to the original two parties to a banking transaction. In Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786 (2d Cir. 1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981), the guarantor of notes sold by the maker to obtain letters of credit from a bank was allowed to sue the bank under section 632 for allowing alleged wrongful drawdowns against the letters, id. at 792. Section 632 jurisdiction also exists over a claim by one cosignor of a letter of guaranty against another cosignor contesting the validity of the letter, when the letter was relied upon by a bank in granting a loan. National City Bk. v. Puig, 106 F.Supp. 1, 2-3 (D.P.R.1952). According to the complaint in the instant case, plaintiffs agreed to a subordinate mortgage position in exchange for protection — a performance bond and a guaranty of completion — offered by defendants. The seniority of defendants’ mortgages was an important factor in the mortgage transactions that defendants entered into; indeed, First Federal is effectively required to take only first mortgages, see 12 C.F.R. § 545.6(a), (b)(1). Plaintiffs have no unconditional rights or obligations directly under the mortgage agreements between TCC and CTI and between TCC and First Federal, but they are third parties whose subordinate position was central to CTI’s and First Federal’s decisions to enter into the mortgage agreements. Cf. Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786; National City Bk. v. Puig, 106 F.Supp. 1. Defendants’ assurances to plaintiffs thus constituted part of defendants’ banking transactions, and the alleged wrongful termination of those assurances was part of the mortgage foreclosure. CTI suggests that section 632 jurisdiction is absent because the gist of plaintiffs’ claim is negligence and conspiracy which by themselves bear no relationship to banking. Plaintiffs allege essentially, however, that they were denied rights provided by the guaranty and the performance bond. Whether' defendants’ acts are viewed as ones in tort or contract, plaintiffs’ rights are alleged to have arisen out of defendants’ mortgage agreements and thus out of a transaction involving banking within the meaning of section 632. Plaintiffs have alleged facts sufficient to invoke section 632 jurisdiction. Reversed and remanded. . 12 U.S.C. § 632 provides in relevant part as follows: Notwithstanding any other provision of law, all suits of a civil nature at common law or in equity to which any corporation organized under the laws of the United States shall be a party, arising out of transactions involving ... banking in a dependency or insular possession of the United States, ... shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of all such suitsf.] . The relevant paragraphs of plaintiffs’ complaint are as follows: 14. The mortgage in favor of CTI was to guarantee, among other things, obligations assumed by CIT [sic] whereby it would finish the apartment building in the event that Torre de Caparra Corp. was unable to do so for whatever reasons. 15. In exchange of the mortgage constituted in its favor and as a reciprocal obligation, the defendant, CTI issued a performance bond number CH-1225-53-0131-2 whereby it guaranteed to the plaintiffs collection of its mortgage credits. 19. As a condition to its banking transaction First Federal obtained of the plaintiffs the further subordination of the first mortgage held by plaintiffs. . The following paragraphs of plaintiffs’ complaint are relevant: 27. The cancellation of the performance bond and the protections offered and accepted by the plaintiffs for subordination of their mortgage credits were all part of a design and plan to defraud within a banking transaction on the part of the defendants. 28. The cancellation of the performance bond execution of the mortgage credits and subsequent negotiations by the defendant, First Federal[,] were all part of a design and plan of a banking transaction. 29. As a result of the leaving without effect and cancellation of the performance bond by the defendants, the plaintiffs were deprived of their mortgage credits in the amount of $111,500.00, plus interest on that amount. 30. As a result of the fault, acts and negligence of the defendants, the plaintiffs have suffered losses in the amount of $500,000.00.

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

FEDERAL ENERGY REGULATORY COMMISSION et al. v. MISSISSIPPI et al. No. 80-1749. Argued January 19, 1982 Decided June 1, 1982 Blackmun, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 771. O’Connor, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Burger, C. J., and Rehnquist, J., joined, post, p. 775. Solicitor General Lee argued the cause for appellants. With him on the briefs were Assistant Attorney General Dinkins, Deputy Solicitor General Claiborne, Elliott Schulder, Kathryn A. Oberly, Susan Virginia Cook, Jerome M. Feit, and Joanne Leveque. Alex A. Alston, Jr., argued the cause for appellees. With him on the brief for appellees State of Mississippi et al. were Hiram Eastland, Hubbard T. Saunders IV, Bill Allain, Attorney General of Mississippi, and Bennett E. Smith, Assistant Attorney General. Joshua Green and James K. Child, Jr., filed a brief for appellee Mississippi Power & Light Co. Briefs of amici curiae urging reversal were filed by Roger E. Warin, Stephen H. Sachs, Attorney General of Maryland, Eleanor M. Carey, Associate Deputy Attorney General, Roger Davis, Norman L. Dean, Jr., and Alan S. Miller for the State of Maryland et al.; by Peter N. Wells for the County of Onondaga, N. Y.; by William M. Bradner, Jr., and Rigdon H. Boykin for the American Paper Institute, Inc.; by Janice E. Kerr, Hector Anninos, and Randolph W. Deutsch for the California Public Utilities Commission; by Peter W. Brown, Richard A. Hesse, and James E. Tierney, Attorney General of Maine, for the Energy Law Institute et al.; by Robert E. Bethea, A. Bernard Bays, and Gerald A. Sumida for the Hawaii Sugar Planters’ Association; by Samuel Efron, David J. Bardin, James P. Mercurio, and Lems E. Leibowitz for Hoffman-La Roche Inc. et al.; by Gerry Levenberg, R. Keith Guthrie, William Brashares, and John J. Gunther for the National Alliance for Hydroelectric Energy et al.; and by Robert H. Loeffler, Alan Cope Johnston, and Henry D. Levine for Windfarms, Ltd., et al. Briefs of amici curiae urging affirmance were filed by Northcutt Ely, Frederick H. Ritts, and Robert F. Pietrowski, Jr., for the American Public Power Association; by David G. Hanes, John D. McGrane, and Andrew P. Carter for Arkansas Power & Light Co. et al; by Walter A. Bossert, Jr., and Davison W. Grant for Central Hudson Gas & Electric Corp.; by Harold R. Schmidt, William R. Cockrell, Jr., and Steve C. Griffith, Jr., for Duke Power Co. et al.; by William B. Killian for Florida Power & Light Co.; by R. Gordon Gooch, J. Patrick Berry, and William R. Brown for Houston Lighting & Power Co. et al.; by Roger J. Marzulla and Gale A. Norton for the Mountain States Legal Foundation; by Edward A. Caine and William Dana Shapiro for Potomac Electric Power Co.; and by Wayne T. Elliott, Allen R. Hirons, and G. Stephen Parker for the Southeastern Legal Foundation, Inc. Briefs of amici curiae were filed by David Frohnmayer, Attorney General of Oregon, and William F. Gary, Solicitor General, for the Department of Energy of the State of Oregon; by Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Richard E. Gray Ill, Executive Assistant Attorney General, and James R. Myers, Justin Andrew Kever, and John Stuart Fryer, Assistant Attorneys General, for the State of Texas; by William M. Chamberlain for the California Energy Resources Conservation and Development Commission; by David Crump for the Legal Foundation of America; by Marshall B. Brinkley for the Louisiana Public Service Commission; and by S. Eason Balch, S. Eason Balch, Jr., and Ben H. Stone, for Southern Company Services, Inc., et al. Justice Blackmun delivered the opinion of the Court. In this case, appellees successfully challenged the constitutionality of Titles I and III, and of § 210 of Title II, of the Public Utility Regulatory Policies Act of 1978, Pub. L. 95-617, 92 Stat. 3117 (PURPA or Act). We conclude that appellees’ challenge lacks merit and we reverse the judgment below. I On November 9, 1978, President Carter signed PURPA into law. The Act was part of a package of legislation, approved the same day, designed to combat the nationwide energy crisis. At the time, it was said that the generation of electricity consumed more than 25% of all energy resources used in the United States. S. Rep. No. 95-442, p. 7 (1977). Approximately one-third of the electricity in this country was generated through use of oil and natural gas, and electricity generation was one of the fastest growing segments of the Nation’s economy. S. Rep. No. 95-361, p. 32 (1977). In part because of their reliance on oil and gas, electricity utilities were plagued with increasing costs and decreasing efficiency in the use of their generating capacities; each of these factors had an adverse effect on rates to consumers and on the economy as a whole. S. Rep. No. 95-442, at 9. Congress accordingly determined that conservation by electricity utilities of oil and natural gas was essential to the success of any effort to lessen the country’s dependence on foreign oil, to avoid a repetition of the shortage of natural gas that had been experienced in 1977, and to control consumer costs. A Titles I and III PURPA’s Titles I and III, which relate to regulatory policies for electricity and gas utilities, respectively, are administered (with minor exceptions) by the Secretary of Energy. These provisions are designed to encourage the adoption of certain retail regulatory practices. The Titles share three goals: (1) to encourage “conservation of energy supplied by... utilities”; (2) to encourage “the optimization of the efficiency of use of facilities and resources” by utilities; and (3) to encourage “equitable rates to... consumers.” §§ 101 and 301, 92 Stat. 3120 and 3149, 16 U. S. C. § 2611 (1976 ed., Supp. IV), 15 U. S. C. § 3201 (1976 ed., Supp. IV). To achieve these goals, Titles I and III direct state Utility regulatory commissions and nonregulated utilities to “consider” the adoption and implementation of specific “rate design” and regulatory standards. Section 111(d) of the Act, 16 U. S. C. § 2621(d), requires each state regulatory authority and nonregulated utility to consider the use of six different approaches to structuring rates: (1) promulgation, for each class of electricity consumers, of rates that, “to the maximum extent practicable,” would “reflect the costs of... service to such class”; (2) elimination of declining block rates; (3) adoption of time-of-day rates; (4) promulgation of seasonal rates; (5) adoption of interruptible rates; and (6) use of load management techniques. The Act directed each state authority and non-regulated utility to consider these factors not later than two years after PURPA’s enactment, that is, by November 8, 1980, and provided that the authority or utility by November 8, 1981, was to have made a decision whether to adopt the standards. § 2622(b). The statute does not provide penalties for failure to meet these deadlines; the state authority or nonregulated utility is merely directed to consider the standards at the first rate proceeding initiated by the authority after November 9, 1980. § 2622(c). Section 113 of PURPA, 16 U. S. C. §2623, requires each state regulatory authority and nonregulated utility to consider the adoption of a second set of standards relating to the terms and conditions of electricity service: (1) prohibition of master-metering in new buildings; (2) restrictions on the use of automatic adjustment clauses; (3) disclosure to consumers of information regarding rate schedules; (4) promulgation of procedural requirements relating to termination of service; and (5) prohibition of the recovery of advertising costs from consumers. Similarly, § 303, 15 U. S. C. §3203, requires consideration of the last two standards — procedures for termination of service and the nonrecovery of advertising costs — for natural gas utilities. A decision as to the standards contained in §§113 and 303 was to have been made by November 1980, although, again, no penalty was provided by the statute for failure to meet the deadline. Finally, § 114 of the Act, 16 U. S. C. §2624, directs each state authority and nonregulated utility to consider promulgation of “lifeline rates” — that is, lower rates for service that meets the essential needs of residential consumers — if such rates have not been adopted by November 1980. Titles I and III also prescribe certain procedures to be followed by the state regulatory authority and the nonregulated utility when considering the proposed standards. Each standard is to be examined at a public hearing after notice, and a written statement of reasons must be made available to the public if the standards are not adopted. 16 U. S. C. §§ 2621(b) and (c)(2), and §§ 2623(a) and (c); 15 U. S. C. §§ 3203(a) and (c). “Any person” may bring an action in state court to enforce the obligation to hold a hearing and make determinations on the PURPA standards. 16 U. S. C. § 2633(c)(1); 15 U. S. C. § 3207(b)(1). The Secretary of Energy, any affected utility, and any consumer served by an affected utility is given the right to intervene and participate in any rate-related proceeding considering the Title I standards. 16 U. S. C. § 2631(a). Under Title III, the Secretary alone has the right to intervene. 15 U. S. C. § 3205. Any person (including the Secretary) who intervenes or otherwise participates in the proceeding may obtain review in state court of any administrative determination concerning the Title I standards, 16 U. S. C. § 2633 (c)(1), and the Secretary has the right to participate as an amicus in any Title III judicial review proceeding initiated by another. 15 U. S. C. § 3207(b)(2). The right to intervene is enforceable against the state regulatory authority by an action in federal court. 16 U. S. C. § 2633(b); 15 U. S. C. § 3207(a)(2). Titles I and III also set forth certain reporting requirements. Within one year of PURPA’s enactment, and annually thereafter for 10 years, each state regulatory authority and nonregulated utility is to report to the Secretary “respecting its consideration of the standards established.” 16 U. S. C. § 2626(a); 15 U. S. C. § 3209(a). The Secretary, in turn, is to submit a summary and analysis of these reports to Congress. 16 U. S. C. § 2626(b); 15 U. S. C. § 3209(b). Electricity utilities also are required to collect information concerning their service costs. 16 U. S. C. § 2643. This information is to be filed periodically with appellant Federal Energy Regulatory Commission (FERC) and with appropriate state regulatory agencies, and is to be made available to the public. Title III requires the Secretary, in consultation with FERC, state regulatory authorities, gas utilities, and gas consumers, to submit a report to Congress on gas utility rate design. 15 U. S. C. § 3206. Despite the extent and detail of the federal proposals, however, no state authority or nonregulated utility is required to adopt or implement the specified rate design or regulatory standards. Thus, 16 U. S. C. §§ 2621(a) and 2623(a) and 15 U. S. C. § 3203(a) all provide: “Nothing in this subsection prohibits any State regulatory authority or nonregulated... utility from making any determination that it is not appropriate to implement [or adopt] any such standard, pursuant to its authority under otherwise applicable State law.” Similarly, 16 U. S. C. § 2627(b) and 15 U. S. C. § 3208 make it clear that any state regulatory authority or nonregulated utility may adopt regulations or rates that are “different from any standard established by this [subchapter or] chapter.” B Section 210 Section 210 of PURPA’s Title II, 92 Stat. 3144, 16 U. S. C. § 824a-3, seeks to encourage the development of cogen-eration and small power production facilities. Congress believed that increased use of these sources of energy would reduce the demand for traditional fossil fuels. But it also felt that two problems impeded the development of nontraditional generating facilities: (1) traditional electricity utilities were reluctant to purchase power from, and to sell power to, the nohtraditional facilities, and (2) the regulation of these alternative energy sources by state and federal utility authorities imposed financial burdens upon the nontraditional facilities and thus discouraged their development. In order to overcome the first of these perceived problems, § 210(a) directs FERC, in consultation with state regulatory authorities, to promulgate “such rules as it determines necessary to encourage cogeneration and small power production,” including rules requiring utilities to offer to sell electricity to, and purchase electricity from, qualifying co-generation and small power production facilities. Section 210(f), 16 U. S. C. § 824a-3(f), requires each state regulatory authority and nonregulated utility to implement FERC’s rules. And § 210(h), 16 U. S. C. § 824a-3(h), authorizes FERC to enforce this requirement in federal court against any state authority or nonregulated utility; if FERC fails to act after request, any qualifying utility may bring suit. To solve the second problem perceived by Congress, § 210(e), 16 U. S. C. § 824a-3(e), directs FERC to prescribe rules exempting the favored cogeneration and small power facilities from certain state and federal laws governing electricity utilities. Pursuant to this statutory authorization, FERC has adopted regulations relating to purchases and sales of electricity to and from cogeneration and small power facilities. See 18 CFR pt. 292 (1980); 45 Fed. Reg. 12214-12237 (1980). These afford state regulatory authorities and nonregulated utilities latitude in determining the manner in which the regulations are to be implemented. Thus, a state commission may comply with the statutory requirements by issuing regulations, by resolving disputes on a case-by-case basis, or by taking any other action reasonably designed to give effect to FERC’s rules. HH HH In April 1979, the State of Mississippi and the Mississippi Public Service Commission, appellees here, filed this action in the United States District Court for the Southern District of Mississippi against FERC and the Secretary of Energy, seeking a declaratory judgment that PURPA’s Titles I and III and §210 are unconstitutional. App. 3. Appellees maintained that PURPA was beyond the scope of congressional power under the Commerce Clause and that it constituted an invasion of state sovereignty in violation of the Tenth Amendment. Following cross-motions for summary judgment, the District Court, in an unreported opinion, held that in enacting PURPA Congress had exceeded its powers under the Commerce Clause. App. to Juris. Statement la. The court observed that the Mississippi Public Service Commission by state statute possessed the “power and authority to regulate and control intrastate activities and policies of all utilities operating within the sovereign state of Mississippi.” Id., at 2a. Relying on Carter v. Carter Coal Co., 298 U. S. 238 (1936), the court stated: “There is literally nothing in the Commerce Clause of the Constitution which authorizes or justifies the federal government in taking over the regulation and control of public utilities. These public utilities were actually unknown at the writing of the Constitution.” App. to Juris. Statement 4a. Indeed, in the court’s view, the legislation “does not even attempt to regulate commerce among the several states but it is a clear usurpation of power and authority which the United States simply does not have under the Commerce Clause of the Constitution.” Id., at 7a. Relying on National League of Cities v. Usery, 426 U. S. 833 (1976), the court also concluded that PURPA trenches on state sovereignty. It therefore pronounced the statutory provisions void because “they constitute a direct intrusion on integral and traditional functions of the State of Mississippi.” App. to Juris. Statement 8a-9a. For reasons it did not explain, the court also relied on the guarantee of a republican form of government, U. S. Const., Art. IV, § 4, and on the Supremacy Clause, Art. VI, cl. 2. App. to Juris. Statement 2a, n. 1, and 9a. FERC and the Secretary of Energy appealed directly to this Court pursuant to 28 U. S. C. § 1252. See Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S. 264, 274, n. 15(1981). We noted probable jurisdiction. 452 U. S. 936 (1981). Ill The Commerce Clause We readily conclude that the District Court’s analysis and the appellees’ arguments are without merit so far as they concern the Commerce Clause. To say that nothing in the Commerce Clause justifies federal regulation of even the intrastate operations of public utilities misapprehends the proper role of the courts in assessing the validity of federal legislation promulgated under one of Congress’ plenary powers. The applicable standard was reiterated just last Term in Hodel v. Indiana, 452 U. S. 314 (1981): “It is established beyond peradventure that ‘legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality... Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 15 (1976).... A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.” Id., at 323-324. Despite these expansive observations by this Court, appel-lees assert that PURPA is facially unconstitutional because it does not regulate “commerce”; instead, it is said, the Act directs the nonconsenting State to regulate in accordance with federal procedures. This, appellees continue, is beyond Congress’ power: “In exercising the authority conferred by this clause of the Constitution, Congress is powerless to regulate anything which is not commerce, as it is powerless to do anything about commerce which is not regulation.” Carter v. Carter Coal Co., 298 U. S., at 297. The “governance of commerce” by the State is to be distinguished from commerce itself, for regulation of the former is said to be outside the plenary power of Congress. It is further argued that the proper test is not whether the regulated activity merely “affects” interstate commerce but, instead, whether it has “a substantial effect” on such commerce, citing Justice Rehnquist’s opinion concurring in the judgment in the Hodel cases, 452 U. S., at 311-312. PURPA, appellees maintain, does not meet this standard. The difficulty with these arguments is that they disregard entirely the specific congressional finding, in § 2 of the Act, 16 U. S. C. § 2601, that the regulated activities have an immediate effect on interstate commerce. Congress there determined that “the protection of the public health, safety, and welfare, the preservation of national security, and the proper exercise of congressional authority under the Constitution to regulate interstate commerce require,” among other things, a program for increased conservation of electric energy, increased efficiency in the use of facilities and resources by electricity utilities, and equitable retail rates for electricity consumers, as well as a program to improve the wholesale distribution of electric energy, and a program for the conservation of natural gas while ensuring that rates to gas consumers are equitable. 16 U. S. C. § 2601. The findings, thus, are clear and specific. The Court heretofore has indicated that federal regulation of intrastate power transmission may be proper because of the interstate nature of the generation and supply of electric power. FPC v. Florida Power & Light Co., 404 U. S. 453 (1972). Our inquiry, then, is whether the congressional findings have a rational basis. Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 277; Hodel v. Indiana, 452 U. S., at 323-324. The legislative history provides a simple answer: there is ample support for Congress’ conclusions. The hearings were extensive. Committees in both Houses of Congress noted the magnitude of the Nation’s energy problems and the need to alleviate those problems by promoting energy conservation and more efficient use of energy resources. See S. Rep. No. 95-442, at 7-10; H. R. Rep. No. 95-543, vol. I, pp. 5-10 (1977); H. R. Rep. No. 95-496, pt. 4, pp. 3-7, 125-130 (1977). Congress was aware that domestic oil production had lagged behind demand and that the Nation had become increasingly dependent on foreign oil. Id., at 3. The House Committee observed: “Reliance upon imported oil to meet the bulk of U. S. oil demands could seriously jeopardize the stability of the Nation’s economy and could undermine the independence of the United States.” Ibid. See H. R. Rep. No. 95-543, vol. I, at 5-6. Indeed, the Nation had recently experienced severe shortages in its supplies of natural gas. Id., at 7. The House and Senate Committees both noted that the electricity industry consumed more than 25% of the total energy resources used in this country while supplying only 12% of the user demand for energy. S. Rep. No. 95-442, at 7-8; H. R. Rep. No. 95-496, pt. 4, at 125. In recent years, the electricity utility industry had been beset by numerous problems, id., at 129, which resulted in higher bills for the consuming public, a result exacerbated by the rate structures employed by most utilities. S. Rep. No. 95-442, at 26. Congress naturally concluded that the energy problem was nationwide in scope, and that these developments demonstrated the need to establish federal standards regarding retail sales of electricity, as well as federal attempts to encourage conservation and more efficient use of scarce energy resources. See id., at 24-32; H. R. Rep. No. 95-496, pt. 4, at 131-133, 136-138, 170-171. Congress also determined that the development of co-generation and small power production facilities would conserve energy. The evidence before Congress showed the potential contribution of these sources of energy: it was estimated that if proper incentives were provided, industrial cogeneration alone could account for 7%-10% of the Nation’s electrical generating capacity by 1987. S. Rep. No. 95-442, at 21, 23. We agree with appellants that it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product used in virtually every home and every commercial or manufacturing facility. No State relies solely on its own resources in this respect. See FPC v. Florida Power & Light Co., supra. Indeed, the utilities involved in this very case, Mississippi Power & Light Company and Mississippi Power Company, sell their retail customers power that is generated in part beyond Mississippi’s borders, and offer reciprocal services to utilities in other States. App. 93-94. The intrastate activities of these utilities, although regulated by the Mississippi Public Service Commission, bring them within the reach of Congress’ power over interstate commerce. See FPC v. Florida Power & Light Co., 404 U. S., at 458; New England Power Co. v. New Hampshire, 455 U. S. 331 (1982). Even if appellees were correct in suggesting that PURPA will not significantly improve the Nation’s energy situation, the congressional findings compel the conclusion that “‘the means chosen by [Congress are] reasonably adapted to the end permitted by the Constitution.’” Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 276, quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 262 (1964). It is not for us to say whether the means chosen by Congress represent the wisest choice. It is sufficient that Congress was not irrational in concluding that limited federal regulation of retail sales of electricity and natural gas, and of relationships between cogenerators and electric utilities, was essential to protect interstate commerce. That is enough to place the challenged portions of PURPA within Congress’ power under the Commerce Clause. Because PURPA’s provisions concern private nonregulated utilities as well as state commissions, the statute necessarily is valid at least insofar as it regulates private parties. See Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 286. <1 The Tenth Amendment Unlike the Commerce Clause question, the Tenth Amendment issue presented here is somewhat novel. This case obviously is related to National League of Cities v. Usery, 426 U. S. 833 (1976), insofar as both concern principles of state sovereignty. But there is a significant difference as well. National League of Cities, like Fry v. United States, 421 U. S. 542 (1975), presented a problem the Court often confronts: the extent to which state sovereignty shields the States from generally applicable federal regulations. In PURPA, in contrast, the Federal Government attempts to use state regulatory machinery to advance federal goals. To an extent, this presents an issue of first impression. PURPA, for all its complexity, contains essentially three requirements: (1) § 210 has the States enforce standards promulgated by FERC; (2) Titles I and III direct the States to consider specified ratemaking standards; and (3) those Titles impose certain procedures on state commissions. We consider these three requirements in turn: A. Section 210. On its face, this appears to be the most intrusive of PURPA’s provisions. The question of its constitutionality, however, is the easiest to resolve. Insofar as § 210 authorizes FERC to exempt qualified power facilities from “State laws and regulations,” it does nothing more than pre-empt conflicting state enactments in the traditional way. Clearly, Congress can pre-empt the States completely in the regulation of retail sales by electricity and gas utilities and in the regulation of transactions between such utilities and cogenerators. Cf. Southern Pacific Co. v. Arizona, 325 U. S. 761, 769 (1945). The propriety of this type of regulation — so long as it is a valid exercise of the commerce power — was made clear in National League of Cities, and was reaffirmed in Hodel v. Virginia Surface Mining & Recl. Assn.: the Federal Government may displace state regulation even though this serves to “curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important.” 452 U. S., at 290. Section 210’s requirement that “each State regulatory authority shall, after notice and opportunity for public hearing, implement such rule (or revised rule) for each electric utility for which it has ratemaking authority,” 16 U. S. C. § 824a-3(f)(1) (emphasis added), is more troublesome. The statute’s substantive provisions require electricity utilities to purchase electricity from, and to sell it to, qualifying co-generator and small power production facilities. § 824a-3(a). Yet FERC has declared that state commissions may implement this by, among other things, “an undertaking to resolve disputes between qualifying facilities and electric utilities arising under [PURPA].” 18 CFR § 292.401(a) (1980). In essence, then, the statute and the implementing regulations simply require the Mississippi authorities to adjudicate disputes arising under the statute. Dispute resolution of this kind is the very type of activity customarily engaged in by the Mississippi Public Service Commission. See, e. g., Miss. Code Ann. §§ 77-1-31, 77-3-5, 77-3-13(3), 77-3-21, 77-3-405 (1973). Testa v. Katt, 330 U. S. 386 (1947), is instructive and controlling on this point. There, the Emergency Price Control Act, 56 Stat. 34, as amended, created a treble-damages remedy, and gave jurisdiction over claims under the Act to state as well as federal courts. The courts of Rhode Island refused to entertain such claims, although they heard analogous state causes of action. This Court upheld the federal program. It observed that state courts have a unique role in enforcing the body of federal law, and that the Rhode Island courts had “jurisdiction adequate and appropriate under established local law to adjudicate this action.” 330 U. S., at 394. Thus the state courts were directed to heed the constitutional command that “the policy of the federal Act is the prevailing policy in every state,” id., at 393, “‘and should be respected accordingly in the courts of the State.’” Id., at 392, quoting Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 57 (1912). So it is here. The Mississippi Commission has jurisdiction to entertain claims analogous to those granted by PURPA, and it can satisfy § 210’s requirements simply by opening its doors to claimants. That the Commission has administrative as well as judicial duties is of no significance. Any other conclusion would allow the States to disregard both the preeminent position held by federal law throughout the Nation, cf. Martin v. Hunter’s Lessee, 1 Wheat. 304, 340-341 (1816), and the congressional determination that the federal rights granted by PURPA can appropriately be enforced through state adjudicatory machinery. Such an approach, Testa emphasized, “flies in the face of the fact that the States of the Union constitute a nation,” and “disregards the purpose and effect of Article VI of the Constitution.” 330 U. S., at 389. B. Mandatory Consideration of Standards. We acknowledge that “the authority to make... fundamental... decisions” is perhaps the quintessential attribute of sovereignty. See National League of Cities v. Usery, 426 U. S., at 851. Indeed, having the power to make decisions and to set policy is what gives the State its sovereign nature. See Bates v. State Bar of Arizona, 433 U. S. 350, 360 (1977) (State Supreme Court speaks as sovereign because it is the “ultimate body wielding the State’s power over the practice of law”). It would follow that the ability of a state legislative (or, as here, administrative) body — which makes decisions and sets policy for the State as a whole — to consider and promulgate regulations of its choosing must be central to a State’s role in the federal system. Indeed, the 19th-century view, expressed in a well-known slavery case, was that Congress “has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it.” Kentucky v. Dennison, 24 How. 66, 107 (1861). Recent cases, however, demonstrate that this rigid and isolated statement from Kentucky v. Dennison—which suggests that the States and the Federal Government in all circumstances must be viewed as coequal sovereigns — is not representative of the law today. While this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations, cf. EPA v. Brown, 431 U. S. 99 (1977), there are instances where the Court has upheld federal statutory structures that in effect directed state decisionmakers to take or to refrain from taking certain actions. In Fry v. United States, 421 U. S. 542 (1975), for example, state executives were held restricted, with respect to state employees, to the wage and salary limitations established by the Economic Stabilization Act of 1970. Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 (1979), acknowledged a federal court’s power to enforce a treaty by compelling a state agency to “prepare” certain rules “even if state law withholds from [it] the power to do so.” Id., at 695. And certainly Testa v. Katt, supra, by declaring that “the policy of the federal Act is the prevailing policy in every state,” 330 U. S., at 393, reveals that the Federal Government has some power to enlist a branch of state government — there the judiciary — to further federal ends. In doing so, Testa clearly cut back on both the quoted language and the analysis of the Dennison case of the preceding century. Whatever all this may forebode for the future, or for the scope of federal authority in the event of a crisis of national proportions, it plainly is not necessary for the Court in this case to make a definitive choice between competing views of federal power to compel state regulatory activity. Titles I and III of PURPA require only consideration of federal standards. And if a State has no utilities commission, or simply stops regulating in the field, it need not even entertain the federal proposals. As we have noted, the commerce power permits Congress to pre-empt the States entirely in the regulation of private utilities. In a sense, then, this case is only one step beyond Hodel v. Virginia Surface Mining & Recl. Assn., supra. There, the Federal Government could have pre-empted all surface mining regulations; instead, it allowed the States to enter the field if they promulgated regulations consistent with federal standards. In the Court’s view, this raised no Tenth Amendment problem: “We fail to see why the Surface Mining Act should become constitutionally suspect simply because Congress chose to allow the States a regulatory role.” 452 U. S., at 290. “[T]here can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a regulatory program.” Id., at 288. Similarly here, Congress could have pre-empted the field, at least insofar as private rather than state activity is concerned; PURPA should not be invalid simply because, out of deference to state authority, Congress adopted a less intrusive scheme and allowed the States to continue regulating in the area on the condition that they consider

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?

Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and Alabama Power Company, et al., Appellants, v. STATE OF NEW YORK, et al (Two Cases). Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and National Coal Association, Appellants, v. STATE OF NEW YORK, et al. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and Commonwealth of Kentucky, Appellants, v. STATE OF NEW YORK, et al. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and State of Ohio, Appellants, v. STATE OF NEW YORK, et al. Nos. 85-5970, 85-5972, 85-5994, 85-6113 and 85-6114. United States Court of Appeals, District of Columbia Circuit. Argued May 15, 1986. Decided Sept. 18, 1986. David C. Shilton, Atty., U.S. Dept. of Justice, with whom F. Henry Habicht II, Asst. Atty. Gen., Michael A. McCord, Anne S. Almy, Attys., U.S. Dept. of Justice and Charles S. Carter, Asst. Gen. Counsel, U.S. E.P.A., were on brief for appellant, Lee M. Thomas, Adm’r, U.S.E.P.A., Washington, D.C. Henry V. Nickel, with whom F. William Brownell, Charles H. Knauss and Kerry A. Walsh Skelly, Washington, D.C., were on brief, for appellants Alabama Power Co., et al. and National Coal Ass’n in Nos. 85-5970, 85-5972 and 85-5994. Michael B. Barr, with whom Charles D. Ossola, Washington, D.C., Douglas O. Metz and Dale P. Vitale, Larry G. Kopelman, Columbus, Ohio, were on brief, for appellants Com. of Ky. and State of Ohio and State of West Virginia in Nos. 85-6113 and 85-6114. David R. Wooley, Albany, N.Y. with whom Howard Fox, Washington, D.C., was on brief, for appellees State of N.Y., et al. Bruce J. Terris, with whom James M. Hecker, Washington, D.C., was on brief, for appellees Her Majesty the Queen in Right of Ontario, et al. Gregory W. Sample, Augusta, Me., entered an appearance for appellee State of Maine. Paul H. Schnieder, Clark, N.J., entered an appearance for appellee State of N.J. Robert A. Whitehead and Kenneth N. Tedford, Hartford, Conn., entered appearances for appellee State of Conn. Jocelyn F. Olson, Roseville, Minn., was on brief for amicus curiae State of Minn, urging affirmance. Michael Schaefer, Indianapolis, Ind., was on brief for amicus curiae State of Ind. urging reversal. John A. Thorner and Michael K. Glenn, Washington, D.C., were on brief for amici curiae American Paper Institute, et al., urging reversal. Michael H. Holland and Earl R. Pfeffer, Washington, D.C., were on brief for amicus curiae United Mine Workers of America urging reversal. Before MIKVA and SCALIA, Circuit Judges, and WRIGHT, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge SCALIA. SCALIA, Circuit Judge: On January 13, 1981, Douglas M. Costle, at that time Administrator of the Environmental Protection Agency, sent a letter to then Secretary of State Edmund S. Muskie in which he concluded that “acid deposition is endangering public welfare in the U.S. and Canada and ... U.S. and Canadian sources contribute to the problem not only in the country where they are located but also in the neighboring country.” This appeal requires us to decide whether, under § 115 of the Clean Air Act, 42 U.S.C. § 7415 (1982), Administrator Costle’s letter legally obligated his successors to identify the states in which pollution responsible for acid deposition originates and to order those states to abate the emissions. I Subsection (a) of § 115 of the Clean Air Act, as amended by the Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685, 710 (codified at 42 U.S.C. § 7415(a) (1982)) provides: Whenever the [EPA] Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country ... the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate. Subsection (b) provides that the “formal notification” issued under subsection (a) shall operate to force each state to revise as much of its state implementation plan (SIP) as is “inadequate to prevent or eliminate the endangerment referred to in subsection (a).” (SIP’s impose controls upon individual polluters within each state sufficient to ensure that national ambient air quality standards are met.) Finally, subsection (c) makes subsections (a) and (b) applicable only if the endangered foreign country is one “which the Administrator determines has given the United States essentially the same rights with respect to the prevention and control of air pollution occurring in that country as is given that country by this section.” On January 13, 1981, only days before President Reagan took office, outgoing EPA Administrator Costle wrote to then Secretary of State Muskie to express his belief that pollution emitted in the United States was at least partially responsible for acid deposition endangering public welfare in Canada. Acid deposition — often referred to as “acid rain” — is believed to occur when certain pollutants are transported through the atmosphere and chemically altered by atmospheric processes before being deposited in either dry or wet form. Administrator Costle based his “endangerment” finding on a report issued by the International Joint Commission, concededly a “duly constituted international agency” for purpose of § 7415(a). In his letter, Administrator Costle also concluded that newly enacted legislation authorized the Canadian government to provide the United States with essentially the same rights as the United States affords Canada under the Clean Air Act, although he recognized that this “reciprocity” finding “could be changed should the U.S. conclude that future Canadian actions interpreting or implementing their legislation were not giving essentially the same rights to the U.S.” Administrator Costle sent a similar letter to Senator George Mitchell of Maine and announced his findings in a press release. No advance notice of Administrator Costle’s actions was given, no comments were solicited, and neither the letters nor the findings were published in the Federal Register. Administrator Costle’s successors at the EPA did not regard his actions as sufficient to trigger any mandatory action under § 7415. Consequently, several eastern states, national environmental groups, American citizens who own property in eastern Canada, and a Congressman sued the EPA in the United States District Court for the District of Columbia pursuant to the Clean Air Act’s “citizen suit” provision, 42 U.S.C. § 7604(a)(2), which provides that “any person may commence a civil action on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this [Act] which is not discretionary with the Administrator.” The plaintiffs argued that the Costle letters imposed upon the current EPA Administrator a duty to identify the states responsible for acid deposition and to issue SIP revision notices to them. The District Court agreed. New York v. Thomas, 613 F.Supp. 1472, 1481-86 (D.D.C. 1985). The court was not troubled by the EPA’s argument that identifying which states to notify would be time consuming, costly and perhaps impossible; the Court simply stated that “the obligation to identify the polluting states is incidental to giving formal notification.” Id. at 1484 n. *. Likewise, the Court was untroubled that Administrator Costle made his findings in private correspondence, without notice, opportunity for comment, or publication in the Federal Register. The Court remarked that the EPA frequently uses correspondence to take “formal action” under the Clean Air Act, id. at 1484 n. **, and stated that publication of the Costle findings in the Federal Register “would be inappropriate for this kind of action because it is not a rule or policy statement,” id. at 1484. The court ordered the EPA to reassess Administrator Costle’s “reciprocity” finding and, if it remained accurate, to issue SIP revision notices within 180 days thereafter. On October 22, 1985, the current EPA Administrator found that reciprocity continues to exist between the United States and Canada. The District Court then stayed its order to permit the EPA to bring this appeal. We have jurisdiction under 28 U.S.C. § 1291 (1982). II This case involves an unusual statute executed in an unexpected manner. On its face, § 7415 requires an EPA Administrator who has reason to believe in the existence of an international air pollution problem to issue SIP revision notices to “the Governor” of “the State” responsible for it. In the context of a complex, multi-source pollution problem like acid deposition, identification of the problem does not necessarily bring with it identification of the blameworthy states. Had the statute been executed as Congress probably anticipated, the present suit would not have arisen. Notice of the “endangerment” and “reciprocity” findings would have been issued at the same time as the proposed SIP revision notices, comment would have been taken on both, and both would have been published in final form in the Federal Register. Cf. National Asphalt Pavement Ass’n v. Train, 539 F.2d 775, 778 (D.C.Cir.1976) (“National Asphalt ”) (finding that particular category of stationary source was “significant contributor” to air pollution issued simultaneously with proposed standards of performance whose issuance was triggered by such finding). Because Administrator Costle chose to issue the “endangerment” and “reciprocity” findings before attempting to identify the culpable states, however, we must determine appellants’ claim that the findings legally bind the current Administrator to issue SIP notices. We conclude that, whatever the impact of Administrator Costle’s letter, it cannot serve as a basis for judicial relief. Section 551(4) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551(4) (1982), defines “rule” as “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” Clearly, an agency statement that bound subsequent EPA Administrators to issue SIP revision notices would be a statement of “future effect designed to implement ... law or policy” and thus a rule. It requires notice-and-comment procedures, therefore, unless it comes within one of the APA’s exceptions for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). The statement in the present case is none of these. The findings of “endangerment” and “reciprocity” are not an interpretative rule because they are not a “statement interpreting an existing statute or rule,” Batterton v. Marshall, 648 F.2d 694, 705 (D.C.Cir.1980); see also Cabals v. Egger, 690 F.2d 234, 237-38 (D.C. Cir.1982); Guardian Federal Savings & Loan Ass’n v. FSLIC, 589 F.2d 658, 664 (D.C.Cir.1978) (“Guardian Federal ”); Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C.Cir.1952). They are not a “general statement of policy” for (on the assumption that they bind subsequent Administrators to action) they do more than express, without the “force of law,” the EPA’s “tentative intentions for the future.” Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 38 (D.C.Cir.1974). They are not a rule of “agency organization, procedure, or practice” because they “go[] beyond formality,” Pickus v. Board of Parole, 507 F.2d 1107, 1113 (D.C.Cir.1974), and “jeopardize[ ]” Batterton, 648 F.2d at 708, or “substantially affect,” National Ass’n of Home Health Agencies v. Schweiker, 690 F.2d 932, 950 (D.C.Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1193, 75 L.Ed.2d 438 (1983), the rights and interests of private parties. The fact that it is not yet certain which particular states will receive SIP notices as a result of the findings, and which particular dischargers within those states will suffer injury, may be relevant to the question of when legal challenge to the findings would be ripe, but does not convert them into a mere general statement of policy or a procedural rule. We conclude that if Administrator Costle’s findings left the EPA no alternative but to issue SIP notices ultimately causing the termination or restriction of the operations of many utilities and manufacturers — if they forced the EPA to take direct and substantial regulatory actions-they could not be promulgated without notice-and-comment procedures. Confirmation of this view is contained in National Asphalt, which held that an EPA Clean Air Act determination similar to the findings involved here was a rule that required notice-and-comment procedures. At issue in that case was the designation of a particular industry for inclusion on the list of stationary sources which “may contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare.” 42 U.S.C. § 1857c-6(b)(l)(A) (1970). Within 120 days after such designation, the Administrator was obligated to publish proposed standards of performance for members of that industry. 42 U.S.C. § 1857c-6(b)(l)(B). We held that notice and comment was required on the designation. National Asphalt, 539 F.2d at 779 n. 2. Appellees urge that a contrary result is demanded by Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1254-56 (D.C.Cir.1980) (“Costle”), which held that a settlement modification requiring the EPA to take certain investigatory actions was not a rule. Costle, however, like the cases upon which it relied, rests upon “a classification — of investigative acts— that is set apart from either adjudication or rulemaking.” Guardian Federal, 589 F.2d at 663. No similar “investigative acts” are at issue in this case. We need not address appellants’ remaining arguments to the point that, even if the Costle findings had been published only after notice and comment, they would nevertheless be insufficient to support the present suit. It suffices to say that, because the findings were issued without notice and comment, they cannot be the basis for the judicial relief appellees seek. How and when the agency chooses to proceed to the stage of notification triggered by the findings is within the agency’s discretion and not subject to judicial compulsion. ****** We reverse and remand to the District Court with instructions to dismiss. So ordered. Both appellants and appellees labor under the misconception that the classification of an agency statement as a rule depends upon whether it substantially affects the interests of private parties. While language in past decisions of this court is somewhat misleading on the point, see Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 814-15 (D.C.Cir.1983); Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229, 1254-55 (D.C.Cir.1980), other decisions, see e.g., Batterton v. Marshall, 648 F.2d 694, 704-08 (D.C.Cir.1980); Department of Labor v. Kast Metals Corp., 744 F.2d 1145, 1150 & n. 5 (5th Cir.1984), and the APA itself make clear that the impact of an agency statement upon private parties is relevant only to whether it is the sort of rule that is a rule of procedure, see National Ass’n of Home Health Agencies v. Schweiker, 690 F.2d 932, 949 (D.C.Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1193, 75 L.Ed.2d 438 (1983), or a general statement of policy, see Cabais v. Egger, 690 F.2d 234, 237 (D.C.Cir.1982), and thus does not require notice and comment, not to whether it is a rule at all. Indeed, the APA expressly includes within the definition of rule "an agency statement ... describing the organization ... of an agency” — a statement that can rarely if ever have effect outside of the agency itself. 5 U.S.C. § 551(4).

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

Falicha ADAMS, An Infant by her Parent and Natural Guardian, Paula ADAMS, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellee. No. 272, 86-6146. United States Court of Appeals, Second Circuit. Submitted Nov. 5, 1986. Decided Dec. 17, 1986. Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, N.Y., for plaintiff-appellant. Frederick J. Scullin, Jr., U.S. Atty. for the N.D. of N.Y., Syracuse, N.Y. (Craig A. Benedict, Asst. U.S. Atty., Syracuse, N.Y., of counsel), for defendant-appellee. Before LUMBARD, OAKES and KEARSE, Circuit Judges. KEARSE, Circuit Judge: Plaintiff Paula Adams (“Adams”), suing in her own right and on behalf of her daughter Falicha Adams (“Falicha”), appeals from a final judgment entered in the United States District Court for the Northern District of New York, Howard G. Mun-son, Chief Judge, summarily dismissing her claims against defendant United States Department of Housing and Urban Development (“HUD” or the “government”), brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1982) (“FTCA”), to recover damages totaling $4,400,000 allegedly resulting from an accident to Falicha in their home, housing owned by HUD. The district court granted the government’s motion for summary judgment on the ground that plaintiff had failed to comply with certain jurisdictional prerequisites to suit under the FTCA because Adams had failed to file an administrative claim with HUD on her own behalf and because Falicha’s administrative claim failed to specify the precise amount of her claim. See 28 U.S.C. § 2675. On appeal, Adams argues that the dismissal was improper because, in the circumstances, the government had adequate notice of her claim and of the amount of Falicha’s claim. We reject these contentions and affirm (1) the dismissal of Adams’s claim in its entirety, and (2) the dismissal of Falicha’s claim to the extent that it demands more than $1,000. I. BACKGROUND According to the complaint, in March 1984, Adams and Falicha resided in Syracuse, New York, in an apartment complex owned by HUD. On March 31, 1984, a kitchen cabinet in their apartment fell from the wall and hit Falicha. She was taken to a local hospital where she was treated and released on the same day. On May 17, 1985, Thomas F. Quinlan, an attorney, wrote a letter “Re: Falicha Adams” (“Quinlan letter”) to HUD official Joseph Soto, requesting compensation for Falicha’s injuries resulting from the accident. This letter, accompanied by a narration of the circumstances surrounding the accident, a medical report, and three invoices, stated in pertinent part as follows: As a result of this incident, medical expenses were incurred which are in excess of $1,000.00. We enclose copies of bills from [two medical doctors and a radiologist] which total $893.31____ If you had public liability coverage at the time this accident occurred, it is requested that you refer the enclosed documents to the appropriate insurance carrier. We would like to negotiate a settlement of this matter and avoid the necessity of litigation, if possible. Quinlan was subsequently contacted by one of the government’s insurance carriers who offered $2,000 in settlement of the claim. Quinlan demanded $7,500, and no settlement was reached. In February 1986, Adams commenced the present action, alleging that the fall of the kitchen cabinet was the result of the government’s negligence and had caused pain and suffering and permanent physical injuries to Falicha and the loss of Falicha’s services to Adams. The complaint sought $4,000,000 in damages for Falicha plus $400,000 for Adams in her own right. HUD filed an answer and moved for summary judgment dismissing the complaint for lack of subject matter jurisdiction. HUD conceded that the Quinlan letter constituted an administrative claim on behalf of Falicha, but it argued that Adams had failed to file any administrative claim on her own behalf as required by § 2675(a), and that Falicha’s claim was not sufficiently definite in amount. After hearing oral argument, the district court agreed and granted HUD’s motion. Judgment was entered dismissing the complaint, and this appeal followed. II. DISCUSSION FTCA § 2675 provides, in pertinent part, that (a) An action shall not be instituted upon a claim against the United States for money damages for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency (b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency____ Adams argues principally (1) that she should be deemed to have filed a claim within the meaning of § 2675(a) because HUD was aware of her close relationship to Falicha, who had filed a claim, and (2) that the failure of Falicha’s administrative claim to request a sum certain should not be fatal under § 2675 since her claim was adequate to inform the government of the underlying circumstances and enable it to attempt to negotiate a settlement. We disagree with both contentions, although we conclude that the dismissal of the claim on behalf of Falicha should be vacated because her administrative claim should be viewed as requesting the sum of $1,000. A. The Dismissal of Adams’s Claim Adams filed no administrative claim of her own with HUD, and her claim in the present action was properly dismissed because § 2675(a) prohibits suit against the United States “unless the claimant shall have first presented the claim to the appropriate Federal agency.” She seeks to avoid this prohibition by arguing that her name should be read into the administrative claim filed on behalf of her daughter and that the government should be estopped from asserting the administrative filing requirement against her because it knew or should have known that she might have a claim arising out of her daughter’s accident. Neither contention has merit. In support of the contention that Adams’s name should be read into Falicha’s administrative claim, Adams relies on House v. Mine Safety Appliances Co., 573 F.2d 609, 615-16 (9th Cir.), cert. denied sub nom. Silver Dollar Mining Co. v. PVO International, Inc., 439 U.S. 862, 99 S.Ct. 182, 58 L.Ed.2d 171 (1978), overruled on other grounds, Warren v. United States Department of the Interior, 724 F.2d 776, 780 (9th Cir.1984). Her reliance is misplaced. In House, the plaintiffs had in fact filed their own administrative claim. The House court merely held that this administrative claim would not be ruled inadequate solely by reason of the fact that some of the required information was incorporated by reference from the administrative claims filed with the agency by other persons who also claimed damages as a result of the same occurrence. See 573 F.2d at 615. This holding does not help Adams, who, on her own behalf, filed nothing. Adams’s contention that the district court should have held the government es-topped from asserting the filing requirement against her borders on the frivolous. She did not allege any act of misconduct on the part of any government official, and the government was under no obligation to advise her to comply with § 2675 if she wished eventually to bring suit, see Dancy v. United States, 229 Ct.Cl. 300, 668 F.2d 1224, 1228 (1982) (even if government has actual or constructive notice of a possible claim, it has no duty to solicit an administrative claim to ensure that the jurisdictional prerequisite to suit is properly laid). Thus, a finding of estoppel would have been improper. See Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1470, 67 L.Ed.2d 685, reh’g denied, 451 U.S. 1032, 101 S.Ct. 3023, 69 L.Ed.2d 401 (1981); Chu v. Schweiker, 690 F.2d 330, 334 (2d Cir. 1982); United States v. RePass, 688 F.2d 154, 158 (2d Cir.1982). We conclude that Adams’s claim for damages for the loss of Falicha’s services was properly dismissed. B. The Dismissal of Falicha’s Claim We and other circuits have held, on various grounds, that the administrative filing prerequisites in § 2675 encompass a requirement that the request for damages in any administrative claim state a sum certain. See Keene Corp. v. United States, 700 F.2d 836, 841-42 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Erxleben v. United States, 668 F.2d 268, 271 & n. 3 (7th Cir. 1981) (per curiam); Adams v. United States, 615 F.2d 284, 291-92 n. 15 (5th Cir.), clarified on reh’g, 622 F.2d 197 (5th Cir. 1980) (per curiam); Caton v. United States, 495 F.2d 635, 638 (9th Cir.1974). The requirement that the claim state a specific dollar sum, like other requirements imposed in a § 2675, is jurisdictional and cannot be waived. See Keene Corp. v. United States, 700 F.2d at 841; Hohri v. United States, 782 F.2d 227, 245 (D.C.Cir. 1986). We reject Adams’s contention that Fali-cha’s administrative claim for an amount “in excess of $1,000.00” met the sum certain requirement with respect to a suit for $4,000,000 merely because it informed the government of the circumstances underlying the claim and enabled the government to attempt to negotiate a settlement. First, acceptance of this proposition would in effect nullify the prohibition in § 2675(b) against any suit for an amount in excess of that stated in the administrative claim, for there is no theoretical upper limit on an amount that is described only as being “in excess of” a stated dollar figure. Further, one purpose of the specificity requirement is to give the government adequate notice of the extent of the claimant’s demands. A claim mentioning the sum of $1,000 does not give notice that the claimant actually contends he suffered damages in the amount of $4,000,000. Thus, we find no merit in Adams’s argument that Falicha’s administrative claim was sufficient to permit the present suit for $4,000,000 to proceed. Nonetheless, we are not persuaded that Falicha’s claim should have been dismissed in its entirety. While a claimant’s failure to state any dollar amount in his administrative claim would give the government no notice of the extent of his claim and would, under § 2675(b), deprive the court of jurisdiction to consider his subsequent suit, we do not believe an otherwise adequate request for a specific dollar amount should be deemed fatally uncertain by reason of the claimant’s mere inclusion of the words “in excess of.” Such a request gives the government adequate notice to the extent of the stated dollar amount. Since a principal purpose of the FTCA is to promote fairness in the settlement of tort claims asserted against the United States, see Johnson ex rel. Johnson v. United States, 788 F.2d 845, 848-49 (2d Cir.1986); Erxle-ben v. United States, 668 F.2d at 273, we think it more appropriate, where the plaintiff’s administrative claim is otherwise adequate, to treat the qualifying words “in excess of” simply as surplusage, leaving the specific amount stated as the claim. See, e.g., Martinez v. United States, 728 F.2d 694, 697 (5th Cir.1984) (administrative claim for damages “in excess of $100,000” stated a claim for $100,000); Erxleben v. United States, 668 F.2d at 270, 272-73 (administrative claim alleging damages of “$149.42 presently” stated a claim in that amount). In the present case, the Quinlan letter requested damages “in excess of $1,000.00.” This should be deemed sufficiently definite to the extent of $1,000. Our decision in Keene Corp. v. United States, in which we declined to disregard qualifying language in order to hold an administrative claim sufficient, is not to the contrary. In Keene we considered the sufficiency of the plaintiff’s administrative claim against the United States for expenses incurred by the plaintiff in connection with more than 14,000 asbestos-related lawsuits filed against it; with respect to approximately 1,000 of these lawsuits, the administrative claim had requested damages “in the sum of $1,088,135 and in an additional amount yet to be ascertained.” We held that the amount stated, as qualified by the demand for “an additional amount yet to be ascertained,” was too indefinite to satisfy the sum certain requirement of § 2675. We declined to disregard the qualifying language and to deem the claim one for $1,088,135 only because the Keene claim had an additional defect: it failed to inform the United States of its potential exposure on each of the 1,000 underlying suits. See 700 F.2d at 842. The reason for declining to disregard the qualifying language in Keene does not exist here, for the government has not called to our attention any respect in which Fali-cha’s administrative claim was defective other than in its use of the “in excess of” phrase to qualify the stated $1,000 amount. We conclude that that phrase should be disregarded and that the present suit may proceed on her behalf to the extent of a demand for $1,000. CONCLUSION The judgment of the district court is affirmed insofar as it dismissed Adams’s claim and is vacated in so far as it dismissed Falicha’s claim. The matter is remanded to the district court for further proceedings not inconsistent with this opinion. No costs.

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

CLINTON FOODS, Inc. v. UNITED STATES. CLINTON FOODS, Inc. v. MOORE, United States District Judge. Nos. 6209, 6210. United States Court of Appeals Fourth Circuit. Argued March 13, 1951. Decided April 2, 1951. Stanley C. Morris, Charleston, W. Va. (Mark Candee, New York City, Charles W. Yeager and Steptoe & Johnson, all of Charleston, W. Va., on brief), for appellant and petitioner. A'. Garnett Thompson, U. S. Atty., Charleston, W. Va., and John T. Grigsby, Attorney, Department of Justice, Washing-’ ton, D. C. (James M. Mclnerney, Asst. Atty. Gen., Vincent A. Kleinfeld and Frederick W. Becker, Attorneys, Department of Justice, and Paul M. Steffy, Attorney, Federal Security Agency, all of Washington, D. C., on brief), for appellee and respondent. Before PARKER, Chief Judge, SOPER, Circuit Judge, and WATKINS, District Judge. PARKER, Chief Judge. We have here an appeal from an order denying, on the ground of lack of power, a motion to transfer a condemnation proceeding from one federal district to another and a petition for a writ of mandamus to require the judge below to exercise the power. In April 1950 the United States instituted a condemnation proceeding under the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. in the United States District Court for the Southern District of West Virginia against 630 cases of orangeade found within the District, on the ground that the orangeade was both misbranded and adulterated within the prohibition of the statute. Clinton Foods, Inc., intervened as owner in the condemnation proceeding and filed answer denying the charges of misbranding and adulteration. It subsequently made a motion that the case be transferred for trial to the District of Maryland; but this was denied by the District Judge on the ground that he had no power to order the transfer. Appeal was taken from this denial of the motion and, in addition, Clinton Foods has filed a petition in this court asking a writ of mandamus against the District Judge on the ground that he had power to grant the motion and should have exercised his discretion in passing upon it. The United States has moved to dismiss the appeal on the ground that the order denying the motion to transfer is not a final order within the meaning of the statute allowing appeals to this court. The motion to dismiss the appeal must be allowed. Appeals to this court may be taken only from final decisions, j 28 U.S.C.A. § 1291, except where appeal ' from interlocutory orders in injunction, receivership, admiralty, and patent cases is expressly authorized by statute, 28 U.S.C.A. § 1292; and an order granting or refusing the transfer of a case is clearly not a final decision nor is it an interlocutory order from which appeal is expressly granted. As said by this court in Cox v. Graves, Knight & Graves, Inc., 4 Cir., 55 F.2d 217, 218; “A final decision is one which ‘puts an end to the suit, deciding all the points in litigation between the parties, leaving nothing to be judicially determined;' with nothing remaining to be done, but to enforce by execution what has been determined.’ France & Canada S. S. Co. v. French Republic, 2 Cir., 285 F. 290, 294; U.S. v. Bighorn Sheep Co., 8 Cir., 276 F. 710.” The precise question was before us in Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 177 F.2d 360, 361, certiorari denied 338 U.S. 947, 70 S.Ct. 484, in which an appeal from an order transferring a case was dismissed, and one of the grounds of the dismissal was that the order was not final and appealable. We said in that case: “The motion to dismiss must be granted on the ground that the order transferring the case is not a final order from which an appeal lies under 28 U.S.C.A. § 1291. As was said by the Supreme Court in Arnold v. United States for use of W. B. Guimarin & Co., 263 U.S. 427, at page 434, 44 S.Ct. 144, at page 147, 68 L.Ed. 371: ‘It is well settled that a case may not be brought here by writ of error or appeal in fragments, that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction. Hohorst v. (Hamburg-American) Packet Co., 148 U.S. 262, 264, 13 S.Ct. 590, 37 L.Ed. 443; Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616; Oneida Navigation Corporation v. (W. & S.) Job (& Co.), 252 U.S. 521, 522, 40 S.Ct. 357, 64 L.Ed. 697; and cases therein cited.’ See also Western Contracting Corp. v. National Surety Corp., 4 Cir., 163 F.2d 456; Bowles v. Commercial Casualty Ins. Co., 4 Cir., 107 F.2d 169; Hyman v. McLendon, 4 Cir., 102 F.2d 189, 190; Fields v. Mut. Benefit Life Ins. Co., 4 Cir., 93 F.2d 559, 561; Lockhart v. New York Life Ins. Co., 4 Cir., 71 F.2d 684; Toomey v. Toomey, 80 U.S.App.D.C. 77, 149 F.2d 19. “The general rule is well settled that an order granting or refusing change of venue is not appealable unless expressly made so by statute. 3 C.J. p. 473 ; 4 C.J. S., Appeal and Error, § 115; 2 Am.Jur. 899-900; Shay v. Rinehart & Dennis Co., 116 W.Va. 24, 178 S.E. 272, and cases there cited. There is no federal statute expressly granting an appeal from such orders; and the federal decisions follow the general rule that they are not appeal-able. Cook v. Burnley, 11 Wall. 659, 672, 20 L.Ed. 84; Kennon v. Gilmer, 131 U.S. 22, 24, 9 S.Ct. 696, 33 L.Ed. 110. “Counsel for plaintiff rely upon decisions permitting appeals from dismissals in application o.f the principle of forum non conveniens; but these decisions are not in point. A dismissal in application of that or any other principle puts an end to the action and hence is final and appealable. An order transferring it to another district does not end but preserves it as against the running of the statute of limitations and for all other purposes.” Nothing need be added to what was said in that case. It should be noted, however, that the same view has been taken in all other Circuits where the question has been raised. See Koons v. Kaiser, 2 Cir., 187 F.2d 1023, certiorari denied 71 S.Ct. 505; Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 178 F.2d 866; Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111, 116; Shapiro v. Bonanza Hotel Co., 9 Cir., 185 F.2d 777, 779; Holdsworth v. United States, 1 Cir., 179 F.2d 933. Not only is it the law, we think, that ah order granting or refusing the transfer of a case is not appealable; but this clearly should be the law. To permit appeals as of right from such orders would delay the administration of justice, unnecessarily in most cases, and would open the door to the evils of fragmentary appeals. Appellant relies upon the decision of the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, in which was sustained the right to appeal from an order denying a motion to require plaintiff in a stockholders derivative suit to give a bond for costs; but that case is clearly not in point. “The right there asserted was in the language of the Supreme Court ‘separable from, and collateral to (the cause of) action.’ ” Shapiro v. Bonanza Hotel Co., supra. “There is absent here a ‘final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.’ ” Ford Motor Co. v. Ryan, supra [2 Cir., 182 F.2d 330]. See also Paramount Pictures v. Rodney, supra. Assuming without deciding that in a proper case this court has power to issue a writ of mandamus to require a District Judge to exercise the discretion vested in him by the statute authorizing the transfer of cases, See Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185; Paramount Pictures v. Rodney, supra, 3 Cir., 186 F.2d 111; Ford Motor Co. v. Ryan, supra, 2 Cir. 182 F.2d 329, we think it clear that this is not a case in which the writ should be granted, as the District Judge was clearly right in holding that he had no power to transfer the case to the District of Maryland. As the case could not have been brought in any other district than that in which the goods sought to be condemned were found, there was no authority to transfer it to another district under 28 U.S.C.A. § 1404(a). Subsection (b) of that section, relating to transfers to other divisions of the same district, confers no such authority. And 21 U.S.C.A. § 334(a), relating to the transfer of misbranding cases does not authorize the transfer, since condemnation is asked here on account of adulteration as well as misbranding. 28 U.S.C.A. § 1404(a) provides: “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The condemnation proceeding against the 630 cases of orangeade could not have been brought in any district other than the Southern District o.f West Virginia, for it was there that the property sought to be condemned was situate. It is well settled that a proceeding in rem against specific property is local in character and must be brought where the property is subject to seizure under process of the court. Keene v. United States, 5 Cranch 304, 3 L.Ed. 108; The Little Ann, Fed.Cas.No. 8,397, 1 Paine 40; The Octavia, Fed.Cas.No. 10,422, 1 Gall. 488; United States v. Three Hundred and Ninety-six Barrels Distilled Spirits, Fed.Cas. No. 16,502; The Idaho, D.C., 29 F. 187, 192. See also 28 U.S.C.A. § 1395(b). Since the suit for condemnation of the 630 cases of orangeade could not have been brought in any other district than that in which they were seized, it is clear that it may not be transferred from that district under the provisions of 28 U.S.C.A. § 1404(a). United States v. 23 Gross Jars etc. Enca Cream, D.C., 86 F.Supp. 824; United States v. 11 Cases etc. Ido-Pheno-Chon, D.C., 94 F.Supp. 925; United States v. 91 Packages etc. Nutrilite Food Supplement, D.C., 93 F.Supp. 763, 764. As was well said by Judge Fake in the case last cited: “There is no doubt but that the actions under consideration are civil actions, Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 959, 93 L.Ed. 1207, but are they such actions as might have been brought in any other districts than those in which they were brought? The answer is, no, because they were brought as actions in rem, and as such could be commenced only where the res was found at the time.” And we think it equally clear that the case could not have been transferred to the Maryland District under 1404(b). That section provides: “(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.” It is perfectly clear, we think, that this subsection authorizes transfer only between different divisions of the same district. The history of the subsection is thus stated in the Revisor’s notes: “Subsection (b) is based upon section 163 of Title 28, which applied only to the district of Maine. This revised subsection extends to all judicial districts and permits transfer of cases between divisions.” These notes have been said by the Supreme Court to be “obviously authoritative,” United States v. Nat. City Lines, 337 U.S. 78, 81, 69 S.Ct. 955, 959, 93 L.Ed. 1226; and they make perfectly clear, what should be reasonably clear when reason is applied to the language of the statute itself, that the effect of the subsection is to authorize the transfer of in rem actions between divisions of the district, not to any other district of the country. This is the holding in all three of the district court decisions last cited. Nothing in 21 U.S.C.A. § 334(a) authorizes the transfer asked. That section requires condemnation proceedings under the Food, Drug and Cosmetic Act for adulteration or misbranding to be brought within the district where the article is found. The proviso, which applies only to libels on account of misbranding, authorizes the limitation to a single proceeding of the proceedings which may be brought .for misbranding and the removal for trial of such proceeding. It is significant that the proviso makes no such provision where condemnation is sought on the ground of adulteration, which is ordinarily more serious than misbranding and is more often the basis of a forfeiture of the property. There is no authority in the district court to remove a case under this proviso, as distinguished from consolidating a multiplicity of cases under sec. 334 (b), where adulteration is charged. United States v. 74 cases etc. of Oysters, D.C., 55 F.Supp. 745. And the rule is not different because adulteration along with misbranding is charged in a single libel. United States v. 11 Cases etc. Ido-Pheno-Chon, D.C., 94 F.Supp. 925. For the reasons stated, the appeal will be dismissed and the petition for writ of mandamus will be denied. No. 6209, appeal dismissed. No. 6210, petition for writ of mandamus denied. . It is dear that mandamus is not likely to be attended by tbe delays and other evils inddent to fragmentary appeals, since mandamus must be promptly applied for, is granted only in the discretion of tbe court in aid of its appellate jurisdiction and will be awarded only when tbe lower court has refused to exercise its jurisdiction or bas abused its discretion witb regard thereto. Roche v. Evaporated Milk Ass’n, 318 U.S. 21, 26 et seq. 63 S.Ct. 938, 87 L.Ed. 1185. Appeal, on tbe other band, if it lies at all, lies as a matter of right and will stay tbe proceedings of the lower court while it is being prosecuted. . That section is as follows: “Any article of food, drug, device, or cosmetic that is adulterated or misbranded jvhen introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce, or which may not, under the provisions of section 844 or 855, be introduced into interstate commerce, shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found: Provided, however, That no libel for condemnation shall be instituted under this chapter, for any alleged misbranding if there is pending in any court a libel for condemnation proceeding under this chapter based upon the same alleged misbranding, and not more than one such proceeding shall be instituted if no such proceeding is so pending, except that such limitations shall not apply (1) when such misbranding has been the basis of a prior judgment in favor of the United States, in a criminal, injunction, or libel for condemnation proceeding under this chapter, or (2) when the Administrator has probable cause to believe from facts found, without hearing, by him or any ofiicer or employee of the Agency that the misbranded article is dangerous to health, or that the labeling of the misbranded article is fraudulent, or would be in a material respect misleading to the injury or damage of the purchaser or consumer. In any case where the number of libel for condemnation proceedings is limited as above provided the proceeding pending or instituted shall, on application of the claimant, seasonably made, be removed for trial to any district agreed upon by stipulation between the parties, or, in case of failure to so stipulate within a reasonable time, the claimant may apply to the court of the district in which the seizure has been made, and such court (after giving the United States attorney for such district reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, specify a district of reasonable proximity to the claimant’s principal place of business, to which the case shall be removed for trial.”

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

Harold RADERMAN, Appellant, v. Major General J. W. KAINE, Commanding General 77th United States Army Reserve Command, and Captain William Stanners, Commanding Officer, 146th General Support Company, Defendant. No. 594, Docket 33445. United States Court of Appeals Second Circuit. Submitted March 26, 1969. Decided June 5, 1969. William M. Kunstler, New York City (Kunstler & Kunstler, New York City), for appellant. Howard L. Stevens, Asst. U. S. Atty., Brooklyn, N. Y. (Vincent T. McCarthy, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y.), for appel-lee. Before WATERMAN, MOORE and FRIENDLY, Circuit Judges. MOORE, Circuit Judge: Plaintiff-appellant, Harold Raderman instituted this action against defendants-appellees, Major General J. W. Kaine, Commanding General, 77th United States Army Reserve Command and Captain William Stanners, Commanding Officer, 146th General Support Company, whereby he sought permanently to enjoin them from enforcing certain statutes and a directive issued as of July 1, 1968 which might result in plaintiff being certified to his Selective Service Board for immediate induction into the Armed Services. He also requested the convocation of a three-judge court to rule upon alleged constitutional issues. The defendants moved for an order dismissing the complaint or alternatively for summary judgment in their favor. The district court granted the motion for summary judgment, dismissing the complaint and plaintiff appeals from that order. The Facts The facts are to be found in the complaint and affidavits to which correspondence between plaintiff and the Army, plaintiff’s employer and the Army and an inter-departmental memorandum are annexed. The controversy is based upon the length of plaintiff’s hair, particularly during the period from July 15, 1968 to the present time. Some six years ago plaintiff enlisted in the Army and, instead of the two-year period of continuous service, elected to enlist in the Reserves for six years, six months of which were to be active duty, the balance by regular attendance at drills (two days a month) and by two weeks’ annual summer camp training. He finished his active duty assignment on February 20, 1964, and was eventually assigned to the 146th General Support Company. Shortly thereafter plaintiff obtained employment with a theatrical agency and in 1965 became an agent for “rock and roll” bands. Because of this position plaintiff claims that he “has worn his hair longer than conventional length” (Compl. par. 8). Until July 1, 1968 an Army directive gave individuals “the right to retain long hair” if it contributed “to the individual’s civilian livlihood.” (Weekly Bulletin 42, October 20, 1967). Subsequently this directive was superseded by the directive of July 1, 1968 which “prohibited reservists from wearing their hair as long as that then and still being worn by plaintiff.” (Compl. par. 11). During his summer training period in July 1968 plaintiff was ordered to conform to the new directive and refused to comply. The penalty was a fine of some $20 but an additional and more serious consequence was the denial of credit for attendance at drills. Again on August 10, 1968 plaintiff was advised by defendant Stanners that unless he wore his hair at a conventional length he would not receive credit for attendance and that because of such defaults he would be inducted into military service for approximately fifteen months’ active duty. Thereafter plaintiff wrote to Vice-President Humphrey and Congressman Ryan. These letters and others were unproductive of results favorable to plaintiff and on September 12, 1968 plaintiff was advised by a Major General of the Army that “Army regulations require that haircuts be well groomed, cut short or medium length, and trimmed at all times. Exceptions will not be made to this policy.” A subsequent letter from plaintiff’s employer to the Major General indicated that if. plaintiff cut his hair his value to them “would be sharply curtailed.” At this time plaintiff had accumulated thirteen unexcused absences from drills. Some absences he disputes but if his absences, resulting from no credit because of his unkempt appearance, are counted, they exceed the allowable number. The district court relied upon this court’s recent decision in Smith v. Resor, 406 F.2d 141, in which the court said: “Further, the decision as to what constitutes the correct appearance of reservists is, absent extraordinary circumstances not present here, within the jurisdiction of the Army.” Plaintiff summons to his aid seven of the first ten amendments to the Constitution, probably on the theory that with seven pegs on the board his broadly hurled arguments might attach themselves to one. But such reliance points to the fallacy of plaintiff’s position. If he asks: Does being in the Army curtail or suspend certain Constitutional rights?, the answer is unqualifiedly “yes”. Of necessity, he is forced to surrender many important rights. He arises unwillingly at an unreasonable hour at the sound of a bugle unreasonably loud. From that moment on, his freedom of choice and will ceases to exist. He acts at the command of some person — not a representative of his own choice — who gives commands to him which he does not like to obey. He is assigned to a squad and forced to associate with companions not of his selection and frequently the chores which he may be ordered to perform are of a most menial nature. Yet the armed services, their officers and their manner of discipline do serve an essential function in safeguarding the country. The need for discipline, with the attendant impairment of certain rights, is an important factor in fully discharging that duty. In listing all his constitutional impairments plaintiff forgets that it is the Constitution which authorizes the creation of an Army. Plaintiff’s and his fellow citizens’ duly elected representatives enacted the draft legislation. He knew that he could fulfill his military obligations by enlisting in the Army for two or for six years. It is the same Army — only the period of service differs. Plaintiff concedes that, had he elected the two-year period, he would have had to conform to Army Regulations including the length of his hair. However, plaintiff chose the six-year enlistment undoubtedly because it offered certain inducements. Not the least of these inducements was probably the ability to carry on various civilian activities and to avoid the raucous sounds of daily bugles and the regimented day thereafter — or even possibly foreign service. But these civilian activities were permissive, they were not constitutional rights. Plaintiff was still in the Army and subject to Army discipline. He was not a free agent. Nor could he ignore his Army enlistment. For six years he, by his own choice, imposed restrictions upon his activities and his appearance. For various reasons, the Army decided (not subject to federal court review unless the courts take over the functions of the General Staff) that the equivalent of two years’ intensive service was six months, followed by five and one-half years of bi-weekly drills and summer camp training. Plaintiff now asks that an exception as to appearance be made in his case. The Army has advised him that such an exception cannot be made. Such a decision is within the exclusive jurisdiction of the Army. How have the courts handled such requests for special treatment under allegedly special circumstances? First it is necessary to set out the statutory and regulatory framework underlying the present action. Section 673a of Title 10 authorizes the President to order to active duty any member of the Ready Reserve who is “not participating satisfactorily” in his reserve duties. Members of reserve units are exempt from induction under 50 U.S.C. App. § 456 only “so long as they continue to be such members and satisfactorily participate in scheduled drills and training periods as prescribed by the Secretary of Defense * * No definition of “satisfactory participation” is contained in either statute. [Emphasis added] Army Regulations No. 135-91, issued pursuant to the above authority, prescribes the “policies, procedures and responsibilities pertaining to satisfactory completion of the Ready Reserve service obligation.” Members “are required to participate satisfactorily in paid drill units * * * for the full period of their Ready Reserve obligation.” “Satisfactory participation” is defined in the Regulations as “Attendance at all scheduled unit training assemblies * * * unless excused by proper authority.” A member is not satisfactorily participating “unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander,” Army Regulations 135-91(5) (d) (2) [Emphasis added]. Failure to properly participate leads to loss of attendance credit and to an unexcused absence. The nature of the relief appellant seeks in this lawsuit is to have this Court become the arbiter of what constitutes “a neat and soldierly appearance,” within the meaning of the Army regulations, inform the Army that his hair is the proper length for a reservist and then order the Army not to call him up for active duty. This Court has repeatedly refused to grant relief in similar situations where men have been called to active duty because of unsatisfactory participation in training functions. Fox v. Brown, 402 F.2d 837 (2d Cir. 1968), cert. denied, 393 U.S. 1114, 89 S.Ct. 1007, 22 L.Ed.2d 120 (March 24, 1969); Winters v. United States, 281 F.Supp. 289 (E.D.N.Y.,1968), aff’d 390 F.2d 879 (2d Cir. 1968); United States v. Lonstein, 370 F.2d 318 (2d Cir. 1966). See also United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968). The rationale has been that determination of whether a reservist has fully discharged his duties was, absent extraordinary circumstances, for the Army and not for the Courts. Smith v. Resor, supra, cited by plaintiff, is not to the contrary, although the facts are somewhat similar to the present case. There a reservist was called to active duty because of five “unsatisfactory” ratings for attendance at required meetings. See Army Regulations 135-91. He had received most of these ratings because his hair was too long. However, this Court in reversing the District Court’s denial of relief remanded because the Army had failed to follow its own regulations. Weekly Bulletin 42, referred to above, was then in effect and Smith’s employer had written the required letter indicating that longer hair was necessary to his employment but his commanding officer refused to allow him to wear his hair long. More importantly, this letter was not placed in his file, as is required, but was tucked in the commanding officer’s desk, thereby rendering any in-service appeal fruitless. The Court, remanding for such an appeal, emphasized that what constituted proper or correct appearance was “within the jurisdiction of the Army,” and declined to review the validity of the decision that Smith must cut his hair to get credit for attendance at drills. This is precisely the discretionary determination which plaintiff now asks this Court to review. Discretionary power by its very nature is the power to choose among competing considerations. Although rarely is discretion absolute — even the broad discretion of governmental personnel officers in hiring and firing is limited where certain bases of action would violate the Constitution' — this Court, because of the frequent need for expedition in call-up orders has expressed serious doubt how far this principle should apply to such matters. United States ex rel. Schon-brun, supra, 403 F.2d at 374. In Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), the Supreme Court declined to review a military call-up order where an abuse of discretion may very well have been involved. The Court refused to review despite the claimed discriminatory character of the orders. At the time of the present action, Raderman had not yet been formally ordered to report for active duty, and in anticipation of such order and to bar its issuance he brought this suit. He claims that his case is distinguishable from other cases cited above, since it is “an affirmative lawsuit before an induction order” has been received, rather than a habeas application after an induction order. [Emphasis added.] But the procedural posture of such an action is irrelevant to the merits. If it were otherwise, a reservist, who could reach the courthouse steps first, by commencing an action before a call-up order issued, presumably would have greater substantive rights than one who was not as agile. Plaintiff claims that compliance with his commanding officer’s order to trim his hair would have seriously impaired his ability to earn his living. Therefore, he alleges that the military’s action has denied him “liberty” and “property” without due process of law, citing a quotation from Chief Justice Warren in Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411, 13 L.Ed.2d 1377 (1959), that “the alleged liberty is petitioner’s freedom to practice his chosen profession” * * * “free from unreasonable governmental interference.” The Greene case involved the question of whether an engineer, who for years had had security clearance and had worked on many defense projects, could be denied such clearance on the basis of confidential informant testimony without the opportunity to confront and cross-examine his accuser. The Court held that he could not be. The case is clearly distinguishable on its facts; it did not involve a reservist and Chief Justice Warren dictum must be viewed in the context of the factual situation of that case. The problem with a reservist, such as Raderman, is that he is neither a civilian nor a full-time soldier. In effect he must live in two worlds, one military and one civilian and attempt to satisfy the requirements of both. As in this case, the demands of each may conflict and, while the result may appear harsh, he made the choice some time ago to join a reserve unit. Concomitant with that decision was the knowledge that he would be subject to Army rules and regulations concerning his appearance- for six years. Certainly what constitutes a neat and soldierly appearance for a reservist within such regulations is within the discretion of the military. There is no claim here that plaintiff was treated any differently than any other reservist; in fact, he was advised by a Major General of the Army that “Exceptions will not be made to this policy.” Throughout the ages the appearance of the military has changed radically. Pictures of Visigoths and our own Civil War soldiers illustrate these changes. But past practices afford no criteria for the present. At any rate, a court is in no position to make that kind of judgment. In the present case there is clearly no action by the military which goes far beyond any rational exercise of discretion. Relief must therefore be denied. We have reviewed the other claims raised by the plaintiff and conclude that they are without merit. The judgment below is affirmed.

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

LTV ELECTROSYSTEMS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 12101. United States Court of Appeals Fourth Circuit. Argued Oct. 28, 1968. Decided March 28, 1969. Winter, Circuit Judge, dissented in part. Homer L. Deakins, Jr., Greenville, S. C. (Thompson, Ogletree & Hayns-worth, Greenville, S. C., on brief), for petitioner. Thomas E. Silfen, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Lawrence M. Joseph, Atty., N. L. R. B., on brief), for respondent. Before BRYAN, WINTER and CRAVEN, Circuit Judges. ALBERT V. BRYAN, Circuit Judge: Upon the finding of the National Labor Relations Board that LTV Elec-trosystems, Inc. was in violation of the Act, 29 U.S.C. § 151 et seq., on the several occasions to be enumerated, LTV petitioned this court to review and set aside, and the Board cross-petitioned to enforce, the Board’s compliance order 169 NLRB No. 64 (January 31, 1968). We shall review each instance separately to determine “whether on the record as a whole there is substantial evidence to support” the Board’s findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Except as may be noted, the Board agreed with the decisions of the trial examiner, and his findings and conclusions will be treated as those of the Board. The factual background is of concern. Beginning in June 1965, the charging party, the United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, began an organizing campaign in LTV’s Green-ville, S. C. plant. Throughout the period of the unfair labor practices found by the Board — July 1965 through August 1966 — pro- and anti-union sentiments were abroad in the plant. To avoid repetition, it is now recognized that the employees whose discharges or disciplining are at issue in this ease were known to be alert unionists, either organizers, committeemen or otherwise fosterers of the union. It is also recognized that union membership does not confer immunity upon employees for failure or wilful omission to meet their obligations to their employer. To be remembered, too, many of the company’s supervisors and leadmen previously had been members of the UAW. 1. Upon a representation petition, an election was held in December 1965, but the ballots were promptly impounded pending settlement of the status of “leadmen”. On April 15, 1966, the Board decided that leadmen were not supervisors. This meant that they were within the collective bargaining unit eligible to vote in the election, and protected in the exercise of organizational activities by Section 7 of the Act, 29 U.S.C. § 157. The leadmen issue was not laid to rest until on appeal the Board was upheld here on January 18, 1968. LTV Electrosystems, Inc. v. NLRB, 4 Cir., 388 F.2d 683. This resolution, we think, requires sustainment of the Board’s ruling, instantly, that without new evidence — and there was none — the company was not to relitigate the leadman question. 2. Leadman Wendell R. Chavis was discharged on September 15, 1965, for violation of the rule forbidding employees to leave their assigned work place without permission. Chavis earlier had been reminded of it, on August 20, 1965, following a trip to the first aid station in his building, solely to tout the union to the nurse. Chavis denied knowledge of the rule, and was assured by the general foreman that as he had not seen the rule, he would not be penalized for its violation. Before August 20, the trial examiner found, the restriction was generally regarded, both in common understanding and enforcement policy, to refer only to inter-building trips. On August 25, an unprovoked and abusive appellation applied by Chavis to Foreman Martin drew from him, in angry response, the prediction that Cha-vis’ continual union efforts would soon result in his discharge. When it did come later, September 15, 1965, Chavis was informed by Superintendent Hogan that it was due to his violations of the rule after prior warnings. Chavis contends that Hogan refused his request to name the times. Before the examiner, Hogan and General Foreman Ashley testified that on several occasions in September, Chavis had been observed in buildings other than his, and in areas of his building where entry without permit was verboten. These witnesses both stated that in the termination interview, Chavis was told of his infractions of the straying rule. The examiner found that there was no company rule in effect on August 20 to bar Chavis from going to the first aid station without a pass. He concluded that the caution following this visit was uncalled for. He added that the warning was prompted by the nurse’s disclosure to the company of Chavis’ union purpose rather than by his trip. Anti-union animus on the part of LTV was also evinced, the examiner inferred, in Foreman Martin’s prophecy of Chavis’ discharge. Furthermore, the examiner inferred discrimination against Chavis from the absence of other enforcement incidents of the travel ban. The examiner thereupon declared that the real motivation for Chavis’ discharge was the employer’s hostile union feelings, the allegations of infractions of the rule but pretexts. Chavis’ release was held to be a violation of Section 8(a) (3) and (1) of the Act, 29 U.S.C. 158(a) (3) and (1). Additionally the forecast expressed by Foreman Martin was found violative of 8(a) (1). The examiner reasoned that the evidence of anti-union actuation established discrimination at least prima facie. The ease thus made, he held, was not rebutted by the company. A majority of the court is unwilling to say that the Board could not draw these deductions from the evidence. The author of this •opinion cannot concur in this view, but the Board’s order will, of course, be upheld. 3. Leadman Metcalf, and Employees Cooper and Turner, were discharged for harassing Keenan, the leadman of an engine crew rivalling Metcalf’s. Described as high strung, and as an overzealous worker, Keenan was the unwilling victim of considerable badgering by fellow workers. Although the Board termed the derision and threats of bodily harm to Keenan as “horseplay”, the examiner found they had significant detrimental effect upon Keenan as well as upon the shop’s atmosphere in general. The tyrannizing was reported several times by Keenan to General Foreman Ashley and Foreman England, who in turn talked with Metcalf, Cooper and Turner, directing them to desist from the riding. Notwithstanding, it intensified, and the bullying so intimidated Keenan that he told Superintendent Hogan on September 27, 1965, that he was frightened and would not continue at the plant. With Management meeting the next morning on the grievance, the taunters were discharged in the afternoon. Included before the examiner was testimony by Foreman England, who was a union disciple before he was named an acting foreman in July 1965. He stated that Industrial Relations Supervisor Strange had said that because of his union persuasion Metcalf must be relieved. Strange’s statement was made in early September, but he did not participate in the discharge decision. The examiner weighed the evidence as preponderant on the side of a discharge for cause. He noted the leniency of the company in repeatedly admonishing Keenan's tormentors before finally expelling them. Here the Board reversed the examiner, condemning the dismissals as discriminatory and violative of Section 8(a) (3). As with Chavis, the Board saw the threats to Keenan, the ostensible rationale for the firing, as only a guise for a union-prejudiced displacement. Our review of the record compels us to reject the Board’s findings. The clear impact of the evidence is that the company was reacting solely to the incessant mocking and menacing of Keenan by the triumvirate. We decline to enforce the Board’s order of reinstatement of these employees, for the proof to sustain it is not substantial. 4. The ouster of these three was the genesis of the next unfair labor practice adjudged by the Board. It was the company’s refusal to reinstate sympathy strikers, Guevremont, Henchock, J. B. Miller, and Tedford, in the place of their replacements. After attending the morning Management session in which the decision to eliminate Metcalf, Cooper and Turner was made, Foreman England forecast to his fellows in the engine shop that termination of the three was imminent. Thereupon the others in that section pondered group reaction, such as a walkout, if the anticipated expulsions did come about. A remark by England suggesting that the employees stick together gave impetus to the proposed movement. Closely following upon the actual severances, 13 of the co-employees gathered their tools and assembled in the center of their work area. Employee Smith asked Production Manager Henry, one of the firing officials, if he would listen to the workers’ position on the disengagement of Metcalf, Cooper and Turner. Smith stated that if they were fired, his group might as well be fired also. Henry replied that if the employees felt that way they should pick up the tools they then had in hand and leave. Whereupon they checked their tools through the security officer, returning the company’s to him. Though refusing a collective interview, Henry granted to each of the protestants an individual conference. Each was told that a job was available for him at LTV, but if he left notwithstanding, he did so of his own volition. Afterwards they signed termination notices, with “personal reasons” checked on the code, and carried away their own tools. The examiner found the strike of the 13 a protected activity under Section 7, but since the discharges of the three harassers of Keenan were for cause, without more it would amount only to an economic strike, rather than one for unfair labor practices. Accordingly, he held that in these circumstances the participants would be entitled to reinstatement when they offered to return, subject to the employer’s right meanwhile to hire permanent replacements. NLRB v. Mackay Radio & Tele. Co., 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). He stressed that they were not dis-chargeable for striking. Nevertheless, said the examiner, the company had in law discharged them by the procedure adopted by the company in the terminations. In insisting upon the individual interviews, and exacting signed termination notices, the company is found to have abridged the strikers’ Section 7 right to engage in concerted and collective action, here the demonstration of disapproval of the employer’s treatment of other employees. This company conduct was held to have converted the strike from an economic to an unfair labor practice strike. The Board believed discussion of the classification of the 13 partisans’ separations was unnecessary. Since it had determined the detachments of Metcalf, Cooper and Turner to be discriminatory discharges, the Board considered the strike but a revolt against an unfair labor practice. Thus the examiner and the Board, though by different paths, met in the same conclusion: that upon application the strikers, Guevremont, Hen-chock, Miller and Tedford, were entitled to reinstatement at once, even though they had been replaced immediately upon departing the plant. The company was convicted of violating Section 8(a) (1) and (3) and ordered to reinstate the strikers at once, if they so requested. Despite our opinion that the three were fairly discharged, we agree that their champions were acting in protected concert and could not be discharged; but we do not agree that their termination amounted to a company discharge. By taking their tools with them, and going bag and baggage, the employees unequivocally indicated a purpose to end their connection with the company. Had they left their tools and merely walked off, it would be arguable that they were only protesting; but their precipitous behavior evinced a definitive, unconditional resolve to depart without a present intention to come back. It was theirs, not the employer’s decision that they leave on these terms. At all events, whether or not this deportment manifested the strikers’ decision to end their employment need not be decided. We hold only that it negates the Board’s view that the disassociation was impelled and effectuated by the company. Furthermore, discharge by the employer cannot be spelled out of the termination notice; it simply but accurately recorded the circumstances of the separations. The argument is pressed that an illegal option was given the strikers, viz., that they could either continue in their jobs or quit, as they wished. Under Section 7, the contention is urged, they had a third alternative — to suspend work in protest without relinquishing their employment contracts. This is altogether true, see NLRB v. Mackay Radio & Tele. Co., supra, 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381 (1938), but adopted here, the proposition does not accord the strikers a right to employment paramount to their successors. Even if they were not dischargeable, by their own act they became replaceable, and their stand-ins not removable at the whim of the strikers. In any event, the omission is of only academic significance. It was general knowledge that an abundance of similar labor was available; it was plain to the company and to the disaffected group, whether strikers or quitters, that they would be immediately and permanently replaced. Thus the company’s characterization of the alternatives open to the dissidents — remaining or voluntarily leaving — was a correct, if inartful, statement of the practical situation. The order that Guevremont, Henchoek, J. B. Miller and Tedford be reinstated in subordination of their supplanters is not justified in the evidence. Whether they are still company employees is not the question before us; we only hold there was not substantial evidence to prove that they were discharged by the company. 5. Unfair labor practices, bottomed on a no-solicitation rule, were laid to the company in dealing with Leadman Thompson, Acting Leadman Vaughn, and Employee K. Miller. NLRB’s General Counsel asserted May 12, 1966 as the promulgation date of the rule; the company argued it effective since June 1965. Several employees admitted they had long known of such a ban during company time. The examiner fixed the origin of the regulation as “long prior to May 1966”. Leadman Thompson was discharged October 20, 1965, following his solicitation during working hours of a recent employee, Newman, for union membership. In September or early October, 1965, Thompson’s attention was personally directed to the rule essentially prohibiting leadmen, who the company was then urging were in fact supervisors, from union enlistment during, before or after work. On the premise that he was the equivalent of a supervisor, Thompson was explicitly forbidden to treat with the union membership and allies at all. Since, as mentioned earlier, the concept of a management-rationale to warrant this broad taboo could not prevail, neither can a discharge for its violation stand. The restraint was thus an unfair labor practice, a breach of Section 8(a) (3) and (1). The company’s ignorance of the directive’s invalidity was no excuse. NLRB v. Industrial Cotton Mills, 4 Cir., 208 F.2d 87, 90 (1953), cert. denied 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086. However, Thompson was fired for solicitation during work hours. The proscription appeared in the impermissibly broad injunction just reviewed, which Thompson had been advised was the only current restriction. The examiner found that Thompson on or after October 18, 1965 had “subjected [a new employee] openly, during working time, to repeated, intensive solicitations to join the Union”. The examiner declared the rule was not binding even as a solicitation bar because of its excessive scope and, ergo, Thompson could not be a traverser of an invalid rule. The upshot was that the employer was held disobedient of Section 8(a) (3) and (1), as discouraging union leanings, and was directed to reinstate Thompson with indemnity for any lost wages. The majority of this court is of the view to uphold this judgment. The author of this opinion cannot accept the reasoning of the examiner, and would not enforce the order of restoration, because the interdiction of working-time solicitation was too well known not to be seen as implied in the broader rule. Acting Leadman Vaughn was fired May 12, 1966 for a second breach of the no-solicitation rule; for the first he had been reproved the day before. He admitted familiarity with the rule. In the termination interview, Vaughn was told he “had done it again”, and let go without the requested further illumination of the accusation. Before the examiner, LTV produced evidence of several on-the-job solicitations preceding May 11, but none afterwards. The examiner felt he had no evidence to warrant a finding of a post-warning transgression by Vaughn. It is fair to assume that the caution served to save him from an ex post facto discharge. If no subsequent offendings were proved —and we cannot say any were established — the discharge is not sustainable. Hence, the Board’s holding that the company had affronted Section 8(a) (3) and (1), and the order for Vaughn’s reac-ceptanee and reimbursement should be honored. Employee K. Miller went to work for LTV on February 2, 1966 and was discharged on August 8. His first foreman was Casadei, after the middle of July it was Robinson. The former talked with Miller about his interest in unionization and Miller disclosed a conviction of its advantages. On or about June 12, at the instance of Casadei, Miller signed a receipt of a notice warning him against disobedience of the no-solicitation rule. The examiner, contrary to the contention of the Board’s General Counsel, found the evidence did not establish that the company was “discriminatorily motivated” in giving the warning notice. While Miller was under the supervision of Robinson, he received a performance rating for the period of February 2 to August 1. It was made by Casadei. Although graded as excellent in his work, Miller was described as “difficult” and mention was included of the warning incident. Dissatisfied with this appraisal and asking for an explanation, Miller was told by Casadei that he was considered “unloyal to the company” because of his union preference. The dispraise meant a downgrading of Miller, unfavorably touching upon possible merit wage increases. The examiner found it a violation of Section 8(a) (3) and (1) of the Act, but omitted to provide Miller a remedy for the depressed scoring. In correction, the Board ordered him reimbursed for the earnings he lost by reason of it. As the examiner and 'the Board were not without substantial evidence to support these conclusions, we enforce the Board’s order. Board order not enforced in respect to Metcalf, Cooper, Turner, Guevremont, Henchock, J. B. Miller, and Tedford; order enforced in remaining instances.

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"?

In the Matter of MET-L-WOOD CORPORATION, Debtor. Appeal of Constantine John GEKAS, Trustee. Constantine John GEKAS, Trustee, Plaintiff-Appellant, v. Frederick L. PIPIN, et al., Defendants-Appellees. Nos. 87-3004, 88-1051. United States Court of Appeals, Seventh Circuit. Argued Sept. 16, 1988. Decided Nov. 8, 1988. Constantine John Gekas, Harvitt & Ge-kas, Ltd., Chicago, Ill., for plaintiff-appellant. Matthew F. Kennedy, Cotsirilos Crowley Stephenson Tighe & Streicker, Jeffrey C. Blumenthal, Foran, Wiss & Schultz, William Lynch Schaller, Francis D. Morrissey, William J. Linklater, Andrew J. Boling, Kathleen M. Dedmon, Baker & McKenzie, Chicago, Ill., for defendants-appellees. Barry L. Kroll, Joseph M. Vallowe, C. Barry Montgomery, Williams & Montgomery, Ltd., Chicago, Ill., for Coffield, Ungar-etti, Harris & Slavin. Before CUMMINGS, POSNER, and MANION, Circuit Judges. POSNER, Circuit Judge. Constantine Gekas, the trustee in bankruptcy of Met-L-Wood Corporation, made sedulous but unavailing efforts in the bankruptcy court and the district court to set aside a judicial sale of the bankrupt’s bulk assets, made before his appointment as trustee. He renews his efforts in this court. A subsidiary of a corporation owned by Frederick Pipin, Met-L-Wood manufactured laminated panels, including the patented “Sea-Lok” door for truck trailers, which is designed to prevent leaks. In 1984 Met-L-Wood began going downhill, and on November 27 and 28 of that year its two principal secured creditors informed it that it was in default and that they would conduct a public foreclosure sale on December 10. On November 28, Met-L-Wood admitted it could not cure the default and agreed to so notify its unsecured creditors, which it did by letters mailed the same day. The forthcoming sale was advertised in the Chicago Tribune and the Wall Street Journal on December 2 and 5, while on December 3 Met-L-Wood sent letters to at least 40 of its creditors announcing the date, time, and place of the sale. On December 6, having learned that a group of its unsecured creditors were planning to petition it into bankruptcy and seek to liquidate it, Met-L-Wood filed a petition for protection under Chapter 11. The petition was assigned that day (by lot) to Bankruptcy Judge McCormick. Upon the filing of the petition, the automatic-stay provision of 11 U.S.C. § 362 had kicked in, preventing the secured creditors from proceeding with the scheduled foreclosure sale. Yet Met-L-Wood did not want to block the sale (why it wanted to beat the unsecured creditors to the bankruptcy court is therefore unclear). So the next day, Met-L-Wood, together with its principal secured creditors, asked Judge McCormick to allow them to solicit bids at the previously scheduled sale. The motion was hand-delivered to unsecured creditors holding approximately $1.8 million of Met-L-Wood’s total unsecured debt of $2.2 million. Judge McCormick scheduled a hearing on the motion for the morning of December 10. That morning Met-L-Wood's counsel, together with the principal secured creditors and a lawyer representing a committee of unsecured creditors who held a total of $1 million of the company’s unsecured debt, appeared before Judge McCormick and urged him to grant the motion, which he did. Although the record is unclear on the point, presumably he was acting under the authority of 11 U.S.C. § 363(b)(1), which authorizes the trustee in bankruptcy (or, as was the case on December 10, the debtor in possession) to dispose of property of the bankrupt estate, other than in the ordinary course of business, “after notice and a hearing.” Bids were solicited, received, and opened the same morning. The high bidder was Thomas Smith, acting as an undisclosed agent of Frederick Pipin. He bid $800,000 for the corporation’s bulk assets plus its accounts receivable. Gerald Thompson bid $425,000 for the bulk assets' alone. The unsecured creditors represented at the sale preferred Thompson’s bid because they hoped that collection of the accounts receivable would yield enough money to leave something for them over and above the amount owed the secured creditors. The secured creditors agreed to the sale to Thompson and the next day urged Judge McCormick to approve it and he did. The accounts receivable when collected yielded a total of $800,000, but this amount plus the $425,000 that had been paid by Thompson for the bulk assets was barely sufficient to satisfy even the secured creditors’ claims. The unsecured creditors were left to divide $100,000. On June 26, 1985, six months after Judge McCormick had approved the sale, Met-L-Wood’s Chapter 11 case was converted to a Chapter 7 liquidation on motion of the creditors’ committee, which consisted of the eight unsecured creditors who had appeared through counsel at the hearings before Judge McCormick plus one additional unsecured creditor. Judge McCormick appointed an interim trustee pending the creditors’ election of a permanent one. They elected Gekas on August 6. Gekas investigated the circumstances surrounding the judicial sale and eventually decided that there had been skullduggery of two kinds. First, Judge McCormick, who in an unrelated case had been reprimanded for an ex parte contact with a firm appearing before him (see In re Wisconsin Steel Corp., 48 B.R. 753 (N.D.Ill.1985); see also In re X-Cel, Inc., 61 B.R. 691 (N.D.Ill.1986)), had, Gekas believed, agreed to the December 10 hearing on the ex parte urging of a law firm representing Met-L-Wood (the Coffield firm — oddly, not the firm that had represented Met-L-Wood in the bankruptcy proceeding). Gekas’s second charge was that the bidding had been rigged, in a scheme orchestrated by the Coffield firm to bail out Pipin and the secured creditors and leave the unsecured creditors out in the cold: Smith was a shill for Pipin, and his bid was phony because Pipin didn’t have $800,000 with which to make good on it if it was accepted. How this might have helped Pipin and the secured creditors is unclear, but maybe the idea is that Smith’s bid deterred others from bidding. Thompson, Gekas charged, was also in cahoots with Pipin — he was planning to sell him back the Sea-Lok operation, the only profitable part of Met-L-Wood’s business. The unsecured creditors had insufficient notice and so weren’t able to make their own bid or arrange for independent bidders. (We emphasize that all this is Gekas’s version of the events; it is not established truth.) After the sale, Thompson did sell Pipin the Sea-Lok operation, for $120,000, and he in turn granted a security interest in the operation to Met-L-Wood’s two principal secured creditors. Armed with what he believed to be compelling evidence of the fraudulent character of the judicial sale, Gekas filed suit in federal district court against the corporation, Pipin, the Coffield firm, the two secured creditors, Thompson, and others, on April 25, 1986. The suit charged the defendants with having defrauded the unsecured creditors in violation of the RICO statute, other statutes, and Illinois common law. Three months later Gekas filed a motion in the bankruptcy court under Fed. R.Civ.P. 60(b) (which Bankruptcy Rule 9024 makes applicable to bankruptcy proceedings, with immaterial exceptions) to vacate the judgment confirming the judicial sale of Met-L-Wood’s bulk assets. The bankruptcy judge dismissed the motion, noting that motions to vacate a judgment on grounds of fraud (Rule 60(b)(3)) must be filed within one year of the judgment. Ge-kas appealed, and the district judge affirmed. 80 B.R. 912 (N.D.Ill.1987). A different district judge dismissed the fraud suit. The ground for that dismissal was collateral estoppel, based on the order confirming the judicial sale. Gekas appeals both from the dismissal of his fraud suit by the district court and from the district court’s affirmance of the bankruptcy judge’s dismissal of Gekas’s Rule 60(b) motion. Section 363 is a new provision of the Bankruptcy Code of 1978. Before then the bankruptcy court itself was conceived to be the seller when property of the bankrupt estate was sold. These judicial sales were subject to special rules and principles many of which are no longer pertinent. Under section 363, the trustee or debtor in possession is the seller and the bankruptcy court gets involved only through the requirement of notice and a hearing. Actually the statute fails to define the court’s role clearly, but the practice is that the bankruptcy judge, following the hearing, will issue an order authorizing the sale (if he decides the property should indeed be sold), and after the sale is made he will issue a second order, confirming the sale. That was the procedure followed by Judge McCormick in this case. The confirmation order is appealable as a final order under 28 U.S.C. § 158(d). In re Sax, 796 F.2d 994, 996-97 (7th Cir.1986); In re Allen, 816 F.2d 325, 327 (7th Cir.1987). No appeal from Judge McCormick’s order was taken, however; and after the time for appeal had lapsed, the order could not be attacked in a new lawsuit brought by a party to the sale proceeding or by a successor to that party or by anyone else so far identified with such a party as to be classified as being in privity with him; such a suit would be barred by res judicata. The only other remedy would be a motion to vacate the judgment under Rule 60(b). Cf. Henry v. Farmer City State Bank, 808 F.2d 1228, 1232 (7th Cir.1986). The unsecured creditors who appeared at the two hearings before Judge McCormick and urged him first to allow bids for Met-L-Wood’s assets to be solicited and then to approve Thompson’s bid were parties to the sale proceeding. They are therefore barred by res judicata from bringing a lawsuit to nullify the sale. (Bringing the suit under RICO could make no difference. RICO is many things, but it is not an exception to res judicata. Harris Trust & Savings Bank v. Ellis, 810 F.2d 700, 705-06 (7th Cir.1987).) If they comprised all the unsecured creditors, then Gekas’s suit, too, would clearly be barred. The trustee in bankruptcy is the creditors’ representative, Koch Refining v. Farmers Union Central Exchange, Inc., 831 F.2d 1339, 1348-49 (7th Cir.1987), and therefore a judgment for or against the trustee is res judicata in a suit on the same claim by a creditor, provided no conflict of interest made the trustee’s representation inadequate. See, e.g., United States v. Schnick, 66 B.R. 491, 494-95 (W.D.Mo.1986). The applicability of res judicata is even clearer in the converse situation — our situation— where the first suit is by the creditor and the second by the trustee. What the principal has surrendered, the agent cannot claim. See In re Kendall Grove Joint Venture, 59 B.R. 407, 409-10 (S.D.Fla.1986). Gekas’s contrary argument, asserting a metaphysical separation between the trustee and the creditors whom he represents, is frivolous; it would imply that no judicial order could be made binding in a bankruptcy case before a trustee was appointed — even though a trustee is usually not appointed in Chapter 11 cases, and was not in this one until the creditors decided to convert the proceeding from reorganization to liquidation. Creditors cannot exempt themselves from the consequences of their freely taken actions in a bankruptcy proceeding by the expedient of electing a trustee six months after the bankrupt’s assets have been sold. But not all the unsecured creditors were represented at the hearing that resulted in the sale to Thompson. Indeed, not all even had notice of the bankruptcy. Although all had notice before the petition for bankruptcy was filed that there was to be a foreclosure sale on December 10, the requirements for notice under section 363(b) were not met. See Bankruptcy Rules 2002, 6004(a). The trustee is their representative as well as the representative of the unsecured creditors who were parties to the sale proceeding, so insofar as Gekas’s fraud suit is on their behalf too— that is, on behalf of nonparties to the sale proceeding — it is not barred by res judicata. But it is barred. A proceeding under section 363 is an in rem proceeding. It transfers property rights, and property rights are rights good against the world, not just against parties to a judgment or persons with notice of the proceeding. We are not just invoking legal theories sanctified by Latin tags. The determining considerations are pragmatic. Often, once a petition for bankruptcy is filed, keeping the bankrupt in operation is difficult. Suppliers and customers, fearing interruption of service, may shy away and creditors be reluctant to advance fresh credit, even though such credit carries a high priority in bankruptcy. The bankrupt may be shunned like a leper. Because of these possible consequences of bankruptcy, it may make sense — not least from the creditors’ standpoint — to shift the bankrupt’s assets to another owner as quickly as possible, so that the business can continue in other hands than the bankrupt’s, free of the stigma and uncertainty of bankruptcy. That is what the creditors told Judge McCormick should be done with the assets of Met-L-Wood. They thought that those assets and therefore their claims against them would be more valuable if the assets were sold, and sold pronto. He agreed. (On the issue when resort to section 363(b) is proper — a question on which the statute itself is silent — see In re Lionel Corp., 722 F.2d 1063 (2d Cir.1983).) Even Gekas does not question the propriety of selling the assets, although he questions the terms of the sale. But to act swiftly and decisively required that the sale of the assets be made and approved without waiting for every last unsecured creditor to be consulted. All of the unsecured creditors had been notified of the foreclosure sale; most (by volume of credit extended) had received notice of the bankruptcy; a committee of the principal unsecured creditors had participated actively through counsel in the two hearings before Judge McCormick and urged him to approve Thompson’s bid. Since unsecured creditors are treated equally in bankruptcy (with certain exceptions, not pertinent here, for creditors who have received voidable preferences), it was a fair inference that if Thompson’s bid was in the best interest of the unsecured creditors represented before Judge McCormick, it was in the best interest of the remaining unsecured creditors as well. A sale under section 363(b) that fails to comply with the notice or hearing requirements of the statute and the applicable bankruptcy rules is invalid and may be set aside on appeal. But it is not void. This is shown by the fact that even a reversal on appeal of the order authorizing or confirming the sale will not affect the sale’s validity if the buyer was acting in good faith and the sale had not been stayed pending appeal. 11 U.S.C. § 363(m). That provision is not applicable here, because the purchaser (Thompson) and everyone else involved in the sale (except the representative of the unsecured creditors!) is charged with fraud. But it expresses a highly relevant concern with the importance of finality in judicial sales in bankruptcy. See also In re Sax, supra, 796 F.2d at 998. Gekas’s suit does not seek to rescind the sale. But by seeking heavy damages from the seller, the purchaser, the purchaser’s purchaser (Pipin), a law firm involved in the transaction, and the secured creditors that benefited from the sale, the suit is a thinly disguised collateral attack on the judgment confirming the sale. This may be done only by the route provided for collateral attacks on judgments. After the time for appeal had run, the validity of the sale was established, even against nonparties to the sale proceeding. Gekas’s suit was properly dismissed; let us now consider whether his motion under Rule 60(b) to revoke the bankruptcy judge’s approval of the sale was properly denied. There is a preliminary question. Long before there was a Rule 60(b), bankruptcy courts exercised what they conceived to be, and what in fact has traditionally been regarded as, an inherent judicial power to reconsider their judgments within a reasonable time, including judgments confirming sales. See 4B Collier on Bankruptcy K 70.98[17], at pp. 1183-94 (14th ed. 1978). Now that there is a Rule 60(b), expressly applicable to bankruptcy as we have seen, the inherent power seems otiose; and although the cases continue to refer to it, they define it in terms of Rule 60(b). See, e.g., In re Chung King, Inc., 753 F.2d 547, 549-50 (7th Cir.1985). As a natural development from those cases, as well from the text of Bankruptcy Rule 9024, which applies Rule 60(b) to bankruptcy proceedings, we hold that confirmed sales — which are final judicial orders — can be set aside only under Rule 60(b). We conclude that the old inherent power to reconsider bankruptcy orders has been merged into the rule. If a judgment is procured by fraud, it can be set aside under Rule 60(b)(3). But that route is barred to Gekas by the one-year limitation that Rule 60(b) places on motions under subsection (3). Gekas appeals to the catch-all provision, subsection (6) (“any other reason justifying relief from the operation of the judgment”), which has no time limit. We have italicized the word in subsection (6) that defeats Gekas’s claim. You cannot use the catch-all provision to get around the express one-year limitation on motions based on fraud in procuring a judgment. Otherwise the limitation would be nugatory. Rule 60(b) has, however, an express exception for “fraud upon the court.” It has been, for the most part, interpreted narrowly. See, e.g., In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th Cir.1985). Otherwise it would duplicate Rule 60(b)(3) — which is itself narrowly construed, see, e.g., Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 832-33 (7th Cir.1985). Therefore the courts have held that, other than in patent cases, where the “fraud upon the court” doctrine has been generously interpreted because Patent Office proceedings are ex parte and patent monopolies may have consequences far beyond the parties to a particular infringement proceeding, see, e.g., Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); USM Corp. v. SPS Technologies, Inc., 694 F.2d 505, 509 (7th Cir.1982), the fraud must involve corruption of the judicial process itself. In re Whitney-Forbes, Inc., supra, 770 F.2d at 698; 11 Wright & Miller, Federal Practice and Procedure § 2870, at p. 255 (1973). To bring himself within this narrow exception to the one-year limitation in Rule 60(b) Gekas relies heavily on the alleged misconduct by Judge McCormick in participating in an ex parte contact. If there was such a contact, however, all it concerned (so far as we have been given any reason to believe) was the scheduling of a hearing. Given the rush that everyone was in and the fact that bankruptcy proceedings are normally not adversary and are handled less formally than ordinary lawsuits, it is hard to see any but a technical violation of the rules that forbid (with limited exceptions not applicable here) ex parte contacts with bankruptcy judges. See, e.g., Bankr.R. 9003. The fact that Judge McCormick was found to have committed a serious infraction of those rules in an unrelated case cannot bridge the gap and demonstrate fraud in this case. Moreover, as we have stressed recently, a disciplinary violation calls for discipline, not nullification of judicial proceedings, see Bash v. Firstmark Standard Life Ins. Co., 861 F.2d 159, 161, 162 (7th Cir.1988); for nullification there must be prejudice to a party, and none has been shown here. As for the allegations concerning the shill bidder and the secret plan to channel the Sea-Lok assets to Pipin (really one allegation — Pipin’s secret involvement), we have difficulty understanding what the fuss is about. It is commonplace, and involves no impropriety, for the debtor himself to bid at a foreclosure sale. See 4B Collier, supra, 1170.98 at p. 1170. Of course it would be improper for Pipin, controlling Met-L-Wood as he did, to use his control to walk off with its principal assets for a song, shucking off the unsecured creditors in the process. That would violate the fiduciary obligation that Pipin, controlling the debtor in possession, owed Met-L-Wood’s creditors. See In re Beck Industries, Inc., 605 F.2d 624, 635-37 (2d Cir.1979); cf. In re Russo, 762 F.2d 239 (2d Cir.1985); In re Transcontinental Energy Corp., 683 F.2d 326, 328 (9th Cir.1982). This would be fraud against the creditors, to be sure, but we do not see how it could be thought fraud against the court without erasing the distinction between two concepts that Rule 60(b) carefully separates. Gekas’s Rule 60(b) motion was properly dismissed as untimely. The result may seem a harsh one; it may seem to illustrate the penchant of courts (as some would see it) to work injustice through technicalities. But insistence on tight deadlines is not always the sign of a Prussian soul. Unless bankruptcy sales are final when made, rather than subject to being ripped open years later, high prices will not be offered for the assets of bankrupt firms — and the principal losers (pun intended) will be unsecured creditors. The unsecured creditors in this case had plenty of time to repent themselves of having consented to — indeed urged — approval of Thompson’s bid. With the assets sold, there could be no hope of reorganizing Met-L-Wood; nevertheless the creditors waited six months before asking the bankruptcy judge to convert the proceeding to a liquidation and appoint an interim trustee, which the judge promptly did. The interim trustee did nothing. Gekas, though elected early in August, did not file his Rule 60(b) motion till the following July, almost a year later and months after he had completed his investigation. And, thorough though that investigation undoubtedly was, it has turned up nothing but rumor and innuendo. The fact that Pipin wanted to buy back some of the assets of his bankrupt enterprise is not discreditable, and there is no indication that the bulk assets were worth more than Thompson bid for them. In fact, Thompson outbid a third bidder who Gekas concedes was disinterested. The foreclosure sale, of which all unsecured creditors were notified, had been widely advertised for December 10; there is no indication that any of the defendants did anything to impede or discourage the bidding that day. The circumstances merely confirm the importance of finality in bankruptcy sales. 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?

STRACHAN v. NISBET. No. 10699. United States Court of Appeals Seventh Circuit Feb. 10, 1953. Rehearing Denied March 23, 1953. J. Edward Jones, Chicago, Ill., for appellant. Donald Hamilton, G. J. Devanna and Edwin Hamilton, Chicago, Ill., for appellee. Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges. FINNEGAN, Circuit Judge. This appeal is from a judgment entered by the District Court on June 16, 1952, dismissing plaintiff’s suit to set aside a will and for other relief, for want of jurisdiction. Diversity of citizenship is claimed. On November 30, 1951, plaintiff, a citizen of Michigan, filed his complaint in the District Court against defendant, a citizen of Illinois, in her individual capacity and as executrix of the Estate of George M. Strachan, deceased, (1) to set aside the will of George M. Strachan; (2) to set aside a document purporting to be his last will, which was not probated; (3) to set aside certain contracts and changes of beneficiaries of insurance policies and pension funds; and (4) for an accounting between plaintiff and defendant individually, alleging all of said documents were executed by decedent through fraud and undue influence on the part of defendant. Plaintiff further alleged that George M. Strachan died on January 11, 1951, leaving plaintiff and nineteen other heirs, naming them, seventeen of them citizens and residents of Michigan, one of Ohio and one of California, as his only heirs at law; that the will of said Strachan was admitted to probate in the Probate Court of Cook County, Illinois, on April 6, 1951; and that defendant was named executrix. In his original complaint filed within the nine month period, provided in the Illinois Probate Act of 1939, within which to file a bill to contest a will, plaintiff failed to mention any jurisdictional amount involved, as required by sec. 1332 of Title 28 U.S.C.A. None of the other heirs at law were made parties to the suit. Defendant filed a motion to strike and dismiss the complaint because no jurisdictional amount was shown therein, and also for failure to make the other nineteen heirs parties to the suit, as required by sec. 91, art. 7, chap. 3, § 243, of Ill.Rev.Stat., 1951 ed. On April 4, 1952, while the motion to dismiss the original complaint was pending, and more than nine months after the will in question was admitted to probate, plaintiff filed his first amended complaint wherein he alleged that the other heirs at law were not willing to join as plaintiffs and that he was filing the first amended complaint on behalf of himself and the other heirs as a class, and that the amount in controversy was in’ excess of $3,000. The remaining allegations of the amended complaint were substantially the same as those in the original complaint. In his first amended complaint, plaintiff alleges that “he sues herein for himself individually and as an heir of the said George M. Strachan and on behalf of and as the duly authorized representative of all the heirs of the said George M. Strach-an, deceased, and the cause of action herein set forth grew out of the same transaction or occurrence set forth or attempted to be set forth in the original complaint filed in this case. That the plaintiff herein and in the original complaint filed herein, sued on behalf of all the heirs of George M. Strachan on their expressed preference that he sue on their behalf rather than that they join as plaintiffs in the suit and because of the impossibility of bringing heirs not willing to join into the case by process.” Defendant filed a motion to dismiss the first amended complaint for want of jurisdiction, setting forth, among other grounds for the motion, the following:- (1) “That plaintiff’s complaint is a suit brought under the statutes of the State of Illinois, giving heirs the right to contest the will of a testator within nine months from its admission to probate; that plaintiff had sought to make the other heirs parties plaintiff by representation after the nine month statutory period when their right to, file suit on their own behalf is lost, thereby seeking to circumvent the statutory prohibition on behalf of said heirs. (2) “That the court is without jurisdiction under the statute of Illinois to entertain an action by the heirs of George M. Strachan sought to be made parties plaintiff by representation for the reason that said first amended complaint shows on its face that the action on behalf of said heirs is brought more than nine months after the will of George M. Strachan was admitted to probate. (3) “That plaintiff, Stanley Strachan, cannot make the other heirs of George M. Strachan parties plaintiff by representation as a class in that -said amended complaint shows on its face they are not in the same class nor are their rights identical, with his; their right to contest the will of George M. Strachan having ceased ón the expiration of the nine month period allowed by the statute; and in that they are limited in number and should have been made parties to the suit; and in that the statute under which the contest is brought, specifically provides that they be made actual parties to the suit; and in that a will contest is not an equity suit where the doctrine of representation by class is permissible. (4) “That by his first amended complaint, plaintiff’s action is in effect a new and different cause of action and comes after nine months from the date of the admission of the will to probate, therefore the court has no jurisdiction thereof.” While this, motion was pending, plaintiff tendered to the court his second amended .complaint wherein for the first time the other heirs sought to join as co-plaintiffs and plaintiff asked leave to file the second amended complaint. The allegations in the second amended complaint are substantially the same as in the original and first amended complaints, except for the allegation that the net value of the estate of the decedent was $9,000. Defendant moved to dismiss the tendered second amended complaint because the court lacked jurisdiction. Neither the second amended complaint nor the motion to dismiss were actually filed in court. They were submitted to the court an'd plaintiff announced that he intended to stand on his second amended complaint. On June 16, 1952, the court heard the motions of both parties, denied plaintiff’s motion for leave to file his second amended complaint and dismissed the cause for want of jurisdiction. This appeal followed. On August 19, 1952, the District Court ordered that plaintiff’s second amended complaint and defendant’s motion to strike and dismiss be included in the record. In a suit filed in the District Court to contest a will on the grounds of diversity of citizenship, there must first be a compliance with sec. 1332, title 28 U.S. C.A. relating to diversity of citizenship and jurisdictional amount. After such compliance the District Court has the same jurisdiction under the state statute as does the state court in a similar action. Under the doctrine of Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, a federal court exercising jurisdiction over a case grounded on diversity of citizenship must apply the pertinent State law. That jurisdiction is a limited jurisdiction as provided by the state statute. A proceeding to set aside a will admitted to probate in Illinois at the time this suit was filed was governed by the Probate Act of 1939, art. 7, chap. 3, Ill.Rev.Stats., 1951 ed. Sec. 242(90) of said Act provides in part: “Right to Contest. Time. * * * “Within nine months after the ad.mission to probate of a domestic or foreign will in the probate court of any county of this State, any interested person may file a complaint in the circuit court of the county in which the will was admitted to probate to contest the validity of the will.” Section (91) provides: “Parties to Suit. “The executor under the will or administrator with the will annexed and all heirs, legatees, and devisees of the testator shall be made parties to the suit.” Sec. 90 is a limitation of a right provided by law and is not a statute of limitation. The Supreme Court of Illinois has so held in many cases. In O’Brien v. Bonfield, 220 Ill. 219-223, 77 N.E. 167, 168, in passing on the question the court said: “We have held in a great many cases that this provision is not a statute of limitations, but is merely a grant of jurisdiction to the circuit court (Sinnet v. Bowman, 151 111. 146, 37 N.E. 885), and that the jurisdiction conferred can only be exercised in the mode and under the limitation prescribed a in the statute, and that the time limited for the filing of the bill to contest a will is jurisdictional and must be strictly construed.” In Masin v. Bassford, 381 Ill. 569, 46 N.E. 2d 366, an action brought under sec. 90 of the Probate Act of 1939, the conservator of an insane person filed the suit after the nine month period provided by the statute. The court dismissed the action for want of jurisdiction. Plaintiff in that suit claimed the constitutional rights of his ward were violated when the legislature in.passing the Probate Act of 1939 failed to provide to his insane ward the same rights which the statute of wills had theretofore provided; namely, the saving clause to infants and persons non compos mentis, of the nine month period after removal of their respective disabilities as contained in prior statutes. The court held that the right to contest the will was purely statutory and that the legislature had the power to condition the right or even take it away completely. In O’Brien v. Bonfield, 220 Ill. 219-222, 77 N.E. 167, the court said: “A court of equity has no inherent jurisdiction to entertain a bill for the , contest of a will. Aside from statutory enactments this jurisdiction is entirely wanting. It therefore follows that any jurisdiction which it may have is by authority of the statute and must be construed in accordance with the terms therein employed.” And in Havill v. Havill, 332 Ill. 11-14, 163 N.E. 428, 429, we find the following statement by the court: “The right to contest a will is not cognizable by a court of chancery in the exercise of its ordinary equitable jurisdiction. The right is purely statutory. Section 7 of the Statute of Wills created the right, which exists only by virtue of the , statute, to be exercised only in the time prescribed and by the persons authorized by the statute.” The right to contest a will since 1939 is controlled by Probate Act of 1939, sec. 90, Ill.Rev.Stat.1951. Sec. 92 provides that an issue at law should be made whether or not the instrument produced is the will of the testator. The rule is well established by the Supreme Court that the contest of a will is strictly a statutory and not an ordinary proceeding ' in Chancery. The cause is tried upon an issue at law whether or not the instrument produced is the will of the testator. Innis v. Mueller, 403 Ill. 11, 84 N.E.2d 837, and Wiik v. Hagen, Extrx., 410 Ill. 158, 101 N.E.2d 585. Since a bill to contest a will is a statutory proceeding in which the jurisdiction of the court is limited to the question of the validity of the will, allegations of the bill relating to the ownership of other property are immaterial and issue cannot be joined thereon. Kelly v. Kelly, 285 Ill. 72, 120 N.E. 515. The Probate Act of 1939 follows that rule. Sec. 5 of the Act in part provides: “Matters not germane to the distinctive purpose of the proceeding shall not be introduced by joinder, counterclaim, or otherwise.” Ill.Rev.Stat.1951, c. 3, § 155. In his second amended complaint plaintiff sought to join the other nineteen heirs as parties, after the statutory period for contesting the will had ■ run against them by several months. It is firmly established by a long line of decisions in. Illinois that the limitation of time within which to file a ‘bill to contest a will applies to the right of action itself and that right exists subject to the time limitation, and ceases to exist unless exercised within the nine month period after the will is admitted to probate. On the question of joining parties as co-plaintiffs after the time limitation set qut in the statute, the Illinois Supreme Court in McCreery v. Bartholf, 305 Ill. 325-326, 137 N.E. 242, 243, said: “The sole question presented for decision is whether appellant, by his failure to act before the expiration of the statutory period to contest the will, lost his right to conduct the contest in his own name.” Holding that after the statutory period the right to contest a will ceased to exist, the court continued: “The fact that Louis McCreery filed his bill and made the. appellant a party defendant did not prevent the appellant from filing a bill in his own behalf. Furthermore * * * appellant had the right, with the consent of the original complainant, to have the bill amended so as to make him a cocom-plainant within the statutory period of one year. Fifty days intervened between the filing of the bill and the expiration of this period, but no action whatever was taken by appellant. After the expiration of the period within which a bill to contest a will could be filed, the circuit court properly denied the motion of appellant to be made a party complainant.” Plaintiff relies on the case of Stephens v. Collison, 249 Ill. 225, 94 N.E. 664. That action was governed by sec. 7 of the Wills Act. The Wills Act made no provision as to who should be made defendants as does the Probate Act of 1939. The Stephens case is not in point. The Probate Act of 1939, sec. 91, requires that all heirs, etc., be made parties to the suit. In a suit to contest a will where that section has not been complied with, the District Court lacked jurisdiction to entertain the complaint. Time and again the Supreme Court óf Illinois has passed upon the power of courts in will contests. It has uniformly held that the jurisdiction granted under the statute must be exercised in the mode and manner therein prescribed. O’Brien v. Bonfield, 220 Ill. 219, 77 N.E. 167; Masin v. Bassford, 381 Ill. 569, 46 N.E.2d 366. Under the 1939 Probate Act, jurisdiction of the court attaches when the bill is filed within nine months after the will has been admitted to probate and the persons named in sec. 91 have been made or become parties to the suit within that time limit. In his original complaint, plaintiff failed to allege the required jurisdictional amount under sec. 1332, title 28 U.S.C.A., and he failed to make the other nineteen heirs parties to the suit as required by sec. 91 of the Illinois Probate Act of 1939. In his first amended complaint, filed April 4; 1952, being two days short of a year after the date the will was admitted to probate, he sought to make the other nineteen heirs parties to the suit by representing them as a class. More than thirteen months after the will was admitted to probate the other nineteen heirs attempted to join the suit as co-plaintiffs, in the second amended complaint tendered to the court. It is apparent from the face of the first amended complaint that the right to contest the will in question was lost to the nineteen heirs at law not made parties or not joining as parties during the nine month period mentioned in the state statute. The Supreme Court of Illinois has held that the right to contest a will is purely statutory. The statute designates persons to be made parties to the contest; it fixes the time within which the suit must be filed. The statute is to be strictly construed. Plaintiff cites many cases not in point, and many from other jurisdictions with which we need not concern ourselves as the law of Illinois is very plain, definite and settled. The District Court had no jurisdiction of this suit and its judgment is Affirmed.

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

CABRIOLET PORSCHE AUDI, INC., a Florida Corporation d/b/a Cabriolet Honda Car, Plaintiff-Appellee, Cross-Appellant, v. AMERICAN HONDA MOTOR CO., INC., A California Corporation, Defendant-Appellant, Cross-Appellee. No. 84-5698. United States Court of Appeals, Eleventh Circuit. Oct. 15, 1985. Stanley J. Krieger, Washington,' D.C., Paul R. Marcus, Miami, Fla., Michael B. Rosenberg, Burlington, Vt., for plaintiff-ap-pellee, cross-appellant. J. Robert McClure, Jr., Tallahassee, Fla., William C. Owen, amicus curiae, Florida Automobile Dealers Assn. Roland N. Smoot, Lyon & Lyon, Professional Corps., J. Donald McCarthy, Los An-geles, Cal., for defendant-appellant, cross-appellee. Before JAMES C. HILL and ANDERSON, Circuit Judges, and GARZA, Senior Circuit Judge. Honorable Reynaldo G. Garza, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. JAMES C. HILL, Circuit Judge: Appellant/defendant American Honda Motor Company, Inc. (“American Honda”) appeals the district court’s judgment that American Honda breached its contracts with appellee/plaintiff Cabriolet Porsche Audi, Inc. (“Cabriolet”) and violated the federal Automobile Dealers’ Day In Court Act and various Florida statutes regulating the activities of automobile distributors, importers, and manufacturers engaged in business in Florida. The district court awarded Cabriolet $4,706,645 damages. Both parties appeal the amount of damages. We reverse, holding that the district court’s decisions that American Honda breached its contracts with Cabriolet and violated the Florida and federal statutes are based on clearly erroneous findings of fact and/or improperly drawn conclusions of law. Judgment shall be entered in favor of American Honda. Since we dispose of this appeal on these grounds, we do not reach the parties’ attacks on the amount of damages awarded. FACTS The basic disagreement between American Honda and Cabriolet is quite simple to describe. Cabriolet, a Honda dealer which sold Honda cars, parts and accessories to the public from September 1979 to May 1980, and American Honda, the exclusive distributor of Honda products to dealers in the United States, disagree over the number of cars to which Cabriolet was entitled during the Spring of 1979 and onward, when, on account of the OPEC oil embargo and resulting oil crisis, demand for the small, fuel-efficient Honda car was high. Cabriolet claims it was entitled to all the cars it requested, or, at least, more than it received from American Honda. American Honda claims it sent Cabriolet all the cars to which it was entitled under American Honda’s allocation system. When Cabriolet pursued the matter in court, the district court agreed with Cabriolet’s position. While this outlines the basic dispute, it is not enough to “see the forest” in this case. Because we reverse the district court’s decision primarily on the ground that many of the court’s crucial factual findings are clearly erroneous, it is necessary to “see the trees” as well. We begin our more detailed examination of the relevant facts by identifying in greater detail the parties to this action. The Parties. American Honda is a wholly owned subsidiary of the Japanese company Honda Motor Company, Limited. It is the exclusive importer and distributor of Honda automobiles throughout the United States, and receives all its cars from its Japanese parent. Cabriolet is a Florida corporation with its principal place of business in Miami. Mr. Frank Diaz is Cabriolet’s president and sole stockholder. At all times relevant to this case, Cabriolet was a dual, or non-exclusive, dealership, selling Porsches, Audis and Ferraris, in addition to Hondas. The Cabriolet dealership was established in June of 1978 when Cabriolet agreed to purchase the assets of the De Maria Porsche-Audi-Honda-Ferrari dealership in Miami. The agreement included purchase of De Maria’s Honda dealership, contingent upon American Honda’s approval of Cabriolet as an authorized Honda dealer. Cabriolet filed an application with American Honda seeking such authorization. American Honda approved the application and provided Cabriolet with its standard dealership agreement, which Cabriolet signed. Although the agreement is dated October 13, 1978, the evidence shows that Cabriolet commenced its Honda operations in mid-September 1978. Cabriolet retained Mr. Frank Petrucci, who had been the general manager at De Maria, as the general manager at Cabriolet. Cabriolet also hired Mr. Snay, who had been De Maria’s sales manager, as its sales manager. Cabriolet’s Operations during the Soft Period. During Cabriolet’s first several months as a Honda dealer (fall ’78 and winter ’79), the market for Honda cars was “soft” (i.e. supply exceeded demand). During this period, Cabriolet was not an effective marketer of Honda cars. For example, between September and November, Cabriolet received 109 cars, but sold only forty-four. This marketing problem was, in large part, on account of Cabriolet’s policy to seek a high gross profit per car. Even though this was a “soft” period, Cabriolet refused to discount the cars below the manufacturer’s suggested retail price. Honda representatives suggested that Cabriolet change its pricing policy and sell more cars. Cabriolet refused to do so. At all times, Cabriolet had an inventory of Honda cars. However, in December of 1978, Cabriolet began to receive fewer cars than it did in its first few months of operation. For example, it did not receive any cars in December 1978 and January 1979. The Hot Period. By Spring of 1979, demand for the fuel efficient Honda ear had increased, primarily on account of the Arab oil embargo. Consequently, Cabriolet’s sales record improved, with Cabriolet meeting nearly 100% of American Honda’s sales objectives for the dealership. Indeed, during this “hot” period, Cabriolet, and competing dealers, were preselling all their cars. Cabriolet requested cars from American Honda to meet its presell commitments and general sales expectations. While American Honda sent Cabriolet cars and Cabriolet at all times had an inventory, it did not send Cabriolet all the cars it requested. Thus, Cabriolet had to return deposits it had accepted, cancel contracts it had made, and refuse to accept contracts on a number of vehicles. Throughout this hot period, Cabriolet complained to American Honda about American Honda’s failure to send all the cars it requested. American Honda took the position then (and has done so throughout this litigation) that Cabriolet was receiving all the cars to which it was entitled under American Honda’s allocation system. The Allocation System. Evidence introduced at trial indicates that American Honda had, at all times relevant to this lawsuit, an allocation system known as the “Day’s Supply System.” Under this system, dealerships are divided into a number of zones on the basis of geographical location. Each zone is given a certain number of the cars imported from Japan. The cars are then distributed within each zone by comparing all the dealers in the zone as to their rate of sales and their inventory for a given period, typically forty-four days immediately preceding an allocation. Then, through a mathematical formula, cars are allocated to the dealers so that each dealer will have approximately the same number of day’s supply of cars. In its brief, appellant provides the following description of the system, which is fully supported by the record: The first element of the day’s supply system is the dealer’s sales rate. American Honda uses a set period of time immediately preceding an allocation to establish a sales rate. The precise period may have changed from time to time, but in general, it has been 44 business days____ Thus, if in the 44 business days immediately preceding an allocation a dealer has sold 44 cars, he has a travel rate of one..... American Honda tracks a dealer’s sales through his ‘warranty cards.’ For the dealer to receive credit for a sale of a car, he must send the warranty card for that car to American Honda____ The next element of the day’s supply system is a dealer’s inventory. American Honda knows what it has shipped to a dealer and by the receipt of the warranty cards knows what the dealer has sold. This allows American Honda to determine the total number of ears available to the dealer for sale____ The total availability divided by the travel rate gives to American Honda each dealer’s day’s supply.... To maximize an allocation, it is necessary for a dealer, at the time an allocation is made, to minimize his inventory____ To bring the dealers in a given zone up to the same day’s supply, American Honda determines the total number of cars available for allocation and divides it by the travel rate for all the dealers involved. Thus, if there are a thousand cars available for allocation, and the dealers in the involved area have been selling at a rate of 20 cars per day, the ‘warehouse’ or ‘port’ has a 50-day supply of cars. A dealer with a travel rate of one car per day and an inventory of 20 cars, i.e., a 20-day supply, will be entitled to 30 additional cars, i.e., the warehouse day’s supply of 50 minus the dealer’s day’s supply of 20 multiplied by the dealer’s travel rate. As the above explanation of the system indicates, how many cars a dealer gets depends on how many cars it sells and how quickly it sells them. Also the system is a competitive one, pitting dealers in each zone against one another for their shares of the available cars. A dealer selling more cars faster than other dealers will get a higher percentage of cars in the future than will others in the zone. While the mathematical formula and other details of the system are rather complicated, all a dealer need know to understand the system is that the more cars a dealer sells and the faster it sells them, the more cars that dealer will receive. For all practical purposes, that is the bottom line of the system. The record indicates that American Honda explained to Cabriolet, when it complained about not receiving all the cars it requested, that the reason it did not get more cars (or all the cars it requested) during the “hot” period was that it had not sold enough cars, fast enough, during the “soft” period when its future allocation rate was being set. For example, Cabriolet’s allocation rate for March and April 1979, the beginning of the hot period, was based on its sales in the preceding forty-four days which included January and February when the market was “soft” and Cabriolet was not selling many cars because of its pricing policy.' Fifteen Percent Holdback and Exclusive Facility. American Honda did inform Cabriolet that one way a dealer could obtain more cars was to provide an exclusive Honda sales facility. This offer of extra cars in return for an exclusive facility is another aspect of the Honda allocation system. Under the system, American Honda allocates to its dealers all the cars it expects to receive from a shipment from Japan, except fifteen percent. This fifteen percent “holdback” is used to: (1) replace cars damaged on the trip from Japan; (2) allocate to new dealers, which do not yet have sales rates upon which to base allocations; and (3) provide extra cars to dealers that establish exclusive Honda facilities. Cabriolet would not establish an exclusive facility unless American Honda would guarantee to give Cabriolet a specific number of extra cars. American Honda would not so commit.’ No agreement was reached. Sale of Cabriolet’s Honda Dealership. On October 31, 1979, Cabriolet’s dealership agreement with American Honda expired by its own terms. Although it was not renewed in writing, Honda continued to send cars to Cabriolet. In 1980, Mr. Diaz sold Cabriolet’s Honda dealership to Mr. Braman. Cabriolet continued to be a Porsche and Audi dealer. This lawsuit. Cabriolet brought this suit against American Honda, claiming, essentially, that American Honda’s failure to give it all the cars it requested amounted to breaches of the dealership agreement, and violations of state and federal law. The district court agreed, based primarily on its conclusions that American Honda adopted an unreasonable allocation system and embarked upon a path designed to force Cabriolet to establish an exclusive facility or go out of business. DISCUSSION Specifically, the district court found that American Honda breached three agreements between itself and Cabriolet: (1) the dealership agreement; (2) the “Minimum Requirements, Planning Volume” document attached to the dealership agreement; and (3) an oral agreement to deliver sixty cars. The court also found that American Honda breached the federal Automobile Dealers’ Day in Court Act and various Florida statutes. The district court’s findings of these breaches and violations are based, for the most part, on two actions allegedly taken by American Honda. First, American Honda’s adoption and implementation of its allocation system. Second, American Honda’s efforts to encourage Cabriolet to establish an exclusive Honda facility. Thus, initially, we focus on these two actions on the part of American Honda, determining that neither action amounts to or involves any breach of contract or statutory violation. We then turn to consider those findings of breaches and violations based on other conduct, again concluding there were no breaches or statutory violations. In reviewing the district court’s decision on these matters, we are mindful of the scope of review. While we are free to review the trial court’s legal conclusions de novo, we are bound by the trial court’s factual findings unless they are “clearly erroneous.” The Supreme Court has recently elaborated on the meaning of this standard in Anderson v. City of Bessemer City, N.C., — U.S. -, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985): Although the meaning of the phrase ‘clearly erroneous’ is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles... is that ‘a finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). In regard to findings based on determinations involving the credibility of witnesses, the Anderson court explained, When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bears so heavily on the listener’s understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. -, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See e.g., United States v. United States Gypsum Co., supra, 333 U.S. at 396, 68 S.Ct. at 542. But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 433 (CA2 1945); Orvis v. Higgins, supra [180 F.2d 537] at 539-40 [ (CA2 1950)]. Anderson, 105 S.Ct. at 1512-13. I. AMERICAN HONDA’S ALLOCATION SYSTEM Initially, it is important to clarify what is and is not at issue in regard to American Honda’s allocation system. First, whether American Honda in fact had an allocation system is not at issue. We note that in one of its findings the district court states that American Honda did not have an allocation system at any time relevant to this case. • American Honda and Cabriolet spend much time arguing over the correctness of this finding. However, this finding is not at issue, since the district court never relied upon it in finding a breach of contract or a statutory violation. Indeed, the court based all such conclusions upon its other findings that there was a system, and the adoption, implementation and content of the system were not permitted under the dealership agreement. Further, there is no real disagreement as to the content of American Honda’s allocation system. Both parties agree that the system is the day’s supply system described in the “FACTS” section of this opinion. Finally, there is no doubt that Cabriolet received every car to which it was entitled under the day’s supply system. The trial court never found to the contrary, and Cabriolet has not raised the issue on appeal. What is at issue here is whether American Honda’s allocation system — its content, adoption, or implementation — breached the dealership agreement. The district court found it breached Article VII, section 2, which provides, Dealer shall furnish its orders for Honda Automobiles and Honda Automobile Parts to Distributor on forms supplied by Distributor at such time or times and for such period or periods as Distributor reasonably may require from time to time, and all such orders may be accepted by Distributor in whole or as to any part thereof. All orders of Dealer shall be binding upon it unless and until they are rejected in writing by Distributor, provided, however, that in the event of a partial acceptance by Distributor, Dealer shall no longer be bound with respect to the parts of the order not accepted. In the event of shortage or restricted supply, Dealer gives Distributor the right to allocate such supply in any reasonable manner Distributor deems fit in any geographical market area. (emphasis added). The court found that Honda breached this provision for three reasons: (1) it established an allocation system at a time of no shortage or restricted supply (Breach No. 1); (2) it then applied this unlawfully established allocation system to an actual shortage period and refused to modify or alter the allocation rate, thereby making American Honda’s “manner of allocation” as applied to Cabriolet “unreasonable” (Breach No. 2); and (3) the system in general was not a reasonable method of allocation (Breach No. 3). A. Breach No. 1: Establishment of Allocation Rate at Time of No Shortage or Restricted Supply The district court’s conclusion isbased on a factual finding that is clearly erroneous. That finding is that the period between September 1978, when Cabriolet became a Honda dealer, and Spring 1979 was not a period of shortage or restricted supply. While the evidence may well support the finding regarding a shortage, it does not with regard to restricted supply. The record shows that during this period American Honda could obtain only those cars its Japanese owner chose to send. American Honda’s supply was not unlimited and must be considered “restricted.” Even if during the period prior to the spring of 1979 there were no shortage or restricted supply, nothing in the dealership agreement prohibits American Honda from adopting and implementing an allocation system in times of surplus or nonrestricted supply. That the contract expressly authorizes adoption of an allocation system in times of shortage or restricted supply does not mean one is forbidden at all other times. Indeed, the agreement expressly grants Honda with discretion as to the allocation of cars, stating “Dealer shall furnish its orders for Honda Automobiles... to Distributor on forms supplied by Distributor at such time or times and for such period or periods as Distributor reasonably may require from time to time, and all such orders may be accepted by Distributor in whole or as to any part thereof” (emphasis added). B. Breach No. 2: Application of System to Shortage Period The district court found, essentially, that it was unreasonable (and thus a contract breach) to base allocation to Cabriolet 'during the hot period on the sales and travel rates it established during the period of nonshortage. The court took the position that American Honda should have assisted Cabriolet during the hot period by modifying the allocation system and giving it additional cars. We disagree. Given the nature of American Honda’s allocation system, we find nothing unreasonable in basing Cabriolet’s allocation rate for the hot period on the sales rate it established during the soft period. American Honda’s allocation system is a competitive one. Dealers in each zone are competing with each other for the limited number of cars sent from Japan. That an automobile distributor, naturally interested in selling as many cars as possible and encouraging its dealers to do so, should adopt such a competitive system is not unreasonable. Nor is it unreasonable that, under this competitive system, dealers that undertake to sell a maximum number of cars during a soft period are rewarded with more cars during the hot period than are dealers, like Cabriolet, that for their own reasons do not undertake to sell many cars. There may have been something unreasonable about this system had Cabriolet not known or been told that its failure to sell aggressively during the soft period would affect its allocation in the future. However, as will be made clear in subsequent discussion, the record does not support such a finding here. See infra pages 1204-1206. We also note that Cabriolet was not at any time a dealership in trouble. Cabriolet at all times made a profit on its Honda business. Further, Cabriolet at all times had an inventory. Thus, this is not a case where an otherwise reasonable, competitive system has led to the ruination of a dealership, thereby putting into question the reasonableness of the system in application. C. Breach No. 3: System Unreasonable in General The district court found that the allocation system, as applied in general, is not a reasonable method of allocation. The court gave five reasons for reaching this conclusion. Each of these reasons is either irrelevant or based on clearly erroneous factual findings. The court’s first reason is that the allocation system was never disclosed to the dealers including Cabriolet. According to the court, Cabriolet was never advised of the fifteen percent holdback policy or that, if it did not sell cars, subsequent allocations would be diminished. That Cabriolet may not have been told about the fifteen percent holdback is irrelevant. The relevant information, at least for purposes of this appeal, is information about how a dealer could obtain ears under the allocation system. Knowledge of the fifteen percent holdback policy is not necessary for that. What is necessary is knowledge that a dealer can obtain “extra” cars from American Honda (from the fifteen percent pool) if the dealer is a new dealer or establishes an exclusive facility. The evidence shows, and Cabriolet concedes (indeed, asserts), that it was told by American Honda that it could obtain additional cars if it provided an exclusive facility. Thus, Cabriolet was knowledgeable of all it needed to know regarding the fifteen percent pool. The district court’s finding that the manner in which the other eighty-five percent of the cars were allocated was never disclosed to the dealers, including Cabriolet, is clearly erroneous. Representatives of every dealership, other than Cabriolet, who testified were aware of the allocation system and knew that under the system the more cars a dealer sells and the faster it sells them, the more cars the dealer receives. Further, any finding that Cabriolet had not been told about and was not aware of the allocation system and its basic workings is not supported by the evidence. The district court relied on the testimony of three witnesses to reach this conclusion: Mr. Diaz; Mr. Petrucci; and Mr. Snay. Mr. Diaz, the president of Cabriolet, testified that he was not informed of, or otherwise aware of, the allocation system. However, the evidence shows that Mr. Diaz relied quite heavily on Mr. Petrucci, Cabriolet’s general manager, to take care of allocation matters. Thus, it was not essential to the operation of Cabriolet that Mr. Diaz knew of the system, as long as Mr. Petrucci knew of it. Mr. Petrucci, who also had been the general manager at the De Maria dealership, and Mr. Kenneth Snay, who was De Maria’s sales manager and then joined Cabriolet as its sales manager, testified that they were never told of the allocation system during the time they worked for the De Maria dealership (pre-September 1978). They never testified that they were not told of the system during the time they worked for Cabriolet. The uncontradicted evidence indicates that they were informed of the system while at Cabriolet. Automobile Dealer Contact Reports, prepared by Mr. Wayne Ferens, American Honda’s District Sales Manager for South Florida, indicate that twice in March of 1979 Mr. Ferens “reviewed the allocation system” with representatives from Cabriolet, and Mr. Snay in particular. Further, documentary evidence indicates that Mr. Snay and Mr. Petrucci were informed of the allocation system long before March 1979; indeed, during the De Maria dealership. Automobile Dealer Contact Reports, prepared by Mr. Ferens and his predecessor Mr. Finley, indicate that they had explained the basics of the allocation system (i.e., to get cars, a dealer must sell cars) to Mr. Petrucci in particular a number of times in 1977 and 1978. The testimony of Mr. Petrucci and Mr. Snay indicates they were well acquainted with the workings of the system. While Mr. Petrucci did not know all the details of the system, he indicates in his testimony that he was aware that allotments were based on “how many cars are on a ship,... how many warranty cards you [the dealer] have sent into the office in New Jersey, how many cars you might have in invento-ry____” Petrucci Deposition at 6. He testified, he was aware that it was important 'to send warranty cards in promptly “because they reflected your sales.” Trial Record, vol. 10, at 241. Mr. Snay testified that, while at Cabriolet, Mr. Ferens had reminded him “how important it is to send in the warranty registrations, so when the cars do become available and they [i.e., American Honda] analyze it, the inventory of the dealer body, they [American Honda] would try to replenish the inventory.” Id. at 327. Mr. Snay also testified that he had talked to Mr. Ferens about Cabriolet’s pricing policy, which had a negative effect on sales during the soft period, and that Mr. Ferens had suggested Cabriolet “[t]ake a little less profit and blow the cars out of there.” Id. at 371. In his deposition, Mr. Snay testified that he understood at the time (and now) that “blowing the cars out” would increase the number of cars Cabriolet would receive, stating “[i]f you blow X amount of units, you have the possibility of altering the amount of cars that would be returned to you or sold to you from American Honda.” Snay Deposition at 44-45. See also Trial Record, vol. 10, at 372-73. We find neither the documentary evidence nor the testimony of Petrucci, Snay, and Diaz to support the trial court’s finding. To the extent portions of the testimony of Petrucci's, Snay and Diaz may indicate Cabriolet lacked knowledge of or was not told about the allocation system, we find their testimony to be so contradicted by documentary evidence (i.e., the contact reports), so internally inconsistent (i.e., Pe-trucci’s and Snay’s own testimony indicating their awareness of the system), and so implausible that a “reasonable factfinder would not credit it.” For these reasons, the trial court’s finding, resting as it does-on any such testimony, is clearly erroneous. Anderson, 105 S.Ct. at 1512-13. The court's second reason for finding the allocation system unreasonable is that the system was not written down. We find this lack of a writing to be irrelevant, particularly since the evidence indicates that American Honda’s allocation system was orally communicated to Cabriolet and that Cabriolet and other Honda dealers were aware of the system. The third reason given by the court is that the system is incapable of being fully described in the same manner by any two witnesses. This is a mischaraeterization of the evidence. The witnesses’ descriptions may have differed as to some details regarding the system, but all testified that the thrust of the system was the more cars a dealer sells and the faster a dealer sells them, the more cars that dealer will receive from American Honda. The fourth reason given was that the system could be easily subverted by dealers who received inside information as to allocation and registered unsold cars as sold. Though neither the district court nor Cabriolet point to any evidence in the record supporting this finding, it appears from our own review that there is some such evidence. However, there is also evidence that American Honda was taking reasonable steps to prevent and detect such subversion. The evidence reveals, for example, that Honda took steps to intensify its auditing of dealerships in certain regions to discover any false reporting of sales. An allocation system is not unreasonable simply because it is possible to subvert it, as long as reasonable steps are taken to prevent and detect such subversion. The evidence indicates that American Honda took such steps. The fifth reason given was that under the system distribution of the fifteen percent holdback was left to the whim and caprice of lower management personnel. This finding is clearly erroneous. The evidence shows that cars in the fifteen percent holdback pool were used for the following three purposes: (1) to replace cars damaged on the trip from Japan; (2) to establish an inventory for new dealerships, which do not yet have sales rates; and (3) to provide extra cars to dealers that establish exclusive facilities for Honda cars. The evidence shows that American Honda employees had to account for the cars distributed from the fifteen percent pool. The trial court’s sixth reason for finding the system “unreasonable” was that it was not uniformly applied, as certain dealers were favored. The district court found, for example, that Honda South, one of Cabriolet’s competitors, was not treated consistently with the “sell more/get more” allocation system, because “despite selling 100 cars fewer in 1978 than Honda South received from American Honda, that dealership still received almost triple the number of cars in 1979 that it received in 1978.” The court also pointed out that Mr. Bra-man, who purchased Cabriolet’s Honda dealership, sold only 345 cars out of the 424 received in 1980, yet received 897 cars in 1981 and 1385 cars in 1982. Further, the court found that, had Honda distributed cars during later 1978 pursuant to its purported system, Cabriolet would have received no more than forty-four cars in October and November 1978, rather than the seventy-eight it received. The record does not support the district court’s finding that Honda’s system was not uniformly applied. The record clearly indicates that, under American Honda’s allocation system, one cannot determine from simply the number of cars a dealer sells in a given year, how many cars that dealer is entitled to receive the next year. Allocations are made on the basis of forty-four days periods, not years. Further, to determine the number of cars to be allocated, other factors have to be examined in addition to number of cars sold. These other factors include: (1) how many cars other dealers in the zone had sold during the relevant period and how quickly they had sold them; (2) how many cars were sent from Japan during the relevant period; (3) whether the dealer provided an exclusive Honda facility; (4) whether the dealership was a new one. The trial judge did not remark on any of these factors. He looked only at the number of cars sold during a given year and the number received. Such evidence and reasoning are insufficient to sustain the trial court’s finding that American Honda’s allocation system was not uniformly applied. Further, we do not find, and Cabriolet does not point to, any evidence in the record that would support the trial court’s finding. Indeed, the evidence we do find in the record indicates that the cars were allocated in accordance with the allocation system. At trial, Mr. Esserman, owner of Honda South, explained that the reason he received so many cars in 1979 was that he sold substantially more cars in 1979 than in 1978. He explained that he had just opened the dealership in 1978 and did not yet know the product very well. In 1979, his knowledge of the product increased and, consequently, his sales record improved. The record indicates that Mr. Bra-man had agreed to establish an exclusive facility. Under American Honda’s allocation system, this entitled him to extra cars. In regard to Cabriolet,, the evidence shows that it was a new, recently opened dealership in October and November 1978, and thus under the allocation system entitled to be provided cars without strict reference to any prior sales rate. Also, Cabriolet would have been entitled to receive credit for some of the sales made by the De Maria dealership. For, though Cabriolet did not sign the Honda dealership agreement until October 13, 1978, it did start operating the De Maria dealership in September. Finally, the court found that the allocation system was unreasonable because American Honda used the cars in fifteen percent holdback pool as “weapon[s] to coerce or attempt to coerce certain dealers like Cabriolet into making extra-contractual concessions.” As is shown under heading “II” of this opinion, Honda never coerced Cabriolet to make any extra-contractual concessions. At the very most, the record shows that American Honda responded to Cabriolet’s requests for more cars by suggesting that Cabriolet could obtain extra cars if it established an exclusive facility. Nor does the record indicate that American Honda used the cars in the fifteen percent holdback pool to coerce any other Honda dealer. To support its finding, the district court

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

Darryl R. FREY v. Charles M. PANZA, Jr. Darryl R. FREY and Darryl R. Frey, Inc. v. HAMPTON TOWNSHIP, Darryl R. Frey and Darryl R. Frey, Inc., Appellants. No. 79-2463. United States Court of Appeals, Third Circuit. Argued March 19, 1980. Decided June 9, 1980. W. Thomas Laffey, Jr. (argued), Maurice A. Nernberg, Jr., Nernberg & Laffey, Pittsburgh, Pa., for appellants. John Wesley Jordan, IV (argued), Thomson, Rhodes & Grigsby, Pittsburgh, Pa., Robert R. Graff, Mohan & Graff, Pittsburgh, Pa., for appellees. Before SEITZ, Chief Judge, and WEIS and HIGGINBOTHAM, Circuit Judges. OPINION OF THE COURT Per Curiam: The issue in this appeal is whether a municipal official may make warrantless inspections of houses under construction to assure compliance with the building code. The district court, after balancing the minimal privacy expectations of the builder and the significant governmental interest in safe construction, concluded that the inspections were permissible. We agree and affirm. Plaintiff constructs residential houses in western Pennsylvania communities, including Hampton Township, Allegheny County. In the last several years he has had difficulties with defendant Charles Panza, the building inspector for the Township, who has issued citations alleging various infractions of the building code, and on occasion has shut down jobs. In a suit filed in the district court, plaintiff asserted violations of his fourth and fourteenth amendment rights and sought an injunction as well as damages. The district court dismissed the complaint, but on appeal we remanded for further development of the record in light of Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), and Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). Frey v. Panza, 583 F.2d 113 (3d Cir. 1978). On remand, a companion action against the Township was consolidated with the first suit and the parties undertook additional discovery. After argument, the plaintiff’s motion for a preliminary injunction was denied and the defendants’ motion for summary judgment was granted. Beginning in 1952, Hampton Township adopted the building code compiled by the Building Officials & Code Administrators International, Inc. and its superseding versions as they were released. The 1975 code, which was introduced into the record, is a book of some 497 pages providing for the issuance of building permits, inspections of construction in progress, standards for building materials, design criteria for plumbing, electrical, and structural members, and other detailed requirements for construction. Before building may begin, the contractor is required to obtain a permit conditioned upon agreement to comply with the code. Code §§ 113.1, 115.2. Four scheduled inspections are required during the construction and § 112.1 gives the building inspector authority to enter the structure at any reasonable hour to enforce the provisions of the code. The plaintiff stated that he had no objection to the regularly scheduled inspections but did not want the inspector on the premises without a warrant at any time that he chose. The district court concluded that evidence of the nature of the work, the condition of the premises, and the acquiescence in at least the scheduled inspections established at most only an insubstantial expectation of privacy. Against the de minimus intrusion caused by inspections, the court weighed the governmental interest in close supervision to insure safe construction, the inability to detect some violations of the code after construction had proceeded beyond certain stages, and the infeasibility of having an inspector on the premises at all times. On balance, the court concluded that warrantless inspections were not unconstitutional. In Marshall v. Barlow’s, Inc., supra, the Supreme Court reiterated the applicability of the search warrant requirement of the fourth amendment to commercial structures with the exception of enterprises with “a long tradition of close government supervision, of which any person who chooses to enter such a business must already be aware.” Id. at 313, 98 S.Ct. at 1821. Those who voluntarily engage in such licensed and regulated businesses accept the burdens as well as the benefits of the trade. See G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Marshall v. Stoudt’s Ferry Preparation Co., 602 F.2d 589 (3d Cir. 1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980). The record in this case shows that the construction industry in the Township in all its phases is subject to detailed and exacting regulation by the municipality. The contractor must file plans before he begins work and he is held to the requirements of the code as his project proceeds. He is aware in advance that the work is subject to inspection without notice. The construction industry has a long history of governmental supervision and oversight enforced by inspection. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (liquor). And the statute challenged here is directed specifically and exclusively at that one industry. Cf. Marshall v. Barlow’s, Inc., supra (statute authorized searches of all businesses within OSHA’s jurisdiction). We note also that the ordinance limits inspections to the construction site, at reasonable hours, and for the purposes of enforcing compliance with the building code. These restrictions point toward the reasonableness of the inspection and counsel against requiring an administrative warrant. See Marshall v. Stoudt’s Ferry Preparation Co., supra. The case at hand is distinguishable from Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), where a city housing inspector sought to search a residential area. The Court found that without a warrant, the occupant had no way of knowing whether an inspection was authorized or required or whether the search would be limited in scope. Id. at 532, 87 S.Ct. at 1732. Likewise in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the fire department wished to inspect a locked, commercial warehouse as part of a citywide canvass to obtain compliance with the fire code. Since there was no showing that the owner lacked an expectation of privacy, even though the structure was commercial, the Court applied the general rule that a search is unreasonable if conducted without a warrant. We conclude that the district court did not err in holding for the defendants and, accordingly, its judgment 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 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?

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

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

TERRA NOVA INSURANCE COMPANY, LTD., Appellant, v. 900 BAR, INC. t/a and d/b/a Mark IV Bar and t/a and d/b/a Mark IV Lounge and Mark IV Bar and Leroy Phillips, Melvin Roane, Gracie Roane and John Walker, Appellees. Nos. 88-1736, 89-1008. United States Court of Appeals, Third Circuit. Argued Feb. 2, 1989. Decided Oct. 18, 1989. Jonathan Dryer (argued), Wilson, Elser, Moskowitz, Edelman & Dicker, Philadelphia, Pa., for appellant. Robin G. Rovell, Segal, Wolf, Berk, Gaines & Liss, Philadelphia, Pa., for appel-lee, Leroy Phillips. James E. Beasley, William P. Murphy (argued), Beasley, Casey, Colleran, Erb-stein, Thistle, Kline & Murphy, Philadelphia, Pa., for appellee, 900 Bar, Inc. R. Steven Shisler, Bernard L. Kubert, P.C., Philadelphia, Pa., for appellees, Melvin and Gracie Roane. Before HUTCHINSON, SCIRICA and NYGAARD, Circuit Judges. OPINION OF THE COURT HUTCHINSON, Circuit Judge. I. Terra Nova Insurance Company, Ltd. (Terra Nova) appeals from two orders of the United States District Court for the Eastern District of Pennsylvania. The first granted appellee 900 Bar, Inc.’s (900 Bar’s) motion to stay this declaratory judgment action. The second denied Terra Nova’s Federal Rule of Civil Procedure 59(e) motion to alter or amend the stay order. Terra Nova’s appeals were docketed at Nos. 88-1736 and 89-1008 respectively. Because No. 88-1736 was filed while Terra Nova’s motion to alter or amend was pending before the district court, it is ineffective and we will dismiss it for lack of appellate jurisdiction. However, No. 89-1008 brings up the underlying stay order. On this record, the stay is effectively final as to Terra Nova’s obligation to provide a defense in the underlying state tort action and is not inherently tentative. Accordingly, we have jurisdiction to review the merits of the stay. On the merits, Terra Nova argues that the district court’s order is an abuse of the narrowly circumscribed discretion to stay an action which is afforded by Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We believe, however, that the district court’s stay order is based on the somewhat broader statutory discretion the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201-2202 (West 1982 & Supp. 1989) (Act), gives district courts to decide whether to entertain declaratory judgment actions. The district court stayed this action to avoid finding facts that will also be the subject of determination in the state court actions. With respect to the duty to defend, this was error. Under Pennsylvania law, an insurer has a duty to defend if the complaint alleges facts that support recovery within the policy, at least until the action has been confined to claims that are not covered. From the pleadings in the underlying tort actions and the policy, the district court could not say that Terra Nova would not have to indemnify 900 Bar. Since Terra Nova disclaimed any desire to go beyond the pleadings in the state court suits, it is not presently entitled to the declaration it seeks. This determination does not depend on any facts at issue in the state court actions, which do not present the issue of Terra Nova’s duty to defend, and the district court therefore erred in staying resolution of the duty to defend. Accordingly, we will vacate the stay and direct the district court, on remand, to dismiss this portion of Terra Nova’s complaint. Our holding on the duty to defend compels the conclusion that the stay of the duty to indemnify must remain in effect. Based on the pleadings in the underlying actions, Terra Nova would have no right to a declaration that it has no duty to indemnify 900 Bar. Whether Terra Nova must indemnify 900 Bar will thus depend on the facts as they develop in the state court actions, and Terra Nova has repeatedly stated that it does not seek to have those facts determined in the district court. The district court could therefore have awaited further developments in the state fora. As Terra Nova does not challenge the terms of the district court’s stay order, the stay with respect to the duty to indemnify must stand. II. On November 28, 1985, Leroy Phillips (Phillips) and Melvin Roane (Roane) each sustained gunshot wounds at the Mark IV Bar, owned by appellee 900 Bar and located in Philadelphia. Phillips filed an action in the Court of Common Pleas of Philadelphia, Pennsylvania, against 900 Bar and its employee, John Walker, who allegedly fired the gun. Phillips sought recovery under alternate counts of negligence and intentional infliction of serious bodily harm. Appendix (App.) at R.R. 15-20. Roane also brought an action in the same court, alleging alternate counts of negligence and assault and battery, and his wife sought damages for loss of consortium. Id. at R.R. 24-29. 900 Bar’s general liability insurance policy obligates Terra Nova to defend and indemnify 900 Bar but contains a coverage limitation which reads: Assault and Battery Exclusion It is hereby understood and agreed that no coverage shall apply under the policy for any claim, demand or suit based on assault and battery, and assault and battery shall not be deemed an accident, whether or not committed by or at the direction of the insured. Id. at R.R. 63. Terra Nova appointed counsel to defend 900 Bar in the state court actions, subject to a reservation of rights letter, and filed this declaratory judgment action in the district court to determine its obligations under the policy. Id. at R.R. 6-12. It named 900 Bar, the Mark IV Bar, Walker, Phillips and the Roanes as defendants and sought discovery. 900 Bar moved to stay the declaratory judgment action pending disposition of the underlying tort suits and refused to comply with discovery requests. Id. at R.R. 87-89. It contended that the declaratory judgment action required inquiry into the same facts as those involved in the tort actions, posing a conflict between Terra Nova’s putative duty to defend 900 Bar in the state actions and Terra Nova’s own interest in obtaining a declaration that it had no obligation to defend or indemnify 900 Bar because of the policy exclusion. The district court granted 900 Bar’s motion to stay the declaratory judgment action by order entered August 24, 1988. Id. at R.R. 139. The court cited three factors “impel[ling] the exercise of [its] discretionary power to stay this action.” Id. at R.R. 146. First, it noted a general policy of restraint “when the same issues of state law will be determined in a pending state suit.” Id. Second, the court cited the “inherent conflict of interest” between Terra Nova’s duty to defend 900 Bar and its efforts to prove the factual basis for invoking the assault and battery policy exclusion. Id. Finally, the court cautioned that “the courts would do well to prevent and avoid duplicative litigation.” Id. On September 2,1988, Terra Nova filed a Rule 59(e) motion to alter or amend the August 24 order granting the stay with an accompanying request that the court certify the order for appeal under 28 U.S.C.A. § 1292(b) (West Supp.1989). Id. at R.R. 151. Meanwhile, on September 21, 1988, Terra Nova appealed the district court’s August 24 order. The district court denied the Rule 59(e) motion and the request for certification on December 15, 1988. Terra Nova appealed the December 15 order on January 9, 1989. III. The district court had subject matter jurisdiction over this diversity action for declaratory relief under 28 U.S.C.A. § 1332(a) (West Supp.1989). Before proceeding to the merits of these appeals, however, we must first consider our appellate jurisdiction over each of them. A. Terra Nova appealed from the district court’s order granting the stay while its Rule 59(e) motion to alter or amend that order was still pending. Under Federal Rule of Appellate Procedure 4(a)(4)(iii), a notice of appeal filed while a Rule 59(e) motion is pending “shall have no effect. A new notice of appeal must be filed....” The United States Supreme Court has held that “a subsequent notice of appeal is... ineffective if it is filed while a timely Rule 59 motion is still pending.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). “In short, it is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act.” Id. A unanimous Supreme Court recently reaffirmed this principle. See Osterneck v. Ernst & Whinney, — U.S. -, 109 S.Ct. 987, 990, 103 L.Ed.2d 146 (1989). The Rule 59(e) motion was pending when Terra Nova filed its first appeal. Therefore, we will grant 900 Bar’s motion in part and dismiss the appeal at No. 88-1736 for lack of appellate jurisdiction. B. We next consider our jurisdiction over the appeal at No. 89-1008. “A timely appeal from a denial of a Rule 59 motion to alter or amend ‘brings up the underlying judgment for review.’ ” Federal Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986) (quoting Quality Prefabrication v. Daniel J. Keating Co., 675 F.2d 77, 78 (3d Cir.1982)). Underlying this Rule 59(e) motion is the district court’s order granting 900 Bar’s motion for a stay. Unless this underlying order is final, we lack appellate jurisdiction over the second appeal. Most orders granting or denying a stay do not end the litigation. Therefore, they do not ordinarily fit within the general definition of final orders appealable under 28 U.S.C.A. § 1291 (West Supp.1989). Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 1136, 99 L.Ed.2d 296 (1988) (denial of stay); Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 10 n. 11, 103 S.Ct. 927, 934 n. 11, 74 L.Ed.2d 765 (1983) (stays usually not final “since most stays do not put the plaintiff ‘effectively out of court’”). However, under the “collateral order doctrine,” a small class of decisions that do not end the litigation are nonetheless considered final for purposes of § 1291. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Some stays are included in this sub-class of final orders. See Moses H. Cone, 460 U.S. at 11-12, 103 S.Ct. at 934-35. To be appealable under the Cohen doctrine, the order must “ ‘conclusively determine the disputed question’...[,] ‘resolve an important issue completely separate from the merits of the action’... [and] be ‘effectively unreviewable on appeal from a final judgment.’ ” Gulfstream, 108 S.Ct. at 1136-37 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted)). In Moses H. Cone, the Supreme Court concluded that an order granting a stay of litigation in favor of a parallel state court action pursuant to the exceptional circumstances doctrine of Colorado River was collateral under the Cohen test and therefore appealable under § 1291. Moses H. Cone, 460 U.S. at 11-12, 103 S.Ct. at 934-35. The Court first concluded that since the order “amounted] to a refusal to adjudicate the merits,” it involved an important issue separate from the merits. Id. at 12, 103 S.Ct. at 935. Next, the Court found that the order would be entirely unreviewable if not appealed now. The district court would have to give preclusive effect to the determination in the state court action involving the identical question of arbi-trability. Id. Finally, the Court rejected the argument that the order did not conclusively determine the disputed question. While technically amendable, the order was not “inherently tentative” but rather was “made with the expectation that [it would] be the final word on the subject addressed.” Id. at 12 n. 14, 103 S.Ct. at 935 n. 14; see id. at 28, 103 S.Ct. at 943 (Colorado River stay “necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case”); see also Gulfstream, 108 S.Ct. at 1137 (same) (dicta). This case is distinguishable from Moses H. Cone on two grounds. It does not involve parallel state and federal court actions. Terra Nova argued in the district court that it was entitled to declaratory relief because there could be no recovery under the policy. It reasoned that even though the complaints in the underlying actions seek recovery for negligence as well as assault and battery, any injuries arose from an assault and battery, and therefore fall within the policy exclusion. This issue is not before the state courts. In addition, Moses H. Cone was decided in the context of a Colorado River stay, not a stay under the Declaratory Judgment Act. Nevertheless, if Terra Nova continues to provide a defense, the district court’s stay order amounts to a refusal to adjudicate the merits of Terra Nova’s duty to defend. In that case, we do not think these distinctions are material. Moses H. Cone establishes that a stay order that amounts to a refusal to adjudicate the merits resolves an important issue separate from the merits. In Moses H. Cone, the stay met this criteria because the state court’s decision on the same issues would be res judicata. Here, since the state and federal actions are not parallel, the decisions in the underlying actions will not be res judicata as to Terra Nova’s duty to defend. However, if Terra Nova continues to provide a defense, the duty to defend will be moot once the state court actions conclude. Since the district court would then be unable to reach the merits of the duty to defend, the stay order would amount to a refusal to adjudicate the merits of this issue. Terra Nova’s claim for a declaration that it has no duty to defend will be moot if, as we believe, the Pennsylvania Supreme Court would preclude an insurer who provides a defense under reservation of rights from recovering the cost of that defense from its insured if it is later determined that there is no coverage. We have been unable to find any Pennsylvania authority that permits an insurer who defends under a reservation of rights to recover defense costs from its insured. We- do not, however, rely solely on that negative implication. A rule permitting such recovery would be inconsistent with the legal principles that induce an insurer’s offer to defend under reservation of rights. Faced with uncertainty as to its duty to indemnify, an insurer offers a defense under reservation of rights to avoid the risks that an inept or lackadaisical defense of the underlying action may expose it to if it turns out there is a duty to indemnify. At the same time, the insurer wishes to preserve its right to contest the duty to indemnify if the defense is unsuccessful. Thus, such an offer is made at least as much for the insurer’s own benefit as for the insured’s. If the insurer could recover defense costs, the insured would be required to pay for the insurer’s action in protecting itself against the estoppel to deny coverage that would be implied if it undertook the defense without reservation. See Beckwith Mach. Co. v. Travelers Indem. Co., 638 F.Supp. 1179, 1188-89 (W.D.Pa.1986) (insurer who defended for thirteen months without reservation of rights estopped to assert loss not within policy’s coverage), appeal dismissed, 815 F.2d 286 (3d Cir.1987). Accordingly, a declaration that there was no duty to defend will not entitle Terra Nova to recover any costs it has expended. Since the defense will already have been provided, Terra Nova will also be unable to avoid any costs if it continues to defend until the state cases are concluded. When the state court actions conclude and the stay is lifted, Terra Nova will have no need for, and no right to, the declaratory relief it seeks in the district court. If Terra Nova continues to defend, the issue of its duty to do so will also be unreviewable if not heard now. This too is so even though our inability to review the merits is based on mootness, and not res judicata as in Moses H. Cone. The stay pending the conclusion of the state action eliminates the possibility of effective review of the merits of whether Terra Nova has a duty to defend by postponing resolution of that duty until the issue becomes moot. Under either res judicata or mootness, the district court will have no occasion to consider the duty to defend once the stay terminates, and we will have no opportunity to review its decision on that issue. We do, however, recognize a second possibility. Depending on the terms of its reservation of rights letter, Terra Nova could, upon proper notice to its insured, terminate its defense of the underlying action. In that case, the merits of Terra Nova’s duty to defend would not be moot in the traditional sense. Although Terra Nova could not recover the costs it had already expended, 900 Bar could seek to recover the defense costs it incurred after Terra Nova terminated its defense by filing an action for breach of contract. Until that contract action was finally determined, a decision on the merits of whether there was a duty to defend would still be possible in the federal action. Although this scenario does not fit as neatly within the Moses H. Cone framework, that does not defeat our jurisdiction over the stay with respect to the duty to defend. Moses H. Cone is only a particularized application of the Cohen test. An order need not be a refusal to adjudicate the merits to satisfy the Cohen requirements of resolving an important issue separate from the merits that would be effectively unreviewable on appeal from a final judgment. See supra at 1218 (outlining elements of Cohen test). We believe that even if Terra Nova stops providing a defense, the stay order meets these two prongs of the Cohen test. An insurer seeks a declaration on whether it has a duty to defend to avoid uncertainty. If it obtains a favorable ruling, it may safely terminate the defense and avoid further expense. A ruling that it is obligated to defend also resolves the uncertainty as to whether it should defend. If, however, the ruling is delayed until the underlying action is concluded, the insurer must act while still in a quandary about its duty. It has to decide whether to continue the defense without the guidance that the Act’s declaratory remedy is meant to provide. The value of a declaratory judgment as to the duty to defend is the determination of the insurer's responsibilities before or during the pendency of the underlying action. The stay order, by delaying resolution of the question until after the state actions conclude, denies the insurer the benefit of the declaratory remedy. It therefore decides an important issue separate from the merits. Since review after the state court actions end comes too late to provide the insurer with guidance as to whether it should continue providing a defense, the order’s denial of the declaratory remedy is effectively unreviewable if not heard now. Accordingly, even though Terra Nova may decide to stop providing a defense, the stay order meets these two prongs of the Cohen test. Finally, under either scenario, the stay order meets the remaining Cohen requirement; the order conclusively determines the disputed question. It is not inherently tentative. See Moses H. Cone, 460 U.S. at 12 n. 14, 103 S.Ct. at 935 n. 14 (stay order not “inherently tentative” and meant to be final word on subject meets Cohen conclusiveness requirement). The district court has given no indication that it will revisit the order until after the state court actions end. Cf. American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1170-71 (3d Cir.1989) (order placing initial burden to defend on particular insurer and denying summary judgment because of genuine issue of material fact regarding policy exclusion was subject to revision and therefore not appealable under Federal Rule of Civil Procedure 54(b)). We have appellate jurisdiction over the district court’s decision to stay this declaratory judgment action and will therefore deny 900 Bar’s motion to dismiss the appeal at No. 89-1008. We review the stay order for abuse of discretion. IV. The district court cited three factors supporting a stay, but did not specify the legal theory under which it granted this relief. Accordingly, we must determine the source of the discretion the district court exercised. The cases involving declaratory judgment actions brought by insurers create a confusing patchwork. Some courts apply the exceptional circumstances analysis of Colorado River. See, e.g., Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185 (5th Cir.1988); Lumbermens Mut. Casualty Co. v. Connecticut Bank & Trust Co., N.A., 806 F.2d 411 (2d Cir.1986); Aetna Casualty & Sur. Co. v. Sterner, 700 F.Supp. 252 (E.D.Pa.1988); Fireman’s Fund Ins. Co. v. PaineWebber Real Estate Sec., Inc., 690 F.Supp. 879 (N.D.Cal.1988). Other courts analyze the issue under the Act. See, e.g., Zurich Ins. Co. v. Alvarez, 669 F.Supp. 307 (C.D.Cal.1987); Ohio Casualty Co. v. Jackson County Bank, 562 F.Supp. 1165 (W.D.Wis.1983) (relying alternatively on the Act and Colorado River). Some courts speak in terms of abstention, but use as authority the Supreme Court’s decision under the Act in Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). See, e.g., Lawyers Title Ins. Corp. v. Combined America Properties, 688 F.Supp. 275 (N.D.Tex.1988); Highlands Ins. Co. v. A.E. Invs., Inc., 637 F.Supp. 213 (E.D.La.1986). Terra Nova contends that the district court relied on the exceptional circumstances test of Colorado River and that its decision cannot be justified on this basis. Unlike traditional abstention doctrines, this additional ground for staying a federal court proceeding because of a pending state action does not depend on “considerations of proper constitutional adjudication and regard for federal-state relations.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. Rather, it “rest[s] on considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Id. (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). The Colorado River doctrine is aptly named. Litigants who navigate it must shoot rough water in a narrow channel. Thus, the Supreme Court noted the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” id., and cautioned: Given this obligation, and the absence of weightier considerations of constitutional adjudication and state-federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist. Id., 424 U.S. at 818, 96 S.Ct. at 1246. Terra Nova argues that the district court’s order does not satisfy this strict test and is therefore an abuse of discretion. However, by the terms of the Declaratory Judgment Act itself, a fundamental reason for the exceptional nature of a Colorado River stay — the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” — is not present in declaratory judgment cases. In relevant part, the Act provides: In a ease of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1954 or a proceeding under section 505 or 1146 of title 11, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C.A. § 2201(a). This section of the Act gives district courts statutory discretion to decide whether to entertain actions for declaratory judgments. Lac D’Amiante du Quebec, Ltee v. American Home Assurance Co., 864 F.2d 1033, 1042 n. 11 (3d Cir.1988); Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1170 (3d Cir.1987). There is an important distinction between cases in which “a federal district judge stay[s] a case because of parallel state court proceedings” and declaratory judgment cases which, because of their “purely remedial and equitable nature,” vest the district court with discretion. Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 601 n. 1 (5th Cir.1983). In deciding whether to exercise their power to issue a declaratory judgment, the district courts consider similar factors whether they speak in terms of abstention or the discretion the Act affords them. See Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 308 n. 3 (1st Cir.1986) (agreeing that declaratory judgment action can be dismissed on less than exceptional grounds and noting that “Colorado River factors themselves run substantially parallel to the criteria that historically have been deemed relevant in determining whether to accept or decline jurisdiction over an action brought under 28 U.S.C. § 2201.”). However, decisions couched in Colorado River analysis carry with them concerns peculiar to our federal system. Those concerns tend to pull the decision away from the central inquiry under the Act — namely, whether it is equitable for the court to exercise the remedial discretion the Act gives it. Application of Colorado River, while based on judge-made considerations of judicial efficiency, skews the analysis because of its narrowly exceptional nature. The United States Court of Appeals for the First Circuit deals with the fact that jurisdiction is discretionary under the Act through a modified Colorado River analysis. In declaratory judgment cases, that court gives great weight to the third Colorado River factor — the desirability of avoiding piecemeal litigation. Fuller Co., 782 F.2d at 309; see also National R.R. Passenger Corp. v. Providence and W.R.R., 798 F.2d 8, 11 (1st Cir.1986). This factor, it reasons, “subsumes such traditional considerations as ‘whether the declaratory judgment will serve the interests of the litigants or the public’ and whether ‘considerations of efficiency, fairness and practical convenience for the court and parties warrant the court’s granting a declaration of rights.’ ” Fuller Co., 782 F.2d at 309 n. 3 (quoting Metropolitan Property & Liab. Ins. Co. v. Kirkwood, 729 F.2d 61, 62 (1st Cir.1984)). The First Circuit also applies the Colorado River test “without emphasis on a federal court’s duty to exercise its jurisdiction.” Id. We believe that Colorado River and Moses H. Cone do not limit the traditional discretion of district courts to decide whether to hear declaratory judgment cases. See, e.g., Transamerica Occidental Life Ins. Co. v. DiGregorio, 811 F.2d 1249, 1254 & n. 4 (9th Cir.1987) (post-Colorado River authority, including indications in Supreme Court opinions, supports proposition that jurisdictional discretion under the Act survives Colorado River and Moses H. Cone); United States Fidelity & Guar. v. Algernon-Blair, Inc., 705 F.Supp. 1507, 1520-21 (M.D.Ala.1988) (discretion under Act unaffected by Colorado River and Moses H. Cone; concern in those cases with “relaxation of jurisdictional constraints” in-apposite where Congress has granted discretion); see also 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4247, at 118-20 (2d ed. 1988) (court’s discretion to hear declaratory judgment cases rests on special nature of such cases, not on Colorado River). Accordingly, we see no impediment to the district courts’ exercise of discretion under the Act. Nor are we inclined to develop a variant of Colorado River for use in declaratory judgment actions. The way to guarantee that district courts retain the discretion afforded by the Act is through analysis under the Act. See Navistar Int’l Corp. v. Emery, 643 F.Supp. 515, 517 (N.D.Tex.1986) (proper analysis is under Act, not Colorado River, since to hold otherwise would vitiate policy of Act to provide district courts with adequate discretion). This will also ensure that factors historically held relevant to such inquiries are given proper weight. District courts, at least as an initial matter, should therefore exercise their discretion under the Act when deciding whether to entertain a declaratory judgment suit. In the instant case, we believe the district court followed this approach. The only decision the district court cited to justify a stay, and the principal authority 900 Bar advanced to support this relief, is Allstate Ins. Co. v. Harris, 445 F.Supp. 847 (N.D.Cal.1978). Allstate was decided under the Act, not under Colorado River. The district court did not mention Colorado River or any other case applying the exceptional circumstances test. Although 900 Bar argued that Nigro v. Blumberg, 373 F.Supp. 1206 (E.D.Pa.1974) — a pre-Coiorado River opinion outside of the declaratory judgment context staying federal court proceedings on efficiency grounds until termination of a similar state action — provided further support for a stay, the district court did not rely on Nigro. Not surprisingly, the district court considered issues common to analysis under Colorado River and the Act. It observed that similar factual determinations would be necessary in the two fora and that “the courts would do well to prevent and avoid duplicative litigation.” App. at R.R.146. The court also stated that “ ‘[i]t is ordinarily neither sound judicial administration nor in the interests of the parties, particularly the injured state[-]court plaintiff, to permit an out-of-state insurance carrier to drag the parties to a tort action into federal court to try a portion of the overall controversy among those parties.’ ” Id. at R.R. 144-45 (quoting Allstate, 445 F.Supp. at 850 (citations omitted)). These factors also inform the exercise of discretion under the Act. See Brillhart, 316 U.S. at 495, 62 S.Ct. at 1176 (federal court should consider whether state court suit “present[s] the same issues, not governed by federal law, between the same parties” and whether state court is better able to settle controversy); Fuller Co., 782 F.2d at 308 n. 3 (Colorado River factors and factors historically deemed relevant in deciding whether to entertain action under Act are “substantially parallel”). Even the district court’s reference to “sound judicial administration,” language which echoes Colorado River, came in a quote from a case decided under the Act and so is linked to the context of the Act. Given the district court’s express reliance on authority decided under the Act, the absence of any reference to Colorado River or similar cases and the parallel considerations in the two analyses, we reject Terra Nova’s argument that the stay can be upheld only if it satisfies the exceptional circumstances test. Instead, we conclude that the district court exercised its discretion under the Act in deciding to stay this action. We therefore turn to whether the stay was an abuse of that discretion. V. All of the factors the district court considered are appropriate. In addition to the Brillhart factors, this Court has set out the following general guidelines for the exercise of discretion under the Act: “ ‘(1) the likelihood that the declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the convenience of the parties; (3) the public interest in a settlement of the uncertainty of obligation; and (4) the availability and relative convenience of other remedies.’ ” Interdynamics, Inc. v. Wolf, 698 F.2d 157, 167 (3d Cir.1982) (quoting Bituminous Coal Operators’ Ass’n v. International Union, United Mine Workers, 585 F.2d 586, 596-97 (3d Cir.1978) (footnote omitted)). In conducting this inquiry, “[c]ourts look with disapproval upon any attempt to circumvent the laudable purposes of the Act, and seek to prevent the use of the declaratory action as a method of procedural fencing, or as a means to provide another forum in a race for res judicata.” 6A J. Moore, J. Lucas & G. Girtheer, Jr., Moore’s Federal Practice 1157.08[5], at 57-50 (2d ed. 1987) (footnote omitted). Considerations more specific to the insurance context are also appropriate. Thus, Professor Moore goes on to say: In insurance cases, as in declaratory judgments in general, although both jus-ticiability and federal jurisdiction are present, the court in a proper case may, nevertheless, refuse to proceed with the declaratory action for it is well settled that the exercise of jurisdiction in this area is discretionary.... And frequent, attempted abuses of the declaratory action in this area make the exercise of judicial discretion particularly important. Id. at II 57.19, at 57-206-07 (footnotes omitted). Commentators have noted the potential conflict of interest problem if “the same factual question” lies at the heart of both an insurance coverage dispute and the underlying tort action. See Kirkland & Berkeley, Declaratory Judgment Suits: Use in Insurance Coverage Litigation, 33 Fed’n of Ins. Counsel Q. 243, 252 (1983) (concluding that “a finding in the declaratory judgment would have res judicata effect on the outcome of the tort case, and is therefore inappropriate”). Here, the district court relied on the following reasoning from Allstate: [Consideration of the interest [sic] involved in this case has convinced the Court that a trial at this point in the proceedings would place an unfair burden on the insured, in violation of his expectations and of the policies favoring insurance against risks. [...] [sic] All parties to the state court suit being present in this action, [the insured] could well be collaterally estopped from relit-igating the issue of intent in the subsequent state court trial. He would thus be subjected to both tort liability and the possibility of punitive damages, all because of the facts established against him in this Court by [the insurer]. Yet the superior resources and expertise of the insurance company in litigating these matters are one aspect of the protection an insured purchases with his policy. Here, the policy

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

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

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

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

Daniel Ramos RIOS, Plaintiff, v. EMPRESAS LINEAS MARITIMAS AR-GENTINAS, etc., Defendant and Third-Party Plaintiff-Appellant, v. FRED IMBERT, INC., Third-Party Defendant-Appellee. No. 76-1397. United States Court of Appeals, First Circuit. Argued Feb. 6, 1978. Decided May 15, 1978. Harry Anduze Montano, Hato Rey, P. R., with whom Calderon, Rosa-Silva & Vargas, Hato Rey, P. R., was on brief for appellant. Paul E. Calvesbert, Hato Rey, P. R., with whom Jose Antonio Fuste and Jimenez & Fuste, Hato Rey, P. R., were on brief, for appellee. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, BOWNES, Circuit Judge. . Contrary to the judge’s instructions, the jury first returned a verdict finding both the ship and the stevedore company jointly liable to plaintiff. The judge reinstructed the jury, telling them that they had to determine liability on the third party complaint. The jury then, after a brief deliberation, found for plaintiff as against the RIO BELEN and for stevedore Fred Imbert as against the RIO BELEN. BOWNES, Circuit Judge. This case comes to us on appeal from a jury verdict of $29,000 in favor of Daniel Ramos Rios, a longshoreman who was injured by carbon monoxide poisoning aboard the RIO BELEN, a ship owned by defendant-appellant Empresas Lineas Marítimas Argentinas, Etc. (Lineas hereafter). Ramos Rios sued under a theory of unseaworthiness and a separate claim of negligence. Lineas had asserted a third party claim against Fred Imbert, Inc., the stevedoring contractor which employed Ramos Rios, alleging breach of Imbert’s warranty of workmanlike performance. The jury, after a four day trial, found for Ramos Rios against Lineas. It also found in favor of Fred Imbert as against Lineas. Lineas moved for a judgment n. o. v., Fed. R.Civ.P. 50(b), and alternatively for a new trial, Fed.R.Civ.P. 59. Both motions were denied. Lineas seeks to overturn the finding of no liability on the part of the third party defendant, Fred Imbert. On April 22, 1969, Ramos Rios and other employees of Fred Imbert stevedoring company were unloading apples from the hold of the Argentine ship RIO BELEN. Testimony at trial indicated that the ship had entered the port of San Juan, Puerto Rico, the morning of April 22 with a planned departure later the same day. Third party defendant Fred Imbert alleges that this urgency was one of the causes of the accident which injured Ramos Rios. Fred Im-bert’s pier supervisor, Eugenio Castro, testified that the First Officer of the RIO BE-LEN requested that a gasoline powered fingerlift (forklift) be brought on board to help unload at about 4:00 or 5:00 P.M. Castro testified that he immediately objected to the First Officer, explaining that the dangers of carbon monoxide poisoning from using the fingerlift inside the hold were substantial. He testified that he asked for and received assurances from the First Officer concerning adequate ventilation inside the hold. The reason for positioning the fingerlift aboard was to speed the unloading of the apples so that the RIO BELEN could leave port before midnight. Castro testified that the First Officer was dissatisfied with the progress being made by use of a pallet and bridle which required the steve-doring crew to hand-carry the boxes of apples to the pallet. The testimony by Castro and the bosun Lebrón (also an employee of Fred Imbert) was that the Argentine crew had retained control over the unloading operations and had directed that the fingerlift be brought aboard. They further testified that members of the Argentine crew were inside the hold during the unloading. Testimony from other members of the stevedoring work force was to the effect that there was no member of the Argentine crew inside the hold (which was approximately 50 feet by 30 feet). There was contradictory evidence as to who had given the order to bring the fingerlift aboard; Castro and Le-brón (not altogether consistently) testified that the order came from the Argentine First Officer and the longshoremen working the hold testified that the order came from the foreman, Ayala, an employee of Fred Imbert who had died in the interval between the time of the accident and the time of trial nearly seven years later. A sworn deposition from Ayala, given prior to the time a third party complaint had been lodged against Fred Imbert, stated that he had ordered the fingerlift to be brought into the hold. None of the men working the hold had been in a position to observe the deck, where, Castro testified, he had conversed with the First Officer concerning the fingerlift and its attendant dangers. Nor did any longshoreman give directly contradictory testimony concerning the control assertedly retained by the Argentine crew over the unloading operations. Lineas did not present any witnesses on its own behalf. Significantly, it did not call any member of the Argentine crew to testify. At the time of the accident, Lineas was under a nondelegable duty to provide longshoremen working on board a safe and seaworthy vessel. This included a hold where workers could work safely. Under ordinary tort law, it was also under a duty not to negligently injure workers on the vessel by action or inaction on its part. Although the ship had an absolute duty to provide a seaworthy vessel, it had a right to recover on a third party complaint (even if it were found to be negligent) if it could be proved that, by breaching its warranty of workmanlike performance, the stevedore introduced the hazard which caused the injury or which rendered the vessel unseaworthy. But see n. 3 supra. However, this right of indemnification may be lost if the vessel retains the right to control the stevedoring operations and, by its acts, impedes the stevedore from discharging its duty to perform in a workmanlike manner. Italia Soc. v. Ore. Stevedoring Co., 376 U.S. 315, 322-324, 84 S.Ct. 748,11 L.Ed.2d 732 (1964); Weyerhaeuser S. S. Co. v. Nacirema, 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958); Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124, 130-133, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Conceicao v. New Jersey Export Mar. Carpenters, Inc., 508 F.2d 437, 443 (2d Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975); DeGioia v. United States Lines Co., 304 F.2d 421, 425-426 (2d Cir. 1962). The standard an appellate court must apply when requested to review denial of a motion for judgment non obstante veredicto is whether there are facts and inferences reasonably drawn from those facts which lead to but one conclusion. Evidence must be viewed in the light most favorable to the nonmoving party. Using this standard, we find that the jury could have reasonably found either that the ship breached its duty to provide a seaworthy vessel for the injured worker or that the ship was negligent in permitting the finger-lift to be brought into a hold with two of the four hatches covered where ventilation was inadequate to prevent carbon monoxide asphyxiation. The jury could also have reasonably found, based on the testimony adduced at trial, that defendant Lineas was in a position best able to avert the dangers of carbon monoxide poisoning by finding that the Argentine crew retained ultimate control and supervision over the stevedoring operations and thus impeded or hindered Fred Imbert from performing in a workmanlike manner. In reviewing a motion for judgment n. o. v., it is improper to weigh credibility or resolve conflicting testimony. The motion is properly granted only when, as a matter of law, no conclusion but one can be drawn. We cannot say on the record before us that defendant Lineas has successfully shouldered its burden in showing that the motion was improperly denied. See generally Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Gillham v. Admiral Corporation, 523 F.2d 102, 109 (6th Cir. 1974), cert. denied, 424 U.S. 913, 96 S.Ct. 1113, 47 L.Ed.2d 318 (1976). Cf. Service Auto Supply Co. of P.R. v. Harte & Co., 533 F.2d 23, 25 (1st Cir. 1976). A motion for a new trial is addressed to the sound discretion of the trial court and will be reversed only for abuse of that discretion. Lineas urges two grounds for a new trial, first that inconsistent verdicts were returned by the jury, and, second, that there was insufficient evidence for the jury to find Lineas rather than Fred Imbert liable. To support its contention of inconsistent verdicts, Lineas points to the return by the jury of a verdict which held both Lineas and Fred Imbert liable to plaintiff and divided liability equally between them and to the second verdict which found Lineas solely liable. When the jury returned the first verdict, which was directly contrary to instructions given by the court, the trial court properly instructed the jury that it had to decide as between Lineas and Fred Imbert on the third party complaint. Resubmitting the case to the jury with renewed instructions has been held proper where the jury has failed to follow the court’s instructions in returning a verdict. University Computing Co. v. Lykes-Youngs-town Corp., 504 F.2d 518, 547 (5th Cir. 1974); Alston v. West, 340 F.2d 856, 858 (7th Cir. 1965). Cf. Fed.R.Civ.P. 49(b) for analogous procedure when a jury returns inconsistent answers to interrogatories. We find this so especially where, as here, the parties did not contest the issue of resubmitting the verdict to the jury, nor did either party object to the form or content of the second set of instructions. See Fed. R.Civ.P. 51. Since the trial court refused to accept the first verdict, there were not two verdicts here. Nor can Lineas correctly assert that the jury did not, in fact, find Fred Imbert free of liability. After the jury returned with the second verdict, the court orally polled each member of the jury inquiring whether each found against the ship owner on its claim for indemnification from Fred Imbert. Each juror responded affirmatively. Lineas asserts that the return of a verdict against it on the indemnity claim was not warranted by the evidence. A trial court, in assessing whether to grant a new trial for lack of legally sufficient evidence, does not properly do so merely because it might have come to a result different from that reached by the jury. The district court should order a new trial only when convinced that a miscarriage of justice would otherwise obtain. Where credibility of witnesses is at issue, special care should be taken not to invade the province peculiarly pertaining to the jury. Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944); Litherland v. Petrolane Offshore Const. Services, 546 F.2d 129, 134 (5th Cir. 1977), rehearing denied; University Computing Co. v. Lykes-Youngstown Corp., supra, 504 F.2d at 531; Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186-187 (8th Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973). We cannot say that the verdict returned by the jury, denying Lineas indemnification from Fred Imbert, was clearly against the weight of the evidence. While it is true that there was inconsistent testimony concerning the role played by the Argentine crew in the unloading operations, the credibility to be given the witnesses’ testimony was properly for the jury. The trial judge, who was in a far better position than we to assess credibility and conflicting testimony, felt that a new trial was not warranted. We affirm. . We note that, although both Lineas and Fred Imbert raised the statute of limitations and/or laches as affirmative defenses to the action, nothing in the record we have before us suggests how this issue was resolved. We assume, therefore, that the question is moot. . The Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq., has been held in the past not to apply to Puerto Rico because of the Puerto Rican Workmen’s Accident Compensation Act, 11 L.P.R.A. §§ 1 et seq. Guerrido v. Alcoa Steamship Co., 234 F.2d 349, 356 (1st Cir. 1956); Alcoa Steamship Company v. Perez Rodriguez, 376 F.2d 35, 38 (1st Cir. 1967). We need not reach the question of the effect of the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act in Puerto Rico, see Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1216-1217 n. 1 (1st Cir. 1975), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1976), since the injury on which the action is based occurred in 1969, before the effective date of the amendments. Addison v. Bulk Food Carriers, Inc., 489 F.2d 1041 (1st Cir. 1974); see Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 460 n. 1 (5th Cir. 1976). . The accident occurred in 1969; we are, therefore, not confronted with the question of the applicability of the 1972 amendment to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(a), which eliminates the “Sieracki” doctrine of absolute liability to injured workers. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90-95, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). . We note that the standard has been variously stated as requiring that the verdict be against the “clear weight” or the “overwhelming weight” or the “great weight” of the evidence. See generally 6A Moore’s Federal Practice 1' 59.08[5] at 59-152 through 59-165 (2d ed. 1974).

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

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

UNITED STATES v. HOSTEEN TSEKESI et al. No. 4244. United States Court of Appeals Tenth Circuit. Aug. 30, 1951. Roger P. Marquis, Washington, D. C. (A Devitt Vanech, Asst. Atty. Gen., Scott M. Matheson, U. S. Atty., O. K. Clay, Asst. U. S. -Atty., 'Salt Lake City, Utah, on the brief)., for appellant. Knox Patterson and O. A. Tangren, Salt. Lake City, Utah, on the brief, for appellees. Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges. PICKETT, Circuit Judge. The United States brought this action to enjoin the defendants, Hosteen Tse-Kesi and Eddie Nocki, Navajo Indians, from repeated and continuing trespasses upon certain lands in the State of Utah. Approximately forty other Navajo Indians, who were similarly situated to the two original defendants were made parties defendant. The defendants answered, admitting that the ownership and right of possession of the lands was in the United States, and alleged as ,an affirmative defense that such ownership and possession was subject to the aboriginal and ancestral rights of the defendants for occupational use and grazing. The answer also contained a cross-complaint and counterclaim-. After hearing arguments of counsel o-n a motion for summary judgment filed by the United States, the court, of its own motion, dismissed the complaint and entered judgment for the defendants. This appeal is from that judgment. The court also dismissed the cross-complaint and the counterclaim of the defendants. The defendants did not appeal from the judgment dismissing their cross-complaint and counterclaim. In addition to alleging ownership- and right of possession, the United States alleged that the described lands had been set apart for the grazing of livestock under the provisions of the Taylor Grazing Act, 43 U.S.C.A. § 315, and designated as Grazing District No. 6; that the defendants-, without the consent or authorization o-f the United States, wilfully, wrongfully, intentionally, and continuously, drove, herded, and grazed livestock upon the lands, and) continuously refused to comply with a demand to remove the livestock therefrom but continued to feed and graze livestock upon the same; that the United States had no-plain, speedy and adequate remedy at law. By answer the material allegations of the complaint were admitted.' The defendants relied upon their affirmative defense that the ownership and right of possession of the United States was subject to their aboriginal and ancestral rights for occupa-. tional use and grazing. It was alleged that since sometime prior to February 1, 1848, the defendants and their ancestors have constituted an independent band of Navajo Indians which inhabited a large area of land in southeastern Utah, including the land in question; that during the occupation they have constructed living quarters and shelters upon the lands, and made their livelihood therefrom. by grazing of livestock and farming to a limited extent; that they had no tribal connections and no treaty . obligations with other Indians or the United States; and that they maintained their own form of government. In their cross-complaint and counterclaim the defendants sought judgment in the sum of $1,000,000 as damages suffered as a result of the invasion and interference of such rights. The principal reasons given by the court for the dismissal of the complaint were; (1) that an injunction against the use of the lands would require the defendants to leave their homes, fields and grazing grounds, and that the court had no authority to allot to the defendants any other place to live; (2) that the court had no means of compelling obedience to an injunction, if issued; (3) that it was the problem of the United States Department of the Interior and the Bureau of Land Management, and not that of the courts, to solve the conflict. 93 F.Supp. 745. The court in this action had jurisdiction over the parties and the subject matter and we see no reason why it should not be exercised. While there may be cases where the court would be justified in refusing to exercise jurisdiction, ordinarily it is under a duty to decide cases upon their merits and may not arbitrarily refuse to exercise its jurisdiction when invoked by appropriaté proceedings. As Chief Justice Marshall said in an early case, “With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us.” The parties agree that the pleadings here present an issue of fact as to the right to possession of the lands by the defendants by virtue of aboriginal or ancestral occupation which can be determined only from the evidence adduced upon trial. Injunctive relief for continued and repeated trespasses should not be denied 'because it is thought that such an injunction will not be obeyed and that it would be difficult to enforce. We think the court should assume that its orders and decrees will be promptly obeyed by litigants rather than assuming they would be disobeyed. We find nothing in the record which would indicate that the defendants intended to defy an adverse ruling of the court. It clearly appears that the defendants are desirous of having their rights to possession adjudicated. The fact that the court had no power to provide another place for the defendants to live, whereas the United States had such power, was not an adequate or legal ground for denying the relief. The defendants were charged with being wilful and continuous trespassers upon the lands of the United States. If this charge was proved to the satisfaction of the court an injunction should issue. Where the trespassers might reside after the injunction issues cannot he determined in this action. The trial court dismissed the cross-complaint and the counterclaim upon the grounds that the Indian Claims Commission or the Court of Claims is the proper forum in which to seek money damages upon Indian claims, and not the Federal District Court. No appeal was taken from this order of dismissal' and it may not 'be considered here. The fact that the government instituted the original action for injunctive relief would not extend jurisdiction to ■ a claim presented in a cross-complaint over which Congress had not authorized the United States to be sued. Suits against the United States may be brought only when consent is given by Congress and then only in courts designated. Judgment is reversed and the cause remanded with instructions to reinstate the complaint and proceed in accordance with the views herein expressed. . Tutum v. United States, 270 U.S. 568, 577, 46 S.Ct. 425, 70 L.Ed. 788; Mutual Life Ins. Co. of N. Y. v. Krejci, 7 Cir., 123 F.2d 594; American Automobile Ins. Co. v. Freundt, 7 Cir., 103 F.2d 613; Aetna Casualty & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321; Southern California Telephone Co. v. Hopkins, 9 Cir., 13 F.2d 814, 820, affirmed 275 U.S. 393, 48 S.Ct. 180, 72 L.Ed. 329. . Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257. . United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54, 67 S.Ct. 167, 91 L.Ed. 29 ; United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 345, 62 S.Ct. 248, 86 L.Ed. 260; Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 ; State of Minnesota v. Hitchcock, 185 U.S. 373, 390, 22 S.Ct. 650, 46 L.Ed. 954; Spalding v. Chandler, 160 U.S. 394, 403, 16 S.Ct. 360, 40 L.Ed. 469. . Higgins v. Cal. Prune & Apricot Growers, 2 Cir., 282 F. 550, 559. . 25 U.S.C.A. § 70a; 28 U.S.C.A. § 1505. . Bryant v. Mass. Bonding & Ins. Co., 5 Cir., 158 F.2d 907; Arkansas Fuel Oil v. Leisk, 5 Cir., 133 F.2d 79; Swig v. Tremont Trust Co., 1 Cir., 8 F.2d 943; Lasswell Land & Lumber Co. v. Lee Wilson & Co., 8 Cir., 236 F. 322, certiorari denied 242 U.S. 652, 37 S.Ct. 245, 61 L.Ed. 546; Morley Const. Co. v. Md. Casualty Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593; United States v. American Ry. Exp. Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087; Landram v. Jordan, 203 U.S. 56, 27 S.Ct. 17, 51 L.Ed. 88. . United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Ill. Central R. Co. v. Public Utilities Comm., 245 U.S. 493, 504, 38 S.Ct. 170, 62 L.Ed. 425.

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

NATIONAL HELIUM CORPORATION, Plaintiff-Appellee, and Phillips Petroleum Company and Cities Service Helex, Inc., Intervenor-Plaintiff-Appellees, v. Rogers C. B. MORTON, Secretary of the Interior, and Elburt F. Osborn, Director, Bureau of Mines, Department of the Interior, Defendants-Appellants. Nos. 73-1169, 73-1449. United States Court of Appeals, Tenth Circuit. Oct. 19, 1973. Raymond D. Battoechi, Atty., Dept, of Justice, Washington, D. C. (Harlington Wood, Jr., Asst. Atty. Gen., Irving Jaffe, Acting Asst. Atty. Gen., Robert J. Roth, U. S. Atty., D. Kan., Morton Hollander and Irwin Goldbloom, Attys., Dept, of Justice, on the brief), for defendants-appellants. Robert L. Ackerly, of Sellers, Conner & Cuneo, Washington, D. C. (Emmet A. Blaes of Jochems, Sargent & Blaes, Wichita, Kan., Raymond S. E. Pushkar, of Sellers, Conner & Cuneo, Washington, D. C., Wendell J. Doggett, Gen. Counsel & Secretary, National Helium Corp., Houston, Tex., of counsel, on the brief),' William H. Allen, of Covington & Burling, Washington, D. C. (Joseph W. Kennedy, of Morris, Laing, Evans, Brock & Kennedy, Wichita, Kan., Eugene D. Gulland, of Covington & Bur-ling, Washington, D. C.; R. Price Howard, Senior Counsel, Phillips Petroleum Co., Bartlesville, Okl., of counsel, on the brief), for intervenor-plaintiff-appellee, Phillips Petroleum Co. Daniel R. Hopkins, Oklahoma City, Okl. (William J. Sears, Oklahoma City, Okl., Mark H. Adams, Mark H. Adams, II, and William S. Richardson, of Adams, Jones, Robinson & Malone, Wichita, Kan., on the brief), for intervenor-plain-tiff-appellee, Cities Service Helex, Inc. Before BREITENSTEIN, HILL and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. This cause has been appealed on prior occasions. In National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir. 1971), the district court, 326 F.Supp. 151, had ruled that helium purchase contracts entered into pursuant to the Helium Act, 50 U.S.C. § 167 et seq-. could not be terminated by the Secretary of the Interior without the filing by the Interior Department of an environmental impact statement in accordance with 42 U.S.C. § 4321 et seq. This court affirmed that decision, holding that the Department was required to comply with this provision of the National Environmental Policy Act (NEPA). Following the filing of an environmental impact statement by the Department, the Secretary again terminated the helium purchase contracts and once again plaintiffs-appellees filed an injunction suit in the United States District Court for the District of Kansas. The district court again enjoined the Secretary. On this occasion it was due to the dissatisfaction of the court with the impact statement. There have been two other appeal proceedings presented to us. One of these involved the scope of the retrial — whether it was to be an agency review or a de novo hearing. The other had to do with efforts of plaintiffs-appellees to discover government documents. The district court, 361 F.Supp. 78, filed the decision leading to the instant appeal on June 11, 1973. It again enjoined the Secretary of the Interior from terminating three of the helium purchase contracts. Although the Department had filed an impact statement the court ruled that it had failed to comply with the mandate of the National Environmental Policy Act of 1969; that the impact statement, if not deficient in scope, was essentially lacking in depth. At present, then, the primary issue before the court is whether the Department’s impact statement or report was in accordance with the statutory standards and in accordance with this court’s mandate in the prior case. On the prior occasion and now the Secretary terminated the contracts pursuant to their express termination provisions. He did so on the basis that the helium program had been substantially carried out. The mentioned provisions authorize him to terminate when there has been a substantial diminution in helium requirements, discovery of large new helium resources or other changes of a similar nature. At the time that these contracts were entered into, the U.S. helium requirements amounted to 530 million cubic feet of helium per year. This requirement increased in subsequent years, but commenced to decline in 1967 and has declined every year since so that in the year 1970 the demand had decreased to 400 million cubic feet. An average of 3.126 billion cubic feet of helium had been purchased each year. In the years 1971-72 the demand diminished in substantial amounts and all of the purchases have decreased, although they continue to be in excess of two billion cubic feet annually. During this entire purchase period the government through the Bureau of Mines had purchased enough helium to meet all of its needs and has not needed to use the purchased helium. Furthermore, the government believes that it has much more of a supply than can possibly be used between now and 2000. It is estimated that it is six times as much as will be needed. Following this court’s decision the Interior Department proceeded at once to conduct a study leading to the preparation and filing of an environmental impact statement. The initial draft was submitted to interested parties, including the plaintiffs, and comments were received. These are included as part of the report of the Department. The final environmental statement was issued November 13, 1972. The hearing in the district court consisted of a judicial review of the administrative record. It was not a trial de novo. (This was in accordance with the adjudication of this court after the mentioned interlocutory appeal.) The proceedings in the district court were extensive as to the composition of the administrative record. Plaintiffs had full opportunity to express their views, and the court’s opinion was thorough and exhaustive. In its final decision the court ruled that it was limited to determining whether the agency’s action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. It concluded that the Department’s effort in preparing the impact statement was an insufficient one which failed to come up to the mentioned standard in numerous respects. It characterized the statement as “feeble,” “obviously incomplete,” “appallingly deficient,” “startling in its brevity and lack of depth,” and, finally, said that the statement totally failed to consider the environmental impact of termination. The court disapproved the statement in its entirety and remanded the cause for further proceedings. Reversal is demanded on the following grounds: First, it is contended that there was a lack of jurisdiction for the district court to even entertain the case in view of the Supreme Court’s recent decision (rendered since our last decision) in United States v. Students Chal. Reg. Agcy. Pro. (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Second, the environmental statement was valid and sufficient; the district court erred in condemning it. Third, the Secretary complied with the procedural requirements of NEPA as well as with this court’s mandate. Hence, there was no justification for issuing the injunction. Fourth, the district court erred in considering grounds other than sufficiency of F.E.S. since it lacked authority to enjoin for any ground except noncompliance with NEPA. I. JURISDICTION A. WHETHER THE AUTHORITY OF THE SECRETARY IS SUPERSEDED BY NEPA. First we consider the renewed challenge to jurisdiction. As above noted, this question was determined adversely to the government in the early appeal. See 455 F.2d at 653-654. The government now urges that the Supreme Court’s recent decision in United States v. Students Challenging Regulatory Agency Procedures, supra, has changed the applicable law and that this issue must be reexamined. In this recent case the Supreme Court reviewed the decision of the District of Columbia three-judge court which enjoined a proposed railroad rate increase of the Interstate Commerce Act. Under that Act a railroad is required to give at least 3'0 days notice for carrying out a proposed rate increase. During this period the Interstate Commerce Commission may, pursuant to § 15(7) of the Act, suspend the operation of the proposed rate for a maximum of seven months pending an investigation and decision of the lawfulness of the new rates. The Interstate Commerce Commission refused to suspend the rate increase and the environmental issue arose from the fact that the increase involved a 2.5 percent surcharge on nearly all freight rates. Plaintiffs alleged that the modified rate structure would discourage the transportation of recyclable materials and promote the use of raw materials which compete with scrap material and would thereby affect the environment. The Court based its decision on Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed. 2d 52 (1963), which had held that Congress had in the ICC Act vested exclusive power in the ICC to suspend rates pending final decision and had deliberately extinguished judicial power to grant this relief; the district court lacked jurisdiction to grant an injunction. It seems apparent that the case at bar differs from the so-called SCRAP decision in that the Helium Act does not vest the Secretary with the same kind of regulatory authority as was present in the SCRAP case. The holding that NEPA did not subvert the power of the Interstate Commerce Commission was not surprising since the Commission is a tribunal in its own right with peculiarly exclusive authority within its sphere. The SCRAP decision does create at least a shadow of doubt as to whether the Secretary’s power was undermined by NEPA. The fact, however, that it gives pause is not enough because the differences between the two conditions are marked. The district court held that additional bases of jurisdiction existed under 28 U.S.C. § 1331 (federal question), § 1361 (action to compel a federal officer to perform his duty), and §§ 2201 and 2202 (declaratory judgments). Jurisdiction on other than NEPA grounds becomes important only if we find compliance with NEPA. This argument is superfluous since NEPA furnishes a jurisdictional base, and the case being properly in federal court it is there for all purposes. Hence, we have no concern over jurisdiction outside the NEPA base. B. CONTRACT TERMINATION-USE OF INJUNCTION The trial court did not follow this court’s mandate that the only issue giving the district court jurisdiction to entertain the injunction suit was the noncompliance with the requirement of an impact statement. We stated in our former opinion that the Secretary was not compelled to purchase any helium; that the matter was left to his discretion and he was within his rights in terminating the contracts. We adhere to these views. We have fully considered the Supreme Court cases which prohibit injunctive relief against governmental officers on account of their upholding the rights of the government arising under a contract. Such a suit is distinguished by the Supreme Court from actions seeking compensations for an alleged wrong and are regarded as actions against the sovereign to which there has not been consent. See Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). It is fundamental that the Tucker Act which contains a limited consent of the United States to be sued does not authorize an action in injunction. See Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973) and United States v. King, 395 U.S. 1, 89 S. Ct. 1501, 23 L.Ed.2d 52 (1969). We view the action seeking to require the Department to file an impact statement to stand on a different footing in relationship to the sovereign immunity doctrine and the cited cases because the action merely seeks to obtain compliance with the National Environmental Policy Act of 1969 and is not for the purpose of asserting and enforcing a private right. Also, if the impact statement is to be meaningful the requirement must be virtually absolute. Thus, we conceive of the review of the Secretary’s action as being strictly limited to compliance with the requirement of the environmental impact statement. This, of course, includes consideration given to the statement by the Secretary, for if he failed to consider it his action would assume arbitrariness and capriciousness. Efforts to enjoin the Secretary from terminating the contracts for an indefinite period of time must, of course, fail. We reject the plaintiffs’ argument that review of the termination is permissible under the Administrative Procedure Act. We fail to perceive any violation of the 1960 Helium Act Amendments. II. Next we consider whether the Secretary and the Department fulfilled the requirements of § 4332. A primary issue is the scope and the test of judicial review. First, what is the standard to be used in such review and, second, whether the court correctly assessed the agency’s action in the light of the NEPA requirements. A. THE STANDARD TO BE APPLIED. The specific procedural requirements of NEPA are delineated in 42 U.S.C. § 4332. Section 4332(2) (A)-(H) imposes specific procedural duties on federal agencies, one of which is the duty of preparing a detailed impact statement to accompany any recommendation for a major federal action significantly affecting the environment. The requirements of this impact statement contained in § 4332(2) (C) include five specific areas to be covered in the impact statement: (i) the environmental impact of the proposed action, (11) any adverse environmetal effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. The trial court employed the “arbitrary and capricious” standard of § 706 of the APA. This sets aside the action if it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The trial court purportedly relied on the Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This case did not, however, involve the preparation of an environmental impact statement. This was a review of the decision of the Secretary of Transportation in respect to the building of a highway through a park. This was in truth “agency action.” The decision of the Secretary in Overton Park was concerned with the Department of Transportation Act of 1966 and the Federal-Aid Highway Act of 1968. In assessing the adequacy of the impact statement, we are not here reviewing, as we said above, agency action within the meaning of § 706 of the APA. Rather, we are concerned with the NEPA requirement which is, to be sure, a prerequisite for agency action but is not agency action itself. The trial court’s conclusion that it was required by Overton Park to apply the arbitrary and capricious standard was, in our view, erroneous. The better reasoned decisions have required an objective good faith effort to comply with the statutory procedural requirements. Other than that, the courts have demanded that the agency do more than mechanically pursue the procedural standards. Thus, in Calvert Cliffs’ Coord. Com. v. United States A. E. Com’n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971), the court added to the good faith standard by saying that the agency must comply with the procedural requirements to the fullest extent possible. The same Circuit in Natural Resources Defense Council, Inc. v. Morton, 148 U. S.App.D.C. 5, 458 F.2d 827 (1972), has said that the procedural requirements are not intended to be a straitjacket or to demand what is, fairly speaking, not meaningfully possible. Finally, the most recent decision of the D. C. Circuit, Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, D.C.Cir., 481 F.2d 1079, 1973, expounds the standards more clearly than earlier decisions: It is apparent, however, that the Commission seeks to avoid issuing its forthcoming “environmental survey” as an impact statement under Section 102, not out of any desire to circumvent NEPA’s procedural requirements, but rather because of a fear that Section 102’s requirements as to the contents of an impact statement are so strict, particularly as to the need for “detail” in the statement, that any Commission attempt to issue its environmental survey as a NEPA statement would be doomed to failure. While we do not altogether understand the Commission’s fears, we feel they are based on certain misapprehensions as to what NEPA requires. * * * -x- * -X- Accordingly, if the Commission’s environmental survey is prepared and issued in accordance with NEPA procedures, and if the Commission makes a good faith effort in the survey to describe the reasonably foreseeable environmental impact of the program, alternatives to the program and their reasonably foreseeable environmental impact, and the irreversible and irretrievable commitment of resources the program involves, we see no reason why the survey will not fully satisfy the requirements of Section 102(C). The environmental impact statement should be placed in perspective. The relevant provisions bring environmental factors into the agency decision-making placing them on an equal footing with economic, technical and other considerations. Also, this environmental impact statement serves as source material for the head of the agency, the Congress, the President and the public. See Calvert Cliffs’, supra. If the agency had failed altogether to follow out the procedure required by NEPA, the arbitrary and capricious standard might well apply. That is not our present problem. The rule of reason is a more appropriate standard where the sufficiency of the statement is being tested. In summary, then, our view is that the review of FES is limited to the following: (1) Whether FES discusses all of the five procedural requirements of NEPA. (2) Whether the environmental impact statement constitutes an objective good faith compliance with the demands of NEPA. (3) Whether the statement contains a reasonable discussion of the subject matter involved in the five required areas. III. The remaining issue and the crucial one in the case pertains to the adequacy of the Final Environmental Statement testing it by the five prescribed areas set forth in § 4332(2) (C), supra. As a preface, we note that there is some dispute as to whether the comments which were given by the various agencies and institutions to which the draft environmental statement were sent are to be regarded as a part of the Final Statement. The Department solicited, received and considered comments from many interested parties, including the plaintiffs-appellees. They contend that the various comments are not to be considered as a part of the Final Statement. However, we disagree. These were incorporated into the Final Statement and were available for consideration by all interested parties and are available for the information of the President, the Congress and the public. Those commenting included the various agencies within the Interior Department and ten other federal agencies, including the National Science Foundation, Atomic Energy Commission, National Aeronautics and Space Administration and the Environmental Protection Agency. In addition, there were comments of three states, various scientific groups and a number of business and educational institutions. Moreover, the Final Environmental Statement shows that the comments were considered by the authors of the statement. The cases hold that the comments are to be regarded as an integral part of the statement. See Con. Council of N. Car. v. Froehlke, 340 F.Supp. 222 (M.D.N.C.1972), and Environmental D. Fund, Inc. v. Corps of Eng. of United States Army, 342 F. Supp. 1211, 1217 (E.D.Ark.W.D.1972). In general, the district court found fault with the fact that the impact statement did not deal adequately with economic feasibility. In our judgment, however, this subject was treated sufficiently insofar as it affected the environmental consequences which, after all, are the important factors to be considered. The role of the Final Environmental Statement is to enunciate the environmental considerations for the benefit of the decision-makers. We are of the opinion that consideration of the five subjects prescribed by the statute was sufficient. (i) Environmental impact of the proposed action. There is no contention that the loss of helium, should it be lost, will affect the environment. It is, after all, a colorless, odorless, nonflammable, inert gas. Therefore, the matter to be weighed, and which the impact statement did weigh in accordance with our mandate in the previous case, is the secondary effect, namely, loss of the resource. As we have noted above, the supply which the government has in storage is sufficient to the year 2000 and perhaps beyond. Continued purchases by the government would at best extend the inventory for a period of from four to fourteen years. Thus, it would not solve the problem of the future use of it. The Final Environmental Statement considers the recovery of helium from the atmosphere. It considers the amount of electrical power which would be required and the effects of the generation of such power on air and thermal pollution. It notes that the extent of use of helium beyond the year 2000 is conjectural and speculative, and thus the effect on the atmosphere of recovering the helium is itself conjectural. For our purpose the statement took into consideration all of the possibilities and it was not required to do more than this. (ii) Adverse environmental effects which are unavoidable. The statement points out the future problems of recapturing the lost helium if it is necessary. (iii) Alternatives to the proposed action The statement considers several alternatives, including reliance on the normal market process, expansion of the helium program by legislative action, use of leaner gases and recapture from the atmosphere. The discussion in our view satisfies the present requirement and the statement did not have to dwell on the imaginary horribles posed by the plaintiffs. (iv) The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity. That which appears in parts i, ii and iii above considers the present question. The statement took into account the known sources and supplies together with the possible uses such as generation and transmission of electrical power for nuclear reactors, for the space program, for levitation systems of mass transportation and for eyrogenies. We disagree with the trial court’s finding that the impact statement’s failure to consider the alternative of making the helium purchase program financially self-sustaining was a fatal defect. Such an alternative is somewhat obvious in that it would be a continuation of the present purchase program. This alternative is discussed in the statement. The impact of this alternative is implicit in the discussion of the several alternatives contained in the Final Statement. (v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. The termination which is the proposed action is reversible by continuation of one or more of the contracts in modified form or by the negotiation of new contracts or by congressional action. Should the contracts be cancelled, and should the company shut down their separation plants, the helium which is now preserved would, of course, be lost. Beyond this, hard and fast predictions about the effect of termination of helium purchases on the technology which we would have in the Twenty-First Century would be nothing more than speculation. We consider the subject matter sufficiently discussed in the Final Statement. There is enough there to alert the decision-makers and others concerned. Apart from the five categories, § 4332(2) (C) requires that the Department “consult with and obtain the comments of” federal agencies having jurisdiction or special expertise with respect to any environmental impact involved in a contemplated action. The impact statement meets the standard prescribed by § 4332(2) (C) in this regard, when viewed in light of the “rule of reason” we have here approved. The requirement should not be viewed as necessitating that the completion of an impact statement be unreasonably or interminably delayed in order to include all potential comments or the results of works in progress which might shed some additional light on the subject of the impact statement. Such a result would often inordinately delay or prevent any decision in environmental cases. The courts should look for adequacy and completeness in an impact statement, not perfection. E. D. F. v. Corps of Engineers, 470 F.2d at 297. In this particular case this court expressed the opinion that an ultimate resolution of the issues involved in this case was urgent and should be expedited. 455 F.2d at 657. The initial impact statement was not issued until May 16, 1972, and the Final Statement issued on November 13, 1972. To have delayed the statement any longer would have flown in the face of what we considered a reasonable time for preparation of the statement. It is also contended by the parties (appellees) that the statement is defec- . tive because of failure to state the purpose of the contemplated action. Section 4332(2) (C) does not explicitly require that the purpose of the contemplated government action be spelled out. While in many types of governmental action the exact purpose of the action might be unclear and thus lead to confusion were it not stated, this is not such a ease. The self-evident purpose of the proposed action here is to terminate the continued purchase of helium reserves which the Secretary regards as economically superfluous and beyond the goals set forth in the 1960 Amendments to the Helium Act. We see no merit in the further argument of the appellees that the real reason for contract termination was to effect a financial saving and that the Office of Management and Budget dictated cancellation. The Secretary terminated the contracts and the Office of Management and Budget does not have authority to dictate to the Secretary the decision that he is to make in connection with a contract entered into and terminable by him. . In our prior opinion, 455 F.2d at 653, we said: Under the Act the Secretary is not required to purchase any helium. The entire matter is left to his discretion. In deciding to terminate the contract the Secretary stated that the basic purposes of the Act had been fulfilled, that is that the 25-year purchase program envisioned by the Act was unnecessary because as of the time of termination his estimates showed that there was enough helium in storage to fulfill government requirements through 1995. The Secretary notified the companies on January 26, 1971, that the contracts would be terminated effective March 27, 1971. In his letter he stated that there had been a diminution in the requirements of helium for essential governmental activities, and that there had been new discoveries since the execution of the contract, which discoveries had provided large sources of available helium if more of the gas “is required for essential government activities than is now in storage or will be recovered in government plants.” . In distinguishing between actions seeking damages and suits like the case at bar, the Supreme Court said: But the reasoning is not applicable to suits for specific relief. For, it is one thing to provide a method by which a citizen may be compensated for a wrong done to him by the Government. It is a far different matter to permit a court to exercise its compulsive powers to restrain the Government from acting, or to compel it to act. There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right. As was early recognized, “the interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief. * * * ” 337 U.S. at 704, 69 S.Ct. at 1468. See also some of the numerous other cases which support the Larson holding: Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) ; Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). . Since the defendants are engaged in upholding a public right they can only he acting pursuant to public laws. . National Helium Company, et al. v. Morton, 361 F.Supp. 78, filed June 11, 1972 (D.Kansas). . The cases cited by the trial court as calling for a “careful review” of agency action in environmental cases do not support the trial court’s use of the “arbitrary and capricious” standard in assessing the factual adequacy of an impact statement. Calvert Cliffs’ did not involve the review of an impact statement. Scenic Hudson was concerned with the adequacy of an agency’s decision, not the adequacy of the impact statement contributing to that, decision. N.R.D.C. v. Morton dealt with the legal question of whether an agency’s impact statement could exclude environmental alternatives merely because the agency had no specific authority to implement them. E.D.F. v. Corps, of Engineers is somewhat confusing in its discussion of the standard of review. Careful examination of the case reveals, however, that the language about using the “arbitrary and capricious” test refers to review of agency decisions rather than the factual sufficiency of impact statements. The court actually adopted the “rule of reason” test which we have here approved when it assessed the factual sufficiency of the agency’s compliance with § 102(2) (D) of NEPA. 470 F.2d at 297. A similar test would presumably be applied by that court in assessing the factual adequacy of other procedural requirements under § 102, including preparation of the impact statement. . Cf. Natural Resources Defense Council, Inc. v. Morton, supra. . Walter Holm & Company v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009, 1013 (1971).

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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, Appellee, v. David M. TREATMAN, Appellant. No. 75-1048. United States Court of Appeals, Eighth Circuit. Submitted June 11, 1975. Decided Oct. 31, 1975. Joseph Taback, Michael S. Luros, Beverly Hills, Cal., for appellant. Paul Madgett, Asst. U. S. Atty., Omaha, Neb., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HEANEY, Circuit Judges. HEANEY, Circuit Judge. David M. Treatman was convicted by a jury on three counts of a seven-count indictment charging use of the United States mail for the transportation of obscene material in violation of 18 U.S.C. § 1461. Treatman has filed a timely appeal from a final order of the District Court overruling his post-trial motions for a new trial and for judgment of acquittal. He raises six issues. We consider only one: whether the trial court’s communications with the jury outside the presence of the defendant and his counsel is grounds for reversal. II.We hold that it is. The appellant argues his constitutional and statutory right to be personally present at all stages of the criminal proceedings was violated by communications between the trial judge and the jury after the jury began its deliberations and without notice to the appellant and his counsel. Immediately prior to the commencement of the jury’s deliberation, the trial court called the jury into court without notice to or the presence of the appellant or his counsel for the purpose of correcting the wording of one of the instructions. On the morning of the second day of deliberations, the jury sent a note to the trial judge advising him that they had reached a verdict as to four counts of the indictment but were unable to reach a unanimous verdict as to the remaining three counts. The trial judge notified counsel of such communication and of his intention to give the jury a supplemental instruction in the form of the “Allen” charge. The charge was given over defense counsel’s objection. Thereafter, the judge received a note on behalf of several members of the jury asking to see a written copy of that instruction. Without notice to the appellant or his counsel, the trial judge complied with the jury’s request. Late in the jury’s second day of deliberations, a note was sent to the judge with respect to the instruction on assessing the prurient appeal of the evidence before it. This note read: We find instruction # 11 confusing. To have prurient appeal, do we consider the average person’s reaction? Or, do we judge if it has prurient appeal to a deviant group? Which should be our major consideration in defining “prurient”. If material has some prurient appeal, but is not the dominant theme, in our opinion, do we find “guilty” or “not guilty” on this one requirement of obscenity. /s/ Willard Stunkel, foreman The trial court answered this request by stating that he did not believe the instruction required further discussion. Later the same day, the jury sent another note to the trial judge asking the following questions: Judge Schatz: Regarding Purient [sic] interest — to be purient [sic], does sexual material have to appeal to the “majority” of the average adults in the so called community or to just “some” of the average? Is the same true for the “majority” or “some” of the deviant group. /s/ Willard L. Stunkel, foreman The District Court failed to notify the appellant and his counsel, and responded with the following note: 6:30 p. m. November 13, 1974 Ladies and Gentlemen: I have your note regarding prurient interest. I refer you to Instruction Number 11, particularly to the third paragraph of that Instruction. As stated therein, the material here involved must be measured by its appeal to the average American adult. The instruction does not provide, and there is no requirement, that said appeal be to the majority of the average adults in the entire community. Further, I again refer you to Instruction Number 11, and particularly the next to last paragraph of said Instruction which provides that you may also consider whether some of the materials involved are designed for a clearly defined deviant sexual group and whether such material appeals to the prurient interest in sex of the members of that group. There is no requirement, and you need not consider, whether said appeal is to a majority of such group. /s/ A. G. Schatz, Albert G. Schatz, Judge An hour later, the jury reached a verdict on all counts. Ordinarily, we will not consider assignments of error in criminal cases based on instructions given to the jury unless objections are made as required by Fed.R.Crim.P. 30. United States v. Freeman, 514 F.2d 171, 174 (8th Cir. 1975). Since neither the appellant nor his counsel were notified of the court’s intention to give additional instructions and were not present when they were given, the appellant cannot be faulted for failure to except to the additional instruction given in his absence. We consider the issues properly raised on appeal. It is settled law that communications between judge and jury in the absence of and without notice to defendant and his counsel are improper. Jackson v. Hutto, 508 F.2d 890, 891 (8th Cir. 1975). The appellant’s right to be present is constitutionally guaranteed by both the Fifth and Sixth Amendments to the federal constitution. Id. However, although such communications create a presumption of prejudice, Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Jackson v. Hutto, supra 508 F.2d at 892, such presumptions “may be overcome by evidence giving a clear indication of lack of prejudice.” Rice v. United States, 356 F.2d 709, 717 (8th Cir. 1966) (footnote omitted). See McClain v. Swenson, 435 F.2d 327, 331 (8th Cir. 1970) (presumption overcome). We need not decide whether the presumption of prejudice on the first two instructions were overcome by clear evidence indicating lack of prejudice because, in our view, there was fundamental error in the supplemental instruction. First of all, it is obvious from the jury’s questions that they did not understand that the prurient interest of the average adult must be measured by the synthesis of the entire community. There is obviously no such thing as a minority or majority of “the average adult in the community” or just “some” of the average. The court’s answer that “there is no requirement that said appeal be to the majority of the average adults in the entire community” implies the converse, that it need only appeal to “some” of the average people. This, of course, would be error and is contradictory to what the court originally charged the jury. It is obvious by the jury’s question that simply referring them back to the instruction was not enough because the jury misunderstood the court’s instruction and the court, if it felt amplification was necessary, should have pointed out in the supplementary instructions that the term “average person” does not involve any number of people, the majority, or a few, or some, but is a term connoting a composite or synthesis of the community. It is a term used hypothetically as pointed out in Hamling v. United States, 418 U.S. 87, 104, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and used in the same manner as the “reasonable man.” The defense counsel, not being present, did not have an opportunity to point this out to the court. Further error was committed in the remainder of the instruction because, in speaking of a specifically defined deviant sexual group, the court once again tells the jury it does not need to be an appeal to the majority of such group. This implies again that the questioned material needs to appeal to only some members of that group which might include only “the most susceptible members of that group.” This clearly would be contrary to Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), and Hamling v. United States, supra. There can be no question that the jury would interpret the judge’s answer in that manner because of the way the question was asked. The jury is asking, does it need to appeal to a “majority” or just to “some.” The court answers there is no requirement that it appeal to the majority. The direct implication is that it needs to appeal only to some. This is clearly wrong because Hamling and Mishkin require an appeal to a synthesis or the average person of a community or to a specified group as a whole. These terms do not connote numbers for if they did, then the numbers might be measured by the few in the community or in the group which were the most susceptible to harm. The judgment of conviction is reversed. . The other five issues were: I. Was Instruction No. 11a violation of defendant’s First and Fifth Amendment rights because it allowed the jury to assess the pruriency of the allegedly obscene material in terms of its appeal to a clearly defined deviant sexual group because there was no evidence to show that the material was designed or disseminated to such a group. II. Did the use of the “Allen” charge deprive defendant due process of law because (a) the “Allen” charge is per se coercive, and (b) the circumstances under which it was given coerced the jury into finding appellant guilty. III. Was the instruction to the jury allowing them to assess the offensiveness of the alleged obscene material in terms of a “national standard” error. IV. Were the verdicts of guilty on three of the seven-count indictment constitutionally inconsistent with acquittals on the other four counts because the subject matter in all seven counts was substantially the same. V. Was the final argument of the United States Attorney prejudicial to appellant because of the reference to a fact unsupported by the record and outside the issues in the case. . See Rule 43, Fed.R.Crim.P.

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

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

COMMISSIONER OF INTERNAL REVENUE v. VAN BERGH. No. 25, Docket 22712. United States Court of Appeals Second Circuit. Argued Dec. 9, 1953. Decided Jan. 6, 1954. Fred E. Youngman, Washington, D. C., H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, A. F. Prescott, Sp. Assts. to the Atty. Gen., for petitioner. David Alter, Simons, Schur & Straus, New York City, Max Perl, New York City, of counsel, for respondent. Before CHASE, Chief Judge, and L. HAND and MEDINA, Circuit Judges. . Stone v. White, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265. L. HAND, Circuit Judge. This case arises upon a petition of the Commissioner of Internal Revenue to review an order of the Tax Court, deciding that the taxpayer, Van Bergh, had overpaid $1,369.32 upon his income tax for the year, 1945. The decision turns upon whether the overpayment by Van Bergh, who had a “net operating loss” in his income for 1946 which he was entitled to “carry back” to his income tax for 1945, should be computed without deduction; or whether the Commissioner might reassess his tax for 1945, and use as a set-off against any overpayment a deficiency that had escaped assessment in 1945. Two points are involved: (1) whether the Commissioner had power to reopen the- assessment for 1945 at all; and (2) whether on the merits Van Bergh’s tax, as assessed in 1945, was underpaid. As the Tax Court held that the statute of limitations barred any reassessment for 1945 even as a set-off, it did not decide the second point; nor shall we do so, although we differ on the first point. Nothing that we say is to be taken as indicating any opinion as to whether Van Bergh underpaid his tax for 1945. The facts were as follows. Van Bergh filed his return for 1945 on or before January 15, 1946, reporting a tax of nearly $11,000 which he paid. More than three years later-r--that is, on February 1, 1951 — the Commissioner mailed a notice of deficiency of a little more than $10,000 for 1945; and, although at one time he asserted that this notice, being less than five years after March 15, 1946, was in seáson, on this appeal he appears to have abandoned that position, the Tax Court having ruled that the three years limitation barred the assessment. Before March 15, 1950: i. e-within three years after the due date of his return for 1946, Van Bergh filed a. claim for refund of part of his payment, for 1945, basing it upon § 122(b) (1)-of the Internal Revenue Act which authorizes a taxpayer “for each of the two-preceding taxable years” to “carry-back”' any “net operating loss”. In 1946 he did in fact have a “net operating loss” of $3,294.23, which, if used as a loss in-1945, would, as the Commissioner concedes, have reduced his tax for that year by $1,369.32, the amount now claimed a® a refund. . In answer the Commissioner asserts that, although the three year statute may have barred the assessment of February 1, 1951, he is nevertheless free to treat as a set-off against the refund any underpayment of the tax due in 1945. He argues that, under the doctrine first laid down in Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 7& L.Ed. 293, the right to a refund depends upon the principles determining an action for money had and received, .in which the question always is whether the defendant is entitled in good conscience to keep the money. This is admittedly the doctrine, when a taxpayer sues under the Tucker Act to recover a tax wrongfully collected, and the Commissioner argues that it must apply to-an order of the Tax Court; because, since that, as res judicata, would “probably” bar the defence, it would in effect obliterate the action. Van Bergh answers that the doctrine is to be confined! to occasions when the refund arises out, of the payment of a tax arising and assessable in the same years as the putative unassessed deficiency that is to be the set-off; and that here, although it i® true that the money to. be refunded was paid in 1945, the refund itself arose out of a “net operating loss” that had not existed in 1945. We do not feel the force of this distinction. The purpose of the ■“carry-back,” or “carry-over,” privilege is to allow a taxpayer some equivalent for the fact that he has not been able to reduce his tax by a loss, because he has had no income in that year against which to credit it; and the only practicable equivalent is by a fiction to treat the loss as a deduction from his income in an earlier, or a later, year. There are two possible ways in which this might be done: (1) to allow the loss as a deduction from the net income as returned in the earlier, or the later, year; (2) to recompute the whole income for the earlier, or later, year, using the loss as a credit. While there is nothing in the statute that expressly adopts the second method, we can see no reason to suppose that, when Congress decided to allow the loss to be treated as though it had in fact occurred in the earlier, •or later, year, it did not mean it to be so treated for all purposes. If this is not true, it will result that the taxpayer will be put in a better position, when the loss occurs in a later, or an earlier, year, than when it occurs in the year when it is allowed as a deduction. That obviously cannot have been the intention. Van Bergh cites two decisions of the Tax Court which, he says, have held the contrary; but he is mistaken. In each the court was considering § 3780 of the Internal Revenue Act, subdivision (a) of which allows a taxpayer to file an "“application for a tentative carry-back adjustment”; and subdivision (b) declares that on receiving it “the Commissioner shall make * * * a limited examination of the application * * * and shall determine the amount of increase or decrease in each tax attributable to such carry-back * * *. Each such increase shall be deemed determined as a deficiency and shall be assessed”. It will be observed that the Commissioner’s action not only is described as a “tentative carry-back adjustment”, but that he need not make his “limited examination” at all except “to the extent he deems practicable” within the ninety days. Subdivision (c) provides that, if he finds that “the amount * * * refunded * * * is in excess of the overassessment attributable to the carry-back * * * he may assess the amount of the excess as a deficiency”. The two decisions cited held that the Commissioner’s power under § 3780(c) to assess a deficiency is limited, as indeed the words expressly declare, to a deficiency which is “attributable to the carry-back”; and that it does not authorize him to reopen the assessment for the earlier year. This effectively distinguishes these decisions from the case at bar; for, whatever be their scope, they were confined to § 3780 (c): that is, to a “tentative carry-back adjustment”, under which the taxpayer has received, or has been credited with, some refund. They do indeed hold that, in reassessing as a deficiency a refund made under an “application” authorized by § 3780(a), the Commissioner may not avail himself of an underpayment in the earlier year. That does not mean, however, that upon his original “tentative determination” of the claim for a refund, he is forbidden to search the return for underpayments in the earlier year, and to use them as set-offs to the refund. At most it means no more than that, if he fails to open the earlier assessment upon that examination and grants a refund, he may not thereafter do so, when he assesses that refund as a deficiency. We need not therefore pass upon the correctness of these decisions, because they do not bear upon the facts at bar. Finally, Van Bergh argues that it is not necessary to remand the cause to determine whether he underpaid his tax in 1945, and whether there was any support on the merits for the Commissioner’s claim to a set-off; because any such right the Commissioner forfeited by his conduct in the proceeding in the Tax Court. The facts on which he relies are as follows. In “Findings of Fact and Opinion,” filed June 12, 1952, the judge held nothing as to Van Bergh’s claim for a refund, but only that the Commissioner’s assessment on February 1, 1951, was barred, because the three year limitation applied to it. Both parties filed “Computations” under Rule 50, Rules of Practice, Tax Court, 26 U.S.C.A. § 1111, —Van Bergh, on August 12th; the Commissioner, on September 5th, and at a hearing on September 10th, the Commissioner argued that the claim for a refund had been filed too late and should be denied on that account. The judge apparently accepted this argument; at least the order he entered on September 23rd, followed his opinion, and merely declared invalid the assessment of February 1, 1951. Van Bergh thereupon on October 27th moved to vacate the order of September 23rd and to determine the overpayment; and this the judge did on November 7th. Not only does the record contain nothing to suggest that in making this order he determined the merits of the Commissioner’s claim that Van Bergh had underpaid his tax for 1945; but it is clear that he did not think that the merits of the claim were before him, for he said of the overpayment that its “amount does not exceed the amount of such overpayment attributable to a net operating carry-back for the year, 1946.” That was language borrowed from § 3780(c), and showed that he did not think the merits were open. This order the Commissioner moved the Tax Court in banc to review, and the motion was denied on December 15th. Van Bergh’s argument is that the Commissioner’s conduct “served to confuse the issues,” because he misstated to the Tax Court the “timeliness of taxpayer’s claim for refund at the hearing on the computation”; and it was by this means that he secured the order of September 23rd. We will assume with Van Bergh that it was the Commissioner’s argument upon the hearing on computation on September 10th that induced the judge not to pass upon the claim for refund. We will also assume for argument that he did not at the same time press his other position: i. e. that on the merits he had a set-off against the refund. However, we cannot agree that by so doing he forfeited the set-off, if in fact Van Bergh had underpaid his tax for 1945. Perhaps upon the hearing under Rule 50 he should have presented all the objections he had; but it would be an unjustified penalty to forfeit his defence upon the merits, when he won on another ground. Certainly there is no evidence that he intended to abandon it, and his failure to press it did not impose any substantial added burden upon Van Bergh. As for paragraph 10 of the stipulation, it is so plainly irrelevant that we need not discuss it. Order reversed; cause remanded for further proceedings in accordance with the foregoing opinion. . § 122(b) (1), Title 26 U.S.O. . Bull v. United. States, 295 U.S. 247, 261, - 262, 55 S.Ct. 695, 79- L.Ed. 1421. . Leuthesser v. Commissioner, 18 T.C. 1112; Bouchey v. Commissioner, 19 T.C. 1078. . § 3780, Title 26, U.S.C,

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

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

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

Jane Borda FEICK, Joseph L. Borda, Jr., Anthony Borda, Charles Borda, Jr., and Ann Borda Marin, Plaintiffs-Appellants, v. Charles J. FLEENER and Sally Fleener Cave, Defendants-Appellees. No. 972, Docket 80-9128. United States Court of Appeals, Second Circuit. Argued March 30, 1981. Decided June 22, 1981. Nicholas J. Zoogman, Anderson, Russell, Kill & Olick, P.C., New York City, for plaintiffs-appellants. Peter R. Sherman, Washington, D.C., (Michael F. Curtin and David Barmak, Washington, D.C., of counsel), Sherman, Fox, Meehan & Curtin, P.C., Washington, D.C., for defendants-appellees. Before WATERMAN, and MANSFIELD, Circuit Judges, and NEWMAN, Judge. Honorable Bernard Newman, Judge of the United States Court of International Trade, sitting by designation. NEWMAN, Judge: We are faced with a family dispute wherein appellants seek recovery from appellees of some fifty thousand dollars representing a portion of the legal fees paid by appellants for services rendered in connection with a decedent’s estate which allegedly benefited appellees. Appellants, who are brothers and sisters, also are cousins of appellees; appellees are brother and sister. This is an appeal from an order of the District Court, per Judge Whitman Knapp, dated July 31, 1979, dismissing the first cause of action in the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and from his order dated November 18, 1980 granting summary judgment, and dismissing the second and third causes of action in the complaint under Rule 56, F.R. Civ.P. We affirm. I. The material facts, although a maze of complexities, are not in dispute. Leopold Borda (“Leopold”) died testate on January 15, 1976. His will bequeathed the “net proceeds” of certain property located in Puerto Rico, known as “Esperanza”, to two nephews, Joseph L. Borda, Sr. (“Joseph, Sr.”) and Charles Borda, Sr. (“Charles, Sr.”), and to his niece Marguerite Borda Fleener (“Marguerite”), or their issue. Joseph, Sr. predeceased Leopold leaving five surviving children, appellants herein: Joseph Borda, Jr. (“Joseph, Jr.”), Anthony Borda, Charles A. Borda, Jane Borda Feick and Ann Borda Marin. Leopold’s niece, Marguerite, likewise predeceased Leopold, survived by two children, the appellees: Charles J. Fleener (“Fleener”) and Sally Fleener Cave. Charles, Sr. survived Leopold, and is still alive, but is not a party to this action. Although Leopold’s will named his nephews and niece as legatees, Susan Rogers (“Rogers”) claimed to be Leopold’s spouse, and Guillermina Martinez (“Guillermina”) purported to be Leopold’s daughter. Rogers and Guillermina both asserted claims against Leopold’s estate as superior to the interests of the designated beneficiaries. It further appears that on January 27, 1969 Leopold was adjudicated an incompetent, and Joseph, Sr. and Rogers were appointed co-committees' of his person and estate.' Thereafter, Charles, Sr. commenced an action in the New York Supreme Court, Westchester County to annul Leopold’s marriage to Rogers on the basis of Leopold’s incompetence at the time of the marriage ceremony. The marriage was annulled by the State Supreme Court on July 11,1972 (affirmed on appeal), thus eliminating Rogers’ claim to any portion of Leopold’s estate. Further, a settlement was negotiated with the alleged daughter, Guillermina, thus disposing of her claim against Leopold’s estate. In January 1971, Joseph, Sr. and Charles, Sr. executed and delivered to the law firm of Jaffe Cohen, Crystal & Mintz (“Jaffe Cohen”) a document dated January 29, 1971 wherein Joseph, Sr. and Charles, Sr. agreed: to retain the services of [Jaffe Cohen] in representing us in an Annulment-Divorce proceeding of Leopold Borda against Susan Borda, and all matters related thereto. We agree jointly and severally to pay you the following: 3. Twenty-Five (25%) percent of all monies inherited by us and/or any other nieces, nephews or descendents of nieces or nephews of Leopold Borda from the Estate of Leopold Borda will be paid immediately to you upon payment by the Estate. In addition to bearing the signatures of Joseph, Sr. and Charles, Sr. binding them “individually, jointly and severally”, the January retainer agreement was signed by Joseph, Sr. as “Attorney-in-fact” for appellees. At the time of executing the retainer agreement with Jaffe Cohen, Joseph Sr. possessed separate written powers of attorney dated June 5, 1970 from each of the appellees appointing Joseph, Sr. as their attorney— to act with regard to my one-eighteenth (Vis) undivided interest in the plantation in Manatí, Puerto Rico, known as “Esperanza”, including, without limitation, all real property interests therein, all buildings and other improvements erected thereon and all appurtenances thereto. [Emphasis added.] Joseph, Sr. died in May 1971 (terminal' his commission), and shortly thereat. Rogers was removed as a committee of Leopold’s person and estate. Thereupon, Frank Connelly, Esq. was appointed by the Supreme Court as sole committee and guardian ad litem to represent Leopold in the annulment proceeding. Connelly then intervened in the annulment action. Subsequently on September 28, 1971, Charles Sr. and each of the appellants signed and delivered to Jaffe Cohen a letter reaffirming the January 29, 1971 retainer agreement. The September letter specifically stated that Fleener had disclaimed authorization for any representation of his interest by Jaffe Cohen: On May 19, 1971 our agreement with you was confirmed by Charles Borda and by Joseph L. Borda, Jr. following the death of Joseph L. Borda, Sr. on May 5, 1971. Joseph L. Borda, Jr. was acting on behalf of all of the heirs of Joseph L. Borda, Sr. and Charles Borda was acting both in his individual capacity and as Executor of the Estate of his brother, Joseph L. Borda. At that time, we sought to obtain confirmation from Charles Joseph Fleener of his commitment to proceed with the various steps which your law firm had contemplated would be forthcoming. In the interim you have met with Mr. Fleener and with his attorney Michael Curtin, and as a result of your meeting, he has promised that he would advise us as to his position with regard to further litigation. Mr. Fleener has now taken the position that he does not want verbal [sic] litigation brought on his behalf. Regardless of the position taken by Charles Joseph Fleener, we wish to reconfirm our commitments as set forth in the letter of January 29, 1971 and as confirmed on May 19, 1971. [Emphasis added.] The September letter went on to state: We understand that your activities thus far have resulted in your law firm having already earned 25% of whatever inheritance we may receive from the Estate of Leopold Borda. Thus, in the event that at any point we should direct you not to continue with respect to any activities which you are performing on our behalf, nonetheless you will have earned the 25% deferred compensation by the activities which you have performed to date. Significantly, the September letter was not signed by either of the appellees. As mentioned, Leopold’s marriage to Rogers was annulled by the Supreme Court of New York in July 1972. The State Supreme Court awarded both Jaffe Cohen and Connelly substantial fees for their services in connection with the annulment litigation. About a month after the annulment of Leopold’s marriage, Fleener conferred with several of the appellants regarding various family matters. Either at or shortly after this meeting, Fleener provided Joseph, Jr. with a letter dated August 11, 1972, which reviewed various issues that were the subject of the family’s meeting. The letter offered “to present to [Joseph, Jr.], for the family’s consideration, the topics of discussion and possible solutions to these topics that have been the subject of our meetings and conversations for the past several months.” Charles Fleener went on to outline and discuss various “problems”. One such problem was the annulment litigation in New York, concerning which Fleener’s letter stated: The litigation in New York involving Susan Rogers [sic] and Uncle Leopoldo unfortunately, is and has been a bone of contention since the death of your father [Joseph, Sr.]. Neither Sally nor I were aware of the activity going on after mother’s death. It was not until after your father’s death that we came to understand the commitments made in undertaking the lawsuit. Without questioning or challenging the motives of either Uncle Charles [Charles, Sr.] or your father [Joseph, Sr.], we chose not to participate in the suit. Last fall you and your brothers and sisters chose a different path and committed yourselves to be obligated to Mr. Berman’s law firm [Jaffe Cohen] for the prosecution of the suit. We feel we have no obligation to Mr. Berman’s firm or any other lawyer or lawyers involved in this litigation. We made a conscious decision not to become financially obligated for any fees, costs or other expenses incurred in its prosecution. Mr. Berman, as all of you, has been well aware of this decision since last year. Continuing, the letter stated: Nonetheless, Sally and I do not want this decision to create an undeserved windfall for us. If, as the result of your efforts in pushing this litigation, we inherit from Uncle Leo’s estate any money or other property which, but for the lawsuit, we would not have inherited we will contribute up to one-third of that portion of our inheritance to you, your sisters and brothers, and Uncle Charlie to help defray the legal fees, expenses and costs incurred in your pursuing the litigation. You must understand that Sally and I made certain judgments about this litigation last year. As a result, we chose not to become obligated to anyone for its prosecution. Part of our judgment was based on the fact that we were advised by our lawyer that there was little likelihood that there would be any substantial inheritance coming from Uncle Leo’s estate, whether the lawsuit was successful or not. If, in fact, this proves not to be the case we are willing to help defray the expenses that have been incurred. On the other hand, if our judgment was correct and we only receive from Uncle Leo’s estate that which we would have gotten whether or not the suit was filed, we do not think it appropriate for us to contribute to the expenses. Fleener’s August 11, 1972 letter also discussed other matters of dispute among the family members. One such issue was the pending claim of Guillermina as the illegitimate daughter of Leopold. Fleener set forth appellees’ position regarding Guillermina’s claim in the August 11, 1972 letter: Last fall Mr. Berman asked our lawyer’s permission to negotiate with Guillermina’s lawyers on Sally’s and my behalf. He also asked for us to contribute to the expenses of the trip to undertake these negotiations. We chose not to acquiesce in either request. Nonetheless, we did indicate that if, in fact, an agreement was reached with Guillermina we would review same, and, if possible, go along with its terms. Fleener then stated that “if * * * your efforts create a benefit for Sally and me we would, of course, agree to the same terms in connection with that benefit as we have in connection with the Leopoldo lawsuit mentioned above.” Fleener concluded his letter: As you can readily appreciate, all of the foregoing is in the spirit of our discussions, i. e., an effort to accommodate various legal positions in an attempt to settle once and for all the family dealings covering these matters. You can also appreciate the fact that if these matters are to be settled, as outlined above, all those affected thereby must agree to the proposals. Accordingly, I would ask that you circulate this letter to Anthony, Ann, Janie, and Charles. Events are moving very rapidly and it will be to the family’s advantage if we can formalize our understanding as soon as possible. Considering my immediate schedule, and that of Mike Curtin’s, I would request that we have some response from you by Tuesday, September 5. Appellants never responded to Fleener’s letter. Guillermina’s claims were settled in February 1978. For the firm’s services relative to the settlement of Guillermina’s claim, Jaffe Cohen was awarded a fee of $37,500 from Leopold’s estate by the State Supreme Court. Jaffe Cohen never charged appellants, and appellants never paid, any fee for services rendered in connection with Guillermina’s claim. In due course, Leopold’s will was admitted to probate on April 6, 1976. Total distributions from Leopold’s estate to appellants, appellees and Charles, Sr. have exceeded one million dollars, representing principal and interest on the proceeds received from Puerto Rico’s expropriation of Leopold’s one-third interest in Esperanza. Conforming to their retainer agreement with Jaffe Cohen, appellants and Charles, Sr. ultimately paid 25 percent of the distribution plus disbursements to Jaffe Cohen. When Jaffe Cohen made an initial distribution of funds to appellants and Charles, Sr. in April 1978, Ernest Allen Cohen, a Jaffe Cohen partner, explained the computation of Jaffe Cohen’s fee and reiterated the fee arrangement: As was specified in the retainer agreements executed after the death of your father, Joseph, the Fleeners had taken the position that your father was not their attorney-in-fact and therefore was not authorized to execute a retainer on their behalf as he had done prior to his death. Thus, we had advised you, and you had acknowledged by executing the subsequent retainer agreement, that we would only proceed on the basis of each of the signatories taking full responsibility for the full amount of our fee so that we would not be cast in the position of having to dispute it with any of the members of your family, the Fleeners or otherwise. This arrangement has been confirmed many times since the retainer was originally executed. II. The first cause of action in appellants’ complaint seeks payment of a proportionate share of Jaffe Cohen’s legal fees and expenses on the ground that appellees breached an agreement retaining Jaffe Cohen made by Joseph, Sr., pursuant to powers of attorney allegedly authorizing him to act on their behalf. This was dismissed under Rule 12(b)(6), F.R.Civ.P. for failure to state a claim upon which relief could be granted. Appellants’ second cause of action seeks recovery of a proportionate share of Jaffe Cohen’s legal fees on the ground that appellees were unjustly enriched by reason of the alleged creation of a “common fund” through the legal services. The third cause of action alleged that Fleener’s August 11, 1972 letter to Joseph Jr. was a binding agreement or promise to pay a share of the fees, upon which appellants relied to their detriment. These two claims were dismissed by Judge Knapp, pursuant to appellees’ motion for summary judgment, on the ground that upon the undisputed facts appellants were not entitled to any recovery. III. Turning to the merits, we initially consider appellants’ contention that the District Court erred in dismissing their first cause of action under Rule 12(b)(6), F.R. Civ.P. The District Court based its decision on the ground that appellees’ powers of attorney did not authorize Joseph, Sr. to retain Jaffe Cohen in an effort to have Leopold’s marriage annulled, since Joseph, Sr.’s authority was restricted to appellees’ separate one-eighteenth interests in Esperanza, and “[tjhose interests would be completely unaffected by any change in the disposition of Leopold’s estate”. We find no error in that ruling. As the District Court aptly pointed out, Joseph, Sr.’s powers were expressly limited by the June 5, 1970 instruments executed by appellees to their one-eighteenth undivided interests in Esperanza. To appreciate the significance of this express limitation on the power granted to Joseph, Sr., several facts should be noted. Joseph, Sr., Charles, Sr. and appellees’ mother (Marguerite) jointly owned a one-third undivided interest in Esperanza. When appellees’ mother died, her one-ninth interest devolved to appellees in equal one-eighteenth undivided shares. In addition, Leopold owned a separate one-third undivided interest in Esperanza, and his will devised such interest (or the proceeds in the event of sale) to Charles, Sr., Joseph, Sr., and Marguerite, or to their issue. Consequently, appellees as the surviving issue of Marguerite, had two interests in Esperanza: first, each owned an undivided one-eighteenth share; and second, as potential legatees under Leopold’s will, each had an additional expectancy. The plain language of the powers of attorney granted to Joseph, Sr. affected only the undivided one-eighteenth interest in Esperanza which appellees then actually owned. There is not the slightest suggestion in those meticulously phrased instruments that the attomey-infact (Joseph, Sr.) was. authorized to take any action on behalf of appellees relating to their potential additional interests or expectancies as beneficiaries of Leopold’s estate. While ambiguities are to be construed against the grantor of a power, Silver Bay Ass’n for Christian Conferences and Training v. Landon, 121 Misc. 712, 201 N.Y.S. 868, (Sup.Ct.1923), aff’d, 215 A.D. 850, 213 N.Y.S. 910 (3d Dept. 1926), the District Court found that the powers of attorney cannot in these circumstances be construed to authorize Joseph, Sr.’s action. We agree. Since the documents upon which appellants based their claim show on their face absence of any grounds for relief, dismissal was proper. Jacksonville Newspaper Printing Pressman and Assistants Union No. 57 v. Florida Publishing Company, 340 F.Supp. 993 (M.D.Fla), aff’d, 468 F.2d 824 (5th Cir.), cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196 (1972). Accordingly, Judge Knapp’s dismissal of appellants’ first cause of action was correct insofar as it was predicated upon the powers of attorney. Appellants contend, however, that in dismissing the first cause of action the District Court erroneously disregarded the allegations concerning Joseph, Sr.’s role as appellants’ and appellees’ “attorney-in-fact”; concerning Fleener’s letter of August 11, 1972 which promised to pay appellees’ share of Jaffe Cohen’s fees; and concerning appellees’ ratification of Joseph, Sr.’s actions on their behalf by retention of substantial benefits received because of Jaffe Cohen’s efforts. Further, appellants insist that the District Court committed error by unduly restricting the powers of attorney. In this aspect, appellants maintain that they are entitled to prove at trial that the powers of attorney were intended by appellees to authorize Joseph, Sr.’s “efforts to conserve and increase the eventual funds available for distribution to defendants from the sale or other disposition of ‘Esperanza’. (Appellant’s brief, 22-23.) Appellants’ argument that they were entitled to show at a trial that Joseph, Sr. was appellees’ attorney-in-fact by virtue of his “course of conduct and consistent role over a period of many years” is completely without merit. The powers executed by appellees on June 5, 1970 expressly delineating Joseph, Sr.’s authority respecting Esperanza negate any theory of an implied general appointment encompassing some unspecified broader authority. Moreover, there is no indication in the complaint that appellants used the term “attorney-in-fact” in anything other than its ordinary sense, which connotes that the authority be “conferred by an instrument in writing, called a ‘letter of attorney’, or more commonly a ‘power of attorney’.” Black's Law Dictionary (Fourth ed., 1968), p. 164. Appellants’ ratification argument is untenable in light of appellees’ repeated disclaimers of any responsibility for Joseph, Sr.’s actions. Finally, appellants urge that the District Court should not have dismissed their first cause of action in view of their allegation that Fleener agreed in his August 11, 1972 letter that appellees would pay their share of Jaffe Cohen’s fees. While it is true that such allegation is encompassed by appellants’ first cause of action, the complaint pleads three distinct causes of action: the first, based on the January retainer letter signed by Joseph, Sr. as appellees’ attorney-in-fact (which was dismissed by Judge Knapp); the second, premised on an unjust enrichment theory; and the third, based on Fleener’s August 11, 1972 letter (which latter two causes were not dismissed). Despite the indication by the District Court that appellants’ “first cause of action” was dismissed, plainly the Court actually dismissed only that part of appellants’ case which related to the January retainer letter and the powers of attorney, while expressly finding that “plaintiffs’ third cause of action [viz., that based on Fleener’s letter of August 11, 1972] survives the motion to dismiss” (District Court’s July 31, 1979 Memorandum and Order, p. 5). Any confusion engendered by the District Court’s dismissal of appellants’ first cause of action pursuant to Rule 12(b)(6) notwithstanding the express survival of their cause of action based on Fleener’s letter of August 11, 1972, may be ascribed to the overlapping and confusing manner in which the causes of action were pleaded in the complaint. All of the substantive allegations are lumped under the heading “First Cause of Action”, and then are adopted by reference and applied to different theories under the headings “Second Cause of Action” and “Third Cause of Action”. Hence, appellants claim that the allegation regarding the August 11, 1972 letter (paragraph 8) was part of the First Cause of Action which was dismissed by the District Court. Nevertheless, it is obvious from the Court’s discussion of appellants’ claims that the “First Cause of Action” was treated as involving solely the January 1971 retainer agreement and the powers of attorney. In view of the foregoing considerations and all the facts and circumstances, we cannot perceive any benefit to appellants if they were permitted to file an amended complaint, as they have now requested in a footnote to their brief. Accordingly, the request is denied. IV. We now consider the District Court’s grant of summary judgment dismissing appellants’ second and third causes of action. Appellants insist that summary judgment was inappropriate in this case because of the existence of genuine issues of material fact. It is, of course, fundamental that on a motion for summary judgment the court cannot try issues of fact; it determines whether there are justiciable issues for trial. S.E.C. v. Research Automation Corporation, 585 F.2d 31 (2d Cir. 1978). Specifically, appellants advance the argument that summary judgment was inappropriate in the instant case respecting appellants’ second and third causes of action because they involve issues of motive and intent which preclude summary judgment. See e.g. Cali v. Eastern Airlines, Inc., 442 F.2d 65 (2d Cir. 1971). We are unable to agree with appellants’ position that there exist genuine issues of material fact in this case. On the contrary, this case represents a classic example of the effective use of the summary judgment procedure. This Circuit has observed that “just as trial by affidavit represents an unjustified diminution of the rights of plaintiffs, neither courts nor defendants should be subjected to trials which can be little more than harassment.” Applegate v. Top Assoc., Inc., 425 F.2d 92, 96 (2d Cir. 1970). Here, the applicable law applied to the undisputed facts shows that appellees were entitled to summary judgment dismissing the second and third causes of action, thus obviating the necessity of a trial. Courts, refusing to exalt form over substance, cannot be awed by procedural spectres, and cannot be swayed by feigned issues. The District Court, after carefully considering the applicable New York law, rejected appellants’ argument that appellees were unjustly enriched as a result of the services performed by Jaffe Cohen, and therefore by virtue of the “common fund” doctrine, appellants were entitled to a proportionate reimbursement for their payments to that firm. We are drawn to the conclusion that the District Court correctly held appellees should not be required to contribute to Jaffe Cohen’s fees on the basis of the “common fund” doctrine. The general rule in New York is that parties are not obligated to pay the fees of attorneys whom they have not retained, and a party who contracts for a lawyer’s services cannot compel contribution for benefits obtained by others as a result of those services. E.g., In Re Loomis, 273 N.Y. 76, 6 N.E.2d 103 (1937); Lynn v. Agnew, 179 App.Div. 305, 166 N.Y.S. 274 (1917), aff’d sub nom. Lynn v. McCann, 226 N.Y. 654, 123 N.E. 877 (1919). Under this general rule appellants are not entitled to contribution from appellees. Here, appellants retained Jaffe Cohen to provide legal services, and appellees declined to join in appellants’ efforts. Consequently, even if Jaffe Cohen’s services benefited appellees, liability for the fees cannot be imposed upon them in the absence of their agreement. Appellants, however, heavily rely upon the “common fund” doctrine which provides an exception to the Loomis rule. Under that doctrine, individuals who benefit from the creation or distribution of a fund may be charged with the fees of the attorney whose efforts created the fund, although they had no contract with that attorney. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Sprague v. Ticonic National Bank, 307 U.S. 161, 167 (1939); Realty Equities Corp. of New York v. Gerosa, 30 Misc.2d 481, 209 N.Y.S.2d 446 (Sup.Ct.1960). In this case, the undisputed facts show that no “fund” was created by Jaffe Cohen’s efforts. The money that was distributed to appellants and appellees, which might otherwise have been distributed to Rogers and Guillermina, stems from one source: the estate of Leopold. Obviously, Jaffe Cohen played no role in creating Leopold’s estate. Similarly, inasmuch as appellants and appellees were named as beneficiaries in Leopold’s will, Jaffe Cohen’s services played no role in creating their status as beneficiaries under the will. While Jaffe Cohen’s efforts helped eliminate the competing claims of Rogers and Guillermina, such efforts did not create a fund. Although no New York case precisely in point has been cited by the parties or found by the Court, the present case appears somewhat analogous to Baron v. Baron, 286 So.2d 480 (La.App.1974), cited in appellees’ brief. Baron grew out of an earlier suit by the plaintiff to declare approximately $22,-000 of gold certificates an asset in the estate of plaintiff’s aunt. The suit was successful, resulting in the receipt by plaintiff and his brother of an additional $5,500 each from the aunt’s estate, while their cousin received an additional $11,000. Plaintiff, an attorney, then sued his cousin to recover the fair value of plaintiff’s services rendered in successfully pursuing the earlier suit. The trial court awarded plaintiff legal fees of $2,500, but the Court of Appeals of Louisiana reversed, holding inter alia: [t]he present case would not fall under the ‘fund’ doctrine because the plaintiff did not create a fund; he merely secured judicial recognition of the ownership by the succession of an asset already owned by it. Here too, no fund was created by appellants’ or Jaffe Cohen’s efforts since the assets distributed were already part of Leopold’s estate. Nor were the assets of the estate enhanced by Jaffe Cohen’s efforts in the annulment proceeding, that merely eliminated a competing claim. Hence, even if the annulment had not been granted, but Rogers had predeceased Leopold, appellants and appellees would have received the same distributions which they have received with the granting of the annulment. Sprague v. Ticonic, relied upon by appellants, is readily distinguishable. There, Sprague’s money had been deposited in a bank’s commercial checking account and, complying with statute, bonds were set aside by the bank as collateral to secure the funds deposited. When the bank failed, Sprague sued to impose a trust on the proceeds of the bonds. After succeeding in impressing a trust for the amount due, Sprague applied for an order directing that her counsel’s fees be paid out of the proceeds of the bonds. The Supreme Court held that federal courts had the power to grant such a request, and that Sprague by establishing her claim, necessarily established the claims of others to the same bonds. But importantly, in Sprague, after the funds deposited in the commercial checking account were lost, Sprague’s efforts established a new, distinct and separate fund for the benefit of others, viz., the bonds held as collateral. In our situation, however, the right of appellees (and appellants) to succeed to Leopold’s estate was established by their designation as legatees in his will, which status was subject to the competing rights of Rogers and Guillermina. The issue, however, was never the creation of a fund, but rather concerned the parties to whom Leopold’s estate would be distributed. V. Lastly, we reach the problem of appellants’ attempt to hold appellees liable for contribution to Jaffe Cohen’s fees based upon Fleener’s letter of August 11, 1972. After a careful consideration of that letter, we determine that the District Court correctly ruled that such letter “is in no sense a contract” supported by consideration; and further that the Court properly rejected appellants’ alternative detrimental reliance theory. Fleener’s letter explicitly evinces his intent not to be contractually bound. The letter’s very first sentence points up that Fleener is reviewing “topics of discussion and possible solutions” (Emphasis added). Again, Fleener stressed the nonbinding nature of the letter when he urged that an attempt be made by the family to settle the matters discussed and “formalize our understanding as soon as possible.” Unfortunately for appellants, no such understanding ever materialized nor was any agreement ever formalized. Cf. Dunhill Securities Corp. v. Microtherma Applications, Inc., 308 F.Supp. 195 (S.D.N.Y.1969). In Dunhill, the Court observed: It is no doubt true that, even where a formal writing is contemplated by the parties, a binding contract may nevertheless arise before the execution of the writing. See Banking & Trading Corporation Ltd. v. Floete, 257 F.2d 765 (2d Cir. 1958). The intention of the parties is crucial. In a case in which the parties have agreed upon all material considerations and intend to become presently bound, the later writing serves merely as a formal, convenient memorial of previously agreed upon terms. Id. at 198 [Emphasis added]. In the instant case, plainly there was no agreement as to the matters raised in Fleener’s letter, and Fleener did not “intend to become * * * bound” until there was formalization of a settlement. More, since there is no ambiguity in Fleener’s letter that he did not intend it to be a formal contract, but rather an expression of hope that the parties would settle and “formalize [their] understanding as soon as possible”, the District Court was not called upon to resolve any ambiguity as to appellees’ intention by resort to sources external to the letter. Id. at 197. Even stretching the proposals in Fleener’s letter to be construed as an offer, a response was requested by September 5, 1972 and as we have seen, there was no response to Fleener’s proposals, nor was any understanding reached. Respecting appellants’ detrimental reliance theory, the undisputed evidence before the District Court shows conclusively that appellants could not have, and did not in fact, rely upon Fleener’s “promise” to contribute to Jaffe Cohen’s fees. Doubtlessly, appellants understood full well from the outset that appellees opposed participation in the payment of Jaffe Cohen’s fees, and that the Fleeners had retained their own counsel for advice regarding the annulment proceeding and other matters involving Leopold’s estate. Indeed, the September 1971 retainer agreement obligating appellants to pay Jaffe Cohen specifically acknowledged that Fleener did not wish litigation brought on his behalf and reconfirmed appellants’ commitments as set forth in the letter of January 29,1971. The short answer is appellants bound themselves to pay Jaffe Cohen’s fee almost one year prior to receiving Fleener’s “promise” to contribute. Moreover, in the September retainer agreement appellants not only agreed to pay Jaffe Cohen’s fee, but acknowledged that the firm had already earned the fee and would be paid, even if the litigation were terminated by appellants. Stated differently, therefore, appellants were obligated to pay their attorney’s fee whether or not they continued to retain Jaffe Cohen. The Jaffe Cohen letter of April 1978, quoted supra, further confirms that appellants were fully committed to the firm notwithstanding any action taken by the appellees. As a matter of law, appellants could not have relied upon Fleener’s letter to their detriment since they were already fully committed to the Jaffe Cohen firm, and we hold that the District Court correctly rejected appellants’ detrimental reliance theory. In summary, appellants have raised no genuine issues of fact to be tried, and their causes of action as alleged in the complaint have no legal merit. Appellees’ motions for dismissal and for summary judgment were properly granted. Accordingly, the orders of the District Court are affirmed. . Initially, appellants commenced this action in the Supreme Court of New York, New York County on November 10, 1978; on January 2, 1979 the action was removed to the United States District Court for the Southern District of New York by appellees. . The order of November 18, 1980 was amended by a memorandum and order dated December 1, 1980 which

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

HOGAN v. ZERBST, Warden. No. 8947. Circuit Court of Appeals, Fifth Circuit. Feb. 9, 1939. Harold C. Hogan, in pro. per. Lawrence S. Camp, U. S. Atty., and Harvey H. Tisinger and J. Ellis Mundy, Asst. U. S. Attys., all of Atlanta, Ga., for appellee. Before FOSTER, HUTCHESON, and McCORD, Circuit Judges. FOSTER, Circuit Judge. This is an appeal from a judgment dismissing a writ of habeas corpus and remanding the prisoner to the custody of the warden of the Atlanta penitentiary. The material facts shown by the. record are these: Appellant began serving a sentence of four years in a Federal jail on November 7, 1931. He was released on parole December 5, 1933. While on parole he was arrested in the state of Arkansas and charged with aiding four other men in a robbery. His participation in the robbery consisted in conveying the robbers away from the scene of the crime, after it had been committed, for which he received $200. On July 23, 1935, while the state charge was pending, a parole warrant was issued for his arrest and placed with the state sheriff as a detainer. The criminal proceedings in the state court dragged along but were finally terminated in favor of appellant by the entering of a nolle prosequi of the indictment. In th.e meantime he had been reporting regularly to the Federal probation officer and continued to do so after the termination of the state charge. Part of this time he was in jail under the state charge and part of the time he was enlarged on bail. After the termination of the state case the parole warrant was executed, appellant was rearrested on August 12, 1937, and is held to serve out the balance of his Federal sentence. While awaiting trial under the state charge appellant was either actually or constructively in custody of the state court which had authority to detain him. The facts show reasonable ground for revoking his parole although he was not convicted under the state charge. The Parole Board had jurisdiction over appellant when the parole warrant was issued. Had he then absconded delay in his ultimate arrest would not have prevented revocation of his parole nor the service of the unexpired portion of his sentence. Though appellant was not serving a sentence, the pending criminal proceedings in the state court had the effect of preventing the exercise of jurisdiction by the Parole Board. We find no legal grounds for interfering with the discretion of the Parole Board in this case. Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247; Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808. The record presents no reversible error. 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?

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

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

DELLERT v. STALLMAN. Circuit Court of Appeals, Seventh Circuit. November 23, 1928. No. 4076. Logan Hay, of Springfield, Ill., for appellant. Ralph F. Lesemann, of East St. Louis, Ill., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. PAGE, Circuit Judge. This is a suit at law to recover from appellee an assessment made by the Comptroller of Currency against him on the theory that he was the owner, within the meaning of sections 63 and 64, title 12, of the United States Code Annotated, of 10 shares of stock, standing in his name on the books of the National Bank of Jersey-ville, Ill., when it failed on January 5, 1927. A jury was waived in writing and the court’s finding was for the defendant. On January 12,1926, appellee, with three associates (and holding a proxy for a fourth), attended the annual stockholders’ meeting of the bank at Jerseyville. Appellee and his four associates lived in or near Waterloo, Ill., and owned 10 shares each of the bank’s stock. After the meeting, there was some talk about the smallness of the bank’s deposits, and Heller, the cashier, said that it was in part due to the fact that the stoek was widely scattered and held at places away from Jerseyville. As to what then followed there is one version stated by appellee and witnesses called by him, and another by persons who were present at least a part of the time and called by appellant. The substance of the first version is that Heller made an offer of par for the 50 shares, which was accepted; that Heller was told that the stoek was hypothecated with the First National Bank of Waterloo, and would have to be transferred; that Heller then gave instructions to send the stoek to the Jerseyville bank and he would “take care of it from then on.” The other version is that Heller only said: “If you will send the stoek to the bank I will try to sell it for you at par.” Regardless of which is the true version of the talk, it appears that Heller, as cashier up to his death, on the day the bank closed, was actively engaged in the conduct of the bank’s business, and that Cochran, the president, and Spangle, assistant cashier, knew that the certificates were to be sent to the bank, either on a sale to Heller, or were to be sold for the then owners; that when the parties returned to Waterloo they told Schmidt, the cashier of the Waterloo bank, that they had sold their stoek to Heller; and that, pursuant to instructions, Sehmidt sent the certificates through the mail to the Jerseyville Bank in the following letter, viz.: “Agreeable to the instructions of the owners we enclose the following certificates of stoek of your bank: Certificate No. 157 C. H. Koenig'smark.....10 shares Certificate No. 158 J. C. Bertram........... 10 shares Certificate No. 159 E. F. Stallman..........10 shares Certificate No. 160 W. H. Burkhardt........ 10 shares Certificate No. 161 Harry E. Jackson......10 shares “According to their statement you are to make remittance to us in the amount of $5,-000.00 in payment of the above certificates of stock, same being duly indorsed in blank and the several signatures properly witnessed. “Thanking you for your prompt attention to the matter, we are, “Very respectfully, “J. F. Sehmidt, Cashier.” Cochran, the president, testified that that letter, with the certificates inclosed, was received by the bank. On appellee’s certificate was indorsed: “For value received, - hereby sell, assign and transfer unto - - shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint--attorney to transfer the said stock on the books of the within named corporation with full power of substitution in the premises. “E. F. Stallman. “Dated-, 19 — . '“In presence of J. F. Sehmidt.” In payment for the shares, the National Bank of Jerseyville sent its draft for $5,000, signed by Heller, as its cashier, on a St. Louis bank, to the Waterloo bank. Whose money paid for the stock does not otherwise appear. There was no transfer of the stoek on the books of the bank. There were no transfer tax stamps on the certificates, nor were any sent with the certificates- to the Jer-seyville .bank. In argument, appellant ignores the version given by his witnesses, namely, that there was -no sale to Heller, and, relying upon the - version that shows a sale to Heller, bases his first contention upon the proposition that, as the sale was a personal one to Heller, Heller’s agreement to see to the transfer of the stock upon the books of the bank was an undertaking to do. something in his individual .capacity, and not as cashier, and. he could not, therefore, represent the bank so as to make the bank chargeable with his knowledge or bound by his promise to make, the transfer. Reliance is based on 2 Thompson on- Corporations (3d Ed.) p. 1116, §■ 1521: “The general rule is well settled that an' officer, cannot act for the corporation in a matter in which he. is personally interested,- and hence cannot bind the corporation by contracts made with- other parties-.in whieh he has -’a personal interest, in cases where his'own .interest and.the interests of. the eorpo-, ration -may conflict.” f . ■ We are of opinion that this rule has no ápplication here because we can see no possible theory, dedueible from the reeo-rd,' upon) which there could have been a conflict be-' tween Heller’s interests, and those of the bank, invbived in the transfer of that "stock upon the books. 'Appellant, in argument, admits there, is no claim that any element of fraud entered intp the transaction.. In the main, appellant relies,on Richmond v. Irons, 121 U. S. 27, 57, 7 S. Ct. 788, 30 L.‘ Ed.864. In, that 'case, the court considered itself not bound "by Whitney v. Butler, 118 U. S. 655, 7 S. Ct. 61, 30 L. Ed. 266, .because of' differences found in the" facts.' ' Those things listed as not shown in the Irons Casé were, said to be present in the Butler Case. To show this dissimilarity between the Irons Case and the instant case, we parallel the two: Irons Case. 1. No proof of delivery of. certificate to bank. 2. No proof of delivery of 'power of attorney. 3. No proof of agreement for transfer. 4. Delivery was to Holmes, not as president but as an individual. ... Instant Case. 1. Proof of delivery of certificate to batik. 2. Proof of delivery of power of attorney. 3. Proof of agreement to transfer. - - -' 4. No delivery to Heller, ' ■ but to bank. '1 , • Certainly, the differences are, so great between the Irons Case and the instant case upon the matters that constrained the court there to charge Comstock' with liability that we do not think that the Irons Case supports appellant’s contention. . - ■ • ■ Whether the- stock was sent to the bank-for delivery on a sale to Heller, or was sent to the bank to be sold for account of appel-lee, we deem immaterial. Besides Heller* the assistant cashier and the president knew-it was sent to the bank for sale, and the president knew of the receipt, of the letter with the certificates of. stock, properly indorsed for transfer, inclosed, so that the knowledge of what was being done or was to be done wás not confined to Hefier,' and the matter of notice rested upon fact; and not upon' a presumption merely from ‘knowledge had -by Hefier. ’ Without going into a' discussion of the Butler Case, supra, we are of opinion that it-should control here.. See, also, Snyder v. Foster (C. C. A.) 73 F. 136, 142; Foster v. Row, 120,Mich. 1, 19, 79 N. W. 696, 77 Am. St. Rep. 565; Apsey v. Whittemore, 199 Mass. 65, 85 N. E. 91, 93; Keyes v. Myhre, 143 Minn. 193, 173. N. W. 422. ..Appellant urges, that, because no stamps, were placed upon the. certifieqfes or upon the" transfer books of the bank,., as. provided in, the Revenue Act of .1924 (title VIII, Schedule A, par. 3, 43-U. S. Stats, at Large,, p.. 334; title 26, § 901 (.3), U. S. Code Annp-‘ tated) there, was no obligation upon the bank to make the transfer.. Under that act, the, f ailure to. affix, stamps in no way invalidated the transactions. . Cole et al. v. Ralph, 252 U. S. 286, 293, 40.S.Ct. 321, 64 L,.Ed. 567. It is. quite evident, from the record, that failT ure to attach stamps was not done with any intent to evade the tax. When Burkhardt, one of the owners and sellers of the stoeb,. and who had been • a bank examiner, raised the question as to how the transfer was to be. made, Heller directed that-the stock be sent, to the Jerseyville bank and he,.would take care of .it from then on. The sale of the stock was .really in. the interest of the bank. When the bank, received-the.',stock and paid for it without any demand for transfer, stamps it was, under the.evidence in this, case, - legally obligated tc> do, everything to, make the transfer effective ■ and protect ap-. pellee. 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?

NORTHLAND CAPITAL CORPORATION, Appellant, v. A. David SILVER and A. David Silver & Co., et al. No. 83-1449. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 3, 1984. Decided May 25, 1984. Harris S. Ammerman, Washington, D.C., for appellant. Edward M. Waibel, pro se, for appellee. Before WALD, BORK and STARR, Circuit Judges. Opinion for the Court filed by Circuit Judge STARR. Dissenting opinion filed by Circuit Judge WALD. STARR, Circuit Judge: This case presents a recurring issue, albeit in a unique factual setting, under the federal securities laws. The question before us is whether the transaction at issue here constituted a “purchase” or “sale” of securities under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Northland Capital Corporation (“Northland”) brought this action under the 1934 Securities Exchange Act, 15 U.S.C. §§ 78a-78kk (1982), (“the ’34 Act”) and under the common law of fraud against A. David Silver, A. David Silver & Co., and various inside and outside directors of Watkins Corporation (“Watkins”) to recover $50,000 remitted by Northland to Watkins via a wire transfer. Northland claimed that it had standing to bring a private cause of action under Rule 10b-5, promulgated under section 10(b) of the ’34 Act, 15 U.S.C. § 78j(b). On motion for summary judgment, the District Court concluded that Northland was not a purchaser of securities, inasmuch as Northland and Watkins never came to a meeting of the minds with respect to the purchase of the securities in question. The court therefore concluded that, under the case of Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), requiring a plaintiff to be an actual purchaser to satisfy Rule 10b-5’s requirement that the fraud be “in connection with the purchase or sale of any securities,” Northland had no standing to bring a private cause of action under the ’34 Act. The court dismissed the remaining common-law claim, which was based solely upon the court’s pendent jurisdiction. Northland appealed the District Court’s judgment. For the reasons stated below, we affirm. I Successful closings of financial deals are fundamentally all alike; every unsuccessful closing is unsuccessful in its own way. The events that led to the unsuccessful closing here and precipitated this lawsuit began in the fall of 1978 when Watkins Corporation undertook a search for additional capital. Watkins, a District of Columbia corporation with its principal corporate offices in Northern Virginia, was engaged in the business of operating franchise outlets for the International House of Pancakes on the eastern seaboard. At its height, Watkins operated thirty such restaurants. The founder, chief executive officer, and major stockholder was Philander Claxton, III. Of relevance to the matter before us, Mr. Claxton’s principal duties included responsibility for the financial matters of the enterprise. Defendant Edward Waibel, the president of Watkins, was principally responsible for operations. There was no chief financial officer. In 1978, Mr. Claxton on behalf of Watkins engaged A. David Silver of A. David Silver & Co., a New York venture capital concern, to raise one million dollars of additional capital for Watkins. This target was to be reached through a private placement with a consortium of small business investment companies (SBIC’s). Mr. Silver prepared a memorandum describing the proposed investment and detailing Watkins’ operations and financial condition. His description of Watkins was based on a 1977 audit report and a 1978 opinion letter purportedly prepared by Price, Waterhouse & Co., both of which are now acknowledged to be forgeries. Mr. Silver sent the memorandum to a variety of 'SBIC’s, including Allied Capital Corporation (“Allied”), based in Washington, D.C., and plaintiff North-land Capital Corporation, based in Duluth, Minnesota. Plaintiff’s Opposition to Defendant’s Statement of Material Facts 1126 (“Plaintiff’s Statement”). Allied acted as the syndicator of the Watkins financing, persuading six other SBIC’s to participate in the transaction. Allied was also a major participant, reserving $250,000 of the investment for itself. Plaintiff’s Statement 11 29. Northland, on the other hand, was located far from the center of the action which was about to transpire. Capitalized at $350,000, North-land had at the time of this transaction only two employees, Mr. Barnum, who was its President, and Mrs. Dunphy, who was Mr. Barnum’s secretary and who enjoyed the title of Assistant Secretary. Because of its small capitalization, Northland limited its participation in the Watkins financing to $50,000. Transcript of Deposition of George Barnum at 56 (“Barnum Deposition”). Like other SBIC’s, Northland’s sole business is to invest in small business. It is a veteran in the field, having participated in 30 to 40 investments since its incorporation in 1967. Barnum Deposition at 8. North-land, however, generally relies upon other SBIC’s to close its portion of the transaction because Northland is usually a minor participant in any given financing and because, in Mr. Barnum’s words, Duluth is not “the venture capital center of the world.” Id. at 10. This financing was no exception to the rule. Mr. Barnum authorized Allied, which he characterized as “the lead investor,” to act on Northland’s behalf at the contemplated closing. Id. at 16, 101. He further stated that Northland “rode on [Allied’s] coattails as far as setting the terms of the investment.” Id. at 16. After consulting with the other participating SBIC’s Allied set forth the terms of the proposed investment in a letter dated January 26, 1979. For purposes of this case, the most important requirements imposed by the SBIC’s upon Watkins were as follows: (1) that all amounts received from the investors would be used to construct new franchise locations; (2) that the total amount of the financing would be placed in a separate “development account” from which it could not be withdrawn except for use in the construction of franchise locations; and (3) that after the construction of a building, the realty and improvements would, under a sale-leaseback arrangement, be sold to other investors and leased back to Watkins. In return for their infusion of funds, the SBIC’s were to receive not only interest but also stock warrants to be delivered at the time of the closing. Letter of David Gladstone of Allied Capital, to Mr. Claxton, Watkins Corp. (Jan. 26, 1979), Gladstone Deposition Exhibit 5. With the transaction so structured, the closing was scheduled for March 9, 1979, a fact known to Mr. Barnum. He elected not to attend, however, having deserted Duluth for the sunnier climes of a West Indies island with no telephone service. Barnum Deposition at" 37. Mrs. Dunphy, his secretary, testified that she was instructed by Mr. Barnum to dispatch the $50,000 North-land investment in accordance with Allied’s instructions. Deposition of Elizabeth Dun-phy at 8 (“Dunphy Deposition”). The ensuing events are of pivotal importance as to the nature of the Northland-Watkins transaction. By March 8, Mrs. Dunphy had received no instructions from Allied. As she herself was leaving for vacation the following day, she telephoned Allied’s offices in Washington. However, according to Mrs. Dunphy’s deposition testimony, she was unable to speak with an officer of Allied, and an Allied secretary suggested that she call Mr. Silver. She did so, but, according to Mrs. Dunphy, Mr. Silver unhelpfully replied that he was busy, that he did not know the date of the closing, and that she should call Mr. Claxton. In response to her ensuing call, Mr. Clax-ton told Mrs. Dunphy to wire the funds to the Union First National Bank of Washington in care of one Mr. Cherouny, a senior vice president of Union First. She wired the money, “assumed” that it would be held in escrow until the closing, and departed on vacation. Dunphy Deposition at 9-12. Fatefully, however, the funds were transferred by the bank to Watkins’ general corporate account. This telephone conversation constituted the whole of Northland’s communications with Watkins prior to the scheduled closing. The next day, March 9, 1979, Mr. Gladstone, an officer of Allied, and Mr. Claxton met in an attempt to close the transaction. The meeting was unsuccessful because, among other things, Mr. Gladstone was concerned that Watkins’ Board of Directors had not approved the transaction and that an opinion letter purportedly prepared by Watkins’ counsel bore tell-tale marks of a forgery. A week later, Mr. Gladstone sent a letter which identified twenty-two items necessary “in order to close this loan.” Soon thereafter, on March 21, 1979, negotiations foundered. On April 6, 1979, Mr. Silver sent a letter to the representatives of the participating SBIC’s, officially informing them that the deal had been called off. The letter stated: “[A]ll of you have been to closings that didn’t close. That’s what happened with Watkins Corp____” Memorandum of A. David Silver, A. David Silver & Co., to David Gladstone, Gladstone Deposition Exhibit 10. The financing, in fact, was never closed. At the unsuccessful March 9 meeting, Mr. Claxton nonetheless executed a number of documents. Among those documents was an agreement letter from Watkins to Allied, setting forth Watkins’ version of the contemplated transaction. The Watkins’ version states, contrary to Allied’s proposal of January 26, 1979, that Watkins would use 50 percent of the net proceeds from the financing for working capital and 50 percent to acquire additional sites to operate as restaurants. Letter of Mr. Claxton, Watkins Corp., to Allied Investment Corp., Paragraph 1(A)(8). Barnum Deposition, Exhibit 6. The agreement letter stated that the closing was to take place on March 9. It further contemplated that notes and warrants “in the total aggregate amount of not less than seven hundred fifty thousand dollars... will be sold by the Company to the Purchasers at closing____” Id., Paragraph 1(A)(1). The Watkins letter stated several “conditions of closing,” including the requirement that Watkins furnish the purchasers with a copy of the Board of Directors’ resolution and a legal opinion from Watkins’ counsel satisfactory to the purchasers. Id., Paragraph V. The agreement letter had spaces at the end reserved for the signatures of the various SBIC investors to signify their acceptance of the terms of the proposed agreement. Importantly, these spaces remained blank. Finally, and still at the March 9 meeting, Mr. Claxton signed at least one stock warrant and one debenture note. This warrant was subject to the terms of the Watkins letter which, as we have just seen, was unsigned by the SBIC’s. Stock Warrant No. 6 of Watkins Corp. (March 9, 1979). Deposition of Marianne Sharp, Exhibit 2-C. The agreement, the note, and the stock warrant were then sent to Northland. On March 16, 1979, a full week after the March 9 meeting, Watkins’ Board of Directors met to consider Mr. Claxton’s proposal for the 1.25 million dollar financing. By earlier memorandum, dated March 7, 1979, Mr. Claxton had notified his Board of the terms of the investment. This memorandum, like Watkins’ version of the agreement already discussed, stated that the terms of the financing would allow Watkins to use half the proceeds as working capital and half for real estate development. In response to Mr. Claxton’s motion, the Board on March 16 authorized Watkins to borrow $1,250,000 from Allied, Northland and five other SBIC’s “upon the terms and conditions substantially in accord with those outlined in [Mr. Claxton’s] summary of the loan transaction and as discussed at this meeting of the Board of Directors March 16, 1979.” Deposition of Edward Waibel, Exhibit 1. Despite the Board’s approval, no closing, as we have seen, ever took place. A good deal of water had flowed over the dam by the time of Mr. Barnum’s return from the West Indies in early April. Upon his return to Duluth, Mr. Barnum found the documents sent the previous month by Mr. Claxton. When Mr. Barnum also discovered, from Mr. Silver’s April 6 letter, that the financing had not closed, he became “suspicious” and thereupon called Mr. Claxton. In their ensuing telephone conversation, Mr. Claxton agreed to send back to Northland the $50,000 remittance and further agreed to treat the $50,000 as a simple loan to be repaid immediately with interest. Barnum Deposition at 39-41. On April 18, 1979, Mr. Claxton sent a Watkins check in the amount of $50,767.12 to North-land, representing both principal and accumulated interest on the loan. Mr. Barnum attempted to cash the check, but it was returned for insufficient funds. On May 10, 1979, Watkins filed a voluntary petition in bankruptcy in the United States District Court for the Eastern District of Virginia. Northland then brought the present fraud action under both the ’34 Act and the common law in the United States District Court for the District of Columbia. In its federal claim, Northland alleged that it had been defrauded “in connection with a purchase or sale of a security” and therefore enjoyed standing to sue under section 10(b) and Rule 10b-5 promulgated thereunder. After extensive discovery, defendants moved for summary judgment on the grounds that on the undisputed facts Northland was not a “purchaser” of securities. The District Court granted the motion, concluding that there was “no meeting of minds” between Watkins and North-land and thus Northland never became a purchaser of securities. The court then dismissed the pendent common-law claim. Northland appealed the district court’s judgment. Prior to oral argument in this appeal, Northland entered into a voluntary dismissal with all defendants except Edward Waibel, Watkins’ former president. II A Section 10(b) of the ’34 Act and Rule 10b-5 promulgated thereunder prohibit manipulative and fraudulent devices “in connection with a purchase or sale of a security.” Interpreting this language in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), the Supreme Court held that only actual purchasers or sellers of securities may bring a private damages action under Rule 10b-5. While suggesting that such a limitation served the policy objective of avoiding vexatious litigation identified in the seminal case of Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.), cert. denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (1952), the Court’s holding was based ultimately on its interpretation of the language of the Act and its legislative history. Thus, we reject at the outset appellant’s argument that Blue Chip’s holding should not govern cases such as the instant one since this type of case may not present a danger of strike suits. Indeed, in Blue Chip itself, the appellate court had accepted the Birnbaum interpretation of 10b-5 as a general principle, but carved out an exception in the circumstances of that case, because Manor Drug had been offered Blue Chip securities as part of an antitrust consent decree. The appellate court held that Manor’s identification as an offeree in a written document served the same function as a contract in delimiting the appropriate plaintiffs under 10b-5. The Supreme Court, however, held to the contrary, concluding that entertaining such a theory “would leave the Birnbaum rule open to endless case-by-case erosion... depending on whether a particular group of plaintiffs were thought... to be sufficiently more discrete than the world of potential purchasers at large to justify an exception.” 421 U.S. at 755, 95 S.Ct. at 1934. In the post-Blue Chip securities world, a person must be a “purchaser” or “seller” within the meaning of the Securities Exchange Act to have standing to bring suit under Rule 10b-5. B We thus turn to the question whether Northland is a “purchaser” of securities. A “purchase or sale” under the Act is defined as including “any contract” to purchase or sell a security. 15 U.S.C. § 78c(a)(13) & (14). The terms “purchase” and “sale” are to be broadly construed to effectuate the remedial purposes of the ’34 Act, see Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1240 (D.C.Cir.1978); Goodman v. Epstein, 582 F.2d 388, 410 (7th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979), and are not limited to their common-law meaning. See Broad v. Rockwell International Corp., 614 F.2d 418, 435 (5th Cir.1980). Therefore, courts have not allowed common-law technicalities, which may pose traps for the unwary and opportunities for the unscrupulous, to stand in the way of finding a statutorily cognizable “purchase” or “sale.” The ’34 Act’s vital remedial purposes cannot, however, be permitted to strip the statutory words “purchase or sale” of their core meaning. It is, after all, a statute with express terms that is before us for examination. See Symons v. Chrysler Corp. Loan Guarantee Board, 670 F.2d 238, 241 (D.C.Cir.1981) (holding that the principle that remedial statutes are to be liberally construed to effectuate their purpose “does not give the judiciary license, in interpreting a provision, to disregard entirely the plain meaning of words used by Congress”). See also Sacks v. Reynolds, Inc., 593 F.2d at 1240 (applying the plain meaning rule in the context of a 10b-5 action). A bedrock requirement for the formation of any contract or bargain between unrelated parties, including those constituting a purchase or sale, is that the putative purchaser and seller come to a meeting of the minds or, in the phrase of the Restatement (Second) of Contracts, mutual assent on the essential terms of the transaction. This requirement is presupposed by the case law interpreting Rule 10b-5: for instance, in determining when a purchase is made, courts look to the time at which there was a “meeting of the minds.” See Radiation Dynamics, Inc. v. Gold-muntz, 464 F.2d 876, 891 (2d Cir.1972). It is clear from the undisputed facts of this case that no mutual assent occurred between Watkins and Northland. In fi-nancings such as the one proposed here, transactions are usually consummated by a formal closing or settlement at which the parties formally agree to terms and execute the requisite documents embodying the agreement. In the contemporary age of lawyers, accountants, and financial analysts, a financing is seldom, if ever, the result of a simple handshake between two principals. The structure of the financing here was therefore typical. No oral agreement on terms was reached, and it is abundantly clear that all parties contemplated that a closing was necessary for there to be a deal. Indeed, Mr. Barnum expressly authorized Allied to act on Northland’s behalf at the contemplated closing, thus not only signifying the understanding that a closing was necessary but also that Northland intended to enter the transaction as part of a consortium of investors, not as a solitary investor operating independently of its fellow SBIC’s. The documents that Mr. Clax-ton sent out on behalf of Watkins on March 9 also plainly contemplated both a closing and a transaction with a group of investors. It is undisputed that the closing contemplated by the parties never took place. As we have seen, on the day the closing was to have occurred Allied, acting on behalf of the investors, found numerous differences with Watkins with respect to the terms of the transaction. In addition, Allied’s representatives became suspicious about some of the supporting documentation provided by Watkins. These differences and suspicions were never resolved. Northland does not dispute this, but nonetheless contends that even in the absence of a closing, Mrs. Dunphy’s wiring of $50,000 when taken together with Mr. Claxton’s sending of a stock warrant and note to Northland represent a separate transaction between Northland and Watkins, cognizable under the federal securities laws. These actions, however, even when taken together, do not suggest that Northland and Watkins gave mutual assent to a contract or bargain constituting a purchase of securities. To have mutual assent in these circumstances, one party must have accepted by word or deed an offer from the other. Here, under the specific circumstances presented, neither the wiring of the $50,000 nor the sending of the stock warrant can reasonably be interpreted as an acceptance. Northland, of course, was entirely at liberty to come to a separate agreement with Watkins, but the testimony of Mrs. Dun-phy, Northland’s secretary, clearly indicated that it did not do so. As we have seen, Mrs. Dunphy testified that she was instructed to find out from Allied where she should send Northland’s funds so as to be available for the closing. After unsuccessful attempts to get instructions from Allied, the lead investor, she called Mr. Claxton of Watkins to find out where she should wire the money. Mrs. Dunphy testified that she intended the $50,000 to be held in “escrow” until a closing occurred on the proposed $1,250,000 financing. Thus, Mrs. Dunphy’s ministerial act can by no stretch of the imagination be interpreted as acceptance, on behalf of Northland, of a separate offer from Mr. Claxton. Her action in no wise changed the understanding of all the parties that Allied and Watkins would have to close the deal before a purchase would take place. Nor does Mr. Claxton’s sending to North-land the Watkins’ version of the letter agreement, together with a note and warrant which were subject to the terms of the letter, render the transaction a purchase notwithstanding the aborted closing. First, even if Mrs. Dunphy’s sending the $50,000 could somehow be construed as an invitation to a separate, individual transaction that could have been consummated without a formal closing, it is clear that the documents sent by Mr. Claxton to North-land were not intended to evidence or constitute an acceptance. Indeed, the agreement which Mr. Claxton sent to Northland had a space reserved for Northland’s signature to allow Northland to evidence its acceptance of the terms of the agreement. It is undisputed that neither Northland nor Allied acting on its behalf ever signed the agreement. Moreover, it is undisputed that the Watkins agreement letter contained a critical term plainly at variance with Allied’s proposal on behalf of the SBIC’s. Thus, the agreement and warrant which Mr. Claxton returned to North-land contained materially different terms on an essential item of the contract from those Northland was offering, and thus could not constitute an acceptance. See Restatement (Second) of Contracts § 59. Our conclusion that neither Mrs. Dun-phy’s nor Mr. Claxton’s actions sufficed to create a purchase of securities is confirmed by Mr. Barnum’s own understanding. When Mr. Barnum returned to Duluth from the Caribbean he became suspicious when he found documents that would normally be sent as part of a closing, but discovered that in fact no closing had taken place. He promptly telephoned Mr. Clax-ton. They immediately agreed in that conversation that Northland’s money would be returned, with interest, and that the transaction would be treated as a simple loan. Mr. Barnum never signed the proposed agreement that Mr. Claxton had sent. In short, Mr. Barnum, on behalf of Northland, never acted as a purchaser of a security but rather as one who was trying to recover money his company had plainly intended to place in escrow after discovering that the transaction had been called off. C Northland argues that Baurer v. Planning Group, Inc., 669 F.2d 770 (D.C.Cir.1981), compels the conclusion that a purchase or sale took place here. In Baurer, an investor advanced $15,000 in exchange for a promissory note from a company. The note provided that if at the end of a thirty-day period the investor and the company were not able to come to terms on a partnership venture, the $15,000 would become due and payable together with certain accrued interest. If, on the other hand, an agreement were reached, the note would be deemed paid in full and only accrued interest would be due. The court concluded that the promissory note was a security, because the terms of the agreement, described in the note, “established its investment character.” Baurer, 669 F.2d at 778. Baurer’s holding, however, is inapposite to the case before us. The issue here is not whether a warrant is a “security,” but whether Northland was a “purchaser” of the warrant. In Baurer, no one argued that the investor did not purchase the note, for there was explicit mutual assent between the parties in the exchange of funds for the note. In this case, however, there was no mutual assent. Indeed, as we have seen, the financial transaction in which the warrant was to be purchased was never closed, and no separate bargain between Northland and Watkins was ever struck. Appellant also argues that we should analogize Mr. Claxton’s sending of the documents to Northland to a pledge. Because Rubin v. United States, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981), holds that a pledge is a “sale” of a security under the ’33 Act, Northland contends that a pledge is also a sale of securities under the ’34 Act. Passing over the substantial question whether the differences between the ’33 Act and the ’34 Act in the statutory definition of sale would compel a different conclusion about whether a pledge is a sale under the latter’s definition, we conclude that no pledge occurred, for the simple reason that Northland and Watkins never agreed to a pledge of securities. Indeed, Northland, like the other SBIC’s in the deal that Mr. Silver structured, never even bargained for a pledge but contemplated the outright purchase of Watkins' securities. The dissent argues that the requirement of mutual assent in this case is not consistent with a variety of securities law deei-sions. Dissent at 1435. We have already shown that it is consistent with controlling law of this circuit. The principal genre of cases from other circuits with which the dissent deems our approach inconsistent are the “forced seller” cases in which a dissenting shareholder is forced to exchange securities for cash or other securities in a liquidation or merger. That situation is exceedingly remote from the facts of this case. As the very name “forced sale” suggests, an exchange in a merger or liquidation that is a result of the operation of governing corporate law, and the contractual structure of corporate governance itself, is not different in kind from a contractual exchange. The scope and legal significance of both types of exchanges are defined by well established principles of law, unlike the aborted transaction here. Our holding today as to the facts presented to us by no means goes to the far different settings embodied in the “forced seller” cases. D Finally, we emphasize that our decision does not in any manner undermine the broad remedial policies of Rule 10b-5 and the ’34 Act. The '34 Act is designed to protect investors and safeguard the operation of the Nation’s capital markets. However, as the Supreme Court has stated, “Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud.” Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982). Specifically, the federal securities laws do not confer upon the federal courts a roving commission to address every injury that a sophisticated, albeit small, investment concern such as Northland may suffer in the course of attempting to negotiate and close a deal. The proximate cause of Northland’s misfortune was plainly the failure to place the $50,000 in escrow until the closing. The proper business arrangements were not effected with Union First Bank, and the transfer transformed Watkins in effect into Northland’s escrow agent. When no closing occurred, Watkins failed to return the funds Northland thought it had entrusted to Union First. Such facts might well give rise to claims under applicable District of Columbia or state law, but they simply do not constitute the purchase or sale of securities under the ’34 Act. Affirmed. . These terms provide as follows: 1.07 The money borrowed will be used to construct new franchisee locations which must be approved by Allied. 1.08 The money will be placed in a separate development account of a bank approved by Allied. No funds can be withdrawn from the account, except to buy land, pay for 'construction of the building, interest on loan, fees and to finish completion of the locations, as approved in 1.07 above. 1.09 Once the location is complete and the store is operational, it is understood that the land and building will be sold to investors and leased back to Watkins. The sale will pay back into the bank account (1.08) the full amount used from the bank account to establish the land and building. The sale will not be made, unless the full amount can be paid into the fund. Letter of David Gladstone, Allied Capital Corporation, to Mr. Claxton, Watkins Corporation (Jan. 26, 1979). . The District Court believed Mr. Claxton may also have signed warrants for other SBIC’s. Indeed, the Plaintiff s Statement indicates that Mr. Claxton sent out documents to all SBIC’s who did not attend the meeting. Plaintiffs Statement f 37. See also Deposition of A. David Silver at 117 (stating that he assumed notes and warrants were sent to all out-of-town investors). However, because it is not clear from the record that other non-attending SBIC's received warrants and because on appeal from a grant of summary judgment we must draw all inferences in favor of the appellant, we assume that Mr. Claxton sent a stock warrant and debenture note only to Northland. . The original amount suggested by Mr. Silver for the investment was one million dollars, but in the court of syndication it was raised to $1.25 million. . The memorandum to the Board stated as follows: Following meetings and conversations with representatives of the SBIC’s with whom we have been negotiating, a tentative agreement has been reached, subject to your approval and that of Union First [Bank]. The terms of the proposed loan are as follows: (1) The total amount will be $1,250,000, of which $625,000 will be for real estate development and $625,-000 will be for working capital____ (4) The real estate portion of the loan will be subordinated to $2,500,000 of additional financing. The working capital portion will be subordinated to all Senior Debt____ Deposition of Robert Cherouny, Exhibit 9. . The dissent declares that we should construe the definition of "sale" in the '34 Act to conform to the different definition contained in the Securities Act of 1933. Dissent at 1433. The Supreme Court's decision in Blue Chip, however, takes precisely the opposite approach: it interprets the differing language of the two Acts as evidence of the Acts’ differing ambits. See Blue Chip Stamps, 421 U.S. at 733-734, 95 S.Ct. at 1924-1925 (noting that Congress' use of the term "in offer or sale” in the 1933 Act showed that "when Congress wished to provide a remedy to those who neither purchase nor sell securities, it had little trouble in doing so expressly”). To ignore the linguistic differences between the definitions in the two Acts is to suggest implicitly that Congress did not know what it was doing when it chose the differing language. This we refuse to do. . See Blue Chip Stamps, 421 U.S. at 733 n. 5, 95 S.Ct. at 1924 n. 5 (holding that "the wording of § 10(b), making fraud in connection with purchase or sale of security a violation of the Act, is surely badly strained when construed to provide a cause of action, not to purchasers or sellers of securities, but to the world at large”) (emphasis in original). . The dissenting opinion seems to ignore the Supreme Court’s refusal to engage in case-by-case policy analysis in Blue Chip. That refusal demonstrates that although the Supreme Court took policy analysis into account in reaching its conclusion that the '34 Act required a plaintiff to be a purchaser to have standing to sue, it established this requirement as a per se rule which could not generally be rebutted by policy considerations in individual cases. The dissent is also incorrect in stating that our requirement of mutual assent, discussed in the text that follows, is at odds with any policy concern of Blue Chip. Dissent at 1434-1435. Blue Chip was concerned that “vexatious" litigation would result from allowing plaintiffs standing to sue on the mere allegation that they intended to buy or sell a security. The Court feared that defendants would have difficulty disposing of such suits because of the subjective nature of the plaintiff’s proof of intent. Blue Chip, 421 U.S. at 743, 95 S.Ct. at 1929. Vexatious litigation is obviously no more likely, however, when a plaintiff must show that there was mutual assent between the offeror and himself. Moreover, a plaintiff does not have to adduce proof of the defendant’s subjective intent in order to prove mutual assent. The principle that objective manifestation of intent is controlling in contract formation is very well established. See Williston on Contracts 42 (1957). . For instance, some courts have allowed an oral agreement, albeit unenforceable under the statute of frauds, to serve as a predicate for standing to sue under 10b-5. See Desser v. Ashton, 408 F.Supp. 1174 (S.D.N.Y.1975); but see Southeastern Waste Treatment, Inc. v. Chem-Nuclear Systems, Inc., 506 F.Supp. 944 (N.D.Ga.1980). . See Restatement (Second) of Contracts § 3 (1977) (defining “agreement” as “a manifestation of mutual assent on the part of two or more persons” and defining bargain as “an agreement to exchange promises or to exchange a promise for a performance or to exchange performances”); Restatement (Second) of Contracts § 17 (stating that “the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration”). Therefore, whether Northland attempts to predicate the existence of a purchase on a bargain, which consists of a fully executed exchange, see Restatement (Second) of Contracts § 3, comment c, or on a contract, which consists at least in part of a promise of future performance, mutual assent is required. See also Williston Sales § 7-2 (1973); 1A Corbin on Contracts § 29, at 82-83 (1963). . Restatement (Second) of Contracts § 22 states: The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties. The exceptions to this rule, set out in comments a and b to the Restatement, are not relevant here. . The dissent seems to imagine facts when it asserts that "Claxton knew of the terms North-land desired when it sent its $50,000, but North-land did not know that Watkins had proposed its own terms.” Dissent at 4. Under the undisputed facts, Northland was not playing the role of lone wolf, departing from the pack led by Allied to cut its own deal and present its own terms. It is clear beyond cavil that all Mrs. Dunphy was seeking to

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth H. KATSCHKE and Paul E. Pickle, Defendants-Appeliants. No. 14815. United States Court of Appeals Seventh Circuit. July 15, 1965. Rehearing Denied Sept. 14, 1965. Maurice J. Walsh, Edward J. Calihan, Jr., Chicago, Ill., for defendants-appellants. Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Gerald M. Werksman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before SCHNACKENBERG and KNOCH, Circuit Judges, and MERCER, District Judge. SCHNACKENBERG, Circuit Judge. Kenneth H. Katschke and Paul E. Pickle, defendants, appeal from a judgment of conviction by the district court, on a finding of guilty on counts 1, 2 and 5 of an indictment, charging violations of 18 U.S.C.A. § 657 and § 1006, Pickle being charged as an aider and abettor in violation of 18 U.S.C.A. § 2. As revealed by the findings of fact of the district court, specially made pursuant to 18 U.S.C.A. rule 23(c), various persons and enterprises involved in this case are: Kenneth H. Katschke President, director and large stockholder of Tinley Park Savings and Loan Association (Tinley); director and ‘ stockholder of Gold Star Homes, Inc. Paul E. Pickle President and principal stockholder in the following: Central States Mortgage Company (Central States) whose principal business was acting as mortgagee and mortgage broker; Gold Star Homes, Inc. (Gold Star) a manufacturer of prefabricated housing units including apartments; C.M.O. Builders, building contractors; and other companies engaged in building and construction activities. A.D.K. Enterprises (A.D.K.), a partnership composed of Roy Ardizzone, Richard H. DeRuiter and Stanley W. Kempa engaged in building and selling housing units, including prefabricated apartments purchased from Gold Star and erected on land held by the First National Bank of Evergreen Park, as Trustee under Trust No. 225, a land trust of which the partners of A.D.K. were the beneficiaries. (The bank is hereinafter called the “Trustee”.) Central States sold mortgage loans to Tinley. Katschke and Pickle were jointly interested in Lincolnway Homes, which was engaged in the building of new homes. In findings, 5-24, the district court found, as follows: 5. Under date of July 26, 1961, Pickle personally delivered to Tinley certain documents, including identified notes payable to Central States executed by the Trustee and guaranteed individually by the three partners of A. D. K., appraisals, applications, photostats of Torrens Receipts and Affidavits and Waivers, with respect to lots 8, 9 and 27 of the lots held by the Trustee under Trust No. 225. In April, 1961, Central States had secured a commitment from Service Savings and Loan Association (hereinafter called “Service”) to purchase first mortgage loans of $145,000 on each of these lots. Mortgages dated June 6, 1961, and assignments thereof to Service, dated July 6, 1961, and recorded with the Registrar of Titles of Cook County on July 7, 1961, although in the possession of Central States, were not delivered to Tinley on July 26. 6. On two occasions shortly before July 26, Pickle asked an employee of Tinley, one Rebecca Nils-son, whether the money was ready on the Evergreen Park loans and when advised that she knew nothing about them said he would speak to Kat-schke about the matter. 7. On July 26, Lyle E. Nelson, an officer and attorney for Tinley, turned over to Mrs. Nilsson the documents on the three lots delivered to Tinley by Pickle and instructed her to issue a check for $350,000, payable to Central States. After examining the documents Mrs. Nilsson went to Katschke’s office where he, Pickle and Nelson were having coffee, and asked whether she could disburse funds in the absence of any evidence of title. Nelson referred her question to Katschke who told her to issue the check, which she did. 8. After receipt of the check which was drawn on the Bremen State Bank, Pickle went to the Mid-lothian State Bank (hereinafter called “Midlothian”) which was closed because the day was Wednesday. Pickle saw Eugene J. Winston, Executive Vice President and Cashier, presented the $350,000 check from Tinley payable to Central States to him, and asked if he could cash it. Winston replied that he could not because the check was payable to a corporation and because he did not have that much cash on hand. Pickle explained that he needed immediate funds or credit. Winston suggested he take the check for certification to the Bremen State Bank on which it was drawn. Pickle demurred, saying that the Bremen bank was closed. Winston then offered to issue a Mid-lothian cashier’s check in the same amount. Pickle asked if the cashier’s check could be made payable to him personally. Winston informed him that it would have to be made payable to Central States, the payee of the original Tinley check. Pickle agreed and Winston drew a Midlothian cashier’s check payable to Central States in the amount of $350,000. 9. Still on July 26, 1961, Pickle endorsed the Midlothian cashier’s check on behalf of Central States as its President and turned the check over to Katschke who in turn endorsed it for deposit and deposited it in the account of Katschke Land Development Co. at the Continental Illinois National Bank and Trust Company of Chicago (hereinafter called “Continental”). 10. Katschke Land Development Co. was an Illinois corporation, all of the shares of which were owned by Katschke and his wife, both of whom were also directors and officers, Kat-schke being President and his wife being Secretary and Treasurer. 11. On July 28,1961, pursuant to previous authorization and instructions from Katschke, the Continental charged the account of Kat-schke Land Development Co. in the amount of $343,060, which it had disbursed to one Walter J. Riley in payment for one thousand and nine (1,009) shares of Chatham State Bank common stock. This left a balance of $15,308.84 in the Katschke Land Development account at the Continental. 12. Katschke and Pickle knew that none of the proceeds of the $350,000 were turned over to the Trustee, A. D. K. or its partners, the ostensible borrowers from Tinley. 13. Under date of August 14, 1961, Tinley issued a check for fifty thousand dollars ($50,000) payable to Central States, and on August 22, a check for twenty-eight thousand four hundred, ninety-three dollars and forty-four cents ($28,493.44), also payable to Central States. Both checks were charged to the same three loans as the previous $350,000, these loans having been given Tinley loan numbers 568, 569 and 570. The latter two checks were deposited in Central States’ account at the Bremen State Bank. 14. On August 29, 1961, Pickle instructed an employee of Central States, one Geraldine Palumbo, to assemble or prepare appropriate notes, mortgages and assignments for four loans on lots 10, 11, 25 and 26 of the lots held by the Trustee under Trust No. 225. 15. Notes and mortgages to Central States on these four lots had been executed in June, 1961, by the Trustee and the notes guaranteed by the partners of A. D. K., all on or about the same time as those on lots 8, 9 and 27 involved in the July 26 transaction. On August 29, pursuant to Pickle’s instructions, Miss Pa-lumbo prepared assignments to Service of the four mortgages on lots 10, 11, 25 and 26, which were executed by Pickle on behalf of Central States on the same date and recorded with the Registrar of Titles of Cook County on September 5, 1961. 16. On the same date, August 29, Pickle instructed Miss Palumbo to endorse to Tinley the four notes secured by the mortgages simultaneously being assigned to Service and to take the notes, application forms and appraisals over to Tinley but to send the mortgages and the assignments thereof to the Registrar of Titles for recording. Pickle also instructed her to take a blank Central States check with her to Tinley. 17. Upon arrival at Tinley, Miss Palumbo presented the documents (except the notes which were not delivered until August 31, 1961) with respect to lots 10, 11, 25 and 26 to Mrs. Nilsson, received a check for $440,000 payable to Central States and filled in the blank check to Tin-ley for $435,244.68, the then outstanding balance of the three earlier loans on lots 8, 9 and 27. She then received back the notes, appraisals and application forms, relating to such loans, which had been previously deposited with Tinley on July 26, 1961. She then returned to Central States’ office with the documents. The $440,000 cheek was subsequently deposited in Central States’ account at the Bremen State Bank on August 31, 1961. 18. Still on August 29, 1961, the documents in question together with mortgages, mortgage assignments, insurance policies, affidavits, waivers of liens and other related documents were delivered to Service to effect the three $145,000 construction loans on lots 8, 9 and 27, which Service had committed in April 1961, to purchase. 19. On August 29, 1961, no construction had started on the four lots numbered 10, 11, 25 and 26. Construction did not begin on such lots until some time in September and was not 60% completed on any of the lots until November or December, 1961. 20. Commencing in December, 1961, the partners of A. D. K. made inquiries of Pickle as to why they were not receiving the 60% of the four loans on lots 10, 11, 25 and 26, since construction was more than 60% completed. In mid-December, Ardizzone and DeRuiter had a conference with Pickle at his office on the subject at which time he told them to see Katschke at Tinley Park who would explain the program which had been worked out for them. On the same day, Ardizzone and De-Ruiter saw Katschke who advised them that conditions at Tinley Park were such that the 60% of the loans could not be paid at that time but assured them he would work out arrangements for them to receive 40% currently if they would bring in the necessary waivers of liens. 21. Although they brought in the waivers, the money was not forthcoming and Ardizzone and DeRuiter continued to press for payment. Ar-dizzone and Katschke had a conference in January at which Katschke commented that he had three attorneys and was one step ahead of persons he was dealing with. In mid-February, Katschke, Ardizzone, De-Ruiter and one Lawrence Kahn, an employee of the Chatham State Bank, went to lunch together. Ardizzone stated that A. D. K. was in desperate straits financially and needed money right away. Katschke then explained his program for the acquisition of a controlling interest in the Chatham State Bank, acknowledged that the 60% of the four loans had been used for this purpose, and added that he had been successful and their “financial heartaches” were over. He also observed that his wife had packed his bags and if the Chatham Bank deal did not go through he was ready to leave the country. Finally, he advised them to return to the Chat-ham Bank the following Monday at which time they would receive a loan of at least $25,000. 22. On Monday, February 19, 1961, a loan in the amount of $25,-000 was granted to Ardizzone, De-Ruiter and Kempa on their individual signatures. When Ardizzone subsequently objected to the transaction, asking how the partners were going to repay the note or pay the interest, Katschke told him not to worry, that it would all be taken care of and that he, Katschke, would pay the interest. 23. On several occasions, Pickle told employees of one or another of his companies that he was participating in the acquisition of the Chat-ham State Bank with Katschke. In urging the salesman of Gold Star Homes, Norman Whitehouse, who dealt with A. D. K., to get more loans from the partnership, Pickle told Whitehouse he could raise about $325,000 on the A. D. K. loans which could be used to purchase the Chat-ham Bank. 24. Katschke, with Pickle’s assistance, diverted $350,000 of Tinley Park’s funds to his wholly owned company, Katschke Land Development Company, and used them to purchase 1,009 Chatham State Bank common shares. Although ostensibly the proceeds of three real estate mortgage loans, the funds were disbursed by Tinley Park on Katschke’s instructions without the requisite mortgages and other security documents being obtained. Subsequently in August 1961, four similar loans without mortgages, etc., were made by Tinley Park on Katschke’s instructions with Pickle’s assistance, the proceeds of which were used to retire the earlier, three loans and thereby to extend the period during which Katschke personally had the use of the $350,000 obtained from the first three ostensible loans. Defendants in this court contend that these findings of the district court are clearly erroneous. We reject this contention. They are amply sustained by the evidence. We hold that defendant Katschke, aided and abetted by defendant Pickle, unlawfully and willfully misapplied the funds of Tinley and converted them to his own use. We further hold that said defendants, with intent to defraud Tin-ley, did unlawfully and willfully participate, share in and receive money, profits and benefits, which Katschke obtained in funds disbursed by Tinley to Central States in connection with purported mortgage loans which he caused to be granted by Tinley. All of the actions of both defendants during the various steps of the foregoing transactions support the conclusions which we reach. We find no error committed by the district court as charged by defendants. For these reasons, the judgments from which this appeal was taken are affirmed. Judgments affirmed. . We construe this appeal to be from two separate judgments rendered against defendants. . “Whoever, being an officer * * * of * * * any * * * savings and loan * * * association * * * willfully misapplies any moneys, funds, credits, securities or other things of value belonging to such institution * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both; * * *» . “Whoever, being an officer • * * of * * * any * * * savings and loan * * * association * * * with intent to defraud * . * * participates or shares in or receives directly or indirectly any money, profit, property, or benefits through any transaction, loan, * * * of any such * * !i< association, shall be fined not more than $10,000 or imprisoned not more than five years, or both. * S¡S * » . A Savings and Loan Association, the accounts of which were insured by the Federal Savings and Loan Insurance Corporation.

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

BLUE MOUNTAIN CONSTRUCTION COMPANY, a Corporation, Appellant, v. H. C. WERNER and Tauf Charneski, Appellees. No. 16206. United States Court of Appeals Ninth Circuit. Aug. 19, 1959. Rehearing Denied Sept. 21, 1959. Healy, Circuit Judge, dissented. Cashatt & Williams, Jerome Williams, Spokane, Wash., for appellant. Norman B. Kobin, Leo Levenson, Portland, Or., for appellees. Before HEALY, ORR and FEE, Circuit Judges. ORR, Circuit Judge. On the 4th day of April, 1958, appellant filed in the United States District Court of Oregon a complaint seeking damages for alleged breaches of three sub-contracts entered into with appellees. On April 28, 1958, defendants served and filed their answer. No affirmative relief was sought. On May 19, 1958, appellant moved for a dismissal of the action without prejudice under Rule 41(a) (2), F.R.Civ.P., 28 U.S.C.A. No supporting affidavit was presented and no reasons were given for the dismissal. Appellee objected to the dismissal on the ground that appellee had “undertaken at considerable expense to go through this thing and prepare ourselves for our answer and also to prepare ourselves for trial.” The court denied the motion. Whether or not a dismissal will be granted is within the sound judicial discretion of the court. Ockert v. Union Barge Line Corp., 3 Cir., 1951, 190 F.2d 303; Rollison v. Washington National Ins. Co., 4 Cir., 1949, 176 F.2d 364. We think it follows that each case must be determined on its own particular facts. We find no abuse of discretion in the denial of this motion. There was no showing whatever in support of the motion. It was no more than a request. Counsel for appellants, other than the one making the first motion, evidently sensing the inadequacy of the showing made in support of said motion, on May 23, 1958 filed a second motion entitled “Motion for Reconsideration of and Renewing Plaintiff’s Motion for a Voluntary Dismissal Without Prejudice pursuant to Rule 41(a) (2).” This motion was supported by an affidavit setting forth the reasons why the dismissal was desired. In essence the supporting affidavit stated: that plaintiff’s attorney had erroneously concluded that the only forum available to appellants to obtain redress on its alleged causes of action was by an action in the United States District Court of Oregon, inasmuch as the appellees were residents of Oregon and could not be reached in a suit instituted in the state of Washington ; that thereafter appellant’s attorney determined that this theory was erroneous and further determined that his clients had a cause of action under the Miller Act, §§ 270a and 270b, 49 Stat. 793 (1935), 40 U.S.C.A. §§ 270a and 270b, and that under the terms of said act an action under it could only be brought in the district court having jurisdiction of the area in which the work was performed, in this case the Eastern District of Washington. Thus we have appellant squarely representing to the trial court that their purpose in requesting a dismissal in the Oregon District was to enable them to institute an action in the Eastern District of Washington. The trial court had before it this picture upon which to act in exercising its discretion whether to dismiss. The dismissal was desired in order to permit an action in the State of Washington because under appellant’s theory a suit under the Miller Act, which they wished to bring, could only be brought where the contract was to be performed. According to appellees this is a debatable question because, as they argue, the requirement of the Miller Act relates only to venue, citing Texas Construction Company v. United States, 5 Cir., 1956, 236 F.2d 138. That case does not depart from the established rule that a competent court could have jurisdiction of a case and try it where improper venue was laid only in the event the parties agreed. Of course the trial court here could not speculate as to whether the sureties would waive venue in the event they were made parties in the Oregon suit, nor did it try. However it nowhere appears that it was necessary to sue the sureties, no showing being made that the appellees are insolvent. Appellant’s complaint alleges three causes of action, two based on breach of contract and one for reformation of contract. The first cause of action was for damages for failure to complete the concrete lining of a tunnel in time. The second cause of action was also for failure to complete the concrete lining of a tunnel in time. The third cause of action was for reformation so as to include certain provisions for the method of lining the tunnels and a time element. The Miller Act provides that the requirement of the bond shall be for insuring payment of all persons “supplying labor and material.” (See note 2, supra). Appellees have argued that the causes of action alleged in the complaint in the Oregon Court could not have been brought under the Miller Act, hence the reasons given for dismissal had no validity. We expressly refrain from passing on this question. It is, we understand, before the District Court of Washington at this time. It should be noted, however, that the trial court in Oregon offered to dismiss the action there founded, as we have said, on breach of contract and for a reformation without prejudice if appellant would agree not to sue on said causes of action in Washington. What if any effect such an agreement would have had on the future right to litigate said causes of action in Oregon we are unable to say. As against this lack of showing on the part of appellant, the trial court was justified in turning to the other side of the coin. The defendants have been brought into court in the State of their residence, a matter of great convenience to them. We understand that their witnesses reside in that jurisdiction. To require them to pull up stakes and move to another state would entail considerable additional expenses of hotel accommodations for the litigants and witnesses and the trial court could reasonably conclude that appellees’ lawyers would require additional fees and expenses to travel to a foreign state to try the case. It may be argued that appellees would have been subjected to these same expenses had appellant seen fit to sue in Washington in the first instance. That may be so, but we think that a court in exercising its discretion as to whether a dismissal for the express purpose of allowing a plaintiff to bring an action in a foreign state should be granted, is entitled to consider whether a plaintiff should be allowed to snatch from a defendant certain monetary advantages and conveniences which appellant has conferred by its voluntary act. After the denial of their motion to dismiss, appellant informed the court that they refused to proceed further. Appellant took this position at its peril. If the trial court was in error in refusing to dismiss without prejudice appellant was on safe ground, but on the other hand, as we find there was no abuse of discretion then the subsequent action of the court in dismissing the action with prejudice for want of prosecution was proper. The trial court set the case for pretrial conference on July 21, 1958. The matter came on for pre-trial conference on said date. No appearance was made for or on behalf of appellant. In view of the information given the court that appellant would not proceed further, it justifiably concluded that there was a failure to prosecute and dismissed the action with prejudice under Rule 17 of the Oregon District Court and Rule 41(b) F.R.Civ.P. Subsequent to the denial of the motion to dismiss and the later order of the trial court dismissing with prejudice, appellant endeavored to have this court by means of a Writ of Mandamus order the trial court to dismiss without prejudice. This court refused the Writ stating that in its opinion the trial court did not abuse its discretion. Later appellees endeavored to have this appeal dismissed on the ground that the refusal of the Writ of Mandamus controlled. A different panel of the court heard the motion to dismiss and denied it. This action in refusing to dismiss the appeal may have detracted from the controlling effect of the holding in the mandamus proceeding, but the finding by this court in the Mandamus action that the trial court did not abuse its discretion is at least persuasive. Under the facts and circumstances presented, the judgment of dismissal with prejudice is affirmed. . Rule 41 (a) (2) provides that “except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. * * * ” Paragraph (1) of the subdivision provides that “an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.” . “270a. Before any contract, exceeding $2,000 in amount, for the construction * * * of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds * * * (1) a performance bond * * * for the protection of the United States. (2) A payment bond * * * for the protection of all persons supplying labor and material in the prosecution of the work provided for in .said contract for the use of each such person. * * * ” “270b. Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which .a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last act of labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount * * * unpaid at the time of institution of such suit * * . The part of § 270b in issue states “every .suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court foi any district in which tlie contract was to be performed and executed and not elsewhere. * * * ” . “All actions filed must be prosecuted with due diligence, and any action not so prosecuted may be dismissed for want of prosecution.” . “For failure of the plaintiff to prosecute or to comply with * * * any order of the court, a defendant may move for dismissal of an action or any complaint against him. * * * Unless the court in its order 'for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.”

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

LOGAN CHARTER SERVICE, INC., in personam and the TUG CITY OF JOLIET, Her Engines, Tackle, Furniture, etc., in rem, Appellant, v. CARGILL, INC., The Continental Insurance Company, United Barge Co., Inc., Dairyland Power Co-operative and the United States of America, Appellees. No. 18088. United States Court of Appeals Eighth Circuit. Feb. 6, 1967. George B. Matthews, of Lemle & Kelleher, New Orleans, La., for appellant; Curtis L. Roy and Dorsey, Owen, Mar-quart, Windhorst & West, Minneapolis, Minn., were with him on the briefs. T. C. W. Ellis, of Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, New Orleans, La., for appellees Cargill, Inc., Continental Ins. Co., United Barge Co. and Dairy-land Power Cooperative; Richards, Montgomery, Cobb & Bassford, Minneapolis, Minn., were with him on the brief for those appellees. Martin Jacobs, Atty., Dept, of Justice, Washington, D. C., for appellee United States; John W. Douglas, Asst. Atty. Gen., David L. Rose and Miles W. Lord, U. S. Atty., Minneapolis, Minn., were on the brief. Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges. MEHAFFY, Circuit Judge. This appeal is from a decree of the United States District Court for the District of Minnesota, sitting in admiralty, growing out of a collision of the tow M/V CITY OF JOLIET with Lock and Dam No. 3 on the upper Mississippi River. The District Court found the crew of the CITY OF JOLIET at fault for the collision and awarded damages for the loss of the barge and its cargo and for damage to the dam. We affirm. A number of interests are involved. Dairyland Power Cooperative, a libelantappellee, owned the sunken barge DP-223. Libelant-appellee, United Barge Company, Inc., was the owner pro hac vice of the sunken barge DP-223. Libel-ant-appellee, Cargill, Inc., owned the barge’s cargo of rye. Respondent-appellant, Logan Charter Service, Inc., was the owner pro hac vice of the tug CITY OF JOLIET. Logan bareboat chartered the CITY OF JOLIET from the American Commercial Barge Lines and contracted with Cargo Carriers, Inc. to tow barges between specified points for a daily rate. The tow involved here was made up in St. Paul, Minnesota, and consisted of three tiers of two covered grain-carrying barges each, with barge DP-223 occupying the port side of the aft tier. The CITY OF JOLIET faced up to the stern of the tow. On a voyage down the Mississippi River from St. Paul, a tow must transit a number of locks. The lock and dam involved is located near Red Wing, Minnesota and is owned by the United States and operated by its Corps of Engineers. The lock is on the right descending bank of the river and has a six hundred foot long guidewall on the up-river side. Opposite the guidewall is a shorter wall — a “bull nose” — which extends a short distance upstream from the lock’s upper gate. Dam No. 3 is east of the lock. The current approaching the lock and dam flows into the right or west bank above the guidewall, and then moves to the left bank toward the dam, creating a strong “outdraft.” The crew of the CITY OF JOLIET consisted of Captain Radford, Pilot Houchins, Mate Rinehart, and .deckhands Evans and Sellars. The locktenders were Hartnagel and Flynn, civilian employees of the Corps of Engineers. The record contains the testimony of each of the above except Rinehart, who did not testify. The accident occurred when the CITY OF JOLIET lost control of her tow while attempting to maneuver into position to negotiate the lock, resulting in the tow colliding with the up-river side of the dam causing the barge DP-223 and its cargo to sink. The CITY OF JOLIET, with the assistance of another tug which arrived from downstream, rescued the other five barges. The following Findings of Fact of the District Court aptly describe the events occurring immediately before and resulting in the collision: “12. Prior to 12:00 o’clock midnight Captain Radford was the pilot on duty. He was relieved at midnight by Pilot Houchins. Prior to being relieved Captain Radford had experienced difficulty and had spent some time (30 to 45 minutes) in attempting to maneuver the tow into position to enter the lock chamber. About the time that Captain Radford was being relieved he told Pilot Houchins, ‘there is an awful outdraft here — we are having a little difficulty getting our tow in the chamber of the lock.’ After Pilot Houchins took over as pilot he attempted for a considerable time (30 to 60 minutes) to bring the tow into the guidewall. Both Captain Radford and Pilot Houchins were experienced river pilots. “13. The Joliet in approaching the lock engaged in a flanking operation. The head of the tow was pointed out in the river and the stern was placed next to the right descending bank. The tug continued to flank the stern starboard barge down on the upper guide-wall. Nylon lines were placed on the buttons on the guidewall and on cavils on the stern starboard barge. The pilot then went ahead on the port engine and backed up slow on the starboard engine. The steering rudders were thrown hard down to starboard and the backing rudders were thrown down hard to port. The two lines on the starboard stern barge were being held. This involved a kind of pivoting ■operation. The head of the tow moved slowly to starboard and toward the guidewall. There was increasing strain on the stern lines caused by the outdraft and the movement of the engines. In a customary maneuver when the bow reaches the guidewall the stern of the tow will be close or against the guidewall and the stern lines will be cast off and the tow will proceed along the guidewall and into the lock chamber. “14. Locktenders Hartnagel and Flynn were on duty at the lock at the time of the accident. Deckmen Rinehart and Evans were on the stern starboard barge. Deckman Sellars was at the bow of the tow. Evans was near the stern end of the stern starboard barge, and Rinehart was more forward of Evans on the same barge. Hartnagel threw heaving lines to Rinehart and Evans, who passed nylon lines back to Hartnagel who then put the nylon line on a button on the guidewall. Evans then wrapped the nylon line around the cavil on the barge and made it fast with a figure eight and three or four loops. The starboard side of the tow was then fifteen to twenty feet from the guidewall. The stern proceeded to go away from the lock wall and made the lines tighter. Evans made more loops and let the line play, but the line kept getting tighter and tighter. He let out as much line as he could to keep the line from breaking. The line got down to all that Evans could hold and all that he could wrap around, and at the time that he was holding only the end of the line he was forced to let go. Rinehart was doing the same thing with his line and he let go a few minutes later. The stern of the tow continued to fall off. The engines of the Joliet were reversing. After Evans and Rinehart let their lines go, the tow went cross-ways into the dam. The nylon lines, which were relatively new, did not part or break. Hartnagel told Evans to keep the lines tight. Evans heard no instructions of any kind from Pilot Houchins. ****** “17. Loektender Flynn assisted at the guidewall near the bow of the starboard barge. Deckhand Sellars was at the forward end of the barges. Flynn tied a nylon line to the button on the guidewall. Sellars tiea his line to the cavil on the barge and held it. Flynn said nothing to Sellars. The tow line did not break. Sellars could no longer hold the line and let go. Sellars received no instructions from Pilot Houchins. “18. The tow moved ahead slowly. The stern was too far out. Pilot Houchins decided to go in. The two stem lines were slacked off and cast off. The tow moved forward but was swinging out. Hartnagel became concerned about the barge striking the upper right gate, which would cripple the lock for a month. Hartnagel told Pilot Houchins to back down. Houchins started backing, the stern kept swinging out, and the current again caught the tow. The bow of the barges cleared the bull nose. The crash of DP-223 into the pier nose of the dam occurred about 1:00 a. m. on June 8, 1963.” After finding that the testimony of Captain Radford and Pilot Houchins was “in many respects unworthy of belief and in some respects incredible,” the court found that each was guilty of negligence. The court also found that deckhands Rinehart and Evans were negligent in failing to hold the stern lines tight as ordered. Additionally, the court found that deckhand Sellars was guilty of some slight degree of negligence in his handling of the bow lines. The court ultimately found that the sole direct proximate cause of the collision was the negligent operation and navigation of the CITY OF JOLIET by employees of Logan Charter Service, Inc. Appellant’s principal argument for reversal is that the trial court erred in finding appellant, rather than the Government, at fault. The only witnesses to the collision were employees of appellant and the Government, who gave conflicting versions of how the collision occurred. According to the Government’s witnesses, the flotilla’s approach to the guidewall was normal but the stern was never maneuvered closer than forty feet to the wall. Thus, the flotilla never achieved a proper position to transit the lock. Employing a “flanking maneuver,” the flotilla approached the guidewall with the head barges angling out in the river. When the stern was fifty or sixty feet from the wall, mooring lines were secured from the aft starboard barge to the guidewall. The lines were tied so that the deckhands were able to control the lines, releasing them gradually, to help bring the tug closer to the guide-wall. The tug pilot maneuvered the head of the tow from its outstream position into proper position near the wall, ready to negotiate the lock if the stern barges and the tug also had been brought into proper position alongside the wall. Thus, according to Government witness Hartnagel, the flotilla was not ready to enter the lock as its stern was too far out. Nevertheless, Hartnagel testified, the flotilla started forward and he heard Pilot Houchins say, “O.K.. ;.Let her go. We’re going in.” The deckhands on the aft barge cast off the lines. Surprised and frightened at the improper approach, Hartnagel warned the tug to back out, knowing otherwise the flotilla would damage the lock. The pilot then attempted to back away but the flotilla was caught in the current and cast upon the dam with the resulting damage to the dam and sinking and loss of barge DP-223 and its cargo. Hartnagel’s testimony is supported by the testimony of the other Government witnesses and by the written statements of the pilot of the tug made shortly after the occurrence of the accident. The log entry contains this statement of the pilot: “11:15 A.M. — 12:00 M./P. — flanking down #3 running water. “1:00 A.M. — Stern got out to (sic) wide tow topped across Dam DP-223 got two holes knocked in it. One in Bow Rake & one in No. 1 hold — stb side & taking water fast — can’t get DP-223 off dam — too much current.” The accident report reflects the following statement from the pilot: “Nature of Accident. “Left-out draft boat wood (sic) not lift — sturn (sic) line let go on sturn (sic) went board (sic) side onto pier noses.” Additionally, an expert witness testified that for proper entry in the lock, the stem might be a little ways out but not far, and that it would be very dangerous to cast off the stern lines while at the mercy of the current. Contrary to the above recited testimony, appellant produced evidence that locktender Flynn, a farm laborer relatively unskilled at directing river traffic, positioned on the wall near the bow of the flotilla, ordered the bow or head of the tow tied off and its forward motion stopped as the flotilla was attempting to enter the lock, causing the stern to be carried out into the current and onto the dam. It would serve no useful purpose to point out the other conflicts in the evidence or various inferences that might be drawn therefrom. Our standard of review in eases of this kind is found in McAllister v. United States, 348 U.S. 19 at page 20, 75 S.Ct. 6, at page 7, 99 L.Ed. 20 (1954), where the Supreme Court said: “The first question presented is whether the Court of Appeals in reviewing the District Court’s findings applied proper standards. In reviewing a judgment of a trial court, sitting without a jury in admiralty, the Court of Appeals may not set aside the judgment below unless it is clearly erroneous. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.” Our latest expression on the clearly erroneous rule is found in Worthen Bank & Trust Co. v. Franklin Life Ins. Co., 370 F.2d 97 (8th Cir. 1966). See also Travis v. Motor Vessel Rapids Cities, 315 F.2d 805, 809-810 (8th Cir. 1963), where this court applied the clearly erroneous rule in an admiralty case. The trial court credited the testimony of the Government witnesses and characterized the testimony of the Captain and Pilot of the CITY OF JOLIET as being “in many respects unworthy of belief and in some respects incredible.” The trial court could properly make such determinations. See Worthen Bank & Trust Co. v. Franklin Life Ins. Co., supra. A canvass of the record reveals ample evidence to support the finding that appellant’s crew members were negligent in attempting to transit the lock when the stern was far outstream at the mercy of the current and the bow near the wall; that the pilot and crew should not have attempted a forward movement or cast off their lines, placing them in such a perilous position certain to result in disaster. The court was fully justified, therefore, in finding appellant guilty of negligence which caused the collision and that the Government was guiltless of actionable negligence. Appellant next contends that the District Court erred in applying the common law rule of proximate cause. It asserts that the test of causation in admiralty is not “proximate cause,” but rather “contributing cause” and the accompanying concept of divided damages. This admiralty rule applies only where two parties are jointly responsible for a tort. It has no bearing here as the court specifically found that the Government locktenders were not negligent. The court further found that the negligence of the crew of the CITY OF JOLIET was “the sole direct or proximate cause of the collision.” This assignment of error is prompted by the court’s additional finding that if either of the Government employees was negligent, his negligence was not a direct or proximate cause of the accident. Obviously, this latter finding was merely explanatory and unnecessary in light of the court’s specific finding of no negligence on the part of the Government’s employees. At most, it was an explanation of a simple rule of tort law and could not possibly result in any prejudice to appellants. Appellant complains of the court's statement that the doctrine of res ipsa loquitur was applicable to the instant case. As a general proposition, this doctrine is applicable to admiralty cases. In the instant case, the trial court attributed liability solely to the specific negligence of the crew of the CITY OF JOLIET. The court’s conclusion was not based on the doctrine of res ipsa loquitur. And in this aspect, the case is analogous to Ayres Marine Service v. W. Horace Williams Co., 213 F.2d 27, 30 (5th Cir. 1954), where the court there properly, we think, rejected a similar contention as appellant here advances. The argument is also made that the doctrine does not apply where there is joint control or responsibility, but as the court exonerated the locktenders of negligence, it follows that there was no joint control or responsibility making the doctrine of res ipsa loquitur inapplicable. Finally, appellant contends that the court erred in not holding that the lock operators were in charge of the navigation of the CITY OF JOLIET and flotilla. The argument is based upon a regulation of the Secretary of the Army pursuant to § 7 of the River and Harbor Act of August 8, 1917, 40 St. at 250, which provides: “AUTHORITY OF LOCKMAS-TERS. The movement and position of all boats and floating craft of every description while at or near the locks and dams and in canals shall be subject to the direction of the lockmaster, whose orders shall be obeyed in the operation and mooring of such boats and craft. * * * ” A reading of the other regulations makes it clear that this regulation was not designed to absolve the crew of an approaching vessel from negligence. For example, the regulations require a vessel to approach the lock with caution and forbid its entering the lock until the lockmaster signals for entry. The regulations specifically provide that they shall not affect the liability of the owners and operators for any damage caused by the operations to locks or other structures. Additionally, we note that Congress has enacted rules for navigation of the Mississippi River, 33 U.S.C.A. § 301 et seq. 33 U.S.C.A. § 351 provides that nothing in the rules “shall exonerate any vessel, or the owner or master or crew thereof * * * of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.” The record shows that the loektenders were not seamen and had no control over the navigation of the flotilla other than to forbid its entry into the lock until the entrance could be safely accomplished. They could not be held responsible for the crew’s failure to maneuver the flotilla into proper position to enter the lock. In urging this point, appellant relies upon the case of Rebel Towing Co. v United States (S.D.Tex. Admiralty #64-H-67 Mar. 3, 1965), an unreported district court opinion appended to appellant’s brief. In Rebel Towing, the trial court found the accident occurred after the tow had entered the lock and its control turned over to the lockmen who were moving the barges by the use of moving cavils on the lock. The court found the lock operators at fault and found that the owners and operators of the tug were guilty of no fault which caused the collision. Rebel Towing is obviously distinguishable. In our opinion, appellant’s suggested construction of the regulation is erroneous as it is inconsistent with other regulations and statutes. Our canvass of the record as a whole leads us to conclude that the evidence justified the court’s findings and conclusions that the members of the crew of the CITY OF JOLIET were negligent, and that such negligence constituted the sole proximate cause of the collision. The record is free of prejudicial error and the judgment of the District Court is affirmed. . The court found as to the negligence of Radford and Houchins the following: “22. Captain Radford was in complete charge of the tow. He and Pilot Houchins were responsible for the navigation of the tow and placing the tow in the lock chamber. “23. Radford permitted Houchins to relieve him at a time when the tow was in a difficult situation. Radford decided to let Houchins extricate himself from this position of danger. Rad-ford was negligent. “24. After being relieved, Radford absented himself for a short time but soon reappeared. He failed to give proper assistance or direction to Houchins. Radford was negligent. “25. Radford ordered the two stern lines held tight. The two stern lines were not held tight. Radford failed to obtain observance of his orders. Radford was negligent. “26. Customary or normal procedure required that the stern end of the tow be brought in near the guidewall. Captain Radford failed to navigate the tow into proper position. Radford was negligent. “27. Customary or normal procedure required that the starboard side of the stern barge be kept or maintained near the guidewall. Pilot Houchins failed to keep or maintain this position. Houchins was negligent. “28. Customary or normal procedure required that when the head of the tow touched the guidewall that the stern of the tow maintain a proper position. Pilot Houchins permitted the stern of the tow to angle out. Houchins was negligent. “29. Customary or normal procedure required that the stern of the tow be reasonably close to the guidewall so that the stern lines could be cast off and the tow proceed ahead into the lock chamber. Pilot Houchins failed to properly navigate the tow to make this possible. Houchins was negligent. “30. The Joliet was powered by two 600 horsepower engines. Pilot Houchins believed that the engines had horsepower of 2400. Houchins’ experience on Diesel towboats related to engines with 1800 to 3600 horsepower. A pilot should be familiar with the power under his control. Houchins did not have this knowledge. Houchins was negligent. “31. When the stern and bow lines were let go, Pilot Houchins had the duty to reasonably and properly back down or back out. He failed to navigate the tow in a reasonable and proper manner. Houchins was negligent.” . It is stated in 2 Am.Jur.2d Admiralty § 206 (1962), “The doctrine of res ipsa loquitur is recognized and applied in admiralty.” See also The Anaconda, 164 E.2d 224, 228 (4th Cir. 1947), and cases therein cited. . In Ayres Marine, supra 213 F.2d at page 30, the court said: “Appellant’s attack upon the court’s conclusions of law is predicated upon the proposition that the trial judge erred in placing reliance on the doctrine of res ipsa loquitur. Appellant relies upon Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89, 1941 A.M.C. 1697, which does indeed hold that the doctrine is an aid to the plaintiff in sustaining the burden of proving breach of the duty of due care but does not avoid the requirement that upon the whole case he must prove the breach by the preponderance of evidence. But what appellant overlooks is that the District Court did plainly state that the burden of proof was upon the libelant. And, while the court thought libelant was entitled to invoke the aid of the doctrine, it did not base its decision solely on that ground for it held and we think properly that libelant sustained its burden of showing negligence on the part of appellant by a preponderance of the evidence.” . “The navigation of the tow in approaching the guidewall or the lock chamber is the responsibility of the pilot. In approaching the lock the lockmaster has authority to protect the safety of the lock and dam structure. The lockmaster can halt a hazardous approach by barring entry to the lock. The lockmaster cannot order and control the maneuvers for a safe approach. The lockmaster does have control in the handling of a tow once the tow is in the lock chamber.” . “Vessels must approach the locks with caution and shall not enter nor leave the lock until signaled to do so by the lock-master. $ $ $ * $ “In no case will boats be permitted to enter or leave the locks until directed to do so by the lockmaster. & ífc Sfc * “The regulations contained in this section shall not affect the liability of the owners and operators of floating craft for any damage caused by their operations to locks or other structures.”

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

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

In re RAYMARK INDUSTRIES, INC., Petitioner. Wanda JENKINS, et al., Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., Defendant-Appellant. Nos. 86-2498, 86-2499 and 86-2967. United States Court of Appeals, Fifth Circuit. Nov. 5, 1987. Rehearing Denied Dec. 3,1987. See also, 5th Cir., 782 F.2d 468. Before THORNBERRY, GARWOOD and HIGGINBOTHAM, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: We review the district court’s construction of an unwritten settlement agreement. The agreement’s terms were not reduced to a clearly stated document because the settlement was made during the trial of a large class action under a deadline imposed by a major defendant’s threat of bankruptcy. We describe the negotiations leading to settlement before we explain our affirmance of the district court's interpretation. I In November, 1985, 753 asbestos-injury claims pending in the Eastern District of Texas were consolidated and certified as a class action by Judge Robert Parker. The plaintiff class was represented by several attorneys, each responsible for a discrete subgroup containing anywhere from one to over 500 plaintiffs. Raymark Industries, Inc., was an asbestos manufacturer named as defendant in most but not all of the 753 claims. A set of manufacturers known collectively as the “Wellington Group” was also a defendant in the class action. This appeal arises from a settlement agreement made between Raymark and the plaintiff-class in March, 1986, during a jury trial. Although settlement negotiations began well before trial, their progress accelerated when the attorneys for Raymark informed plaintiffs’ counsel that Raymark would file for bankruptcy if settlement was not achieved immediately. Raymark stated the terms of its “all or nothing” offer in a letter to Marlin Thompson, class counsel and attorney for 63 of the plaintiffs. The letter, which was slipped under the door of Thompson’s hotel room on the night of March 17, said Ray-mark would file for bankruptcy unless the plaintiffs settled for $10,000 for each case in which Raymark was a party. The letter stated further that this offer required acceptance by 8:30 a.m. on March 18. Thompson replied at 9:15 the evening of the 17th, accepting “[o]n behalf of [his] clients which is thirty-six (36) of the class action cases.” The jury heard evidence the next morning, after which the judge met with the attorneys. Walter Umphrey, attorney for 534 of the class members, introduced the Thompson letter into evidence. He told the Court that he believed that Raymark sincerely intended to file under Chapter 11 if no settlement was reached. Jeffrey Lynch, Raymark’s lawyer, then told the Court that Harry Day, an officer of Raymark, advised him that Raymark’s Board of Directors had met and authorized a Chapter 11 filing in the event plaintiffs refused the offer. After Lynch’s statement, Umphrey and Thompson moved that the court approve settlement for $10,000 per case as to all cases in which Raymark was a defendant, not just those brought by their own clients. This motion was consistent with Judge Parker’s policy, stated at the inception of the class action, that he would not approve any piecemeal settlement, i.e., one involving both less than all defendants and less than all class members. Umphrey’s proposal would not have been a piecemeal settlement, since it would have resolved the claims of the entire class against Raymark. Two plaintiffs’ attorneys, Rex Houston (89 class members) and Scott Baldwin (46 class members), objected to Umphrey’s motion. Judge Parker took the arguments under consideration. The next morning, March 19, the judge met again with the attorneys. Umphrey and Thompson renewed their motion that the Court approve settlement between Raymark and the class as a whole. In addition, Umphrey informed the Court that during the night they had also reached a settlement agreement with the Wellington Group for approximately $68 million. As Umphrey described the terms of settlement with Wellington, the money was to be paid in a lump sum to the class. It would then be distributed to individual plaintiffs in amounts to be agreed upon later. This plan was consistent with a previous understanding between the Court and the parties that any settlement or judgment funds would be distributed to each class member only after class-wide issues had been resolved and in an amount relative to his or her individual claim. Indeed, the settlements made by other defendants up to this point had been figured on a lump-sum basis. Houston renewed his objection to the terms of the Raymark settlement, angry that Raymark was using the threat of bankruptcy to coerce an inadequate settlement. After hearing this objection, the court retired to chambers for further discussion with counsel. Back on the record a short time later, Umphrey suddenly changed the terms of his motion: he now wanted to sever out Raymark and settle only with the Wellington defendants. In other words, Umphrey now wanted to proceed to trial against Ray-mark. In response, the court reminded Umphrey that it would not approve such a settlement because it included less than all defendants and less than the entire class. At this point Houston, who had opposed the original version of Umphrey’s motion, objected. He argued that a settlement would be workable only if it included all defendants. Thus, he moved that the court approve the settlement in its prior form, i.e., including Wellington and Raymark. In the ensuing discussion Michael Schwartz, another Raymark attorney, made the following statement, which has become a focal point of this appeal: Judge, the only comment that I have is to reiterate the comments that we have made in private sessions with the Court, and basically I think the Court is well aware that the bankruptcy proceeding of Raymark is imminent. There is 7.2 million dollars available to compensate injured plaintiffs that are members of this class that is available today and will not be available tomorrow. After a recess, the court ruled, approving a settlement between the entire class and both Raymark and Wellington. The court did not specify the terms of the settlement it was approving, nor did the parties seek such clarification at that time. Trial continued as to the claims against those defendants not included in the settlement. A few days later Raymark deposited $7.3 million with the registry of the court. This payment was accompanied by a letter identifying it as $10,000 per-case for the 730 cases in which Raymark was named defendant. The letter also said Raymark reserved the right to a refund if fewer than 730 cases existed. In fact, as the case progressed the parties determined that Raymark was actually named in only 654 cases. On June 19, Raymark moved to withdraw from the court’s registry $760,000, or the difference between what Raymark paid ($7.3 million) and what its payment should have been for 654 cases at $10,000 per case ($6,540,000). After reviewing the record, Judge Parker said he had perceived Raymark’s proposal to be payment of a lump-sum, $7.2 million. The judge gave several reasons for his belief. First, he had no reason to expect Raymark would deviate from the unbroken trend of lump-sum settlements by the other defendants in the case. Hence, he took Schwartz’s use of the lump-sum figure to be an offer of settlement at a fixed, class-wide price. Judge Parker also believed that a per-case settlement offer would have been odd given the administrative context of the case. The parties understood from the outset that a class-wide judgment or settlement would be achieved first, and then class members would receive a share based on the merits of their individual claims. Indeed, the pooling of defendants’ payments would probably have meant that settlement money from Raymark might go to plaintiffs who had never even named Ray-mark as a defendant. Hence, Judge Parker concluded that it would have been strange for Raymark to calibrate its settlement offer on a per-case basis. On June 24, the court entered a formal order denying Raymark’s motion for a refund, holding that Schwartz’s statement was an offer of settlement at $7.2 million. The judge did, however, order the refund of $100,000, the amount by which Ray-mark’s payment exceeded Schwartz’s offer. The rest of the money still resides in the court’s registry. On October 14, the court denied a motion by plaintiffs to vacate and set aside the court’s order approving settlement, finding that the settlement “was appropriate and in the best interests of the members of the class.” On November 5, Judge Parker certified the question for appeal under 28 U.S.C. § 1292(b). II Although interpretation of an unambiguous contract is a question of law, clear error is the standard of review when a district court uses extrinsic evidence to interpret an ambiguous contract. Paragon Resources, Inc. v. Natural Fuel Gas Distr. Corp., 695 F.2d 991, 995 (5th Cir.1983); Western Beef, Inc. v. Compton Investment Co., 611 F.2d 587, 590 (5th Cir.1980). Because a settlement agreement is a contract, we apply this level of review here. See White Farm Equip. Co. v. Kupcho, 792 F.2d 526, 529 (5th Cir.1986). Hence, we are free to reverse only if after examining the entire record we are left with “a definite and firm conviction” that the district court’s reading of the settlement agreement was mistaken. Dresser Indus. v. Fidelity & Casualty Co., 580 F.2d 806, 807 (5th Cir.1978). We find no clear error. To begin with, we believe that Judge Parker reasonably interpreted Schwartz’s statement, given the context in which it was made, to be an offer to settle for the lump sum of $7.2 million. All the other defendants had used lump-sum settlement figures, and the plan for ultimate distribution made the number of plaintiffs irrelevant. A per-case offer also seems inconsistent with the major circumstance motivating the settlement: Raymark’s impending bankruptcy. If Raymark was facing bankruptcy on March 17, its directors would have viewed the impact of the asbestos litigation in terms of lump-sum figures. After all, any financial shortfall resulting from the lawsuit would be felt as an aggregate loss; the per-case cost to Raymark would be irrelevant. Indeed, the minutes of Ray-mark’s Board of Directors meeting emphasized that $7.4 million was the most Ray-mark could afford to lose. The court and the class representatives thus could rely on Raymark’s representations of insolvency and reasonably infer that per-case settlement numbers were not important. We acknowledge that there is evidence in the record to support a contrary interpretation; we might well reach a contrary conclusion if we were deciding the issue afresh. At the least we must confess that this is a close case. In particular, the repeated references to a $10,000 per-case figure support Raymark’s position. These facts might go a long way in proving that Raymark never intended to settle for more than $10,000 per case. But the crucial question is whether Raymark’s actions, as seen by a reasonable observer, could be taken to be a lump-sum offer. We cannot say that Judge Parker’s conclusion, made from his vantage point at the center of these pressure-packed negotiations, was clearly wrong. Ultimately, we tilt in favor of this conclusion because we are reluctant to overturn a trial judge’s decision made as this was in the middle of a major trial before a jury, particularly when the lack of opportunity for a more deliberative approach was much the creature of the party now complaining. AFFIRMED. . The minutes of Raymark’s Board of Directors meeting on the morning of March 18 reflected this decision. Day and Craig Smith, Raymark’s President, told the Board that the pending litigation "threatened the precipitous and unanticipated exhaustion of available insurance.” The minutes continued, Mr. Smith and Mr. Day then presented management’s conclusion that it would be in the best interests of the Corporation to seek relief under Chapter 11 of the Federal Bankruptcy Code unless the Texas litigation could be settled for an amount not exceeding $10,-000 per case, or a total of $7.4 million. Mr. Smith stated that allowing the litigation to proceed to verdict, or settling for an amount significantly greater than $7.4 million, would in all likelihood lead to the filing of Chapter 11 petition in any event. . In a class action the district court has the power to approve any settlement. See Fed.R. Civ.P. 23(c). . Raymark also filed a petition for writs of mandamus and prohibition pursuant to 28 U.S.C. § 1651(a). However, because we have jurisdiction over the case as a certified interlocutory appeal, we do not consider this petition. . We note that the parties do not take issue with the existence of a settlement contract, but dispute only the contract’s terms. The Appellees only attack the agreement's validity as an alternative to their argument for affirmance. Although there might be reason to doubt that the attorneys for the class ever formally accepted Raymark’s $7.2 million offer, we have no such allegation before us.

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

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

Virgil T. WHEELDON, Plaintiff-Appellant, v. MONON CORPORATION, Defendant-Appellee. No. 90-3312. United States Court of Appeals, Seventh Circuit. Argued June 5, 1991. Decided Oct. 23, 1991. As Amended Oct. 23, 1991. Roger W. Bennett (argued), Bennett, Boehning, Poynter & Clary, Lafayette, Ind., for plaintiff-appellant. Jack H. Rogers (argued), Barnes & Thornburg, Indianapolis, Ind., Roger Ben-ko, Kathleen K. Brickley, Barnes & Thorn-burg, South Bend, Ind., for defendant-ap-pellee. Before CUMMINGS and POSNER, Circuit Judges, and NOLAND, Senior District Judge. The Honorable James E. Noland, Senior District Judge for the Southern District of Indiana, is sitting by designation. CUMMINGS, Circuit Judge. This case concerns the timeliness of an age discrimination claim pursuant to the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. The district court, operating under federal question jurisdiction, held that plaintiff’s age discrimination claim was time-barred since it was not filed with the Equal Employment Opportunity Commission (“EEOC”) within the 180-day statutory filing period. Accordingly, the court granted defendant Monon Corporation’s motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. This Court assumed jurisdiction on appeal pursuant to 28 U.S.C. § 1291. On appeal, we review the district court’s legal conclusions de novo. Because plaintiff’s federal pleadings do not raise a genuine issue of material fact sufficient to overcome defendant’s motion for summary judgment, the judgment of the district court will be affirmed. I. FACTS Plaintiff Virgil Wheeldon worked as a line supervisor at Monon Corporation for slightly over three years. He had worked in other positions at Monon for approximately six years prior to his appointment as a line supervisor. On December 10, 1987, Wheeldon was notified that he had been terminated. Monon claims that it terminated him because he failed to cooperate in a new company efficiency plan. However, plaintiff believes that his termination was the result of his military pension. He had served in the United States army for twenty years and had received an honorable discharge. He alleged that he had been terminated because Monon Corporation wanted to set an example to other forepersons who criticized the company's efficiency plan. Wheeldon, who was 49 years old at the time of his termination, asserted that he had been singled out as the example because he had a military pension and would not be hurt as badly by the loss of income. Based on this theory, plaintiff filed a timely claim of discrimination under the Vietnam Era Veterans Readjustment Assistance Act of 1974 (“Veterans Assistance Act”) with the United States Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs (“OFCCP”) — the organization with jurisdiction over claims filed pursuant to that Act. Consistent with its investigative responsibilities, the OFCCP sent defendant an inquiry letter on March 4, 1988, concerning the extent of Monon’s federal contracts. Although OFCCP’s inquiry letter called for a response within 14 days, Monon failed to answer the inquiry until June 8, 1988, exactly one day after Wheeldon’s statute of limitations under the ADEA had run. II. ANALYSIS A. Failure to File a Timely Age Discrimination Complaint with the EEOC The ADEA states that a charge filed pursuant to the Act must be filed “within 180 days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d). Ordinarily, the charge-filing period accrues when the employer notifies the employee of termination. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Stark v. Dynascan Corp., 902 F.2d 549, 551 (7th Cir.1990); Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 288 (7th Cir.1986). In Wheeldon’s case the charge-filing period accrued on December 10, 1987, the date he was notified of termination, and ended on June 7, 1988, 180 days later. Wheeldon filed his complaint in federal district court on July 19, 1989, and his EEOC claim was “file-marked” September 6, 1988. It is uncontested that plaintiff filed both his court and his EEOC complaints after the 180-day limitations period had run. Although plaintiff concedes that he did not file his charge with the EEOC during the statutory period, he contends that his filing of a timely discrimination claim under Section 402 of the Veterans Assistance Act (38 U.S.C. § 2012) with OFCCP constitutes a valid claim of age-based discrimination pursuant to the ADEA. Because his OFCCP filing did not sufficiently allege age-based discrimination, we disagree. In accordance with the ADEA, “[n]o civil action may be commenced * * * until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.” 29 U.S.C. § 626(d). The requirement that plaintiff file a claim with the EEOC before initiating a federal lawsuit serves two important purposes: 1) to provide the EEOC with an opportunity to conciliate the employee’s claim with the employer, and 2) to notify the employer of the nature of the claim against it. Posey v. Skyline Corp., 702 F.2d 102, 104 (7th Cir.1983), certiorari denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336. A recognition of these purposes underlies our conclusion that plaintiffs OFCCP complaint did not constitute a timely filing of age discrimination such that Monon would have been on notice that an age discrimination claim had been filed against it. In his original OFCCP complaint, Wheeldon alleged that Monon terminated him because he had a military pension and would not be hurt as badly by the loss of employment. In this Circuit it has been held that discrimination based on an economic factor closely related to age may constitute impermissible age-based discrimination. Metz v. Transit Mix, Inc., 828 F.2d 1202 (7th Cir.1987). However, the plaintiff must show that the economic factor relied upon by the employer operates as a proxy for age. Although pensions may be used as a proxy for age, we decline to rule that pension considerations always operate as such. Instead, the use of pensions as a proxy for age should be examined on a case-by-case basis. In this case, Monon did not use the plaintiffs military pension as a proxy for age. Indeed, plaintiff does not so contend but contends rather that his military pension was used as a proxy for an independent source of income. While plaintiff was free to allege that independent source of income was used as a proxy for age, he made no such allegation until his reply brief in this Court, where he merely suggested that a correlation between independent income and age is not “implausible”. (Reply Br. 4). Defendant’s assertion that military pensions are based solely on years of service, not on a combination of age and years of service, is uncontested. (Appellee Br. 11). On the basis of these facts it is clear that plaintiff’s OFCCP complaint did not contain facts sufficient to allege age-based discrimination. Therefore, it is unnecessary to decide whether plaintiff’s OFCCP complaint would have been deemed timely filed with the EEOC had plaintiff properly alleged age discrimination in his OFCCP filing. B. Equitable Tolling Plaintiff argues that his federal claim should be considered timely because of the doctrines of equitable tolling and equitable estoppel. It is well established that the EEOC charge-filing statute is not a jurisdictional prerequisite but rather a statute of limitations which is subject to equitable tolling and estoppel. Zipes v. Trans World Airlines Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). The equitable tolling doctrine does not require that the plaintiff show any misconduct on the part of the defendant. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir.1990), certiorari denied, — U.S. -, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991). Instead, equitable tolling “permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim.” Id. at 451. Equitable tolling “often focuses on the plaintiff’s excusable ignorance of the limitations period and on the lack of prejudice to the defendant.” Mull v. ARCO Durethene Plastics, 784 F.2d 284, 291 (7th Cir.1986) (quoting Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981)). This Court is not persuaded that Wheeldon was unable to learn of the EEOC filing requirements through the exercise of due diligence. It is uncontested that Mo-non posted EEOC notices prominently in the workplace. Such posting creates a presumption that the employee could have learned of the EEOC requirements. Posey v. Skyline Corp., 702 F.2d 102, 105-106 (7th Cir.1983). Moreover, Wheeldon knew that one of his coworkers had filed an age discrimination claim with the EEOC and could have asked him about the filing deadlines. Ordinarily, it is presumed that the plaintiff could have filed his claim within the statutory period. Since plaintiff has shown no reason why he could not have learned of the EEOC filing deadlines through the exercise of due diligence, equitable tolling is not appropriate in this case. C. Equitable Estoppel This Court articulated the standard for assessing claims of equitable estoppel in Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284 (7th Cir.1986). There it was stated that equitable estoppel is available when an employee’s untimely filing was a result of “a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.” Id. at 292 (quoting Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir.1982)). The Court further stated that a granting of equitable estoppel should be premised on a defendant’s improper conduct as well as a plaintiff’s actual and reasonable reliance thereon. Id. More recently, we stated that equitable es-toppel applies when an employer “takes active steps to prevent the plaintiff from suing in time, as by promising not to plead the statute of limitations.” Cada, 920 F.2d at 450-451. Regardless of the articulation of this standard, the underlying principle is the same—a defendant should not be allowed to “obtain a benefit from his inequitable conduct.” Id. at 452. The district court dismissed the plaintiff’s argument for estoppel on the basis that the standard in Mull is a “tough standard” and requires the plaintiff to prove the defendant’s wrongful intent. We disagree. The doctrine of equitable estop-pel, where the plaintiff alleges improper conduct on the part of the defendant, is a more generous doctrine than the doctrine of equitable tolling—which adjusts the rights of two innocent parties. Id. To prove estoppel successfully, the plaintiff must show that the defendant’s conduct was improper, and that the plaintiff was harmed by such conduct. Wheeldon has put forth a valid claim for estoppel. On January 4, 1988, only 25 days after he was notified of his termination, Wheeldon filed his veterans discrimination complaint with OFCCP without the assistance of counsel. On March 4, 1988, OFCCP sent a certified letter to Mo-non. The letter sought to determine whether Monon had federal contracts sufficient to give OFCCP jurisdiction over Wheeldon’s claim under the Veterans Assistance Act and called for an answer within 14 days. Monon did not answer OFCCP’s inquiry within 14 days. Instead, Monon did not respond to OFCCP’s inquiry until June 8, 1988—181 days after Wheel-don’s termination on December 10, 1987. It is impossible to ignore the striking coincidence that defendant’s response was sent exactly one day after the plaintiff’s 180-day statute of limitations had run. Upon receiving Monon’s response denying the existence of federal contracts, OFCCP notified Wheeldon that it lacked jurisdiction. He then promptly began to pursue his complaint with EEOC. Defendant now argues that plaintiff’s claim is time-barred under the applicable statute of limitations. Defendant asserts that plaintiff’s delay should prove fatal to his claim, but also maintains that its own delay was irrelevant since it was neither “deliberate” misconduct nor a direct communication with Wheeldon. Neither rationalization is persuasive. Defendant may not simultaneously delay agency investigations and propose that plaintiff should pay the penalty for the defendant’s delay. Monon has offered no excuse whatsoever for its failure to respond to OFCCP’s inquiry in a timely fashion. To reward defendant for its non-cooperation with a government inquiry would be to encourage employers to hamper agency investigations deliberately. Cf. EEOC v. O’Grady, 857 F.2d 388 (7th Cir.1988) (defendant’s refusal to reply to subpoenas justified equitable tolling to ensure that employer-caused delay in providing information does not adversely affect the plaintiff’s age discrimination claim). D. Sufficiency of Plaintiffs Federal Claim Although the doctrine of equitable estoppel prevents Monon from asserting the statute of limitations defense, nevertheless the district court properly granted defendant’s motion for summary judgment. The only function of equitable estoppel is to render timely a plaintiff’s filing with the EEOC such that plaintiff’s federal district court complaint is not barred by the statute of limitations. However, plaintiff’s pleadings in federal district court rely on the same theory of age discrimination shown to be legally inadequate in Section 11(A) supra. Plaintiff’s federal pleadings simply do not raise a genuine issue of material fact sufficient to overcome defendant’s motion for summary judgment. The judgment of the district court is affirmed. . See White v. Westinghouse Elec. Co., 862 F.2d 56 (3rd Cir.1988) (holding that pension benefits were an impermissible proxy for age and that termination of employees in order to save pension benefits violates the ADEA); Jardien v. Winston Network, Inc., 888 F.2d 1151 (7th Cir.1989) (replacement of older employees with younger employees in order to save salary costs constitutes age discrimination). Cf. EEOC v. Altoona, 723 F.2d 4, 6 (3rd Cir.1983) (holding that seniority and age are "inexorably linked”), certiorari denied, 467 U.S. 1204, 104 S.Ct. 2386, 81 L.Ed.2d 344 (1984). . Examining the facts in the light most favorable to the plaintiff, we will assume that Wheel-don did not have actual knowledge of the EEOC filing requirements.

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.

AMERICAN PETROFINA, INCORPORATED, American Petrofina Company of Texas and American Petrofina Exploration Company, Plaintiffs-Appellees, v. PETROFINA OF CALIFORNIA, INC., and Leigh A. Ross, Defendants-Appellants. No. 76-1429. United States Court of Appeals, Ninth Circuit. May 11, 1979. Charles E. Wills (argued), Los Angeles, Cal., for defendants-appellants. Rynn Berry (argued), New York City, for plaintiffs-appellees. Before CHAMBERS, ELY, and WALLACE, Circuit Judges. ELY, Circuit Judge: The appellees, plaintiffs below, moved that a summary judgment be granted in their favor. The District Court granted the motion, enjoining the appellants from continuing to use any derivation of the names “PETROFINA” or “FINA” as part of the trade name or trademark of Petrofina of California. We affirm. The complaint filed in the District Court consisted of four counts. Detailed discussion of the four separate counts is needless. This is because if the appellees prevailed on any one of the counts, they would be entitled to the injunctive relief granted by the District Court. We have carefully reviewed the records. That review convinces us that the District Court was correct in concluding that no genuine issue of triable fact existed as to whether appellants infringed upon the respective rights of the three plaintiffs in their PETROFINA trade name under California law. That such an illegal misappropriation occurred is apparent to us, as it was obviously apparent to the District Court. Under both California common law and statutes, whosoever first adopts and uses a trade name, either within or without the state, is its original owner. Weatherford v. Eythison, 90 Cal.App.2d 379, 202 P.2d 1040 (1949). It is undisputed that the appellees adopted and used the PETROFINA trade name long before the appellants’ first use of the name. Under California statutes, the first person (or corporation) either to file a fictitious name certificate or to qualify as a foreign corporation to conduct business in California, and actually use the fictitious name or corporate name, is entitled to a presumption that he (or it) has an exclusive right to use that name as well as any confusingly similar name as a trade name. Cal.Bus. & Prof.Code §§ 14411, 14415, and 14416. By virtue of their prior filings and their actual and continuous use of the PETROFI-NA name, the appellees were entitled to the benefit of the statutory presumption. Moreover, as our court once wrote, “[t]he property right in a trade name will be recognized perhaps even more readily when, as here, it embodies the distinctive part of the owner’s corporate name.” Stork Restaurant v. Sahati, 166 F.2d 348, 353 (9th Cir. 1948). As owner and user of the corporate and trade name PETROFINA, the appellees were entitled to the injunctive relief granted by the District Court against appellants’ continued use of the PETROFINA name or any of its variations, even though appellants’ adoption of the name may have been innocent. See Golden Door, Inc. v. Odisho, 437 F.Supp. 956, 966-67 (N.D.Cal.1977) (having established ownership, plaintiff held entitled to injunctive relief under Cal. Bus. & Prof.Code § 14402, even though use of name “Golden Door” by defendant was in geographically distinct area; California trade name statute does not require that plaintiff prove secondary meaning or actual confusion); see also Schwartz v. Slenderella Systems of California, 43 Cal.2d 107, 271 P.2d 857, 860 (1954) (“Since the decision in Academy of Motion Pictures, etc. v. Benson, 15 Cal.2d 685, 104 P.2d 650 [1940], it is established . . . that injunctive relief against the unfair use of a trade name may be obtained in situations other than where the parties are in direct competition, [citations omitted]”). Accordingly, the injunctive relief was appropriately granted by the District Court. AFFIRMED. . The amended and supplemental complaint charged as follows: Count One: Infringement of United States registered trademarks and service marks, in violation of 15 U.S.C. §§ 1114 et seq.; Count Two: Infringement of trademark, service mark and trade name under California common law and statutes (Cal.Bus. & Prof.Code §§ 14330, 14400 and 14402; Cal.Corp.Code § 310); Count Three: Dilution of the distinctive quality of trademark, service mark and trade name under the California anti-dilution statute (Cal.Bus. & Prof.Code § 14330); Count Four: Unfair Competition, in violation of 15 U.S.C. § 1125(a), Cal.Civ.Code § 3369, and common law. . The appellees originally sought both damages and injunctive relief for the misappropriation of the FINA trade name. Pursuant to leave of the District Court, appellees amended their complaint to eliminate any claims for the recovery of monetary damages. For decision, therefore, the only remaining issue was the propriety of injunctive relief. . Cal.Bus. & Prof.Code § 14400 reads as follows: § 14400. Original Owner. Any person who has first adopted and used a trade name, whether within or beyond the limits of this State, is its original owner. . American Petrofina, Inc., was organized and commenced business as a marketer of petroleum products and services on October 1, 1956. American Petrofina Company of Texas was formed in June of 1958 and adopted the trade name and tradmarks of its parent company, American Petrofina, Inc. It has operated continuously since its organization as a general oil and gas producing and distribution business. American Petrofina Exploration Company was formed in June or 1964 and has operated continually since that time under the PETROFINA trade name as a petroleum products exploration and production business. Appellants’ adoption of the PETROFINA OF CALIFORNIA name did not occur until January 17, 1967, after the appellee Ross had filed a fictitious name certificate in Los Angeles County under that name. In contrast, American Petrofina, Inc., has been qualified as a foreign corporation to conduct business in California continuously since obtaining a certificate of qualification on January 2, 1957. American Petrofina Company of Texas likewise has been qualified to conduct business in California since obtaining its certification on November 2, 1964, and American Petrofina Exploration Company has been so qualified since April 23, 1965. All of the companies have maintained local authorized agents to accept service of process since the dates of their respective qualifications to do business in California. American Petrofina Company of Texas drilled and operated oil and gas wells from December 1964 until 1968 in Ventury County, California, on oil and gas leases owned by it. Since 1973, it has operated a gas station in Yreka, California. American Petrofina Exploration Company’s petroleum exploration activities in California have been even more extensive. From 1965 to date it has invested in and commenced drilling operations pursuant to various oil and gas leases in several California counties, including Los Angeles County. All the appellees have maintained a corporate presence in Los Angeles County by appointing an agent there for service of process; thus, each has established a principal business office for California in Los Angeles County. . Cal.Bus. & Prof.Code § 14411 reads as follows: § 14411. Fictitious business name or confusingly similar trade name; rebuttable presumption of exclusive right to use by registrant The filing of any fictitious business name statement by a person required to file such statement pursuant to Section 17910 shall establish a rebuttable presumption that the registrant has the exclusive right to use as a trade name the fictitious business name, as well as any confusingly similar trade name, in the county in which the statement is filed, if the registrant is the first to file such a statement containing the fictitious business name in that county, and is actually engaged in a trade or business utilizing such fictitious business name or a confusingly similar name in that county. . Cal.Bus. & Prof.Code § 14415 reads as follows: § 14415. Corporations; filing of articles of incorporation or obtaining certificate of qualification; rebuttable presumption to exclusive use of corporate name The filing of articles of incorporation pursuant to Section * * * 200 of the Corporations Code, in the case of a domestic corporation, or the obtaining of a certificate of qualification pursuant to Corporations Code Sections * * * 2105 and * * * 2106, in the case of a foreign corporation, shall establish a rebuttable presumption that the corporation has the exclusive right to use as a trade name, in the state the corporate name set forth in such articles or certificate, as well as any confusingly similar trade name, if the corporation is the first to have filed such articles or obtained such certificate containing the corporate name, and is actually engaged in a trade or business utilizing such corporate name or a confusingly similar name. If a foreign corporation continued to have authority to transact intrastate business pursuant to Section * * * 2102 of the Corporation Code, the foreign corporation shall be considered to have obtained its certificate of qualification pursuant to law for the purposes of this section on the date it first qualified to transact intrastate business in this state. . Cal.Bus. & Prof.Code § 14416 reads as follows: § 14416. Priorities between corporations and registrants If, as to the same or a confusingly similar trade name, in a county, there are both a corporation entitled to the rebuttable presumption created by Section 14415 and a registrant entitled to the benefit of the presumption created by Section 14411, whichever has filed the fictitious business name statement, filed the articles of incorporation, or obtained the certificate of qualification first in time, and is actually engaged in a trade or business utilizing such fictitious business name, such corporate name, or a confusingly similar name, shall be entitled to the presumption as against the other, that he has the exclusive right to use such fictitious business name, or such corporate name, or a confusingly similar name, as a trade name in the county where the registrant has filed his fictitious business name statement.

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

William L. HASHWAY, Plaintiff, Appellant, v. CIBA-GEIGY CORPORATION, Defendant, Appellee. No. 84-1397. United States Court of Appeals, First Circuit. Submitted Feb. 8, 1985. Decided Feb. 26, 1985. William L. Hashway, pro se. Daniel K. Kinder and Powers & McAn-drew, Providence, R.I., on brief, for defendant, appellee. Before BREYER, ALDRICH and TOR-RUELLA, Circuit Judges. BAILEY ALDRICH, Senior Circuit Judge. Plaintiff Hashway sued his former employer, Ciba-Geigy Corp., in three counts. The first sought severance pay pursuant to a so-called “Long-Term Disability Plan,” an alleged contract contained in a document entitled “Ciba-Geigy and You.” The second, rather difficult to comprehend, appears to say that he was wrongfully discharged for making a Workers’ Compensation Claim. The third alleges that defendant paid what was due plaintiff under its Investment Savings Plan to plaintiff’s wife instead of to him. Defendant responded with a Motion to Dismiss, allegedly filed pursuant to F.R.Civ.P. 12(b). Since the motion included factual grounds set forth in an “incorporated” memorandum of law, we must treat it as a motion for summary judgment under F.R.Civ.P. 56. The accompanying memorandum of law was replete with references to an affidavit, depositions, and the transcript of a Workers’ Compensation hearing. However, defendant’s submitted appendix on appeal does not contain the affidavit, and contains only portions of the rest. The record does include a copy of a release, and since the court dismissed on that ground alone we will consider it and not the various other defenses defendant sought to raise. On that basis we reverse. The record shows that, after sustaining an allegedly work-connected injury, plaintiff made claim upon defendant’s Workers’ Compensation carrier. After discharge of his attorney plaintiff entered into a lump sum settlement with the carrier, and executed, subject to approval for fairness by the Commission, the following release. GENERAL RELEASE Know all Men, That I, William Hash-way, of the Town of Cumberland, State of Rhode Island, in consideration of the sum of Thirty-Six Thousand ($36,000) ■Dollars to me paid by Ciba-Geigy Corp. and Insurance Company of North America the receipt whereof is hereby acknowledged, do hereby remise, release and forever quitclaim unto said Ciba-Geigy Corp. and Insurance Company of North America its or their successors and assigns, all and any manner of actions, cause of actions, debts, dues, claims and demands, both in law and equity more especially, all claims for compensation due under the Workers’ Compensation Act of the State of Rhode Island, in connection with that certain accident which occurred on the 3rd day of December, 1975, which against said Ciba-Geigy Corp. I, the said William Hashway ever had, now have, or in the future may have for or by reason or means of any matter or thing from the beginning of the world to the day of the date of these presents. The district court held that, the Commission having approved the settlement, the release was unambiguous, and that if plaintiff made a mistake, the mistake was unilateral, and reformation for a unilateral mistake is impermissible. Boccarossa v. Watkins, 112 R.I. 551, 556-57, 313 A.2d 135 (1973). The court erred in two respects, as examination of the Commission hearing makes apparent. The fairness hearing was attended by the unrepresented plaintiff, counsel for the carrier, and counsel for the defendant. The following, inter alia, transpired. Commissioner to plaintiff, Q. “You have settled your case directly with the Insurance Company of North America for $36,000.00?” A. “Yes.” Q. “You understand that if you settle this case today for the total sum of $36,-000.00, that you will no longer have any claim for your compensable injury against Ciba-Geigy or Insurance Company of North America?” A. “Yes.” Q. “If you have to go back to a hospital or doctor, you have to pay for it yourself?” A. “Yes.” Elsewhere the transcript makes clear that, contrary to the statement in the release that the $36,000 was paid by defendant and the carrier, it was paid by the carrier alone, and that plaintiff was so informed. Thus not only was it represented to plaintiff, affirmatively by the carrier and by defendant’s counsel’s silence, that $36,000 was being paid for plaintiff’s Workers’ Comp, claim, but the Commissioner passed upon that figure, not $36,000 minus whatever might be the value of plaintiff’s other, totally independent claims, of a totally unknown amount. For defendant to say now that $36,000 was pro tanto incorrect would be, in effect, a fraud upon the Commission. It should be estopped from so doing. The same result would be reached by proper application of the doctrine of mistake. A mistake by one party with knowledge thereof by the other is equivalent to a mutual mistake; a party should not be benefitted by a mistake he knew the other had made. Century Plastic Corp. v. Tupper Corp., 333 Mass. 531, 533-36, 131 N.E.2d 740 (1956); 13 W. Jaeger, Williston on Contracts § 1577 (Supp.1984), § 1578 (3d ed. 1970); see Perkins v. Kirby, 39 R.I. 343, 362, 97 Atl. 884 (1916); Votta v. Johnson, 89 R.I. 71, 74-76, 151 A.2d 112 (1959); cf. Vanderford v. Kettelle, 75 R.I. 130, 142, 64 A.2d 483 (1949). Having in mind that plaintiff was told it was the carrier that was paying the money, and that giving the release meant, “You will no longer have any claim for compensable injury,” (emphasis suppl.) it must be manifest that he would be thinking in terms of payment for his injury, and not for some unrelated claims as between himself and his employer. If defendant, at the time, was ignorant of the existence of other claims, there would have been a mutual mistake that should be rectified. If it was aware, and slyly kept silent, the result should be the same. This is not to say that reformation of releases is easily accomplished but the total circumstances here of record are irrefutable, and are peculiarly compelling. The dismissal is reversed, and, on remand, the release is to be excluded.

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

What is the specific issue in the case within the general category of "labor relations"?

UNITED STATES v. CARLO BIANCHI & CO., INC. No. 529. Argued April 29, 1963. Decided June 3, 1963. 157 Ct. Cl., judgment vacated and cause remanded. David L. Rose argued the cause for the United States. With him on the brief were Solicitor General Cox, Acting Assistant Attorney General Douglas, Bruce J. Terris and Morton Hollander. William H. Matthews argued the cause and filed a brief for respondent. Glen A. Wilkinson, Jesse -E. Baskette and Paul M. Rhodes filed a brief for the Bar Association of the District of Columbia, as amicus curiae, urging affirmance. Mr. Justice Harlan delivered the opinion of the Court. This case involves the interpretation and application of the “Wunderlich Act,” 68 Stat. 81,41 U. S. C. §§ 321-322, an Act' designed to permit judicial review of decisions made by federal departments and agencies under standard “disputes” clauses in government contracts. The issue before us is whether, in a suit governed by this statute, the court is restricted to a review of the administrative record on issues of fact submitted to administrative determination or is free to receive new evidence on such issues. In 1946, the respondent, Carlo Bianchi and Company, entered into a contract with the Army Corps of Engineers for the construction of a flood-control dam. Included in the work to be performed was the construction of a 710-foot tunnel, designed for the diversion of water, to be lined with concrete and to have permanent steel supports as protection for a 50-foot section at either end. The specifications did not call for such permanent supports throughout the remainder of the tunnel but only for “[temporary tunnel protection . . . where required for safety of the workmen.” The contract contained a standard “changed conditions” clause, authorizing the contracting officer to provide for an increase in cost if the contractor encountered subsurface conditions materially different from those indicated in the contract or to be reasonably anticipated, and also contained, the standard “disputes” clause quoted, supra, note 2. After the tunnel had been drilled by a subcontractor, but before it was lined with concrete, the respondent took the position that unforeseen conditions created extreme hazards for workmen,. requiring permanent protection throughout the tunnel, and that it should be compensated for installing such protection. The contracting officer decided that compensation would not be made, and pursuant to the “disputes” clause a timely appeal from his decisión was taken to the Board of Claims and Appeals of the Corps of Engineers. While the appeal was pending, respondent installed the tunnel supports- and completed work on the tunnel. An adversary hearing was held before the Board, at which a record was made and each side offered its evidence and had an opportunity for cross-examination. In December 1948, the Board issued a decision against the contractor, resolving certain conflicts in the evidence in favor of the Government and holding in substance that there were no unanticipated or unforeseen conditions requiring the use of permanent steel protection throughout the tunnel. Almost six years later, in December 1954, respondent brought the present action for breach of contract in the Court of Claims, seeking substantial damages and alleging that the decisions of the contracting officer and the Board were “capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or were not supported by substantial evidence.” At a hearing before a Commissioner in 1956, the Government took the position that on the question whether the Board’s decision was entitled to be considered final, no evidence was admissible except the record before the Board. But the Commissioner received evidence de novo, including, over government objection, a substantial amount of evidence that had not been before the Board. He subsequently made extensive findings of fact and concluded that the respondent was •entitled to recover. In an opinion issued in January 1959, the Court of Claims accepted the Commissioner’s findings and conclusions, ruling that “on consideration of all the evidence, the contracting officer’s decision [as affirmed by the Board] cannot be said to have substantial support,” and thus “does not have finality.” 144 Ct. Cl. 500, 506, 169 F. Supp. 514, 517. On the question whether it was limited in its consideration to the evidence before the Board, the court stated: “In our opinion in Volentine and Littleton v. United States, 136 C. Cls. 638, holding that the trial in this court should not be limited to the record made before the contracting agency, but should be de novo, we recognized that there were logical weaknesses in our position. We concluded, however, that the intent of Congress in enacting the Wunderlich Act was in.accord with our conclusion, and we adhere to that conclusion in this case.” Ibid. After receiving additional evidence on damages, the court entered judgment for respondent in the amount of $149,617.36. 157 Ct. Cl.-. We granted certiorari, 371 U. S. 939, to resolve a conflict among the lower courts on the important question of the kind of judicial proceeding to be afforded in eases governed by the Wunderlich Act. I. The jurisdiction of the Court of Claims in the present case is conferred by 28 U. S. C. § 1491, since this is a suit for judgment against the United States “founded” upon an “eXpfcess or implied contract with the United States.” Ordinarily, when questions of fact arise in such suits, the function of the court is to receive evidence and to make appropriate findings as to the facts in dispute. But this Court long ago upheld the validity of clauses in government contracts delegating to a government employee the authority to make determinations of disputed questions of fact,' and required such determinations to be given conclusive effect in any subsequent suit in the absence of fraud or gross mistake implying fraud or bad faith. See Kihlberg v. United States, 97 U. S. 398; Ripley v. United States, 223 U. S. 695. Thus the function of the Court of Claims in matters governed by “disputes” clauses was in effect to give an extremely limited review of the administrative decision, and although the scope of review was somewhat expanded by that court over the years, it was expressly restricted in United States v. Wunderlich, 342 U. S. 98, 100, to determining whether or not the departmental decision had been founded on fraud, i. e., “conscious wrongdoing, an intention to cheat or be dishonest.” The Wunderlich decision, rendered over strong dissents, evoked considerable effort to obtain legislation expanding the scope of review beyond questions of fraud. A number of bills were introduced in the Eighty-second and Eighty-third Congresses; hearings were held in the Senate and House of Representatives; and the resulting statute known as the “Wunderlich Act” was ultimately approved by both Houses in 1954. This statute, quoted in full in note 1, supra, is entitled an Act “To permit review of decisions of the heads of departments . . . involving questions arising under Government contracts,” and provides in substance that a departmental decision on a question of fact réndered pursuant to a “disputes” clause shall be final and conclusive in accordance with the provisions of the contract “unless the sanie is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” Respondent has not argued in this Court that the underlying controversy in the present, suit is beyond the scope of the “disputes” clause in the contract or that it is not governed by the quoted language in the Wunderlich Act. Thus the sole issue, as stated supra, p. 710, is whether the Court of Claims is limited to the administrative record with respect to that controversy or is free to take new evidence. In considering this issue, we put to one side questions’of fraud, which are not involved in this ease, which normally require the receipt of evidence outside the administrative record for their resolution, and which could be considered in judicial proceedings even prior to the enactment of the statute. It is our conclusion that, apart from questions of fraud, determination of the finality to be attached to a depart-mental decision on a question arising under a “disputes” clause must rest solely on consideration of the record before the department. This conclusion is based both on the language of the statute and on its legislative history. 1. With respect to the language used, we note that the statute is designated as an Act “To permit review” and that, the reviewing function is one ordinarily limited to consideration of ‘the decision of the agency or court below and of the evidence on which it was based. Indeed, in cases where Congress has simply provided for review, without setting forth the standards to be used or the ' procedures to be followed, this Court has held that consideration is to be confined to the administrative record and that no de novo proceeding may be held. Tagg Bros. & Moorhead v. United States, 280 U. S. 420; National Broadcasting Co. v. United States, 319 U. S. 190, 227. And of course, as shown by the Tagg Bros, and NBC cases themselves, the function of reviewing an administrative decision can be and frequently is performed by a court of original jurisdiction as well as by an appellate tribunal. Moreover, the standards of review adopted in the Wunderlich Act — “arbitrary,” “capricious,” and “not supported by substantial evidence” — have frequently been used by Congress and have consistently been associated with a review limited to the administrative record. The term “substantial evidence” in particular has become a term of art to describe the basis on which an administrative record is to be judged by a reviewing court. This standard goes to the reasonablenéss of what the agency did on the basis of the evidence before it, for a decision may be supported by substantial evidence even though it could be refuted by other evidence that was not presented to the decision-making body. 2. The legislative history supports.our conclusion that the language used in the Act should be given its customary meaning. It is true that several witnesses representing contractors explained the purpose of the proposed legislation as restoring rights the contractors had before Wunderlich, and that it had apparently been the practice of the Court of Claims to receive evidence on matters covered by “disputes’’ clauses. But it seems clear in context that these witnesses meant only that the standards of review should cover more than conscious fraud, as the Court of Claims had assumed prior to Wunderlich. Indeed with respect to the procedural significance of the substantial .evidence test, a leading contractor’s representative stated that it would “result in these various departments and agencies feeling that they will have to produce their witnesses at these hearings and permit the contractor to examine them, in order to have in the record some substantial evidence to support their decisions when they go up on appeal to the court.” The-House Report recommending the bill ultimately enacted leaves little doubt that the review intended was one confined to the administrative record. H. R. Rep. No. 1380, 83d Cong., 2d Sess. The explicit references to the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009, and.to this Court’s discussion of the standards of review in Consolidated Edison Co. v. Labor Board, 305 U. S. 197, 229, are only the least indications. Even more significant is the Committee’s- view, echoing that of the witness quoted above, that the standards proposed would remedy the practice in many departments of failing to acquaint the contractor with the evidence in support of the Government’s position: “It is believed that if the standard of substantial evidence is adopted this condition will be corrected and' that the records of hearing officers will hereafter contain all of the testimony and evidence upon which they have relied in making their decisions. It would not be possible to justify the retention of the finality . clauses in Government contracts unless the hearing procedures were conducted in such a way as to require each party to present openly its side of the controversy and afford an opportunity of rebuttal.” H. R. Rep. No. 1380, 83d Cong., 2d Sess. 5. This sound and clearly expressed purpose would be frustrated if either side were free to withhold evidence at the administrative level and then to introduce it in a judicial proceeding. Moreover, the consequence of such a procedure would in many instances be a needless duplication of evidentiary hearings and a heavy additional burden in the time and expense required to bring litigation to an end. Thus in the present case judicial proceedings began in 1954, almost six years after completion of the departmental proceedings, and a final decision on the issue of liability was- not rendered until 1959. This is surely delay at its worst, and we would be loath to condone any procedure under which the need for expeditious resolution would be so ill-served. Here the procedure is clearly inconsistent with the legislative directive. It is contended that the Court of Claims has no power to remand a case such as this to the department concerned, cf. United States v. Jones, 336 U. S. 641, 670-671, and thus if the administrative record is defective or inadequate, or reveals the commission of some prejudicial error, the court can only hold, an evidentiary hearing and proceed to judgment. There are, we believe, two answer's to this contention. First, there would undoubtedly be situations in which the court would be warranted, on the basis of the administrative record, in granting judgment for the contractor without the need for further administrative action. Second, in situations where the court believed that the existing record did not warrant such a course, but that the departmental determination could not be sustained under the standards laid down by Congress, we see'no reason why the court could not stay its own proceedings pending some further action before the agency involved. Cf. Pennsylvania R. Co. v. United States 363 U. S. 202. Such a stay would-certainly be justified where the department had failed to make adequate provision for a record that could be subjected to - judicial scrutiny, for it was clearly part of the legislative purpose to achieve uniformity in this respect. And in any case in which the department failed to remedy the particular substantiye or procedural defect or inadequacy, the sanction of judgment for the contractor would always be available to the court. HH HH In its argument here, the Government has urged that if judicial review is confined to the administrative record, it must be concluded that the Board’s determination is supported by substantial evidence and thus is’ entitled to finality under the Wunderlich Act. The respondent, on the other hand, contends that there were several irregularities in the Board’s procedures that preclude giving its determination conclusive effect. Neither of these matters is properly embraced within our grant of certiorari, and we are therefore not called upon to pass on them. We hold only that in its consideration of matters within the scope of the “disputes” clause in the present case, the Court of Claims is confined to review of the administrative record under the standards in the Wunderlich Act and may not receive new evidence. We therefore vacate the judgment below and remand the case for further proceedings in conformity with this opinion. ■It is so ordered. 41 U. S. C. § 321 provides: “No provision of any contract entered. into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative ,or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the’ same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U. S. C. § 322 provides: “No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.” The standard “disputes” clause, as included in the contract involved in this case, provides: “Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” With the decision below, compare, e. g., Allied Paint & Color Works, Inc., v. United States, 309 F. 2d 133 (C. A. 2d Cir.); Wells & Wells, Inc., v. United States, 269 F. 2d 412 (C. A. 8th Cir.). See also Mann Chemical Laboratories, Inc., v. United States, 174 F. Supp. 563 (D. C. D. Mass.). In. suits involving less than $10,000, the District Courts have concurrent jurisdiction with the Court of Claims over claims arising under government contracts, 28 U. S. C. § 1346 (a) (2), and in suits by the .Government under such contracts have exclusive jurisdiction, see 28 U. S. C. § 1345. See, e. g., Southern Shipyard Corp. v. United States, 76 Ct. Cl. 468; Needles v. United States, 101 Ct. Cl. 535. Hearings before a Subcommittee of the Senate Judiciary Committee on S. 2487, 82d Cong., 2d Sess. Hearings before the House Judiciary Committee on H. R. 1839 et al., 83d Cong., 1st Sess. See, e. g., § 10 of the Administrative Procedure Act, 60 Stat. 243, 5 U. S. C. § 1009; § 10 of the Fair. Labor Standards Act, 52 Stat. 1065, as amended, 29 U. S. C. § 210; § 10 of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U. S. C. § 160. See, e. g., Senate Hearings, supra, note 5, at 32-35, 57-58. The Government, citing Needles v. United States, 101 Ct. Cl. 535, 606-607, suggests that although the Court of Claims did receive “live” evidence on such matters, it may not have “consciously considered evidence not presented and not available to the administrative officers making the final administrative decision.” House Hearings, supra, note 6, at 79-80.

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

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Waldemar P. SHERWIN, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee. No. 81-1885. United States Court of Appeals, First Circuit. Argued May 6, 1982. Decided June 22, 1982. Rehearing Denied July 19, 1982. Richard K. Latimer, with whom Kistin, Babitsky, Latimer, Oppenheim, Kalnins & Beitman, Falmouth, Mass., was on brief, for plaintiff, appellant. Robert J. Triba, Asst. Regional Atty., Dept, of Health and Human Services, with whom William F. Weld, U. S. Atty., and Ralph A. Child, Asst. U. S. Atty., Boston, Mass., were on brief, for defendant, appellee. Before PHILLIPS, Senior Circuit Judge, BOWNES and BREYER, Circuit Judges. Of the Sixth Circuit, sitting by designation. BREYER, Circuit Judge. The appellant, Waldemar Sherwin, is a 46 year old man with a ninth gradé education. In February 1979, when he was 44, Sherwin applied for Social Security disability benefits because of arthritic joint pain and “pericarditis.” After a hearing, an Administrative Law Judge denied the claim on the ground that Sherwin was not “disabled” within the meaning of the relevant statute, 42 U.S.C. § 423(d). Sherwin exhausted all internal appeals with the Social Security Administration (SSA). The district court upheld the SSA’s denial of benefits. Sherwin appealed, attacking the validity of the “Grid” used by the SSA in evaluating his case. We reject this attack and affirm the SSA’s denial. To help understand this case, we begin by repeating the basic legal structure for evaluating a disability claim, see Vazquez v. Secretary of Health, Education and Welfare, 683 F.2d 1 (1st Cir. 1982). The ultimate question is whether Sherwin is disabled within the meaning of 42 U.S.C. § 423(d). That provision defines “disability” as inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... [lasting at least a year and] of such severity that [the claimant] ... is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him or whether he would be hired if he applied for such work. It is well established that, in applying this statutory standard, the claimant has the burden of showing a disability serious enough to prevent him from working at his former jobs, at which point the burden shifts to the Secretary to show the existence of other jobs in the national economy that the claimant can nonetheless perform. Torres v. Secretary of Health and Human Services, 677 F.2d 167, 168 (1st Cir. 1982); Pelletier v. Secretary of Health, Education and Welfare, 525 F.2d 158 (1st Cir. 1976). To simplify the task of proving the existence of a disability in these cases, the Secretary has promulgated a set of Medical-Vocational Guidelines (“the Grid”). 20 C.F.R. Part 404, Subpart P, Appendix 2 (1981) (hereinafter referred to as “Grid, § -”). The Grid is designed to help the Secretary, when appropriate, satisfy his burden of proving the existence of other jobs in the economy that the claimant can perform. Sherwin showed that he could not perform his prior job as a forklift operator; thus the Grid came into play. The Grid is basically a matrix, combining different permutations of the four essential factors set out in the statute (age, education, work experience, and residual work capacity) and stating, as to each combination, whether a claimant with those characteristics is “disabled” or “not disabled.” It consists of three separate tables, one for those who retain the residual exertional capacity to perform “sedentary” work, one for those who retain the residual capacity to perform “light” work, and one for those who retain the residual capacity to perform “medium” work. Each table has five columns for rule number, age, education, work experience, and decision. Thus, each row on the table presents a different combination of age, education, and work experience categories. The AU simply selects the proper table and row based on the characteristics he finds the claimant to possess, and reads the decision, “disabled” or “not disabled” from the right-hand column in that row. See Appendix. The Secretary’s instructions for the use of the Grid are explicit. The ALJ is to determine the claimant’s relevant characteristics. Each of these “findings of fact is subject to rebuttal and the individual may present evidence to refute such findings.” Grid, § 200.00(a). Once found, the claimant’s characteristics will either fit squarely within one of the rules in the table or they will not. If they do — if the “findings of fact ... coincide with all of the criteria-of a particular rule” — then “the rule directs a conclusion as to whether the individual is or is not disabled.” Id. If the facts do not fit squarely within a rule because they reveal a borderline case or a ease lying between two rules, those rules still “provide guidance;” they are to be given “consideration,” and they “provide an overall structure for evaluation.” Id. § 200.00(d). If instead, the facts do not fit squarely within a rule because the claimant has a combination of impairments — particularly if the claimant has a nonexertional impairment — the guidelines suggest still more individualized consideration. Id. § 200.00(e). In this ease, Sherwin initially argues against the way in which the Grid was applied to him. He claims the ALJ erred in finding that he had a residual capacity to perform “sedentary” work. 20 C.F.R. § 404.1567(a) (1981). He says that constant pain in his hands or the drugs he had to take for pain relief rendered him completely disabled. We have reviewed the record, however, and find that we must reject this claim. The issue of pain was adequately explored by the ALJ; in light of the subjective nature of pain, we pay particular attention to his evaluation, see Gaultney v. Weinberger, 505 F.2d 943, 946 (5th Cir. 1974); and we have found more than enough evidence to support the ALJ’s conclusion. Sherwin’s own testimony, for example, indicates that he can use his hands for a wide variety of tasks (e.g., cooking, washing dishes, driving his car, shaving, buttoning his shirt), and that medication relieves his pain. His own doctor wrote that Sherwin was “disabled for his usual and customary type of work” as a forklift operator, but did not in any way indicate that Sherwin could not perform “sedentary” work. Another doctor noted that Sherwin could make a complete fist with his right hand, a partial fist with his left hand, that his grasp was “moderate and equal,” and that he could “approximate his thumb to his finger slowly, but without any difficulty.” Finally, while noting that Sherwin probably had some form of arthritis, “swelling sometimes in his hands,” and “a little limitation of motion,” the state’s medical advisor testified that these conditions could go into remission, could be “treated” and “controlled for long periods of time,” and did not then appear to be active in Sherwin’s ease. Sherwin also argues that the side effects of the drugs that he used disabled him. He claims the ALJ should have explored this matter further. In fact, the ALJ asked Sherwin what the drugs did for him. Sherwin answered that they relieved the pain. He said nothing about side effects. Although the ALJ did not specifically refer to side effects, it is reasonable for the ALJ to assume Sherwin would have mentioned them had they been significant. Indeed, Sherwin did mention that he was taken off one drug because it bothered his stomach. Thus, the ALJ’s determination that Sherwin possessed a “sedentary” residual work capacity is adequately supported. Consequently, the Grid directs a finding of “not disabled,” Grid, Rule 201.24; it would do so even were Sherwin older or less well educated. See Grid, Rules 201.18, 201.23. Sherwin’s principal argument on appeal amounts to an attack on the Grid itself. We have previously upheld the Grid as a legitimate exercise of the general rulemaking authority granted to the SSA by 42 U.S.C. § 405(a). See Torres v. Secretary of Health and Human Services, supra. See also Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982); Cummins v. Schweiker, 670 F.2d 81 (7th Cir. 1982); Salinas v. Schweiker, 662 F.2d 345 (5th Cir. 1981) (Grid upheld as a valid exercise of administrative notice); Frady v. Harris, 646 F.2d 143 (4th Cir. 1981). But cf. Campbell v. Secretary of Health and Human Services, 665 F.2d 48, 53-54 (2d Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 2956, 73 L.Ed.2d 1348, (1982); Hall v. Harris, 658 F.2d 260, 268 (4th Cir. 1981). The Grid represents an attempt to replace the live testimony of vocational experts, to “streamline” adjudication, and to achieve greater uniformity in the tens of thousands of disability cases heard each year. Cummins v. Schweiker, 670 F.2d at 83. This objective is reasonable given the fact that “[i]n fiscal 1976, for example, the agency’s ALJs disposed of 180,000 cases; by contrast, during that same time period, only 130,000 civil and criminal matters were terminated by the entire Article III court system. Approximately 8,000 appeals were brought in 1978 from agency disability-related determinations to the federal district courts; this litigation ‘constitute[d] the largest portion of the workload of the federal judiciary from federal agencies.’ ” Santise v. Schweiker, supra, 676 F.2d at 930, quoting Dobrowolsky v. Califano, 606 F.2d 403, 409 n.18 (3d Cir. 1979). See also K. Davis, 3 Administrative Law Treatise § 15.18 at 199 (1980). Moreover, since the issue at stake— the existence, of jobs anywhere in the national economy — involves “legislative,” not “adjudicative” facts, it seems well suited to agency rulemaking. K. Davis, 3 Administrative Law Treatise § 15.2 (1980). Promulgated after research, notice and comments, 43 Fed.Reg. 9284, 55349, the rules may prove not only a more efficient way to resolve the “other jobs” issue, but also (insofar as the knowledge of individual vocational experts is not complete) a more accurate one. At the same time, the SSA seeks to maintain the fairness and accuracy of its determinations by providing the claimant with a full opportunity to adjudicate the facts related to age, education, prior work experience, and residual work capacity. Further, the Grid will offer only guidance— it will not determine “disability” — in borderline cases or where nonexertional, or additional, disabilities are at issue. Sherwin attacks the Grid in several ways. First, he claims that in directing conclusions of “disabled” or “not disabled,” the Grid in effect takes conclusive, irrebuttable “administrative notice” of facts (the existence of other jobs for someone with a given age, education, work experience and “residual functional capacity”). He points out that 5 U.S.C. § 556(e) states that when an agency takes “administrative notice” of a fact, the opposing party shall have “an opportunity to show the contrary.” Sherwin says that he was given no such opportunity here, and therefore the Agency’s' use of the Grid is unlawful. We disagree. The Agency stated at the time the Grid was adopted that it was based upon “administrative notice” of conditions in the national labor market. That does not make the Grid an instance of “administrative notice.” Rather, the Grid is a set of rules, promulgated pursuant to informal “notice and comment” rulemaking procedures, 5 U.S.C. § 553. The terms of 5 U.S.C. § 556(e) do not literally apply to informal rulemaking, see 5 U.S.C. § 556(c), and thus do not automatically require a disability claimant to be given the chance at his adjudicatory claims hearing to contest the “facts” underlying the Grid. Cf. Torres v. Secretary of Health and Human Services, supra (where the Grid directs a finding of “not disabled,” ALJ need not list specific jobs the claimant can perform). But cf. Campbell v. Secretary of Health and Human Services, supra. Nonetheless, informal rules can still be attacked as unlawful. Sherwin has been given the opportunity here to make two such substantive attacks on the Grid’s factual basis — attacks that amount to the claim that the Grid or at least the Agency’s failure to modify it, is “arbitrary.” 5 U.S.C. § 706(2)(a). From a procedural point of view, Sherwin’s attacks are in order. A rule may be attacked on appeal from a rulemaking proceeding itself, 5 U.S.C. § 704; see, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 530, 98 S.Ct. 1197, 1205, 55 L.Ed.2d 460 (1977); similarly, it may be attacked on appeal from an agency’s denial of a petition to modify it, see 5 U.S.C. § 553(e). And, a claim that a rule is “arbitrary” might, in an appropriate instance, also be raised in enforcement proceedings, Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 951 (6th Cir. 1971). In this instance, the agency does not object on procedural grounds to Sherwin’s attacking the rule in enforcement proceedings. The close relation between this particular set of rules and the “official notice” type of function they serve may provide a special reason for allowing a claimant procedural flexibility when he seeks to show that the facts are now such that the agency acts “arbitrarily” in continuing to rely on the Grid. Substantively, however, Sherwin’s attacks on the Grid are without merit. He claims that the rules in the Grid are invalid because they are oversimplified. They fail to take account of a variety of factors which are available in the standard “vocational resource materials,” and which, Sherwin argues, suggest that jobs classified similarly are in fact quite different. Some require more skill than others. Some require more training time. And, because of their “interests” and “aptitude,” different workers will simply be better suited to some jobs than others. All of this may well be true. And, to that extent, the Grid’s rules do “oversimplify” the labor market. But it is in the nature of rules to oversimplify, to group some things together that are not identical in every respect, and to treat similarly some things which for other purposes (or were time and money no object) might be treated differently. The Grid does not assume that a “not disabled” claimant is equally suited to perform any and ail jobs thought to exist in the national economy for the set of claimants with similar age, education, experience and residual capacity characteristics. It assumes merely that enough jobs are available for such claimants that, in all likelihood, there will be at least some jobs that each such claimant can perform. Sherwin’s “oversimplification” charge in no way undermines the legitimacy of that assumption. Sherwin’s final claim is that the Grid is based on outdated and unreliable information. The Grid, he states, assumes there are some 200 “sedentary unskilled” occupations in the national economy because a Department of Labor publication called the Dictionary of Occupational Titles so indicates. But, Sherwin argues, the Grid was based on the third edition of the Dictionary. That edition was published in 1965, and Sherwin claims that it was out of date when the Grid was promulgated in 1978. Without more, however, this claim fails to show the Grid is arbitrary. For one thing, the Grid was based not only on the Dictionary, but on several other references as well, such as the Occupational Outlook Handbook (published by the Bureau of Labor Statistics), County Business Patterns (published by the Census Bureau), Census Reports (also published by the Census Bureau), and various labor market surveys prepared by state employment agencies. See 20 C.F.R. § 404.1566(d) and App. 2, § 200.00(b); 43 Fed.Reg. 55350-51. It is true, as Sherwin notes, that definitions of the various levels of “residual functional capacity” were taken from the Dictionary, and not from these other references. See 43 Fed.Reg. 55352-51. But this fact does not make the other references irrelevant. They lend the Grid independent support and specifically show how many jobs of a given type there are, how widely distributed they are, and how easy they are to obtain. 43 Fed.Reg. 55351. The Grid is based on all the references that SSA previously used for creating its disability “guidelines.” Id. For another thing, SSA adopted the Grid only after a substantial effort to “obtain as much public input over as broad a spectrum as possible....” Id. at 55356-57. Public meetings were held in three major cities; time was provided after the meetings to receive public comments; notice was given in the Federal Register and sixty days provided for comment; thirty additional days were provided for comment and announced in both the Federal Register and press releases; groups opposed to the regulations were given access to SSA documents, and allowed to meet with the staffs of both the Commissioner and the Under Secretary of Health, Education and Welfare. Id. Thus, in addition to the Dictionary, the rules rest on the extensive information gathered in the course of the public debate on the subject. Finally, the fourth edition of the Dictionary was not completed until 1981; essential parts of that publication were simply not available when the Grid regulations were prepared and promulgated in 1978. 43 Fed.Reg. 55349, 55351, 55361. Sherwin adds, however, that when the Grid was proposed and adopted in 1978, the third edition of the Dictionary was not only old; he claims it was wrong. The third edition identifies roughly 200 “unskilled sedentary” occupations. But the fourth edition and its supplement (Selected Characteristics of Occupations Defined in the DOT, United States Department of Labor (1981)) initially identified only about 20 such occupations. This fact, says Sherwin, shows that the third edition substantially overstated the availability of “sedentary unskilled” jobs in 1978; it also indicates that such jobs have been slowly but surely disappearing from the economy. We need not consider whether the Grid would be arbitrary, however, if based upon 20 rather than 200 “sedentary unskilled” occupations, for the Department of Labor, which publishes the Dictionary, has looked into the matter (the fact that the fourth edition classified only 20 occupations as “sedentary unskilled”) and has concluded that in fact there are far more than 20 such job categories. Shortly after the Selected Characteristics supplement was published (completing the fourth edition oí the Dictionary of Occupational Titles), it was amended by a Labor Department letter addressed to “All State Employment Security Agencies.” Employment Service Program Letter No. 8-81 (Sept. 3, 1981). The letter reclassified about 200 occupations listed in the fourth edition, stating that they are “sedentary” and any earlier fourth edition classification to the contrary was incorrect. The letter states that some of the earlier misclassification was a result of typographical error. In other instances the data could support either classification and “consistency and continuity with earlier publications” suggested classification as “sedentary.” By Sherwin’s count, 84 of the reclassified jobs were “unskilled,” raising the total number of “sedentary unskilled” occupations to 104. According to the Secretary, more of the reclassified jobs were “unskilled,” and the total of “sedentary unskilled” occupations was raised to 130. Yet, whether it is 104 or 130 such occupations that are open to the “sedentary unskilled” worker matters little. To be sure, the numbers have declined from the third to the fourth edition. But, in our view, it has not been shown that the decline was so great that a rule premised on the earlier figures is now without foundation and that a failure to reconsider the rule is “arbitrary.” Each of the 104 (or 130) occupations represent many jobs in the national economy. And, although the references are a matter of public record, Sherwin has not given us any reason to believe that these jobs are generally unavailable in his region of the country, 42 U.S.C: § 423(d)(2)(A), do not “exist[ ] ... in several regions of the country,” id., or are for some other reason insufficient to sustain the rule he challenges. Sherwin suggests that the Labor Department letter resulted from prodding by the SSA, that labor market changes have outdated the Grid, and the SSA (through the Department of Labor) is really just “covering up.” Even if the letter did result in part from an SSA complaint, however, it is not thereby tainted. For the SSA to request a review of the publication because its classifications are at odds with prior publications and with SSA definitions is a reasonable thing for an agency to do. Had the Grid been wrong instead of the publication being misleading — had there been an attempt to “cover up” a truly radical decline in the number of occupations suited to “unskilled sedentary” workers — one would expect the record to provide some supporting evidence. Alternatively, one might have expected persons directly concerned or groups representing them to have included such evidence in a petition to have SSA change the Grid, 5 U.S.C. § 553(e). The occupational data underlying the Grid’s present classifications is readily accessible in public documents. That no such challenge has yet been made itself suggests the classifications reasonably reflect the present job market. But, even without considering this last factor, for the reasons pointed out, the Agency’s failure to modify the Grid is not arbitrary. Sherwin’s challenge therefore fails. The decision of the district court is Affirmed. APPENDIX

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 5. 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 5? Answer with a number.

SAMPSON v. CHANNELL. No. 3454. Circuit Court of Appeals, First Circuit. March 27, 1940. Writ of Certiorari Denied June 3,1940. See 60 S.Ct. 1099, 84 L.Ed. —. Walter R. Donovan, of Boston, Mass. (James T. Connolly, of Boston,' Mass., on the brief), for appellant. Hubert C. Thompson,'of Boston, Mass. (John C. Twomey, of Boston, Mass., on the brief), for appellee. Before WILSON and MAGRUDER Circuit Judges, and PETERS, District Judge. MAGRUDER, Circuit Judge. On this appeal the question presented may be stated simply, but the answer is not free from difficulty. A car driven by defendant’s testator collided in Maine with a car driven by the plaintiff, injuring both the plaintiff and his wife, who was a passenger. The wife sued and recovered, judgment. We affirmed that judgment in Channell v. Sampson, Dec. 29, 1939, 1 Cir., 108 F.2d 315. In this, the husband’s action, 'the jury found specially that the plaintiff’s injury was caused by the negligence of defendant’s testator, but brought in a general verdict for the defendant on the issue of contributory negligence. Judgment was entered for the defendant. The action was brought in the federal district court for Massachusetts, there being the requisite diversity of citizenship. On the issue of contributory negligence the plaintiff requested the court to charge the jury, in accordance with the local Massachusetts rule, that “the burden of proving lack of care on the part of the plaintiff is on the defendant”. This the court declined to do, but upon the contrary charged, in accordance with the Maine law, that the burden was upon the plaintiff to show affirmatively that no want of ordinary care on his part contributed to cause his injuries. The sole question raised is as to the correctness of this charge, and refusal to charge as requested. Inquiry must first be directed to whether a federal court, in diversity of citizenship cases, must follow the applicable state rule as to incidence of burden of proof. If the answer is in the affirmative, the further point to be considered is whether the applicable state rule here is that of Massachusetts, where the action was brought, or Maine, where the accident occurred. It would be an over-simplification to say that the case turns on whether burden of proof is a matter of substance or procedure. These are not clean-cut categories. During the reign of Swift v. Tyson, 1842, 16 Pet. 1, 10 L.Ed. 865, the 'federal courts in diversity of citizenship cases consistently held that the defendant had the burden of proving, the plaintiff’s contributory negligence, even though the suit arose in a state whose local rule was the contrary. Pokora v. Wabash Railway Co., 292 U.S. 98, 100, 54 S.Ct. 580, 78 L.Ed. 1149; Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Hemingway v. Illinois Central Railroad Co., 5 Cir., 114 F. 843, 846; Armour & Co. v. Carlas, 2 Cir., 142 F. 721, 722; New Ætna Portland Cement Co. v. Hatt, 6 Cir., 231 F. 611, 615-16; Harmon v. Barber, 6 Cir., 247 F. 1, 6; Bauman v. Black & White Town Taxis Co., 2 Cir., 263 F. 554; Maher v. Chicago, M. & St. P. Railway Co., 7 Cir., 278 F. 431, 434; Cook Paint & Varnish Co. v. Hickling, 8 Cir., 76 F.2d 718, 721. See Central Vermont Railroad Co. v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252; First National Bank v. Liewer, 8 Cir., 187 F. 16, 18. They avoided having to apply the local rule under the Conformity Act, R.S. § 914, 28 U.S.C.A. § 724, by saying that burden of proof was not a mere matter of procedure but concerned substantive rights, as to which the federal courts on a matter of “general law” were free to take their own view. See Herron v. Southern Pacific Co., 283 U.S. 91, 93, 94, 51 S.Ct. 383, 75 L.Ed. 857. The question of classification also arose where suit was brought in one state on an alleged tort committed in another state. But here it was generally held, in the state courts at least, that burden of proof as to contributory negligence was a matter of procedure ; hence the rale of the forum would be applied despite a contrary rule of the locus delicti. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477; Smith v. Brown, Mass., 19 N.E.2d 732; Chicago Terminal R. R. v. Vandenberg, 164 Ind. 470, 73 N.E. 990; Rastede v. Chicago, St. P., M. & O. Railway, 203 Iowa 430, 431, 437, 212 N.W. 751; Jenkins v. Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Delaware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N. C. R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The courts say that such statutes introduce no change of the substantive, law rule that contributory negligence is a complete bar to liability, but pertain only to the procedure by which the fact as to contributory negligence is to be established. In Easterling Lumber Co. v. Pierce, supra, a state statute, applicable to railroads, provided that from the proof of the happening of an accident there should arise a prima facie presumption of negligence. Referring to this statute, the Supreme Court said, 235 U.S. at page 382, 35 S.Ct. at page 134, 59 L.Ed. 279: “The objection to the * * * statute is that it was wanting in due process because retroactively applied to the case since the statute was enacted after the accident occurred. But the court below held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to again require nothing but a reference to the decided cases.” It is apparent, then, that burden of proof does not fall within either category of “substance” or “procedure” by virtue of any intrinsic compulsion, but the matter has been made to turn upon the purpose at hand to be served by the classification. Therefore, inasmuch as the older decisions in the federal courts, applying in diversity cases the federal rule as to burden of proof as a matter of “general law”, are founded upon an assumption no longer valid since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, their classification of burden of proof as a matter of substance should be re-examined in the light of the objective and policy disclosed in the Tompkins case. The opinion in that case sets forth as a moving consideration of policy that it is unfair and unseemly to have the outcome of litigation substantially affected by the fortuitous existence of diversity of citizenship. Hence, the greater likelihood there is that litigation would come out one way in the federal court and another way in the state court if the federal court failed to apply a particular local rule, the stronger the urge /would be to classify the rule as not a mere matter of procedure but one of substantive law falling within the mandate of the Tompkins case. There will be, inescapably, a twilight zone between the two categories where a rational classification could be made either way, and where Congress directly, or the Supreme Court under authority of the Act of June 19, 1934, 48 Stat. 1064, 28 U.S.C.A. §§ 723b, 723c, would have power to prescribe a so-called rule of procedure for the federal courts. Thus, if Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, could be construed as imposing upon the defendant the burden of proof of contributory negligence, it seems that this would be valid and conclusive of the case at bar, despite the contrary intimation in Francis v. Humphrey, D.C., 25 F.Supp. 1, 4, 5. Rule 8(c) speaks of contributory negligence as an “affirmative defense”, a phrase implying that the burden of proof is on the defendant. Yet the only rule laid down is one of pleading; the defendant must affirmatively plead contributory negligence. It is not inconsistent to require the defendant to plead contributory negligence if he wants to raise the issue, and yet to put the burden of proof on the plaintiff if the issue is raised. Since Rule 8(c) contains no prescription as to burden of proof, we must look elsewhere for the answer. It seems to be said in Francis v. Humphrey, D.C., 25 F.Supp. 1, 4, and was suggested by counsel in the case at bar, that the question whether in diversity of citizenship cases burden of proof is to be classified as a matter of procedure or substantive law is to be determined by following the classification made by the courts of the state. No doubt we should look to those courts to tell us what their rule is and how it operates in local litigation. But once that is determined, the rule is the same whether it is labeled substantive law or procedure. Furthermore, as already pointed out, such a. classification by the state court for one purpose does not mean that the classification is valid for another purpose. Surely the question whether a particular subject-matter falls within the power of the Supreme Court to prescribe rules of procedure under the Act of 1934, or is a matter of substantive law governed by the doctrine of the Tompkins case, cannot'be foreclosed by the label given to the subject-matter by the state courts. The inquiry then must be: considering the policy underlying Erie Railroad Co. v. Tompkins, supra, would that policy best be served by classifying burden of proof as to contributory negligence as a matter of procedure or substantive law? The incidence of burden of proof may determine the outcome of the case. This is true where the evidence is conflicting and the jury is not convinced either way. It is more' pointedly true where, as sometimes happens, the injured person dies and no evidence is available on the issue of contributory negligence. If, in such a case, the burden of proof is on the defendant, the plaintiff wins, assuming the other elements of the cause of action are established. Miller v. Union Pacific, 290 U.S. 227, 232, 233, 54 S.Ct. 172, 78 L.Ed. 285; Holland v. B. & M. Railroad, 279 Mass. 342, 181 N.E. 217. If the burden is on the plaintiff, however, the defendant wins. McLane v. Perkins, 92 Me. 39, 42 A. 255, 43 L.R.A. 487. Assuming the state rule to be one way and the federal rule the other, then the accident of citizenship becomes decisive of the litigation. The situation seems to call for the application of the rule in the Tompkins case. There is no important counter-consideration here, for the state rule can be easily ascertained and applied by the federal court without any administrative inconvenience. In thus concluding that for this purpose the incidence of the burden of proof as to contributory negligence is to be classified as a matter of substantive law, we are in harmony with the spirit of the Tompkins case, and at the same time are adhering to the classification maintained in an unbroken line of federal court decisions under Swift’ v. Tyson, supra. Federal courts in other circuits have held, since the Tompkins decision, that the state rule as to burden of proof must now be applied in diversity of citizenship cases. Equitable Life Assurance Society v. MacDonald, 9 Cir., 1938, 96 F.2d 437; Schopp v. Muller Dairies, Inc., D.C.N.Y., 1938, 25 F.Supp. 50. See Montgomery Ward & Co., Inc. v. Snuggins, 8 Cir., 1939, 103 F.2d 458; Central Surety & Ins. Corp. v. Murphy, 10 Cir., 1939, 103 F.2d 117; Coca-Cola Bottling Co. v. Munn, 4 Cir., 1938, 99 F.2d 190, 193; Hagan & Cushing Co. v. Washington Water Power Co., 9 Cir., 1938, 99 F.2d 614; Lee v. Cannon Mills Co., 4 Cir., 1939, 107 F.2d 109. The Supreme Court has recently decided that a federal district court in Texas, entertaining a bill to remove a cloud on title to Texas land, must, under Erie Railroad Co. v. Tompkins, supra, apply the established Texas rule that on an issue of bona fide purchase for value without notice, the burden of proof is upon him who attacks the legal title and asserts a superior equity. Cities Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 203, 84 L.Ed. — - (December 4, 1939). In a brief opinion the court makes the point that the local rule “relates to a substantial right upon which the holder of recorded legal title to Texas land may confidently rely. * * * This was a valuable assurance in favor of its title.” While it is not believed that this holding is necessarily conclusive of the question now before us, the fact that the court cited as authority Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252, a case relating to contributory negligence, strengthens our conclusion that the state rule as to burden of proof on the issue of contributory negligence should be followed in the federal court in diversity of citizenship cases. Thus far, the case has been discussed as though suit had been brought in the federal court sitting in tlie state where the alleged tort occurred. But there is the complicating factor that the accident occurred in Maine and suit was brought in Massachusetts. This makes it necessary to consider three further points: First, if the plaintiff had sued in a Massachusetts state court, would the Massachusetts Supreme Judicial Court have allowed the application of the Maine rule as to burden of proof? The answer is, no. The Court would have said that burden of proof is a matter of procedure only, and would have applied the Massachusetts rule that the burden is on the defendant to establish the plaintiff’s contributory negligence. Such was the holding in Levy v. Steiger, 233 Mass. 600, 124 N.E. 477, and Smith v. Brown, Mass., 19 N.E.2d 732. Second, would such a decision by the Supreme Judicial Court of Massachusetts be subject to reversal by the Supreme Court of the United States? Presumably we are permitted under the Tompkins case thus to attack the decision of a state court collaterally, so to speak, for the Supreme Court would hardly require the federal courts to follow a local decision which, had it been appealed, would have been reversed by the Supreme Court on constitutional grounds. No question is involved of sovereign jurisdiction of the state over person or property, a segment of conflict of laws where the Supreme Court of the United States has long had the last word, under the due process clause. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. In Kryger v. Wilson, 242 U.S. 171, 176, 37 S.Ct. 34, 61 L.Ed. 229, the Supreme Court expressed the view that doctrines of the conflict of laws are part of the body of the common law; and that an allegedly erroneous decision by a state court upon a point of conflict of laws no more raises a federal question than would a state decision departing from generally accepted doctrines of contracts or torts. Later decisions have qualified Kryger v. Wilson, supra, somewhat. Occasionally the full faith and credit clause has been successfully invoked, where a state court by an assumed erroneous application of doctrines of conflict of laws has failed to give effect to a statute of another state. See Royal Arcanum v. Green, 237 U.S. 531, 35 S.Ct. 724, 59 L.Ed. 1089, L.R.A.1916A, 771; John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106. Cf. Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. Two or three other decisions, in narrow circumstances, have cited the due process clause to upset judgments of state courts imposing liabilities that would not have been imposed by what the Supreme Court deemed the “appropriate” foreign law. Hartford Indemnity Co. v. Delta Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178, 92 A.L.R. 928; Home Insurance Co. v. Dick, 281 U.S. 397, 406-409, 50 S.Ct. 338, 74 L.Ed. 926, 74 A.L.R. 701; Western Union Telegraph Co. v. Brown, 234 U.S. 542, 34 S.Ct. 955, 58 L.Ed. 1457. See Ætna Life Ins. Co. v. Dunken, 266 U.S. 389, 45 S.Ct. 129, 69 L.Ed. 342. These decisions have been referred to by legal writers as indicating that the Supreme Court may ultimately establish itself as the final arbiter of all questions of conflict of laws. See Ross, Has the Conflict of Laws Become a Branch of Constitutional Law, 15 Minn.L. Rev. 161; Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws, 39 Harv.L. Rev. 533; Note, 52 Harv.L.Rev. 1005, 1006. Whatever the eventual development of this line of cases may be, we know of no decision indicating that the Supreme Court at the present time would reverse a decision of a state court in a case like Levy v. Steiger, supra, applying the lex fori rather than the lex loci delicti in the matter of burden of proof. Numerous decisions to this effect have been rendered by state courts, and it has never seemed to occur to anyone that a federal question was involved. Furthermore, in Levy v. Steiger, supra, the Massachusetts court was applying not its common law (which put the burden of proof on the plaintiff, Duggan v. Bay St. Ry., 230 Mass. 370, 375, 119 N.E. 757, L.R.A.1918E, 680), but a statute providing that “In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall he presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answér and proved by the defendant.” Mass.Laws 1914, c. 553, now Mass.G.L. (Ter.Ed.) 1932, c. 231, § 85. To hold that this statute is unconstitutional, as applied in Levy v. Steiger, supra, to a foreign tort, one would have to find somewhere in the Constitution an -implied prohibition to the effect that no state shall pass any law altering an assumed nationally applicable body of doctrine concerning the conflict of laws, the final interpreter of which is the Supreme Court of the United States. It follows, therefore, that the unimpeachable law of Massachusetts in the case at bar is, that in a suit brought in Massachusetts the burden of proof as to contributory negligence is on the defendant, despite the contrary rule applicable iñ Maine where the accident occurred. Third, this being the Massachusetts law, there remains the inquiry, what law must be applied in the federal court in Massachusetts when jurisdiction is invoked on the ground of diversity of citizenship? Under Erie Railroad v. Tompkins, supra, is it the Massachusetts or the Maine rule? We know of no considered decision by the Supreme Court on this point. In the Tompkins case, suit was brought in the federal court in New York on a tort alleged to have been committed in Pennsylvania. The question was whether the railroad owed a duty of care to an undiscovered pedestrian walking on a much-used path along the right of way near the tracks. The Supreme Court held that the lower court was in error in treating this question as a matter of “general law”, and sent the case back for determination in accordance with the common, law of Pennsylvania, as declared by its highest court. There is no doubt that in this situation the state courts of New York would have applied the same rule of conflict of laws, and would have looked to the lex loci delicti. Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801. The decision in the Tompkins case manifestly tended to produce a uniformity in result in that particular situation, whether action on the Pennsylvania tort were brought in a New York state court or New York federal court. In Mutual Benefit Ass’n v. Bowman, 304 U.S. 549, 58 S.Ct. 1056, 1057, 82 L.Ed. 1521, suit was brought in the federal court in Nebraska on a contract of insurance made in New Mexico. The lower court decided a question of interpretation as a matter of “general law”. In a brief per curiam opinion the Supreme Court reversed the judgment on the authority of Erie Railroad v. Tompkins, supra, and remanded the case to determine,“the,right of respondent to recover under the law of New Mexico”. For all that appears, the Nebraska state courts would also have looked to the law of New Mexico to determine the interpretation of the contract. The case does not indicate what the decision would have been had it appeared that the Nebraska state courts would have applied a rule differing from that of the New Mexico courts. New York Life Ins. Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871, 82 L.Ed. 1329, was a similar case. In Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 208, 58 S.Ct. 860, 82 L.Ed. 1290 the court expressly left open the conflict of laws question. Until the point is finally ruled upon by the Supreme Court, lower courts must piece out as best they can the implications of the Tompkins case. The theory is that the federal court in Massachusetts sits as a court coordinate with the Massachusetts state courts to apply the Massachusetts law in diversity of citizenship cases. Under Swift v. Tyson, supra, the federal courts were free to disregard state court decisions on matters of “general law”, and this included state court decisions on the common law relating to conflict of laws. Boseman v. Connecticut Gen. Life Ins. Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036, 110 A.L.R. 732; Citizens Bank v. Waugh, 4 Cir., 78 F.2d 325, 100 A.L.R. 939; Dygert v. Vermont Loan & Trust Co., 9 Cir., 94 F. 913. But under the Tompkins case the Massachusetts law must be determined by the state statutes and the common law as interpreted by the state courts, not by the federal court’s notion of “general law”. The powerful argument by Holmes, J., dissenting, in Black & White Taxi Co. v. Brown & Yellow Taxi Co., 276 U.S. 518, 532-535, 48 S.Ct. 404, 72 L.Ed. 681, 57 A. L.R. 426, cited with approval by the majority opinion in the Tompkins case (304 U.S. 64, at page 79, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487), seems to be applicable to that portion of the Massachusetts common law relating to conflict of laws quite as much as to the common law of contracts or torts. Except in the limited range of cases, already alluded to above, where state court decisions on points of conflict of laws are subject to reversal by the United Statfes Supreme Court under the federal constitution, the rules applicable to conflict of laws are not “a transcendental body of law outside of any particular state but obligatory within it”. If the federal court in Massachusetts on points of conflict of laws may disregard the law of Massachusetts as formulated by the Supreme Judicial Court and take its own view as a matter of “general law”, then the ghost of Swift v. Tyson, supra, still walks abroad, somewhat shrunken in size, yet capable of much mischief. In the case at bar, it is difficult to see that any gain in the direction of uniformity would be achieved by creating a discrepancy between the rules of law applicable in the Massachusetts state and federal courts, respectively, in order to bring the law of the Massachusetts federal court in harmony with the law that would be applied in the state courts of Maine. Our conclusion is that the court below was bound to apply the law as to burden of proof as it would have been applied by the state courts in Massachusetts. This result may seem to present a surface incongruity, viz., the deference owing to the substantive law of Massachusetts as pronounced by its courts requires the federal court in that state to apply a Massachusetts rule as to burden of proof which the highest state court insists is procedural only. The explanation is that reasons of policy, set forth in the Tompkins case, make it desirable for the federal court in diversity of citizenship cases to apply the state rule, because the incidence of burden of proof is likely to have a decisive influence on the outcome of litigation; and this is true regardless of whether the state court characterizes the rule as one of procedure or substantive law. Certainly the federal court in Massachusetts cannot treat burden of proof as a matter of procedure in order to disregard the Massachusetts rule, and then treat it as substantive law in order to apply the Maine rule. Under the conclusion we have reached, if suit were brought in Massachusetts, the state and federal courts there would be in harmony as to burden of proof; and if suit were brought in Maine, the state and federal courts there would likewise be in harmony on this important matter. It is true that the rule applied in the Maine courts would not be the same as the rule applied in the Massachusetts courts. But this is a disparity that existed prior to Erie Railroad v. Tompkins, supra, and cannot be corrected by the doctrine of that case. It is a disparity that exists because Massachusetts may constitutionally maintain a rule of conflict of laws to the effect that the incidence of burden of proof is a matter of “procedure” to be governed by the law of the forum. Levy v. Steiger, supra. For error in the instructions given to the jury on the burden of proof, the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. The judgment of the District Court is vacated, the verdict set aside and the case is remanded to that court for further proceedings not inconsistent with this opinion-; the appellant recovers costs of appeal. WILSON, Circuit Judge, concurs in the result. PETERS, District Judge, dissents. See Cook, “Substance” and “Procedure” in the Conflict of Laws (1933) 42 Tale L.J. 333; McOlintock, Distinguishing Substance and Procedure in the Conflict of Laws (1930) 78 U. of Pa. L. Rev. 933; Tunks, Categorization and Federalism: “Substance” and “Procedure” after Erie Railroad v. Tompkins (1939) 34 Ill.L.Rev. 271. In American Law Institute Restatement of Conflict of Laws, § 595, Comment a, it is first stated that the law of the forum governs matters relating to burden of proof. It is then stated that if by the lex loci delicti tho requirement that plaintiff must prove himself free from fault is “interpreted as a condition of the cause of action itself”, then the forum will apply the foreign rule. But to say it is a condition of the eanse of action seems to be merely another way of saying that the plaintiff has the burden of proof; for if this burden is upon tho plaintiff, his recovery is necessarily conditioned upon his convincing tho jury of his freedom from contributory fault. Tho Olson ease, cited in the text, relies upon this section of the Restatement for its authority. In Precourt v. Driscoll, supra, also cited in tho text, the New Hampshire court is affected by the same curious form of statement, which apparently was derived originally from Central Vermont Railway v. White, 238 U.S. 507, 512, 35 S.Ct. 865, 59 L.Ed. 3433, Ann.Cas.1916B, 252. A similar verbal twist could be used to show that a rule putting the burden on tho defendant is a matter of substance. It can be said that where a defendant has negligently caused harm, the requirement that he must affirmatively establish the plaintiff’s contributory negligence is a “condition” of his defense. But putting it this way really proves nothing. If by the lex loci, contributory negligence is not a complete defense but goes only in mitigation of damages, this is clearly a matter of substance as to which the forum would follow the foreign rule. Fitzpatrick v. International Ry. Co., 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801; Caine v. St. Louis & S. F. Ry., 1923, 209 Ala. 181, 95 So. 876, 32 A.L.R. 793. So, if by the lex loci, contributory negligence is no defense where defendant had a “last clear chance”, this again is clearly a matter of substantive law. But where the lex loci and the lex fori agree that the plaintiff’s contributory negligence will bar him from recovery, it is not an irrational distinction to say that the question of who has the burden of establishing the facts on the issue of contributory negligence is one of procedure to be governed by the rule of the forum. That distinction is pointed out in Kingery v. Donnell, 222 Iowa 241, 250, 268 N.W. 617, 622. It may be stated thus: procedural rules are those which concern methods of presenting to a court tho operative facts upon which the legal relations depend; substantive rules, those which concern the legal effect of those facts after they have been established. See Stumberg, Conflict of Laws (1937) 128. It is a distinction taken by perhaps the majority of the state courts in conflict of laws cases. It is based upon an obvious difference of degree. Nevertheless, because of the influence which the incidence of burden of proof often has on the outcome of litigation, tho better view would seem to be that in these conflict of laws cases, the forum should apply the rule of the locus delicti as to burden of proof. In tho analogous situation, where suit is brought in a federal court because of diversity of citizenship, we are holding in the present case that tho federal court should apply the rule as to burden, of proof obtaining in the state court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, at pages 74-77, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. A dictum in the majority opinion in the Tompkins case, 304 U.S. 64 at page 78, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, may be taken to assert that Congress could, not constitutionally prescribe the substantive rules of law applicable in the federal courts in diversity of citizenship cases. It is not quite clear that this intimation was meant to be conveyed. See 52 Harv.L.Rev. 1002-1004. Certainly the court was not required to decide the point in the Tompkins case, because Congress has not asserted any such power, and indeed the only statute involved, the Rule of Decisions Act, 28 U.S.C.A. § 725, so far as it commands anything, commands the federal courts to follow the state law. However this may be, it is

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?

Ruth BLACKBURN, Plaintiff, Appellee, v. Linwood SNOW, et al., Defendants, Appellants, No. 84-1736. United States Court of Appeals, First Circuit. Argued Feb. 5, 1985. Decided Aug. 22, 1985. Rehearing and Rehearing En Banc Denied Sept. 20, 1985. Paul J. Sullivan and Francis J. O’Rourke, Boston, Mass., for defendants, appellants. Jeffrey W. Kobrick, Boston, Mass., with whom Charles R. Capace, Boston, Mass., was on brief, for plaintiff, appellee. Before BREYER and ALDRICH, Circuit Judges, and PETTINE, Senior District Judge. Of the District of Rhode Island, sitting by designation. PETTINE, Senior District Judge. At issue in this case is whether the federal Constitution permits a correctional institution to require that all men, women and children wishing to visit inmates at the institution submit to a strip search before doing so. Ruth Blackburn, the plaintiff-appellee in this case, was required to submit to such a search on three occasions in 1977 when she sought to visit her brother at the Plymouth County Jail. The searches were conducted pursuant to an order issued by then-County Sheriff Linwood Snow, one of the defendant-appellants here, which mandated that all visitors be strip searched, whether or not there was any cause to believe they were carrying contraband. Blackburn subsequently challenged the constitutionality of the blanket strip search policy. After the district court entered a temporary restraining order, Sheriff Snow agreed to discontinue the policy permanently. A bench trial on Blackburn’s damages claim followed. Ruling that the strip search policy violated the First and Fourth Amendments, the district court entered judgment against Snow and defendant-appellant Plymouth County, and awarded Blackburn $177,040 in compensatory damages, as well as prejudgment interest on that sum. The Sheriff and the County now appeal from that judgment, assigning a host of factual and legal errors. Because we find that the strip searches violated Blackburn’s Fourth Amendment rights, we affirm as to liability and compensatory damages, but vacate and remand for specific findings as to whether an award of prejudgment interest was necessary. BACKGROUND Ruth Blackburn’s brother, Richard McCarthy, was transferred to the Plymouth County Jail in January, 1977. Prior to April, 1977, when Sheriff Snow issued the order requiring all visitors to be strip searched, Blackburn had, without incident, visited her brother on a weekly basis. She had been virtually his only visitor. During the period from January through March, Blackburn had been fully subject to the security measures in effect before the advent of the strip search rule. These measures included “pat frisks” and metal detector searches, both of which were performed while the visitor was fully clothed. In addition, visitors were required to leave all personal possessions and money with officials before entering the visiting area. Once inside the visiting room, separate seating for inmates and visitors was provided. A television camera monitored ninety percent of the visiting area and two roving corrections officials were present in the room. Finally, inmates were strip searched following each visit. In April, when Blackburn arrived at the Jail, she noticed a new sign announcing that all visitors would be “skin searched.” She took the term “skin search” to mean the “pat frisk” to which she had been routinely subject. When she reached the front of the line, however, it became clear that she would have to undress and be strip searched in order to visit her brother. She was taken to a small room, where she removed her clothing. During the search that ensued, a female matron inspected Blackburn by, among other things, examining her armpits, lifting her breasts and crouching to view her anus. Blackburn testified that she was sweating and shaking, and felt nervous and humiliated during the procedure. When Blackburn next returned to the Jail, she was again required to submit to a strip search — this time performed by a different matron. Responding to Blackburn’s inquiry whether this search was “really necessary,” the matron stated that it was, if Blackburn wished to see her brother. This second strip search took a longer period of time and Blackburn, in her testimony, indicated that she thought this matron “seemed to be enjoying what she was doing.” The matron lifted Blackburn’s breasts twice and crouched to spread Blackburn’s buttocks with her hands, in order to examine her anus and crotch area with a flashlight. Blackburn testified that she was sweating and shaking more severely this time, had trouble standing, and left sweatprints on the wall she was made to lean against while “spread eagled.” Following this visit, Blackburn, and a younger brother who accompanied her that day, were leaving the Jail by cutting across a lawn that connected to the road. They were stopped by Sheriff Snow, who admonished them that this lawn was off limits to visitors because of the danger that visitors might use it to make a contraband “drop” for inmates. Following a conversation in which Blackburn protested that she was carrying no contraband, the Sheriff told her that he didn’t “want to see her face around here anymore.” The last time Blackburn went to the Jail, she was required once more to submit to a strip search. After the completion of the search, however, she was informed that she had been barred from visiting the Jail. She was not told why. The Sheriff later testified that he had given this order as a result of the incident on the lawn — although he had not so notified Blackburn— because he believed that the plaintiff had made an obscene gesture towards him at the close of their conversation. Shortly thereafter, Blackburn brought suit challenging the legality of the visitor strip search policy. It was undisputed at trial both that the above-recounted searches had taken place, and that Blackburn, herself, had never been suspected of attempting to secretly bring contraband into the institution. Rather, the Sheriff emphatically stated that Blackburn was strip searched as a matter of routine procedure which, under the terms of his order, applied equally to all visitors — including infants and children. Indeed, the Sheriff believed that it was in the very uniformity of the strip search policy in which its fairness inhered; by strip searching all visitors, without regard to any individualized suspicion, the Sheriff felt he could avoid the perception of unfairness, yet effectively check the flow of contraband into the Jail. The Sheriff testified that he had originally issued the visitor strip search order in 1974, but that he learned in April, 1977 that it was not being followed. He discovered this after investigating an incident in which an inmate who obtained the drug Valium had attempted to assault an officer. Although the Sheriff testified that the Valium involved in that incident had never been conclusively linked to any visitor, and that between 1974-1977 there had been only five incidents involving visitors and contraband, he nonetheless felt that the incident underscored the grave danger posed by drugs in the institution. Accordingly, pursuant to his statutory authority as Master of the Jail to fashion policies regarding visitation, he reissued his 1974 strip search order in April, 1977. While, by his own testimony, the Sheriff indicated that he had never heard of another penal institution that strip searched every visitor — a view shared by plaintiffs prison expert, Joseph Cannon — the Sheriff nonetheless believed that he was within his rights to issue the order. The district court granted a temporary restraining order against the rule in May, 1977, and in January, 1978, the Sheriff agreed permanently to abandon the practice of strip searching all visitors. Nine days of bench trial on Blackburn’s claim for damages followed. In an opinion dated May 9, 1984, 586 F.Supp. 655 (D.Mass.1984), and a supplemental opinion dated August 7, 1984, 588 F.Supp. 1386 (D.Mass.1984), the district court ruled that the strip search policy violated the First and Fourth Amendments. The court believed that Blackburn had a First Amendment right to a visit (though not necessarily a contact visit) with her brother and that the search rule was an “unnecessarily broad,” 586 F.Supp. at 660, restriction on the exercise of that right. The court also concluded that, because of the highly intrusive nature of the strip searches at issue — body cavity searches which involved not only visual inspection, but manipulation of breasts and buttocks, as well — a blanket search rule could not satisfy the Fourth Amendment’s reasonableness requirement. After rejecting the Sheriff’s qualified immunity defense and the County’s argument that it was insufficiently involved in the administration of the Jail to have been found liable for the strip search policy, the court awarded Blackburn $177,040 in compensatory damages. The damages were based on the court’s factual findings that the searches had directly caused Blackburn extensive physical and psychological harm. Because the court also found that an award of prejudgment interest was necessary to compensate Blackburn fully for this harm, it made such an award, which amounted to $151,080. 588 F.Supp. 1386, 1389. On appeal, Snow and the County press four claims. First, appellants argue that neither the First nor Fourth Amendment prohibits adoption of the strip search policy at issue here. Second, the Sheriff argues that he was entitled to qualified immunity from liability. Third, the County argues that it may not properly be held liable for the Sheriff’s actions. Fourth, both appellants challenge the award of compensatory damages as excessive and the award of prejudgment interest as inappropriate under the circumstances. DISCUSSION The Constitutionality of the Strip Search Policy Any inquiry into the constitutionality of security measures employed in a penal institution must begin with the premise that “prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (citations omitted). Because the prison is so peculiarly a “volatile ‘community,’ ” Hudson v. Palmer, — U.S. ---, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984), the preservation of internal security “is ‘central to all other corrections goals,’ ” id., 104 S.Ct. at 3201 (quoting Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)). At the same time, “prisons are not beyond the reach of the Constitution. No ‘iron curtain’ separates one from the other,” Block v. Rutherford, — U.S. ---, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) and “[t]he fact that particular measures advance prison security... does not make them ipso facto constitutional,” id., 104 S.Ct. at 3236 (Blackmun, J., concurring). Our task in prison cases is, thus, a delicate one: neither may wé substitute our own judgment about the wisdom of security measures for those of experienced prison personnel, nor may we abdicate our responsibility to ensure that the limits imposed by the Constitution are not ignored in the name of “necessity.” But, in our view, this case poses a challenge less difficult than many in this area, for we conclude that a rule requiring all prison visitors to submit to a body cavity strip search, without any predicate requirement of individualized suspicion or showing of special and highly unusual institutional need, cannot satisfy the Fourth Amendment. Because we view the search and seizure issue as determinative, we do not reach the First Amendment question. The fundamental purpose of the Fourth Amendment prohibition on unreasonable searches and seizures “ ‘is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’ ” New Jersey v. T.L. O., — U.S. ---, 105 S.Ct. 733, 736, 740, 83 L.Ed.2d 720 (1985) (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967)). As such, although most commonly invoked in the law enforcement setting, the protections of the Amendment apply fully to all forms of “governmental action,” id., 105 S.Ct. at 740, so long as “ ‘the person invoking [Fourth Amendment] protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action,’ ” Hudson v. Palmer, supra, 104 S.Ct. at 3199 (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)). While appellants concede, as they must, that the Fourth Amendment applies to the challenged actions here, they argue first that Blackburn retained no legitimate expectation of privacy when she entered the Jail. Like appellants’ claim that Blackburn consented to the searches — which we discuss fully later — this argument presupposes that one who decides to enter a controlled environment must do so on the terms prescribed for entry by those in charge of that environment. But the two arguments are distinct, in that the expectation of privacy inquiry goes to whether Blackburn was entitled to the protections of the Fourth Amendment in the first instance, while the consent question goes to whether Blackburn has waived constitutional protection to which she is otherwise entitled. Appellants base their claim that Blackburn had no legitimate privacy expectation on the fact that, at least after the first strip search, if not before, she knew that she would be subject to such a search if she went to the prison. In so framing their claim, however, appellants misapprehend the relevant doctrine. As the Supreme Court has recently noted, the “controlling” inquiry where an expectation of privacy is challenged is whether the expectation is one “ ‘society is prepared to recognize as “reasonable.” ’ ” Hudson v. Palmer, supra, 104 S.Ct. at 3199 & n. 7 (quoting in part Katz v. United States, 389 U.S. 347, 360, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). That appellants may have put Blackburn on “notice” that she would be subject to an examination of her body cavities before entering the Jail cannot determine the “controlling” question: namely, whether her expectation that she would be free of such searches was one society would call reasonable. And we think it is clear that society is “prepared to recognize” that free citizens entering a prison, as visitors, retain a legitimate expectation of privacy, albeit one diminished by the exigencies of prison security. To be sure, those visiting a prison cannot credibly claim to carry with them the full panoply of rights they normally enjoy. But neither may they constitutionally be made to suffer a wholesale loss of rights — nor even one commensurate with that suffered by inmates. For as the Supreme Court has recently observed, the “harsh facts of criminal conviction and incarceration,” New Jersey v. T.L.O., supra, 105 S.Ct. at 741, separate free citizens from those confined to penal institutions. In the T.L. O. case, the Court relied on this distinction to hold that school.children retain a legitimate (though reduced) expectation of privacy at school, even while prisoners, under the Court’s recent decision in Hudson v. Palmer, supra, retain no such expectation in their prison cells. In Hudson itself, the Court explained that “imprisonment carries with it the circumscription or loss of many significant rights... [and] in some cases the complete withdrawal of certain rights are ‘justified by the considerations underlying our penal system.’ ” Id., 104 S.Ct. at 3199 (citations omitted) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)). Thus, Hudson did not suggest, and we do not find, that the security needs of a prison can, standing alone, properly justify the “complete withdrawal” of Fourth Amendment rights from all who enter the institution (except perhaps in a highly unusual circumstance such as a prison riot). Because of the “harsh facts” that separate the visited from the visitor here, we conclude that Blackburn was entitled to expect at least some measure of personal privacy while at the Jail. In so holding, we are in accord with all the published federal court opinions of which we are aware that involve Fourth Amendment challenges by prison visitors. See Hunter v. Auger, 672 F.2d 668 (8th Cir.1982); Thorne v. Maggio, 585 F.Supp. 910 (M.D.La.1984); Black v. Amico, 387 F.Supp. 88 (W.D.N.Y.1974); cf. Security & Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984) (prison employees retain limited expectation of privacy). The degree of privacy Blackburn retained upon entering the Jail is relevant to the next question: whether the strip searches were “reasonable” within the meaning of the Fourth Amendment. Whether a particular government search is reasonable “depends on the context within which a search takes place.” New Jersey v. T.L.O., supra, 105 S.Ct. at 741. While the Fourth Amendment, by its terms, suggests that reasonableness is to be measured by the existence of a warrant issued upon probable cause, courts have recognized that, in limited circumstances, the absence of one or both of these elements does not make a search per se unreasonable. See generally id. at 743 (discussing exceptions). “The standard of reasonableness governing any specific class of searches requires ‘balancing the need to search against the invasion which the search entails.’ ” Id. at 741 (quoting Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930). Here, in deciding to what standard of reasonableness prison officials strip searching visitors should be held, we must balance the official interest in maintaining security against the intrusion entailed by a strip search. That intrusion must, of course, be viewed in light of Blackburn’s diminished expectation of privacy. We have previously recognized, “as have all courts that have considered the issue, the severe if not gross interference with a person’s privacy that occurs when guards conduct a visual inspection of body cavities.” Arruda v. Fair, 710 F.2d 886, 887 (1st Cir), cert. den., — U.S. ---, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983). As the Seventh Circuit has recently noted, body cavity searches are “ ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.’ ” Marybeth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (quoting Tinetti v. Wittke, 479 F.Supp. 486, 491 (E.D.Wis.1979), affd without opin. 620 F.2d 160 (7th Cir.1980)). The searches to which Ruth Blackburn was subject — which involved not only the visual inspection of body cavities present in the above cases, but the manual spreading of buttocks and lifting of breasts — produced exactly these feelings of humiliation in her. Her uncontroverted testimony was that she felt “very degraded”, was shaking, sweating and sick to her stomach, and could hardly stand. Against this intrusion, perhaps “the greatest personal indignity” searching officials can visit upon an individual, Bell v. Wolfish, 441 U.S. 520, 594, 99 S.Ct. 1861, 1903, 60 L.Ed.2d 447 (1979) (Stevens, J., dissenting), we must balance the appellants’ “paramount interest in institutional security.” Hudson v. Palmer, supra, 104 S.Ct. at 3201. The Supreme Court has admonished that the interest of prison officials in intercepting contraband and maintaining internal order must be accorded great weight, e.g., id.; Block v. Rutherford, supra, 104 S.Ct. at 3232-3234; Bell v. Wolfish, supra, 441 U.S. at 547, 99 S.Ct. at 1878; and this Court has echoed that sentiment, e.g. Arruda v. Fair, supra, 710 F.2d at 887; cf. Gomes v. Fair, 738 F.2d 517 (1st Cir.1984). And, as we have noted, this interest must not only be weighted heavily in striking the Fourth Amendment balance, but courts must, in addition, accord appropriate deference to the “professional expertise of corrections officials,” Wolfish, supra, 441 U.S. at 548, 99 S.Ct. at 1879 (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)) in selecting measures calculated to preserve the security of the facility. See Arruda, supra, 710 F.2d at 887. Appellants need not convince us that the Sheriff required considerable latitude in accomplishing this goal. We reject the argument that the security needs of the Jail justified the blanket rule, however, because we believe that the record in this case shows that no unusual need for special security measures such as a strip search of all prison visitors existed, and that absent such unusual need, the Constitution normally requires a more particularized level of suspicion before individuals wishing to visit a jail may permissibly be subject to a grossly invasive body search. So basic is this constitutional norm, in fact, that appellants cannot cite, nor are we aware of, any published federal case — other than those involving incarcerated individuals — in which a court has approved body cavity searches of individual visitors about whom no particular suspicion is harbored. Certainly, this position finds no support in the federal precedents concerning strip searches of prison visitors, in which the debate has always been over what level of suspicion is appropriate, not whether any such suspicion is required. Hunter v. Auger, supra, 672 F.2d at 674 (strip searches conducted unconstitutional because visitors were not target of “reasonable suspicion”); Thorne v. Jones, supra, 585 F.Supp. at 918 (same); Black v. Amico, supra, 387 F.Supp. at 91 (strip searches conducted unconstitutional because visitor was not target of “real suspicion”). Cases concerning strip searches of other classes of unincarcerated individuals who have a diminished expectation of privacy have generally taken a similar approach. See, e.g., Security Employees v. Carey, supra, 737 F.2d at 205, 208 (requiring “reasonable suspicion” to strip search prison guards and probable cause and warrant to conduct body cavity search of prison guards); Marybeth G. v. City of Chicago, supra, at 1273 (requiring “reasonable suspicion” to strip search misdemeanor arrestees confined while awaiting bail money); United States v. Kallevig, 534 F.2d 411, 413 (1 Cir.1976) (requiring either “real suspicion” or “mere suspicion” to strip search at border); Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir.1980) (per curiam), cert. den., 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) (requiring “reasonable cause” to believe contraband is hidden on person to strip search minor student). Appellants themselves concede that exceptions to the general Fourth Amendment requirement that normally some level of individual suspicion be present before a search is conducted are appropriate only when, among other things, “the privacy interests implicated by a search are minimal.” Reply Brief, at 11,12 (quoting New Jersey v. T.L. O., supra, 105 S.Ct. at 745, n. 8). Even in light of her diminished expectation of privacy, Blackburn’s interest in preserving the privacy of her body cavities can scarcely be thought “minimal.” It is not surprising that appellants find no authority for their view, especially in light of the Fourth Amendment principle that “ ‘the greater the intrusion, the greater must be the reason for conducting a search,’ ” United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978) (quoting United States v. Love, 413 F.Supp. 1122, 1127 (S.D.Tex.), aff'd, 538 F.2d 898 (5th Cir.), cert. den., 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 628 (1976)); see United States v. Sanders, 663 F.2d 1, 3 (2d Cir.1981); cf. Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (“a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.”) Appellants nonetheless insist that prison administrators must be allowed to implement measures they deem necessary to the security of the institution. Despite the fact that prior visitor strip search cases have always accomodated the special security needs of prisons by holding that something less than probable cause and a search warrant may properly justify strip searching a visitor, appellants argue that because the Sheriff deemed a blanket policy “necessary” to check the flow of drugs and contraband into the institution, we are thereby constrained to uphold that policy. Appellants attempt to find such a principle in Block v. Rutherford, supra, in which the Supreme Court recently held that the Fourteenth Amendment due process rights of pretrial detainees are not violated by a jail rule barring contact visits. In Block, the Court said that: On this record, we must conclude that the District Court simply misperceived limited scope of judicial inquiry under Wolfish. When the District Court found that many factors counseled against contact visits, its inquiry should have ended. The court’s further ‘balancing’ resulted in an impermissible substitution of its view on the proper administration of Central Jail for that of the experienced administrators of that facility. 104 S.Ct. at 3234. Because the district court in this case found the Sheriff’s strip search policy to be “clearly directed toward the goal of preserving internal security,” 586 F.Supp. at 660, the appellants reason that the policy must, therefore, be found “reasonable” under the Fourth Amendment. We disagree for two reasons. First, the district court in this case did not find “many factors” supporting the blanket strip search rule. Rather, while the court properly found the rule motivated by Snow’s concern for security, it also found the rule wholly unjustified by the Jail’s actual security needs, and we see no error in its finding. The evidence showed that there had been only a few — perhaps five — incidents involving visitors and contraband during the Sheriff’s tenure at the Jail. Indeed, even the 1977 incident involving an inmate who obtained valium, identified by Snow as triggering the strip search rule, had never been conclusively linked to a visitor. Joseph Cannon, a prison expert with considerable experience in the field, compared the instances of visitor abuses, prior to the strip search rule, with those at other institutions and concluded that there were surprisingly few incidents, and that those that had occurred had not been serious. He therefore believed the Jail’s existing security measures, which he observed in operation, to be more than adequate to address the minimal visitor contraband danger present. He also testified that in his twenty-seven years in the corrections field he had never heard of any other institution that strip searched all visitors, without any corroborating evidence that a visitor was carrying contraband. Nor had Snow himself heard of any comparable policy. Moreover, the evidence was clear not only as to the existence of other adequate security measures, see page 559, supra, but as to the fact that the Jail was equipped to offer screened, non-contact visits — an option which was never offered to Blackburn or any other visitor, in lieu of a strip search. Accordingly, the district court properly found the drastic strip search rule unnecessary and lacking any proportion at all to the “problem” it purported to solve. Second, like Wolfish before it, Block concerned the rights of pretrial detainees. We have already discussed, as did the Court in both Wolfish and Block, the fact that “(l )awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Wolfish, 441 U.S. at 546-547, 99 S.Ct. at 1877 (quoting Price v. Johnston, supra, 334 U.S. at 285, 68 S.Ct. at 1060); see Block, 104 S.Ct. at 3231-3232 & n. 8. Neither case purported to deal with the rights invoked here: those of a free citizen. We reject appellants’ attempt to impute or casually transfer to free citizens visiting a prison the same circumscription of rights suffered by inmates. Perhaps more than our dissenting brother, we find this distinction central to this case. Moreover, to the extent that Block may have, by implication, curtailed the derivative “rights” of visitors to enjoy contact visits, it nonetheless did so only within the framework of the detainees’ due process rights, where the relevant inquiry was whether the jail policy amounted to impermissible “punishment” of an individual, though lawfully incarcerated, not yet convicted of a crime. Here, we are concerned not only with a direct challenge by a visitor, but with one brought under the Fourth Amendment — a distinct constitutional provision implicating values entirely independent of those protected by the due process clause. We accordingly reject the claim that a policy requiring all visitors to be strip searched can satisfy the strictures of reasonableness solely because the Sheriff has incanted the words “institutional security.” To read Block and other prison security cases to compel such a result would convert the interest balancing required by the Fourth Amendment into a per se rule upholding any search, of any person, thought “necessary” by prison officials. We believe the Constitution requires a more particularized level of suspicion to justify the humiliating and intrusive searches conducted here. While we need not define here precisely what level of individualized suspicion is required, we hold that, absent highly unusual circumstances, a rule unabashedly requiring none cannot be reconciled with the Fourth Amendment. Appellants finally argue that, even if deemed otherwise unreasonable, the strip searches did not violate the Fourth Amendment because Blackburn consented to them. They point to several supporting facts in the record: that Blackburn signed 16 visitor slips between January — April, 1977, consenting to a search of her person and property; that officials posted a sign announcing that all visitors would be “skin searched”; that Blackburn was free to leave the Jail if she wished to forego visiting, but instead chose to submit to the searches; and that Blackburn voluntarily returned to the Jail on two occasions after the first search. Blackburn takes the position that, as a factual matter, no consent could properly be found here because, as her testimony and that of Dr. Grassian showed, circumstances in her family background caused her to feel so uniquely responsible for her siblings that she had no real “choice” but to do whatever was necessary, even if self-destructive, to see her brother — especially because he was in 23 hour a day lock up at the time. In addition to this factual argument, appellee has adopted the reasoning of the district court, which rejected the consent claim because it believed that “(a)n individual whose right to visit a prison inmate is conditioned on her submission to a strip search is subjected to a ‘search’ within the meaning of the fourth amendment” and cannot be said to have voluntarily consented under such “ ‘inherently coercive’ circumstances.” 586 F.Supp. at 661 (quoting Palmigicmo v. Travisono, 317 F.Supp. 776, 792 (D.R.I.1970)). We need not decide whether, as a factual matter, the particular circumstances of Blackburn’s background rendered any consent she gave ineffective, for we agree with the district court that, as a matter of law, Blackburn’s submission to the searches under these circumstances cannot properly constitute consent because her access to the Jail was impermissibly conditioned on that submission. We do not agree, however, that Blackburn must have had a constitutional right to visit the institution in order to reach this result. Rather, it has long been settled that government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional right. As the Supreme Court explained sixty years ago: It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence. Frost v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1925). Since Frost, which struck down a state statute conditioning the use of public highways on compliance with regulatory requirements otherwise violative of the due process clause, the doctrine of unconstitutional conditions has been applied in the context of numerous constitutional protections, e.g., Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972) (state may not condition continued public employment on relinquishment of protected speech rights); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1967) (state may not condition receipt of unemployment benefits on relinquishment of right to free exercise of religion); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (state may not condition continued public employment on relinquishment of right to invoke Fifth Amendment privilege against self-incrimination); id. at 500, 87 S.Ct. at 620 (collecting cases discussing other “rights of constitutional stature whose exercise a state may not condition by the exaction of a price”), and several courts have applied it in Fourth Amendment situations analogous to the one before us, e.g., Armstrong v. New York State Commissioner of Correction, 545 F.Supp. 728, 731 (N.D.N.Y.1982) (state may not condition continued employment of prison guards on submission to unreasonable strip searches); Gaioni v. Folmar, 460 F.Supp. 10, 13 (M.D.Ala.1978) (state may not condition public access to civic center on submission to unreasonable searches). We find this constitutional rule dispositive of the consent issue here because Sheriff Snow expressly conditioned Blackburn’s access to the Jail upon sacrifice of her right to be free of an otherwise unreasonable strip search. The Sheriff freely admits to having structured the choice to bar any visit,

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?

OSCAR MAYER & CO., INC. and Oscar Mayer & Co., Inc. (PA), Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. No. 79-1743. United States Court of Appeals, Seventh Circuit. Heard Jan. 18, 1980. Decided June 20, 1980. Stanley S. Shaw, Jr., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant. Edward C. Rustigan, Chicago, 111., for plaintiffs-appellees. Before FAIRCHILD, Chief Judge, and CUMMINGS and PELL, Circuit Judges. CUMMINGS, Circuit Judge. Plaintiff Wisconsin meatpacker and its Pennsylvania subsidiary sued to recover with interest alleged overpayments of $69,-958.03 assessed against plaintiffs and Alpha Technical Services, Inc., a defunct subsidiary of the Wisconsin corporation, under the employer withholding provisions of the Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA), and income tax laws. Relying on the Supreme Court’s then recent decision in Central Illinois Public Service Co. v. United States, 435 U.S. 21, 98 S.Ct. 917, 55 L.Ed.2d 82, the district court granted summary judgment for plaintiffs. On appeal, the Government challenges that judgment insofar as the FICA and FUTA withholding taxes are concerned. We affirm. The facts material to our consideration are not in dispute. During 1969 and 1970 plaintiffs and Alpha provided approximately 863 automobiles, leased on a fleet basis, to some of their salesmen, livestock procurers, and grocery product salesmen who, as determined by division executives, needed automobiles in performing their jobs. Each such employee was informed that the car was primarily for business use and that any personal use was expected to be incidental. The company required the employees to file standard expense reports, showing separately the business miles and personal miles accumulated during each week. Employées thereafter received reimbursement from the companies for all expenses incurred in operating the automobiles, less a charge of 3V2<p to 4<t per mile for each mile of personal use. This charge was intended to reimburse plaintiffs and Alpha “for incremental costs which resulted from any personal use of operating the automobile” (par. 8(3) of complaint). After an audit of the program, the District Director of the Internal Revenue Service in Madison, Wisconsin, determined that the charge for personal miles deducted from the reimbursement paid the employees failed to cover the companies’ allocated costs for the personal use, including the employees’ share of lease amortization, insurance, taxes and licensing. He found that the proper charges for 1969 should have been ll<p per mile in the case of the Wisconsin plaintiff, 91/4<£ per mile in the case of the Pennsylvania plaintiff, and 10V2<t per mile in the case of Alpha and for 1970, lls/4<t per mile, lDAc per mile and 103/4<p per mile respectively. He concluded therefore that the' employees had received compensation from the company equal to the difference between the actual cost and the cost charged, that this compensation amounted to “wages” for purposes of FICA, FUTA and income withholding taxes, and that the companies were liable for the resulting deficiencies in their withholdings under the statutes. After paying the additional assessments, plaintiffs filed claims for refunds, which were disallowed in full. This lawsuit followed. The theory of the complaint was that the employees did not receive compensation since they had been charged the fair market value for use of the automobiles for personal purposes. In the alternative, the complaint asserted that even if the employees received compensation through use of the automobiles for personal purposes, the compensation was not “wages” for purposes of FICA, FUTA and income withholding taxes. While the case was pending in the district court, the Supreme Court decided Central Illinois Public Service Co. v. United States, 435 U.S. 21, 98 S.Ct. 917, 55 L.Ed.2d 82. In Central Illinois, the Court held that reimbursement for lunch expenses of employees on company travel did not constitute “wages” subject to federal income tax withholding, even though the reimbursement assertedly represented income to the employees. It reasoned that “income” and “wages” are discrete concepts under the Internal Revenue Code, the former being an expansive term, the latter one that Congress had intentionally chosen to be “narrow and precise.” 435 U.S. at 31, 98 S.Ct. at 922. That decision, based in part on legislative history (435 U.S. at 26-27), prompted plaintiffs to file a motion for summary judgment. Thereafter the Government conceded that any unreim-bursed value of the use of company cars by plaintiffs’ employees did not constitute “wages” subject to income tax withholding, but, because Central Illinois did not involve FICA and FUTA taxes, it maintained that the alleged compensation should still be considered “wages” for purposes of those taxes. The amounts left in issue were $9,318.18 for FICA tax and $262.39 for FUTA tax. In granting summary judgment for plaintiffs, the district judge filed a supporting memorandum noting that the definitions of “wages” in FICA and FUTA were nearly identical to the income tax withholding definition. Although acknowledging minor departures in the language, he rejected the Government’s assertion that these differences reflected a distinction between FICA and FUTA “wages” on the one hand and income tax “wages” on the other, supposedly based on differences in the purposes of the taxes and in collection procedures. Judge Warren also noted that “[t]o hold that the slight differences in the wording of the definitions of wages constitutes a difference in intent would prevent employers from being able accurately to predict what should be withheld for income tax purposes and what should be withheld for FICA and FUTA purposes. Such a result would be unfair.” (App. B at 7a.) He thus held that the word “wages” has the same essential meaning under all three statutes. The Government then took this appeal. The Meaning of “Wages” Under FICA and FUTA Central Illinois, supra, stands for the proposition that the concepts of “wages” and “income” are not identical for purposes of the tax laws. In particular, the Court in Central Illinois held that Congress used the narrower term “wages” in describing the source of an employer’s withholding obligations because of Congressional concern for “simplicity” and “ease of administration” in the withholding context, where the employer is burdened with secondary liability for the taxes withheld. Noting that the meal stipends at issue in that case were not even clearly within the definition of income at the time they were provided, the Court found the “intentionally narrow and precise” concept of wages too narrow to comprise the additional income that those stipends now appeared to represent. 435 U.S. at 31, 98 S.Ct. at 922. In this case, the Government has conceded that the value of the automobile use, like the meal stipends in Central Illinois, should not be included in the “wages” of the employees for income tax withholding purposes (Br. 4, 9). It follows, then, that the remuneration is not “wages” for FICA and FUTA purposes if the withholding provisions of those statutes are treated as in pari materia with the comparable income tax provisions. The Government’s case depends primarily on its assertion that the provisions should not be so treated and that Central Illinois does not suggest otherwise. Although Central Illinois admittedly did not reach the specific issue of this case, its discussion of “wages” represented an effort to delineate the concept embodied in that term as it appears in the tax laws. That the FICA and FUTA statutes employ the same term in an identical context strongly suggests that the general concept Congress intended to apply here was the same. It is, moreover, highly significant that the Court in Central Illinois specifically approved the Fourth Circuit’s decision in Roy-ster Co. v. United States, 479 F.2d 387 (1973), in which the similarity among the three withholding statutes was expressly noted and in which that court found the remuneration at issue — reimbursement for the cost of meals its salesmen purchased during their days on the road — not to be wages under all three statutes. The court’s assumption that the three provisions embodied the same concept undoubtedly stemmed from its description of the three statutes as follows: “Concerning FICA. 26 U.S.C. §§ 3101 and 3102 impose a tax for old age, survivors, disability and hospital benefits and require the employer to collect such taxes from the wages of the employee. § 3121(a) defines ‘wages’ within the meaning of §§ 3101 and 3102 as ‘all remuneration for employment, including the cash value of all remuneration paid in any medium other than cash.’ Concerning FUTA. 26 U.S.C. § 3306(b) likewise defines ‘wages’ as ‘all remuneration for employment, including the cash value of all remuneration paid in any medium other than cash.’ For the purposes of withholding income tax by the employer, 26 U.S.C. § 3401(a) defines wages: ‘For purposes of this chapter, the term “wages” means all remuneration for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash.’ ” (479 F.2d at 389-390.) In reaching the subsequent Central Illinois result that “wages” under these statutes is narrower than “income,” the Royster court held that the remuneration in question was not attributable to any services on the part of the employees so that the requirement of “wages” in all three statutes was not satisfied. That the FICA and FUTA statutes refer to remuneration “for employment” rather than “for services performed * * ” did not alter the court’s conclusions. See 479 F.2d at 390-392. More recently, the Court of Claims in Hotel Conquistador, Inc. v. United States, 597 F.2d 1348 (Ct.C1.1979), certiorari denied, 444 U.S. 1032, 100 S.Ct. 702, 62 L.Ed.2d 668, held that meals a taxpayer supplied to its employees were not “wages” for purposes of computing FICA and FUTA taxes. The specific issue in Hotel Conquistador was whether the term “wages” under FICA and FUTA could in some cases be broader than “income” so that it might include items that were paid “for the convenience of the employer.” Nevertheless, the court viewed as controlling the discussion in Central Illinois regarding the relationship between the terms “wages” and “income”. It nowhere suggested that the relationship between the two concepts was in any way different in the FICA/FUTA context. To the contrary, the Court of CLaims discussed Royster with approval and, despite the “remuneration for employment” language of the FICA and FUTA statutes, applied the test of Royster in finding that there was no showing that any work was done or service rendered by the employees while receiving the free meals. 597 F.2d at 1351, 1352. We are aware that the purposes of FICA and FUTA and the collection practices under their withholding provisions are in some respects different from those in the income tax laws. It is true, for example, that Central Illinois’ concerns about secondary liability are less relevant in this context and that FICA is unusual in that the determination of “wages” under that statute will have a unique impact on the employee, ultimately determining the level of his social security benefits. These differences do not render the concern for simplicity and ease of administration expressed in Central Illinois nugatory in the FICA/FUTA context. Indeed, in this case the Government seeks to hold the employer liable for an amount that is hotly contested and that is simply not amenable to precise calculation before the fact. Even assuming, moreover, that these distinctions are of some significance in the abstract, they do not of themselves support the Government’s attempt to differentiate the general use of the term “wages” in the two contexts. The seemingly inconsequential differences in statutory language belie an assertion that Congress intended to adopt broad policy differences in establishing the various withholding programs. Since there has been no showing by the Government to the contrary, we conclude that Congress’ use of the term “wages” in both contexts reflects an intent that the term be construed for FICA and FUTA purposes congruently with the manner Central Illinois prescribes for the income tax provisions. FICA and FUTA Regulations Inadequate to Support Assessments Our conclusion regarding the congruent use of the term “wages” does not necessarily imply that the term serves an identical purpose in all three statutes. It is conceivable that the Internal Revenue Service through its regulations could pinpoint any differences that Congress intended for the various withholding provisions. Such regulations, though subject to judicial scrutiny for consistency with the principles discussed above, would be entitled to some deference from this Court. In addition, they would, by placing the employer on notice, remove part of the objection posed above by the need for simplicity and certainty in the administration of the tax withholding laws. The Government contends that this case in fact falls within this hypothetical mold. Thus notwithstanding its concession that the regulations and rulings under the income withholding tax do not bring the asserted value of automobile use within the scope of that provision (Br. 4, 9), the Government insists that the following FICA regulation clearly brings this value within the withholding provisions of that statute: “Generally the medium in which remuneration is paid is * * * immaterial. It may be paid in cash or in something other than cash, as for example, goods, lodging, food, or clothing. * * * ” (26 C.F.R. § 31.3121(a)-l(e).) A similar regulation applies in the FUTA context. See 26 C.F.R. § 31.3306(b)-l(e). Laying aside the question whether such a regulation, which adds little to the statutory language, might otherwise be adequate to overcome our finding of general congruency among the various provisions, a greater difficulty arises in that a virtually identical regulation exists for the income tax withholding statute. That regulation states “Generally the medium in which remuneration is paid is also immaterial. It may be paid in cash or something other than cash, as for example, stocks, bonds, or other forms of property. * * * ” (26 C.F.R. § 31.3401(a)-l(4).) Since the income tax withholding regulation admittedly does not make any unreim-bursed value of personal automobile use into “wages,” obviously the FICA and FUTA regulations also do not do so. It is presumably in this vein that the Court of Claims expressly held in Hotel Conquistador that the free meals at issue were not wages for FICA and FUTA purposes in the absence of more specific regulations. 597 F.2d at 1354. In addition, the above regulations under all three statutes state that if services are paid for in a non-cash medium, the “fair value” or “fair market value” of the item is the amount to be included as “wages.” But in light of the consistent denials of plaintiffs here that there was any unreimbursed value at all in the automobile program, the regulations failed to provide any notice regarding the Government’s method of computing these taxes (Rec. Item 8, p. 2; see also note 4 supra). In the absence of a much more specific regulation, the reasoning of Central Illinois regarding the concept of “wages” directly applies and calls for rejection of these FICA and FUTA taxes. See 435 U.S. at 32 and n. 12, 98 S.Ct. at 923 and n. 12, see also Crown v. Commissioner, 585 F.2d 234, 241 (7th Cir. 1978). In short, the present FICA and FUTA regulations simply do not support the Commissioner’s assessments. A Remand Is Unnecessary The Government suggests (Br. 25-26) that at the very least it is entitled to a remand of this case for further findings to determine whether the following “facilities and privileges” exception contained in the FICA and FUTA regulations might apply: “Ordinarily, facilities or privileges (such as entertainment, medical services, or so-called ‘courtesy’ discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as remuneration for employment if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as a means of promoting the health, good will, contentment, or efficiencies of his employees. * * *(26 C.F.R. §§ 31.-3121(a)-l(f) and 31.3306(b)-l(f).) The discussion above, however, indicates our belief that as a general matter “wages” under FICA and FUTA is to be construed congruently with “wages” under the income tax withholding provisions and that in this case no regulations exist placing the alleged compensation, which is admittedly not “wages” for income tax withholding purposes, within any gap that might exist between the two contexts. As such, like the district court we have found that the asserted unreimbursed value here simply is not “wages” and thus the availability of the exception to that concept in the FICA and FUTA context is of no concern. The judgment of the district court is affirmed. . The FICA taxes were imposed under 26 U.S.C. §§ 3101-3126; the FUTA taxes under 26 U.S.C. §§ 3301-3311; and the regular withholding taxes under 26 U.S.C. §§ 3401-3404. The total amount of tax liability was $58,930.24 for the Wisconsin plaintiff, $10,060.60 for the Pennsylvania subsidiary, and $967.19 for Alpha. For the reasons discussed in the text infra, the contested liability now amounts to only $9,580.57. . Apart from one officer of Alpha, none of the employees provided with automobiles was an officer or significant shareholder of the companies. . In accordance with the recommendations of the firm that leased the automobiles, plaintiffs charged the employees for “running expenses,” comprising the cost of gasoline, oil, maintenance repairs and tires. Plaintiffs computed these expenses as 3l/z<t per personal mile throughout 1969 and an average of 33/4<t per personal mile for 1970. . Accordingly, for 1969 the Government found that employees of the Wisconsin plaintiff received additional wages on account of personal use of the automobiles of 7‘/2<t: per mile, employees of the Pennsylvania plaintiff 53AC per mile, and employees of Alpha 7$ per mile. The respective figures for 1970 were 8$ per mile, 7l/z<i per mile, and 7c per mile. (Record Item 5, p. 3.) . It is noteworthy that in Royster the Government agreed “that wages has the same essential meaning under all the statutes here in question.” 479 F.2d at 390. . In Central Illinois and Hotel Conquistador by contrast the amounts at issue were undisputed and known to the employer beforehand.

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

Sheryl Z. WHITE, Plaintiff-Appellant, v. CITY OF SAN DIEGO, A.A. “Bud” Bigge, Ruben Dominguez, William G. Sage, R. W. King and Fred M. Conger, Defendants-Appellees. No. 77-1195. United States Court of Appeals, Ninth Circuit. Sept. 24, 1979. Sheridan Reed, Eckhardt, Reed & Reed, San Diego, Cal., argued, for plaintiff-appellant. John W. Witt, City Atty., San Diego, Cal., on brief, for defendants-appellees; Ted Bromfield, Deputy City Atty., San Diego, Cal., argued. Before TRASK and WALLACE, Circuit Judges, and SOLOMON, District Judge. Honorable Gus J. Solomon, United States District Judge, District of Oregon, sitting by designation. WALLACE, Circuit Judge: White appeals a district court ruling that the City of San Diego (the City) and certain named defendants did not discriminate against her on the basis of sex in her attempts at promotion to higher level accounting positions with the City. We affirm. I Although several factual issues are disputed, the basic sequence of events is clear. City accounting positions, ranked from highest to lowest, are principal accountant (a managerial position), senior accountant, accountant, and junior accountant. Promotion to accountant is automatic after passage of an examination; promotion to senior or principal accountant requires not only passage of an examination but an oral interview as well. To fill a vacancy, the appointing authority submits a “requisition” to hire or promote an employee to a specific position. The City’s hiring rules require that three potential employees have passed the required examination before the City may select one to fill the position. On occasion, this requires the City to provide an extra administration of the required examination if three “eligibles” are not currently certified for hiring or for promotion to the particular position. From 1967 to 1974, the City maintained a “Career Advancement” program pursuant to which the City could “fill” certain budgeted positions with personnel from lower levels. Pursuant to this program, the City could fill positions budgeted as accountant or senior accountant positions — but not those budgeted as principal accountant positions — by hiring persons at the junior accountant level. Thus, with the one exception, a person could be hired in a lower position than that budgeted. Those so hired could then be advanced to the budgeted position as they gained the requisite qualifications. This allowed the City great flexibility in its development of career personnel. The City hired White as a junior accountant pursuant to the Career Advancement program in 1969. In 1970 she was promoted to accountant. She became eligible for the position of senior accountant in November 1972. In May 1974, White passed the examination for principal accountant; in November of that year she was promoted to senior accountant. Between her 1972 eligibility and 1974 promotion, the City hired a number of junior accountants and in September 1973 made two promotions to senior accountant. In the first instance, a male, a female and White were certified and, after interviews, the male was selected. A second requisition was then issued and the other female was promoted. White filed a charge of employment discrimination with the Equal Employment Opportunity Commission and, after receiving the appropriate right .to sue letter, brought this action in 1974, claiming defendants violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. She sought back pay and other relief. The district court ruled in part that she had not made out a prima facie case of sex discrimination. On appeal she challenges that ruling, claiming that pursuant to either McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), she established the requisite prima facie case. II White first claims that she established a prima facie case of sex discrimination by satisfying the four elements set forth in McDonnell Douglas. There the Court held that a Title VII plaintiff may establish a prima facie case of discrimination by showing: “(i) that he belongs to a . . . minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). White argues that a position remained “open” because the City had budgeted, but did not fill, senior accountant positions. It is not clear that the district court ruled on this argument, but regardless of whether a position was open, other essential elements of McDonnell Douglas remain unsatisfied. White apparently claims that she was first rejected for a senior accountant position when she was not promoted under the first September 1973 requisition. She claims the City then continued to seek senior and junior accountants after her rejection, satisfying the last element of the McDonnell Douglas standard. Viewing the budgeted positions as “open,” White appears to argue that the second September requisition for senior accountant constituted the requisite search for applicants of White’s qualifications. But White states that she was rejected under this requisition as well. She does not state as part of her prima facie case theory that she was not considered for the senior accountant position under the second September requisition. Thus she presents no point at which the City considered others of her credentials but did not consider her; the applicants it continued to seek included White. We recognize, of course, that the Court has stated that the four-element McDonnell Douglas standard “was not intended to be an inflexible rule,” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), and that White need only show actions by the employer “from which one can infer, if such actions remained unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act.’ ” Id. at 576, 98 S.Ct. at 2949 (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Thus, a proper prima facie case identifies sex as the likely reason for the denial of a job opportunity. But we think the “rejection" element of the McDonnell Douglas test operates to identify the points at which consideration of the plaintiff ends so that if further applicants are sought from persons of plaintiff’s qualifications, such an action raises an inference of discrimination. In this case White has presented no point at which the City’s conduct could suggest a reason for the first “rejection,” for she contends neither that she was barred from consideration for promotion following that initial “rejection,” nor that she was not considered when others of her qualifications were. Simply put, considering the facts on which White relies to make out a prima facie showing of sex discrimination, we cannot say that as a matter of law she was ever “rejected” as a senior accountant for purposes of McDonnell Douglas Nor can the subsequent hiring of junior accountants satisfy McDonnell Douglas. It is undisputed that the qualifications for a junior accountant position, by definition, differ from those required for a senior accountant position. For this reason, such hirings cannot demonstrate that White was no longer under consideration for the position of senior accountant. Further, even if we were to assume they followed White’s “rejection,” these hirings do not meet the further McDonnell Douglas requirement that the City continue to seek applicants from “persons of complainant’s qualifications,” and thus provide no clue to the basis of that “rejection.” Thus, however we view the City’s subsequent junior accountant hirings, they cannot, on these facts, raise an inference of discrimination on the basis of sex. Ill We next examine White’s claims based on her statistical data. White offered data showing the rates at which the City hired or promoted men and women at the junior, senior, and principal accountant levels. Relying on Griggs v. Duke Power Co., supra, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, she argues that her statistical proof made out a prima facie showing that the oral interviews required for promotion to senior and principal accountant had a discriminatory impact on women. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). She argues that her statistics show hiring disparities at the junior accountant level and that this proof, coupled with a consistent pattern at higher levels, constitutes a prima facie showing that certain aspects of the Career Advancement program had a disparate impact on women. White also claims that her statistical showing is relevant under a modified McDonnell Douglas prima facie showing, relying on Pettit v. United States, 488 F.2d 1026, 1033, 203 Ct.Cl. 207 (1973). She argues that she may establish a prima facie case of disparate treatment under McDonnell Douglas by showing: “(i) that plaintiff belongs to a . minority, (ii) that he was qualified for promotion and might have reasonably expected selection for promotion under the defendant’s on-going competitive promotion system, (iii) that he was not promoted, and (iv) the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against members of the involved minority.” Id. White claims she showed discrimination in the junior accountant hiring; that certain aspects of the hiring process were highly discretionary; and that the persons responsible for discrimination in hiring at the junior accountant level were the same as those interviewing for the higher level positions. We need not decide whether we would accept the Pettit requirements, however, for the district court’s findings of fact defeat her claims. We first determine the appropriate standard of review. White argues that we may make a determination of her allegations of discrimination independent of the clearly erroneous standard, stating that her “principal claim is that the trial court did not properly apply the law to the undisputed facts in evidence.” But White claims that, in view of her statistical proof, the district court should have determined that she had made out a prima facie case of discrimination. Here the district court found that White’s statistics were in general unreliable and that the senior and principal accountant samples sizes were too small. We have said that the use of statistics “is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn.” United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir. 1971), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). The Supreme Court, too, has recognized that the usefulness of statistics “depends on all of the surrounding facts and circumstances.” Teamsters v. United States, supra, 431 U.S. at 340, 97 S.Ct. at 1857. See Hazelwood School Dist. v. United States, 433 U.S. 299, 312, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Those of White’s claims that concern the strength of her statistical proof require us to decide in the first instance whether the district court's factual assessment of the data was clearly erroneous. We conclude that it was not. We first examine the junior accountant data. Between 1967 and 1974, according to her figures, 5, or 11.6 percent, of those hired as junior accountants were women, although women made up 25 percent of the available applicants. Thirty-eight, or 88.4 percent, of those hired were men, although men made up 75 percent of the available applicants. This set of statistics, she claims, demonstrated a statistically significant relationship between sex and job selection. The City’s expert witness, Snapper, testified at trial that a .05 level of statistical significance indicates that the demonstrated relationship between the variables would occur in a random sample five times out of one hundred and is generally recognized as the point at which statisticians draw conclusions from statistical data. White maintains that the relationship between applicants available and applicants hired as junior accountants was statistically significant at less than the .01 level, thus well beyond the minimum .05 level of statistical significance. But Snapper also testified that the “available” group was “very nebulous,” and that he would not consider it meaningful. He testified that he thought it was impossible to determine why some individuals were deemed “not available,” and, as we read his testimony, indicated that some classified as “not available” had actually been hired. Testimony in the record does indicate that the relationship between sex and employment demonstrated by a comparison of those certified for hiring as junior accountants, rather than those “available,” and those selected for junior accountant was significant at less than the .05 level. But White’s own counsel elicited testimony from Snapper to the effect that the certified pool did not represent those ultimately interviewed for the junior accountant position and from expert witness Plag testimony that, given this circumstance, he would hypothetically use an “available” applicant pool. Thus, testimony in the record casts doubt'upon the usefulness of both the certified' and available applicant data pools. The district judge did not err in rejecting White’s junior accountant statistics as unreliable. Finally, we examine the senior and principal accountant statistics. This set showed that of the 15 persons hired between 1967 and 1974, one, or 6.7 percent, was a woman, while 93.3 percent were men, though women and men made up 17.9 percent and 82.1 percent, respectively, of the available applicants. The principal accountant set showed that for the same period, nine, or 100 percent, were men, though of the available applicants, one, or 4.5 percent, was a woman, while men made up 95.5 percent of the available applicants. The district court, citing Morita v. Southern Cal. Permanente Medical Group, 541 F.2d 217 (9th Cir. 1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765 (1977), thought the sample size of this group of figures too small to be meaningful. In Morita we said that “ ‘statistical evidence derived from an extremely small universe, as in the present case, has little predictive value and must be disregarded.’ ” Id. at 220 (quoting Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975)). Here the City selected one of five women for the position of senior accountant and rejected the only woman available for hire as a principal accountant; the total promoted to senior accountant was 15 out of 28 and the total promoted to principal accountant was nine out of 22. White does not challenge, by reference to expert testimony or other portions of the record, the district court’s judgment that the sample size was simply too small. The Supreme Court, too, has recognized that “[considerations such as small sample size may . . . detract from the value of [statistical] evidence,” Teamsters v. United States, supra, 431 U.S. at 339 n. 20, 97 S.Ct. at 1857 (1977) and this appears to have been a case in which such considerations were appropriate. Cf. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974) (where plaintiff claimed discrimination on basis of race in selection of 13-mem-ber panel, “the District Court’s concern for the smallness of the sample presented by the 13-member Panel was . . . well founded”). Thus, like the junior accountant statistics, the senior and principal accountant statistics do not require us to hold that the district judge erred in rejecting the statistical data. IV White claims that she was improperly denied discovery of information on the administration, grading, and design of the written examinations for all four accountant positions for a five-year period, and of the personnel file of one person promoted to principal accountant. In addition, she claims that the district court should not have issued a protective order relieving the City of answering her third set of interrogatories. We have said that the district judge “has wide latitude in controlling discovery, and its rulings will not be overturned in absence of a clear abuse of discretion.” Canadian Am. Oil Co. v. Union Oil Co., 577 F.2d 468, 473 (9th Cir. 1978) (per curiam), cert. denied, 439 U.S. 912, 99 S.Ct. 283, 58 L.Ed.2d 258 (1978). We see no abuse of discretion here. The City submitted an affidavit stating why the requested examination information was privileged; White does not challenge the claim of privilege in any way. Further, she has not told us why she wanted the individual personnel file, and has characterized information sought in the third set of interrogatories only as “vital.” Without more, there is no basis for disturbing these rulings, and we conclude that they did not constitute an abuse of discretion. AFFIRMED. . At oral argument White’s counsel told us that White’s position was subsequently eliminated and that she continues to work for the City as an analyst. . In view of our disposition, we do not reach White’s argument that the district court improperly dismissed her claims for compensatory and punitive damages from certain counts of her complaint. . White also claims that a requisition for a senior accountant issued in June 1972 but that no one was promoted to that position until September 1973. She contends that this senior accountant position was thus “open.” The district court found that the requisition was issued by mistake. Because White does not appear to argue that she was first rejected until the September 1973 promotion, we need not consider any earlier effects of this requisition. . We recognize that in Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), the Court appeared to indicate that a prima facie case had been made out by a plaintiff who had applied for a job and was ultimately offered it “long after” the application. Id. at 569, 98 S.Ct. 2943. Thus, it could be argued that he established a prima facie case even though he was apparently still later considered. Id. at 576, 98 S.Ct. 2943. But in the case before us, White continued to be considered when others of similar qualifications were considered; Furnco is silent on this point. Without further factual information in Furnco, we cannot tell whether, between the application and ultimate hiring, Furnco continued to consider that plaintiff, and we hesitate to construe the situation in Furnco as dispositive of White’s case. . The district judge stated in his findings of fact: “The court finds that based on the statistical data presented, the data was not of sufficient moment to be considered reliable by the experts. Expert testimony established that no valid conclusions could be predicated upon the data and the court so finds. . . . Thus considering the statistics produced by both sides, the court finds that the data does not support or establish an inference of discrimination based on sex.” In oral findings made from the bench and incorporated into the written findings of fact and conclusions of law, the district judge stated in part: “Essentially, all [but the junior accountant statistics] . . ., I would think, would be of such a small sampling that any realistic conclusion to be based on that, I think, would be inappropriate. I have in mind a recent case of the Ninth Circuit, Morita v. Southern Cal. Permanente Medical Group, [541 F.2d 217] . . . which had an excellent discussion dealing with statistical proof. Basically, by the only expert presented to me, the data that was prepared by both of the parties in this case was not of sufficient moment to be considered reliable by experts and that I could predicate any valid conclusions based upon the data that we had. So, in summary, think that the plaintiff has the burden here. That was not met.” . We do not reach White’s claim that it was error for the district judge to admit the City’s statistical data, compiled for time spans different from that White used. Further, because the testimony we have cited supports the district judge’s finding, we need not comment, pursuant to White’s Griggs claim, on whatever problems of relevance are raised by the fact that White was hired as a junior accountant.

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

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

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

OLD COLONY TRUST CO. et al. v. COMMISSIONER OF INTERNAL REVENUE. No. 3386. . Circuit Court of Appeals, First Circuit March 2, 1939. Alexander Lincoln, of Boston, Mass. (W. Sidney Felton, Noel Morss, and Herrick, Smith, Donald & Farley, all of Boston, Mass., on the brief), for Old Colony Trust Co. et al. Warren F. Wattles, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for Commissioner. Before BINGHAM and WILSON, Circuit Judges, and BREWSTER, District , J & ’ ’ Judge. BREWSTER, District Judge. This is-a petition for review of a de-cisión of the United States Board of Tax Appeals, determining a deficiency in the estate tax liability of the estate of which the petitioners are executors. The ques-txon is whether a sum of money paid to the beneficiaries pursuant to a policy issued by the Sun Life Assurance Company of Canada should be included in the gross estate of the decedent. The decedent, Everett Morss, died December 27, 1933. On August 27, 1928, the Assurance Company entered into a written contract with Morss. The contract, therein termed a “policy”, provided that in consideration of the payment of a single premium of $42,000 the company would pay to the decedent (therein called “the annuitant”) a yearly annuity of $1,400 during his lifetime, and would pay at his death to the beneficiaries named in the policy the greater of two amounts, — first, the principal sum of $40,000 together with a proportionate part of the annuity payment for the fractional period between the date of the last annuity payment and the date of death, or, second, a sum equal to the premium paid for the policy less the sum of all annuity payments which should have been made under it; all annuity payments, including the proportionate payment on the death of the annuitant, to be increased by such dividends as might be allotted by the company out of its surplus interest earnings. The beneficiaries were the decedent’s three children, and it was provided “that should any child have predeceased the annuitant, his or her share shall be paid to his or her legal wife or husband, if any, otherwise to the executors, administrators or assigns of the annuitant.” In lieu of payment in one sum of the amount payable at death, options were given for alternative methods of settlement by annuity or instalment payments. The age of the decedent was stated in the policy as sixty-three. The policy was stated to be issued in consideration of the representations and agreements contained in the written application therefor, and it was provided that if the age of the annuitant had been misstated, the amount payable should be such sum as the premium paid would have purchased according to the rate at the true age. The policy contained a provision permitting its surrender to the company at any time for an amount equal to the principal sum, and the company agreed that it would advance to the annuitant, upon proper assignment of the policy, any amount not exceeding the cash value of the policy. There was a provision also permitting the annuitant to change the beneficiaries. The contract was described as “Life Annuity Principal Sum Payable at Death — Single Premium — Annual Dividends.” After the death of the decedent, the Assurance Company in due course paid to his three children the sum of $40,994.20. Of this amount, $40,000 was the principal sum under the policy and $994.20 was accrued annuity. The petitioners, in their federal estate tax return, reported the receipt of said sum of $40,994.20 as insurance on the life of the decedent, payable to the named beneficiaries, and excluded the amount of $40,000 as “Insurance receivable by beneficiaries other than the estate not in excess of $40,000.” The Commissioner added to the value of the gross estate the amount of $40,-000, having concluded that the agreement under which the payment was made was not a policy of insurance but an annuity contract, and as such was taxable to the estate. The Board of Tax Appeals held that the Commissioner was correct in including that amount in the gross estate. It was stipulated between the parties in the proceedings before the Board that the following facts should be deemed to be true for the purposes of the appeal. The consideration paid by the decedent for the issue of the contract was allocated by the Sun Life Assurance Company of Canada on an actuarial basis, a portion of such consideration being treated as an amount paid for a life annuity during the life of the decedent and the other portion of such consideration as an amount paid as a single premium for a paid-up life insurance policy on the life of the decedent. Subject to only minor variations, the amounts so allocated accord with the published premium rates of the Sun Life Assurance Company of Canada for the issue of such life annuity and life insurance contracts respectively, issued in each instance to a male person of the age of the decedent. Contracts of the type issued by the Sun Life Assurance Company of Canada to the decedent, in August, 1928, were commonly written at that time by the Sun life Assurance Company of Canada and by numerous other insurance companies. An actuarial allocation of the consideration paid for the issue of such contracts is customarily made by the Sun Life Assurance Company of Canada and by other insurance companies writing similar contracts, the method of allocation employed and the results of such allocation being substantially as set forth above with respect to the allocation of the consideration paid under the contract of the decedent. The Commissioner reserved the right to object to these facts as being irrelevant and immaterial, and the Board apparently deemed them immaterial.' The statute upon which petitioner relies is section 302(g) of the Revenue Act of 1926, 26 U.S.C.A. § 411(g), which provides for the inclusion in a decedent’s gross estate of the excess over $40,000 of the amount receivable by all beneficiaries, other than decedent’s estate, “as insurance under policies taken out by the decedent upon his own life.” The case turns upon the question whether the contract described above was a contract of life insurance or an annuity or investment contract. The Board of Tax Appeals held that the contract made by the decedent was not a contract of life insurance. In its opinion it said: “This seems evident from reading the contract. Further, there is no evidence that decedent applied for life insurance or submitted to the usual physical examination. The company appears to have been unconcerned with the element of life expectancy or physical condition, even though decedent was 63 years of age at the time he made the contract. The single payment in the amount of $42,000 does not appear to have been a ‘premium’ for life insurance. It was not consideration given for an agreement- to indemnify against the loss of life nor does the amount of the payment appear to have been proportioned to any life insurance risk.” As the Board of Tax Appeals pointed out, the company agreed to pay “the annuitant” the amount of $1,400, annually, for life, to be increased by such dividends as may be allotted by the company out of its surplus interest earnings; to pay to the annuitant or his assigns $40,000, at any time upon surrender of the contract; to pay to the beneficiaries of the annuitant at least tlje principal sum of $40,000 upon proof of death of the annuitant. The amount of the annuity agreed to be paid is 3%% (three and one-half percent) of the principal amount. Thus it appears that the company guaranteed to the annuitant a return of 3^§% (three and one-third percent) on the total amount paid to the company and a return of at least the principal amount of $40,000 either to the annuitant or his assigns during his life, on surrender of the “policy”, or to his beneficiaries up-, on his death. The Board, in its opinion, added that: “The death of the annuitant operated to terminate the contract rather than cause an insurer’s obligation to become payable. The company had an obligation at all times to pay the principal sum set forth in the contract conditioned only on the surrender thereof. Death of the annuitant was not the sole contingency for payment of the principal sum.” We are of the opinion that the decision of the Board of Tax Appeals was correct. A contract of insurance is generally regarded as one whereby, for a stipulated consideration, a party undertakes to indemnify another against loss by a specified contingency or peril, called a “risk”. In the case of life insurance, the contingency is the death of the insured. The contract now under consideration does not present the essential requisites of life insurance. There is no undertaking by the company to indemnify anyone for a loss. The extent of its liability for the principal sum was not contingent upon the event of death. That event only determined the time when and the persons to whom the sum advanced was to be repaid. The petitioner argues that the company assumed a risk, but we have difficulty in discovering any risk which was dependent upon the duration of the life of the insured. To go to realities, we are confronted with a case where the decedent turned over to the company1 $42,000 and took the company’s agreement that it would return $40,000 at any time he or his assigns so requested, and in the meantime would pay to him an amount equal to 3%% (three and one-half percent) of that sum so long as the company retained it. It is true the company made the further agreement that, upon the decedent’s death the $40,000 was to be paid over to the beneficiaries. We do not think that such an undertaking involved the kind of risk which characterizes life insurance. It is the petitioner’s contention that the policy combines an annuity feature and a life insurance feature, and, so far as it provides for a payment of the principal sum on the death of the insured, it is a contract of life insurance. This contention is not sound because the obligations of the company were such that the investment feature predominates and gives character to the contract. In other jurisdictions, there is authority for the proposition that annuity and investment contracts are not life insurance contracts, even though provision is made for the payment to beneficiaries named. State, ex rel. Thornton v. Probate Court, 186 Minn. 351, 243 N.W. 389; In re Walsh, D.C., 19 F. Supp. 567; Moskowitz v. Davis, 6 Cir., 68 F.2d 818; Carroll v. Equitable Life Assurance Society of the United States, D. C, 9 F.Supp. 223. Moskowitz v. Davis, supra, was a case where a single premium had been paid for an agreement to pay a specified sum at a future date. If the policy-holder died before that date, the sum of the premiums paid was to be paid to his son. In the course of the opinion, the court said: “We think the contract simply represents an investment or pure endowment with a provision for return of premiums rather than life insurance.” [68 F.2d 819.] The mere fact that the company agreed to pay over to named beneficiaries the principal of $40,000 upon the annuitant’s death is not sufficient to justify giving to a purely investment contract the attributes of life insurance in the absence of the essential requisite of such insurance. We are not able to see resemblance between the policy' which is the subject of this controversy and policies before the court in Helvering v. Inter-Mountain Life Insurance Co., 294 U.S. 686, 55 S.Ct. 572, 79 L.Ed. 1227, and Helvering v. Illinois Life Insurance Co., 299 U.S. 88, 57 S.Ct. 63, 81 L.Ed. 56, but it may be noted that the court, in applying provisions of the income tax laws, drew a clear distinction between liability arising from death of the insured and liability which could not be attributed to life insurance risk. The petitioner has assigned as error the refusal of the Board of Tax Appeals to receive in evidence the facts stipulated to be true, as recited above. On the particular facts of this case, we agree that the question presented could well be determined with reference to the provisions of the contract without recourse to accounting or actuarial practices of the Sun Life Assurance Company or of any other company issuing similar policies. The order or decision 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. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.

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

ALLSTATE FINANCIAL CORPORATION, Plaintiff-Appellant, v. FINANCORP, INCORPORATED, Defendant-Appellee. No. 90-1840. United States Court of Appeals, Fourth Circuit. Argued March 6, 1991. Decided May 28, 1991. Michael Edward Levy, argued (Patrick H. Stiehm, on brief), Allstate Financial Corp., Arlington, Va., for plaintiff-appellant. James E. Carbine, argued (M. Albert Fig-inski and Donna C. Sanger, on brief), Weinberg and Green, Baltimore, Md., for defendant-appellee. Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation. ERVIN, Chief Judge: In March 1989, Allstate Financial Corporation (“Allstate") filed an amended complaint against Financorp, Incorporated (“Fi-nancorp’’) in the United States District Court for the District of Maryland. Allstate sought damages for unjust enrichment, conversion, and trespass to chattels allegedly suffered when Financorp negotiated two checks made payable to Kane Delivery Limited, d.b.a. Advance Disposal Service (“Kane”). Allstate asserted that it had superior rights to the checks as they represented proceeds of collateral in which Allstate had a prior perfected security interest. The parties conducted discovery in the case. Afterwards, on November 3, 1989, Allstate moved for summary judgment. Financorp moved for summary judgment three days later. The district court determined that a hearing was not necessary in order to rule on the summary judgment motions. On July 30, 1990, the district court entered an order granting summary judgment in favor of Financorp, denying Allstate’s motion. Allstate appealed from this order. On review, we find that the district court properly granted summary judgment in favor of Financorp. Therefore, we affirm. I Allstate is a Virginia corporation engaged in the business of purchasing commercial accounts receivable. Financorp is a Maryland corporation engaged in the business of making loans based upon accounts receivable. This suit arises out of the competing claims of Allstate and Finan-corp as to two checks which were received by Kane, a debtor of both Allstate and Financorp. Three contracts are involved in this suit. The first contract was between Allstate and Kane. Under this contract, Allstate advanced monies to Kane and financed, or purchased, Kane’s accounts receivable from Kane’s delivery business. This contract was conducted in two stages. The first was between August 1987 and February 1988. The second was between July 1, 1988 and October 27, 1988. Allstate advanced a total of $192,749.06 to Kane during those periods. Approximately $114,000 remains outstanding. Under this contract, Allstate received a security interest in Kane’s accounts receivable. At the time of the contract, Kane was located in Washington, D.C. Therefore, on September 23, 1987, Allstate filed a financing statement with the Recorder of Deeds of Washington, D.C. Kane subsequently moved to Maryland. Within four months of Kane’s move, Allstate filed a financing statement in Maryland to maintain its perfected security interest in the accounts receivable. The second contract was between Kane and Laidlaw Waste Systems, Inc. Under this contract, Kane became a subcontractor for Laidlaw. Laidlaw made all payments under this contract by check made payable to the order of Kane. The third contract was between Kane and Financorp. Under this contract, Finan-corp made loans to Kane and received an assignment of the Laidlaw accounts receivable in exchange. Financorp advanced to Kane a total of $301,279.45, and $157,636 remains unpaid. Prior to entering this contract with Kane, Financorp searched the Maryland UCC lien filings to ascertain whether there were any prior liens on the accounts receivable. The search revealed no such filing, as Allstate did not file in Maryland until after this search was conducted. Financorp did not search the Washington, D.C., UCC filings. Periodically, Laidlaw made payments by check to Kane. Then, pursuant to its contract with Financorp, Kane indorsed some of the checks to Financorp. Two of those checks are at issue in this case. They totalled $96,888.33. Financorp negotiated the checks and applied them to the amount due from Kane. Allstate claims that it had a superior right to those two checks because of its contract with Kane whereby it obtained a security interest in Kane’s accounts receivable. The district court found that Financorp had a right to the cheeks that was superior to Allstate’s because Financorp was a “holder in due course” as defined by the UCC. Under § 9-309 of the UCC, a holder in due course has priority over an earlier security interest, even if that prior interest was perfected. Therefore, the court determined that Financorp was entitled to summary judgment, and this appeal followed. II On appeal, we review summary judgments de novo. Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir.1990); Higgins v. E.I. Du Pont De Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir.1988). Therefore, we should determine whether summary judgment is appropriate in this case. See Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547 (5th Cir. 1987). Summary judgment is appropriate when there is no genuine dispute as to a material fact, and the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Miller, 906 F.2d at 973. On a motion for summary judgment, we must draw any inferences in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate where the record as a whole could not lead a reasonable trier of fact to find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). If the non-movant fails to make a sufficient showing on an element on which he has the ultimate burden of proof, summary judgment is appropriate because there is no genuine issue of material fact due to the complete failure of proof on an essential element of the non-movant’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Further, the party opposing a properly supported motion for summary judgment may not rest upon the mere allegations in his pleading but must set forth specific facts that show there is a genuine issue for trial. Rivanna Trawlers Unltd. v. Thompson Trawlers, 840 F.2d 236, 240 (4th Cir.1988). Ill Allstate first asserts that the district court erred in granting summary judgment to Financorp based on Financorp’s status as holder in due course. A holder in due course is defined by § 3-302 of the UCC as follows: (1) A holder in due course is a holder who takes the instrument (a) For value; and (b) In good faith; and (c) Without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person. Md. Commercial Code Ann. § 3-302 (1975). Allstate claims that Financorp cannot be a holder in due course because it had notice of Allstate’s claims and therefore did not meet the third prong of the definition. Allstate asserted that Financorp had notice for two reasons: (1) Financorp may have had actual knowledge of Allstate’s interest in the proceeds of Kane’s accounts receivable, and any question of knowledge is a disputed question of fact not proper for resolution on summary judgment; and (2) Financorp had constructive notice of Allstate’s claim to proceeds by virtue of Allstate’s filing in Washington, D.C. Both assertions are invalid. When Financorp moved for summary judgment, it attached a sworn affidavit of Wayne Thornton, vice-president of Finan-corp. Thornton was responsible for processing and collecting the accounts receivables financing agreement between Kane and Financorp. Thornton testified that he obtained a search of the Maryland UCC filings and found no evidence of any prior claims to Kane’s accounts receivable. He also testified that he had no knowledge of any prior claim to the two cheeks at issue in this case. In response to Financorp’s motion for summary judgment which was supported by this affidavit, Allstate provided no discovery documents to refute Financorp’s assertion that it had no knowledge of Allstate’s prior claims. Rule 56(e) of the Federal Rules of Civil Procedure provides that a party opposing a properly supported summary judgment motion may not rely on his allegations in his complaint, but must set forth specific facts showing there is a genuine issue for trial. See Rivanna Trawlers, 840 F.2d at 240; Pennsylvania Life Ins. Co. v. Bumbrey, 665 F.Supp. 1190, 1193 (E.D.Va.1987). Because Allstate offered no affidavits, depositions, or other discovery documents to support its contention that Financorp had actual knowledge of its prior claim, summary judgment on this issue was proper. Compare Chrysler Credit Corp. v. Burton, 599 F.Supp. 1313, 1319 (M.D.N.C.1984) (granting summary judgment on issue of whether party had notice) with Cram v. Sun Ins. Office, Ltd., 375 F.2d 670, 674 (4th Cir.1967) (holding that summary judgment on issue of intent was not appropriate when the contract at issue was ambiguous). Allstate’s claim that Financorp had constructive knowledge of its prior claims because of Allstate’s filing of its security interest fares no better. Section 9-309 of the UCC specifically refutes this argument; it provides in pertinent part: “Filing under this title [Article 9] does not constitute notice of the security interest to such holders or purchasers.” Md.Commercial Law Code Ann. § 9-309 (1975 & Supp.1986) (emphasis added). One noted UCC commentator has explained the purpose of § 9-309 as follows: Out of an excess of caution the drafters in the last sentence of 9-309 have told us that an Article Nine filing does not “constitute notice of the security interest to such holders or purchasers.” That is to say, filing is not constructive notice of a third party’s claim of title which would prohibit a subsequent taker from becoming a holder in due course.... J. White & R. Summers, Uniform Commercial Code § 20-5 (2d ed. 1980). Under the plain language of § 9-309, Allstate’s filing of its security interest did not constitute constructive notice of its claims to Financorp. See Citizens Valley Bank v. Pacific Materials Co., 263 Or. 557, 503 P.2d 491, 493 (1972). In another argument, Allstate asserts that Financorp cannot be a holder in due course because Financorp was already a junior lienholder. Allstate attempts to rewrite the definition of holder in due course and insert words into the definition which are plainly absent. This we cannot do. The definition of holder in due course does not say anything about status as a lienholder — senior, junior, or otherwise. Section 3-302 merely sets out requirements which, if met, entitle a party to certain protections of that status. See Md.Com-mereial Law Ann. § 3-302 (1975). As the foregoing discussions demonstrate, Allstate is unable to show that Fi-nancorp had any notice of Allstate’s prior claims in this appeal. In addition, a junior lienholder is not precluded from being a holder in due course. Therefore, Allstate’s attack on Financorp’s status as holder in due course fails. IV Allstate next attacks the district court’s determination that Financorp, as a holder in due course, had superior rights to a prior secured party. Section 3-305(1) of the UCC provides that a holder in due course takes an instrument “free from all claims to it on the part of any person.” Md.Commercial Law Code Ann. § 3-305(1) (1975). Thus, under Article 3, it appears that Financorp as a holder in due course took the two checks free of Allstate’s claims to them. Allstate claims that Article 3 is subject to Article 9, and that the priority scheme of Article 9 controls and gives Allstate priority as a prior secured party. The district court found that the controlling provision of the UCC in this case was § 9-309. We agree with the district court. Section 9-309 sets out the relative priority between Article 9 and Article 3 concerning the rights of a holder in due course and a secured party. J. White & R. Summers, Uniform Commercial Code § 25-18 (2d ed. 1980). Section 9-309 provides in pertinent part: Nothing in this title [Article 9] limits the rights of a holder in due course of a negotiable instrument (§ 3-302) or a holder to whom a negotiable document of title has been duly negotiated (§ 7-501) or a bona fide purchaser of a security (§ 8-302) and such holders or purchasers take priority over an earlier security interest even though perfected. Md.Commercial Law Code Ann. § 9-309 (1975 & Supp.1986). Few courts have dealt with the operation of § 9-309 under facts similar to those in the present case. However, one leading commentator has addressed a similar set of facts in an explanation of how § 9-309 operates. See J. White & R. Summers, Uniform Commercial Code § 25-18 (2d ed.1980). The commentator explained that a priority problem arises when a prior lender claims a proceeds (9-306) interest in negotiable instruments that arise on the sale of his collateral, and the debtor transfers the instrument to a holder in due course. By virtue of 9-309 and Article Three, the holder in due course will be victorious in such a case. Id. One of the few courts to address the issue involved here was the Texas Court of Civil Appeals in Dallas Bank & Trust Co. v. Frigiking, Inc., Div. of Smith Jones, Inc., 692 S.W.2d 163 (Tex.Ct.App.1985). There, Dallas Bank and Frigiking were secured parties regarding inventory and proceeds, although Frigiking’s security interest was perfected first. Id. at 164. Dallas Bank asserted holder in due course status and claimed that its right was superior to Frigiking’s prior perfected security interest in the proceeds of inventory. The trial court determined that Dallas Bank was not a holder in due course. Id. at 166. The court of appeals reversed that determination, holding that Dallas Bank met the definition of a holder in due course and was entitled to the rights of that status. Id. Therefore, the court of appeals held that “Dallas Bank’s status as holder in due course gave it priority over Frigiking’s pri- or security interest_” Id. at 167. The Court of Appeals of Illinois also grappled with the issue of priority involving holder in due course status in Farns Associates, Inc. v. South Side Bank, 93 Ill.App.3d 766, 49 Ill.Dec. 128, 417 N.E.2d 818 (1981). There, Farns claimed priority to checks negotiated by South Side Bank because of its prior perfected interest in cash proceeds. The Bank had a security interest in accounts receivable which was perfected later than the security interest of Farns. The Bank conducted a search of the record but failed to find Farns’ filing. Id. 49 Ill.Dec. at 130, 417 N.E.2d at 820. The bank claimed priority to the checks based on its alleged status as holder in due course. The court of appeals determined that the Bank was not a holder in due course because the checks had been illegally endorsed. Id. 49 Ill.Dec. at 133, 417 N.E.2d at 823. As a result, the court found that Farns had priority over the checks. However, the court noted that if the Bank had been a holder in due course, its interest would have been superior: Id. 49 Ill.Dec. at 133, 417 N.E.2d at 823 (citations omitted). The Bank’s final contention is, even assuming Farns has a prior perfected security interest in the proceeds, the Bank remains entitled to the proceeds because it is a holder in due course of the negotiable instruments received. If the Bank qualifies as a holder in due course, the Code would permit it to keep the proceeds free of Farns’ security interest. Neither of the above two cases focus on the fact that the party claiming holder in due course status was also a junior lien-holder or junior secured party. Rather, the emphasis is on whether the party meets the definition of holder in due course. If so, he gets priority over prior secured parties; if not, he loses. We agree with the reasoning of Dallas Bank and Farns. Under the plain language of § 9-309, Financorp had priority over the checks at issue in this case because of its status as holder in due course. As a result, summary judgment in favor of Financorp was proper because as a matter of law, Financorp had priority over the checks at issue in this case. AFFIRMED. . In fact, there was no filing at that time. Under § 9-103, a secured party whose security interest was already perfected in another state has four months from the time the property is brought into Maryland to file in Maryland. If the secured party does file in Maryland within the four month period, the interest is continuously perfected. Md.Commercial Law Code Ann. § 9-103 (1975). Under the present facts, Allstate did file in Maryland within the four month period, but the filing occurred after Fi-nancorp entered its contract with Kane and conducted the record search. . Fed.R.Civ.P. 56(e) provides: Supporting and opposing affidavits shall be made on personal knowledge, set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. . The Official Comment to § 3-103 states: "In the case of a negotiable instrument which is subject to ... Title 9 because it is used as collateral, the provisions of this Title continue to be applicable except insofar as there may be conflicting provisions in the ... Secured Transactions Title.” Md.Commercial Law Code Ann. § 3-103 commentary (1975).

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

NATIONAL LABOR RELATIONS BOARD v. KENTUCKY RIVER COMMUNITY CARE, INC., et al. No. 99-1815. Argued February 21, 2001 Decided May 29, 2001 Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were former Solicitor General Waxman, Matthew D. Roberts, Leonard R. Page, John H. Ferguson, Norton J. Come, and John Emad Arbab. Thomas J. Schulz, Jonathan P. Hiatt, James B. Coppess, and Laurence Gold filed briefs for Kentucky State District Council of Carpenters as respondent under this Court’s Rule 12.6 in support of petitioner. Michael W. Hawkins argued the cause for respondent Kentucky River Community Care, Inc. With him on the brief were Louise S. Brock and Cheryl E. Bruner. Briefs of amici curiae urging reversal were filed for the American Nurses Association by Barbara J. Sapin and Woody N. Peterson; and for the Service Employees International Union et al. by Judith A Scott, Diana 0. Ceresi, Robert E. Funk, Jr., David J. Strom, Jack Dempsey, and Larry Weinberg. Briefs of amici curiae urging affirmance were filed for the American Health Care Association by Thomas V. Walsh and Thomas P. McDonough; and for Human Resource Management et al. by G. Roger King. Justice Scalia delivered the opinion of the Court. Under the National Labor Relations Act, employees are deemed to be “supervisors” and thereby excluded from the protections of the Act if, inter alia, they exercise “independent judgment” in “responsibly . . . direet[ing]” other employees “in the interest of the employer.” 29 U. S. C. §152(11). This ease presents two questions: which party in an unfair-labor-practiee proceeding bears the burden of proving or disproving an employee’s supervisory status; and whether judgment is not “independent judgment” to the extent that it is informed by professional or technical training or experience. I In Pippa Passes, Kentucky, respondent Kentucky River Community Care, Inc., operates a care facility for residents who suffer from mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employs approximately 110 professional and nonprofessional employees in addition to roughly a dozen coneededly managerial or supervisory employees. In 1997, the Kentucky State District Council of Carpenters (a labor union that is co-respondent here, supporting petitioner) petitioned the National Labor Relations Board to represent a single unit of all 110 potentially eligible employees at Caney Creek. See National Labor Relations Act (Act) §9(c), 49 Stat. 453, 29 U. S. C. § 159(c). At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were “supervisors” under §2(11) of the Act, 29 U. S. C. §152(11), and therefore excluded from the class of “employees” subject to the Act’s protection and includable in the bargaining unit. See §2(3), 29 U.S.C. §152(3). The Board’s Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see § 3(b), 29 U. S. C. § 153(b); 29 CFR §101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See § 9(c)(1), 29 U. S. C. § 159(c)(1). The Board denied respondent’s request for review of the Regional Director’s decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees. Because direct judicial review of representation determinations is unavailable, AFL v. NLRB, 308 U.S. 401, 409-411 (1940), respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§ 8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§ 158(a)(1), (5). The Board granted summary judgment to the General Counsel pursuant to regulations providing that, absent newly developed evidence, the propriety of a bargaining unit may not be relitigated in an unfair labor practice hearing predicated on a challenge to the representation determination. 29 CFR § 102.67(f) (2000); see Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139-141 (1971) (approving that practice); Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 161-162 (1941) (same). Respondent petitioned for review of the Board’s decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned. The Sixth Circuit granted respondent’s petition as it applied to the nurses and refused to enforce the bargaining order. It held that the Board had erred in placing the burden of proving supervisory status on respondent rather than on its General Counsel, and it rejected the Board’s interpretation of “independent judgment,” explaining that the Board had erred by classifying “the practice of a nurse supervising a nurse’s aide in administering patient care” as “‘routine’ [simply] because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with ‘management.’ ” 193 F. 3d 444, 453 (1999). We granted the Board’s petition for a writ of certiorari. 530 U. S. 1304 (2000). II The Act expressly defines the term “supervisor” in §2(11), which provides: “The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” 29 U. S. C. § 152(11). The Act does not, however, expressly allocate the burden of proving or disproving a challenged employee’s supervisory status. The Board therefore has filled the statutory gap with the consistent rule that the burden is borne by the party claiming that the employee is a supervisor. For example, when the General Counsel seeks to attribute the conduct of certain employees to the employer by virtue of their supervisory status, this rule dictates that he bear the burden of proving supervisory status. See, e. g., Masterform Tool Co., 327 N. L. R. B. 1071, 1071-1072 (1999). Or, when a union challenges certain ballots cast in a representation election on the basis that they were cast by supervisors, the union bears the burden. See, e. g., Panaro and Grimes, 321 N. L. R. B. 811, 812 (1996). The Board argues that the Court of Appeals for the Sixth Circuit erred in not deferring to its resolution of the statutory ambiguity, and we agree. The Board’s rule is supported by “the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.” FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). The Act’s definition of “employee,” §2(3), 29 U. S. C. §152(3), “reiterate[s] the breadth of the ordinary dictionary definition” of that term, so that it includes “any 'person who works for another in return for financial or other compensation.’” NLRB v. Town & Country Elec., Inc., 516 U.S. 85,90 (1995) (quoting American Heritage Dictionary 604 (3d ed. 1992)). Supervisors would fall within the class of employees, were they not expressly excepted from it. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984); cf. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). The burden of proving the applicability of the supervisory exception, under Morton Salt, should thus fall on the party asserting it. In addition, it is easier to prove an employee’s authority to exercise 1 of the 12 listed supervisory functions than to disprove an employee’s authority to exercise any of those functions, and practicality therefore favors placing the burden on the party asserting supervisory status. We find that the Board’s rule for allocating the burden of proof is reásonable and consistent with the Act, and we therefore defer to it. NLRB v. Transportation Management Corp., 462 U. S. 393,402-403 (1983). Applying its rule to this ease, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the §9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the § 8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, “the General Counsel carries the burden of proving the elements of an unfair labor practice,” id., at 401, which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U. S. C. § 556(d); Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-278 (1994) (rejecting statement to contrary in NLRB v. Transportation Management Corp., supra, at 404, n. 7). Supervisory status, however, is not an element of the Board’s claim in this setting. The Board must prove that the employer refused to bargain with the representative of a unit of “employees,” § 8(a)(5), 29 U. S. C. § 158(a)(5), that was properly certified; the unit was not properly certified (as the respondent contends) only if the respondent successfully demonstrated, at the certification stage, that some employees in the unit were also supervisors. In the unfair labor practice proceeding, therefore, the burden remains on the employer to establish the excepted status of these nurses. Insofar as the Court of Appeals held otherwise, it erred. It remains to consider whether the court’s other holding that is challenged here suffices to sustain its judgment. í — 1 t The text of §2(11) of the Act that we quoted above, 29 U. S. C. § 152(11), sets forth a three-part test for deter-milling supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their “exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment,” and (3) their authority is held “in the interest of the employer.” NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573-574 (1994). The only basis asserted by the Board, before the Court of Appeals and here, for rejecting respondent’s proof of supervisory status with respect to directing patient care was the Board’s interpretation of the second part of the test — to wit, that employees do not use “independent judgment” when they exercise “ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.” Brief for Petitioner 11. The Court of Appeals rejected that interpretation, and so do we. Two aspects of the Board’s interpretation are reasonable, and hence controlling on this Court, see NLRB v. Town & Country Elec., Inc., supra, at 89-90; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). First, it is certainly true that the statutory term “independent judgment” is ambiguous with respect to the degree of discretion required for supervisory status. See NLRB v. Health Care & Retirement Corp. of America, supra, at 579. Many nominally supervisory functions may be performed without the “exereis[e of] such a degree of... judgment or discretion ... as would warrant a finding” of supervisory status under the Act. Weyerhaeuser Timber Co., 85 N. L. R. B. 1170, 1173 (1949). It falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies. Second, as reflected in the Board’s phrase “in accordance with employer-speeified standards,” it is also undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer. So, for example, in Chevron Shipping Co., 317 N. L. R. B. 379, 381 (1995), the Board concluded that “although the contested licensed officers are imbued with a great deal of responsibility, their use of independent judgment and discretion is circumscribed by the master’s standing orders, and the Operating Regulations, which require the watch officer to contact a superior officer when anything unusual occurs or when problems occur.” The Board, however, argues further that the judgment even of employees who are permitted by their employer to exercise a sufficient degree of discretion is not “independent judgment” if it is a particular kind of judgment, namely, “ordinary professional or technical judgment in directing less-skilled employees to deliver services.” Brief for Petitioner 11. The first five words of this interpretation insert a startling categorical exclusion into statutory text that does not suggest its existence. The text, by focusing on the “clerical” or “routine” (as opposed to “independent”) nature of the judgment, introduces the question of degree of judgment that we have agreed falls -within the reasonable discretion of the Board to resolve. But the Board’s categorical exclusion turns on factors that have nothing to do with the degree of discretion an employee exercises. Cf. Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 481 (2001) (“[T]he agency’s interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear”). Let the judgment be significant and only loosely constrained by the employer; if it is “professional or technical” it will nonetheless not be independent. The breadth of this exclusion is made all the more startling by virtue of the Board’s extension of it to judgment based on greater “experience” as well as formal training. See Reply Brief for Petitioner 3 (“professional or technical skill or experience”). What’supervisory judgment worth exercising, one must wonder, does not rest on “professional or technical skill or experience”? If the Board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate “supervisors” from the Act. Cf. NLRB v. Yeshiva Univ., 444 U.S. 672, 687 (1980) (Excluding “decisions . . . based on . . . professional expertise” would risk “the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities”). As it happens, though, only one class of supervisors would be eliminated in practice, because the Board limits its categorical exclusion with a qualifier: Only professional judgment that is applied “in directing less-skilled employees to deliver services” is excluded from the statutory category of “independent judgment.” Brief for Petitioner 11. This second rule is no less striking than the first, and is directly contrary to the text of the statute. Every supervisory function listed by the Act is accompanied by the statutory requirement that its exercise “requir[e] the use of independent judgment” before supervisory status will obtain, §152(11), but the Board would apply its restriction upon “independent judgment” to just 1 of the 12 listed functions: “responsibly to direct.” There is no apparent textual justification for this asymmetrical limitation, and the Board has offered none. Surely no conceptual justification can be found in the proposition that supervisors exercise professional, technical, or experienced judgment only when they direct other employees. Decisions “to hire,... suspend, lay off, recall, promote, discharge, ... or discipline” other employees, ibid., must often depend upon that same judgment, which enables assessment of the employee’s proficiency in performing his job. See NLRB v. Yeshiva Univ., supra, at 686 (“[M]ost professionals in managerial positions continue to draw on their special skills and training”). Yet in no opinion that we were able to discover has the Board held that a supervisor’s judgment in hiring, disciplining, or promoting another employee ceased to be “independent judgment” because it depended upon the supervisor’s professional or technical training or experience. When an employee exercises one of these functions with judgment that possesses a sufficient degree of independence, the Board invariably finds supervisory status. See, e. g., Trustees of Noble Hospital, 218 N. L. R. B. 1441, 1442 (1975). The Board’s refusal to apply its limiting interpretation of “independent judgment” to any supervisory function other than responsibly directing other employees is particularly troubling because just seven years ago we rejected the Board’s interpretation of part three of the supervisory test that similarly was applied only to the same supervisory function. See NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571 (1994). In Health Care, the Board argued that nurses did not exercise their authority “in the interest of the employer,” as §152(11) requires, when their “independent judgment [was] exercised incidental to professional or technical judgment” instead of for “disciplinary or other matters, i. e., in addition to treatment of patients.” Northcrest Nursing Home, 313 N. L. R. B. 491, 505 (1993). It did not escape our notice that the target of this analysis was the supervisory function of responsible direction. “Under §2(11),” we noted, “an employee who in the course of employment uses independent judgment to engage in 1 of the 12 listed activities, including responsible direction of other employees, is a supervisor. Under the Board’s test, however, a nurse who in the course of employment uses independent judgment to engage in responsible direction of other employees is not a supervisor.” 511 U.S., at 578-579. We therefore rejected the Board’s analysis as “inconsistent with ... the statutory language,” because it “rea[d] the responsible direction portion of §2(11) out of the statute in nurse cases.” Id., at 579-580. It is impossible to avoid the conclusion that the Board’s interpretation of “independent judgment,” applied to nurses for the first time after our decision in Health Care, has precisely the same object. This interpretation of “independent judgment” is no less strained than the interpretation of “in the interest of the employer” that it has succeeded. Cf. Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374 (1998) (an agency that announces one principle but applies another is not acting rationally under the Act). The Board contends, however, that Congress incorporated the Board’s categorical restrictions on “independent judgment” when it first added the term “supervisor” to the Act in 1947. We think history shows the opposite. The Act as originally passed by Congress in 1935 did not mention supervisors directly. It extended to “employees” the “right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing . . . .” Act of July 5, 1935, § 7, 49 Stat. 452, and it defined “employee” expansively (if circularly) to “include any employee,” §2(3). We therefore held that supervisors were protected by the Act. Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947). Congress in response added to the Act the exemption we had found lacking. The Labor Management Relations Act, 1947 (Taft-Hartley Act) expressly excluded “supervisors” from the definition of “employees” and thereby from the protections of the Act. § 2(3), 61 Stat. 137, as amended, 29 U. S. C. § 152(3) (“The term ‘employee’... shall not include ... any individual employed as a supervisor”); Taft-Hartley Act § 14(a), as amended, 29 U. S. C. § 164(a) (“[N]o employer [covered by the Act] shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining”). Well before the Taft-Hartley Act added the term “supervisor” to the Act, however, the Board had already been defining it, because while the Board agreed that supervisors were protected by the 1935 Act, it also determined that they should not be placed in the same bargaining unit as the employees they oversaw. To distinguish the two groups, the Board defined “supervisors” as employees who “supervise or direct the work of [other] employees . . . , and who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of such employees.” Douglas Aircraft Co., 50 N. L. R. B. 784, 787 (1943) (emphasis added). The “and” bears emphasis because it was a true conjunctive: The Board consistently held that employees whose only supervisory function was directing the work of other employees were not “supervisors” within its test. For example, in Bunting Brass & Bronze Co., 58 N. L. R. B. 618, 620 (1944), the Board wrote: “We are of the opinion that, while linemen do direct the work of [other] employees, they do not exercise substantial supervisory authority within the usual meaning of that term.” See also, e. g., Duval Texas Sulphur Co., 53 N. L. R. B. 1387, 1390-1391 (1943) (“As to the chief electrician, motor mechanic, plant engineers, and drillers,... [t)he fact that they work with helpers, and perforce direct and guide the work of their helpers, does not, of itself, elevate them to such supervisory rank that they must be excluded from the broad production and maintenance unit”). When the Taft-Hartley Act added the term “supervisor” to the Act in 1947, it largely borrowed the Board’s definition of the term, with one notable exception: Whereas the Board required a supervisor to direct the work of other employees and perform another listed function, the Act permitted direction alone to suffice. “The term ‘supervisor’ means any individual having authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances.” Taft-Hartley Act §2(11), as amended, 29 U. S. C. § 152(11) (emphasis added). Moreover, the Act assuredly did not incorporate the Board’s current interpretation of the term “independent judgment” as applied to the function of responsible direction, since the Board had not yet developed that interpretation. It had had no reason to do so, because it had limited the category of supervisors more directly, by requiring functions in addition to responsible direction. It is the Act’s alteration of precisely that aspect of the Board’s jurisprudence that has pushed the Board into a running struggle to limit the impact of “responsibly to direct” on the number of employees qualifying for supervisory status — presumably driven by the policy concern that otherwise the proper balance of labor-management power will be disrupted. It is upon that policy concern that the Board ultimately rests its defense of its interpretation of “independent judgment.” In arguments that parallel those expressed by the dissent in Health Care, see 511 U.S., at 588-590 (Ginsburg, J., dissenting), and which are adopted by Justice Stevens in this ease, see post, at 726-727, the Board contends that its interpretation is necessary to preserve the inclusion of “professional employees” within the coverage of the Act. See §2(12), 29 U. S. C. § 152(12). Professional employees by definition engage in work “involving the consistent exercise of discretion and judgment.” § 152(12)(a)(ii). Therefore, the Board argues (enlisting dictum from our decision in NLRB v. Yeshiva Univ., 444 U.S., at 690, and n. 30, that was rejected in Health Care, see 511 U.S., at 581-582), if judgment of that sort makes one a supervisor under § 152(11), then Congress’s intent to include professionals in the Act will be frustrated, because “many professional employees (such as lawyers, doctors, and nurses) customarily give judgment-based direction to the less-skilled employees with whom they work,” Brief for Petitioner 33. The problem with the argument is not the soundness of its labor policy (the Board is entitled to judge that without our constant second-guessing, see, e. g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990)). It is that the policy cannot be given effect through this statutory text. See Health Care, supra, at 581 (“[Tjhere may be ‘some tension between the Act’s exclusion of [supervisory and] managerial employees and its inclusion of professionals,’ but we find no authority for ‘suggesting that that tension can be resolved’ by distorting the statutory language in the manner proposed by the Board”) (quoting NLRB v. Yeshiva Univ., supra, at 686). Perhaps the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others’ performance of discrete tasks from employees who direct other employees, as § 152(11) requires. Certain of the Board’s decisions appear to have drawn that distinction in the past, see, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996). We have no occasion to consider it here, however, because the Board has carefully insisted that the proper interpretation of “responsibly to direct” is not at issue in this case, see Brief for Petitioner 21-22, n. 9; Reply Brief for Petitioner 7-8, n. 6. What is at issue is the Board’s contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, “independent judgment,” that naturally includes them. And further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees. 511 U.S., at 581. We therefore find the Board’s interpretation unlawful. See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S., at 364 (“Courts must defer to the requirements imposed by the Board if they are .‘rational and consistent with the Act,’ and if the Board’s ‘explication is not inadequate, irrational or arbitrary”’ (citations omitted)). * * * We may not enforce the Board’s order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U.S. 267, 289-290 (1974); SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943), and, as we noted above, supra, at 713, the Board has not asked us to do so. Hence, the Board’s error in interpreting “independent judgment” precludes us from enforcing its order. Our decision in Health Care, where the Board similarly had not asserted that its decision was correct on grounds apart from the one we rejected, see 511 U.S., at 584, simply affirmed the judgment of the Court of Appeals denying enforcement. Since that same condition applies here, see Brief for Petitioner 14, 42, and since neither party has suggested that Health Care's method for determining the propriety of a remand should not apply here, we take the same course. “Our conclusion that the Court of Appeals was correct to find the Board’s test inconsistent with the statute ... suffices to resolve the case.” Health Care, supra, at 584. The judgment of the Court of Appeals is affirmed. It is so ordered. The Board in its reply brief in this Court steps back from this interpretation and argues that it has only drawn distinctions between degrees of authority. Reply Brief for Petitioner 3. But the opinions of the Board that developed its current interpretation of “independent judgment” clearly draw a categorical distinction. See, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996) (“Section 2(11) supervisory authority does not include the authority of an employee to direct another to perform discrete tasks stemming from the directing employee’s experience, skills, training, or position”). It is those opinions that were cited in the Regional Director’s opinion resolving the representation dispute, see App. to Pet. for Cert. 52a-53a, which was accepted without further review by the Board and was unreviewable in the unfair labor practice proceeding. “We do not, of course, substitute counsel’s post hoe rationale for the reasoning supplied by the Board itself” NLRB v. Yeshiva Univ., 444 U.S. 672, 685, n. 22 (1980) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Justice Stevens argues in this ease, see post, at 725-726 (opinion concurring in part and dissenting in part), as the Board argued in NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 579 (1994), that the strain is eased by the ambiguity of a different term in the statute, “responsibly to direct.” That argument is no more persuasive now than when we rejected it in Health Care: “(A]mbiguity in one portion of a statute does not give the Board license to distort other provisions of the statute,” ibid. Our decision in Health Care cannot be distinguished, as Justice Stevens suggests, see post, at 729, n. 10, on the ground that there we found that the Court of Appeals had not erred in any respect. The basis for remand to an agency is the agency’s error on a point of law, not the reviewing court's. (That the reviewing court erred is irrelevant in light of "the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct ‘although the lower court relied upon a wrong ground or gave a wrong reason,”' SEC v. Chenery Corp., 318 U.S. 80, 88 (1943) (quoting Helvering v. Gowran, 302 U.S. 238, 245 (1937)).) And in Health Care, as here, the Board erred in interpreting the test for supervisory status.

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

What is the issue of the decision?

UNITED STATES v. HENNING et al. No. 10. Argued April 1, 1952. Reargued October 14, 1952. Decided November 17, 1952. Morton Lijtin argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Samuel D. Slade. Richard H. Lee argued the cause for Kennedy, Administrator, respondent. With him on the brief was Arthur V. Getchell. Mr. Justice Clark delivered the opinion of the Court. Conflicting claims to the proceeds of a policy of National Service Life Insurance frame the controversy before us. Disposition of the cause depends on our interpretation of the National Service Life Insurance Act of 1940, as amended, 38 U. S. C. § 801 et seq., which in pertinent part provides: § 602 (g). “The insurance shall be payable only to a widow, widower, child . . ., parent, brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided . . . § 601(f). “The terms 'parent’, 'father’, and ‘mother’ include a father, mother, father through adoption, mother through adoption [and] persons who have stood in loco parentis to a member of the military or naval forces at any time prior to entry into active service for a period of not less than one year . . . .” § 602 (i). “If no beneficiary is designated by the insured or if the designated beneficiary does not survive the insured, the beneficiary shall be determined in accordance with the order specified in subsection (h) (3) of this section and the insurance shall be payable in equal monthly installments in accordance with subsection (h) . . . . The right of any beneficiary to payment of any installments shall be conditioned upon his or her being alive to receive such payments. No person shall have a vested right to any installment or installments of any such insurance and any installments not paid to a beneficiary during such beneficiary’s lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority, as provided in subsection (h) . . . .” § 602 (h)(3). “Any installments certain of insurance remaining unpaid at the death of any beneficiary shall be paid in equal monthly installments in an amount equal to the monthly installments paid to the first beneficiary, to the person or persons then in being within the classes hereinafter specified and in the order named, unless designated by the insured in a different order— “(C) if no widow, widower, or child, to the parent or parents of the insured who last bore that relationship, if living, in equal shares; . . . .” § 602 (j). “No installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary, and in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made. . . The material facts are not disputed. Eugene C. Hen-ning, a Naval Reservist insured under a $10,000 term policy of National Service Life Insurance which named his father as sole beneficiary, died on July 4, 1945, in his country’s service. Otto F. Henning, the father, died five months later, without having received any part of the policy’s proceeds. Bessie, his second wife and the insured’s stepmother, and Clara Belle, his former wife and the insured’s natural mother, survived. Both survivors subsequently filed claims to the proceeds of the serviceman’s policy. On June 30, 1949, during the pendency of an interpleader action for a judicial determination of the proper taker, Bessie died, leaving the natural mother as sole surviving claimant. The Government thereupon asserted that Bessie had last borne the parental relationship to the insured; that consequently Clara Belle could not come within the statutory class of devolutionary takers; and that, in the absence of cognizable claims to the proceeds, they escheat to the National Service Life Insurance Fund. The District Court’s judgment, however, divided the proceeds, payable in installments, among three parties. The court read the statute as imposing no bar to the award of matured but unpaid installments to the estates of deceased beneficiaries. It therefore awarded to the father’s estate the installments which had matured during his lifetime but remained unpaid. And, finding that Bessie, the stepmother, had stood in loco parentis to the insured for at least one year prior to his entry into active service, it concluded that both she and Clara Belle, the natural mother, were parents who “last bore that relationship” and thus qualified to take the remaining proceeds by devolution under § 602 (h) (3) (C) of the Act. The installments which had matured during the stepmother’s lifetime were shared equally between her estate and Clara Belle; installments thereafter maturing were awarded to the latter alone. The Court of Appeals agreed. Conceding that the literal wording of the statute went “a long way” toward sustaining the Government’s opposing contentions, the court, fearful of unfortunate consequences that might flow from strict adherence to the text of the Act, nevertheless ruled that estates of deceased beneficiaries might take. And, noting its disagreement with the Second Circuit’s ruling in Baumet v. United States, it further held that one in loco parentis who qualified as a beneficiary under § 602 (h)(3)(C) of the Act did not necessarily exclude from participation in policy proceeds a natural parent of the same sex who also “last bore” the parental relationship to the insured. We granted certiorari to settle problems important in the administration of the National Service Life Insurance Act and to resolve conflicting statutory interpretations by the Courts of Appeals. 342 U. S. 917. Congress through war risk insurance legislation has long sought to protect from financial hardship the surviving families of those who had served under the nation’s flag. Comprehensive insurance programs enacted in 1917, 1940, and 1951 reflect this consistent legislative concern in times of crisis. Since public funds were to meet a large part of the programs’ cost, the statutes closely circumscribed the class of permissible takers to preclude those not the object of congressional concern from draining the treasury when hazards of war service multiplied policy maturities. The War Risk Insurance Act of 1917 enumerated only the serviceman’s spouse and immediate blood relatives as permissible beneficiaries of policy proceeds; a beneficiary’s interest was extinguished by death. The National Service Life Insurance Act of 1940, again constricting the class of permissible takers, restates the legislative purpose of the prior Act. In the Servicemen’s Indemnity Act of 1951 the previous restrictions once more appear, reiterated in a flat proviso: "No payment shall be made to the estate of any deceased person.” Accenting these wartime limitations is the liberalizing legislation by which Congress after cessation of hostilities in World Wars I and II placed its insurance programs on more nearly a commercial basis. Amendments to the War Risk Insurance Act in 1919 expanded the permitted beneficiary class to include more distant relatives of the insured, and, significantly, provided that installments payable but unpaid upon a beneficiary’s death might go to his estate. This broadening legislation was substantially reenacted in the World War Veterans’ Act of 1924. And after World War II, Congress in 1946 once more liberalized the benefits of the National Service Life Insurance Act. As to policies maturing after August 1946 it removed the restrictions on the insured’s choice of beneficiary, and in certain instances permitted the payment of installment proceeds to deceased beneficiaries’ estates. From this course of legislation an unmistakable pattern of congressional policy emerges: Statutes enacted in time of war crisis narrow the range of beneficiaries; post-war legislation broadens it. Section 602 of the N. S. L. I. Act of 1940, governing the distribution of the policy proceeds here in controversy, must take meaning from its historical setting. Cf. United States v. Zazove, 334 U. S. 602 (1948). Subsection (i) conditions the right of a beneficiary to the payment of any installments “upon his or her being alive to receive such payments”; it adds that “no person shall have a vested right to any installment . . . and any installments not paid to a beneficiary during such beneficiary’s lifetime shall be paid to the beneficiary or beneficiaries within the permitted class next entitled to priority . . . .” And subsection (j), so as to disclaim any possible analogy to prior peacetime legislation which at one time had been construed to confer such rights, emphasizes that “no installments of such insurance shall be paid to the heirs or legal representatives as such of the insured or of any beneficiary.” On the contrary, the subsection directs “in the event that no person within the permitted class survives to receive the insurance or any part thereof no payment of the unpaid installments shall be made.” In the face of this clear statutory language we are nevertheless urged to distinguish installments neither accrued nor paid from accrued installments that an intended beneficiary for some reason has not received. Whereas the former concededly may not pass to the estate of a deceased beneficiary, it is argued that the latter may. For to hold otherwise, the argument runs, might result in “amazing consequences”; the government, for example, by simply withholding payments until one beneficiary died might unjustly enrich another in a lower priority, or, if none survived, favor the public purse; moreover, a low-priority beneficiary by litigating a specious claim might profitably suspend payment until the higher-priority takers died. We reject the conclusion and its premises. The asserted distinction assumes that when Congress in § 602 (i) conditioned payment to beneficiaries on their “being alive to receive such payments” it meant something else; that it exempted, without words or other indication, installments accrued but not yet paid. But to read such language into subsection (i) strips it of significance; if limited in application to unmatured installments the strictures of that subsection would be mere surplusage, forbidding what the priority ladder of § 602 (h) (3) in any event could not logically permit. We cannot so nullify the clear import of subsection (i). In drafting the 1940 statute, Congress must have been fully cognizant of insurance legislation of the prior war. The 1917 War Risk Insurance Act was well understood to prohibit payment of accrued installments to the estates of beneficiaries who did not live to take their intended shares; the very contention made here today was then examined and rejected. No peacetime amendments, as those which in 1919 and 1924 specifically altered the deliberate wartime result, can aid the contention presented today. The conclusion is irresistible that when in 1940 the law conditioned payments on the beneficiary’s being alive to receive them, Congress said what it meant and meant what it said. Were more needed, the consistent course of administrative practice under the Acts of 1917 and 1940 applied the statutes to bar payments to deceased beneficiaries’ estates; that factor, too, must be accorded weight. United States v. Zazove, supra; United States v. Citizens Loan & Trust Co., 316 U. S. 209 (1942); United States v. Madigan, 300 U. S. 500 (1937). We are not unmindful of the fact that unanticipated delay in the payment of policy proceeds may withhold from a beneficiary the funds that Congress intended him to get; seven years and three deaths have not yet brought this litigation to an end. But we cannot apportion the blame for this cruel delay. And we may surely not speculate that the officials entrusted with the administration of the Act would attempt to enrich other beneficiaries or the treasury itself by a sardonic waiting game. We conclude that in this crisis legislation Congress, fully aware of the sometimes inevitable delays in payment, preferred the occasionally harsh result to a course of action which would permit funds intended for living members of the narrow statutory class of permissible takers to seep down to an enlarged class of sub-beneficiaries created not by the Act itself but by intended beneficiaries’ testamentary plans. Courts may not flout so unmistakable a legislative purpose, expressed in so clear a congressional command. United States v. Citizens Loan & Trust Co., supra; Wissner v. Wissner, 338 U. S. 655 (1950). We hold that the award of accrued installments to the estates of deceased beneficiaries cannot stand. There remains the controversy between the natural mother and the United States. The Government contends that because Bessie, the stepmother, had stood in loco parentis to the insured at the time of his death, she was the maternal parent “who last bore that relationship” within the meaning of § 602 (h) (3) (C) ; consequently Clara Belle, the natural mother, despite a District Court finding that she, too, “last bore that relationship,” was displaced and forever lost any right to take by devolution under the Act. In essence, the argument is that no more than one parent of each sex may contemporaneously meet the test imposed by the Act; the “last” parent takes all, to the exclusion of others. And since the “last” parent is now dead, no one may take. We cannot agree. While the contention has the merit of simplicity, simplicity cannot supplant statutory interpretation. Section 602 (h)(3)(C), too, has a historical setting. The National Service Life Insurance Act as enacted in 1940 confined the class of devolutionary takers to the spouse and blood relatives of the insured. So written the legislation proved unsatisfactory in practice. As construed, that provision required payment of proceeds to an insured’s natural parents though they had abandoned him to be raised and supported wholly by foster parents, the latter being excluded from participation by the Act. Upon recommendation of the Veterans’ Administrator, Congress in 1942 amended the Act to foreclose that result. Persons who stood in loco parentis to the insured for at least one year prior to his entry into active military service were included within the Act’s definition of “parent.” And they qualified as takers by devolution if they “last bore that relationship” to the insured, an essential statutory condition to preclude the parceling out of proceeds among a series of transient hosts and to assure full benefits to those most likely to merit the insured’s financial support. The thrust of the amendment thus was directed at the inclusion of worthy foster parents, not the exclusion of nátural parents however deserving. It may well be that ordinarily a foster relationship does not begin until natural parental ties, realistically viewed, are severed; if so, the foster parent bears the parental relationship when the natural parent has ceased to be such in truth and fact. And in that case, the clear intent of the 1942 amendments would demand the exclusion, of the natural parent from participation in the proceeds. But since that determination, based on realities, not status, necessarily must depend on the facts of a particular case, it is peculiarly within the competence of others who are closer to the living facts. Here the District Court found that the parental relationship continued until the insured’s death, and the Court of Appeals observed that “there is no finding or evidence of any estrangement, to say nothing of abandonment, or even any lack of parental feeling, between [the insured] and his mother, Clara Belle.” Unable to freeze into formula the subtle family relations that may constitute a genuine parental bond, we must accept what the courts below deemed a continuing parental relationship between mother and son. Since we hold that Clara Belle Henning, the insured’s natural mother, is a surviving beneficiary entitled to take by devolution under § 602 (h) (3) (C), the Government may of course not invoke the provisions of § 602 (j) to withhold, for the benefit of the National Service Life Insurance Fund, payment of the installments accrued from the date of the insured’s death. It equally follows that the method of distribution of installments to Clara Belle, as “the beneficiary to whom payment is first made,” must depend on her age at the date of policy maturity, subject to her election of an optional settlement as provided by § 602 (h) (1) and (2) and applicable administrative regulations under the Act. Reversed. In 1946, the Act was amended prospectively in several material respects. 60 Stat. 781 et seq. Since the policy before us matured in 1945, the 1946 amendments do not govern the distribution of the proceeds here in issue. The insured at one time had designated his wife as beneficiary and his father as contingent beneficiary. Subsequently he properly changed this designation and named his father as sole beneficiary. The marriage was dissolved prior to the insured’s death. The earlier designation is thus not material here. 93 F. Supp. 380 (D. Mass. 1950). 191 F. 2d 588 (1st Cir. 1951). The Court of Appeals reversed and remanded for proper computation of the installments which it found due the various parties. In view of our disposition of the case, we are not now concerned with that part of its holding. 191 F. 2d 194 (1951), cert. granted, 343 U. S. 925, decided this day, post, p. 82. E. g., §403, W. R. I. A. of 1917, 40 Stat. 410; §602 et seq., N. S. L. I. Act of 1940, 38 U. S. C. § 802 et seq., see United States v. Zazove, 334 U. S. 602, 616 (1948); Servicemen’s Indemnity Act of 1951, 38 U. S. C. (Supp. V) § 851 et seq.; S. Rep. No. 91, 82d Cong., 1st Sess.; H. R. Rep. No. 6, 82d Cong., 1st Sess. § 402; 40 Stat. 409. Cassarello v. United States, 271 F. 486; Salzer v. United States, 300 F. 764. §602 (g); 38 U. S. C. § 802 (g). § 3; 38 U. S. C. (Supp. V) § 852. §§ 4,13,19; 41 Stat. 371, 375, 376. §§ 3, 26; 43 Stat. 607, 614; 38 U. S. C. §§424, 451. §§ 4, 9; 60 Stat. 782, 785; 38 U. S. C. §§802 (g), (u). As to the 1946 amendments, see testimony of Mr. Harold W. Breining, Assistant Administrator for Insurance, Veterans’ Administration, Hearings before the Subcommittee on Insurance of the Committee on World War Veterans’ Legislation, House of Representatives, 79th Cong., 2d Sess., on H. R. 5772 and H. R. 5773 (p. 1): “The fundamental reasons for liberalization are that during the war the bulk of losses all came from the National Treasury. Through this method the Government assumed the losses due to the extra hazards of military and naval services. Since the Government during the war bore the major part of the losses it was not felt that the Government would want to pay, indirectly through this channel, large sums of money to persons who might be beneficiaries only because of some speculation, or because the insured might wish to give it to them as distinguished from persons who were likely to be dependent or to whom the insured might owe some semblance of a moral obligation. These restrictions originally were placed in the law with the clear intent that they would be eliminated when the period of the emergency was over.” For congressional attitudes in enacting the W. R. I. A. of 1917, see, e. g., 55 Cong. Rec. 6761, 7690, and H. R. Rep. No. 130, 65th Cong., 1st Sess., Pt. 3, p. 5. The legislative history of the 1940 Act contains little expression of congressional intent. The Act was presented while a controversial revenue measure was under consideration. The Committee reports accompanying the revenue bill of which the N. S. L. I. Act became part contain no reference to the insurance legislation. A Conference Committee Report devoted less than a page to the Insurance Act. See H. R. Rep. No. 2894, S. Rep. No. 2114, H. R. Rep. No. 3002, all of the 76th Cong., 3d Sess. McCullough v. Smith, 293 U. S. 228 (1934); cf. United States v. Citizens Loan & Trust Co., 316 U. S. 209 (1942), both cases involving the 1925 amendments to the World War Veterans’ Act. 43 Stat. 1310, 38 U. S. C. § 514. Treasury Dept., Bureau of War Risk Insurance, Division of Military and Naval Insurance, Bulletin No. 1, p. 4 (1917); Cassarello v. United States, 271 F. 486 (1919). 24 Comp. Dec. 733 (1918). Cf. American National Bank & Trust Co. v. United States, 77 U. S. App. D. C. 243, 134 F. 2d 674 (1943); United States v. Lee, 101 F. 2d 472 (1939), which interpreted 38 U. S. C. § 516, providing for reinstatement of lapsed World War I policies, as forbidding the payment of installments to the estates of deceased beneficiaries. These holdings turned on the section’s enumeration of a restricted class of permissible takers; estates of deceased persons were held not to fall within that class. The pertinent terms of that enactment are almost identical with portions of §§ 602 (g) and (h) of the National Service Life Insurance Act we must construe today. Since this policy matured in 1945, we are not here concerned with whatever effects the 1946 amendments to the National Service Life Insurance Act might have on this or similar cases. See 24 Comp. Dec. 733 (1918); Bulletin, note 16, swpra; Communication to the Solicitor General of the United States from the Solicitor, Veterans’ Administration, dated March 12, 1952, reprinted as Appendix B, Brief for the United States. §§ 602 (g) and (h)(3)(C), 54 Stat. 1010. The insured, however, was permitted to designate persons in loco parentis as beneficiaries. S. Rep. No. 1430, 77th Cong., 2d Sess., p. 2; H. R. Rep. No. 2312, 77th Cong., 2d Sess., p. 4. Cf. S. Rep. No. 91, 82d Cong., 1st Sess., p. 12; H. R. Rep. No. 6, 82d Cong., 1st Sess., p. 14. §§ 7 to 9, 56 Stat. 659; 38 U. S. C. §§801 (f), (g), and (h) (3) (C). Cf. § 3 of the Servicemen’s Indemnity Act of 1951, 38 U. S. C. (Supp. V) § 852. 191 F. 2d, at 593. 38 U. S. C. §802 (h)(1) and (2); 38 CFR, 1944 Supp., § 10.3475 et seq., applicable to this policy which matured in 1945.

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?

William Lewis SMITH, Plaintiff-Appellant, v. Wayne S. BARRY, as Medical Doctor of the Maryland Department of Corrections, individually and in his official capacity; R. Victor, Sergeant, individually and in his official capacity as Correctional Officer of the Maryland Penitentiary; Arnold Turner, Sergeant, individually and in his official capacity as Correctional Officer of the Maryland Penitentiary; R. Hall, Officer, individually and in his official capacity as Correctional Officer of the Maryland Penitentiary; R. Brown, Officer, individually and in his official capacity as Correctional Officer of the Maryland Penitentiary; Officer Jackson, individually and in his official capacity as Correctional Officer of the Maryland Penitentiary; Officer Wilkins, individually and in his official capacity as Correctional Officer of the Maryland Penitentiary, Defendants-Appellees. No. 88-7096. United States Court of Appeals, Fourth Circuit. Submitted Jan. 21, 1992. Decided Feb. 8, 1993. Steven H. Goldblatt, Director, Suzy Chan Hung, William J. Nelson, Brian Heller, Student Counsel, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, DC, for plaintiff-appellant. David H. Bamburger, Piper & Marbury, Washington, DC, Glen K. Allen, Joseph J. Curran, Jr., Atty. Gen. of Maryland, Diane Krejsa, Asst. Atty. Gen., Baltimore, MD, for defendants-appellees. Before RUSSELL and WIDENER, Circuit Judges, and SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION SMITH, District Judge: Plaintiff-appellant William Smith prosecutes this appeal from two adverse orders of the district court. As to defendant-ap-pellee Barry, we find that Smith failed to perfect his appeal. Accordingly, we dismiss the appeal as to Dr. Barry. As to defendants-appellees Victor, Turner, Hall, Brown, Jackson, and Wilkins (“the six prison guards”), we find that Smith did perfect his appeal, but affirm the district court’s direction of a verdict and entry of judgment in their favor on Smith’s deliberate indifference claim. I. William Smith suffers from a painful psychogenic disorder that prevents him from walking. While incarcerated at the Maryland State Penitentiary, Smith brought this pro se action pursuant to 42 U.S.C. § 1983. Smith sued Commissioner of Corrections Jon Galley, Warden George Collins, staff psychologists Robert Ellis and Daniel Porecki, seven correctional officers (Commander Captain Carpenter, and the six prison guards: Sergeant R. Victor, Sergeant Arnold Turner, Officer R. Hall, Officer R. Brown, Officer Jackson, and Officer Wilkins), and a private physician, Dr. Wayne Barry. Smith alleged that defendants denied him the use of a wheelchair and thereby manifested their deliberate indifference to his medical needs, in violation of the Eighth Amendment. A private medical group, not the state, employed Dr. Barry. The district court accordingly concluded that Dr. Barry could not have acted under color of state law for purposes of section 1983. Therefore, by order dated December 26, 1984, the district court granted Dr. Barry’s motion and dismissed him from the case. The claims against the remaining defendants proceeded to trial before a jury. At the conclusion of Smith’s case, the district court directed verdicts in favor of Galley, Collins, Carpenter, and the six prison guards on the deliberate indifference claim. The jury found that the psychologists Ellis and Porecki were deliberately indifferent to Smith’s medical needs, and awarded Smith $15,000.00 in damages. On February 29, 1988, the judgment order was entered, reflecting the court's rulings and the jury’s findings. On March 4, 1988, Ellis and Porecki filed a motion for judgment notwithstanding the verdict. On March 22, 1988, Smith, proceeding pro se, filed a notice of appeal. By order entered April 14, 1988, the district court denied the psychologists’ motion for judgment notwithstanding the verdict. Later, on May 4, 1988, Smith filed an “informal brief” in this court requesting “[a] new trial on all issues triable by Jury.” Relying on his informal brief as a notice of appeal, Smith seeks to challenge the district court’s order dated December 26, 1984, which dismissed Dr. Barry as a defendant, and the part of the district court’s February 29, 1988 order that entered judgment in favor of the six prison guards on the deliberate indifference claim. On November 29, 1990, we entered our opinion deciding that Smith’s informal brief did not, indeed could not, substitute for a notice of appeal. Smith v. Galley, 919 F.2d 893, 895-96 (4th Cir.1990). Accordingly, we dismissed Smith’s appeal. Id. at 896. Reviewing our judgment, the Supreme Court specifically disagreed with our holding that the informal brief could not substitute for a formal notice of appeal. Smith v. Barry, — U.S. -, -, 112 S.Ct. 678, 680, 116 L.Ed.2d 678 (1992). The Court ruled that “[i]f a document filed within the time specified by Rule 4 [of the Federal Rules of Appellate Procedure] gives the notice required by [Federal] Rule [of Appellate Procedure] 3, it is effective as a notice of appeal.” Id. at -, 112 S.Ct. at 682. The Court, therefore, reversed our judgment and remanded the case for our further consideration of the question whether Smith’s informal brief suffices as a notice of appeal under Federal Rule of Appellate Procedure 3(c). Id. at -, 112 S.Ct. at 682-83. II. When we first addressed this case, we noted but did not decide the threshold issue we confront on remand: whether Smith’s informal brief satisfies the requirements of Federal Rule of Appellate Procedure 3(c). Federal Rule of Appellate Procedure 3(c) provides in part that "[t]he notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.” Fed.R.App.P. 3(c). Courts liberally construe submissions under Rule 3. Smith v. Barry, — U.S. at -, 112 S.Ct. at 681; Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 2408-09, 101 L.Ed.2d 285 (1988); Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). If a “litigant’s action is the functional equivalent of what the rule requires,” Torres, 487 U.S. at 317, 108 S.Ct. at 2409, a court may find compliance with Rule 3. Though courts generously construe Rule 3, "noncompliance [therewith] is fatal to an appeal.” Smith v. Barry, — U.S. at -, 112 S.Ct. at 682. Appellees herein assert that Smith’s informal brief fails to comply with Rule 3(c)’s command to “designate the judgment, order or part thereof appealed from.” Rather, it simply asks for “[a] new trial on all issues triable by Jury.” Liberally construing this language, we find it sufficient to sustain an appeal of the district court’s directed verdict for the six prison guards on the deliberate indifference claim, but insufficient to sustain any appeal as to Dr. Barry. Smith’s informal brief does not refer directly to the February 29, 1988 judgment order directing a verdict for the six prison guards on Smith’s deliberate indifference claim, and the brief fails to name any of the six prison guards. However, it does explicitly request “[a] new trial on all issues triable by Jury.” Smith’s deliberate indifference claim against the six prison guards went to trial before a jury. Liberally construed, as to the six prison guards, Smith’s submission contains the functional equivalent of the specifications required by Federal Rule of Appellate Procedure 3(c). Therefore, we conclude that the informal brief suffices as a notice of appeal regarding Victor, Turner, Hall, Brown, Jackson, and Wilkins. Having determined that Smith’s informal brief suffices as a notice of appeal with respect to the six prison guards, we proceed to the merits of the appeal. Our review of the directed verdict on the deliberate indifference claim is limited to a determination of whether the evidence warranted submission of plaintiff’s claim to the jury. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-01, 82 S.Ct. 1404, 1411-12, 8 L.Ed.2d 777 (1962); Carroll v. Seaboard Air Line R.R. Co., 371 F.2d 903, 904 (4th Cir.1967). We view the evidence in the light most favorable to Smith and allow him the benefit of all reasonable inferences. Continental Ore Co., 370 U.S. at 697 n. 6, 82 S.Ct. at 1409 n. 6; Ryan v. Edwards, 592 F.2d 756, 759 (4th Cir.1979). We agree with the district judge that the six prison guards were entitled to a directed verdict on Smith’s deliberate indifference claim. Smith failed to provide a legally sufficient evidentiary basis for a reasonable jury to find in his favor. He offered no evidence that the six prison guards were in a position to act meaningfully in regard to his medical needs. His medical needs were addressed by the medical staff, two of whom the jury found to be indifferent and thus rendered a verdict against them for plaintiff. We therefore affirm the directed verdict and the judgment entered in favor of the six prison guards, appellees Victor, Turner, Hall, Brown, Jackson, and Wilkins, on Smith’s deliberate indifference claim. As to Dr. Barry, Smith’s informal brief does not refer at all to the order dismissing Dr. Barry. It fails to name or even indirectly mention Dr. Barry. Again, the brief simply asks for “[a] new trial on all issues triable by Jury.” Dr. Barry’s dismissal was not an issue triable by jury. The district court’s order dismissing Dr. Barry is dated December 26, 1984, more than three years before trial. Dr. Barry filed a motion to dismiss as a matter of law. The district court granted the motion as a matter of law. Even when given the liberal reading required by Smith v. Barry, Torres, and Foman, Smith’s informal brief does not amount to the “functional equivalent” of a notice of appeal as to appellee Barry. As the brief fails to qualify substantively under Rule 3 as a sufficient notice of appeal as to Dr. Barry, Smith’s appeal is unperfected to that extent. Thus, as to appellee Barry, the appeal is dismissed. III. In summary, with respect to the six prison guards, defendants-appellees Victor, Turner, Hall, Brown, Jackson, and Wilkins, we find that Smith’s informal brief suffices as a notice of appeal. We further find, however, on the basis of the evidence presented at trial, that the district court properly directed a verdict in favor of the six prison guards on Smith’s deliberate indifference claim. Accordingly, we affirm the entry of judgment for the six prison guards on the deliberate indifference claim. We dismiss plaintiff-appellant Smith’s appeal as to defendant-appellee Barry, on the ground that Smith’s informal brief fails, as to Dr. Barry, to constitute the functional equivalent of a notice of appeal under Federal Rule of Appellate Procedure 3(c). AFFIRMED IN PART AND DISMISSED IN PART. . On February 24, 1992, plaintiff-appellant Smith filed a motion to amend the caption in this case, to remove defendants-appellees Jon P. Galley, George H. Collins, Commander Captain Carpenter, Robert Ellis, and Daniel Porecki, against whom he no longer proceeds. The remaining defendants-appellees have not opposed Smith's motion. The caption herein thus reflects the requested amendment. . Smith asserted another Eighth Amendment claim based on the use of excessive force against him, alleging that several prison guards had beaten him. Smith does not pursue the excessive force claim on appeal. See infra note 4. . The district court relied on our decision in Calvert v. Sharp, 748 F.2d 861 (4th Cir.1984), cert. denied, 471 U.S. 1132, 105 S.Ct. 2667, 86 L.Ed.2d 283 (1985). The Supreme Court later overruled Calvert in West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). West established that a private contract physician who provides medical services to state inmates may act under color of state law for purposes of section 1983. . As to the excessive force claim, the district court directed verdicts for Galley, Collins, and three of the seven correctional officers (Carpenter, Hall, and Turner); the jury found the four remaining prison guards not liable to plaintiff on the excessive force claim. On appeal, Smith challenges neither the directed verdicts nor the jury verdicts respecting his excessive force claim. . Appointed counsel represented Smith at trial and on the psychologists’ motion for judgment notwithstanding the verdict. Smith filed his notice of appeal pro se. That notice of appeal was from an order that the district court entered on March 15, 1988. The district court entered only one order on that date. That order simply extended the time for Smith to file a request for attorneys’ fees. We do not, however, grant an appeal based on the March 22, 1988, notice. See infra note 6. Rather, Smith’s informal brief is his notice of appeal. Smith v. Barry, — U.S. —, -, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992). The issue now is whether the informal brief is an adequate notice of appeal. Id.; see infra at 6. . Federal Rule of Appellate Procedure 4(a)(4) provides that if any party files a timely motion for judgment notwithstanding the verdict, a notice of appeal filed before disposition of the motion is ineffective and a new notice of appeal must be filed after the order is entered disposing of the motion. Federal Rule of Appellate Procedure 4(a)(4) provides in pertinent part: If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); ... the time for appeal for all parties shall run from the entry of the order ... granting or denying ... such motion. A notice of appeal filed before the disposition of [such] motion[ ] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. Fed.R.App.P. 4(a)(4). Therefore, Smith does not dispute the prematurity and ineffectiveness of the notice of appeal he filed on March 22, 1988. . See Smith v. Galley, 919 F.2d at 896 n. 7. . If Smith’s informal brief qualifies substantively as a notice of appeal, it was timely filed. Federal Rule of Appellate Procedure 4(a)(1) provides: [T]he notice of appeal ... shall be filed with the clerk of the district court within 30 days after the date of the entry of the judgment or order appealed from.... If a notice of appeal is mistakenly filed in the court of appeals, the clerk of the court of appeals shall note thereon the date on which it was received and transmit it to the clerk of the district court and it shall be deemed filed in the district court on the date so noted. Fed.R.App.P. 4(a)(1). Smith filed his informal brief within thirty days of the district court's order disposing of Ellis and Porecki’s motion for judgment notwithstanding the verdict. . Smith’s premature notice of appeal, filed March 22, 1988, avails him nothing. That notice identifies the district court’s order of March 15, 1988, which concerned only an extension of the time for Smith to file a motion for attorneys’ fees. See supra note 5. . Dr. Barry suggests in his supplemental appellate brief that Smith never mailed him a copy of the prematurely filed notice of appeal. If true, this fact would support a finding that Smith had no intention to appeal as to Dr. Barry.

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

What is the specific issue in the case within the general category of "civil rights - civil rights claims by prisoners and those accused of crimes"?

ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. Prudie SWIFT, Adm’x of the Estate of Hayward Swift, Deceased, Appellee. No. 12639. United States Court of Appeals Sixth Circuit. June 1, 1956. Thomas E. Sandidge, Owensboro, Ky., J. H. Wright and John W. Freels, Chicago, Ill., Thomas J. Wood, Stites, Wood, Helm & Peabody, Louisville, Ky., on the brief, for appellant. Rhodes Bratcher, Louisville, Ky., W. D. Bratcher, Greenville, Ky., on the brief, for appellee. Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges. MARTIN, Circuit Judge. This action for damages for death by wrongful act brought by decedent’s mother, who was qualified administratrix of his estate, was tried to the district judge without the intervention of a jury. Judgment against the appellant railroad company for $45,650 was awarded the appellee. Appellee’s intestate, Hayward Swift, a sixteen-year-old boy, was employed by appellant to work as a member of a section crew. Neither his father nor his mother gave express consent—either orally or in writing—to such employment. However, it appears that after learning that he had been employed by the railroad company, the parents made no objection and apparently acquiesced in the employment of their young son. Two of decedent’s older brothers were working in the same section crew. One of the brothers, Connie Swift, testified that on or about November 18, 1952, Hayward Swift, as a member of the section crew, was working in a gondola car. He was engaged in unloading riff rock. Connie testified that his brother, Hayward, while prizing a large riff rock with a pick, slipped and fell against the rock, striking his head against the side of the car. Although Connie raised his brother’s cap, he did not see “any skinned place.” That night, he observed a knot on his brother’s head. Hayward did not report the occurrence to the foreman, but continued unloading riff rock the rest of the day. No person other than Connie Swift witnessed the occurrence. During his employment by the railroad company in Jefferson County, Kentucky, from October 18, 1952, until the latter part of November of that year, decedent and his two brothers regularly returned home each Friday to spend the weekend with their parents. At the time of Hayward’s visit home during the latter part of November, his brother took him to Dr. Sherman on the day after Thanksgiving, the accident having occurred on Monday of the same week. Connie told the doctor about the accident and stated that Hayward had been complaining erf headache “ever since it happened.” Connie swore, further, that Hayward would grab and hold his head down and would ignore questions; and that the younger brother’s condition was very serious. Dr. Sherman diagnosed Hayward’s illness as “yellow jaundice and liver trouble.” Both parents of decedent testified that Hayward had never suffered from headaches before and had never been under a doctor’s care in his life. Ollie Carter, a railroad employee, stated under oath that Hayward Swift had worked three weeks in the kitchen. During the last week the young man had complained that his head was hurting and that his neck was “drawing back”; that his head had ached from time to time ever since he was a small child; that previously he had taken aspirin which had stopped his headaches, but that “this time it didn’t.” Carter said that he advised Hayward to “get a doctor’s order and go to a doctor.” Hayward replied that he intended to wait until he went home and he would then go to see Dr. Sherman. It appears that Dr. Sherman referred him to the Illinois Central Railroad Hospital at Paducah, Kentucky, where he was treated by Dr. Robert L. Reeves, internist in charge of medical cases and a physician of thirteen years’ experience in practice. Dr. Reeves testified that the appellee’s decedent was admitted to the hospital on November 30, 1952, at 7:55 o’clock, P.M. The doctor thought that he had obtained the boy’s case history from his mother. He was told that, for two weeks prior to admission into the hospital, Hayward had complained of headache but had continued to work until November 27, when he went to Dr. Sherman. The mother told Dr. Reeves that, during the three days prior to admittance, her son had vomited every time he tried to swallow and had complained of a constant ache in the back of his head. The boy was unable to talk coherently when he was brought to the hospital and was semi-conscious when the doctor first saw him at the hospital. He could be roused only by the shaking of his arm or leg; and, if asked questions, would merely mumble and mutter. The doctor considered that the patient’s symptoms were rather typical of encephalitis. A positive diagnosis of that disease, according to the doctor, was made by means of a spinal puncture and an examination of the spinal fluid. Dr. Reeves explained that encephalitis is an inflammation of the nervous tissue, chiefly the brain, and is caused by a virus. The afflicted individual becomes extremely lethargic and actually sleeps quite a bit of the time, causing the disease to be commonly known as “sleeping sickness.” Asked whether the spinal fluid test conclusively established that his diagnosis of encephalitis was correct, the doctor responded: “Yes sir—as conclusive as medicine can be.” The doctor testified further that encephalitis has no known cure and could not, in the doctor’s opinion, be brought about by a blow on the head or a brain concussion. He said that he had never observed a case of encephalitis so caused; and that he would say that it would be extremely improbable that the disease could be caused by a traumatic injury. He was asked: “As I understand you doctors; you hardly say anything is impossible?” “Not anymore,” was the answer. Asked on cross-examination the direct question: “From what did Hayward Swift die?” The doctor replied: “He died from encephalitis; encephalitis lethargica as near as we could classify it.” The death certificate gave the cause of death as “Lethargica Encephalitis”. There was no contradictory testimony as to the cause of death. To say that he might have died as a result of striking his head in the manner described by his brother is mere unsupported conjecture. A positive diagnosis of encephalitis was established by a spinal fluid test. The disease is caused by a virus condition and not by traumatism, according to the uncontradicted testimony of Dr. Reeves. We do not consider, as was reasoned by the district judge, that the testimony of Dr. Reeves was purely opinion evidence. He was attending physician during the boy’s last illness, and based his diagnosis of encephalitis lethargica upon personal observation and upon an actual scientific test. The evidence was in conflict as to whether the boy had been a normal and healthy youth prior to the accident which his brother described; but, even if he had been, it would be engaging in pure speculation to say that his death of encephalitis was caused by a traumatic injury. The appellee insists that appellant was guilty of negligence in connection with the decedent’s alleged injury, that he was employed in violation of the Kentucky Child Labor Laws, Kentucky Revised Statutes, §§ 339.240; 339.280; 339.300; 339.340, with knowledge by appellant company that he was only sixteen years of age; and that the boy’s parents had not acquiesced in his employment so as to preclude recovery. We deem it unnecessary to consider these allegations upon all of which appellant takes issue, for the reason that unless the death of Hayward Swift was the proximate result of the negligence of appellant, or of its violation of the Kentucky Statutes, there can be no recovery. See Phillips v. Scott, 254 Ky. 340, 71 S.W.2d 662; Murphy v. Homans, 286 Ky. 191, 194, 150 S.W.2d 14; Brown Hotel v. Levitt, 306 Ky. 804, 209 S.W.2d 70; citing Pryor’s Adm’r v. Otter, 268 Ky. 602, 105 S.W.2d 564. In Hinton v. Dixie Ohio Exp. Co., 6 Cir., 188 F.2d 121, 126, we cited numerous Kentucky cases. We held it to be well established in that State that the violation of a statute or ordinance is negligence per se, but that such negligence of a defendant will not entitle an injured plaintiff to recover, unless such violation of the statute is the proximate cause of the injury. For the foregoing reasons, we think the finding of the trial court, upon which its judgment was based, that the alleged traumatic injury received by appellee’s decedent was the cause of his death, is clearly erroneous. Accordingly, the judgment is reversed; and the case is dismissed.

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

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

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

DOMENECH v. HAVEMEYER et al. SAME v. SOUTH PORTO RICO SUGAR CO. (OF PORTO RICO). SAME v. SOUTH PORTO RICO SUGAR CO. (OF NEW JERSEY). Nos. 2479-2481. Circuit Court of Appeals, First Circuit. April 28, 1931. • William C. Rigby, of Washington, D. C. (James R. Beverley, Atty. Gen. of Porto Rico and Grant T. Trent and Edward A. Kreger, both of Washington, D. C., on the brief), for appellant. Francis E. Neagle, of New York City (Rounds, Dillingham, Mead & Neagle, of New York City, on the brief), for appellees. Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. • ANDERSON, Circuit Judge, This consolidated record presents appeals from three decisions of the court below sustaining demurrers to suits brought to recover income and excess profits taxes. In 2479, the defendant’s tax year ended on May 31, 1920; in 2480 and 2481, on September 30, 1920. In all three eases the taxes claimed are grounded on Act No. 43 of Porto Rico, approved July 1, 1921. The three defendants made seasonable returns under this act and paid the taxes assessed by the treasurer in accordance therewith: Russell & Company $16,848.10; the South Porto Rico Sugar Company of Porto Rico and the New Jersey Company, on a consolidated return, $255,-492.28. ' The treasurer, after examination of the books of the three concerns, made a new assessment on a consolidated return of the three, of $1,232,605.54. On appeal by the defendants to the Board of Review and Equalization, that board, found and ruled as follows: (a) That the income tax return of the defendant Russell & Company should not be consolidated with the return of the South Porto Rico Sugar Company of New Jersey nor with the return of the South Porto Rico Sugar Company of Porto Rico. (b) It confirmed the decision of the Treasurer of Porto Rico of February 28, 1924, in so far as he determined the gross income of Russell & Company at $5,281,-696.67 and the net income at $2,574,175.94. (e) It confirmed the said decision of the Treasurer of Porto Rico fixing the invested capital of Russell & Company at the sum of $999,249.19. Pursuant to these findings and rulings the treasurer, in May 1924, notified the defendants of additional taxes for said tax periods: Of $553,227.38 against the defendant Russell & Company; of $324,478.84 against the defendant South Porto Rico Sugar Company of Porto Rico; of $9,441.42 against the defendant South Porto Rico Sugar Company of New Jersey; all plus interest at 6 per cent, from May 18, 1924. Defendants’ first contention is that Act No. 69 of 1923 cut off all power, if any, that Porto Rico had to levy these taxes .- Section 2 of said Act No. 43 of 1921 reads: “The first taxable year for the purposes of this Act, shall be the calendar year ending the thirty-first of December, 1920, or any accounting period ending during the calendar year 1920.” Act No. 69 of 1923 provides in section 1 that section 2 of Act No. 43 of 1921 is “hereby amended as follows: • • * The first taxable year for the purposes of this Act, shall be the calendar year 1923 or any fiscal year ending on any date in the calendar year 1923.” And section 4 of Act No. 69 repeals all laws or parts of laws in conflict therewith, without a saving clause as to unpaid taxes or any accrued penalties. But none was necessary; it was subject to the general provision of section 3093 of the Rev. Stats, and Codes of Porto Rico, reading: “The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.” All liabilities and penalties of Act No. 43, if and in so far as valid, remained in full force. Compare also Rev. St. U. S. § 13 (1 USCA § 29); Hertz v. Woodman, 218 U. S. 205, 216, 30 S. Ct. 621, 54 L. Ed. 1001; United States v. Ayer et al. (C. C. A.) 12 F.(2d) 194, 197. This statute seems to have been overlooked by the court below and by counsel on both sides. It disposes of the first main contention of counsel for the defendants. The next contention of the appellees is that the Legislature of Porto Rico had, in 1921, no power to enact an income and excess profits tax law. It is true that that Legislature has no powers except those granted expressly, or by necessary implication, by Congress. Benedicto, Treasurer, v. Porto Rican Am. Tobacco Co. (C. C. A.) 256 F. 422, 425. But, by section 37 of the Organic Act of March 2, 1917 (39 Stat. 964 [48 USCA §§ 774, 821]), the Porto Rican Legislature was given general legislative powers, and by section 3 (39 Stat. 953 [48 USCA § 741]) was granted power to levy “taxes and assessments on property, internal revenue, and license fees, and royalties for franchises, privileges, and concessions.” The Sixteenth Amendment had then been adopted; there is much weight to the contention that “internal revenue,” as used in this act, covered income taxes, without apportionment, in Porto Rico, as it then did in the United States. Cf. Bowers, Collector, v. Kerbaugh-Empire Co., 271 U. S. 170, 174, 46 S. Ct. 449, 70 L. Ed. 886. Pollock v. Farmers’ L. & T. Co., 158 U. S. 601, 15 S. Ct. 912, 39 L. Ed. 1108; Brushaber v. Union Pacific R. R., 240 U. S. 1, 17, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713. The federal income tax laws of 1913 (38 Stat. 180, § 2 M) and of 1916 (39 Stat. 776, § 23) applied to Porto Rico, and provided that such taxes should be there collected and applied to Porto Rican uses. By section 5 of the Act of October 3, 1917 (40 Stat. 300, 302), the Legislature of Porto Rico was given power to “amend, alter, modify, or repeal the income laws in force in Porto Rico.” This was repeated in the Act of February 24,1919 (40 Stat. 1057, § 261), and in the Act of November 23, 1921 (42 Stat. 227, 271, § 261), Congress provided that in Porto Rico and in the Philippines income taxes should be levied, assessed, and collected as provided by law prior to the passage of the federal act of that year, and further authorized the Porto Rican Legislature to amend, alter, modify or repeal the income tax laws in Porto Rico. That Legislature, by Act No. 80 of 1919, repealed the federal income tax law, and then enacted an income tax law of its own. Laws of Porto Rico, 1919, § 77, p. 670. Obviously there is very little difference-between power to “amend, alter, modify, or repeal” a federal law, and power to enact a like law de novo. Moreover, all Porto Rican laws are, under sections 23 and 34 of the Organic Act (39 Stat. 958, 960 [48 USCA § 842, and § 822 et seq.]), required to be reported to Congress, which reserved power to annul them. Congress never annulled this act or any similar act of Porto Rico. This is entitled to consideration in determining the extent of power granted to the Porto Rican Legislature. Chuoco Tiaco v. Forbes, 228 U. S. 549, 558, 33 S. Ct. 585, 57 L. Ed. 960; Fajardo Sugar Co. v. Holcomb (C. C. A.) 16 F.(2d) 92, 96, and eases cited. Section 261 of the federal act of 1924 (43 Stat. 294 [48 USCA § 845]) corresponds in terms to that of section 261 of the act of 1921, and is again found in the federal act of 1926 (44 Stat. 52 [48 USCA § 845]); and in the United States Code, as revised in 1926 (44 Stat. part 1, p. 1623, § 845), is found the same provision giving the Porto Rican Legislature authority to amend, alter, ' modify or repeal the income tax laws in force in Porto Rico. That Congress intended the Legislature of Porto Rico to have power to enact income tax laws is expressly shown by the Act of March 4, 1927 (44 Stat. 1418). This may fairly be construed as intended to make absolutely clear what had been implied before. Taking the whole course of congressional dealing with the functions of the Porto Rican Legislature, we think that, by fair and necessary implication, and perhaps expressly, it was vested with power to enact an income tax law in 1921. This disposes of the appellees’ second main point. The argued application of section 62 of Act No. 43 requires an outline of the relations of the three defendants. The partnership' (Russell & Company) owns the sugar land, grows the cane, and sells it to the Porto Rican corporation (the mill), which in turn sells the raw sugar to the New Jersey Company which puts it on the market. The New Jersey corporation owns all the stock of the Porto Rican corporation except qualifying shares of directors. The majority of the shares of the New Jersey corporation belong to Russell & Company. It is obvious and conceded that there is identity of interest between the two corporations. But mere ownership of the majority of stock of the New Jersey corporation obviously does not produce identity of interest between the partnership and the New Jersey corporation; the two concerns are not only separate legal entities, but the beneficial interests are different. Paragraph XV of the complaint in No. 2479 must be construed with paragraph XVH, which expressly alleges on information and belief that a mere majority of the stock of the New Jersey corporation is owned by the partnership. Under intercompany contracts of sale of the cane and the raw sugar, the profit or loss of the ultimate public marketing of the sugar produced, falls to the New Jersey corporation. These contracts were long antecedent to the passage of Act No. 43 of 1921. Section 62 of the Act No. 43 reads as follows: “Where in the income return of any person, firm, association or corporation filed for the purposes of this Act, profits appear on account of sales of agricultural or industrial fruits or products made to other persons, firms, associations or corporations at a price lower than the ruling market price at the time that such sales were made, it shall be the duty of the Treasurer of Porto Rico to investigate the case — should there be probable cause to believe it is a question of fraud or an attempt to defraud the public treasury — ■ for the purpose of determining whether or no such person, either natural or artificial, as may appear as purchasing or selling the aforesaid fruits, merchandise, agricultural or industrial products at a price lower than the ruling price on the market at the time of the consummation of the sales, is the same entity whose income tax is under discussion, and whether or not there is any identity of interests, though under different names, designations or organizations between both entities subjects of the investigation referred to, for the purpose and object of recovering and collecting in such manner as may be proper, either by administrative readjustment or in lieu thereof by judicial proceedings, the income which really and positively should be paid to the Treasury, consideration being given to the ruling market price of the products sold in the market on the date of the sales the legality of which is being investigated.” This section cannot, on the facts alleged, be applied to ground a tax on the partnership based on the much higher market prices alleged to have been paid the other colonos by the Porto Rican corporation. The con-, tract of sale of the cane was not void. There was no fraud on Porto Rico. A mere allegation of such fraud, without alleging any facts indicating fraud, is not enough. Chamberlain Works v. United States, 270 U. S. 347, 349, 46 S. Ct. 225, 70 L. Ed. 619; 49 C. J. 59. Besides (if we could treat the three concerns as one), it is not even alleged that the New Jersey corporation sold the sugar — thus derived from the cane grown and sold by the partnership to the Porto Rican corporation, and thus, in practical effect, to the New Jersey corporation — at the high speculative prices then obtaining. Non constat, that the New Jersey corporation may not have held, until prices dropped, so much of its sugar that — considering the high prices paid the other colonos for cane — it might have made no profit at all. At any rate, there is nothing alleged to show any such actual income to the partnership as the plaintiff seeks to impose income and excess profits taxes upon, and it is in effeet admitted that no such profits were received. The alleged income is nothing but fiat income — no more taxable than the paper profits stock speculators had in 1928 and 1929 — shortly, in many cases, to be changed into actual losses. Compare Eisner v. Macomber, 252 U. S. 189, 207, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570; Bowers v. Kerbaugh-Empire Co., 271 U. S. 170, 174, 46 S. Ct. 449, 70 L. Ed. 886. The complaint in No. 2479 does not state a cause of action. The taxes now sought to be recovered in all three suits are largely excess profits taxes. We think them condemned by section 2 of the Organic Act (39 Stat. 952 [48 USCA § 737]), which requires the Legislature of Porto Rico to make its taxes riniform. But this Act No. 43 of 1921, in section 17 (3), entitled “Excess Profits Taxes,” provides that: “In addition to the normal tax there shall be levied * * * on the net income exceeding $10,000 * * * an excess profits tax in the manner following: When the proportion between the net income and the capital invested is less than 15 percent, 5 percent on the net income exceeding 10 percent of the capital invested in the taxable year.” There follow, under section 17 (3), ten paragraphs dealing with the profits above 10 per cent, on the capital invested, in each case providing for taxes at a higher rate on the entire excess above the 10 per cent. It follows that a taxpayer whose net income was slightly below — say 20 per cent, on the capital invested — would be taxed on his whole net income above 10 per cent, at only 5% per cent.; while a taxpayer whose income was slightly above 20 per cent, would be taxed 6 per cent, on his- entire net income above 10 per cent, on the capital invested. In other words, a very slight difference in the net income of the taxpayer would result in a substantial* increase in the rate of taxation to which the bulk of his income would be subject. The higher rate (surtax) is not limited, in its incidence, to the amount in excess of the percentage at which the higher rate begins, as in the federal tax law. Compare Act. of October 3, 1917, § 2 (40 Stat. 300, 301), and Revenue Act of 1918, § 211 (a), 40 Stat. 1062. This cannot be sustained. It is also plain that, in Nos. 2480 and 2481, the income of the two South Porto Rico Sugar Companies — one of Porto Rico and the other of New Jersey' — -must be consolidated. These corporations were clearly affiliated within the meaning of section 24 of the Act of 1921, supra. The fact that one corporation was organized in Porto Rico and the other in New Jersey is immaterial. As noted above, the appeals are here from rulings sustaining the demurrers. The general result must be sustained, but without prejudice to any right the plaintiff may have to amend. The judgments of the District Court are affirmed, with costs, and the eases are remanded for further proceedings not inconsistent 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?

CTS CORPORATION, Petitioner v. Peter WALDBURGER et al. No. 13-339. Supreme Court of the United States Argued April 23, 2014. Decided June 9, 2014. Syllabus* Federal law pre-empts state-law statutes of limitations in certain tort actions involving personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment. 42 U.S.C. § 9658. Petitioner CTS Corporation sold property on which it had stored chemicals as part its operations as an electronics plant. Twenty-four years later, respondents, the owners of portions of that property and adjacent landowners, sued, alleging damages from the stored contaminants. CTS moved to dismiss, citing a state statute of repose that prevented subjecting a defendant to a tort suit brought more than 10 years after the defendant's last culpable act. Because CTS's last act occurred when it sold the property, the District Court granted the motion. Finding § 9658 ambiguous, the Fourth Circuit reversed, holding that the statute's remedial purpose favored pre-emption. Held : The judgment is reversed. 723 F.3d 434, reversed. Justice KENNEDY delivered the opinion of the Court with respect to all but Part II-D, concluding that § 9658 does not pre-empt state statutes of repose. Pp. 2182 - 2188. (a) The outcome here turns on whether § 9658 distinguishes between statutes of limitations and statutes of repose, which are both used to limit the temporal extent or duration of tort liability. There is considerable common ground in the policies underlying the two, but their specified time periods are measured differently and they seek to attain different purposes and objectives. Statutes of limitations are designed to promote justice by encouraging plaintiffs to pursue claims diligently and begin to run when a claim accrues. Statutes of repose effect a legislative judgment that a defendant should be free from liability after a legislatively determined amount of time and are measured from the date of the defendant's last culpable act or omission. The application of equitable tolling underscores their difference in purpose. Because a statute of limitations' purpose is not furthered by barring an untimely action brought by a plaintiff who was prevented by extraordinary circumstances from timely filing, equitable tolling operates to pause the running of the statute. The purpose of statutes of repose are unaffected by such circumstances, and equitable tolling does not apply. Pp. 2182 - 2183. (b) The text and structure of § 9658 resolve this case. Under that provision, pre-emption is characterized as an "[e]xception," § 9658(a)(1), to the regular rule that the "the statute of limitations established under State law" applies. The "applicable limitations period," the "commencement date" of which is subject to pre-emption, is defined as "the period specified in a statute of limitations." § 9658(b)(2). That term appears four times, and "statute of repose" does not appear at all. While it is apparent from the historical development of the two terms that their general usage has not always been precise, their distinction was well enough established to be reflected in the 1982 Study Group Report that guided § 9658's enactment, acknowledged the distinction, and urged the repeal of both types of statutes. Because that distinction is not similarly reflected in § 9658, it is proper to conclude that Congress did not intend to pre-empt statutes of repose. Other textual features further support this conclusion. It would be awkward to use the singular "applicable limitations period" to mandate pre-emption of two different time periods with two different purposes. And the definition of that limitations period as "the period" during which a "civil action" under state law "may be brought," § 9658(b)(2), presupposes that a civil action exists. A statute of repose, in contrast, can prohibit a cause of action from ever coming into existence. Section 9658's inclusion of a tolling rule also suggests that the statute's reach is limited to statutes of limitations, which traditionally have been subject to tolling. Respondents contend that § 9658 also effects an implied pre-emption because statutes of repose create an obstacle to Congress' purposes and objectives, see Wyeth v. Levine, 555 U.S. 555, 563-564, 129 S.Ct. 1187, 173 L.Ed.2d 51. But the level of generality at which the statute's purpose is framed affects whether a specific reading will further or hinder that purpose. Here, where Congress chose to leave many areas of state law untouched, respondents have not shown that statutes of repose pose an unacceptable obstacle to the attainment of statutory purposes. Pp. 2184 - 2188. KENNEDY, J., delivered the opinion of the Court, except as to Part II-D. SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined as to all but Part II-D. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which ROBERTS, C.J., and THOMAS and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined. Brian J. Murray, Chicago, IL, for Petitioner. Joseph R. Palmore, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner. John J. Korzen, Winston-Salem, NC, for Respondents. E. Thomison Holman, Adams Hendon Carson, Crow & Saenger, P.A., Asheville, NC, Richard M. Re, Jones Day, Washington, DC, Brian J. Murray, Counsel of Record, Michael F. Dolan, Dennis Murashko, Jones Day, Chicago, IL, for Petitioner. Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, John J. Korzen, Counsel of Record, Wake Forest University School of Law, Appellate Advocacy Clinic, Winston-Salem, NC, for Respondents. Justice KENNEDY delivered the opinion of the Court, except as to Part II-D. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U.S.C. § 9601 et seq., contains a provision that by its terms pre-empts statutes of limitations applicable to state-law tort actions in certain circumstances. § 9658. Section 9658 applies to statutes of limitations governing actions for personal injury or property damage arising from the release of a hazardous substance, pollutant, or contaminant into the environment. Section 9658 adopts what is known as the discovery rule. Under this framework, statutes of limitations in covered actions begin to run when a plaintiff discovers, or reasonably should have discovered, that the harm in question was caused by the contaminant. A person who is exposed to a toxic contaminant may not develop or show signs of resulting injury for many years, and so Congress enacted § 9658 out of concern for long latency periods. It is undoubted that the discovery rule in § 9658 pre-empts state statutes of limitations that are in conflict with its terms. The question presented in this case is whether § 9658 also pre-empts state statutes of repose. A divided panel of the Court of Appeals for the Fourth Circuit held that § 9658 does pre-empt statutes of repose. That holding was in error, and, for the reasons that follow, the judgment of the Court of Appeals must be reversed. I Congress enacted CERCLA in 1980 "to promote'"the timely cleanup of hazardous waste sites"'and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination." Burlington N. & S.F.R. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (quoting Consolidated Edison Co. of New York v. UGI Utilities, Inc., 423 F.3d 90, 94 (C.A.2 2005)). The Act provided a federal cause of action to recover costs of cleanup from culpable entities but not a federal cause of action for personal injury or property damage. Instead, CERCLA directed preparation of an expert report to determine "the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment," including "barriers to recovery posed by existing statutes of limitations." 42 U.S.C. § 9651(e)(1), (3)(F). The 1982 report resulting from that statutory directive proposed certain changes to state tort law. Senate Committee on Environment and Public Works, Superfund Section 301(e) Study Group, Injuries and Damages from Hazardous Wastes-Analysis and Improvement of Legal Remedies, 97th Cong., 2d Sess. (Comm. Print 1982) (hereinafter Study Group Report or Report). As relevant here, the Study Group Report noted the long latency periods involved in harm caused by toxic substances and "recommend[ed] that all states that have not already done so, clearly adopt the rule that an action accrues when the plaintiff discovers or should have discovered the injury or disease and its cause." Id., at pt. 1, 256. The Report further stated: "The Recommendation is intended also to cover the repeal of the statutes of repose which, in a number of states[,] have the same effect as some statutes of limitation in barring [a] plaintiff's claim before he knows that he has one." Ibid. Congress did not wait long for States to respond to some or all of the Report's recommendations. Instead, Congress decided to act at the federal level. Congress amended CERCLA in 1986 to add the provision now codified in § 9658. Whether § 9658 repeals statutes of repose, as the Study Group Report recommended, is the question to be addressed here. The instant case arose in North Carolina, where CTS Corporation ran an electronics plant in Asheville from 1959 to 1985. (A subsidiary, CTS of Asheville, Inc., ran the plant until 1983, when CTS Corporation took over.) The plant manufactured and disposed of electronics and electronic parts. In the process, it stored the chemicals trichloroethylene (TCE) and cis-1, 2-dichloroethane (DCE). In 1987, CTS sold the property, along with a promise that the site was environmentally sound. The buyer eventually sold portions of the property to individuals who, along with adjacent landowners, brought this suit alleging damage from contaminants on the land. Those who alleged the injury and damage were the plaintiffs in the trial court and are respondents here. Their suit was brought in 2011, 24 years after CTS sold the property. The suit, filed in the United States District Court for the Western District of North Carolina, was a state-law nuisance action against CTS, petitioner here. Respondents sought "reclamation" of "toxic chemical contaminants" belonging to petitioner, "remediation of the environmental harm caused" by contaminants, and "monetary damages in an amount that will fully compensate them for all the losses and damages they have suffered,... and will suffer in the future." App. to Pet. for Cert. 57a. Respondents claim that in 2009 they learned from the Environmental Protection Agency that their well water was contaminated, allegedly while petitioner operated its electronics plant. Citing North Carolina's statute of repose, CTS moved to dismiss the claim. That statute prevents subjecting a defendant to a tort suit brought more than 10 years after the last culpable act of the defendant. N.C. Gen.Stat. Ann. § 1-52(16) (Lexis 2013) ("[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action"); Robinson v. Wadford, --- N.C.App. ----, ----, 731 S.E.2d 539, 541 (2012) (referring to the provision as a "statute of repose"). Because CTS' last act occurred in 1987, when it sold the electronics plant, the District Court accepted the recommendation of a Magistrate Judge and granted CTS' motion to dismiss. A divided panel of the Court of Appeals for the Fourth Circuit reversed, ruling that § 9658 pre-empted the statute of repose. 723 F.3d 434 (2013). The majority found § 9658 "ambiguous," but also found that the interpretation in favor of pre-emption was preferable because of CERCLA's remedial purpose. Id., at 443-444. Judge Thacker dissented. Id., at 445-454. She found the statutory text's exclusion of statutes of repose to be "plain and unambiguous." Id., at 445. She further indicated that, even "if the preemptive effect of § 9658 were susceptible to two interpretations, a presumption against preemption would counsel that we should limit § 9658's preemptive reach to statutes of limitations without also extending it to statutes of repose." Ibid. The Courts of Appeals, as well as the Supreme Court of South Dakota, have rendered conflicting judgments on this question. Compare Burlington N. & S.F.R. Co. v. Poole Chemical Co., 419 F.3d 355, 362 (C.A.5 2005), and Clark County v. Sioux Equipment Corp., 2008 S.D. 60, ¶¶ 27-29, 753 N.W.2d 406, 417, with McDonald v. Sun Oil Co., 548 F.3d 774, 779 (C.A.9 2008). This Court granted certiorari. 571 U.S. ----, 134 S.Ct. 896, 187 L.Ed.2d 702 (2014). II A The outcome of the case turns on whether § 9658 makes a distinction between state-enacted statutes of limitations and statutes of repose. Statutes of limitations and statutes of repose both are mechanisms used to limit the temporal extent or duration of liability for tortious acts. Both types of statute can operate to bar a plaintiff's suit, and in each instance time is the controlling factor. There is considerable common ground in the policies underlying the two types of statute. But the time periods specified are measured from different points, and the statutes seek to attain different purposes and objectives. And, as will be explained, § 9658 mandates a distinction between the two. In the ordinary course, a statute of limitations creates "a time limit for suing in a civil case, based on the date when the claim accrued." Black's Law Dictionary 1546 (9th ed. 2009) (Black's); see also Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. ----, ----, 134 S.Ct. 604, 610, 187 L.Ed.2d 529 (2013) ("As a general matter, a statute of limitations begins to run when the cause of action'"accrues" '-that is, when 'the plaintiff can file suit and obtain relief' " (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997))). Measured by this standard, a claim accrues in a personal-injury or property-damage action "when the injury occurred or was discovered." Black's 1546. For example, North Carolina, whose laws are central to this case, has a statute of limitations that allows a person three years to bring suit for personal injury or property damage, beginning on the date that damage "becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs." N.C. Gen.Stat. Ann. § 1-52(16). A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant. A statute of repose "bar[s] any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury." Black's 1546. The statute of repose limit is "not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered." 54 C.J.S., Limitations of Actions § 7, p. 24 (2010) (hereinafter C.J.S.). The repose provision is therefore equivalent to "a cutoff," Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), in essence an "absolute... bar" on a defendant's temporal liability, C.J.S. § 7, at 24. Although there is substantial overlap between the policies of the two types of statute, each has a distinct purpose and each is targeted at a different actor. Statutes of limitations require plaintiffs to pursue "diligent prosecution of known claims." Black's 1546. Statutes of limitations "promote justice by preventing surprises through [plaintiffs'] revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788 (1944). Statutes of repose also encourage plaintiffs to bring actions in a timely manner, and for many of the same reasons. But the rationale has a different emphasis. Statutes of repose effect a legislative judgment that a defendant should "be free from liability after the legislatively determined period of time." C.J.S. § 7, at 24; see also School Board of Norfolk v. United States Gypsum Co., 234 Va. 32, 37, 360 S.E.2d 325, 328 (1987) ("[S]tatutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability" (internal quotation marks omitted)). Like a discharge in bankruptcy, a statute of repose can be said to provide a fresh start or freedom from liability. Indeed, the Double Jeopardy Clause has been described as "a statute of repose" because it in part embodies the idea that at some point a defendant should be able to put past events behind him. Jones v. Thomas, 491 U.S. 376, 392, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) (SCALIA, J., dissenting). One central distinction between statutes of limitations and statutes of repose underscores their differing purposes. Statutes of limitations, but not statutes of repose, are subject to equitable tolling, a doctrine that "pauses the running of, or 'tolls,' a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action." Lozano v. Montoya Alvarez, 572 U.S. 1, ----, 134 S.Ct. 1224, 1231-1232, 188 L.Ed.2d 200 (2014). Statutes of repose, on the other hand, generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff's control. See, e.g., Lampf, supra, at 363, 111 S.Ct. 2773 ("[A] period of repose [is] inconsistent with tolling"); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056, p. 240 (3d ed. 2002) ("[A] critical distinction is that a repose period is fixed and its expiration will not be delayed by estoppel or tolling"); Restatement (Second) of Torts § 899, Comment g (1977). Equitable tolling is applicable to statutes of limitations because their main thrust is to encourage the plaintiff to "pursu[e] his rights diligently," and when an "extraordinary circumstance prevents him from bringing a timely action," the restriction imposed by the statute of limitations does not further the statute's purpose. Lozano, supra, at ----, 134 S.Ct., at 1231-1232. But a statute of repose is a judgment that defendants should "be free from liability after the legislatively determined period of time, beyond which the liability will no longer exist and will not be tolled for any reason." C.J.S. § 7, at 24. As an illustrative example, under North Carolina law statutes of limitations may be tolled but statutes of repose may not. See, e.g.,Monson v. Paramount Homes, Inc., 133 N.C.App. 235, 239-241, 515 S.E.2d 445, 449 (1999). B The relevant provisions of § 9658 and its definitions are central here, so the pre-emption directive is quoted in full: "(a) State statutes of limitations for hazardous substance cases "(1) Exception to State statutes "In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute. "(2) State law generally applicable "Except as provided in paragraph (1), the statute of limitations established under State law shall apply in all actions brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility. ..... "(b) Definitions ..... "(2) Applicable limitations period "The term 'applicable limitations period' means the period specified in a statute of limitations during which a civil action referred to in subsection (a)(1) of this section may be brought. "(3) Commencement date "The term 'commencement date' means the date specified in a statute of limitations as the beginning of the applicable limitations period. "(4) Federally required commencement date "(A) In general "Except as provided in subparagraph (B), the term 'federally required commencement date' means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned. "(B) Special rules "In the case of a minor or incompetent plaintiff, the term 'federally required commencement date' means the later of the date referred to in subparagraph (A) or the following: "(i) In the case of a minor, the date on which the minor reaches the age of majority, as determined by State law, or has a legal representative appointed. "(ii) In the case of an incompetent individual, the date on which such individual becomes competent or has had a legal representative appointed." On the facts of this case, petitioner does not contend that North Carolina's 3-year statute of limitations bars respondents' suit. Though the suit was filed in 2011, more than 20 years after petitioner sold the property at issue, respondents allege that they learned about the contamination only in 2009. C The Court now examines in more detail the question whether the state statute of repose is pre-empted by the federal statute. The Court of Appeals supported its interpretation of § 9658 by invoking the proposition that remedial statutes should be interpreted in a liberal manner. The Court of Appeals was in error when it treated this as a substitute for a conclusion grounded in the statute's text and structure. After all, almost every statute might be described as remedial in the sense that all statutes are designed to remedy some problem. And even if the Court identified some subset of statutes as especially remedial, the Court has emphasized that "no legislation pursues its purposes at all costs." Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) ( per curiam ). Congressional intent is discerned primarily from the statutory text. In any event, were the Court to adopt a presumption to help resolve ambiguity, substantial support also exists for the proposition that "the States' coordinate role in government counsels against reading" federal laws such as § 9658 "to restrict the States' sovereign capacity to regulate" in areas of traditional state concern. FTC v. Phoebe Putney Health System, Inc., 568 U.S. ----, ----, 133 S.Ct. 1003, 1016, 185 L.Ed.2d 43 (2013). Turning to the statutory text, the Court notes first that § 9658, in the caption of subsection (a), characterizes pre-emption as an "[e]xception" to the regular rule. § 9658(a)(1). Section 9658 contains another subsection, with the heading "State law generally applicable," that provides the rule that "the statute of limitations established under State law shall apply." § 9658(a)(2). Under this structure, state law is not pre-empted unless it fits into the precise terms of the exception. The statute defines the "applicable limitations period," the "commencement date" of which is subject to pre-emption, as a period specified in "a statute of limitations." § 9658(b)(2). Indeed, § 9658 uses the term "statute of limitations" four times (not including the caption), but not the term "statute of repose." This is instructive, but it is not dispositive. While the term "statute of limitations" has acquired a precise meaning, distinct from "statute of repose," and while that is its primary meaning, it must be acknowledged that the term "statute of limitations" is sometimes used in a less formal way. In that sense, it can refer to any provision restricting the time in which a plaintiff must bring suit. See Black's 1546; see also Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Congress has used the term "statute of limitations" when enacting statutes of repose. See, e.g., 15 U.S.C. § 78u-6(h)(1)(B)(iii)(I)(aa) (2012 ed.) (creating a statute of repose and placing it in a provision entitled "Statute of limitations"); 42 U.S.C. § 2278 (same). And petitioner does not point out an example in which Congress has used the term "statute of repose." So the Court must proceed to examine other evidence of the meaning of the term "statute of limitations" as it is used in § 9658. The parties debate the historical development of the terms "statute of limitations" and "statute of repose" in an effort to show how these terms were likely understood in 1986, when Congress enacted § 9658. It is apparent that the distinction between statutes of limitations and statutes of repose was understood by some courts and scholars before 1986. The 1977 Restatement of Torts noted that "[i]n recent years special'statutes of repose' have been adopted in some states.... The statutory period in these acts is usually longer than that for the regular statute of limitations, but... may have run before a cause of action came fully into existence." Restatement (Second) of Torts § 899, Comment g. But that usage, now predominant, then was not the only definition of the two terms. One scholar, writing in 1981, described multiple usages of the terms, including both a usage in which the terms are equivalent and also the modern, more precise usage. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am. U.L. Rev. 579, 584 (1981) (describing a statute of repose as "distinct from a statute of limitation because [a statute of repose] begins to run at a time unrelated to the traditional accrual of the cause of action"). Respondents note that an entry in Black's Law Dictionary from 1979 describes a statute of limitations as follows: "Statutes of limitations are statutes of repose." Black's 835 (5th ed.). That statement likely reflects an earlier, broader usage in which the term "statute of repose" referred to all provisions delineating the time in which a plaintiff must bring suit. See, e.g., Pillow v. Roberts, 13 How. 472, 477, 14 L.Ed. 228 (1852) ("Statutes of limitation... are statutes of repose, and should not be evaded by a forced construction"); Rosenberg v. North Bergen, 61 N.J. 190, 201, 293 A.2d 662, 667 (1972) ("All statutes limiting in any way the time within which a judicial remedy may be sought are statutes of repose"); Black's 1077 (rev. 4th ed. 1968) (defining "statute of limitations" as "[a] statute... declaring that no suit shall be maintained... unless brought within a specified period after the right accrued. Statutes of limitation are statutes of repose"); Ballentine's Law Dictionary 1233 (2d ed. 1948) (similar). That usage does not necessarily support respondents' interpretation, because the broad usage of the term "statute of repose" does not mean that the term "statute of limitations" must refer to both types of statute. From all this, it is apparent that general usage of the legal terms has not always been precise, but the concept that statutes of repose and statutes of limitations are distinct was well enough established to be reflected in the 1982 Study Group Report, commissioned by Congress. In one of its recommendations, the Study Group Report called on States to adopt the discovery rule now embodied in § 9658. Study Group Report, pt. 1, at 256. The Report acknowledged that statutes of repose were not equivalent to statutes of limitations and that a recommendation to pre-empt the latter did not necessarily include the former. For immediately it went on to state: "The Recommendation is intended also to cover the repeal of the statutes of repose which, in a number of states[,] have the same effect as some statutes of limitation in barring [a] plaintiff's claim before he knows that he has one." Ibid. The scholars and professionals who were discussing this matter (and indeed were advising Congress) knew of a clear distinction between the two. The Report clearly urged the repeal of statutes of repose as well as statutes of limitations. But in so doing the Report did what the statute does not: It referred to statutes of repose as a distinct category. And when Congress did not make the same distinction, it is proper to conclude that Congress did not exercise the full scope of its pre-emption power. While the use of the term "statute of limitations" in § 9658 is not dispositive, the Court's textual inquiry does not end there, for other features of the statutory text further support the exclusion of statutes of repose. The text of § 9658 includes language describing the covered period in the singular. The statute uses the terms "the applicable limitations period," "such period shall commence," and "the statute of limitations established under State law." This would be an awkward way to mandate the pre-emption of two different time periods with two different purposes. True, the Dictionary Act states that "words importing the singular include and apply to several persons, parties, or things" unless "the context indicates otherwise." 1 U.S.C. § 1. But the Court has relied on this directive when the rule is " 'necessary to carry out the evident intent of the statute.' " United States v. Hayes, 555 U.S. 415, 422, n. 5, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (quoting First Nat. Bank in St. Louis v. Missouri, 263 U.S. 640, 657, 44 S.Ct. 213, 68 L.Ed. 486 (1924)). As discussed, the context here shows an evident intent not to cover statutes of repose. Further, to return again to the definition of the "applicable limitations period," the statute describes it as "the period" during which a "civil action" under state law "may be brought." § 9658(b)(2). It is true that in a literal sense a statute of repose limits the time during which a suit "may be brought" because it provides a point after which a suit cannot be brought. Ibid.; see C.J.S. § 7, at 24 ("A statute of repose... limits the time within which an action may be brought"). But the definition of the "applicable limitations period" presupposes that "a [covered] civil action" exists. § 9658(b)(2). Black's Law Dictionary defines a "civil action" as identical to an "action at law," which in relevant part is defined as a "civil suit stating a legal cause of action." Black's 32-33, 279 (9th ed. 2009); see also id., at 222 (5th ed. 1979). A statute of repose, however, as noted above, "is not related to the accrual of any cause of action." C.J.S. § 7, at 24. Rather, it mandates that there shall be no cause of action beyond a certain point, even if no cause of action has yet accrued. Thus, a statute of repose can prohibit a cause of action from coming into existence. See, e.g.,N.C. Gen.Stat. Ann. § 1-52(16) ("[N]o cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action"); see also Hargett v. Holland, 337 N.C. 651, 654-655, 447 S.E.2d 784, 787 (1994) ( "A statute of repose creates an additional element of the claim itself which must be satisfied in order for the claim to be maintained.... If the action is not brought within the specified period, the plaintiff literally has no cause of action" (internal quotation marks omitted)); Lamb v. Wedgewood South Corp., 308 N.C. 419, 440-441, 302 S.E.2d 868, 880 (1983). A statute of repose can be said to define the scope of the cause of action, and therefore the liability of the defendant. See Hargett, supra, at 655-656, 447 S.E.2d, at 788. In light of the distinct purpose for statutes of repose, the definition of "applicable limitations period" (and thus also the definition of "commencement date") in § 9658(b)(2) is best read to

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

What is the issue of the decision?

UNITED STATES v. GORDIN (two cases). (Circuit Court of Appeals, Sixth Circuit. December 2, 1925.) Nos. 4365, 4366. Appeal and error <§=>850(2) — Judgme'nt on general finding not reviewable on facts and law. " Where, in action at' law, jury is waived, and the court makes a general finding for plaintiff,, reviewing court may not inquire into the facts and conclusions of .law on. which trial court’s judgment for -nominal damages rests, though it was stipulated that witnesses, if called, would testify to certain facts, i- Appeals from the District Court of- the United States for. the'Western Division of the Southern District of Ohio; Smith Hiekenlooper, Judge. ... Two actions by the United States, one aghinst William H. Gordin, and the othef against him as administrator of Richard B. Gordin, deceased. Judgments for nominal damages, and the [United States appeals; the cases being heard and submitted together. Affirmed. See, also, 287 F. 565. J. F. Bohannon, Asst. to Sol. Dept. of Agriculture, of Washington, D. C. (Haveth E. Mau, U. S. Atty., and Harry A. Abrams, Asst. U. S. Atty., both of Cincinnati, Ohio, on the brief), for the United States. Chase Stewart, of Springfield, Ohio (John M. Cole, of Springfield, Ohio, on the brief), for defendant in error. Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges. DONAHUE, Circuit Judge. The United States brought separate actions at law against Wm. H. Gordin and Wm. H. Gordin, administrator of the estate of Richard B. Gordin, deceased, respectively, to recover excess profits made by each of these defendants in the handling of wool of the domestic' clip for the year 1918. Each of these eases involved substantially the same questions of faet and law, and it was therefore agreed by -counsel that the evidence introduced should be applicable and considered by the District Court equally in both cases. These separate error proceedings were likewise heard and submitted together. The United States relied for recovery in each ease upon regulations issued by the War Industry Board on May 21, 1918, which provided for the licensing of “country dealers,” who buy wool from growers for the purpose of selling to central dealers, and declared that “country dealers” should he entitled in the wool business during the year of 1918 to receive a gross profit of 1% cents per pound on .the total season’s business, this profit to cover all expenses from grower to loading wool on board ears. The defendants by answer admitted the creation of the War Industry Board; that it adopted regulations purporting to limit the gross profits of defendants to 1% cents per pound; that they applied for and obtained the permits; and denied each and every other allegation of the petition. Further answering, the defendants averred.that the alleged contract or agreement between the plaintiff and defendant, if any, was obtained by coercion and duress, in that defendant was. informed- he was required to obtain a permit and sign the alleged agreement, otherwise he would not be permitted to do ‘any business, and that the alleged contract was without any consideration whatever. ' In each of these cases the parties waived in writing a trial by jury, and the cause was submitted to the court .upon the evidence. The court made no separate findings of facts and law, but found, generally 'on the issues joined for the plaintiff in each of these cases, and entered judgment in each ease in favor of the plaintiff for the sum of $1.00. : It ••is insisted upon the part of the United States that the trial court erred to its prejudice in rendering judgment for nominal damages in the sum of $1, for the reason that the judgment should have been for the full amounts asked in the petitions “as disclosed by tho stipulation of facts and the documentary evidence.” This question is not presented by this record. Tho parties having waived a jury, and the finding of the District Court being a general finding for tho plaintiff, neither the evidence nor the question of law presented by it is reviewable by this court. Law v. U. S., 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401. That case was decided August 5, 1925, and expressly holds that, where a jury has been waived and the court makes a general finding, it is not permissible for a court of review “to inquire into the facts and the conclusions of law on which the judgment of tho lower court rests” — citing Norris v. Jackson, 9 Wall. 125, 19 L. Ed. 608; Insurance Co. v. Folsom, 18 Wall. 237, 21 L. Ed. 827; Boardman v. Toffey, 117 U. S. 271, 6 S. Ct. 734, 29 L. Ed. 898. There are many other decisions by federal courts to the same effect, but in view of the recent decision of the Supreme Court in Law v. U. S., supra, it is unnecessary to cite further authorities. It is claimed, however, on the part of the United States, that this record contains an agreed statement of facts, and in support of this claim our attention is called to a stipulation of counsel as to what certain witnesses would testify, if they were called, sworn, and examined in open court. This was not an admission of the facts concerning which it was agreed the witnesses would testify as stipulated, but merely an agreement that these witnesses, if called and sworn, would so testify. The record in this respect is no wise different than it would be, if it appeared that these witnesses had acteally testified, and no stipulation whatever had been made in reference to their testimony. Judgment affirmed.

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

WILLIAMS et al. v. UNITED STATES. No. 8252. Circuit Court of Appeals, Ninth Circuit. Dec. 20, 1937. Leslie S. Bowden and Clyde C. Shoemaker, both of Los Angeles, Cal. (Samuel W.“Blum, of Los Angeles, Cal., of counsel), for appellant Williams. Ames Peterson, of Los Angeles, Cal., for appellant Black. Peirson M. Hall, U. S. Atty., and Leo V. Silverstein and Howard V. Calverly, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee. Before GARRECHT, DENMAN, and HANEY, Circuit Judges. Rehearing denied Feb. 18, 1938. GARRECHT, Circuit Judge. The appellants were indicted with five other persons on mail fraud charges. The first ten counts of the indictment alleged the devising of a scheme and artifice to defraud and the use of the United States mails for the purpose of executing such scheme, in violation of section 215 of the Federal Penal Code, 18 U.S.C.A. § 338. The eleventh count charged a conspiracy to do the acts set forth in the first ten counts, all in violation of section 37 of the Penal Code, 18 U.S.C.A. § 88. The appellants interposed demurrers, both of which were overruled. Requests for a bill of particulars were denied, with the exception of two items requested by the appellant Black. Exceptions were noted to the adverse rulings. Three defendants were placed on trial, namely, the appellants and William J. Mun-ton. The indictment was dismissed as to the defendants David E. Fulwider and Clare Clee. Before the trial commenced, the defendants Henry M. Dermer and Herbert R. Freeland entered pleas of nolo contendere to the first count, and the remaining ten counts entered against them were dismissed. Before the trial commenced, counsel for Munton and the appellant Black made a statement to the court which he termed “a demurrer to the evidence,” as to all defendants and all counts, and counsel for the appellant Williams moved to exclude all evidence on each count of the indictment. The demurrer was overruled and the motion was denied. At the conclusion of the appellee’s case in chief, counsel for the defendants moved for a directed verdict and to dismiss, which motions were denied and exceptions noted, except that counts 2 and 3 of the indictment were dismissed as to all defendants. At the conclusion of all the evidence, the appellants renewed the motions made at the conclusion of the appellee’s case, for instructed verdicts of not guilty. The motions were denied and exceptions noted. The jury returned a verdict finding the appellants guilty on counts 1 and 4 to 11, inclusive, and finding the defendant Munton not guilty on all counts of the indictment. The appellants’ motions for a new trial were denied, and judgment in accordance with the verdict was pronounced. From that judgment, the present appeal has been taken. There are 55 assignments of error, but only 15 specifications are urged in the briefs by the appellant Black and 9 by the appellant Williams. One of the most meritorious assignments and specifications of error is the one which sets forth that the lower court “erred during the trial of the case in indulging in acts of advocacy, in that the trial court, in examining and cross-examining witnesses and the defendants, virtually assumed the role of a prosecuting attorney.” In reviewing this assignment, we are not unmindful that the able District Judge who tried this case has, heretofore, established a reputation for fairness and judicial poise, and in this opinion we do not wish to imply that the trial judge intentionally was unfair. But as the authorities herein referred to point out, the harm done is not diminished where the judge, by reason of unrestrained zeal, or through inadvertence, departs from “that attitude of disinterestedness which is the foundation of a fair and impartial trial.” The appellants estimate that approximately one-third of the transcript of testimony is devoted to the examination of witnesses by the trial court — or about 220 out of 675 pages. The appellee does not deny this, but, on the contrary, concedes that the court’s examination of witnesses was “of considerable length.” The appellee contends, however, that the lower court’s examination had “no earmarks of unfairness or unfriendly attitude toward the defendants, but only that of enlightenment to everyone concerned.” It would unduly lengthen this opinion to attempt to summarize the court’s entire activities with regard to the examination of witnesses. A few examples, however, will suffice. To place these examples in their proper setting, a brief glance at the issues is necessary. The case deals with the sale of the stock of the Hollywood Dry Distributing Company, a Delaware corporation, organized in 1928, the name of which was changed to Hollywood Dry Corporation. The appellant Black was general manager of the company, and was also president of the Consolidated Investment Corporation, which had offices both in Los Angeles and Fresno, Cal. Later Black became a director and the executive vice president of the Hollywood Dry Corporation. The appellant Williams was president of the First National Bank of Fresno. He testified that he and the defendant Dermer brought, about the incorporation of Hollywood Dry, Inc., in the summer of 1926. That company, which engaged in the manufacturing of ginger ale and other beverages, was the predecessor of the Hollywood Dry Distributing Company and the Hollywood Dry Corporation. Williams was elected director and vice president of Hollywood Dry Distributing Company on November 12, 1928. The company’s plant was first located in San Francisco, but in 1928 moved to Los Angeles. The indictment charges that, as a part of the “scheme and artifice to defraud,” the defendants, while dominating and controlling the Hollywood Dry Distributing Company and the Hollywood Dry Corporation, caused those corporations to issue to the defendants and others large amounts of stock without any consideration being received by the companies therefor; that, as part of the same scheme, the defendants caused certain letters to be sent through the mails; that, also as part of the plan, the defendants, on January 15, 1930, paid to the holders of Class A stock of the Hollywood Dry Corporation moneys which the defendants represented were dividends from the earnings of the corporation, when in truth and in fact the corporation was then operating at a loss, the so-called “dividends” being paid from a source other than the profits of the corporation; and that, still as part of the scheme to defraud, the defendants set up on the books of the Hollywood Dry Corporation two contracts at a valuation of $485,000 and a promissory note for $200,000, including the contracts and note as assets, when the defendants well knew that such contracts and such note had little or no value. By far the greater part of the examination of the defendant Freeland was conducted by the District Judge. Freeland, who had filed a plea of nolo contendere, was a witness for the appellee. The court’s examination of Freeland consumes approximately 64 pages of' the transcript. Frequently the court completely took away the examination from counsel, despite the fact that the attorneys on both sides seemed to be conducting their respective cases in an able and lawyer-like manner. The following is an example: “The Court (interrupting) : That sounds like it probably calls for a conclusion. Let me see if I can be of some assistance here. “Mr. Silverstein [Assistant United States Attorney] : I would like to ask further — ■ “The Court: (Interrupting) What? “Mr. Silverstein: I was going to ask further along the same line.” But the court ignored the appellee’s attorney and proceeded to conduct the redirect examination in its own way, propounding leading and suggestive questions that would not have been permitted to the prosecutor himself. Similarly, the court took- over the cross-examination of Freeland: “Mr. Silverstein: That is all of the Government’s direct examination. “Mr. Peterson: Does the Court desire me to proceed with the cross-examination? “The Court: Just a moment “May I have Exhibit 172?” And thereupon the court began questioning the witness, the examination covering 3 pages of the transcript. Approximately 32 pages of the transcript are taken up with the lower court’s examination of the defendant Munton, who had been bookkeeper and assistant secretary of the Hollywood Dry Corporation. Although Munton was acquitted, it must be borne in mind that he testified strongly in favor of his codefendants, particularly the appellants, so that any attempt to hamper or discredit his testimony would be prejudicial to them. As in the case of other witnesses, the trial judge interrupted Munton while the latter was answering a proper question on cross-examination. The appellee’s attorney had asked the witness why a certain item, derived by subtracting the base valuation of certain shares of stock from the excess of assets over liabilities, had been entered into the surplus account: “Q. * * * If those figures are correct, I will now ask you if that is not the reason that this $104,046.32 was placed in the surplus account other than in the account that you, as the bookkeeper, had placed it in? A. I didn’t have it placed in— “The Court: It just occurs to me to ask the witness this: “From time to time after you became Secretary of Hollywood Dry Distributing Company, as appears from the minutes early in September, 1928, did you have anything to do with the preparation of stock certificates and the signing of the same?” The testimony was thus veered off to another subject, and for approximately 13 pages of the transcript the examination was conducted by the District Judge. We believe, furthermore, that the court indulged in unnecessary sarcasm in the following colloquy with Munton. “The Court: And did you ever talk to any officer of Hollywood Dry Distributing Company relative to this consolidated balance sheet? “A. The Witness. I likely did, your Honor. I have no distinct recollection of it at this time. “Q. Well, you remember that you were the bookkeeper of the Hollywood Dry, Inc.?” The court’s examination of the appellant Williams consumed 21 pages, some of which was searching cross-examination. The court’s examination of the appellant Black covers approximately 45 pages of the transcript. During the course of his extensive examination, the District Judge asked the following question: “Q. Now, can you tell us where you find anywhere in this Exhibit 43 any reference directly or indirectly to the fact that this profit was realized except out of what the company received from conducting its business during the first six months of 1929?” Upon objection made by counsel for the appellant Black that the document spoke for itself, and that the question called for a conclusion, the court said: “The Court: Well, I am not going to insist upon the witness answering the question if you stand by that objection, but I will say, so that counsel may be apprised, why I asked : “This jury will be called upon among other things, to make findings from all of the evidence— “Mr. Peterson (Interrupting) True. “The Court: (Continuing) — and if any inference — or, rather, if any inference may fairly be drawn from the exhibit, to which the witness’ attention has been directed, other than that it is a statement to the effect that the profit referred to was realized out of the conduct of the business through the sale of the company’s products, my thought would be that the witness should be afforded the opportunity of showing. While it is for the jury exclusively to find facts, I am very much impressed with the thought that_ without some statement from this witness, or some other, that the fair and only reasonable inference to be drawn from that exhibit is that the company had earned a profit of some $90,000 during the first six months of 1929 through the sale of its products, which was the only business in which it was engaged. "Nozo, I think your objection, if you insist upon it, ought to be sustained(Italics our own.) We think that the foregoing comment by the trial judge, made as it was in the presence of the jury, was entirely out of place. It was a clear.attempt to justify a question that was admittedly improper, and it placed counsel in a position of apparently fearing to have Black express his opinion regarding the exhibit. The judge’s speech entirely destroyed the effect of his correct ruling on the evidence. The trial court’s examination of Richard A. Bottenfield, a certified public accountant called by the appellee, took up 12 pages of the printed transcript. The lower court’s apparent desire to assist the prosecution was shown in the attempt to put into the mouth of the witness words that would have been prejudicial to the appellant Black. The accountant was testifying on direct examination regarding a visit to the offices of the Hollywood Dry Corporation for the purpose of making an audit and the following dialogue between the court and witness ensued: “The Court: I mean, who identified you as being" somebody who had any right to be there? “The Witness: Well, I met— “The Court: (Interrupting) In other words, you met Mr. Black?” This was an obvious attempt to connect the appellant Black with the corporation’s books, which were being offered in evidence. The witness, however, declined to be led, and replied that he had met' Munton. Other witnesses whom the District Judge examined at great length were Kenneth J. Hines, 6 pages; and Floyd R. Be-kins, 4 pages. The court repeatedly took the direct examination of Bekins away from counsel for the appellee, ignoring defense objections to questions and answers, and conducting the examination in its own way. In addition to the witnesses to whom we have referred, the District Judge examined a number of others, the questions and answers covering 12 pages of the printed transcript. The appellee contends that the record fails to disclose that the appellants “objected to the Court’s interrogation of the witnesses,” or that “any exceptions [were] taken by the appellants arising out of the interrogation.” If the appellee means that the appellants did not object or except to the length and minuteness of the examination conducted by the District Judge, the statement is probably correct. The appellants did, however, repeatedly object to questions propounded by the trial court, and exceptions were properly taken to adverse rulings on some of the objections. Be that as it may, counsel are not held to strict accountability for failure to.object or except when the questions are asked by the court. This point is well covered in the leading case on the sub j ect, from which we are about to quote. The appellant Williams suggests that “not once during the entire trial did the court interrupt the proceedings and examine any witness for the purpose of aiding the defense or breaking down the prosecution testimony.” While replying that “The complete record of the Court’s examination in the instant case, while of considerable length, has no earmarks of unfairness or unfriendly attitude toward the defendants,” the appellee fails to point out a single instance in which the court’s intervention in the questioning was to assist the defendants. Our own examination of the record has convinced us that by far the major portion of the 200-page examination conducted by the District Judge — when such examination dealt with more than formal or preliminary matters — tended to aid the prosecution in proving its material contentions. Rare indeed were the instances in which the trial court came to the rescue of the defense. The court’s insistent efforts to connect the appellants with the books and literature of the Hollywood Dry Corporation; its frequent and unnecessary interruptions of both direct and cross-examinations that were being competently conducted; and its lengthy and inquistorial cross-examination of the defendants, including the appellants themselves, all tended,-we think, to convey to the jury — though no doubt inadvertently — the impression that the court was insisting upon a conviction. The prejudicial effect of protracted questioning of witnesses by the trial judge, and the handicaps under which counsel labor in coping with such a situation, have been repeatedly emphasized in the decisions. In the leading case of Adler v. United States, 5 Cir., 182 F. 464, 472, 473, the court said: “The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy which is required by the conflict of the evidence to be finally submitted to the jury — is a fundamental and essential rule of especial importance in criminal cases. The importance and power of his office, and the theory and rule requiring impartial conduct on his part, make his slightest action of great weight with the jury. While we are of opinion that the judge is permitted to take part impartially in the examination or cross-examination of witnesses, we can readily see that, if he takes upon himself the burden of the cross-examination of defendant’s witnesses, when the government is represented by competent attorneys, and conducts the examination in a manner hostile to the defendant and the witnesses, the impression would probably be produced on the minds of the jury that the judge was of the fixed opinion that the defendant was guilty and should be convicted. This would not be fair to the defendant, for he is entitled to the benefit of the presumption of innocence by both judge and jury till his guilt is proved. If the jury is inadvertently led to believe that the judge does not regard that presumption, they may also disregard it. “A cross-examination that would be unobjectionable when conducted by the prosecuting attorney might unduly prejudice the defendant when it is conducted by the trial judge. Besides, the defendant’s counsel is placed at a disadvantage, as they might hesitate to make. objections and reserve exceptions to the judge’s examination, because, if they make objections, unlike the effect of their objections to questions by opposing counsel, it zvill appear to the jury that there is direct conflict between them and the court. If it were the function of the judge in this country, as it is in some foreign tribunals, to perform the duties incumbent here on the district attorney, the impression produced on the minds of the jury against the defendant would not be so inevitable. Counsel are expected to maintain an attitude of respect and deference toward the judge, and this attitude is maim tained without difficulty when the judge confines his activities to the usual judicial duties. And the judge can more easily treat counsel with the respect due an officer of the court in the performance of a duty, if he avoids the performance of the duties incumbent properly upon an attorney representing one side of the case. The evidence, taken as a whole, might be so conclusive of the defendant’s guilt that an appellate court would not be justified in interfering with the judgment on this account alone. But in a case where there is substantial conflict in the evidence as to the essential points that were required to be submitted to the jury, the course of the judge in unnecessarily assuming to perform the duties incumbent primarily upon others might make it the duty of an appellate court, on this ground alone, to grant a new trial.” (Italics our own.) Citing with approval the rule laid down in the Adler Case, supra, the court, in Frantz v. United States, 6 Cir., 62 F.2d 737, 739, said: “Throughout the trial, lasting a number of days, the District Judge was quite evidently convinced of the guilt of the accused, and took no pains to avoid disclosure of this fact to the jury. In his examination and cross-examination of witnesses, in remarks in the presence of the jury as to the state of evidence upon certain issues, and in opinions he expressed as to other elements of testimony and the frequent reiteration of a question respecting the defendant’s presence in the paying teller’s cage, ‘when all the shortages of interest failed to go through,’ the trial judge inadvertently, we are sure, departed from that attitude of disinterestedness which we regard as the very foundation of a fair and impartial trial. We do not intend to hold, or even to imply, that a federal judge may not participate directly in both civil and criminal trials, or propound such questions to witnesses as seem to him essential to the proper development of the case, or express his personal opinion upon fact issues, but in so doing he should always be calmly judicial, dispassionate, and impartial. He should sedulously avoid all appearance of advocacy as to those questions which are ultimately to be submitted to the jury.” Again, in Hunter v. United States, 5 Cir., 62 F.2d 217, 220, the court used the following language: “The assignments of error based on the district judge’s cross-examination of appellant are in our opinion well taken. While that method of cross-examination, if it had been conducted by the district attorney, might have been proper, a district judge ought never to assume the role of a-prosecuting attorney and lend the weight of his great influence to the side of the government. It is the judge’s duty to maintain an 'attitude of unswerving impartiality between the government and the accused, and he ought never in any questions he asks go beyond the point of seeing to it, in the interests of justice, that the case is fairly tried. We refer with entire approval to what Judge Shelby, speaking for this court long ago, said on this subject in Adler v. United States, 182 F. 464. The only conclusion that could reasonably be drawn from the questions objected to was that the judge did not believe appellant was telling the truth about the amount or source of his income, but was thoroughly convinced and was attempting to demonstrate that appellant was deriving a large income from the illegal transportation and sale of liquor.” The extent to which a trial judge should examine witnesses was well expounded by the Supreme Court of California in People v. Boggess, 194 Cal. 212, 241, 228 P. 448, 460: “There can be no doubt that it is the duty of the trial court, if the exigencies of the occasion require it, to facilitate, by one or more proper interrogatories, the direct and cross examination of a witness. But for the court to repeatedly take the defendant as a witness out of the hands of.his counsel, who, as the record before us shows, was apparently competent, conscientious, and expeditious in his conduct of the case, and proceed along an independent and extensive line of examination and cross-examination, is not only not commendable, but highly irregular, and for the sake of due and orderly administration of justice should not be indulged in. Ordinarily the proper course, and the one generally pursued, is to allow the examination by counsel — direct, cross, redirect, and recross — to conclude, and then, if anything in the judgment of the trial court remains obscure, which may be material for the jury to know, and it seems desirable that an examination of the witness should be further pressed, then, with perfect propriety, the trial court may, and indeed should, intervene so that the ends of justice may be subserved. This, however, should be done with care, particularly where the witness is the defendant in the case, lest the jury should, because of the court’s intervention, and because of that fact alone, indulge in adverse inferences and conclusions from the testimony of the witness.” See, also, People v. Bernstein, 250 Ill. 63, 95 N.E. 50, 51; 70 C.J. 562, § 719; 5 C.J.S., Appeal and Error, 914, 915, § 1712b. As we read the record — particularly'the 200 pages comprising the District Judge’s interrogation of witnesses — we are compelled to the conclusion that, in such questioning, the learned trial court passed beyond the immemorial limits set down for Anglo-American tribunals. Applying the language of the foregoing decisions, we believe that he took “upon himself the burden of the cross-examination of the defendant’s witnesses, when the government [was] represented by competent attorneys.” The District Judge furthermore repeatedly took the appellants out of the hands of their own “counsel, who, as the record before us shows, [were] apparently competent, conscientious and expeditious in [their] conduct of the case, and proceed[ed] along an independent and extensive line of examination and cross-examination.” We believe that the District Judge did not “sedulously avoid all appearance of advocacy as to those questions which [were] ultimately to be submitted to the jury,” but, on the contrary, probably produced on the minds of the jury the impression “that the judge was of the fixed opinion that the defendants] [were] guilty and should be convicted.” This being “a case where there is substantial conflict in the evidence as to the essential points that were required to be submitted to the jury, the course of the judge is unnecessarily assuming to perform the duties incumbent primarily upon others,” makes it our duty to grant a new trial. But we do not base our reversal of this case upon the foregoing ground alone. The appellants assign and specify as error that the court in its charge to the jury “erred in commenting upon the evidence * * * in that the comments amounted to an act of advocacy on the part of the court in favor of the prosecution, and in the said comments none of the evidence favorable to the defendants was stated.” Our examination of the instructions to the jury leads us to believe that the appellants have just cause to complain that the judge’s charge was one-sided. For instance, 9 pages of the printed transcript are taken up with the court’s summary of the indictment, each main heading of each summary being prefaced by the words, “the indictment charges and, in my opinion/ there is evidence which, if believed, tends to prove,” etc. Again, there are in the charge many pages devoted to summarizing evidence presented by the prosecution, while only meager, hurried, and passing reference is made to the case made by the defense, which called a dozen witnesses and offered in evidence 30 exhibits. Approximately 270 pages of the 656 pages of transcript of testimony are devoted to evidence submitted by the defense. Such volume of testimony, we think, deserved much fuller treatment at the hands of the court. A federal trial judge need not summarize the evidence at all. But if he undertakes to do. so, the summary must be fair and adequate. The authorities are agreed that it must not be one-sided. Mr. Chief Justice Hughes, in Quercia v. United States, 289 U.S. 466, 470, 472, 53 S.Ct. 698, 699, 77 L.Ed. 1321, has well stated the correct rule on this subject: “This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury ‘is necessarily and properly of great weight/ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided.’ * * * “Nor do we think that the error was cured by the statement of the trial judge that his opinion of the evidence was not binding on the jury and that if they did not agree with it they should find the defendant not guilty.” (Italics our own.) The definite limitation upon a judge’s right to summarize the evidence was thus tersely stated by the court in Trefone v. United States, 10 Cir., 67 F.2d 954, 955: “If the testimony is summed up or analyzed, care must be taken to sum up and analyze both sides.” See, also, Weare v. United States, 8 Cir., 1 F.2d 617, 619; Smith v. United States, 8 Cir., 18 F.2d 896, 897; Leslie v. United States, 10 Cir., 43 F.2d 288, 289; Minner v. United States, 10 Cir., 57 F.2d 506, 513; Hunter v. United States, supra, 62 F.2d 217, at page 220. In but a single instance did the lower court refer extensively to any part of the defense testimony. And that single instance was for the purpose of discrediting the testimony of the appellant Black. We refer to that portion of the lower court’s instructions dealing with the $200,-000 note given by the Hollywood Dry Eastern Corporation, referred to elsewhere in this opinion. After quoting from Black’s testimony, given during cross-examination conducted by the District Judge himself, the lower court compared that testimony with the evidence given by Munton and by Edwin B. Cassidy, a certified public accountant called by the appellee. After reading from 17 pages of the transcript of record, the learned District Judge thus instructed the jury: “Now, you will observe that in the testimony of defendant Black, he states that when this conversation took place with Mr. Cassidy both the note, Exhibit 29, and the extension agreement, Exhibit 30, were shown to the accountant. On the other hand, we have had the testimony of the accountant to the effect that he had never seen the extension agreement until the time of the so-called April-May, 1930, audit, and that extension agreement, which is Exhibit 30, made a vital difference in how the item might be carried. “Now there is a conflict in the testimony between the defendant Black on the one hand and Mr. Cassidy on the other. But, you may take into consideration on the one hand whether or not Mr. Cassidy had any interest in anything to which he testified here, any interest in the outcome of this case, and whether the defendant Black has any interest that might motivate him in any way to depart from the truth of what occurred on that occasion. “And then, over and beyond those considerations, you are to observe in the testimony of Mr. Munton, he not only tells that Mr. Black informed Mr. Cassidy that the note would be paid, but Munton makes no reference whatever to any extension agreement, Exhibit 30, being shown to Cassidy or anybody, and nothing was brought to Cassidy except the note itself.” This court has held that, even in a civil case, such singling out of defense testimony and comparing it with testimony adduced by the other side, with the intimation of “motivating interest,” is prejudicial error. In Sacramento Suburban Fruit Lands Co. v. Jensen, 9 Cir., 36 F.2d 936, 937, the late Judge Rudkin said: “The-court returned to the testimony of the witness Traxler and added: ‘Traxler says it was three hundred and fifty dollars an acre. He had 1,800 acres south of Rio Linda which he was selling at five hundred dollars an acre, two hundred and fifty dollars an acre, and up, the same variety and character of land, and he says he has sold out now but has stock. In weighing his testimony, as I told you a while ago, take into consideration if he has any interest or motive to keep up the price of land higher than the real value, in determining his evidence.’ This was an attempt on the part of the court to discredit the witnesses for the appellant and disparage their testimony, while the testimony of the witness for the other side was commended. The language thus 1 employed is the language of the advocate, not that fair and impartial presentation of the case which is absolutely indispensable, if the right of trial by jury is to be of any value to the citizen.” (Italics supplied.) Particularly objectionable is such singling out of the defendant’s testimony when such testimony has been elicited on cross-examination by the trial judge himself. In Hunter v. United States, supra, 62 F.2d 217, at page 220, the court said: “The judge’s charge was not as objectionable as was his cross-examination of appellant, but it was erroneous in that it was one sided, and placed undue emphasis on the testimony of appellant which the judge himself had brought out by his questions. If the trial judge comments on the evidence, as he has a right to do, he should call attention to the evidence in favor of as well as against the accused.” In the instant case, the lower court already had instructed the jury that it would be proper to consider “the interest which such defendant may have in the case, his hopes and his fears, and what he has to gain or lose as a result of your verdict.” The propriety of even such an instruction has been doubted by the Supreme Court. In Hicks v. United States, 150 U.S. 442, 452, 14 S.Ct. 144, 147, 37 L.Ed. 1137, that tribunal said: “It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices; and perhaps a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that ‘the person charged shall, at his own request, but not otherwise, be a competent witness.’ The policy of this enactment should not be defeated by hostile comments of the trial judge, whose duty it is to give reasonable effect and force to the law.” See, also, Allison v. United States, 160 U.S. 203, 207, 208, 16 S.Ct. 252, 40 L.Ed. 395. However that may be, it was clearly reversible error for the learned District Judge, after already having given the general instruction as to the defendant’s interest in the case, to refer to it again in connection with the comparison with Cassidy’s interest therein. As was said by Mr. Chief Justice Hughes in Quercia v. United States, supra, 289 U.S. 466, at page 470, 53 S.Ct. 698, 699, 77 L.Ed. 1321, “It is important that hostile comment of the judge should not render vain the privilege of the accused to testify in his own behalf.” The closing language of the opinion in Hunter v. United States, supra, 62 F.2d 217, at page 220, is applicable to the lower court’s activities in the instant case, both with respect to the examination of witnesses and the instructions to the jury: “That the district judge did not intend to be unfair is beside the question. The case was tried in such a way that the jury, in considering as a whole the judge’s questions and charge, might well have reached the conclusion that he was not impartial, but was insisting upon a conviction. It is vastly more important that the attitude of the trial judge should be impartial than that any particular defendant, however guilty he may be, should be convicted. It is too much to expect of human nature that a judge can actively and vigorously aid in the prosecution and at the same time appear to the layman on the jury to be impartial.” Another specification of error deals with the asserted error of the lower court in overruling the separate demurrers to the indictment. We do not think that this specification possesses merit. The indictment sufficiently charges an offense against the United States. The appellants also specify as errors the court’s “abuse of discretion” in denying their motion for a bill of particulars. We do not concur in that contention. As the appellant Black correctly concedes in his brief, it is only when injury has resulted from the denial of a request for a bill of particulars “that the error is of such a nature that a reversal will be granted.” In this connection, it should be remembered that the lower court ordered the defendants to “be permitted to examine such books and records of the corporation named in the indictment as may be in the possession of the United States Attorney or the Post Office Inspectors.” We cannot say that the appellants were denied any substantial. court’s denial of their re-rights by the quest for a bill of particulars. Since we are reversing the case, and the other errors, if any, may not be repeated on a new trial, we need not discuss the remaining specifications. In the language of the late Judge Sawtelle, of this court, in Cossack v. United States, 9 Cir., 63 F.2d 511, 517: “There are many other assignments of error relied upon by the appellant, relating to the refusal of the court to entertain an application for a continuance, relating to the instructions of the court on the grounds that they were partial, prejudicial, and argumentative, and, finally, relating to the admission of evidence during the trial. In view of the fact, however, that we are reversing the case on the foregoing specific

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?

The COUNTY OF OAKLAND, Plaintiff-Appellant, Cross-Appellee, and The County of Macomb, Intervening Plaintiff-Appellant, Cross-Appellee, v. The CITY OF DETROIT, et al., Defendants-Appellees, Nancy Allevato, Michael J. Ferrantino, Sr., Wayne Disposal, Inc., Charles Carson, Michigan Disposal, Inc., and Walter Tomyn, Defendants-Appellees, Cross-Appellants, and Coleman Young, et al., Defendants-Appellees, Cross-Appellants. Nos. 86-1200, 86-1217, 86-1218, 86-1266 to 86-1268, 86-1303 and 86-1334. United States Court of Appeals, Sixth Circuit. Argued April 14, 1987. Decided Jan. 27, 1989. Order on Denial of Rehearing and Rehearing En Banc April 19, 1989. Philip Tannian, Detroit, Mich., Terrence O’Reilly, Farmington Hills, Mich., Frank W. Dunham, Jr., Brian P. Gettings, Robert H. Fredericks, II, Pontiac, Mich., James I. Rubin (argued), for County of Oakland. S. Allen Early, III (argued), Detroit, Mich., for Young. Deborah J. Gaskin, Detroit, Mich., for Beckham. James A. Smith, Frederick J. Dindoffer, Detroit, Mich., William Misterovich, Ma-comb County Public Works Dept., Mt. Clemens, Mich., for County of Macomb. Richard E. Zuckerman (argued), Thea Marie Sankiewicz, Detroit, Mich., for Allevato, et al. Robert S. Harrison, David N. Zacks, Birmingham, Mich., for Michigan Disposal, Inc. Before MERRITT and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge. DAVID A. NELSON, Circuit Judge. Oakland County, Michigan, brought a federal antitrust and RICO action against the City of Detroit and its mayor, among others, on account of alleged overcharges for sewerage services. Macomb County, Michigan, was allowed to intervene in the action as an additional party plaintiff. The prices paid for the sewerage services were a function of the costs Detroit incurred in providing them. The plaintiff counties claimed that these costs were excessive, Detroit allegedly having procured sludge disposal services at inflated prices set in a price-fixing conspiracy, with enough padding to cover illegal kickbacks to city personnel. The complaints also alleged that the counties, as opposed to the City of Detroit, collected sewerage fees from municipalities located within sewage disposal districts operated by the counties, and the complaints alleged that Detroit was paid not by the local municipalities, but by the counties. The district court dismissed the complaints on the ground that the counties lacked standing to sue. The counties were mere intermediaries, the court concluded, and the municipalities bore the full burden of the alleged overcharges when the municipalities paid the bills submitted to them by the counties. The counties thus could not show that they had suffered the sort of “injury in fact” necessary to confer standing under the Constitution, the district court held, just as they could not show that they had been injured in their “business or property” within the meaning of that phrase as used in the statutes on which suit was brought. Both counties have appealed the dismissal of their complaints, and Oakland County has appealed an order denying its motion to vacate certain protective orders entered in related criminal proceedings. The defendants have cross-appealed an order denying, in part, their motion to quash a subpoena for certain electronic surveillance materials. Because we think that the plaintiff counties did allege injuries sufficient to give them standing to sue, we shall reverse the order of dismissal and direct that the complaints be reinstated. We think it would be inadvisable for us to try to resolve the various discovery issues at this stage of the litigation. I In 1977 the United States sued the City of Detroit in federal district court, alleging that Detroit was disposing of sewage in violation of federal environmental laws and regulations. A consent judgment was entered, but the United States became dissatisfied with the pace at which Detroit was moving toward compliance. In March of 1979, following issuance of a show cause order, the court made Coleman A. Young, Mayor of the City of Detroit, the “administrator” of the wastewater treatment plant operated by the Detroit Water and Sewerage Department. Invoking “the broad range of equitable powers available to this court to enforce and effectuate its orders and judgments,” the district court transferred all functions relating to operation of the treatment plant to Mayor/Administrator Young, divesting Detroit’s Board of Water Commissioners and the city water and sewerage department of authority vested in them under the city charter. The transfer of functions to Mr. Young was accompanied by a grant of what the order characterized as “extraordinary” powers, including the power to waive competitive bidding requirements in awarding contracts and the power to operate “without the necessity of any actions on the part of the Common Council of the City of Detroit....” United States v. City of Detroit, 476 F.Supp. 512, 515 and 520 (E.D.Mich.1979). The present appeal, like that in County of Oakland v. City of Berkley, 742 F.2d 289 (1984), draws in issue neither the validity of the court’s appointment of Mr. Young as administrator nor the validity of the court’s decision to vest in him powers which the city charter placed elsewhere. Id. at 292. Acting in his capacity as administrator, Mr. Young entered into contracts for the hauling and landfill disposal of sludge and scum from the city’s wastewater treatment plant. Various improprieties in the formation of these contracts allegedly increased the city’s costs and its charges to the counties; those improprieties form the basis for the counties’ action against the city, Mr. Young, the sludge haulers, and certain persons associated with them. The Detroit sewage disposal system serves not only the city itself, but the outlying counties of Oakland and Macomb. Oakland County, according to the affidavit of its chief deputy drain commissioner, operates three sewage disposal districts embracing some 35 municipalities. The municipalities have individual sewer systems that are connected to interceptor sewers built and operated by the county. The county sewer lines are connected, in turn, to the Detroit system. Detroit treats the sewage at its wastewater treatment plant and arranges for disposal of the residual sludge and other byproducts of the treatment process. Detroit bills Oakland County for the services provided by the city, and Oakland County bills the local municipalities. Detroit is entitled to be paid by Oakland County, as the affidavit establishes, whether or not the municipalities pay the county on time or in full. The fees Oakland County charges the various municipalities within its three sewer districts are based upon the county’s costs. These include costs incurred by the county under its contractual arrangements with Detroit, costs incurred in building, operating and maintaining the county system, and an allowance for reserves. The allocation of costs among the municipalities is, for a number of reasons, less precise than it might be. The character of the information used in the allocation process varies widely from community to community, for one thing. In some areas there are no individual user meters and no master meters that accurately record the flow of sewage. Thus in the Clinton-Oakland district the allocation is based on estimated usage multiplied by a flat rate, adjusted by a "unit assignment factor.” In the Evergreen-Farmington district the allocation for some municipalities is based on master water meters, while for others it is based on totals compiled from individual water meter readings, adjusted by a multiplier. Some Evergreen-Farmington communities have a separate storm water charge, while others do not. Some municipalities lie within two districts, while others lie wholly in one. In addition to operating connecting sewers that link local municipal systems with the Detroit system, Oakland County is directly responsible for operation of the local sewer systems in four communities. The County is also a consumer of sewer services; all Oakland County buildings are connected to local municipal sewer systems in the communities where the buildings are located, and Oakland County receives and pays regular sewer bills like any other end-user in those communities. The municipalities bill their individual residential and commercial customers under a procedure similar to Oakland County’s. Each community that operates its own local system allocates the county’s charges among its customers, after adding an amount sufficient to cover sewer expenses incurred at the local level. Turning to the specific events out of which the counties’ claims arise, the story begins in 1979, when Detroit was seeking new ways of disposing of sludge and scum from its wastewater treatment plant. On May 1 of that year Detroit signed a sludge disposal contract with defendant Michigan Disposal, a sludge-hauling firm owned by the late Michael Ferrantino. Mr. Ferranti-no’s estate is a defendant in this action. The contract, which covered only part of the output of the plant, was originally entered into for a term ending on June 30, 1983; the term was later extended to June 30, 1985. The sludge handled under the Michigan Disposal contract was taken to a landfill owned by Wayne Disposal, another firm controlled by Ferrantino. Michigan Disposal paid Wayne Disposal for the right to use its landfill. In 1980 Michigan Disposal made an unsolicited proposal for a second sludge-hauling contract, covering the balance of the output of Detroit’s plant. The city rejected the proposal, believing that total dependence on a single sludge hauler would be bad policy. Mr. Ferrantino decided to try skinning the cat another way. With defendant Darralyn Bowers, who was a close friend of Mayor Young, Ferrantino contrived a scheme to procure the second sludge-hauling contract for a front company known as Vista Disposal. Also involved in the scheme were defendant Tomlyn, a Michigan Disposal employee, and defendants Cusenza and Valentini. The latter two individuals were employees of Wolverine Disposal, another firm partly owned by Mr. Ferrantino. Vista Disposal, the front company, was held out as the sole proprietorship of one Jerry Owens, a man with no previous experience in the sludge hauling industry. Vista submitted a proposal to build a sludge holding pad where sludge could be stabilized and held for up to 12 hours at the treatment plant before being hauled away. The proposal included false statements about Vista’s ownership, Owens’ experience, and other matters. Mayor Young used his extraordinary court-conferred powers to award the contract to Vista without competitive bidding and without Common Council approval. A subsequent FBI investigation of the Vista scheme led to several of the present defendants being prosecuted and ultimately convicted under the Racketeer Influenced and Corrupt Organizations Act (RICO), the Hobbs Act, and the federal mail fraud statute. Oakland County, soon to be joined by Macomb County, filed the instant civil action in the wake of the criminal investigations. The counties alleged in their complaints that the defendants had conspired to violate the antitrust and racketeering laws, had excluded competition, had illegally fixed the price of sludge hauling, had monopolized the sludge hauling industry, and had imposed illegal overcharges. Relying on § 4 of the Clayton Act (15 U.S.C. § 15) and the cognate provision in RICO, 18 U.S.C. § 1964(c), the counties sought to recover their damages three-fold, along with costs and attorney fees. Each count of each complaint contained a paragraph alleging injury in terms comparable to those in the following exemplar, taken from paragraph 49 of the Oakland County complaint: “Plaintiff has been injured in its property and business, in that the charges collected by Detroit for the treatment and disposal of Oakland County’s sewage have been unconscionably and unlawfully inflated. The unconscionable and unlawful inflation is the direct and proximate result of the artificially high costs of the disposal of [Detroit Wastewater Treatment Plant] sludge caused by Defendants’ unlawful conduct.” Without answering the complaints, the defendants moved for dismissal under Rule 12(b)(6), Fed.R.Civ.P. In an opinion reported at 620 F.Supp. 1899, the district court granted the motions. Subsequent motions to alter judgment were denied (see opinion reported at 628 F.Supp. 610), and the counties have appealed. Separate appeals on discovery matters have been consolidated with the appeals relating to the dismissal of the action. II The district court, as noted above, dismissed the plaintiff counties’ complaints for lack of standing. The burden of any unlawful cost increment fell on the municipalities or the ultimate consumers, the court reasoned, and although the counties did pay a portion of the allegedly excessive costs as customers of the municipalities, the counties were not suing as customers of the municipalities, but as administrators of the “enterprise funds” through which the county sewage systems were operated. In the latter capacity, said the district court, the counties simply acted as collection agencies for the City of Detroit, in effect, and not as buyers of sewerage services on their own account. 620 F.Supp. at 1402-03; 628 F.Supp. at 613. The counties had not themselves suffered any injury in fact, the court concluded, and thus had no standing to sue. It seems to us, however, that the counties must be treated as buyers on their own account. As such the counties did have standing, we think, both as a matter of constitutional law and as a matter of statutory law. Implicit in the district court’s suggestion that it was not the counties which purchased the services from Detroit is the notion that the counties were acting merely as agents, rather than as principals — for the court expressly acknowledged that Oakland County, at least, did actually sign contracts with Detroit. 620 F.Supp. at 1400. Cf 628 F.Supp. at 611. But the complaints — which must be accepted as true for present purposes — allege that it was the counties, not the municipalities acting through the counties as agents, that were the contracting parties. These allegations have been verified, in the case of Oakland County, by an uncontradicted affidavit attesting to the fact that “Oakland County has entered into three separate contracts with the City of Detroit for the disposal and treatment of the sewage flows originating within each of [the county’s] three sewage disposal districts....” It was the counties, not the municipalities, that were billed by Detroit, and there has been no showing that Detroit was entitled to look to the municipalities for payment. The counties, in our view, must be treated as direct purchasers in their own right. It is true that in County of Oakland v. City of Berkley, 742 F.2d 289 (6th Cir.1984), where we concluded that the pendent jurisdiction doctrine could be invoked in the federal government’s environmental action to enable the federal court to decide a sewer charge dispute between Oakland County and the City of Madison Heights, we described Oakland County as “an intermediary only, dependent completely on payments from the municipalities to meet its obligation to Detroit.” Id. at 292. We also said that “[s]ince Oakland County is a mere conduit for sewer charges owed to the City of Detroit the failure of any of the municipalities... to pay the charges allocated to them would result in Detroit’s receiving less money for sewage disposal than was assumed and planned for in the consent judgment.” Id. at 296. Whether or not the last part of the quoted statement is factually correct, however, our 1984 opinion made it clear that “[i]n November 1962 Oakland County entered into a contract with the City of Detroit by which Detroit agreed to receive and dispose of sanitary and storm sewage... and the County agreed to a schedule of payments for this service.” Id. at 291-92 (emphasis supplied). Our opinion also made it clear that service charges were imposed on the municipalities by the county; it was a dispute over the amount of the county’s charges, after all, that was before us in that case. Our 1984 decision undoubtedly reflected an understanding that 100 percent of the charges imposed by Detroit on the county were passed on by the county to the municipalities, which would make the county a “conduit” in an economic sense. The decision did not say, however, that the county was an agent rather than a principal in the legal sense. Accordingly, in our view, Oakland County is not collaterally estopped from challenging the district court’s suggestion that the counties are not actual buyers of the service sold by Detroit. The counties certainly are buyers, as we see it, and the real question presented here is whether the Constitution or the statutes foreclose the counties from coming into court if one assumes—as we do, for purposes of this opinion—that any and all overcharges were passed on to the counties’ own customers, the municipalities. A We shall address the constitutional question first. The Constitution makes it clear that the judicial power vested in the federal courts under Section 1 of Article III extends only to “Cases” and “Controversies.” U.S. Const., Art. Ill, § 2. A dispute in which the interest of the complaining party is purely academic does not qualify as a case or controversy in the constitutional sense; the federal courts are not empowered to decide questions posed by officious intermeddlers having no personal stake in the outcome. To satisfy the “case or controversy” requirement of the Constitution, a complaint must describe some actual or threatened injury to the complainant, must allege a causal connection between that injury and the defendant’s putatively illegal conduct, and must advance some legally cognizable claim for redress. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). A buyer who is induced to pay an unlawfully inflated price for goods or services obviously suffers an actual injury—an “injury in fact,” to use the common expression. As Mr. Justice Holmes put it in discussing the antitrust complaint of a city that claimed to have been overcharged on purchases of pipe for its water mains, “[a] person whose property is diminished by a payment of money wrongfully induced is injured in his property.” Chattanooga Foundry and Pipe Works v. City of Atlanta, 203 U.S. 390, 396, 27 S.Ct. 65, 66, 51 L.Ed. 241 (1906) (majority opinion). Does the injury suffered by such a person vanish if he is able to recoup the illegal overcharge by passing it on to his own customers? The answer is not difficult, at least insofar as the constitutional aspect of the question is concerned. Just such an issue was present in Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 38 S.Ct. 186, 62 L.Ed. 451 (1918), and in that case Mr. Justice Holmes—speaking this time for a unanimous Supreme Court—said in effect that the plaintiff who has subsequently passed on the overcharge to his customers is no more deprived of standing to sue than is the claimant whose loss happens to be covered by insurance. Id. at 534, 38 S.Ct. at 186. Presented with a similar question in Adams v. Mills, 286 U.S. 397, 52 S.Ct. 589, 76 L.Ed. 1184 (1932), the Supreme Court (per Brandéis, J.) gave a similar answer. That case was brought by commission merchants who, as consignees of livestock shipped by rail, had been charged illegal unloading fees. The commission merchants sued to recover the unlawful charges notwithstanding that they had already reimbursed themselves out of the proceeds of the sale of the livestock, remitting to their principals only the balance remaining after deduction of the unloading fees. If the defendants exacted an unlawful charge from the plaintiffs, Mr. Justice Brandéis said in explaining why the action would lie, “the exaction was a tort, for which the plaintiffs were entitled, as for other torts, to compensation from the wrongdoer. Acceptance of the shipments would have rendered them personally liable to the carriers if the merchandise had been delivered without payment of the full amount lawfully due. As they would have been liable for an undercharge, they may recover for an overcharge. In contemplation of law the claim for damages arose at the time the extra charge was paid. Neither the fact of subsequent reimbursement by the plaintiffs from funds of the shippers, nor the disposition which may hereafter be made of the damages recovered, is of any concern to the wrongdoers.” Id. at 407, 52 S.Ct. at 591 (citations omitted). Like the Holmes opinion, on which it relied, the Brandéis opinion rejected the argument that the plaintiffs had not been “injured” within the meaning of the applicable statute. Article III was not discussed, but the conclusion that the plaintiffs had been “injured” in the statutory sense necessarily presupposed that the injury was enough to give the plaintiffs the standing required under Article III; if the Court had not believed there was a case or controversy, it could not properly have remanded the matter, as it did, with directions to enter judgment for the plaintiffs. The Court was subsequently to say, indeed, that whether the plaintiff has made out a case or controversy “is the threshold question in every federal case....” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Holmes and Brandéis may have been influenced by concepts of privity that have lately passed out of fashion, but this cannot be said of the court that recently decided Bacchus Imports v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984). The plaintiffs in Dias were wholesalers who sought to challenge the constitutionality of an excise tax imposed by the State of Hawaii on wholesale sales of liquor. The plaintiff wholesalers added the full amount of the tax to the full amount of the wholesale prices; the plaintiffs’ customers, who were licensed retailers, were charged the wholesale price plus tax. The state argued that the wholesalers had no standing to challenge the tax because they had not shown that the tax inflicted any “economic injury” on the wholesalers. The Supreme Court rejected this argument out of hand, declaring that the plaintiff wholesalers “plainly” had standing to challenge the tax. Id. at 267, 104 S.Ct. at 3053. (The basis of the challenge was that certain locally produced liquors had been exempted from the tax, with the result that the tax arguably discriminated against interstate commerce.) The Dias court gave two reasons for concluding that the plaintiff wholesalers had shown an injury sufficient to give them standing to contest the constitutionality of Hawaii’s tax. In the first place, the Court pointed out, “[t]he wholesalers are... liable for the tax. Although they may pass it on to their customers, and attempt to do so, they must return the tax to the State whether or not their customers pay their bills.” Id. “Furthermore,” the Court said, “even if the tax is completely and successfully passed on, it increases the price of [the wholesalers’] products as compared to the exempted beverages, and the wholesalers are surely entitled to litigate whether the discriminatory tax has had an adverse competitive impact on their business.” Id. Both of these observations seem pertinent to the situation presented in the case at bar. The plaintiff counties were liable for Detroit’s allegedly inflated sewerage charges, just as the plaintiff wholesalers in Dias were liable for Hawaii’s allegedly unconstitutional tax, whether or not the plaintiffs’ customers paid their bills. Even if the plaintiff counties were successful in passing on all of the costs allocated to them, moreover, we see no constitutional impediment to their litigating the issue (assuming it is even relevant) of whether excess costs attributable to the defendants’ misconduct had an adverse impact on the counties’ “business.” The counties may not have been in competition with others for the sale of sewer services, but surely these counties were in competition with other counties in attempting to attract and retain people and/or industry and commerce. We are not prepared to assume that the availability of cost-effective sewer services cannot affect decisions on where houses will be built, where commercial and industrial enterprises will be located, and where taxpayers will choose to live. The district court believed that “supply and demand do not interact” in this situation because the counties are the only source of sewer services within their respective jurisdictions, 628 F.Supp. at 613, but this overlooks the fact that no one is required to live or set up shop in Oakland or Macomb County; there are plenty of other counties in the United States. See Carter v. Berger, 777 F.2d 1173, 1177 (7th Cir.1985). It would clearly be wrong for us to conclude at the outset of this litigation, based merely on the pleadings and Oakland County’s affidavit, that the counties could not possibly have suffered any injury in fact as a result of having been overcharged by the City of Detroit. Much of the relevant caselaw, indeed, seems to treat the imposition of an unlawfully inflated price on a direct purchaser as an injury per se. Nothing in the Constitution requires us to hold that the counties lack standing to sue. B In terms variously described as “broad” (Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 529, 103 S.Ct. 897, 903, 74 L.Ed.2d 723 (1983)), “expansive” (Blue Shield of Virginia v. McCready, 457 U.S. 465, 472, 102 S.Ct. 2540, 2544, 73 L.Ed.2d 149 (1982)), and “sweeping” (Southaven Land Co., Inc. v. Malone & Hyde, Inc., 715 F.2d 1079, 1081 (6th Cir.1983)), section 4 of the Clayton Act, as codified at 15 U.S.C. § 15, provides that: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.” A cognate provision in RICO, codified at 18 U.S.C. § 1964(c), provides that: “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor... and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” Are the plaintiff counties proper parties to bring private antitrust and RICO actions under these statutory provisions? We believe they are. It is not to be gainsaid that the counties are. “persons” within the meaning of the antitrust laws. Chattanooga Foundry v. Atlanta, supra, 203 U.S. at 396, 27 S.Ct. at 66. If they have not been injured in their “business” of furnishing sewer service, moreover, the counties at least sustained an injury in their property when they paid the allegedly excessive charges. Id. That injury, as we have seen, was not eradicated for constitutional standing purposes if the excessive charges were subsequently passed on to the counties’ municipal customers—and such a passing on of illegal charges does not normally wipe out the injury for antitrust standing purposes either. In the leading case of Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), where the Supreme Court emphatically rejected an antitrust defendant’s argument that the plaintiff could have suffered no legally cognizable injury from illegal overcharges that were reflected, in turn, in the prices charged by the plaintiff to its own customers, the Court held that “when a buyer shows that the price paid by him [in a chain of distribution situation] is illegally high and also shows the amount of the overcharge, he has made out a prima facie case of injury and damage within the meaning of § 4.” Id. at 489, 88 S.Ct. at 2229. Justice White’s majority opinion in Hanover Shoe cited Chattanooga Foundry v. Atlanta, Southern Pacific Co. v. Darnell-Taenzer Lumber Co., and Adams v. Mills with obvious approval, 392 U.S. at 489-90, 88 S.Ct. at 2229, and while the opinion noted that some lower courts had sustained the “so-called” passing on defense, it pointed out that “[o]thers, beginning with Judge Goodrich’s 1960 decision in the case before us, deemed it irrelevant that the plaintiff may have passed on the burden of the overcharge.” Id. at 490 n. 8, 88 S.Ct. at 2230 n. 8 (emphasis supplied). Judge Goodrich (a highly respected circuit judge who sat as a district court judge in the Hanover Shoe litigation) concluded that the “excessive price is the injury.” 185 F.Supp. 826, 829 (M.D.Pa.1960). Justice White explained that it was unnecessary, in Judge Goodrich’s view, to determine whether plaintiff Hanover had passed on the illegal burden to the next group in the chain of distribution, “because Hanover’s injury was complete when it paid the excessive rentals and because ‘ “[t]he general tendency of the law, in regard to damages at least, is not to go beyond the first step” ’ and to exonerate a defendant by reason of remote consequences. Id. at 830 (quoting from Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533, 62 L.Ed. 451, 454, 38 S.Ct. 186 [186] (1918)).” 392 U.S. at 488 n. 6, 88 S.Ct. at 2228 n. 6, quoting 185 F.Supp. at 830. The Supreme Court stressed two reasons, in Hanover Shoe, for its decision to reject Hanover’s assertion of a “passing on” defense. First, proper application of such a defense would entail proof of “virtually unascertainable figures,” showing precisely what prices would have prevailed had the overcharges not occurred, what effect price changes would have had on sales, and so on. 392 U.S. at 493, 88 S.Ct. at 2231. Second, “[I]f buyers [were] subjected to the passing-on defense, those who buy from them would also have to meet the challenge that they passed on the higher price to their customers. These ultimate consumers, in today’s ease the buyers of single pairs of shoes, would have only a tiny stake in a lawsuit and little interest in attempting a class action. In consequence, those who violate the antitrust laws by price fixing or monopolizing would retain the fruits of their illegality because no one was available who would bring suit against them. Treble-damage actions, the importance of which the Court has many times emphasized, would be substantially reduced in effectiveness.” 392 U.S. at 494, 88 S.Ct. at 2232. (Emphasis in original.) In the subsequent case of Illinois Brick Co. v. State of Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), the Supreme Court, again speaking through Justice White, rejected an attempt by indirect purchasers to make offensive use of the “passing on” concept. In holding that the indirect purchasers could not sue to recover the overcharges passed on to them by a middleman, the Court reinforced the construction that Hanover Shoe had given § 4 of the Clayton Act. Under that construction, as the Court explained, “the overcharged direct purchaser, and not others in the chain of manufacture or distribution, is the party ‘injured in his business or property’ within the meaning of the section....” Id. at 729, 97 S.Ct. at 2066. In the case at bar, of course, this construction of § 4 points to the conclusion that the overcharged county, and not any municipality or ultimate consumer, is the party injured in its business or property within the meaning of § 4. It was the “evidentiary complexities and uncertainties” involved in applying the pass-on concept that seems to have been most influential in bringing the Supreme Court to “the judgment that the antitrust laws will be more effectively enforced by concentrating the full recovery for the overcharges in the direct purchasers rather than by allowing every plaintiff potentially affected by the overcharge to sue only for the amount it could show was absorbed by it.” Illinois Brick, 431 U.S. at 732, 735, 97 S.Ct. at 2069, 2069. Acceptance of the pass-on approach, the Court warned, “would transform treble-damages actions into massive multiparty litigations involving many levels of distribution and including large classes of ultimate consumers remote from the defendant.” Id. at 740, 97 S.Ct. at 2072. Efforts to apportion the recovery among everyone who could have absorbed part of the overcharge “would add whole new dimensions of complexity to treble-damages suits and seriously undermine their effectiveness.” Id. at 737, 97 S.Ct. at 2070. The Illinois Brick court did concede that the difficulties and uncertainties it foresaw would “be less substantial in some contexts than in others.” 431 U.S. at 743, 97 S.Ct. at 2073. In this connection the plaintiffs had argued — with some lower court support — “that pass-on theories should be permitted for middlemen that resell goods without altering them and for contractors that add a fixed percentage markup to the cost of their materials in submitting bids.” 431 U.S. at 743, 97 S.Ct. at 2073. Just such a factual situation had been presented in Obron v. Union Camp Corp., 477 F.2d 542 (6th Cir.1973), aff'g 355 F.Supp. 902 (E.D.Mich.1972) — and this court, in a brief per curiam decision, had accepted the pass-on defense in that case. (The plaintiff in Obron was a middleman who purchased mesh bags from defendant Union Camp at a fixed percentage off Union Camp’s suggested list price; the middleman then resold at list to customers who took delivery of the bags, without alteration, in “drop shipments” from Union Camp.) In a passage that implicitly repudiated our Obron decision, the Illinois Brick court rejected the argument that pass-on theories should be permitted for middlemen reselling goods without alteration and for contractors adding a fixed percentage markup: “We reject these attempts to carve out exceptions to the Hanover Shoe rule for particular types of markets. * * * * * * An exception for the contractors here on the ground that they purport to charge a fixed percentage above their costs would substantially erode the Hanover Shoe rule without justification.” 431 U.S. at 744, 97 S.Ct. at 2074 (footnote omitted). Although Obron itself would doubtless have been decided differently had it reached us after the Supreme Court’s decision in Illinois Brick, both Illinois Brick and Hanover Shoe recognized the possibility that there “might” be situations of a different sort where the considerations requiring rejection of the pass-on defense would not be present. Thus a pass-on defense “might” be permitted, the Supreme Court said, “when an overcharged buyer has a pre-existing ‘cost-plus’ contract, thus making it easy to prove that he has not been damaged_” 392 U.S. at 494, 88 S.Ct. at 2232; 431 U.S. at 724 n. 2, 97 S.Ct. at 2064 n. 2. In the case at bar the district court thought that if the counties could be said to be buyers at all

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

HEWITT v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. October 26, 1925.) No. 4380. 1. Insurance <©=3448 — Insurance company not absolved from liability on policy because beneficiary murdered insured. An insurance company is not absolved from liability on its policy because the beneficiary murdered the insured. 2. Insurance <©=3448 — Insurance company absolved from liability under policy, where beneficiary procured issuance thereof with intent to murder insured and defraud company. An insurance company is absolved from liability on policy, where beneficiary procures and obtains the insurance with the intent to murder the insured, and thus cheat and defraud the insurer. 3. Insurance <g=3668(11)— Court erred in directing verdict for insurer on ground that beneficiary had obtained policy with intent to murder insured and defraud company. In suit on insurance policy, where defense Was -that beneficiary had obtained insurance with intent to murder insured and defraud insurer, held, that it was error to direct verdict for defendant on ground that receipt, delivery, and acceptance of policy was act not of insured, but of beneficiary, in view of evidence showing beneficiary’s mental condition to be unbalanced. 4. Courts <©=3343 — Practice authorized by state statute as to action at law in state courts prevails in an action of law removed to federal court. ’• Practice as to intervention authorized by state statute as to action at law in state courts prevails in an action of law removed to federal court. 5. Action <@=336 — Courts <©=3356 — Action on insurance policy did not become one in equity because of intervention by ijnsured’s administrator, qr by defendant’s answer alleging fraud in procuring insurance; directed verdict not sustainable as finding of fact by chancellor on conflicting evidence. Action on insurance policy by guardian of beneficiary was not changed from one at law to one in equity, governed by equity rule 75-B, requiring record of testimony to be presented in narrative form, by the fact that executor of insured intervened, under Rem. Comp. Stat. Wash. § 202, to claim proceeds on ground that beneficiary, by murdering insured, had forfeited right to proceeds, and defendant in answer alleged fraud in procuring of insurance; hence, where trial court directed verdict for insurer, insurance company’s contention that record showed finding of fact by chancellor on conflicting testimony was not sustainable. In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge. Action by the guardian of Ruth Plumlee against the Equitable Life Assurance Society of the United States, wherein G. C. Hewitt, administrator of the estate of Hugh C. Plumlee, deceased, intervenes. From a judgment for defendant, intervener brings error. Reversed and remanded. On Mai’ch 29, 1922, Ruth Plumlee, then the wife of Hugh G. Plumlee, paid to the defendant in error the premiums on two policies of life insurance on the life of her husband, in which she was made the beneficiary and received the policies. About five hours later she murdered her husband by poison. Thereafter her guardian, alleging that she was insane, brought an action in a state court to recover upon the policies. The defendant in error answered, denying liability under the policies, and on the ground of diversity of citizenship it removed the cause to the court below. The administrator of the estate o £ Hugh C. Plumlee,, deceased, then inierveued by the permission of the court, and in his complaint alleged that Ruth Plum-lee, by her act in murdering her husband, had forfeited her right as beneficiary under the terms of the policies; that she willfully and unlawfully murdered her said husband, and thereafter had pleaded guilty to the charge; of murder, and had been sentenced to life imprisonment; and that by reason of that fact the administrator was entitled to recover, the fruits and benefits of the policies, under the terms thereof. The defendant in error, answering the intervener’s complaint, alleged that at the time when Ruth Plumlee paid the premiums and received the policies she intended to take the life of her husband, and that her said acts were done as part of her plan to defraud the defendant in error, and that thereby the latter had been induced to deliver the policies. The defendant in error prayed that the contracts of insurance be canceled on the ground of said fraud and deceit. Upon the issues joined between the intervener and the defendant in error, the cause came on for trial before a jury, and at the close of the testimony the court instructed the jury to return a verdict for the defendant in error. Stratton & Kane, Elmer W. Leader, and Alfred J. Schweppe, all of Seattle, Wash., for plaintiff in error. Alexander & Greene, Kerr, McCord & Ivey, and Wm. Z. Kerr, all of Seattle, Wash., for defendant in error. Before GILBERT, RUDKIN, and Me-C AMA NT, Circuit Judges. GILBERT, Circuit Judge (after stating the facts as above). It is well settled that an insurance company is not absolved from liability on its policy because the beneficiary mnrders the insured. Cleaver v. Mutual Reserve Fund Life Ass’n, 1 C. D. 147; Supreme Lodge, K. L. II., v. Menkhausen, 209 Ill. 277, 70 N. E. 567, 65 L. R. A. 508, 101 Am. St. Rep. 239; Slocum v. Metropolitan Life Ins. Co., 245 Mass. 565, 159 N. E. 816, 27 A. L. R. 1517; Schmidt v. Northern Life Ass’n, 112 Iowa, 41, 83 N. W. 800, 51 L. R. A. 141, 84 Am. St. Rep. 823; Welch v. Travelers’ Ins. Co. (Sup.) 178 N. Y. S. 748; New York Life Ins. Co. v. Davis, 96 Va. 737, 32 S. E. 475, 44 L. R. A. 305; Sharpless v. Grand Lodge, A. O. U. W., 135 Minn. 33, 159 N. W. 1086, L. R. A. 1917B, 670. In the case last cited the court said: “Public pdliey may not permit the murderer to profit by a recovery on the policy; but it does not excuse the insurer from paying to those who would take in the absence of a beneficiary. The rule of public policy is invoked to prevent the murderer from profiting — not to relieve the insurer from paying.” But an insurance company is absolved from liability in a case where the beneficiary himself procures and obtains the insurance with the intent to murder the insured, and thus cheat and defraud the insurer. New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, 6 S. Ct. 877, 29 L. Ed. 997. Q’he crucial question here is whether or not it was error to direct the jury to return a verdict for the defendant on the ground that the evidence showed that the “receipt, delivery, and acceptance” of the policies was not the act of the insured, but was the act of the beneficiary. The evidence was that the applications for insurance did not originate in the mind of either Plumlee or his wife, but was suggested to them by an agent of the defendant in error, who solicited the insurance, and who on various occasions discussed ihe matter with them. On February 14, 1922, applications of the husband and wife for the insurance of each for the benefit of the other were accepted by the agent. It was then understood that the quarterly premium on each of the two policies on the husband’s life was to be $11.32. Owing to the hazardous natufc of his occupation, the company declined to issue the policies at that rate, and on March 6, 1922, it executed at its home office in New York ihe two policies involved in the present litigation, with premiums fixed at $L1.69 per quarter. When these policies were offered to Plumlee, he was out of employment and had not decided what he was going to do. On March 28, 1922, an agent of the insurance company visited him at his home and attempted, to get him to accept the policies, but he answered that he did not know-whether he wanted to accept them, or not. In that conversation .he said: “‘Well, there is no hurry about this. You have my note. She has got the money! And he pointed to his wife. ‘She can pay you now, if she wants to! ” The agent, when testifying, was asked whether or not Plumlee accepted the policies on the terms written, and he answered: “Hq did, after we had a little conversation.” In answer to the question whether Plumlee made any objection on the ground that the policies were written at a higher rate of premium than expressed in the applications, the agent answered: “He first talked a lit-'tie bit. He wanted to know why it was. He was a very conservative fellow, and he felt or wanted to- know why that he had to pay more than what he expected to have to pay in the first place. We explained to him that it was on account of his hazardous occupation that he had to pay more for it, and he says: ‘Well,-I expected that, because a fellow that is working in the shipyard has to pay more than in general lines of business anyway! ” On the following day, when the agent saw Mrs. Plumlee, pursuant to his request that he might discuss the matter with her alone, she informed him that her husband wished the policies, and she then paid him the premiums on the two’ policies on her husband’s life and on the policy on her own life, of which her husband was the beneficiary, and the agent returned to her the notes originally given by her husband for the premiums. An hour later she purchased strychnine, and about an hour thereafter she poisoned her husband. The evidence indicated that it had been Plumlee’s practice' to turn over his earnings to his wife, and that she- had been the disburser of the family funds, and it is clearly inferable that the premiums were paid by her out of such funds. There was evidence, also, that in the evening of the day on which the tragedy occurred Mrs. Plum-lee inquired of a neighbor whether any one had ever told her that her husband was leaving her or was going to get a divorce, and that, on being answered in the affirmative, she “went wild” and became hysterical. In view of all the evidence, we are unable to agree with the court below that the question of fraud and deceit in obtaining the insurance on Plumlee’s life was not’a question that should have been submitted to the jury, for we think the evidence does not clearly show Ruth Plumlee’s motive in committing her criminal act, or that at the time when she paid the premiums and obtained the policies she had formed the intention of taking her husband’s life, or that her purpose to do so may not have been developed later, in view of information which would seem to have come to. her that her husband was about to leave her and sue for a divorce. Her reckless acts, in openly procuring strychnine and immediately administering it with intent to kill, would seem to be those of one whose mind was distracted by do- . mesti'c trouble, rather than those of one who was criminally bent upon gain. The defendant in error moves to dismiss the writ of error on the ground that, by its equitable defense to the complaint and the intervention of the plaintiff in error, the cause became one of equitable. cognizance, and the record of the testimony is not presented in narrative form, as required by equity rule 73-B, and is not properly certified or approved. We cannot agree that the nature of the action was changed, either by virtue of the allegations of the answer or by the fact of the intervention. The intervention was permitted under section 202, Remington’s Compiled Statutes of Washington, which provides that intervention takes place when a third party is permitted to become a party to an action between other persons “either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or demanding anything adversely to both the plaintiff and the . defendant.” The practice so authorized by statute as to actions at law in state courts prevails in an action at law removed to a federal court. Bowen v. Needles Nat. Bank (C. C.) 76 F. 176; Cowley v. Northern Pacific Railroad Co., 159 U. S. 569, 16 S. Ct. 127, 40 L. Ed. 263; Cole v. Ralph, 252 U. S. 286, 40 S. Ct. 321, 64 L. Ed. 567. In the ease last cited the court said: “In view of the liberal provisions of the local statute, Rev. Laws 1912, §§ 4998-5000, we think the court did not err in allowing him to come in as a plaintiff.” Nor do the allegations of the answer change the nature of the action. The ■ defense of fraud in procuring the policy was as available on the trial of the case as q, law action as it would have been in a suit in equity. It follows that the contention of the defendant .that the record here shows a finding of fact of a chancellor upon conflicting testimony is not sustainable. Even if the remarks of tho trial court on instructing the jury to return a verdict for the defendant in error are to he deemed an expression of the court’s conclusion as to the probative effect of the testimony, there is no warrant for regarding them as findings of fact in an equity suit and decisive of the issues involved. Tho judgment is reversed, and the cause is remanded for a new trial.

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

In re MAGNET OIL CO. ERICKSON v. BRIX ESTATE CO. et al. No. 9650. Circuit Court of Appeals, Ninth Circuit. April 19, 1941. Joseph J. Rifkind, of Los. Angeles, Cal., for appellant. J. E. Simpson, of Los Angeles, Cal., Earl J. Fenston, of Fresno, Cal., and William M. Maxfield, of San Francisco, Cal., for appellees. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. MATHEWS, Circuit Judge. V. W. Erickson, trustee in bankruptcy of Magnet Oil Company, a corporation (hereafter called Magnet), appeals from an order affirming an order of a referee in bankruptcy allowing the claim of Brix Estate Company, a corporation (hereafter called Brix), Lisenby Estate Company, a corporation (hereafter called Lisenby), H. U. Maxfield and H. H. Welsh against the bankrupt estate for $35,000, with interest. On May 5, 1938, for a consideration of $10 and “other valuable considerations,” appellees (Brix, Lisenby, Maxfield and Welsh) leased to Magnet, for the term of 20 years, certain real property in Fresno County, California. The “other valuable considerations” included five promissory notes executed and delivered by Magnet to appellees on May 6, 1938 — one for $4,000, one for $5,000 and three for $10,000 each, all bearing 5% interest from date. The note for $4,000 was paid on May 25, 1938. The others fell due 30, 60, 120 and 180 days after their date, but remained and still remain wholly unpaid. On March 9, 1939, Magnet was adjudged a bankrupt, and the case was referred to a referee in bankruptcy. Thereafter appellant was appointed trustee. The record does not disclose the first date set for the first meeting of creditors, but, indulging the presumption that the court followed the statute, we presume that the first date set for such meeting was not earlier than March 19, 1939, nor later than April 8, 1939. On June 29, 1939 — well within the time prescribed by statute — appellees’ claim for $35,000 was proved and filed. Appellees’ claim was founded on the four last above mentioned promissory notes, copies of which were set out in the proof of claim. The proof stated that Magnet was “justly and truly indebted to [Brix] and the other payees appearing on the * * * notes in the sum of thirty-five thousand * * * dollars.” The other payees appearing on the notes were Lisenby, Max-field and Welsh. The proof was signed and sworn to by Brix’s secretary, Earl J. Fenston. Though not signed or sworn to by Lisenby, Maxfield or Welsh, it evidenced a claim which was theirs as well as Brix’s. On September 26, 1939, appellant filed objections to appellees’ claim, referring to it as Brix’s claim. On November 21, 1939, appellant filed amended objections to ap-pellees’ claim, again referring to it as Brix’s claim. On February 14, 1940, ap-pellees applied for and, over appellant’s objection, obtained leave to file, and did file, an amended proof of their claim. The amended proof was signed and sworn to by Brix’s secretary, Lisenby’s secretary, Maxfield and Welsh. It was stipulated that the amended objections filed by appellant on November 21, 1939, should “be deemed and considered as objections to the amended claim insofar as applicable.” The referee heard the objections, overruled them and allowed appellees’ claim. The District Judge affirmed the referee’s order. This appeal followed. Appellant contends that the referee erred in overruling (1) his objection to the filing of appellees’ amended proof of claim and (2) his objections to the claim itself. The grounds of appellant’s objection to the filing of appellees’ amended proof of claim were “That the payees under the promissory notes are tenants in common and that it was necessary for all of such payees to join in the execution and filing of the original claim, that the execution of the original claim by [Brix] alone was a nullity and of no force or effect, that said original claim could not, therefore, be the basis for the amended claim proposed to be filed, and that the proposed amended claim was in fact a new and original claim being offered for filing subsequent to the six (6) months statutory period within which claims could be filed.” There was no merit in the objection. What appellees proposed to file, and did file, on February 14, 1940, was not, as contended by appellant, “a new and original claim.” It was merely an amended proof of the claim filed on June 29, 1939. Defects, if any, in the original proof were defects of form only. To cure such defects, amendments are permissible even after the time for filing claims has expired. Hutchinson v. Otis, 190 U.S. 552, 555, 23 S.Ct. 778, 47 L.Ed. 1179; Brown v. O’Connell, 9 Cir., 200 F. 229, 231-234; In re Patterson-MacDonald Shipbuilding Co., 9 Cir., 293 F. 190, 192; Barks v. Kleyne, 8 Cir., 15 F.2d 153, 156; In re Whicker, 5 Cir., 47 F.2d 106, 108; In re Rothert, 7 Cir., 61 F.2d 1, 2; In re International Match Corp., 2 Cir., 69 F.2d 73, 74; Cook v. Union Trust Co., 4 Cir., 71 F.2d 645, 647; In re Prindible, 3 Cir., 115 F.2d 21, 23. To the claim itself appellant made numerous objections, of which, however, only two are urged here: (1) That the obligation evidenced by the notes on which the claim was founded was a conditional one, in that the notes were to be paid out of the proceeds of a sale of Magnet’s stock, and that, as the stock was never sold, the notes never became due or payable; (2) that there was an accord and satisfaction of the obligation by reason of Magnet’s executing and delivering to appellees a quitclaim deed to the property which they had leased to Magnet. The referee found it was not true that the notes were to be paid out of a sale of Magnet’s stock. The District Judge approved the finding and adopted, it as his own. The finding is amply supported by evidence. We accept it, therefore, and reject appellant’s contention that the obligation evidenced by the notes was a conditional one. On September 9, 1938, Magnet executed a quitclaim deed in favor of appellees and proposed that, in consideration thereof, appellees release Magnet from the obligation evidenced by the notes. The proposal was not accepted, but was rejected. Hence, there was no accord and satisfaction. California Civil Code, §§ 1521-1523; Silvers v. Grossman, 183 Cal. 696, 699, 192 P. 534. Nor is it material, if true, that the proposal remained unanswered for more than two months; for appellees were under no duty to answer in two months or at all. Appellant’s final specification is that “the court erred in not ordering that [appellees’] claim should in any event be deferred as to payment * * * and subordinated to the payment of creditors furnishing money, labor and material.” The referee was not asked to make any such order. The petition for review prayed “that an order be entered disallowing said claim, or in the alternative, subordinating the same to the payment of claims for money, labor and material;” but the petition did not state, nor does the record here disclose, any fact or facts warranting such an order. Order affirmed. Section 55, sub. a, of the Bankruptcy Act, 11 U.S.C.A. § 91, sub. a, provides : “The court shall cause the first meeting of the creditors of a bankrupt to be held not less than ten nor more than thirty days after the adjudication * * ífc » Section 57, sub. n, of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. n, provides: “Claims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed * *

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

Anthony EMMA, Petitioner-Appellee, v. DeWitt C. ARMSTRONG, III, Brigadier General, United States Army Commanding General, Fort Devens, Massachusetts, et al., Respondents-Appellants. No. 72-1136. United States Court of Appeals, First Circuit. Argued Nov. 7, 1972. Decided Feb. 1, 1973. Robert E. Kopp, Atty., Dept, of Justice, with whom E. Grey Lewis, Acting Asst. Atty. Gen., Joseph L. Tauro, U. S. Atty., and Morton Hollander, Atty., Dept, of Justice, were on brief, for respondents-appellants. Robert J. DeCesaris, Warwick, R. I., for petitioner-appellee. Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges. ALDRICH, Senior Judge. Emma, an enlisted man, returned from a tour of duty in Vietnam with a pending request for a discharge. At Fort Lewis, Washington, he signed for expenses to proceed to Fort Bliss, Texas, and went home for a month’s leave to Rhode Island. The district court found that he did not read what he had signed and thought he was to await his discharge, or further instructions, at home. When, after two months, he heard nothing, he brought his personal file and inquired orally at the Providence, Rhode Island, Recruiting Station, and was advised to do nothing.* A few months later he inquired a second time, and received the same advice. Another year then passed, and with it his four year active enlistment (to be followed by two years in the Reserves) ran out. He then went to Fort Devens, Massachusetts, the nearest Army post to his home, and where he had made inquiry some years before when his orders had been lost, and requested his discharge papers. He was told that pursuant to Army regulations he must, although not listed as AWOL, remain at the post while inquiry was pursued. He declined, and then, after a further request for processing to Fort Devens was not met for that reason, brought this petition for habeas corpus in the Massachusetts District Court seeking his discharge, naming the Fort Devens Commandant and the Secretaries of Defense and of the Army as respondents. Respondents objected to the jurisdiction of the court, and raised other objections. After hearing, the court granted the requested relief and respondents appeal. With respect to jurisdiction, although the question is close, we accept the court’s finding that, although he had no previous connection therewith, Emma had established “meaningful contact” at Fort Devens within Strait v. Laird, 1972, 406 U.S. 341, 343, 92 S.Ct. 1693, 32 L.Ed.2d 141. It is true that he did not submit himself to full custody, as in Meck v. Commanding Officer, 3 Cir., 1971, 452 F.2d 758, and we would have felt differently had this episode occurred a short while after he was supposed to have reported to Fort Bliss. Here, however, the claim of that location had become significantly attenuated. Nor was this a case where administrative convenience, or the policy against forum-shopping, has been frustrated; Fort Devens, under the unusual circumstances of this case, was the natural place for him to go. Jurisdiction is far, however, from the only problem. The court does not care for now-you-see-it, now-you-don’t, and would be unsympathetic with the contention that Emma had sufficient connection with Fort Devens to give the court jurisdiction, but not enough to give personal control to the Army. However, we need not reach that question. There is an overriding issue, the. matter of exhaustion of remedies. The court found that Emma had done all that was required because the Army impermissibly refused to process his case due to his failure to “return,” which the Army construed to mean not simply to report in, but to remain. The court disagreed. “To apply a stricter meaning of the word to the instant facts would result in plaintiff’s spending an unspecified amount of time in the Army, when, as we have already found, he has no continuing obligation to serve.” Quite apart from the question whether it was open to the court so to construe an Army regulation whose extensive provisions, see AR 630-10, Chapter 4, Return to Military Control, are all cast in terms of remaining under complete control, the court’s approach was classic bootstrap. The court was not entitled to find “no continuing obligation to serve.” The cases are uniform that mere expiration of time does not effect an automatic discharge. Dickenson v. Davis, 10 Cir., 1957, 245 F.2d 317, cert. denied 355 U.S. 918, 78 S.Ct. 349, 2 L. Ed.2d 278; United States ex rel. Parsley v. Moses, D.N.J., 1956, 138 F.Supp. 799; Roman v. Critz, W.D.Tex., 1968, 291 F. Supp. 99; Messina v. Commanding Officer, S.D.Cal., 1972, 342 F.Supp. 1330. See also United States v. Downs, 3 U.S. C.M.A. 90, 11 C.M.R. 90 (1953), United States v. Scott, 11 U.S.C.M.A. 646, 29 C.M.R. 462 (1960). Emma’s right to a discharge was conditioned not only on a finding that he was truthful in disclaiming knowledge of his orders to report to Fort Bliss, but that he acted reasonably thereafter. As to these the burden was on him. Roberts v. Commanding General, D.Md., 1970, 314 F.Supp. 998, 1002. The court conceded the evidence was conflicting as to the first issue, and we find it at least arguably so as to the second. On such factual issues the Army was entitled to make the initial determination. Breinz v. Commanding General, 9 Cir., 1971, 439 F.2d 785. See, generally, McGee v. United States, 1971, 402 U.S. 479, 486, 91 S.Ct. 1565, 29 L. Ed.2d 47. Exhaustion has been required even where the validity of the initial enlistment is the issue. See Moore v. Dalessio, D.Mass., 1971, 332 F.Supp. 926. Although couched differently, what the court did was to make its own findings, and then conclude that there was no issue left to exhaust. Until formally reduced to reserve status, Emma was in the Army on active duty. Dickenson v. Davis, ante. The Army must run its own show, absent some lack of due process or other constitutional error, regardless of whether a court might think the facts wrongly resolved or some particular requirement unnecessary. Orloff v. Willoughby, 1953, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842; cf. Cortright v. Resor, 2 Cir., 1971, 447 F.2d 245, cert. denied sub nom. Cortright v. Froehlke, 1972, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240. Until his status was formally changed, Emma should have reported, as requested, to Fort Devens to stay. We do not think such a requirement to be outside the Army’s powers. It has been suggested that the present proceedings should be stayed while Emma, in a way we should determine to be reasonable, — viz., free on bond, exhausts his Army remedies. Such early invocation of our jurisdiction is to be sought only to avoid serious harm, which is absent here even though Emma finds the Army procedure not to his liking. While we do find three courts where this procedure was adopted, in Roberts v. Commanding General, ante, an perhaps in Forbes v. Laird, E. D.Wis., 1971, 340 F.Supp. 193, it was at the government’s request, and in the third, Beaty v. Kenan, 9 Cir., 1969, 420 F.2d 55, it does not appear who requested it. We find no case affording such relief over the government’s asserted objection. We will not be the first. Nor do we agree with Chief Judge COFFIN that we should order that when, as a result of our decision, Emma reports to Fort Devens for processing, he be excused from any confinement or duty that regulations or army practice would otherwise impose. Even though we might agree that the army requirements that are asserted by Emma are uncalled for, only in exceptional cases can it be our concern how the Army conducts its affairs. We cannot regard the “confinement” referred to as of such magnitude as, in itself, to warrant habeas corpus relief. To grant such relief as “pendent” to a proceeding, the basic thrust of which was premature, could only place a premium on premature litigation, cf. Belbin v. Picard, 1 Cir., 1972, 454 F.2d 202, 204, an unwarranted burden on the Army as well as on the courts. The order of the district court is vacated and the case remanded with instructions to dismiss the petition. . In so doing the court concededly rejected , evidence that would have permitted a finding that while Emma hoped for a discharge, he knew lie was ordered to report to Port Bliss, in the absence of receiving such, at the end of his leave. . We need not pass upon the force of a claim that action was a submission to military control, and that Emma was not “absent” thereafter, but we do say that the recruiting station might be said to be at fault in not notifying its superiors. See AR 190-9 :l-3a-3g; 190-9:3-4. . 10 U.S.C. § 972; AR 630-10, Sec. V, ¶¶ 4-22 to 4-26. . Army Regulation AR 630-10, § 4-22, provides as follows: “Whenever a member is absent under circumstances which make it appear that he was absent without leave, his commanding officer will conduct an informal investigation into the facts of the case immediately upon the member’s return. . . .” . It is normally for the Army to construe its own regulations. Ehlert v. United States, 1971, 402 U.S. 99, 105, 91 S.Ct. 1319, 28 L.Ed. 625. . Quite apart from the possibility of an inference that before 19 months had expired without a word a reasonable man would believe something had gone wrong, Emma had been “lost” before, and had discovered the solution at Fort Devens.

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?

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle, Administrator, Respondent, Mercedes-Benz of North America, Inc., General Motors Corporation, Volkswagen of America, Inc., Intervenors. GENERAL MOTORS CORPORATION, Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Volkswagen of America, Inc., Natural Resources Defense Council, Inc., Mercedes-Benz of North America, Inc., Interve-nors. MERCEDES-BENZ OF NORTH AMERICA, INC., Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Natural Resources Defense Council, Inc., Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, Respondent, Automobiles Peugeot, Volkswagen of America, Inc., Intervenors. Nos. 80-1312, 80-1464, 80-1710 and 80-1712. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 28, 1980. Decided April 22, 1981. David D. Doniger, Washington, D.C., with whom Richard E. Ayres, Washington, D.C., was on the brief, for Natural Resources Defense Council, Inc., petitioner in Nos. 80-1312 and 80-1712 and intervenor in Nos. 80-1464 and 80-1710. William Weber, Jr., Detroit, Mich., with whom Thomas L. Arnett and Frazer F. Hilder, Detroit, Mich., were on the brief, for General Motors Corporation, petitioner in No. 80-1464 and intervenor in No. 80-1312. Jose R. Allen, Atty., Dept, of Justice, Boston, Mass., of the bar of the Supreme Court of Massachusetts, pro hac vice, by special leave of Court, and Bruce Bertelsen, Atty., E.P.A., of the bar of the Supreme Court of Michigan, pro hac vice, by special leave of Court, Washington, D.C., with whom Angus MacBeth, Acting Asst. Atty. Gen., Donald W. Stever, Jr., Atty., Dept, of Justice, Patrick O’Hare and Gerald K. Gleason, Attys., E.P.A., Washington, D.C., were on the brief, for respondents. Nancy J. Marvel, Washington, D.C., also entered an appearance for respondents. Patrick M. Raher, Washington, D.C., with whom David M. Gische, Washington, D.C., was on the brief, for Mercedes-Benz of North America, intervenor in Nos. 80-1312 and 80-1464 and petitioner in No. 80 — 1710. Herbert Rubin, New York City, Thomas H. Truitt and Terrance Roche Murphy, Washington, D.C., were on the brief for Volkswagen of America, Inc., intervenor in Nos. 80-1312, 80-1464 and 80-1712. Richard deC. Hinds and Christopher Miller Klein, Washington, D.C., were on the brief for Automobiles Peugeot, intervenor in No. 80-1712. Before ROBB, MIKVA and GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge MIKVA. Opinion concurring in part and dissenting in part filed by Circuit Judge ROBB. MIKVA, Circuit Judge: These consolidated cases present a variety of challenges to actions of the Environmental Protection Agency (EPA) in setting standards to govern emissions of particulate matter and oxides of nitrogen from diesel vehicles. The Natural Resources Defense Council (NRDC) argues that the agency’s actions do not adequately protect the public health; General Motors Corporation (GM) and Intervenors Mercedes-Benz of North America, Inc., and Volkswagen of America, Inc., assert that the EPA did not give adequate consideration to safety factors, and that, in a variety of ways, the standards are too strict. Finding that the agency has stated adequate reasons for its decisions, and that its actions are consistent with statute, we uphold the challenged regulations in their entirety. I. THE REGULATORY FRAMEWORK The EPA is authorized by the Clean Air Act (Act) to regulate emissions of harmful pollutants from motor vehicles. The Act itself specifies the quantity of acceptable emissions from light-duty vehicles for three classes of pollutants: carbon monoxide, hydrocarbons, and oxides of nitrogen. Act § 202(b)(1). Section 202(a)(1) of the Act confers on the EPA Administrator the general power to prescribe by regulation “standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” These provisions are supplemented and qualified by various specific provisions relating to particular classes of vehicles or pollutants. E.g., Act §§ 202(a)(3)(A)(i), 202(a)(3)(F), 202(b)(6)(A). The statutory standard for hydrocarbon emissions from light-duty vehicles is an absolute one. For models manufactured from 1977 to 1979, hydrocarbon emissions may not exceed 1.5 grams per vehicle mile; for those manufactured from 1980 on, the standards must require a reduction of at least ninety percent from the emission standards applying in 1970. Act § 202(b)(1)(A). The statutory standards for carbon monoxide and oxides of nitrogen are also absolute, but they are subject to a variety of waivers for certain manufacturers who lack the technological capacity to comply. See Act §§ 202(b)(1)(B), 202(b)(5), 202(b)(6). The emission standards set by the EPA under its general regulatory power, in contrast, are “technology-based” — the levels chosen must be premised on a finding of technological feasibility. Section 202(a)(2) of the Act provides that standards promulgated under section 202(a)(1) shall not take effect until “after such period as the Administrator finds necessary to permit the development and application of the requisite technology.” The requirement that emission standards be technologically achievable highlights the need for the EPA’s power to divide the broad spectrum of motor vehicles into classes or categories. See Act §§ 202(a)(1), 202(a)(3)(A)(iv). Manufacturers produce a wide variety of motor vehicles of different sizes, some using different engine technologies resulting in unusual emission characteristics. In particular, diesel engines use a different fuel, emit exhaust at a lower temperature, and produce a different distribution of pollutants than traditional gasoline engines. For example, diesel carbon monoxide levels are typically lower than those from gasoline vehicles, see 45 Fed. Reg. 5480, 5493 n.192 (1980), but diesel vehicles produce particulate emissions at thirty to seventy times the rate of gasoline vehicles, see 45 Fed.Reg. 14,496 (1980), and also produce higher levels of the unregulated pollutants sulfur dioxide and benzo(a)py-rene, see 45 Fed.Reg. 5480, 5489 (1980). The present challenges concern the EPA’s promulgation of standards governing particulate emissions from light-duty diesel vehicles and light-duty diesel trucks, and the EPA’s waiver of the statutory standard for oxides of nitrogen for light-duty vehicles. The EPA’s particulate standard and N0X decisions are appropriately linked in the present proceeding because current technology creates an unfortunate trade-off between particulate control and control of oxides of nitrogen. The primary technique used today for reducing NOx emissions is exhaust gas recirculation (EGR). While lowering the NOx content of the exhaust, EGR increases the particulate content, and “the greater the EGR rate, the greater the increase in particulate emissions.” Environmental Protection Agency, Regulatory Analysis [of] Light-Duty Diesel Particulate Regulations 33 (1980) [hereinafter cited as Regulatory Analysis], Joint Appendix (J.A.) 510. Thus the stringency of a technology-based particulate standard depends on the level of the NOx standard concurrently applied. We consider the EPA’s actions and the NRDC and industry challenges in turn. II. THE PARTICULATE STANDARDS The EPA announced its intention to promulgate standards for particulate emissions from light-duty diesels on February 1, 1979. See 44 Fed.Reg. 6650 (1979). The proposed standards would have limited diesel particulates to 0.60 grams per vehicle mile (gpm) in model year 1981, and to 0.20 gpm in model year 1983. The agency concluded that a single standard, governing all light-duty vehicles, was the preferable regulatory strategy, although 1979 certification data indicated that diesel particulate performance among those vehicles ranged from the 0.23 gpm achieved by the Volkswagen Rabbit to the 0.84 gpm emitted by the Oldsmobile 350. Id. at 6651. Furthermore, these restrictions would have applied equally to light-duty vehicles and light-duty trucks. Id. at 6654-55. After analyzing the comments elicited by its notice of proposed rulemaking, the EPA promulgated as final standards a modification of the rules originally announced. See 45 Fed.Reg. 14,496 (1980). The limit of 0.60 gpm was retained, but its effective date was postponed to model year 1982, because the rulemaking process had absorbed so much time that testing and certification of 1981 models was no longer feasible. Id. at 14,497. The agency concluded that the technology necessary to make the 0.20 gpm standard feasible would probably not be developed in time for implementation in 1983 model vehicles; 1984 was a more likely goal, but the effective date was postponed to model year 1985 to give sufficient margin for error. Id. at 14,498. Finally, the EPA believed that light-duty trucks would not be able to perform as well as light-duty vehicles, and the 1985 standard for light-duty trucks was therefore adjusted to 0.26 gpm. Id. at 14,497. The auto industry petitioners do not challenge the 1982 standard of 0.60 gpm, but they vigorously deny the likelihood that technology will be available to meet the lower standards in 1985. In setting the 1985 standards, the EPA predicted that a currently experimental particulate control device, known as a “trap-oxidizer,” would be perfected early enough to allow its mass production and installation in 1985 model diesel vehicles. The manufacturers argue that this prediction lacked a sufficient evi-dentiary basis, and that the agency’s action must therefore be invalidated as failing to meet the requirement of reasoned decision-making. They also argue that the EPA gave inadequate consideration to the safety risks involved in trap-oxidizer technology. NRDC insists that the EPA’s entire regulatory strategy is an inadequate response to the agency’s statutory mandate to protect the public health. The EPA deliberately set a single standard for all light-duty diesel vehicles, predicting that even the worst performing diesel could meet it. NRDC argues that that regulatory choice is inconsistent with the EPA’s statutory responsibilities; it urges a variable standard, imposing more rigorous requirements on better performing vehicles. NRDC also urges that the agency failed to consider the risks posed by diesel particulate as a carcinogen, and that in giving “appropriate consideration” to cost as a factor in standard-setting, it should have tried to discourage purchase of polluting vehicles through economic disincentives. Finally, NRDC attacks the postponement of the 0.20 gpm standard from 1984 to 1985 as unnecessary and irresponsible. In order to evaluate these claims, we first determine the applicable statutory directives. We then turn to light-duty vehicles and, after discussing the proper standard of review in this case, assess the manufacturers’ attack on the EPA’s prediction of technological feasibility. Next, we examine the NRDC’s claims and, finally, turn to light-duty trucks. A. The Source of the EPA’s Authority Before turning to the merits of the EPA’s rulemaking activities, we must consider a threshold question that has attracted attention sporadically throughout the course of the proceedings. Although none of the parties contests the EPA’s authority to regulate diesel particulate emissions, there is some disagreement as to the precise statutory provision conferring that authority. GM insists that the EPA’s particulate rule-making for non-heavy-duty vehicles may be viewed only as an exercise of its broad general power to prescribe motor vehicle emission standards under section 202(a)(1) of the Act; the EPA argues that "an explicit provision of the Act specifically directs it to promulgate particulate standards. In proposing the challenged regulations, the EPA cited as its statutory basis section 202(a)(3)(A)(iii) of the Act, added by the 1977 Clean Air Act Amendments, Pub.L.No. 95 — 95, § 224, 91 Stat. 685. That provision, set out more fully in the margin, requires that “[t]he Administrator shall prescribe regulations under [section 202(a)(1)] applicable to emissions of particulate matter from classes or categories of vehicles manufactured during and after model year 1981 (or during any earlier model year, if practicable).” GM maintains that this provision empowers the agency only to set standards for heavy-duty vehicles, while the EPA reads it as applying to any “classes or categories of vehicles,” including all light-duty diesels. The apparent meaning of the language of section 202(a)(3)(A)(iii), read in isolation, comports with the EPA’s view, but we_conclude that that language should not be read in isolation, see, e. g., Brown v. Duchesne, 60 U.S. (19 How.) 183, 194, 15 L.Ed. 595 (1857). The structure of section 202 casts doubt on the validity of a literal reading, and after a closer examination of the section’s legislative history, we conclude that GM’s position is correct. The EPA’s power under section 202(a)(1) antedates the 1977 amendments— such authorization, to the agency and its predecessors, has been present in varying forms since the Clean Air Act Amendments of 1965, Pub.L.No.89-272, § 101, 79 Stat. 992. The legislative history of the 1970 amendments demonstrates that Congress “expected that section 202(a) authority would be used for regulation of particulate emissions.” S.Rep.No.1196, 91st Cong., 2d Sess. 24 (1970), reprinted in 1 Legislative History of the Clean Air Act Amendments 424 (1974) [hereinafter cited as Legislative History]. Congress did not write in a statutory particulate standard at that time, as it did for vehicular emissions of carbon monoxide, hydrocarbons, and oxides of nitrogen, because of technological obstacles: No present measurement techniques exist to evaluate or establish standards for such particulate emissions. Such standards cannot be established on the basis of 1970 vehicles as required by subsection (b) because measurement techniques will not exist until 1972. At such time as measurement methods are developed the Secretary would be expected to establish standards for particulate emissions under 202(a) authority. Id. By 1977, however, Congress had become impatient with the EPA’s failure to promulgate a particulate standard. The need for a standard for the pollutant particulate matter for motor vehicles was identified in the Senate report in 1970. None has yet been proposed, except for a smoke standard for heavy duty diesels. EPA should promulgate a standard requiring best available control technology for smoke from heavy duty diesels and other particulate emissions from heavy duty vehicles and motorcycles by model year 1978, if possible, or by model year 1979. S.Rep.No.127, 95th Cong., 1st Sess. 67 (1977), reprinted in 3 Legislative History 1441. Congress therefore adopted the mandatory language of section 202(a)(3)(A)(iii). The 1977 Senate report illustrates that congressional concern over vehicular particulate emissions focused on heavy-duty vehicles. They are the major source of the problem; as the EPA observed in the present rulemaking, light-duty “gasoline-powered vehicles with three-way catalysts emit very low levels of particulate.” Regulatory Analysis at 31, J.A. 510. Not surprisingly, then, the origin of section 202(a)(3)(A)(iii) can be traced to a provision in the 1977 Senate bill “applicable to emissions of carbon monoxide, hydrocarbons, particulates, and oxides of nitrogen from heavy duty trucks, buses, and motorcycles and engines thereof,” S. 252, 95th Cong., 1st Sess. § 19 (1977), see S.Rep.No.127, 95th Cong., 1st Sess. 193 (1977), reprinted in 3 Legislative History 1567. The Senate provision was compromised in conference with a less stringent House provision, and the contents of the Senate’s bulky paragraph were distributed among subparagraphs of paragraph 202(a)(3)(A) under circumstances suggesting that the omission of the words “heavy duty” from subparagraph 202(a)(3)(A)(iii) was inadvertent. The section of the act that emerged from conference bore the title, “Emission Standards for Heavy Duty Vehicles or Engines and Certain Other Vehicles or Engines,” Pub.L.No.95-95, § 224, 91 Stat. 685; the substance of that section indicates that the “certain other vehicles” are motorcycles. Subparagraphs 202(a)(3)(A)(i) and 202(a)(3)(A)(ii) still retain the limitation to heavy-duty vehicles. Subparagraph 202(a)(3)(A)(iv), which empowers the Administrator to establish “classes or categories of vehicles or engines for purposes of regulations under this paragraph,” is not so restricted, but the conference report is written as if it were: “The Administrator is specifically authorized to subdivide heavy duty vehicles into classes or categories for purposes of this section.” H.R.Rep.No.564, 95th Cong., 1st Sess. 164 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1502, 1544, 3 Legislative History 544. This accumulation of detail convinces us that Congress did not intend, in adding section 202(a)(3)(A)(iii), to mandate adoption of particulate standards for light-duty vehicles. Rather, Congress directed the EPA to give priority to establishing particulate emission standards for heavy-duty vehicles, and left the agency free to exercise its power under section 202(a)(1) to regulate light-duty automobiles, whether diesel-powered or otherwise. Our conclusion that the EPA cited the wrong section of the statute as authority for its rulemaking does not necessitate a remand, even though paragraph 202(a)(1) requires, as subparagraph 202(a)(3)(A)(iii) does not, a threshold finding that the regulated pollutant “may be anticipated to endanger public health or welfare.” Particulates have long been recognized as one of the major targets of the Clean Air Act. See, e. g., U.S. Dep’t of Health, Education, and Welfare, Air Quality Criteria for Particulate Matter (National Air Pollution Control Administration Publication No. AP — 49) (1969). And the EPA, in issuing the present regulations, made specific findings on the environmental impact of diesel particulates: Section 202(a)(3)(A)(iii) directs EPA to control particulate emissions; it does not require that the Agency first conduct an environmental impact assessment. Nevertheless, EPA has carefully examined the environmental impact of this rulemaking. ... Small particles, which are much more likely to be deposited in the alveolar region and which require much longer periods of time to be cleared from the respiratory tract, have a greater potential to affect human health than larger particles. Thus, control of diesel particulate, of which 100 percent is less than 15 micrometers in diameter and approximately 97 percent of which is less than 2.5 micrometers in diameter, is especially important with respect to human health. 45 Fed.Reg. 14,496, 14,498-99 (1980). Indeed, GM expressly concedes in its brief that “the Administrator considered and discussed the health risks of particulate emissions during rulemaking [and that his] determination that particulate emissions require priority control to protect human health would entitle him to prescribe particulate standards under § 202(a)(1) for light-duty vehicles.” Reply Brief for Petitioner General Motors Corp. at 6 [hereinafter GM Brief]. B. Technological Feasibility The EPA’s choice of the 0.20 gpm standard for light-duty diesels in 1985 was the result of adjusting current diesel particulate emission data by the percentage of reduction expected from certain technological improvements, most notably the trap-oxidizer. The manufacturers’ attack on the standard focuses on the EPA’s prediction concerning the probable pace of development of trap-oxidizer technology. Before examining the details of the agency’s reasoning and the industry challenges, however, we find it useful to discuss the legal standard that governs our inquiry. 1. The Standard of Review The standard of review in this case is the traditional one for judicial scrutiny of agency rulemaking: we are to set aside any action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Act § 307(d)(9)(A). As nonscientists, we must recall that “[o]ur ‘expertise’ is not in setting standards for emission control but in determining if the standards as set are the result of reasoned decisionmaking.” Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427, 434 (D.C.Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). Despite this limited role, our examination of the record must be searching, for the necessity to review agency decisions, if it is to be more than a meaningless exercise, requires enough steeping in technical matters to determine whether the agency “has exercised a reasoned discretion.”... We cannot substitute our own judgment for that of the agency, but it is our duty to consider whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 402 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). In the present case, GM attacks the EPA’s estimation of the period of time “necessary to permit the development and application of the requisite technology” to achieve compliance with the 1985 particulate standards, see Act § 202(a)(2). The agency has determined that the technology will be available in time, and now seeks to defend its conclusion as a product of reasoned decisionmaking. Such predictions inherently involve a greater degree of uncertainty than estimations of the effectiveness of current technology. If we judge the EPA’s action by the standard of certainty appropriate to current technology, the agency will be unable to set pollutant levels until the necessary technology is already available. The legislative history of both the 1970 and the 1977 amendments demonstrates that Congress intended the agency to project future advances in pollution control capability. It was “expected to press for the development and application of improved technology rather than be limited by that which exists today.” S.Rep.No.1196, 91st Cong., 2d Sess. 24 (1970), reprinted in 1 Legislative History 424; H.R.Rep.No.294, 95th Cong., 1st Sess. 273 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1077, 1352, 4 Legislative History 2740. In designing the particulate standard, the EPA recognized the uncertainty necessarily accompanying its duty to predict: When projecting a near-term standard when little time exists for technological advances, it is relatively simple for a regulatory agency to predict what the best available control technology will be, and to set a standard based on its application. It is more difficult to regulate on this basis in the long-term because of the uncertainty that inevitably surrounds expected technological improvements. Nevertheless,... EPA has concluded that it is absolutely necessary to issue standards which motivate the private sector to maximize its efforts in reducing particulate emissions from light-duty vehicles. Regulatory Analysis at 32, J.A. 511. This court has upheld the agency’s power to make such projections, while recognizing that it is “subject to the restraints of reasonableness, and does not open the door to ‘ “crystal ball” inquiry.’ ” International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 629 (D.C.Cir.1973). The Clean Air Act requires the EPA to look to the future in setting standards, but the agency must also provide a reasoned explanation of its basis for believing that its projection is reliable. This includes a defense of its methodology for arriving at numerical estimates. Id. The thoroughness and persuasiveness of the explanation we can expect from the agency will, of course, vary with the nature of the prediction undertaken. “Where existing methodology or research in a new area of regulation is deficient, the agency necessarily enjoys broad discretion to attempt to formulate a solution to the best of its ability on the basis of available information.” Industrial Union Dep’t v. Hodgson, 499 F.2d 467, 474 n.18 (D.C.Cir.1974). At one extreme, this court has recognized that the EPA’s decision to regulate potentially harmful pollutants involves a large element of policy choice that cannot be demonstrably “correct,” although it must have a genuine scientific basis. The Administrator may apply his expertise to draw conclusions from suspected, not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as “fact,” and the like. We believe that a conclusion so drawn — a risk assessment — may, if rational, form the basis for health-related regulations under the “will endanger” language of Section 211. Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C.Cir.1976) cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976) (footnote omitted); see Environmental Defense Fund v. EPA, 598 F.2d 62, 83-85 (D.C.Cir.1978). We have also acknowledged the necessarily speculative nature of agency predictions in the social sciences, including judgments of the competitive impact of regulatory decisions. United States v. FCC, 652 F.2d 72, 100 (D.C.Cir.1980); National Small Shipments Traffic Conference v. CAB, 618 F.2d 819, 829-30 (D.C.Cir.1980). At the other extreme, this court’s inquiry into agency methodology in the physical sciences has been far more exacting “where the facts pertinent to [a] standard’s feasibility are available and easily discoverable by conventional technical means.” National Lime Ass’n v. EPA, 627 F.2d 416, 454 (D.C.Cir.1980). The present case lies between those two extremes. It does not involve questions at the frontier of physiological knowledge, but it does require a determination by the EPA of the likely sequence of further technological development. There is no known scientific technique for calculating when an as yet unsolved design problem will be ironed out. Thus, unlike the short-term feasibility assessments scrutinized in National Lime Association, the present determination presents the court with “the question how much deference is owed a judgment predicated on limited evidence when additional evidence cannot be adduced or adduced in the near future,” id. at 454. The time element in the EPA’s prediction affects our reviewing task in three distinct ways. First, it introduces uncertainties in the agency’s judgment that render that judgment vulnerable to attack. At the same time, however, the time element gives the EPA greater scope for confidence that theoretical solutions will be translated successfully into mechanical realizations, for “the question of availability is partially dependent on ‘lead time’, the time in which the technology will have to be available.” Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 391 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Finally, the presence of substantial lead time for development before manufacturers will have to commit themselves to mass production of a chosen prototype gives the agency greater leeway to modify its standards if the actual future course of technology diverges from expectation. The relevance of lead time, and of the ability to modify standards in light of future developments, to the degree of justification the agency must offer may be seen in this court’s opinion in International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir.1973). That case, despite numerous dissimilarities to the present one, provides a useful point of reference, and all the parties seek to claim it as their own. In International Harvester, the court reversed the EPA’s refusal to suspend for one year strict new 1975 model year emission standards that had been set by Congress in the 1970 amendments. This court, reviewing in early 1973 an EPA decision of May 1972, stressed the harm that would result from “a relaxation of standards, and promulgation of an interim standard, at a later hour — after the base hour for ‘lead time’ has been passed, and the production sequence set in motion.” Id. at 637. Too late a relaxation would penalize technologically advanced firms, like Ford, which would already have begun manufacture of vehicles that achieved better emission control at the expense of road performance. For this and other reasons, the hardship resulting if a suspension were mistakenly denied outweighed the risks from a suspension needlessly granted. Because of that balance of hardships, the court probed deeply into the reliability of the EPA’s methodology. The present case is quite different; the “base hour” for commencement of production is relatively distant, and until that time the probable effect of a relaxation of the standard would be to mitigate the consequences of any excessive strictness in the initial rule, not to create new hardships. The significance of the time factor in International Harvester was increased by the fact that the EPA was not predicting future technological advances, but rather was imposing an interpretation on current industry data. That data uniformly indicated that the standards were not being met, yet the EPA claimed that “adjustments” of the data demonstrated the likelihood of compliance. But the court concluded that the agency had failed to demonstrate the reliability of its methodology sufficiently to defend its reinterpretation of apparently adverse data. International Harvester has been cited frequently in cases involving presently-available-technology standards, as well as in other cases in which the agency’s “central argument is that the standard is achievable because it has been achieved,” National Lime Association, 627 F.2d at 432-33 (emphasis in original); Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977); Duquesne Light Co. v. EPA, 522 F.2d 1186 (3d Cir. 1975), vacated, 427 U.S. 902, 96 S.Ct. 3185, 49 L.Ed.2d 1196 (1976); CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975); Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). The defense of a projection methodology in such cases has required “that variables be accounted for, that the representativeness of test conditions b[e] ascertained, that the validity of tests be assured and the statistical significance of results determined.” National Lime Association, 627 F.2d at 452-53 (footnotes omitted). But statistically-based techniques for reviewing the methodology of contemporary projections do not translate well into rules for reviewing predictions of future progress. If the agency is to predict more than the results of merely assembling preexisting components, it must have some leeway to deduce results that are not represented by present data. The EPA has generally been granted “considerable latitude in extrapolating from today’s technology” when it predicts future technological developments for the purposes of the Clean Water Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. II 1978). See California & Hawaiian Sugar Co. v. EPA, 553 F.2d 280, 288 (2d Cir. 1977). The courts have had numerous occasions to review EPA determinations that a given control technique constitutes the “best available technology economically achievable” in the 1980s. Most of the opinions, including our own American Paper Institute v. Train, 543 F.2d 328, 352-53 (D.C.Cir.1976), cert. dismissed, 429 U.S. 967, 97 S.Ct. 398, 50 L.Ed.2d 335 (1976), steer close by the shores of their factual contexts and yield little in the way of explicit doctrine. But their essential requirement is that the agency provide “a reasonable basis for belief that a new technology will be available and economically achievable.” Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 635 (2d Cir. 1976). When a technology is already in use in other industries, the court often expects more solid evidence that the technology can be transferred to the industry in question, or at least that relevant dissimilarities have been considered. American Meat Institute v. EPA, 526 F.2d 442, 465 (7th Cir. 1975). To apply these general considerations to our task of review in the present case, we must examine the nature of the EPA’s determination. The agency has predicted that the manufacturers will be able to develop a satisfactory version of the trap-oxidizer in the time remaining. This device was designed specifically for the purpose for which EPA intends it, and prototypes have achieved partial success. GM itself has characterized trap-oxidizers as “[t]he most promising particulate traps,” and has admitted that “current program status [would] indicate a possibility of 1985 model year production.” General Motors Response to EPA Notice of Proposed Rule-making 132, 175 (1979) [hereinafter GM Response], J.A. 279, 284. The EPA’s decision must be judged in terms of record evidence available in early 1980, allowing a “time frame of 2-2V2 years for completion of the design development phase [and] 2-2V2 years of production lead time.” 45 Fed.Reg. 48,133, 48,139 (1980). Given this time frame, we feel that there is substantial room for deference to the EPA’s expertise in projecting the likely course of development. The essential question in this case is the pace of that development, and absent a revolution in the study of industry, defense of such a projection can never possess the inescapable logic of a mathematical deduction. We think that the EPA will have demonstrated the reasonableness of its basis for prediction if it answers any theoretical objections to the trap-oxidizer method, identifies the major steps necessary in refinement of the device, and offers plausible reasons for believing that each of those steps can be completed in the time available. If the agency can make this showing, then we cannot say that its determination was the result of crystal ball inquiry, or that it neglected its duty of reasoned decisionmaking. 2. The Time “Necessary to Permit the Development and Application of the Requisite Technology” Applying the standard described in the preceding section to the challenged particulate regulations, we can determine whether the EPA has presented an adequate exposition of its reasons for believing that the necessary technology will be

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

PRICE IRON & STEEL CO. v. BURNET, Commissioner of Internal Revenue. No. 5040. Court of Appeals of District of Columbia. Argued Nov. 5, 1930. Decided Dec. 1, 1930. George E. H. Gardner, of Washington, D. C., for appellant. Sewall Key, C. M. Charest, J. Louis Monarch, S. Dee Hanson, and F. E. Mitchell, all of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. Appellant, an Illinois corporation, appealed from a decision of the United States Board of Tax Appeals denying a reduction in its taxes for the year 1920. It appears that during the years 1918, 1919, and 1920, appellant was engaged in the business of buying and selling serap metal, with its principal office in Chicago, 111. Its return for taxes for the year 1920 was on the accrual basis. It reported in that year all the items of income appearing on its books, and deducted all allowable costs and expenses. During 1918, 1939, and 1920, appellant purchased large quantities of scrap metal from the Director General of Railroads and the New York Central Railroad Company. In 1924, the Director General and the railroad company, through their attorneys, demanded from appellant $80,000 on account of the wrongful classification and grading of scrap metals which appellant had purchased from them. The claim was disputed and a settlement was arrived at in March, 1925, under which appellant paid the amount of $35,-000; and a full discharge of all claims and demands by the railroad company and the Director General was given the appellant. Appellant then filed with the Commissioner of Internal Revenue a claim for refund, in which he sought to deduct the $35,000 paid in 1925, as additional cost for goods sold in 1920. This claim was denied by the commissioner on the theory that appellant’s contracts and purchases in 1920 had been fully executed in that year, and that this claim could not attach back to the transactions of that year. Appellant then amended its petition and sought a review before the board of the commissioner’s final determination of the deficiency, requesting that $17,742.12 of the $35,000 be allowed as additional cost of goods sold for 1920, the balance applying to the years prior to that date. It will be observed that the question here presented is whether or not this amount, first demanded in 1924, and finally settled and paid in 1925, is a proper deduction as a part of appellant’s costs of goods sold in 1920. The return made by appellant in 1920 on the accrual basis was complete for that year. The amount paid in 1925 could not be considered as an additional purchase price hut as a liability of the petitioner for a wrongful classification of the goods purchased in 1920. The goods purchased in 1920 were fully paid for according to the classification recognized a,t that time. In other words, the 1920 return was a complete statement, from the books of the company, of the cost of the goods under the prevailing classification. This action, therefore, is not to correct any error in the 1920 return. What occurred in 1925 was an additional payment due to a mistake in classification and grading of the serap iron, a liability which occurred in 1925, and not in 1920. It constituted a separate transaction growing out of the dealings of 1920. At most, it constituted an item which, if deductible at all, would belong in the return for 1925, and not for 1920, and eould not, we think, relate back to the 1920 return in such manner as to be regarded as an additional part of the purchase price of the goods for that year. The decision 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. 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?

HERCULES INCORPORATED, Olin Corporation, and Thiokol Corporation, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. No. 90-1368. United States Court of Appeals, District of Columbia Circuit. Argued May 20, 1991. Decided July 12, 1991. Carole Stern, Washington, D.C., with whom Mark A. Ferrin was on the joint brief, Apo, N.Y., for petitioners. Barry M. Hartman, Atty., U.S. Dept, of Justice, Washington, D.C., for respondent. Earl Salo, Asst. Gen. Counsel and George Wyeth, Atty., U.S.E.P.A., Richard B. Stewart, Asst. Atty. Gen. and W. Christian Schumann, Atty., U.S. Dept, of Justice, were on the brief, Washington, D.C., for respondent. Before MIKVA, Chief Judge, and WILLIAMS and THOMAS, Circuit Judges. Opinion for the Court filed by Chief Judge MIKVA. MIKVA, Chief Judge: A 1986 amendment to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq. (1988), imposes notice and covenant requirements on federal agencies that transfer real property contaminated by hazardous substances. The Environmental Protection Agency (“EPA”), in implementing the notice requirements of the amendment, applied them only to properties where contamination occurred during the period of government ownership. The EPA also declined to provide a definition of what constitutes a contract for the transfer of real property or to address the issue of whether leases should be deemed transfers of real property, stating with respect to leases that the question was better left for case-by-case determination by agencies. Petitioners challenge each of these features of the EPA’s rulemaking and claim further that the proposed regulation failed to provide adequate notice that the EPA might adopt these positions in its final rule. Although we reject petitioners’ other arguments, we agree with them that the statutory language is unambiguous in extending the government’s notice obligations to all contaminated properties it owns regardless of whether the contamination occurred while the government owned the property; we therefore grant the petition for review. I. Background A. The Statutory Framework CERCLA was enacted “to provide authority and funding for the cleanup of serious threats to public health and the environment resulting from disposal of hazardous waste.” Ohio v. EPA, 838 F.2d 1325, 1327 (D.C.Cir.1988). Under CERCLA, the EPA is required to devise a national contingency plan for responding to releases of hazardous substances and is authorized to use the Hazardous Substance Superfund to finance response costs. See 42 U.S.C. §§ 9604-9605, 9611. The EPA may seek recovery of cleanup costs from any responsible party it can locate. See 42 U.S.C. § 9607(a). Alternatively, the EPA may order a responsible party to clean up a site where there has been a release or a threatened release of a hazardous substance and the site presents an “imminent and substantial endangerment to the public health or welfare or the environment.” 42 U.S.C. § 9606(a). In addition, responsible parties may be liable for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). CERCLA identifies four categories of responsible parties subject to liability, including current owners or operators of facilities containing hazardous substances and owners or operators at the time of disposal. See 42 U.S.C. § 9607(a). In 1986, Congress enacted the Superfund Amendments and Reauthorization Act (“SARA”), Pub.L. No. 99-499, 100 Stat. 1613, which amended CERCLA in a number of respects. Among other provisions, SARA added section 120 to CERCLA, 42 U.S.C. § 9620, to address the problem of responsibility for hazardous substances located on federally owned sites. Section 120(a) provides that federal departments, agencies, and instrumentalities are subject to the provisions of CERCLA to the same extent as are private parties. Sections 120(b) — (f) establish a comprehensive program to ensure the identification and cleanup of federal sites. In section 120(h), the provision at issue here, Congress imposed notice and covenant requirements on federal agencies that transfer real property contaminated by hazardous substances. Section 120(h)(1) provides in relevant part: [Wjhenever any department, agency, or instrumentality of the United States enters into any contract for the sale or other transfer of real property which is owned by the United States and on which any hazardous substance was stored for one year or more, known to have been released, or disposed of, the head of such department, agency, or instrumentality shall include in such contract notice of the type and quantity of such hazardous substance and notice of the time at which such storage, release, or disposal took place, to the extent such information is available on the basis of a complete search of agency files. 42 U.S.C. § 9620(h)(1). Section 120(h)(2) requires the EPA to issue regulations establishing the “form and manner” of the required notice. Finally, section 120(h)(3) requires that deeds for the transfer of federal real property contain the same notice as that required for contracts to transfer real property, as well as covenants warranting that remedial action has been taken to clean up the site and that the government will take any further remedial action found to be necessary after the date of the transfer. B. EPA’s Regulatory Action In January 1988, the EPA, exercising its authority under section 120(h)(2), published a proposed rule implementing the notice requirements of section 120(h)(1), stating that in most cases it intended to apply the requirements without regard to whether the hazardous substance activities occurred during the period of federal ownership or prior to the government’s acquisition of the property. See 53 Fed.Reg. 850, 851 (1988). The EPA expressed concern about the burden of applying the requirements to properties obtained by the government through foreclosure and expressed doubt that Congress intended section 120(h) to apply to such properties, but nonetheless decided that it would be “both prudent and appropriate” to apply the requirements to foreclosed properties, with an exclusion for certain small residential properties. See id. With regard to the latter, the EPA believed that “most small, residential properties would not be the site of any significant hazardous substances activity” and that any health or environmental gains from including them in the regulation “would be minimal.” Id. Among other features of the proposed rule, the EPA defined certain terms used in the statute (such as “storage,” “release,” and “disposal”), see id. at 852, 854, but did not define the phrase “transfer of real property,” stating only that it presumed Congress meant to incorporate the definition contained in the Federal Property Management Regulations (“FPMR”), 41 C.F.R. § 101-47. See 53 Fed.Reg. at 851. The proposed rule made no specific mention of leases. In April 1990, fully two years after the statutory deadline, see 42 U.S.C. § 9620(h)(2), the EPA promulgated its final rule implementing section 120(h)(1). See 55 Fed.Reg. 14,208 (1990) (codified at 40 C.F.R. § 373 (1990)). The final rule revised the proposed rule in two respects important here. First, the final rule applied the notice requirements of section 120(h)(1) only to real property on which hazardous substances were stored, released, or disposed of “during the time the property was owned by the United States.” Id. at 14,-212; 40 C.F.R. § 373.1. The EPA explained that it now believed that Congress was primarily concerned with federal facilities (chiefly military bases and nuclear weapons facilities) whose own operations involved the storage, release, or disposal of hazardous substances and that section 120(h) therefore was not intended to apply where these activities occurred prior to the government’s acquisition of the property. See 55 Fed.Reg. at 14,210. This interpretation, it concluded, was “more appropriate ... than [EPA’s] earlier approach ... which focused on the manner in which the property was acquired” and would avoid imposing unfair and unmanageable obligations on federal agencies that had no role in the storage, release, or disposal of hazardous substances. See id. Second, the EPA declined to adopt a general definition of “transfer” in the final rule or to determine the extent to which leases are subject to the notice requirements. See id. at 14,208-09. In response to commenters who complained that they were unable to find a definition of “transfer” in the FPMR, the EPA stated that it had referred to the FPMR in its proposed rulemaking only in order to ensure that “federal agencies realized that the proposed regulations applied to transfers of property between agencies,” as well as to transfers between an agency and a private party and between an agency and a state or local government. Id. at 14,208 (emphasis in original). Although it recognized that “[determining what constitutes a ‘transfer’ of real property is important for implementing the requirements of section 120(h),” id., the EPA failed to offer any general definition of the term. With respect to the more specific questions of “whether and to what extent leases and easements should be included among the types of property” subject to the rule, the EPA stated that “[t]hese questions involve a complicated area of real property law, and may be affected by specific deed or lease terms and by state common law. Accordingly, EPA has not addressed these issues in the final rule.” Id. at 14,209. Following promulgation of the final rule, petitioners, who periodically enter into contracts for the purchase or lease of federal property, filed this petition for review. II. Analysis Petitioners challenge the EPA’s final rule on three grounds. First, they argue that the EPA’s decision to apply section 120(h)(1) only to real property where hazardous substance activities occurred during the period of government ownership is contrary to the express terms of the statute, congressional intent, and the statutory scheme taken as a whole. Second, they challenge as arbitrary and capricious the EPA’s failure to define the term “transfer” or to include leases among the types of transfers subject to the requirements of section 120(h)(1). Finally, they claim that the EPA violated the notice and comment requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553 (1988), by failing to give adequate notice in the proposed rule that it might adopt the policies on prior ownership and leases embodied in the final rule. A. The Statutory Challenge Section 120(h)(1) provides that whenever the federal government contracts for the “sale or other transfer of real property which is owned by the United States and on which any hazardous substance was stored for one year or more, known to have been released, or disposed of,” it must provide notice of the activity to the purchaser or transferee based on “a complete search of agency files.” 42 U.S.C. § 9620(h)(1). In implementing this provision, the' EPA adopted the statutory language essentially verbatim, with the crucial addition of the words “during the time the property was owned by the United States” before the words “any hazardous substance.” 40 C.F.R. § 373.1. We reject the EPA’s action because it reads into the statute a drastic limitation that nowhere appears in the words Congress chose and that, in fact, directly contradicts the unrestricted character of those words. By its terms, section 120(h) requires agencies to disclose all information of the kind specified (namely, the “type and quantity” of hazardous substances on the property and “the time at which [the] storage, release, or disposal took place”) to the extent the information is contained in the agency’s files, and the plain meaning of Congress’s words thus extends the government’s notice obligations to properties contaminated by prior owners. Congress clearly knew how to protect governmental entities from certain types of liability for such properties when it wanted to do so. See, e.g., 42 U.S.C. § 9601(20)(D) (definition of “owner or operator” excludes states and localities that acquire contaminated property involuntarily); 42 U.S.C. § 9601(35)(A)(ii) (extending innocent landowner defense to governmental entities that acquire contaminated property involuntarily). It did not do so here, however, and the EPA has literally rewritten the statute by inserting words of limitation that Congress never drafted. “[W]here, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)). We therefore need not look beyond the words of the statute to the legislative history for guidance, as the EPA urges, although it is worth noting that nothing in that history in any way suggests a congressional intent inconsistent with the plain meaning of the statute’s language. Contrary to the EPA’s suggestion, this is not a case where “the literal reading of a statutory [provision] would ‘compel an odd result.’” Public Citizen v. Department of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2567, 105 L.Ed.2d 377 (1989) (quoting Green v. Bock Laundry Machine Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557 (1989)). As noted earlier, the EPA argues that giving the statute’s words their plain meaning would result in the imposition of unfair and unmanageable notice and remediation obligations on federal agencies concerning the hazardous waste activities of prior owners. This argument, however, ignores some crucial points. First, CERCLA explicitly supports the imposition of remediation obligations on parties who were not responsible for contamination and who'have no experience in the handling or remediation of hazardous substances, as when it imposes liability on the sole basis that a party is the current owner or operator of a site contaminated by some previous owner or operator. See 42 U.S.C. § 9607(a); see also New York v. Shore Realty Corp., 759 F.2d 1032, 1043-45 (2d Cir.1985) (construing section 9607(a) as imposing strict liability on current owners or operators); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988) (same). Second, Congress limited agencies’ obligations under section 120(h) to information contained in agency files. Although the EPA thinks it unlikely that an agency’s files will contain information concerning hazardous substance activities of prior owners, it is certainly not implausible that Congress believed it would be unfair to subsequent purchasers if agencies were permitted to withhold information concerning contamination that, for whatever reasons, does happen to be reflected in agency files. Although the parties’ dispute here narrowly concerns only the EPA’s implementation of the notice requirements of section 120(h)(1), in the background of this litigation lie the remediation requirements of section 120(h)(3). If our construction of the statute imposes financial burdens on federal agencies beyond those that flow from other provisions of CERCLA, relief from those burdens must come from Congress. Absent exceptional circumstances not presented here, “[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.” Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); see also Burlington Northern R.R. Co. v. Oklahoma Tax Comm’n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859, 95 L.Ed.2d 404 (1987) (quoting Rubin). To the extent that the notice requirements themselves may impose undue burdens, it appears that the EPA has yet to explore other regulatory options that could possibly lessen those burdens. At oral argument, counsel for the EPA stressed in particular the burdens that would result if federal agencies were required to search the records of businesses it acquires through foreclosure or other involuntary seizures. Counsel conceded, however, that these concerns were premised on an expansive interpretation of what constitutes an “agency file” for purposes of section 120(h) — an interpretation, we also note, that undermines the EPA’s assertion that agency files are unlikely to contain information about contamination occurring prior to the government’s acquisition of the property. Our decision today in no way precludes the EPA from exploring, should it choose to do so, what reasonable definitions of “agency files” might allay its concerns about the impact of the statute on federal agencies’ file-searching duties. B. The Transfer and Lease Issues Petitioners next challenge the EPA’s failure to define what constitutes a transfer of federal real property subject to the requirements of section 120(h)(1) and, more specifically, its failure to state whether leases are included among such transfers. The EPA argues in response that this court lacks jurisdiction to consider this challenge. Although we reject the EPA’s jurisdictional argument, we uphold its actions on the merits. 1. Jurisdiction The EPA argues that we lack jurisdiction to consider petitioners’ challenge because section 113(a) of CERCLA, 42 U.S.C. § 9613(a), does not permit us to review the EPA’s failure to take regulatory action on a particular issue. The EPA relies chiefly on Hazardous Waste Treatment Council v. EPA, 861 F.2d 277 (D.C.Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3157, 104 L.Ed.2d 1020 (1989), where we construed a jurisdictional statute similar to section 113(a) and held that “an agency’s failure to regulate more comprehensively [than it has] is not ordinarily a basis for concluding that the regulations already promulgated are invalid.” Id. at 287. We stated that agencies may address a problem one step at a time and that, so long as the first step does not foreclose more comprehensive regulation, that step “is not assailable merely because the agency failed to take a second.” Id. See also United Technologies Corp. v. EPA, 821 F.2d 714, 720-21 (D.C.Cir.1987); Environmental Defense Fund v. EPA, 598 F.2d 62, 90-91 (D.C.Cir.1978). This general principle, however, is subject to an important exception not discussed by the EPA. In Colorado v. Department of Interior, 880 F.2d 481 (D.C.Cir.1989), which also involved section 113(a) of CERCLA, we held that when the statutory deadline for issuing regulations has passed, the promulgated regulations must be deemed the agency’s “complete response in compliance with the statutory requirements” underlying the agency’s action. Id. at 485. Accordingly, “even if [the agency] promulgates additional ... rules sometime in the future, petitioners’ claim that the existing final regulations are unlawful remains reviewable by this court.” Id. at 485-86 (emphasis in original). As noted earlier, the deadline for agency action in this case has long since passed, and the EPA’s final rule thus represents the EPA’s “complete response in compliance with the statutory requirements” of section 120(h). This court therefore has jurisdiction to review the lawfulness of the EPA’s actions. 2. The Merits On the merits, petitioners argue that the EPA acted arbitrarily and capriciously by not specifying what contracts constitute transfers of real property under section 120(h)(1) and by not including leases within that category. More particularly, they assert that the EPA’s decision not to address the issue of leases was based (at least in part) on the incorrect assumption that state common law is applicable to what constitutes a transfer of federal real property. See 55 Fed.Reg. at 14,209. They further assert that the EPA failed to consider the practical implications of its decision, arguing that because a lessee may be deemed a current operator of a facility under CERCLA, lessees of federal facilities may be exposed to substantial cleanup obligations without the certainty of knowing whether section 120(h) affords them any protection. Petitioners’ arguments fail for the simple reason that the EPA was required under section 120(h)(2) only to promulgate regulations concerning the “form and manner” of notice under the statute. We do not believe this required the EPA to define all terms contained in the statute, and the EPA therefore acted within its discretion under the statute by declining to provide any general definition of the term “transfer,” as it also declined to define other terms such as “real property.” See id. We agree with the EPA that “what constitutes a ‘transfer’ of real property is important for implementing the requirements of section 120(h),” id. at 14,208, and we do not doubt that a uniform administrative definition would assist agencies in fulfilling their duties under the statute. We cannot conclude, however, that the EPA’s failure to provide a comprehensive definition of the term, or, more specifically, to clarify the status of leases, was arbitrary or capricious. The EPA apparently made specific mention of leases at all only because one commenter suggested that the rule not apply to transfers of leases between government agencies. The EPA’s rather laconic response to this comment was that no uniform rule on leases was called for because the status of leases as transfers of real property “may be affected by specific ... lease terms and by state common law.” Id. at 14,209. Although we find this rationale less than fully persuasive (state law would seem to enter the picture only very indirectly, as in determining whether under the statute of frauds a particular instrument served to create a qualifying “transfer” as defined by federal law), this does not affect the more fundamental point that the EPA acted within its discretion in declining to provide any definition of the term “transfer.” Should the EPA later decide to provide a uniform definition of the term, however, we trust that it will offer a more cogent analysis of the status of leases than it has to date. C. Compliance with the APA’s Rulemak-ing Requirements Petitioners argue that the EPA failed to provide adequate notice in the proposed regulation that the final rule might exclude from its scope all properties where contamination occurred prior to the period of governmental ownership and might not address the issue of leases. Given our resolution of petitioners’ statutory claim, we need not reach their notice claim with respect to contamination by prior owners. As to leases, we reject their challenge. Under section 4 of the APA, 5 U.S.C. § 553, an agency must provide interested parties with adequate notice of, and an opportunity to comment on, the provisions that appear in the agency’s final regulations. Whether an agency has complied with this requirement depends on whether the final rule is a “logical outgrowth” of the proposed rule and the rulemaking proceedings. See, e.g., United Steelworkers of America v. Marshall, 647 F.2d 1189, 1221 (D.C.Cir.1980), cert, denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 546-47 (D.C.Cir.1983); Natural Resources Defense Council v. Thomas, 838 F.2d 1224, 1242 (D.C.Cir.), cert. denied, 488 U.S. 888, 109 S.Ct. 219, 102 L.Ed.2d 210, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 238 (1988). As phrased in Small Refiner, the test is whether the parties “should have anticipated that [the controverted] requirement might be imposed.” Small Refiner, 705 F.2d at 549. On the issue of leases, the proposed rule stated nothing more than that the EPA anticipated using the definition of “transfer” contained in the FPMR. See 53 Fed.Reg. at 851. Parties interested in whether the term would or would not reach certain categories of transactions were effectively placed on notice that they should consult the definition of “transfer” contained in the FPMR, and several commenters in fact pointed out to the agency that the FPMR contained no definition of the term. See 55 Fed.Reg. at 14,208. Moreover, if any interested party believed that the regulations should specifically address the status of leases, the EPA’s failure to address the issue in the proposed rule should have placed them on notice that the final rule also might fail to do so. We therefore find no procedural fault with the EPA’s action. III. Conolusion We reject petitioners’ challenge on the issue of transfers and leases, as well as their contention that the EPA violated the notice and comment provisions of the APA. However, we find that the EPA’s interpretation of section 120(h) as applying only to properties where contamination occurred during the period of government ownership flies in the face of the plain meaning of the statutory language. Accordingly, we grant the petition for review in that respect, vacate that portion of the rule, and remand to the EPA for further rulemaking consistent with this opinion. In light of the fact that the deadline for issuance of regulations implementing section 120(h)(1) has long since passed, we expect that the EPA will act expeditiously in issuing a revised rule. So ordered.

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 5. 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 5? Answer with a number.

James A. PATTERSON and Dorothy A. Patterson, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. No. 85-1904. United States Court of Appeals, Sixth Circuit. Argued Nov. 21, 1986. Decided Feb. 2, 1987. Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div., Dept, of Justice, Michael L. Paup (Lead Counsel), Roger M. Olsen, Gary R. Allen, Elaine F. Ferris (argued), Fred T. Goldberg, Jr., Chief Counsel, I.R.S., Washington, D.C., for respondent-appellant. L.L. Leatherman, Greenbaum, Doll & McDonald, Louisville, Ky., Hiram Ely, III (Lead Counsel), argued, for petitioners-ap-pellees. Michael S. Home, Covington & Burling, Washington, D.C., for amicus curiae. Before GUY, Circuit Judge; PECK, Senior Circuit Judge; and EDGAR, District Judge. Honorable R. Allan Edgar, United States District Court, Eastern District of Tennessee, sitting by designation. RALPH B. GUY, Jr., Circuit Judge. This case involves a dispute as to the amount, if any, of the consideration received for a sale of stock that is properly allocable to a covenant not to compete. The Tax Court held in favor of the taxpayer, Patterson, concluding that he had correctly allocated the entire sale price to the sale of stock. The Commissioner filed a timely appeal. For the reasons set forth below, the decision of the Tax Court is affirmed. I. The facts of this case, some of which were stipulated, may be summarized as follows: Taxpayer, Patterson, has a degree in marketing from the University of Louisville and has been in the food business since approximately 1959. For some time prior to 1975, the year here in question, he was the franchisee of several of a chain of coffee shops known as Jerry’s Restaurants. This chain was owned by Jerrico, Inc. (Jer-rico), a corporation based in Kentucky. In 1968, Patterson became favorably impressed with a fast-food business specializing in seafood which he had observed in Houston, Texas. Based on that experience, he met with Warren Rosenthal, president of Jerrico, to discuss joining with him in forming a chain of fast-seafood restaurants. Rosenthal agreed to join in such an endeavor, provided that Jerrico would hold a controlling interest of 60 percent of the business. Ultimately, they agreed to structure the business as a corporate subsidiary of Jerrico, to be known as Long John Silver’s, Inc. (US). Jerrico acquired 60 percent of the 2,000 shares issued for $24,000, while Patterson purchased the remaining 40 percent for a contribution of $16,000. Taxpayer was thereafter instrumental in developing every aspect of the US enterprise. He was named president of US at its inception, managed the opening of new restaurants in the US chain, and participated in developing the recipe for the batter in which the seafood served in US restaurants was cooked. Taxpayer received an annual salary in the amount of $60,000-$65,000 for serving as the president of US. He also sat on the board of directors of Jerrico. Although US experienced a slow rate of growth initially, by the early 1970’s it had developed into a rapidly growing and highly profitable enterprise. By the end of its fiscal year ending June 30, 1975, US was operating 373 restaurants, and by October 10, 1975, it was operating 434 restaurants, with 88 more under construction. A report prepared by Burns, Pauli & Co. in August of 1974 enthusiastically described US’s financial history as a “dramatic success.” The report further revealed that US’s profit margin was higher than that of other well managed fastfood operations, such as McDonald’s, and that, as of June 30, 1974, US was the primary money-maker for Jer-rico, bringing in as much as 83% of the company’s profits. By contrast, Jerrico’s other two divisions, the coffee shop chain, and a group of seafood specialty restaurants, were returning only modest profits or were losing money. The report attributed US’s high rate of success to a superi- or product, a “seasoned restaurant management group,” well-trained personnel, pleasant surroundings, and relatively short hours of operation. US’s high profits resulted in substantial appreciation in the share price of Jerrico’s stock, and thus prompted a great deal of interest in the company among members of the Wall Street investment community. Sometime in 1974, however, taxpayer and Warren Rosenthal (who continued to serve as Jerrico’s president) began to experience difficulties in their business relationship when Rosenthal perceived that taxpayer had invaded his own province by establishing direct communications with potential investors. At the same time, some investors who were interested in US expressed reservations to the management of Jerrico about the 40 percent minority interest which taxpayer held in US. Acting at the request of Rosenthal in mid-1974, Alan McDowell, who had served as an investment banker for Jerrico, examined the possibility of a buy-out of Patterson’s interest in US with shares of Jerrico. McDowell’s conclusion, copies of which were transmitted to Warren Rosenthal and to Patterson, was that Patterson should receive sufficient shares in Jerrico to provide him with a 30 percent interest in the company, or approximately 660,000 shares, an interest which would have been greater than Rosen-thal's own interest in Jerrico at that time. Thinking that this was unreasonable, Ro-senthal rejected McDowell’s recommendation. Matters apparently came to a head between taxpayer and Rosenthal in early 1975, when taxpayer refused to pledge his US stock or to execute a dividend waiver agreement with respect to that stock as security for a proposed line of credit or a loan in the amount of between $9,000,000 and $15,000,000 from Chemical Bank to Jerrico. Chemical declined to provide such financing unless taxpayer would pledge his stock or execute such a dividend waiver. In April, 1975, following taxpayer’s refusal to execute the requested pledge and waiver agreement, the directors of US removed taxpayer as president of that corporation. Taxpayer resigned from the board of directors of Jerrico in May, 1975. At about the same time, negotiations began for Jer-rico’s purchase of taxpayer’s 40 percent interest in US. It was found by the Tax Court, and is undisputed by the parties, that Jerrico’s interests during the negotiations were threefold: first, to agree to a purchase price for the stock; second, to include a covenant not to compete; and third, to allocate a value to such covenant. Jerrico’s primary reason for insisting on the covenant was to protect the value of the interest in US which it was receiving from Patterson. Initially, Jerrico had in mind a total price of between $8,000,000 and $12,000,000, of which it expected that up to $3,000,000 would be for a covenant not to compete, and the remainder would be for Patterson’s shares. The $3,000,000 figure for the non-competition covenant was derived by Ro-senthal as an estimate of the damages Jer-rico might sustain in the event that Patterson competed in the fast-seafood market after the sale of his interest in US. Since he had no interest in competing with his former associates or in going into the fast-seafood business again, Patterson did not object to executing the noncompetition covenant, as long as it would allow him to become involved in other types of restaurant enterprises, and he regarded such covenant as having no value. As stated by Patterson at trial: Well, I didn’t want to [compete] because [US] was my baby. I had conceived it, and given birth to it, and seen it rise to — to what was then the top seafood chain in the country. There was nothing I wanted to do to — harm it____ As for the purchase price, in light of Alan McDowell’s earlier estimates, Patterson believed that his stock in US was worth a fair market value at that time of 660,000 shares of Jerrico stock, or approximately $25,000,000 — $30,000,000. As the discussions continued, Jerrico offered to value the noncompetition covenant expressly in the purchase agreement, first at $3,000,000, then at $2,000,000, and finally at $1,000,000. Jerrico’s representatives were not willing to agree to allocate any specific amount less than $1,000,000 to the covenant, because they did not believe that the covenant was worth any less than that amount. Taxpayer, on the other hand, who was aware of the likely tax consequences of an agreed allocation to the covenant, and who assertedly believed that Jerrico was offering him too little for his stock, was unwilling to agree to an express allocation of any amount to the covenant. In early June, 1975, the parties reached an agreement in principle for Jerrico’s purchase of taxpayer’s stock in US and his execution of a covenant not to compete for a total consideration of $15,000,000 or, if greater, the proceeds of a public offering of 350,000 shares of Jerrico stock. During the remainder of June, 1975, Jer-rico’s attorneys prepared a series of written drafts of the sales contract and covenant, which were then reviewed by Patterson’s attorneys. Language which would have allocated a stated portion of the purchase price to the covenant, which appeared in an early draft of the covenant, was deleted by Patterson’s counsel, and never reappeared in any subsequent draft. In each draft of the contract, language was retained by both parties providing that “[a]s consideration for part of the purchase price... Patterson agrees, simultaneously with the execution of this Agreement, to enter into a Covenant Not To Compete in the form attached hereto as Exhibit F.” The noncompetition covenant is an eight-page document wherein Patterson agreed, in essence, not to engage in the seafood business or induce anyone else to engage in such business for a period of three years, and not to induce or influence any employee of US or Jerrico to terminate such employment or to work for him for a period of one year. It was recited three times in succession in the “whereas” clauses of the covenant that it was being given “as an inducement to” or “in consideration of” the acquisition of Patterson’s 40 percent interest in US. In accordance with the terms of the foregoing contract, on or about October 16, 1975, Jerrico paid Patterson the sum of $19,251,909, representing its proceeds from the sale of 350,000 shares of its common stock. On their joint federal income tax return for 1975, taxpayer and his wife treated the difference between the net amount received and his basis in his US shares as proceeds from the sale of stock, thus treating the entire amount as long-term capital gain. Jerrico, by contrast, allocated one million dollars of the total price to the covenant, and thereby sought to amortize that amount over the three-year term of the covenant. II. On audit of Patterson’s 1975 return, the Commissioner determined that one million dollars of the consideration received by him should be allocated to the covenant and, thus, claimed as ordinary income. In accordance with procedures followed in situations such as this, where the buyer and seller have sought to accord inconsistent tax treatment to a transaction, the Commissioner has also proposed to disallow Jerri-co’s treatment of one million dollars of the purchase price as allocable to the noncom-petition covenant. Patterson challenged the Commissioner’s determination in his case by filing a petition for the redetermination of the deficiency in the Tax Court. Following the 1984 trial in this case, the Tax Court filed its memorandum opinion, concluding that taxpayer had correctly allocated the entire amount of consideration received under the terms of the contract to his US stock. The court viewed the failure to include an express allocation in the contract to the covenant as an indication of an agreement between the parties that no amount be so allocated. The court concluded that Jerrico had “acceded” during the course of negotiations to Patterson’s view that no amount should be allocated to the covenant because Jerrico had attempted to include an express allocation and taxpayer had consistently refused to acquiesce. Further, the court explicitly rejected the Commissioner’s contention that the allocation should be based on a determination of the respective economic values of the covenant and the stock. In refusing to make such an independent valuation, the court noted that this “would require us to rewrite the subject agreement so as to impose upon petitioner a contractual term which was the object as respondent concedes, of intense negotiations, but which petitioner unequivocally and consistently refused to accept.” (Mem. op. at 16). While acknowledging the language in the contract to the effect that Patterson’s agreement to enter into the noncompetition covenant constituted “consideration for part of the purchase price,” the court found that, viewing the record as a whole, the quoted language was included in the belief that it would provide a valid legal consideration for the noncompetition covenant. Finally, in the most terse portion of the opinion (and that most vigorously contested by the Commissioner), the court noted that “[w]e are mindful that our foregoing holding suggests that the covenant was given for some value.” (Mem. op. at 19). The court found that that value was clearly less than one million dollars, and then quoted a portion of an earlier Tax Court opinion in the case of Major v. Commissioner, 76 T.C. 239 (1981), suggesting that the covenant at issue in that case as well as this case possessed no more than an “unascer-tainable de minimus value.” Id. at 251. III. The only issue presented for our review is whether the Tax Court erred in concluding that the taxpayer was entitled, on the basis of the contractual provisions in question, to treat the entire amount received on the sale of his US stock as consideration for the stock alone. Jurisdiction is conferred on this court pursuant to the provisions of § 7482 of the Internal Revenue Code of 1954. 26 U.S.C. § 7482. The Commissioner argues that the court misconstrued the agreement as allocating zero to the covenant. He contends that the evidence before the court established that both parties agreed that the covenant had a value, but that their disagreement was as to the specific amount. Therefore, he asserts, the Tax Court erred as a matter of law in failing to consider the covenant’s “independent economic significance” and to assign relative values to both the stock and the covenant. Patterson essentially argues that the intent of the parties should be the controlling factor and that here, the lack of a specific allocation clearly evidences an intent that no value be assigned to the covenant. The fact that the parties were sophisticated business persons engaged in an arms-length transaction with the advice of capable counsel precludes, in taxpayer’s view, subsequent “re-negotiation” of the contract by a court. Finally, he asserts that, since the evidence established that Jerrico did not actually pay anything extra for the covenant, it cannot now establish an amortizable basis for it. IY. It is well settled that any consideration genuinely paid for a covenant not to compete forms the cost basis of a fixed-life, depreciable, intangible asset which yields an amortizable deduction to the buyer for the life of the covenant. Treas.Reg. § 1.167(a)-3. However, any amount paid for goodwill, since it does not waste, becomes a nonamortizable capital asset. Goodwill is effectively acquired by a buyer in any case where the terms of the transfer allow the purchaser to “step into the shoes of the seller” with respect to continued patronage, supplier access, and business contacts. Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677, 681 (5th Cir.1971). On the other hand, amounts received by a seller for a non-competition covenant are considered to be given as compensation for lost earnings and, as such, are taxable as ordinary income. Conversely, amounts received by a seller for the goodwill or going concern value of the business are taxed at the more favorable capital gains rates. Generally, depending upon the allocation made, amounts saved by one taxpayer are made up by the other, thereby causing no appreciable loss of revenue. See, Note, Tax Treatment of Covenants Not to Compete: A Problem of Purchase Price Allocation, 67 Yale L.J. 1261, 1269-70 (1958). Therefore, the Commissioner is mainly interested in having the transaction reported consistently by both parties in order to avoid being “whipsawed” by two alternative versions which yield the least tax revenues from both taxpayers. In this case, the Commissioner requested an indefinite continuance for the purpose of joining Jerrico, with whom he is currently involved in settlement negotiations. Despite denial of this motion by the Tax Court, Jerrico was permitted to submit an amicus brief before this court and it is clear that our determination with respect to petitioner Patterson will necessarily mandate Jerrico’s tax treatment of the covenant as well. In cases involving allocations to covenants not to compete, the respective petitioners each bear the burden of proving that the Commissioner’s determination as to them is erroneous. Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212 (1933). Further, our review of the factual inferences and determinations made by the Tax Court is confined to the clearly erroneous standard of Fed.R.Civ.P. 52(a), giving due deference of the trial judge’s assessment of the credibility of the witnesses. C.I.R. v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 1199, 4 L.Ed.2d 1218 (1960). y. The Commissioner argues for an interpretation of the contract which would find that the parties mutually agreed that the covenant had some value but were simply unable to settle upon a figure. On this basis, he contends that this case must be remanded for a determination of the proper value to be assigned to the covenant. In essence, he argues for an approach to this problem which would have the court focus on the “economic reality,” or “substance over form,” test, wherein the allocation or lack thereof by the parties is irrelevant to his ability to challenge an agreement as a sham transaction. We of course acknowledge the Commissioner’s ability, and indeed his duty, to look beyond the form of a transaction to its economic substance when there is reason to suspect either collusion or overreaching between the parties in order to improperly avoid the tax consequences of their actions. Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945). However, we also observe that cases involving covenants such as the one at issue here usually involve relatively sophisticated, self-interested parties who are simply attempting to allocate the tax burdens of their business deals between them: Generally speaking the countervailing tax considerations upon each taxpayer should tend to limit schemes or forms which have no basis in economic fact. The Commissioner should be slow in going beyond the values which the taxpayers state when such countervailing factors are present. Such a result gives certainty to the reasonable expectations of the parties and relieves the Commissioner of the impossible task of assigning fair values to good will and to covenants. Schulz v. Commissioner, 294 F.2d 52, 55 (9th Cir.1961). The problem faced by the courts in covenant not to compete cases was aptly explained in Lazisky v. Commissioner, 72 T.C. 495, 500 (1979): Pulled in opposite directions by two powerful axioms of law, (1) that a person should be free to contract and that, once made, contracts should be enforced as made (absent certain enumerated exceptions), and (2) that in the tax law, substance must prevail over form, the courts have tended to base their decisions on theories incorporating elements of both these principles. In balancing these competing principles, the courts have emphasized one or the other of them according to the facts of the case. In those cases where the parties have clearly and unequivocally allocated a part of the total price to the covenant, courts, at the Commissioner’s urging, have generally refused to allow a party to subsequently challenge that allocation without a showing of either “strong proof” that the contract as written did not conform to the intent of the parties (Major v. Commissioner, 76 T.C. 239, 247 (1981)), or the presence of mistake, undue influence, fraud, or duress (Commissioner v. Danielson, 378 F.2d 771, 775 (3d Cir.), cert. denied, 389 U.S. 858, 88 S.Ct. 94, 19 L.Ed.2d 123 (1967)). This approach favors the freedom/enforceability of contract principle on the justifiable assumption that the danger of sham transactions in this setting is minimal. However, in those cases where no contractual allocation is made, but one party attempts later on to unilaterally make such allocation, the courts tend first to attempt to ascertain whether any mutual intent existed between the parties at the time of contracting as to the existence or lack of value attributable to the covenant. In making this inquiry, the courts look to the language of the contract itself as well as the negotiations leading up to its formation. See, e.g., Peterson Machine Tool, Inc. v. Commissioner, 79 T.C. 72 (1982) (language that covenant was “materially significant and essential to the closing” and that the covenants constituted a “material portion of the purchase price set forth hereinabove” clear indication that both parties intended some allocation); Major v. Commissioner, 76 T.C. 239 (1981) (language stating that “the sale price of said shares of stock is $800,000” held to support finding of mutual intent to make no allocation to the covenant); Lazisky v. Commissioner, 72 T.C. 495 (1979) (fact that parties were represented by experienced counsel, possible allocation was never discussed during negotiations, and contract language stated that purchase price was for “name, business, and goodwill,” all lead to conclusion of mutual intent to allocate nothing to covenant). Faced with cases wherein no specific allocation is made, mutual intent is often difficult to determine. Hence, the courts will often expand their inquiry by looking into the substance of the parties’ bargain. The Seventh Circuit established substance as the paramount concern in Wilson Athletic Goods Mfg. Co., Inc. v. Commissioner, 222 F.2d 355 (7th Cir.1955). Petitioner had negotiated the buy-out of a small shoe manufacturer. While specific amounts were allocated to both current assets and equipment, the remaining amount was unallocated. In upholding petitioner’s subsequent unilateral allocation to the covenant, the court relied on testimony by Wilson’s president that the covenant was essential to the deal and that the seller’s goodwill was of minimal value since its shoes would be sold under the Wilson name. The court stated that “[i]n view of the silence of the contract in this respect, it became necessary to determine then from the other evidence whether the covenant had a value, and if so the amount thereof.” Id. at 357. The Ninth Circuit has set forth the so-called “economic reality” test in Schulz v. Commissioner, 294 F.2d 52 (9th Cir. 1961). That case involved the purchase of a partner’s interest by the co-partners. While the continuing partners were aware of the favorable tax consequences of an allocation to a noncompetition covenant, the withdrawing partner was not. In mid-negotiation, the sum of $18,000, which had previously been allocated to goodwill, was reallocated to the covenant. In holding that the seller had succeeded in adducing “strong proof” of a lack of mutual intent, the court stated their view that “the covenant must have some independent basis in fact or some arguable relationship with business reality such that reasonable men, genuinely concerned with their economic future, might bargain for such an agreement.” Id. at 55. In the case at bar, both parties were sophisticated, knowledgeable business persons who were represented by competent counsel. Under these circumstances, the likelihood of a collusive or sham transaction is remote; therefore it is not inappropriate to give effect to the parties’ mutual intent with respect to valuation of the covenant, absent a clear indication that such allocation is totally contrary to economic reality. Therefore, in cases where such parties have failed to allocate a specific amount of the purchase price to a noncom-petition covenant, we find it proper to first attempt to discern evidence of mutual intent with respect to the covenant’s value. In making this inquiry, the language of the contract itself as well as the circumstances surrounding its negotiation should be canvassed. If a mutual agreement as to some value is ascertained, the court should then proceed to assess the covenant’s independent economic significance in attributing a reasonable value to the covenant. If, however, such mutual intent is not found, the taxpayer seeking the allocation must prove what amount he was actually required to pay to obtain the covenant. Bet ter Beverages, Inc. v. United States, 619 F.2d 424, 428 (5th Cir.1980). We agree with the reasoning of the Fifth Circuit in Better Beverages that the ultimate inquiry is “what, if any, portion of the lump sum price actually was exchanged for the covenant,” without regard for what the buyer would have been willing to pay for the item. Id. at 431. As this court observed in Theopkelis, “if a contract contains a covenant not to compete, but nothing has been paid for it, there is nothing to deduct.” 751 F.2d at 167. We find this test appropriate in the instant case despite the fact that the buyer, Jerrico, is not technically a party herein. As we have explained, a determination as to the proper tax treatment accorded to Patterson necessarily determines the tax consequences to Jerrico as well. Jerrico has submitted an amicus brief in support of their position, and the Commissioner, as stakeholder, has ably argued its position in agreement with the buyer. Therefore, it remains only to apply the foregoing analysis to the facts of the case at bar. VI. Initially, we reject the Commissioner’s argument that the Danielson rule, (requiring proof of fraud or undue influence to avoid a specific allocation), as adopted by this circuit in Schatten v. United States, 746 F.2d 319 (6th Cir.1984), controls the disposition of this case. The Danielson rule can only be meaningfully applied in those cases where a specific amount has been mutually allocated to the covenant as expressed in the contract. However, in this case, the parties are not seeking to vary the terms of the contract but to have the court construe terms which are obviously ambiguous. Cf. Peterson Machine Tool, Inc. v. Commissioner, 79 T.C. 72, 82 (1982). Patterson focuses on the language contained in the covenant stating “whereas the selling stockholder is desirous of having Jerrico consummate the acquisition of his forty percent stock interest in US and, in order to induce Jerrico to consummate and close such acquisition, is willing to and hereby makes the covenants set forth herein” as support for his contention that the sole consideration received for the covenant was Jerrico’s consummation of the stock purchase. Conversely, Jerrico focuses on the contract language which states that the covenant was given “[a]s consideration for part of the purchase price” in arguing for an allocation of one million dollars to the covenant. The testimony given by the parties’ attorneys who were involved in the negotiations clearly indicates an unresolved conflict regarding the covenant, based on both parties’ awareness of the resultant tax consequences. In sum, we find that this testimony, as well as the conflicting language contained in the agreement, clearly establishes that the parties agreed only to disagree. Therefore, this case is likewise not controlled by our decision in Theopkelis v. United States, 751 F.2d 165 (6th Cir.1984). In that case, we noted that the parties had never even discussed a possible allocation to the noncompetition covenant until their final meeting and that, at that time, they essentially agreed not to allocate any part of the purchase price to the covenant. We are cognizant of the fact that in most cases where the court refuses to uphold an attempted allocation, an important factor in that decision is the lack of any bargaining over such allocation during the negotiations. See, e.g., Lazisky, 72 T.C. at 503; Theophelis, 751 F.2d at 167; Schulz, 294 F.2d at 54-55. However, although it is obvious that the covenant was an essentia] part of the agreement between the parties in this case and was bargained over right from the start, we find that the contradictory language contained in the agreement as well as the circumstances surrounding the protracted negotiations are a good indication that no mutual agreement was ever reached. Therefore, the Tax Court’s finding that Jerrico “acceded” in Patterson’s position that the covenant was without value was clearly erroneous. However, we affirm the court’s judgment on the grounds that Patterson received, and, conversely, Jerrico paid, nothing for the covenant. Since the covenant therefore possessed a zero basis, Jerrico is entitled to no amortization deduction and Patterson realized no ordinary income as a result of the inclusion of the covenant in the contract of sale. In reaching this conclusion, we considered the testimony presented at trial to the effect that: (1) Jerrico’s own investment banker, Alan M. McDowell, valued Patterson’s interest in US at the equivalent of 660,000 shares of Jerrico; Patterson actually received the proceeds of only 350,000 shares. By McDowell’s evaluation, Patterson’s interest was worth in excess of $35 million. (2) Jack Harris, Patterson’s expert witness, who was intimately familiar with Jer-rico and US through his work as a research analyst specializing in the evaluation of restaurant companies and through his work on a 1972 prospectus and stock offering for Jerrico, expressed his opinion that, at the time of the sale, Patterson’s US stock was worth between $30 million and $45 million. (3) After the details of the contract were announced, Jerrico’s stock price increased substantially, indicating the stock market’s opinion that Patterson had been grossly underpaid. The market price initially rose sufficiently to indicate the stock market’s belief that Jerrico had received a benefit of $45 to $48 million for its $19 million purchase. Even at the time of Jerrico’s market offering of 550,000 new shares, with its tremendously diluting effect, the market price of Jerrico still indicated that Jerrico’s shareholders had received a benefit in excess of $30 million from its $19 million purchase. (4) The Commissioner’s own witness, Charles Haywood, a Jerrico board member, valued Patterson’s interest as at least $15 million based on its “book value” alone, even though the real value of US was in the market’s evaluation of its growth potential, not the depreciated value of its building and equipment. (5) The sale contract also required Patterson to sell his ownership interest in four US franchise stores at book value, while the other US employee/owners of those same stores (Patterson’s “partners” in those stores) were bought out according to a multiple of the stores’ earnings. Patterson received only about $25,000 for his interest in these stores; but if he had been bought out according to the same formula as were his partners, he would have received approximately $250,000. We also note that this case is unique in that it involves the buy-out of a minority interest by the single majority shareholder. Although Jerrico attempts to discount this factor in its brief, it is clear that Patterson’s only real potential buyer was Jerrico, the majority shareholder. As such, Jerrico was clearly in a superior bargaining position, as evidenced by the favorable price which it paid for Patterson’s US stock. In order to establish its entitlement to the amortization it has claimed, Jerrico must prove a basis from which this deduction is to be calculated. The “economic reality” here indicates that Jerrico, knowing it was obtaining Patterson’s minority interest at a bargain rate, did not, in fact, pay any consideration for the noncompetition covenant. As the Fifth Circuit has pointed out: A taxpayer’s failure of proof on this point may not be overcome by abstract arguments, not tethered to the fact of the transaction, as to what might have been a fair and equitable price or apportionment. It is not the task of this or any court to restructure a taxpayer’s dealings, in lieu of his facing a prescribed burden of proof, in order to justify his entitlement to some tax benefit. Better Beverages, 619 F.2d at 430. The Commissioner and Jerrico argue that, since he was only a minority shareholder, Patterson technically never “owned” US’s goodwill and therefore could not have transferred it by his sale of stock. However, realistically, Patterson’s dominant presence in the operations of US from its inception and his role in its rise to profitability are clearly aspects of the business which were transferred to Jerrico via the stock sale. As the Ninth Circuit noted in Schulz, “[i]f there is reason to believe that the business has prospered because of the character or the reputation of the proprietor or partner... this would tend to show that a genuine business reason prompted the covenant. Such reputation or character would also form part of the goodwill.” 294 F.2d at 56. Therefore, although Patterson’s covenant not to compete with Jerrico obviously was of some theoretical, potential value, Jerrico has failed to establish a cost basis in the covenant. We find the Tax Court’s decision that the entire purchase price was payment for only Patterson’s stock and accompanying goodwill was supported by the evidence, and its decision is AFFIRMED. . Burns, Pauli & Co. was in the business of giving investment advice to such clients as mutual fund managers, institutional investors, and pension fund managers. . WHEREAS the Selling Stockholder, as an inducement to cause Jerrico to execute the Agreement, promised to deliver to Jerrico and US an agreement by said Selling Stockholder not to compete with the business of US or to otherwise cause it damage or harm; WHEREAS, the Selling Stockholder is desirous of having Jerrico consummate the acquisition of his Forty Percent (40%) stock interest in US and, in order to induce Jerrico to consummate and close such acquisition, is willing to and hereby makes the covenants set forth herein. NOW, THEREFORE, in consideration of the agreements made by Jerrico in the Agreement and in consideration of the consummation of the acquisition of the Selling Stockholder’s Forty Percent (40%) stock interest as therein contemplated by Jerrico,... App. at 85. . During the course of negotiations, Jerrico indicated that it may seek to have the amount allocated to the covenant raised from one million to three million dollars. Thereafter, the Commissioner notified petitioner of his intent to increase the covenant’s allocation correspondingly. The Commissioner explained that this was necessary to protect the IRS from a "whipsaw" position whereby taxpayer would be permitted capital gain treatment of the sale proceeds while Jerrico might establish entitlement to deduct the full three million it now claims the covenant was worth. . The Tax Court listed the following factors as supporting its finding of a mutual intent to make no allocation to the covenant: First, the "whereas"

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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 v. ONE 1949 PONTIAC SEDAN et al. No. 10483. United States Court of Appeals Seventh Circuit. Feb. 21, 1952. Otto Kerner, Jr., U. S. Atty., John Peter Lulinski, Anthony Scariano, Asst. U. S. Atty., Chicago, Ill., for appellant. Alfred E. Roth, Charles D. Snewind, Chicago, Ill., for appellee. Before MAJOR, Chief Judge, andLINDLEY and SWAIM, Circuit Judges. LINDLEY, Circuit Judge. The government appeals from a judgment for claimant upon its libel seeking forfeiture of a 1949 Pontiac Sedan. The action, filed under 49 U.S.C.A. §§ 781-788, and 19 U.S.C.A. § 1615, was in two counts. The first charged that “the said Pontiac Sedan was used for the purpose of transportation, * * * of a contraband article, to wit, 40 tablets of morphine sulfate * * * not purchased in * * * or from the original stamped package as required by * * *” 26 U.S.C.A. § 2553(a). Count II, essentially the same, alleged that the morphine sulfate was contraband in that it had been “imported or brought into the United States contrary to law * ' * * ” in violation of 21 U.S.C.A. § 174. Claimant, Irene Moses, intervened as owner of the vehicle, denying the several allegations of the libel. The evidence adduced at trial consisted of certain preliminary stipulations, the testimony of Narcotic Agent Sojat and a stipulation as to Agent Pocoroba’s testimony. Certain parts of Sojat’s testimony, objected to by claimant, were not considered by the trial court, and we have not considered it here, except from the standpoint of admissibility. The evidence, thus restricted, established the following. •On May 5, 1949, Agents Sojat, Pocoroba and Gross proceeded to 6223 Champlain Avenue, 'Chicago, for the purpose of executing a search warrant. Pocoroba was familiar with the car with which we are concerned and knew that one Marvin Moses was using it. Upon arrival Sojat and Pocoroba scanned both sides of the street for the automobile for a distance of about three-quarters of a block, but it was not in sight. They then entered the premises and proceeded to search them. They found large quantities of various types of narcotics concealed in a steamer trunk. They had been on the premises for some 30 minutes and were still searching, when Marvin Moses arrived on the scene. He was asked who owned the contents of the trunk and replied that he did. He was immediately placed under arrest and his person searched. The officers found upon him the keys to the subject vehicle and a small pasteboard box containing forty tablets of morphine sulfate, bearing no internal-revenue stamps. The agents then saw, through a window, the automobile parked nearby. It was seized and these proceedings followed. Claimant offered no evidence. The District Court found: 1) there was no competent evidence that Moses ever rode in the car; 2) there was no evidence that when and if he rode in the vehicle, he carried narcotics with him; 3) there was no proof that the morphine sulfate had been purchased in or from a container other than the original stamped container, that it had been unlawfully imported, or that it had been transported in the subject vehicle. The court concluded that there was no showing of probable cause for the seizure of the automobile and entered judgment for its delivery to claimant. ■ Libellant contends that: 1) there was competent evidence that Marvin Moses rode in the automobile; 2) under 26 U.S.C.A. § 2553(a) the absence of appropriate tax-paid stamps on the morphine sulfate container rendered the contents thereof prima facie contraband; 3) probable cause was shown for institution of the libel, and, consequently, the burden of proving the innocence of the automobile was on claimant. As previously stated this action is prosecuted under Sections 781-788 of Title 49, U.S.C.A. § 784 of which provides: “All provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of vessels and vehicles for violation of the custom laws * * * shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter, * * Under Title 19 (Customs Duties) U.S.C.A. § 1615, “In all suits or actions brought for the forfeiture of any * * * vehicle * * * where the property is claimed by any person, the burden of proof shall lie upon such claimant; * * * Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court, * * Thus, it is clear from the express terms of Section 784, Title 49 that 19 U.S.C.A. § 1615 is applicable to-the instant proceeding. United States v. Andrade, 9 Cir., 181 F.2d 42; W. E. Dean & Co. v. United States, 5 Cir., 171 F.2d 468. While questions concerning the admissibility of evidence and the effect of theprima facie proof provisions of 26 U.S.C.A., § 2553(a) were raised below, and were-argued here, it is apparent, we think that, proper determination of the issues demands, that the interpretation and effect of 19 U.. S.C.A. § 1615 be first considered. This is-particularly true in the light of claimant’selection to offer no proof in the proceedings - below, despite the provisions of Section-1615, which place the burden of proof upon-her, provided" probable cause for the institution of the proceedings is first shown,by libellant. If there was probable cause ■ for the belief that 1) the narcotics in question were contraband and, 2) the contra-band was transported in this 1949 Pontiac, claimant having offered no proof, a decree of forfeiture should have entered. United States v. Davidson, 1 Cir., 50 F.2d 517; United States v. Blackwood, 1 Cir., 47 F.2d 849. Thus we are faced initially with the question : What is meant by probable cause as that term is used in Section 1615 ? The Supreme Court was confronted with an identical problem of definition as early as 1813 in the case of Locke v. United States, 7 Cranch 339, 11 U.S. 339, 3 L.Ed. 364. There an action was brought under a statute strikingly similar to the one here involved, providing that in a libel proceeding for forfeiture of goods improperly imported into the United States, “if the property be claimed by any person * * * the onus probandi shall lie upon such claimant. * * * but * * * only where probable cause is shown for such prosecution * * 1 Stat. 678. Chief Justice Marshall, writing for a unanimous court, stated: “It is contended that probable cause means prima facie evidence, or, in other words, such evidence as in the absence of exculpatory proof would justify condemnation. * * * This would render the provision totally inoperative. * * * The term * * * according to its usual acceptation, means less than evidence which would justify condemnation; * * * It imports a seizure made under circumstances which warrant suspicion.” See also Wood v. United States, 16 Pet. 342, 41 U.S. 342, 10 L.Ed. 987 (“reasonable ground of presumption that the charge is or may be, well founded”) ; Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265 (“reasonable suspicion”); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. (“reasonable ground for belief in guilt”). But recently in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879, while deciding a question of probable cause under the search and seizure provisions of the Fourth Amendment, the Court departed from the test of “suspicion.” However, it alluded to Chief Justice Marshall’s statement that the phrase “means less than evidence which would justify condemnation,” i.e., less than prima facie evidence. Thus, from these and other decisions it appears correct to conclude that probable cause, as used in this context, is less than prima facie proof, but more than mere suspicion. Lying somewhere in the hiatus between these two extremities the semanticist would find its precise meaning. However, such meticulous precision is not needed for practical application. See United States v. One Dodge Coupe, D.C.S.D. N.Y., 43 F.Supp. 60, 62. Suffice it to say that we believe that, if the facts are of such a nature as to support a reasonable belief of a violation of the statute probable cause has been shown. We turn to the application of the term to the facts at hand. For purposes of clarity it will be best to consider the two facets of the problem separately. Thus, were the facts sufficient for libellant reasonably to believe that the morphine sulfate in question was contraband within the meaning of 49 U.S.C.A. § 781(b)(1)? There is no dispute that morphine sulfate is contemplated by the phrase “any narcotic drug” as used in that section. Libellant averred an unlawful purchase, which, under 26 U.S.C.A. § 2553(a), is the consequence of an unlawful sale. Thus, there is no doubt that the allegations of the libel were within the following definition of contraband, contained in Section 781(b)(1). “Any narcotic drug * * * which is sold * * * in violation * * * ” of the “laws or regulations of the United States dealing therewith * * Furthermore there is no question but that the pasteboard box containing the morphine sulfate, found in Moses’ possession, bore no tax-paid internal-revenue stamps. Indeed the lower court so found. But it also found that there was no proof that the narcotics were not purchased in or from the original stamped package as alleged. To this libellant replies that the presumption of unlawful purchase, raised under Section 2553(a) by the absence of tax-paid stamps, is available to it. Claimant, of course, supports the position of the trial court, insisting that the presumption raised by Section 2553(a) is limited to criminal proceedings thereunder, and cannot be relied upon by libellant in a civil proceeding for forfeiture. Thus, the trial court and claimant would require libellant to introduce positive proof tending to show that the morphine was purchased illegally. Despite existing authority to the contrary, United States v. One Oldsmobile Club Coupe, etc., D.C.Conn., 33 F.Supp. 848; United States v. One Nash Coupe, D.C.N.D.Ill., 47 F.2d 249; United States v. One Studebaker Roadster, D.C.Tenn., 40 F.2d 557, we are of the opinion that libellant is free to rely on the provisions of Section 2553(a) to establish probable cause for the institution of this proceeding. It is true that the section defines a crime and the proof necessary to prove it. But implicit in the section are two phases of the prima facie concept. The first is that the absence of appropriate revenue stamps raises a presumption that the narcotics in question were unlawfully purchased. The second is that possession of such unstamped narcotics likewise raises a presumption that the possessor was the illegal purchaser. It is the first of these upon which libellant relies. Assuming, arguendo, that the prima facie weight of the absence of appropriate stamps is limited to prosecutions under Section 2553(a), we are not concerned in the instant proceeding with prima facie evidence, but rather with that of probable cause. We have no hesitancy in concluding that libellant, aware that Congress had declared such absence of tax-paid stamps to be presumptive of unlawful purchase, would have reasonable grounds for believing that the narcotics taken from Marvin Moses were the fruits of an unlawful transaction, and hence were contraband within the meaning of 49 U.S.'C.A. § 781(b)(1). In reaching this conclusion we do* not lack support from other Courts. United States v. Gramling, 5 Cir., 180 F.2d 498, 500-501; General Motors Acceptance Corp. v. United States, 6 Cir., 63 F.2d 209. See also United States v. One Gardner Roadster, D.C.W.D.Wash., 35 F.2d 777, 778. We approach then the second phase of the problem, namely, did libellant adduce sufficient evidence to support a reasonable belief that the contraband had been transported in the subject vehicle? What has been said previously in regard to quantum of proof is equally applicable here. At the outset we are faced with a question of admissibility of certain evidence. Agent Sojat was permitted to testify, subject to an objection of hearsay, that Marvin Moses, upon being asked “how he came to the building” replied, by means of the automobile in question. It appears that the trial court did not consider this testimony, for it found: “There was no competent evidence that Marvin Moses ever rode in the car in question.” (Emphasis supplied.) Libellant assigns as error this ruling, asserting that Moses’ declarations were admissible in the same manner as those of the master of a ship, or as part of the res gestae. Regarding, as we do, the res gestae doctrine as equivalent to the so-called “spontaneous utterance” exception to the hearsay rule, we doubt that these declarations were admissible. Their spontaneous character was destroyed as a result of their solicitation by Sojat. Furthermore, there was no showing of the proximity of time with the event about which they were made. It appears equally doubtful from a review of the decisions that these declarations can be viewed as the declarations of a master of a ship. Exhaustive research reveals but one case in which the fiction, of owner pro hac vice, applicable in admiralty to the master of a ship, has been extended to the bailee of a vehicle on land. See United States v. One 1941 Buick Convertible Coupe, etc., D.CW. D.Tex., 61 F.Supp. 468. The facts of that case differ materially from those in the instant proceeding, rendering it inappropriate as authority. Cf. Commercial Credit Corp. v. United States, 2 Cir., 58 F.2d 195. Nor does libellant’s argument, premised on the provisions of 28 U.S.C. (Supp. Ill) Sec. 2461(b) resolve this doubt. That section provides that forfeitures such as this “may be enforced by a proceeding by libel which shall conform as near as may be to proceedings in admiralty.” That section would seem to be intended to cover the procedure in forfeitures on land rather than questions relative to the substantive effect of the declarations of a driver-bailee, of an automobile. Therefore the trial court would seem to have properly disregarded this testimony. But see The 237-G, 1 Cir., 19 F.2d 344; United States v. One 6-54-B Oakland Touring Sedan, D.C.D.Ariz., 9 F.2d 635, 636. However in view of our further conclusions, the propriety of the exclusion of this evidence is not decisive of the issues herein. The other evidence tending to support a reasonable belief that the narcotics had been transported in the subject vehicle has been previously summarized. It is unnecessary to repeat it. It is sufficient to say that we consider it clearly adequate to support a reasonable belief that Moses had driven the car, with the narcotics on his person, just prior to his arrest. No cases have been found involving reasonably similar fact situations. However, the following are analogous in certain respects: Jackman v. United States, 1 Cir., 56 F.2d 358; The 237-G, 1 Cir., 19 F.2d 344; The Struggle, 9 Cranch 71, 13 U.S. 71, 3 L.Ed. 660. There being an adequate basis for libellant reasonably to believe that the morphine sulfate was contraband, and that Moses had transported it in the subject vehicle, probable cause was shown for institution of the proceedings. Thereupon the burden was cast upon claimant to exculpate the automobile. She chose to remain mute, offering no evidence of innocence or avoidance. See 49 U.S.C.A. § 782. In this situation it was not necessary that libellant’s proof amount to prima facie evidence “which would justify condemnation” in the face of exculpatory proof. We are well aware that the result reached places the burden of proof on claimant, who holds a position similar to a defendant, at a point in the flow of evidence considerably prior to the establishment of a prima facie case. But it is the mandate of Congress that in actions of this nature the task of coming forth with the evidence be so placed. The facts in cases such as this are often peculiarly subject to the control ■of a claimant. And, though the government is no longer allowed to act on mere suspi•cion, this court would unjustifiedly modify the. express terms of 19 U.S.C.A. § 1615 if it should hold libellant to a more stringent burden of proof ■ than is here described. To do so “would render the provision totally inoperative.” We have dealt with only Count I of the libel. Consideration of Count II is unnecessary for, if one count is sufficient in law and adequately proved, a decree of forfeiture may enter despite the shortcomings of other counts. Friedenstein v. United States, 125 U.S. 224, 8 S.Ct. 838, 31 L.Ed. 736; Coffey v. United States, 116 U. S. 427, 6 S.Ct. 432, 29 L.Ed. 681. We might add that in reaching this conclusion we are not unmindful of Federal Rule of Civil Procedure 52(a), 28 U.S.C. which provides that findings of fact “shall not be set aside unless clearly erroneous, ❖ * Rule 81(a)(2) makes that provision applicable to this proceeding. But we think it clear that the findings of the trial court were “clearly erroneous” as a matter of law. Apparently they were the consequence of the trial court’s placing too great a burden of proof on libellant. The judgment is reversed with directions to the District Court to enter a decree of forfeiture in favor of libellant.

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

John E. ADAMS, Appellant, v. UNITED STATES of America, Appellee. Ernest J. STUCKEY, Appellant, v. UNITED STATES of America, Appellee. Melvin R. ROOTS, Appellant, v. UNITED STATES of America, Appellee. Nos. 20547, 20548, 20549. United States Court of Appeals District of Columbia Circuit. Argued Nov. 7, 1967. Decided June 21, 1968. Petitions for Rehearing Denied Sept. 9, 1968. Mr. Warren C. Zwicky, (appointed by this court), Washington, D. C., for appellant in No. 20,547. Mr. George C. Dreos, (appointed by this court), Washington, D. C., for appellant in No. 20,548. Mr. David E. Varner, (appointed by this court), Washington, D. C., for appellant in No. 20,549. Mr. A. Lee Fentress, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Allan M. Palmer, Asst. U. S. Attys., were on the brief, for appellee. Mr. James A. Strazzella, Asst. U. S. Atty., also entered an appearance for ap-pellee. Mr. Scott R. Schoenfeld, Asst. U. S. Atty., also entered an appearance for ap-pellee in No. 20,549. Before Burger, Wright and McGowan, Circuit Judges. McGOWAN, Circuit Judge: These three appeals are from convictions under a joint indictment founded upon the robbery of a liquor store. Two issues are common to each appeal. They are (1) the existence of probable cause for arrest and accompanying search, and (2) the admissibility of testimony of a police station identification made during a period of illegal detention in violation of Rule 5(a), Fed.R.Crim.P. The former involves problems of intra-police department communication; and we find no error in the District Court’s ruling on this point. We cannot agree, however, with its conclusion in respect of the asserted Rule 5(a) violation, which leaves us with no alternative but to reverse the judgments of conviction and to remand for a new trial. Cf. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). I Appellants were arrested a few minutes after the police, at 1:40 P.M. on November 5, 1965, received a report of an attempted robbery of a North Carolina Avenue liquor store in the District of Columbia. They were taken from the point of arrest to the Robbery Squad offices at Police Headquarters. Arriving there at 2:00 P.M., they were put in several police line-ups during the next two hours. At 4:00 P.M. they were booked for the attempted robbery for which they were arrested, but there was no presentment to a magistrate on that charge that day. Remaining in custody, they were placed in several more police lineups between 4:00 P.M. and 8:00 or 9:00 that evening, and again the following morning between 8:30 and 10:00 A.M. It was in this latter series of exposures that they were identified by the owner of another liquor store, Whitaker’s Wines and Liquors, as the persons who had robbed his store four days earlier, that is to say, November 2, 1965. At 10:00 A.M. on November 6, 1965, they were presented to a magistrate on the charge for which they had been arrested and booked, namely, the attempted robbery of the North Carolina Avenue store. Prosecution of that charge was apparently not pressed, however, inasmuch as the convictions appealed from are based upon an indictment for the robbery of the Whitaker store. No challenge was made to the complainant’s in-court identification of appellants, but a pre-trial motion was made to suppress testimony by Whitaker that he had first made an identification at the second day’s line-ups. A hearing was held, and it was urged upon the District Court, as here that the line-up identification was the fruit of a period of \ illegal detention because of “unnecessary delay” within the meaning of Rule 5(a). At that hearing, the police testimony was that the arrest was made without warrant and only upon the probable cause supplied by the report of the attempted robbery at the North Carolina Avenue store. Upon arrival at Police Headquarters, so the police testimony goes, appellants were “advised of their rights” and then questioned for two hours about a number of unsolved, or “open,” holdups. A number of line-ups were held throughout this period and until eight or nine o’clock that evening. In the first of such line-ups, which means at some point between 2:00 and 4:00 P.M., appellants were identified by a witness from the North Carolina Avenue store as the perpetrators of the attempted robbery there. Several more line-ups followed in which appellants were viewed by a number of complaining witnesses in other robberies. After two hours of this, appellants were booked for the attempted robbery for which they were arrested. Line-ups continued until 8:00 or 9:00 that evening. Kept at Police Headquarters overnight, line-ups were resumed the next morning, and more complaining witnesses in still more open cases were brought in. One of these was Whitaker, who identified appellants as the robbers of his store on November 2. Presentment of appellants to a magistrate was then made on the attempted robbery charge for which they had been arrested and booked the day before. At the trial, Whitaker was first examined by the prosecution about the circumstances of the robbery. He was next asked to relate the fact of his identification of appellants at Police Headquarters eight months before. Only after this did he make an in-court identification. A police officer also recounted in detail Whitaker’s identification of appellants at Police Headquarters. It is the testimony as to the out-of-court identification that is at issue here. II The Government does not here contend that there was no violation of Rule 5(a). It argues, rather, that the exclusionary rule of Mallory is confined to testimonial statements, and that that rule does not encompass identifications made during a period of unnecessary delay. It relies upon earlier cases in this court assertedly to that effect. But no one of these eases involves the admissibility of testimony of an identification made at a police line-up during a period of delay in presentment prompted solely by a purpose to try to connect the defendant with crimes other than the one for which he has been arrested. These cases do variously indicate that this court does not regard a Rule 5(a) violation as automatically flowing from a police line-up or other effort to check the defendant’s relationship to the crime for which he was arrested on probable cause. Lewis, for example, involved a handwriting sample, the availability of which the court felt could not have been affected by prompt presentment. There is a dictum in Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963), to the effect that, even if the delay for this purpose is too long, testimony of the identification is admissible if it was not the fruit of a testimonial admission. But this all falls far short of holding that arrest may be made for one crime, the detention continued beyond the limits of Rule 5(a) for investigatory purposes vis-a-vis other crimes, and the evidence obtained during such secondary detention used to convict of such other crimes. Here, the lawful basis for appellants’ arrest and detention rested solely on the probable cause for the belief that they had committed an attempted robbery on November 5 at the North Carolina Avenue store. There was no probable cause to detain them under arrest for other matters. Rule 5(a) provides that presentment without unnecessary delay shall be made on the charge for which they were arrested. To continue their custody without presentment for the purpose of trying to connect them with other crimes is to hold in custody for investigation only, and that is illegal; its operative effect is essentially the same as a new arrest and, if not supported by probable cause, it is an illegal detention. It will not do to say that Rule 5(a) is not involved because appellants were not prosecuted on the charge for which they were arrested, booked, and eventually presented. The purpose of Rule 5(a) is to get persons lawfully arrested out of the police station and before a magistrate. At least in those cases where, as here, delay in presentment succeeds in turning up complicity in another and more serious crime than the one for which probable cause to arrest exists, the Rule can be made irrelevant by failing to prosecute the crime for which the arrest was made. This is not an available technique. On the precise facts shown by this record, we think the effect of Rule 5(a) is to convert, at least as of 4:00 P.M. on the afternoon of appellants’ arrest, their continued detention at the police station into an unlawful arrest without probable cause in respect of the crime for which they were convicted. It is not, thus, the precise scope of the Mallory exclusionary rule which is determinative here but, rather, the sweep of the general policy of excluding evidence gathered during a period of detention following upon an unlawful arrest. The applicable case among our precedents is Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1959), in which this court held that fingerprints taken from one illegally arrested must be excluded, and where it espoused the principle that anything of evidentiary value produced by such detention is proscribed. Speaking for the court, Judge Hastie said (at p. 467 of 262 F.2d): In these situations it is deemed a matter of overriding concern that effective sanctions be imposed against illegal arrest and detention and the risks of overreaching inherent in such action. Even though highly probative and seemingly trustworthy evidence is ex-eluded in the process, this loss is thought to be more than counterbalanced by the salutary effect of a forthright and comprehensive rule that illegal detention shall yield the prosecution no evidentiary advantage in building a case against the accused. All of this is bottomed on the Constitution itself. The Fourth Amendment makes protection of the individual against illegal seizure or arrest a constitutional imperative. The concept of what is, in legal contemplation, a “divisible detention” is not, in our view, extraordinary. Indeed, it seems to be a necessary one if the subversion of the purposes of Rule 5(a) is not to be made the handmaiden of the constitutionally defective arrest for investigation. An arrest made on probable cause can bring a man lawfully into the hands of the' police, but that detention does not, absent compliance with Rule 5(a), continue to be lawful for all purposes, including the investigation of his possible connection with other crimes. Armed robberies of the kind here involved are rightly regarded as a grave threat to the peace and safety of the community, and the police are properly sensible of their responsibility to try to solve them. The police work here in respect of the robbery attempt was alert and effective, and we have given it scope by our ruling on probable cause. What we lack power to do is to give absolution in respect of what became, by reason of the Rule 5(a) violation, a purely investigatory detention and hence, as we have noted, one tantamount to an illegal arrest the fruits of which may not be used under Bynum. The police have, of course, a legitimate interest in seeking to explore the possible relationships between persons apprehended under such circumstances as were appellants, and other open crimes of a similar nature. The facts of life with respect to liquor store robberies in this community today suggest that there may be a not improbable connection between some of those robberies and persons caught in the act of fleeing from an abortive attempt to rob a liquor store. But, had the police heeded Rule 5(a) and taken appellants after booking before a magistrate, it is by no means certain that the police could not legally have arranged for other victims to view appellants in line-ups. Such line-ups would have to meet due process standards, and to include the opportunity to have counsel present. Once brought under judicial authority by virtue of the presentment to a magistrate commanded by Rule 5(a), the police could invoke the aid of that authority to make the prisoner reasonably available for line-up identification in respect of other crimes for which there is less than probable cause to arrest. That effort not having been made here, we cannot adjudicate in this instance the propriety of such procedure;' nor pronounce upon it in the abstract. It appears to be one of those areas where the police require skillful and imaginative legal planning, bottomed upon cooperative utilization, rather than utter disregard, of judicial power, and designed to achieve legitimate ends by means which have some appeal in terms of their concern for statutory and constitutional protections. What we do say is that, until that kind of effort has been made and established to be unavailing, we do not find an adequate substitute for it in barren reiteration of the proposition that the only way the police can function under Rule 5(a) is to ignore it. We emphasize that there is no question before us on this appeal as to the fact of a Rule 5(a) violation, nor that the line-up identification was made in the course of it. The division between the parties is solely as to the admissibility, absent the presentment required by Rule 5(a), of that line-up identification in the trial of a charge for which it is not claimed that a lawful arrest had been made. In deciding against admissibility, we emphasize that what the defendant acquires by that presentment is, first, judicial advice of his rights, including the provision of counsel; and, second, the opportunity to regain his freedom forthwith by persuading the magistrate that there is no probable cause to hold him for the crime for which he was arrested. These are important legal rights which Rule 5(a) was designed to secure — so important, indeed, that the Supreme Court has ruled that the exclusion of otherwise admissible evidence is not too high a price to pay to assure their availability to all persons. Reversed and remanded for a new trial. . Two of the appellants advance a due process objection to an in-court identification because of the conditions under which a police line-up was held. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). But this issue was not raised in the District Court, where the relevant facts could have been explored out of the presence of the jury, and the court could have made findings and conclusions as to whether there was a duo process violation, or an independent basis for the identification making any such violation harmless beyond a reasonable doubt. See Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The same appellants complain of the denial of motions for acquittal but we find no error in the trial judge’s conclusion that the evidence was such as to warrant submission to the jury. Appellant Stuckey alone presses certain other alleged errors in the course of the trial which we do not find persuasive. . Although the police dispatch sent from the scene of the alleged attempted robbery was somewhat confusing, we think that the arresting officers, upon hearing it, had sufficient reason to believe that appellants had been involved in an attempted armed robbery. The validity of the arrest involved in this case is also sustained in the cases of Stuckey and Boots v. United States, Nos. 20648 and 20649, decided this day. . We say there was an in-court identification, although it requires considerable effort to derive it from the record. This was apparently the consequence of the prosecutor’s preoccupation with proving the line-up identification, the importance of which he stressed in this response to the trial judge’s query as to how necessary it was to go into the matter of the line-up: Usually in these cases, since the case now is in July, an identification made some three days after the robbery at headquarters I think is very important in so far as the jury is concerned. In other words, an identification in the courtroom I believe is not as important as one made three days after the event by the complainant. . Lewis v. United States, 127 U.S.App.D.C. 269, 382 F.2d 817 (1967); Kennedy v. United States, 122 U.S.App.D.C. 291, 353 F.2d 462 (1965); Williams v. United States, 120 U.S.App.D.C. 244, 345 F.2d 733 (1965); Copeland v. United States, 120 U.S.App.D.C. 5, 343 F.2d 287 (1964) ; Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959). . In Mallory only the admissibility of a confession was in issue, and what the Supreme Court said about exclusion can be - read solely with reference to that fact. But the policy of using an exclusionary rule as a deterrent to improper police conduct goes back to McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1942). Between McNabb and Mallory, but after the advent of Rule 5(a), the Second Circuit held that the Supreme Court’s exclusionary rule applied not alone to confessions but to “all evidence obtained by federal agents through access to persons while detained in violation of Rule 5(a).” United States v. Klapholz, 230 F.2d 494, 498, cert. denied, 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454 (1956). Although, as indicated in the text, we do not find it necessary to address ourselves here to the relationship of the Mallory exclusionary rule to non-testimonial evidence, we note that a like question, in a case involving unnecessary delay in presentment in violation of a state statute, appears to be involved in a recent grant of certiorari by the Supreme Court. Palmieri v. Florida, cert, granted, 392 U.S. 920, 88 S.Ct. 2287, 20 L.Ed.2d 1382 (U.S. May 28, 1968). . Judge Youngdahl recognized this as long ago as 1961. In United States v. Meachum, D.C., 197 F.Supp. 803, the defendant was arrested for robbing one Turner. Prior to presentment a line-up was held for Turner’s benefit. When Turner proved unable to identify the defendant, the latter was not released but was kept in custody for more line-ups involving other robberies. At such a showing, another robbery victim identified him. Although this was followed by a confession which was the subject of a motion to suppress, Judge Youngdahl, assuming arguendo that there was probable cause for taking the defendant initially into custody, said: Without deciding whether it was proper, under the rule, for a lineup to be held on the Turner charge, it was decidedly improper for preliminary proceedings on that charge to be delayed for a lineup and questioning about another charge for which no probable cause was or is now manifested and for which an arrest without a warrant has been made * * ^ Two of our cases resemble this one in that an initial custody for one crime was the avenue to indictment and conviction of another. In Payne v. United States, 111 U.S.App.D.C. 94, 294 F.2d 723, cert. denied, 368 U.S. 883, 82 S.Ct. 131, 7 L.Ed.2d 83 (1961), where the trial court itself refused to admit testimony of the kind at issue here, namely, the fact of the out-of-court identification, we expressed the gravest reservations about the practice of “lengthy detention for the purpose of rounding up complaining witnesses so that they may view a suspect” who is himself lawfully in custody by reason of an arrest on probable cause for one crime. These reservations were vigorously and expressly reaffirmed in Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1963), although there even the initial arrest was found to be one for investigation. . The trial in this case occurred after Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), thereby assuring appellants of the provision of the right to counsel at an early stage of their detention and certainly no later than presentment. That right now comprehends the opportunity to have counsel present at police line-ups to assure that they are held under conditions calculated to give a firm basis to any identifications made. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

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

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

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

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

BILL’S COAL COMPANY, INC., Petitioner-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Appellee. No. 73-1528. United States Court of Appeals, Tenth Circuit. Argued and Submitted Jan. 8, 1974. Decided March 14, 1974. Jeff Nix, Tulsa, Okl. (Ungerman, Gra-bel & Ungerman, Tulsa, Okl., on the brief), for petitioner-appellant. Vivian A. Miller, Washington, D. C. (Michael S. Winer, Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, on the brief), for respondent-appellee. Before LEWIS, Chief Judge, and SETH and MeWILLIAMS, Circuit Judges. MeWILLIAMS, Circuit Judge. Bill’s Coal Company, Inc., an Oklahoma corporation engaged in the mining of coal near Welch, Oklahoma, filed a petition in this court seeking to set aside and vacate a decision and order of the National Labor Relations Board. In its decision, the Board found that Bill’s Coal had violated the provisions of 29 U.S.C. § 158(a)(1) and (3) and by way of remedy issued a cease and desist order as well as ordering certain affirmative relief. By cross-petition, the Board seeks enforcement of its order. This controversy arises out of the efforts of the International Union, United Mine Workers of America, to unionize Bill’s Coal. The facts will have to be developed in some detail in order to demonstrate why the order of the N.L.R.B. should be enforced in part, but not in its entirety. Bill’s Coal operates several strip mines near Welch, Oklahoma, from which it mines, sells, and distributes coal. The mine was nonunion and the efforts to unionize it began in the early fall of 1971. Sometime in September 1971, three employees, namely, Tom Rogers, Orville Langley and Clifford Collins, travelled to Vinita, Oklahoma, and met there with a union organizer. As a result of. this initial contact these three employees began to circulate union cards among the employees of Bill’s Coal by contacting them at their homes after hours. As will be developed later on, this attempt to persuade employees of Bill’s Coal to sign union cards was a covert operation. However, Bill Patch, owner of a 50% interest in Bill’s Coal and the individual owner in active charge of the mining operation, learned from sources outside his Welch mining operation of the efforts to unionize his company. In an attempt to head off unionization Patch called three meetings of his employees, which meetings were held on October 28, 30 and December 1, 1971. All of these meetings were held at the mine site and all were quite similar in character. At each meeting, Patch inquired of his employees as to just who had signed union cards, and no one admitted signing. We need not here go into any lengthy recital of Patch’s various statements made to his employees at these several meetings in his continuing effort to thwart unionization of his company. It is sufficient to note that, inter alia, Patch generally berated the United Mine Workers, declaring that he would never negotiate with it and that he “would go out the back door” if the “union should get in the front door.” On one occasion he stated that if “I find that any of you old men signed a card, I’ll whip your ■-- not once, but every time I see you on Main Street.” Without going into a further summary of the evidence before the Board on this phase of the controversy, the Administrative Law Judge, and the Board, found, not surprisingly, that Bill’s Coal had violated the provisions of 29 U.S.C. § 158(a) (1), which make it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under 29 U.S.C. § 157. The record amply supports the finding of the Board that there was a violation of 29 U.S.C. § 158(a)(1), and the Board’s order that Bill’s Coal cease and desist such unfair labor practices and post certain notices in connection therewith should be enforced. Indeed, this aspect of the employer’s conduct is no longer seriously disputed. The real controversy in this court concerns the layoff of nine employees on December 9, 1971. The Board found that this was a discriminatory layoff designed to discourage membership in the United Mine Workers in violation of 29 U.S.C. § 158(a)(3). As a remedy for this particular violation, the Board ordered that all nine employees be reinstated and made whole. In our view, the record, considered in its entirety, does not support the finding of discriminatory layoff, and accordingly the Board’s order on this phase of the case should not be enforced. The facts relative to the layoffs will be developed as a part of our general discussion of the layoff issue. So that the respective positions of the parties may be understood at the outset, it was the position of Bill’s Coal that the layoff of nine of its employees was an economic necessity and that in determining which nine employees would be laid off, Bill’s Coal was guided by seniority within job classification. As indicated, the Board, with one member dissenting, found that the layoffs were discriminatory and motivated, at least in part, by a desire on the part of Bill’s Coal to discourage membership in the United Mine Workers in violation of 29 U.S.C. § 158(a)(3). Let us proceed then to a consideration of the layoff issue. As a starting point in our discussion of the layoff issue, the Administrative Law Judge found that during the latter part of 1971, the business of Bill’s Coal was in such an “economic slump” as would justify a layoff and the Board generally approved this finding. Certainly the record offers abundant proof of the declining economic condition of Bill’s Coal at the time of the December 9 layoffs. It had then recently lost all its contracts with customers but one and, although it still retained its one prime customer, that customer was only ordering the minimum amount called for by his contract and was at the time some $200,000 in arrears in payments. So, in this court, at least, there is no serious dispute but that a layoff on December 9 was economically justified. However, it is the Board’s position that Bill’s Coal discriminated in its selection of the nine to be laid off in an effort to discourage membership in the union in violation of 29 U.S.C. § 158(a)(3). In support of its finding of discriminatory layoff, the Board points first to the fact that all nine employees who were laid off on December 9, 1971, had signed union cards. We have held that discrimination may not be inferred from the mere fact that a discharged employee was a union member. N. L. R. B. v. Western Bank & Office Supply, 283 F.2d 603 (10th Cir. 1960). In that case, however, only one employee was involved, whereas in the instant case we are concerned with nine employees. So, does the fact that all nine employees who were laid off had signed union cards permit, in and of itself, the inference of discrimination and does such fact, in itself, constitute substantial evidence of discriminatory layoff? Under the circumstances of this case as disclosed by the record before us, we conclude that it does not. The record before us is silent as to just how many of the employees of Bill’s Coal had signed union cards. There were apparently some forty-odd employees of Bill’s Coal, some employed at the mine proper and others employed to haul the coal to the customer. If the nine employees who were laid off were the only employees who had signed union cards, such fact in and of itself might well be sufficient to support an inference of discrimination. However, if, for example, all, or virtually all, of the employees had previously signed union cards, then the fact that the nine employees who were laid off had all signed union cards would be of little significance. Rocky Mountain Natural Gas, Inc. v. N. L. R. B., 326 F.2d 949 (10th Cir. 1964). As above indicated, in the instant case we do not know how many of Bill’s Coal employees signed union cards, so the fact that the nine laid off were signees of union cards would not in itself support a finding of discrimination, though such may, of course, be considered by the Board, along with all the other evidence, in making its finding as to whether Bill’s Coal in its selection of the employees to be laid off acted diseriminatorily. N. L. R. B. v. Sequoyah Mills, Inc., 409 F.2d 606 (10th Cir. 1969). Let us consider some of the other evidence. Bill Patch testified that when he laid off the nine employees on December 9, 1971, he did not know whether any of them had signed union cards, though he conceded that shortly after the layoffs he had made the remark that he had probably “thinned out” their ranks. This latter remark is of course subject to varying interpretation. The nine employees laid off all testified before the Board, and they all agreed that they had attempted to keep secret the fact that they had signed union cards, and that such secrecy was a matter of union policy at the moment. Patch testified that on or about October 1, 1971, three employees had stated that they had just signed union cards, and that he had argued with them about their signing. These three, however, were not among the nine laid off on December 9. Additionally, at the December 1 meeting, two employees refused to sign a petition disavowing the union, which petition Patch sought, unsuccessfully, to have circulated among his employees. In a moment of anger, Patch fired these two on the spot. However, each was rehired moments later after tempers had subsided, and neither of these two was among the nine laid off on December 9. This was about the extent of Patch’s knowledge as to which of his employees might have signed union cards. Additionally, Patch testified as to the economic slump his company was experiencing during the second half of 1971. He said that the reason for the layoff was economic necessity, and that in determining which employees should be kept, and which nine should be laid off, he applied the rule of seniority within job classification, and that the nine laid off had the least seniority. He denied that in selecting the nine he was attempting to punish those who had signed union cards and thereby chill the efforts of all to unionize his company. The crux of this layoff issue is whether the finding of the Board that Bill’s Coal acted discriminatorily in its determination, of which nine employees would be laid off finds substantial support in the record. Our study of the record convinces us that there is not such support. In the first place,, proof of an employer’s knowledge of his employee’s union activity is a prerequisite to the establishment of a discriminatory-layoff or discharge. Dubin-Haskell Lining Corp. v. N. L. R. B., 375 F.2d 568 (4th Cir. 1967), reheard en banc, 386 F.2d 306 (4th Cir. 1967), cert. denied, 393 U.S. 824, 89 S.Ct. 83, 21 L.Ed.2d 95 (1968). Such proof is singularly lacking in the instant case. In this connection we recognize that proof of such knowledge of an employee’s union activity, as well as proof of a discriminatory layoff, is seldom established by direct evidence, and may be, and generally is, shown by circumstantial evidence. See Betts Baking Co. v. N. L. R. B., 380 F. 2d 199 (10th Cir. 1967), and N. L. R. B. v. Tepper, 297 F.2d 280 (10th Cir. 1961). However, the circumstances of a given case must do more than create just a suspicion or surmise, and must amount to substantial evidence from which a reasonable inference of discriminatory discharge may be drawn. N. L. R. B. v. Western Bank & Office Supply, supra. In this general regard, we echo our then Chief Judge Murrah’s observation that no good purpose is served by attempting to reconcile the numerous decisions dealing with employer motivation in the discharge or layoff of an employee, since each necessarily requires analysis in the light of its own particular facts. Betts Baking Co. v. N. L. R. B., supra. Applying these principles to the instant case, we conclude that the record, considered in its entirety, simply does not support a finding of a discriminatory layoff. One other matter merits comment. The Administrative Law Judge and, to a lesser extent, the majority of the Board, indicated that in finding a discriminatory layoff reliance was placed on the so-called “small plant” doctrine. The small plant doctrine as first announced was that in a small plant it is a reasonable inference that evidence of union activity brought to the attention of a subordinate management official will in turn be brought to the attention of higher management officials. Such inference bears on the question as to whether, in a given case, the employer knows of an employee’s union activities and then proceeds to discharge the employee because of such activity. This doctrine was reputedly fathered by the First Circuit in National Labor Relations Board v. Abbott Worsted Mills, 127 F.2d 438 (1st Cir. 1942). The doctrine has been later redefined by the First Circuit in N. L. R. B. v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir. 1966). In Antell, the court stated that the smallness of a plant, or a staff, may be material as bearing on the knowledge on the part of the employer of an employee’s union activities, but only to the extent that it may be shown to have made it likely that the employer observed, or otherwise learned about the activity in question. The court went on to state that the doctrine had no application to an off-hour, off-the-premises, meeting. See also Amyx Industries, Inc. v. N. L. R. B., 457 F.2d 904 (8th Cir. 1972), and Board decisions cited therein. Apparently the small plant doctrine has not heretofore been considered in any great detail by this court, at least not to the extent that it has been presented in the instant case. We did make passing reference to the small plant doctrine in American Sanitary Products v. N. L. R. B., 382 F.2d 53 (10th Cir. 1967), where the small plant of the employer was but one of the many facts and circumstances which in that case supported a finding of discriminatory layoff. See also N. L. R. B. v. Meinholdt Manufacturing, Inc., 451 F.2d 737 (10th Cir. 1971). In our view, the small plant doctrine plays, at most, a very minor role in the instant case. Evidence of union activity at the mine site was minimal, if not virtually nonexistent. As indicated, about the only union activity involved was the signing of union cards and such occurred clandestinely and off the mine site. Most certainly, then, the small plant doctrine would not in itself permit the inference in the instant case that Patch knew that the nine employees who were laid off had all signed union cards and that these nine were laid off because they had signed union cards. See in this regard N. L. R. B. v. Meinholdt Manufacturing, Inc., supra, and the decisions cited therein, and Phillips Industrial Components, Inc., 190 N.L.R.B. 184 (1971). In sum, then, though there admittedly is some evidence looking towards discriminatory layoff, certainly, for example, Patch had antiunion animus, nevertheless, in our best judgment, the finding of discriminatory layoff does not find substantial support in the record. N. L. R. B. v. Beech Aircraft Corp., 483 F.2d 51 (10th Cir. 1973). Accordingly, the Board’s request that Bill’s Coal be directed to reinstate the nine employees laid off on December 9, 1971, is denied and the Board’s order in this regard is vacated. However, the Board’s request that its order directing Bill’s Coal to cease and desist interfering with, restraining and coercing its employees in violation of 29 U.S.C. § 158(a)(1) is granted and that portion of the Board’s order shall be enforced. . Reported at 203 N.L.R.B. (No. 35) (1973), 1973 CCH N.L.R.B. ¶ 25,308.

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

What is the specific issue in the case within the general category of "labor relations"?

UNITED STATES of America, Appellant, v. Robert J. McINTYRE and Clare McIntyre, Appellees. No. 7535. United States Court of Appeals Fourth Circuit. Argued Jan. 7, 1958. Decided March 27, 1958. David O. Walter, Attorney, Dept, of •Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and A. F. Prescott, Attys., Dept, of Justice, Washington, D. C., Leon H. A. Pierson, U. S. Atty., and John R. Har-grove, Asst. U. S. Atty., Baltimore, Md., on brief) for appellant. Ralph R. Sachs, Washington, D. C., for appellees. Before SOBELOFF and HAYNS-WORTH, Circuit Judges, and STANLEY, District Judge. HAYNSWORTH, Circuit Judge. This is an appeal from a judgment ordering the refund of excise taxes paid with respect to a “life membership” fee collected by the Twinbrook Swimming Pool Corporation. The District Court held that, while the “life membership” fee was an “initiation fee” within the meaning of § 4241 (26 U.S.C.A. § 4241), the Twinbrook Swimming Pool Corporation was not a “social, athletic, or •sporting club or organization,” and, hence that no excise tax was due or collectible. McIntyre v. United States, D.C. Md., 151 F.Supp. 388. Residents of Twinbrook, a residential section in Rockville, Maryland, near the District of Columbia, had become concerned over the lack of adequate recreational facilities for their children. They decided to construct and operate a swimming pool. With a commendable sense of community responsibility, it was planned from the outset that the pool, upon occasion, would be made available for use by certain municipal agencies and charitable organizations working with handicapped and underprivileged children in the Rockville area. A nonstock corporation, Twinbrook Swimming Pool Corporation, was organized under the laws of Maryland for the purpose of providing “a swimming pool or pools and other facilities to its members.” The charter leaves to the By-Laws the qualification of members and restrictions upon the transfer of memberships, but limits memberships to one class, known as “life membership.” The By-Laws limit the membership to 600 members, each of whom must be a bona fide resident of defined residential sections of Rockville or the owner of a house or proprietor of a business within the defined areas. Transfer of memberships, subject to certain restrictions and procedures, is authorized by the ByLaws, and expulsion of members and the refund of the membership fee to an expelled member is contemplated. Except as noted below, use of the facilities of the corporation is limited to such of the “life members” as shall have currently paid annual dues of $10., members of their households and their guests. Employees of the household, except a governess, tutor or companion, are excluded from use of the facilities of the corporation. No one, who lives within those sections of Rockville whose residents are eligible for membership, may come as a guest, and the Board of Directors is authorized to further restrict, regulate and limit guest privileges. In exercising its power over use of the guest privilege, the Board is instructed to “consider the paramount interest of the members and their immediate families in their enjoyment of the Corporation’s facilities and shall also consider the importance of reasonable guest privileges for members and occupants of their households * The 600 members were soon obtained, and the corporation proceeded to construct a large pool and dressing rooms, with parking facilities, upon a tract of land, containing 5.641 acres, which it had acquired for the purpose. The Board of Directors was also authorized by the By-Laws to permit others to use the pool. Pursuant to this authority, the Board, in the first full year of operation, made the pool available on certain days and at specified times to children receiving treatment at the Crippled Children’s Rehabilitation Center, to children sponsored by the City Recreation Center and, during a two-week period, to boys attending a camp under the sponsorship of the American Legion. These special admissions accounted for an aggregate of 2,000 admissions out of an aggregate total of 54,000 admissions during the season. The excise tax is laid upon dues, membership and initiation fees and assessments paid to “any social, athletic, or sporting club or organization.” 26 U.S. C.A. § 4241. The taxpayers, characterizing this pool as a “recreational facility,” seek to draw a distinction between things recreational and things social or athletic. Because the pool is enjoyed by adults and their children in a friendly and informal atmosphere, the corporation is said to be unlike those social clubs which sponsor or encourage more formal social events and social intercourse among adults. Because there had been no organized contests in diving or swimming, the corporation is said to be unlike those athletic clubs which provide facilities for competitive sports. Doubtless, many individuals find recreation in things done alone, things which are neither social nor athletic, but most social events and occasions and most athletics are recreation for those who enjoy them. A social club does not fall without the statutory definition because it is enjoyed by children as well as by adults, nor because it affords facilities for events which are happy, friendly, informal and comparatively inexpensive. In short, our inquiry is not answered by a finding that this is a “recreational facility”; conceding that it is, we must determine whether it is a social or athletic organization within the meaning of the statute. The documents and testimony offered by the taxpayers contain the following language as descriptive of the organization and the use of its facilities: « * * * the total picture at the pool is that of a great big family gathering as may be distinguished by (sic) the atmosphere found in most country clubs, with their air of exclusion and removal.” “ * * * ‘recreation’ means healthful activity that contributes to health and well being; and, in my mind, at least, it is just as much social, emotional, and mental, as it is physical; and I think that what we would try to establish, here, was a recreational facility, in that sense.” ****** “There is no question that there is a great deal of social activity, communication between people. I think it is generally conceded that one place to meet your friends and get information, and so on, is the community pool; and I dare say that there have been informal committee meetings on other subjects held on the banks of the pool, so to speak.” “ * * * It looks to me just like plain social splashing in the water.” “ * * * In this case, you are meeting with friends, much conversation and visiting goes on in the general area, and it is altogether different from a public pool, where I had to stand on the bank and kept my eye on my youngster and bring him out at the proper time, and so forth, where it is all strangers. * * *» We have, then, an organization which is exclusive in the sense that it is quite unlike a public pool; its membership is limited in number and restricted as to «ligibility to persons having a presence in carefully defined sections of a larger ■community, and, while guest privileges are conditionally allowed, a person residing in the geographic area of eligibility, if not privileged to come as a member, may not be invited as a guest. It is social in its use during the season as a social center of a suburban community where, by prearrangement and happenstance, members, their families and guests, meet their friends and neighbors, where conversation flows and “informal committee meetings” are held, until the whole takes on the appearance “of a great big family gathering.” Formal society is hardly more social than the friendly companionship and mutuality of enjoyment that are shown to be characteristic of the use of this pool. We have been referred to no case in which the court was called upon to decide whether an organization comparable to this was “social” within the meaning of the statute. In Town Club of St. Louis v. United States, 8 Cir., 68 F.2d 620, 623, reference was made to a swimming pool as an “attractive social feature,” and in United States v. Anderson, 7 Cir., 108 F.2d 475, use by the members and their guests of the club’s pool on Sundays was described as a “social event.” It is the use, not the existence of the facility, however, which determines the result. There are many pools, the use of which, while perhaps athletic, is not social; there are others which, because of the character of the use and the relations between the people who enjoy it, are social facilities. We are •constrained to hold, on the undisputed facts in this case, that the organization which operated and maintained this pool was a social one within the meaning of the statute. Indeed, the record shows its social aspect to be its outstanding feature. The absence of other facilities for social use does not affect the conclusion. An organization serving the social purposes of its members need not possess every facility of every other social organization to come within the reach of the statute. Turks Head Club v. Broderick, 1 Cir., 166 F.2d 877; Duquesne Club v. Bell, 3 Cir., 127 F.2d 363, 143 A.L.R. 1377; Downtown Club of Dallas v. United States, 5 Cir., 240 F.2d 159. It is apparent that what seems to be the basic misconception of the taxpayer is the product of an elevation of the worthy motives of the promoters of the pool to an assumed status independent of the social purposes of the organization. The taxpayers point to the fact that the matter of juvenile delinquency was discussed at the early meetings, and they stress the fact that the children of members, rather than the adult members in their separate persons, were intended to be the primary beneficiaries of the operation of the pool. It is quite true that an organization having a predominant purpose which is neither social, athletic nor sporting is not within the statutory definition even though it has some social features or, incidentally, provides the occasion for social contacts. The members of a professional society need not be unfriendly, nor the supporters of an eleemosynary institution unacquainted, in order to insulate their dues from the tax. Squantum Association v. Page, D. C.R.I., 7 F.Supp. 815, affirmed 1 Cir., 77 F.2d 918; Engineers’ Club of Dayton v. United States, D.C.S.D.Ohio, 133 F.Supp. 72; Rockefeller Center Luncheon Club, Inc., v. Johnson, D.C.S.D.N.Y., 131 F.Supp. 703; Washington Club v. United States, 49 F.2d 656, 69 Ct.Cl. 621; Builders’ Club of Chicago v. United States, 58 F.2d 503, 74 Ct.Cl. 595; Block Hall, Inc., v. United States, 57 F.2d 918, 74 Ct.Cl. 600. Parental care of the child is a natural obligation, however; its discharge, in no sense a charity. The members here, in the formative period and in the operation of the pool, were principally concerned with their own children, not with the children of less fortunate families. If the members of the organization were insensitive to the needs of their children and neglectful of them, it can be imagined that some, or many, of the children would become delinquent, but one who recognizes and performs his parental obligations only indirectly and incidentally assists in the fight against juvenile delinquency. The discharge of a natural and legal obligation, though it contributes to the stability and welfare of society, is not an act of charity. A parent who provides well for the child and bountifully serves the child’s need for wholesome recreation, for social adjustment and the development of his character and capabilities may earn the plaudits of his fellows, but he serves himself. At least for tax purposes, such activities are indistinguishable from like activities in aid of the similar needs of the parents. Expenditures for food, clothing and shelter for one’s child are not deductible for income tax purposes, but donations to an orphans’ home are. Dues paid to a social club of which the child is a member, whether paid by the child or the parent, are taxable under the statute. No logical distinction is achieved if the parents, too, are members of the club or if the child is privileged to enjoy its facilities only by virtue of the membership of the parent. In the application of this taxing statute, the interest of the members in their children, however praiseworthy, is not a separable purpose which may be said to so subordinate the social features of the organization as to make them merely incidental. On the contrary, the primary purpose was the provision of facilities to serve the social and athletic needs of the member families. That the facility serves the needs of their children to a larger extent than it directly serves the same needs of the parents is a circumstance, but not a distinction affecting taxability of initiation fees and dues. The taxpayers contend that the payments for “life memberships” should be taxable only as such, but the District Court very properly concluded that, if taxable at all, they should be taxed as initiation fees. The “life memberships” were in no sense a commutation of future dues, for every “life member” was permitted the use of the facilities of the organization only if he was current in the payment of the same annual dues payable by every other member in good standing. There is, in fact, no other class of membership. With certain restrictions, the memberships are transferable, and no new member may be elected except upon acquisition of a certificate of “life membership.” Except in name, the certificates have all of the attributes of a share of stock, or other security, the purchase and ownership of which is required as a condition of membership. It is the substance of the requirement, not the name the taxpayers, chose to give such a security, which determines the method of computing this, excise tax and the time of its accrual. See 26 U.S.C.A. § 4242(b). Concluding, as we do, that the tax on. the cost of these “life memberships”' was properly collected as a tax upon, initiation fees paid to a social organization, the case will be reversed and remanded with direction to enter judgment for the United States. Reversed. . Swimming and diving are said to be excellent forms of exercise. Supposedly, tbe members, using the pool, were interested in the conditioning of their own bodies and the development of those of their children as well as in the extension and enjoyment of their relations, and those of their children, with friends. The fact that formal competitions were not promoted does not suggest that informal contests of skill and speed were infrequent or that use of the pool, for other reason, was not athletic. This phase of the case was not fully developed in the testimony, however, and, in view of our conclusion that it is a social organization, we need not consider whether it is also an athletic organization within the meaning of the statute.

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 of America, Appellee, v. Lawrence P. SMITH et al., Appellants. No. 72-1657. United States Court of Appeals, Eighth Circuit. Submitted April 11, 1973. Decided Aug. 3, 1973. Edward L. Simmons, Kansas City, Mo., for appellants. Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for appellee. Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge. Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation. TALBOT SMITH, Senior District Judge. The matter before us involves Social Security payments. Specifically it is a suit by the government for the return of an alleged overpayment of disability insurance benefits paid pursuant to the provisions of Title II of the Social Security Act, as amended, 42 U.S.C. § 423 et seq. It is a case of first impression. Neither the diligence of counsel nor our own independent research has disclosed precise prior precedent. We will note at the outset that the recovery of overpayments to indigent, or semi-indigent, beneficiaries poses unique problems, particularly to the chancellor, arising out of the fact, among others, that such recipients are rarely in a position to make restitution of substantial funds, mistakenly or erroneously paid them, without suffering severe hardship. Thus it is that we find in the Social Security Act, in 42 U.S.C. § 404, a section relating to “Overpayments and underpayments” providing, in part, that there shall not be recovery back by the United States from “any person who is without fault if such adjustment or recovery would defeat the purpose of this sub-chapter or would be against equity and good conscience.” In May of 1962 defendant Lawrence P. Smith filed an application for Disability Insurance Benefits based on an alleged physical impairment. He asserted blindness in one eye and multiple sclerosis. Upon the showings made and under the applicable statutes, disability payments were awarded, effective February, 1962. These benefits, however, were stopped on March 25, 1968 upon the ground that Mr. Smith had returned to work. Thereafter he was informed that he had been overpaid for the period May 1, 1964 through March, 1968. Mr. Smith requested reconsideration, as a result of which the original determination was affirmed and repayment requested. A hearing before a Hearing Examiner was thereafter requested, and held in St. Joseph, Missouri, at which hearing defendant Lawrence Smith appeared in person, with counsel. The issues before the Hearing Examiner were whether the claimant's disability continued, and, if not, whether overpay-ments had been made and in what, if any, amounts, and whether recovery of the overpayments would defeat the purpose of 42 U.S.C. § 404(b), or be against equity and good conscience. The Hearing Examiner’s decision was adverse to the defendants and formed the basis for the government’s motion in the District Court for summary judgment. Further administrative appeals were sought by the defendants, but were without rulings favorable to them, and the judicial review available to claimants was not sought. There the matter rested until the filing of this action by the United States in August, 1971. In the suit filed, and before us, the government, as plaintiff, brings action against defendant Lawrence Smith, his wife Virginia, individually and as fiduciary for the minor children, alleging an indebtedness to the government arising out of the aforedescribed overpayments in the sum of $13,673. Defendants’ answers denied the debt, and set up waiver and estoppel, as well as other defenses, against the government. Plaintiff thereupon brought a motion for summary judgment, asserting that no judicial review of the Secretary’s decision had been sought by defendants and that “By virtue of the doctrine of res judicata, the issues of whether or not an overpayment was made, and if so, the amount of the overpayment, are not open to controversy.” Defendants, in opposition, urged that the facts relied upon by the plaintiff were without support in the record; that the provisions of § 405, relating to procedures to be followed by claimants in making claims against the government, had no application to the case at bar, since they were making no claim, but rather were being sued for a debt owed as parties-defendant; and, in substance, that “this case should be reopened under Section 404.-958 and in the interest of justice.” The District Court’s ruling was the grant of the government’s motion for summary judgment. In the context of the facts before us, and the statutory provisions relating thereto, there is no need for us to exhaust the application of the doctrine of res judicata as applied to the decisions of administrative tribunals, or, as it is sometimes termed, “administrative res judicata.” Hughes v. Finch, 432 F.2d 93 (4th Cir. 1970). It is pertinent to observe, however, that the earlier view of some courts that the doctrine does not apply to administrative proceedings has been largely discredited. The Supreme Court, in United States v. Utah Construction and Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) took occasion to point out that its decision therein was harmonious with general principles of collateral estoppel, stating, in part, that “Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, but such language is certainly too broad. When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” 384 U.S. at 421, 86 S.Ct. at 1559. [footnotes and citations omitted] See, also, Davis, Administrative Law Treatise, § 18.02, et seq., and cases there cited. Although application of the doctrine of res judicata to administrative decisions does, indeed, serve a useful purpose in preventing the relitigation of issues properly determined administratively it is not, where applicable, applied with the same rigidity as its judicial counterpart. “[Practical reasons may exist for refusing to apply it,” held the court in Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969), and, continuing, “[I]n any event, when traditional concepts of res judicata do not work well, they should be relaxed or qualified to prevent injustice. 2 Davis, Administrative Law, § 18.03 (1958).” Particularly appropriate are such considerations to the case before us, requiring, as we have noted, that the government shall not recover an overpayment “if such recovery . . . would be against equity and good conscience.” But however guarded the application of the doctrine of administrative res judicata generally, its application in the case at bar is specified in the regulations of the agency before us. These, it is clear, do not demand administrative finality. The matter was the subject of extensive examination in Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971), the court pointing out that 20 C.F.R. § 404.957 permits an administrative determination to be reopened within four years after the date of notice thereof “upon a finding of good cause for reopening,” and that “good cause” included, inter alia, error in the determination or decision apparent on the face of the evidence on which it is based. The Leviner court also held that although the regulation “is couched in terms of reopening a decision otherwise final, it also serves to identify decisions that should not be interposed to deny subsequent applications. A decision that is subject to being reopened provides an inappropriate bar.” We agree. The government, in support of its position, cites to us a number of cases assertedly holding that where judicial review is not sought by a claimant within the time prescribed by 42 U.S.C. § 405, “the adverse decision of the Agency is final and is res judicata." e. g., Gardner v. Moon, 360 F.2d 556 (8th Cir. 1966). Whatever may be the dimensions of “res judicata” in this situation, which we will not explore, such cases are not in point on any issue before us. We do not have a claimant seeking judicial review under the act. On the contrary we have the government, as plaintiff, seeking to reduce a debt to judgment and thereafter to collect, presumably by the usual process of levy and execution. In this situation, as we noted in Burrow v. Finch, 431 F.2d 486, 491, n. 5 (8th Cir. 1970), “Where the Secretary asserts the claim of overpayment by reason of ‘fault’ under § 404(b) . . . there is no logical reason why the party asserting the claim should not bear the traditional burden of proving it,” and proving it, by a party moving for summary judgment, means under the Rules of Civil Procedure, that he has the burden of showing the absence of a genuine issue as to any material fact. Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). So here. The government relies for its proofs, in its motion for summary judgment, upon administrative res judicata, citing the hearing examiner’s decision, which found, inter alia, fault in the claimant and no waiver of the overpayment by the government. Such reli-anee will not suffice in the face of the defense, however inartistically pleaded, of error manifest on the face of the record, a well recognized exception to the res judicata doctrine, codified, in fact, in the Social Security Regulations. Such defense the defendants may pursue and make their showings with respect thereto. Reversed and remanded for further proceedings not inconsistent herewith. . Graham, Public Assistance: The Right to Receive: The Obligation to Repay, 43 N.R.U.L.R. 451 (1968) ; Comment: Re-coupment of Welfare Overpayment, 7 Houston L.R. 635 (1970). . 42 U.S.C. § 404(b): “In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience.” . The breakdown of the figures comprising the asserted overpayment is as follows : Lawrence P. Smith, $6,001; Virginia M. Smith, his wife, $1,096; Virginia M. Smith in her fiduciary capacity as payee for minor children, $6,576, all plus interest as allowed by law, totaling $13,673.00. . “DECISION Based on the foregoing findings of fact and conclusions of law, it is the decision of the Hearing Examiner that the claimant, Lawrence P. Smith, is entitled to the establishment of a period of disability beginning July 10, 1961, which terminated March 31, 1964. It is further the decision of the Hearing Examiner that all disability insurance payments made to this claimant beginning with the month of April of 1964 and thereafter constitute an overpayment of benefits. It is further the decision of the Hearing Examiner that recovery of the amount of the overpayment from this claimant cannot be waived for the reason that tiie claimant was. not without fault and recovery of said overpayment would not defeat the purpose of Title II of the Social Security Act or be against equity and good conscience.” . 42 U.S.C. § 405(g) : “Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy may obtain a review of such decision by a civil action commenced within sixty clays after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall bo brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district in the United States District Court for the District of Columbia. ...” . 42 U.S.C. §§ 402(b), 402(d) ; 20 C.F.R. §§ 404.313(a), 404.314, 404.320(a). . 42 U.S.C. § 405 Section (b) thereof provides, in part, that “The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for payment under this subchap-ter.” . This reference is to 20 C.F.R. § 404.958, defining “good cause” and must be read in conjunction with § 404.957, referring to the reopening of a “final” decision for “good cause.” . See Lawlor v. National Screen Service Corp. 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955): “The term res judicata is used broadly in the Restatement to cover merger, bar, collateral estoppel, and direct estoppel.” See, also, Moore’s Federal Practice, Vol 1B, § 0.405 et seq. . Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940). . e. g., United States v. Stone and Downer Co., 274 U.S. 225, 47 S.Ct. 616, 71 L.Ed. 1013 (1927). . Note 1, supra. . 20 C.F.R. § 404.957: “An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final . may be reopened: (b) [Wjithin 4 years after the date of the notice of the initial determination . upon a finding of good cause for reopening such determination or decision. . 20 C.F.R., § 404.958: “ ‘Good cause’ shall be deemed to exist where: (c) there is an error as to such determination or decision on the face of the evidence on which such determination or decision is based.” See, also, § 404.958(a) relating to new and material evidence. . 20 C.F.R. § 404.958(c).

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

KIYOSHI OKAMOTO et al. v. UNITED STATES, and six other cases. Nos. 3076-3082. Circuit Court of Appeals, Tenth Circuit. Dec. 26, 1945. Dissenting Opinion Jan. 7, 1946. HUXMAN, Circuit Judge, dissenting in part. A. L. Wirin, of Los Angeles, Cal. (J. B. Tietz, of Los Angeles, Cal., and L. C. Sampson, of Cheyenne, Wyo., on the brief), for appellants. Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo. (John C. Pickett, Asst. U. S. Atty., of Cheyenne, Wyo., on the brief), for ap-pellee. Before BRATTON, HUXMAN, and MURRAH, Circuit Judges. BRATTON, Circuit Judge. Section 11 of the Selective Service Act of 1940, 54 Stat. 885, 50 U.S.C.A.Appendix § 311, imposes a criminal sanction on any person who knowingly makes or is a party to the making of any false registration, who knowingly makes or is a party to the making of any false statement as to his or another’s fitness or liability for service, who knowingly counsels, aids, or abets another to evade registration or service, who knowingly fails or neglects to perform any duty required of him by the Act, who knowingly hinders or interferes by force or violence with the administration of the Act, or who conspires so to do. By indictment returned in the United Stales Court for Wyoming, Kiyoshi Oka-molo, Pa til Takeo Nakadate, Tsutomu Wa-kaye, Frank Seishi Emi, Minoru Tamesa, Isamu Horino, Guntaro Kubota, and James Matsumoto Omura were charged with entering into a conspiracy with each other and with divers other persons to evade the requirements of the Act, and to counsel and abet themselves and others who had registered under the Act and who were not yet inducted into the land or naval forces of the United States to evade service in such forces. The defendant James Mat-sumoto Omura was acquitted. The other defendants were found guilty, four were sentenced to terms of imprisonment of four years each, and three to terms of two years each. The sufficiency of the evidence to sustain the convictions is challenged. Following the attack on our naval base at Pearl Harbor and our declaration of war against Japan, many Japanese aliens and American citizens of Japanese descent'were evacuated from their homes in the Pacific coastal area and placed in war relocation centers. The appellant Kubota was born in Japan and the other appellants were American born citizens of Japanese ancestry. They were evacuated from their homes in the Pacific Coastal region and placed in a relocation center at Heart Mountain, Wyoming. An organization called the Fair Play Committee, hereinafter referred to as the Committee, was formed at the relocation center. Its membership was limited to citizens of the United States, and apparently its original purpose was to air grievances, improve the lot of the evacuees, and test the constitutionality of the evacuation. All the appellants except Kubota were members of the Committee, and most of them were officers of it. Sometime after the inception of the Committee, the appellants and others of like status were reclassified under the Selective Service Act and made eligible for service in the armed forces. The Committee thereupon inaugurated an active program relating to that matter, and each of the appellants took an active part in it. Funds were raised, meetings were held, addresses were delivered, letters were written, bulletins were published and circulated, and publicity was prepared for publication and was published in the Rocky Shimpo, a newspaper published by the defendant Omura in Denver, Colo. Much said in the address, bulletins, and publications was to the effect that because of the uncertainty of their status, those at the relocation center who had been thus reclassified were not subject to the provisions of the Selective Service Act; that their evacuation and detention constituted a wrongful violation of law; that clarification of their status was desired before being inducted into the armed forces; and that they were willing to enter the armed service as soon as the wrong done them was corrected and they were restored to their rights as citizens. A test case in court to determine their status and vindicate their rights was discussed, and correction by Congressional pronouncement was mentioned. But the activities of the members of the Committee did not end there. At a largely attended meeting, it was decided by unanimous vote that until their status had been clarified and their rights restored, they would refuse to submit to physical examination or report for induction when called for service. And the action thus taken was given publicity by a bulletin circulated at the center in which it was stated, “We, Members of the Fair Play Committee Hereby Refuse to Go to the Physical Examination or to the Induction If or When We are Called in Order to Contest the Issue * * * We hope that all persons whose ideals and interests are with us do all they can to help us. We may have to engage in court actions, but as such 'actions require large sums of money, we do need financial support and when the time comes, we hope that you will back us up to the limit.” Thereafter more than sixty persons detained at the relocation center, including some of the appellants, disobeyed orders of the draft board to report for preinduction physical examination or orders to report for induction into the armed forces. One of the appellants stated in a letter, “The other Centers are ahead of us in the movement against the draft * * *. ” Another appellant stated on one occasion that he did not know’ whether the United States should resist the Japanese government in the war effort; that he professed loyalty to the United States but could not believe whether it was doing right or wrong; and that he had not come to a conclusion yet as to whether he believed in the cause of the United States in the war with Japan. A third appellant stated on one occasion that he was not willing to go into the army. And a fourth appellant stated that he would rather go to the penitentiary than report when called by his draft board. Manifestly the evidence, together with the permissible infer- The further contention is that the convictions denied to appellants their rights of freedom of speech, press, and assemblage, guaranteed by the First Amendment. The Act, supra, was enacted into law at a time when most of the world was at war. Realizing the danger of our becoming involved in the war, Congress recognized the urgent necessity of integrating our forces for national defense, and the Act was passed for the purpose of mobilizing our national manpower. By its terms a comprehensive system was established intended to operate as a process for the selection of men for service in our armed forces. And in furtherance of that legislative purpose, section 11 was inserted making it a penal offense to violate certain provisions in the Act, or to conspire together for that purpose. Freedom of speech, freedom of the press, and freedom of assembly guaranteed by the First Amendment are fundamental rights. But, though fundamental, they are not in their nature absolute. These rights are not unbridled license to speak, publish, or assemble without any responsibility whatever. Their exercise is subject to reasonable restriction required in order to protect the Government from destruction or serious injury. The delicate and difficult question usually presented is whether speech, press and assembly are of such nature as would produce, or are calculated to produce, a clear, present, and imminent danger of a substantive evil which Congress has the constitutional power to prevent. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534. Ordinarily “the substantive evil must be exlremely serious and the degree of imminence extremely high” in order to warrant punishment for the exercise of speech, press, or assembly. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. enees fairly to be drawn from it, presented an issue of fact for the jury as to whether the statements, acts and conduct of the appellants, considered in their totality, were honest objections directed in good faith against that which was believed to be wrongs, or constituted convincing evidence of a concert of understanding and purpose to' evade the Selective Service Act themselves and to aid and abet others in doing so. It cannot be said that the evidence was insufficient to support the verdict and judgments. 315. But the First Amendment in its full sweep does not protect one in speech, publication, or assembly in furtherance of a conspiracy to promote evasion of an act reasonably designed to protect the Government against destruction by military force. Cf. Schenck v. United States, supra. The remaining contention which merits discussion concerns itself with the denial of a requested instruction and the giving of an instruction. The appellants tendered to the court a requested instruction, the substance of which was that in determining whether the appellants acted in good faith or bad faith, the jury might take into consideration their sincerity or insincerity of belief that the status and rights of American citizens of Japanese descent, evacuated from their homes and detained in the relocation center, could be lawfully determined or clarified by the courts upon refusal of such persons to comply with the orders of the draft board and upon criminal prosecution for such refusal; and that if the jury should find that the appellants sincerely and in good faith entertained such belief, and that all of their pertinent acts and conduct were based upon such belief a verdict of acquittal should be returned. The court refused the tendered instruction and instructed the jury in this language: “They took the positipn that a test case should be filed, having for its purpose a test of the constitutionality of the selective training and service act as applied to them while detained in a relocation center. In this connection you are instructed that a desire to have a test case for that purpose does not excuse failure to comply with the selective training and service act. * * * The selective training and service act provides that it is a violation of the law for anyone to counsel another to disobey the draft law or to assist or abet one to evade the draft law. And I charge you that it is a violation of the law, even though it is contended that the purpose was to create a case for the testing of the constitutionality of the law.” The indictment in Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 1207, charged a conspiracy to counsel divers persons to evade, resist, and refuse service in the land and naval forces, in violation of section 11, supra. The defendants there were members of an organization called the Bund. Its professed purpose was to keep alive the German spirit among persons of German blood in the United States. Particular objection was directed against section 8(i) of the Selective Service Act, supra, SO U.S.C.A.Appendix § 308(i) which declared it to be the expressed policy of the Congress that vacancies in the employment rolls of business or industry caused by the induction of employees into the armed forces under the provisions of the Act should not be'filled by members of the Bund. The evidence disclosed among other things that by a document called Bund Command No. 37, it was stated in effect that every man, if he could, would refuse to do military duty until that section of the act and all other laws which confined the rights of members of the organization were revoked. Broadly stated, the facts there were fairly comparable to those presented here. It was contended by the Government there that the honesty and bona fides of the defendants was immaterial, and further that whether they desired to test the constitutionality of the law was likewise of no decisive moment. But the court did not share that view. The court said, “But to counsel merely refusal is not made criminal by the Act.” And the court further said, “One with innocent motives, who honestly believes a law is unconstitutional and, therefore, not obligatory, may well counsel that • the law shall not be obeyed; that its command shall be resisted until a court shall have held it valid, but this is not knowingly counseling, stealthily and by guile, to evade its command.” Viewed in the light of the opinion in the Keegan case, it is clear that the trial court erred in giving the instruction to which reference has been made. In respect of the issue as to whether the appellants acted with honesty of purpose and innocence of motive in a good faith effort to bring about a test case to determine their exempt status under the Selective Service Act, the court should have instructed the jury in substantial harmony with the rule later enunciated in the Keegan case. The United States seeks to avoid the impact of the Keegan case in its controlling application here by urging that there the judgment was reversed solely on the ground that the evidence was insufficient. It is said that there only five members of the court joined in the reversal; that four members dissented; that two of the members who joined in the reversal did so exclusively on the ground of the inadequacy of the evidence; and that therefore only three members concurred in that part of the opinion of the majority relating to the right of one to counsel in good faith and with innocent motives noncompliance with a law honestly believed to be unconstitutional and for that reason not obligatory. But a critical examination of the crucial language in the opinion of the majority and in the separate concurring opinions indicates that they fail to sustain the contention. The judgments are severally reversed and the causes remanded.

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?

Edward Joseph X. CHAPMAN, Plaintiff-Appellant, v. Richard KLEINDIENST et al., Defendants-Appellees. No. 74-1218. United States Court of Appeals, Seventh Circuit. Argued Nov. 20, 1974. Decided Dec. 16, 1974. Diane Crawford Geraghty, Northwestern Legal Assistance, Chicago, Ill., for plaintiff-appellant. Henry A. Schwarz, U. S. Atty., William C. Evers, III, Asst. U. S. Atty., East St. Louis, Ill., for defendants-appellees. Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges. PER CURIAM. Edward Joseph X. Chapman, a prisoner at Marion Federal Penitentiary, brought this pro se civil rights action against various federal prison officials as a result of his extended confinement in punitive segregation at the institution. Chapman alleged that his placement in segregation for his refusal to handle pork, motivated by his observance of what he contends is a basic tenet of his Black Muslim religion, during kitchen clean-up duties violated his First Amendment free exercise rights. He further claimed that he was denied procedural due process at the hearing that preceded his segregation and that the resulting segregation for nine months constituted cruel and unusual punishment. Chapman sought, in substance, a mandatory injunction ordering his return to the general prison population, an injunction restraining defendants from interfering with his religious freedom, actual and punitive damages, a declaratory judgment, and a writ of mandamus. Chapman’s request for the appointment of counsel was denied by District Judge Foreman at the commencement of the one-day hearing held on October 9, 1973. Chapman called two witnesses, James Tippy, a Marion caseworker, and James Culley, who had served on the Adjustment Committee that ordered Chapman placed in segregation. At the close of Culley’s testimony, Judge Foreman recessed the case and indicated that he would hear no more testimony. When Chapman protested that he wished to call another witness, Keith X. Ferres, to testify as to the tenets of the Muslim faith, Judge Foreman indicated that Chapman • could submit an affidavit instead, but that he, Judge Foreman, would determine whether additional testimony would be necessary. On December 17, 1973, the district court entered judgment for the defendants, holding Chapman’s claim for a mandatory injunction moot because he had been released from segregation on July 23, 1973. The court further concluded that Chapman had failed to prove any of the allegations of his complaint. On this appeal, Chapman, who is now represented by counsel, argues that the district court erred in the following respects: 1) even though Chapman had been released from segregation, his claim for injunctive relief was not thereby mooted; 2) the district judge abused his discretion in not appointing trial counsel for Chapman; 3) the district court improperly terminated the case prior to the close of Chapman’s presentation; 4) Chapman had in fact made out a prima facie case on each of the three alleged constitutional violations; and 5) several evidentiary rulings were erroneous. For the following reasons, we reverse and remand for a new trial. I. Insofar as the ruling that Chapman’s release from segregation rendered his claim for a mandatory injunction ordering release moot is concerned, the trial judge was clearly correct. We do not read his order as holding that Chapman’s release mooted his claims for monetary, declaratory, or prohibitory injunctive relief. The release could not have had those effects; the recovery of damages for the alleged violations of his constitutional rights does not turn on his continued presence in segregation. Nor would his release render moot his request for a declaratory judgment that the acts of these prison officials were unconstitutional, for an injunction prohibiting further such actions, and for further appropriate relief, including the expurgation of his prison record. As long as Chapman remains at Marion, and as long as he may again be required to handle pork, or may again go before the Adjustment Committee, the possibility of the reoccurrence of these issues satisfies the “actual controversy” requirement of the Declaratory Judgments Act, 28 U.S.C. § 2201, and the “case or controversy” requirement of Article III. In addition, Chapman’s complaint was drafted as a class action, brought on behalf of all Black Muslims at Marion, some of whom, he alleges, are in segregation as a result of the same First Amendment violations of which Chapman complains. Judge Foreman failed to conduct the investigation and make the findings of the appropriateness of the class action required by Fed.R.Civ.P. 23(c). If Chapman’s contentions of a uniform institutional policy applying to all Black Muslims are correct, this is another compelling reason for finding that the case is not moot and deciding these questions at this time. See Workman v. Mitchell, 502 F.2d 1201, 1207-1208 (9th Cir. 1974). II. Chapman next argues that the trial judge abused his discretion in not granting Chapman’s motion for appointment of counsel, once it became clear that he had a reasonable chance of succeeding in this action. Without determining whether Judge Foreman abused his discretion in this case, we have concluded that on remand it would be appropriate for Chapman to have the assistance of counsel. A staff attorney of the Northwestern Legal Assistance Clinic, which represented Chapman before us, has indicated both the willingness and the financial capacity to continue this representation. Since she has already demonstrated her competence and familiarity with the record, we direct the trial judge to make the necessary request pursuant to 28 U.S.C. § 1915(d). III. After Chapman had completed his examination of his first two witnesses, the trial judge stated: “The Court will continue this matter generally at this time. I’ll take the matter under advisement with regard to the evidence that is presented and with regard to the other matters that are to be submitted to me and I’ll make a ruling as to whether or not, in my opinion, additional evidence is needed. I do not have any more time available for this matter at this time.” Tr. 71. Chapman was permitted to submit the affidavit of Keith X. Ferres, his expert on the Black Muslim religion, but was never subsequently allowed to call any more witnesses. Termination of the proceedings in this manner was improper since Chapman had not finished presenting his case. Judge Foreman’s ultimate ruling that Chapman had not proved the allegations of his complaint was not consistent with the implicit understanding that, should he decide additional evidence was necessary, he would permit Chapman to continue with the presentation of his case. The defendants make much of the fact that Chapman stated that he had only one more witness, Keith X. Ferres, that Ferres was to testify only as to the tenets of the Muslim faith, and that there was no dispute over this issue. Judge Foreman decided to terminate the proceedings, however, before Chapman made this statement. See Tr. at 71. In truth, Chapman may have desired to call several additional witnesses, including himself, to the stand, but concluded that, in light of the judge’s statement, he could hope that Judge Foreman would hear at least one more witness. In addition, Chapman indicated that he might wish to call other witnesses for “rebuttal” testimony. Tr. at 74. While an attorney would refer to testimony as “rebuttal” only if it were to be presented after the defendants’ case, Chapman may have meant simply additional witnesses. Judge Foreman so interpreted this reference; he stated: “If you desire to submit to the Court an affidavit of the other witnesses or witness — Mr. Ferres, that was here today, you may do so.” Tr. at 74. Thus, we cannot be certain that, but for Judge Foreman’s premature termination of Chapman’s presentation, the plaintiff would not have introduced the evidence that Judge Foreman concluded was lacking to prove the allegations of the complaint. While we sympathize with the trial judge’s desire to have this case tried speedily, since we also are conscious of the number of prisoner cases on his docket, nevertheless the procedure used 'in this case is unacceptable. The fact that the trial judge had not scheduled additional time for this matter is plainly not a sufficient justification for aborting the trial before the plaintiff had completed his case. IV. Chapman contends that even on this truncated record Judge Foreman erred in concluding that he had not proved the allegations of his complaint. With respect to Chapman’s claim that he was punished for his observance of a basic tenet of his Black Muslim faith, we agree that he presented substantial evidence of interference with First Amendment rights and that judgment should not have been entered prior to hearing the defendant’s evidence. The defendants, in their brief, acknowledge that Chapman introduced proof that “(1) his religion forbids touching pork; (2) he was called upon to handle pork; (3) he was placed in segregation for refusing to obey an order by a supervisor, and that order was to handle pork. . . . ” Appellees’ Brief at 19. Having established this interference with his First Amendment right, and having tendered additional evidence by an expert in the Muslim religion, Chapman was entitled to have the defendants come forth with their explanation of the reasons for the requirement that he han-die pork. It was error for Judge Foreman to enter judgment for defendants on this issue. See Walker v. Blackwell, 411 F.2d 23, 25 (5th Cir. 1969); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995, 1000 (1969); Cooper v. Pate, 382 F.2d 518, 521 (7th Cir. 1967). We do not agree with Chapman, however, that Judge Foreman erred in granting judgment for the defendants on his procedural due process claim. Chapman contends that he was not afforded the procedural protections we described in United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973), cert. denied, Gutierrez v. Department of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102. Although his segregation hearing was held on October 11, 1972, prior to our decision in Miller, he argues that we should apply that decision retroactively. In both Adams v. Carlson, 488 F.2d 619, 624-629 (7th Cir. 1973), and Thomas v. Pate, 493 F.2d 151, 161 n. 6 (7th Cir. 1974), we did so apply the Miller standards. The Supreme Court, however, granted certiorari in Thomas, vacated the judgment, and remanded the case for a reconsideration of the retroactivity issue in light of its decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); see Cannon v. Thomas, - U.S. -, 95 S.Ct. 288, 42 L.Ed.2d 39 (1974). In Wolff, the Supreme Court stated that due process requirements in prison disciplinary proceedings are not to be applied retroactively. 94 S.Ct. at 2983. Thus, we may not apply the Miller standards in Chapman’s case. Instead, the procedures used in Chapman’s segregation hearing must be judged against the due process standards in force at that time, the standards set forth in Adams v. Pate, 445 F.2d 105 (7th Cir. 1971). In Adams we stated that procedural due process was complied with when “the prisoner is confronted with the accusation against him and afforded a reasonable opportunity to deny the accusation or explain his actions.” 445 F.2d at 108. Chapman’s segregation was ordered only after compliance with these procedures. Thus, Chapman’s claim for damages and for the expurgation of his records on this basis was properly denied. As there is no evidence that Marion officials are not complying with Miller at this time, the entry of a prohibitory injunction would have been improper. Chapman finally contends that Judge Foreman erred in entering judgment for the defendants on Chapman’s claim that his nine-month segregation was in violation of the Eight Amendment prohibition of cruel and unusual punishment. The essence of his claim is that a nine-month segregation period was disproportionate to the offense he allegedly committed, even assuming that prison officials could properly punish his refusal to handle pork. In Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973), we recognized that “punishment which is disproportionate to the offense committed constitutes cruel and unusual punishment . . . .” 488 F.2d at 635-636. See also Haines v. Kerner, 492 F.2d 937, 942 (7th Cir. 1974). But, we noted that such a determination in the individual case must turn of necessity on an assessment of all the facts and circumstances surrounding the segregation decision, including such matters as the disciplinary offense involved, the prisoner’s disciplinary record, and the offense for which the prisoner was originally sentenced. It is precisely these facts that are missing from the record of this case. We do not know whether the threat Chapman admits making influenced the segregation length. We know nothing of any prior disciplinary problems or of any of the myriad factors that may have been and could properly be considered in setting the segregation term. The trial judge made no findings of fact and, as noted in Part III, supra, Chapman was prevented from completely presenting his case. For these reasons, although we express no opinion on the merits of the Eighth Amendment contention, Chapman is not foreclosed from pursuing this claim on remand. Of course, if Chapman should be successful in demonstrating that the sole reason for his segregation was his refusal to obey an order that violated his First Amendment rights, there would be no occasion to reach the Eight Amendment claim. For in that event the punishment would be entirely impermissible and no question of disproportionality would remain. V. In summary, we hold that Judge Foreman erred in truncating Chapman’s presentation of his case, and that the facts in the record made out a prima facie ease of a First Amendment violation. On remand, Chapman may pursue both his religious freedom violation and his cruel and unusual punishment claims. We note that, although Chapman’s complaint contained what must be construed as a demand for a jury trial on the legal issues presented, Judge Foreman conducted the October 9, 1973, hearing without a jury. While we agree that burying the jury demand in the complaint is not the best practice, the court and its staff have a special responsibility to scrutinize carefully pro se complaints for just such infirmities. If Judge Foreman was aware of the jury demand but decided to hear the case himself first because of the prayer for injunctive in addition to damage relief, he clearly erred. The Supreme Court decisions in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-511, 79 S.Ct. 948, 3 L.Ed.2d 988, and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-473, 82 S.Ct. 894, 8 L.Ed.2d 44, require the presentation of the legal claims to the jury prior to any factual resolution by the trial judge on the equitable claims. The fact that Chapman also sought a declaratory judgment does not affect this requirement. It is more likely, however, that Judge Foreman was simply unaware of the jury demand; Chapman raised no objection when the hearing was held without a jury. Normally, the failure to object under such circumstances would constitute a waiver of the right to a jury trial. See National Family Insurance Company v. Exchange National Bank of Chicago, 474 F.2d 237, 241 (7th Cir. 1973), cert. denied, 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59; Smith v. Cushman Motor Works, 178 F.2d 953, 954 (8th Cir. 1950). Here, however, Chapman, who was not represented by counsel, may not have been aware of his right to object to a hearing to the court. Thus, on remand, Chapman should be allowed a jury trial unless one is formally waived pursuant to Fed.R.Civ.P. 39(a). The judgment is accordingly vacated and the case is remanded for further proceedings. . Attorney General Richard G. Kleindienst; Norman A. Carlson, Director of the Federal Bureau of Prisons; George W. Pickett, Charles Fenton, and Captain Earl Buzzard, Marion officials; and Frederick Siber, Director of Chaplaincy Services, Federal Bureau of Prisons. . In addition, if it is found that Chapman was wrongfully placed in segregation, expurgation of the record of this punishment, would seem appropriate to protect Chapman from future, prejudice in obtaining parole, work assignments, and the transfer to a prison nearer his home. Chapman included in his complaint a general prayer for all appropriate relief. It is axiomatic that pro se prison complaints will be held to a less stringent standard than pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652; Bryant v. Harris, 465 F.2d 365, 366 (7th Cir. 1972). . The defendants suggest opaquely that Judge Foreman’s mootness determination applied to the entire request for injunctive relief. Ap-pellees’ Brief at 5. . Defendants have argued here that Chapman may not maintain his damage action because of the doctrine of “official immunity.” Judge Foreman did not rule on this defense below; it is unclear that it was presented to him, although the defendants did cryptically state in their answer that “Inmates of federal penitentiaries are not entitled to monetary damages for violation of their First Amendment rights, if such a violation occurred.” In any event, the defense of official immunity, because it is not an absolute bar to damage recoveries, requires a full hearing and concomitant findings of fact by the trial judge. On remand, which we order infra, the defendants may argue that the circumstances in which damages may be recovered against federal officials for official acts first enunciated in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, and further developed in our decisions in Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967), cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666; Skolnick v. Campbell, 398 F.2d 23 (7th Cir. 1968); and Scherer v. Morrow, 401 F.2d 204 (7th Cir. 1968), cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777, have not been demonstrated by Chapman. . The federal courts have concluded that prisoner complaints were not moot under similar circumstances in West v. Cunningham, 456 F.2d 1264, 1265-1266 (4th Cir. 1972); Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995, 997 n. 1 (1969); Jackson v. Bishop, 404 F.2d 571, 575-576 n. 5 (8th Cir. 1968) (Blackmun, J.); and Pierce v. LaVallee, 293 F.2d 233, 234 (2d Cir. 1961). . We have previously held that the decision whether to request counsel to represent an indigent in a civil case, as authorized by 28 U.S.C. § 1915(d), “rests in the sound discretion of district courts unless denial would result in fundamental unfairness impinging on due process rights.” LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967). See also Ehrlich v. Van Epps, 428 F.2d 363, 364 (7th Cir. 1970). Chapman would have us adopt the standard set forth in Dreyer v. Jalet, 349 F.Supp. 452, 486 (S.D.Tex.1972), aff'd mem., 479 F.2d 1044 (5th Cir. 1973): “[I]f a civil action brought by an indigent acting pro se, including prison inmates, has merit requiring an evidentiary hearing, then counsel should be appointed to properly present the claim.” See Peterson v. Nadler, 452 F.2d 754, 757-758 (8th Cir. 1971); Chubbs v. City of New York, 324 F.Supp. 1183, 1191 (E.D.N.Y.1971); cf. United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162, 167-170 (1970). These cases discuss the highly complex institutional and financial considerations posed in a request for counsel by the indigent civil litigant. We need not, however, decide this important question in this case. . Our ruling herein does not in any way interfere with the sound discretion of a trial judge to limit the number of witnesses that may appear to present essentially cumulative evidence. See Loux v. United States, 389 F.2d 911, 917 (9th Cir. 1968), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135. Such was clearly not the basis of Judge Foreman’s actions. . There is some evidence in the record tnat Chapman’s segregation may have resulted in part from a threat made to the prison officer who ordered him to handle pork. Chapman admits saying that “ ‘Allah (God) might might come to his defense and blow (Mr. Brown) him through an oven’ as he allegedly did a previous prison oppressor of plaintiff.” Complaint Paragraph 16(d). The Incident Report filed by Brown, however, stated the charge as “Failing to perform work as instructed by a supervisor,” a violation of Code No. 303. Judge Foreman, in entering judgment for defendants, made no finding that the threat was the real reason for the segregation, instead of the refusal to handle pork. In its present incomplete posture, the record strongly indicates that Chapman was punished at least in part for his refusal to clean off the food carts. . Because of our disposition of his other contentions, it is unnecessary for us to consider Chapman’s allegations concerning the trial judge’s evidentiary rulings. . See Complaint Paragraph 34(b)(7). . See 5 J. Moore, Federal Practice j[ 38.40, at 328.1-328.2 (2d ed. 1974). . Beacon Theatres, Inc. v. Westover, 358 U.S. 500, 504-505, 79 S.Ct 948, 3 L.Ed.2d 988.

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

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

James Arthur BROWN, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee. No. 71-1089. United States Court of Appeals, Fourth Circuit. Argued March 5, 1973. Decided June 28, 1973. Prof. Daniel J. Meador, Charlottesville, Va. (Court-appointed), for appellant. Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges sitting en banc, on resubmission. DONALD RUSSELL, Circuit Judge: This is a habeas proceeding instituted by a Virginia prisoner, after exhaustion of state remedies, in order to secure his outright release from a life sentence imposed after conviction for robbery in the Corporation Court of the City of Norfolk. The District Court denied relief. On appeal, the hearing panel filed its opinion, remanding the proceeding for a hearing such as was required in Kemplen v. State of Maryland (4th Cir. 1970), 428 F.2d 169. Rehearing en banc was sought and granted. On rehearing, affirmance of the District Court, though not on the grounds stated by it, was agreed on by the en banc court. The earlier opinion is accordingly superseded by the following opinion: The factual background of this proceeding is not in dispute. At the time of the commission of his alleged offense of robbery, the petitioner was 17 years of age. A petition charging him with the offense was initially filed in the Juvenile and Domestic Relations Court of Norfolk (hereinafter referred to as Juvenile Court). It does not affirmatively appear from the Juvenile Court record that either of petitioner’s parents was present at ány of the proceedings which followed and it is conceded that the Court did not appoint a guardian ad litem or counsel to represent him. The Juvenile Court found the petitioner “within the purview of the Juvenile Court” and referred tne "matter “to the Probation Department for an investigation, to be made in Grand Jury form.” The matter was continued until September 3, 1963 to permit the investigation to be made. On September 3, 1963 the Juvenile Court conducted a hearing on the basis of the investigation made by the Probation Department and proceeded to transfer the charges against the petitioner to the Corporation Court of the City of Norfolk for criminal proceedings. TTieTransfer was made under the authority of Section 16.1-176, Virginia Code. The petitioner was thereupon indicted for robbery in the Norfolk Corporation Court, pled guilty in January, 1964, and was given a life sentence. As a result of habeas proceedings begun by the petitioner in 1968, this conviction and sentence were, however, declared null and void because of the failure of the Juvenile Court to appoint a guardian ad litem or counsel for the petitioner or to notify the petitioner’s parents in connection with the transfer proceedings. The Court did not, however, order the petitioner’s release but directed that he be detained to await further orders of the Court. The petitioner at this time was 23 years of age. Shortly thereafter, the petitioner was re-indicted for the same 1963 robbery, tried before a jury, found guilty and again sentenced to life imprisonment. He appealed, contending that his second trial was void because re-trial as an adult for an offense committed as a juvenile would be inconsistent with the constitutional requirements of due process and equal protection. The appeal was denied on the authority of Pruitt v. Guerry (1969) 210 Va. 268, 170 S.E.2d 1. Continuing to press his claims, petitioner commenced this habeas corpus proceeding in the District Court in May 1970. From a dismissal of his petition by the District Court, he appealed to this Court. I. Petitioner raises two claims on account of which he asserts he is entitled to immediate release. First, he urges that the jurisdiction of the Juvenile Court over him and his offense has never been validly terminated and that, in order to terminate it and transfer valid jurisdiction to the Corporation Court, a proper transfer proceeding is necessary. He contends, however, that at this late date, almost ten years after the offense, it is impossible for the Juvenile Court or any other Court to hold a meaningful nunc pro tunc transfer hearing in order to effect such a transfer and, under those circumstances, his outright release is the only proper remedy. In addition, he argues that the hearing before the Juvenile Court put him in jeopardy and any trial of him in the Corporation Court is barred under the constitutional prohibition against double jeopardy. We find both contentions without merit. II. There is no dispute between the parties over the proposition that the transfer order entered by the Juvenile and Domestic Relations Court in 1963 was invalid for failure to accord the petitioner procedural due process and that the conviction thereafter, on the basis of the petitioner’s guilty plea in the Corporation Court, was invalid. The state court has so concluded in declaring that conviction a complete nullity. Had the petitioner been a juvenile in 1968 when his initial sentence was voided, jurisdiction over his offense would have been vested in the Juvenile Court, which could have held a new transfer hearing, conducted in full compliance with the petitioner’s constitutional rights. But the petitioner was no longer a juvenile; he was an adult. Thus, the Juvenile Court had no further jurisdiction over him and his offense and he could no longer be dealt with by that Court. But that did not mean that he was “home free” and must be released forthwith because, as the petitioner contends, a reconstructed waiver hearing as contemplated by Kemplen would be impractical. As one Circuit Court has observed in a similar case, “[w]hen a decision in the criminal law is made retroactive, the consequence is not to free all whose convictions are affected. Normally new hearings or new trials will be held in some or all cases.” Mordecai v. United States, supra, 421 F.2d at 1137. As a matter of fact, this demand for immediate release “is the kind of ‘drastic relief’ which the supreme court in identical circumstances in Kent deemed inappropriate.” Knott v. Langlois (1967), 102 R.I. 517, 231 A.2d 767, 773. Thus Kent, the foundation for the petitioner’s constitutional attack on his earlier sentence, did not require the petitioner’s release; rather, after providing for correction of the procedural infirmity in the transfer proceeding it authorized a re-trial. And this is the customary procedure in situations such as that posed here. Habeas is not a remedy to be exploited by the guilty in order to escape trial but a procedure intended to secure to guilty and innocent alike a trial free of constitutional defect. Only when the Commonwealth is unwilling to afford the defendant such trial is release proper. Fundamental fairness, though, demands that the public’s right to retry the petitioner as an adult for a crime, committed while he was a juvenile and subject to the processes of the juvenile court system, be conditioned upon a judicial determination of some kind that the petitioner has not been improperly prejudiced by the loss of the opportunity, in a properly conducted hearing, to have opposed a transfer from the Juvenile Court in 1963. Beyond question, the petitioner would have been so prejudiced if at such a hearing it would have been likely a transfer would have been refused. Such a refusal would have meant that in no event could the petitioner have been subjected to any form of restraint beyond his twenty-first year. Only if it could be fairly said that such a transfer would have been made, had a hearing carried out with constitutional safeguards been had, would it be proper to try the petitioner as an adult. Faced with this same issue in Kemplen, the Court attempted to fashion a procedure whereby the problem in that case might be resolved in fairness to both the public interest and the defendant’s individual right to a just determination. That is the background for Kemplen in which we held that, under ordinary circumstances, a determination on this issue should take place in the context of a reconstructed nunc pro tunc hearing, in which the Trial Court would decide “what the juvenile court judge would probably have done in light of all the information then available that might reasonably have been proffered by competent counsel.” But, as the opinion in Kemplen plainly declares, this remedy is not the only remedy, nor is it a remedy necessarily to be applied inflexibly and blindly in all cases. The decision was careful to point out that the remedy adopted in that case was “the proper remedy for this petitioner, on the facts of this case * * (Italics added) In short, Kemplen stands for the principle that, while ordinarily a reconstructed transfer hearing is the appropriate remedy where a prior transfer order of the Juvenile Court has been invalidated on procedural due process grounds and the Juvenile Court has lost jurisdiction of the defendant by reason of his age, each case must be considered on its own facts, and, if some other remedy or determination will not result in fundamental unfairness to the petitioner and is more appropriate under the facts of the case and will contribute to a more expeditious resolution of the issue, that procedure should be adopted. After a careful review of the facts of this case, we are of the firm opinion that this is not a case requiring a nunc pro tunc waiver hearing, as was required in Kemplen. We have no difficulty in finding to a moral and legal certainty that no Juvenile Court, on the record in this case, would have denied transfer. The petitioner, in a proceeding in the Juvenile Court before the filing of his 1963 robbery charge, had been treated by the Juvenile Court as an adult. Such a circumstance made transfer presumptively proper in connection with any subsequent charge against the juvenile, unless the juvenile could establish “that it would be in the public interest to dispose of the matter in the Juvenile and Domestic Relations Court.” Moreover, the gravity of the petitioner’s offense was such that it would be unreasonable to assume that any court would have denied transfer. It must be recalled, too, that, after transfer, the petitioner pled guilty. The petitioner’s offense, by his own admission, was premeditated; it involved acts of shocking brutality; it was a felony of an aggravated character, which, if committed by an adult, would have rendered him liable to a sentence in excess of twenty years. Nor was it an isolated transaction. It was one of several similar robberies committed by the petitioner. It would be a useless imposition on the Trial Court and an inadmissible waste of valuable judicial time to remand a case as plain as this for a reconstructed nunc pro tunc hearing on the propriety of a transfer. Had the Juvenile Court not ordered transfer initially on the basis of such a record, the Commonwealth’s attorney would have had authority to apply for transfer in the Corporation Court. In the Corporation Court, it is fair to assume opposition to transfer would not have been successful. Moreover, the circumstances in this case were such that, had transfer been denied either in the Juvenile Court or the Corporation Court, a finding of abuse of discretion would have been in order. Accordingly, we have no difficulty in concluding here that a reconstructed transfer hearing was not required and that the retrial of the petitioner in 1968, after he had attained the age of twenty-three, was not violative of any Constitutional rights of the petitioner. III. The petitioner asserts a second claim for immediate release. He contends that his conviction in 1968 violates the double jeopardy proscription of the Fifth Amendment. Obviously, this claim is not related to the earlier conviction in the Corporation Court. That conviction has been declared a nullity. It is of no moment that the Virginia Court did so on state rather than federal grounds. The result is the same in either event. Equally clear is the rule that the voiding of the 1964 conviction on collateral attack is no bar to a new prosecution for the same offense. The petitioner’s double jeopardy claim must, therefore, find its basis in the proceedings in the Juvenile Court. Such a claim based on proceedings in that Court, raises, as one commentator has aptly observed, “two separate conceptual problems,” (1) “whether application of the protection against double jeopardy is appropriate in the juvenile context;” and (2) “at what point jeopardy attaches * * * in a juvenile proceeding”. In a number of cases, influenced by the opinions in Kent and Gault, it was assumed that all constitutional rights as applied in the criminal trials of adults are applicable to juvenile courts. A leading case to this effect is United States v. Dickerson (D.C.1958), 168 F. Supp. 899, rev. 106 U.S.App.D.C. 221, 271 F.2d 487. It is true that in Kent the Court required procedural due process in waiver proceedings and in Gault it supplemented Kent by extending to the juvenile the right to notice of charge, the right to counsel, the right to confront witnesses, and the right against self-incrimination. Later in Winship it found that “due process and fair treatment” imposed on the Juvenile courts the requirement of proof beyond a reasonable doubt during the adjudicatory stage of juvenile proceedings. But in this latter case, the Court was careful to point out, as it had done earlier in Kent, that its conclusion did not “ ‘rest[s] entirely on the assumption that all juvenile proceedings are “criminal prosecutions,” hence subject to constitutional limitations.’ ” It emphasized that its ruling was intended to have “no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing” and “ ‘will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.’ ” Concurring in that case, Justice Harlan expressed the view that, “ [I] t is of great importance, in my view, that procedural strictures not be constitutionally imposed that jeopardize ‘the essential elements of the State’s purpose’ in creating juvenile courts.” Chief Justice Burger and Justice Stewart, in dissent, voiced great concern that the decision by imposing such a strict standard of proof might unduly restrict the juvenile courts. Recently, in McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647, the Court, in holding that the guarantee of a jury trial as provided in the Fifth Amendment is not applicable to proceedings in juvenile courts, emphasized anew that it has never been held by it “that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding (emphasis in opinion).” The Court then proceeded to enunciate the test for ascertaining to what extent constitutional requirements are to be “super-imposed” on the juvenile process. That test is a two-fold one, namely, whether the application of the right is necessary to the achievement of “fundamental fairness” and whether it will disrupt the juvenile court system. It represents what has been described as a balancing of “the need for the specific constitutional protection with the State’s interest in maintaining an independent, benevolent juvenile justice system.” Applying that test, the Court found that the requirement for a jury trial, as made obligatory under the Fifth Amendment for criminal trials of adults, “would not strengthen greatly, if at all, the fact-finding function, [of the juvenile court] and would, contrarily, provide an attrition of the juvenile court’s assumed ability to function in a unique manner.” The right to a jury trial was not accordingly imposed on proceedings in juvenile courts. It should be emphasized that in the case under appeal there was no adjudication in the Juvenile Court imposing confinement or restraint on the petitioner. Of course, had that court taken jurisdiction of the petitioner’s offense for final disposition and made an adjudication of commitment or confinement, it might be said that, under the test established in McKeiver, jeopardy would attach and a later prosecution of the juvenile as an adult in the criminal court would violate “fundamental fairness”. A number of cases have so held. But that was not the course of proceedings in the Juvenile Court in this case. The petitioner, after a hearing, was transferred to the Corporation Court and it was that latter Court which alone made an adjudication of petitioner’s guilt and imposed punishment on him. The question thus in this case is whether, applying the test established in McKeiver, a waiver hearing, with or without testimony, resulting in the transfer of the proceedings to the criminal court, falls within the jeopardy provision of the Fifth Amendment. In resolving this issue, it is necessary to mark out the place the waiver hearing occupies in the juvenile court system. Juvenile Courts were established to provide an informal, largely non-adversary type of proceeding, whereby offending juveniles, whose background warranted an assumption that they would respond to rehabilitation, could be rehabilitated without criminal taint. But in so doing the legislature recognized that there would be many cases where such assumption would not be justified. Accordingly, in the model juvenile act, it established “a dual system of justice for the juvenile” to deal with both types of juveniles. If the “particular acts of the child, in connection with a general pattern of behavior and environmental factors, warranted assumption of rehabilitory control by the State,” then the Juvenile Court retained jurisdiction and undertook to establish a form of commitment or treatment which would accomplish such rehabilitation. On the other hand, should the Juvenile Court conclude that rehabilitation was unlikely to be successful, it should waive jurisdiction in favor of trial of the juvenile in the criminal court. It was to make that determination that provision for waiver hearings was included in the legislation establishing the juvenile court system. The real issues in the waiver hearing do not involve the resolution of the juvenile’s guilt or innocenee. What the Juvenile Court is concerned with at this stage is “the amenability of the child to the rehabilitative measures available to the juvenile court, the necessity of safeguarding the public from the child, and the heinousness of the alleged offense.” “A finding of juvenile delinquency upon the basis of the conduct charged is neither required nor authorized” at a juvenile waiver hearing, which should be “limited to one appropriate to the preliminary nature of the question and the criteria for decision which the juvenile court is required to observe.” Actually, it has been stated that “in cases coming under the waiver statute the juvenile proceeding is comparable to a preliminary hearing since its purpose is to determine whether the person should be tried as an adult or put within the treatment of the juvenile court.” It is, of course, necessary for the Juvenile Court to have before it at the waiver hearing some information on the gravity and nature of the offense. It must engage in “an inquiry not only into the facts of the alleged offense but also into the question whether the par-ens patriae plan of procedure is desirable and proper in the particular case.” Indeed, without such information, the court would have difficulty in complying with the requirement of Kent that the transfer order incorporate “a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts.” (Italics added) Without some facts before it, the Juvenile Court could not pass intelligently on “the seriousness of the alleged offense”, whether it “was committed in an aggressive, violent, premeditated or willfull manner * * * against persons or against property,” as well as “the sophistication and maturity” of the juvenile or his “record and previous history.” All these circumstances were to be considered in authorizing a transfer as mandated in Kent. It is plain that the waiver hearing, with or without evidence, is a vital and integral procedural step in the processes of the juvenile court system. As such it is designed to achieve fairness both to the public and to the juvenile. To hold that it constituted jeopardy, and to apply to it the rules applicable to the criminal trial on the merits of an adult, would effectively undermine the juvenile court system and would be contrary to the spirit of McKeiver. There is no warrant in either Kent or Gault for any such conclusion. While' the Court in Kent did not explicitly hold that a waiver hearing with testimony on the factual issues it indicated were germane, (including the gravity of the offense) would not constitute jeopardy thereby preventing any trial of the juvenile on the basis of the transfer, it is inconceivable that the Court would have indicated that a hearing, conducted with proper regard for procedural due process and directed to the subjects indicated in its opinion, was proper if the result of having such a hearing would have been to make unconstitutional a trial subsequently in the criminal court on the basis of the transfer order. If such a waiver, instead of conferring jurisdiction on the Corporation Court, and instead of being a vital preliminary step in the proceedings, should be construed as creating a bar under the Fifth Amendment for subsequent trial of the juvenile in the Corporation Court, the transfer proceedings in effect would frustrate completely the very purpose and scope of the juvenile court system. It would mean either that no juvenile could ever be tried in the criminal courts as an adult, since a transfer proceeding would bar such trial on jeopardy grounds; or, that the entire juvenile court system would have to be abolished lest a few incorrigibles, guilty of serious crimes, escape punishment as adults. Such considerations prompted one Court to conclude that it is “not improper for the Juvenile Court to conduct a hearing before determining whether or not to waive jurisdiction. To hold that jeopardy attached at that point would preclude the full and informal investigation in the interests of the minor and the community which Congress thought necessary to achieve the salutary remedial purposes of a juvenile court system.” People v. Wilson (1972), 7 Ill.App.3d 158, 287 N.E.2d 211, is directly in point. There a juvenile was appealing from a sentence imposed by the criminal court after transfer from the juvenile division. He urged that his conviction was void since, in the waiver hearing, he had been put in constitutional jeopardy. Dismissing the claim, the Court said: “The hearing in the juvenile division was held for the purpose of effectuating a removal of the case to the criminal division pursuant to Ill.Rev. Stat.1969, ch. 37, par. 702-7(3). All testimony taken at that hearing was solely directed at that goal, thereby enabling the judge to make an intelligent decision in that regard. Thus, the hearing was not held to adjudicate defendant’s delinquency, but was to satisfy the juvenile court judge that the case should have been removed. Because the proceedings in the juvenile division were not ‘adjudicatory’ in nature, criminal proceedings were not barred.” (287 N.E.2d at 213) This distinction between the transfer or certification proceeding and an adjudicatory or dispositional proceeding in Juvenile Court, as stated in Wilson, accords with the Virginia practice. In Cradle v. Peyton, supra, the Court dealt with this distinction between the confinement order and the transfer order in juvenile courts in Virginia. A confinement order “imposes a sentence of confinement” and will, under the authorities already cited, constitute jeopardy. On the other hand, “a certification order transfers the case to another court for original determination whether the accused child shall be confined.” In such order, the Court makes “no finding of [Cradle’s] innocence or guilt, only a finding that he [the juvenile] should stand trial on the merits in another court.” We reach a similar conclusion in this case. After all, the waiver hearing, held, as the order of the Juvenile Judge in this very ease stated, in the nature of a “Grand Jury” hearing, was similar to a preliminary hearing in the criminal courts and no more amounts to jeopardy within the intendment of the Fifth Amendment than does a preliminary hearing in the criminal courts Nor do we find anything in Toth v. Quarles (1955) 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, cited by the petitioner, that would cause a contrary result. As a matter of fact, Toth seems to support the result reached here. In that ease, it was held that, after one had been discharged from the military service, he could not be tried by military court martial for any criminal offense committed while in the military service. But Justice Black specifically declared that the fact the discharged soldier was not amenable to military processes did not preclude his trial in the criminal courts for his offense. This is consistent with our conclusions here. Since the petitioner was over twenty-one, the Juvenile Court had no jurisdiction to deal with him but he was plainly amenable to trial in the criminal court as an adult for an offense committed by him while a juvenile. Affirmed. . The opinion of the District Court is reported at 819 F.Supp. 999. . Reported at 4th Cir., 467 F.2d 1255 (1972). . The able District Judge did not have the benefit of our opinion in Kemplen, filed some months after his decision. . “§ 16.1-176. Transfer to other courts; presentment to grand jury; children under fourteen excepted. — (a) If a child fourteen years of age or over is charged with an offense which, if committed by an adult, could be punishable by confinement in the penitentiary the court after an investigation as prescribed in paragraph (b) of this section, and hearing thereon may, in its discretion, retain jurisdiction or certify such child for proper criminal proceedings to the appropriate court of record having criminal jurisdiction of sucli offenses if committed by an adult; provided, however, that in the event the juvenile court does not so certify a child fourteen years of age or over, charged with an offense which, if committed by an adult, would be punishable by death or confinement in the penitentiary for life or a period of twenty years or more, the Commonwealth’s attorney of the city or county, if he deems it to the public interest, may present the case to the grand jury of the proper court of record, and provided further that if a child fourteen years of age or older who has previously been adjudged to come within the purview of the juvenile and domestic relations court law for committing an offense indicating a viciousness of character, or an offense which, if committed by an adult, could be punishable by confinement in the penitentiary and is subsequently charged with committing a felony, the Commonwealth’s attorney of the city or county, if he deems it to be in the public interest, may, after a preliminary hearing in the juvenile and domestic relations court, present the case to the grand jury of the proper court of record. It shall be the duty of the Commonwealth’s attorney to notify the juvenile and domestic relations court within three days after final adjudication if he deems action by the court of record necessary. Thereafter, the decision as to whether or not to present the case to the grand jury shall be in the sole discretion of the juvenile and domestic relations court. If the grand jury returns a true bill upon such indictment the jurisdiction of the juvenile court as to such case shall terminate.... The ages specified in this section refer to the age of the child or minor at the time of the alleged commission of the offense. “(b) In all cases under this section the court may, unless such information is otherwise available to it from a prior investigation and report to another court, require an investigation of the physical, mental and social condition and personality of the child or minor and the facts and circumstances surrounding the violation of the law which is the cause of his being before the court. Such investigation need not include an examination of the child or minor by a physician or psychiatrist unless the court, in its discretion, so directs. If the court requiring the investigation is a juvenile court, such investigation may be made by the agency providing probation service under § 16.1-205;....” . See, Peyton v. French (1966), 207 Va. 73, 147 S.E.2d 739; Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. . It is interesting that this claim, when found to be of merit, has resulted in conflicting results from two Circuits. In one, it induced the Court to conclude that Kent was not to be given retroactive application. Mordecai v. United States (1969), 137 U.S.App.D.C. 198, 421 F.2d 1133, 1137. The other recognized that under some circumstances the claim would warrant release. Wilson v. Reagan (9th Cir. 1965), 354 F.2d 45, 46; cf., Powell v. Hocker (9th Cir. 1971), 453 F.2d 652, 657, n. 10; James v. Cox (D.C. Va.1971), 323 F.Supp. 15, 24; Miller v. Quatsoe (D.C.Wis.1971), 332 F.Supp. 1269, 1276-1277. . See, Ferguson v. Slayton (D.C.Va.1972), 340 F.Supp. 276, 277. . This conclusion was recently restated in Jones v. Commonwealth (1972), 213 Va. 425, 192 S.E.2d 775, 777. . Cf., Black v. United States (1965), 122 U.S.App.D.C. 393, 355 F.2d 104, 107; In Re Ingram, 15 Md.App. 356, 291 A.2d 78. . See Kent v. United States, supra, 383 U.S. at 564, 86 S.Ct. at 1059: “However petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him.” (Italics added) To same effect: Hight v. Texas (Tex. 1972), 483 S.W.2d 256, 257. The commentator in 29 U. of Pitts.L. Rev. 756, 765 (1968) states it thus: “Just as it is inequitable to try a juvenile twice for essentially the same offense in order that confinement may continue after the child is of age, so it is equally unjust to have one who may have committed a heinous crime to go free merely because he has reached the age of 21 and juvenile jurisdiction has terminated.” . See D’Urbano v. Commonwealth (1963) 345 Mass. 466, 187 N.E.24 831, 836-837, where the Court stated the reasoning behind the rule that a guilty petitioner in habeas has no right “to escape for punishment at the price of the loss of the public right” that the guilty shall be punished. . Kemplen, supra, 428 F.2d at 178. See, also, Woodall v. Pettibone (4th Cir. 1972), 465 F.2d 49, 53. . See, 428 F.2d at 178. . In Watts v. Commonwealth (1972), 213 Va. 57, 58, 189 S.E.2d 346, 347, the Court stated that under the Virginia statute, the Juvenile Court, when considering the situation of a prior juvenile offender, is “under a duty to certify the case to the court of record for proper criminal proceedings, in the absence of a finding that it would be in the public interest to dispose of the matter in the Juvenile and Domestic Relations Court.” . The petitioner’s crime was described by the District Court thus: “On August 10, 1963, petitioner was 17 years of age. Accompanied by his 14 year old girl friend, they planned to rob a bus driver on the evening in question. The girl hoarded the hus and petitioner followed. Petitioner concealed a hatchet in a paper bag and, when reaching in his poclcet as if to pay his fare, proceeded to hit the bus driver with the hatchet, thus rendering permanent brain damage and making him incapable of performing any work for the balance of his life.” (467 F.2d at 1256, n. 2) . Under a respectable line of authority, of- which Smith v. Yeager (3d Cir. 1972), 459 F.2d 124, 126-127, is representative this guilty idea, entered after adequate legal advice, would have been deemed a waiver of any infirmity in the transfer proceedings. See, also, Wilhite v. United States (1960) 108 U.S.App.D.C. 279, 281 F.2d 642, 644 (opinion by then Circuit Judge Burger). Such a holding, had it been adopted by the Virginia Courts, would have validated the first conviction of the petitioner. Cf., also, Brooks v. Boles (1967) 151 W.Va. 576, 153 S.E.2d 526 and Broadway v. Beto (D.C.Tex. 1971) 338 F.Supp. 827, approved 459 F.2d 483. The Virginia Court, however, found the entire proceeding, including the guilty plea, a nullity. . It does not appear from the record that this claim was raised in the District Court. It would not be improper to dismiss the claim on account of such failure to raise it below. That, however, would merely require further litigation. For that reason, we have determined to resolve the claim in this proceeding. . United States v. Ball (1896), 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300. . United States v. Tateo (1964), 377 U. S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448. . Note, Double Jeopardy in Juvenile Justice, 1971 Wash.U.L.Q. 702. . This case is commented on favorably in a Note in 5 Howard L.J. 246 (1959), but in a similar Note in 43 Minn.L.Rev. 1253 at 1257 (1959), the commentator added this warning observation: “A problem created by the conclusion that double jeopardy applies to juvenile proceedings is that the necessity of deciding whether to waive jurisdiction to the criminal court before the question of guilt is determined may hinder the desirable procedure of the juvenile correctional system.” Of course, these comments, as well as Dickerson itself preceded McKeiver, discussed later, and their conclusions have been substantially undermined by that decision. Note, Double Jeopardy in Juvenile Justice, supra, at 703, (1971 Wash. U.L.Q.) . In Re Gault (1967), 387 U.S. 1 at 31-57, 87 S.Ct. 1428, 18 L.Ed.2d 527. . In Re Winship (1970), 397 U.S. 358 at 359, 90 S.Ct. 1068, 25 L.Ed.2d 368. . “We do not mean by this to indicate that the hearing to be held [in juvenile court] must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” (383 U.S. at 562, 86 S.Ct. at 1057) . Winship, supra, 397 U.S. at 359, n. 1, 90 S.Ct. at 1070. .'See, 397 U.S. at 366-367, 90 S.Ct. at 1074. . See, 397 U.S. at 375, 90 S.Ct. at 1078. . See, 403 U.S. at 533 and 541, 91 S.Ct. at 1980 and 1984. Por a discussion of the unique constitutional status of juvenile courts, as reflected by the decisions in Gault, Kent, Winship and McKeiver, see, Note, Parens Patriae and Statutory Vagueness in the Juvenile Court, 82 Yale L.J. 745 at 748-54 (1973). . See, 403 U.S. at 547 and 550-551, 91 S.Ct. 1976.

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?

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

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

In re GRAND JURY PROCEEDING. No. 87-8041. United States Court of Appeals, Eleventh Circuit. March 31, 1988. William A. Cohan, Darold W. Killmer, Carl E. Stahl, Jennifer A. Greene, Cohan & Greene, P.C., Denver, Colo., Nicholas A. Lotito, Fierer & Westby, Atlanta, Ga., for appellant. James E. Fagan, Jr., Asst. U.S. Atty., Atlanta, Ga., for appellee. Before FAY and KRAVITCH, Circuit Judges, and ATKINS , Senior District Judge. Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation. KRAVITCH, Circuit Judge: William and Carolyn Bicket, the National Commodity and Barter Association (NCBA), and the National Commodity Exchange (NCE) appeal from the district court’s denial of their motion to quash a grand jury subpoena duces tecum issued to Les Roberts of Roberts & Roberts Brokerage, Inc. Because we conclude that neither the first nor the fourth amendment required the district court to quash the subpoena, we affirm. I. NCBA is an association dedicated to limited government, privacy in personal and financial affairs, and the protection of private property. NCBA advocates home education of children, the abolition of the Internal Revenue Service, and a return to the gold standard. It disputes the constitutionality of the Federal Reserve System and many of the federal administrative agencies. NCBA publishes books and newsletters alerting its members to the dangers posed by environmental pollution, unsound currency, and the growth of the federal government. NCBA also provides its members with various financial services. For example, members can participate in a plan under which NCBA pays legal expenses for IRS audits and criminal tax prosecutions. Most importantly for purposes of this appeal, NCBA operates, through its wing NCE, a service through which members can purchase precious metals and pay bills with a minimum of recordkeeping. Under this plan, appellant William Bicket, the Atlanta area representative of NCBA, receives checks from members to be deposited in an “account” created for them by NCBA. Bicket collects the checks and forwards them to NCBA with forms in the nature of deposit slips. NCBA then disburses funds according to its members’ instructions, without any indication that the disbursements are paid from any particular member’s account. Because its members have an aversion to paper currency, NCBA also arranges for their purchase of precious metals. Although NCBA usually writes checks for the commodities from the accounts that it operates for its members, in the transactions directly involved here, Bicket deviated from the customary plan. Bicket sent letters and checks bearing the members’ names directly to Roberts & Roberts Brokerage, Inc., of Pensacola, Florida and instructed that brokerage firm to ship gold and silver directly to NCBA members. Roberts & Roberts thus holds records that identify the names and addresses of NCBA members. The financial system operated by NCBA obviously provides significant opportunities for the evasion of federal tax laws, especially requirements for the reporting of taxable income. On September 15, 1986, a federal grand jury investigating possible criminal violations of the tax laws issued a subpoena duces tecum to Les Roberts, of Roberts & Roberts Brokerage, commanding the production of all records from January 1, 1983 to September 16, 1986 relating to NCBA, NCE, the Bickets, nine other individuals, and a trust. The Bickets, NCBA, and NCE moved in the district court to have the subpoena quashed, arguing that compliance would violate their first amendment right to freedom of expressive association. The movants also argued that the subpoena should be quashed as the fruit of an illegal search and seizure of NCBA’s offices in Colorado. The district court denied the motion to quash, 650 F.Supp. 159, and this appeal followed. II. We consider first the appellants' fourth amendment argument. According to appellants, the district court should have quashed the subpoena because it was the “fruit of the poisonous tree.” In this case, the poisonous tree is a search and seizure at NCBA’s Colorado offices that was held unconstitutional by the Tenth Circuit. See Voss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985). NCBA argues that the grand jury subpoena derives from information obtained in that search. NCBA relies heavily on the venerable case of Silverthome Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). In Silverthome Lumber, the Supreme Court held that the government could not obtain by subpoena documents which federal marshals had previously seized in violation of the fourth amendment and which the district court had ordered returned to the owners. The Court rejected the government’s argument that the fourth amendment prevented the government only from retaining physical possession over the documents, and not from using the information obtained in that search to its advantage. See id. at 391, 40 S.Ct. at 182. The Supreme Court reexamined Silverthorne Lumber in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Calandra sought to resist a grand jury subpoena requiring him to answer questions based on an allegedly unconstitutional search of his place of business. The Supreme Court rejected Calan-dra’s argument that the exclusionary rule of the fourth amendment should be applied to grand jury proceedings. According to the Court, because of the special nature of grand jury proceedings, the grand jury “has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial.” Id. at 349, 94 S.Ct. at 620. The Court assigned great weight to the “effective and expeditious discharge of the grand jury’s duties,” id. at 350, 94 S.Ct. at 621, and concluded that the suppression hearings required by the application of the exclusionary rule to grand jury proceedings would unduly impede and delay the grand jury’s function. Id. at 349-50, 94 S.Ct. at 621. The Court further noted that the issues raised in suppression hearings had been usually “reserved for trial on the merits,” id. at 349, 94 S.Ct. at 621, and that grand jury use of the fruits of an illegal search would not necessarily prevent a criminal defendant actually under indictment from obtaining the suppression of those fruits at trial. Id. at 351, 94 S.Ct. at 621. The Calandra Court considered the application of Silverthome Lumber in a lengthy footnote. Id. at 352 n. 8, 94 S.Ct. at 622 n. 8. The Court first noted that Silverthome Lumber involved defendants who had already been indicted by the grand jury and thus could invoke the exclusionary rule based on their status as criminal defendants. Apparently, the government in Silverthome Lumber sought to subpoena the documents not to present to the grand jury for use in its accusatorial function, but for use at trial. Id. Second, at the time the government issued its subpoena to the Silverthome Lumber Company, the district court already had determined that the search and seizure were illegal. Id. Delay of grand jury proceedings by a lengthy suppression hearing thus was unlikely in Silverthome Lumber, whereas in Calan-dra the constitutionality of the search and seizure had not been adjudicated before the issuance of the subpoena. In this case, unlike Calandra, a court already has determined that the “tree” was “poisonous.” See Voss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985). Even assuming, without deciding, that this determination by the Tenth Circuit is binding on the parties under the principle of issue preclusion, rendering unnecessary further litigation on the constitutionality of the Colorado search, the logic of Calandra still precludes application of the exclusionary rule. The legality of a search is not the only issue that must be considered at a suppression hearing. The district court still would have to hear and weigh evidence on whether the information underlying the subpoena was actually the fruit of the illegal search, and whether the government had obtained or would have obtained that information from an independent source. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Silverthorne Lumber, 251 U.S. at 392, 40 S.Ct. at 183. Moreover, delay is not the only factor counseling against application of the exclusionary rule to grand jury proceedings. In Calandra, the Supreme Court made clear that “the [exclusionary] rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment.” 414 U.S. at 347, 94 S.Ct. at 619-20. The application of the exclusionary rule to grand jury proceedings advances that goal only minimally, at best. Because defendants may invoke the exclusionary rule at trial, any extension of the exclusionary rule would deter “only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation.” Id. at 351, 94 S.Ct. at 621. Such minimal benefit is clearly outweighed by the cost of depriving the grand jury of relevant evidence. We therefore see no reason to deviate from the principles established in Calandra. Because we conclude that the district court could not invoke the exclusionary rule to quash the subpoena on fourth amendment grounds, we need not consider the district court’s conclusion that the government would have obtained the information underlying the subpoena from independent sources. III. Appellants argue that enforcement of the subpoena issued to Roberts would violate their freedom of expressive association. Although we ultimately conclude that the first amendment does not bar enforcement of the subpoena, we must address what the first amendment requires the government to demonstrate in cases such as this one. A. In NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), a unanimous Supreme Court first gave full expression to the right now recognized as freedom of “expressive association.” Alabama had brought suit against the NAACP, seeking its expulsion from the state for failure to comply with a statute requiring the registration of all foreign corporations transacting intrastate business. Alabama moved for production of documents that would disclose the names and addresses of all Alabama members and agents of the NAACP, arguing that it needed the information to prepare for an evidentiary hearing. The NAACP refused to comply with the production order and was adjudged in civil contempt by a state court. The United States Supreme Court reversed. The Court first concluded that “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment.” Id. at 460, 78 S.Ct. at 1171. The Court stated further that the NAACP members’ freedom of association necessarily entailed the right to privacy in their association, for “[ijnviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” Id. at 462, 78 S.Ct. at 1172. It was irrelevant that Alabama had not sought to restrict free association directly, because “abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action.” Id. at 461, 78 S.Ct. at 1171. NAACP v. Alabama suggested that when the compelled disclosure of affiliation with groups engaged in advocacy would impair the exercise of freedom of association, such disclosure could be ordered only if the government demonstrated that the requested information had a “substantial bearing” on a compelling governmental interest. Id. at 464, 78 S.Ct. at 1173. Further cases refined this test. In Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), a challenge to a state statute requiring public school teachers to reveal all organizations to which they had belonged within the past five years, the Supreme Court reexamined NAACP v. Alabama and concluded that in the NAACP case “there was no substantially relevant correlation between the governmental interest asserted and the State’s effort to compel disclosure of the membership lists involved.” 364 U.S. at 485, 81 S.Ct. at 250 (emphasis added). Finally, in Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963), the Court stated the test as follows: [R]egardless of the label applied, be it “nexus,” “foundation,” or whatever ... it is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest. Gibson, 372 U.S. at 546, 83 S.Ct. at 893-94. The government argues, however, that appellants may not invoke the protection of NAACP v. Alabama and its progeny because the records that would reveal NCBA’s membership are held by Roberts, not NCBA or its members. In so arguing, the government urges us to adopt the reasoning advanced by Judge Wilkey in Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co., 593 F.2d 1030, 1053-60 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979), that the first amendment affords no “extra margin of privacy” by imposing substantive or procedural restrictions on good faith criminal investigations beyond the limits imposed by the fourth and fifth amendments. See id. at 1054. That portion of Judge Wilkey’s opinion was not joined by any other judge of the D.C. Circuit, and to our knowledge the holding that it proposed has never been adopted by the Supreme Court or any of the federal courts of appeals. See, e.g., In re Grand Jury Subpoena to First National Bank, 701 F.2d 115, 116-17 (10th Cir.1983) (specifically rejecting position advanced here by government); Local 1814, International Longshoreman’s Association v. Waterfront Commission, 667 F.2d 267, 271 (2d Cir.1981) (same); see also United States v. Trader’s State Bank, 695 F.2d 1132 (9th Cir.1983) (per curiam); United States v. Citizens State Bank, 612 F.2d 1091 (8th Cir.1980). The proposal is also in considerable tension with Pollard v. Roberts, 283 F.Supp. 248 (E.D.Ark.), aff'd mem., 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968). In Pollard, a three-judge district court, including then-Circuit Judge Blackmun, concluded that the enforcement of a subpoena duces tecum directed to the First National Bank of Little Rock, requiring the production of records that would identify contributors to the Arkansas Republican Party, would violate the contributors’ and the Party’s freedom of association. The Pollard court found no showing that the identities of the contributors was relevant to the state’s unquestionably legitimate interest in preventing vote buying. Id. at 257. The Supreme Court summarily affirmed the judgment of the three-judge district court. Roberts v. Pollard, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (per curiam). Whatever may be the difficulties in interpreting the precise import of a summary affirmance by the Supreme Court, cf. Hardwick v. Bowers, 760 F.2d 1202 (11th Cir.1985), rev’d, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), without doubt a summary affirmance is a judgment on the merits, preventing “lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam). Most importantly, “[s]ummary actions ... should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.” Id. (emphasis added). The summary affirmance of Pollard v. Roberts applied the principles of NAACP v. Alabama to the facts of the case, including the fact that the relevant records were held by the bank, not the party or its contributors. We must conclude, therefore, that appellants can invoke the protection of the first amendment freedom of association to challenge the subpoena directed to Roberts. The Supreme Court would hardly have affirmed Pollard if the first amendment offers no greater protection of privacy than the fourth and fifth amendments. By the time of the Pollard decision, the law — at least arguably — already was established that an individual has no claim under the fourth amendment to resist the production of business records held by a third party. See United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976) (“general rule” is that issuance of subpoena to third party to obtain the records of that party does not violate the rights of a defendant, even if criminal prosecution is contemplated when subpoena is issued; these principles were settled before passage of Bank Secrecy Act of 1970). B. Having determined the law that governs this area, we turn to its application to this appeal. Initially we must consider whether the appellants are engaged in the type of “expressive association” entitled to the protection of the first amendment. The government argues that NCBA engages in no protected activity at all but merely provides its members with banking services designed to leave no record of the financial transactions. Appellants contend that NCBA engages in political activity of the sort implicating the core principles of the first amendment. Indeed, the record reflects that NCBA publishes literature and sponsors seminars designed to alert the public to the dangers of the purportedly unconstitutional income tax and Federal Reserve System. At the very least, NCBA exists both to promote its members’ political opinions and to provide the members with financial services not warranting the protection of the first amendment. The case law provides little specific guidance as to the level of protection afforded such organizations with dual or multiple purposes. The cases have usually involved either those organizations whose very heart and soul are protected political activity, see, e.g., Tashjian v. Republican Party, — U.S. —, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), or, at the other end of the spectrum, organizations and individuals whose “association” furthers little, if any, expressive activity. See, e.g., IDK, Inc. v. County of Clark, 836 F.2d 1185 (9th Cir.1988) (escort services); Rivers v. Campbell, 791 F.2d 837 (11th Cir.1986) (per curiam) (vendor of sno-cones to schoolchildren). Yet many organizations promote both political activity and the economic well-being of its members. Labor unions frequently serve both functions. See, e.g., Abood v. Detroit Board of Education, 431 U.S. 209, 222, 235-36, 97 S.Ct. 1782, 1792, 1799-1800, 52 L.Ed.2d 261 (1977). So do law firms, see Hishon v. King & Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2235, 81 L.Ed.2d 59 (1984); NAACP v. Button, 371 U.S. 415, 429-30, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963); clubs, see Roberts v. United States Jaycees, 468 U.S. 609, 612-14, 104 S.Ct. 3244, 3246-48, 82 L.Ed.2d 462 (1984); New York State Club Association v. City of New York, 69 N.Y.2d 211, 513 N.Y.S.2d 349, 505 N.E.2d 915, prob. juris, noted, — U.S. —, 108 S.Ct. 62, 98 L.Ed.2d 26 (1987); and churches. Governmental regulation of the unprotected activities of these groups may well impinge on the protected activities. Revealing the names of the persons who participated in NCBA’s commercial activities, for example, could also reveal the names of adherents to NCBA’s ideology. A review of the Supreme Court’s opinion in Roberts v. United States Jaycees convinces us that the approach actually taken by the Court in that case was one that can be applied to every organization: The Court simply considered the effect of the challenged state action on the Jaycees’ freedom of expressive association. See United States Jaycees, 468 U.S. at 618, 104 S.Ct. at 3249; see also Board of Directors v. Rotary Club, — U.S. —, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987) (following “the same course” as in United States Jaycees). The Supreme Court recognized that the Jaycees promoted both protected and unprotected activities. The Court noted that the Jaycees “have taken public positions on a number of diverse issues,” and that members “regularly engage in a variety of civic, charitable, lobbying, fund-raising and other activities worthy of constitutional protection under the First Amendment.” 468 U.S. at 626-27, 104 S.Ct. at 3254. On the other hand, the Jaycees undeniably engaged in commercial activity, such as developing “program kits” to enhance members’ management skills. Id. at 614, 104 S.Ct. at 3247. This significant amount of commercial activity did not alter the standard of review applicable to the Jaycees’ challenge, although it did make the application of the challenged state law less likely to be disruptive of any political message that the Jaycees might have promoted. C. In applying the test implicit in United States Jaycees to NCBA, we encounter one further difficulty: It is unclear from the case law precisely what factual showing, if any, NCBA must make to establish that its freedom of association would be impinged by enforcement of the subpoena. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), the Supreme Court rejected the appellants’ argument that the disclosure requirements of the Federal Election Campaign Act was unconstitutional as applied to minor parties. The Buckley Court noted that in NAACP v. Alabama, the petitioners had made a showing that previous disclosure of the identity of its members had exposed those members to actual and threatened reprisal. Buckley, 424 U.S. at 69, 96 S.Ct. at 658. In Buckley, however, the Supreme Court found that kind of showing to be absent. “[N]o appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants primarily rely on ‘the clearly articulated fears of individuals, well experienced in the political process.’ ... At best they offer the testimony of several minor-party officials that one or two persons refused to make contributions because of the possibility of disclosure.” Buckley, 424 U.S. at 71-72, 96 S.Ct. at 660 (quoting appellants’ brief). This passage suggests that a merely subjective fear of future reprisal is insufficient to establish a restraint on freedom of association. The Supreme Court recognized the difficulties of formally proving the evils of chill and harassment, however, and accordingly required only that minor parties show “a reasonable probability that the compelled disclosure ... will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Id. at 74, 96 S.Ct. at 661; cf. Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982) (concluding that Socialist Workers Party had made this showing). Another passage of Buckley, however, suggests that the “reasonable probability” test is not applicable to appellants. In footnote 83, the Supreme Court stated, “Nor is this a case comparable to Pollard v. Roberts ..., in which an Arkansas prosecuting attorney sought to obtain, by a subpoena duces tecum, the records of a checking account (including the names of individual contributors) established by a specific party, the Republican Party of Arkansas.” Buckley, 424 U.S. at 69 n. 83, 96 S.Ct. at 659 n. 83. Indeed, in Pollard, the three-judge district court admitted that “there is no evidence of record in this case that any individuals have as yet been subjected to reprisals on account of the contributions in question,” 283 F.Supp. at 258, but added, “it would be naive not to recognize that the disclosure of the identities of contributors to campaign funds would subject at least some of them to potential economic or political reprisals of greater or lesser severity.” Id. Buckley and Pollard thus suggest that when a government investigation into possible violations of law has already focused on a particular political group or groups, the showing required to establish an infringement of freedom of association is more lenient than the Buckley standard. This more lenient requirement could be justified on the rationale that the government investigation itself may indicate the possibility of harassment. In the instant case, we need not decide the precise evidentiary standard applicable to NCBA’s motion to quash. Even assuming arguendo that NCBA can demonstrate an infringement of its freedom of association, the government nonetheless has established a justification for this infringement. “The right to associate for expressive purposes is not ... absolute.” Roberts v. United States Jaycees, 468 U.S. at 623, 104 S.Ct. at 3252. “[Tjhere are governmental interests sufficiently important to outweigh the possibility of infringement-” Buckley v. Valeo, 424 U.S. at 66, 96 S.Ct. at 657. As explained above, the government may take action that would infringe upon the freedom of association when it can demonstrate a “substantial relation” to a compelling interest. See Buckley v. Valeo, 424 U.S. at 64, 96 S.Ct. at 656; Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 546, 83 S.Ct. at 893. There is no doubt that this case implicates a compelling governmental interest. The government is investigating possible criminal violations of the tax laws and suggests that individuals may be using the structure of NCBA’s financial system to evade requirements for reporting taxable income. A good-faith criminal investigation into possible evasion of reporting requirements through the use of a private banking system that keeps no records is a compelling interest. “No power is more basic to the ultimate purpose and function of government than is the power to tax.” Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480 (1960). We consider, finally, whether the government has established a “substantial relation” between the information sought and the compelling interest. We have examined the records under seal forwarded to us from the district court, and we conclude that the government has made this showing. Accordingly, the order of the district court denying appellants’ motion to quash is AFFIRMED. . See generally United States v. Stauffer Chemical Co., 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984); Note, Intercircuit Conflicts and the Enforcement of Extracircuit Judgments, 95 Yale L.J. 1500 (1986). . See Board of Directors v. Rotary Club, — U.S. —, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987). A plurality of the Court had advanced the concept of freedom of association in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957); see also De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). . In NAACP v. Alabama, the Supreme Court concluded that the NAACP’s membership lists did not have a substantial bearing on Alabama’s asserted interest of registering foreign corporations transacting intrastate business. The Supreme Court could discern no nexus between the state interest and the list of NAACP’s members, as opposed to the names of its chief officers, or information about its business address. . The Tenth Circuit has concluded that NCBA engages in protected activity. In re Grand Jury Subpoena to First National Bank, 701 F.2d 115 (10th Cir.1983). . In her concurring opinion in Roberts v. United States Jaycees, Justice O’Connor suggested that "an association should be characterized as commercial, and therefore subject to rationally related state regulation of its membership and other associational activities, when, and only when, the association’s activities are not predominantly of the type protected by the First Amendment. It is only when the association is predominantly engaged in protected expression that state regulation of its membership will necessarily affect, change, dilute, or silence one collective voice that would otherwise be heard.’’ United States Jaycees, 468 U.S. at 635-36, 104 S.Ct. at 3259 (emphasis added). Justice O’Con-nor’s approach would require us to decide as a threshold matter whether NCBA was "predominantly" engaged in commercial activities. This concurring opinion was not joined by any other member of the Court, however, and the approach has been rejected by one other court of appeals. See Trade Waste Management Association, Inc. v. Hughey, 780 F.2d 221, 238 (3d Cir.1985). . Similarly, in In re Grand Jury Subpoena to First National Bank, 701 F.2d 115 (10th Cir.1983), the Tenth Circuit held that NCBA had made a sufficient showing of a possible first amendment violation largely because of the "readily apparent” chilling effect of a grand jury subpoena. Id. at 118. The Tenth Circuit’s opinion does not reveal whether NCBA had made a showing of past or present harassment. The opinion states that "petitioner's affidavits have made a sufficient showing of a potential First Amendment violation to warrant an evidentiary hearing," id., without indicating what those affidavits contained. . In Pollard, the prosecuting attorney sought the checking account records for an investigation into suspected "vote buying" on behalf of Republican candidates in violation of Arkansas election laws. 283 F.Supp. at 252.

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

In re Tom RUBIN, dba Tom Rubin & Associates, Debtor. Tom RUBIN, dba Tom Rubin & Associates, Appellant, v. BELO BROADCASTING CORPORATION, dba WFAA TV; Cox Broadcasting Corporation, dba WSB TV; WIIC TV, Inc., a wholly-owned subsidiary of Cox Broadcasting Corporation; King Broadcasting Company, dba King AM; Miami Broadcasting Corporation, dba KTVU; Gaylord Broadcasting, dba KSTW; Fisher Broadcasting, Inc., dba Komo TV; Hubbard Broadcasting, Inc., dba KSTP; Teleco Indiana, Inc., dba WTTV Television; Gaylord Broadcasting Company of Ohio, dba WUAB TV, Appellees. No. 84-5675. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 1985. Decided Aug. 22, 1985. Gary E. Klausner, Herbert Wolas, Robinson, Wolas & Diamant, Kenneth N. Klee, Stutman, Treister & Glatt, Los Angeles, Cal., for appellant. Daniel Slate, Gendel, Raskoff, Shapiro & Quittner, Los Angeles, Cal., for appellees. Before GOODWIN, FLETCHER, and PREGERSON, Circuit Judges. FLETCHER, Circuit Judge: Rubin appeals the bankruptcy court’s dismissal of his answer to a petition for involuntary bankruptcy as a sanction for his conduct during discovery. We reverse. I. BACKGROUND Tom Rubin operates a media consulting firm and advertising agency under the name of Tom Rubin & Associates. On February 19, 1981, several broadcasting companies (“Creditors”) filed a petition for involuntary bankruptcy against Rubin, alleging that he generally was not paying his debts as they came due. See 11 U.S.C. § 303 (1982) (amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, §§ 426, 427, 98 Stat. 333, 369). Rubin timely answered the petition and denied Creditors’ allegations. The discovery process in this case began after Rubin answered the petition, when he filed a motion to dismiss and noticed depositions of twenty-one of Creditors’ corporate officers, to commence immediately and to continue for the next four weeks in seven cities across the United States. After the first deponent did not appear as scheduled, the court granted Rubin’s motion for sanctions against Creditors. Creditors also began their own discovery shortly after Rubin answered the involuntary petition. They noticed depositions of Tom Rubin and of Rubin’s custodian of records, and they requested Rubin to produce his accounts payable records at the custodian’s deposition. Rubin’s counsel twice postponed the depositions. The court granted Creditors’ motion to compel but reserved their request for sanctions. The custodian of records appeared as ordered on May 1 and produced thirty-three boxes of documents. Creditors claimed the documents were disorganized and nonsensical. In June and July, Creditors served on Rubin two sets of interrogatories. While Rubin failed to answer either set on time, he eventually did answer the first set two days before a sanctions motion was to be heard, and the second set fifteen days after the date set in a court order. Creditors moved to compel further answers but eventually withdrew the motion. In October, the court ordered Rubin to prepare and file a schedule of disputed claims by October 28. When Rubin did not comply, the court set a new due date of November 10. Rubin filed the schedule on November 25. The court found Rubin’s schedule insufficient and ordered him to respond more precisely by February 2, 1982. Rubin timely filed a supplement, which Creditors contend was still insufficient. Creditors also sought to depose Rubin’s custodian of records for a second time. After Rubin’s counsel twice postponed the deposition, the court granted Creditors’ motion to compel, and Creditors noticed the deposition for February 1982. In February, Rubin’s counsel again attempted to postpone the scheduled date, and Creditors moved to direct Rubin to make his offices available for the deposition on March 3-5, 1982. The court granted the motion, but Rubin did not comply. Instead, he filed a motion for reconsideration of the court’s order. The court denied Rubin’s motion and ordered the deposition to go forward at Rubin’s offices on April 21-23. The deposition took place as ordered on April 21 and was scheduled to continue the next day. That day, one of Rubin’s counsel was delayed due to a court appearance. Creditors’ counsel left after waiting twenty minutes, and refused to reconvene the deposition. The discovery process as a whole was extensive, and included, in addition to the matters set forth above, depositions on written questions from Rubin of forty-three radio and television stations across the country, and several ancillary proceedings in other courts to compel document production from many of these stations. In all, Creditors conducted fifteen depositions of Rubin’s accountants, employees, and customers. They deposed Tom Rubin himself in five separate sessions. On May 10, 1982, the court called a status conference to consider the parties’ readiness for trial. At the outset of the conference, although no motions for sanctions or to compel discovery were outstanding, the court invited argument concerning whether it should impose sanctions against Rubin for his conduct during discovery. It then set the matter over until May 27, to allow Creditors to prepare and file a formal motion for sanctions. After the May 27 hearing, the court entered an order, striking Rubin’s answer and entering an order for relief as a sanction under Fed.R.Civ.P. 37. Rubin appealed to the Bankruptcy Appellate Panel (“BAP”), which affirmed the bankruptcy court’s order. 37 B.R. 232 (9th Cir.1984). II. DISCUSSION A. Jurisdiction Rubin contends the bankruptcy court had no jurisdiction over this case in light of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (“Bankruptcy Amendments”). Rubin contends the Bankruptcy Amendments add a new jurisdictional requirement in involuntary proceedings, that the claims of petitioning creditors not be subject to bona fide disputes. He asserts that the amendments apply to pending cases and therefore are applicable here. Since the bankruptcy court in this case has not determined that Creditors’ claims were not subject to bona fide disputes, he would have us remand to the bankruptcy court to permit it to make a determination of its jurisdiction. Absent manifest injustice or congressional intent to the contrary, we generally apply the law as it exists when we render our decision. Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); In re Reynolds, 726 F.2d 1420, 1422 (9th Cir. 1984). This rule applies to changes in the law that affect jurisdiction. See, e.g., Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 608 n. 6, 98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570 (1978); Carlton v. Baum, Inc., 751 F.2d 781, 787 & n. 6 (5th Cir.1985). However, we conclude that with regard to section 303 the Bankruptcy Amendments do not impose jurisdictional requirements. Subject matter jurisdiction deals with a court’s competence to hear and determine cases of the general class to which the proceedings in question belong and the power to deal with the general subject involved in the action. In re Earl’s Tire Service, Inc., 6 B.R. 1019, 1022 (D.Del. 1980). The bankruptcy court in the instant case was vested with this general power under 28 U.S.C. § 1471 (superseded by the Bankruptcy Amendments, Pub.L. No. 98-353, § 104(a), 98 Stat. 333, 340-41 (to be codified at 28 U.S.C. § 157)). Section 1471 authorized the bankruptcy court to “exercise jurisdiction of all cases under title 11,” and vested in them “exclusive jurisdiction of all the property” of debtors in such cases. Id. We conclude that the undisputed claims requirement of the Bankruptcy Amendments is not jurisdictional. Rather, it goes to the merits — an element that must be established to sustain an involuntary proceeding. Petitioning creditors cannot prevail unless they show that their claims are not subject to bona fide disputes, but the bankruptcy court is not without jurisdiction prior to this determination. The bankruptcy court had subject matter jurisdiction in this case under 28 U.S.C. § 1471. The bankruptcy court’s order striking Rubin’s answer and entering an order for relief was a final decision. In re Mason, 709 F.2d 1313, 1315 (9th Cir. 1983). The BAP’s affirmance was a final decision for our purposes. In re Sambo’s Restaurants, Inc., 754 F.2d 811, 814-15 (9th Cir.1985). Accordingly, we have jurisdiction under section 104(a) of the Bankruptcy Amendments, Pub.L. No. 98-353, § 104(a), 98 Stat. 333, 341 (to be codified at 28 U.S.C. § 158), and we reject Rubin’s jurisdictional challenge. B. Propriety of Sanctions We review a trial court’s imposition of sanctions for an abuse of discretion. Professional Seminar Consultants, Inc. v. Sino American Technology Exchange Council, Inc., 727 F.2d 1470, 1473 (9th Cir.1984); United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d 1365, 1369 (9th Cir.1980). The question is not whether this court would as an original matter impose the sanctions chosen by the trial court, but whether the trial court exceeded the limits of its discretion. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976); In re Visioneering Construction, 661 F.2d at 123. Rule 37 sanctions must be just and must be specifically related to the particular “claim” that was at issue in the order to provide discovery. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. at 707, 102 S.Ct. at 2106; Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1340-41, 1342 (9th Cir. 1985); Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 591 (9th Cir.1983). To determine whether a sanction is “just,” we examine whether the trial court considered the relevant factors and whether the severity of the sanction is warranted by the conduct involved. We conclude that the bankruptcy court abused its discretion in this case. Our conclusion rests on a combination of factors, including the severity of the sanction, the absence of any clear warning to Rubin, the apparent adequacy of alternative sanctions, and the absence of prejudice to Creditors. 1. Notice and Warning The bankruptcy court struck Rubin’s answer under Rule 37(b) of the Federal Rules of Civil Procedure, a rule applicable only to cases in which a party has disobeyed a court order. Fremont Energy Corp. v. Seattle Post Intelligencer, 688 F.2d 1285, 1287 (9th Cir.1982). The bankruptcy court found that Rubin had violated several discovery orders: (1) Rubin’s May 1 production of documents in a random fashion made review of the documents difficult and constituted a violation of the court’s order to produce records; (2) Rubin’s failure to file a schedule of disputed claims and answers to the second set of interrogatories until November 25, 1981, violated the court’s order that these documents be filed by November 10; (3) Rubin’s supplement to its statement of disputed claims was incomplete, evasive, and nonresponsive and did not comply with the court’s December 30 order to file “precise responses;” (4) Rubin’s failure to make his offices available for the deposition of his custodian of records on March 3-5 constituted a violation of the court’s March 1 order; and (5) Rubin’s failure to produce at the custodian’s deposition all the records requested in Creditors’ subpoena duces tecum violated the court’s order of April 8, 1982. We are troubled by the findings that relate to the sufficiency of Rubin’s submissions in response to court orders, i.e., the May 1981 production of documents, the supplement to the statement of disputed claims, and the April 1982 production of documents. The first time the court indicated that these submissions were insufficient was when it entered the order imposing sanctions. At no time did the court give any warning; at no time did it order further production, nor did Creditors ever move to compel further production. A party should be given some indication by the court of how its discovery responses have been deficient. See, e.g., EEOC v. Troy State University, 693 F.2d 1353, 1357 (11th Cir.1982) (court never clearly articulated what documents EEOC was required to produce; dismissal held improper), cert. denied, 463 U.S. 1207, 103 S.Ct. 3538, 77 L.Ed.2d 1388 (1983). Moreover, it is common practice for trial courts to issue warnings or to make orders of default or dismissal conditional on a party’s continued noncompliance with an outstanding order to compel. In several of our cases, such warnings were an important factor in upholding the use of severe sanctions. See, e.g., Professional Seminar Consultants, Inc. v. Sino American Technology Exchange Council, Inc., 727 F.2d at 1474 (district court entered order to produce or risk having certain facts established); Rainbow Pioneer No. 44-18-04A v. Hawaii-Nevada Investment Corp., 711 F.2d 902, 904 (9th Cir.1983) (magistrate’s order to respond to interrogatories and produce documents contained warning that failure to comply would result in default); United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d at 1367 (district court entered order that unless interrogatories were answered by certain date, complaint would be dismissed). In In re Visioneering Construction, 661 F.2d at 119, a case strongly relied upon by Creditors, the bankruptcy court repeatedly accommodated an alleged debtor in involuntary proceedings before striking its answer as a sanction for discovery abuses. The court “bent over backward, including ... setting over hearings on the motion to enter default to give [the debtor] another chance to comply with discovery orders.” Id. at 123. In contrast, the bankruptcy court in this case did not have before it any outstanding motions for sanctions or motions to compel when it ordered that Rubin’s answer be stricken. The court did not conditionally order further production nor did it warn Rubin at any time that it was contemplating dismissal. 2. Lesser Alternative Sanctions Rule 37(b) provides a broad range of sanctions, dismissal and default being the harshest of all. The structure of Rule 37(b) necessarily suggests that a trial court should consider lesser sanctions before resorting to dismissal or default. See In re MacMeekin, 722 F.2d 32, 35 (3d Cir.1983); Jones v. Louisiana State Bar Association, 602 F.2d 94, 97 (5th Cir.1979) (per curiam); Vac-Air, Inc. v. John Mohr & Sons, Inc., 471 F.2d 231, 234 (7th Cir.1973); cf. Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir. 1980) (consideration of less drastic alternatives required before dismissal of action for failure to prosecute). In its formal findings, the bankruptcy court stated that it had considered and rejected alternative sanctions. But the court offered no explanation why lesser sanctions would not have been effective. The court could have ordered that Rubin’s discovery be stayed pending adequate responses to Creditors’ discovery requests, or imposed monetary sanctions against Rubin, or a combination of the two. The court did none of these things; in fact, it never ordered sanctions of any kind against Rubin before ordering that the answer be stricken. Striking the answer, of course, was an extremely severe sanction. Its effect was to adjudge Rubin a bankrupt, depriving him of control of his assets, and making his assets available to satisfy the alleged debts. See In re Mason, 709 F.2d at 1317. 3. Prejudice to Opposing Parties The bankruptcy court raised the issue of sanctions on its own motion at a hearing called to consider the parties’ readiness for trial. At the hearing, Creditors’ counsel stated, “We are ready for trial with the exception that the trial is going to be probably a little bit longer than it should be if there had been appropriate pre-trial discovery____” The degree to which a party is prejudiced by his opponent’s failure to permit discovery is an important factor in determining the severity of the sanction to be imposed. Compare United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d at 1370 (eighteen months of delays and failures to comply with court-ordered discovery caused “unmistakable” prejudice to defendant; order precluding proof of damages affirmed); Puerto Rico v. S.S. Zoe Colocotroni, 628 F.2d 652, 665-66 (1st Cir.1980) (defendants admitted liability, which caused plaintiffs to cancel scheduled depositions, but later recanted admission and failed to produce witnesses; conduct “materially prejudiced” plaintiffs’ trial preparation; order that liability be admitted affirmed), cert. denied, 450 U.S. 912, 101 S.Ct. 1350, 67 L.Ed.2d 336 (1981), with Marshall v. Segona, 621 F.2d 763, 768-69 (5th Cir.1980) (plaintiff’s response to interrogatories four days late did not prejudice defendant and did not justify sanction of dismissal); cf. Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1102 (9th Cir.1981) (district court’s refusal to impose sanctions for defendants’ delay in producing documents not an abuse of discretion because plaintiff could not show that he had been prejudiced by delay), cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982). In Wyle v. R.J. Reynolds Industries, Inc., we noted that [sjanctions interfering with a litigant’s claim or defenses violate due process when imposed merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case. 709 F.2d at 591 (citing G-K Properties v. Redevelopment Agency, 577 F.2d 645, 648 (9th Cir.1978)) (emphasis added); see also Fjelstad v. American Honda Motor Co., 762 F.2d at 1342. The bankruptcy court found that Rubin’s failure to cooperate in discovery prejudiced Creditors’ ability to gather information relating to the involuntary petition and caused them to incur attorneys’ fees and other costs. To the extent the court concluded that Creditors had been prejudiced in trial preparation, this is directly contradicted by Creditors’ counsel’s assertion that they were ready to go to trial. That leaves only the increased costs and fees Creditors expended, but this effectively could have been remedied by an award of monetary sanctions. Although some prejudice might have resulted from Rubin’s conduct during discovery, it did not “threaten to interfere with the rightful decision of the case,” and was insufficient to justify the sanction imposed. 4. Severity of Sanctions We conclude that Rubin’s conduct was not egregious enough to warrant the harsh sanction of default.- The only clear violations of court orders committed here were Rubin’s filing of his disputed claims statement and his answer to the second set of interrogatories fifteen days late and his refusal to make his offices available for the deposition of his custodian of records until ordered a second time. Rubin remedied both violations, and neither seriously prejudiced Creditors. Rubin’s conduct simply does not rise to the level of .contumaciousness involved in other cases in which we have affirmed the use of severe sanctions. See, e.g., Rainbow Pioneer No. 44-18-04A v. Hawaii-Nevada Investment Corp., 711 F.2d at 904-06 (defendants failed to produce documents for four months after court order, raised frivolous objections to two key interrogatories, stated that answers to interrogatories could be found in partnership books, but did not specify precisely where in books the answers could be found); Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d at 589-91 (defendants falsely denied material fact, deliberately deceived trial court, repeatedly attempted to frustrate document production); United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d at 1367-68, 1370 (eighteen months of delays and failures to comply with court-ordered discovery); G-K Properties v. Redevelopment Agency, 577 F.2d at 647 (plaintiffs failed to produce documents for four months and despite three court orders). Most recently, in Fjelstad v. American Honda Motor Co., 762 F.2d at 1334, we held that imposition of a default judgment against a defendant was too severe a sanction and offended due process. In that case, the defendant filed incomplete and misleading interrogatory answers and delayed providing information for over a year despite repeated court orders compelling responses, imposition of attorneys’ fees and $50,000 as sanctions, and an express warning that sanctions would increase if further discovery problems arose. Id. at 1337-1388. We concluded that the defendant willfully failed to answer only one interrogatory (the defendant could have interpreted an earlier court order as permitting delay in answering other interrogatories), and that this was not a sufficient ground to support the harsh sanction of default, especially given the considerable amount of other information the defendant had disclosed and the absence of prejudice to the plaintiff. Id. at 1340. Creditors rely on our decision in In re Visioneering Construction, 661 F.2d at 119. But that case involved conduct far more egregious than Rubin’s. In Visioneering, we noted that the debtor had engaged in a “litany of willful discovery abuses,” including failure to attend a noticed deposition, filing evasive and incomplete answers to interrogatories, and not responding to document requests. Id. at 121. The debtor engaged in eight months of “constant obstructionist tactics,” id., and its conduct amounted to a “near total refusal to facilitate discovery.” Id. at 124. We do not find a similar degree of obstructionist conduct in the case before us. To be sure, this has been a hard-fought action from the outset, and, as Rubin’s counsel noted at oral argument, both sides probably have been overly litigious. We do not condone counsels’ conduct in this litigation. But Rubin’s conduct must be viewed in the context of the entire discovery process, and it must be noted that Rubin complied with the bulk of Creditors’ discovery requests without objection. See, e.g., Fjelstad v. American Honda Motor Co., 762 F.2d at 1340. We sympathize with the bankruptcy court’s efforts to supervise the discovery in this difficult case. But the Rule 37 sanctions are intended as a tool to compel production of evidence and to deter misconduct; a court should not go beyond the necessities of the situation to foreclose the merits of controversies as punishment for general misbehavior. See 4A J. Moore, J. Lucas & D. Epstein, Moore’s Federal Practice 1137.03[2], at 37-62 (1984) (construing Societe Internationale Pour Participations Industrielles et Commercials, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958)); see also National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. at 643, 96 S.Ct. at 2781. The sanction was too severe to be “just” under these circumstances. III. CONCLUSION We have jurisdiction to hear and decide this appeal. Under the circumstances of this case, we conclude that the bankruptcy court abused its discretion by striking Rubin’s answer as a discovery sanction. Accordingly, we reverse the judgment of the bankruptcy court and the decision of the Bankruptcy Appellate Panel and remand this action for trial. REVERSED and REMANDED. . Creditors appealed the sanctions order to the Bankruptcy Appellate Panel, which reversed on the basis that Creditors were not given adequate notice of the motion and hearing. Rubin appealed to this court, but we dismissed the appeal for lack of jurisdiction. In re Rubin, 693 F.2d 73, 76-77 (9th Cir.1982). . The Bankruptcy Amendments modify subsections 303(b)(1) and (h)(1) of the Bankruptcy Code, 11 U.S.C. § 303(b)(1), (h)(1), to read as follows (emphasis indicates inserted language): (b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title — (1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject on [sic] a bona fide dispute, or an indenture trustee representing such a holder, if such claims aggregate at least $5,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; ... (h) If the petition is not timely controverted, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition is filed. Otherwise, after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if — (1) the debtor is generally not paying such debtor’s debts as such debts become due unless such debts that [sic] are the subject of a bona fide dispute; ____ Pub.L. No. 98-353, § 426, 98 Stat. 369. These provisions became effective on July 10, 1984. Pub.L. No. 98-353, § 553(b), 98 Stat. 392. . Some cases, including ones from this court, have characterized analogous section 303 requirements as "jurisdictional.” See, e.g., In re Mason, 709 F.2d 1313 at 1318-19 (9th Cir.1983); In re Visioneering Construction, 661 F.2d 119, 122 (9th Cir.1981); In re First Energy Leasing Corp., 38 B.R. 577, 580-81 (Bankr.E.D.N.Y. 1984); In re All Media Properties, Inc., 5 B.R. 126, 133 (Bankr.S.D.Tex.1980), aff’d mem., 646 F.2d 193 (5th Cir.1981). Our cases illustrate, however, that these requirements are not jurisdictional in the technical sense of subject matter jurisdiction, but are instead substantive matters which must be proved or waived for petitioning creditors to prevail in involuntary proceedings. In Mason, we held that a debtor in an involuntry proceeding waives the requirement for three petitioning creditors if he fails to raise the issue in his answer. 709 F.2d at 1318-19. In Visioneering, we held that a bankruptcy court could deem admitted petitioning creditors' allegations that several named corporations were alter egos of the same entity, owing debts to each of the creditors. 661 F.2d at 122. The fact that Mason and Visioneering permitted waivers indicates that the requirements were not truly prerequisites to subject matter jurisdiction, since parties cannot confer subject matter jurisdiction on a federal court by their consent. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-03, 102 S.Ct. 2099, 2103-05, 72 L.Ed.2d 492 (1982) (holding that a court may enter an order that personal jurisdiction is deemed established as a sanction under Rule 37(b); Court distinguishes subject matter jurisdiction). . We cite to 28 U.S.C. § 158 here, rather than the former provision governing our jurisdiction, 28 U.S.C. § 1293, because this case was pending before us on July 10, 1984, when the Bankruptcy Amendments became effective, and, as we note in the text, generally we must apply the law in effect when we render our decision. See In re Amatex Corp., 755 F.2d 1034, 1037 (3d Cir. 1985). . Rubin raises one other jurisdictional challenge that can be disposed of summarily. He contends the BAP lacked jurisdiction .to hear the appeal from the bankruptcy court after December 24, 1982, the termination date of the stay entered by the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598, 459 U.S. 813, 103 S.Ct. 199, 74 L.Ed.2d 160 (1982). The BAP decided Rubin’s appeal on February 29, 1984. We find it difficult to understand why Rubin makes this argument, because, if the BAP lacked jurisdiction then we lack jurisdiction and the bankruptcy court's decision against Ruin would stand. Nonetheless, the argument fails in light of In re Burley, 738 F.2d 981 (9th Cir.1984). There, we held that the BAP was constitutional as an adjunct to the court of appeals, id. at 986. and, more specifically, that "the BAP may issue decisions in all cases in which the order of the bankruptcy court was entered before entry of the mandate in Marathon.” Id. at 983. Here, the bankruptcy court entered judgment on July 9, 1982, well before expiration of the Marathon stay. Thus, we have jurisdiction under Burley . Former Bankruptcy Rule 737 (applicable during the pendency of this action in the bankruptcy court; now Bankruptcy Rule 7037), made Fed.R.Civ.P. 37 applicable to bankruptcy actions. . Recently, in Fjelstad v. American Honda Motor Co., 762 F.2d 1334 (9th Cir. 1985), we rejected a defendant’s argument that it was not given adequate warning before entry of a default judgment as a discovery sanction. Id. at 1340. In that case, however, the district court’s discovery order was explicit, the defendant admitted that its interrogatory answers were incomplete, and the court expressly warned the defendant that it was considering severe sanctions. Id. at 1337, 1340. The defendant in Fjelstad was given clear warning that the court considered its recovery answers insufficient. In contrast, Rubin had no idea that the court found his discovery responses insufficient until the court announced this as support for the sanction it imposed. It should also be noted that in Fjelstad, this court nonetheless found dismissal too harsh a sanction. Id. at 1342; see supra p. 618. . Admittedly, monetary sanctions might be ineffective against a debtor in an ordinary bankruptcy case, but this is not an ordinary case. Rubin apparently is still conducting business and is paying debts and his own attorneys’ fees during the pendency of the involuntary proceeding. In fact, some of the Creditors apparently are still doing business with Rubin and continue to extend credit to him. Alternatively, to the extent that Rubin’s counsel was the cause of any discovery misconduct, the court properly might have imposed sanctions against him. . The other violations the court found, as we note above, see supra, pages 615-616, had to do with the inadequacy of Rubin’s responses to discovery requests, and we find these violations of little weight in supporting the sanction, because Rubin was never informed of the inadequacies. . We remand this case without prejudice to the imposition, consistent with this opinion, of such other lesser, sanctions as the bankruptcy court might deem appropriate.

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

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

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

ALLIED EQUIPMENT COMPANY, Incorporated, Appellant, v. WEBER ENGINEERED PRODUCTS, INCORPORATED, et al., Appellees. No. 7208. United States Court of Appeals Fourth Circuit. Argued June 21, 1956. Decided Oct. 1, 1956. Robert R. Gwathmey, III, and George E. Allen, Richmond, Va. (Allen, Allen, Allen & Allen, Richmond, Va., on the brief), for appellant. William H. King, Richmond, Va. (Robert H. Paterson, Jr., and McGuire, Eggleston, Bocoek & Woods, Richmond, Va., on the brief), for appellees. Before PARKER, Chief Judge, and SOPER and PRETTYMAN, Circuit Judges. PRETTYMAN, Circuit Judge. Our appellant, in this litigation called simply “Allied”, is a business concern of Richmond, Virginia, which, in addition to a retail sales business in farm and garden equipment, held a number of distributor franchises for that equipment. Our appellee, called herein simply “Weber”, is a manufacturer of such equipment. In the summer of 1949 the two concerns made an arrangement by which Weber gave Allied a wholesale distributorship on an exclusive basis in 85 counties in Virginia. It was understood that Allied would develop a distribution system throughout this territory, and it proceeded to do so. It increased the number of dealers in Weber products from four or five in 1949 to over a hundred in 1953. Allied says that in doing so it expended large sums of money. In the latter part of 1952 Allied contemplated an enlargement of its facilities which would require it to enter upon a lease for a period of fifteen years at a rental of $500 a month. The lessor desired some assurances as to the duration of Allied’s franchises. Allied wrote Weber upon the subject and asked for a letter “setting forth the intended permanency of our franchise with you.” In response Weber wrote in somewhat vague fashion but saying in part: “I know that your thinking and ours coincides in that we are all interested in building Choremaster (a Weber product trade name) year after year. That is exactly what you have done, and I wanted to take this opportunity to express my appreciation for your splendid cooperation. With the rapid expansion of the Choremaster line, i. e., tillers, mowers, we feel that our volume, and that of our distributors, should grow from year to year in the future. I hope that we may have the pleasure of many more years of pleasant, profitable association.” Allied exhibited the foregoing letter to the intended lessor, and the lease was executed. In September of 1953 Allied considered adding to its lines a cultivator made by the Quick Manufacturing Company. Weber considered this cultivator to be in competition with its product. Representatives of Weber and Allied conferred, and thereafter correspondence was exchanged. It clearly appeared from the notes of the conference and from the correspondence that, if Allied undertook to sell equipment which was in competition with Weber’s equipment, the Weber distributorship would be terminated. Allied replied by wire that it would distribute certain competitive lines and assumed that this cancelled the distributorship with Weber. Allied commented, “We regret exceedingly that this decision is forced upon us.” Thereupon the franchise was terminated and Weber immediately took over the territory and proceeded to distribute its products throughout Virginia through many of the dealerships which had been set up by Allied. Litigation ensued, of which one phase is the subject matter of this appeal. Allied claimed from Weber damages in the amount of $75,000 for unlawful cancellation of its contract, and claimed further that the damages should be trebled on the ground that Weber’s acts constituted a violation of the antitrust laws. Allied’s claims were asserted in a counterclaim in a suit brought against it by Weber to collect on an open account, but we need not relate the details of the litigation. A jury, answering written interrogatories, assessed Allied’s damages at $15,-000 and found that Weber had violated the antitrust laws. Thereafter the District Court rendered judgment n.o.v. for Weber. The basis for the action of the District Court was its opinion that the contract between Weber and Allied was lacking in mutuality, was not enforceable, and could not be the basis for an award of damages for breach. This appeal followed. The purported agreement or arrangement between Weber and Allied was not in writing. It is not claimed by either party that a time of duration was fixed, that prices or quantities were indicated, that obligations to buy or sell were undertaken, or that methods or times of delivery were prescribed. On the other hand, in so far as this appeal is concerned, it seems to be assumed by both parties that some arrangement amounting to an exclusive dealership in certain territory was made, that it existed from mid-1949 to late 1953, that an extensive system of dealerships was established by Allied for Weber products, and that Allied’s lease of the new building was, in part at least, in reliance upon Weber’s representations. The first question in our consideration of the problem is whether the arrangement between Weber and Allied was such that its termination by Weber afforded Allied a cause of action for damages. The question is settled by the decision of this court in Jack’s Cookie Company v. Brooks. Judge Soper, writing for the court, said: “On the other hand, if the manufacturer appoints an agent not merely to sell the goods, but the agent in addition to* making sales furnishes additional consideration, as when he sets up a distributive system for the manufacturer’s goods and his compensation is measured by the amount of goods sold in the territory assigned to him, the manufacturer is not at liberty to terminate the agreement at will even though it contains no provision for its termination, but must retain the agent in the employment for a reasonable period of time. [Citing authorities.]” It' is perfectly true that generally speaking a distributorship arrangement such as this does not constitute the basis for suits on account of quantities, prices, terms, and such items; and, generally speaking, they are terminable by either of the parties. In the Kirkmyer case, for .example, this court held that an oral promise of a dealership, in so far as it related to the sale of the manufacturer’s products to the dealer, was lacking in mutuality and was too indefinite to form the basis for a binding obligation on the part of the manufacturer. In that case the dealer had a franchise and was located in West Richmond. The manufacturer wanted a dealer in South Richmond and told the dealer it must move or lose the franchise. The manufacturer also promised that if an additional dealership were placed in West Richmond this dealer would get it. The dealer moved, and later another concern was awarded a dealership in West Richmond. The franchise which the dealer had, and in respect to which he incurred the expense of moving, etc., was not cancelled. The basis of his suit was the failure to award him the other franchise, in respect to which he had made no expenditures. But that is not the problem in our case. Here v/e are faced with the claim of a distributor who is being deprived of the very franchise which he has built up, allegedly at great expense. There is an exception to the general rule of which the Kirkmyer case is an expression. It is well settled that, where an employed agent, in reliance upon the agency and with the knowledge of his principal, expends funds in the interest of the agency and of the principal, the principal is committed to the agency for a reasonable period of time, so that the agent may thus recoup his expenditures. As Professor Williston says, “It is the settled law of agency that if the agent or employee furnishes a consideration in addition to his mere services, he is deemed to have purchased the employment for at least a reasonable period where the duration of the employment is not otherwise defined.” . This is the rationale of the opinion of this court in Jack’s Cookie Company, supra, and it is applicable to the case at bar. On. this first question we hold therefore that, if, pursuant to an understanding with Weber, Allied expended sums of money in developing a distributorship system for Weber products throughout Virginia, it was entitled to the right of distributorship -for such a period of time as would enable it to recoup these and any other expenditures which with the knowledge of Weber it incurred in reliance upon the arrangement. It follows that, if Weber, without sufficient cause, terminated the arrangement prior to the expiration of such a reasonable time, Allied was entitled to damages in the amount of its unrecouped expenditures, taking into account, of course, the value of any benefits it may have derived from the arrangement during its existence or may derive thereafter. It seems to us that some measure of confusion crept into the briefs and argument in the discussions of notice of termination. The reasonable period which the law requires prior to termination of an agency under the rules we have been discussing is, of course, not the reasonable notice which the manufacturer must give if he has decided to, and properly may, terminate. In the present case Allied did not maintain that the notice of termination was insufficient or that lack of timely notice resulted in damages. The facts recited in the foregoing discussion of the basic question of law are assumed for these purposes. If the case goes to retrial, some, or all, of them may be disputed and, if so, become questions for the jury. We have, indicated that the existence of some arrangement between Weber and Allied is assumed upon this appeal. If that fact is an issue upon a trial, it is of course an issue of fact and is for the jury. There is evidence in the record that Allied did spend considerable amounts in reliance upon and furtherance of the Weber distributorship and that Weber knew of and tacitly approved the expenditures; whether those facts were established to the required extent was a jury question. If it be found that an arrangement between Weber and Allied existed, and that pursuant to the arrangement Allied made expenditures, the jury should then decide whether the distributorship existed for a reasonable period of time, i. e., sufficiently long for Allied to have recouped its expenditures. In the testimony, and likewise in the briefs, circumstances other than the distributorship of the competitive product are discussed in connection with the termination of the arrangement. Such matters as falling sales of Weber equipment by Allied, failure of Allied to meet its obligations, and infirmities in Allied’s credit are discussed. If this case is tried again, the jury, as we said in Jack’s Cookie Company, should determine whether Allied faithfully and efficiently carried out its part of the business. If not, damages because of termination of the arrangement should not fall on Weber. Another question which, if raised, would be a jury question is whether Allied agreed in its arrangement with Weber that it would not handle competitive products or whether, on the other hand, the arrangement contemplated that Allied was free to handle any and all other products. This is a question of fact. It is a material question, because, if the arrangement included an understanding that Allied would not handle competitive products, Allied and not Weber breached and thus terminated the arrangement when it undertook to distribute the competitive product. In such event Weber, of course, would not be liable for any damage consequent to the termination. On the other hand, if the arrangement contemplated that Allied might handle other products, including those competitive to Weber’s, Weber’s insistence upon a new agreement to the contrary and its insistence that Allied accept the new condition as a requisite to a continuance of the distributorship were in effect a termination of the prior arrangement. In such event the liability for the termination was upon Weber. What the arrangement was in respect to competitive products was a jury question. The final question involves Allied’s claim for treble damages arising out of Weber’s alleged breach of the antitrust laws. It is Allied’s contention that Weber, by attempting to use the threat of cancellation to force Allied to enter into an illegal exclusive-dealing contract, engaged in unfair competition which was the proximate cause of pecuniary damage to Allied. Under Section 3 of the Clayton Act, upon which this claim is based, it is unlawful to enter into any lease, sale or contract which is conditioned upon the lessee’s or purchaser’s not dealing in the goods of a competitor, where the effect of such lease, sale or contract may be substantially to lessen competition or to create a monopoly. There can be no violation of the Act unless there is a contract, sale or lease. Allied faces a dilemma on the point. If there was no contract denying it the right to handle products competitive to Weber, there was no violation of the antitrust laws. If there was such a contract, as we have already pointed out the breach was by Allied and so no damages accrued to it. It follows from the foregoing that the judgment of the District Court must be set aside and the case remanded for a new trial if the parties are so minded. Reversed and remanded. . 227 F.2d 935 (1955), certiorari denied, 351 U.S. 908, 76 S.Ct. 697, 100 L.Ed. — (1956). . Id., 227 F.2d at page 938. . Ford Motor Co. v. Kirkmyer Motor Co., 65 F.2d 1001 (4th Cir., 1933); Motor Car Supply Co. v. General Household Utilities Co., 80 F.2d 167 (4th Cir., 1935). . Ford Motor Co. v. Kirkmyer Motor Co., 65 F.2d 1001 (1933). , 4 Williston, Contracts § 1027A(3) (Rev. ed.1936). See also Restatement, Agency § 442, comment c (1933). . 38 Stat. 731 (1914), 15 U.S.C.A. § 14. . Hunter Douglas Corp. v. Lando Products, 215 F.2d 372 (9th Cir., 1954); Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911 (5th Cir., 1952), certiorari denied, 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356 (1953).

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

JOHNS et al. v. UNITED STATES. No. 13759. United States Court of Appeals Fifth Circuit. March 18, 1952. W. A. Bootle, T. A. Jacobs, Jr. and J. W. Barnett, Macon, Ga., for appellants. Jack J. Gautier, Asst. U. S. Atty., John P. Cowart, U. S. Atty., Macon, Ga., for appellee. Before SIBLEY, RUSSELL and RIVES, Circuit Judges. SIBLEY, Circuit Judge. The indictment in one count charges that Shep Johns and Bryant A. Meeks from April 20, 1949 and continuously thereafter until September 6, 1950, when the indictment was returned, “In the United States of America, the exact place whereof is unknown, did unlawfully, wilfully and knowingly conspire and agree together and with each other, and with W. S. Tucker and Clara Tucker, who are named as conspirators but not charged as defendants, and with divers other persons to the Grand Jurors unknown, unlawfully to possess, transport and sell distilled spirits, to-wit, whisky, the immediate containers whereof did not and should not have affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing the payment of all internal revenue taxes imposed on said spirits”. Six overt acts' in furtherance of the conspiracy are alleged, five of them done by Meeks or Tucker in Bibb County in the Middle District of Georgia, and one done by Johns in Baker County, Florida. Meeks and Johns were found guilty and appealed. Meeks has dismissed his appeal and is presumably serving his sentence. Johns is vigorously asserting error in overruling his motion to dismiss the indictment; in not sustaining his motion for acquittal; in not sustaining his several objections to evidence received of acts and conversations of Meeks and Tucker, not in his presence; and of certain telephone company records of calls made by Meeks and Mrs. Clara Tucker. 1. As to the indictment, it is urged that there is no allegation that the conspiracy was to commit any offense against or to defraud the United States, or that the distilled spirits to be handled were subject to tax in the United States, or were to be handled there, or to be fit for or intended for beverage purposes; and that without aid. from the allegations of the overt acts which cannot aid the description of the conspiracy, the indictment fails to charge any offense under the laws of the United States. It is true that the allegations of the overt acts, while important to show that the conspiracy alleged ripened into a crime, 18 U.S.C. § 371, and to fix venue for prosecution, do not constitute part of the description of the conspiracy charged. It is true also that this, indictment should have charged that the possession, transportation and sale of distilled spirits in unstamped containers were to be done in the United States and would constitute offenses against the laws of the United States. But it is alleged that the conspiracy was formed in the United States, and each overt act alleged to be in pursuance of it was done in the United States; and we judically know that statutes of the United States exist which penalize such dealings with distilled spirits in unstamped packages; and it is expressly alleged that the agreement was "unlawfully to possess, transport and sell whisky”; and especially because the record as a whole shows that everyone concerned knew, during the trial, what the Grand Jury meant and no surprise is shown, we are loath to upset the trial on these grounds. We do not commend this as a good criminal pleading, but ignore its faults under the circumstances. 2. The meritorious question is whether the evidence shows with the certainty required in felony cases that Johns was a co-conspirator. In brief, the evidence for the prosecution, though flatly denied by Meeks and Johns, is that Meeks, in Bibb County, Georgia, about April 20, 1949, approached Tucker, who had lived in an adjoining apartment with his wife, Clara, and infant child, and was out of work, and proposed to employ him for $50.00 per week and expenses, to haul “bootleg whis-ky” in Meeks’ automobile from Florida to Macon, Georgia, where it would be hidden out until resold by Meeks at retail and delivered to customers by Tucker. To this, in his wife’s presence, Tucker agreed. The-next day Meeks and Tucker drove to MacClenny, Baker County, Florida. On the way, at Alma, Georgia, Meeks arranged at a filling station to leave there 5 gallons of moonshine whisky on the return trip. Arriving at MacClenny, Meeks got out of the car at the home of Johns, who was unknown to Tucker, and talked with him on the porch. Tucker did not hear what passed. Tucker and Meeks then went to the home of Meeks’ mother-in-law some eight miles away, where Mrs. Meeks was visiting, and there spent the night. Before retiring Meeks gave Tucker $200.00 in cash to pay for 100 gallons of whisky which was to be picked up early next morning. Meeks and his wife and Tucker, at 3 o’clock a. m., left in the car and went by the home of Johns and woke him up. Meeks and his wife were then left at the bus station to ride to Macon, and Meeks told Tucker to go back to Johns’ house and someone would meet him there about 6 o’clock. Three young men (not Johns) met Tucker and took him out of town to a lonely place where about 100 gallons of whisky in unstamped jugs containing 5 gallons each, were delivered and placed in the car which Tucker was driving, the rear seat having been taken out in Macon. Tucker paid one of the men the $200.00 and drove back to Macon, leaving a jug of whisky at Alma, for which he collected six or seven dollars a gallon. Arriving at Macon, the remaining jugs were hidden at a place agreed on with Meeks arid retailed out by the gallon to customers of Meeks at seven or eight dollars per gallon, proceeds received by Meeks, Tucker .getting $50.00 per week and expenses for gasoline, as agreed. After about two weeks a second trip to MacClen-ny and Johns’ house was made by Tucker, Mrs. Tucker and the baby going along at the suggestion of Meeks for an “appearance of gentility”. A similar purchase was made of 100 gallons at $2.00 per gallon and paid for in cash to the unknown young gentlemen who delivered the whisky. A third like trip was made a week or ten days later, but on the way back Tucker and his wife were arrested at Alma and the automobile and whisky seized. Tucker was prosecuted and fined in a State Court after about a month’s imprisonment, Meeks. refusing to help him. Tucker and his wife at first claimed the whisky, as they testify Meeks had told them to do if caught, but afterwards they told the matter to a federal investigator, as above sketched. Their testimony, if believed, shows a conspiracy between them and Meeks to possess, transport and sell whisky in unstamped packages as alleged. As to Johns, they testify nothing save that they went to his house at the direction of Meeks and were by Johns, put in touch with the unknown young men. Mrs. Tucker also testifies that Meeks used her telephone to call Johns before one of the trips and the call, 75 cents, was charged on her bill. She did not know what was said between Meeks and Johns. Johns and Meeks testified that they had not known each other before they were indicted and sought each other out then to find out what it was about. They denied in toto the dealings related by the Tuckers. Their contention is that the Tuckers were in the liquor business and were falsely accusing them to get immunity for themselves. Tucker testifies flatly and repeatedly that in his dealings with Johns, Johns only put him in touch with the “young gentlemen”, who delivered the liquor each time and received the money, and there was no further understanding with or interest in any of them; they had no interest in where he took the jugs, or what he did with them; there was no agreement with them to go into the liquor business; nothing mentioned about whether the whisky was to be sold or drunk, or thrown in the river. After the indictment the Tuckers say that Johns and his wife came to Macon three times trying to get them to say they could not identify Johns as the person they saw in MacClenny; and on the last trip Mrs. Johns gave Mrs.Tucker a $100.00 bill sealed in an envelope as “a Christmas present”, which was turned over to the federal investigator and produced in court. This evidence fairly shows that Johns and his young men were' cooperating together to possess and sell untaxpaid whisky by wholesale and are guilty of that, and for that they are liable for prosecution in Florida, but not in the Middle District of Georgia. The apparent effort to bribe the Tuckers not to recognize Johns might indicate guilt of that as well as of this conspiracy. There is no positive testimony that Johns joined in or agreed to assist Meeks in his enterprise in Georgia. He knew of course, that the Tuckers were about to remove the unstamped jugs which Meeks had arranged to buy and which Tucker bought, and the quantity indicated that Meeks and Tucker were not going to drink, but to sell it; but every circumstance is as consistent with the theory that Johns was selling Meeks whisky in Florida as that he was joining with Meeks in transporting and selling it in Georgia. Certainly the latter theory is not proved true beyond a reasonable doubt, unless to sell illicit whisky necessarily joins the seller as a conspirator with the buyer in what the buyer seems about to- do with it. This question has often arisen touching the selling both of whisky and the materials for making it, under the prohibition laws and under the internal revenue laws, and has been answered differently in the different Circuits. It would be tedious and unprofitable to review the cases and attempt to distinguish or reconcile them. In this Circuit in Young v. United States, 48 F.2d 26, 27, it was held that sellers of articles intended for use by the buyers in the illicit manufacture of intoxicating liquors were not shown to' be conspirators with the manufacturers by successive sales and knowledge of the use intended; but that proof of actual participation in a conspiracy is necessary to fasten guilt on the seller. It was pithily said, “There was no evidence that Lee, Franklin, and Campbell were acting in concert; for all that appears, each was acting only for himself.” United States v. Falcone, 109 F.2d 579, 581, arose in the Second Circuit under the internal revenue laws. The same question was presented. The court reviewed some of the cases, finding that in some circuits the seller and buyer were treated as ipso facto conspirators, but that in the Fifth and Second Circuits more than a mere sale with knowledge of an intended illegal use by the buyer was necessary to show a conspiracy between them. The court commented on the “dragnet of [a] conspiracy” charge sweeping in all who have had any connection with each other, distorting often the venue for trial, and intoducing confusion as to evidence admissible against one but not another defendant, and as to the sayings of one defendant about another; even as in this present case. The court held that the seller did not join in a conspiracy by merely selling what he knows the buyer intends to use in committing a crime, but that he must “in some sense promote the venture himself, make it his own, have a stake in its outcome.” The case was taken on certiorari by the Supreme Court, to resolve the conflicts in the Circuits, and affirmed. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 206, 85 L.Ed. 128. Among other things the Supreme Court said: “The evidence respecting the volume of sales to- any known to be distillers is too vague and inconclusive to support a jury finding that respondents knew of a conspiracy from the size of the purchases even though we were to assume what we do not decide that the knowledge would make them conspirators or aiders and abettors of the conspiracy.” We conclude that though Johns may have been a wholesaler of untaxed whisky, it is not shown that he entered into or even knew of the conspiracy between Meeks and the Tuckers to transport and possess and sell such. It does not appear that he did more than on applications or orders from Meeks, to agree to sell on three separate occasions 100 gallons of unstamped whisky at $2.00 per gallon if Meeks would send for it, and delivered the whisky accordingly, having no further interest in or activity about it. He may be prosecuted in Florida for what he did there, but is not shown to have joined in the Georgia conspiracy as alleged. It is unnecessary to rule on other questions. The motion of Johns for judgment of acquittal ought to have been granted and is directed to be entered, to 'which end the cause as to Johns is remanded to the district court. The appeal of Meeks is dismissed, he having withdrawn it.

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

UNITED STATES v. BRUNDAGE. BRUNDAGE v. UNITED STATES. Nos. 9300, 9377. Circuit Court of Appeals, Sixth Circuit. June 2, 1943. Keith L. Seegmiller, of Washington, D. C. (John C. Lehr, and Francis X. Norris, both of Detroit, Mich., William M. Lytle, of Chicago, 111., and Francis M. Shea, Lester P. Schoene, Wilbur C. Pickett, and Fendall Marbury, all of Washington, D. C, on the brief), for the United States. Warren E. Miller, of Washington, D. C. (Vincent E. Schoeck, of Marianna, Ark., on the brief), for Brundage. Before HICKS, ALLEN, and Mc-ALLISTER, Circuit Judges. ALLEN, Circuit Judge. William James Smith brought an action to recover upon a United States Government Life Insurance policy in the amount of $10,000. He had secured a War Risk policy in 1918 which expired for non-payment of premiums May 31, 1919. In accordance with the statute this policy was reinstated and converted into an ordinary life insurance policy December 1, 1926. May 1, 1930, the amount of the policy was reduced from $10,000 to $5,000. The policy lapsed for non-payment of premiums in December, 1933, but the Government concedes that it was continued in force as extended insurance in the amount of $4,-999.70 until November 21, 1934. Suit on the policy was instituted June 21, 1934. Smith died September 21, 1937, and Karl B. Brundage, special administrator, was substituted as party plaintiff. An amended complaint was filed, containing five separate counts or causes of action, which alleged variously that the insured became totally and permanently disabled (1) December 1, 1926, (2) October 17, 1928, (3) April 13, 1932, and (4) February 14, 1934. The Government’s answer denied the various allegations of total and permanent disability. A verdict was returned upon which judgment was rendered in favor of the plaintiff, and appeal and cross-appeal were filed. At the trial all of the causes of action except the one alleging totaj and permanent disability from October 17, 1928, were withdrawn or stricken by the court. The material parts of the cause of action upon which the verdict was rendered, together with the material portions of the defendant’s answer thereto, are printed in the margin. A motion of defendant for directed verdict was denied both at the close of its evidence and at the close of the entire case. The court charged the jury as requested by plaintiff that the question presented under the cause of action submitted to the jury was “whether or not this man was totally and permanently incapacitated some-i where between October 17, 1928, and November 21, 1934.” The court charged that if Smith on October 17, 1928, was totally and permanently incapacitated, the jury should find for the plaintiff, and also that if the jury found that Smith did at any time while his insurance was in force and effect become permanently totally disabled, then the jury must find the date upon which such permanent total disability occurred. The jury’s verdict recited that “the defendant did undertake and promise in manner and form as the plaintiff hath in his complaint in this cause alleged,” but made no finding either as to the existence of total and permanent disability, or as to the date upon which it occurred. A motion for judgment notwithstanding the verdict was denied, and judgment was entered for the plaintiff, awarding the sum of $4,999.70, representing the amount of extended insurance continued in force until November 21, 1934. Both parties appealed. The defendant contends that the judgment must be reversed upon the ground (1) that there is no substantial evidence properly admitted at the trial that the insured became totally and permanently disabled on or prior to November 21, 1934; (2) that the trial court committed prejudicial error in the admission and exclusion of evidence, and (3) that the verdict is void for uncertainty. The plaintiff contends that since the only cause of action which was presented to the jury alleged .total and permanent disability beginning October 17, 1928, the judgment should have been entered for $10,000, which was the amount of the policy in force at that date. We think there is no substantial merit in defendant’s first contention. Smith’s disability arose from tuberculosis. While he died not from the disease, but from the results of an accidental fall, Government doctors in six separate examinations of his condition from 1925 to 1928 diagnosed Smith’s condition as chronic pulmonary tuberculosis moderately ad-* vanced and active. On April 12, 1933, a similar Government report was that Smith was suffering from pulmonary tuberculosis, chronic, far advanced, active “A.” While a number of reports during this period diagnosed the tuberculosis as “quiescent,” “inactive or apparently arrested,” the positive diagnosis of April 12, 1933, that the tuberculosis was far advanced and active cannot be ignored. These reports presented a clear conflict of fact. Plaintiff’s medical expert, the superintendent and medical director of the Detroit Tuberculosis Sanitarium, testified as to the medical distinction between “arrested” and “apparently arrested,” stating that “We never allow a person to go to work with apparently arrested.” In answer to a hypothetical question based upon the seven diagnoses above described, this expert stated that Smith’s disease on October 17, 1928, in his opinion, was incurable. The defendant contends that this statement was repudiated on cross-examination, but a careful reading of the entire testimony fails to disclose any appreciable weakening of the expert’s opinion. As to Smith’s work record/various lay witnesses who employed him in housekeeping, in mowing lawns, and work of that nature, testified as to his doing work of this kind over a number of> years. Smith also operated a small cash- and-carry ice station, rent free from 1930 to 1935, selling small quantities of ice at retail. The superintendent of the ice company stated in effect that Smith’s work was not continuous, that when he waited on several customers consecutively he would have to rest in between times; that he would work six or eight weeks at the most and would have to give it up; that he would quit and be gone a couple of months and come back, and again would not be seen for a year. Other lay witnessés testified as to his violent coughing spells, his frequent exhaustion, and spitting of blood. Under the rulings of the Supreme Court in Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945, and Halliday v. United States, 315 U.S. 94, 62 S.Ct. 438, 86 L.Ed. 711, the record contains ample evidence to require submission to the jury of the question of total and permanent disability. Defendant also contends that prejudicial error was committed by the trial court in admitting in evidence the finding by the insurance claims counsel that the insured was totally and permanently disabled in April, 1925. Pertinent portions of the letter which contain the finding are printed in the margin. The defendant contends that this finding has no probative value within the reasoning in Third National Bank & Trust Co. v. United States, 6 Cir., 53 F.2d 599, and United States v. Ware, 5 Cir., 110 F.2d 739, 743. We think these cases, while correctly decided, are not controlling here because the evidence in question was clearly relevant and admissible under the peculiar facts of this record. The defendant in its answer stated that “no disagreement existed when this lawsuit was filed.” Under Title 38 U.S.C. § 445, 38 U.S.C.A § 445, the existence of a disagreement was a jurisdictional prerequisite and had to be established by the plaintiff. Johnson v. United States, 10 Cir., 102 F.2d 729, 730; United States v. Mills, 6 Cir., 91 F.2d 487. The letter constituted relevant and probative evidence of the existence of the disagreement, and was properly admitted. Since the court charged the jury that the evidence showing that the Government’s bureau at one time found Smith to be totally and permanently incapacitated, “does not and cannot be considered by you as proving that he was totally and permanently incapacitated,” the defendant was not prejudiced. The District Court did not err in excluding evidence that Smith had received disability compensation from the Government. The simple question in the case was whether Smith was totally and permanently disabled while his War Risk policy was in force, a question the solution of which depended entirely upon the contractual rights of the respective parties and the facts as to disability, and not upon payment of certain sums by the Government under another statutory obligation voluntarily assumed, Chrisman v. United States, 9 Cir., 61 F.2d 673; United States v. Matory, 7 Cir., 71 F.2d 798. Since the defendant does not contend that Smith was malingering [Cf. Cockrell v. United States, 8 Cir., 74 F.2d 151, 154], and since the plaintiff did not seek to explain Smith’s work record by financial necessity [Cf. Prevette v. United States, 4 Cir., 68 F.2d 112], the fact whether or not Smith had received compensation was immaterial. The question whether the verdict is void for uncertainty is closer. It is linked with the plaintiff’s contention that the judg-< ment should be reversed because the verdict required an -entry of judgment for $10,000, and we deal with both of these questions in ruling upon this point. The jury’s verdict made no finding upon the determinative issues in the case. There was no general finding in favor of the plaintiff. All that the jury found is that the defendant undertook and promised, as alleged in the cause of action submitted to the jury, that is, that it contracted to pay $10,000 between December 1, 1926, and April, 1930, in case of total and permanent disability. But there was no issue, either of law, or fact, as to the existence of this contract. It was stipulated at the trial that the policy for $10,000 was in force between December 1, 1926, and May 1, 1930, and that a converted policy for $5,000 -was in force from May 1, 1930, to December, 1933, and was thereafter continued in force as extended insurance. The substantial issue in the case was whether Smith was totally and permanently disabled at any time during the life of either the $10,-000 policy or the $5,000 policy. While.the District Court instructed the jury if it found that Smith did “at any time while his insurance was in force and effect, become permanently totally disabled,” to “find the date upon which such permanent total disability occurred,” the form of verdict presented to the jury presumably contained no blank applicable to this question, and no such finding was made. The resulting confusion is shown by the fact that the plaintiff assumes that the disability existed while the $10,000 policy was in force, that is, prior to May 1, 1930, and therefore demands reversal of the judgment for $4,999.-70. The District Court evidently concluded that the disability occurred some time between December, 1933, and November 21, 1934, after the extended insurance went into effect, and entered judgment on this basis. If the amount had been conceded or undisputed, the court might have amended this verdict. Since one of the main issues in the case was the controversy over the amount due if the contract had been breached, we think that the court could not have cured the verdict by writing into it any particular amount.. The judgment in effect was an effort to amend the verdict, and was'erroneous. We recognize that if possible we should construe any verdict so as to give it effect even though it is not technically responsive to the issues. Roach v. Hulings, 16 Pet. 319, 321, 10 L.Ed. 979; Parks v. Turner & Renshaw, 12 How. 39, 44, 13 L.Ed. 883. But we think that this case falls within the alternative rule that where a verdict is not certain in itself and does not find facts from which certainty can be attained (Lee v. English, 107 Ga. 152, 33 S.E. 39; Burnett v. Harrington, 58 Tex. 359; Grays Harbor Boom Co. v. Lytle Logging Co., 38 Wash. 88, 80 P. 271), the verdict is void. Since it does not clearly find the matter in issue, it cannot be helped by implication (Jewett v. Davis, 6 N.H. 518), or be corrected or cured by the judgment (Cohues v. Finholt, 101 Minn. 180, 112 N.W. 12). The jury returned no general verdict in favor of the plaintiff, and made no finding for the plaintiff from which we may deduce what its conclusion was as to the critical date of total and permanent disability. We are informed in argument and by letter from the clerk of the United States District Court that this form of verdict is in general use in the district in question in War Risk cases; but this fact does not aid us where there are several possible amounts due, depending upon various possible dates of disability, and where the verdict does not cover these issues. Here we are presented only, with a finding upon facts not in issue and with no finding upon facts in issue. We are unable to resolve the difficulty. The judgment is reversed and the case is remanded for new trial. As both parties have appealed, they will be designated as they wore in the trial court, plaintiff and defendant, respectively. . Amended Complaint, Second Cause of Action. “6. The insured’s contract of war risk term insurance was maintained in full force and effect from December 1, 1926, to and including the month of April, 1930. The insured became and was totally and permanently disabled on, to-wit: October 17, 1928, at which time said contract of the United States Government Life (Converted) Insurance was in full force and effect in the amount of $10,000, due proof of said disability having been furnished to the defendant on, to-wit, October 17, 1928; “7. Claim was filed on said contract of insurance on, to-wit: July 20, 1932, which claim was denied by defendant on, to-wit: February 17, 1933, November 8, 1933, and November 3, 1939, thus creating a ‘disagreement’ as contemplated by law, and vesting in this court jurisdiction to hear and determine the issues herein involved.” Answer. “(6) The defendant denies the allegations contained in paragraph 6 of plaintiff’s ‘Second Cause of Action.’ “(7) The defendant denies the allegations contained in paragraph 7 of the ‘Second Cause of Action,’ except that it admits that claim for insurance benefits was filed by the plaintiff on July 20, 1932, and the defendant states that no disagreement existed when this lawsuit was filed * * “Dear Sir: A decision has been rendered by the Insurance Claims Counsel, saying that you have been permanently and totally disabled for insurance purposes from April 15, 1925, and not from April 15, 1932, as claimed in your application. * * * “This letter may be considered as evidence of disagreement on your claim for payment of disability benefits under the above described insurance policy in accordance with the terms of Section 19 of the Veterans Act, as amended.”

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

MARYLAND CASUALTY CO. v. MOORE. No. 3092. Circuit Court of Appeals, First Circuit. March 6, 1936. Edward F. McClennen, of Boston, Mass. (Arthur E. Whittemore and Edward Williamson, both of Boston, Mass., on the brief), for appellant. Harold S. Davis, of Boston, Mass. (William S. Youngman, Jr., of Boston, Mass., on the brief), for appellee. Before BINGHAM, WILSON, and MORTON, Circuit Judges. Certiorari denied 56 S. Ct. 749, 80 L. Ed. ——. MORTON, Circuit Judge. This is an appeal by the defendant below from a judgment against it in an action at law upon a bond. We shall refer to the parties, plaintiff and defendant, as they appeared in the trial court. The case was heard jury waived, the only evidence submitted being the report of an auditor to whom it had been referred. The essential facts are as follows: Pelham Hall, Inc., a Massachusetts corporation, acquired land in Brookline, Mass., and proceeded to erect on it a large apartment house having shops and offices on the street floor. Part of the necessary capital was obtained by an issue of bonds secured by a first mortgage on the property. Arrangements for the issue were made between Pelham Hall, Inc., and the American Bond & Mortgage Company, and the bonds were marketed by the latter company. The agreement covering this phase of the matter is in writing and is referred to as the “brokerage agreement.” The mortgage securing the bonds was made by Pelham Hall, Inc., to the plaintiff, Moore, as trustee for the bondholders. It was an elaborate tri-partite instrument signed by Pelham Hall, by Moore, and by the American Company. The brokerage agreement required Pelham Hall to give a bond with surety guaranteeing to the American Company, to Moore as trustee, and to the “legal holders” of the bonds the completion of the proposed building. This bond was duly given, the defendant signing it as surety. It is the bond in suit. No question is now made but what Moore as trustee is entitled to bring action upon it. The bond refers to, and incorporates by reference, both the brokerage agreement and the tri-partite mortgage. The condition of it is, basically, that if the principal (Pelham Hall, Inc.) “shall, well and truly erect or cause to be erected the said building,” according to the terms, conditions, and requirements of the agreements referred to, then the obligation shall be void. The bond also contains certain explicit agreements by the surety which will be referred to later. When the building was approaching completion, the contractor failed and abandoned the work; Pelham Hall, Inc., was unable to take it up and complete it; the defendant was requested to do so and refused; and Moore as mortgagee took possession of the property (as the mortgage gave him an express right to do under such circumstances), and carried the building forward to completion. The cost of doing so was about $306,500. Of this sum, $125,000 came from the proceeds of bonds which had been sold; the remaining $181,-500 was loaned to Moore by the American Bond & Mortgage Company. It is this latter sum with interest which he seeks to recover in the present suit. The defendant’s first contention, which in the court below was its principal contention, is that the building which was bonded was not the building which was built; that after the bond was signed the plans of the building were so radically changed that the surety is released. There is no controversy as to the changes which were made. They consisted, essentially, in enlarging and extending the commercial parts of the building, with a corresponding decrease in the apartments and in the rooms devoted to apartment use. They were confined to the street floor and to the portions of the building adjacent to or used with the shops and offices. The rest of the building was not changed at all; and its size was not changed. The number of apartments was reduced about 5 per cent., and the number of rooms about 10 per cent., and the commercial space was increased accordingly. The auditor found that the changes did not increase the cost of construction. He also found that the changes were substantial, and that the building actually erected could not properly be said to be the same building as that described in the plans and specifications on which the bond was based. The' District Judge said, “Since the changes did not increase the cost of construction, it is difficult to see how the surety has been in any way prejudiced by these modifications. While the modifications arc of a substantial nature, I regard them as within the scope of the undertaking which the defendant insured. They did not constitute a new contract, imposing additional burdens upon the surety. “The defendant was a compensated surety, and as such cannot invoke the ancient doctrine of strictissimi juris. * * * The fnore modem rule which, according to the great weight of authority, has been applied in cases involving the legal obligations of a compensated surety, is that the departure from the guaranteed contract [in order to release the surety] must be not only material but prejudicial to the surety. * * * The case at bar does not present a departure which substantially affects the character of the risk assumed by the defendant, and for that reason it is my opinion that it cannot be regarded as a valid defense to the plaintiff’s action. “I, therefore, find and rule that the plaintiff is entitled to recover judgment in this action in the sum of 500,000, the penal sum of the bond.” The question presented has been fre■quently considered in judicial opinions; it is not necessary to repeat the discussions. As the District Judge said, the great weight of authority supports the view which he took. See Maryland Casualty Co. v. Dunlap, 68 F.(2d) 289 (C.C.A.1) ; New Amsterdam Casualty Co. v. United States, 67 F.(2d) 488 (C.C.A.3) ; National Surety Co. v. Lincoln County, 238 F. 705 (C.C.A.9); Atlantic T. & D. Co. v. Laurinburg, 163 F. 690 (C.C.A.4). There are many cases to the same effect in the stafS courts. In American Surety Co. v. Greek Catholic Union, 284 U.S. 563, 52 S.Ct. 235, 76 L.Ed. 490 (1932), the court assumed the law to be that a change in the obligation guaranteed must, in order to release a compensated surety, be substantial and also prejudicial to the surety; and this appears to have been so decided in Chapman v. Hoage, 56 S.Ct. 333, 80 L.Ed. -, January 6, 1936. A change so basic as to alter the general character of the undertaking would, of course, release the surety. The District Judge was well warranted in finding that no such changes had been made in this case. Moreover, the contract, performance of which was guaranteed by the bond, expressly reserved the right to make changes in the building. The defendant contends that this provision did not permit any change in the number of apartments or of rooms. So construed, the provision practically freezes the building into the form shown on the plans at the time when the bond was made, which was clearly the very thing the parties were endeavoring to avoid. We think that the reference to the number of apartments and rooms in this clause of the contract is descriptive rather than limiting, and that the provision gives by contract a right of alteration not greatly different from that implied by law as above stated. It follows that the bond was a valid obligation attaching to the building actually erected. Passing by certain defenses of purely technical character raising points of practice or of pleading which do not seem to us to be well founded nor to require discussion, the defendant’s next contention is that steps, taken by Moore and the American B. & M. Company with reference to the completion of the building after the default by the contractor and the owner, operated to relieve the surety from liability, or from paying anything more than nominal damages. Moore, as trustee, went into possession and completed the building without foreclosing the mortgage. The expense to him of doing so was by the terms of the mortgage made an underlying lien preceding the bonds. The equity in the building when completed belonged to Pelham Hall, Inc., subject to a second mortgage which had been given. The auditor finds that the property then had “a fair market value of at least $1,450,000,” and that the liens on it secured by the first mortgage, i. e., the bonds, $1,200,000 and the completion expense $181,500, amounted to $1,381,500. In this situation the persons, who largely owned the stock of the American B. & M. Company and controlled that company, acquired all the stock of Pelham Hall, Inc., and a sufficient amount of second mortgage bonds to force a foreclosure of the second mortgage. They used a corporation controlled by them, the American Mortgage Loan Company, to buy the equity on the foreclosure of the second mortgage, paying $50,000 for it. They then organized a new corporation “The Pelham Hall Corporation” to own and operate the building and the title so acquired was transferred to this corporation. At this point Pelham Hall, Inc., and the second mortgagees had been eliminated, and the property was owned by the new corporation subject to the first mortgage. It is pressed upon us that because of the fact that the same persons or group of persons, referred to by the auditor as “the Moores,” owned the stock of the American B. & M. Company, the American Mortgage Loan Company, Pelham Plall, Inc. (at the time when the second mortgage was foreclosed), and Pelham Hall Corporation, the various corporate entities should be disregarded, and it should be held that the equity in the property was in effect owned by the same person who held the mortgage and thereby became merged in the mortgage title or interest held by Moore, trustee; that as owner (on this assumption) of the equity he stood in the shoes of Pelham Hall, Inc., the principal on the bond, and therefore could not recover against the surety. The auditor in an interesting report held in effect that there was what amounted to 'a conspiracy among the Moore interests to complete the building at the expense of the surety for the benefit, not of the bondholders for whom the completion bond was really made, but of the owners of the equity which was acquired by the Moores. He arrived at this result by a complete disregard of the various corporate entities involved. The question whether these corporate entities should be disregarded was carefully considered with reference to the rights of the bondholders in Hallett v. Moore, 282 Mass. 380, 185 N.E. 474, 91 A.L.R. 572, on alleged facts which appear to be as complete as those before us; and it was held that no sufficient grounds appeared for doing so. While the issue is here raised by a different party and there is, of course, no estoppel by adjudication, it is still the same question on substantially the same facts and it was, we think, correctly decided in the Hallett Case for reasons stated in that opinion. See, too, Commissioner v. Eldridge (C.C.A.) 79 F.(2d) 629, 631. It follows that there was no such merger of interests as the defendant contends and that Moore as trustee is entitled to enforce against the defendant the rights given him in the bond. The next point rests on certain provisions of the “brokerage agreement.” In that agreement it was expressly stated that payments to Pelham Hall, Inc., of the proceeds from the sales of mortgage bonds “shall be made only on satisfactory evidence furnished to the broker that the unpaid balance of the proceeds of the sale of said bonds is sufficient to complete, furnish, furniture, and equip the said proposed building.” As has been said, this agreement was by reference made part of the bond, and at the time when the contractor and Pelham Hall, Inc., abandoned the work, there was available from sales of bonds only $125,000, while $306,500 was to completé the .building. The defendant insists that the failure of the American Company and Pelham Hall to observe this provision of the contract between them relieves it from its obligation. Two of the obligees to whom the bond was made, Moore, trustee, and the bondholders, were not parties to the brokerage agreement; as to them it was res inter alios. The provision in question was one which might be waived by the American Company. It is said in the agreement that “parts or the whole of any of the installments of net proceeds of sale of said bonds may be paid to the Owner if the Broker * * * believe it advisable to do so.” If the rights of the other obligees were to be conditioned on a strict insistence by the American Company on its rights under this “withholding” provision, that fact should have been so stated in the bond. The mere incorporation of the brokerage agreement into the bond clearly does not have that effect. The present bond with three several obligees is radically different from those under consideration in the decisions relied on by the defendant. The final question is whether damages werc proved and were correctly assessed. The property in question was sold on foreclosure of the first mortgage in May, 1931. It is agreed that the amount received for it was less than the amount required to pay the bondholders in full, and that the deficit was more than the judgment in this case, including interest. The District Judge said, “If, after satisfying the prior lien of $181,000 or more, there was enough left (from the proceeds of the foreclosure sale) to satisfy the bondholders, I should then find no damages. If there was not enough left, I should find that they were damaged for whatever the deficiency was up to $181,000, plus interest, which the surety company was to pay.” It is doubtful whether this assessment is in accord with Massachusetts, law. See Province Securities Corp. v. Maryland Casualty Co., 269 Mass. 75, 168 N.E. 252. It is in accord with Trainor Co., Aetna Casualty & Surety Co., 290 U.S. 47, 54 S.Ct. 1, 78 L.Ed. 162, where the Massachusetts rule on this point is explicitly disapproved. It is unnecessary to decide whether the damages were correctly assessed under Massachusetts law, or whether the state or the federal rule should be applied, because under the provisions of the bond and the facts found the assessment made was clearly not too large. In the bond the defendant covenanted that “all sums advanced by the Obligees or any of them to make good any default of the Principal under said contract for the said bonds, and said mortgage or deed of trust, in any act or thing to be done or performed prior to and in-eluding the erection and completion of and payment for said building, the surety agrees to repay the persons so paying the same, forthwith as each payment is made, with interest at the rate of seven percent per annum from the time of the respective payments.” This is a straight contract for the repayment of money. The plaintiff as trustee made payments amounting to $181,-in W f i , 7 Came Wlthm ltS 1termS-lhe defendants contention, viz., that m making them Moore acted, not in his canacity as trustee for the bondholders, but" for himself and his associates who were endeavoring to secure the equity in the property, and in legal effect for Pelham Hall, Inc., which as principal on the bond would have no right to recover against its surety, is, for reasons above suggested, untenable, There are no findings by the District Judge in support of it, and the manner in which he dealt with the various requests for find^n8's anc\ rulings show that he rejected it. ^lie auditor s report did not compel a differellt conclusion. The judgment of the District Court is affirmed with interest and costs,

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

Are there two issues in the case?

NATIONAL ROOFING CONTRACTORS ASSOCIATION et al., Petitioners, v. Peter J. BRENNAN, Secretary of Labor, Respondent. No. 73-1082. United States Court of Appeals, Seventh Circuit. Argued Oct. 29, 1973. Decided April 30, 1974. Ira J. Smotherman, Jr., McNeill Stokes, Atlanta, Ga., Michael J. Hamblet, Chicago, Ill., for petitioners. Harlington Wood, Jr., Asst. Atty. Gen., Eloise E. Davies, Atty., Dept, of Justice, Washington, D. C., for respondent. Before KILEY, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges. KILEY, Senior Circuit Judge. Petitioners, representatives of employers in the roofing industry, filed their petition in this court, pursuant to 29 U.S.C. § 655(f), to set aside a safety standard promulgated by respondent Secretary, acting by virtue of § 6(a) and (b) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq., to protect workers on sloping roofs of buildings. We deny the petition. OSHA is the “first comprehensive effort by the federal government to regulate safety and health conditions in the workplace.” In enacting OSHA Congress stated that the purpose is “to assure so far as possible every working man and woman in the Nation safe and ■healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). The Secretary was authorized in OSHA, § 651(b)(3), to set mandatory standards for safety and health of employees. In promulgating the standard before us he followed the statutory procedures in § 655(b). Briefly stated, those procedures are as follows: When the Secretary receives or develops information upon which he determines a standard is needed, he may request recommendations from an advisory committee appointed by him. He then submits his proposal and the information he has received or developed to the committee. Upon receiving the committee’s recommendations, he publishes the proposed standard and affords interested persons an opportunity to submit written data or comments. Should objections be made to the proposal, and upon a request for a hearing, the Secretary is to publish in the Federal Register a notice specifying the proposal and set a time and place for a hearing. After the hearing he “shall” promulgate, or determine not to promulgate, the standard. I. Petitioners contend that the standard is void because the composition of the advisory committee appointed by the Secretary did not comply with the requirement of § 656(b) that the committee be representative of employers as well as employees and public representatives. A. Section 656(b) provides that any advisory committee appointed by the Secretary shall consist of not more than fifteen members and must include one or more designees of the Secretary of Health, Education and Welfare (HEW); “an equal number of persons qualified by experience and affiliation” to present the views of employers and employees; one or more representatives of state safety and health agencies; and “such other persons as the Secretary may appoint who are qualified by knowledge and experience . . . including one or more representatives of professional organizations of technicians or professionals specializing in occupational safety or health . . . ”; but the number of professionals appointed cannot exceed the number appointed as representatives of HEW and state agencies. Petitioners argue that no roofing industry member was appointed and that general contractors on the committee do not adequately represent them. The Secretary, before the effective date of OSHA, had exercised his authority under the Contract Work Hours and Safety Standards Act of 1969, 40 U.S.C. § 333 et seq. (CWHSSA) by appointing a nine-man advisory committee to make recommendations for a, safety standard to protect employees working on sloping roofs. After enactment of OSHA he enlarged the committee to the new requirements of fifteen members. It is not sufficient to charge that because a roofing subcontractor is not appointed to the committee, petitioners are ipso facto prejudiced. There is nothing to show that, although roofing contractors may be the group most affected by the standards, general contractors in conjunction with worker representatives and the other representatives are not competent to determine suitable safety standards for employees working on sloping roofs. The testimony does not show that the general contractors prejudiced petitioners’ position at the hearing. On the contrary, on this record the interests of the petitioners and the general contractors are plainly the same: general contractors must absorb the cost of safety devices required by the standard and they may be liable for subcontractor violations. Absent a showing of “specific prejudice” suffered by petitioners, we see no substance in the contention urged by petitioners that failure to appoint a representative of the roofing industry violated § 656(b). United States v. Pierce Auto Lines, 327 U.S. 515, 527-529, 66 S.Ct. 687, 90 L.Ed. 821 (1946). B. Petitioners argue also that the CWHSSA and OSHA advisory committees were improperly composed. We consider this argument frivolous. As his affidavit before us states, CWHSSA member MacCollum was not appointed as an employer representative as petitioner erroneously contends, but as a public member. And, contrary to petitioner’s claim, OSHA committee member Anania, an acting chief of the National Institute of Occupational Safety and Health, was a proper HEW desig-nee. Finally, there is no merit in the claim that the CWHSSA committee had an unequal number of employer and employee representatives. Petitioners’ contention that Mr. Burks was a public member is contradicted by a Department of Labor release announcing his appointment as a “management representative.” We hold that the standard before us is not void for failure of the Secretary to meet the requirements of 29 U.S.C. § 656(b) of OSHA in composing the advisory committee which recommended the standard. None of the cases referred to in petitioners’ brief aids them in their contentions. II. The challenged safety standard states: A catch platform shall be installed below the working area of roofs more than 16 feet from the ground to eaves with a slope greater than 4 inches in 12 inches without a parapet. In width, the platform shall extend 2 feet beyond the protection of the eaves and shall be provided with a guardrail, midrail, and toeboard. This provision shall not apply where employees engaged in work upon such roofs are protected by a safety belt attached to a lifeline. The “16 feet” height and “4 inches in 12 inches” slope standard departs from the standards previously promulgated by the Secretary of 20 feet for industry in general (the “national consensus”) and 10 feet for construction work, and a 3 inches in 12 inches slope requirement. Petitioners contend that the departure is not supported by “substantial evidence in the record as a whole,” and is “capricious, arbitrary and unreasonable.” Testimony, contentions and arguments, for petitioners at the hearing, and before us, are, first, that the 16 feet height is unnecessary — since overprotection makes workers careless, and less expensive devices are available; is without precedent; and compliance with it is too costly. The testimony that the 20 feet height was the appropriate standard implies that protection at some height was needed. Whether that should be 20 feet or 10 feet or 16 feet was considered by the committee. The 20 feet standard was rejected for the reason that a safer standard was needed in order to protect against falls from lower roofs which resulted in more serious injuries. The Secretary recognized the factor of cost of catch platforms and left room in his promulgation for “temporary parapets,” to be built by contractors, which could qualify under the standard as alternatives to catch platforms. We think this will enable those covered by the standards and sensitive to the costs involved for catch platforms to use ingenuity in providing less costly alternatives which could qualify. Finally, the committee could well have ignored the claim that overprotection makes workers careless. The fact that the American National Standards Institute (ANSI) adopted the “national consensus” standard of 20 feet, and that several states had adopted the same or greater height standards, is not binding on the Secretary. In fact, OSHA was enacted to supply the protection Congress deemed lacking in state regulations. He is required under § 655(a) to determine whether a standard different from the “national consensus” would result in improved safety or health. Similarly, while a layman would see little difference, perhaps, between a 4 inches and 5 inches in 12 inches slope, it was within the Secretary’s discretion to choose the more gentle slope. As one committee member stated, “You can work on a 4 inch roof. You get up to 5 inches or 6 inches and this is real tough.” Petitioners also argue that safety belts, which can be used in place of scaffolds, are dangerous, since ropes purporting to hold the workers safely have caused tripping of employees and more injuries than that protection prevented. The committee properly recognized the self-serving element implicit in this argument and cited the experience of iron workers who originally resisted safety belts but have come gradually to accept them as effective safety equipment. Finally, petitioners argue that the majority of injuries to employees engaged in roofing were due not to the lack of adequate safety protection but to negligence of workers, and that catch platforms in preventing falls could cause greater injury than the falls, and that the best protection against employee injury was efficiency on the part of employers and due care on the part of employees. Apparently the committee found, as we find, this argument unpersuasive. There is no showing in the statistics to bear out the first argument with respect to the negligence of workers, no convincing testimony that catch platforms would cause greater injuries, and the statistics would seem to indicate that employers have not performed their part in providing effective equipment for their employees. The committee knew of the 273 fatal or near-fatal falls from roofs in .one year from sloping, and even flat, roofs caused by holes therein, tripping on loose shingles, or the weather, as well as the high injury rate among roofing and sheet metal workers. An abundant record of oral and written statements, statistics, and testimony underlies the Secretary’s standard. As previously noted, the advisory committee is made up of representatives of employers, employees, technical and professional organizations, and state agencies, and the HEW designate. Reading the transcript of the committee’s final meeting has satisfied us that the committee members understood and considered the oral and written testimony at the hearing and were well informed about the petitioners’ viewpoints and about what safety standards were reasonable. The fundamental issue for the committee was whether the 16 feet height, 4 inches in 12 inches slope, or the 20 feet height, 5 inches in 12 inches slope, was appropriate to protect employees. We conclude that there is “substantial evidence in the record as a whole” to support the standard promulgated by the Secretary, Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731, 744-745 (1971), and that the standard is not “capricious” or “arbitrary.” III. Finally, petitioners contend that the challenged standard is unconstitutionally void in violation of their equal protection and due process rights and because of the standard’s vagueness. There is no merit in the contention. Petitioners argue that the 16 feet height standard before us — with potential civil and criminal liabilities attached for its violations — applied to the construction industry is more restrictive than the 20 feet standard applied to employers outside the construction industry ; that the standard bears no rational relationship to the purpose of OSHA; and that the discrimination is so unjustifiable as to violate due process under Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Under the applicable regulations, the 16 feet standard covers all “substantial” roofing work, including “work for construction, alteration and/or repairs including painting and decorating.” While we are not persuaded by the Secretary’s argument that because 1926.-451 (u) (3) covers construction work, and 1910.28(s)(3) covers maintenance work, the former is more dangerous, we agree with his argument that all persons doing the same kind of work on roofs are subjected to the 16 feet standard; that he addresses safety problems “by one step at a time”; and that his failure to apply that standard to the varying situations at this time is not a basis for a claim of invidious discrimination. We therefore hold that the Secretary did not deny due process to the roofing industry by not applying the 16 feet standard at this time to the roofing maintenance industry. A rational “one step at a time” approach defeats a constitutional claim. Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). What the Secretary has done here is to select one phase of the construction industry for a remedial standard. He may have passed over, temporarily, another phase of the industry, but that neglect is not a denial of constitutional rights. We need not discuss petitioners’ claim that the standard is so “vague and unintelligible” to those in the industry as to deny them due process. A reading of the testimony and oral statements in the record is sufficient to convince us that the standard is neither. For the reasons given, the petition is denied. . Petitioners are an association of roofing contractors and individual roofers. The roofing and sheet metal industry was selected one of five “target industries” of the Occupational Safety and Health Act because in 1969 its record was 43 disabling work accidents per one million man hours as compared to 14.8 injuries for all manufacturing enterprises. . (f) any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary. The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole. . Morey, The General Duty Clause of the Occupational Safety and Health Act, 88 Harv.L.R. 988 (1973). . OSHA Compliance Operations Manual, Chapters VII, X (1972). . The original advisory committee was formulated under CWHSSA. That the Secretary could temporarily make use of it for Ms OSHA responsiMlities is clear from the Senate Report: “It is the intent of the committee that the Secretary will develop health and safety standards for construction workers covered by Public Law 9-54 [CWHSSA] pursuant to the provisions of that law and that the Secretary will utilize the same mechanisms and resources for the development of health and safety standards for other construction workers newly covered by this act [OSHA].” On August 25, 1972 the nine-member CWHSSA committee was expanded to the fifteen-member OSHA committee. . Madden v. International Organization, etc., 259 F.2d 297 (7th Cir. 1958); Madden v. Int. Hod Carriers, 277 F.2d 688 (7th Cir. 1960); NLRB v. United Brotherhood of Carpenters, 261 F.2d 166 (7th Cir. 1958); Pinkett v. United States, 105 F.Supp. 67 (D.Md.1952). . 29 C.F.R. 1926.451 (u) (3). . Section 655(a) : “[T]he Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, . . . unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. ft . Section 655(f), Judicial Review, provides: “The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.” See Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731, 744-745 (1971) ; Associated Industries v. Dept. of Labor, 487 F.2d 342 (2nd Cir. 1973). . Written comments were aimed at the cost of making catch platforms which would range upward of $750.00 and in some instances exceed the cost of the roofing. . The purpose of the 16 feet level was to include two-story buildings and exclude single-story buildings. 37 Fed.Register 27599, Dec. 16, 1972. . Including New York, Connecticut, Rhode Island and New Jersey. . Comment, The Occupational Safety and Health Act, 34 La.L.R. 102 (1973). . In early 1970, “[p]rivate industry and state regulation were not doing an adequate job of insuring health and safety in the workplace.” Gross, Occupational Safety and Health Act: Much Ado about Something, 3 Loyola Univ.L.J., 247, 249 (1972). . 29 U.S.C. § 666. . 29 C.F.R. 1910.28 (s) (3). . 29 C.F.R.. 1910.12(b).

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"?

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

WASHINGTON LOAN & TRUST CO. v. ALLMAN. No. 6081. Court of Appeals of the District of Columbia. Argued Feb. 5, 1934. Decided March 5, 1934. Rehearing Denied March 26, 1934. Arthur Peter, Charles V. Imlay, and Yin-son L. Smathers, all of Washington, D. C., for appellant. Edward F. Colladay and Joseph C. Me-Garraghy, both of Washington, D. C., for appellee. W. W. Millan, William E. Richardson, and Milton D. Campbell, all of Washington, D. C., amici curias. Before MARTIN, Chief Justice, and ROBB, YAN ORSDEL, HITZ, and GRONER, Associate Justices. GRONER, Associate Justice. The Departmental Bank was incorporated under the laws of Arizona in August, 1920. Its charter allowed it to do business within or without that state. Immediately after its incorporation it established a banking house in Washington City, and continuously thereafter did business there and nowhere else. In July, 1932, the Comptroller of Currency, having determined the bank was insolvent, took possession, appointed appellee as receiver, and a little later made an assessment upon the shareholders equal to 100 per cent, of the par value of the shares of its capital stock. Appellant, as the owner of 102 shares of stock, refused to pay the assessment. The-receiver brought suit, and appellant demurred to the declaration. The lower court overruled the demurrer, and, appellant having refused to plead further, judgment went against him, and he brings the case here on appeal. The grounds relied on are that the Arizona statutes do not vest power in a federal receiver to enforce double liability against stockholders in an Arizona corporation (bank); that the federal statutes do not attempt to do so; and that there is no power in Congress to enact such a statute. Article 14, § 11, of the Constitution of Arizona (1910) provides: “The shareholder or shareholders of every banking or insurance corporation or association shall be held individually responsible, equally and ratably, and not one for another, for all contracts, debts, and engagements, of such corporation or association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares of stock;” Substantially the same language was contained in the charter of incorporation. The provision of the Arizona Constitution to which we have referred has been considered by the Supreme Court of Arizona, and in the case of Fredericks v. Hammons, 33 Ariz. 310, 264 P. 687, was declared to be self-executing and, without more, to impose double liability on all shareholders of a bank organized after its adoption. It is our duty to follow -this construction. Middletown Nat. Bank v. Railway Co., 197 U. S. 394, 404, 25 S. Ct. 462, 49 L. Ed. 803. From this it follows that a purchaser of shares of stock in an Arizona bank voluntarily assumes by the act of purchase an obligation to become liable to the extent provided in the Arizona Constitution, and such an obligation, obviously, is contractual and may be enforced like any other contract. But it is urged here that the Legislature of Arizona (Laws of 1922, c. 31, § 23) had prior to appellant’s purchase made definite provisions for the enforcement of the double liability provision of the Constitution and had limited the power to an Arizona receiver, and by him only after a judicial determination of insolvency, and it is insisted that this created a substantive right and that a later statute of Arizona (Laws of 1928, c. 8, par. 227) passed after appellant’s purchase of shares, which enlarges the provisions of the act in permitting the claim to be enforced by the superintendent of banks or by any receiver is an impairment of the contract between the shareholder and the corporation and is therefore unconstitutional. But we need not stop to notice this, except to say that the contention is clearly without merit and is contrary to the doctrine approved by the Supreme Court in Henley v. Myers, 215 U. S. 373, 385, 30 S. Ct. 148, 54 L. Ed. 240, and Converse v. Hamilton, 224 U. S. 243, 253, 32 S. Ct. 415, 56 L. Ed. 749, Ann. Cas. 1913D, 1292, where it is said in substance that legislation of this nature is procedural and that methods of procedure in actions on contracts that do not affect the substantial rights of the parties are always subject to the control of the Legislature. Here no new right is created by the amended act, nor any penalty imposed. It neither impairs the obligation of the contract nor increases the liability. Hence, even if it be conceded that under the Arizona law as it was prior to 1928 the shareholders’ liability could only be enforced by a receiver appointed pursuant to the provisions of the laws of that state, the limitation no longer exists since, as we have seen, the Legislature, as it had the right to do, has struck down the limitation and provided specifically that the liability may be enforced by “any receiver,” and this change, we think, applies to the ease of shareholders who purchased before its enactment equally with those who purchased after. This brings us to the questions whether the federal statute, giving the Comptroller power to appoint a receiver in the case of a foreign banking corporation doing business in the District, is valid; and, if it is, whether the receiver so appointed is empowered, within the provisions of the Arizona laws, to bring the suit. As we think both questions must be answered in the affirmative, we need not consider the further question, whether the receiver, without regard to the provisions of the Arizona laws, would have the same right. Title 5, § 298, of the D.-C. Code (1929) provides as follows: “Banking Institutions to be Under Supervision of Comptroller of Currency. — All savings banks or savings companies, or trust companies, or other banking institutions, organized under authority of any act of Congress to do business in the District of Columbia, or organized by virtue of the laws of any of the States of this Union, and having an office or banking house located within the District of Columbia where deposits or savings are received, shall be, and are hereby, required to make to the Comptroller of the Currency and to publish all the reports which national banking associations are required to make and publish under the provisions of sections 5211, 5212, and 5213 of the Revised Statutes of the United States, and shall be subject to the same penalties for failure to make such reports as are therein provided, which penalties may be collected by suit before the supreme court of the District of Columbia. And the Comptroller shall have power, when in his opinion it is necessary, to take possession of any such bank or company, for the reasons and in the manner and to the same extent as are provided in the laws of the United States with respect to national banks. s * * ” This provision in plain language gives authority to the Comptroller “to take possession” of any bank having a banking house in the District of Columbia, whenever in his opinion it is necessary “to the same extent” as if it were a national bank, and this authority (act June 30, 1876, e. 156, Rev. St. § 5234, 12 USCA §§ 191,192) of the Comptroller in the ease of national banks applies in every ease in which he is satisfied of the insolvency of the bank. In such ease he may appoint a receiver, and the person so appointed by the express terms of the law (Rev. St. § 5234, 12 USCA § 192) may enforce the individual liability of the stockholders. We have therefore here a ease in which a banking corporation is formed in one of the United States for the purpose of conducting a banking business in the District of Columbia and which from its organization to its insolvency operates exclusively in this District. If in such a case it is within the power of Congress to provide the conditions under which the bank may do business here, it cannot be successfully urged that it has not done so, for the statutes we have noticed and referred to expressly provide that a bank in such a ease “organized by virtue of the laws of any of the States” shall be treated in all respects with relation to its duties and responsibilities as a national bank. Nor can there be any doubt, in our view, of the power of Congress in the respects mentioned. Congress has all the authority and power in the District of Columbia that a state has within the confines of its own territory. It has also all the-power granted by the Constitution to the federal government. It has, therefore, both the reserved powers, of the state and the powers granted by the states to the national government, and, except as limited by the Constitution, its power is plenary. The fundamental difference between the several states and the District of Columbia is that in the former there exist separately both the powers of the state and the powers of the general government. In the District the two powers are united and centered in the federal government. The whole subject and its history from the beginning has recently been so fully and so ably discussed by the Supreme Court, speaking through Mr. Justice Sutherland (O’Donoghue v. United States, 289 U. S. 516, 53 S. Ct. 740, 77 L. Ed. 1356), that reference to the opinion in that ease is sufficient. Congress, as we have seen, has imposed definite conditions on a banking institution chartered in one of the United States as a prerequisite of doing business in the District of Columbia. That a state has such power is unquestionable. Pinney v. Nelson, 183 U. S. 144, 22 S. Ct. 52, 46 L. Ed. 125. These conditions were in effect when the bank here involved was chartered. Appellant obtained his shares with knowledge not only of the conditions but as well that the bank intended to confine its activities to the District of Columbia. He will not now be heard to say that his corporation is not bound by the laws of the District. When it established its banking house here and held itself out to the public as doing business here, it submitted itself to and became subject to the provisions of the act of Congress giving the Comptroller power, when in his opinion necessary, to take possession of the bank. To go that far and then to. say that the receiver so appointed is without power to collect, for the purpose of satisfying the claims of creditors, the assets of the bank, including a liability of stockholders — prescribed by the law of its incorporation and-likewise contained in its charter —would be to deny the power of a state to declare the terms on which a foreign corporation may do business within its borders. That the states have such power is clear; equally clear is it that Congress has it with relation to the District. The question here is not the right of Congress to impose double liability on the shareholder of a foreign corporation. That liability is here fixed by law and contract. Appellant in the purchase of his stock agreed and assented to it. The question is the narrower one whether a receiver appointed by-the law of the place in which the corporation is doing business and where its property is located, may, in order to pay its debts, enforce an acknowledged liability. We think the question too plain for argument. The liability here imposed by the Constitution of Arizona, and included in the articles of incorporation, created a contract on the part of the shareholders which followed them wherever they might go, and, in the event of the bank’s insolvency, made them liable to respond at the instance of a receiver lawfully appointed at the place where the business was done, as completely and as fully as if the appointment had been made in Arizona. See Thomas v. Matthiessen, 232 U. S. 221, 34 S. Ct. 312, 58 L. Ed. 577. Affirmed.

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

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

Albert MOORE, Petitioner-Appellee, v. John DeYOUNG, Warden, Passaic County Jail, and Frank Davenport, Sheriff, Respondents-Appellants. No. 74-1858. United States Court of Appeals, Third Circuit. Argued Feb. 11, 1975. Decided April 8, 1975. Stanley C. Van Ness, Public Defender, John H. Ratliff, Asst. Deputy Public Defender, East Orange, N. J., for petitioner-appellee. Joseph D. J. Gourley, Passaic County Prosecutor, John P. Goceljak, Asst. Prosecutor, Paterson, N. J., for respondents-appellants. Before SEITZ, Chief Judge, and AL-DISERT and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. The petitioner Moore has been exposed to state court trial in New Jersey since 1967, as a result of his having been charged with the commission of a crime in January of that year. The sequence of events recited below ultimately presents this question for resolution: Should a federal court grant a writ of habeas corpus and enjoin an ongoing state criminal proceeding before the petitioner has stood trial and before the state courts have ruled on the merits of his claim that a speedy trial has beén denied? The district court answered the questions affirmatively; issued the writ and enjoined further state proceedings by its order of June 21, 1974. The respondent Passaic County Prosecutor appeals. In resolving the questions we apply two important principles controlling the sensitive area of state-federal relations: (1) the normal requirement that state appellate courts be given the initial opportunity to consider the federal constitutional claim; and (2) the teaching of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Despite our distress with the manner in which a state law enforcement office has conducted the proceedings leading to the present prosecution, we nevertheless are obliged to reverse the district court and direct that the writ be denied and the injunction against state proceedings vacated. I. FACTS On February 6, 1967, a complaint was filed in the Paterson, New Jersey, Municipal Court, charging Moore with the rape of a female infant on January 11, 1967. Following an investigation, the police on January 30, 1967 sent a teletype request to authorities in Richmond, Virginia, where Moore had previously lived and worked, notifying them that Moore was wanted for rape. On April 8, 1967, Moore was arrested in Richmond on an unrelated charge. On June 8, 1967, Indictment Number 641-66 was returned by the Passaic County Grand Jury, charging Moore with carnal abuse in violation of N.J.S.A. 2A:138—1. This indictment was followed by a warrant for Moore’s arrest which ultimately resulted in the lodging of a detainer on August 3, 1967, against Moore’s release from confinement in Virginia. Moore claims that he first learned of the indictment and resulting detainer when he appeared before a parole board in December 1968. On December 7, 1968, Moore sent his first letter to the Passaic County Prosecutor, asking that he be given a speedy trial or that the indictment be dismissed. This letter was followed by a document entitled “Petition for Speedy Trial” which Moore apparently sent to the Passaic County Court. This “Petition” prompted the Passaic County Assignment Judge to send a letter, dated January 30, 1969, to the Passaic County Prosecutor advising him that failure to bring Moore promptly to trial might result in dismissal of the indictment. After receipt of the court’s letter, the prosecutor’s office undertook on February 11, 1969, to extradite Moore from Virginia. On March 25, 1969, the New Jersey Governor’s Office forwarded to the Virginia Governor’s Office a requisition and an executed Governor’s Agreement for Moore’s extradition to New Jersey. Neither this procedure, nor a simpler one available under Virginia law and recommended to the New Jersey authorities by the Assistant Attorney General of Virginia, was ever implemented. The prosecutor explains this failure to follow through on Moore’s extradition as follows: “... This procedure, however, was not implemented, apparently because the assistant prosecutor handling the case left the Prosecutor’s Office and the continuity of the matter was disrupted.” (Appellant’s Brief at 6). On April 16, 1969, Moore wrote another letter to the Passaic County Prosecutor in which he demanded that the charges against him be dropped for failure to grant a speedy trial. Subsequently, Moore prepared a handwritten “Motion for Dismissal”, dated August 6, 1969, demanding either that he be brought to New Jersey for trial or that the detainer pending against him be withdrawn. On May 7, 1970, the Virginia State prison authorities notified the Passaic County Sheriff that Moore would complete his sentence on June 30, 1970. Ultimately, Moore was returned to Passaic County where, on July 16, 1970, he was arraigned on Indictment 641-66 (charging carnal abuse) and pleaded not guilty. Prior to trial, Moore’s counsel filed a motion pursuant to New Jersey Rule 3:25—2 to dismiss the indictment on the grounds that Moore had been denied the right to a speedy trial and that no date certain (for trial) had been set. A hearing was held on September 25, 1970 which resulted in the granting of Moore’s motion and the dismissal of the indictment. The state took no appeal. Thereafter on July 20, 1971 (ten months after dismissal of the indictment charging Moore with carnal abuse), the Passaic County Grand Jury returned three new indictments charging Moore with atrocious assault and battery (Indictment No. 1004-71), threat to kill (Indictment No. 1005—71), and impairing the morals of a child (Indictment No. 1006-71). Each of these new indictments was based on the incident of January 11, 1967, which had originally given rise to the (by then dismissed) carnal abuse indictment. After arraignment on August 10, 1971 Moore moved to dismiss the three new indictments claiming double jeopardy and collateral estoppel. On October 29, 1971 Moore’s motion was granted and all three indictments were dismissed. On appeal, the Appellate Division affirmed the dismissal of Indictment No. 1006-71 (impairing the morals of a minor) on the ground that the proofs required to establish the charge of “impairing” would coincide with those necessary to prove carnal abuse. As to the remaining two indictments, however, the Appellate Division reversed the judgment of the trial court. It reasoned that: “... Inasmuch as neither atrocious assault and battery [Indictment No. 1004 — 71] nor threat to kill [Indictment No. 1005 — 71] is an essential element of the crime of carnal abuse, the dismissal of the carnal abuse charge does not operate to bar the prosecution of the defendant on the charges of atrocious assault and battery and threat to kill....” (Citations omitted). With respect to delay, the court concluded that in the absence of evidence of “actual prejudice” (caused by the delay in the return of the indictments) the indictments should not be dismissed. After unsuccessfully seeking leave to appeal this ruling, Moore moved for and obtained an evidentiary hearing to demonstrate “prejudice.” At the conclusion of the hearing on March 22, 1973, the court ruled that “... no actual prejudice [was] caused by the delay in bringing the matter to trial...”, and denied Moore’s motion to dismiss the two indictments. Moore sought leave to appeal this order, first to the Appellate Division, and then to the New Jersey Supreme Court. Both applications for leave to appeal were denied; by the Appellate Division on May 10, 1973, and by the New Jersey Supreme Court on June 13, 1973. It was then (on June 19, 1973) that Moore filed his petition for a Writ of Habeas Corpus in the district court asserting denial of the right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments. He sought discharge from custody and a permanent injunction against all state proceedings with respect to Indictment Nos. 1004 — 71 (atrocious assault and battery), and 1005-71 (threat to kill). On June 21, 1974, the district court granted Moore’s petition for a Writ of Habeas Corpus and ordered that the state criminal proceedings be permanently stayed. This appeal followed. II. For state prisoners, federal habe-as corpus is substantially a post-convietion remedy, Peyton v. Rowe, 391 U.S. 54, 60, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1967); see 28 U.S.C. § 2254. Nevertheless, jurisdiction to issue the writ exists in the federal courts before a judgment is rendered in a state criminal proceeding. See 28 U.S.C. § 2241. In discussing exhaustion in the habeas corpus context, few cases discern between pre-trial and post-trial situations. With respect to state prisoners, it is only in the post-trial setting that exhaustion has been mandated by statute, 28 U.S.C. § 2254(b). 28 U.S.C. § 2241(c)(3), which empowers district courts to issue the writ before a judgment is rendered in a criminal proceeding, makes no reference to exhaustion. In this area, an exhaustion requirement has developed through decisional law, applying principles of federalism. The distinction between § 2241, pre-trial exhaustion, and § 2254, post-trial exhaustion, is recognized and discussed in Justice Rehnquist’s dissent in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 503, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). For our purposes, it is sufficient to recognize that, although there is a distinction in the statutory language of §§ 2254 and 2241, there is no distinction insofar as the exhaustion requirement is concerned. As early as 1886, the Supreme Court, in a pre-trial context held that: “... where a person is in custody, under process from a State court of original jurisdiction, for an alleged offense against the laws of such State, and it is claimed that he is restrained of his liberty in violation of the Constitution of the United States, the Circuit Court has a discretion, whether it will discharge him, upon habeas corpus, in advance of his trial in the court in which he is indicted....” Ex parte Royall, 117 U.S. 241, 252-53, 6 S.Ct. 734, 741, 29 L.Ed. 868 (1886). More recently, the pre-trial availability of ha-beas corpus has been affirmed in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). In Fay, the Court had occasion to explain its earlier decision in Ex parte Royall, supra, as follows: “... The Court held [in Ex parte Royall, supra ] that even in such a case the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, see 117 U.S., at 245, 250-251 [6 S.Ct., at 739—740], but that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings. This qualification plainly stemmed from considerations of comity rather than power, and envisaged only the postponement, not the relinquishment, of federal habeas corpus jurisdiction, which had attached by reason of the allegedly unconstitutional detention and could not be ousted by what the state court might decide. As well stated in a later case: ‘... While the Federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws, the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are equally with the Federal courts charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the Federal court will remain unimpaired.’ [Cook v. Hart, 146 U.S. 183, 194-195 [13 S.Ct. 40, 43-44, 36 L.Ed. 934] (1892) other citations in footnote omitted]. These decisions fashioned a doctrine of abstention, whereby full play would be allowed the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings. Thus the Court has frequently held that application for a writ of habeas corpus should have been denied “without prejudice to a renewal of the same after the accused had availed himself of such remedies as the laws of the State afforded....” Minnesota v. Brundage, 180 U.S. 499, 500-501 [21 S.Ct. 455, 456, 45 L.Ed. 639]. See also Ex parte Royall, supra [17 U.S.] at 254 [6 S.Ct., at 741]. With refinements, this doctrine requiring the exhaustion of state remedies is now codified in 28 U.S.C. § 2254. [footnote omitted] But its rationale has not changed: ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.... Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.’ Darr v. Burford, 339 U.S. 200, 204 [70 S.Ct. 587, 590, 94 L.Ed. 761], The rule of exhaustion ‘is not one defining power but one which relates to the appropriate exercise of power.’ Bowen v. Johnston, 306 U.S. 19, 27 [59 S.Ct. 442, 446, 83 L.Ed. 455]. Cf. Stack v. Boyle, 342 U.S. 1 [72 S.Ct. 1, 96 L.Ed. 3]; Frisbie v. Collins, 342 U.S. 519 [72 S.Ct. 509, 96 L.Ed. 541]; Douglas v. Green, 363 U.S. 192 [80 S.Ct. 1048, 4 L.Ed.2d 1142].” 372 U.S. at 418-20, 83 S.Ct. at 837. The teaching derived from these authorities may be stated as: (1) federal courts have “pre-trial” ha-beas corpus jurisdiction; (2) that jurisdiction without exhaustion should not be exercised at the pretrial stage unless extraordinary circumstances are present. See Frisbie v. Collins, 342 U.S. 519, 520-521, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Reid v. Jones, 187 U.S. 153, 154, 23 S.Ct. 89, 47 L.Ed. 116 (1902); United States ex rel. Richardson v. Rundle, 461 F.2d 860, 864-65 (3d Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 971, 35 L.Ed.2d 273 (1973); (3) where there are no extraordinary circumstances and where petitioner seeks to litigate, the merits of a constitutional defense to a state criminal charge, the district court should exercise its “pre-trial” habeas jurisdiction only if petitioner makes a special showing of the need for such adjudication and has exhausted state remedies. Braden, supra. With these principles in mind, we turn to Moore’s arguments to determine whether he has demonstrated such extraordinary circumstances or has exhausted state court remedies on the merits. III. Moore seeks the writ of habeas corpus and injunctive relief based on the denial of his right to a speedy trial under the Sixth and Fourteenth Amendments. He argues: (1) the state trial court, in a pre-trial hearing, refused to hold that he was prejudiced by “delay” and refused to order the state charges dismissed; (2) the New Jersey appellate courts have denied his applications for leave to appeal that order; (3) he should not “. be forced to endure a criminal trial which is unfair from the beginning because of delay and incident prejudice.. Trial [itself] would be the governmental act which would violate [his] right to speedy trial....” (Appel-lee’s Brief at 16). Thus, Moore concludes that since he has no further avenue for relief in the state courts short of the trial itself and since it is his alleged “right not to stand trial” which is at issue, he will be irreparably injured unless he is afforded federal habeas corpus and injunctive relief before trial in the New Jersey state court commences. In support of his contention, Moore directs this Court’s attention to Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) which, he argues, is dispositive of the present case. Braden, like the present case, involved an application for a writ of habeas corpus in which the petitioner alleged denial of his constitutional right to a speedy trial. The petitioner in Braden was confined in an Alabama state prison. He sought to challenge the validity of a Kentucky detainer which had been lodged against his release from custody in Alabama. While the Supreme Court granted certiorari to consider a choice of forum question, not relevant to disposition of the present case, the Court also considered whether petitioner was entitled to raise his claim of denial of a speedy trial prior to actually standing trial on the Kentucky indictment. Since the Supreme Court in Braden ultimately concluded that petitioner could raise his speedy trial claim on a petition for habe-as corpus before standing trial on the Kentucky indictment, petitioner Moore urges that Braden dictates the same result in the present case. We believe that Moore’s argument fails because of two critical distinctions between Braden and the present case. First, in Braden, the Supreme Court emphasized that state courts had the opportunity to consider the merits of the speedy trial issue before Braden applied for habeas corpus relief in the district court. “... petitioner has exhausted all available state remedies as a prelude to this action.... He has made repeated demands for trial to the courts of Kentucky, offering those courts an opportunity to consider on the merits his constitutional claim of the present [emphasis in original] denial of a speedy trial. Under these circumstances it is clear that he has exhausted all available state court remedies for consideration of that constitutional claim, even though Kentucky has not yet brought him to trial.. The fundamental interests underlying the exhaustion doctrine have been fully satisfied in petitioner’s situation.. ” (emphasis added) 410 U.S. 489-91, 93 S.Ct. 1127. By contrast, the New Jersey appellate courts have not had the opportunity of considering Moore’s claim of denial of a speedy trial. Under New Jersey procedure, Moore was not entitled, as of right, to appeal the pre-trial order of the state judge regarding “lack of prejudice.” Rather, Moore’s applications to the Appellate Division and to the New Jersey Supreme Court were motions for “leave to appeal.” N.J.Ct.R. 2:2-4; 2:2—2, see N.J.Ct.R. 2:2-5. Denial of Moore’s mol tions seeking interlocutory review did' not constitute a ruling by either the Appellate Division or the Supreme Court on the merits of Moore’s speedy trial claim. Nor did it, for purposes of the exhaustion requirement, constitute an opportunity to consider Moore’s constitutional claim on the merits. Cf. Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974). See United States ex rel. Geisler v. Walters, No. 79—1345 (3d Cir. Feb. 5, 1975). In Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the Supreme Court indicated that “exhaustion” means exhaustion of the very issue which forms the basis for relief sought in the federal courts. The Supreme Court stated: “We emphasize that the federal claim must be fairly presented to the state courts.... [I]t is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts.... Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.. ” (citations omitted). Moore did not exhaust his state court remedies • prior to application for federal habeas corpus relief. This issue is still available to Moore as an affirmative defense at trial and thereafter, on appellate review. Indeed, the trial court expressly recognized that additional evidence as to prejudice on the issue of delay could be adduced at trial. / Second, the present case is unlike Braden, supra, in the purpose for which pre-trial habeas corpus relief was sought. In Braden, the court was careful to note: “... [Petitioner made no effort to abort a state proceeding or to disrupt the orderly functioning of state judicial processes. He comes to federal court, not in an effort to forestall a state prosecution, but to enforce the Commonwealth’s obligation to provide him with a state court forum. He delayed his application for federal relief until the state courts had conclusively determined that his prosecution was temporarily moribund.. We emphasize that nothing we have said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court. The contention in dissent that our decision converts federal habeas corpus into ‘a pretrial-motion forum for state prisoners,’ wholly misapprehends today’s holding.” 410 U.S. at 491, 493, 93 S.Ct. at 1128. Here, by contrast, Moore does not seek to enforce the state’s duty to provide him with a trial. (Indeed, it would appear, from the determination with which the Passaic County Prosecutor pursues the present appeal, that the state, now, is more than willing to provide Moore with a state court trial — whatever may have been its past derelictions of that duty.) Rather, Moore seeks to abort a trial in the state courts. As indicated, supra, Braden specifically cautioned that its holding should not be construed as authorizing pre-trial habeas interference by federal courts in the normal functioning of state criminal processes. We believe that the present case is precisely the situation anticipated by the Supreme Court’s caveat that federal courts should not permit the claimed denial of a speedy trial, presented in a pre-trial application for habeas, to result in the “derailment of a pending state proceeding.” Both before and after Braden, cases involving speedy trial issues required state exhaustion in advance of federal habeas corpus consideration. Braden, as we have noted, reinforces that requirement — a requirement not met by Moore. Thus, if Moore is to prevail, he can do so only by demonstrating “extraordinary circumstances” which would, by their very nature, obviate the exhaustion requirement. IV. In an effort to bypass the state exhaustion requirement, Moore contends that his constitutional right to a speedy trial is so unique that it should bar not only a conviction (for the underlying offense), but the trial for that offense as well. That unique quality, Moore claims is coterminous with and equated to the “extraordinary circumstances” which permit habeas- relief prior to state exhaustion. From the premise that he has a right not to stand trial, Moore proceeds to the conclusion that, to avoid the threatening state trial, there must be some pre-trial forum (if not a state forum, then a federal forum) available to test the merits of his constitutional claim. Otherwise, he argues, he would be required to undergo the rigors of trial to vindicate his claim that the state court can no longer bring him to trial. Cf. United States v. Lansdown, 460 F.2d 164, 171 (4th Cir. 1972) (wherein a similar argument was advanced in a double jeopardy context. There, on direct appeal, the appellant sought “...to be free from being twice forced to stand trial for the same offense... ”). We are not prepared to hold that either the chronology of events leading to this prosecution or the alleged denial of Moore’s right to a speedy trial, constitutes such “extraordinary circumstances” as to require federal intervention prior to exhaustion of state court remedies. We perceive nothing in the nature of the speedy trial right to qualify it as a per se “extraordinary circumstance.” We know of no authority, either pre- or post-Braden, supra, that excepts or singles out the constitutional issue of speedy trial as an extraordinary circumstance sufficient to dispense with the exhaustion requirement. To the contrary, the cases in which the speedy trial claim has been raised in a pre-trial habe-as context have granted the writ only after exhaustion on the merits in the state courts (see III supra). In this Circuit, some years before Bra-den, we affirmed the denial of habeas corpus where the petitioner, prior to trial, advanced the same argument as Moore does here. In that case, Matzner v. Davenport, 288 F.Supp. 636 (D.N.J. 1968), aff’d, 410 F.2d 1376 (3d Cir. 1969), cert. denied, 396 U.S. 1015, 90 S.Ct. 570, 24 L.Ed.2d 506 (1970), the Court held the petition to be premature and quoted with approval the following language from United States ex rel. Lowry v. Case, 283 F.Supp. 744 (E.D.Pa.1968): “... the petition is premature. I have found no case in which federal habeas was invoked for failure of a speedy state trial in advance of the trial. This is hardly surprising, for it may well be that the defendant would be acquitted at trial. Or it may be that even if convicted, relator would be unable to demonstrate that he was unfairly prejudiced by the delay.” (emphasis supplied) 288 F.Supp. at 639. In Kane v. Virginia, 419 F.2d 1369, 1372 (4th Cir. 1970), the Fourth Circuit (also pre-Braden ) stated in its discussion of federal habeas corpus relief prior to state trial: “Although federal habeas corpus relief is not ordinarily available to a state prisoner before trial, the peculiar nature of the right to a speedy trial requires an exception to this rule. Only a present remedy can lift its dual oppressions.... ” (citation omitted). On its face, it would appear that this statement supports the position taken by the petitioner Moore. However, the quoted language cannot afford comfort or support to petitioner Moore, for in disposing of Kane’s contentions, that Court, held that, despite the “peculiar nature of the right”, federal habeas corpus was available only after the exhaustion of all available state remedies. Hence, even in those cases to which we have been referred where “extraordinary circumstances” were alleged in a speedy trial petition, the courts have required state exhaustion prior to federal habeas corpus availability. This is not to say that in a particular “extraordinary circumstance” (above and beyond the mere fact of denial of speedy trial) the exhaustion obstacle could not be surmounted. Justice Rehnquist, in his dissenting opinion in Braden, justifies pretrial federal interference by way of ha-beas corpus in situations where jurisdiction is lacking for the state to bring any criminal charges against the petitioner. 410 U.S. at 508, 93 S.Ct. 1123. Here, we need not decide the boundaries of “extraordinary circumstances” sufficient to warrant pre-trial interference. Suffice it to say whatever may be the limits or contours of the “extraordinary circumstances” exception, Moore’s petition falls outside those limits. Moore having failed to exhaust his state remedies on the merits and having failed to present an “extraordinary circumstance” which would warrant pre-trial, pre-exhaustion habeas corpus relief, we conclude that the district court erred as a matter of law in granting Moore’s petition. V. The district court’s order granting the writ of habeas corpus also enjoined state proceedings in connection with the two indictments under which Moore was charged. Had the writ properly issued, we would not question an injunction as appropriate in aid of the writ and the court’s jurisdiction. See 28 U.S.C. § 1651. With the denial of the writ, however, the question to be resolved is whether Younger v. Harris, supra, precludes injunctive relief. In Helfant v. Kugler, 500 F.2d 1188, 1192-93 (3d Cir.), cert. granted, 419 U.S. 1019, 95 S.Ct. 492, 42 L.Ed.2d 292 (1974), we analyzed Younger as follows: “Younger v. Harris, supra, 401 U.S. at 53, 91 S.Ct. at 755, holds that a federal court should not enjoin a pending state prosecution in the absence of a showing of bad faith, harassment or other ‘extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment.’ Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir. 1973); see, Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971). Neither the Supreme Court nor this court has considered what extraordinary circumstances will justify federal intervention in a pending state prosecution. But the predicate of Younger v. Harris is an assumption that defense of the pending state prosecution affords an adequate remedy at law for the vindication of the federal constitutional right at issue. Thus, invocation of the “extraordinary circumstances” exception must bring into play the suggestion of an inability of the state forum to afford an adequate remedy at law. Although the doctrines of “habeas corpus-exhaustion” and “Younger-abstention” are not directly related, they share many characteristics in common. They are both predicated upon interests of federalism and comity; they both recognize exceptions for “extraordinary circumstances”; both doctrines are doctrines of judicial restraint; they both envisage adequate state remedies; and, they both bar petitioners who seek to abort state prosecutions, prior to trial or final state review. In Younger v. Harris, supra, the Supreme Court specifically addressed the question of when federal courts should exercise their discretion to enjoin a pending state criminal prosecution. The court concluded that there must be irreparable injury, “both great and immediate,” before such an injunction is warranted. In so stating, the court wrote: “... Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered ‘irreparable’ in the special legal sense of that term. Instead, the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.... ” 401 U.S. at 46, 91 S.Ct. at 751. In Douglas v. City of Jeanette, 319 U.S. 157, 163, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943) the court stated: “... Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent. It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts... ” Just as in the habeas corpus context, the Supreme Court in the Younger setting did not define what would constitute an “extraordinary circumstance”. See Helfant v. Kugler, supra. We already know, however, that for purposes of pre-trial habeas corpus relief, courts have held that a denial of speedy trial alone, and without more, does not constitute an “extraordinary circumstance”. We do not suggest that the dimensions of “extraordinary circumstance” in the habeas corpus area are necessarily the same as in the Younger area. Nonetheless, it would seem anomalous to hold that the same speedy trial claim which could not suffice for pre-trial habeas relief would, nonetheless, support a pre-trial injunction of a pending state prosecution. Aside from any other consideration, we would be hard pressed to reconcile such disparate results stemming from doctrines evidencing similar principles of federalism and comity. In a slightly different context, the Supreme Court, while acknowledging that an accused is entitled to scrupulous observance of constitutional safeguards, nevertheless stated: “Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court’s rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal.” (citation omitted). Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). In United States v. Kenny, 462 F.2d 1230 (3d Cir. 1972), we reversed the district court’s grant of an injunction against pending state criminal proceedings, despite the defendant’s claim that his grant of immunity in prior federal proceedings should bar any subsequent state prosecution. We stated: “The record fails to demonstrate that the pending state prosecution posed any threat to defendant’s rights that could not be eliminated by assertion of an appropriate defense in the state courts.... ” 462 F.2d at 1232. We are satisfied that Moore’s claim of alleged denial of the right to a speedy trial does not fall within the extraordinary circumstances envisioned in Younger. Petitioner Moore will have an opportunity to raise his claimed denial of the right to a speedy trial during his state trial

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

Sharon L. RUSSELL, Plaintiff, Appellee, v. SALVE REGINA COLLEGE, et als., Defendants, Appellants. Sharon L. RUSSELL, Plaintiff, Appellant, v. SALVE REGINA COLLEGE, et als., Defendants, Appellees. Nos. 89-1564, 89-1597. United States Court of Appeals, First Circuit. Heard Oct. 3, 1989. Decided Nov. 20, 1989. Steven E. Snow, with whom Partridge, Snow & Hahn, Providence, R.I., was on brief for Salve Regina College, et als. Edward T. Hogan, with whom Hogan & Hogan, East Providence, R.I., was on brief for Sharon L. Russell. Before BOWNES and TORRUELLA, Circuit Judges, and TIMBERS, Senior Circuit Judge. Of the Second Circuit, sitting by designation. TIMBERS, Circuit Judge: This consolidated appeal arises from the stormy relationship between Sharon L. Russell (“Russell”) and Salve Regina College of Newport, Rhode Island (“Salve Regina” or “the College”), which Russell attended from 1982 to 1985. The United States District Court for the District of Rhode Island, Ronald R. Lagueux, District Judge, entered a directed verdict for Salve Regina on Russell’s claims of invasion of privacy and intentional infliction of emotional distress at the close of plaintiff’s case-in-chief, but allowed Russell’s breach of contract claim to go to the jury. The jury found that Salve Regina had breached its contract with Russell by expelling her. The court entered judgment on the verdict, denying Salve Regina’s motions for judgment n.o.v. and for a new trial. The court also denied Salve Regina’s motion for re-mittitur of the damages of $30,513.40 plus interest, a total of $43,903.45, that the jury awarded Russell. On appeal Russell contends that, because a reasonable jury could have found invasion of privacy and intentional infliction of emotional distress under Rhode Island law, the district court erred in entering a directed verdict on those claims. Salve Regina contends that the judgment that it breached its contract with Russell should be reversed because: (1) the court erred as a matter of law in its analysis of the contract between a student and the college she attended; and (2) even accepting the court’s formulation, there was insufficient evidence to support the jury verdict. It also argues that the calculation of damages was incorrect as a matter of law. For the reasons set forth below, we affirm the judgment of the district court in all respects. I. We summarize only those facts believed necessary to an understanding of the issues raised on appeal. By all accounts, Sharon Russell was an extremely overweight young woman. In her application for admission to Salve Regina, Russell stated her weight as 280 pounds. The College apparently did not consider her condition a problem at that time, as it accepted her under an early admissions plan. From the start, Russell made it clear that her goal was admission to the College’s Nursing Department. Russell completed her freshman year without significant incident and was accepted in the College’s Nursing Department starting in her sophomore year, 1983-84. Her trauma started then. The year began on a sour note when a school administrator told Russell in public that they would have trouble finding a nurse’s uniform to fit her. Later, during a class on how to make beds occupied by patients, the instructor had Russell serve as the patient, reasoning aloud that if the students could make a bed occupied by Russell, who weighed over 300 pounds, they would have no problem with real patients. The same instructor used Russell in similar fashion for demonstrations on injections and the taking of blood pressure. The start of Russell’s junior year, 1984-85, coincides with the time school officials began to pressure her directly to lose weight. In the first semester, they tried to get Russell to sign a “contract” stating that she would attend Weight Watchers and to prove it by submitting an attendance record. Russell offered to try to attend weekly, but refused to sign a written promise. Apparently, she did go to Weight Watchers regularly, but did not lose significant weight. One of Russell’s clinical instructors gave her a failing grade in the first semester for reasons which, the jury found, were related to her weight rather than her performance. According to the rules of the Nursing Department, failure in a clinical course generally entailed expulsion from the program. But school officials offered Russell a deal, whereby she would sign a “contract” similar to the one she rejected earlier, with the additional provision that she needed to lose at least two pounds per week to remain in good standing. The “contract” provided that the penalty for failure would be immediate withdrawal from the program. Confronting the choice of signing the agreement or being expelled, Russell signed. Russell apparently lived up to the terms of the “contract” during the second semester by attending Weight Watchers weekly and submitting proof of attendance, but she failed to lose two pounds per week steadily. She was nevertheless allowed to complete her junior year. During the following summer, however, Russell did not maintain satisfactory contact with College officials regarding her efforts, nor did she lose any additional weight. She was asked to withdraw from the nursing program voluntarily and she did so. She transferred to a program at another school. Since that program had a two year residency requirement, Russell had to repeat her junior year, causing her nursing education to run five years rather than the usual four. Russell completed her education successfully in 1987 and is now a registered nurse. Soon after her departure from Salve Regina, she commenced the instant action which led to this appeal. II. Subject matter jurisdiction over this case is based on diversity of citizenship. 28 U.S.C. § 1332 (1988). This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1988). The parties do not dispute that the law of Rhode Island applies to all substantive aspects of the case. We discuss first in section II of this opinion the two claims with respect to which the district court directed a verdict in favor of the College. Then in section III we discuss the contract claim which was submitted to the jury. (A) Intentional Infliction of Emotional Distress Rhode Island recognizes this tort theory. It has adopted as its standard § 46 of the Restatement (Second) of Torts (1965). Champlin v. Washington Trust Co., 478 A.2d 985 (R.I.1984). Section 46 states that: “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Restatement (Second) of Torts § 46. Rhode Island has added the requirement of at least some physical manifestation. Curtis v. State Dep’t for Children, 522 A.2d 203 (R.I.1987). Russell has alleged nausea, vomiting, headaches, etc., resulting from the College’s conduct. This appears to create a triable issue on the causation and harm elements of the theory. The issue on appeal, therefore, is whether the conduct alleged is sufficiently extreme and outrageous. In its argument that the conduct of its employees does not rise to the necessary threshold, the College in essence concedes a pattern of harassment, but argues that the conduct was merely discourteous and necessary to carry out its academic mission. We have no doubt that the conduct was insensitive, but to be tortious it must be "atrocious, and utterly intolerable in a civilized community". Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1021 (1st Cir.) (construing Rhode Island law and quoting Restatement, supra, § 46, comment d), cert. denied, 109 S.Ct. 65 (1988). Without regard to context, the College is correct; a series of insults, even if ongoing and systematic, is insufficient. But the context-the relationship of the plaintiff to the defendant and the knowledge of plaintiff's special sensitivities-is a necessary element of the tort. Prosser and Keeton, The Law of Torts, § 12, at 64 (5th ed. 1984). The school officials knew very quickly that Russell wanted badly to become a nurse and that she was easily traumatized by comments about her weight; yet they harassed her continuously for almost two years. In this context, comments by school officials about weight were doubly hurtful. Even considering the context and acknowledging this to be a close question, however, we affirm the district court’s directed verdict dismissing the claim. “Extreme and outrageous” is an amorphous standard, which of necessity varies from case to case. The College’s conduct may have been unprofessional, but we cannot say that it was so far removed from the bounds of civilization as not to comply with the test set forth in § 46. Russell’s commendable resiliency lends support to our conclusion. (B) Invasion of Privacy In Rhode Island, this tort is purely statutory; so we refer primarily to the statute itself, especially in light of the lack of case law interpreting the text. The relevant provision, R.I.Gen.Laws § 9-1-28.1 (a)(1) (1985 Reenactment), covers only “physical solitude or seclusion” (emphasis added). The conduct at issue here does not fit easily within the scope of that language, since all of it occurred in public. The only area “invaded” was Russell’s psyche. We cannot lightly predict that the Rhode Island Supreme Court would interpret the statute contrary to its literal language, in view of the statement of that Court that it will give statutory language its plain meaning absent compelling reasons to the contrary. Fruit Growers Express Co. v. Norberg, 471 A.2d 628 (R.I.1984). We therefore affirm the district court’s directed verdict on the invasion of privacy count. III. Russell’s breach of contract claim is the only one the district court submitted to the jury. The College does not dispute that a student-college relationship is essentially a contractual one. E.g., Lyons v. Salve Regina College, 565 F.2d 200 (1st Cir.1977), cert. denied, 435 U.S. 971 (1978). Rather, it challenges the court’s jury charge regarding the terms of the contract and the duties of the parties. From the various catalogs, manuals, handbooks, etc., that form the contract between student and institution, the district court, in its jury charge, boiled the agreement between the parties down to one in which Russell on the one hand was required to abide by disciplinary rules, pay tuition and maintain good academic standing, and the College on the other hand was required to provide her with an education until graduation. The court informed the jury that the agreement was modified by the “contract” the parties signed during Russell’s junior year. The jury was told that, if Russell “substantially performed” her side of the bargain, the College’s actions constituted a- breach. The College challenges the court’s characterization of the contract. It claims the court ignored relevant provisions of publications from the Nursing Department; for example, those relating to the need for nurses to be models of health for their patients. These provisions, it argues, demonstrate that Russell was aware that success as a nursing student demanded more than competent performance. We hold, however, that the provisions on health speak to the duty of students to inform the Department of hidden health problems that might affect the students or their patients, and they are not a license for administrators to decide late in the game that an obese student is not a positive model of health. Salve Regina also challenges the application of strict commercial contract principles, e.g., that, if Russell substantially performed, the College had an absolute duty to educate her. It cites several cases which hold that colleges, in order properly to carry out their functions, must be given more contractual leeway than commercial parties. E.g., Lyons, supra, 565 F.2d at 202 (dean may reject faculty recommendation to reinstate student); Slaughter v. Brigham Young Univ., 514 F.2d 622 (10th Cir.), cert. denied, 423 U.S. 898 (1975); Clayton v. Trustees of Princeton Univ., 608 F.Supp. 413 (D.N.J.1985) (university must have flexibility to discipline cheating students). There can be no doubt that courts should be slow to intrude into the sensitive area of the student-college relationship, especially in matters of curriculum and discipline. Slaughter, supra, 514 F.2d at 627 (“substantial performance” standard is intolerable when-it allows student to get away with “a little dishonesty”). The instant case, however, differs in a very significant respect. The College, the jury found, forced Russell into voluntary withdrawal because she was obese, and for no other reason. Even worse, it did so after admitting her to the College and later the Nursing Department with full knowledge of her weight condition. Under the circumstancés, the “unique” position of the College as educator becomes less compelling. As a result, the reasons against applying the substantial performance standard to this aspect of the student-college relationship also become less compelling. Thus, Salve Regina’s contention that a court cannot use the substantial performance standard to compel an institution to graduate a student merely because the student has completed 124 out of 128 credits, while correct, is inapposite. The court may step in where, as here, full performance by the student has been hindered by some form of impermissible action. Slaughter, supra, 514 F.2d at 626. In this case of first impression, the district court held that the Rhode Island Supreme Court would apply the substantial performance standard to the contract in question. In view of the customary appellate deference accorded to interpretations of state law made by federal judges of that state, Dennis v. Rhode Island Hospital Trust Nat’l Bank, 744 F.2d 893, 896 (1st Cir.1984); O’Rourke v. Eastern Air Lines Inc., 730 F.2d 842, 847 (2d Cir.1984), we hold that the district court’s determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error. IV. Salve Regina argues that the $25,000 damages awarded to Russell (the equivalent of a year’s salary) constitutes legal error. It contends that she is entitled to $2,000, representing her net savings after one year of employment. We disagree. Since there appears to be no ease law on this precise point, we turn to familiar principles of contract law. The purpose of a contract remedy is to place the injured party in as good a position as it would have been in had the breach not occurred. Rhode Island Turnpike and Bridge Auth. v. Bethlehem Steel Corp., 119 R.I. 141, 379 A.2d 344, 357 (1977). Since each case turns on the specific facts at hand, we consider it appropriate to accord the district court reasonable leeway. 5 Corbin on Contracts § 992 (1964 ed.). Here, the district court's jury charge stated specifically that the proper remedy for the breach in question would be a year’s salary. We cannot say that this was incorrect as' a matter of law. The contract between Salve Regina and Russell was not motivated by economic concerns, at least on Russell’s part; yet its breach clearly damaged Russell. She lost a year of her professional life. Under the circumstances, the salary Russell would have earned in that lost year strikes us as hardly a windfall. Moreover, the most closely analogous cases, involving damages for wrongful employment termination, hold that a plaintiff is entitled to the full salary, less any amount he was under a duty to mitigate. 5 Corbin, supra, § 1095 (collecting cases). We therefore affirm the damage award. V. To summarize: We hold that the district court properly granted a directed verdict in favor of Salve Regina on the intentional infliction of emotional distress and invasion of privacy counts. We affirm the judgment in favor of Russell on the breach of contract count. We also affirm the damage award on the contract count. AFFIRMED. . This action originally was assigned to then-District Judge Bruce M. Selya. Judge Selya granted summary judgment in favor of the individual defendants on all counts and in favor of Salve Regina on five counts of Russell’s complaint: due process, handicapped discrimination, negligent infliction of emotional distress, wrongful discharge and breach of covenant of good faith. Russell does not raise the granting of summary judgment as to any of these counts on appeal. Judge Selya denied summary judgment on the three claims that are the subject of this appeal. Russell v. Salve Regina College, 649 F.Supp. 391 (D.R.I.1986). . The facts recited here, which relate primarily to the distress and privacy claims that were the subject of the directed verdict, must be viewed in the light most favorable to Russell. Bennett v. Public Service Co., 542 F.2d 92 (1st Cir.1976). . Significantly, Russell's other clinical instructor that semester considered her performance outstanding. In addition, Russell’s academic record indicates at least satisfactory performance in all courses except the clinical one that she failed. .Although the record is unclear, it appears that the College told Russell that she would not be eligible to register for her senior year, but could apply for a change of status if she met the College's conditions. Russell instead chose to transfer. At any rate Salve Regina does not dispute that Russell’s departure was not truly "voluntary”. . Russell does not allege that the administration of Salve Regina intended to harm her, but rather that they hounded her without regard to the consequences. . Regarding the latter point, the College correctly states that both the Restatement and Rhode Island law may excuse otherwise tortious conduct if taken to protect legitimate interests. Champlin, supra, 478 A.2d at 988; Restatement, supra, § 46, comment g. The example provided is that of a heartless landlord exercising his privilege to evict a destitute family for nonpayment of rent. Id., comment g, illustration 14. It is unable, however, to specify the interest served beyond "educational standards”. We are unable to see what interest would be served by the petty, mean-spirited and concerted conduct in question. If anything, the interest of a college faculty and administrators should be the creation of an atmosphere of courtesy and tolerance. . Salve Regina claims that an illustration set forth in the Restatement closely parallels this case: "A is an otherwise normal girl who is a little overweight, and is quite sensitive about it. Knowing this, B tells A that she looks like a hippopotamus. This causes A to become embarrassed and angry. She broods over the incident, and is made ill. B is not liable to A.” Restatement, supra, § 46, comment f, illustration 13. In view of the ongoing nature of the conduct in the instant case, as well as the control Salve Regina held over Russell’s professional future, the comparison to an isolated remark, even one made with knowledge of special sensitivity, is disingenuous. . A separate section of Rhode Island’s Privacy Law provides the "right to be secure from unreasonable publicity given to one’s private life." R.I.Gen.Laws. § 9-1-28.1(a)(3) (1985 Reenactment). Recovery is available, however, only if a private fact is disclosed. The only material fact here, Russell’s obesity, of course was quite public. . There is no dispute that Russell met these criteria, with the exception of the clinical course she failed because of her weight. . Judge Selya stated that "[c]ontagion was not legitimately at issue-after all, there is no allegation of communicable corpulence here-nor have the detendants essayed any showing that clinical work would have jeopardized Russell's own wellbeing." Russell, supra, 649 F.Supp. at 405. . The College also argues that the jury finding of substantial performance is not supported by the record. We hold that the record demonstrates that the finding is not clearly erroneous. . The remaining damages, $5,513.40, constitute the costs incurred for Russell’s additional year in college. .The College’s reliance on Slaughter, supra, is unavailing. The Slaughter court merely held that, because the substantial performance standard was inapplicable on the facts, it was improper to award the plaintiff the amount he would have earned had he received his doctorate earlier. 514 F.2d at 626. We are faced with the reverse situation: substantial performance in fact and proper application of the standard.

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