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FOLEY BROS., INC. et al. v. FILARDO. No. 91. Argued December 15, 1948. Decided March 7, 1949. Robert L. Stern argued the cause for petitioners, who had a wartime “cost-plus” contract with the Government. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Samuel D. Slade. Chester A. Lessler argued the cause for respondent. With him on the brief was Howard Henig. Mr. Justice Reed delivered the opinion of the Court. This case presents the question whether the Eight Hour Law applies to a contract between the United States and a private contractor for construction work in a foreign country. This Act provides that “Every contract made to which the United States ... is a party . . . shall contain a provision that no laborer or mechanic doing any part of the work contemplated by the contract, in the employ of the contractor or any subcontractor . . . shall be required or permitted to work more than eight hours in any one calendar day upon such work; . . .” 37 Stat. 137,40U.S.C. §324. Penalties are specified for violations. In 1940 the prohibition against workdays of longer than eight hours was modified as follows: “Notwithstanding any other provision of law, the wages of every laborer and mechanic employed by any contractor or subcontractor engaged in the performance of any contract of the character specified in sections 324 and 325 of this title, shall be computed on a basic day rate of eight hours per day and work in excess of eight hours per day shall be permitted upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.” 54 Stat. 884, 40 U. S. C. § 325a. In 1941 petitioners contracted on a cost-plus basis to build certain public works on behalf of the United States in the East and Near East, particularly in Iraq and Iran. Petitioners agreed in the contract to “obey and abide by all applicable laws, regulations, ordinances, and other rules of the United States of America.” The provisions of the Eight Hour Law were not specifically included in the contract. In 1942 petitioners hired respondent, an American citizen, to work on the construction projects as a cook at sixty dollars a week. This contract of employment contained no provision concerning hours of work or overtime. Pursuant to the contract, respondent went to Iraq and Iran where he frequently worked more than eight hours a day during the years 1942 and 1943. Upon the refusal of his request for overtime pay for work in excess of eight hours per day, he brought suit against petitioners in the Supreme Court of New York, claiming that the Act entitled him to one and one-half times the basic rate of pay for such work. The court denied petitioners’ motions to dismiss the case and for a directed verdict, thereby overruling the contention that the Act did not apply to contracts which were to be performed in foreign countries. Judgment was entered on a jury verdict for respondent. The Appellate Division reversed on the ground that the Eight Hour Law as amended did not confer a right of action on an employee for overtime pay. 272 App. Div. 446, 71 N. Y. S. 2d 592. Consequently it did not consider the question now before us. The New York Court of Appeals reversed, holding that the Act applied to this contract. 297 N. Y. 217, 78 N. E. 2d 480. Referring to the language of the statute quoted above, it concluded, “Words of such inclusive reach cannot properly be read to exclude contracts for government jobs abroad.” We granted certiorari to settle this important question concerning the scope of the Eight Hour Law. 335 U. S. 808. Since the question is one of statutory interpretation, the Act as it now exists, 40 U. S. C. §§ 321-326, is our starting point. In pertinent part it provides for the limitation to eight hours per day of the working time of laborers and mechanics employed by the government or any contractor thereof on a public work of the United States. § 321. The same section makes it unlawful to require or permit work in excess of eight hours per day except in extraordinary emergencies. An intentional violation of this mandate is made a misdemeanor punishable by fine or imprisonment or both. § 322. The insertion in “every contract” made by or on behalf of the United States of this restriction on hours of work is required by § 324. The contracts must stipulate a monetary penalty for violation, which penalty takes the form of a withholding by the government of moneys otherwise due the contractor under the terms of the contract. § 324. Finally the restriction is lifted as to employees of private contractors by § 325a, supra, pp. 282-283, on condition that hours worked in excess of eight be paid for at the overtime rate. The question before us is not the power of Congress to extend the Eight Hour Law to work performed in foreign countries. Petitioners concede that such power exists. Cf. Blackmer v. United States, 284 U. S. 421; United States v. Bowman, 260 U. S. 94. The question is rather whether Congress intended to make the law applicable to such work. We conclude, for the reasons expressed below, that such was not the intention of the legislators. First. The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, Blackmer v. United States, supra, at 437, is a valid approach whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions. We find nothing in the Act itself, as amended, nor in the legislative history, which would lead to the belief that Congress entertained any intention other than the normal one in this case. The situation here is different from that in Vermilya-Brown Co. v. Connell, 335 U. S. 377, where we held that by specifically declaring that the Act covered “possessions” of the United States, Congress directed that the Fair Labor Standards Act applied beyond those areas over which the United States has sovereignty and was in effect in all “possessions.” This Court concluded that the leasehold there involved was a “possession” within the meaning of the Fair Labor Standards Act. There is no language in the Eight Hour Law, here in question, that gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control. There is nothing brought to our attention indicating that the United States had been granted by the respective sovereignties any authority, legislative or otherwise, over the labor laws or customs of Iran or Iraq. We were on their territory by their leave, but without the transfer of any property rights to us. The scheme of the Act itself buttresses our conclusion. No distinction is drawn therein between laborers who are aliens and those who are citizens of the United States. Unless we were to read such a distinction into the statute we should be forced to conclude, under respondent’s reasoning, that Congress intended to regulate the working hours of a citizen of Iran who chanced to be employed on a public work of the United States in that foreign land. Such a conclusion would be logically inescapable although labor conditions in Iran were known to be wholly dissimilar to those in the United States and wholly beyond the control of this nation. An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose. See Attorney General Stone’s conclusion to this effect in 34 Op. Atty. Gen. 257, where he stated that the law did not apply to alien laborers engaged in altering the American Embassy in London. The absence of any distinction between citizen and alien labor indicates to us that the statute was intended to apply only to those places where the labor conditions of both citizen and alien employees are a probable concern of Congress. Such places do not include foreign countries such as Iraq and Iran. Second. The legislative history of the Eight Hour Law reveals that concern with domestic labor conditions led Congress to limit hours of work. The genesis of the present statute was the Act of June 25, 1868, 15 Stat. 77, which was apparently aimed at unemployment resulting from decreased construction in government navy yards. Congressional Globe, 40th Cong., 2d Sess., Part I, p. 335. In 1892, when the coverage of this Act was extended to employees of government contractors and when criminal penalties were added, 27 Stat. 340, the considerations before Congress were domestic unemployment, the influx of cheap foreign labor, and the need for improved labor conditions in this country. H. R. Rep. No. 1267, 52d Cong., 1st Sess. The purpose of the new legislation was to remedy the defects in the Act of 1868. 23 Cong. Rec. 5723. The Act was amended in 1912 to include “every contract.” [Italics supplied.] The insertion of the word “every” was designed to remedy a misinterpretation according to which the Act did not apply to work performed on private property by government contractors. 48 Cong. Rec. 381, 385, 394-95. Nothing in the legislative history supports the conclusion of respondent and the court below that “every contract” must of necessity, by virtue of the broadness of the language, include contracts for work to be performed in foreign countries. A contrary inference must be drawn, we think, from a 1913 amendment which extended the law to cover persons employed “to perform services similar to those of laborers and mechanics in connection with dredging or rock excavation in any river or harbor of the United States or of the District of Columbia.” 37 Stat. 726, 40 U. S. C. § 321. This Court had held that such dredgers were not covered by the phrase “laborers and mechanics” in the previously existing law. Ellis v. United States, 206 U. S. 246. In its attempt to secure equality of treatment for dredgers on the one hand and laborers and mechanics on the other, Congress would hardly have intended for coverage over the latter class to extend to the far corners of the globe while coverage over the former was limited to work performed in rivers or harbors “of the United States or of the District of Columbia.” The 1940 amendment which permitted work in excess of eight hours per day upon payment of overtime, 54 Stat. 884, passed without any discussion indicative of geographical scope. 86 Cong. Rec. 11216-11217. Third. The administrative interpretations of the Eight Hour Law in its various phases of development afford no touchstone by which its geographic scope can be determined. Executive Order No. 8623 of December 31, 1940, 3 C. F. R. Cum. Supp. 850, issued pursuant to § 326 of the Act, suspended the law as to laborers and mechanics employed directly by the government at Atlantic bases leased from Great Britain. Such a suspension indicated, to be sure, a conclusion on the part of the President that the statute applied, or might apply, to these bases. Such action, however, may well have been predicated on the premise that the leases with the provisions discussed in our Vermilya-Brown decision were sufficiently subject to our control so that the Eight Hour Law would apply to them. Though numerous Executive Orders have been issued which suspend the operation of the Act in the United States, Alaska, Hawaii, Midway Island, Wake Island, etc., we have not been able to find, nor has our attention been directed, to any orders purporting to suspend its operation in countries not subject to our legislative control. The order deserves no weight as an administrative determination of the Act’s applicability to localities unquestionably and completely beyond the direct legislative competence of the United States. It is true that in 1905 Attorney General Moody, in a letter to the Secretary of War, expressed the opinion that the Eight Hour Law applied to public works to be constructed in the Canal Zone. 25 Op. Atty. Gen. 441. For the purpose of his opinion he treated the Canal Zone as foreign territory. Id., at 444. No distinction was drawn between citizen and alien laborers. If we accept the Attorney General’s assumption as to the status of the Canal Zone, his opinion is in line with respondent’s contention that the law is applicable to work performed in foreign countries. The opinion, however, proves too much. Although Attorney General Moody denied that incongruous results would flow from his interpretation, it would be anomalous, as we have said, for an act of Congress to regulate the hours of a citizen of Iran at work on a government project there. Attorney General Stone so indicated in 1924 when he advised the State Department that the Eight Hour Law did not apply to English workers engaged in altering the American Embassy in London. 34 Op. Atty. Gen. 257. Since the statute contains no distinction between laborers based on citizenship, Attorney General Stone’s reasoning that aliens are not covered points to the conclusion that the statute does not apply to contracts which are to be performed in foreign countries. The Comptroller General has expressed agreement with this conclusion by stating that “the Eight-Hour law of June 19, 1912, was not intended to and does not apply to contracts necessarily entered into on behalf of the United States in foreign countries which may require or involve the employment of foreign laborers or mechanics in their performance.” 19 Comp. Gen. 516, 518. Although the statute expressly requires the inclusion in every government public-works contract of the eight-hour provision, the Secretary of the Treasury has approved a standard form for construction contracts which contains eight-hour provisions but which provides that the use of the form will not be required in foreign countries. U. S. Standard Form No. 23, 41 U. S. C. App. § 12.23, pp. 4520, 4522. The inclusion of such provisions is also required by War Department Procurement Regulation No. 3, ¶ 346, in “all contracts subject to the provisions of the Eight Hour Law.” Yet neither the instant contract nor others covering off-continent operations contain the Eight Hour Law clause. Similarly the Department of State “does not consider it legally necessary to include provisions of the Eight Hour Law in contracts to be performed in foreign countries.” Letter of November 8, 1948, signed by the Acting Legal Adviser “For the Acting Secretary of State,” to the Attorney General. We conclude that administrative interpretations of the Act, although not specifically directed at the precise problem before us, tend to support petitioners’ contention as to its restricted geographical scope. Since we decide that the Eight Hour Law is inapplicable to a contract for the construction of public works in a foreign country over which the United States has no direct legislative control, it is unnecessary to decide whether the law, either directly or via the third party beneficiary contract route, gives an employee who is covered by it a cause of action against his employer for overtime wages. Reversed. Mr. Justice Frankfurter, with whom Mr. Justice Jackson joins, concurring. Because the decision in Vermilya-Brown Co. v. Connell, 335 U. S. 377, was one of statutory interpretation, I would feel bound by it were it not still open because rendered at this Term. If I felt bound by it, I would be obliged to dissent in this case. We are here confronted by a statute which in terms covers “every contract made to which the United States ... is a party.” 37 Stat. 137, 40 U. S. C. § 324. Yet the Court construes it as inapplicable even to the work of a citizen of the United States under a contract between the United States and a corporation domiciled in the United States because “An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose.” For this conclusion reliance is put upon an opinion of Attorney General Stone which refused to interpret the statute as applying to work done upon the American Embassy at London on the ground that “the enforcement of the statutory provision would disturb the agreements entered into between contractors and laborers and mechanics in a foreign country.” 34 Op. Atty. Gen. 257, 260. Support is also found in an opinion of the Comptroller General which reaches a similar conclusion on the basis that “such an application of the statute might easily lead to serious difficulties in effecting contracts for necessary services in countries where social and business conditions and customs differ widely from our own.” 19 Comp. Gen. 516, 518. Such considerations, I agree, ought properly to take precedence over the literal language of the Eight Hour Law as guides to its interpretation. See American Security Co. v. District of Columbia, 224 U. S. 491. We should not, in the absence of an explicit declaration of policy, assume that Congress meant to impose our domestic standards of employment upon peoples who are not generally subject to the regulatory power of Congress. See 29 Op. Atty. Gen. 488, 492-93. But I could not regard these considerations as controlling if I felt bound by the decision of the Court in the VermilyaBrown case. That case extended to foreign conditions of labor provisions of the Fair Labor Standards Act indistinguishable in effect from those of the Eight Hour Law, and it was an extension more difficult than that which the Court avoids here both because not apparently compelled by the literal terms of the Fair Labor Standards Act and because that Act is not confined in its application to contracts to which the United States is a party. Uniformity in the terms of Government contracts, indeed, is a matter so much more nearly within the usual scope of Congressional concern that Attorney General Moody required no explicit showing of Congressional purpose to conclude that the Eight Hour Law applied to contracts for the construction of the Panama Canal, even upon the assumption that the Canal Zone was to be regarded as foreign territory. 25 Op. Atty. Gen. 441. But there are other respects in which the VermilyaBrown case presented more compelling reasons than we have here for refusing to attribute to Congress an intention to regulate the conditions of work of foreign employees. Here we are required only to construe a phrase, “every contract made to which the United States ... is a party,” which is peculiar to its own context. In the Vermilya-Brown case, however, the Court held that our leased bases fell within the term “possessions,” and that is a term which Congress has used at least sixty-eight times. See Vermilya-Brown Co. v. Connell, dissenting opinion, 335 U. S. at 398, n. 11. And as illustrating the readiness with which the Vermilya-Brown case can be regarded as controlling the interpretation of all the statutes in which the term occurs, see Spelar v. United States, 171 F. 2d 208, applying the Federal Tort Claims Act to a leased base in Newfoundland. The Vermilya-Brown case, moreover, brushes aside official apprehensions about the interference of the United States in foreign conditions of labor far more serious than those which have influenced judgment here. All we have to guide us in the present case are general statements in opinions of two Attorneys General and a Comptroller General which required no specialized information about working conditions abroad, the knowledge that the standard contracts approved by the Secretary of the Treasury and the War Department are consistent with those opinions, and a letter from the State Department which says merely that the Department “does not consider it legally necessary to include provisions of the Eight Hour Law in contracts to be performed in foreign countries.” In the Vermilya-Brown case, however, the Court had before it a letter on behalf of the Secretary of State which said: “Any holding that the bases obtained from the Government of Great Britain on 99 year leases are ‘possessions’ of the United States in a political sense would not in the Department’s view be calculated to improve our relations with that Government. Moreover, such a holding might very well be detrimental to our relations with other foreign countries in which military bases are now held or in which they might in the future be sought.” The State Department speaks authoritatively on the international responsibility of our Government in observing agreements with other nations, and thus it spoke in this letter. It also has knowledge, to which courts cannot pretend, of the bearing of such observance on propitious negotiations of future agreements. The letter reflects that knowledge. Even cloistered judges, however, need not be ignorant of the fact that this country has not exhausted its interest in securing bases on territory not ours. Our decision in the Vermilya-Brown case in disregard of this weighty concern of the Secretary of State was followed by a petition for rehearing impressively supported by all the actively responsible executive officers of the Government. The State Department reiterated its view that the inclusion of the leased bases among the “possessions” of the United States was “unfortunate” and added that the Department “does not share the assurance of the Court that the house of assembly of Bermuda or other colonial legislatures might not undertake legislation similar to the Fair Labor Standards Act to control labor relations on the bases. It is at least worthy of note in this connection that administrative difficulties have arisen in the bases by reason of the application to contractors’ employees of workmen’s compensation laws of both the United States and the colonies concerned.” The petition for rehearing also brought to the attention of the Court a letter from the Secretary of the Army which read in part as follows: “During the past nine years of employment experience in foreign countries, Army contracting officers have discovered (whether the employment was handled directly or through a CPFF contractor) that in hiring native workmen the local government in many countries will impose maximum wage standards which dare not be violated. These standards are sometimes fixed by statute or regulation with the force of statute, and other times by policy which has the practical effect of law. Such governments explain that to pay native workmen according to American wage standards would seriously disrupt the local economy. Also, in many industrially undeveloped countries, local officials advise that ‘excessive’ wages to common laborers would jeopardize the availability of such laborers and impose serious police problems upon the state. (It should be noted that the social and economic structure of many areas, organized along tribal lines, precludes a direct dealing with individual laborers.) It appears doubtful that the Court has been sufficiently apprised of this special problem. The payment of statutory overtime to American personnel at contractors’ overseas construction sites will be a minor problem in comparison with paying of statutory minimum wages and overtime to native workmen in the face of militant opposition by foreign governments. (It should be noted that among American personnel all laborers and mechanics, skilled and semi-skilled artisans and craftsmen, have always been paid on hourly rates with overtime benefits far exceeding statutory requirements . . . .)” The Acting Secretary of the Navy expressed similar views: “It has been and is the policy of this Department to employ local labor at the leased bases to the maximum extent practicable and to make its wage and labor practices with respect thereto conform as nearly as possible to the usual wage and labor practices of the particular locality. Application of the Fair Labor Standards Act to the particular areas involved may well create conditions which would adversely affect the cooperation heretofore given Navy contractors by local authorities. The continued cooperation of such authorities is, of course, highly desirable.” The Wage and Hour Administrator, who is ultimately responsible for enforcing the Vermilya-Brown decision, wrote that “even if I should be able to reach sound conclusions as to the application of the Act in these areas, I cannot help but foresee fundamental administrative difficulties in attempting to apply the Act in ‘possessions’ over which the United States does not exercise full sovereign rights, especially where foreign employers and alien labor are involved.” In view both of the Administrator’s very special relation to this matter and of the persuasiveness of his views, his letter is printed as an Appendix to this opinion. If, in the face of these statements by executive officers charged with, and experienced in, the administration of our leased bases, the Court could reach a contrary interpretation of the broad term “possessions,” it must be manifest why I could not, were I bound by precedent, join in reading the narrow phrase “every contract made to which the United States ... is a party” in a way which departed from its literal terms when the only reason for such a departure is reluctance to attribute to Congress an intention to interfere in “labor conditions which are the primary concern of a foreign country.” APPENDIX U. S. Department of Labor WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS Washington 25, D. C., December 23,1948. The Honorable Philip B. Perlman, Solicitor General of the United States, Department of Justice, Washington 25, D. C. Dear Mr. Perlman: By letter dated December 22, 1948, you advise that you intend to support a petition for rehearing to be filed in connection with the recent decision of the Supreme Court in Vermilya-Brown Company v. Connell, No. 22, This Term, decided December 6, 1948. You state that you will present to the Court the views of the Departments of State, Army, and Navy. On behalf of these Departments, and the Department of Justice, you will urge the Court to reconsider its holding that the word “possession,” as used in the phrase “State, territory or possession” in Section 3 (c) of the Fair Labor Standards Act, is not a term of art, and that the Bermuda defense area leased to us in 1940 by Great Britain is within the coverage of the statute as a “possession.” You request that I forward to you my views concerning the effect which this holding may have on administration and enforcement of the Act. I think it may fairly be said that my predecessors and I, in considering .the territorial aspects of wage-hour coverage in the past, have proceeded on the assumption that traditional concepts of sovereign control were implicit in the meaning of the phrase, “any Territory or possession of the United States,” as that phrase is used in the Fair Labor Standards Act. In the absence of controlling court decisions, it was necessary for us to interpret the phrase for our guidance in the administration of the Act. In doing so, we not only studied the provisions of other statutes in which these terms were used and authoritative decisions of the courts construing such language in situations which were thought to be comparable, but gave particular weight to authoritative expressions of the State Department and other proper governmental agencies on the question of what areas are viewed as Territories or possessions over which the United States exercises full sovereign rights. On this basis we expressed the opinion in Interpretative Bulletin No. 2, first issued in November, 1938, and in Chapter Y, Part 776, Title 29 of the Code of Federal Regulations (section 776.1 (c)) which replaced this bulletin in July, 1947, that Alaska, Hawaii, Puerto Rico, the Canal Zone, Guam, Guano Islands, Samoa, and the Virgin Islands were Territories and possessions within the meaning of the Act. When the question of the status of the leased bases of the type involved in the Vermilya-Brown case was first brought to our attention in 1942 and 1943, we expressed the view, in the opinions quoted in the Government’s brief before the Supreme Court, that these bases were not Territories or possessions of the United States within the meaning of the Act. This view was subsequently modified after it appeared that the matter was being litigated in the courts and consultation with State Department officials indicated that that Department had made no ruling (the letter from that Department which is Appendix A to your brief not having been written at that time). This modification of our position is reflected by the following language which was used to advise inquiries: “Until the question has been settled by court decisions, congressional or executive action, or interpretations issued by the State Department or other proper governmental agencies, the Divisions are not in a position to assert whether the Fair Labor Standards Act applies to employees working at bases leased from the British.” As a result of the Supreme Court’s decision in the Vermilya-Brown case, it appears that the status of a given area as a “Territory or possession of the United States” for purposes of the Act is subject to determination on the basis of considerations other than those used by the political departments of the Government, on which we have placed particular reliance in the past. I anticipate that at least two major problems will confront me as a result of the Court’s ruling. First, in order to perform my statutory duties under the Act, it will be necessary for me to decide initially, pending authoritative guidance from the courts, whether other defense base areas come within the statutory language covering Territories and possessions of the United States. If, as would seem to follow from the Court’s decision, I would not be aided in this by the views of the State Department as to whether such areas are Territories or possessions in the political sense, or under traditional concepts of sovereignty, I shall be called upon to enter a field of interpretation in which our previous experience with the Act offers no reliable guides, and which may involve the meaning of international agreements on which this agency would ordinarily seek the advice of the State Department. Adequate standards for guidance in deciding such questions for purposes of administration of the Act are, in my opinion, not available to me either in the language of the statute, its legislative history, or in the Vermilya-Brown decision itself. The difficulty, in such circumstances, of reaching sound conclusions concerning coverage in bases such as Okinawa, Greece, Iceland, Canada, Newfoundland, the Philippine Islands, Tunisia, and Arabia is apparent. My position will be even more difficult in connection with classified military base areas. Second, even if I should be able to reach sound conclusions as to the application of the Act in these areas, I cannot help but foresee fundamental administrative difficulties in attempting to apply the Act in “possessions” over which the United States does not exercise full sovereign rights, especially where foreign employers and alien labor are involved. Even if such difficulties may not be insuperable, vexing problems of courts with proper jurisdiction and venue to apply the criminal and civil sanctions in such cases are, it seems to me, bound to arise if we are to undertake active enforcement in these bases. And, as you will appreciate, neither the appropriation for, nor the organization of the Wage and Hour Division were devised in contemplation of enforcement efforts in outposts such as these. It has, of course, not been possible for us to explore fully these and other possible problems which might confront us as a result of the Vermilya-Brown decision, in the limited time available to us by reason of the period for filing petitions for rehearing. If the Court should grant a rehearing in the case, I shall be glad to make available to you the results of our further exploration of these questions in order that you may fully apprise the Court of my views concerning the probable effects of the present decision in terms of the over-all administration of the Fair Labor Standards Act. Very truly yours, Wm. R. McComb, Administrator. 27 Stat. 340, as amended, 40 U. S. C. §§ 321-326. Since it is unnecessary for this decision, we do not reach a conclusion as to the precise geographic coverage of the Eight Hour Law. “. . . Words having universal scope, such as ‘Every contract in restraint of trade,’ ‘Every person who shall monopolize,’ etc., will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator subsequently may be able to catch.” American Banana Co. v. United Fruit Co., 213 U. S. 347, 357. See, however, Executive Orders 9251, 3 C. F. R. Cum. Supp. 1216, and 9898, 3 C. F. R. 1947 Supp. 172, in which the geographic coverage of the suspensions is not specified. See, however, the Isthmian Canal Convention, proclaimed on February 26, 1904, 33 Stat. 2234, whereby the United States had been granted all the rights, power and authority of a sovereign in the Zone. See also 29 Op. Atty. Gen. 488, 492 et seq. Illustrative contracts from which the clause is omitted are: W 1098 eng — 1525, June 8, 1942 (Labrador and Baffin Island) ; W 1098 eng — 1375, June 3, 1942 (Cuba); W 1098 eng — 1350, April 24, 1942 (Bahamas); W 1098 eng — 108, November 10, 1941 (North Africa and Palestine); W 1098 eng — 2, August 2, 1941 (Greenland); W 958 eng — 54, February 8, 1941 (Newfoundland); W 958 eng — 50, February 4, 1941 (Bermuda).

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AUTOGRAPHIC REGISTER CO. v. UARCO, INC. No. 10006. United States Court of Appeals Seventh Circuit. May 25, 1950. Rehearing Denied June 29, 1950. Casper W. Ooms, Chicago, 111., Thomas J. Byrne, New York City, Will Freeman, Paul H. Gallagher, Chicago, 111., for appellant. Bernard A. Schroeder, Bradford Wiles James C. Wood, Chicago, 111., Schroeder, Merriam, Hofgren & Brady, Chicago, 111., of counsel, for appellee. Before MAJOR, Chief Judge, LINDLEY and SWAIM, Circuit Judges. LINDLEY, Circuit Judge. Plaintiff charged defendant with infringement of its patents, Brenn 2,082,730, Johnson 2,258,573, Brenn 2,212,174 and Brenn 2,159,500. The District Court held each invalid and entered judgment dismissing the complaint. Plaintiff appeals from so much of the judgment as declared invalid the first three patents. With the arrival of the typewriter and related office machines, business practices in correspondence and recording took on new aspects. The old custom of making copies of written documents by hand or by letter-press was laid aside. In lieu thereof, business offices, in making invoices and similar records, adopted the use of sheets bearing printed headings and as much other common information as possible, in order to reduce the amount of writing to a minimum; and to make copies, assembled the sheets with carbon sheets interleaved and inserted in the typewriter, one set at a time. After typing had been completed, the typist removed the entire set and separated the written sheets from the carbons. From the use of a single set of sheets and carbons, the practice soon developed of employing long continuous printed forms containing the sets in series, with original and carbon sheets in superposed relation to each other, each set being separated from the one following by a horizontal weakened line. The strip, containing the attached sets capable of being separated at the weakened lines, folded on these lines in a convenient stack in “zigzag” arrangement. The continuous carbon interleaved stationery of the patents in suit and of the art in general is used in tabulating machines, telegraphic typewriters and bookkeeping machines, as well as in ordinary typewriters for writing bills, orders and other records where manifold copies are desired. As noted, the sets of forms appear in series; the blank record sheets are interleaved with continuous carbon sheet strips, and, in view of the zigzag arrangement, the leading end may be introduced into the machine. After one set of the forms has been filled out, the entire written set is detached from the continuous strip on the weakened line and the carbon sheets separated. from the record sheets, the latter being distributed as desired. It is obvious that, in order to maintain the superposed forms, in exact registration or alignment, as they pass through machines, some means must be provided to that end. This brings us to the first patent in suit, the Brenn “staple,” 2,082,730, which is concerned with the special problem of maintaining the. separate sheets of the continuous strip in registration with each other. Some 12 claims are involved. The application was filed September 26, 1927; the patent issued June 1, 1937. Brenn pointed out that it was his object to provide a manifolding pack so improved that the special written work sheets were held in “accurate registration with each other” and the carbon or transfer strips in fixed operative position between the worksheets. He proposed a means for holding the strips in registration, so placed and so operative that severing one set of written forms from the strip automatically renders the holding means inoperative. To accomplish this, he placed staples on the lines of severance, paralleling those lines, between the respective sets of forms of the manifolding stationery, asserting that when one set of sheets is separated at the weakened line, the staple, which has previously served the purpose of keeping the sheets in alignment, is automatically discharged and discarded. In other words, plaintiff, while admitting that all other elements of Brenn’s combination were old, asserts that by his prescription of staples on the weakened lines, he achieves perfect alignment of the worksheets and carbon sheets until they have been filled in and that, when the set of sheets is tom from the strip on the severance line, the staple is automatically discharged. Plaintiff, though frankly confessing that the improvement is simple, insists that it reflects patentable invention and that the court below erred in not so finding. This art of manifolding stationery provided for typing machines, including the specific methods of arrangement of the patent, seems to have been voluminous and one might easily form the impression, from an examination of the numerous patents issued, that • each little variation from the prior art in each patentee’s combination brought about, in the judgment of the Patent Office, patentable invention. It is in this crowded art that Brenn conceived the idea of using an automatically discard-able staple to preserve alignment or registration of the respective sheets one with another. That he had some difficulty in persuading the Patent Office to grant the patent is apparent from the lapse of time between application and issuance, — some ten years. He had made an earlier attempt to solve the problem by placing gum along the lateral edges of the pile of continuous record strips and carbon strips, but this was not entirely satisfactory. So, eventually, he hit upon the idea of utilizing staples. Carter, in patent 627,481, in a manifold sales book, prescribed that the sheets should be perforated across their middle and that wire staples would pass through the perforations on the line weakened by those perforations. Bovier, in 1,293,011, in a manifolding book, likewise required staples along the perforated or weakened line. Beale, in 1,733,048, in his book containing removable blank leaves, contemplated removal of the pages by severing them along a perforated or weakened line and prescribed suitable staples to “detachably secure the sheets to the cover.” Some of his claims specify a “U-shaped staple” detachably connecting the sheets at the weakened lines and others, instead of staples, prescribe “detachable fastenings” securing the sheets on the weakened lines. Hicks, in 425,033, in providing a bundle of wrapping or other paper in one continuous sheet, specified that the sheets should be perforated or weakened at regular intervals so as to be torn easily at stated intervals. He, too, supplies staples along the severance line making the sheets easily detachable. Phillips, in 1,975,660, shows detachable adhesive at the line of weakening. Carr, in 215,094, shows stitching on the line of weakening. In other words, instead of staples he prescribed a series of stitches on the weakened line. Not all of this prior art relates to the teaching of Brenn and other workers in the specific art with which they were concerned; and it may well be that the staples provided by various other inventors, though placed on the weakened line, were not provided for the express purpose or to supply the specific efficiency that Brenn had in mind. However, in view of Mandel Bros. Inc. v. Wallace, 335 U.S. 291, 69 S.Ct. 73 and Sales Affiliates, Inc. v. Natl. Mineral Co., 7 Cir., 172 F.2d 608, we think Brenn was charged with notice of all he might learn from this earlier art. In other words, when Brenn saw the prior patents, he learned that it was feasible in the paper and stationery arts to place the staples on the line of perforation, that is to say, on the weakened line, between the sets of sheets. He might have used sewing stitches instead of staples but they would not have been so useful or efficient. He had tried gum, but that slowed up the operations of the typist. Instead, he took the staples from the old art and placed them on the weakened line and thus got his combination. Without considering further the history of his application and the difficulties encountered in the Patent Office, we think from the evidence submitted, that the District Court was justified in finding that Brenn, though undoubtedly making some advancement, did no more than might be expected of one skilled in his calling. In Johnson, 2,258,573, the patentee was dealing with relative facility or ease in separating the record sheets from the carbon sheets after the former have been written on as desired. When the worksheets and the carbon sheets are removed from the typing machine in completed form, it becomes necessary, obviously, for the typist to separate the worksheets and the carbon sheets. If all the sheets are of the same size, both horizontally and vertically, obviously each sheet can be separated from the others and picked up only with some difficulty and consumption of time. Separation of the carbons and records is performed by taking from the completed set, first, a record sheet, then a carbon sheet, then the next record sheet and so on to the last sheet. Of course, all this is time-consuming. Johnson worked upon the problem and in his application claimed to have solved it by so arranging and locating the carbon sheets in the strips with relation to the record sheets that, when a set of the record sheets and carbon sheets is severed from the continuous strip, portions of the carbon sheets extend at one place beyond the straight edge portions of the superposed record sheets, while other marginal portions of the carbon sheets are inwardly displaced with relation to the corresponding marginal portions of the record sheets. These projections are described as tabs which the typist can grasp, thus facilitating the separation of worksheets and carbon sheets. It is upon his placement of this element in an old combination that plaintiff grounds its claim of invention upon the part of Johnson. The filewrapper of Johnson’s patent discloses that it was old on the part of a typist to insert four or five blank sheets of paper in the typewriter with carbon sheets offset so as to leave an open space near the top of the sheet with the carbon sheets sticking out beyond the bottom or the top of the record sheets. Mallin, 1,032,918, showed letter-size carbon sheets with a tab' at one end and a notch at the other. Bottle, 1,736,427, August 14, 1926, disclosed continuous record and carbon strips provided with notches to facilitate separation. Johnson was aware of this application and says that his study of it led him to his solution by the use of tabs instead of notches. Hopkins, 1,054,-691, provided a carrier strip for a film pack having curved slits at the end of each sheet, so that, when torn along the indicated transverse line, a tab would be left projecting as the result of a notch formed by slits in the preceding length. Escamilla, 1,596,519 and Reid, 1,757,876, show carbon sheets with notches at one corner and tabs at the opposite corner. Davidson, 724,995, prescribed slits or cuts intersecting the line of perforations, so that when the form is torn off, a notch will be formed and a tab will remain. Shoup, 600,094, disclosed inclined cuts. Greig, 2,066,346, mentioned various structures. His Figure 2 discloses that the record forms may be left rectangular by merely tearing them straight across the line of severance. It' is suggested that the record forms may be torn diagonally on another line, leaving their corners attached to the carbon sheets. If the stationery shown in Figure 5 is separated by tearing the record form straight across the horizontal line and the carbons along the same line to the intersection of a diagonal line, then along the latter line, a projecting carbon tab will be left at one end and a finger grip notch provided at the opposite end, apparently as claimed by Johnson. Greig antedates Johnson by some two years. True, Greig amended his application, but his art, we think, was fully disclosed in his original application. These and various other prior patents in evidence, were supplemented by parol testimony of witnesses in open court. Johnson’s contribution lay in the prescription of tabs to facilitate separation of worksheets and carbon sheets. Bottle had suggested cutting off the corners on opposite sides. Other delvers in the art had suggested various other means to facilitate ease of separation. With this evidence before it, supplemented by the testimony of witnesses, the District Court found that Johnson had not achieved invention. We think the record is such that we are without right to set aside this finding. Rather, we agree that Johnson, working in a crowded art, merely adopted the expedient of one skilled in the calling of assembling and disassembling multiple sheets consisting of work sheets and carbon sheets. One typist might extend the ends of the carbon sheets beyond the work sheets and, when the work has been completed, pull them out. Another might adopt Bottle’s idea of cutting off the corners so as to facilitate spéed of separation. Others might use the tabs prescribed by Johnson. We think that the adoption of any one of these methods was the choice of the worker and did not rise to the dignity of patentable invention. There remains Brenn’s patent 2,-212,174. The applicant showed the old continuous manifold stationery strip with interleaved carbon sheets. Brenn added a detachable feeding band along one marginal edge, so that the stationery will be fed by a single pin-wheel located at the left end of the platen of the typewriter. Phillips and Allen, 2,306,900 also used continuous record strips interleaved with carbon strips provided with weakened transverse lines secured to a-carrier belt by stitching, which is rendered ineffective when the strips are separated into sets. The feeding bands are detachable along the line of weakening. Brenn lost an interference to Phillips and Allen. Phillips, et al., 2,149,544, likewise disclosed continuous 'form stationery with interleaved carbon sheets, the record strips being held together by detachable binding strips. Brown, 1,738,633, also showed continuous form stationery strips attached at one edge by- a detachable binding strip. True it is that Claim 2 of Brenn specifies that the carbon strips are not perforated and remain attached to the feeding bands and that Claim 5 further specifies that the, carbon strips be narrower than the record strips, in order to provide a finger grip. We think this is merely a mechanic’s choice. However, it was disclosed by Stevens, 2,-120,161, to whom Brenn lost an interference. Brandt, 764,173 and McDonald, 466,-507, likewise, suggest finger grip areas. As to this third patent, also, we conclude that the applicant, working in a crowded field, made a useful suggestion but that it was only such as would occur to any typist who took time to think about the problem encountered. At any rate, the evidence is such, consisting not only of documentary evidence but also of parol testimony, that w'e conclude that we would be wholly unjustified in setting aside the finding of invalidity. After consideration of the entire record, we are of the opinion that all three of these patents reflect not patentable invention but merely the exercise of the skill of the calling and an advancement plainly in accord with the prior art, within the decision of the Supreme Court in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 62 S.Ct. 37, 39, 86 L.Ed. 58, where the court said: “For it is our opinion that the-Mead device was not the result of invention but a ‘mere exercise of the skill of the calling’, an advance ‘plainly indicated by the prior art’. * * * More must be done than to utilize the skill of the art in bringing old tools into new combinations. * * * We may concede that the functions performed by Mead’s combination were new and useful. But that does not necessarily make the device patentable. Under the statute, 35 U.S.C. § 31, 35 U.S. C.A. § 31, R.S. § 4886, the device must not only be ‘new and useful’, it must also be an ‘invention’ or ‘discovery’. Thompson v. Boissclier, 114 U.S. 1, 11, 5 S.Ct. 1042, 1047, 29 L.Ed. 76 [79]. Since Hotchkiss v. Greenwood, 11 How. 248, 267, 13 L.Ed. 683 [691], decided in 1851, it has been recognized that if an improvement is to obtain the privileged position of a patent more ingenuity must be involved than the work of a mechanic skilled in the art. Hicks v. Kelsey, 18 Wall. 670, 21 L.Ed. 852; Slawson v. Grand Street, P. R. & F. R. Co., 107 U.S. 649, 17 Otto 649, 2 S.Ct. 663, 27 L.Ed. 576; Phillips v. Detroit, 111 U.S. 604, 4 S.Ct. 580, 28 L.Ed. 532; Morris v. Mcmillin, 112 U.S. 244, 5 S.Ct. 218, 28 L.Ed. 702; Saranac Automatic Mach. Corp. v. Wirebounds Patents Co., 282 U.S. 704, 51 S.Ct. 232, 75 L.Ed. 634; Honolulu Oil Corp. v. Halliburton, 306 U.S. 550, 59 S.Ct. 662, 83 L.Ed. 980. ‘Perfection of workmanship, however much it may increase the convenience, extend the use, or diminish expense, is not patentable.’ Reckendorfer v. Faber, 92 U. S. 347, 2 Otto 347, 356, 357, 23 L.Ed. 719 [723, 724].” We think, too, that the patents are within the scope of our decision in Sherman v. United Autographic Register Co., 7 Cir., 139 F.2d 185, 187: “We should think that any person, skilled or unskilled, observing this feeding process in operation and noting that the hole in the carbon was out of alignment, would immediately realize either that the position of the hole in the carbon must be changed or enlarged so that the portion of the hole necessary to accommodate the pin would be in alignment. This evidently was the sum total of the patentee's discovery.” Inasmuch as the judgment declaring each of the three patents in suit invalid must be affirmed, there is no occasion for us to consider other grounds announced by the District Court for its decision and urged here in support of affirmance. The judgment finding the three patents invalid for want of patentable invention and dismissing the complaint is affirmed. . A typical claim is Claim 8 as follows: A manifolding pack comprising a plurality of superposed continuous worksheet strips each comprising a succession of superposed printed forms separated by a line of severance; and means located at intervals along said strips for securing said strips together in registration, said means being located on said line of severance between two adjacent forms so as to be rendered inoperative to hold the forms together when the strips are severed in form lengths along said line of severance.

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

GUTERMAN v. RICE et al. No. 3664. Circuit Court of Appeals, First Circuit. June 23, 1941. Harold Horvitz, of Boston, Mass. (Sidney J. Kagan, Milton C. Wasby, and Guterman & Guterman, all of Boston, Mass., on the brief), for appellant. Arthur P. Stone, of Boston, Mass., for appellees. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAHONEY, Circuit Judge. The appeal here is from an order of the District Court affirming the order of the referee in bankruptcy. The only question is whether a chattel mortgage was properly recorded in accordance with the provisions of Massachusetts General Laws (Ter.Ed.) Chapter 255, Section 1, and is valid and legally binding as against the trustee in bankruptcy. The Rice Chocolate Company, the bankrupt corporation, was organized in 1914 under the provisions of Chapter T56 of the Massachusetts General Laws (Ter.Ed.). In its agreement of association it gave the location of its principal office as Boston, as required by the provisions of Section 6, of said chapter. It transacted its business in Boston until 1925 when it transferred its business activities to Everett, Massachusetts. The change in location of the corporation’s principal office was never authorized by vote of its stockholders nor were any articles of amendment setting forth that the location had been changed ever filed. The record book of the corporation was at all times kept in Boston, at the office of counsel for the corporation. The stockholders and directors held meetings at various places, including Boston, Cambridge and Belmont and no meetings ever took place in Everett. The corporation never again opened any office in Boston after its removal to Everett in 1925, and by January 1, 1926, it had given up every place of business and business activity in Boston and had no mailing address, no telephone listing, no salesroom, no factory and no property whatever in Boston. In each of the twelve annual certificates of condition which were filed with the Commissioner of Corporations since 1926 it was stated that its principal office was in Everett. It twice issued capital stock and stated that it was located at 7 Charlton Street, Everett. It amended its articles of association when it increased its capital stock and later when it reduced its capital stock, stating at all times that it was located in Everett. All papers thus filed were approved by the Commissioner of Corporations. When it went into Rhode Island to do business it there stated that it was of Everett, Massachusetts. It amended its by-laws and stated that “The principal office of the corporation shall be located in Everett”. The chattel mortgage which is the subject of consideration in this appeal was executed by the corporation on November 1, 1934 to the Old Colony Trust Company of Boston, who assigned it to the appellees, trustees under an indenture of trust dated November 1, 1934. It was recorded in Everett but not in Boston. On February 23, 1939 the corporation was adjudicated a bankrupt and later the trustee in bankruptcy petitioned to have the mortgage declared invalid. The referee held that the mortgage was properly recorded in accordance with the provisions of Massachusetts General Law (Ter.Ed.) Chapter 255, Section 1, and is valid and legally binding against the trustee in bankruptcy. On the trustee’s petition for review of this order the district court held that the failure to record the mortgage in Boston did not render the mortgage void and affirmed the referee’s action in upholding it as valid. The trustee has appealed from this order and decree of the district court. He contends that because of the failure of the corporation to change the location of its principal office by formal amendment and subsequent recording of the same with the Secretary of State, its residence remained in Boston as it was originally stated, and that the mortgage is invalid as against him because it was not recorded in Boston. We agree with the trustee, though the case is not without considerable difficulty. It is unfortunate that the Supreme Judicial Court of Massachusetts has never had occasion to pass upon the meaning of the word “resides” as used in the chattel mortgage recording act when applied to domestic corporations, nor to establish the effect of the Massachusetts corporation law in the circumstances here presented. Before venturing to state the Massachusetts law in these unusual circumstances, we have made an exhaustive survey of the authorities and have reached the conclusion that for the purposes of the recording of chattel mortgages in Massachusetts the residence of a domestic corporation is at the place of its principal office as designated in its articles of agreement or amendments thereto duly voted, certified and filed according to law. The question presented to us is a pure question of law: What is the residence of a domestic corporation for purposes of the chattel mortgage recording act? However sympathetic one may be toward the unfortunate position of one or the other party, it is perfectly dear that if, according to law, the residence of the Rice Chocolate Company was in Boston at the time of the recording of this chattel mortgage, the mortgage must be invalid as between third parties for lack of proper recording. Alexander v. F. L. Smithe Machine Co., 1924, 248 Mass. 436, 143 N.E. 321; Connecticut Valley Onion Co. v. Pielock, 281 Mass. 287, 290, 183 N.E. 526. The chattel mortgage recording statute requires the recording of a chattel mortgage in two places, i. e., the mortgagor’s residence, and his principal place of business. There is no question but that Everett is now the actual principal place of business of the mortgagor corporation. Regardless of whether Boston was the formal residence of the corporation, Everett was one of the places where the mortgage had to be filed. It has been urged upon us that “resi-dence” is a very flexible word and has different meanings depending on the sort of statute in which it is used. Cambridge v. West Springfield, 1939, 303 Mass. 63, 67, 20 N.E.2d 432, 434; Wachusett National Bank v. Fairbrother, 1889, 148 Mass. 181, 19 N.E. 345, 12 Am.St.Rep. 530. It is necessary for us to decide its meaning when used in a statute designed primarily to give notice of mortgages to creditors of the mortgagor. The statute in question provides two places where a prospective creditor can look to see if the mortgagor has given any chattel mortgages: the mortgagor’s residence and his principal place of business. If they coincide there need, of course, be only one recording. It is well established that the residence of a domestic corporation is at the location of its principal office unless a statute directs otherwise. Fairbanks Steam Shovel Co. v. Wills, 1916, 240 U.S. 642, 36 S.Ct. 466, 60 L.Ed. 841; Wood v. Delaware & H. R. Corp., 2 Cir., 1933, 63 F.2d 235; State ex rel. Stanton v. Zangerle, 117 Ohio St. 436, 159 N.E. 823. In Massachusetts, as in many other states, a domestic corporation is required to state in its Articles of Agreement the location of its principal office. Statutory provision is made for changing the location of this principal office and for having such change certified and recorded. No attempt was made by the bankrupt corporation to comply with the mandatory provisions for changing the location of its principal office. It is true that from 1926 on, the corporation filed annual certificates of condition with the Commissioner of Corporations in which it was stated that its principal office was in Everett. It also twice amended its articles of organization when, it increased and reduced its capital stock and stated that it was located in Everett. These amendments were accomplished pursuant to Mass.Gen.Laws (Ter.Ed.) c. 156, §§ 41, 43, supra, and show that the corporation was fully cognizant of the contents and requirements of those sections. It amended its by-laws to provide that the principal office of the corporation should be located in Everett, but they cannot take effect as a proper amendment of its Articles of Association since no showing was made that this was done by a vote of the majority of the stockholders as required by Section 41, supra, or certified by the Commissioner of Corporations and recorded with the Secretary of State as required by Section 43, supra. Cf. Brown v. Little, Brown & Co., 1929, 269 Mass. 102, 168 N.E. 521, 66 A.L.R. 1284. Until these acts are done, the statute is explicit that no amendment shall be effective. To hold that a domestic corporation can effectively change its legal residence without complying with the mandatory provisions of the Corporation Law is to make the applicable provisions of that law meaningless. Though the Supreme Judicial Court of Massachusetts has never squarely passed upon the effect of noncompliance with the provisions of Section 43 where the rights of creditors are involved, there are indications in its opinions dealing with that section that it considers it to have been enacted for the benefit of creditors. See Mitchell v. Mitchell, Woodbury Co., 1928, 263 Mass. 160, 164, 160 N.E. 539, 540; Cunningham v. Commissioner of Banks, 1924, 249 Mass. 401, 420-422, 433, 144 N.E. 447, 456, 461; cf. Commerce Trust Co. v. Chandler, 1 Cir., 1924, 295 F. 241; Franks v. Franks Bros. Co., 1930, 271 Mass. 70, 73, 170 N.E. 810, 811. We believe the statutory requirement that the location be stated in the articles of association and the specific provisions for change and for the recording of the same were for the purpose of fixing a definite legal residence of the domestic corporation within the Commonwealth about which there could be no question. The articles of association were to be conclusive as to this residence, at least for purposes necessitating a definite fixed place where creditors or the general public could have the assurance of finding recorded that information which the legislature has determined they are entitled to have, and no change was to be effective until made pursuant to the statute. Cf. Gorman v. A. B. Leach & Co., D.C.E.D.N.Y.1926, 11 F.2d 454; State ex rel. Northwestern Land & Colonization Co. v. District Court, 1921, 191 Iowa 244, 182 N.W. 211; State ex rel. Juvenile Shoe Corp. v. Miller, 1925, 217 Mo.App. 16, 272 S.W. 1066; People v. Barker, NY.Sup.Ct.1895, 87 Hun 341, 34 N.Y.S. 269, affirmed, 1895, 147 N.Y. 715, 42 N.E. 725; State ex rel. Harrington v. Vincent, 1927, 144 Wash. 246, 257 P. 849; First National Bank of Everett v. Wilcox, 1913, 72 Wash. 473, 130 P. 756, 131 P. 203. See Detroit Transportation Co. v. Board of Assessors, 1892, 91 Mich. 382, 390, 51 N.W. 978, 980 ; 8 Fletcher, Cyclopedia Corporations (Rev. ed. 1931) § 4048. But cf. State ex rel. Howard Cole & Co. v. Circuit Court, 1922, 178 Wis. 89, 189 N.W. 259. Nor is there any weight to the argument that there was substantial compliance with Sections 41 and 43. The referee found that no amendment had been filed but that “However, everything else that could possibly have been done to change its principal office was done prior to the date of recording the mortgage in question”. Everything else that could possibly have been done — except what the statute required — may have been done. But there was no attempt to comply with the statute. Not only was there not substantial compliance, there was not even a pretence of compliance though the corporation must have known of the requirements of Sections 41 and 43. In such a situation, the doctrine of Brown v. Little, Brown & Co., supra, is not applicable. It is our opinion that the bankrupt corporation did not legally change its principal office from Bos-i ton to Everett since it did not comply with the statutory requirements for such change. We are supported in our opinion as to the invalidity of the mortgage by the cases of Fairbanks Steam Shovel Co. v. Wills, supra, and Sweeny v. Keystone Driller Co., 1930, 122 Ohio St. 16, 170 N.E. 436, 437; 16 Va.L.Rev. 846. The latter case is squarely in point. The insolvent corporation stated in its articles of incorporation that its principal office was in Franklin County, Ohio. This was never changed according to law, though two years after its incorporation the corporation moved to Cuyahoga County and had no business or property in Franklin County. The next year a chattel mortgage given by the corporation was recorded in Cuyahoga County but not in Franklin County under a statute requiring recording in “the county where the mortgagor resides at the time of the execution thereof”. The mortgage was held to be improperly recorded since the residence of the corporation was still in Franklin County as the corporation had not amended its articles according to the statute. In Fairbanks Steam Shovel Co. v. Wills, supra [240 U.S. 642, 36 S.Ct. 467, 60 L.Ed. 841], the United States Supreme Court invalidated a chattel mortgage, as against creditors, in circumstances strikingly similar to those in the instant case. The chattel mortgage recording act in Illinois required recording in “the county in which the mortgagor shall reside at the time when the instrument is executed and recorded.” The mortgagor corporation was organized in 1905. The organizers filed a statement with the Secretary of State of Illinois, as required by law, that the principal office of the proposed corporation was to be Chicago, Cook County. The Secretary of State authorized the incorporators to open the books for stock subscriptions. When the subscriptions were complete, the corporation filed a statement setting forth the post-office address of its principal business office as Beardstown, Cass County. The Secretary of State then issued a certificate that the corporation was duly organized. No formal attempt was made to change the principal office as set forth in the original statement, though the corporation law had elaborate provisions for such change and for filing of such change with the Secretary of State. It is significant that the second statement that the principal office was in Beardstown was made even before the corporation was certified to be organized. The Supreme Court stated that “An office was nominally maintained in Chicago, but no records or books of account were kept nor any business transacted there. So far as the practical conduct of the business was concerned, and to all outward appearances, the principal office was in Beardstown. But no change of ‘the place of business’ was made in the manner prescribed by the statute”. A chattel mortgage was given in 1912, seven years after the corporation had “moved” to Beardstown, and was recorded in Cass County but not in Cook County. The Supreme Court held the mortgage invalid since it was not registered at the residence of the mortgagor, which was its principal place of business, conclusively established by its articles of incorporation. It further held that informal change of the location of the principal office was ineffective. The mortgagee contends that the case is distinguishable on the ground that the Supreme Court stated that the mortgagor nominally maintained an office in Chicago. It is true this statement was made by the court, but the lower court decision, In re Federal Contracting Co., 7 Cir., 1914, 212 F. 688, 691, shows that the special master found that “after a short time no office was maintained in Chicago” and that this was the basis on which the Circuit Court of Appeals found the mortgage invalid. Its judgment was affirmed by the Supreme Court, and there is not the slightest indication why the latter court made the statement that it did nor that it laid any emphasis at all on the maintenance of a nominal office. We do not think that the opinion lends itself to the interpretation that a different result would have been reached had the facts been stated exactly as in the court below. Laying aside that untenable distinction, the facts are extremely similar to the facts here involved. If anything, the facts there were stronger for the validity of the mortgage since the corporation had never actually done any business in Chicago while in the instant case the mortgagor resided for eleven years both in fact and in law in Boston. We consider the case strong authority for the appellant’s position. It is suggested that the case is no longer in good repute and should not be followed. However, it has often been cited for the broad proposition that the residence of a corporation is the place designated in its articles of incorporation, particularly in cases involving the recording of chattel mortgages. E. g., Babcock & Wilcox Co. v. Spaulding, 1 Cir., 1936, 86 F.2d 256, 258; Brandes v. Barber, 8 Cir., 1926, 13 F.2d 65, 66; The Underwriter, D.C.E.D.N.Y.1925, 3 F.2d 483, 485; see 8 Fletcher, Cyclopedia Corporations, op. cit., at § 4048; 2 Jones, Chattel Mortgages and Conditional Sales (1933) § 253. It was also cited by the Supreme Court in Newark Fire Ins. Co. v. State Board, 1939, 307 U.S. 313, 318, 59 S.Ct. 918, 83 L.Ed. 1312. We do not consider that the cases cited by the mortgagee, holding that a foreign corporation may acquire sufficient residence for various purposes in a state other than that of its incorporation, throw any uncertainty on the clear decision of the Fairbanks Shovel Co. case. The mortgagee contends that the law of Massachusetts is that the residence of a corporation is at its principal place of business in fact and not the place stated as such in its unamended articles of association. We have already expressed our opinion that the law of Massachusetts provides that the location of the principal office as stated in the articles is controlling on “residence” until properly changed by compliance with the mandatory provisions of the statute. If “residence” is read as synonymous with the de facto principal place of business then the recording statute contains a redundancy in requiring that the chattel mortgage be recorded both where the mortgagor resides and where the mortgagor “then principally transacts his business”. Cases stating thé rule as to the residence of individuals have no application as individuals are free to move about at will while a domestic corporation can be required to fulfill certain statutory requirements or may be given a fixed legal residence for certain purposes. The mortgagee particularly relies on a dictum in Parker v. Proprietors of Cemetery of Mt. Auburn, 1914, 217 Mass. 286, 104 N.E. 750, at page 752, where the Supreme Judicial Court of Massachusetts said: “It often has been held respecting a business corporation that its residence is in the place where its manufacturing, mercantile or other chief activities are carried on, and not where only its corporate or directors’ meetings are held or its records are kept.” It also relies on Federal Trust Co. v. Bristol County Street R. Co., 1914, 218 Mass. 367, 105 N.E. 1064. Neither of these cases dealt with the question here in issue. In neither of them did the statute require the articles to state the location of the principal office or provide for changing the same. The Mt. Auburn Cemetery case involved the taxation of a special type of non-business corporation organized under a special act. There was no occasion to pass upon the conclusiveness of a required statement of location, and an examination of the brief for the cemetery, at page 14, shows that this distinction was recognized in the statement that “In many states the statutes require the principal place of business of corporations to be stated in the original articles of incorporation, and it is generally held that in such cases the articles are conclusive". The cases cited by the court in the Mt. Auburn Cemetery case all deal with attempts to evade taxation by establishing a formal residence apart from the actual principal place of business. Whatever may be the law of Massachusetts as to the residence of domestic corporations attempting to evade taxation by such means, we do not consider the same considerations to control in fixing the residence of a corporation for the purpose of recording chattel mortgages. This was expressly recognized in Detroit Transportation Co. v. Board of Assessors, supra, cited by the court in the Mt. Auburn Cemetery case. Nor is the Federal Trust Co. case helpful since in that case a street railway was only required to state in its articles the towns through which its lines were to run. This was done and the mortgage filed in those towns. The master found as a fact that Boston was not the mortgagor’s principal place of business, and since the corporation had never stated that it was, it was correctly decided that recording in Boston was unnecessary. We consider it very unfortunate that it is necessary for a federal court first to construe these vital Massachusetts statutes. We also consider it unfortunate in these circumstances that the mortgage must be held invalid. However, if Sections 41 and 43 of the corporation law are to have any meaning it is necessary to hold that the principal office of a domestic corporation is that stated in its articles until duly amended and recorded, and that this constitutes its residence within the meaning of the~chattel mortgage recording statute. The corporation actually resided in Boston for eleven years. If the corporation law is not interpreted as we read it, at what time did the corporation move its “residence” to Everett? According to its articles its principal office is Boston. Would not a creditor, shortly after the removal to Everett, be entitled to rely on those articles as fixing the residence of the corporation and consider the Boston record a proper place to search for a chattel mortgage? At what time would he not be so entitled? Our decision has at least the advantage of providing one definite and certain place where a creditor may always look for the recording of a corporate chattel mortgage, i. e., the town in which the principal office is located as designated by the original articles of association or amendments thereto duly adopted, certified and recorded. Since the mortgage in this case was not recorded at the residence of the corporation as fixed by its principal office designated in its unamended articles of association, the mortgage is invalid as against the trustee in bankruptcy. The order of the District Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal. Mass. Gen. Laws (Ter. Ed.) c. 255: “Section 1. Mortgages of personal property shall * * * be recorded on the records of the town where the mortgagor resides when the mortgage is made, and on the records of the town where he then principally transacts his business. * * * The mortgage shall not be valid against a person other than the parties thereto until so recorded; * * Mass. Gen. Laws (Ter. Ed.) c. 156: “Section 6. * * * The agreement of association shall state: “(e) The location of the principal office of the corporation in the commonwealth id. “Section 41. Every corporation may, at a meeting duly called for the purpose, by the vote of a majority of all its stock * * * authorize an increase or a reduction of its capital stock * * * may authorize a change of the location of its principal office or place of business in this commonwealth or a change of the par value of the shares of its capital stock, or may authorize proceedings for its dissolution * * id. “Section 43. Within thirty days after any meeting at which any amendment or alteration of the agreement of association or articles of organization has been adopted, articles of amendment, signed and sworn to by the president, treasurer and a majority of the directors, setting forth such amendment or alteration and the due adoption thereof, shall be submitted to the commissioner [of corporations], who shall examine them with the same powers as in the case of the original articles of organization, and, if he finds that they conform to the requirements of law, shall so certify and endorse his approval thereon. Thereupon the articles of amendment shall * * * be filed in the office of the state secretary. No such amendment or alteration shall take effect until such articles of amendment shall have been filed as aforesaid.”

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Jerry J. GUDGER, Defendant-Appellant. No. 72-2003. United States Court of Appeals, Fifth Circuit. Dec. 26, 1972. J. V. Eskenazi, Federal Public Defender (Court appointed), Peter Koste, Asst. Fed. Public Defender, Miami, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., Bruce E. Wagner, Robert C. Byrne, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee. Before RIVES, WISDOM and RONEY, Circuit Judges. RIVES, Circuit Judge: The jury found the defendant guilty under a one-count indictment which charged that “JERRY J. GUDGER in connection with the acquisition of a firearm, to wit, one 30 caliber Plain-field M-l Carbine, bearing serial number 15932, from a licensed dealer, Dud’s Gun Shop, did knowingly make a false written statement, misrepresenting identification with respect to the transaction, by presenting a fictitious address, ‘4325 Collins, Miami Beach, Florida’ to. the dealer, said false written statement intended to deceive such dealer with respect to a material fact to the lawfulness of the sale, and disposition of such firearm, in violation of Title 18, United States Code, Section 922(a)(6).” [Rec. p. 180] The district court sentenced him to 57 days’ imprisonment. The sole issue on appeal is whether the court erred in denying the defendant’s motion for judgment of acquittal. Decision of that issue turns on the meaning of the phrase “with respect to a material fact to the lawfulness of the sale” as that phrase is used in the indictment. The testimony revealed that the address “4325 Collins, Miami Beach, Florida,” was fictitious, but there was no evidence to refute the defendant’s claim of Florida residency. Under similar facts the District Court of New Hampshire granted a defendant’s motion for judgment of acquittal, reasoning as follows: “The gravamen of the crime under 18 U.S.C. § 922(a)(6) is making or furnishing or exhibiting ‘any false, fictitious, or misrepresented identification, intended or likely to deceive such * * * dealer, * * * with respect to any fact material to the lawfulness of the sale. * * * ’ [Emphasis added.] I assume, for purposes of this ruling, that the defendant knew at the time that he showed his license to the gun dealer that the address given on his license was incorrect, although there was no direct evidence as to knowledge or intent. But the material fact for a dealer under § 922(b)(3) is the residency of the buyer, not the address of the buyer, although the address may be evidence of residency. The fact that a buyer may have intentionally given a false address does not become material until the government first proves that the defendant is not a resident of the state in which the dealer is doing business. There may be many reasons for giving a false address, none of which have anything to do with the commission of the crime set forth in 18 U.S.C. § 922(a)(6).” United States v. Benton, D.N.H.1971, 329 F.Supp. 331, 332. On the other hand, in United States v. Crandall, 1972, 453 F.2d 1216-1217 the First Circuit reasoned: “In spite of able argument by defendant’s counsel we consider this appeal to be lacking in merit. Defendant’s motion for acquittal was denied, and thereafter he was found guilty of making a false statement, to wit, of supplying a false name, address, and date of birth in connection with his acquisition of a firearm, 18 U.S.C. § 922(a)(6) * * * “Defendant’s primary contention is that the misrepresentation was not one of a ‘fact material to the lawfulness of the sale,’ because, although the jury could find that defendant did misrepresent his identity, in actual fact, regardless of name, he was not a prohibited buyer within section 922, subsections (b) and (d). Hence, he says, the misrepresentation was not material. In making this contention defendant overlooks subsection (5) of section (b), which makes the sale unlawful, without limitation, in every case, unless the seller records the ‘name, age, and place of residence’ of the purchaser. It follows from the fact that the sale is illegal unless these matters are correctly recorded, that their misstatement is a misrepresentation of a ‘fact material to the lawfulness of the sale.’ ” Insofar as we are advised or have discovered, Benton and Crandall are the only pertinent eases. In Crandall the defendant supplied “a false name, address, and date of birth,” while in the case at bar the indictment charged the defendant with “misrepresenting identification with respect to the transaction, by presenting a fictitious address, ‘4325 Collins, Miami Beach, Florida’ to the dealer.” To us that seems a distinction without a difference. We conclude that this case is governed by Crandall, and that the district court properly denied the defendant’s motion for judgment of acquittal. Such a direct approach obviates the necessity of considering the following more indirect rationale: (1) Error in the citation of the statute in the indictment is not ground for reversal if the error did not mislead the defendant to his prejudice. Rule 7(c), F.R.Cr.P. See also Williams v. United States, 1897, 168 U.S. 382, 389, 18 S.Ct. 92, 42 L.Ed. 509; United States v. Hutcheson, 1941, 312 U.S; 219, 224, 61 S.Ct. 463, 85 L.Ed. 788. (2) The facts alleged in the indictment constitute an offense under 18 U.S.C. § 924(a) and 18 U.S.C. § 922(b) (5) We think that the facts alleged in the, indictment and supported by the evidence constitute an offense under the statute cited, 18 U.S.C. § 922(a)(6), and that resort to other statutes or regulations is not necessary. The judgment is therefore Affirmed. . Which provides for punishment for misrepresentation of any fact required to be kept in the records of a person licensed under this chapter. . Which provides: “(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver— (5) any firearm or ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person if the person is an individual, or the identity and principal and local places of business of such person if the person is a corporation or other business entity.”

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

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

Robert Lee CASE, Appellant, v. STATE OF NORTH CAROLINA, Appellee. No. 8768. United States Court of Appeals Fourth Circuit. Argued Jan. 17, 1963. Decided March 25, 1963. Sherwood H. Smith, Jr., Raleigh, N. C., and L. Lyndon Hobbs, Shelby, N. C., for appellant. Harry W. McGalliard, Asst. Atty. Gen. of North Carolina (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for appellee. Before BOREMAN and J. SPENCER BELL, Circuit Judges, and CRAVEN, District Judge. J. SPENCER BELL, Circuit Judge. The petitioner, Robert Lee Case, was convicted of the capital crime of rape, without recommendation of life imprisonment by the jury, and a mandatory sentence of death was pronounced by the state court. The judgment was affirmed by the Supreme Court of North Carolina, State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), and petition for certiorari denied by the Supreme Court of the United States, Case v. North Carolina, 365 U.S. 830, 81 S.Ct. 717, 5 L.Ed. 2d 707 (1961). Post-conviction proceedings were instituted in the state courts, and after hearing, the court made findings of fact upon which it concluded as a matter of law that Case had suffered no substantial deprivation of his constitutional rights in his original trial, and denied relief. On the basis of this record, the District Court denied petitioner’s application for a writ of habeas corpus. The petition alleges that Case was denied the effective assistance of counsel during his trial because of a conflict of interest resulting from his counsel’s duty both to him and to his co-defendant Shedd, by whom the attorney was also retained. We agree with the District Court that the post-conviction hearing conducted by the state court obviated the necessity of holding a plenary hearing in the District Court. The findings of historical fact are supported by the evidence, indeed there was little or no conflict in this area; it is with the conclusions of law drawn therefrom that we must differ. The petitioner Case and his co-defendant Shedd were indicted and tried jointly for the capital offense of rape. Both were found guilty; the jury recommended mercy and life imprisonment for Shedd, but no such recommendation was made with respect to Case, and thus, for him, the death penalty was mandatory. Both Case and Shedd employed the same attorney; shortly before trial Shedd's family employed additional counsel for him, but the only counsel which Case had during his trial and appeal also represented Shedd. Before trial, both defendants were given psychiatric examinations at the state hospital for the insane. The doctors testified that Case’s I.Q. was about eighty, which was considered “dull but normal intelligence”; however, Shedd had an I.Q. of about fifty and was classified as moronic. Case was Shedd’s uncle, and considerably older. He had a criminal record. When the trial commenced, the Court asked if there were any preliminary motions, whereupon petitioner’s counsel moved for a severance, explaining that he represented both defendants and that he was fairly certain that a conflict would arise between their interests upon certain evidence which he felt sure would be offered by the state and which would be favorable to one and unfavorable to the other, thus putting him in a “difficult position”. The Court overruled the motion and then directed that petitioner’s attorney should cross-examine on behalf of the petitioner while Shedd’s additional counsel should cross-examine for Shedd. Petitioner’s attorney was never relieved either in fact or on the record of his representation of Shedd, nor did he contend such was the fact at the state post-conviction hearing, nor is there any evidence that he returned Shedd’s fee. In fact, when the petitioner here attacks his attorney’s conduct in leaving the courtroom during the judge's charge and the state’s arguments to the jury, the state defends such conduct on the grounds that each of the defense lawyers was watching out for the interests of both defendants. Nor can we accept the argument that the court’s act in allocating the cross-examination of witnesses between the two defense attorneys relieved petitioner’s counsel of his basic conflict of interest as regards Case. This conflict of interest was present at every stage of the trial, in the preliminary decision on the nature of Shedd’s defense tactics, during the testimony of the prosecutrix and other state’s witnesses, the charge to the jury, and the argument of counsel. Every incident which emphasized Shedd’s defense drew the noose tighter about his co-defendant’s neck. We do not need the verdict of the jury to prove this. We would even concede that Case may well receive the same verdict in a separate trial, but we must not attempt to measure the degree of injury. The conflict of interest is inherent in the case, but it is fixed beyond a doubt by the jury’s unbridled discretion to give life or death to the two defendants. In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), a state conviction was reversed on the grounds that denial of the effective assistance of counsel in capital cases was failure of due process under the Fourteenth Amendment of the Constitution. The remedy is available under habeas corpus Holly v. Smyth, 280 F.2d 536 (4 Cir., 1960), where this Court said: “The interests of the several defendants might actually have conflicted. If the attorney was present to aid the others, one trial tactic which could benefit them would be to show that Holly was chiefly responsible for the crimes. In fact, the more severe treatment accorded Holly suggests this possibility.” 280 F.2d at 542. While we need not attempt to measure, the extent of the injury, we would point out that petitioner’s counsel sat silent while the psychiatrist who had examined Shedd detailed Shedd’s confession, which not only implicated the petitioner but threw on him the onus of leadership in the outrageous conduct of the two. Again he was silent when private pros-_ ecution used violent and inflammatory language in its summation to the jury, referring to the petitioner as a “mad dog”, an “animal”, and a “convict”. As counsel for Shedd, he could view all the emphasis placed on Case’s conduct as tending to remove the onus from his client. ’ Other errors are alleged in petitioner’s attempt to show that his counsel was ineffective and inadequate, but we see no point in reviewing these. We must hold that the Trial Court’s failure to recognize the inherent and basic conflict of interest which faced counsel for the petitioner and for that reason permit severance was fatal error in that it denied to petitioner the effective assistance and the undivided loyalty of his counsel during his trial upon a capital offense. This being true the case must be remanded to the District Court with instructions to free the petitioner unless the state will retry him within a reasonable time. Remanded. . Under North Carolina law the jury had the right to recommend life imprisonment, which recommendation is mandatory on the judge. N.C.Gen.Stat. § 1dr-21. The North Carolina Supreme Court has held that this act attaches no limitation, conditions or qualifications to the jury’s right to so recommend, and neither the court nor counsel for the state may argue to the jury that it should not exercise its unbridled discretion in making this recommendation. State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959); State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959); State v. McMillan, 233 N.C. 630, 65 S.E.2d 212 (1951). . Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), but Brown v. Allen in no way relaxes the duty of the Federal Court to make its own constitutional determination. Holly v. Smyth, 280 F.2d 536, 543 (4 Cir., 1960); United States ex rel. Sileo v. Martin, 269 F.2d 586 (2 Cir., 1959). . On the direct appeal, the Supreme Court of North Carolina said with respect to this testimony: “Where testimony incompetent as to one defendant is admitted without objection and without request that its admission be limited, an exception thereto will not be sustained. * * * It would have been error to admit Shedd’s statement or statements against Case, had he requested that they be limited as against Shedd only.” 116 S.E.2d at 434. . We think the Supreme Court spoke with impelling force to this very point when it said: “ * * * of equal importance with the duty of the court to see that an accused has the assistance of counsel is Its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from- those of his first client, when the possibility of that divergence is brought home to the court.” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1941).

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?

EISENMENGER v. COMMISSIONER OF INTERNAL REVENUE. No. 12828. Circuit Court of Appeals, Eighth Circuit. Oct. 23, 1944. Pierce Butler, Jr., of St. Paul, Minn. (Jack C. Foote, Edgar G. Vaughan, and Doherty, Rumble, Butler, Sullivan & Mitchell, all of St. Paul, Minn., on the brief), for petitioner. Robert Koerner, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst, to the Atty. Gen., and Helen R. Carloss, Sp. Asst, ta the Atty. Gen., on the brief), for respondent. Before GARDNER, THOMAS, and RIDDICK, Circuit Judges. GARDNER, Circuit Judge. This is a petition to review a decision of the Tax Court of the United States determining a deficiency in petitioner’s income taxes for the calendar years 1936 and 1937. The facts are not in dispute. The issue is whether dividends received during the taxable years by a trust, in the form of deferred debenture notes, constituting income for the years involved, were distributable by the trust to the petitioner. On December 31, 1931, Charles W. Eisenmenger, husband of petitioner, created a trust, the corpus of which consisted of 200 shares of the common stock of the Chamar Investment Company. The settlor, the petitioner, and Ottilie Eisenmenger were named as trustees, and petitioner was named a beneficiary in the trust. The trust instrument provided in part as follows: “The trustees shall pay to Marie Anna Eisenmenger, the wife of the grantor, for and during the term of her natural life, annually or as received, the net cash income received by them from the said shares of stock.” On December 28, 1936, a resolution was adopted by the Board of Directors of the Chamar Investment Company, declaring a dividend of $40,000, of which 10 per cent was to be paid' in cash and the balance to be paid in 5 per cent subordinated debenture notes, payable on or before December 31, 1946. Pursuant to this resolution the trustees received as dividends on the stock held in trust $1,600 in cash and a 5 per cent subordinated debenture note in the amount of $14,400, dated December 28, 1936, and payable on or before December 31, 1946. The trustees retained the note and deposited the cash received to the account of the trustees, but no distribution of any portion of the cash or notes was made to the beneficiary of the trust in 1936. On December 29, 1937, the Board of Directors of the Chamar Investment Company adopted a similar resolution declaring a dividend of $35,000, payable to the stockholders of record Decembe'r 29, 1937, of which 15 per cent was to be paid in cash and the remaining 85 per cent was to be paid in 4 per cent subordinated debenture notes of the company. In due course the trustees received as dividends on the stock held in trust $2,100 in cash and a 4 per cent subordinated debenture note in the amount of $11,900, payable on or before December 31, 1946. The trustees retained the note and deposited the cash so received to the account of the trustees, together with an item of $720, making a total deposit of $2,820. This item of $720 represented interest on the 5 per cent note issued to the trustees as a dividend in 1936. No distribution of any portion of the cash or the note was made to the beneficiary of the trust in 1937. The trustees filed their fiduciary income tax return for the year 1936 and reported the receipt of the dividends consisting of both the cash and the subordinated debenture note. No credit was taken on the return for distributions to the beneficiary, and the trustees paid an income tax of $1,290 upon the reported basis as the 1936 income tax. They also prepared and filed in due course their fiduciary income tax return for the year 1937, reporting the receipt of dividends in the amount of $14,000 and $720 interest, and they paid an income tax of $1,247.75 on this amount as the 1937 income tax. The fair market value of the debenture notes received as dividends in 1936 and 1937 respectively was the face value of the notes. Petitioner in her individual income tax returns for the years 1936 and 1937, not having received any income from the trust, did not include any such income from the trustees for either of such years. Respondent, in the deficiency notice dated June 7, 1939, included as additional income to petitioner for the year 1936 the sum of $16,000, and for the year 1937 the sum of $14,675. These amounts included the dividends declared in cash and notes by the Investment Company for the years involved and the interest of $720 received by the trust during 1937, respondent expressing the view that the notes and cash received by the trustees during the years 1936 and 1937 as dividends were income distributable to the beneficiary of the trust. On petition for redetermination of the deficiency, the tax court sustained the contention of the commissioner. On June 2, 1941, the trustees under the trust filed in the District Court of Ramsey County, Minnesota, a petition for a confirmation of their appointment as trustees, and on the same date the court entered an order confirming the appointment. They also filed a petition requesting a construction of the trust instrument, and on June 5, 1941, the court entered its order for hearing of the petition and prescribed the notice to be given. Hearing was had pursuant to the order and notice on July 3, 1941, and the court entered its findings of fact and conclusions of law and judgment. The court found, among other things, “That during the years 1936, 1937, 1938, 1939, and 1940, the trustees received as income of the trust, dividends on the shares of stock of Chamar Investment Company constituting the corpus of the trust in the form of cash, dividends on said stock in the form of subordinated debenture notes, and interest on such debenture notes, in the form of cash.” The court concluded as a matter of law that: “1. The words ‘net cash income’ as used in Section 1 of the Charles W. Eisenmenger Trust No. 1 were intended by the grantor of the trust to, and do, refer solely to income received by the trustees in the form of cash, and Marie Anna Eisenmenger, the beneficiary named in said Section 1, is entitled to receive only such income as may be received by the trustees in the form of cash. “2. That the interest payments received in cash by the trustees on the subordinated debenture notes received by the trustees as dividends on the shares of stock constituting the original corpus of the trust is cash income subject to distribution to Marie Anna Eisenmenger pursuant to the provisions of Section 1 of said trust. “3. That the use of the word ‘net’ to modify the term ‘cash income’ as used in Section 1 of said trust was intended by the grantor of the trust to, and does authorize and direct the trustees to retain out of the cash income received by them during any year such amount as the trustees may reasonably estimate to be necessary for the payment of income taxes on the non-distributable items of income not in the form of cash received by them during such year, provided that when such income taxes are actually determined, any excess of the amount theretofore retained by the trustees out of the cash income of the trust for the payment of taxes over the amount actually needed is distributable to Marie Anna Eisenmenger under the terms of Section 1 of said trust. Further, the term ‘net cash income’ was intended to, and does, authorize the trustees to pay the current expenses of the trust out of the cash income received by them, and the amount necessary to pay such expenses is therefore not distributable under Section 1 of said trust to Marie Anna Eisenmenger.” The entry of this judgment being called to the attention of the tax court by motion, a rehearing was granted. On the rehearing the court adhered to its decision as originally entered. In seeking review of the tax court’s decision petitioner contends that (1) the subordinated debenture notes received by the trustees as dividends did not, under the terms of the trust instrument, constitute income distributable to the petitioner within the meaning of Section 162 of the pertinent Act; (2) the tax court erred in failing to follow and give effect to the construction placed upon the trust instrument by the District Court of Minnesota. Section 162 of the Revenue Act, 26 U.S. C.A.Int.Rev.Code, § 162 so far as here applicable, provides as follows: “The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that — • >J< “(b) There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the beneficiaries * * *, but the amount so allowed as a deduction shall be included in computing the net income of the beneficiaries whether distributed to them or not. Under this section of the Revenue Act of 1936, petitioner was liable for an income tax on all income which she was entitled to receive during the years involved from this trust whether she in fact received it or not. St. Louis Union Trust Co. v. United States, 8 Cir., 143 F.2d 842. There is no claim that the dividends did not constitute income arising from this trust. The tax court held as a matter of law, the facts being undisputed, that the dividends received by the trustees were, within the meaning of the trust instrument, “net cash income,” and hence distributable to petitioner. Dividends are not necessarily payable in cash. Valentine Clark Corp. v. Commissioner, 8 Cir., 137 F.2d 481; United States v. Dakota Tractor & Equipment Co., 8 Cir., 125 F.2d 20. They may, as here, be distributions in the form of executory promises of the corporation. Unless petitioner was entitled to receive the debenture notes, then, manifestly, they would not be taxable income. She was not responsible for the form or character of the dividends as declared by the board of directors of the Chamar Investment Company. Whether or not she was entitled to receive them was dependent upon the above quoted provision of the trust instrument. The petitioner, as well as the grantor of the trust, is and at the time of the execution of the trust instrument was a resident and citizen of Ramsey County, Minnesota. The trustees and the beneficiary had apparently construed this instrument to mean that petitioner was entitled to have turned over to her only the net cash income received by them from the shares of stock and that the debenture notes were not the equivalent of cash. When the tax court held the petitioner liable for the entire income, whether issued in cash or notes, it naturally became a matter of concern to the trustees. They had paid the income tax on this income, and, if accepting the views of the tax court as to the proper construction of the trust instrument, they should turn over to petitioner these notes, then manifestly they would be answerable to remaindermen who were named in article 5 of the same trust instrument, the ultimate distributees of the corpus of the trust and accrued income. The construction of the trust instrument by the tax court was of no binding effect upon the remaindermen nor upon the trustees. The construction of the trust instrument involved no federal question nor federal tax law. In taking proceedings for a construction of the trust instrument by the state court, the trustees proceeded under Sections 501.33, 501.35 and 501.36, 2 Minn. Stats. 1941. Section 501.33 provides that: “Upon petition of any person appointed as trustee of an express trust by any will or other written instrument, or upon petition of any beneficiary of such trust, the district court of the county wherein such trustee resides or has his place of business, shall consider the application to confirm the appointment of the trustee and specify the manner in which he shall qualify. Thereafter such district court shall have jurisdiction of such trust as a proceeding in rem.” Section 501.35 provides that: “Any trustee whose appointment has thus been confirmed at any time thereafter may petition the court for instructions in the administration of the trust .or for a construction of the trust instrument, or upon or after the filing of any account, for the settlement and allowance thereof. Upon the filing of such petition the court shall make an order fixing a time and place for hearing thereof, unless hearing has been waived in writing by the beneficiaries of such trust. Notice of such hearing shall be given by publishing a copy of such order one time in a legal newspaper of such county at least 20 days before the date of such hearing, and by mailing a copy thereof to each party in interest then in being, at his last known address, at least ten days before the date of such hearing or in such other manner as the court shall order and if such court shall deem further notice necessary it shall be given' in such manner as may be specified in such order. Upon such hearing the court shall make such order as it deems appropriate, which order shall be final and conclusive as to all matters thereby determined and binding in rem upon the trust estate and upon the interests of all beneficiaries, vested or contingent, except that appeal to the supreme court may be taken from such order within 30 days from the entry thereof by filing notice of appeal with the clerk of the district court, who shall mail a copy of such notice to each adverse party who has appeared of record.” Section 501.36 provides for the appointment of a guardian of any minor or otherwise incompetent person upon whom the court has ordered personal service. As already observed, the question of what rights the petitioner acquired under this trust instrument does not present a federal question but a matter of state law. Assuming that the state court acquired jurisdiction, its decision is binding upon all the parties to the instrument. That court has determined that the petitioner has no interest in the debenture notes but that these notes are the property of the trust. She has not, of course, received them, and under the state law as determined in the proceeding referred to, she can not receive them. The decision of the state court on the question of the ownership of this property was, we think, conclusive upon the tax court and upon this court. Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465; Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634; Hubbell v. Helvering, 8 Cir., 70 F.2d 668; Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109; Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed.-. In Blair v. Commissioner, supra, it is said that [300 U.S. 5, 57 S.Ct. 333, 81 L.Ed. 465]: “The one who is to receive the income as the owner of the beneficial interest is to pay the tax.- If under the law governing the trust the beneficial interest is assignable, and if it has been assigned without reservation, the assignee thus becomes the beneficiary and is entitled to rights and remedies accordingly.” In the Blair case the beneficiary of a trust had assigned the income from such trust to his children prior to the tax years. The question involved was the effectiveness of the assignment. As in the instant case, the question first arose when the commissioner ruled that the income was taxable to the beneficiary. After the matter had been decided adversely to the beneficiary by the Circuit Court of Appeals, 7 Cir., 83 F.2d 655, the trustees brought suit in the Superior Court of Cook County, Illinois, to obtain a construction of the trust instrument. The Illinois court decided that the trust was not a spendthrift trust and upheld the assignments. The matter finally reached the Supreme Court. The government contended that the judgment of the state court was not controlling. In the opinion it is, among other things, said: “The supervening decision of the state court interpreting that law in direct relation to this trust cannot justly be ignored in the present proceeding so far as it is found that the local law is determinative of any material point in controversy. Compare Freuler v. Helvering, 291 U.S. 35, 54 S.Ct. 308, 78 L.Ed. 634; Hubbell v. Helvering, 8 Cir., 70 F.2d 668. “Second. The question of the validity of the assignments is a question of local law. The donor was a resident of Illinois and his disposition of the property in that State was subject to its law. By that law the character of the trust, the nature and extent of the interest of the beneficiary, and the power of the beneficiary to assign that interest in whole or in part, are to be determined. The decision of the state court upon these questions is final. * * * It matters not that the decision was by an intermediate appellate court.” Some attack is sought to be made upon the proceeding culminating in the findings and judgment by the state court. It is said that the commissioner was not made a party. He was not an interested party under this trust instrument. Had he been made a party the government would not have been bound. There was, however, submitted to the state court the entire record and briefs in the tax proceeding and no further presentation was made. It is argued in the government’s brief that the proceeding was collusive, but the tax court did not so find and there is no basis for such contention. The tax court held that it was nonadversary. The proceeding was statutory and declared by the statute to be a proceeding in rem. We can not say that the proceeding provided by the statute was lacking in due process. It is urged that the notice fixing the time and place for hearing was not published. The statute, however, does not prescribe publication as the only method of giving notice, but provides that it may be given “in such other manner as the court shall order.” The court in the instant case ordered that the notice of hearing be given by mailing a copy of the petition and of the order to beneficiaries of the trust by registered mail. Proof of such service was made and the court’s findings recite that, “Service of the petition and order for hearing having been duly made on the beneficiaries named in said trust,” Other irregularities in the proceeding are suggested but at most they are irregularities and do not go to the jurisdiction of the court. Being of the view that the judgment of the District Court of Ramsey County, Minnesota, entered in the proceeding taken before it for a construction of the trust instrument and for instructions to the trustees, is conclusive on us, we pretermit any discussion of the question of the construction of the trust instrument. The judgment of the tax court is therefore reversed and the cause remanded for the entry of judgment consistent herewith.

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

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

Ruth WOODSMALL, Connie Woodsmall and Lavina Woodsmall, Appellants, v. Richard LYNG, Secretary of the United States Department of Agriculture; Dwight Calhoun, Acting Administrator of the Farmers Home Administration; R.R. Pim, State Director of the Farmers Home Administration; Donald Bell, District Director of the Farmers Home Administration; Betty L. Hilbrant, Henry County Supervisor of the Farmers Home Administration; the United States Department of Agriculture; and the Farmers Home Administration, Appellees. No. 86-1680. United States Court of Appeals, Eighth Circuit. Submitted Dec. 9, 1986. Decided April 15, 1987. Rehearing and Rehearing En Banc Denied June 1, 1987. Janice E. Rutledge, Iowa City, Iowa, for appellants. Raymond W. Fullerton, Washington, D.C., for appellees. Before LAY, Chief Judge, WOLLMAN, Circuit Judge, and HANSEN, District Judge. The HONORABLE DAVID R. HANSEN, United States District Judge for the Northern District of Iowa, sitting by designation. WOLLMAN, Circuit Judge. Ruth, Connie, and Lavina Woodsmall appeal the district court’s dismissal of their action seeking judicial review of the Farmers Home Administration’s (FmHA’s) denial of their rural housing loan application. The issues in this appeal are whether, or to what extent, the FmHA’s action is subject to judicial review, and whether the FmHA has failed to promulgate adequate written standards for evaluating creditworthiness. We affirm. I Section 501 of the Housing Act of 1949, ch. 338, § 501, 63 Stat. 413, 432 (codified as amended at 42 U.S.C. § 1471 (1982 & Supp. Ill 1985)), authorizes the Secretary of Agriculture to extend financial assistance through the FmHA to residents of rural areas for the purchase, construction, or improvement of dwellings and other facilities. The conditions of eligibility for the assistance require an applicant to show that (1) he is without an adequate dwelling or other facilities for his own use, (2) he is without sufficient resources to provide the necessary housing and buildings on his own account, and (3) he is unable to secure the credit necessary for such housing and buildings from other sources upon terms and conditions which he could reasonably be expected to fulfill. 42 U.S.C. § 1471(c) (1982). Section 502 of the Housing Act provides that if an applicant is eligible for assistance under section 501 and has the ability to repay the sum to be loaned, the Secretary may make a loan to the applicant. The Woodsmalls’ application for a section 502 rural housing loan was denied by the FmHA. The FmHA’s county supervisor informed the Woodsmalls of the rejection and stated that “[t]he basis for this rejection is from information received from your credit reports and credit reference letters and judgments on record.” When efforts at informal negotiations between the Woodsmalls and the FmHA were unsuccessful, the Woodsmalls pursued an administrative appeal. After a hearing at which the Woodsmalls presented evidence of their creditworthiness, an FmHA assistant district director notified the Woods-malls that the denial of their application was proper. At this stage of the proceedings the reasons for the rejection of the Woodsmalls’ application were stated as: “Information received from Credit Reports, credit reference letters and judgments on record indicate a credit history unsatisfactory to qualify for a Farmers Home Administration loan.” In a further appeal to the state director, the original decision was upheld once again. The Woodsmalls then filed this action for judicial review pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982) (APA), alleging that the decision was not supported by substantial evidence and that the Secretary had unlawfully failed to promulgate adequate standards or guidelines for evaluating creditworthiness. The district court dismissed the action, finding that the decision was not subject to judicial review, or, if it was, the decision was supported by substantial evidence. The court also upheld the failure to promulgate further standards for evaluating creditworthiness. II The APA provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702 (1982). There is a strong presumption that agency actions are reviewable. Bowen v. Michigan Academy of Family Physicians, — U.S. -, 106 S.Ct. 2133, 2135-36, 90 L.Ed.2d 623 (1986); see also Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). Nevertheless, the APA also provides that the chapter on judicial review “applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a) (1982). The Secretary argues that the FmHA’s denial of the Woodsmalls’ loan application for lack of creditworthiness is an agency action that is committed to agency discretion by law under section 701(a)(2) and therefore is unreviewable. The Supreme Court first discussed the section 701(a)(2) exception to judicial review in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), where the Court found that section 701(a)(2) was “a very narrow exception” that is applicable “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Overton Park, 401 U.S. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). In their attempts to implement the Overton Park “no law to apply” standard, the courts have adopted several different approaches for determining when there is law to apply. A literal approach gained favor in the Ninth Circuit. In City of Santa Clara v. Andrus, 572 F.2d 660, 666 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978), the court found that “[tjhere is ‘law to apply,’ only if a specific statute limits the agency’s discretion to act in the manner which is challenged.” See also Greenwood Utils. Comm’n v. Hodel, 764 F.2d 1459, 1464 (11th Cir.1985). This court, however, took another approach. In Tuepker v. Farmers Home Admin., 708 F.2d 1329, 1332 (8th Cir.1983), the court followed the District of Columbia Circuit’s decision in Natural Resources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1043 (D.C.Cir.1979), and recognized that “ ‘[i]n practice, the determination of whether there is “law” to apply necessarily turns on pragmatic considerations as to whether an agency determination is the proper subject of judicial review.’ ” Tuepker, 708 F.2d at 1332 (quoting Natural Resources Defense Council, 606 F.2d at 1043). The Tuepker court stated further that: In determining reviewability of an agency’s actions, a court must look at the allegations raised in the complaint, together with the governing statutes and regulations, and determine: (1) whether the challenged agency action is of the type Congress intended be left to a reasonable exercise of agency expertise; and (2) whether the problem raised is one suitable for judicial determination. It is only then that a court can sufficiently ascertain whether there is “law” to apply within the meaning of Overton Park. Id. See also Story v. Marsh, 732 F.2d 1375, 1379 (8th Cir.1984). The “pragmatic considerations” approach was invoked by the District of Columbia Circuit in Chaney v. Heckler, 718 F.2d 1174, 1185 (D.C.Cir.1983), rev’d, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), in a decision subsequently overturned by the Supreme Court. The Supreme Court’s opinion in Chaney is the Court’s most recent interpretation of the “no law to apply” standard. The Court stated that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Chaney, 470 U.S. at 830, 105 S.Ct. at 1655. The Court, however, did not directly utilize the “no law to apply” standard to resolve the case. Chaney involved an agency’s refusal to take requested enforcement action. The Court concluded that, unlike other agency actions, agency decisions not to enforce are not presumptively reviewable. Rather, the Court held that a presumption of unreviewability attaches to agency refusals to enforce unless there is law to apply. Chaney’s emphasis on statutory language as the source of law to apply casts doubt on the “pragmatic considerations” approach. The Chaney Court disparagingly referred to pragmatic considerations such as those relied on by the court of appeals in that case as amounting to “an assessment of whether the interests at stake are important enough to justify intervention in the agencies’ decisionmaking.” Chaney, 470 U.S. at 834, 105 S.Ct. at 1657. The judge who dissented from the court of appeals’ opinion in Chaney has asserted that the Supreme Court disapproved the “pragmatic considerations” approach, California Human Dev. Corp. v. Brock, 762 F.2d 1044, 1052 (D.C.Cir.1985) (Scalia, J., concurring), and several commentators have agreed. See Note, The Impact of Heckler v. Chaney on Judicial Review of Agency Decisions, 86 Colum.L.Rev. 1247, 1252 n. 32 (1986) (“the Chaney Court’s affirmation of Overton Park makes it clear that * * * review should be denied only where the court can discern no statutory language which might constrain the agency’s discretion”); The Supreme Court, 1984 Term, Leading Cases, 99 Harv.L.Rev. 120, 270 (1985) (“Chaney rejected the ‘pragmatic test’ for determining when review is appropriate”). On the other hand, Chaney has not resulted in wholesale rejection of the approach. See Doe v. Casey, 796 F.2d 1508, 1525, 1531 (D.C.Cir.1986) (Buckley, J., dissenting) (criticizing majority for ignoring cases relying on pragmatic considerations), petition for cert. filed sub nom. Gates v. Doe, 55 U.S.L.W. 3572 (U.S. Feb. 6, 1987) (No. 86-1294); Cardoza v. Commodity Futures Trading Comm’n, 768 F.2d 1542, 1549 (7th Cir.1985) (“we read Chaney solely as reaffirming the recognized position that § 701(a)(2) applies in certain circumstances where courts are unqualified to decide whether an agency has abused its discretion”). The Court’s emphasis on statutory language arguably can be confined to the context of refusals to take enforcement action. See Robbins v. Reagan; 780 F.2d 37, 46 (D.C.Cir.1985) (“The requirement of a heightened level of discernible standards controlling discretion to rebut the presumption of nonreviewability applicable in decisions not to take enforcement action must not be applied outside of that context.”) We believe that Chaney’s effect on the “pragmatic considerations” approach of Tuepker is an issue better left for another day. Under either the Tuepker approach or an approach that emphasizes the centrality of the statutory language — the arguable command of Chaney — the outcome would be the same in this case. The Woodsmalls’ loan application was denied on the ground that their credit history demonstrated a lack of creditworthiness; they now ask the court to reevaluate the evidence and the FmHA’s conclusion concerning their creditworthiness. The court is not equipped to undertake such a task, for in these matters we have neither the training nor experience of an FmHA loan officer. The agency’s determination of creditworthiness is a “qualitative, subjective decisión based on agency expertise,” Tuepker, 708 F.2d at 1332, within the bounds of the statute’s direction that the Secretary “may” make loans to applicants that he determines to have “the ability to repay in full the sum to be loaned, with interest.” 42 U.S.C. § 1472(a)(1) (Supp. Ill 1985). Moreover, we do not find in this statutory language or in any other provision the kind of meaningful standards that would, under Chaney, allow us to judge the agency’s exercise of discretion in denying a loan application for lack of creditworthiness. Consequently, we hold that the FmHA’s evaluation of the Woodsmalls’ creditworthiness and conclusion that a lack of creditworthiness justifies denial of the Woods-malls’ loan application is not subject to judicial review because it is an action that is committed to agency discretion by law. Ill Our conclusion that the FmHA’s creditworthiness determination is unreviewable does not, however, foreclose review of the Woodsmalls’ claim that the Secretary has failed to promulgate adequate standards for evaluating creditworthiness. Story v. Marsh, 732 F.2d 1375, 1381 (8th Cir.1984) (even when matter is committed to agency discretion by law, court may review for lack of agency jurisdiction, improper influence on agency, or violation of constitution, statute, or regulation) (citing Local 2855, AFGE (AFL-CIO) v. United States, 602 F.2d 574, 580 (3d Cir.1979)); see also Assiniboine and Sioux Tribes v. Board of Oil and Gas Conservation, 792 F.2d 782, 791-92 (9th Cir.1986). Tuepker itself indicated that judicial review might have been appropriate in that case had Tuepker alleged a “ ‘substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error.’ ” Tuepker, 708 F.2d at 1332 (quoting Scroggins v. United States, 397 F.2d 295, 297, 184 Ct.Cl. 530 cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968)). And in Iowa ex rel. Miller v. Block, 771 F.2d 347, 351-52 n. 4 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3312, 92 L.Ed.2d 725 (1986), this court noted that review was proper where the appeal did not turn on “technical issues of the agency’s substantive expertise,” but rather was a “purely legal inquiry.” Because this issue presents only the legal question whether the Secretary is required to promulgate further standards for evaluating creditworthiness, it is clearly within the competence of the court and a matter on which there is law to apply. The Woodsmalls argue that the Secretary’s failure to promulgate further standards for evaluating creditworthiness is unlawful on two grounds: first, that it violates the due process clause of the Constitution, and second, that it violates a “[gjood faith consideration,” Allison v. Block, 723 F.2d 631, 636 (8th Cir.1983), of the statute authorizing the Secretary to make rural housing loans. 42 U.S.C. § 1472(a)(1) (Supp. Ill 1985). Any claim of an unconstitutional deprivation of property without due process must be premised on a demonstration that a “constitutionally protected property interest” is at stake. Thus, the Woodsmalls must demonstrate that they possess a constitutionally protected property interest in the benefits offered by the section 502 rural housing loan program. In DeJournett v. Block, 799 F.2d 430 (8th Cir.1986), a case involving a farmer whose FmHA loan applications were denied, this court recently found that “neither the Supreme Court nor this court has held that the filing of a FmHA loan application in itself provides applicants * * * with a ‘legitimate claim of entitlement protected by the Due Process Clause of the Fifth * * * Amendment ].’ ” DeJournett, 799 F.2d at 431 (quoting Lyng v. Payne, — U.S. -, 106 S.Ct. 2333, 2343, 90 L.Ed.2d 921 (1986)), see Hagemeier v. Block, 806 F.2d 197, 202 (8th Cir.1986). Moreover, even assuming that a constitutionally protected property interest is at stake, we do not believe the failure to promulgate further creditworthiness standards violates due process under the balancing test developed in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The controlling considerations listed in Mathews included: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. at 903 (citation omitted). In Berg v. Shearer, 755 F.2d 1343 (8th Cir.1985), this court applied the Mathews test in denying a due process claim based on a lack of written standards. In that case a recipient of unemployment benefits who was subjected to an administrative penalty, and thus disqualified from receiving benefits, challenged the lack of written standards to guide unemployment officials in determining the length of an administrative penalty. We believe that an application of the Mathews considerations produces the same result in this case as in Berg. Although the Woodsmalls’ private interest in receiving a rural housing loan, which we here assume arguendo to be a protected property interest, is substantial, we cannot conclude that it is as vital as is the interest of an eligible welfare claimant in receiving benefits. See Atkins v. Parker, 472 U.S. 115, 128, 105 S.Ct. 2520, 2529, 86 L.Ed.2d 81 (1985) (food stamps); Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970) (AFDC and state assistance programs). The rural housing loan program addresses a basic need, but it is not the subsistence level need involved in welfare benefit programs. See Berg, 755 F.2d at 1346. Furthermore, the risk of erroneous deprivation from a lack of written standards is not as high as the Woodsmalls argue. The denial of the Woodsmalls’ application was reviewed at three different levels of the FmHA, and the Woodsmalls were made fully aware of the sources of the negative credit information that the FmHA relied on to deny the loan. Also, the regulations are not entirely silent on creditworthiness. Applicants have the right not to have certain circumstances considered as indicative of an unacceptable credit history, 7 C.F.R. § 1910.5(c) (1986), and when loans are refused because of credit information the FmHA must indicate what specific information led to the rejection and make the information available to the applicant. Id. § 1910.6(d), (e). Finally, the government interest in maintaining flexibility and discretion in evaluating creditworthiness is significant. See Berg, 755 F.2d at 1348. The rural housing loan program is, after all, a loan program. Each loan application presents a different set of financial circumstances, which the Secretary contends must be evaluated on an individual basis. The Secretary argues that “an attempt to articulate fully all of the matters considered by a good loan officer would likely produce a mind-boggling regulatory quagmire.” Appellees’ Brief at 36 n. 12. We agree that the administrative burdens of requiring standards for evaluating creditworthiness would be undue in the context of this program. Therefore, we hold that the lack of further written standards or guidelines does not violate the Woodsmalls’ due process rights. We also do not believe that a “good faith consideration” of the loan program statute in this case requires further standards for creditworthiness. In Allison v. Block, 723 F.2d 631, 636 (8th Cir.1983), this court ordered the Secretary to promulgate a set of substantive standards either by rulemaking or through adjudication because “[g]ood faith consideration of the [statute] by the Secretary requires the existence of some substantive standards.” In Allison the Secretary had failed altogether to implement a loan deferral provision. The court affirmed an injunction against foreclosure on the Allison farm until the Secretary had developed procedures and substantive standards to implement the loan deferral program. This, on the other hand, is not a case where the Secretary has refused to implement a loan program altogether. Fui'thermore, as we noted above, the Secretary has promulgated regulations that should address some of the concerns of borrowers whose creditworthiness places their loan applications in jeopardy. Requiring more standards would result in undue administrative burdens. Consequently, we cannot say that more in the way of substantive standards is needed. In conclusion, we hold that the Secretary’s evaluation of the Woodsmalls’ creditworthiness and denial of the Woodsmalls’ application on that basis is not judicially reviewable. Although the Woodsmalls’ claim that the Secretary has failed to promulgate adequate written standards for evaluating creditworthiness is subject to judicial review, neither the due process clause nor the rural housing loan program statute require further standards. Accordingly, the district court’s dismissal of the Woodsmalls’ complaint is affirmed. . The Honorable William C. Stuart, Senior United States District Judge for the Southern District of Iowa. . The section, as codified at 42 U.S.C. § 1472(a)(1) (Supp. Ill 1985), provides in part: If the Secretary determines that an applicant is eligible for assistance as provided in section 1471 of this title and that the applicant has the ability to repay in full the sum to be loaned, with interest, giving due consideration to the income and earning capacity of the applicant and his family from the farm and other sources, and the maintenance of a reasonable standard of living for the owner and the occupants of said farm, a loan may be made by the Secretary to said applicant * * *. . The Woodsmall household consists of Lavina Woodsmall, her daughter Connie and her son, and her daughter Ruth and her son. They alleged in their complaint that their rented home in Mt. Pleasant, Iowa, was too small to meet their needs. . The review officer’s letter notifying the Woodsmalls of the unfavorable outcome of their appeal to the state director stated: The unfavorable decision was based on your lack of acceptable credit history. Specifically: Deficiency judgements filed by Walter Detrick and Postal Thrift indicate poor credit history. Additional concerns stem from Ford Motor Credit reporting you were late one out of six months, Henry County Saving Bank and Roth’s Trustworthy Hardware both reporting fair ratings. The determination of unacceptable credit history was not based on ar. isolated incident of delinquent payments but an overall general pattern of slow and unsatisfactory payments. . Professor Davis has strongly criticized the “no law to apply" standard, stating that it is "flagrantly and obviously unsound, because, whether or not law applies, a judicial check is often needed to assure that administrative action is not arbitrary, capricious, or an abuse of discretion.” K. Davis, 5 Administrative Law Treatise § 28:8, at 290 (2d ed. 1984) (emphasis omitted). In turn, Professor Davis praises the “pragmatic considerations” approach, specifically noting Natural Resources Defense Council and Tuepker, as a reconciliation of "no law to apply” with the needs of justice. Id. at 298-99, 309-10. . Judge, now Justice, Scalia dissented from the court of appeals’ opinion in Chaney and from the denial of rehearing en banc, stating that the “pragmatic considerations” approach is not an application of "no law to apply” as stated in Overton Park, "but the substitution of an entirely different test — which can be summarized by saying that we intervene when we think it a good idea.” Chaney v. Heckler, 724 F.2d 1030, 1031 (D.C.Cir.1984) (Scalia, J., dissenting from denial of rehearing en banc); see also Investment Co. Inst. v. Federal Deposit Ins. Corp., 728 F.2d 518, 526 n. 6 (D.C.Cir.1984). . This court applied Chaney without reference to Tuepker in Hill v. Group Three Housing Dev. Corp., 799 F.2d 385, 396-97 (8th Cir.1986). In Iowa ex rel. Miller v. Block, 771 F.2d 347, 350 n. 2 (8th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3312, 92 L.Ed.2d 725 (1986), this court emphasized that Chaney involved an agency enforcement decision. . Neither of the parties has chosen to argue that Tuepker is invalid, nor have they sought to outline what might remain of the decision after Chaney. The Woodsmalls, although noting that Tuepker is arguably inconsistent with Overton Park, argue that the Court need not decide that issue. Appellants’ Brief at 9 n. 3. The Secretary argues both that Tuepker is consistent with and distinguishable from Chaney. Appellees’ Brief at 20. . The Woodsmalls argue that there is "law to apply” here, citing the statutory provisions at 42 U.S.C. §§ 1471(c), 1472(a), 1487(a)(1), and the regulations at 7 C.F.R. Part 1910, specifically 7 C.F.R. § 1910.5(c) (1986), which enumerates circumstances that the FmHA will not consider indicative of an unacceptable credit history. None of these provisions provide standards for determining creditworthiness that would assist the court in judging the agency’s exercise of discretion in this matter. . The Woodsmalls argue also that the Secretary’s failure to promulgate adequate standards allows the FmHA to behave like a prudent private lender, which the Woodsmalls contend violates the purpose of the rural housing loan program to assist persons of low or moderate income. Forty percent of the funds appropriated for use in the section 502 rural housing loan program are set aside and made available for "very low-income families or persons." 42 U.S.C. § 1472(d) (Supp. Ill 1985). We are unwilling to extrapolate a requirement for further creditworthiness standards from this provision, especially where there is no allegation that the Secretary has shown a complete inability to find low income persons eligible for loans. See Daniels v. Woodbury County, 742 F.2d 1128, 1135 (8th Cir.1984) (government’s inability to find that any applicants met requirements appeared arbitrary, and thus may have indicated insufficient standards). We also are doubtful that a prudent private lender would restrain his evaluation of an applicant's creditworthiness or provide information to an applicant in the manner that the Secretary’s already existing regulations require.

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

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, their arrangements with the municipalities constituted, “in essence,” pre-existing cost-plus contracts. 628 F.Supp. at 613. Relying in part on our observation in County of Oakland v. City of Berkley, 742 F.2d 289, 296 (6th Cir.1984), that Oakland County was “a mere conduit” through which payment of charges allocated to the municipalities flowed into the coffers of the City of Detroit, the district court decided that it was “easy to prove” that the plaintiff counties had not been damaged. Accordingly, the court concluded, even if the counties could meet the standing requirement, the cost-plus contract exception to the

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

Marcelo MANRIQUE, Petitioner v. UNITED STATES. No. 15-7250. Supreme Court of the United States Argued Oct. 11, 2016. Decided April 19, 2017. Paul M. Rashkind, Miami, FL, for Petitioner. Allon Kedem, Washington, DC, for Respondent. Michael Caruso, Federal Public Defender, Paul M. Rashkind, Assistant Federal Public Defender, Chief, Appellate Division, R. D'Arsey Houlihan, Assistant Federal Public Defender, Office of the Federal Public Defender, Miami, FL, for Petitioner. Ian Heath Gershengorn, Acting Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor Genera, Allon Kedem, Assistant to the Solicitor General, Sangita K. Rao, Attorney, Department of Justice, Washington, DC, for Respondent. Justice THOMAS delivered the opinion of the Court. Sentencing courts are required to impose restitution as part of the sentence for specified crimes. But the amount to be imposed is not always known at the time of sentencing. When that is the case, the court may enter an initial judgment imposing certain aspects of a defendant's sentence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment. We must decide whether a single notice of appeal, filed between the initial judgment and the amended judgment, is sufficient to invoke appellate review of the later-determined restitution amount. We hold that it is not, at least where, as here, the Government objects to the defendant's failure to file a notice of appeal following the amended judgment. I After federal agents found more than 300 files containing child pornography on his computer, petitioner Marcelo Manrique pleaded guilty to possessing a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). Under the Mandatory Victims Restitution Act of 1996 (MVRA), the District Court was required to order petitioner to "make restitution to the victim of the offense." § 3663A(a)(1) ; see §§ 2259(a), (b)(2) ("An order of restitution under this section shall be issued and enforced in accordance with [§ ]3664 in the same manner as an order under [§ ]3663A"). On June 24, 2014, the District Court entered an initial judgment sentencing petitioner to 72 months of imprisonment and a life term of supervised release. At the sentencing hearing, the court acknowledged that restitution was mandatory. But, consistent with the MVRA, the court postponed determining the victims' damages, which had not yet been ascertained. See, e.g., § 3664(d)(5) ; Dolan v. United States, 560 U.S. 605, 607-608, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010). Accordingly, the judgment expressly deferred "determination of restitution" and noted that an "Amended Judgment ... w[ould] be entered after such determination." App. 39. On July 8, petitioner filed a notice of appeal "from the final judgment and sentence entered in this action on the 24th day of June, 2014." Id., at 42. The District Court held a restitution hearing on September 17, 2014. Only one of the victims sought restitution. The court ordered petitioner to pay $4,500 in restitution to her and entered an amended judgment the next day imposing that sentence. Petitioner did not file a second notice of appeal from the court's order imposing restitution or from the amended judgment. Notwithstanding his failure to file a second notice of appeal, petitioner challenged the restitution amount before the Eleventh Circuit, arguing in his brief that the Government had not shown he was the proximate cause of the victim's injuries and that the restitution amount bore no rational relationship to the damages she claimed. The Government countered that petitioner had forfeited his right to challenge the restitution amount by failing to file a second notice of appeal. The Court of Appeals agreed that petitioner could not challenge the restitution amount and declined to consider his challenge. 618 Fed.Appx. 579, 583-584 (C.A.11 2015) ( per curiam ). We granted certiorari, 578 U.S. ----, 136 S.Ct. 1712, 194 L.Ed.2d 809 (2016), and now affirm. II A To secure appellate review of a judgment or order, a party must file a notice of appeal from that judgment or order. Filing a notice of appeal transfers adjudicatory authority from the district court to the court of appeals. The statute that governs appeals of criminal sentences, 18 U.S.C. § 3742(a), provides that a "defendant may file a notice of appeal in the district court for review of an otherwise final sentence" in certain specified circumstances. See United States v. Ruiz, 536 U.S. 622, 626-628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). And Federal Rule of Appellate Procedure 3(a)(1) specifies that "[a]n appeal permitted by law as of right ... may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4." (Emphasis added.) Both § 3742(a) and Rule 4 contemplate that the defendant will file the notice of appeal after the district court has decided the issue sought to be appealed. Section 3742(a)(1) permits the defendant to file a notice of appeal of a sentence that "was imposed in violation of law." (Emphasis added.) And Rule 4(b)(1)(A)(i) provides generally that, "[i]n a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after ... the entry of either the judgment or the order being appealed." (Emphasis added.) Petitioner filed only one notice of appeal, which preceded by many months the sentence and judgment imposing restitution. His notice of appeal could not have been "for review" of the restitution order, § 3742(a), and it was not filed within the timeframe allowed by Rule 4. He thus failed to properly appeal under the statute and the Rules the amended judgment imposing restitution. The Government contends that filing a notice of appeal from the judgment imposing restitution is a jurisdictional prerequisite to securing appellate review of the restitution amount. See, e.g., Brief for United States 28-31. This position follows, according to the Government, from many of our cases emphasizing the "jurisdictional significance" of a notice of appeal. E.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) ( per curiam ). Because the notice of appeal is jurisdictional, the Government explains, the Court of Appeals was required to dismiss petitioner's appeal regardless of whether the Government raised the issue. We do not need to decide in this case whether the Government is correct. The requirement that a defendant file a timely notice of appeal from an amended judgment imposing restitution is at least a mandatory claim-processing rule. See Greenlaw v. United States, 554 U.S. 237, 252-253, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ; see also Rule 3(a)(2) ("An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal" (emphasis added)). Mandatory claim-processing rules "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson v. Shinseki, 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Unlike jurisdictional rules, mandatory claim-processing rules may be forfeited "if the party asserting the rule waits too long to raise the point." Eberhart v. United States, 546 U.S. 12, 15, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) ( per curiam ) (internal quotation marks omitted). If a party "properly raise[s] them," however, they are "unalterable." Id., at 15, 19, 126 S.Ct. 403. The Government timely raised petitioner's failure to file a notice of appeal from the amended judgment imposing restitution before the Court of Appeals. See Brief for United States in No. 14-13029 (CA11), pp. 22-25 (arguing that petitioner "waived his right to appeal the district court's order of restitution by failing to file a notice of appeal from that order" (capitalization omitted)). Accordingly, "the court's duty to dismiss the appeal was mandatory." Eberhart, supra, at 18, 126 S.Ct. 403. B Petitioner disputes this conclusion, arguing that his single notice of appeal sufficed under the Rules to appeal both the initial judgment and the amended judgment imposing restitution. As we understand it, his argument depends on two premises: First, in a deferred restitution case, there is only one "judgment," as that term is used in Rules 4(b)(1) and (b)(2); and second, so long as a notice of appeal is filed after the initial judgment, it "springs forward" under Rule 4(b)(2) to appeal the amended judgment imposing restitution. We reject each of these premises. 1 Petitioner argues that the initial judgment deferring restitution and the amended judgment imposing a specific restitution amount merge to become "the judgment" referenced in the Federal Rules. See Rule 4(b)(1)(A)(i) (notice of appeal must be filed within 14 days after "the entry of ... the judgment ... being appealed"); Rule 4(b)(2) ("Filing Before Entry of Judgment"). He argues that his notice of appeal, which was filed within 14 days of the initial judgment, was therefore sufficient to invoke appellate review of the merged judgment. Petitioner's approach is inconsistent with our reasoning in Dolan, 560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108. The petitioner in that case argued that the amended judgment imposing restitution is the only final, appealable judgment in a deferred restitution case. See id., at 616, 130 S.Ct. 2533. Although we did not decide "whether or when a party can, or must, appeal"-the question presented here-we were not persuaded by the argument that "a sentencing judgment is not 'final' until it contains a definitive determination of the amount of restitution." Id., at 617-618, 130 S.Ct. 2533. To the contrary, we recognized "strong arguments" supporting the proposition that both the "initial judgment [that] imposed a sentence of imprisonment and supervised release" and the subsequent " 'sentence that impose [d] an order of restitution' " were each immediately appealable final judgments. Ibid. (citing 18 U.S.C. §§ 3582(b) (imprisonment), 3583(a) (supervised release), and 3664(o ) (restitution)). Consequently, we were not surprised "to find instances where a defendant ha[d] appealed from the entry of a judgment containing an initial sentence that includes a term of imprisonment" and "subsequently appealed from a later order setting forth the final amount of restitution." 560 U.S., at 618, 130 S.Ct. 2533. Our analysis in Dolan thus makes clear that deferred restitution cases involve two appealable judgments, not one. 2 Petitioner's reliance on Rule 4(b)(2) is also misplaced. That Rule provides that a "notice of appeal filed after the court announces a decision, sentence, or order-but before the entry of the judgment or order-is treated as filed on the date of and after the entry." A prematurely filed notice of appeal will become effective under the Rule to challenge a later-entered judgment in some circumstances. As this Court explained in construing Rule 4(a)(2)'s parallel provision for civil cases, the Rule "was intended to protect the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal from the actual final judgment." FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). By its own terms, however, Rule 4(b)(2) applies only to a notice of appeal filed after a sentence has been "announce[d]" and before the judgment imposing the sentence is entered on the docket. See Rule 4(b)(6) ("A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket"). If the court has not yet decided the issue that the appellant seeks to appeal, then the Rule does not come into play. Accordingly, it does not apply where a district court enters an initial judgment deferring restitution and subsequently amends the judgment to include the sentence of restitution. By deferring restitution, the court is declining to announce a sentence. When petitioner filed his notice of appeal in this case, the District Court had observed only that restitution was "mandatory." App. 27. The court did not announce the restitution amount (or even hold a hearing on the issue) until months later. Even if describing restitution as mandatory could qualify as a "sentence" that the District Court "announced" under Rule 4(b)(2), petitioner has never disputed that restitution is mandatory for his offense. Rather, he argued on appeal that the amount of the restitution imposed-an issue the court did not consider until months later-is unlawful. Because petitioner's notice of appeal was filed well before the District Court announced the sentence imposing $4,500 in restitution, the notice of appeal did not "spring forward" to become effective on the date the court entered its amended judgment imposing that sentence. C Finally, petitioner argues in the alternative that any defect in his notice of appeal should be overlooked as harmless error, citing Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953) (per curiam ). In that case, the petitioner filed a notice of appeal the day after his sentence was announced but three days before the judgment was entered. Id., at 326, 74 S.Ct. 1. His notice of appeal was dismissed as premature under Federal Rule of Criminal Procedure 37(a)(2), which then governed notices of appeal in criminal cases. This Court reversed on the ground that the premature filing was harmless error under Rule 52(a). Ibid. The Court's holding in Lemke does not apply to petitioner's failure to file a notice of appeal from the amended judgment. Lemke has been superseded by the Federal Rules of Appellate Procedure in two ways. First, the Lemke petitioner's notice of appeal would now be timely under Rule 4(b)(2). As discussed in Part II-B-2, supra, petitioner here cannot take advantage of that rule. Second, Rule 3(a)(2) now provides the consequences for litigant errors associated with filing a notice of appeal. The court of appeals may, in its discretion, overlook defects in a notice of appeal other than the failure to timely file a notice. It may not overlook the failure to file a notice of appeal at all. The filing of a notice of appeal from an amended judgment imposing restitution is at least a mandatory claim-processing rule, Part II-A, supra, meaning that the requirement to file such a notice is unalterable, so long as the opposing party raises the issue. By definition, mandatory claim-processing rules, although subject to forfeiture, are not subject to harmless-error analysis. Petitioner in this case did not file a defective notice of appeal from the amended judgment imposing restitution, but rather failed altogether to file a notice of appeal from the amended judgment. Courts do not have discretion to overlook such an error, at least where it is called to their attention. * * * We hold that a defendant who wishes to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. Because petitioner failed to do so, and the Government objected, the Court of Appeals properly declined to consider his challenge to the amount of restitution imposed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. Justice GORSUCH took no part in the consideration or decision of this case. Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting. Time limits, such as those stated in Federal Rules of Appellate Procedure 3 and 4, and other limitations prescribed in a procedural rule, this Court has held, are claim-processing rules, not jurisdictional requirements. See, e.g., Eberhart v. United States, 546 U.S. 12, 15-19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam ); Kontrick v. Ryan, 540 U.S. 443, 448, 452-456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). That matter is settled, and the Court, today, leaves undisturbed prior opinions distinguishing claim-processing rules from jurisdictional orders. See, e.g., Gonzalez v. Thaler, 565 U.S. 134, 141-143, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ; Henderson v. Shinseki, 562 U.S. 428, 435-436, 441-442, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; Scarborough v. Principi, 541 U.S. 401, 413-414, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) ; cf. Bowles v. Russell, 551 U.S. 205, 209-213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (distinguishing statutory prescriptions from procedural rules). As I see it, a defendant wishing to appeal his sentence and conviction when a restitution determination has been deferred has two choices: (1) He may immediately appeal his conviction and sentence of imprisonment, and later appeal the restitution order when made; or (2) he may await the restitution order and then appeal, through a single notice, his conviction, sentence of imprisonment, and restitution order. But even assuming, arguendo, that separate appeal notices are ordinarily required, I would hold that Manrique is not barred from appealing the restitution order in the circumstances of this case. Federal Rule of Criminal Procedure 32(j)(1)(B) states: "Appealing a Sentence . After sentencing-regardless of the defendant's plea-the court must advise the defendant of any right to appeal the sentence." The District Court gave Manrique the requisite advice upon sentencing him to imprisonment on June 23, 2014, see App. 29; that court gave no such advice upon amending its judgment on September 18, 2014 to include the amount of restitution ordered, see id., at 10, 46-65. The Government agrees that the District Court was "absolutely" required to advise Manrique of his right to appeal the restitution order, and anticipates that the required advice "will prevent cases like this from arising again in the future." Tr. of Oral Arg. 28. Aware of its obligation to advise Manrique of his right to appeal, the District Court appears to have assumed that no second notice was required to place the restitution amount before the Court of Appeals. Without awaiting another appeal notice, the District Court clerk transmitted the amended judgment, five days after its entry, to the Court of Appeals, which filed that judgment on the docket of the appeal from the conviction and sentence already pending in that court. App. 10. In turn, the Eleventh Circuit's clerk asked the District Court reporter to send up the transcript of, and record from, the restitution hearing. See Docket in No. 14-13029 (CA11). In light of what occurred here, I would hold that the clerk's dispatch of the amended judgment to the Court of Appeals "confer[red] jurisdiction on the court of appeals." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam ). In other words, in lieu of trapping an unwary defendant, see Tr. of Oral Arg. 29, I would rank the clerk's transmission of the amended judgment to the Court of Appeals as an adequate substitute for a second notice of appeal. Because I would treat the clerk's transmission of the amended judgment as tantamount to, or effectively doing service for, a second appeal notice, I would reverse the Eleventh Circuit's judgment and allow Manrique to include the restitution order in his appeal. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. We do not intend to call into question this Court's decision in Corey v. United States, 375 U.S. 169, 176, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963) (holding that a defendant may challenge his conviction after a single notice of appeal filed from a final sentence imposed under § 4208(b)). Given the steps taken by the District Court, Court of Appeals, and the clerks of those courts, it was likely no surprise to the Government when Manrique challenged the restitution award in his opening brief on appeal. See Brief for Appellant in No. 14-13029 (CA11), pp. 23-29.

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

What is the issue of the decision?

UNITED STATES of America, Appellee, v. Marvin MANDEL, Appellant. UNITED STATES of America, Appellee, v. W. Dale HESS, Appellant. UNITED STATES of America, Appellee, v. Harry W. RODGERS, III, Appellant. UNITED STATES of America, Appellee, v. William A. RODGERS, Appellant. UNITED STATES of America, Appellee, v. Irvin KOVENS, Appellant. UNITED STATES of America, Appellee, v. Ernest N. CORY, Jr., Appellant. UNITED STATES of America, Appellant, v. W. Dale HESS, Harry W. Rodgers, III, and William A. Rodgers, Appellees. Nos. 77-2487 to 77-2492 and 78-5022. United States Court of Appeals, Fourth Circuit. Argued July 19, 1978. Decided Jan. 11, 1979. Arnold M. Weiner, Baltimore, Md., Lead Counsel, for appellants and for Marvin Mandel, appellant. Michael E. Marr, Baltimore, Md., for William A. Rodgers, appellant. Charles G. Bernstein, Federal Public Defender, Baltimore, Md. (Michael Schatzow, Asst. Federal Public Defender, Baltimore, Md., William C. Brennan, Jr., DePaul, Willoner & Kenkel, College Park, Md., on brief), for Ernest N. Cory, Jr., appellant. Eugene Gressman, School of Law, University of North Carolina, Chapel Hill, N. C., D. Christopher Ohly and M. Albert Figinski, Baltimore, Md., for Marvin Mandel. William G. Hundley, Washington, D. C., for W. Dale Hess. Thomas C. Green and William W. Taylor, III, Washington, D. C., for Harry W. Rodgers, III. Norman P. Ramsey and William F. Gately, Baltimore, Md., for Irvin Kovens, on brief, for appellants. Daniel J. Hurson, Asst. U. S. Atty., Baltimore, Md., (Russell T. Baker, Jr., U. S. Atty., and Barnet D. Skolnik and Elizabeth H. Trimble, Asst. U. S. Attys., Baltimore, Md., on brief), for appellee. Before BUTZNER, RUSSELL, and WIDENER, Circuit Judges. WIDENER, Circuit Judge: Marvin Mandel, Governor of the State of Maryland, W. Dale Hess, Harry W. Rodgers, William A. Rodgers (brother of Harry Rodgers), Irvin Kovens, Maryland businessmen, and Ernest N. Cory, a Maryland attorney (hereinafter “Appellants”), appeal from their convictions for mail fraud and racketeering violations under 18 U.S.C. § 1341 and 18 U.S.C. § 1961 et seq. (The Organized Crime Control Act), respectively. Appellants were each adjudged guilty of fifteen counts of mail fraud under § 1341 and one count of prohibited racketeering activity under § 1961 et seq. Appellant Mandel was sentenced to a four-year prison term; Appellants Hess, Harry Rodgers, and Kovens were each sentenced to four years’ imprisonment and fined $40,000; Appellant William Rodgers was sentenced to 20 months’ imprisonment and fined $40,000; and Appellant Cory was sentenced to 18 months’ imprisonment. Additionally, pursuant to 18 U.S.C. § 1963(a), Appellants Hess, Harry Rodgers, William Rodgers, Kovens, and Cory were ordered to forfeit their ownership interests in the Southern Maryland Agricultural Association, Inc., based upon their convictions under count 24 of the indictment. The gist of the mail fraud counts of the indictment charged that beginning between January 7, 1969 and the spring of 1971, and continuing thereafter to the date of the filing of the indictment, Appellants devised and intended to devise a scheme and artifice: “(a) To defraud the citizens of the State of Maryland, and its governmental departments, agencies, officials and employees, both executive and legislative, of their right to the conscientious, loyal, faithful, disinterested and unbiased services, actions and performance of official duties of MARVIN MANDEL, in his official capacities as Governor of the State of Maryland, free from bribery, corruption, partiality, willful omission, bias, dishonesty, deceit, official misconduct and fraud; “(b) To defraud the citizens of the State of Maryland, and its governmental departments, agencies, officials and employees, both executive and legislative, of their right to have the state’s business and its affairs conducted honestly, impartially, free from bribery, corruption, bias, dishonesty, deceit, official misconduct and fraud, and in accordance with the laws and Code of Ethics of the State of Maryland; “(c) To defraud the citizens of the State of Maryland, and its governmental departments, agencies, officials and employees, both executive and legislative, of their right to have available and to be made aware of all relevant and pertinent facts and circumstances when: (1) drafting, considering and deliberating upon proposed legislation for the State of Maryland with respect to the Maryland horse racing industry and to other matters; (2) administering the laws of the State of Maryland with respect to the Maryland horse racing industry and to other matters; and (3) transacting business for and on behalf of the State of Maryland; “(d) To obtain, directly and indirectly, money, property and other things of value, by means of false and fraudulent pretenses, representations, and promises, and the concealment of material facts, relating to the Marlboro Race Track, the Bowie Race Track, the Security Investment Company, Ray’s Point, Inc., and to other matters.” (from count 1, para. 13, of the indictment). Paragraphs 14 through 32 of count 1 set forth the specifics of the alleged scheme to defraud. These specifics include allegations of bribery and the misrepresentation and concealment of material information on the part of the Appellants. Counts 2 to 20 incorporate by reference the allegations contained in count 1 and charge Appellants with various particular uses of the mails in the execution of the alleged scheme. In the racketeering counts, the government charged Governor Mandel in count 21 with acquiring and maintaining an interest in and control of the Security Investment Company through a pattern of racketeering activity that included mail fraud and bribery. Count 23 charged Hess, Harry Rodgers, and William Rodgers with conducting and participating in the conduct of the affairs of the Security Investment Company through a pattern of racketeering activity that included mail fraud and bribery. Count 24 charged Hess, Harry Rodgers, William Rodgers, Kovens, and Cory with conducting and participating in the conduct of the affairs of the Marlboro Race Track through a pattern of racketeering activity that included mail fraud. The evidence adduced at trial focused upon the specific allegations contained in count 1 of the indictment, i. e., the alleged bribery of Governor Mandel and the alleged misrepresentation and concealment of material information on the part of Appellants. The facts developed at trial touching upon the alleged bribery of the Governor and the alleged misrepresentation and concealment of material information by Appellants were essentially uncontroverted. The dispute centered on the proper inferences that could be drawn from these facts. The evidence adduced at trial included the following;. In February 1971, the owners of Marlboro Race Track (who at the time did not include any of the Appellants), a small half-mile track located in Prince George’s County, Maryland, contracted with the owners of Hagerstown Race Track, a half-mile track located in Washington County, Maryland, for the transfer to Marlboro of the 18 racing dates allotted to Hagerstown. Since the Maryland horse racing industry is regulated by the State and the permanent transfer of racing days requires the affirmative approval of the Maryland General Assembly, a bill designated as House Bill 1128 was drafted by attorneys for Marlboro and Hagerstown and submitted to the Maryland House of Delegates. The bill, as initially drafted, provided for a straight-forward approval of the transfer contract. However, prior to its passage, the bill was amended to provide that Marlboro would make its payments to the State of Maryland and then the State would make payments to Hagerstown. On May 28, 1971, Governor Mandel vetoed the bill in its amended form because he was advised that the payment provision was unconstitutional. Subsequent to the veto, the owners of Marlboro actively began to attempt to sell the racetrack. Cory, acting on behalf of undisclosed clients, negotiated with the owners of Marlboro for its purchase. On December 31, 1971, the controlling interest in Marlboro was sold to the group represented by Cory. As of December 31, 1971, that group consisted of Appellants Hess, Harry Rodgers, William Rodgers, and Irving Schwartz, a longtime friend and business associate of Kovens. Schwartz had previously purchased 17,000 shares of Marlboro stock. At the time of settlement, the sellers of Marlboro did not know the identity of the members of the purchasing group except for Schwartz. The purchase of Marlboro was in part financed by a $1,825,000 loan from the Suburban Trust Company. The balance of the purchase price was funded by Schwartz and Harry Rodgers. The government contended that Schwartz was merely a nominee for Kovens in the purchase of Marlboro. It introduced evidence to show that Kovens provided much of the funding for the initial purchase payments and subsequent loan interest payments made by Schwartz; that Kovens and Schwartz altered check stubs and other documents manifesting Kovens’ financial involvement in the purchase of Marlboro; and that Kovens played a major role in the management of Marlboro following its purchase. The Marlboro purchasing group did not want their identities revealed. Thus, on January 1, 1972, Eugene Casey, who had been chosen by the purchasers to act as president of Marlboro, announced at a press conference that he was the new purchaser of Marlboro. On January 7, 1972, Casey and Cory prepared and sent a letter to the Maryland General Assembly stating that Casey had recently acquired ownership of Marlboro and requested that Governor Mandel’s veto of House Bill 1128 be overridden. A disputed issue of fact was whether Governor Mandel knew the true identities of the new purchasers of Marlboro. [ On January 12, 1972, the General Assembly‘overrode the Governor’s veto of House Bill 1128. As a result of the veto override, the racing days belonging to Marlboro doubled from 18 to 36. The government introduced the testimony of several Maryland state senators who stated that Senator Staten, Governor Mandel’s legislative ally, said shortly before the veto override vote that the Governor would not mind if his veto of House Bill 1128 were overridden. Additionally, the government adduced testimony from some senators that if they had known of the involvement in Marlboro of the Appellants other than the Governor, and of their business relationships with Governor Mandel, they would have considered such information relevant in their consideration of the veto override-/ ('In mid-March 1972, a bill to consolidate Maryland race tracks in a variety of ways (consolidation bill) was introduced in the State Senate. The consolidation bill, inter alia, provided for Marlboro’s racing days to be increased from 36 to 94 and provided for Marlboro to run its days at the State’s two one-mile track-Si — 5 The government introduced evidence to show that Governor Mandel engaged in a strenuous lobbying effort to secure passage of the consolidation bill. It also introduced evidence that Kovens lobbied hard behind the scenes for the passage of the consolidation bill. At the time the consolidation bill was pending before the General Assembly, the true identities of the owners of Marlboro were not known. The government introduced the testimony of some members of the Maryland State Senate who stated that in deciding how to vote on the consolidation bill they would have considered it relevant to have known that Hess, Kovens, Harry Rodgers, and William Rodgers were in fact the owners of Marlboro and had provided substantial financial benefits to Governor Mandel. ^ Appellants introduced evidence to the effecf'that consolidation of the racing industry had long been a topic of interest in Maryland, and one in which Governor Mandel had long played a leading role.) His support of such a measure antedated by years the various incidents appearing in this case which involved Marlboro. The consolidation bill had been embroiled in controversy since its introduction. After being passed by the Senate in amended form, it was passed by the House of Delegates in its original form and returned to the Senate for a final vote. The bill was never brought to a vote in the Senate. A plethora of evidence was introduced on Appellants’ alleged scheme to defraud by misrepresenting and concealing the true identities of the owners of the dealings between Marlboro and the Maryland Racing Commission and the General Assembly between 1972 and 1974, the fact that Hess, Harry Rodgers, William Rodgers, and allegedly Kovens, were the true owners of Marlboro was never revealed. The government contended that with a total lack of accurate information, the Maryland Racing Commission granted to Marlboro a series of administrative benefits that caused substantial profit to accrue to Hess, Harry Rodgers, William Rodgers, Kovens, and Ccíj? Appellants countered the government’s evidence by maintaining that prior to the passage of a strict disclosure law in 1974, the use of nominees rather than publicly revealing the names of the beneficial owners of racetracks was a common and legal practice. As an example of the alleged fraudulent concealment of the true identities of the owners of Marlboro, the government pointed to the Marlboro-Bowie merger. On December 28, 1972, Marlboro Race Track and Bowie Race Track, a one-mile track, were merged. The stock of Marlboro and the assets of Bowie were transferred to a newly established corporation, Southern Maryland Agricultural Association, Inc., with the former owners of Marlboro being issued 30 per cent of the stock in the new company. Appellants’ share of Southern Maryland Agricultural Association, Inc. stock was issued to Marlboro Associates. On February 16, 1973, Hess, Harry Rodgers, and William Rodgers transferred their interest in Marlboro Associates to Cory by way of an agreement which included a non-recourse note. Under the terms of the transfer, Cory was to have five years to fund the purchase price ($630,000) himself or to arrange for the sale of the stock to a third person. If at the expiration of the five-year period the purchase price was not paid, the stock would revert to the original owners. In a document furnished to the Racing Commission in 1973, Cory was listed as the owner of the portion of Marlboro Associates formerly owned by Hess, Harry Rodgers, and William Rodgers, as well as the portion originally owned by him. \ ^Evidence also was adduced on the flow of undisclosed financial and other benefits to Governor Mandel from some of the other Appellants. The main purpose of this evidence, from the government’s standpoint, was to show that Governor Mandel took positions favorable to the owners of Marlboro on House Bill 1128 and the consolidation bill in return for these benefits. At trial, there was evidence which tended to show that Governor Mandel, inter alia, received the following: (1) in 1969, clothing purchased from Alper and Myers, a Baltimore clothing store, paid for by checks drawn on Charlestown Race Track, which was principally owned at the time by Kovens. Charlestown recorded the checks as expenditures for guard uniforms; (2) in 1970, a diamond bracelet for his wife, Barbara, paid for by Hess and Harry Rodgers; (3) in April 1972, clothing from Cuzzens, a Ft. Lauderdale, Florida, men’s store, paid for by Harry Rodgers; (4) in September 1974, clothing from Max Margolis, a Baltimore clothing store, paid for by Kovens. The government also placed special emphasis on Governor Mandel’s involvement in Ray’s Point, Inc. and Security Investment Company. Ray’s Point is a parcel of land consisting of approximately 200 acres of waterfront property located on the eastern shore of Maryland. In December 1971, an investment group consisting of Appellants Hess, Harry Rodgers, and William Rodgers, and Nathan Cohen, and Thomas Hunter Lowe, Speaker of the Maryland House of Delegates, purchased Ray’s Point, and, for tax purposes, formed Ray’s Point, Inc. to hold the land. Hess, Harry Rodgers, and William Rodgers assigned a 15 percent interest in Ray’s Point, Inc. to Governor Mandel, with the 15 percent interest coming in equal shares from their respective interests. Appellant Mandel’s 15 percent interest consisted of 150 shares in Ray’s Point, Inc.; he paid $1 per share, a comparable price to that paid by the other shareholders. In order to finance the purchase price of the land and incidental expenses of development, Ray’s Point, Inc. borrowed $350,000 on a mortgage given to the Equitable Trust Bank. The mortgage was guaranteed by Hess, Harry Rodgers, William Rodgers, and Nathan Cohen, but not by Governor Mandel or Thomas Hunter Lowe. The first corporate minute book prepared on behalf of Ray’s Point, Inc., listed the names of all the shareholders. However, subsequently a new list was prepared that omitted the names of Governor Mandel and Thomas Hunter Lowe. Governor Mandel’s and Thomas Hunter Lowe’s interests in Ray’s Point, Inc., were reflected by stock certificates held by nominees, with Governor Mandel’s certificate being held by Hess. In May 1972, Hess assigned to Governor Mandel a 4 percent interest in Security Investment Company. Security Investment Company is a limited partnership formed in 1967 by Harry and William Rodgers, and some other persons, that, among other things, leases two office buildings to the Federal Social Security Administration in Baltimore. In March 1972, Hess was admitted as a 9 percent partner in Security Investment Company, effective retroactively to December 1971. On May 15, 1972, retroactive to January 1, 1972, Hess assigned to Governor Mandel 4/9ths of his interest in Security Investment Company. According to Hess and Governor Mandel, the assignment represented legal fees owed to Mandel for legal services rendered several years earlier, although there was evidence that the income from the Security interest was not correctly reported on the Governor’s income tax return and that Hess’ records with respect to the same had been altered. Based upon the proximity between Governor Mandel’s acquisition of interests in Ray’s Point, Inc. and Security Investment Company, as well as his receipt of other benefits, and the Maryland General Assembly’s consideration of Governor Mandel’s veto of House Bill 1128 and the consolidation bill, the government argued that Mandel took positions on House Bill 1128 and the consolidation bill favorable to the owners of Marlboro Race Track in return for those financial and other benefits. Combined with the misrepresentations and concealment of the true identities of the owners of Marlboro and the financial relationships existing between Mandel and the other Appellants, the government contended that the Appellants’ conduct constituted a scheme to defraud the citizens and the State of Maryland. Appellants contended that all aspects of their conduct were legally innocent and the inferences drawn by the government were unsupportable. Appellants have raised a myriad of issues on appeal. Because we reverse their convictions for trial error committed in the court below, we do not find it necessary to express an opinion on all of the issues presented in the briefs. I Appellants contend that their prosecution and conviction under the mail fraud statute constitutes an unwarranted overextension of that statute and an impermissible federal intrusion into the political affairs of the State of Maryland. They assert that their prosecution and conviction under § 1341 in this case constitutes an unwarranted over-extension of that statute in that “there was no evidence that any state or federal law was transgressed by any of the defendants in the execution of any part of their so-called ‘corrupt relationship,’ or scheme to defraud. At most, the alleged scheme to defraud was but a non-criminal scheme of non-disclosure.” Along the same line, Appellants cryptically state, “No previous mail fraud prosecution has permitted conviction of a public official to rest upon the slim reed of a federal prosecutor’s untutored notion of what the public or the state should expect by way of an ethical and honest performance of a state official’s duties. In every previous case, the criminal law or common law provided some guidance for assessing ‘the loyal and honest services’ of the public official.” They also assert that the use of the mail fraud statute in this case constitutes an impermissible federal intrusion into the political affairs of the State of Maryland in that the government “cast the mail fraud counts of [the] indictment... as if the Federal Government were parens patriae for ‘the citizens of the state of Maryland, and its governmental departments, agencies, officials and employees, both executive and legislative.’ ” In Appellants’ view, “the thrust of the indictment and the prosecution was. to impose mail fraud and racketeering sanctions on these defendants, including the Governor of the State, in order to insure that Maryland will in the future have more adequate disclosure requirements, [footnote omitted] In that way, presumably, the citizens, the state legislature and the state governmental agencies will have more information in arriving at political and official judgments. And in that way, the State of Maryland might in some way have a more republican and responsible form of government.” Appellants maintain that use of § 1341 in such a way violates the principles of federalism so central to our form of government. We are cognizant of the problem of the ever expanding use of the mail fraud statute to reach activities that heretofore were considered within the exclusive domain of State regulation. See United States v. Caldwell, 544 F.2d 691, 697 (4th Cir. 1976) (concurring opinion). See also United States v. McNeive, 536 F.2d 1245, 1252 (8th Cir. 1976); United States v. Edwards, 458 F.2d 875, 880 (5th Cir. 1972), cert. den., 409 U.S. 891, 93 S.Ct. 118, 34 L.Ed.2d 148. Additionally, we note that statutes such as the mail fraud statute should be carefully and strictly construed in order to avoid extension beyond the limits intended by Congress. See United States v. Kelem, 416 F.2d 346, 347 (9th Cir. 1969), cert. den., 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970). Nevertheless, we think the indictment and prosecution in this case constitute neither an unwarranted overextension of the mail fraud statute, as that phrase is used by Appellants, nor an impermissible federal intrusion into the political affairs of the State of Maryland, but as will be later noted we do not adopt the broad reading of the statute sought by the United States. A As just stated, we think the claim that prosecution under § 1341 constitutes an impermissible federal intrusion into the political affairs of the State of Maryland and thus violates principles of federalism is without merit. The purpose of the mail fraud statute and the corresponding limits upon its appropriate use, in the context of federalism problems, is clear. The purpose of § 1341 and its predecessors is to prevent the post office department from being used to carry out fraudulent schemes. See Durland v. United States, 161 U.S. 306, 314, 16 S.Ct. 508, 40 L.Ed. 709 (1895) (interpreting a predecessor to § 1341). See also United States v. States, 488 F.2d 761, 767 (8th Cir. 1973), cert. den., 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974) (purpose of § 1341 is to prevent the misuse of the Postal Service). The constitutionality of the mail fraud statute and the limits upon its use to effectuate its purpose were stated by the Supreme Court in the following terms: “The overt act of putting a letter into the post office of the United States is a matter that Congress may regulate, [citation omitted] Whatever the limits to its power, it may forbid any such acts done in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not.” Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916) (interpreting a predecessor statute to § 1341). See also Parr v. United States, 363 U.S. 370, 389, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). The basic purpose and scope of the mail fraud statute has been examined by numerous circuit courts as well. This court, in United States v. Brewer, 528 F.2d 492 (4th Cir. 1975), echoed the words of the Supreme Court in Durland by stating, “[the mail fraud statute] prevents the post office from being used as an instrument of crime.” Id. at 498. We also followed Badders by stating that “[t]he statute does not define a scheme to defraud, and it contains no restrictive language excluding any type of fraudulent conduct in which use of the mails plays an essential rule. On the contrary, the plain language of the statute condemns any scheme to defraud in which the mails are employed....” [citation omitted] Id. at 494—95. The Second Circuit has likewise recognized that the mail fraud statute’s purpose and scope revolve around the misuse of the mails in Gouled v. United States, 273 F. 506, 508 (2d Cir. 1921), aff’d, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), and the Eighth Circuit has stated the purpose and scope of the mail fraud statute in almost the same language as that used by the Second Circuit in Gouled. See United States v. States, 488 F.2d 761, 764 (8th Cir. 1973), cert. den., 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). The Tenth Circuit, in United States v. Lynn, 461 F.2d 759, 763 (10th Cir. 1972), described the reach of the mail fraud statute in the following terms: “The federal mail fraud statute does not purport to reach all frauds, but only those instances in which the use of the mails is a part of the execution of the fraudulent scheme. All other cases are to be dealt with by appropriate state law.” (footnote omitted). From the foregoing discussion, it is clear that the regulation of the mail fraud statute is on the misuse of the mails, control of which lies with Congress, and not on the substance of the scheme to defraud. Even if the substance of the scheme to defraud involves matters normally within the purview of state control or regulation, once the mails are utilized to effectuate the scheme, the federal government has the right to prosecute the schemer under the mail fraud statute. In United States v. States, supra, an attack, similar to the one made by Appellants in this case, was made on the use of § 1341, i. e., that the application of the mail fraud statute to matters traditionally left to the states violated principles of federalism. In that case, the federal government prosecuted two candidates for the office of Committeeman in the City of St. Louis, Missouri, for devising and carrying out a scheme to defraud the voters and residents of two wards in the City of St. Louis and the Board of Election Commissions of the City of St. Louis by the use of fraudulent voter registrations and applications for absentee ballots. The court stated: “[A]ppellants argue that the application of the mail fraud statute as to the facts of this case will result in a ‘policing’ of state election procedure, and that Congress has never explicitly authorized such widespread intervention into state affairs. The appellants’ argument misinterprets the purpose of the mail fraud legislation. The focus of the statute is upon the misuse of the Postal Service, not the regulation of state affairs, and Congress clearly has the authority to regulate such misuse of the mails.... The purpose of 18 U.S.C. § 1341 is to prevent the Postal Service from being used to carry out fraudulent schemes, regardless of what is the exact nature of the scheme and regardless of whether it happens to be forbidden by state law.” Id. at 766-67. A similar holding was United States v. Mirabile, 503 F.2d 1065 (8th Cir. 1974), cert. den., 420 U.S. 973, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975), in which the scheme involved understatement of gross sales in monthly sales/use tax returns. We fully agree with the Eighth Circuit’s statement in United States v. States concerning the proper scope of the mail fraud statute in relation to principles of federalism and, thus, reject Appellants’ contention that the use of the mail fraud statute in this case constitutes an impermissible federal intrusion into the political affairs of the State of Maryland. Appellants were indicted, prosecuted and convicted for the alleged misuse of the mails and the fact that the alleged scheme to defraud involved matters traditionally of state concern is not a defense to the prosecution. B We think Appellants’ contention that their convictions were based on an unwarranted overextension of the mail fraud statute is likewise without merit. The essence of Appellants’ contention is that since the government’s theory of the case did not depend upon the violation of any state or federal law, including the common law, in the execution of the alleged scheme to defraud, the indictment, prosecution and conviction under § 1341 constitute an unwarranted overextension of that statute. Our reading of the indictment and survey of the evidence adduced by the government at trial reveals that Appellants were indicted and prosecuted for devising a scheme and artifice to defraud the citizens of the State of Maryland and her governmental departments, agencies, officials and employees, both executive and legislative, of the right to conscientious, loyal, faithful, disinterested and honest government through bribery and non-disclosure and concealment of material information. As our discussion of the relevant case law will show, a scheme to defraud that involves bribery and non-disclosure and concealment of material information may come within the purview of the federal mail fraud statute even though no state or federal statute or common law is transgressed in terms. Congress first enacted the federal mail fraud statute in 1872, and, although it has since been amended five times, the essential elements of an offense under the statute have remained unchanged. See Survey of the Law of Mail Fraud, 1975 Ill.L.F. 237, 239. Even though the mail fraud statute has been in existence for over 100 years, Congress has never defined or established the precise limits of the phrase “scheme or artifice to defraud.” See United States v. McNeive, 536 F.2d 1245, 1248 (8th Cir. 1976). Perhaps it is because, as one court has aptly pointed out, “The law does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity.” Weiss v. United States, 122 F.2d 675, 681 (5th Cir. 1941), cert. den., 314 U.S. 687, 62 S.Ct. 309, 86 L.Ed. 550. Nevertheless, since Congress has not attempted to define the phrase “scheme or artifice to defraud,” the burden to do so has fallen on the courts. In order to determine the appropriate reach of the mail fraud statute, it has been necessary for the courts to attempt to define and establish the limits of the words “scheme or artifice to defraud” as they are used in the mail fraud statute. See United States v. McNeive, 536 F.2d 1245, 1248 (8th Cir. 1976). In attempting to define and establish the meaning of the words, scheme to defraud, the starting point for most courts has been to discern the purpose of the mail fraud statute. As previously stated, the purpose of the statute is to prohibit the misuse of the mails. See, e. g., Durland v. United States, supra; United States v. States, supra. With this purpose in mind, numerous courts have made general statements concerning the approach courts should take in attempting to define and establish the limits of the words “scheme or artifice to defraud.” For example, the Eighth Circuit has stated, “[T]he definition of fraud in § 1341 is to be broadly and liberally construed to further the purpose of the statute; namely, to prohibit the misuse of the mails to further fraudulent enterprises.” United States v. States, 488 F.2d at 764. See also United States v. Keane, 522 F.2d 534, 544 (7th Cir. 1975), cert. den., 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976); United States v. Buckner, 108 F.2d 921, 926 (2d Cir. 1940), cert. den., 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016. For the most part, courts have broadly construed the words, “scheme or artifice to defraud.” The result has been to include within that term many schemes involving deception which employ the mails in their execution if they are contrary to public policy and fail to measure up to accepted moral standards and notions of honesty and fair play. In Badders v. United States, 240 U.S. 391, 393, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916), the Court stated, “Whatever the limits to [Congress’] power, it may forbid any such acts done in furtherance of a scheme that it regards as contrary to public policy..” See also Parr v. United States, 363 U.S. 370, 389, 80 S

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

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

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

MORTON G. THALHIMER, Inc., v. FLORANCE. No. 3244. Circuit Court of Appeals, Fourth Circuit. April 12, 1932. Robert T. Barton, of Richmond, Va. (Christian & Barton, of Richmond, Va., on the brief), for appellant. John P. Leary, of Richmond, Va. (Page & Leary, of Richmond, Va., on the brief), for appellee. Before NORTHCOTT and SOPER, Circuit Judges, and HAYES, District Judge. SOPER, Circuit Judge. Claude A. Browning was adjudicated a bankrupt on February 26, 1930, in the District Court of the United States for the Eastern District of Virginia upon his voluntary petition. Among the assets listed in his schedules were certain negotiable promissory notes of the approximate aggregate amount of $2,400, which, 'more than four months prior to the institution of the bankruptcy proceedings, he had deposited with Morton G. Thalhimer, Inc., a Virginia corporation, as collateral security for the payment of certain advances which he had made or might thereafter make in connection with a real estate business which he was conducting. A controversy arose between the corporation and the trustee in bankruptcy as to whether or not the corporation was entitled to retain the notes and apply the proceeds to a reduction of its claim against the bankrupt estate. The matter was brought to a head by a petition of the trustee, upon which the referee signed an order, requiring the corporation to show cause why the notes and such proceeds as the corporation had collected should not be delivered to the trustee. The corporation filed an answer setting out the circumstances under which it obtained possession of the notes, but it appeared specially and denied the jurisdiction of the bankruptcy court to try the issue raised, on the ground that the corporation held the notes as an adverse claimant without whose consent, as provided in section 23 of the Bankruptcy Act (11 USCA § 46), the court was without authority to proceed. The referee took the evidence of the witnesses, and, concluding that the court had jurisdiction, passed an order requiring the corporation to deliver to the trustee the notes, and to pay to him all sums collected. The matter then came before the District Court upon a petition for review, whereupon the District Judge approved and confirmed the findings of fact and conclusions of law of the referee. From this decree the corporation has appealed. The rule of law governing such situation is clearly set out in Harrison, Trustee, v. Chamberlin, 271 U. S. 191, 46 S. Ct. 467, 468, 70 L. Ed. 897, in which a trustee in bankruptcy sought to recover by summary proceeding certain money in the possession of a stranger to the proceeding, which she claimed as her individual property. The-court said: “It is well settled that a court of bankruptcy is without jurisdiction to adjudicate in a summary proceeding a controversy in-reference to property held adversely to the bankrupt estate, without the consent of the-adverse claimant; but resort must be had by the trustee to a plenary suit. * * * However, the court is not ousted of its jurisdiction by the mere assertion of an adverse claim; but, having the power in the first instance to determine whether it has jurisdiction to proceed, the court may enter upon a preliminary inquiry to determine-whether the adverse claim is real and substantial or merely colorable. And if found to be merely colorable the court may then, proceed to adjudicate the merits summarily; but if found to be real and substantial it must decline to determine the merits and dismiss the summary proceeding. * * * “Without entering upon a discussion of’ various eases in the Circuit Courts of Appeals in which ’ divergent views have been expressed as to the test to be applied in determining whether an adverse claim is substantial or merely colorable, we are of opinion that it is to be deemed of a substantial character when the claimant’s contention ‘discloses a contested matter of right, involving some fair doubt and reasonable room for ■ controversy,’ Board of Education v. Leary, 236 F. 521, 527, 149 C. C. A. 573, in matters either of fact or law; and is not to be held merely colorable unless the preliminary inquiry shows that it is so unsubstantial and obviously insufficient, either in fact or law,. as to be plainly without color of merit, and a mere pretense. Compare Binderup v.. Pathe Exchange, 263 U. S. 291, 295, 44 S. Ct. 96, 68 L. Ed. 308.” In conformity with this rule, the referee took the testimony of the president and vice president of the corporation, and the secretary of the latter. It showed that, for a number of years preceding the adjudication, the bankrupt had been engaged in buying and selling real estate, some of which it had been his practice to improve. He had been assisted from time to time in his financial operations by the corporation. About a year before bankruptcy, his need for money increased and he was given larger advances in proportion to the work done than had formerly been the custom. He was requested therefore by the corporation to give additional collateral as a condition of the continuance of the loans which he needed for his construction work. As a result he deposited sundry negotiable promissory notes with the corporation at divers times before the middle of 1929, with the understanding that the corporation should hold the notes as collateral security and apply the proceeds ■of such of them as should be collected to the payment of the indebtedness. Accordingly, the proceeds collected were applied to the reduction of his debts. The indebtedness of the bankrupt to the corporation at the time of the trial below amounted to $3,584.47, consisting of an item of $643.27, growing out of a transaction with regard to a property on Williamsburg avenue in Richmond, Ya., and an item of $2,-941.20, in connection with property on Kensington avenue in Henrico County, Ya. The smaller sum did not represent an advance by the corporation for construction work undertaken by the bankrupt, but the larger amount, growing out of the Kensington avenue transaction, had its origin in moneys advanced by the corporation to enable the bankrupt to complete the construction of a building on the premises. The referee concluded from the evidence that the notes deposited with the corporation were intended to secure only the repayment to the corporation of advances which it might make in connection with construction projects, and were not intended to secure any other indebtedness. He also found that, although the Kensington avenue transaction originally involved the loan of money for the construction of a building on the premises, this indebtedness had been completely paid olí and an indebtedness of another kind had been substituted before the trial took place. Henee he reached the conclusion that the corporation had no right, colorable or otherwise, to retain the notes and moneys in question. We are unable, after careful consideration of the testimony, to sustain this conclusion. The evidence does not involve an issue of veracity, but merely a question as to the construction of the agreement between the parties. Without passing upon the merits of the matter, we cannot say that it is established beyond any reasonable controversy that the notes were deposited to secure only loans made for construction purposes. The indebtedness incurred by the bankrupt doubtless related for the most part to moneys loaned to enable him to prosecute his business of building, and the notes were deposited to secure the repayment of these loans. But the transactions between the parties included other loans and other services rendered by the corporation, as, for instance, the collection of money and the sale of property, by which commissions were earned. There was no written agreement governing the collateral deposit. Some of the testimony tended to show that the notes were held as collateral security for advances made on construetkm loans, but other statements were broad enough to show that the notes were deposited as additional collateral against the bankrupt’s account with the corporation, as security for any deficit that might exist at any time. Ho witness was asked whether the collateral security was limited or confined to loans for the construction work; and none so testified. There is also room for difference of opinion as to the nature of the indebtedness on the Kensington avenue property. The transaction arose in this wise: During the months of December, 1929, and January, 1930, Browning was engaged in erecting a structure upon this property and borrowed various sums amounting, in the aggregate, to $6,484.90, from the corporation to finance the work, agreeing to complete it. On December 20, 1929, the bankrupt executed and delivered to the corporation his notes for the principal sum of $7,500, and for the interest thereon at 6 per cent., together with a deed of trust or mortgage conveying the real estate, to secure the advances made and to be made. In the early part of January, the corporation sold the mortgage to a third party for its par value of $7,500, guaranteeing that the house would be finished free from liens. The corporation credited the purchase money on its books to the purchaser, apparently regarding him as a creditor, because of the unfinished condition of the house. The builder went into bankruptcy on February 26, 1930. A number of mechanics’ liens were filed against the property, and the corporation bought them in order to protect itself. The corporation also took back the mortgage notes from the purchaser. Later it purchased the property in the bankruptcy proceedings through a subsidiary company, and, after the mechanics’ liens were paid, there remained of the proceeds of sale, applicable to the payment of the mortgage indebtedness, a balance of only $3,615.03; so that the corporation received $2,869.87 less than the amount it had advanced. The corporation then completed the property at an additional expense and gave a new mortgage for $7,500, to its purchaser. The referee concluded that, by this series of transactions, the corporation had been reimbursed for its entire outlay of $6,484.90, which it had advanced for construction purposes, and that the collateral notes could not be retained by it to secure the indebtedness of the bankrupt to the corporation in its new form. But we think that the mere statement of facts indicates an open question of law as to which differences of opinion would be likely to arise, and the corporation’s case would be the stronger if it should be held that the collateral was intended to seeure indebtedness of all kinds. This question the corporation was entitled to litigate in the proper forum. The referee held, as an additional reason for exercising jurisdiction, that the corporation had given its consent to a determination of the controversy by the bankruptcy court, as provided in section 23b of the Bankruptcy Act (11 USCA § 46 (b). This consent was implied, it was contended, when the corporation filed a proof of elaim against the bankrupt estate with the referee in the sum of $3,585.47, representing the balance claimed by the corporation as due upon the Williamsburg and Kensington avenue transactions. The proof acknowledged that the elaim was partly secured to the extent of unpaid promissory notes in the aggregate sum of $2,062.64, remaining in the creditor’s possession as collateral. The only authority cited to support the proposition was In re Jackson Brick & Tile Co. (D. C.) 189 F. 636, 642; but, in that 'case, jurisdiction was based upon the fact that the property, against which a lien was asserted by a creditor who filed a proof of claim with the referee, was in the possession of the trustee of the bankrupt estate. The mere filing against a bankrupt estate of a elaim partly secured by a lien upon property in the possession of the claimant does not signify his consent to a determination of his right to the security by summary proceeding in the bankruptcy court. Such an action does manifest a desire to share in the assets of the estate with respect to so much of the elaim as is unsecured, and it assumes that the creditor’s right to the security will be respected; but it does not evidence an intent to submit the title to the security, if denied, to the determination of the court. The bankruptcy court gets jurisdiction to determine the validity of a creditor’s elaim, not by reason of a consent implied in the filing of a proof of debt, but from sections 2 and 57 'of the Bankruptcy Act itself (11 USCA §§ 11, 93), whereby it is vested with power and authority to allow or disallow a claim and to determine controversies in regard thereto. Lesser v. Gray, 236 U. S. 70, 35 S. Ct. 227, 59 L. Ed. 471. But section 23 of the same act denies the court jurisdiction of controversies between the trustees and adverse claimants concerning property, except by consent, unless the court wo"uld have had jurisdiction if bankruptcy had not occurred, and the controversies had been between the bankrupts and the adverse claimants. So it has been held that a court of bankruptcy, whieh rejects a proof of claim on the ground that the creditor holds sufficient security therefor, is without jurisdiction to value the security and enter a decree against the creditor over his objection for its excess value over the debt. Fitch v. Richardson (C. C. A.) 147 F. 197; see, also, Pickens v. Roy, 187 U. S. 177, 23 S. Ct. 78, 47 L. Ed. 128; In re Peacock (C. C.) 178 F. 851; Straton v. New (C. C. A.) 49 F.(2d) 869. The decree of the District Court is reversed.

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 11. 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 11? Answer with a number.

In re ALLIED OWNERS CORPORATION. RECONSTRUCTION FINANCE CORPORATION v. CALLAGHAN et al. No. 499. Circuit Court of Appeals, Second Circuit. July 22, 1935. Debevoise, Stevenson & Plimpton, of New York City, and Max O’Rell Truitt, of St. Louis, Mo. (E. W. Debevoise, William E. Stevenson, and D. F. McGlinchey, all of New York City, of counsel), for appellant Reconstruction Finance Corporation. Goldwater & Flynn, of New York City (Monroe Goldwater, Nathan Goldstein, and Oliver T. Cowan, all of New York City, of counsel), for trustee in bankruptcy in reorganization. Robert P. Levis, of New York City, for Allied Owners Corporation. Cullen & Dykman, of Brooklyn, N. Y. (Maximilian Moss and John B. Bennett, both of Brooklyn, N. Y., of counsel), for William M. Greve. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. Writ of certiorari denied 56 S. Ct. 307, 80 L. Ed. — AUGUSTUS N. HAND, Circuit Judge. The questions raised by these appeals all relate to allowances which the court in-charge of a proceeding for the reorganization of Allied Owners Corporation under section 77B of the Bankruptcy Act (11 US CA § 207) ordered to be paid to persons engaged in a prior bankruptcy proceeding of that company. On August 8, 1933, the company was adjudicated a bankrupt on its voluntary petition. Stephen Callaghan and Percival E. Jackson became trustees in bankruptcy on August 25, 1933, and William M. Greve became a trustee on September 14, 1933. The delay between the date of his election and the date of taking office was due to his rejection by the referee because of a supposed disqualification. After the referee’s ruling, he employed Cullen & Dykman as his personal counsel and was reinstated by the court. On June-22, 1934, the bankruptcy proceedings were-superseded by proceedings for reorganization under section 77B, and the former-trustees in bankruptcy were appointed trustees in reorganization. Messrs. Goldwater & Flynn were attorneys for the trustees in each proceeding. The tenure of the trustees in bankruptcy and their counsel lasted about ten months, and the amounts to which they are entitled as compensation for services during that period are in dispute on the present appeal. There is also-before us the question of the compensation, of Robert P. Levis, the attorney for the bankrupt, of Cullen & Dykman, who performed legal services in securing the reinstatement of William M. Greve as trustee, and of William Stitt, who as referee was in charge of the bankruptcy proceeding. The referee awarded compensation to-the persons engaged in the bankruptcy proceeding other than himself, and submitted to the District Judge the question of the amount of his own compensation. The judge entered an order fixing the compensation of the referee at $25,000 and approving the awards made by the latter to the other persons. He fixed them at the same amounts except in the case of the three trustees in bankruptcy, whose award he raised from $60,000, allowed by the referee, to $90,000. After this was done, the same judge made an order in the section 77B proceeding directing the payment of these allowances out of the estate of the debtor. As finally ordered, they were as follows: The Reconstruction Finance Corporation, a large creditor of Allied Owners Corporation, seeks by this appeal to have the allowances to the trustee, their attorneys, and the attorney for the bankrupt reduced, and those to the referee and Messrs. Cullen & Dykman entirely eliminated. The appellant objects to the allowance to the trustees not only because it is excessive, but because their compensation was governed by section 48a of the Bankruptcy Act (11 USCA § 76 (a), and, under that section, they were limited to “such commissions on all moneys disbursed or turned over to any person, including lien-holders, by them, as may be allowed by the courts, not to exceed 6 per centum on the first $500 or less, 4 per centum on moneys in excess of $500 and less than $1,500, 2 per centum on moneys in excess of $1,500 and less than $10,000. * * * ” They may also, under section 48e of the act (11 US CA § 76 (e), receive an additional 1 per centum if, as here, they conduct the business. If section 48a and section 48e had been applied, the trustees in bankruptcy would have been limited to the statutory fees on $731,425.57 cash turned over by them, or $14,628.50. But it is argued that their compensation was subject to no such limitations and that the language of section 77B (i) of the act (11 USCA § 207 (i) leaves the amount of compensation for services in the prior bankruptcy proceeding to the discretion of the judge in the reorganization proceeding, guided only by the “rule of reason.” In our opinion, however, section 48a fixes the bounds of the fees which the trustees in bankruptcy can claim. ’ We have discussed the application of section 77B (I) in Matter of New York Investors, Inc. (C. C. A.) 79 F.(2d) 182, so far as it relates to the fixing of fees in a prior equity receivership. The principles involved where the prior insolvency proceeding is in bankruptcy are the same. Section 77B (i) provides that, if a receiver or trustee has been appointed by a federal, state, or territorial court and if thereafter a reorganization proceeding under section 77B supervenes, “the trustee or trustees appointed under this section, or the debtor if no trustee is appointed, shall be entitled forthwith to possession of and vested with title to such property, and the judge shall make such orders as he may deem equitable for the protection of obligations incurred by the receiver or prior trustee and for the payment of such reasonable administrative expenses and allowances in the prior proceeding as may be fixed by the court appointing said receiver or prior trustee. * * * ” The foregoing section, in our opinion, requires that the prior insolvency court shall fix allowances and the reorganization court shall provide for their payment in so far as they are found to be “reasonable.” It seems quite unlikely that such a provision, made, as we believe, in order that the reorganization court might benefit by the experience of the prior court and its familiarity with the details of the business, was intended to leave the prior court free (within its statutory limitations) to fix conclusively any allowance it might deem reasonable. No such freedom had existed where ordinary bankruptcy had succeeded a state receivership. Taylor v. Sternberg, 293 U. S. 470, 55 S. Ct. 260, 79 L. Ed. 599; Gross v. Irving Trust Co., 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A. L. R. 1215; Hume v. Myers (C. C. A.) 242 F. 827. We think it plain that the words “equitable” and “reasonable” were intended to mean “reasonable” in the eyes of the reorganization court, and were to serve only as a check by the section 77B court on payments which might affect the proposed reorganization unfairly. If the parties whose compensation was fixed by the prior insolvency court felt aggrieved, they would seem to have had an obvious remedy by an appeal from the court which had fixed their compensation. Under sec-awarding compensation in excess of limilion 7TB (i), the reorganization court is given power to pay allowances which have been fixed by the prior court only to the extent that they are found reasonable. Nothing in the language of the subdivision suggests the removal of any restriction which may exist upon the prior court in the determination of allowances. Indeed, it is impossible to imagine that court tations imposed by a statute to which its orders are made subject. It seems equally unlikely that the reorganization court should be empowered by mere implication to make allowances for services by the agencies of another court which the statutes governing the action of that court forbid. Judge Goddard in Matter of Paramount Publix Corp. (D. C.) 12 F. Supp. 16, December 10, 1934, held that section 77B of the Bankruptcy Act did not enlarge the fees which might be granted under section 48a to trustees in bankruptcy, and we think his decision was entirely correct. In Re National Dept. Stores, Inc., supra, Judge Nields recently held that under section 77B (i) the reorganization court had no power to revise allowances fixed by the prior court. With all due respect, we cannot agree with an interpretation of the subdivision that would seem to make the words “equitable” and “reasonable” mere exhortations to the prior insolvency court which could result in no effective control by the reorganization court over excessive allow-' anees. We believe that it was the purpose of Congress to lessen the cost of insolvency proceedings which have long been regarded as too great. Cf. remarks of Cardozo, J., in Realty Associates Securities Corp. v. O’Connor, 295 U. S. 295, 55 S. Ct. 663, 79 L. Ed. 1446. It is argued that section 77B (k) of the act (11 USCA § 207 (k) makes section 48a inapplicable to the prior bankruptcy proceeding. This is plainly unsound. Subdivision (k) in terms relates only to “proceedings instituted under this section [77B].” It provides that certain sections of the Bankruptcy Act, including section 48 (11 USCA § 76), shall not “apply to proceedings instituted under section 77B [this section] unless and until an order” of liquidation has been entered. This means that the judge fixing fees for services in a section 77B proceeding shall not be limited by section 48, and not that the bankruptcy judge in fixing fees in that proceeding is not so bound. It has been suggested that the trustees might be allowed compensation larger than $14,628.50 by calculating their commissions on the value of property as well as “moneys disbursed or turned over to any person,” upon the analogy of In re Toole (D. C.) 294 F. 975, and In re Kessler (unreported decision in the Southern District of New York, July 16, 1918). But neither of these decisions was made upon facts like the present, and, if sound, each is limited to cases where it can be said that there is a constructive disbursement of moneys by turning over property at an agreed valuation. Here the commissions had to be figured upon cash disbursed. In re Detroit Mortgage Corp. (C. C. A. 6) 12 F.(2d) 889, certiorari denied Security Trust Co. v. De Land, 273 U. S. 713, 47 S. Ct. 107, 71 L. Ed. 854; American Surety Co. v. Freed (C. C. A. 3) 224 F. 333. While we should allow a substantially larger compensation if we were at liberty to disregard section 48a, the amount awarded by the District Court was plainly excessive. The services of the trustees only lasted ten months, were in many respects preliminary to a reorganization, and were far less burdensome than those of their counsel. If the reorganization succeeds, they will be entitled to substantial compensation in the 77B proceeding. We see no reason under present circumstances to suspend the payment of allowances to either the trustees or their counsel for work which has been completed. We award to the former $14,628.50, instead of the $90,000 granted by the District Court. The next item to be considered is the compensation of Messrs. Goldwater & Flynn, the attorneys for the trustees in the bankruptcy proceeding. The value of the assets of the bankrupt based on the statement of its accountants as of December 31, 1933, was $18,161,470.38. This, of course, did not represent the realizable value at the date of bankruptcy, and the properties were subject to mortgages amounting to about $11,662,000. Among the principal properties of the estate were seven moving picture theaters and a note ox -Ringling Bros, in which its participation interest was $828,000. In addition to this, there was cash on deposit in various hanks and trust companies aggregating $341,414.-22. The bankrupt was a subsidiary of New York Investors, Inc., which was iti the hands of receivers in equity, and as such was involved in its complicated affairs. One of the most important matters that the attorneys had to attend to arose out of two actions pending on behalf of the bankrupt to recover monthly installments of purchase price on three of the theater properties from Loew’s Theater & Realty Corporation and Loew’s, Inc. The total amount sued for was nearly $300,000. Many complicated questions of law and fact were involved in these litigations in which answers and counterclaims had been interposed, and the cases were prepared for trial by Messrs. Goklwater & Flynn. They we.re finally settled, shortly after the trustees under section 77B were appointed, by means of a guaranty by Loew’s, Inc., of the aggregate amount payable tinder the installment contracts. Undoubtedly the settlement was largely due to the preparation of the cases for trial, and the guaranty of some $12,000,000 of future installment payments is said to be good. Claims for about $23,000,000 prepared by the attorneys were asserted by the trustees against Paramount Publix Corporation based on alleged damages because of breach by the latter of contracts for the purchase of theaters. The claims against Paramount were settled long after the termination of this proceeding. The Manufacturers Trust Company, which was trustee under a trust deed that secured a large bond issue, was dissuaded from foreclosing mortgages covering the theaters, and this made it possible to proceed with the actions against Loew’s Theater & Realty Corporation and Loew’s, Inc., and finally to settle them. These and many other important matters, such as litigation over the Ringling note, requiring skill and experience, are said to have occupied one or more of the partners in Goklwater & Flynn and two of their legal assistants for some 4,508 hours, of which 3,023 were those of their assistants. Many of the things done by these lawyers, as is always the case, were routine matters; many were matters of large importance; many were of a sort preliminary to the reorganization, which has not yet been completed. We think $50,000 is a reasonable compensation for these attorneys, and we award that amount, instead of $75,000, to which is to be added their disbursements of $1,247.80 directed to be paid by the District Judge. The attorney for the bankrupt was allowed $10,000 for his services. His most important services were advising the corporation about going into bankruptcy, preparing the petition, schedules, amended schedules, and notices to banks, asking for the immediate appointment of a trustee, and taking steps, that were evidently successful, to prevent the expense of a receiver. These things were' for the benefit of the estate and properly chargeable to it. His other services in attending creditors’ meetings and examinations under section 21a of the act (11 USCA § 44 (a), supporting the proceeding of Mr. Greve for reinstatement as trustee, acquainting the trustees and their counsel with the previous business of the bankrupt, making arguments in connection with the Ringling nóte, arguing against the attempted foreclosure by the Manufacturers Trust Company and Realty Associates, Inc., negotiating with the Loew interests, and filing the petition under section 77B, are not matters for which compensation can properly come from the bankrupt estate. Undoubtedly the preparation of the schedules was a difficult matter requiring much time, labor, and skill, but an allowance of $5,000 is, in our opinion, adequate, if not liberal, compensation, for all the services chargeable to the estate. We award that amount to the attorney for the bankrupt, instead of the $10,000 granted by the District Court. The award of $25,000 to the referee was clearly erroneous. We have already shown that the reorganization court was without power to increase allowances fixed by the prior court and that the prior court was limited by the provisions of the Bankruptcy Act. Under section 40a of that act (11 USCA § 68 (a), referees are only entitled to “a fee of $15 * * * in each case * * * and 25 cents for every proof of claim filed for allowance * * * and from estates which have been administered before them 1 per centum commissions on all moneys disbursed to creditors by the trustee. * * * ” Under section 40a, the referee here was limited to a fee of $15 and his filing fees, and under section 72 of the act (11 USCA § 112) could not “in any form or guise receive * * * any other or further compensation.” The award of $2,474.35 to Cullen & Dykman cannot stand. They performed legal services for Mr. Greve in procuring his reinstatement after the referee declined to approve his election by the creditors. But he was not trustee at the time the services were performed. They were performed for him personally, and, though they doubtless resulted in a benefit to the estate when the selection of a good trustee was thereby secured, it was not the sort of benefit which can be the basis of a charge against the fund in the hands of the trustees. The situation resembles that in Weed v. Central of Georgia Ry. Co. (C. C. A. 5) 100 F. 162, 167, .where an allowance was sought' by counsel for an intervening creditor for securing the appointment of a coreceiver. The application was denied, the court saying: “That kind of service is certainly such a service as should be paid for by their clients.” The orders are modified as to Stephen Callaghan, Percival E. Jackson, William M. Greve, Goldwater & Flynn, and Robert P. Levis, and reversed as to Theodore Stitt and Cullen & Dykman, in accordance with this opinion. See decision in Re National Department Stores, Inc. (D. C. Del. 1935) 11 F. Supp. 101, where Judge Nields, as judge of the reorganization court, withheld an order for payment of allowances' granted by the Pennsylvania District Court until it appeared whether an appeal had been taken or, if taken, disposed of.

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

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 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?

ILLINOIS CENTRAL GULF RAILROAD CO., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. Cisco Cooperative Grain Company, Intervening Respondent. No. 82-2594. United States Court of Appeals, Seventh Circuit. Argued June 9, 1983. Decided Sept. 15, 1983. Richard M. Kamowski, Ill. Central Gulf R.R. Co., Chicago, Ill., for petitioner. Sidney L. Strickland, Jr., I.C.C., Washington, D.C., for respondents. Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and FAIRCHILD, Senior Circuit Judge. CUMMINGS, Chief Judge. This is an action to set aside several decisions of the Interstate Commerce Commission (“ICC”) in Docket No. AB-43 (Sub-No. 85F), Illinois Central Gulf Railroad Company-Abandonment between Cisco and Green's Switch, Illinois. In January 1982, Illinois Central Gulf Railroad Company (“ICG”) filed a notice of intent to abandon 13.41 miles of railroad line from Cisco to Green’s Switch, Illinois, and a complete abandonment application was filed in February 1982. On May 11, 1982 the ICC served its decision granting ICG’s abandonment application. Under 49 U.S.C. § 10905, when the Commission approves the abandonment of a rail line, any financially responsible person willing to provide continued rail service over the line may file an offer to purchase the line within 10 days. Cisco Cooperative Grain Company (“Cisco”) did so on May 21; Illinois Power Company (“IP”) also filed an offer of financial assistance to acquire a 2.3 mile segment of the line, but conditioned its offer on rejection of Cisco’s offer for the entire segment. On May 24, the ICC found Cisco to be financially responsible and its offer to be bona fide, and accordingly postponed the issuance of the certificate of abandonment to give the parties a chance to negotiate price, or to request the Commission to set the terms and conditions for the purchase. See 49 U.S.C. § 10905(d). The ICC’s decision was served May 26. On May 25, between the issuance and service of the ICC decision, ICG filed a motion to dismiss Cisco’s offer to purchase the line. Because the ICC decision had already issued, the Commission treated ICG’s motion as an appeal, 49 C.F.R. § 1011.7(b)(1), which was denied on July 15. Negotiations between Cisco and ICG were unsuccessful and on June 25, Cisco asked the ICC to set the terms for the sale. Cisco estimated the value of the line to be $269,939 on the basis of an independent appraisal by Mr. Craig Burroughs, President of the Prairie Central Railway Company, of the net salvage value of the track materials, and an independent appraisal by Mr. Verne Roby of Roby & Associates, real estate appraisers, of the value of the land for its highest and best nonrail use. • On August 12, ICG disputed Cisco’s appraisal and requested a sale price of $663,-286 based on the verified statements of two of its employees, Jeffrey Wells, Consolidation Engineer, and John Wyatt, Area Manager of Special Projects. On August 24, the ICC served a decision ordering ICG to sell the line to Cisco for $279,122.40. The Commission gave Cisco 10 days to accept the terms and set the closing date for November 22, 1982. Accordingly, Cisco on September 3 accepted the offer, but also petitioned the ICC to modify the closing date. ICG objected that Cisco’s acceptance was “conditional” and therefore invalid. Cisco’s petition was based on the fact that it had appealed an adverse ICC decision in a related case, see Cisco Cooperative Grain Co. v. ICC, 714 F.2d 401 (1983), also decided today, and did not want to prejudice that action by closing before the other case was decided on appeal. The Commission on November 15, however, extended the closing date because of ICG’s appeal of the August 24 order setting the terms and conditions of sale, holding that it would be unfair to require the parties to consummate the sale before this Court had the opportunity to review the Commission’s actions in setting the price. First, ICG challenges as arbitrary and capricious the May 26 decision finding Cisco to be financially responsible and its offer bona fide. Second, ICG challenges as violative of its due process right to be heard the July 15 decision treating its motion to dismiss Cisco’s offer as an appeal. Third, ICG challenges as being outside the scope of the ICC’s authority the November 15 decision extending the closing date. Finally, and most importantly, the ICG challenges as arbitrary and capricious the August 24 decision setting the purchase price. A. The May 26 decision ICG objects to the ICC decision on two grounds: first, that Cisco did not present enough evidence to show it was financially responsible, and second, that its petition did not present enough detail to constitute a bona fide offer. We reject both arguments. Section 10905(d) allows the ICC to postpone issuance of a certificate of abandonment when a financially responsible person makes a bona fide offer of assistance to enable rail transportation to be continued over the rail line in question. Both the finding of financial responsibility and the finding that the initial offer was bona fide are preliminary in nature, and simply constitute grounds for encouraging further negotiation. The purpose of the showing required by Section 10905(d) and 49 C.F.R. § 1121.38 is to prevent unjustified delays of railroad abandonments by screening out frivolous offers made by persons who are unable to fully compensate the railroad for its property. In this case, Cisco submitted annual financial statements for the past three and one-half years in accordance with 49 C.F.R. § 1121.38(c)(2)(iii) which requires “information” demonstrating financial resources; contrary to ICG’s argument, the regulation does not require an “explanation” of financial resources. The ICC itself was perfectly capable of concluding from the information provided that Cisco was financially responsible. In addition, in accordance with Section 1121.-38(c)(2)(v), Cisco explained why its estimate of net liquidation value differed from ICG’s by relying on a professional appraisal it had conducted for this purpose. Although Section 1121.38(e)(4) requires a statement of the manner in which operations will be continued over the line, including a proposed operating agreement, Cisco had not yet executed such an agreement, and thus could only indicate its intention to contract with Prairie Central Railway Company. In light of the preliminary nature of the required showing, the May 26 decision based on the above information was neither arbitrary nor capricious. B. The July 15 decision Section 10905(c) gives any person 10 days from the date of service of a decision approving abandonment to offer to purchase the line. Section 10905(d) gives the ICC 15 days after publication of the decision— which occurs when the decision is served —to find that the offer is bona fide and the offeror financially responsible. Cisco filed its offer on May 21, 10 days after the abandonment decision was served on May 11. The ICC thus had 5 days to rule on the offer. It issued its ruling on May 24, but served it on May 26. ICG argues that the ICC’s failure to consider ICG’s May 25 motion to dismiss the Cisco offer before it issued its May 26 decision violated ICG’s due process right to be heard. It is obvious that the reason ICG’s pleading was not considered was because the ICC decision had been issued on May 24, a day before the ICG pleading was received. Given the fact that by statute the ICC had only 5 days in which to rule, it is untenable to claim that it purposefully intended to exclude comment by ICG on the matter before it. Indeed, the ICC did consider ICG’s objections to Cisco when it treated the motion by ICG as an appeal. ICG argues that 49 C.F.R. § 1011.7(b)(1) subjects appeals to a very strict standard; they will only be granted in “exceptional circumstances to correct a clear error of judgment or to prevent manifest injustice.” But ICG does not specify exactly how consideration of its pleading before the May 26 decision would have changed the result. As described in part A supra, the ICG objections essentially challenged the sufficiency of Cisco’s evidence. Despite the “stricter” standard on appeal, the ICC Chairman makes clear in his July 15 opinion that he reviewed the record and found sufficient evidence to support the May 26 decision (Jt.App. 37-38). Thus this procedure provided an adequate opportunity for ICG’s challenges to be considered, and as it turned out, rejected, in light of Cisco’s presentation. C. The November 15 decision ICG argues that by petitioning the ICC for a modification of the closing date, Cisco “conditioned” its acceptance of the terms and conditions of sale, and the ICC was thus bound by statute immediately to issue a certificate of abandonment. 49 U.S.C. § 10905. We disagree. The ICC specifically found that Cisco’s acceptance of the terms was absolute (Jt.App. 84); its petition for an extension of the closing date was based on its appeal of a related decision that would, if reversed, present the opportunity to purchase the line under a different statutory Section, i.e., the feeder railroad development program under Section 10910. See Cisco Cooperative Grain Co. v. ICC, 717 F.2d 401 (1983). Cisco merely intended to preserve its rights during the appeal. Because Cisco’s acceptance was absolute, the ICC was under no statutory obligation to issue a certificate of abandonment immediately. In its discretion, the Commission decided to extend the closing date until this appeal was decided in order to give Cisco an opportunity to withdraw if this Court remanded and the ICC’s reconsideration resulted in a higher purchase price. The ICC did not abuse its discretion in so doing. D. The August 24 decision ICG does not challenge the ICC determination of the salvage value of the line at $126,420. It does, however, challenge the valuation of the real estate at $172,920.40. Cisco’s independent appraiser found that the highest and best nonrail use for the land was for sale to the abutting owners for use as farmland, and valued the land at $3,000 per acre for all 160.05 acres. He reduced the $3,000 per acre figure (1) by $800 per acre to reflect the cost of restoring the land to farmland by removing the ballast, brush and trees, and grading or reshaping the land, (2) by 20% of the resulting figure or $440 per acre, because of the limited productivity of the land for farming even after the land was restored, and (3) by $602.80 per acre to reflect a three-year sales period and the fact that some parcels might never sell. The resulting fair market value is $1,157.20 per acre, which when multiplied by 160.05 acres amounts to $185,210 and was Cisco’s valuation of the real estate. ICG’s $525,319 real estate valuation was done by an employee with real estate and appraisal experience (Jt.App. 53-76). His verified statement specifically challenged several aspects of Cisco’s submission. ICG essentially agreed with Cisco’s unadjusted figure of $3,000 per acre, but because that figure came from comparable land sales over a three-year period, ICG increased the figure by $500 per acre to reflect inflation. ICG argued that $800 was too much for restoration and suggested instead a $400 figure. In addition, ICG argued that while the land could be sold to abutting owners, it did not necessarily have to be used for growing crops, but could serve other farm purposes and therefore should not be devalued by $440 per acre for limited productivity. Finally, ICG argued that the 7.97 acres of land located within the boundaries of two towns should be valued as commercial rather than as farm property, at $10,889 per acre, or approximately $86,790. The ICC accepted Cisco’s estimate in full. The opinion indicates that the ICC read ICG's submission because it states that ICG’s valuation is based “on comparable sales of land during the past 3 years, adjusted upward to reflect inflation [and further adjusted] to account for the cost of restoring the right-of-way and for unmarketable parcels” (Jt.App. 79). However, it is clear from the opinion that the Commission believed ICG’s figures were based on an incorrect “land valuation methodology.” The ICC apparently believed that ICG valued the land on the assumption that it could be sold “as an access or a roadway,” or “as a single parcel;” the ICC believed ICG had submitted an “assemblage value * * * appropriate if property has a market as a corridor for other than rail use.” Since there was no evidence of any interest in the corridor for nonrail use, the ICC rejected ICG’s appraisal in its entirety. This type of informal agency action must be upheld if, based on the record before it, the ICC decision is not arbitrary or capricious. The ICC must consider all relevant factors in arriving at its decision and provide a reasoned explanation for that decision — that is, it must give “an adequate explanation of the connection between the record before it and the choice it makes.” City Fed. Sav. & Loan Ass’n v. Federal Home Loan Bank Bd., 600 F.2d 681, 688 (7th Cir.1979). In this case, the ICC accepted Cisco’s figures because it approved of its methodology, and rejected ICG’s figures because it assumed they were based on valuing the land for use as an access or roadway. For this reason, the ICC did not resolve the contested valuation issues. The assumption that ICG’s figures were based on an inappropriate methodology is not supported by the administrative record. ICG’s appraisal contests the restoration costs, the reduction in productivity, the assumption that it will take up to three years to sell the land, and the value of the property located in commercial areas. In discussing restoration costs, ICG’s appraisal rejects Cisco’s figures for two reasons: first, because recent ICG salvaging projects have cost not $800 but between $200 and $600 an acre; and second, because possible use of the land for access or as a roadway would eliminate much of the restoration cost (Jt.App. 59). This mention of “access or roadway” comes in the middle of the appraisal, takes up one page, and is clearly offered by ICG as an alternative reason for rejecting Cisco’s restoration costs. But the ICC assumed the entire appraisal was based on selling the land for use as a corridor, for access or for a roadway. Based on this record, it was arbitrary and capricious to find that this assumption underlay ICG’s entire analysis and thereby invalidated it. The ICC’s choice-— accepting all of Cisco’s figures — was therefore based on an erroneous reading of the record. The ICC attempts in its brief to explain the Commission’s decision by analyzing the conflicting figures and justifying Cisco’s appraisal (Br. 17-20). The ICC argues in brief that the Commission weighed the conflicting evidence and “obviously gave more weight to the full, detailed appraisal of [Cisco’s] independent certified land appraiser than to the railroad’s more generalized rebuttal evidence” (Br. 18). But there is no evidence in the ICC opinion that the agency did anything more than reject ICG’s figures on the basis of a mistaken notion as to its methodology. Although the ICC’s explanation in brief may be plausible as an afterthought, it cannot substitute for the explanation given by the ICC in its opinion. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136. Because the ICC’s August 24 decision cannot be sustained on the present record, we set it aside and remand this case to the Commission for reconsideration of the value of the land; the remaining orders are affirmed. . As is customary, each of the ICC decisions discussed herein provides that it is effective on the date served. . The typical width of the property is approximately 100 feet.

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 942, AFL-CIO, Respondent. No. 15814. United States Court of Appeals Ninth Circuit. April 9, 1959. See also 9 Cir., 263 F.2d 796. Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallett-Prevost, Asst. Gen. Counsel, Thomas J. Ryan, Norton J. Come, Duane B. Beeson, Attys., N. L. R. B., Washington, D. C., for petitioner. Plato E. Papps, Chief Counsel, International Ass’n of Machinists, Bernard Dunau, Washington, D. C., for respondent. Richard W. Axtell, Michael J. O’Brien, Spokane, Wash., amicus curiae. Before BONE, ORR and BARNES, Circuit Judges. PER CURIAM. Respondent, International Association • of Machinists, Lodge 942, AFL-CIO, has moved this Court for an order staying Paragraph 1(a) and Paragraphs 2(a) and (b) of the decree in the above entitled matter pending application for a writ of certiorari and final determination of the cause by the Supreme Court of the United States. In a formal “opposition” filed with us the National Labor Relations Board does not oppose a stay of the notice-posting requirement of the decree as it relates to peaceful picketing but opposes any other stay by this Court. Paragraph 1(a) of the decree requires that respondent shall cease and desist from: “Restraining or coercing employees of Alloy Manufacturing Company in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended [29 U.S.C.A. § 157], * * by picketing for the purpose of obtaining recognition of Alloy’s employees at a time when it does not represent a majority of them.” In its motion respondent frankly avows, inter alia, that “should picketing of Alloy’s premises be resumed, its purpose will be confined to (1) persuading the employees of Alloy to join respondent, and/or (2) persuading customers of Alloy not to patronize it.” The sort of picketing (described in Paragraph 1 (a)), as did the prior picketing, would probably inflict business loss on Alloy, which in turn might force it to accede to respondent’s illegal objective. The Board suggests, and we agree, that to subject Alloy and its employees to this kind of pressure to select an unwanted representative would, if the Board’s view be ultimately sustained, result in a pro tanto impairment of the Act’s policies. It is ordered by this Court that the portion of that notice which was required by our decree to be posted, a copy of which is attached to the decree and which reads as follows: “We will not restrain or coerce the employees of Alloy Manufacturing Company, in the exercise of rights guaranteed in Section 7 of the Act, including specifically the right to refrain from engaging in any or all the activities guaranteed thereunder, by picketing for the purpose of obtaining recognition of Alloy’s employees at a time when it does not represent a majority of them.” be stayed in order to permit respondent to apply for a writ of certiorari, and until final determination of the cause by the Supreme Court of the United States. In all other respects respondent’s motion is denied.

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

Did the court declare any statute or administrative action unconstitutional?

Tandy RICHARDSON, Jr., Administrator of the Estate of Byron L. Richardson, Deceased, Plaintiff-Appellant, v. The CITY OF INDIANAPOLIS, A Municipal Corporation in the State of Indiana; Marion County Sheriffs Department, Marion County, Indiana; Mark Myler, Robert Yarnell, Schuyler Atkins and Linden K. Lucas, Individually and as Deputy Sheriffs of the Marion County Sheriffs Department, Marion County, Indiana; Indianapolis Police Department, Indianapolis, Indiana; Richard Blake, Individually and as a Police Officer of the Police Department of the City of Indianapolis; and Phil Smith and Robert Fouty, Individually and as Police Officers of the Police Department of Speedway, Indiana, Defendants-Appellees. No. 80-1285. United States Court of Appeals, Seventh Circuit. Argued Jan. 19, 1981. Decided Aug. 25, 1981. John 0. Moss, Moss & Walton, John Preston Ward, Indianapolis, Ind., for plaintiff-appellant. Eugene 0. Maley, Richard S. Ewing, Stewart, Irwin, Gillion, Fuller & Meyer, Indianapolis, Ind., for defendants-appellees. Before FAIRCHILD, PELL and SPRECHER, Circuit Judges. PELL, Circuit Judge. Byron L. Richardson was shot and killed in a struggle with an Indianapolis police officer in the course of his arrest following a high speed automobile chase. The plaintiff, Tandy Richardson, Jr., the decedent’s personal representative, appeals from a judgment of the United States District Court for the Southern District of Indiana which granted a directed verdict against him on his claim under 42 U.S.C. § 1983, in favor of the defendants, the City of Indianapolis; the Indianapolis Police Department (I.P.D.); the Marion County Sheriff’s Department; Mark Myler, Robert Yarnell, Schuyler Atkins, and Linden Lucas, individually and as Deputy Sheriffs of Marion County; Phil Smith and Robert Fouty, individually and as police officers of the Police Department of Speedway, Indiana (referred to collectively as the non-shooting defendants). The plaintiff also appeals from the directed verdict in favor of Richard Blake, as a Police Officer of Indianapolis, Indiana, and from a jury verdict in favor of the defendant Richard Blake, individually (the shooting defendant). As to the non-shooting defendants, the plaintiff contends that the trial court erred by weighing the evidence and substituting its judgment for that of the jury, and thereby removed from jury consideration questions upon which reasonable jurors could have disagreed. As to the shooting defendant Blake, the plaintiff alleges that the trial court committed several errors; first, that the court granted improperly a directed verdict in favor of Blake “as a Police Officer of the City of Indianapolis”; second, that the court wrongfully denied a directed verdict against Blake at the close of all the evidence; third, that the court improperly instructed the jury; fourth, that the court improperly refused the plaintiff’s tendered jury instructions; and fifth, that the court failed to excuse a juror for cause when it should have done so. The plaintiff also contends that the trial court erred by excluding from the evidence a paternity judgment relating to the decedent’s illegitimate child. The plaintiff also seeks award of attorney’s fees under 42 U.S.C. § 1988. I. At 1:12 a. m., May 14, 1975, Indianapolis Police Officer Richard Blake issued a speeding ticket to the decedent, Byron Richardson. Some 45 minutes later, Blake, who had remained at the same location, observed the Richardson car again speed past. Blake pursued the car, and alerted the dispatcher of the Indianapolis Police Department. This broadcast was heard by other police officers of surrounding jurisdictions who joined the pursuit, which reached speeds of up to 100 miles per hour. The pursuers attempted to slow or to stop Richardson, but he eluded them until two Sheriff’s Department squad cars blocked a roadway on an exit ramp at the Indianapolis International Airport, whereupon Richardson stopped his vehicle. The pursuing vehicles surrounded Richardson’s car, and several officers got out of their cars and approached cautiously. At least three of the officers had their handguns drawn. Blake and another officer ordered Richardson out of the car. He responded only by laughing. Blake and Corporal Myler of the Marion County Sheriff’s Department approached the car with their guns drawn. All the other officers reholstered their guns at this point. Blake and Myler removed Richardson from the car. Blake used his left hand only, keeping his revolver, pointing skyward, in his right hand. Richardson began to struggle with the two officers. Blake’s gun discharged, striking Richardson in the head. Richardson died immediately. His personal representative filed this suit alleging that the defendants had unconstitutionally deprived the decedent of his rights under color of state law in violation of 42 U.S.C. § 1983. The trial court granted a directed verdict in favor of the non-shooting defendants, and in favor of Blake as a police officer, and a jury found in favor of Blake acting as an individual. The plaintiff appeals from the judgment entered on those verdicts. II. The plaintiff’s first assignment of error is that the trial court improperly granted a directed verdict in favor of the non-shooting defendants and the shooting defendant in his capacity as an officer of the I.P.D. The plaintiff contends that the trial court failed to follow the proper rule concerning the grant of a directed verdict, which requires that the trial court view the evidence and make all inferences in the light most favorable to the non-moving party, and that if reasonable jurors could differ on the conclusions drawn therefrom, the case must go to the jury. See, e. g., Hampton v. Hanrahan, 600 F.2d 600, 607-08 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). While this is the proper formulation of tlie directed verdict standard, it is nonetheless clear that the trial judge must determine whether the party with the burden of proof has produced sufficient evidence upon which a jury could properly proceed to a verdict, and that a mere scintilla of evidence will not suffice. Hohmann v. Packard Instrument Co., 471 F.2d 815, 819 (7th Cir. 1973). Thus on appeal the party against whom a verdict has been directed has the onus of demonstrating the existence of a conflict in the evidence or the inferences to be drawn therefrom sufficient to justify submission of the question to the jury. Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098,1102 (5th Cir. 1973). We turn therefore to each of the plaintiff’s claims in turn to determine whether there was evidence upon which reasonable jurors could have disagreed. The first category of issues relates to the participation in the high-speed pursuit. The plaintiff’s complaint asserted that the governmental and police force defendants wrongfully failed to interrupt the high-speed chase and thereby participated in the exercise of unreasonable and excessive force in violation of the decedent’s civil rights; that the City of Indianapolis and its police force wrongfully exerted such force by inviting and encouraging the other defendants to join in the chase; that the Indianapolis defendants should have known that no high-speed chase was necessary because they knew the decedent’s name and address from the earlier speeding ticket and thus could have picked him up later, and that therefore the continuation of the chase was exertion of unreasonable and excessive force; that the other defendants exerted such force by joining the chase in the absence of information that a warrant was out for the defendant or that he was being pursued for the commission of a felony. The trial court made the following findings of fact and conclusions of law on the high-speed chase issue: while engaging in ... high speed flight decedent was pursued by multiple police officers of various police agencies in the proximity of the roads and highways used by decedent in the flight of decedent in his vehicle. During such flight the decedent committed other alleged misdemean- or traffic violations of reckless driving, speeding and failing to obey multiple police officers’ orders to decedent to stop his motor vehicle. ... It was the legal obligation of the defendant officers to arrest the decedent for the many violations of the Motor Vehicle Code of Indiana. It was the duty of the decedent to stop his vehicle when he was signaled to stop by each and all of the defendant officers. It was the duty of the defendant governmental units and agencies to instruct their employee defendant officers to pursue the decedent when he resorted to high speed evasive flight to avoid arrest for each of his crimes and for inter agency cooperation to apprehend. No property damage or personal injuries were incurred by decedent in the defendants’ pursuit of decedent in his high speed evasive flight to avoid arrest. The court then concluded that the plaintiff had failed to prove all of the essential elements and alleged facts of the complaint as to the non-shooting defendants. We agree. There was no evidence in the record upon which a reasonable juror could conclude that the high-speed chase was the proximate cause of any violation of the decedent’s constitutional rights. The chase had terminated without injury to the decedent, before the occurrence which caused his death, and therefore no liability for participation in the chase can attach. Furthermore, there was no evidence in the record that the chase was unlawful, but rather what evidence there was established that it was appropriate under the laws of the State of Indiana and the policies of the respective defendants for the officers to pursue a person who had committed a misdemeanor in their presence, and to assist another officer in so doing, regardless of whether a warrant had been issued. Ind.Code § 18-1-11-4 (Burns). Additionally, no evidence was produced that the Indianapolis defendants invited or encouraged the other defendants to join the pursuit; what evidence there was established rather that each officer communicated only with his own dispatcher. The grant of the directed verdict was thus proper on the issue of the high-speed chase. The next group of issues removed from jury consideration relates to the firearms policy of the defendant police departments, and the failure of the departments to discipline officers for excessive use of force. The plaintiff’s brief does not raise the issue of firearms policy, and the question of discipline policy, while alluded to in the plaintiff’s brief to this court, was withdrawn from consideration by the plaintiff below. We will treat neither of these issues, therefore, as neither is properly before this court. The next group of issues relates to the negligent assignment of Officer Blake to a motor vehicle, and the negligent hiring of Deputy Sheriff Myler. The plaintiff submitted exhibits designed to prove the above, but the trial court excluded them on relevance grounds. The plaintiff has not briefed grounds before this court on which that exclusion is claimed to be erroneous. Furthermore, we need not reach the question in light of our affirmance of the district court finding that there was no evidence establishing that the chase proximately caused injury to the decedent, and therefore no reason to examine the driving records of the officers involved. The plaintiff’s next claim is that the non-shooting defendants violated the decedent’s rights by failing to act affirmatively to prevent Officer Blake from shooting the decedent. This charge assumes that the shooting officer acted in a manner that violated the decedent’s civil rights. The jury properly determined that issue to the contrary, however, see infra, and thus there can be no liability on the part of the non-shooters for failure to prevent what the jury determined was not a violation. We note, however, that unlike Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979), and Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), this was not a case where there was time for the other officers to intervene, but rather presented a situation like that in Russ v. Ratliff, 538 F.2d 799 (8th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977), where the court sustained a verdict in favor of an officer who could not have intervened because the challenged events occurred within a few seconds. The plaintiff’s final claim on the directed verdict as to the non-shooters is the claim that the defendants conspired to violate the decedent’s civil rights. The plaintiff relies on language from Hampton v. Hanrahan, 600 F.2d at 620-21, to establish that such a conspiracy need not be based on an express agreement, and that its existence can be inferred from circumstantial evidence. Hampton was explicit, however, in stating precisely what elements were required to establish the existence of a civil conspiracy: [A] combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties ‘to inflict a wrong against or injury upon another,’ and ‘an overt act that results in damages.’ Id. at 620-21, quoting Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973). Because the jury determined that no violation of the decedent’s civil rights had taken place as to the shooting defendant, there obviously could have been no agreement to violate those rights by the non-shooting defendants. Thus, the element of infliction of a legally cognizable wrong is absent. Furthermore, as we noted above, there was no evidence of any communication between the officers which might give rise to any inference of agreement to commit any acts, wrongful or otherwise. As this court remarked in Hoffman-LaRoche, Inc. v. Greenberg, 447 F.2d 872, 875 (7th Cir. 1971), [circumstantial evidence may provide adequate proof of conspiracy. The law does not demand proof that each conspirator knew the exact limits of the illegal plan or the identity of all participants therein. But it does require that there be a single plan, the essential nature and general scope of which is known to each person who is to be held responsible for its consequences. See Simms v. Reiner, 419 F.Supp. 468 (N.D. Ill.1976) (“Mere unsupported conclusions and inferences are insufficient to support a charge of conspiracy.”). Absent any evidence of a plan to deprive the decedent of his civil rights, the conspiracy allegation could not go to the jury. We therefore conclude that the trial court did not err in directing a verdict as to all of the non-shooting defendants. III. The plaintiff further contends that the trial court erred by granting a directed verdict in favor of Officer Blake in his capacity as a Police Officer of the City of Indianapolis. In explaining his rationale for dismissing the case against Blake in his official capacity, the trial court stated that under the rule of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1976), damages on a theory of respondeat superior could only be awarded against the City of Indianapolis or the Indianapolis Police Department if Blake had been acting pursuant to a policy, custom, or usage of the city or the department, and that the only purpose in naming Blake in his official capacity was to obtain such liability against the city or the department. The court found, however, that there was no evidence that Blake was acting pursuant to any policy or custom of the city or the department when his gun discharged, and that there had been no evidence, in fact, presented as to any policy whatsoever relating to the use of firearms. The plaintiff has presented no argument on appeal that challenges that finding, and this court has not found such evidence on review of the record. Under the Moneli rule, actions for damages against a party in his official capacity are in essence actions against the governmental entity of which the officer is an agent, 436 U.S. at 690 n.55, 98 S.Ct. at 2035 n.55, and damages could only be awarded against a defendant in his official capacity if they would be available against the governmental agency itself. Id.; Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir. 1980). Thus it was appropriate to limit the jury consideration of Blake’s liability to the question whether he individually had violated the decedent’s civil rights while acting under color of state law, i. e., clothed with the authority, but acting beyond the proper scope, of an Indianapolis police officer. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). IV. The plaintiff further contends that the trial court erred on several grounds in rulings relating to the continuation of the trial following the grant of the directed verdict for all the defendants except Blake individually. We will examine each of those contentions in turn. The plaintiff claims the trial court erred by refusing to grant a directed verdict against Blake at the close of the evidence on a theory that his use of his gun was excessive force. Keeping in mind the rule that such a verdict is only appropriate when the evidence, viewed in the light most favorable to the non-moving party, is such that reasonable jurors could not differ on the conclusion of the issue, Hohmann v. Packard Instrument Co., 471 F.2d at 819, we must affirm on this ground as well. The plaintiff relies on two cases, Russ v. Ratliff, 538 F.2d 799 (8th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977), and Clark v. Ziedonis, 513 F.2d 79 (7th Cir. 1975), to establish that the use of deadly force is only justified when an officer needs it for self defense, or to control a prisoner, or when such force is necessary to effect an arrest. As the subsequent jury verdict would indicate, reasonable jurors could in fact have placed a different interpretation on the evidence, and would have been justified in believing that the display of a firearm in the circumstances was not inappropriate and that it fired by accident. The plaintiff’s next objection is that the court erred by giving instruction number 24. The plaintiff objected to the instruction at the trial on two grounds: first, that it “does not make clear that the violation of the rights of the decedent could take place by the reckless and careless manner in which the defendant Blake conducted his activities,” and second, that the last two paragraphs “concern themselves with negligence or lack thereof on the part of the police officers. This issue of negligence has not been joined in this case, is beyond the scope of the pleadings and the issues, and should not be read to the jury.” We are not persuaded by the plaintiffs first objection, which asserts that the instruction as given would require that the defendant “be guilty of first degree murder before you would be justified in finding him guilty of violating the decedent’s constitutional rights,” and thus that the plaintiff was not allowed to instruct the jury on recklessness. The plaintiff relies on Kerr v. City of Chicago, 424 F.2d 1134, 1140 (7th Cir.), cert. denied sub nom. Mohan v. Kerr, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 64 (1970), to establish that no specific intent or purpose to deprive the plaintiff of his rights is required. While this is a perfectly valid statement of the law, Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), it ignores the fact that the trial court’s instruction here properly went on to state that liability could be premised on the basis of the defendant’s “callous disregard for the consequences.” This may not be a model or ideal recklessness instruction; however we find it an adequate and understandable formulation of the recklessness standard on which the plaintiff premised his case. See Beard v. Mitchell, 604 F.2d 485, 494 (7th Cir. 1979) (“conscious disregard” definition of recklessness was not prejudicial error). Furthermore, the plaintiff had a full opportunity to explain his theory of the case to the jury at closing argument, and used that opportunity to elaborate on the “callous disregard” formulation of the recklessness theory, as contained in the court’s instruction as actually given. See Alloy International Co. v. Hoover NSK Bearing Co., 635 F.2d 1222, 1226-27 (7th Cir. 1980); Beard, 604 F.2d at 493 n.8. The plaintiff’s second objection to instruction 24, that it injected the issue of negligence into the case and thereby confused the jury is similarly without merit. The cited language could have had no effect other than precisely the opposite of what the plaintiff now contends, for it explicitly removes the issue of negligence from jury consideration. We note that a copy of the instructions was given to the jury to consider in their deliberations and that the trial judge admonished the jury to refer to the written instructions if they did not remember the court’s oral recitation. It is thus implausible in the extreme that this language could have had the precisely opposite effect from its clear import, and we will not find it reversible error in the absence of a showing of prejudice. The plaintiff also contends that the court erred by giving instruction number 14 to the jury. That instruction listed certain traffic laws of the State of Indiana which the decedent was alleged to have broken. We find no merit in the contention that the giving of these instructions either confused the jury or prejudiced the plaintiff by implying that if the decedent had violated traffic laws recovery would be foreclosed. The issue of the validity of the high-speed chase had been placed squarely in issue by the plaintiff’s theory of the case, and the cited laws were relevant to determination of whether the defendant was acting improperly in chasing the decedent. We find no prejudice or confusion in the instruction given. See, e. g., Cavendish v. Sunoco Service, Inc., 451 F.2d 1360, 1367 (7th Cir. 1971). The plaintiff also contends that the court erred by refusing to give plaintiff’s instructions numbers 1 to 26. Fed.R.Civ.P. 51 requires that objections to the refusal to give instructions must be made before the jury retires to consider its verdict, and that the grounds for objection be stated with specificity. The plaintiff’s blanket objection, without stated grounds, made after the jury had retired, must fall on both prongs of the Rule 51 test, and the trial court properly rejected it. See Durant v. Surety Homes Corp., 582 F.2d 1081, 1086 (7th Cir. 1978). The plaintiff’s next assignment of error is that the trial court erred by failing to excuse for cause a prospective juror who had, as a bank trust officer, worked prior to his retirement with other attorneys who were members of the firm which represented all but two of the defendants, including Blake. A trial court had broad discretion in impaneling a jury, Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950), and therefore our review is limited to the determination of whether there was an abuse of that discretion. The trial court vigorously and thoroughly questioned the prospective juror and found to its satisfaction that there was no potential for prejudice. The mere fact that a juror has had some contact or acquaintance with a member of a firm is not a per se basis for exclusion, and the court was within the limits of its discretion in seating the challenged juror. Peerless Insurance Co. v. Schnauder, 290 F.2d 607, 710 (5th Cir.), cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961); see Lane v. United States, 321 F.2d 573 (5th Cir. 1963), cert. denied, 377 U.S. 936, 84 S.Ct. 1340, 12 L.Ed.2d 299 (1964). The plaintiff also contends that the trial court erred in excluding evidence relating to the paternity of the decedent’s illegitimate child, and by refusing an instruction on punitive damages. In light of our ruling above on liability, we need reach neither of these questions, both of which relate solely to the issue of damages. V. Finally, the plaintiff seeks the award of costs and attorney’s fees under 42 U.S.C. § 1988, which by its terms allows the prevailing party in a proceeding to enforce 42 U.S.C. § 1983 a reasonable attorney’s fee as part of the cost. Because the plaintiff has not prevailed in the trial court or on appeal such an award would be inappropriate and is denied. VI. The court has examined such other arguments as made by the plaintiff and finds them without merit. Therefore, and in accord with the foregoing reasons, the judgment is affirmed. . Instruction 24 was given as follows: INSTRUCTION NO. 24 The violation of a person’s civil rights by wrongfully and illegally shooting and killing him as charged by the plaintiff’s complaint as amended involves an intentional act by a person or persons to violate those civil rights; that is in this case, that a police officer’s act which resulted in the death of Byron Richardson must have been intentional or motivated by maliciousness or by a callous disregard for the consequences. In determining whether or not a charged police officer was guilty of an intentional, malicious or callous deprivation of Byron Richardson’s civil rights by intentionally or purposefully shooting at him or intentionally and purposefully killing him, you must consider the then existing circumstances taking into account the acts or actions, demeanor and manner and conduct of Byron Richardson and of every person leading up to and immediately prior to the firing of defendant Blake’s service revolver and whether there then existed any intent of any person of intentionally or purposefully shooting or killing Byron Richardson. If you should find and believe from a preponderance of the evidence that the shooting and/or killing of Byron Richardson by defendant Blake was unintended, and was in fact accidental, that finding by you would warrant your finding for defendant. The mere fact that you may feel or believe that one or more of the police officers was negligent in his handling of the stopping and arrest of Byron Richardson would not permit you to find for the plaintiff and against a defendant. Therefore, you may not determine a verdict for the plaintiff for the death of Byron Richardson under the evidence in this case based upon the legal theory of negligence since it is not an issue for your consideration and negligence does not support the complaint’s theory of willful misconduct. . Similarly, therefore, it was not error for the court to reject the plaintiff’s proffered instruction Number 21, which read: The fact that the defendants had no specific intent or purpose to deprive plaintiffs decedent, Byron Levell Richardson, of his constitutional rights will not absolve them from liability if they did in fact deprive him of those rights. Because we find that instruction 24 properly instructed the jury on the substance of the plaintiff’s recklessness theory, we find no error in the refusal to give this instruction. Brandes v. Burbank, 613 F.2d 658, 668-69 (7th Cir. 1980). . As the plaintiff conceded in his brief and at oral argument, this was not a case where negligence was pleaded or proved, and thus we need not reach any questions presented by Parratt v. Taylor, - U.S. -, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

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

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

UNITED STATES of America, Appellee, v. Tommy SWAREK, Appellant. No. 80-2045. United States Court of Appeals, Eighth Circuit. Submitted March 11, 1981. Decided Aug. 12, 1981. Rehearing and Rehearing En Banc Denied Sept. 14, 1981. Certiorari Denied Nov. 9, 1981. See 102 S.Ct. 573. George W. Proctor, U. S. Atty., Little Rock, Ark., Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., argued, for appel-lee. Patrick H. Hays, North Little Rock, Ark., Samuel A. Perroni, Little Rock, Ark., argued, for appellant. Before HEANEY, HENLEY and McMIL-LIAN, Circuit Judges. HENLEY, Circuit Judge. Tommy Swarek, appellant, was indicted and charged with conspiring to defraud or commit an offense against the Small Business Administration (SBA), an agency of the United States, in violation of 18 U.S.C. § 371. After a jury trial a guilty verdict was returned and judgment entered accordingly. Appellant was sentenced to four years imprisonment, with three and one-half years suspended, and placed on probation for three and one-half years. On appeal he contends that (1) the evidence was insufficient to support the jury’s verdict; (2) the district court erred in admitting certain evidence; and (3) the district court erred in denying him a fourth continuance. We find each of these contentions meritless and affirm the judgment of the district court. The SBA is empowered, pursuant to 15 U.S.C. §§ 681, 687, to license and regulate investment companies organized to provide financing for small business concerns. To provide these investment companies financial assistance, the SBA can purchase debentures or stock issued by them. The amount purchased, however, may not exceed a specified percentage of the investment company’s total paid in capital and paid in surplus. This percentage increases when the sum of the paid in capital and paid in surplus is $500,000.00 or more. See 15 U.S.C. § 683(c). In the present case, appellant Swarek and one William R. Smith, Sr. were accused of agreeing to falsely represent to the SBA that the total paid in capital and paid in surplus of Venture Capital, Inc. (Venture) exceeded $500,-000.00. “In reviewing a jury verdict on appeal, we are required to view the evidence in the light most favorable to the government, and we accept as established all reasonable inferences to support the conviction.” United States v. Nelson, 603 F.2d 42, 48 (8th Cir. 1979) (citations omitted). With this in mind, we set down the events leading to Swarek’s conviction. Venture is an investment company licensed by the SBA under 15 U.S.C. § 681(d). In the summer of 1977 a majority of its stock was purchased by William R. Smith, Sr. and his son. Prior to this acquisition, Smith, Chairman of the Board at Citizens Bank of Tillar, Arkansas, had become acquainted with appellant Swarek. Citizens Bank had loaned money to several of the many businesses owned by Swarek. Swarek was the sole shareholder of ARK-LA-TEX, a corporation he formed to handle his multifarious business activities. Among ARK-LA-TEX’s claimed assets were a movie entitled “Waterloo” and a non-operating oil refinery. Swarek, apparently wishing to sell both the movie and the refinery, in September, 1977 contacted Jim Feazell and Gene Housley respectively. Swarek told Feazell that he negotiated an approved loan for Venture, and that if Fea-zell would form a corporation to purchase the movie that Venture would provide the financing. Similar representations were made to Housley concerning the purchase of the refinery. With Swarek’s assistance, Feazell formed Arkansas Motion Picture, Inc. (Motion Picture) and Housley formed Oil Cleaning, Inc. (Oil Cleaning). In reality, Swarek was not authorized to negotiate and approve loans for Venture. Nonetheless, both Motion Picture and Oil Cleaning entered into purchase agreements with ARK-LA-TEX contingent on Venture financing. While negotiating with Feazell and Hous-ley, Swarek discussed with Smith the possibility of Venture providing the approximately $400,000.00 needed to finance the proposed sales. At that time Venture’s paid in capital was only $297,000.00. Smith indicated, however, that additional capital sufficient to finance the sales could be raised via a loan from Planters Savings and Trust Bank of Opelousas, Louisiana (Planters). Swarek was attracted by this idea and agreed to assist Smith in securing the loan. On October 21,1977, during the time that Smith and Swarek were negotiating the loan, Venture, Motion Picture and Oil Cleaning each opened a checking account at Planters. Soon after opening these accounts, Motion Picture and Oil Cleaning each wrote an undated check to ARK-LATEX for $200,000.00 and gave it to Swarek. Neither account had funds sufficient to cover these checks at the time they were written and they were held by Swarek. In return for these checks ARK-LA-TEX sold the movie and refinery while retaining a security interest in each asset. Neither security interest was filed on public record until after the SBA began its investigation. On November 2,1977 Smith presented his loan application to Planters’ loan committee. The plan presented by Smith, and developed with Swarek’s aid, was as follows: (1) Planters loans $400,000.00 to Smith personally; (2) Smith uses that $400,-000.00 to purchase 80,000 shares of Venture stock, increasing Venture’s paid in capital from less than $500,000.00 to $697,000.00; (3) Venture then uses the $400,000.00 of new paid in capital by loaning Motion Picture $200,000.00 and Oil Cleaning $200,000; (4) Motion Picture and Oil Cleaning use the money to purchase the movie and the refinery from ARK-LA-TEX; (5) ARK-LATEX then writes a check to Farm and Home Mortgage Co. (Farm and Home), a Swarek corporation, for $400,000.00; (6) Farm and Home then uses the $400,000.00 to purchase a certificate of deposit from Planters; (7) the certificate of deposit and the 80,000 shares of Venture stock are then used to secure the $400,000.00 loan from Planters to Smith. Smith, on November 3, 1977, notified the SBA that Venture was increasing its paid in capital beyond $500,000.00 and wished to apply for funding. On November 7, 1977 Smith’s loan application to Planters was approved. Immediately upon receiving the loan he deposited the proceeds in Venture’s checking account at Planters. Venture then wrote both Motion Picture and Oil Cleaning a $200,000.00 check. Swarek, using the checks he was holding from Motion Picture and Oil Cleaning, then moved the money to ARK-LA-TEX’s checking account. These transactions occurred on the same day, and since all of the accounts were at Planters the money never left the bank; these were paper transactions only. At the request of Swarek and Smith, a loan officer for Planters, in connection with Venture’s application for funding, wrote the SBA that same day informing it that Venture had more than $500,000.00 on deposit in a demand checking account. According to plan, Swarek, on behalf of ARK-LA — TEX, wrote a $400,000.00 check to Farm and Home which used this money to purchase a certificate of deposit at Planters. This certificate of deposit, along with the 80,000 shares of Venture stock, was placed at Planters as collateral for Smith’s loan. Some other facts concerning the above transactions are noteworthy. The loan checks written from Venture to Motion Picture and Oil Cleaning were concealed from Venture President, Charles Sims. Although Sims assisted in completing the funding application and was aware that Venture was increasing its capital, he was not informed of the source of or proposed use of that capital. At the request of Smith and Swarek, Ron Pruner, a Planters’ employee, agreed on November 7, 1977 to act temporarily as Venture Vice President. His only corporate act before resigning on November 18, 1977 was to write the loan checks. Although Motion Picture and Oil Cleaning each gave Venture a promissory note for more than $200,000.00, no payments have ever been made on the loans. Indeed, Swarek at one time told Feazell not to worry about the Motion Picture loan because he would make any payments that came due. Finally, the role played by Farm and Home merits mentioning. Farm and Home was a corporation formed by Swarek in which he placed certain assets to shield them from attachment. It had no bank accounts and transacted no corporate business. Morgan Daniels, the named president of Farm and Home, testified that he had no power in the corporation, and that although he purchased the certificate of deposit it was only upon Swarek’s request. Swarek, who owed Daniels $75,000.00, assured him that purchasing the certificate would enable him to pay the debt. The debt was never paid. On November 18, 1977 Smith and Sims met with SBA officials and presented Venture’s application for funding. The application indicated that Venture had recently received $400,000.00 in paid in capital increasing its total paid in capital to over $500,000.00, of which it was contemplating loaning approximately $200,000.00 to Oil Cleaning. No mention was made of a loan to Motion Picture. Based on the information before it the SBA agreed to provide funding to Venture. Actually, Venture had already, on November 7, 1977, loaned the $400,000.00 to Motion Picture and Oil Cleaning. These loans were not reported to the SBA until April, 1978. Two disbursements were made by SBA, the first on December 23, 1977 for $150,-000.00 and the second on January 13, 1978 for $547,000.00. This money was deposited in Venture accounts at Smith’s bank, Citizens Bank of Tillar, Arkansas. Soon after the money was deposited, most of it was loaned to provide financing for individuals purchasing moribund businesses including carpet businesses owned by Swarek; the money ultimately settled in Swarek’s hands. Smith desired ultimately to have a central distribution system for carpet stores. In March, 1978 Smith’s loan package was moved from Planters of Opelousas to Planters Savings and Trust of Haynesville, Louisiana. He failed to repay the loan when it became due in September, 1978. Although a small interest payment was made in January, 1979 the principal due was not forthcoming and in April, 1979 Planters of Haynesville satisfied the loan by cashing the certificate of deposit purchased by Farm and Home and given as security. Swarek was convicted of conspiring to defraud an agency of the United States, the SBA. He now contends that the evidence presented at trial was insufficient either to establish a conspiracy or to show that its object was to defraud the SBA. We disagree. To establish a conspiracy the government must prove an agreement between the alleged conspirators. United States v. Wrehe, 628 F.2d 1079, 1082 (8th Cir. 1980). “The agreement need not be formal or express and may consist of nothing more than tacit understanding.” United States v. Pintar, 630 F.2d 1270, 1275 (8th Cir. 1980) (citations omitted). Frequently, there will be no direct evidence of the agreement. The existence of the agreement may [, however,] be shown by circumstantial evidence, including the conduct of the conspirators and any attending circumstances, particularly circumstances indicating that the defendants “acted in concert to achieve a common goal.” Id. (citations committed). Swarek claims he made no agreement with Smith to defraud the SBA, and in support makes the following allegations: (1) he did not aid in the preparation of the funding application; (2) he did not sign the funding application; and (3) he did not present the funding application to the SBA. Since he was not a Venture official, Swarek’s failure to sign the application was to be expected. As to the application’s preparation, there was strong circumstantial evidence that Swarek assisted in preparing the letter sent from Planters to the SBA. Swarek’s failure to present the application shows only that he did not completely execute the conspiracy’s object, not that he did not agree to it. “The Government need not show that [a conspirator] participated in every transaction . . . .” United States v. Kates, 508 F.2d 308, 310 (3d Cir. 1975) (footnote omitted). Swarek spent a considerable amount of time in Opelousas, Louisiana negotiating the loan which provided Venture with capital sufficient to qualify for increased SBA funding. He was the ultimate beneficiary of that funding. Nonetheless, he now contends to know nothing about the application which led to that funding. The jury obviously found this contention incredible, and we agree. The evidence shows a close and concerted working relationship between Swarek and Smith, and suggests that Swar-ek was more than a knowledgeable bystander to Smith’s activities. We cannot say that the government clearly failed to establish an agreement beyond a reasonable doubt. See Burks v. United States, 437 U.S. 1, 16 n.10, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). Swarek also contends that the representations concerning Venture’s capital were not fraudulent. The government argues that the representations were fraudulent because the capital was not bona fide but, rather, illusory. We find the government’s argument persuasive. Smith’s investment in Venture of the proceeds from the Planters’ loan might in some circumstances result in a legitimate increase in capital. Consideration of all the circumstances in the present case, however, indicates otherwise. The “invested” loan proceeds were ultimately returned to the lender, albeit via a circuitous route comprised of numerous suspect transactions. A reasonable inference from the evidence presented is that the return of the proceeds was planned at the time the loan was made. Unlike legitimate paid in capital, the loan proceeds were placed in the Venture coffers only to acquire SBA funding, and when that was accomplished the money was returned. See United States v. Nemelka, Nos. 79-1393, 79-1654, 79-1655, slip op. at 3-7 (10th Cir. Nov. 13, 1980). A pattern of deceit surrounded the funding application; checks were concealed from Sims, Swarek was less than candid with Daniels about the purpose of the certificate of deposit, and Swarek requested Feazell to make untrue statements to the SBA investigators. This pattern when considered with Swarek’s self-dealing and other circumstantial evidence is sufficient to support a finding of fraud. See Pintar v. United States, 630 F.2d at 1278. Swarek’s remaining contentions merit only brief discussion. He alleges that the district court erred by admitting evidence indicating that misrepresentations were made concerning the movie and refinery sold by ARK-LA — TEX and by denying a request for a fourth continuance. Swarek argues that the contested evidence was of little or no probative value and that its potential prejudice was great. “The trial court has broad discretion in determining the relevance of proposed evidence, and the admission or exclusion of such evidence will be overturned on appeal only if the court has abused its discretion.” United States v. Williams, 545 F.2d 47, 50 (8th Cir. 1976) (citations omitted). “In weighing the probative value of evidence against [its potential for prejudice], the general rule is that the balance should be struck in favor of admission.” United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980) (citation omitted). The contested evidence was part of a pattern of deceit which was relevant in establishing Swarek’s intent to defraud. Any potential prejudice was diminished by a limiting instruction, and we cannot say the district court abused its discretion by admitting the evidence. We may reverse the denial of Swarek’s requested fourth continuance only upon “a showing of a clear abuse of discretion.” United States v. Taylor, 542 F.2d 1023, 1025 (8th Cir. 1976) (citation omitted), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977). He argues that since Smith, his fellow conspirator, was granted a continuance due to physical and mental infirmities, he should have been given a continuance as well. More than one year had elapsed since the indictment, and it was not clear when, if ever, Smith would be able to stand trial. In these circumstances, the district court did not feel Smith’s need for a continuance justified granting Swarek a continu-anee. We cannot say the district court clearly abused its discretion in making this determination. Furthermore, as evidenced by counsel’s capable handling of the case, nothing would have been gained by a fourth continuance and no prejudice resulted from its denial. See United States v. Wolf, 645 F.2d 665, 668 (8th Cir. 1981). After consideration of the parties’ briefs and the record before us, we affirm the judgment of the district court. . The Honorable Elsijane T. Roy, United States District Judge, Eastern and Western Districts of Arkansas. . Swarek and Smith were indicted and charged as codefendants. Smith, due to physical and mental infirmities, for a time was unfit to stand trial. For that reason, the charges against him were severed and tried at a later date. The present appeal concerns only the charges against Swarek. . 13 C.F.R. § 107.1001(b) (1980) provides that “[n]o funds may be provided to a Small Concern ... [d]irectly or indirectly, for purchasing stock in or otherwise providing capital for a Licensee, or to repay an indebtedness to accomplish such purpose.” The money loaned by Venture ultimately was used to repay an indebtedness incurred by Smith in purchasing Venture stock. . We find no merit to any contention that the district court erred in severing codefendants Swarek and Smith. Though a joint trial of conspirators is generally favored, the granting of a severance is within the sound discretion of the district court. United States v. Milham, 590 F.2d 717, 722 (8th Cir. 1979). In the circumstances, we cannot say that discretion was abused.

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 15. 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 15? Answer with a number.

ANDERSON COUNTY BOARD OF EDUCATION, Plaintiff-Appellant, v. NATIONAL GYPSUM COMPANY and United States Gypsum Company, Defendants-Appellees. No. 85-5474. United States Court of Appeals, Sixth Circuit. Argued April 1, 1986. Decided June 5, 1987. Rowland and Rowland, Knoxville, Tenn., Michael Y. Rowland (argued), for plaintiff-appellant. Darryl G. Lowe (argued), Erma G. Greenwood, Knoxville, Tenn., for defendants-appellees. Lawrence T. Hoyle, Jr., Richard M. Bernstein (argued), Philadelphia, Pa., for National Gypsum. Before KEITH, NELSON and BOGGS, Circuit Judges. BOGGS, Circuit Judge. The Anderson County Board of Education (“the Board”) installed asbestos ceiling material manufactured by defendants in the ceilings of its schools constructed in 1967. In 1983, the Board became concerned about the asbestos ceilings, removed them, and sued defendants for the cost of removal and replacement and other damages. After a trial on theories of negligence, strict liability, misrepresentation and fraud, a jury found for the defendants on all counts. Before trial, a count based on a warranty theory was dismissed because the Tennessee four-year statute of limitations had run (Tenn.Code Ann. § 47-2-725) (1979). Plaintiff attacks this ruling, and a ruling excluding from evidence documents concerning National Gypsum’s state of mind in 1976 and 1978. We AFFIRM. I Around 1967, the Anderson County Board of Education constructed two high schools. “Sprayolite” and “Audicote,” products of the defendants-appellees National Gypsum Company and United States Gypsum Company, respectively, were applied to the ceilings of the schools; the products contain asbestos. In 1983, the Board, upon the recommendation of various government agencies and consultants, had the ceiling material (and the carpets) at the schools removed and replaced. The Board subsequently filed this action in the Circuit Court for. Anderson County, Tennessee, seeking the cost of removal and replacement, and punitive damages. The action alleged causes of action in breach of warranty, negligence, strict liability in tort, fraud and misrepresentation, and a claim for punitive damages. The action was removed to the United States District Court for the Eastern District of Tennessee. By consent of the parties, all matters in the case were dealt with by United States Magistrate Robert Murrian. The defendants moved to dismiss the complaint as to all causes of action. The motion was granted with respect to the Board’s claim of breach of warranty because, the magistrate ruled, the claim was barred by Tennessee’s four-year statute of limitations applicable to warranty actions under the Uniform Commercial Code. Tenn.Code Ann. 47-2-725 (1979). The remaining causes of action were subsequently tried and the jury found for the defendants on all counts. During the course of the trial, the Board attempted to introduce into evidence three internal memoranda of National Gypsum, dated 1976 and 1978, relating to a company policy discouraging the use of asbestos products in the workplace at National Gypsum. The magistrate excluded the memoranda from evidence. II The first issue before us is whether the Board is exempt from the statute of limitations. The common law rule, enacted into positive law in Tenn.Code Ann. § 28-1-113 (1980), is that the statute of limitations does not operate to bar suits brought by the sovereign. The issue in this case is the extent to which the Board participates in the immunity of the state. The “immunity” to the operation of the statute of limitations in this case is not the conventional immunity of the sovereign to suits brought against it. Instead, this immunity operates to leave open forever the ability of the state (and of such state agencies as the University of Tennessee, Dunn v. W.F. Jameson & Sons, Inc., 569 S.W.2d 799 (Tenn.1978)) to sue on any cause of action. The reason for the rule has been stated as being to ensure “that the public should not suffer because of the negligence of its officers and agents____” City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill.2d 457, 71 Ill.Dec. 720, 722, 451 N.E.2d 874, 876 (1983) (quoting State ex rel. Board of University School Lands v. Andrus, 671 F.2d 271, 274 (8th Cir.1982)). However, it has never been the law that all subordinate organs of the state have the full scope of immunity that the state does. In Tennessee, the rule has been stated that the statute does not run when the case rests on “a demand arising out of, or dependent upon, the exercise of governmental functions as an arm of the state, ... [but] the statute does run against a county or municipality in respect of its claims or rights which are of a private or corporate nature and in which only its local citizens are interested, as distinguished from [those] in which all the people of the state are interested.” Jennings v. Davidson Co., 208 Tenn. 134, 344 S.W.2d 359, 361-62 (1961) (quoting Wood v. Cannon Co., 25 Tenn.App. 600, 603, 166 S.W.2d 399, 401 (1942)). The Tennessee cases do not give the clearest guidance directed to our specific situation. There is no one definition of “governmental function” applicable to all situations. Based on our review of Tennessee law, however, we hold that the immunity does not extend to every action of a subordinate body such as a county, municipality, or school board, even when it can be characterized as acting “in furtherance of a state function.” There must be some direct nexus between the action complained of and the state function. Where, as in this case, the subordinate body is primarily involved in normal commercial activity not inextricably connected to the state function, nor to state rules, regulations, or commands pertaining to that function, the subordinate body does not thereby acquire immunity from the statute of limitations in bringing suit. We recognize the matter is not free from doubt, and further recognize that the State of Tennessee may alter or clarify this situation. Cf. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945). Nonetheless, our best reading of how Tennessee would interpret its law is in accordance with the holding of the district court. Ill Tennessee courts have found subordinate bodies to be immune from the statute of limitations because of the functions they were performing. In two cases, the county was recovering for payments made for personal services in caring for the ill or infirm, in effect requiring the discharge of a debt owed as a matter of citizenship rather than of normal commercial transaction. The existence of these obligations of the county was specifically laid down by state statute. Central Hospital for Insane v. Adams, 134 Tenn. 429, 183 S.W. 1032 (1916); Jennings v. Davidson Co., 208 Tenn. 134, 344 S.W.2d 359, 361 (1961). In at least two cases, subordinate bodies were found to have no immunity when attempting to enforce claims that would merely enrich the local county coffers to no particular state benefit. City of Knoxville v. Gervin, 169 Tenn. 532, 89 S.W.2d 348, 351 (1936); Wood v. Cannon Co., 25 Tenn.App. 600, 603, 166 S.W.2d 399, 401 (1942). We recognize that the distinctions discussed in these cases are not totally compelling. On the one hand, it is clear that any activity of a subordinate government can legitimately be called a state function. Indeed, a subordinate body cannot function except in accordance with grants of powers by the state. Cf. Reed v. Rhea County, 189 Tenn. 247, 225 S.W.2d 49, 51 (1949). Thus, a blind adherence to the “state function” analysis would vitiate the “private or corporate nature” exception, expressed in Jennings, 344 S.W.2d at 362. On the other hand, the cases do not consistently follow a distinction between instances where the money sought to be recovered would flow ultimately only to the county and its taxpayers as opposed to flowing to the state and its taxpayers. See Nelson v. Loudon Co., 176 Tenn. 632, 144 S.W.2d 791, 792 (1940). Taken as a whole, however, the cases can be read to require that some state interest recognized by state legislation must be at stake beyond that of simply having more money in the hands of a subordinate body. In our case, there is no such broader interest of state government that was substantially promoted. The state did not mandate, prevent or affect the type of roofing to be purchased. See Dunn v. W.F. Jameson and Sons, Inc.,. 569 S.W.2d 799, 801 n. 13 (Tenn.1978). Whether the roofing should be replaced or not was not the subject of any state mandate. No state monies are substantially affected, whether the roofing was or was not replaced, and whether this suit is successful or not successful. The state formula for allocation of funds to counties does not depend on the financial status of the county as reflected by whether it is successful in this suit or any other suit for money damages. Under these circumstances, we do not believe that the rule barring application of the statute of limitations, which is valid for the State of Tennessee, should be extended to each and every commercial transaction of a subordinate body of the state, no matter how tenuous the link with state purposes. Where the actual activity which is the basis of the suit is not a necessary part of carrying out a state function, then the action is of a private or corporate nature to the locality, and subject to the statute of limitations. It would seem most odd if a merchant, selling paper clips or hot dog rolls could plead the statute of limitations when sued by the county administrative office or the county road department, but not when sued by the county school board. We do not believe the rubric of “state function” need reach so far. The most recent Tennessee cases do not shed clear light on this issue but certainly do not contradict our holding. Dunn v. W.F. Jameson and Sons, Inc., 569 S.W.2d 799 (Tenn.1978), held that a claim was not time-barred when based on a contract made by the Regents of the state university, a group which is clearly a direct arm of the state, not a subordinate body such as a county or municipality. The Tennessee Court of Appeals, in the unpublished opinion of City of Knoxville v. Celotex Corp., Case No. C.A. 573 (Dec. 30, 1983), confronted a similar issue and found that immunity to the statute of limitations did not apply. While this case has no precedential value in Tennessee courts, it is certainly an indication that a Tennessee court, with the question squarely before it, did not find it obvious that the immunity would apply. Because of a flurry of asbestos litigation in the eastern part of Tennessee, this issue has been addressed a number of times in the court below. United States Magistrate Murrian has consistently held that the State’s immunity does not extend to subordinate bodies in this type of action. Loudon County v. United States Gypsum Co., Case No. CIV 3-83-329 (E.D.Tenn. Oct. 5, 1983) ; Johnson County v. United States Gypsum Co, 580 F.Supp. 284 (E.D.Tenn. 1984) . Judge Hull initially upheld such rulings, although it appears in a more recent opinion that he may have changed his mind. Johnson County v. United States Gypsum, — F.Supp.-, Case No. CIV 2-83-262 (E.D.Tenn. Sept. 26, 1985). Kelley v. Metropolitan County Bd. of Educ., 615 F.Supp. 1139 (M.D.Tenn.1985), which the appellants submitted after the arguments were concluded, is not to the contrary. There the district court held a municipality was not barred by the statute of limitations in a civil rights case on the ground that it was acting as an arm of the state government in carrying out its specifically educational policies. Indeed, the learned chief judge of the United States District Court for the Middle District of Tennessee carefully distinguished “matters of curriculum, funding, teacher qualifications and compensation, and other academic considerations,” calling them “state concerns.” 615 F.Supp. at 1152. On the other hand, he noted that “maintenance of the physical structure and land of county schools is a local concern and function.” Ibid. We agree. Based on the analysis presented in this decision, we find the result reached below in this case to be the sounder one, and we correspondingly AFFIRM. IV Plaintiff’s second claim is not so troublesome. The excluded evidence consisted of memoranda of National Gypsum officials recommending against the internal use of certain asbestos containing materials in National Gypsum operations. The district court did not abuse its discretion in refusing to admit these documents. They are clearly irrelevant to National’s state of mind in 1967, relating only to conditions a decade later. Vroman v. Sears Roebuck & Co., 387 F.2d 732, 737-38 (6th Cir.1968); Christner v. E.W. Bliss Co., 524 F.Supp. 1122, 1125 (M.D.Pa.1981). They are no more relevant to the quality of the ceiling materials involved. They do not relate directly to those materials, and are certainly only peripheral to the masses of direct testimony introduced on the issue of the quality of the ceiling material. The court below was well within the bounds of its discretion, and we AFFIRM.

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

UNITED STATES of America, Plaintiff-Appellant, v. William E. MARTIN, Defendant-Appellee. No. 11763. United States Court of Appeals Seventh Circuit. March 27, 1957. Samuel D. Slade, Robert S. Green, Dept, of Justice, Washington, D. C., John B. Stoddart, Jr., U. S. Atty., Springfield, 111., George Cochran Doub, Asst. Atty. Gen., for appellant. John Radley, Peoria, Ill., for appellee. Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges. FINNEGAN, Circuit Judge. The government sued to recover treble damages from Martin, defendant, who sold a used press brake in excess of the ceiling price prescribed by regulation of the Office of Price Stabilization. Sitting without a jury, the district court found for Martin on the government’s complaint, filed December 23,1952, holding in substance, that the application to him of Ceiling Price Regulation 80 conflicted with § 402 (k) of the Defense Production Act, 50 U.S.C.A.Appendix, § 2102(k). Appealing from that adverse judgment the government contends the district court exceeded its jurisdiction by interpreting Regulation 80 as to invalidate it. Lying behind that contention is a chain of reasoning built upon the theory that jurisdiction to pass upon the validity of ceiling price regulations is vested exclusively in the Emergency Court of Appeals. The government is urging that Regulation 80 covers Martin’s transaction hence there was no question of its applicability before the court below and its refusal to enforce the Regulation equates to a judicial determination that the Regulation is invalid; that validity of Regulations are matters within the province of the Emergency Court of Appeals. Actually the district judge purported to hold that Regulation 80 could not apply to the Martin sale without colliding with the Herlong Amendment, 50 U.S.C.A.Appendiix, § 2102(k) and by that reasoning arrived at the following conclusions of law: “(1) There is no question as to the validity or constitutionality of any law or regulation before the Court. The sole question for determination by the Court is whether Ceiling Price Regulation 80 should be construed or interpreted to apply to the transaction complained of. The question of the interpretation or construction of Ceiling Price Regulation 80 is a proper matter for determination by this Court, and this Court has jurisdiction of the subject matter of this suit and of the parties hereto “(2) Ceiling Price Regulation 80 states upon its face that it to be interpreted in connection with the pertinent provisions of the Defense Production Act, including the section above quoted (Section 2102(k), Title 50, U.S.C.A., as amended). It is therefore necessary to reconcile said Regulation with the intent and spirit of said Act as amended. “(3) Congress in passing the amendment to the Defense Production Act quoted above, on July 31, 1951, intended to prohibit thereby the promulgation of any regulation thereafter which was not so drafted as to allow to ‘sellers of material at wholesale or retail’ their customary markup. “(4) The regulation in question, Ceiling Price Regulation 80, was promulgated on October 8, 1951, after the effective date of the above amendment, and it contains a formula for fixing ceiling prices of cornmodities without any reference to cost or customary markup. As applied to manufacturers disposing of used machine tools, and others who were not ‘sellers at wholesale and retail’ the regulation is in accord with the letter and spirit of the Defense Production Act, as amended, but if its scope were to be extended by interpretation to apply to ‘sellers at wholesale and retail’, it would be in conflict with the letter and spirit of the Defense Production Act, as amended, “(5) Interpreting Ceiling Price Regulation 80 in connection with Defense Production Act, as amended, under which it was issued, it had no application to the transaction complained of, and the defendant, William E. Martin, did not commit any violation of the Act.” _ ,, f;he stipulated facts R appears that Martin engaged m purchasing used machinery and machine tools for resale af1wa® a sf!er °f matenaI at/°tal1 wholesale within the meaning of the relevant statute.” Martin bought a used Ohl press brake (a used machine tool) in February, 1951 at auction in Omaha for ?2,400. He spent $1,268.44 loading and transporting that machine to Kewanee, Illinois. «At the time he (Martin) purchased it there was no governmental regulation purporting to fix any maximum price, although the Defense Production Act was then in effect. On October 8, 1951, Ceiling Price Regulation 80 was promulgated to become effective October 13, 1951. This Regulation purports to fix maximum prices for certain sales of used machine tools. Under this Regulation, any machine tool, the age of which could not be determined, was presumed to have been made before 1916, and the ceiling price fixed was 15% of what such a machine would cost new. Defendant has not been able to establish the age of the press brake.” In December, 1951, Martin received an offer of $6,500 for the brake plus certain dies (valued at $2,142.-00) not subject to price ceilings. The offer was accepted and the sale made to one A. F. Moul for $6,500 f. o. b. Kewanee, Illinois. Two other relevant phases of the stipulation follow: “It is agreed that there was no wilful violation of the law or regulation by Defendant, William E. Martin, in making this sale. This is the only sale by this Defendant of which any complaint is made. “It is agreed that the Court shall determine whether or not Ceiling Price Regulation 80 and the Defense Production Act of 1950, as amended July 31, 1951, apply to the transaction in question. If the Court finds that this Act and Regulation are not applicable, then the Complaint shall be dismissed. If the Court finds that the Regulation is applicable, it is agreed that the damages assessed shall be determined by the Court but shall not exceed the sum of $2,474.-09. This amount is the full amount of the alleged overcharge, based upon an alleged ceiling price of $1,883.-10 (being 15% of the cost of the press brake new), and allowing to the Defendant the actual value of the dies sold with the press brake, in the amount of $2,142.00.” Ceiling Price Regulation 80, as originally promulgated October 8, 1951 covered all sales of used tools. On July 31, 1951 the following Herlong Amendment, 50 TJ.S.C.A.Appendix, § 2102(k), to the Defense Production Act became effective: “(k) No rule, regulation, order or amendment there shall hereafter be issued under this title [sections 2101-2110 of this Appendix], which shall deny to sellers of materials at retail or wholesale their customary percentage margins over costs of the materials [or their customary charges] during the period May 24, 1950, to June 24, 1950, or on such other nearest representative date determined under section 402(c) (subsection (c) of this section), as shown by their records during such period, except as to any one specific item of a line of material sold by such sellers which is in short supply as evidenced by specific government action to encourage production of the item in question. No such exception shall reduce such customary margins of sellers at retail or wholesale beyond the amount found by the President, in writing, to be generally equitable and proportionate in relation to the general reductions in the customary margins of all other classes of persons concerned in the production and distribution of the excepted item of material. “Prior to making any finding that a specific item of material shall be so excepted, or as to the amount othe reductions in customary margins to be imposed upon retail and wholesale sellers of such items, the President shall consult with representatives of the affected retail and wholesale sellers concerning the basis for and the amount of the exception which is proposed with respect to any such item. “For purposes of this section a person is a ‘seller of a material at retail or wholesale’ to the extent that such person purchases and resells an item of material without substantially altering its form; or to the extent that such person sells to ultimate consumers except (1) to government and institutional consumers and (2) to consumers who purchase for consumption in the course of trade or business.” We again point out that through their stipulation these parties agreed Martin “was * * * a seller of material at retail or wholesale within the meaning of the statute * * * ” Regulation 80, heretofore unchallenged, encompasses all transactions of the class consisting of “sales of used machinery.” Martin asserts, in substance, that the Herlong Amendment excluded his transaction from membership in the class set up by Regulation 80 because he was a seller at retail or wholesale. The district court measured the Regulation by the Amendment and excluded Martin’s transaction. That ruling was tantamount to invalidating Regulation 80 by delimiting the class of transactions it purported to cover. Schneer’s Atlanta v. United States, 5 Cir., 1956, 229 F.2d 612, is a review of a judgment awarding the Government treble overcharges made by Schneer’s through sales of watches in excess of ceiling prices fixed under the Defense Production Act of 1950, 50 U.S.C.A.Appendix, § 2061 et seq. Because it viewed the Emergency Court of Appeals as the tribunal for passing upon validity of the relevant price regulations, the district court asserted its own want of jurisdiction, refused to pass on the question of validity, stating that Schneer’s challenge would have to be urged in the Emergency Court. The Fifth Circuit reversed the judgment and remanded the case to the district court with directions to pass on the question of the validity of the regulations. Recently the Supreme Court handed down the following per curiam reported as United States v. Schneer’s Atlanta, Inc., 1957, 352 U.S. 978, 77 L.Ed. 380, 1 L.Ed.2d 363: “The judgment of the Court of Appeals is reversed and the judgment of the United States District Court for the Northern District of Georgia is reinstated. Defense Production Act of 1950, § 706(b), 64 Stat. 817, 50 U.S.C.App. § 2156(b).” We obtained the briefs and record in Schneer’s case, and have read the Fifth Circuit’s opinion in light of them. Significantly, the Fifth Circuit concluded, 229 F.2d 612, 616, the jurisdictional question by saying: “Matters may now follow their normal and ordinary course, in which the court which is called upon to enforce a regulation shall have the opportunity to pass in the first instance upon its validity.” Regardless of whether the judicial process below, in this case, is labelled as “interpretation” or “applicability,” we think validity of Regulation 80 was at stake; that is a matter for the Emergency Court under Defense Production Act of 1950, § 408(c), as amended, 50 U.S.C.A.Appendix, § 2108. The order appealed is reversed and remanded for proceedings consistent with this opinion. Reversed and remanded. Though the litigants have thus stipulated their action they could not confer jurisdiction on the district court

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

Will Parks CLAY, Appellant, v. UNITED STATES of America, Appellee. No. 15996. United States Court of Appeals Fifth Circuit. Dec. 11, 1956. Paul M. Conaway, Thomas A. Jacobs, T. Reese Watkins, Macon, Ga., for appellant. Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., Frank O. Evans, U. S. Atty., Robert B. Thompson, Asst. U. S. Atty., Macon, Ga., for appellee. Before HUTCHESON, Chief Judge, and BORAH and BROWN, Circuit Judges. John R. BROWN, Circuit Judge. The question is not whether conviction of a person whose prior criminal record, reputation and papers in his possession at the time of seizure, support the view that he may be a gambler engaged in the numbers racket, outweighs the risk to freedom if the search and seizure of these papers is sustained. If the search and seizure was unreasonable, then, according to constitutional standards, the fundamental law established to protect the good and the bad, the wicked and the righteous, from the historical hazards to genuine liberty, compels corrective judicial action if properly invoked. Clay is no stranger to us, or to the law, or to excesses in the process of search and seizure in law enforcement. Concerning the papers seized January 28, 1954, he sought, by motion, to suppress their use in future prosecution which, save for a Complaint filed before the Commissioner, Fed.Rules Crim.Proc., rule 3, 18 U.S.C.A., has not been instituted by Information or Indictment, Fed. R.Crim.P. 7. Whether the supposed crime was of misdemeanor or felony grade, cf. Mosely v. United States, 5 Cir., 207 F.2d 908, certiorari denied 347 U.S. 933, 74 S.Ct. 626, 98 L.Ed. 1084; Contreras v. United States, 5 Cir., 213 F.2d 96; Clay v. United States, 5 Cir., 218 F.2d 483; Reynolds v. United States, 5 Cir., 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801, it was one involving merely the failure to pay an occupation and excise tax as a gambler and the possible carrying on of that business before registering and paying the stamp tax. United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754; Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475. The significant thing is that the taking, placing or handling of wagers or conducting a lottery is not a Federal crime unless registration and payment of taxes is not made. Transportation, as such, is not a crime. All of this is important since the mere act of a known gambler driving an automobile on a public highway will not justify an officer forcing him to stop to be searched or arrested for a suspected violation of the Federal Wagering Tax Act. And yet that is all that occurred on January 28. Revenue Agents in two passenger cars, one privately owned, one Government owned but with no identification of its official status discernible to passing or overtaken vehicles, took up a concealed vigil on the Macon-Columbus highway about a mile east of Hester’s store-residence in anticipation that, following his frequent pattern, Clay would go there for a brief stay about 2:00 o’clock in the afternoon. Clay passed this point in his Buick, driving in a normal manner at moderate speed. The two cars fell in behind him, but on attempting to overtake and stop him, Clay, saying that he was apprehensive of highway robbery, shot up his speed to 60 to 70 m. p. h., allowed his ear to slip partially over in the left-hand lane across the center stripe to force the Agents’ cars back, but almost immediately returned to his own lane. The Government car came abreast of Clay and the Agent pounding on the right-hand front door of the Government ear (with a pistol, Clay said; by bare hand according to the Agent) ordered Clay to pull over. As Clay commenced to obey this peremptory command, the Government car cut in front of him so that, fore and aft, he was hemmed in by Revenue Agents. When the vehicles stopped, an Agent ordered Clay out of his car and then, with the first show of gentle concern, asked if they could search the car, to which Clay offered no objection. Within about two minutes, the search was made but revealed nothing. While Clay was standing near the front fender, the Agent-in-Charge, “asked him if he would permit us to search his person.” Clay, without answering, reached in his pocket, took out some money, laid it on the fender of the automobile, and, about that time, while he was fumbling with his shirt pocket which contained a package of cigarettes, a small Manila-backed booklet in the shirt pocket was moved sufficiently for the Agent-in-Charge to see that it contained a row of three-digit numbers in pencil. Reacting as though he had found a strike, the Agent 'then announced that Clay was under arrest, demanded possession of the booklet, and after admitting that he had no search warrant, forceably took it from Clay’s hand. The further search of Clay’s person uncovered five adding machine tapes (called lottery ribbons) in the upper lapel pocket of his coat. One Agent reached in a pocket and brought out a roll of bills totaling $1,438.00. Later that day, he was taken before the Commissioner on a verified Complaint of one of the Agents. This analysis then brings the case to the point where the Government, for mis- . demeanor or felony, not only may but must find support for the seizure in the pre-January 28 activities. For there was nothing about his conduct on the highway that day, at that time, to indicate that he was then in the act of committing either misdemeanor or felony. He might have been going to, or coming from, a place where he had or would accept a wager. He might have been going to a place to pay over, or receive, money to or from the banker or pickup man in a lower or higher echelon of this vicious hierarchy. But at the moment he was not taking or receiving, collecting or paying wagers. And if the act of driving from one place to the other was to “be engaged in or carry on [the] trade or business * * 26 U.S.C.A. § 3271; Lewis v. United States, supra, this was not evident or discernible from what could then be seen or known. Moring v. United States, 5 Cir., 40 F.2d 267; Emite v. United States, 5 Cir., 15 F.2d 623. Nothing discernible to the senses taught reasonably that crime was then being done until the Agent saw, and demanded, the lottery booklet. But this was too late, for the strong arm of the law had peremptorily stopped this traveler and placed him under evident, immediate command of Government officers. Clay was not only permitted to submit to this demonstrated show of force, but maintenance of law and order, avoidance of outright physical challenge of the authority of a policeman, a decent respect for the settlement of such controversies by orderly judicial processes, all justified Clay’s acquiescence in their commands and requests, United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210, 220; United States v. Rembert, D.C.S.D.Tex., 284 F. 996. A citizen was forceably run down and driven off the highway. If officers have the right to interfere with that essential pursuit of a nation of automobilists, it must be based on what is known or reasonably believed before the commandeering starts. To allow justification to rest on discovery after intrusion would permit “the Government * * * to justify the arrest by the search and at the same time to justify the search by the arrest,” Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. 367, 370, 92 L.Ed. 436, 442. United States v. Frisch, 5 Cir., 140 F.2d 660, 662. So, whether, as claimed by the Agents, the little booklet came to light as Clay was apparently complying with a mere request to disgorge his personal effects or, as claimed by him, it was done by peremptory command, if it was unlawful to stop him, the “conclusion is inescapable that the same unwarranted and unlawful force and compulsion, which attended and vitiated the stopping of the automobile * * *, attended and vitiated * * *,” Ray v. United States, 5 Cir., 84 F.2d 654, 656, the production of the lottery booklet, the arrest and seizure of the other papers; Ward v. United States, 5 Cir., 96 F.2d 189. Was the knowledge of prior events sufficient to make an apparently innocuous use of a free highway, Emite v. United States, supra, a telltale of a past or current crime ? The inquiry eliminates the question of misdemeanor since, for the misdemeanor to have been committed in the presence of the officer, it is necessary that “the officer has evidence by his senses sufficient to induce a belief in him * * * ” United States v. Rembert, supra [284 F. 1006]; McBride v. United States, 5 Cir., 284 F. 416, certiorari denied 261 U.S. 614, 43 S.Ct. 359, 67 L.Ed. 827, and what’ they could see or sense was the movement of a car on a highway. Examining it from the standpoint of a felony, there are two points: (1) did the officers actually believe that a felony had been committed, and (2) was there a reasonable probable ground for that conclusion ? The first is of extreme importance for if an officer does not in fact at the moment entertain a genuine good faith belief of this fact (or legal conclusion), then the action taken is itself unlawful because lacking in the indispensable ingredient which excused the issuance of a warrant by a magistrate. Johnson v. United States, supra; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. All that protects the citizen from unwarranted intrusion is the expectation that an officer, zealous and energetic as he may be, will nonetheless feel restrained by law and act only where his belief is genuine and in good faith. If he may act without it, liberty is exposed to the peril of a police state in which high-handed acts of the policemen consciously undertaken in indifference to law, may yet turn out to be justified by the leisurely post-event inquiry and investigation made, not by the officer, but by Government lawyers defending his acts. If that is so, then all of the acts of these officers indicated that they did not entertain a belief that a felony had been committed. First, nothing they saw that day, gave them the right to draw an inference not held the day before. Despite the long and careful surveillance, the plan for the trap of January 28 was evidently thought to be essential to them in the making of a successful case. Running Clay off the highway, peremptorily ordering him about, subjecting his automobile to a “voluntary” search was in no way precipitated because of flight, hot pursuit, or the likely loss of evidence. Indeed, if the knowledge of prior events justified inferences of likely violation of the Wagering Tax Act, the pattern of Clay’s actions demonstrated that near. 2:00 o’clock each day, he would make this trip toward Hester’s store and shortly return to Macon. Nothing about Clay’s conduct on January 28 or evidence gleaned from other sources, confidential or otherwise, afforded any basis for believing that this was the last and only chance to catch him. The trap was, therefore, presumably set to obtain evidence, the absence of which made their case and belief incomplete. Nothing new having come from the event of January 28 except the fruits of the forceable search, the failure to apprehend this well-known, dissolute, small-time gambler at his known residences undermines any possible claim that at that time they concluded that he had committed a felony. And this was corroborated beyond all doubt by the contemporaneous Complaint filed before the Commissioner (see note 6, supra). At most, it charged only a misdemeanor since an allegation that the accused failed to register and failed to purchase an occupational tax stamp is completely lacking in the essential allegation of the commission of affirmative acts, as distinguished from a mere negative omission, in the establishment of a scheme having as its purposeful objective the deliberate and intentional evasion of the taxing act, Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418; Clay v. United States, supra; Contreras v. United States, supra; Mosely v. United States, supra; cf. Reynolds v. United States, supra. And if it is assumed that the officers genuinely entertained a belief of probable cause, these same factors make these circumstances insufficient to justify a belief that a felony, not a previous misdemeanor, had taken place. Of course, we are dealing here not with the sufficiency of evidence to sustain a felony conviction, or problems of criminal pleading, cf. Reynolds v. United States, supra; Clay v. United States, supra; Contreras v. United States, supra; Mosely v. United States, supra, or that which would permit a magistrate to determine whether probable cause existed in advance for warrant of arrest or to search. We are dealing with that situation in which the person claiming the right to draw the inference is the law enforcing officer whose zeal unfits him as a safe, impartial arbiter. As our decisions indicate, drawing the line between § 2707(b) and 2707(c) is difficult at best. To change the very act which is a misdemeanor into a felony requires a charge and proof of facts which “ ‘lifts the offense to the degree of felony.’ Spies v. United States * * *,” and “ * * * some affirmative act on the part of the defendant showing an attempt to evade the imposition of the tax ® * and conduct, “ * * * the likely effect of which would be to mislead or' conceal * * Clay v. United States, supra [218 F.2d 485, 486]. And since, “The addition of mere legal conclusions, unaided by essential allegations of fact to support [this inference] will not supply this ingredient,” Clay v. United States, supra, then the mere assertion now by the seizing officers of the legal conclusion that the circumstances known to them (note 7, supra) amounted to an attempt to evade is insufficient. To justify arrest for a felony, the officer must have grounds for believing the existence of facts of “ * * * the knowledge and intent required as elements of the felony under the statute,” United States v. Di Re, 332 U.S. 581, 592, 68 S.Ct. 222, 227, 92 L.Ed. 210, 219. Finally, while the ease and practicability of obtaining the warrant of arrest or to search, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, is no longer an invariable rule of thumb, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, availability of the safeguards afforded by an impartial, judicial magistrate is a factor bearing on reasonable, probable cause. That the subject of the search is an automobile (or an occupant) does not let down the bars altogether, Shurman v. United States, 5 Cir., 219 F.2d 282, certiorari denied 349 U.S. 921, 75 S.Ct. 661, 99 L.Ed. 1253; Rent v. United States, 5 Cir., 209 F.2d 893, especially where the automobile is not the present means of flight, of likely destruction of evidence, or where the transportation itself is not a crime. Paradoxically, all of the information now claimed to have justified the conclusion that a crime had been committed demonstrated that Clay’s actions followed an almost fixed, habitual pattern of time, place and movement. In that, the use of the automobile was purely incidental. And, viewed from the vantage of knowledge held either January 27 or the forenoon of January 28, there was nothing to indicate that procuring warrants of arrest or search would thwart, or impede the efficient enforcement of law, or intrude upon the “ * * * judgment of the officers as to when to close the trap * * United States v. Rabinowitz, 339 U.S. 56, 65, 70 S.Ct. 430, 435, 94 L.Ed. 653, 660. Apparently the officers thought the time to close in was the afternoon of January 28. In planning the catch, they were confident that he would be at his usual spots. And, of course, he was. If the officers thought that it would be best to apprehend him on the highway to, rather than from, Hester’s store, or on the road instead of at Hester’s store or his Macon house or place of business, resort to a Commissioner would have required no alteration in their plan of attack. Compliance with and enforcement of laws intended to secure basic freedoms to the citizen is as much the duty of the officer, Miller v. United States, 5 Cir., 230 F.2d 486, as is the successful making and prosecution of cases under those Federal statutes committed to his agency. Reversed. . Conviction for tho alleged offense of July 8-9, 1953, involved in this case only indirectly as a claimed basis for the officers’ belief (see note 7, infra) that Clay was engaged in the lottery business, was reversed by us, Clay v. United States, 5 Cir., 218 F.2d 483, (January 1055) long after the events of January 28, 1954, involved herein. However, submitted simultaneously below were motions to suppress the fruits of the January 28, 1954 seizure, as well as the earlier search and seizure of July 8, 1953, which the District Court held to have been unreasonable, following which the Information for the July 8 offense was dismissed. . Chapter 27a — Wagering Taxes, § 471 (a), Act October 20, 1951, 26 U.S.C.A. §§ 3285 through 3298 (now recodified 26 U.S.C.A. §§ 4401 through 4423). Under § 3285 an excise tax of 10% is imposed on all wagers, which expressly includes lotteries. Section 3290 requires the payment of an annual $50.00 occupation tax for a person “who is liable for [the] tax * * * or who is engaged in receiving wagers for or on behalf of any person so liable.” Section 3291 requires registration. Section 3292 expressly incorporates, amongst others, Section 3271 that “No person shall be engaged in or carry on any trade or business mentioned in this chapter until he has paid a special tax therefor in the manner provided in this chapter.” Section 3294 covers penalties establishing a fine of $1,000.-00 to $5,000.00 for persons liable for the tax who do not pay it and subsection (c), for willful violations, expressly incorporates 26 U.S.C.A. § 2707 (Firearms Tax Statute) with the following gradation of penalties: ' 2707(a) “Any person who willfully fails to pay, collect, or truthfully account for and pay over the tax imposed by section 2700(al, or willfully attempts in any man-car,.to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty of the amount of the tax evaded, or not paid, collected, or accounted for and paid over, to be assessed and collected in the same manner as taxes are assessed and collected. No penalty shall be assessed under this subsection for any offense for which a penalty may be assessed under authority of section 3612.” 2707 (b) “Any person required under this subchapter to pay any tax, or required by law or regulations made under authority thereof to make a return, keep any records, or supply any information, for the purposes of the computation, assessment, or collection of any tax imposed by this subehapter who willfully fails to pay such tax, make such returns, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than one year, or both, together with the costs of prosecution.” 2707(c) “Any person required under this subchapter to collect, account for and pay over any tax imposed by this subchapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this subchapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.” . Of course, carrying or transporting “in interstate or foreign commerce any paper, certificate, or instrument purporting to be or to represent a ticket, chance, share, or interest in * * * a lottery * * * ” is a specific offense, 18 U.S. O.A. § 1801. Bat the lottery here was a purely Georgia affair. Numerous laws provide that where a Federal tax in respect of goods, or commodities, etc., has not been paid, the goods and other property may be subject to forfeiture: e. g., in 1930 Code 20 U.S.C.A. §§ 3321 (b), 2803(f), 2806(c), 2806(f) (1), 3173, 3072, 2876, 3720(a), 3322, 3323(b), 3793(a) (2); 18 U.S.C.A. § 545; and, under 49 U.S.C.A. §§ 781, 782, transportation and carriage of contraband by vessel, vehicle, or aircraft subjects the vehicle to forfeiture; but “contraband” is statutorily defined to comprise only (1) narcotic drugs, (2) firearms subject to the National Firearms Act, (3) forged, altered, counterfeit coins or securities of the United States or foreign governments and paraphernalia for counterfeiting. Whether driving an automobile in some phase of the Numbers lottery business, cf. United States v. Lane Motor Company, 344 U.S. 630, 73 S. Ct. 459, 97 L.Ed. 622; United States y. One 1951 Cadillac, D.C.E.D.Mo., 125 F.Supp. 661, brings the vehicle under 26 U.S.C.A. § 3116 (1954 Code may be broader, 26 U.S.C.A. § 7302) which provides, “It shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this part, or the internal-revenue laws, * * or which has been so used, and no property right shall exist in any such liquor or property * * * ”, it is clear that this statute, if it declares a “crime” at all, does not prescribe either a misdemeanor or felony grade to such act of use or possession. By its terms the right of seizure requires a search warrant under Title XI, Act June 15, 1917, 40 Stat. 228, since repealed, Act June 25, 1948, c. 645, § 21, 62 Stat. 862, now covered by 18 U.S.C.A. §§ 2235, 1621, 2231, 2234, 3105, 3109, Rule 41, Fed.R. Grim.P. which establishes the usual test of a misdemeanor in the officer’s presence or knowledge of a past felony. As the only penalty is forfeiture, the “unlawful” use or possession is neither misdemeanor nor felony and no basis exists for the exemption, United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L. Ed. 59, 64, for a valid warrant. . From the Officer’s point of view, the arrest did not come until after discovery of the booklet. The Agent-in-Oharge testified: “A. After I noticed that [the booklet], I told Mr. Olay that he was under arrest; and asked him to hand me that booklet. He asked me if I had a search warrant and I told him no. “Q. You put him under arrest before you asked for this book. A. Yes, sir. When I observed those numbers, I placed him under arrest at that time, and asked him to hand me the book * * *. The moment that I observed these 3-digit numbers on this small book; * * * that’s when I placed him under arrest.” The Government’s brief states: “ * * Clay * * * was actually seen by the officers with a lottery book in his pocket before he was arrested * * . On the hearing of the motion to suppress, the Revenue Agents, qualifying as experts, demonstrated how the gross collections less the pickup man’s 25% commission tied into sheets and entries in the Manila booklet which also contained entries of the “Bug” (winning) number for January 26, 27, 28, 1954, based on the particular digits shown in the daily newspapers for those dates on the bond sales and stock sales in the New York market. . The Complaint is headed “Complaint for Violation of USC Title 16 [sic] Section 3290, 3291(a)” stating: “That on or about January 28th, 1954 * * * Clay did (here insert statement of the essential facts constituting the offense charged) fail to register as a person engaged in the business of accepting wagers prior to engaging in such business of accepting wagers, and did fail to purchase an occupational tax stamp as required by law * * . The Agents knew that ten years before, 1944, in a Macon Municipal Court, Clay was convicted of a misdemeanor charge of violating a Georgia law on lotteries; and knew, of course, of his conviction (see note 1, supra) for the July 8, 1953, occurrence at which time they had seen him in possession of lottery paraphernalia. Clay was reputed by law enforcing agencies to be engaged in the lottery business and, from confidential informants, United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; King v. United States, 9 Cir., 1 F.2d 931, 932; Cannon v. United States, 5 Cir., 158 F.2d 952, certiorari denied 330 U.S. 839, 67 S Ct. 980, 91 L.Ed. 1286, they had been told that Clay was using Hester’s store-residence on the Macon-Columbus highway as a place to check the daily settlement of receipts, disbursements, and the like. Special surveillance started September 22, 1953. At 1:30 p. m. Clay was seen leaving the Macon address at which the July 8, 1953 search and seizure, ultimately held unreasonable, was made. On leaving he placed a package in his black Oldsmobile and proceeded west on Columbus highway. The next day, September 23, 1953, two Agents, stationed on the Columbus highway near Hester’s store-residence, saw Clay approach in his black Oldsmobile. Shortly this car was found parked at Hester’s store. Clay returned to Macon 4:00 p. in. On October 7, 1953, two Agents were concealed on Columbus highway near Hester’s store. At 2:05 p. m. two Negroes driving a Buick, parked on the highway, opened up the turtlebacked trunk of the car, and shortly, Clay arrived in his Oldsmobile. He took a paper bag from the Oldsmobile, put it in the trunk of the Buick, and then left in the Buick driving in the direction of Hester’s store where the Buick was soon found parked and where it remained until about 4:00 p. m. On January 21, 1954, two Agents, concealed near the vicinity of Hester’s store, saw Clay drive his Buick going in that direction, returning a few minutes, later driving toward Macon. January 26, 1954, these same two Agents, at the same advantage point, saw Clay driving in the direction of Hester’s store (but which was not visible to them) returning about five minutes later going toward Macon. January 27, these two Agents took posts keeping the Columbus highway and Hester’s store under separate view. At 2:45 Clay driving his Buick from Macon proceeded toward Hester’s store where he arrived 2:55, parked his car, remained three minutes, and then departed for Macon, passing the highway vigil in a few minutes. The Agents at Macon kept their supervisor in Atlanta posted. He came to Macon January 28, 1954, and set up the catch. He had verified from the District Collector’s records that no registration had been filed by Clay or gambler’s occupation tax paid. The record' is silent on search of Government revenue records to determine whether the' 10% excise tax was being, or had been, paid. . The Agent-in-Charge was pressed on cross examination: “Q. In other words, you were detaining Clay, that was the purpose; you meant to stop Mm and detain him and see what he had, didn’t you? That’s what you meant to do when you did stop him? A. (no .answer) “Q. Mr. Register, you had no other reason to stop Mm except to search him, did you. A. We stopped him, based upon all the information we had at hand, which I have recited here. “Q. . I know but you didn’t know he ■ had this book in Ms pocket, of course, did you? A., We didn’t know specifically what he had. “Q. And you didn’t know he had these tapes, these adding machine tapes, did you? A. No, sir. “Q. And you didn’t see them in Ms pocket when you made him pull over to the side of the road and. stop? A. We had reason to believe that he had lottery paraphernalia on him. “Q. I mean Mr. Register, you didn’t know he had it on him though; you hadn’t seen it? A. No, sir, I hadn’t seen it. “Q. It wasn’t known to any of your senses, through any of your senses, that he had this material on Mm? A. No, sir. . “Q. But you were going to stop him and- see what he had on him; isn’t that true? A. Yes, sir, we. were attempting to enforce the law. * . * ,* * * “Q. You meant to stop him for the purpose of searching him and his car, didn’t you; that’s what you did it for. Now that’s a fair question, isn’t it, Mr. Register? A. Ves, sir.” . Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440: “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. * * * When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent * * . On the hearing, none of the Agents testified that, immediately prior to the curbing of Olay’s car, he believed that Clay had committed a felony. At most it. was that Clay had violated the law — a statement inadequate where distinction' . between the grades of crime is decisive- and where, unlike the more patent offenses of physical acts, the shading between felony and misdemeanor is so delicate. . United States v. Di Re, 332 U.S. 581, 584, 587, 68 S.Ct. 222, 223, 224, 92 L.Ed. 210, 215, 216, points out that Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and its progeny, Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, concerned search and seizure made under provisions of the National Prohibition Act, 27 U.S.C.A. § 1 et seep, in which “Transportation of liquor in violation of that Act subjected first the liquor, and then the vehicle in which it was found, to seizure and confiscation, and the person ‘in charge thereof’ to arrest * * So that “ * * * the Carroll decision falls short of establishing a doctrine that, without such legislation [National Prohibition Act], automobiles nonetheless are subject to search without warrant in enforcement of all federal statutes. This Court has never yet said so.” The Court seems plainly to limit the Carroll ease (and our similar ones, e. g., Cannon v. United States, 5 Cir., 158 F.2d 952, certiorari denied 330 U.S. 839, 67 S.Ct. 980, 91 L.Ed. 1286); cf. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, to situations in which transportation is itself a crime: “We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”

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?

Andrew L. ESSARY, Plaintiff-Appellant, v. The CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellee. No. 79-1662. United States Court of Appeals, Seventh Circuit. Heard Jan. 15, 1980. Decided April 22, 1980. George C. Pontikes, Chicago, 111., for plaintiff-appellant. Ronald J. Cuchna, Chicago, 111., for defendant-appellee. Before CUMMINGS, WOOD and CUDAHY, Circuit Judges. CUMMINGS, Circuit Judge. Plaintiff filed this lawsuit on December 15, 1977, seeking in Count I $1 million from the Railroad Yardmasters of America (Yardmasters) and the same amount in Count II from the Chicago and North Western Transportation Company (C&NW). The complaint charged that C&NW wrongfully discharged plaintiff from his position as a yardmaster and that the Yardmasters thereafter failed to pursue his claim against C&NW as required by the collective bargaining agreement between the union and the railroad. On February 2, 1978, Judge Bua dismissed the action against C&NW for failure to state a claim upon which relief could be granted, but subsequently vacated that judgment and agreed to reconsider the issue of C&NW’s liability. On February 27, 1979, Judge Bua again dismissed the allegations against C&NW for failure to state a claim. When the district judge further denied plaintiff’s motion to alter or amend that ruling, plaintiff appealed. We affirm. With the plaintiff’s well-pleaded allegations taken as true for purposes of the motion to dismiss, the record shows that on May 15, 1974, while an acting yardmaster for C&NW, plaintiff was involved in a shooting incident in which one of his friends was fatally wounded. After the incident, plaintiff was hospitalized and placed under medication. He was later charged with the shooting and ultimately pleaded guilty to involuntary manslaughter. Reacting to plaintiff’s inability to work, on May 22,1974 C&NW served him with a notice of hearing, accusing him of a dereliction of duty. After a postponement requested by the Yardmasters, which under the collective bargaining agreement represented all C&NW yardmasters, the hearing took place in July 1974 and resulted in plaintiff’s discharge effective August 1. Although Rule 19 of the collective bargaining agreement between the Yardmasters and C&NW imposed a duty on the Yardmasters to appeal the discharge decision within 30 days to the highest officer designated by the railroad for that purpose, the union failed to do so despite its assurances to plaintiff that it was pursuing his claim. A subsequent appeal to the appropriate railroad officer by the United Transportation Union, of which plaintiff was a member, was denied for failure to file within the 30 days allowed by Yardmasters’ Rule 19. After discovering that no Yardmaster appeal was pending, plaintiff filed an ex parte appeal with the National Railroad Adjustment Board (NRAB), seeking a hearing on his claim against the C&NW. On December 11, 1975, the NRAB dismissed the petition for a lack of jurisdiction stemming from plaintiff's and Yardmasters' failure to file his administrative appeal on the property under Rule 19 of the C&NW-Yardmasters’ contract. Plaintiff thereafter petitioned the district court to set aside the NRAB decision, naming the NRAB and C&NW as defendants. Citing System Federation No. 30 v. Braidwood, 284 F.Supp. 607, 611 (N.D.Ill.1968), for the proposition that a dismissal for lack of jurisdiction by the NRAB is an award on the merits, Judge Grady found that plaintiff had failed to allege any of the three alternative grounds set forth in 45 U.S.C. § 153 First (q) as required for district court review of such an award. Accordingly, he dismissed the petition with prejudice for failure to state a claim upon which relief could be granted. Plaintiff did not appeal this decision, opting instead to file the instant suit in the district court. Count I of the new complaint charged the Yardmasters with a breach of its duty of fair representation in failing to pursue the appeal on the property under Rule 19 of the contract. Count II presented a claim of wrongful discharge against C&NW. C&NW moved to dismiss the latter count, citing res judicata and failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure as grounds. Noting that Union Pacific R. Co. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460, precludes a “common-law remedy after an adverse determination of [the] grievance by the Adjustment Board,” and that under Braidwood the NRAB decision was an award on the merits, Judge Bua dismissed the allegations against C&NW. This appeal followed. This ease presents three related questions for our consideration. First, should Judge. Grady’s decision dismissing plaintiff’s petition to set aside the NRAB’s ruling that plaintiff’s NRAB claim was barred for want of exhaustion of his administrative remedy on the property prevent any further litigation of the merits of the discharge in the instant suit under the doctrine of res judicata or collateral estoppel? Second, even if res judicata and collateral estoppel do not apply, was the NRAB decision on lack of exhaustion of remedies sufficiently “on the merits” to preclude further litigation of plaintiff’s claim? It is uncontested that under Union Pacific R. Co. v. Price, supra, an NRAB decision on the merits will bar a common-law action for wrongful discharge in the district court. Finally, if plaintiff’s suit is barred under Price, does the Railway Labor Act thereby violate plaintiff’s right to a jury trial and the constitutional guarantees of due process and equal protection? We address these questions seriatim. At first blush, Judge Grady’s decision in plaintiff’s prior action to set aside the NRAB’s award would seem under res judicata to preclude any further action here. Under ordinary circumstances, a decision like Judge Grady’s to dismiss a complaint with prejudice for failure to state a claim will operate as such a bar to a later suit upon the same cause of action. Phillips v. Shannon, 445 F.2d 460, 462-463 (7th Cir. 1971); see also Hall v. Tower Land and Investment Co., 512 F.2d 481, 483 (5th Cir. 1975); Glick v. Ballentine Produce, Inc., 397 F.2d 590 (8th Cir. 1968). For res judicata to apply, however, the new cause of action must be essentially the same as the old, whereas here the new complaint differs substantially from the petition in the prior action. In the original proceeding before Judge Grady plaintiff petitioned to set aside the NRAB’s decision based on exhaustion, in effect challenging the NRAB’s unwillingness to hear his claim. The instant suit, by contrast, rests on a complaint raising the merits of plaintiff’s discharge and attempts to bypass the NRAB’s award. In the first action, Judge Grady anticipated the Supreme Court’s decision last Term in Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 99 S.Ct. 399, 58 L.Ed.2d 354, where the Court specifically held that a party may challenge an NRAB decision that an action is untimely only on the basis of the three grounds set forth in 45 U.S.C. § 153 First (q) (note 3 supra). In the instant action, plaintiff is seeking to go beyond Sheehan, arguing that an NRAB decision that failure of a claimant to exhaust his remedy on the property deprives it of jurisdiction, even if not ordinarily reviewable under the statute, does not preclude a later common-law suit on the merits in the district court. For this reason, plaintiff’s complaint here differs substantially from his prior action so that res judicata technically does not apply. Such a characterization of the two actions may be said simply to elevate form over substance. If, for example, the NRAB’s decision on exhaustion were characterized, as Judges Bua, Grady and Marovitz suggested it should be, as an award on the merits, then Judge Grady’s refusal to set aside that decision was tantamount to a finding that no federal court grounds exist for plaintiff to avoid the NRAB’s decision dismissing his action against C&NW, whatever the NRAB’s reason for that dismissal. That plaintiff has now styled Count II of his federal court action as a direct complaint against C&NW rather than another petition to review the NRAB award does not alter its substance as a challenge to the NRAB result, and Judge Grady’s earlier decision would appear to dispose of plaintiff’s action here. Viewed in this light, the question whether res judicata applies essentially reduces to the substantive question whether an NRAB decision that a claim must be dismissed for want of exhaustion of remedies is sufficiently a decision on the merits to preclude, under Union Pacific R. Co. v. Price, supra, a later common-law action on the merits of the claim. Notwithstanding the inconclusive result of our consideration of the res judicata issue, it should be noted that Judge Grady concluded that the NRAB award in this case was an award “on the merits.” Exhibit B to Record Item 3 at p. 2. As a result, it could be argued that collateral estoppel should preclude any further litigation of the question whether the NRAB award finally disposed of the substance of plaintiff’s claim. It is unclear, however, whether plaintiff’s failure to appeal Judge Grady’s decision regarding the grounds for reviewing an NRAB award should estop plaintiff from challenging Judge Grady’s implicit characterization of that award. Thus rather than rely on such a procedural device for disposing of this case, we prefer, as did Judge Bua below, to consider directly the proper characterization of the NRAB award. As noted above, both Judges Grady and Bua relied on Judge Marovitz’s opinion in System Federation No. 30 v. Braidwood, 284 F.Supp. 611 (N.D.Ill.1968), for the proposition that the NRAB’s dismissal of plaintiff’s claim for want of jurisdiction was a decision on the merits. From that conclusion it is a short step to dismissal of this complaint, for plaintiff has not alleged any of the three statutory grounds for challenging such an award (see note 3 supra). Without discussing Braidwood, plaintiff nevertheless argues that in several analogous situations a dismissal for want of jurisdiction is not the equivalent of a dismissal of a party’s substantive claims. Again, however, plaintiff’s argument threatens to allow form to replace substance, for the NRAB’s characterization of its action as a dismissal on jurisdictional grounds is arguably a mere fortuity. The Board could just as easily have described its award as a dismissal for failure to state a claim cognizable under the contract in that the requisite exhaustion was lacking. As such, plaintiff’s analogies would be inapposite and the NRAB’s action would appear to be one on the merits. In substantive terms, the NRAB has rendered a complete decision on an issue involving an application of a collective bargaining agreement to the situation at hand. Such a decision is a decision on the merits (see Barrett v. Manufacturers Ry. Co., 326 F.Supp. 639, 646 (E.D.Mo.1971), affirmed, 453 F.2d 1305 (8th Cir. 1972)), and thus further review of the NRAB award is barred by Price. Furthermore, although the statement in Braidwood equating a dismissal for want of jurisdiction with an award on the merits might be characterized as dictum, recent Supreme Court decisions up to and including Union Pacific R. Co. v. Sheehan, supra, support the Braidwood rule in practice. In Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95, the Court held that the Railway Labor Act requires a railroad employee alleging a violation of a collective bargaining agreement to submit his claim for initial consideration by the NRAB. Thereafter in Sheehan, a case originally filed in state court but dismissed under Andrews for initial NRAB consideration, the Court held that the plaintiff could not seek district court review of an NRAB decision that the action was untimely unless plaintiff could assert one of the three grounds specified in 45 U.S.C. § 153 First (q). Plaintiff now contends that these two decisions do not bar an action contesting the merits of the claim in the district court, but that was the very type of action dismissed in Andrews. Sheehan and Andrews do not directly address the present issue. But it would make no sense for the Supreme Court to require initial consideration by the NRAB and then to limit review of an NRAB decision on timeliness to the three statutory grounds and yet permit this plaintiff to bring a suit on the merits in the district court. Andrews speaks of NRAB consideration as an exclusive remedy (405 U.S. at 325, 92 S.Ct. at 1565), and Sheehan nowhere suggests that the upholding of an NRAB decision barring a claim for exhaustion alters this general rule of exclusivity. Such a holding would in fact reduce the effect of Andrews and Sheehan to an empty exhaustion requirement, not only providing no penalty for failing to exhaust in a timely fashion, but also rewarding dilatory plaintiffs with access to a judicial forum. Far from suggesting such anomalous results, the Court in Sheehan indicated that its ruling derived from a substantive concern about the need for finality in NRAB awards. That concern argues strongly against permitting a suit here. To put it differently, such a concern indicates that an NRAB award dismissing an action for exhaustion should, for purposes of the Act, be viewed as an award on the merits. Since we find that plaintiff’s suit here is barred by the earlier determination of the NRAB, we turn now to plaintiff’s allegations that this result violates his constitutional rights. These allegations are totally without merit and can be disposed of briefly. As a result of the 1966 amendments to the Act, no disparity rising to the level of a constitutional violation any longer exists between the treatment of employers and employees under the Act. See 45 U.S.C. § 153 First (p) and (q). Plaintiff has meanwhile failed to demonstrate how the Railway Labor Act procedure established by Congress for disposing of claims arising from a collective bargaining agreement differs from the judicially-created procedure for disposing of arbitration awards. Being a reasonable substitution for a jury trial, neither procedure would be deemed to violate plaintiff’s Seventh Amendment rights, especially since the Act supplies ample safeguards in 45 U.S.C. § 153 First. Brotherhood of Railroad Trainmen v. Denver & R.G.W.R. Co., 370 F.2d 833, 836 (10th Cir. 1966), certiorari denied, 386 U.S. 1018, 87 S. Ct. 1375, 18 L.Ed.2d 456. Finally, plaintiff’s assertion that he lacks the special judicially-cognizable claims available to women and minorities under Title VII of the Civil Rights Act of 1964 and similar legislation may raise equal protection concerns, but these concerns relate to Title VII and not to the Railway Labor Act which primarily confers on the NRAB power to settle grievances and disputes over the application or interpretation of collective bargaining contracts (45 U.S.C. § 153 First (i)). As a result, these and plaintiff’s other constitutional arguments supply no reason for overturning Judge Bua’s dismissal of the allegations against C&NW contained in Count II of the complaint. Judgment affirmed. . Plaintiff was not a member of the Yardmasters but was represented by them apparently because of his status as an acting yardmaster. Plaintiffs duty of fair representation claim against the Yardmasters is still pending below and hence the Yardmasters are not a party to this appeal. . In his brief, plaintiff asserts that the railroad also provided such assurances. No such allegation as to the railroad appears in the complaint below. . 45 U.S.C. § 153 First (q) provides in pertinent part: “(q) If any employee or group of employees, or any carrier, is aggrieved by the failure of any division of the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any of the terms of an award * * *, then such employee * * * may file in any United States district court * * a petition for review of the division’s order. * * * The court shall have jurisdiction to affirm the order of the division or to set it aside, in whole or in part, or it may remand the proceeding to the division for such further action as it may direct. On such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order. * * *»’ . Judge Bua did not rule on the question whether res judicata barred plaintiff’s suit, although that issue had been presented to him. . See System Federation No. 30 v. Braidwood, supra, for Judge Marovitz’s arguably similar ruling. . This case does not present a situation such as in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, where the Supreme Court stated that notwithstanding exclusive jurisdiction in an arbitrator under a collective bargaining agreement, an employee could sue in district court if he could show that his union violated its duty of fair representation in failing to pursue his claim before the arbitrator. In that case, the Court required not only that the union’s refusal be wrongful, but also that the union have sole power to invoke the stages of the grievance procedure. Plaintiff here has not alleged that the contract gave the union sole power to pursue his grievance, and 45 U.S.C. § 153 First (i) provides that he himself may appeal to the NRAB, as in fact he ultimately did. In addition, in Vaca, the employee had a separate statutory basis for his suit and the requirement of deference to arbitration was judicially created. Here, by contrast, the employee lacks similar rights in the face of a statute that expressly restricts actions challenging NRAB determinations. Finally, this issue has not even been raised by plaintiff and was therefore waived.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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 of America, Plaintiff-Appellee, v. Francis GURULE a/k/a Frank, Defendant-Appellant. No. 74-1810. United States Court of Appeals, Tenth Circuit. Argued Aug. 20, 1975. Decided Sept. 12, 1975. Arthur Bosworth, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty. and Thomas E. Henry, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee. Robert M. Yockrodt, Aurora, Colo., for defendant-appellant. Before LEWIS, Chief Judge, and HILL and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Francis Gurule a/k/a Frank (Gurule) appeals his jury conviction on three counts of distributing and aiding and abetting in the distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The first count of the indictment charged Gurule with having knowingly and intentionally distributed a quantity of heroin, a Schedule I controlled substance, on or about December 13, 1973, in Denver, Colorado. The second and third counts charged Gurule, Cloyd Ronald Penrod and Francisco Luis Ortega Nunez with distributing and aiding and abetting in the distribution of a quantity of heroin and a quantity of cocaine, the latter a Schedule II controlled substance, on or about January 13, 1974, in Denver. Gurule’s defense at trial — and the primary contention he raises on this appeal — was that due to the activities of the drug enforcement agents and their informant, Larry Sawden, he was entrapped as a matter of law. Government witness Agent Lee Phillips, of the Drug Enforcement Administration, testified that he was first introduced to Gurule by informant Larry Sawden on November 17, 1973; that Sawden reputed Gurule to be in possession of and willing to sell cocaine and that a purchase was made from Gurule on the 17th; that after the initial introduction he advised Sawden to “sever all relationships” with Gurule to avoid any problems of entrapment; that Sawden was not present at any of the transactions subsequent to the introduction;" that he directly arranged a meeting with Gurule on December 12, 1973, at which time he was advised by Gurule that a kilo of cocaine had arrived in Denver on December 10th and could be purchased the following weekend; that he attempted to stall negotiations for a purchase at that time because bureau funds were not available; that Gurule then offered to supply a “free sample” of heroin to indicate the quality of the substance which would be available in the future; that on December 13, 1973, he met with Gurule, was given the “free sample” and was informed by Gurule that unless he agreed to purchase eight ounces of cocaine and eight ounces of heroin no further negotiations could be made with Gurule or his source of supply; that the price of the drugs was set at $1,000 per ounce plus an additional $1,000 to be paid to Gurule for his services; that Gurule later advised him that his source had informed him that the “free sample” was of a higher quality than initially indicated; that on January 4, 1974, he contacted Gurule and requested to purchase one kilo of cocaine and one pound of heroin; that Gurule told him he would have to talk to his source; that during a later conversation that same day he was informed by Gurule that the maximum purchase that could be worked out would be 12 ounces of heroin and 19 ounces of cocaine for a price of $35,000 plus an additional $1,000 for payment to Gurule; that they agreed the transaction would take place at 6:30 p. m. on January 13, 1974, at the Arapahoe County Airport; that he and Agent Roller of the Drug Enforcement Agency met Gurule at the airport on the 13th of January but were informed that the purchase had been changed to 23 ounces of cocaine and 12 ounces of heroin and that Gurule was to take them to an unknown location in Denver so they could be observed by his source to determine if they were police; that they were driven by Gurule to the Ranch Room Inn in Denver where the car was parked close to a window with the car’s dome light on while Gurule left the car momentarily; that they observed someone looking at them out of the window and that shortly thereafter Gurule returned to the car with the narcotics in a brown paper bag; that after running a field test they arrested Gurule; and that Agent Roller, together with other agents, then entered the Ranch Room and arrested Penrod and Nunez, the only two persons found inside. Agent Roller’s testimony substantially corroborated the testimony of Agent Phillips relating to the above events which occurred on January 13, 1974. Denver police officer Leuthauser testified that he was conducting a surveillance at the residence of Gurule on January 13, 1974; that on the afternoon of that day he followed Gurule first to the area of the Ranch Room Inn, then to the airport and back to the Ranch Room Inn where he observed Penrod open the back door of the Inn and set down what appeared to be a brown paper bag; and that he then observed Gurule get out of his car, pick up a bag and return to the car. Denver police officer Ramirez testified to the same effect as officer Leuthauser. Special Agent Barter of the Drug Enforcement Administration testified that he had followed Gurule to the vicinity of the Ranch Room Inn on the afternoon of January 13, 1974, prior to the time Gurule had gone to the airport. Detective VanArk of the Boulder County Sheriff’s Department also testified that on the afternoon of January 13, 1974, he followed Gurule to the Ranch Room Inn and observed him park his vehicle there. Gurule testified in his own behalf that he had first met informant Larry Saw-den at the Ranch Room Inn in late October or early November, 1973; that at a subsequent meeting in early November, 1973, Sawden identified himself to Gurule as a Narcotics Agent and solicited Gurule’s help in “cracking” a drug ring; that he reluctantly agreed to cooperate with Sawden because he needed the money Sawden had offered; that he was introduced to Agent Phillips and was told by Sawden that this was the dealer he was to help catch; that at all times he believed Sawden to be a bona fide Agent and Phillips to be a drug dealer; that Sawden had provided him the narcotics he delivered to Agent Phillips on November 17th and December 13th by leaving them in Gurule’s mailbox during the night and that Gurule had left the payoff money from the November 17th sale in the same mailbox to be picked up by Sawden; that the final arrangements for the meeting between Gurule and Agent Phillips on January 13, 1974, were made between Gurule and Sawden; that on January 13, 1974, Sawden advised Gurule that the drugs were to be picked up at the Ranch Room Inn that evening; and that he had not stopped at the Ranch Room Inn prior to his picking up the Agents at the Arapahoe County Airport on January 13, 1974. Gurule further testified that he had never in the past been involved in any narcotics dealings. He also presented witnesses who testified as to his good reputation in the community. The informant, Larry Sawden, was neither presented as a witness by the Government nor successfully subpoenaed by the defense. I. Gurule contends that the defense of entrapment was established, under the facts heretofore recited, as a matter of law since no evidence was presented by the Government to show that he was “predisposed” to commit the offense charged nor was any evidence presented to rebut his testimony concerning the alleged inducement by informant Sawden. Alternatively he argues that the conduct of the Government’s “agent-informant” was so “outrageous” that the Government should not have been permitted to obtain a conviction. We disagree. Entrapment occurs when the criminal design originates with agents of the Government who implant in the mind of an innocent person the disposition to commit the offense. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 19, 77 L.Ed. 511 (1932); United States v. Williams, 488 F.2d 788 (10th Cir. 1973); United States v. Hayes, 477 F.2d 868 (10th Cir. 1973); Martinez v. United States, 373 F.2d 810 (10th Cir. 1967). In enforcing laws pertaining to vice, narcotics and similar violations it is well recognized that officers may employ appropriate artifice and deception to determine illicit activities. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); United States v. Jobe, 487 F.2d 268 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974). When a person is shown to be “ready and willing” to violate the law, providing an opportunity to do so by undercover agents or police is not entrapment. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); United States v. Jobe, supra; United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971), cert. denied, 404 U.S. 855, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Maestas v. United States, 341 F.2d 493 (10th Cir. 1965). Entrapment as a matter of law exists only when there is undisputed testimony which shows conclusively and unmistakably that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion or fraud of a government agent. Sorrells v. United States, supra; United States v. Hodges, 480 F.2d 229 (10th Cir. 1973); United States v. Gibson, 446 F.2d 719 (10th Cir. 1971). If the evidence on the issue is conflicting, the issue of entrapment should be submitted to the jury. Martinez v. United States, supra. Gurule relies upon United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411 (1973) for his contention that he was entitled to a dismissal as a matter of law in light of the Government’s failure to come forward with evidence (i. e., the failure of the Government to produce Sawden at trial) contradicting his testimony that Sawden had represented himself to be an agent, had solicited Gurule’s help to “crack” a drug ring, and had provided the drugs for disbursement, which testimony, standing uncontradicted, clearly evidenced entrapment. The per se rule seemingly established in Bueno —and urged by appellant here — requiring a finding of entrapment when the Government fails to produce the informant-agent to rebut the defendant’s testimony as to entrapment has recently come under attack. See, Judge Weis’ dissent in United States v. West, supra; United States v. Jett, 491 F.2d 1078 (1st Cir. 1974); United States v. Hayes, supra. In United States v. Johnson, supra, we held that even absent the rebutting testimony of the Government’s informant, the jury is entitled to disbelieve the uncontradicted portions of testimony of a defendant alleging entrapment. See also, Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). We fail to see any reason why the jury should be accorded less discretion to disbelieve the defendant’s uncorroborated testimony that he was supplied narcotics by the informant. But see contra, Bueno, supra. Our review of the record indicates that the defense of entrapment was not unmistakably established merely by virtue of Gurule’s testimony and, in light of certain conflicting evidence discussed infra, the issue was properly submitted to the jury. Furthermore, the jury, having disbelieved Gurule’s testimony — as evidenced by the verdict — had before them sufficient substantial evidence, in our judgment, to find beyond a reasonable doubt that Gurule was “ready and willing” to commit the offense charged and had not been supplied narcotics by the Government’s informant. In this regard, we deem the following significant: (a) while Gurule testified that he was in continuous contact with Sawden who directed these series of transactions, Agent Phillips testified that he had instructed Sawden to disassociate himself from the case after the initial introduction and further that on several occasions thereafter Gurule had questioned Phillips as to Sawden’s whereabouts; (b)while Gurule testified that Sawden was his source of supply of narcotics, there was evidence admitted that prior to going to the Airport on January 13, 1974, Gurule had made a stop at the Ranch Room Inn, from which fact the jury might reasonably have inferred — in connection with the later testimony as to Penrod’s involvement — that a meeting between “source” and “dealer” had occurred; that at the Airport on the evening of January 13, 1974, Gurule informed Agents Phillips and Roller that his “source” wanted to look them over prior to consummating the sale — an inexplicable request if Sawden were in fact the “source”; and that eyewitnesses had observed Penrod, on the evening of January 13, 1974, deposit a bag outside the Ranch Room Inn shortly before Gurule picked up a bag containing narcotics in that vicinity — indicating Penrod, not Sawden, was Gurule’s “source”; and (c) while Gurule testified that he had had no previous drug dealings and was, hence, not “predisposed” to commit the offense, Agent Phillips testified that Sawden had reputed Gurule to be a dealer, that Gurule was apparently familiar with the process of “cutting” narcotics, and that Gurule was ready and willing to participate in negotiations and sales following the initial introduction. Assuming that the jury disbelieved Gurule’s testimony as to his innocent participation, as they had a right to do, we have held that such evidence is sufficient to demonstrate “predisposition”. United States v. Johnson, supra; United States v. Hill, 469 F.2d 673 (10th Cir. 1972), cert. denied, 410 U.S. 939, 93 S.Ct. 1400, 35 L.Ed.2d 604 (1973); United States v. Crawford, supra. Evidence, both direct and circumstantial, together with the reasonable inferences drawn therefrom in the light most favorable to the Government may be considered in view of the jury’s verdict. United States v. Abbadessa, 470 F.2d 1333 (10th Cir. 1972); United States v. Yates, 470 F.2d 968 (10th Cir. 1972). A finding of entrapment in this case required a factual determination by the jury based on the weight of the evidence and the assessment of credibility of witnesses. These are exclusive functions of the jury and not those of the appellate court. United States v. Gibson, supra; United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970); Lucas v. United States, 355 F.2d 245 (10th Cir. 1966), cert. denied, 384 U.S. 977, 86 S.Ct. 1873, 16 L.Ed.2d 687 (1966). We hold that the question of entrapment was one of fact for determination by the jury based on conflicting evidence, involving the issue of credibility; that it was properly submitted to the jury; and that the jury finding against Gurule is supported by the record. Furthermore, after a careful review of the entire record before us we hold that Gurule’s uncorroborated testimony does not constitute sufficient proof of “outrageous” conduct on the part of the Government’s agents. II. Gurule asserts that he was prejudiced as a result of the Trial Court’s instruction on entrapment which, he alleges, failed to inform the jury of the burden placed upon the Government once the defense is raised. Preliminarily, we agree with Gurule’s assertion, relying upon United States v. Spivey, 508 F.2d 146 (10th Cir. 1975), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104, i. e., that once the defense is raised the Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped, and that the jury should be informed that the Government must meet this burden. Garcia v. United States, 373 F.2d 806 (10th Cir. 1967). After defining entrapment, the Trial Court instructed: If then the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense in this case, the defendant Gurule was ready and willing to commit the crimes as charged in the indictment whenever opportunity was afforded and the government officers or their agents did no more than offer the opportunity, then the defendant is not a victim of entrapment. If on the other hand, if the evidence in this case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit any offense of the character here charged and did so only because he was induced or persuaded by some officer or agent, then it is your duty to acquit him. (Emphasis supplied). [T.R.Supp., Vol. I, pp. 6-7]. Although the language may possibly have been improved upon, we hold it was clearly implicit in this instruction that the burden of proof was placed upon the Government. The disputed instruction, not objected to at the time it was submitted to the jury, was not erroneous when viewed in light of the entire charge and did not mislead the jury. United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971); Devine v. United States, 403 F.2d 93 (10th Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1599, 22 L.Ed.2d 780 (1969). We hold there was no prejudice to the appellant. We have carefully considered appellant’s other contentions of error and find them to be without merit. Affirmed. . 21 U.S.C. § 841(a)(1) provides: (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; . 18 U.S.C. § 2 provides: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. . Co-defendant Penrod was convicted in the same trial with Gurule but has not joined in this appeal. Charges were dismissed as to defendant Nunez. . See also, United States v. West, 511 F.2d 1083 (3rd Cir. 1975). . Based upon the following colloquy from the record, we find defendant’s contention as to the alleged prejudice resulting from Sawden’s absence at trial to be spurious: [Defense Counsel] I think I should state it was my process server who was attempting to serve Mr. Sawden before the [meeting with Sawden arranged by the Government prior to trial] . . . and then subsequent to the meeting . . I didn ’t care if he was here at the trial or not. (Emphasis added). [The Court] It is your position ... it was immaterial? [Defense Counsel] Yes. (T.R.Supp., Vol. Ill, p. 7) Having failed to exercise due diligence to secure the informer’s presence, Gurule cannot now complain of his absence. United States v. Johnson, 495 F.2d 242 (10th Cir. 1974). . In United States v. Soto, 504 F.2d 557 (5th Cir. 1974) and United States v. Workopich, 479 F.2d 1142, 1146 (5th Cir. 1973), the court adopted the rule that “when the undisputed testimony of a defendant is the sole basis for an entrapment defense, entrapment is not established as a matter of law but rather is an issue for the jury to decide.” The Court’s attempt to rationalize Bueno to this holding is, however, somewhat questionable. See, Weis’ dissent in United States v. West, at footnote 3, supra. . Hearsay, by defendant’s own admission, is admissible to show “predisposition”. . Substantially the same instruction was approved in United States v. Haley, 452 F.2d 398 (8th Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972).

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

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

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 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?

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

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

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

UNITED STATES of America, Appellee, v. FLEMING’S EXPRESS, INC., Defendant-Appellant. No. 74-1105. United States Court of Appeals, First Circuit. Argued Sept. 10, 1974. Decided Dec. 26, 1974. Robert G. Parks, Needham, Mass., for appellant. J. F. Walker, I.C.C., with whom James N. Gabriel, U. S. Atty., and Wayne B. Hollingsworth, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee. Before COFFIN, Chief Judge, MOORE, Senior Circuit Judge, and McENTEE, Circuit Judge. Of the Second Circuit sitting by designation. MOORE, Senior Circuit Judge. This is an appeal from a determination in the District Court of Massachusetts that Fleming’s Express, Inc. (Fleming’s) is guilty of a misdemeanor under the Interstate Commerce Act, 49 U.S.C. Sections 5(4) and 10(1), as a result of its acquisition of Shipper’s Service, Inc. (Shipper’s) without appropriate approval from the Interstate Commerce Commission (ICC). The facts, according to stipulation of the parties, are straightforward and lead to an apparent conflict between Section 5(4) as it has been interpreted since 1933 and Section 5(10) as amended in 1966. Two common carriers, Fleming’s and Shipper’s, agreed to merge through sale of all of Shipper’s stock to Fleming’s. The purchase and sale agreement was entered into on December 8, 1970 and a check representing part payment for the stock, dated December 5, 1970 was presented by Fleming’s to Shipper’s. The parties agree that until December 29, 1970, the “closing date” of the transaction, Fleming’s did not exercise the control or management prohibited by Section 5(4), nor did it have the power to exercise such control. Fleming’s and Shipper’s did not seek the ICC approval provided in Section 5(2) of the Act, 49 U.S.C. Section 5(2), but considering themselves exempt pursuant to Section 5(10), they consummated the stock transfer without such approval. Shipper’s had been affiliated with Acme Transfer and Storage Co., Inc. (Acme) at least from June 29, 1969 to December 16, 1970. On December 16, 1970, Acme voluntarily gave up its authority to act as an Interstate Motor Common Carrier. Neither Fleming’s nor Shipper’s revenues alone or combined with each other exceeded $300,000. for the statutory period. However, when the revenues of Shipper’s include revenues of its affiliate Acme for any of the twelve-month consecutive periods ending six months prior to December 5, December 8, December 16 or December 29, the amount exceeds $300,000. In March, 1973, the government obtained a two count information charging Fleming’s with violation of 49 U.S.C. Sections 5(4) and 10(1) by agreeing on December 8 to consolidate on December 29, 1970 without ICC approval and authorization and by wilfully continuing to control and manage two motor vehicle common carriers without ICC approval and authorization until March 19, 1973. The government and Fleming’s agree that the issue of Fleming’s guilt turns on whether or not Acme’s revenues are to be counted in ascertaining the revenues of Shipper’s for purposes of the Section 5(10) exception. This turns on whether Acme was affiliated with Shipper’s at the relevant time. The sections of the Interstate Commerce Act in question in this litigation allow certain motor common carriers to merge only with ICC approval. Section 5(10) exempts small carriers from Section 5(2) ICC approval process. Originally, the exception exempted carriers which had less than 20 motor vehicles, including vehicles owned by affiliates and vehicles leased or operated by a carrier or affiliate. In 1965 Congress abandoned the vehicle measure and opted for a more reliable gross revenue measure: where the aggregate gross operating revenues of such carriers have not exceeded $300,000. for a period of twelve consecutive months ending not more than six months preceding the date of the agreement of the parties covering the transaction. 49 U.S.C. Section 5(10). Prior to 1965, case law indicated that the words “enter into any transaction” in Section 5(4), triggering the criminal liability, referred to the date of consummation of the merger or control agreements, in other words, the “closing date.” In determining which vehicles to count to ascertain whether or not the old Section 5(10) exemption applied, the closing date was also used. For example, if the carrier had an affiliate on the closing date, the vehicles owned by the affiliate were counted for Section 5(10) purposes. When Congress amended the exemption provision in 1965 to use a gross revenue measure, the current statutory language was enacted providing a time period during which the gross revenue would be measured — 12 consecutive months ending not more than six months preceding the date oí the agreement of the parties covering the transaction. The district court ruled that the proper method of computation of Shipper’s revenue was to ascertain the aggregate amount for Shipper’s and Acme for the specific twelve month period ending six months prior to December 8, 1970, the date on which the consolidation agreement between Fleming’s and Shipper’s was entered into. Appellants argue that the December 29th date, the date of consummation, otherwise called the “closing date” should be used to determine affiliates of Shipper’s, and that Acme, having ceased to be a carrier as of December 16, 1970, would no longer be an affiliate; hence, its revenues for the eighteen-month period should not be counted as those of Shipper’s even though the two companies were affiliated at this earlier time. Appellant’s argument rests heavily on the pre-1965 legislation and its interpretation. Prior to the 1965 amendment the determination of whether or not a company qualified for the exemption, was made through a vehicle count and the' date of consummation was used to determine affiliation. The pre-1965 vehicle count provision did not include any indication of Congressional intent as to when the vehicle count would be done. However, the courts and the ICC uniformly used the date of consummation to maintain consistency with the application of the criminal sanction for “transactions” violating the approval and authorization procedure. Transactions cognizable under the criminal provision were uniformly deemed to be those which gave control of one carrier to another carrier in the absence of ICC approval and authorization. An agreement which envisioned a transfer of control in the future was not considered such a transaction. A recent ICC case which used the date of consummation with the new revenue measure provision may clarify the policy of the Commission and also suggests a logical and desirable application of the provisions of the two types of approval and authorization procedure. Cargo Express, • Inc., Transferee, and Ohio Fast Freight, Inc., Transferor, 116 M.C.C. 387 (1973) involved an application by Cargo Express, a non-carrier, pursuant to Section 312 to acquire a part of Fast Freight, a carrier. Almost a year after the agreement between Cargo and Fast Freight had been signed but prior to consummation, Cargo acquired another carrier, Raub. Cargo argued that Section 5 with its more complicated application procedure did not apply because Cargo only became a carrier by virtue of the acquisition of the carrier, Raub, and hence, it was not subject to Section 5 on the “date of agreement” between Cargo and Fast Freight which occurred almost a year before Cargo acquired Raub. The Commission found that: “It has long been the view of the Commission that the status of the parties as of the date of actual consummation is controlling in determining whether the provisions of section 212(b) or section 5 are applicable.” 116 M.C.C. at 392. See also Davis —Purchase—Lambrecht, 66 M.C.C. 779 (1965); Ship-By-Truck Co., Inc. v. United States, 208 F.Supp. 847, 850 (D.Kansas 1962), aff’d per curiam, 373 U.S. 376, 83 S.Ct. 1312, 10 L.Ed.2d 420 (1963). Commission policy, in accord with Congressional intent in providing two levels of scrutiny for acquisition of control, has been to determine the status of parties, carrier — -non-carrier and large or small ($300,000. plus or minus) on the date of actual consummation, the date when the control and consolidation of economic power in the transportation industry becomes a reality. To do otherwise imposes an unnecessary burden on the agency as well as subjecting the applicants to arbitrary and inconsistent results when Congress clearly intended that smaller carriers be exempt from complex proceedings under Section 5. The lower court decision in this case recognizes the necessity of viewing the provisions of Section 5 as a whole. Judge Caff rey in ruling that the date of agreement controlled the determination of affiliation for Section 5(10) purposes specifically relied on the language “entering■ into any transaction” in Section 5(4). We find that this reliance was misplaced inasmuch as the Section 5(4) language has remained unchanged since 1933 and the courts and the Commission have consistently construed the phrase “entering into any transaction” to refer to consummation. The statutory scheme of Section 5 focuses on the actual direct or indirect control of one carrier by another carrier where one of them is of a certain size as determined by revenue. In this case there is a stipulation that control was not exercised until after the closing. It follows that an interpretation of Section 5(10) using the “closing date” to determine which revenues are to be counted will serve to achieve the necessary scrutiny while exempting the group of transactions which Congress has set apart. For when the Fleming’s — Acme affiliation terminated, Fleming’s was no longer of the size triggering Section 5. While the 1965 amendment did substitute an income measure for the vehicle measure of the Section 5(10) exemption, the overall scheme of the Section 5 scrutiny of consolidation agreements between more powerful carriers remains the same; thus a consistent and equitable interpretation for carrying out Congressional intent requires a reversal of the criminal conviction of Fleming’s Express. . Fleming’s Express, Inc. is a motor vehicle common carrier within the meaning of the Interstate Commerce Act, 49 U.S.C. . 49 U.S.C. Section 5(4) provides: It shall be unlawful for any person, except as provided in paragraph (2) of this section, to enter into any transaction within the scope of subdivision (a) of paragraph (2) of this section, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. It shall be unlawful to continue to maintain control or management accomplished or effectuated after the enactment of this amendatory paragraph and in violation of its provisions. As used in this paragraph and paragraph (5) of this section, the words “control or management” shall be construed to include the power to exercise control or management. 49 U.S.C. Section 10(1) provides: Any common carrier subject to the provisions of this chapter, or, whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this chapter required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this chapter to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this chapter for which no penalty is otherwise provided, or who shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed $5,000 for each offense . Shipper’s Service, Inc. is a corporation which is a motor vehicle common carrier within the meaning of the Interstate Commerce Act, 49 U.S.C. . It is important to note, however, that the date of actual consummation has not been determined solely by the actual transfer of legal title but rather the inquiry focuses on the actual or potential indirect or direct control of one carrier by another: Section 5 is primarily concerned with the transfer of possession or control of operations, and, in determining its applicability, the status of the parties and operations when such transfer is effected is controlling . For such purposes, it is immaterial whether transferee obtains legal or equitable title when the transfer is effected. After delivery of the properties to vendee and the assumption of operations by it . the sale was completely consummated, except for payment of the purchase price. On that date, the parties clearly intended the transaction as a purchase regardless of its form. Execution of a bill of sale would merely serve as evidence of what had already been accomplished. ABC Truck Lines, Inc.-Purchase—D. D. Maner, 38 M.C.C. 507, 510-11 (1942), citing Greyhound Mergers, 1 M.C.C. 342, 351-52 (1936).

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 49? Answer with a number.

UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Bruce Lee BERTA, Defendants Appellant. Nos. 90-5413, 90-5432. United States Court of Appeals, Eleventh Circuit. July 8, 1992. Theodore J. Sakowitz, Federal Public Defender, Gregory A. Prebish, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, Fla., for Small. Kenneth P. Speiller, Miami, Fla., for Kimmons. Dexter W. Lehtinen, U.S. Atty., Frank H. Tamen, Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for U.S. Henry M. Bugay, Miami, Fla., for Berta. Before FAY, Circuit Judge, DYER and CLARK, Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. FAY, Circuit Judge: In this consolidated appeal, William Kim-mons, Howard Small, and Bruce Lee Berta challenge the district court’s application of the United States Sentencing Guidelines. In addition, Small and Kimmons raise claims concerning the validity of their convictions. The appellants were charged with conspiracy to affect commerce by robbery of armored car companies, in violation of 18 U.S.C. § 1951(a), and with related firearms offenses. A jury convicted Kim-mons and Small on all counts, and each received life imprisonment with additional concurrent sentences. In a separate proceeding, Berta pled guilty to all pertinent counts of the indictment and received a sentence of 123 months. We AFFIRM the challenged convictions and the sentences the district court imposed on each defendant. I. BACKGROUND On June 21, 1989, an anonymous source notified the Federal Bureau of Investigation (FBI) that certain unidentified individuals intended to rob an armored car near Bird Road in the southwest section of Miami. The robbery would be committed by men driving a white van with a boomerang-shaped television antenna on the roof. In response to the tip, the FBI established a loose surveillance of several financial institutions in the area. The FBI ascertained the routes and delivery stops of armored cars in the vicinity and watched for unusual activity. The next day, a white van, precisely matching the description provided by the anonymous source, deliberately drove through the parking lot of the Coral Gables Federal Savings & Loan on Bird Road moments after a Wells Fargo armored car had arrived to deliver cash to the bank. The van was registered to William Kimmons. Having been warned by the FBI of the threat, Wells Fargo had conspicuously placed extra guards with shotguns on their armored cars. The white van turned away. In mid afternoon, the van again drove through the parking lot of the bank. It then circled around the block of a second branch bank of Coral Gables Federal Savings & Loan. In the late afternoon, the FBI spotted the van at the Town & Country Mall, where Special Agent Robert Ka-minski observed Kimmons and Howard Small exit the van, Kimmons enter the mall, and Small stand in the parking lot of the CenTrust branch bank for roughly ten minutes. The following day, on June 23, 1989, Special Agent Peter Schopperle observed Small sitting at the entrance of the Las Americas shopping center on Coral Way. Small stayed at the mall for approximately five hours, intermittently surveying the traffic that entered the stores, making calls from a pay phone, walking to a turnpike overpass that overlooked the mall, and watching the arrivals of a Wells Fargo armored car at a Woolworth’s Department Store and a Brinks armored car at Ocean Bank and Flagler Bank mall branches. Over the next five weeks, the FBI observed the defendants repeatedly return to the Las Americas mall. On June 26th, Kimmons and Small arrived at the mall shortly before a Wells Fargo armored car delivered cash to a Woolworth’s store; they watched the delivery from the sidewalk of the mall, standing at opposite sides of the armored car. On July 3rd, Small and Kimmons again arrived at the mall, approximately one minute prior to the arrival of a Wells Fargo armored car. They watched the armored car’s activities at the mall and left approximately fifteen minutes after the car departed. On at least ten more occasions the defendants arrived at the mall solely for the purpose of observing armored cars, police patrols, mall traffic, the parking lot, and potential escape routes. The FBI tracked the defendants to a single story residence at 12350 S.W. 35th Street in Miami. Kimmons had rented the residence continuously since 1987. Bruce Lee Berta, who had joined Kimmons and Small in their activities at the mall, had subleased a room from Kimmons and lived at the residence with his girlfriend. In June and July of 1989, during the course of their joint activity, Small also used the house as his residence. On July 31, 1989, the FBI observed the defendants prepare for the actual robbery. The defendants had parked a Lincoln Town car in front of a Zayre store next to the door through which a Loomis armored car messenger entered and left with cash. At 8:50 a.m., Berta and Small drove a stolen Dodge Aspen from Kimmons’ residence to the mall, and Kimmons followed in a Cadillac owned by Berta. Once at the mall, Small entered the Lincoln and drove it out while Berta pulled the Dodge into the same space. Kimmons remained in his Cadillac and drove up and down the parking lanes in front of Zayre’s before returning home. Meanwhile, Berta joined Small in the Lincoln and drove up on the Florida Turnpike directly behind the Zayre store. They parked the Lincoln on the berm of the road and hung a sign in the window that said “Out of Gas — Will Return Shortly,” although the gas tank was actually more than half full. Berta and Small walked down the slope of the turnpike and entered the back portion of the mall through a narrow gap in the fence behind Zayre’s. They walked to the parked Aspen and entered the car. Berta sat in the driver’s seat and read a newspaper. Small ducked down and remained out of sight in the back seat. Berta checked his watch repeatedly. At approximately 9:25 a.m., a Loomis armored car approached the Las Americas mall. At the same moment, however, a woman and a small child had wandered to the front of the Zayre department store so the child could play on a carousel. Small and Berta were less than ten yards away, poised in their parked car for the arrival of the armored car. Special Agent Stephen Warner immediately directed the manager of Zayre’s to invite the mother and child into the store for a “pre-opening sale,” in order to avoid the prospect of innocents caught in a crossfire. Seconds later, as the Loomis car pulled in front of Zayre’s, Special Weapon and Tactic (SWAT) agents rapidly converged on Small and Berta and ordered them out of the Dodge Aspen. They were arrested and handcuffed. On the seat next to Berta, agents found a sawed-off twelve-gauge shotgun loaded with five rounds of buckshot, including a round in the chamber of the shotgun. On the floor of the backseat, agents found a fully loaded Colt.38 super automatic pistol, a black ski mask, and gloves. FBI agents then surrounded Kimmons’ residence, ordered him out of his house, and placed him under arrest. Agents conducted a protective security sweep of the inside of the residence and found, inside a hall closet, a Ruger Mini-14 semi-automatic assault rifle with a taped, double magazine loaded with sixty rounds of ammunition. After giving Miranda warnings at the scene, agents took Kimmons to FBI headquarters. Agent Warner again read Kimmons his rights. Kimmons said he understood his rights and that he would not make a statement until he spoke with his attorney. Agent Warner discontinued questions regarding the case but told Kimmons that he desired his cooperation concerning a search of the residence. After Warner read Kim-mons a “consent-to-search” form, Kimmons stated that a search warrant was inevitable and signed the form. A search of the residence uncovered several weapons, including a modified fully automatic nine millimeter Intratech pistol, a thirty-round magazine, two silencers,.38 caliber super automatic ammunition, a Mossberg twelve-gauge shotgun, another Ruger assault rifle, various shotgun shells, and two portable police radio scanners. The serial numbers on the weapons had been partially obliterated. Receipts found in Kimmons’ bedroom showed that three of the weapons had been purchased by Kim-mons’ girlfriend, Barbara Rodriguez. On October 31, 1989, a federal grand jury returned a superseding indictment against the defendants. Count I charged all three defendants with conspiracy to affect commerce by robbery of armored car companies, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Count II charged them with attempting to affect commerce by robbery of employees of Loomis Armored, Inc., in violation of 18 U.S.C. §§ 2 and 1951(a). Count III charged Berta with possession of a short-barrelled shotgun with no serial number, in violation of 26 U.S.C. § 5861(h) and 5871. Count IV charged Berta with carrying a Mossberg twelve-gauge shotgun during a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count V charged Small with carrying a Colt pistol during a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count VI charged Kimmons with possession of a silencer in violation of 26 U.S.C. §§ 5861(d) and 5871. Count VII charged Small with violation of the Armed Career Criminal Act, 18 U.S.C. § 922(g)(1). Count VIII charged Kimmons with the same offense. Berta pled guilty to all relevant counts of the indictment on February 14, 1990. After a six-day jury trial beginning February 16, 1990, Small and Kimmons were convicted on all applicable counts. Under the Sentencing Reform Act of 1984, Berta received concurrent sentences of sixty-three months on Counts I, II, and III. He received a consecutive sixty-month sentence on Count IV, for a total sentence of 123 months. Small received the following concurrent sentences: twenty years each for Counts I and II, five years on Count V, and life imprisonment on Count VII. Kimmons received similar concurrent sentences: twenty years each for Counts I and II, five years on Count VI, and life imprisonment on Count VIII. II. DISCUSSION The appellants-defendants raise several issues regarding the validity of their convictions and the district court’s application of the Sentencing Guidelines. We turn first to two arguments requiring more careful comment, and then briefly address the remaining claims. Conspiracy Count Sentence Enhancement Appellant Berta challenges the district court’s application of a conspiracy count sentence enhancement under Guideline § lB1.2(d) as a violation of the ex post facto prohibition. The Guideline section was not in effect at the time of the offense, although it had been added by the time of sentencing. Berta asserts that § lB1.2(d) operated retrospectively and disadvantaged him by requiring an increase of three units above the base offense level, thus violating the ex post facto clause of the Constitution, U.S. Const, art. I, § 9, cl. 3. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (Florida trial court’s application of the Florida sentencing guidelines violated ex post facto prohibition.). Our review is de novo. United States v. Goolsby, 908 F.2d 861, 863 (11th Cir.1990) (“Interpretation of the Sentencing Guidelines... is subject to de novo review on appeal.”). Berta’s argument is identical to one recently rejected by the Seventh Circuit in United States v. Golden, 954 F.2d 1413 (7th Cir.1992). In Golden, the defendant was indicted on one count of conspiracy to commit arson and two counts of arson. Id. at 1414. He pled guilty to the conspiracy charge and the remaining charges were dismissed. Id. at 1415. The district court adjusted the defendant’s guilty plea upwards by two levels under Guideline § 1B1.2. Id. at 1416. Although, as here, § 1B1.2 was adopted after the defendant’s offense, the district court dismissed the defendant’s ex post facto argument because § 1B1.2 was not a “substantive” change in the law, but simply an explanation of the “intentions of the Guidelines drafters.” Id. The Seventh Circuit affirmed, stating that “no ex post facto violation occurs if the change in the law is merely procedural and does not ‘increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ ” Id. at 1417 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884)). The court concluded: [WJhen viewed in the context of other Guidelines provisions—each in existence at the time of [the defendant’s] sentencing—there can be little question that the sentencing court was already required to treat a conspiracy charge as if it were several counts, each charging a conspiracy to commit a substantive offense. In particular, the introductory comment to the chapter on “Multiple Counts” indicates that conspiracy is a composite offense which may include several underlying offenses. And even more illustrative is note 9 to Guidelines § 3D1.2, which provides in relevant part: A defendant may be convicted on conspiring to commit several substantive offenses and also of committing one or more of the substantive offenses. In such cases, treat the conspiracy count as if it were several counts, each charging conspiracy to commit one of the substantive offenses. Then apply the ordinary grouping rules to determine the combined offense level based upon the substantive counts of which the defendant is convicted and the various acts cited by the conspiracy count that would constitute behavior of a substantive nature. In short, Guidelines § lB1.2(d) was enacted for [sic] sole purpose of clarifying then existing procedure, and therefore no ex post facto concerns can legitimately be raised. Id. at 1417-18 (footnotes omitted). We agree with the Seventh Circuit and find the appellant’s ex post facto argument without merit for the reasons expressed in Golden. Berta also challenges the enhancement of his sentence as related to the activities directed toward the Wells Fargo car at the Coral Gables Federal Savings & Loan and the Brinks car at the Ocean Bank and Flagler Bank branches based on lack of notice and insufficient evidence. He asserts that Count I made no mention of multiple objectives, and that there was little or no evidence to support the district court’s determination of multiple offenses. Berta insists that he only conspired to rob the Loomis car at Zayre’s and that there is “no quality of evidence or any stretch of the facts” which would support a finding that the appellants conspired to rob any other armored car. Brief of Appellant Berta at 34. He contends that his and his co-defendants’ surveillance of the Wells Fargo and Brinks armored cars at most amounted to “shopping a robbery,” and that they were simply “looking for the most likely and easiest victim,” id. at 35, but that there is no evidence of any agreement to rob either the Wells Fargo or Brinks cars. At the sentencing hearing, the district court found otherwise: As far as the issue of the conspiracy is concerned, there is ample evidence in the record, as outlined by the Federal Agents, as to the number of conspiracies involved. There were several prior efforts to do bank robberies, like the armored car robberies. They did not go down. One, for example, involved the question — and they saw a heightened security on the armored car because the FBI had advised them that there was an alert, and the FBI Agent’s testimony outlined those events. So, I think there is sufficient evidence of the pre-conspiracy. Additionally, the count does sufficiently charge and puts the defendant on notice concerning multiple conspiracies. So, I have no problem with ruling against the defendant on that issue. (R10:43). In reviewing a sentence under the Guidelines, the factual findings of the sentencing court are entitled to great deference and must be accepted unless clearly erroneous. 18 U.S.C. § 3742(e) (“The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.... ”); see United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.1989); United States v. Spraggins, 868 F.2d 1541, 1543 (11th Cir.1989). Berta does not dispute that along with his co-defendants he conspired to rob the Loomis armored car. He does challenge that his co-defendants’ scrutiny of the Wells Fargo and Brinks cars were separate and independent offenses. A review of the record, however, supports the district court’s finding that the conspiracy had multiple objectives. It may be inferred from the Federal agent’s testimony that the appellants followed and deliberately observed the Wells Fargo car as it delivered cash at the Coral Gables Federal'Savings & Loan off Bird Road. (R5:33-36). There is further testimony revealing that the appellants likely saw the extra Wells Fargo armed security guards before the appellants turned away. (R5:34; R7:126). Federal agents further testified that the appellants drove to the Las Americas mall and monitored the Wells Fargo and Brinks cars as they delivered cash at Woolworth’s and the Ocean Bank and Flagler Bank branches. (R6:45-53, 56-60). The appellants watched the armored cars from different perspectives on at least three different days. (R6:60-62, 88-92, 99-103). These exploits amounted to independent overt acts in furtherance of the conspiracy. See United States v. Parker, 839 F.2d 1473, 1477 (11th Cir.1988) (“To support a conspiracy conviction, the government must prove 1) an agreement to commit unlawful act and 2), an overt act by one conspirator in furtherance of conspiracy.”). Berta’s more thorough attempt to rob the Loomis car does not negate that, along with his co-defendants, he also carefully monitored the activities of the Wells Fargo and Brinks trucks. The appellants could have chosen to rob one or all of the armored cars, but as the district court noted, the earlier offenses simply “did not go down.” (R10:43). Accordingly, we affirm the district court’s enhancement of the sentence imposed under the conspiracy count in accord with § lB1.2(d) of the Guidelines. Kimmons’ Motion to Suppress Appellant Kimmons challenges the introduction into evidence of the Huger Mini-14 assault rifle and ammunition found during a protective sweep of his residence immediately following his arrest. He argues that agents lacked exigent circumstances to require him to leave his residence without an arrest warrant or to conduct a protective sweep without a search warrant. Kimmons further asserts that his subsequent consent to a search was involuntary because of the totality of the circumstances. We address each assertion in turn. Our review of the facts is construed in the light most favorable to the party who prevailed in the district court. See United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir.1988) (District court’s findings of fact at suppression hearing are reviewed under a clearly erroneous standard.). Relying on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and United States v. Maez, 872 F.2d 1444 (10th Cir.1989), Kimmons claims that the Federal agents’ show of force outside his home coerced his exit in violation of the Fourth Amendment. In Payton, the Supreme Court held that the Constitution prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in the absence of exigent circumstances. 445 U.S. at 583-603, 100 S.Ct. at 1378-1388. In Maez, the Tenth Circuit found a Payton violation where armed officers, having no warrant for an arrest, surrounded a mobile home and demanded over loud speakers that the occupants remove themselves from the home so that a suspect could be taken into custody. 872 F.2d at 1449-53. Kimmons argues that the force used by the government in his arrest was comparable to the force found violative of the Fourth Amendment in Maez. Moreover, Kimmons contends that the government cannot justify that use of force through exigent circumstances because such an argument was never made in the district court. The record, however, indicates that the government indeed argued exigent circumstances, circumstances which we find compelling on review. As we noted in United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir.1986): A finding of probable cause alone... does not justify a warrantless arrest at a suspect’s home. Exigent circumstances which make it impossible or impractical to obtain a warrant must also be present. The exigent circumstances exception encompasses situations such as hot pursuit of a suspect, risk of removal or destruction of evidence, and danger to the arresting officers or the public. (citation omitted). In Edmondson, we did not find exigent circumstances because none of the situations outlined above were present and because “the circumstances did not otherwise make it impossible or even imprudent” for the agent to obtain an arrest warrant. Id. In addition to those situations noted in Edmondson, exigent circumstances may be indicated by the presence of other relevant factors, such as those set forth in United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.1987), cert. denied, 481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987): Factors which indicate exigent circumstances include: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public. We find that the circumstances here include the factors set forth in Standridge. The FBI had just apprehended two of Kim-mons’ accomplices seconds before they were about to commit a daylight armed robbery in a busy shopping center. They were armed with a fully loaded sawed-off shotgun and pistol. The FBI knew that Kimmons had been part of the conspiracy for at least six weeks, that he had been at the crime scene that very morning, and that he had a history of violent crime. Kimmons’ participation in a plan to rob armed security personnel also showed a present willingness to use violence. Moreover, Kimmons’ home had served as the headquarters for the conspiracy, and it was highly likely that evidence would be concealed inside. Finally, with Kimmons awaiting the return of his co-defendants and likely surmising that the robbery had misfired, any further delay on the part of the FBI would have given Kimmons more time to prepare for either violent resistance or an attempt to escape. Consequently, we find sufficient exigent circumstances to justify the arrest. Kimmons next challenges the security sweep that immediately followed his arrest, claiming that the Supreme Court has not recognized a “protective sweep” exception to the search warrant requirement. However, in Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276 (1990), the Supreme Court held: that the Fourth Amendment would permit [a] protective sweep undertaken... if the searching officer “possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted]’ the officer in believing” that the area swept harbored an individual posing a danger to the officer or others. (quoting Michigan v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469, 3481-82, 77 L.Ed.2d 1201 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968))). Here, the circumstances fall well within the exception set forth in Buie. In addition to the dangerous exigencies noted above, the FBI had knowledge of a fourth conspirator whose identity and whereabouts were unknown, which further heightened concern at the site of Kimmons’ arrest. See United States v. Burgos, 720 F.2d 1520, 1525-26 (11th Cir.1983) (upholding a security sweep where house was likely laden with firearms and an unknown number of people were inside). The sweep did not last any longer than needed to complete Kimmons’ arrest and secure the premises. Moreover, the seizure was lawful because the weapons and ammunition were found in plain view. See Buie, 494 U.S. at 330, 110 S.Ct. at 1096. Finally, Kimmons complains that his subsequent consent to search was involuntary based on the totality of the circumstances. He concedes that under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), his consent was voluntary if viewed independently from the initial arrest. Reply Brief of Appellant Kim-mons at 7. Nonetheless, he alleges that because his arrest was illegal, his subsequent consent to search while in custody is invalid. See United States v. George, 883 F.2d 1407 (9th Cir.1989) (finding that consent to search was tainted by earlier illegal home arrest). However, as his arrest was lawful and evidence indicates that Kim-mons was aware of his right of refusal before he signed the consent form, see United States v. Smith, 543 F.2d 1141, 1145 (5th Cir.1976) (Where the trial court makes no factual findings on an issue, the appellate court may affirm the ruling based upon facts in the record that support the decision.), cert. denied, 429 U.S. 1110, 97 S.Ct. 1147, 51 L.Ed.2d 564 (1977), we find that Kimmons’ consent was freely and voluntarily given. The Remaining Claims The appellants raise several additional claims that require less comment. Berta and Small challenge the district court’s four level increase under Guideline § 2B3.1(b) based on a calculation that the loss from the offense would have been approximately $500,000. The appellants assert that the potential loss was only $67,-000, because that was the sum that the Loomis truck would have picked up from Zayre’s on the morning of the attempted robbery. However, the target of the robbery was the money already in the Loomis truck as well as the money from the store. Otherwise, the appellants might simply have planned to rob the store instead of the armored car. Testimony from managers of all three intended victim corporations established that hundreds of thousands to millions of dollars were carried on the armored cars during the specific routes that the appellants had targeted. (R8:81, 84, 88, 92). The district court’s factual finding of a potential loss of $500,000 is supported by a preponderance of the evidence. See United States v. Ignancio Munio, 909 F.2d 436, 439 (11th Cir.1990) (The facts underlying a sentence must be established by a preponderance of the evidence.), cert. denied, — U.S. -, 111 S.Ct. 1393, 113 L.Ed.2d 449 (1991). Berta and Small also argue that the district court erroneously enhanced their sentences by three levels under Guideline § 2B3.1(b)(2)(C) because each co-defendant carried a firearm during the commission of the conspiracy. Each was sentenced to a sixty-month term of incarceration for violating 18 U.S.C. § 924(c). The appellants assert that the guideline application amounted to “double-counting,” which Guideline § 2K2.4 prohibits. However, the district court’s application of § 2B3.1(b)(2)(C) to each appellant did not “double count” because it involved neither the same firearm nor the same possession for which a penalty was imposed under 18 U.S.C. § 924(c). See United States v. Ote-ro, 890 F.2d 366, 367 (11th Cir.1989) (setting forth criteria for establishing defendant’s liability for enhancement under guidelines for firearm possessed by co-defendant). Berta was convicted for possessing a twelve-gauge shotgun, but his three-level enhancement was based upon co-defendant Small’s firearm possession. Similarly, Small was convicted for possession of a Colt pistol, but the enhancement of three levels was based upon co-defendant Berta’s possession of a different firearm. Because two armed men perpetrating a robbery pose a much greater threat to the public safety than only one armed robber, it is proper to increase each defendant’s guideline score to reflect this more serious conduct. Small further challenges his sentence pursuant to 18 U.S.C. § 924(e)(1), stating that he was charged in Count VII with violating 18 U.S.C. § 924(a)(1)(B), which carries a maximum term of only five years. Thus, Small contends, he was not legally on notice of his offense and the potential penalty of life imprisonment. However, in the same count, the indictment also charged him with violating 18 U.S.C. § 922(g)(1). The indictment not only specified the elements of the offense under 18 U.S.C. § 922(g)(1), but also specified the convictions that established Small’s eligibility for the potential life sentence carried under that section. The government concedes that it incorrectly included 18 U.S.C. § 924(a)(1)(B) in Count VII, but notes that the reference is merely surplusage given that the district court disregarded it and properly applied § 924(e)(1) pursuant to § 922(g)(1). We agree. The enhanced penalty provisions of 18 U.S.C. § 924(e)(1) are not elements of the offense and need not be set forth in the indictment. See United States v. McGatha, 891 F.2d 1520, 1524-25 (11th Cir.), cert. denied, 495 U.S. 938, 110 S.Ct. 2188, 109 L.Ed.2d 516 (1990). We find no merit in the remaining claims. Accordingly, we AFFIRM the challenged convictions and the sentences the district court imposed on each defendant. . Guideline § 1B1.2 provides, in relevant part, that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted of a separate count of conspiracy for each offense that the defendant conspired to commit." U.S.S.G. § 1B1.2 . Pursuant to 18 U.S.C. § 3553(a)(4) and (5), sentencing courts must abide by the Sentencing Guidelines and policy statements in effect on the date of sentencing, not on the date of the offense. . We find no merit in Berta's notice argument. Count I of the superseding indictment expressly charges "that the defendants conspired to unlawfully take currency from the custody of employees of armored car companies... in violation of Title 18, United States Code, Section 1951(a)." (Rl:29 at 1-2) (emphasis added). . Moreover, if any error occurred in the application of the Guidelines, it occurred in appellant Berta’s favor. The district court, relying on the Pre-Sentence Investigation Report, calculated a base offense level of 18 under Guideline § 2B3.1(a), increased the offense level by 4 under § 2B3.1(b)(1)(E) because the potential loss approximated $500,000, added another 3 levels pursuant to § 2B3.1(b)(2)(C) because codefend-ant Small possessed a firearm, added 3 more levels for the multiple offenses under § lB1.2(d), and subtracted 2 levels under § 3El.l(a) for Berta's affirmative acceptance of responsibility, for a total offense level of 26. At the time of sentencing, Criminal History Category I of the Guidelines Sentencing Table imposed an incarceration range of 63 to 78 months. The district court imposed a minimum sentence of 63 months running concurrently on each of the conspiracy counts. However, under Appendix C, amendments 110 and 111, of the Sentencing Guidelines, effective November 1, 1989 and applying on the date of sentencing, April 25, 1990, the base offense level under § 2B3.1(a) was 20. The enhancement for the potential loss under § 2B3.1(b)(1)(E) was 3, not 4 as reflected in the PSI report. The adjustments calculated properly would have raised Berta’s offense level to 27. At that level, the sentencing range increased to 70 to 87 months. Had the Guidelines been strictly followed, Berta would have suffered an even greater penalty. The government did not appeal the sentence. . In United States v. Maez, 872 F.2d 1444, 1452 & n. 9 (10th Cir.1989), the Tenth Circuit never reached the merits of the government’s argument of exigent circumstances because it had been raised for the first time on appeal. Here, the record discloses the following argument by government counsel on the motion to suppress: MR. TAMEN [AUSA]: Judge, the case that established the law regarding warrantless arrests of violence inside a house made it clear—Peyton [sic] versus New York—a warrant that has been in existence for a period of time or case, an investigation of a case that has been completed for some time period which requires police to obtain a warrant before entering a house. This is a different situation. We have a situation in which three men, two of whom are known to be dangerous, to have lengthy criminal histories involving robberies are arrested at a shopping center in the morning, at a time when it's open for business to the public. They have ski masks, gloves, sawed off shotguns and a pistol in the car. The weapons are all loaded. They are apprehended where the armored car arrives at the scene, moments before they would have jumped out with guns to commit that armed robbery and a third member of the conspiracy, who has been stalking armored cars along with them for a period of 4 months is back at the house. There are exigent circumstances there. The police cannot arrest the two men at the shopping center and wait around until tomorrow to get the guy who is at the house, who is a member of the conspiracy, who assisted in setting up the scene at the shopping center that very morning. They have to take him out for the protection of the public. They had more than ample exigent circumstances, either to go in the house and get him, or make him come out, which they did. (R4:83-84) (emphasis added). Because the government’s counsel argued exigent circumstances before the district court, the appellant’s reliance on Maez is misplaced. . In Edmondson, the FBI tracked the license plate of a car used in an aborted bank robbery to an apartment address. 791 F.2d at 1513. An agent saw a man resembling the suspect in a

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

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

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

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

Edward F. HIGGINS, Appellant, v. D. M. KITTERMAN et al., Appellees. No. 15799. United States Court of Appeals Eighth Circuit. July 30, 1958. Walter A. Raymond, Kansas City, Mo. (Jones & Alexander, St. Louis, Mo., on the brief), for appellant. Lyman Field, Kansas City, Mo. (Rogers, Field, Gentry & Jackson, Kansas City, Mo., on the brief), for appellees. Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges. VOGEL, Circuit Judge. Edward F. Higgins, plaintiff-appellant, brought this action for an accounting against the defendants-appellees, co-partners engaged in a plastic molding business in Kansas City, Misssouri, under the name of National Products Company. Diversity of citizenship and more than the statutory amount make for federal court jurisdiction. Plaintiff, a manufacturer’s agent or broker for die casting and plastic molding companies, alleged that as such broker he was employed by the defendants to obtain business for them upon which they agreed to pay a commission of 5% ; that the plaintiff arranged meetings for defendants with Lemay Machine Company and Reddi-Wip Company and assisted defendants in obtaining contracts for the manufacture of Reddi-Wip caps, upon which he alleged he was entitled to a commission. Defendants denied any indebtedness. The case was tried without a jury. The court made findings of fact and conclusions of law, upon which it entered judgment dismissing the complaint, whereupon plaintiff appealed. The law of the State of Missouri controls. In non-jury or jury-waived cases where the evidentiary facts are not in any real dispute and the trial court’s conclusions therefrom are reached by a process of reasoning, we have been frequently asked, as we are here, to hold ourselves “ * * * free from the restraint of the ‘clearly erroneous’ rule.” It is pointed out that we, as advantageously as the trial court, can draw inferences and ultimate conclusions from undisputed facts. In other words, we are asked to substitute our judgment for that of the trial court. This court has repeatedly announced the rule governing the functions and powers of a court of appeals in non-jury or jury-waived cases. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A., provides that: “Findings of fact shall not be set aside unless clearly erroneous, * * * » In Cleo Syrup Corp. v. Coca-Cola Co., 8 Cir., 1943, 139 F.2d 416, 417, 150 A.L.R. 1056, we said: “This Court, upon review, will not retry issues of fact or substitute its judgment with respect to such issues for that of the trial court. Storley v. Armour & Co., 8 Cir., 107 F.2d 499, 513; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mut. Casualty Co. v. Rector, 8 Cir., 138 F.2d 396, 398. The power of a trial court to decide doubtful issues of fact is not limited to deciding them correctly. Thompson v. Terminal Shares, Inc., 8 Cir., 89 F.2d 652, 655; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701 (affirmed 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251); Travelers Mutual Casualty Co. v. Rector, supra. In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra.” In Pendergrass v. New York Life Insurance Co., 8 Cir., 1950, 181 F.2d 136, 138, this court pointed out: “There is no logical reason for placing the findings of fact of a trial judge upon a substantially lower level of conclusiveness than the fact findings of a jury of laymen, or those of an administrative agency, which may be set aside only if unsupported by substantial evidence. The findings of fact of a trial court should be accepted by this Court as being correct unless it can be clearly demonstrated that they are without adequate evidentiary support or were induced by an erroneous view of the law. The entire responsibility for deciding doubtful fact questions in a non-jury case should be, and we think it is, that of the district court.” This court has consistently adhered to such rule. Commercial Standard Ins. Co. v. Maryland Casualty Co., 8 Cir., 1957, 248 F.2d 412, 416; Maryland Casualty Co. v. Manufacturers & Merchants Indemnity Co., 8 Cir., 1957, 249 F.2d 630, 633; Fields v. Ross Oil Co., 8 Cir., 1957, 250 F.2d 498, 502. In American Indemnity Co. v. Swartz, 8 Cir., 1957, 250 F.2d 532, 536, Judge Van Oosterhout, speaking for this court regarding the findings and conclusions of the trial court in a non-jury case, stated: “The burden is upon the appellant to demonstrate error. To obtain a reversal the appellant must show that the conclusion reached by the trial court as to the interpretation of the contract is irrational, illogical, unsound, or contrary to any local or general law applicable to the interpretation of an insurance contract. Grundeen v. United States Fidelity & Guaranty Co., 8 Cir., 238 F.2d 750, 753." (Emphasis supplied.) With such rule in mind, we consider the record. Lemay Machine Company of St. Louis, Missouri, hereinafter referred to as Le-may, and which was owned and operated by one Fred Sullentrup, had a contract with the Reddi-Wip Company by which it supplied Reddi-Wip with certain plastic caps and valve assemblies used as a means for covering and dispensing, under pressure, products from can containers. Lemay procured the component parts from various companies and after assembly delivered them to Reddi-Wip. Sometime in early April, 1949, plaintiff called on Lemay to solicit business. He learned that some difficulty had been experienced with reference to the plastic caps and he advised Lemay that it would require an experienced molder to solve its problem. He was told to get in touch with such a person and bring him to St. Louis. Thereupon, plaintiff communicated with Don Kitterman, general partner and managing officer of the National Products Company, telling him that he had a big plastic molding job lined up and wanted to know if National would pay him a commission on the business. National agreed. The result was that Kitterman, representing National, went to St. Louis and was taken by plaintiff to the Lemay plant where a conference was held concerning the cap and valve assembly and it was agreed that National would prepare samples of some new designs at its own expense and submit them to Lemay, together with price quotations. At that meeting plaintiff and Kitterman, representing National, had knowledge that the plastic cap and valve assemblies that Lemay was interested in purchasing were for the use of Reddi-Wip and would have to be submitted to Reddi-Wip and approved by it. They were told, however, that they were not to go direct to Reddi-Wip. On April 9, 1949, after the conference, Kitterman, in behalf of National, wrote Sullentrup of Lemay, advising that National was working on a plastic cover which would be forwarded as soon as completed. On April 12, 1949, Kitter-man, in behalf of National, wrote the plaintiff that he was “enclosing our quotation No. 210 to Lemay Machine Company on the cover they are now using” and advising that sample drawings of the new cover he was designing had been made and asking the plaintiff to keep him advised. The letter further stated, “This is also to confirm that we are to work out a commission arrangement before completion of negotiations with customers of your development.” (^Emphasis supplied.) On April 16, 1949, Kitterman, in behalf of National, wrote the plaintiff as follows: “Please find enclosed our revised quotation No. 210 for Lemay Machine Company. “This is also to confirm that we will pay you a commission of 5% on this account unless it is mutually agreed in writing that the 5 % figure be changed to a different amount. “Trusting that the above meets with your approval and that we may hear from you on the proposal very soon, we remain”, to which plaintiff replied on April 19th in part as follows: “I received your letter of April 16, 1949 confirming our agreement of a 5% commission on all orders received from Lemay Machine Company. The enclosed quotations were delivered to Lemay and also to my contact with Reddi Wip. Before doing anything on these prices Sullentroop wants to wait on your sample and if it proves satisfactory they will place their orders with you. Incedentally Don, he wants you to quote on the other piece also. This deal seems pretty well in the bag and should mean quite a bit of cash to both of us, so get that sample in as soon as possible as that is the only thing holding up the orders.” On April 30th, Kitterman, for National, wrote to the plaintiff enclosing quotations for the Lemay cover and stating: “I assume, that inasmuch as I did not receive a call from them, that Reddi-wip slowed it down. After delivering the quotations to Mr. Sul-lentrup, I’d like to have a report as to the status of the job.” On May 3, 1949, plaintiff responded to Kitterman’s letter, stating that Sullen-trup of Lemay and his engineer were both sold on the cap Kitterman had designed but were having “a little difficulty" in selling Reddi-Wip. On May 4, 1949, plaintiff again wrote Kitterman to the effect that Sullentrup of Lemay still favored National but was having difficulty with Reddi-Wip, which he expected to have all ironed out. On June 14, 1949, plaintiff reported to Kitterman that he had made a contact with Reddi-Wip through a third party with whom he had agreed to share his commission. On June 17, 1949, Kitterman, in behalf of National, wrote the plaintiff enclosing quotations for Reddi-Wip and suggesting that if the enclosed quotations were not satisfactory to Reddi-Wip, plaintiff try to sell them on the idea of two sources of supply. Kitterman testified that Higgins never advised National of the outcome of the quotation of June 17, 1949, and that plaintiff never subsequently wrote to Kitterman or ever attempted to communicate with him after his letter of June 14, 1949, as to what, if any, progress he was making with Reddi-Wip. Witness Soffer, representing Reddi-Wip, confirmed the fact that Higgins, subsequent to June 17, 1949, did nothing to bring National Products back to the attention of Reddi-Wip and that National’s quotations were not accepted by Red-di-Wip because “they were too high”. Just a week after the plaintiff delivered National’s quotations to Reddi-Wip he brought Reddi-Wip’s attention to the Lo-ma Plastic Company of Fort Worth, Texas, by introducing a Mr. Barnett, who came up from Fort Worth to meet them. Thereafter Barnett, in behalf of Loma Plastic Company, submitted to Reddi-Wip a quotation for the same type of plastic cap as was being considered by National. When asked why he brought Loma into the picture “to compete with your National Products Company”, plaintiff replied, “Because I felt that I was free to do so”, that he thought Reddi-Wip “intended to split the business”. Between July, 1949, and November, 1949, Reddi-Wip in considering plans for improving the cap and valve assembly employed Raymond Loewy, an industrial designer, to redesign them. In the meanwhile, plaintiff, on his own behalf and without the knowledge of National, undertook to have five models of cap designs made for Reddi-Wip at a St. Louis machine shop. These cap designs were submitted directly to Reddi-Wip for approval, but all were rejected. In the latter part of July, 1949, Carl V. Rice, principal stockholder and vice president of the Missouri Die Casting Company at St. Louis, and plaintiff Higgins, who was also a sales representative of Missouri Die Casting Company, were discussing the Reddi-Wip business. Plaintiff informed Rice that he had not been able to make any progress with National Products’ negotiations on the Reddi-Wip cover, the reason being that the prices quoted by Kitterman, for National Products, were entirely too high. Subsequently, but before the end of July, Rice was in the office of one Thurman Hill, an attorney in Washington, D. C. Hill happened to mention that he had a new client, the Reddi-Wip Company of St. Louis. Rice told Hill that a plastic company (National) in which his family had an interest had attempted to get some Reddi-Wip manufacturing business but had been unsuccessful and he asked Hill if he could get him another connection with or introduction to Reddi-Wip for National. Hill agreed and made arrangements whereby Rice and Kitterman obtained a direct appointment with Soffer, a Reddi-Wip representative; this conference was held at the Reddi-Wip plant at St. Louis on or about July 28th or 29th. Their efforts at this time to get business for National were not successful. In November of 1949, after the Loewy design had been completed, Soffer of Reddi-Wip called National and asked if Kitterman could come to St. Louis and talk with him. He explained that certain features of the Loewy design were not desirable and that he thought probably Kitterman could help him develop an idea of his own as an addition to the Loewy design. The end result was that in December of 1949 National began manufacturing the new caps directly for Reddi-Wip. The trial court, concluding that “plaintiff’s right to compensation under the agreement plaintiff had with National was conditioned upon plaintiff’s being the effective producing cause of developing Reddi-Wip as a customer for National,” found that plaintiff did not develop Red-di-Wip as a customer and was not the efficient, procuring cause of any order National received from Reddi-Wip. The trial court further found that upon plaintiff’s failure to develop Reddi-Wip as a customer for National, plaintiff thereafter sought to develop and obtain Reddi-Wip’s business for Loma, a competitor of National, and that, “in so doing plaintiff broke the continuity of any efforts on his part to develop Reddi-Wip as a customer for National”. We think the trial court correctly interpreted the law of Missouri as it is applicable herein. Recently this court, in Realty Investment Co., Inc., v. Armco Steel Corp., 8 Cir., 255 F.2d 323, 328, had occasion to consider the Missouri law as it affects the rights of a broker to receive a commission on the sale of property. Therein we stated: “The term ‘procuring cause’ refers to the cause originating a series of events which, without break of continuity, results in the accomplishment of the object of employment of the agent. Rogers v. McCune, 1955, Mo.App., 283 S.W.2d 872, 877, and cases there cited. The general rule of Missouri law as to the rights of a real estate broker who claims to have been the procuring cause of a sale of real estate is stated in Barnum v. Hutchens Metal Products, Inc., Mo.1953, 255 S.W.2d 807, 808: “ ‘It is the general rule that a real-estate broker is entitled to recover his commission on the sale of real estate if he shows himself to have been the procuring cause of the sale although the owner himself had finally consummated the sale. Of course, the rule is equally applicable whether the owner consummates the sale personally or through another broker. The owner cannot escape liability to a broker who is the procuring cause of a sale by employing another broker to consummate the transaction; and whether or not a broker is the procuring cause is ordinarily a question for the jury. Bowman v. Rahmoeller, 331 Mo. 868, 55 S.W.2d 453; Bell v. Kaiser, 50 Mo. 150; Studt v. Leiweke, Mo.App., 100 SW.2d 30; Grether v. Di Franco, Mo.App., 178 S.W.2d 469; Earls v. Alsup, 237 Mo.App. 819, 176 S.W. 2d 830.’ ” In Rogers v. McCune, 1955, 283 S.W.2d 872, 877, the St. Louis Court of Appeals (Missouri) stated: “For an agent to recover a commission upon the sale of property of his principal it is not sufficient that his act is one of a chain of causes producing the contract — it must be the procuring and inducing cause. The terms ‘procuring cause’ and ‘inducing cause’ refer to the cause which originates a series of events which without break of continuity result in the accomplishment of the object of the employment of the agent. Williams v. Mashburn, Mo. App., 37 S.W.2d 478; Gamble v. Grether, 108 Mo.App. 340, 83 S.W. 306; Crain v. Miles, 154 Mo.App. 338, 134 S.W. 52; Kyle v. Kansas City Life Ins. Co., 356 Mo. 331, 201 S.W.2d 912; Ramsey v. West, 31 Mo.App. 676; F. H. & C. B. Gerhardt Real Estate Co. v. Marjorie Real Estate Co., 144 Mo.App. 620, 129 S.W. 419; Nooning v. Miller, 178 Mo.App. 297, 165 S.W. 1119; Real Estate Enterprises, Inc., v. Collins, Mo.App., 256 S.W.2d 286; Young v. Stecher Cooperage Works, 259 Mo. 215, 168 S.W. 611; Westerman v. Peer Inv. Co., 197 Mo.App. 278, 195 S.W. 78; Good v. Robinson, 194 Mo.App. 453, 184 S.W. 955.” In Real Estate Enterprises, Inc. v. Collins, 1953, 256 S.W.2d 286, 289, the St. Louis Court of Appeals (Missouri) said : “For one’s services in such a matter to be the procuring cause of the sale, it is essential that his initial efforts in calling attention to the property shall have set in motion a series of events which, without a break in their continuity, and without interruption in the negotiations, eventually culminated in the sale. But where there is a definite break in the continuity of the negotiations amounting to an abandonment of the deal, and new forces thereafter enter which bring about a renewed of the negotiations and themselves become the effective cause of the sale, the initial efforts may not then be regarded as the proximate procuring cause so as to be the foundation on which to predicate a right to a commission. Young v. Stecher Cooperage Works, 259 Mo. 215, 168 S.W. 611; Wester-man v. Peer Inv. Co., 197 Mo.App. 278, 195 S.W. 78; Good v. Robinson, 194 Mo.App. 453, 184 S.W. 955; Smith v. Allgier, 234 Mo.App. 392, 135 S.W.2d 43.” (Emphasis supplied.) In United Farm Agency v. Cook, 1955, 283 S.W.2d 6, 13, the Springfield Court of Appeals (Missouri) affirmed a judgment for recovery of a commission for selling real 'estate on the ground that “there is no evidence in the instant ease that there ever was any break in the negotiation or abandonment of plaintiff’s efforts in carrying such negotiations of sale to an ultimate conclusion.” In the consideration of this appeal we must take that view of the evidence and accept such reasonable inferences therefrom as tend to support the conclusion of the trial court. So viewed, there is ample testimony to support such conclusion. The testimony indicates that the last time the plaintiff communicated with the defendants was June 14, 1949. Thereafter, for months, he failed to report to or get in touch with defendants, and failed to make any further effort to bring defendants back to the attention of Reddi-Wip. During such period he engaged in activities which could be, and were, construed as antagonistic to the interests of defendants by soliciting Reddi-Wip’s business in behalf of the Loma Plastic Company, a competitor of defendants, and in addition thereto, without knowledge of the defendants or any communication to or from them, he had samples of plastic caps manufactured and submitted on his own behalf. These were rejected. This was substantial evidence of a “definite break in the continuity of the negotiations” and could be, and was, found by the trial court to have been an abandonment by plaintiff. The conclusion that new forces thereafter entered into the picture bringing about a renewal of negotiations and consummation of an agreement to manufacture the Loewy-designed caps is well substantiated. The Supreme Court of Missouri in Barnum v. Hutchens Metal Products, Inc., Mo.1953, 255 S.W.2d 807, 808, supra, pointed out that the question of whether a broker is the procuring cause is ordinarily one for the jury. Here the trial court sat in place of a jury and it was its prerogative, upon the disputed evidence introduced, to determine the ultimate facts. In asking this court to reverse the district court and direct judgment for plaintiff, the plaintiff has, in effect, asserted two alternative contentions: First, that had this case been tried to a jury he would have been entitled to a directed verdict; second, that this court should reject the findings of the trial court and try the case de novo on the record. There is complete lack of merit in each contention. As to the first, there was substantial evidence sufficient to produce a disputed fact question which required determination by the trial court, whether it be with or without a jury. As to the second, it has already been demonstrated that this court may not substitute its judgment for that of the trial court and that the latter’s findings and conclusions may not be set aside unless clearly erroneous or induced by an incorrect view of the law. We do not so find. 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?

Robert Newell SPRY, Appellant, v. E. J. OBERHAUSER, Appellee. No. 20493. United States Court of Appeals Ninth Circuit. May 20, 1966. Robert Newell Spry, in pro. per. Thomas C. Lynch, Atty. Gen. of Cal., Wm. E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., Los Angeles, Cal., for appellee. Before BARNES and KOELSCH, Circuit Judges, and TAYLOR, District Judge. PER CURIAM. This is an appeal by Robert Newell Spry, a prisoner in the California Institution for Men at Chino, from an order entered September 14,1965, in the United States District Court for the Southern District of California, Central Division, denying his petition for a Writ of Habeas Corpus. After reviewing the appellant’s petition, we agree with the District Court that it appears from the petition that the petitioner is not entitled to the Writ. According to the petition, appellant was convicted in 1959 of the crime of burglary in the Orange County Superior Court. In March of 1965, he was convicted in the Los Angeles Superior Court for attempted robbery in violation of Section 664 of the California Penal Code. After serving approximately four years on the first offense, appellant was released in May of 1963 to serve three years and three months on parole. Appellant first alleges that parole on the first offense was delayed one year because of action taken by the disciplinary committee of the institution. The allegation in regard to the action of the disciplinary committee does not in this case present a justiciable question. Roberts v. Pegelow, 313 F.2d 548, 550-551 (4th Cir. 1963); see also concurring opinion in Weller v. Dickson, 314 F.2d 598 (9th Cir. 1963); Stroud v. Swope, 187 F.2d 850 (9th Cir. 1951), cert. denied, 342 U.S. 829, 72 S.Ct. 53, 96 L.Ed. 627. In any event, this question would appear to be moot since the appellant was finally granted parole and his present detention appears to be as a result of his conviction in March of 1965 on the second offense. Appellant’s second claim relates to his second conviction. As to this he alleged that he was “compelled” to enter an illegal line-up before preliminary examination and arraignment. He does not allege or claim that the line-up led to any evidence that was or could be used against him. There was no appeal from this conviction for the reason that he entered a plea of guilty. He also alleges that the line-up denied him the right to be taken before a committing magistrate without unnecessary delay in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. Appellant is attempting to go behind his plea of guilty merely because he was put in a line-up. It was said in Wallace v. Heinze, 351 F.2d 39, 40 (9th Cir. 1965), quoting from Thomas v. United States, 290 F.2d 696-697 (9th Cir. 1961) as follows: “The conviction and sentence which follow a plea of guilty are based solely and entirely upon said plea and not upon any evidence which may have been improperly acquired by the prosecuting authorities.” The alleged violation of Rule 5(a) of the Federal Rules of Criminal Procedure is without merit. Said Rules are only applicable to federal courts. 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?

HIRSHHORN et al. v. MINE SAFETY APPLIANCES CO. et al. No. 10894. United States Court of Appeals Third Circuit. Argued March 6, 1953. Decided April 2, 1953. See also, 3 Cir., 193 F.2d 489. John B. Doyle, New York City (Pruitt, Desvernine & Coursen, New York City, Walker & Newman, Pittsburgh, Pa., Edwin A. McGuire, New York City, on the brief), for appellant. ' Charles E. Kenworthey, Pittsburgh, Pa. (Paul E. Hutchinson, Gilbert J. Helwig and Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellee. Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges. . It was not until 1940 that Jackson appears to have severed all his connections with Catalyst to work exclusively for Mine Safety. McLAUGHLIN, Circuit Judge. Plaintiff, a resident of New York, appeals from the dismissal of his complaint by the district, court, sitting without a jury. The action is a double derivative stockholders’' suit on behalf of plaintiff and other stockholders of Carbon Monoxide Eliminator Corporation, a Delaware corporation, and Catalyst Research Corporation, a Maryland corporation. The defendants are the two named corporations and Mine Safety Appliances Company, a Pennsylvania corporation, as well as various directors and officers of the three' corporations and their representatives. For convenience the corporate defendants will he referred to as Mine Safety, Carbon and Catalyst. Mine Safety, the dominant corporation, was organized in 1917 to succeed a partnership. It is engaged in the manufacture of industrial and military safety equipment and is reputedly the largest manufacturer of such equipment in the world. Carbon was incorporated in 1929 to develop a method for eliminating carbon monoxide from the exhaust gases of internal combustion engines through the use of a catalyst called hopcalite. While Mine Safety has always owned a controlling-interest' in Carbon plaintiff has since 1931 acquired 20,000 of Carbon’s 157,000 outstanding shares of stock. Catalyst was organized in 1930 to develop and exploit hopcalite in fields other than carbon monoxide elimination. Frazer, the inventor of hopcalite, was given 40% of Catalyst’s stock in exchange for licensing his patent to the corporation; the remaining 60% was issued to Carbon under an agreement whereby it was to advance a total of $50,000 in annual installments to Catalyst. Although the parties did not reprint the complaint in their appendices, a reading of the trial court’s comprehensive findings of fact and conclusions of law reveals that defendants were charged with various acts of corporate mismanagement and the exploitation of Carbon and Catalyst. . The most serious claim, and the only one pressed on this appeal, relates to the acquisition and subsequent sales by Mine Safety of a so-called rebreather device to which, it is alleged, Catalyst had certain rights by virtue of the fa.ct that a Catalyst employee, C. B. Jackson, made several inventions which •were instrumental in its development. To dispose of this appeal we must resolve three questions: (1) Was Jackson employed by Mine Safety or Catalyst at the time he made his rebreather inventions? (2) Were Jackson’s rebreather inventions made in connection with the business of Mine Safety or Catalyst? (3) Did Catalyst, as the subject corporation, have any rights in the rebreather or in profits made from sales of the re-breather ? Under familiar rules governing appellate review we are limited, so far as the factual issues are concerned, to determining whether the trial court’s findings are clearly erroneous. From 1930 to 1935 both Carbon and Catalyst had their place of business in Baltimore. During that period the bulk of Catalyst’s research was done by Frazer and a chemical engineer named Bennett. Early in 1931 Catalyst employed a young chemist, C. B. Jackson, then a student at Johns Hopkins University where Frazer taught, as research assistant. At the time Jackson began his employment he executed a covenant with Catalyst wherein lie agreed that all inventions, ideas and discoveries made in connection with the business of Catalyst would belong to that corporation. The agreement was, by its terms, binding only during his employment by Catalyst. In 1934 Jackson left Catalyst to work for Armour & Company in Chicago, returning in April, 1935, at which time he executed another covenant substantially identical with the 1931 agreement. In 1935, upon Jackson’s return to Catalyst, the base of operations of Carbon and Catalyst was, for reasons of economy, moved from Baltimore to the second floor of a building owned by Mine Safety in Pittsburgh. The court below found that pursuant to an arrangement arrived at by the corporations Jackson worked for both Catalyst and Mine Safety from 1935 to 1940, his salary being allocated between the corporations. The trial judge further found that the utilization of services and the allocation of salary between the corporate defendants was entered into in good faith and was fair and to the best interests of Carbon and Catalyst. From April, 1935, until mid-1936 Jackson was engaged in several relatively minor matters for Mine Safety. His work for Catalyst during that period was confined to research on a hydrogenation catalyst. There was testimony that upon completion of his catalyst research and for lack of other work he spent a part of the summer of 1936 playing golf. In the meantime the officers of Catalyst were considering whether to begin manufacturing the catalyst on a commercial basis. The district court found that by the end of 1938 it was determined that commercial production was not practicable and the project was abandoned. In September, 1936, Mine Safety was engaged in developing a rebreather. Its director of research asked Jackson to work on it for Mine Safety and Jackson did so. Though he was only one of several scientists so employed he did make important contributions to the project and obtained several patents on inventions relating to that work, all of which he assigned to Mine Safety. The evidence indicates that Jackson’s inventions, while not patented until 1939 and later, were conceived from 1936 to 1938. The rebreather was perfected by 1939 and was sold in large quantities, particularly to the government during the late war. All sales were made by Mine Safety and all profits thereon, which were considerable; were retained by it. It is clear that except for such rights as Catalyst may have to the rebreather by virtue of the relationships of the three corporations the validity of its claims to that invention depends upon Jackson’s 1935 covenant. By the terms of the latter Catalyst was entitled to ownership of any discoveries or inventions made by Jackson (1) in connection with the business of and (2) during his employment by Catalyst. The trial court held, 106 F.Supp. 594, and we agree, that under the applicable Pennsylvania law Jackson’s employment with Catalyst was an employment at will. Hogle v. De Long Hook & Eye Company, 1915, 248 Pa. 471, 94 A. 190, and that his employment by Mine Safety did not depend upon his first terminating his connection with Catalyst. Restatement of Agency, Section 226, Comment b; Shaw v. Monessen Southwestern Ry. Co., 3 Cir., 1953, 200 F.2d 841. Appellant does not dispute this latter principle but asserts that Jackson was solely' employed by Catalyst during the critical period. In support of this proposition he relies on an affidavit made by Jackson in October, 1942, in connection with a patent application wherein he states that he was employed by Catalyst from 1935 to 1940 and by Mine Safety since that date. This affidavit is of doubtful value to appellant. Jackson’s testimony shows that he was confused as to which of the corporations employed him at specific times during the 1930’s. He testified that Mine Safety’s patent attorneys prepared the patent application for his signature but could not recall whether he had supplied the information contained therein. This same affidavit recites that Jackson was employed by Carbon from 1930 to 1934 and mentions no employment by Catalyst until 1935, although he originally came to Catalyst in 1931 and was with that concern until sometime in 1934, and in 1931 had executed his first covenant in favor of Catalyst, referred to earlier in this opinion. It would serve no useful purpose to detail all the evidence relating to Jackson’s employment and other issues of fact. Suffice it-to say the findings that Jackson was employed intermittently by both Mine Safety and Catalyst over the period 1935-1940 and that the resultant allocation of services and salary was fair and to the best interests of Catalyst are fully supported by the record, as are the determinations that Jackson’s rebreather inventions were made in connection with the business of Mine Safety, not Catalyst, and that he was employed by Mine Safety, not Catalyst, at the time he conceived them. Finally, we must determine whether Catalyst and, indirectly, Carbon are entitled to rights in the rebreather because of the intercorporate arrangement whereby Jackson’s services were used by Mine Safety, the dominant corporation. Appellant finds no fault with the district court’s holding that because of its control of Carbon and Catalyst through stock ownership and interlocking directorates Mine Safety owed those corporations and their shareholders the same fiduciary obligations it owed its own stockholders. This rule of law was recognized by the Supreme Court in the leading case of Pepper v. Litton, 1939, 308 U.S. 295, 60 S.Ct 238, 84 L.Ed. 281, and is equally applicable in Pennsylvania, Weisbecker v. Hosiery Patents, Inc., 1947, 356 Pa. 244, 51 A.2d 811, whose law governs these intercompany dealings. It seems just as apparent that the burden of proving that such transactions were entered into in good faith and that they are inherently fair and free of fraud, consistent with this fiduciary obligation, is on Mine Safety. Pepper v. Litton, supra; Bonini v. Family Theatre Corporation, 1937, 327 Pa. 273, 194 A. 498. As indicated in our earlier discussion, we are not persuaded that, on the facts, the trial court was in error in holding that Mine Safety had sustained this burden and that the arrangement of sharing Jackson’s services and salary was fair and to the best interests of Catalyst. To the extent that Mine Safety’s alleged misappropriation of the rebreather resulted from the mismanagement of Carbon’s or Catalyst’s own directors the trial court properly found that the burden was on the plaintiff and that it had not been sustained. The applicable law on this phase of the suit is that of Delaware and Maryland, the respective states of incorporation, hut since it is not at variance with Pennsylvania’s, it will not be necessary to discuss it separately. Appellant suggests that the arrangement whereby Jackson worked for both Mine Safety and Catalyst after his return in 1935 is a nullity because minority stockholder approval was neither requested nor obtained. We cannot agree that such approval is a sine qua non to the validity of the arrangement. The decisions on which he relies, such as Pennsylvania Knitting Mills Corp. v. Bayard, 1926, 287 Pa. 216, 134 A. 397, involve intercorporate transactions obviously entered into to mulct the stockholders of the subject corporation and are inapposite here where the controlling corporation has established the fairness and good faith of the transaction. A logical application of the theory which appellant espouses would require that whenever there is any intercorporate dealing, no matter how unimportant it might be, it must he passed upon by the minority stockholders of the subject corporations. The instant case, seen in its proper perspective, illustrates the absurdity of such a rule. At the time the arrangement was entered into it was to Catalyst’s advantage because Mine Safety in taking over part of Jackson’s time for its rebreather operation accepted responsibility for a proportionate share of his salary. That was important to Catalyst because of its currently weak financial status and because it helped keep Jackson available for it in the event it was decided that the hydrogenation catalyst was to be persevered with further. We are of the opinion that minority stockholders are abundantly protected in that kind of situation by the rule that the dominant interests must affirmatively establish the good faith and fairness of such transactions and we have been- cited no pertinent authority to the contrary. In conclusion, we are impressed by appellee’s argument that Mine Safety, as the fiduciary corporation, not only was under no duty to its cestuis to permit them to share in its business opportunities, profits and inventions, but that such gratuities might well subject it to attack by its own stockholders. See Dodge v. Ford Motor Co., 1919, 204 Mich. 459, 170 N.W. 668, 3 A.L.R. 413. The judgment will be affirmed. . This is supported by findings that neither Carbon nor Catalyst was commercially successful and the inference from all of the evidence that those corporations were not financially able to continue paying Jackson’s full salary. . The rebreather is a mechanism containing chemicals which, when acted upon by the moisture of the wearer’s breath, releases oxygen and makes it possible to rebreathe air without the necessity of carrying an oxygen tank. . The district court found that Jackson expressly or impliedly agreed to assign inventions made in connection with Mine Safety projects to that corporation. Jackson did not enter into a formal written contract with Mine Safety until March 1, 1938. . Appellee argues that the affidavit was not admitted as substantive evidence bearing on the issue of Jackson’s employment but was used by plaintiff in cross-examining Jackson, his own witness, after a plea of surprise, presumably to neutralize his testimony. Appellant, on the other hand, states that it was admitted on the question of employment. The only excerpt from the trial transcript appearing in either party’s appendix which relates to this point indicates that the trial court expressly ruled it would not consider the affidavit as proof of Jackson’s employment. No exception was taken to this ruling by plaintiff, nor is any mention of the affidavit made in the district judge’s findings and conclusions. We have ourselves examined the full trial transcript and find that appel-lee’s position is justified. However, this is of no ultimate importance since in our view of this case the purpose for which the affidavit was admitted would not affect the result. . Although Catalyst’s charter may have been flexible enough to permit it to produce the rebreather, there is no evidence that it did so. On the other hand there is ample evidence that Mine Safety was empowered to and did develop that device. . This allegation is, practically speaking, the same as the charge that Mine Safety violated its fiduciary duty to Carbon and Catalyst, since the directors of all three corporations were virtually identical. . That under Pennsylvania law transactions between corporations having interlocking directorates are not void but only voidable and that fraud or unfairness must be shown to avoid them, see Bonini v. Family Theatre Corporation, supra; Bowman v. Gum, Incorporated, 1937, 327 Pa. 403, 193 A. 271 and Mercantile Library Hall Company v. Pittsburg Library Association, 1890, 173 Pa. 30, 33 A. 744. See also 114 A.L.R. 299-318. . In the Bayard ease the officers of an insolvent Pennsylvania corporation caused a Delaware corporation to be organized, ostensibly to operate a spinning mill and invest in the operations of the Pennsylvania company. Although the latter was moribund, its earnings over the preceding three years were represented as having been two and one-balf times the dividend requirements of the Delaware corporation’s 8% preferred stock. The Pennsylvania promoters, after taking a 20% commission out of the $172,000 raised on public sales of preferred stock, acquired control over the Delaware corporation by an exchange of stock and then sold it old machinery which had belonged to the Pennsylvania corporation. Shortly thereafter the latter went into receivership. The funds of the Delaware corporation had disappeared and it found itself owing large sums on notes given to the Pennsylvania corporation, its only asset being the second-hand machinery. The court properly held that the Delaware organization’s minority stockholders, not having approved these transactions, had been defrauded and ordered the bill for an accounting brought against the directors to be reinstated. See also Schmid v. Lancaster Avenue Theatre Co., 1934, 244 Pa. 373, 91 A. 360.

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

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

Joseph P. MURR, et al., Petitioners v. WISCONSIN, et al. No. 15-214. Supreme Court of the United States Argued March 20, 2017. Decided June 23, 2017. John M. Groen, Sacramento, CA, for Petitioners. Misha Tseytlin, Solicitor General, for Respondent Wisconsin. Richard J. Lazarus, Cambridge, MA, for Respondent St. Croix County. Elizabeth B. Prelogar for the United States as amicus curiae, by special leave of the Court, supporting the Respondents. John M. Groen, J. David Breemer, Christopher M. Kieser, Pacific Legal Foundation, Sacramento, CA, for Petitioners. Brad D. Schimel, Attorney General, State of Wisconsin, Department of Justice, Madison, WI, Misha Tseytlin, Solicitor General, Daniel P. Lennington, Luke N. Berg, Deputy Solicitors General, for the State of Wisconsin. Remzy D. Bitar, Matteo Reginato, Arenz, Molter, Macy, Riffle & Larson, S.C., Waukesha, WI, Richard J. Lazarus, Cambridge, MA, for Respondent St. Croix County. Justice KENNEDY delivered the opinion of the Court. The classic example of a property taking by the government is when the property has been occupied or otherwise seized. In the case now before the Court, petitioners contend that governmental entities took their real property-an undeveloped residential lot-not by some physical occupation but instead by enacting burdensome regulations that forbid its improvement or separate sale because it is classified as substandard in size. The relevant governmental entities are the respondents. Against the background justifications for the challenged restrictions, respondents contend there is no regulatory taking because petitioners own an adjacent lot. The regulations, in effecting a merger of the property, permit the continued residential use of the property including for a single improvement to extend over both lots. This retained right of the landowner, respondents urge, is of sufficient offsetting value that the regulation is not severe enough to be a regulatory taking. To resolve the issue whether the landowners can insist on confining the analysis just to the lot in question, without regard to their ownership of the adjacent lot, it is necessary to discuss the background principles that define regulatory takings. I A The St. Croix River originates in northwest Wisconsin and flows approximately 170 miles until it joins the Mississippi River, forming the boundary between Minnesota and Wisconsin for much of its length. The lower portion of the river slows and widens to create a natural water area known as Lake St. Croix. Tourists and residents of the region have long extolled the picturesque grandeur of the river and surrounding area. E.g., E. Ellett, Summer Rambles in the West 136-137 (1853). Under the Wild and Scenic Rivers Act, the river was designated, by 1972, for federal protection. § 3(a)(6), 82 Stat. 908, 16 U.S.C. § 1274(a)(6) (designating Upper St. Croix River); Lower Saint Croix River Act of 1972, § 2, 86 Stat. 1174, 16 U.S.C. § 1274(a)(9) (adding Lower St. Croix River). The law required the States of Wisconsin and Minnesota to develop "a management and development program" for the river area. 41 Fed. Reg. 26237 (1976). In compliance, Wisconsin authorized the State Department of Natural Resources to promulgate rules limiting development in order to "guarantee the protection of the wild, scenic and recreational qualities of the river for present and future generations." Wis. Stat. § 30.27(l ) (1973). Petitioners are two sisters and two brothers in the Murr family. Petitioners' parents arranged for them to receive ownership of two lots the family used for recreation along the Lower St. Croix River in the town of Troy, Wisconsin. The lots are adjacent, but the parents purchased them separately, put the title of one in the name of the family business, and later arranged for transfer of the two lots, on different dates, to petitioners. The lots, which are referred to in this litigation as Lots E and F, are described in more detail below. For the area where petitioners' property is located, the Wisconsin rules prevent the use of lots as separate building sites unless they have at least one acre of land suitable for development. Wis. Admin. Code §§ NR 118.04(4), 118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grandfather clause relaxes this restriction for substandard lots which were "in separate ownership from abutting lands" on January 1, 1976, the effective date of the regulation. § NR 118.08(4)(a)(1). The clause permits the use of qualifying lots as separate building sites. The rules also include a merger provision, however, which provides that adjacent lots under common ownership may not be "sold or developed as separate lots" if they do not meet the size requirement. § NR 118.08(4)(a)(2). The Wisconsin rules require localities to adopt parallel provisions, see § NR 118.02(3), so the St. Croix County zoning ordinance contains identical restrictions, see St. Croix County, Wis., Ordinance § 17.36I.4.a (2005). The Wisconsin rules also authorize the local zoning authority to grant variances from the regulations where enforcement would create "unnecessary hardship." § NR 118.09(4)(b); St. Croix County Ordinance § 17.09.232. B Petitioners' parents purchased Lot F in 1960 and built a small recreational cabin on it. In 1961, they transferred title to Lot F to the family plumbing company. In 1963, they purchased neighboring Lot E, which they held in their own names. The lots have the same topography. A steep bluff cuts through the middle of each, with level land suitable for development above the bluff and next to the water below it. The line dividing Lot E from Lot F runs from the riverfront to the far end of the property, crossing the blufftop along the way. Lot E has approximately 60 feet of river frontage, and Lot F has approximately 100 feet. Though each lot is approximately 1.25 acres in size, because of the waterline and the steep bank they each have less than one acre of land suitable for development. Even when combined, the lots' buildable land area is only 0.98 acres due to the steep terrain. The lots remained under separate ownership, with Lot F owned by the plumbing company and Lot E owned by petitioners' parents, until transfers to petitioners. Lot F was conveyed to them in 1994, and Lot E was conveyed to them in 1995. Murr v. St. Croix County Bd. of Adjustment, 2011 WI App 29, 332 Wis.2d 172, 177-178, 184-185, 796 N.W.2d 837, 841, 844 (2011) ; 2015 WI App 13, 359 Wis.2d 675, 859 N.W.2d 628 (unpublished opinion), App. to Pet. for Cert. A-3, ¶¶ 4-5. (There are certain ambiguities in the record concerning whether the lots had merged earlier, but the parties and the courts below appear to have assumed the merger occurred upon transfer to petitioners.) A decade later, petitioners became interested in moving the cabin on Lot F to a different portion of the lot and selling Lot E to fund the project. The unification of the lots under common ownership, however, had implicated the state and local rules barring their separate sale or development. Petitioners then sought variances from the St. Croix County Board of Adjustment to enable their building and improvement plan, including a variance to allow the separate sale or use of the lots. The Board denied the requests, and the state courts affirmed in relevant part. In particular, the Wisconsin Court of Appeals agreed with the Board's interpretation that the local ordinance "effectively merged" Lots E and F, so petitioners "could only sell or build on the single larger lot." Murr, supra, at 184, 796 N.W.2d, at 844. Petitioners filed the present action in state court, alleging that the state and county regulations worked a regulatory taking by depriving them of "all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot." App. 9. The parties each submitted appraisal numbers to the trial court. Respondents' appraisal included values of $698,300 for the lots together as regulated; $771,000 for the lots as two distinct buildable properties; and $373,000 for Lot F as a single lot with improvements. Record 17-55, 17-56. Petitioners' appraisal included an unrebutted, estimated value of $40,000 for Lot E as an undevelopable lot, based on the counterfactual assumption that it could be sold as a separate property. Id., at 22-188. The Circuit Court of St. Croix County granted summary judgment to the State, explaining that petitioners retained "several available options for the use and enjoyment of their property." Case No. 12-CV-258 (Oct. 31, 2013), App. to Pet. for Cert. B-9. For example, they could preserve the existing cabin, relocate the cabin, or eliminate the cabin and build a new residence on Lot E, on Lot F, or across both lots. The court also found petitioners had not been deprived of all economic value of their property. Considering the valuation of the property as a single lot versus two separate lots, the court found the market value of the property was not significantly affected by the regulations because the decrease in value was less than 10 percent. Ibid. The Wisconsin Court of Appeals affirmed. The court explained that the regulatory takings inquiry required it to " 'first determine what, precisely, is the property at issue.' " Id., at A-9, ¶ 17. Relying on Wisconsin Supreme Court precedent in Zealy v. Waukesha, 201 Wis.2d 365, 548 N.W.2d 528 (1996), the Court of Appeals rejected petitioners' request to analyze the effect of the regulations on Lot E only. Instead, the court held the takings analysis "properly focused" on the regulations' effect "on the Murrs' property as a whole"-that is, Lots E and F together. App. to Pet. for Cert. A-12, ¶ 22. Using this framework, the Court of Appeals concluded the merger regulations did not effect a taking. In particular, the court explained that petitioners could not reasonably have expected to use the lots separately because they were " 'charged with knowledge of the existing zoning laws' " when they acquired the property. Ibid. (quoting Murr, supra, at 184, 796 N.W.2d, at 844 ). Thus, "even if [petitioners] did intend to develop or sell Lot E separately, that expectation of separate treatment became unreasonable when they chose to acquire Lot E in 1995, after their having acquired Lot F in 1994." App. to Pet. for Cert. A-17, ¶ 30. The court also discounted the severity of the economic impact on petitioners' property, recognizing the Circuit Court's conclusion that the regulations diminished the property's combined value by less than 10 percent. The Supreme Court of Wisconsin denied discretionary review. This Court granted certiorari, 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016). II A The Takings Clause of the Fifth Amendment provides that private property shall not "be taken for public use, without just compensation." The Clause is made applicable to the States through the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). As this Court has recognized, the plain language of the Takings Clause "requires the payment of compensation whenever the government acquires private property for a public purpose," see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), but it does not address in specific terms the imposition of regulatory burdens on private property. Indeed, "[p]rior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), it was generally thought that the Takings Clause reached only a direct appropriation of property, or the functional equivalent of a practical ouster of the owner's possession," like the permanent flooding of property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (citation, brackets, and internal quotation marks omitted); accord, Horne v. Department of Agriculture, 576 U.S. ----, ----, 135 S.Ct. 2419, 2427, 192 L.Ed.2d 388 (2015) ; see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Mahon, however, initiated this Court's regulatory takings jurisprudence, declaring that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." 260 U.S., at 415, 43 S.Ct. 158. A regulation, then, can be so burdensome as to become a taking, yet the Mahon Court did not formulate more detailed guidance for determining when this limit is reached. In the near century since Mahon, the Court for the most part has refrained from elaborating this principle through definitive rules. This area of the law has been characterized by "ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances." Tahoe-Sierra, supra, at 322, 122 S.Ct. 1465 (citation and internal quotation marks omitted). The Court has, however, stated two guidelines relevant here for determining when government regulation is so onerous that it constitutes a taking. First, "with certain qualifications... a regulation which 'denies all economically beneficial or productive use of land' will require compensation under the Takings Clause." Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Lucas, supra, at 1015, 112 S.Ct. 2886 ). Second, when a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on "a complex of factors," including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Palazzolo, supra, at 617, 121 S.Ct. 2448 (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) ). By declaring that the denial of all economically beneficial use of land constitutes a regulatory taking, Lucas stated what it called a "categorical" rule. See 505 U.S., at 1015, 112 S.Ct. 2886. Even in Lucas, however, the Court included a caveat recognizing the relevance of state law and land-use customs: The complete deprivation of use will not require compensation if the challenged limitations "inhere... in the restrictions that background principles of the State's law of property and nuisance already placed upon land ownership." Id., at 1029, 112 S.Ct. 2886 ; see also id., at 1030-1031, 112 S.Ct. 2886 (listing factors for courts to consider in making this determination). A central dynamic of the Court's regulatory takings jurisprudence, then, is its flexibility. This has been and remains a means to reconcile two competing objectives central to regulatory takings doctrine. One is the individual's right to retain the interests and exercise the freedoms at the core of private property ownership. Cf. id., at 1028, 112 S.Ct. 2886 ("[T]he notion... that title is somehow held subject to the 'implied limitation' that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture"). Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them. The other persisting interest is the government's well-established power to "adjus[t] rights for the public good." Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979). As Justice Holmes declared, "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Mahon, supra, at 413, 43 S.Ct. 158. In adjudicating regulatory takings cases a proper balancing of these principles requires a careful inquiry informed by the specifics of the case. In all instances, the analysis must be driven "by the purpose of the Takings Clause, which is to prevent the government from 'forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' " Palazzolo, supra, at 617-618, 121 S.Ct. 2448 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) ). B This case presents a question that is linked to the ultimate determination whether a regulatory taking has occurred: What is the proper unit of property against which to assess the effect of the challenged governmental action? Put another way, "[b]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property 'whose value is to furnish the denominator of the fraction.' " Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (quoting Michelman, Property, Utility, and Fairness, 80 Harv. L. Rev. 1165, 1992 (1967) ). As commentators have noted, the answer to this question may be outcome determinative. See Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St. L. Rev. 601, 631 (2014); see also Wright, A New Time for Denominators, 34 Env. L. 175, 180 (2004). This Court, too, has explained that the question is important to the regulatory takings inquiry. "To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question." Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 644, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). Defining the property at the outset, however, should not necessarily preordain the outcome in every case. In some, though not all, cases the effect of the challenged regulation must be assessed and understood by the effect on the entire property held by the owner, rather than just some part of the property that, considered just on its own, has been diminished in value. This demonstrates the contrast between regulatory takings, where the goal is usually to determine how the challenged regulation affects the property's value to the owner, and physical takings, where the impact of physical appropriation or occupation of the property will be evident. While the Court has not set forth specific guidance on how to identify the relevant parcel for the regulatory taking inquiry, there are two concepts which the Court has indicated can be unduly narrow. First, the Court has declined to limit the parcel in an artificial manner to the portion of property targeted by the challenged regulation. In Penn Central, for example, the Court rejected a challenge to the denial of a permit to build an office tower above Grand Central Terminal. The Court refused to measure the effect of the denial only against the "air rights" above the terminal, cautioning that " '[t]aking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." 438 U.S., at 130, 98 S.Ct. 2646. In a similar way, in Tahoe-Sierra, the Court refused to "effectively sever" the 32 months during which petitioners' property was restricted by temporary moratoria on development "and then ask whether that segment ha[d] been taken in its entirety." 535 U.S., at 331, 122 S.Ct. 1465. That was because "defining the property interest taken in terms of the very regulation being challenged is circular." Ibid. That approach would overstate the effect of regulation on property, turning "every delay" into a "total ban." Ibid. The second concept about which the Court has expressed caution is the view that property rights under the Takings Clause should be coextensive with those under state law. Although property interests have their foundations in state law, the Palazzolo Court reversed a state-court decision that rejected a takings challenge to regulations that predated the landowner's acquisition of title. 533 U.S., at 626-627, 121 S.Ct. 2448. The Court explained that States do not have the unfettered authority to "shape and define property rights and reasonable investment-backed expectations," leaving landowners without recourse against unreasonable regulations. Id., at 626, 121 S.Ct. 2448. By the same measure, defining the parcel by reference to state law could defeat a challenge even to a state enactment that alters permitted uses of property in ways inconsistent with reasonable investment-backed expectations. For example, a State might enact a law that consolidates nonadjacent property owned by a single person or entity in different parts of the State and then imposes development limits on the aggregate set. If a court defined the parcel according to the state law requiring consolidation, this improperly would fortify the state law against a takings claim, because the court would look to the retained value in the property as a whole rather than considering whether individual holdings had lost all value. III A As the foregoing discussion makes clear, no single consideration can supply the exclusive test for determining the denominator. Instead, courts must consider a number of factors. These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Cf. Lucas, 505 U.S., at 1035, 112 S.Ct. 2886 (KENNEDY, J., concurring) ("The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved"). First, courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law. The reasonable expectations of an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property. See Ballard v. Hunter, 204 U.S. 241, 262, 27 S.Ct. 261, 51 L.Ed. 461 (1907) ("Of what concerns or may concern their real estate men usually keep informed, and on that probability the law may frame its proceedings"). A valid takings claim will not evaporate just because a purchaser took title after the law was enacted. See Palazzolo, 533 U.S., at 627, 121 S.Ct. 2448 (some "enactments are unreasonable and do not become less so through passage of time or title"). A reasonable restriction that predates a landowner's acquisition, however, can be one of the objective factors that most landowners would reasonably consider in forming fair expectations about their property. See ibid. ("[A] prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned"). In a similar manner, a use restriction which is triggered only after, or because of, a change in ownership should also guide a court's assessment of reasonable private expectations. Second, courts must look to the physical characteristics of the landowner's property. These include the physical relationship of any distinguishable tracts, the parcel's topography, and the surrounding human and ecological environment. In particular, it may be relevant that the property is located in an area that is subject to, or likely to become subject to, environmental or other regulation. Cf. Lucas, supra, at 1035, 112 S.Ct. 2886 (KENNEDY, J., concurring) ("Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit"). Third, courts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings. Though a use restriction may decrease the market value of the property, the effect may be tempered if the regulated land adds value to the remaining property, such as by increasing privacy, expanding recreational space, or preserving surrounding natural beauty. A law that limits use of a landowner's small lot in one part of the city by reason of the landowner's nonadjacent holdings elsewhere may decrease the market value of the small lot in an unmitigated fashion. The absence of a special relationship between the holdings may counsel against consideration of all the holdings as a single parcel, making the restrictive law susceptible to a takings challenge. On the other hand, if the landowner's other property is adjacent to the small lot, the market value of the properties may well increase if their combination enables the expansion of a structure, or if development restraints for one part of the parcel protect the unobstructed skyline views of another part. That, in turn, may counsel in favor of treatment as a single parcel and may reveal the weakness of a regulatory takings challenge to the law. State and federal courts have considerable experience in adjudicating regulatory takings claims that depart from these examples in various ways. The Court anticipates that in applying the test above they will continue to exercise care in this complex area. B The State of Wisconsin and petitioners each ask this Court to adopt a formalistic rule to guide the parcel inquiry. Neither proposal suffices to capture the central legal and factual principles that inform reasonable expectations about property interests. Wisconsin would tie the definition of the parcel to state law, considering the two lots here as a single whole due to their merger under the challenged regulations. That approach, as already noted, simply assumes the answer to the question: May the State define the relevant parcel in a way that permits it to escape its responsibility to justify regulation in light of legitimate property expectations? It is, of course, unquestionable that the law must recognize those legitimate expectations in order to give proper weight to the rights of owners and the right of the State to pass reasonable laws and regulations. See Palazzolo, supra, at 627, 121 S.Ct. 2448. Wisconsin bases its position on a footnote in Lucas, which suggests the answer to the denominator question "may lie in how the owner's reasonable expectations have been shaped by the State's law of property-i.e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value." 505 U.S., at 1017, n. 7, 112 S.Ct. 2886. As an initial matter, Lucas referenced the parcel problem only in dicta, unnecessary to the announcement or application of the rule it established. See ibid. ("[W]e avoid th[e] difficulty" of determining the relevant parcel "in the present case"). In any event, the test the Court adopts today is consistent with the respect for state law described in Lucas. The test considers state law but in addition weighs whether the state enactments at issue accord with other indicia of reasonable expectations about property. Petitioners propose a different test that is also flawed. They urge the Court to adopt a presumption that lot lines define the relevant parcel in every instance, making Lot E the necessary denominator. Petitioners' argument, however, ignores the fact that lot lines are themselves creatures of state law, which can be overridden by the State in the reasonable exercise of its power. In effect, petitioners ask this Court to credit the aspect of state law that favors their preferred result (lot lines) and ignore that which does not (merger provision). This approach contravenes the Court's case law, which recognizes that reasonable land-use regulations do not work a taking. See Palazzolo, 533 U.S., at 627, 121 S.Ct. 2448 ; Mahon, 260 U.S., at 413, 43 S.Ct. 158. Among other cases, Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), demonstrates the validity of this proposition because it upheld zoning regulations as a legitimate exercise of the government's police power. Of course, the Court's later opinion in Lingle v. Chevron U.S.A. Inc. recognized that the test articulated in Agins -that regulation effects a taking if it " 'does not substantially advance legitimate state interests' "-was improper because it invited courts to engage in heightened review of the effectiveness of government regulation. 544 U.S. 528, 540, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) (quoting Agins, supra, at 260, 100 S.Ct. 2138 ). Lingle made clear, however, that the holding of Agins survived, even if its test was "imprecis[e]." See 544 U.S., at 545-546, 548, 125 S.Ct. 2074. The merger provision here is likewise a legitimate exercise of government power, as reflected by its consistency with a long history of state and local merger regulations that originated nearly a century ago. See Brief for National Association of Counties et al. as Amici Curiae 5-10. Merger provisions often form part of a regulatory scheme that establishes a minimum lot size in order to preserve open space while still allowing orderly development. See E. McQuillin, Law of Municipal Corporations § 25:24 (3d ed. 2010) ; see also Agins, supra, at 262, 100 S.Ct. 2138 (challenged "zoning ordinances benefit[ed] the appellants as well as the public by serving the city's interest in assuring careful and orderly development of residential property with provision for open-space areas"). When States or localities first set a minimum lot size, there often are existing lots that do not meet the new requirements, and so local governments will strive to reduce substandard lots in a gradual manner. The regulations here represent a classic way of doing this: by implementing a merger provision, which combines contiguous substandard lots under common ownership, alongside a grandfather clause, which preserves adjacent substandard lots that are in separate ownership. Also, as here, the harshness of a merger provision may be ameliorated by the availability of a variance from the local zoning authority for landowners in special circumstances. See 3 E. Ziegler, Rathkopf's Law of Zoning and Planning § 49:13 (39th ed. 2017). Petitioners' insistence that lot lines define the relevant parcel ignores the well-settled reliance on the merger provision as a common means of balancing the legitimate goals of regulation with the reasonable expectations of landowners. Petitioners' rule would frustrate municipalities' ability to implement minimum lot size regulations by casting doubt on the many merger provisions that exist nationwide today. See Brief for National Association of Counties et al. as Amici Curiae 12-31 (listing over 100 examples of merger provisions). Petitioners' reliance on lot lines also is problematic for another reason. Lot lines have varying degrees of formality across the States, so it is difficult to make them a standard measure of the reasonable expectations of property owners. Indeed, in some jurisdictions, lot lines may be subject to informal adjustment by property owners, with minimal government oversight. See Brief for California et al. as Amici Curiae 17; 1 J. Kushner, Subdivision Law and Growth Management § 5:8 (2d ed. 2017) (lot line adjustments that create no new parcels are often exempt from subdivision review); see, e.g., Cal. Govt.Code Ann. § 66412(d) (West 2016) (permitting adjustment of lot lines subject to limited conditions for government approval). The ease of modifying lot lines also creates the risk of gamesmanship by landowners, who might seek to alter the lines in anticipation of regulation that seems likely to affect only part of their property. IV Under the appropriate multifactor standard, it follows that for purposes of determining whether a regulatory taking has occurred here, petitioners' property should be evaluated as a single parcel consisting of Lots E and F together. First, the treatment of the property under state and local law indicates petitioners' property should be treated as one when considering the effects of the restrictions. As the Wisconsin courts held, the state and local regulations merged Lots E and F. E.g., App. to Pet. for Cert. A-3, ¶ 6 ("The 1995 transfer of Lot E brought the lots under common ownership and resulted in a merger of the two lots under [the local ordinance]"). The decision to adopt the merger provision at issue here was for a specific and legitimate purpose, consistent with the widespread understanding that lot lines are not dominant or controlling in every case. See supra, at 1947 - 1948. Petitioners' land was subject to this regulatory burden, moreover, only because of voluntary conduct in bringing the lots under common ownership after the regulations were enacted. As a result, the valid merger of the lots under state law informs the reasonable expectation they will be treated as a single property. Second, the physical characteristics of the property support its treatment as a unified parcel. The lots are contiguous along their longest edge. Their rough terrain and narrow shape make it reasonable to expect their range of potential uses might be limited. Cf. App. to Pet. for Cert. A-5, ¶ 8 ("[Petitioners] asserted Lot E could not be put to alternative uses like agriculture or commerce due to its size, location and steep terrain"). The land's location along the river is also significant. Petitioners could have anticipated public regulation might affect their enjoyment of their property, as the Lower St. Croix was a regulated area under federal, state, and local law long before petitioners possessed the land. Third, the prospective value that Lot E brings to Lot F supports considering the two as one parcel for

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

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

Charles A. LINEHAN et al., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 5831. United States Court of Appeals First Circuit. Dec. 15, 1961. James D. Dow, Boston, Mass., for petitioners. David 0. Walter, Atty., Dept, of Justice, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen. and Meyer Rothwacks, Atty., Dept, of Justice, Washington, D. C., on the brief, for respondent, Before W00DBUIlY) Chief Judge, and h ARTIGAN and ALDRICH, Circuit judges WOODBURY, Chief Judge. This petition to review a decision of the Tax Court of the United States presents a question of the proper tax treatment of amounts received under contracts permitting removal of sand and gravel from a taxpayer’s land. There is no real dispute over the facts, some of which are stlPulated- The petitioners are husband and wife who filed joint income tax returns for the years involved, 1953, 1954 and 1955. The husband, Charles A. Linehan, to whom we shall refer hereinafter as petitioner or taxpayer, was a full time teacher for 44 years until he retired in 1957. At the times pertinent he owned an approximately 17 acre tract of land in Lexington, Massachusetts, containing deposits of sand and gravel. Since the property was zoned for industrial use, he decided to sell the sand and gravel on it down to the level of the access street, which was 125 feet above sea level, and then offer the entire tract as a whole for development for industrial purposes, In-1949 in prosecution of his plan the tax entered into an oral agreement with Higllland Sand and Gravel Com„ pany, a “big concern” having sand and gravel property near by and machinery for processing that material on its property whereby the latter excavated sand and gravel from the taxpayer’s property at a fixed price per cubic yard down to an elevation of 125 feet above sea level. The amount taken was determined by quantity survey. Highland immediately removed sand and gravel from the taxpayer’s property, took the material to its own plant for processing, and thereafter presumably sold it, and continued to do so until April 1952 when, nearing the end of its operations, it started to remove sand and gravel constituting lateral support of a contiguous property not owned by the taxpayer. This caused considerable controversy between the owner of the contiguous property, the taxpayer and Highland, and resulted in cessation of operations by the latter leaving approximately 4 acres of the taxpayer’s property with sand and gravel deposits on it above the 125 foot level. No more material was removed from the taxpayer’s land until 1954 when he and the owner of the adjoining tract agreed to permit the removal of sand and gravel across their common property line. Upon reaching that agreement the taxpayer entered into two written contracts, one in May 1954 and another in December of that year with Wes-Julian Construction Corporation, which was in need of sand and gravel in the prosecution of work it had undertaken under contract with the United States on an airport near by. These contracts are alike in that they are couched in terms of exclusive “right to remove” sand and gravel from the taxpayer’s land, provide for the payment of fixed prices .per cubic yard for material removed above a given level, in one instance 128 feet above sea level and the other 125 feet above sea level, and provide that the amount of material removed shall.be determined by quantity survey. They differ in that the first one requires an advance payment by Wes-Julian of $1,000 as liquidated damages in the event that it should fail to remove $5,000 worth of sand and gravel and in-that the second one requires Wes-Julian at a lesser price per cubic yard to fill an approximately 2 acre depression on the property left by a prior excavation. Wes-Julian -removed all the sand and gravel included in the contracts except a small portion on one side of the property, the removal of which would have taken away the lateral support of adjacent land not owned by the taxpayer. The Tax Court found that further deposits of sand and gravel remained on the property after removal of all that material above the 125 foot level, and that the property was far more valuable after the deposits were removed than it had been before. The taxpayer in his returns for the years in question treated his net receipts from the extraction of sand and gravel from his property by Highland under the oral arrangement and by Wes-Julian under the written contracts as receipts from the sale of long term capital assets and therefore as long term capital gains. The Commissioner disagreed. He determined that the taxpayer’s receipts were ordinary income but allowed deductions therefrom of 5'% of gross receipts as percentage depletion and assessed deficiencies accordingly. The Tax Court, three judges dissenting, agreed with the Commissioner. We do not agree with the Tax Court. The allowance for- depletion, which has long been recognized in the revenue laws, is based on the theory that, the extraction of minerals gradually exhausts the capital investment in the-mineral deposit. Commissioner v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347 (1956). Therefore, as the Court had previously pointed out in Kirby Petroleum Co. v. Commissioner, 326 U.S. 599, 603, 66 S.Ct. 409, 411, 90 L.Ed. 343 (1946), it follows from this theory “ * * * that only a taxpayer with an economic interest in-the assets,” in that case oil, “is entitled to the depletion.” In this connection the Court pointed out that technical title to-the deposit in place is not important, for that may depend upon the law of the state-in which the property lies. “Economic interest,” it said on the following page of its opinion in 326 U.S. at page 411 of 66 S.Ct., “does not mean title to the oil in place but the possibility of profit from-i that economic interest dependent solely upon the extraction and sale of the oil.” Applying these general principles to the facts before it the Court determined that the landowners-taxpayers were les-, sors who had an “economic interest, a capital investment” in the oil after extraction by the persons to whom they had granted exploitation rights, not only because the parties were so denominated in the agreements but also because the consideration paid by the exploiters, called bonuses and royalties, was based upon the net profits accruing to them as a result of their operations. The Court at page 607, 66 S.Ct. at page 412 summarized its opinion as follows: “In our view, the 'net profit’ payments in these cases flow directly from the taxpayers’ economic interest in the oil and partake of the quality of rent rather than of a sale price. Therefore, the capital investment of the lessors is reduced by the extraction of the oil and the lessors should have depletion.” While Kirby Petroleum, supra, was concerned with the narrow issue of deductibility of the depletion allowance for the extraction of oil, gas, and other minerals, the general principles upon which the case rested provide the touchstone for decision of the present problem of whether these agreements yielded ordinary income or capital gains. We do not gather from Kirby that decision in cases like this turns entirely upon whether a given transaction between a landowner and his grantee of the right to exploit mineral deposits on his land is technically a lease or a sale. Whether a given transaction is clearly one or the other may be indicative of the result but is not necessarily determinative. Indeed, should the test be whether a transaction is strictly speaking a “sale” or a “lease” we would be at a loss to know how to decide this case, for the contracts under consideration are in terms of “right to remove.” They are not couched in terms of purchase and sale as in Crowell Land & Mineral Corp. v. Commissioner, 242 F.2d 864 (C.A.5, 1957). Nor do the contracts describe the parties as lessor and lessee and denominate the remuneration given for the sand and gravel as a royalty as in Albritton v. Commissioner, 248 F.2d 49 (C.A.5, 1957). But cases like this do not turn upon the use of words alone unless it is abundantly clear that the words used by the parties were chosen with precision and accurately reflect their intention and the “true substance” of the transaction entered into between them. See Barker v. Commissioner, 250 F.2d 195, 197 (C.A.2, 1957). Turning then to the “true substance” of the transactions between this taxpayer and those to whom he gave the right to remove sand and gravel from his property, it is evident that the taxpayer had no “economic interest” in the material taken from his property after its severance, for in every instance he sold sand and gravel for fixed prices per cubic yard without reference to the prices received or the profits, if any, made by the exploiters. In this respect the case at bar is similar to Crowell Land & Mineral Corp. v. Commissioner and Barker v. Commissioner, and clearly distinguishable from Albritton v. Commissioner. Also it is similar in this respect to Dann v. Commissioner, 30 T.C. 499 (1958), which in the case at bar the Tax Court undertook to distinguish on a number of, to us, quite irrelevant factual grounds such as that in this case the taxpayer’s property was worth more after the extraction of the sand and gravel on it whereas the opposite was the case in Dann. Judge Murdock in his dissenting opinion in this case put the matter in a nutshell saying: “The present case is not distinguishable from the Dann case or from other of the cases cited above. The petitioner sold the material for a fixed price per unit removed. Nothing was to vary that price or the vendee’s obligation to pay it. Petitioner was in no way to benefit from the removal of the material ex-eept by the payment of a fixed price per unit. Particularly, he was not to share in any profit or income derived by the vendee from the removal of the material. It should be held on these facts and on the authority of the prior opinions that the gam here involved should be taxed at capital gam rates. We agree with Judge Murdock. Judgment will be entered reversing the decision of the Tax Court of the United States and remanding the case to that Court for further consistent proceedings. . The fact that under the Wes-Julian contracts payment for the sand and gravel was not to be made until after the excavator received payment from the United States under the contract it had entered into with the latter for the construction of a nearby airport goes only to the time of payment, not to the price paid.

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

MUSIDOR, B. V., and Michael Phillip Jagger, Keith Richards, William George Wyman, Charles Robert Watts, p/k/a The Rolling Stones, Plaintiffs-Appellees, v. GREAT AMERICAN SCREEN, a/k/a Be-Down Home Designs and Leon Dymburt, Defendants-Appellants. WINTERLAND CONCESSIONS CO., a California Corporation, d/b/a Winterland Concessions et al., Plaintiffs-Appellees, v. GREAT AMERICAN SCREEN DESIGNS, LTD., a/k/a Down Home Designs, Ltd., and Leon Dymburt, Defendants-Appellants. No. 1535, Docket 81-1140. United States Court of Appeals, Second Circuit. Argued June 9, 1981. Decided August 21, 1981. Janet Cunard, Morosco & Cunard, White Plains, N. Y., for defendants-appellants. Peter A. Herbert, Parcher & Herbert, New York City, for plaintiffs-appellees. Before OAKES and KEARSE, Circuit Judges, and RE, Chief Judge, United States Court of International Trade. Sitting by designation. OAKES, Circuit Judge: This appeal by Leon Dymburt and Great American Screen is from a criminal contempt conviction for violating a preliminary injunction. Originally two suits were brought in the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, for commercial exploitation by way of “bootlegging” silk-screened T-shirts. In one suit brought on June 30, 1978, by Musidor, B. V., and the individuals constituting the “rock” group known as “The Rolling Stones” (the Rolling Stones suit), Judge Nickerson entered a preliminary injunction which upon consent of Great American Screen Designs, Ltd., was made permanent on March 29, 1979. The second suit was brought by Winterland Concessions Co., a California corporation holding commercial rights to the trademarks of the rock groups known as “The Grateful Dead” and “Fleetwood Mac” (the Grateful Dead suit), and on November 30, 1979, Judge Nickerson entered a preliminary injunction in that case also. When it appeared that Great American and Dymburt were violating the preliminary injunctions against dealing in any goods upon which were displayed a trademark of the respective musical groups, the plaintiffs-appellees sought an order under Federal Rule of Criminal Procedure 42(b) directing the United States Attorney or appointing a special attorney to prosecute charges of criminal contempt. Parcher & Herbert, who represented the plaintiffs-appellees in both actions, were appointed as special attorneys to prosecute the charges. After hearing evidence the court found that both Dymburt and Great American deliberately violated the order of June 30, 1978, in the Rolling Stones case but found Dymburt innocent, though Great American guilty, of violating the November 30, 1979, order in the Grateful Dead case. A sentence of sixty days was imposed upon Dymburt and concurrent fines of $10,000 were imposed upon Great American. On appeal the appellants argued that their guilt was not proved beyond a reasonable doubt; that their prdsecution by the attorney for a civil litigant violated their due process rights; that the charges were improperly prosecuted; that the appellant Great American was charged with a serious contempt as to which it had a right to trial by jury; and, finally, that their sentences were excessive. We affirm. Appellants’ first point, that guilt was not proved beyond a reasonable doubt, can be readily disposed of. In the Rolling Stones case Judge Nickerson found credible testimony from Paul Keim. Keim worked as a silkscreen technician for Down Home Designs, Ltd., and its successor, Great American Screen Designs, Ltd., from June 1977 to May 1979. According to Keim, the day after the Musidor complaint was filed the defendant Dymburt told him to move ten to twenty screens used to print the Rolling Stones T-shirts, from the Great American premises on the fifth floor of 144 Spencer Street in Brooklyn, New York, to be hidden in the basement of the building. He further testified that through July 1978, after the June 30 preliminary injunction had been issued, the defendants continued to print Rolling Stones T-shirts; the printing was done by night shifts using and then resecreting the screens stored in the basement. While Keim worked only the day shift, he said he occasionally assisted in moving the screens upstairs. He also said that before he left at night he saw the screens set up on the press to be run, and when, he returned in the morning the shirts were “boxed” in plastic bags waiting to be picked up by salesmen. While Keim’s testimony was disputed in part by the building superintendent and his assistant, we cannot hold that Judge Nickerson’s findings of guilt beyond a reasonable doubt in the case of Dymburt and Great American were clearly erroneous. Appellants also raised several arguments going to Keim’s credibility, all of which had been presented at trial in the form of cross-examination, but we find none of them compelling. The judge’s finding of Great American’s guilt in the Grateful Dead case is similarly nonreversible. Evidence in the case was based upon testimony of a licensed private investigator, John McNally, who conducted surveillance at 144 Spencer Street on behalf of the plaintiffs. Judge Nickerson accepted his testimony that on May 14, 1980, he trailed a blue Dodge van carrying three cellophane packs of Grateful Dead T-shirts like those he had seen at the offices of plaintiff’s counsel. He further testified that he followed the van to the Nassau Coliseum where he purchased a Grateful Dead T-shirt from the passenger in the van. On May 16, 1980, McNally saw a distinctive Chevrolet Nova arrive at 144 Spencer Street, heard the driver ask the elevator operator for the fifth floor and saw the man leave with an armload of cellophane packs containing T-shirts which he put in the trunk of the vehicle. McNally followed the Nova to Nassau Coliseum and proceeded to purchase two Grateful Dead T-shirts from the driver of the car. Appellants on appeal quarrel with the inferences that may be drawn from McNally’s testimony, pointing out that McNally could not tell what was in the plastic bags when they were carried down to the respective van and automobile or what the vehicles had contained before they arrived at the defendant’s premises. Appellants also challenge McNally’s claim that what he saw in the van were Grateful Dead T-shirts because he saw only a portion of the inscription on them. But these are merely quarrels as to what inferences to draw. And while there was testimony from another silkscreen T-shirt maker that the exhibits could have been printed on one of his own or a competitor’s machines, there was no evidence to suggest that in fact they had been so printed, and there was ample evidence to support the verdict. Appellants next argue that due process was violated by the appointment of civil plaintiff’s counsel to prosecute the criminal contempt. The injunctions violated by the appellants were issued in civil actions in which substantial damages were sought. Appellants contend that the prosecuting attorney’s financial interest in the outcome of the pending civil actions was an inducement for him to act unfairly in the trial of the contempt charges. Therefore the criminal contempt should have been prosecuted by the United States Attorney or by a disinterested attorney appointed under Rule 42(b). In the leading case of McCann v. New York Stock Exchange, 80 F.2d 211, 214 (2d Cir. 1935), cert. denied sub nom. McCann v. Leibell, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444 (1936), Judge Learned Hand acknowledged that to prosecute a criminal contempt committed outside the presence of the court, “the judge may prefer to use the attorney of a party, who will indeed ordinarily be his only means of information .... There is no reason why he should not do so, and every reason why he should . . .. ” Appellants are well aware that the Advisory Committee on Rules relied upon the McCann case in establishing Federal Rule of Criminal Procedure 42. In particular, Paragraph (b) of Rule 42 provides that notice clearly describe the criminal contempt so as to obviate the confusion experienced by the accused in the McCann proceedings as to whether he was being prosecuted criminally or civilly. Nevertheless, appellants argue that an attorney for a civil litigant is not properly assigned to prosecute another party for criminal contempt, citing In re Lahm Industries, Inc., 609 F.2d 567 (1st Cir. 1979); Ramos Colon v. United States Attorney for District of Puerto Rico, 576 F.2d 1 (1st Cir. 1978); and Kienle v. Jewel Tea Co., 222 F.2d 98, 100 (7th Cir. 1955). These cases hold merely that the original civil litigant is not a party in interest and therefore has no standing to prosecute an action for criminal contempt on his own initiative, and thus they lend no support to appellants’ argument. Appellants also cite Brotherhood of Locomotive Firemen and Enginemen v. United States, 411 F.2d 312, 319 (5th Cir. 1969), which makes the broad statement that “the National Sovereign, through its chosen law officers, should be in control of criminal contempt proceedings.” There the court found a “due process deficiency” because the notice of charges was vague and only one day was allowed to prepare the defense. Id. at 318-19. That was not the situation in the case at bar, nor have appellants claimed any such deficiency. Indeed, we have investigated the record to determine whether there were any conceivable due process violations arising out of the prosecution of the criminal contempt case by the plaintiffs-appellees’ counsel, and have found none. The notice of motion under Rule 42(b) spoke clearly of criminal contempt charges and defined the charges in detail; annexed to the motion were affidavits of the key witnesses, whose testimony was elicited at the contempt hearing. The accompanying memorandum of law specifically referred to 18 U.S.C. § 401, the criminal statute empowering the court to punish disobedience of its lawful orders by fine or imprisonment. The defendants had approximately six months within which to prepare a defense to the charges and to make whatever motions they deemed appropriate. Following the initiation of contempt proceedings, no effort was made by the plaintiffs in the underlying civil litigation to pursue discovery, and for a period of about one year from when the notice of motion was filed, the civil proceedings remained at a standstill. The contempt defendants were afforded the presumption of innocence, were not compelled to testify, and elected not to take the witness stand. No testimony elicited in the civil proceeding, including the testimony at the preliminary injunction hearings, was used at the contempt proceedings. The plaintiffs never sought either damages or costs. The standard of proof applied was guilt beyond a reasonable doubt. Given, then, that all of the customary due process rights in a criminal case were accorded to the plaintiffs-appellants, we distinguish Brotherhood of Locomotive Firemen on its facts and decline to follow its sweeping dictum. Neither Rule 42 nor the Due Process clause requires the court to select counsel from the staff of the United States Attorney to prosecute a criminal contempt. The practicalities of the situation — when the criminal contempt occurs outside the presence of the court but in civil litigation — require that the court be permitted to appoint counsel for the opposing party to prosecute the contempt. There is no fund out of which to pay other counsel in such an event, nor would it be proper that he be paid by the opposing party. This is not the kind of case for which legal aid societies or public defenders are available. In short, we follow the above quoted statement by Judge Hand in McCann. See also Frank v. United States, 384 F.2d 276, 278 (10th Cir. 1967) (SEC attorney appointed in SEC case), aff’d on other grounds, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); United States ex rel. Brown v. Lederer, 140 F.2d 136, 138 (7th Cir.), cert. denied, 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568 (1944). See generally Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183 (1971). Appellants argue that after the motion to appoint an attorney was granted, the charges were not properly prosecuted because no application was made under Rule 42(b) for an order to show cause or an order of arrest, and the prosecution was not brought in the name of the Government. However, we believe that the notice of motion denominated “Notice of Motion to Designate Special Prosecutor of Criminal Contempt Charges” clearly sufficed as an application for an order to show cause. Annexed to the papers were copies of court orders, affidavits of the key witnesses, and a memorandum of law with reference to the appropriate statutes. The defendants were given a detailed description of the charges and a preview of the principal witnesses’ testimony. No further technical pleadings were required. See Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963). Appellant Dymburt also claims that he lacked adequate notice of the criminal contempt proceedings because he was not a named party to the Rolling Stones action. But as president and chief operating officer of Great American, Dymburt admittedly was bound by the order enjoining Great American, its officers and directors from engaging in specific prohibited conduct, and his attorney received notice of the motion claiming that Dymburt had violated that order. Appellants argue that a jury trial was required, although they fail to refer us to any indication in the record that one was requested or sought. The Supreme Court has held that a jury trial must be available in a criminal contempt case only when the offense is more than a petty one. See Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Relying upon 18 U.S.C. § l, the Court has determined that a criminal contempt can be deemed a petty offense when the penalty authorized for it does not exceed six months’ imprisonment. Cheff v. Schnackenberg, 384 U.S. 373, 379, 86 S.Ct. 1523, 1525, 16 L.Ed.2d 629 (1966). See also Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974); Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970); Frank v. United States, 395 U.S. 147, 149-50, 89 S.Ct. 1503, 1505-06, 23 L.Ed.2d 162 (1969). In this instance Congress has not expressed a judgment as to the seriousness of the offense by fixing a maximum penalty which may be imposed for criminal contempt. Therefore, under the rule of Cheff, readopted in Bloom, 391 U.S. at 211, 88 S.Ct. at 1487, we must look to the penalty actually imposed as best evidence of the seriousness of the offense. 384 U.S. at 379-80, 86 S.Ct. at 1526. See also Duncan v. Louisiana, 391 U.S. 145, 162 n.35, 88 S.Ct. 1444, 1454 n.35, 20 L.Ed.2d 491 (1968). Since Dymburt’s sentence did not exceed six months’ imprisonment, his criminal contempt was a petty offense within the meaning of Cheff, Bloom, Taylor, and Baldwin, and thus he was not entitled to a jury trial. The case is different with respect to Great American, upon which concurrent fines of $10,000 each were imposed, because 18 U.S.C. § 1(3) limits a fine for a “petty offense” to $500. It might seem to follow, then, that Great American was being tried for a serious offense. However, the Supreme Court held in Muniz v. Hoffman, 422 U.S. 454, 475-77, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975), that the imposition of a fine for criminal contempt, which Congress has not declared to be a serious offense, may exceed the sums specified in 18 U.S.C. § 1. In deciding Cheff and the subsequent cases developing the concept of jury trial in the context of criminal contempt, the Court accorded the language of 18 U.S.C. § 1 “no talismanic significance” in cases of fine “unaccompanied by imprisonment.” 422 U.S. at 477, 95 S.Ct. at 2190. Distinguishing imprisonment and fines, the Muniz Court went on to observe, “It is not difficult to grasp the proposition that six months in jail is a serious matter for any individual, but it is not tenable to argue that the possibility of a $501 fine would be considered a serious risk to a large corporation or labor union.” Id. The Court did not reach the issue whether there is any constitutional right to a jury trial where a fine alone is imposed. But it did find that a fine of $10,000 imposed upon a union which collects dues from some 13,000 members is not of such magnitude as to deprive the union of whatever Sixth Amendment right it might have to a jury trial on charges of violating a district court order prohibiting picketing of a publishing plant. In the case at bar there was testimony that Great American had gross revenues of $60,000 to $75,000 from the illicit sale of Rolling Stones T-shirts at a single performance in Philadelphia, and in light of this and other testimony in the case we cannot say that the fine of $10,000 deprived Great American of a constitutional right, at least where it never made any request for a jury trial. From what we have said, the argument that the sentences were excessive leaves us totally unpersuaded. Judgment affirmed. . Rule 42(b) reads as follows: Disposition upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of any attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. . 18 U.S.C. § 1 provides as follows: Notwithstanding any Act of Congress to the contrary: (1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony. (2) Any other offense is a misdemeanor. (3) Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense. . See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 942, AFL-CIO, Respondent. No. 15814. United States Court of Appeals Ninth Circuit. April 9, 1959. See also 9 Cir., 263 F.2d 796. Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallett-Prevost, Asst. Gen. Counsel, Thomas J. Ryan, Norton J. Come, Duane B. Beeson, Attys., N. L. R. B., Washington, D. C., for petitioner. Plato E. Papps, Chief Counsel, International Ass’n of Machinists, Bernard Dunau, Washington, D. C., for respondent. Richard W. Axtell, Michael J. O’Brien, Spokane, Wash., amicus curiae. Before BONE, ORR and BARNES, Circuit Judges. PER CURIAM. Respondent, International Association • of Machinists, Lodge 942, AFL-CIO, has moved this Court for an order staying Paragraph 1(a) and Paragraphs 2(a) and (b) of the decree in the above entitled matter pending application for a writ of certiorari and final determination of the cause by the Supreme Court of the United States. In a formal “opposition” filed with us the National Labor Relations Board does not oppose a stay of the notice-posting requirement of the decree as it relates to peaceful picketing but opposes any other stay by this Court. Paragraph 1(a) of the decree requires that respondent shall cease and desist from: “Restraining or coercing employees of Alloy Manufacturing Company in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended [29 U.S.C.A. § 157], * * by picketing for the purpose of obtaining recognition of Alloy’s employees at a time when it does not represent a majority of them.” In its motion respondent frankly avows, inter alia, that “should picketing of Alloy’s premises be resumed, its purpose will be confined to (1) persuading the employees of Alloy to join respondent, and/or (2) persuading customers of Alloy not to patronize it.” The sort of picketing (described in Paragraph 1 (a)), as did the prior picketing, would probably inflict business loss on Alloy, which in turn might force it to accede to respondent’s illegal objective. The Board suggests, and we agree, that to subject Alloy and its employees to this kind of pressure to select an unwanted representative would, if the Board’s view be ultimately sustained, result in a pro tanto impairment of the Act’s policies. It is ordered by this Court that the portion of that notice which was required by our decree to be posted, a copy of which is attached to the decree and which reads as follows: “We will not restrain or coerce the employees of Alloy Manufacturing Company, in the exercise of rights guaranteed in Section 7 of the Act, including specifically the right to refrain from engaging in any or all the activities guaranteed thereunder, by picketing for the purpose of obtaining recognition of Alloy’s employees at a time when it does not represent a majority of them.” be stayed in order to permit respondent to apply for a writ of certiorari, and until final determination of the cause by the Supreme Court of the United States. In all other respects respondent’s motion is denied.

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"?

RODENBOUGH v. UNITED STATES. Circuit Court of Appeals, Third Circuit. March 28, 1928. No. 3702. 1. Statutes <@=181 (I) — Fundamental canon of statutory construction is to ascertain and give effect to legislative intent. The fundamental canon of statutory construction is that courts should ascertain and give effect to the intent of the legislative body. 2. Statutes <@=184 — Construction of statute which is rational and sensible, and which bears most directly on legislative object, should be selected where two constructions are possible. When, because of doubtful language in a statute, two possible intentions appear, the courts must select the one which is rational and sensible, and which bears most directly on the object which the legislative body sought to obtain, or the evil which it endeavored to remedy or avoid. 3. Statutes <@=191 — In construing statutes, courts should adhere closely to commonly understood meaning of words in immediate relation to their subject-matter. In ascertaining intent of Legislature, courts are careful not to be led astray by definitions of single unrelated words of statute being construed, or by the refinements of lexicograj>hers, but adhere closely to the use of words in their commonly understood meaning and in immediate relation to their subject-matter. 4. Statutes <@=245 — Construction of taxing statute should favor citizen and be against government. In construing a tax act, courts are required to incline most strongly against the government and in favor of the citizen. 5. Statutes <®=!84 — Statute will be read in light of its purpose. A statute will be read in the light of its purpose. 6. Internal revenue <@=8(I4) — Statute authorizing deduction, for estate tax purposes, of property received in “exchange” for property inherited within five years, held to authorize deduction of property into which inherited property can be traced (Revenue Act 1918, § 403 [a], subd. 2 [Comp. St. § 6336%d]). Revenue Act 1918, § 403 (a), subd. 2 (Comp. St. § 6336%d), providing that, from the value of resident decedent’s net estate shall be deducted for estate tax purposes an amount equal to value at decedent’s death of any property identified as having been inherited by decedent within five years prior to his death, or as having been acquired by decedent in “exchange” for property so received, held, not to limit right of deduction to one transaction of exchange by barter, substitution of one security for another, through medium of money or otherwise, but extends such right to any property into which inherited property can be traced, regardless of number of transactions involved. 7. Internal revenue <@=28(2) — Presumption governing trustee’s commingling of trust and personal funds held inapplicable in identifying money inherited within five years for estate tax deduction purposes (Revenue Act 1918, § 403 [a], subd. 2 [Comp. St. § 63363,4d]). Where decedent, within five years before her death, inherited property from her father, proceeds of which she deposited in her general bank account with money from other sources, burden on decedent’s executor of identifying portion of deposit acquired in exchange for property inherited, to authorize deduction thereof from net value of decedent’s estate for estate tax purposes, under Revenue Act 1918, § 403 (a), subd. 2 (Comp. St. § 6336^d), could not be aided by presumption governing tracing of trust funds commingled by trustee with his own funds, whereby trustee, in making withdrawals for his own purposes, is presumed to have withdrawn his own funds. 8. Internal revenue <@=27(2) — Discharge of executor from personal liability for estate tax does not bar action against him in representative capacity (Revenue Act 1921, § 407 [Comp. St. § 6336%h]). Provision of Revenue Act 1921, § 407 (Comp. St. § C336%h), discharging an executor from personal liability for any additional estate tax on payment of amount assessed does not bar action against him in his representative capacity for such additional tax. In Error to the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge. Action by the United States against Elmer E. Rodenbongh, executor of the will of Elizabeth McCahan Rodenbongh, deceased. Judgment for the United States (21 F.[2d] 781), and defendant brings error. Reversed and remanded for new trial. See, also, 14 F. (2d) 989. William C. Alexander, Jr., Porter, Foulkrod & McCullagh, and Walter Lee Sheppard, all of Philadelphia, Pa., for plaintiff in error. George W. Coles, U. S. Atty., and Mark Thatcher, Asst. U. S. Atty., both of Philadelphia, Pa. (Clarence M. Charest and William T. Sabine, Jr., both of Washington, D. C., of counsel), for the United States. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. The United States brought this action against Elmer E. Rodenbough, executor of the will of Elizabeth McCahan Rodenbough, to recover taxes on a sum claimed as a deduction in determining the decedent’s estate tax and disallowed by the Commissioner of Internal Revenue under provisions of Section 403 (a) (2) of the Revenue Act of 1918 (Comp. St. § 6336%d), which read as follows: “See. 403. That for the purpose of the tax the value of the net estate shall be determined— “(a) In the case of a resident, by deducting from the value of the gross estate— • # • • • , * • “(2) An amount equal to the value at the time of the decedent’s death of any property, real, personal, or mixed, which can be identified as having been received by the decedent as a share in the estate of any person who died within five years prior to the death of the decedent, or which can be identified as having been acquired by the decedent in exchange for property so received, if an estate tax under the Revenue Act of 1917 or under this act was collected from such estate, and if such property is included in the decedent’s gross estate.” A jury was waived and the ease tried to the court on facts stipulated. Those presently pertinent are as follows: W. J. McCahan, the father of Elizabeth McCahan Rodenhough, the defendant’s decedent, died in 1918 leaving an estate of $14,-688,694.20, on which a tax of $2,894,173.55 was paid. His estate consisted chiefly of stocks and bonds and Mrs. Rodenbough’s share, which his executors gave her in kind, amounted to $3,831,506.22. Subsequently she sold some of the securities, others were paid off by the obligors, and one company of whose stock she held many shares went into liquidation and disbursed to her over $1,-200,000. With these moneys, it is stated, Mrs. Rodenhough purchased or “acquired” other securities. She diéd in 1921. Her executor, in computing the estate tax, regarded the value of the securities she had purchased with the proceeds of the securities she had received from her father’s estate deductible under the cited provisions of the Revenue Act of 1918. The Commissioner, however, thought otherwise and, first adding the same to her estate, determined a deficiency in taxes amounting to $113,000. Whereupon her executor appealed to the United States Board of Tax Appeals which found against the deficiency in the estate tax determined by the Commissioner on a holding that the value of the property so purchased was properly deductible, and, after making small adjustments, entered an order determining the deficiency to be the sum of $1,797.12, which the executor paid. 1 B. T. A. 477. The Commissioner refused to acquiesce in the determination of the Board of Tax Appeals and brought this action against the executor to recover $111,852.58, the difference between the deficiency determined by him and that determined by the Board. The' learned trial court found on its construction of the cited provisions of the Revenue Act that the value of the father’s property which in the hands of the decedent had thus revolved from one transaction to another was not deductible, and even if deductible in principle it was impossible on the facts to identify the estate of the father which, admittedly, had been taxed within five years. On the first ground and others to be mentioned presently, it entered judgment for the plaintiff for $144,849.04, the principal of its claim with interest. The defendant then sued out this writ of error. The first question is whether the securities whose value is claimed as a deduction in determining the decedent’s taxable estate constitute “property * * * which can be identified as having been acquired by the decedent in exchange for property” which she received from her father’s estate. The government’s position is based on a strictly literal interpretation of the word “exchange” as used in the statute. It contends that property whose value can be deducted in computing an estate tax must have been acquired in a transaction constituting an exchange in the sense of barter and that the statute excludes all transfers of property for money, and all exchanges of property with money as the media; that it limits the deduction to eases where only one exchange of that, kind has taken place; and that none of the transactions by which Mrs. Rodenhough acquired the property whose value is now claimed as a deduction was an exchange within the statute thus construed, apd, therefore, the question of the identification of those securities as having been purchased with the proceeds of securities received from her ancestor is immaterial. On the other hand it is the position of the defendant that —looking not to the form but to the substance of the transactions — -the securities which Mrs. Rodenhough purchased to replace those she received from her father’s estate (subsequently paid off, liquidated and sold) constitute property “acquired” (by her) in exchange for property so received, and that by tracing the proceeds through her bank account the securities whose value is claimed as a deduction can be identified as property so acquired. The learned trial court in construing the statute did not confine its consideration to' the single word “exchange” as strictly denoting barter, but quite properly extended it to the phrase, “acquired * * * in exchange for” property received from the first decedent. Yet in doing so it held to the conception of exchange of one property for another, carrying the idea of substitution and extending it to what if not in form must be in substance an exchange of one security for another, giving this illustration (21 F.[2d] 781, 784): “Where the only facts that can be shown áre that property was sold and that sometime subsequently other property of approximately the same value purchased, it cannot be said that the property so purchased was acquired in exchange for the property sold, even though it could be shown that it was purchased with the proceeds of the property sold.” The court finally held that: “The faet, if it be a fact, that with the money so received [from the disposition of securities which the decedent had received from her father] she subsequently bought some of the securities now claimed [as deductible] does not bring those securities within the language of the deduction,” as they were not “acquired in exchange” for the original securities and there was no relation between the original securities and those subsequently purchased except, in certain cases, the equivalence of the sums of money involved. We have studied very carefully the construction which the learned trial judge gave the statute and have been impressed by his logical and closely knit reasoning, yet we find ourselves at variance with some of his premises and therefore opposed to his conclusions. Before construing the statute in question we bring into view certain applicable, and helpful, canons of construction, the fundamental one being that courts should ascertain and give effect to the intention t>f the legislative body. 36 Cyc. 1106. When, because of doubtful language, two possible intentions appear, another canon of construction requires that courts shall select the one which is rational and sensible, Scandinavian Belting Co. v. Asbestos, etc., Works (C. C. A.) 257 F. 937, and which bears most directly on the object which the legislative body sought to obtain or the evil which it endeavored to remedy or avoid. Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226; Northern Pacific v. United States (C. C. A.) 213 F. 162, L. R. A. 1917A, 1198. In performing this responsible function courts are careful not to be led astray by definitions of single unrelated words of a statute or by the refinements of lexicographers, but to adhere closely to the use of words in their commonly understood meaning and in immediate relation to their subject-matter. Merchants’ Loan & Trust Co. v. Smietanka, 255 U. S. 509, 41 S. Ct. 386, 65 L. Ed. 751, 15 A. L. R. 1305; Doyle v. Mitchell Bros. Co., 247 U. S. 179, 38 S. Ct. 467, 62 L. Ed. 1054; Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570. And particu-larly in construing a tax act, courts are required to incline most strongly against the government and in favor of the citizen. Gould v. Gould, 245 U. S. 153, 38 S. Ct. 53, 62 L. Ed. 211. And so in construing this statute we first look at its subject; .next search for its purpose in respect to some particular problem; and then find if we can the intention of the legislative body that enacted it. The subject of the act, without question, is taxation at death; and equally certain such taxation is not on the estate or property of a decedent but on the right to transmit his estate, ascertained in a way the statute defined. Knowlton v. Moore, 178 U. S. 41, 20 S. Ct. 747, 44 L. Ed. 969; N. Y. Trust Co. v. Eisner, 256 U. S. 345, 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 660. Realizing that, unless avoided by legislative provision, the same or substantially the same estate would be twice taxed when two deaths occur successively within a short time, the Congress enacted the provisions in question with the general purpose or intention to avoid the hardship and inequity of double taxation. Its particular intention, however, is to be gathered from the particular manner by which, as specified in the statute, it proposed its general purpose should be carried out. Thus we see the problem which was before the Congress and we have in statutory form the manner in which it met it. A statute must be read in the light of its purpose. Tucker v. Alexander, 275 U. S. -, 48 S. Ct. 45, 72 L. Ed. -. As it is clear that the Congress intended completely to avoid the inequity of double taxation, we shall, in order to effectuate its intention, give the statute a construction as broad as the intention itself. In laying this estate tax the Congress had two situations in mind. To meet them, it first provided that from. the gross estate of a decedent there should be deducted an amount equal to the value at the time of his death of any property which he had received and continued to hold as a share in the estate of a prior decedent who had died within five years of his death and on which a tax had been paid. This provision contemplates the identical property which one person has “received” from another and continues to hold at death. Believing that within five years, the period which it regarded as sufficient to avoid double taxation, the recipient might, and probably Would, sell or otherwise dispose of some or all of the property so “received,” the Congress, to meet such a case, carried its intention a step farther and provided that the decedent might also deduct the value of property he had “acquired * * * in exchange for the property so received,” thus extending over transactions of two kinds — initial and secondary — protection'against double taxation for a term of years. • While this was its general intention, the Congress very well-knew from human, experience that á statute which expressed this intention and did nothing more would inevitably produce confusion in the computation of taxable estates and would result in loss of taxes to the government. Therefore it qualified the granted right of deduction by specifically limiting its exercise to such cases 'where, first, the claimant can identify the property as having been “received” by the decedent from another, and next, where he can identify the property as having been “acquired” in exchange for property so received. The Congress thus provided the particular way by which its general intention to legislate against double taxation should be carried out with fairness to the taxable and without loss to the government, and in so prescribing a way it placed the burden of identifying the property on the taxable which in order to obtain the granted deduction he must carry; a burden easy at times, difficult sometimes, and, it may be, impossible at other times. Yet the Congress made identification of the first decedent’s property, whether in original or transmuted form, a prerequisite to the exercise of the granted right of deduction, and when identification is perfected the full intention of the Congress is effectuated. If that intention limits a deduction in respect of “acquired” property to a single transaction of exchange, as by barter or even the substitution of one property for another through the medium of money, it is evident we have misconceived the general intention of the Congress to afford means by which double taxation may be avoided. Take the not uncommon instance of a bequest to a woman who never in her life owned any property except that which she received'under the bequest.. During successive transactions of sale and reinvestment the character of the property which she originally received will of course disappear; yet, its identity as property received from her testator, the only property she ever received from anyone, is preserved throughout and is, we think, the thing for which the statute allows a deduction. If the Congress had intended to limit the deduction to exchange in the 'sense of barter, or to a substitution of. securities acquired in exchange for the precise property first received, it could easily have said so. But iff using the phrase “acquired * * * in exchange” for property so received, we think it purposely employed an expression coextensive with its . intention, Howes & Bros. v. Dolan, 9 Pa. Super. Ct. 586, 590, and broad enough to include barter, and exchange of one property for another through the medium of money, and the purchase of one property with the proceeds of the sale of the property first received and the purchase of other property with the proceeds of the sale of that first acquired by purchase and so on in the ordinary business devolutions of the property first “received” from the prior decedent — deductible never otherwise than on the condition that it be identified as such. We discern nothing in the statute which limits the right of deduction to one transaction of exchange whether it be barter, the substitution of one security for another, through the medium of money or otherwise. The only limitation that we can find is that of identification of property of the first decedent “received” or “acquired” by the last decedent on which a tax has been paid within the named term of years. In the absence of express provision, we cannot hold that the Congress discriminated between equally identified transactions according as they should occur in number and time through that period and allowed a deduction on the first transaction and disallowed deductions on the second and succeeding transactions, Blake v. National City Bank, 23 Wall. 307, 320, 23 L. Ed. 119, for such a discrimination would in many instances defeat the very intention of the Congress to avoid double taxation. While our construction of the statute ac-. cords with that of the Board of Tax Appeals, the case as presented to the Board on appeal from the Commissioner and the case as tried to the District Court in this suit by the government differ in the treatment of the facts. In the case before the Board there was no dispute as to the facts or their inferences. As the Commissioner rested his case on his construction of the statute and did not deny that the proceeds of the property of the first decedent were invested by the last decedent in other securities and that the value of the latter securities was the deduction made by the executor, there was no issue of identification and, accordingly, the Board, regarding the identification of the securities as conceded, allowed deduction for the full value. But at the trial of this case before the District Court, the defendant, recognizing and accepting the burden of identifying the securities deducted as securities acquired in exchange for others received from the estate of the prior decedent, raised the issue of identification, which, as we read the 'record, the District Court did not try out because under its construction of the statute the securities whose value was deducted, even if traceable to the estate of the first decedent, were not in principle susceptible of deduction, casually indicating (wo think without deciding) that even if deductible in principle they were not deductible in fact because on the evidence which the defendant produced they could not be identified. The case therefore must be remanded for trial on this issue, in respect to which we make these observations: The elaborate stipulation of facts into which the parties entered shows that Mrs. Rodenbough deposited all moneys that came to her from all sources in one general bank account and that she thus commingled moneys originally her own and moneys which arose from the sale or other disposition of securities she had received from her father’s estate. In order to trace moneys from her father’s estate into the securities purchased or. to trace the securities purchased back to her fathers estate, the stipulation also includes a table disclosing the daily balances in her bank account running through the period in question and showing the sources of all moneys by which those balances were daily augmented; that is, moneys received from the sale and other disposition of the securities she had received from her father’s estate and moneys received from other sources; and also showing withdrawals of money for the purchase of the securities whose value her executor claimed as deductible and withdrawals for other purposes. The defendant argues, from what of course is the fact, that in every instance when she withdrew money from her bank account with which to purchase a new security there was on deposit sufficient money to make the purchase, and also there was on deposit money previously received from the sale or other disposition of securities received from her father’s estate sufficient to make the new purchase; yet the volume of money which she received from her father’s estate as one source and that which she received from other sources was in many instances such as to make doubtful from what source she withdrew moneys with which to make new purchases, and therefore doubtful whether the moneys withdrawn had at one time been her father’s or had at all times been her own. Manifestly the defendant had to remove that doubt and conclusively prove that thcwithdrawal for each purchase was of money received from her father’s securities in order to sustain his statutory burden of identification. This the defendant attempted to do not by producing evidence of the fact but by invoking the presumption governing the tracing of trust funds which a trustee has commingled with funds of his own, Knatchbull v. Hallett, 13 Ch. D. 696, whereby the trustee in making withdrawals for his own purposes is presumed to have acted honestly and withdrawn his own funds. We concur with the learned trial judge in holding that this presumption, based on a tortious commingling of trust and personal funds, does not apply to the instant case where the commingling was entirely of personal funds (though of different origins) and was honest and proper. Nor are we persuaded that the presumption arising from the trust fund rule is saved to the defendant on his contention that the decedent would ordinarily and naturally make new investments with the proceeds from old investments. Evans v. Commercial Trust Co., 76 Pa. Super. Ct. 304; 22 C. J. 106. Indeed, we are far from persuaded that “the probable inference which common sense enlightened by human knowledge and experience” indicates is that this lady, differing from our observation of others of her sex, reached into a common fund and carefully selected for reinvestment those moneys which had come to her from the sale and liquidation of particular securities that she had received from a particular source. Rather than setting up such a presumption, common experience, we think, indicates that she drew funds for reinvestment without thought of their source. This conclusion against the presumption drives the defendant to evidence of identification. If at the next trial he can produce evidence other than that stipulated, he may do so; if he cannot and the only evidence available is that stipulated in the form of the decedent’s deposits, withdrawals and balances shown in her bank account, it will devolve on him to convince the court that, when properly analyzed, they distinguish between the two money sources and show figures by which the securities last purchased can be traced to the father’s estate and be thus identified. Whether this can be done from the stipulations and, if so, how far it can be done we do not venture an opinion. Yet as we look at the stipulated bank account (Exhibit F) and study it in connection with the stipulations identifying withdrawals for investments it tells several stories. Eor instance, take the first span beginning December 11, 1918, and ending January 18, 1919. This shows deposits from both sources (her father’s estate and her own property), in each instance more than enough to cover the amount withdrawn for reinvestment; but it also shows an amount withdrawn for other purposes greater than the amount received from the sale of her father’s securities. Therefore, no one can tell whether the two withdrawals, one for reinvestment and the other for general purposes, were from moneys coming from one source or from the other source and in consequence no one can trace or identify the same. But. in the next span from the last date of January 18 to July 3, there is a different situation. In addition to the balance on January 18, there is shown a large deposit of moneys from her father’s estate and a smaller deposit of moneys of her own and also withdrawals for reinvestment and withdrawals for other purposes, the first withdrawals being too large lto have been wholly supplied from moneys of her own and small enough to have been, embraced within moneys derived from her father’s estate. In this instance certainly a part of the moneys reinvested must have come from the proceeds of her father’s securities. Realizing that a proper analysis of the stipulated bank deposits and withdrawals can only be made by one skilled in such matters, we did not attempt a further tracing of securities but passed directly to the grand totals at the end of the stipulation, which show moneys received from sources other than her father’s estate greater in amount than moneys withdrawn for general purposes leaving a balance of moneys withdrawn for investment which must have come from the proceeds of her father’s securities. We make this inore or less accurate analysis merely to indicate (not to decide) that on the record as it stands it may not be impossible to trace some of the decedent’s withdrawals for reinvestment to the parental source. If her executor can trace and identify some, the estate comes within the statute and is entitled to a deduction of their value in computing the estate tax. Therefore the case must be remanded for retrial on this issue — unless this action in assumpsit against the defendant executor is barred, as he maintains, by the provisions of Section 407 of the Revenue Act of 1921 (Comp. St. § 6336¾h) under which he claims he was discharged from personal liability and that such a discharge cannot be disassociated from his liability in a representative capacity. On this question, as well as on that of allowance of interest on the deficiency, if one be found, we are in full accord with the reasoning and conclusions of the learned trial judge. The judgment of the District Court is reversed and the ease remanded for a new trial in accordance with the law of 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 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?

Charles W. and Susan D. DECKER, Darrell E. and Velma J. Lauderdale, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 87-2950. United States Court of Appeals, Seventh Circuit. Argued April 19, 1988. Decided Dec. 1, 1988. Patrick B. Mathis, Mathis Marifian & Richter, Ltd. Belleville, Ill., for petitioners-appellants. Michael J. Roach, Appellate Section, Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee. Before FLAUM, MANION, Circuit Judges, and WILL, Senior District Judge. The Honorable Hubert L. Will, Senior Judge of the United States District Court for the Northern District of Illinois, Eastern Division, is sitting by designation. WILL, Senior District Judge. Charles W. Decker and Darrell E. Laud-erdale appeal from the decision of the United States Tax Court disallowing their deductions for depreciation of purchased insurance expirations. We affirm the decision of the Tax Court. I. Factual background. In 1975, appellants Charles W. Decker and Darrell E. Lauderdale formed a corporation known as the Lauderdale Insurance Agency, Ltd. (the “Lauderdale Agency”). The agency was located in Carbondale, Illinois and specialized in commercial lines of property and casualty insurance. In August of 1978, Lauderdale and Decker entered into a partnership agreement to operate an insurance brokerage business which they named Comprehensive Insurance Services (“Comprehensive”). Wm. J. Cunningham, Inc. (“WJC”) was a corporation wholly owned by William Cunningham which operated an insurance agency in Pinckneyville, Illinois, thirty-five miles away from Carbondale. Comprehensive entered into negotiations with Cunningham to purchase the insurance expira-tions of WJC. Insurance expirations are policyholder files which contain the customers’ names and addresses and other information including the expiration date of each policy. The expirations are valuable, because they show the most advantageous time to seek a renewal. Although the Lauderdale Agency already did some business in the Pinckneyville area out of its Carbondale location, the purchase of the expirations permitted Comprehensive to expand its market there more quickly and economically. On August 30, 1978, Comprehensive, WJC, and Cunningham entered into a purchase agreement for the acquisition by Comprehensive of all of WJC’s insurance accounts, lists, renewals, insurance records and papers. By agreement, Comprehensive was not entitled to any accounts receivable on or before the date of closing. In addition, Comprehensive was prohibited from using the name “Wm. J. Cunningham, Inc.” Comprehensive, however, was to receive all commission income due WJC after September 1,1978 except from policies having an effective date, anniversary date or renewal date on or before August 31, 1978. Additionally, WJC and Cunningham covenanted not to compete with Comprehensive in the insurance business within a twenty-five-mile radius of Pinckneyville for five years. WJC and Cunningham also agreed to assist Comprehensive in securing the renewal of transfer of WJC’s contracts with all insurance companies for which WJC had been the agent. Finally, WJC and Cunningham assigned to the Lauder-dale Agency WJC’s lease to its Pinckney-ville office. As required by the purchase agreement, Cunningham entered into an employment agreement to work as an insurance agent and broker for Comprehensive during a three-year period. This agreement was terminated one year later, on August 10,1979, and was replaced by an agreement that Cunningham serve as an independent contractor for the Lauderdale Agency. During his period of employment by Comprehensive, Cunningham went with appellants to meet with the policyholders whose commercial accounts were due to expire in order to solicit their renewal. In addition to Cunningham, Comprehensive retained WJC’s two clerical employees and operated from WJC’s office. Comprehensive began its business in Pinckneyville under the name “Lauderdale Insurance Agency, Ltd.” In 1980, the name was changed to “Lauderdale and Decker Insurance, Ltd.” The telephone directory listed “Cunningham Insurance” with a reference “See Lauderdale Insurance Agency, Ltd.” Lauderdale and Decker Insurance, Ltd. had an advertisement in the yellow pages for approximately one year which included a parenthetic reference “formerly the Cunningham Agency.” During the period from September 1978 through December 1983, 503 of the 1,107 accounts Comprehensive acquired from WJC were terminated. During this same period, Comprehensive wrote 240 insurance policies on accounts it acquired from WJC and acquired 339 new accounts. The record does not indicate whether or not any of these new accounts were attributable to referrals from WJC’s original customers. Comprehensive claimed on its 1978 partnership tax return a depreciable basis in the acquired insurance expirations of $287,-216. On its returns for 1979 and 1980, Comprehensive claimed a depreciable basis of $258,040. Comprehensive claimed depreciation deductions with respect to the insurance expirations using the straight-line method of depreciation over a seven-year useful life. The IRS issued notices of deficiency to Charles W. and Susan D. Decker and Darrell E. and Velma J. Laud-erdale, disallowing these partnership depreciation deductions because the taxpayers had not shown that the expirations were separable from WJC’s goodwill, a nonde-preciable asset, or that the expirations had a reasonably ascertainable limited useful life. In the Tax Court, the taxpayers presented the testimony of Decker, a report prepared by a consulting firm, the Middleton Group, and the testimony of a principal of Middleton, William K. Lee, to establish that the insurance expirations in question had value separate from goodwill and an ascertainable limited useful life. Mr. Lee testified that the figures chosed by Comprehensive — a useful life of seven years for the insurance expirations and a value of approximately $250,000 — were reasonable estimates. On the basis of this analysis, Mr. Lee concluded that Comprehensive acquired little, if any, good will or going concern value when it purchased WJC’s insurance expirations. The Tax Court disagreed. It found that the taxpayers’ purchase of the insurance expirations and the related agreements was in effect the purchase of a going concern and that the expirations were so inextricably linked to goodwill that a limited useful life for them could not be determined apart from goodwill. The Tax Court noted that Comprehensive had acquired WJC’s office facilities, clerical staff, principal salesman, and telephone number. The court found that Comprehensive’s hiring of Cunningham to solicit renewal business from WJC’s policyholders and obtaining from him a covenant not to compete were fatal to the taxpayers’ depreciation argument, since those acts showed the taxpayers’ intention to acquire a going concern along with its goodwill. Alternatively, the Tax Court held that, even if the value of the expirations was not inextricably linked to goodwill, the taxpayers had failed to establish that the expira-tions had a useful life which could be determined with reasonable accuracy. The Tax Court rejected Mr. Lee’s testimony as to the useful life of the expirations for several reasons. The Tax Court found that Mr. Lee, in determining that the expirations had a useful life of only seven years, had ignored the subsequent referrals from the acquired accounts. The court pointed out, in addition, several other omissions of facts which it deemed relevant to the value of the expirations and also noted inconsistencies. For example, the court concluded that the fact five years had elapsed since the acquisition of the expirations and only 43% of them had been terminated, was inconsistent with the taxpayers’ claim that the expirations had a limited useful life of seven years. II Analysis. Pursuant to Section 167(a) of the Internal Revenue Code and the corresponding treasury regulation, intangible assets used in a trade or business or in the production of income can be depreciated, but only if the taxpayer proves that the intangible asset (1) has an ascertainable value separate and distinct from goodwill, and (2) has a limited useful life, the duration of which can be ascertained with reasonable accuracy. Houston Chronicle Publishing v. United States, 481 F.2d 1240, 1250 (5th Cir.1973), cert. denied, 414 U.S. 1129, 94 S.Ct. 867, 38 L.Ed.2d 754 (1974). Whether a particular intangible asset has a reasonably ascertainable value distinct from goodwill and whether the asset has a limited useful life are questions of fact, which depend on the particular circumstances of the case at hand. Id. at 1243; Panichi v. United States, 834 F.2d 300, 301 (2d Cir.1987). As a result, the Tax Court’s determination that the insurance expirations were “inextricably linked to goodwill” and that Mr. Lee’s testimony had not proven an ascertainable limited useful life for the expirations can be overturned only if these findings are clearly erroneous. Selig v. United States, 740 F.2d 572, 577 (7th Cir.1984). Under this standard, we must affirm the Tax Court’s factual findings, if “the evidence is plausible in light of the record viewed in its entirety ...” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). We find that the record supports the Tax Court’s determination that the taxpayers’ purchase of WJC’s insurance expirations was part of the purchase of a going concern and inseparable from the acquisition of goodwill. Although the taxpayers protest that they intended only to purchase the information in the expirations — the “competitive advantage of being the incumbent insurer,” Brief of Appellants at 32— the taxpayers did, in fact, acquire almost every element of the WJC business as a going concern including assets, employees and business location. Goodwill is “the expectancy that ‘the old customers will resort to the old place.’ ” Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677, 681 (5th Cir.1971) (citations omitted). “[G]oodwill is acquired by the purchaser of a going concern where the ‘transfer enables the purchaser to step into the shoes of the seller.’ ” Ibid, (citations omitted). In spite of the taxpayers’ arguments to the contrary, their purchase clearly allowed them to step into the shoes of WJC. The only significant distinction between an outright acquisition of the Cunningham Agency and the purchase executed by the taxpayers was the prohibition against the use of the Cunningham name. And in this regard, the yellow page listings for the taxpayers’ agency made it possible for the taxpayers even to exploit some of the value inherent in the Cunningham name. The taxpayers argue that the office procedures of the Cunningham agency were replaced by those of Comprehensive and that Comprehensive’s retention of the same location and the same clerical personnel had little impact on its success in the Pinckneyville market. The commercial business insurance field, they argue, relies very little on sales to walk-in customers. Notwithstanding these arguments, the entirety of the record supports the Tax Court’s conclusion that the taxpayers acquired a going concern. Two factors about the purchase are particularly significant. First, the taxpayers’ acquisition of “a covenant (not to compete) has the function primarily of assuring the purchaser the beneficial enjoyment of the goodwill and the seller’s list of expirations.” Marsh & McLennan Inc. v. Comm’r, 420 F.2d 667, 669 n. 4 (3d Cir.1969), citing Thomas v. Comm’r, 50 T.C. 247, 255 (1968). Second, as part of the purchase agreement, the taxpayers obtained Cunningham’s agreement to assist them in retaining his former customers and then hired him for that purpose. Although the taxpayers argue that they believed during their negotiations for the purchase of the expirations that Cunningham was planning to go to Florida, Brief of Plaintiffs-Appellants at 36, Cunningham did not leave. In fact, the purchase agreement between Comprehensive, Cunningham and WJC required that Cunningham aid the taxpayers in retaining the accounts of WJC which he did. The Tax Court did not err when it relied in part on the continuing affiliation of Cunningham with Comprehensive in concluding that the taxpayers acquired a going concern. Cunningham’s assistance was contemplated at the time of purchase and, as the taxpayers admit, Brief of Plaintiffs-Appellants at 14, commercial insurance sales rely much on personal contact. The taxpayers argue that this case should be governed by the reasoning of the court in Richard S. Miller & Sons, Inc. v. United States, 537 F.2d 446, 210 Ct.Cl. 431 (1976). The court in Miller found that the taxpayer insurance agency was entitled to depreciate the cost of insurance expirations which it purchased from a competing agency. The court concluded that the primary purpose of the purchase was not to buy an ongoing business, since (1) the taxpayer was already operating as a competitor in the same market; (2) the taxpayer-purchaser did not use the seller’s name, location, sales personnel or office procedures; and (3) the taxpayer did not receive cash, uncollected premiums or accounts receivable in the purchase. Because the taxpayer had not acquired a going concern, the court reasoned that “[t]he purchase of the expi-rations was a substitute for the time and effort [of the taxpayer agency’s employees] to develop and place on the books a comparable number of policies for the first time.” Id. 537 F.2d at 454. The information in the expirations had substantial value apart from any goodwill which was also obtained through the purchase. See also Panichi v. United States, 834 F.2d 300, 302 (2d Cir.1987). Although we agree with the reasoning of the court in Miller, we do not believe that the present case is governed by it. Because the taxpayers, Decker and Lauder-dale, moved into the Pinckneyville insurance market by a purchase which retained many elements of the Cunningham Agency as a going concern (including, among others, the right to a portion of the commission income after September 1, 1978), we find that the Tax Court's decision is not clearly erroneous. Unlike the Miller case, the Tax Court here concluded that the taxpayers intended to buy a going concern. The evidence supports that conclusion. The taxpayers also argue that the Tax Court erred in disregarding the evidence presented by their expert to support their estimates of the useful life of the expira-tions. Since the evidence clearly establishes that the taxpayers acquired a going concern, including its assets, personnel and business location, rather than just the expi-rations as a separate intangible asset, the useful life of the expirations is irrelevant. It is clear from the variations in the renewals of the expirations, however, that the information obtained in the acquisition did not have a reasonably determinable useful life, the expert’s testimony to the contrary notwithstanding. For all of the foregoing reasons, the decision of the Tax Court is affirmed. . Susan D. Decker and Velma J. Lauderdale are parties to this case solely because they filed joint returns with their husbands. . Section 167(a) of the Code provides: (a) General Rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear, and tear (1) of property used in the trade or business, or (2) of property held for the production of income. 26 U.S.C. § 167(a) (1982). . In the case of intangible property, the Treasury Regulations provide: Intangibles. If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance.... An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported view of the taxpayer, the intangible asset has a limited useful life. No deduction is allowable with respect to good will. 26 C.F.R. § 1.167(a)-3 (emphasis added) (1988).

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

ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff-Appellant, v. MAYOR’S JEWELERS OF FORT LAU-DERDALE, INC., and Mayor’s Jewelers of Dadeland, Inc., Deefndants-Ap-pellees. No. 71-1883. United States Court of Appeals, Fifth Circuit. Aug. 11, 1972. Eugene L. Heinrich, Fort Lauderdale, Fla., Jeanne Heyward, Miami, Fla., for plaintiff-appellant. Sam Daniels, Sams, Anderson, Alper & Spencer, Miami, Fla., for defendants-appellees. Before JOHN R. BROWN, Chief Judge, and AINSWORTH and INGRA-HAM, Circuit Judges. JOHN R. BROWN, Chief Judge: In another of those Erie cases where Federal Judges are called upon to conjure up a Florida solution under principles of Florida law to a Florida insurance dispute, we are here asked to unravel the eabalic meaning of a Florida statute cryptogrammically denominated F.S. § 627.01081, F.S.A. and apply its recondite intent to Clause 2(A) of Jeweler’s Block Policy No. 366 HA 6590 and Clause 2(B)(3) of Jeweler’s Block Policy Nos. 366 HA 6584 and 366 HA 6585. In weaving through this maze of arithmetic appellations, the District Court, perhaps understandably, made some clearly erroneous findings. Accordingly, we reverse in part and affirm in part the District Court’s declaratory order granting full recovery to the assureds. 1. The Facts — Line Security That Wasn’t There The facts, as they emerge from what turns out to be a virtually undisputed though less than luminous record, indicate the following occurrences. In July, 1968, Mayor’s Jewelry Stores, through its president (Getz) and its vice president (Shore) obtained Jeweler’s Block Insurance policies from St. Paul Insurance Company (St. Paul) for six of its wholly owned stores, including Mayor’s Jewelers of Ft. Lauderdale (Ft. Lauder-dale), Mayor’s Jewelers of Dadeland, Dadeland Mall (Dadeland Mall) and Mayor’s Jewelers of Dadeland, Sunset Drive (Sunset). The policies carried primary insurance in the amount of $300,000 each, so far as the pertinent provision — Clause 2(A) — is concerned. In early 1969, Shore contacted St. Paul’s general agent (Schuh) seeking to increase this coverage by $200,000 on the Ft. Lauderdale policy. Schuh told Shore that he would have to check with insurer's head underwriter (Washiek), whom he called immediately. Washiek told Schuh that he would not increase the coverage to a total of $500,000, but that he would increase coverage $100,000 to $400,000 if the assured had an anti-burglary device known as “ADT line security.” Schuh relayed this information to Shore who replied that he did not know whether or not this particular system had been installed in the Ft. Lau-derdale location, and that he would have to call ADT to find out. Shore called ADT and was told that the Ft. Lauderdale store did have line security and had had it since its inception. Shore then called Schuh and told him that ADT had told him that Ft. Lauderdale had the system. Upon receipt of this information Schuh told Shore on February 3, 1969, that Ft. Lauderdale had the $100,000 increase on 2(A) coverage. Schuh then called and wrote Washick that on Washick’s advice he had bound the additional coverage. The binder was confirmed by St. Paul by Endorsement No. 9, issued February 6, 1969, with an effective date of February 3, 1969. Sometime during the weekend of March 30, 1969, the Ft. Lauderdale store was burglarized with a loss of nearly $700,000 worth of merchandise. Unhappily, the Ft. Lauderdale store did not have protection of an ADT line security system after all, as had been thought. II. No Misrepresentation St. Paul’s first contention is that it is entitled to cancel the increase in 2(A) coverage and avoid the additional liability ($100,000) because Shore’s statements about the ADT line security system amounted to a material misrepresentation of fact, substantially affecting the risk of the insurer, on which the insurer had reasonably relied in extending coverage. The argument can be readily disposed of. Shore simply did not misrepresent anything. All Shore told Schuh was that he did not know whether or not Ft. Lauderdale had this particular protection and that he would have to find out from ADT. Thereafter, Shore called ADT and then reported back to Schuh that ADT had told him that Ft. Lauderdale was protected with line security. This was the statement on which the insurer relied. It was the inquiry which the insurer called for, and the answer as to what ADT advised was faithfully reported to St. Paul. There was no misrepresentation here. Therefore, since there was actually no misrepresentation of fact, F.S. 627.-01081 F.S.A., is not even involved even though it is conceded that the critical fact was material to the risk. St. Paul’s argument that Getz’ February 3 letter to St. Paul, which was not received until days after the extended coverage had been bound, materially misled the insurer is likewise without merit. Statements made after coverage has been afforded are immaterial. World Insurance Company v. Posey, Fla.App., 1969, 227 So.2d 67; Aetna Insurance Company v. Kacharos, Ala.Sup. Ct., 1933, 226 Ala. 504, 147 So. 438. Coverage had been bound days before the Getz letter could have been received. This obvious fact renders unnecessary any discussion of whether reliance on the letter could have been reasonable, in light of Washiek’s admitted knowledge that some of the information conveyed to him was erroneous, since coverage had already been bound and Washick could not, therefore, have been relying on statements subsequently made. This also makes superfluous the District Court’s further finding on the basis of expert testimony that the error should have put a reasonably prudent underwriter on notice that he should obtain further verification or make some further inquiry. We therefore accept the District Court’s conclusion that coverage was not induced by any misrepresentation which Florida would regard as defeating coverage. The increased coverage under 2(A) was valid. III. Association The second part of the case relates to off-premises coverage under 2(B)(3), note 2, supra, which provided $250,000 coverage for loss: “in respect of property which is * * * in the custody of a dealer in property of the kind insured hereunder not employed by or associated with the Insured * * (Emphasis added). Dadeland Mall and Sunset also sustained substantial losses as a result of the burglary at Ft. Lauderdale, since these stores had sent to Ft. Lauderdale approximately $200,000 worth of merchandise which Dadeland Mall and Sunset had received under “all risk memos” from the manufacturers and wholesalers. Sunset and Dadeland Mall claimed coverage under Clause 2(B)(3) of their policies (366 HA 6584 and 655 HA 6585 respectively). The controversy turns on whether or not Sunset and Dadeland Mall were “associated with” Ft. Lauderdale. The District Court’s finding that the stores were not associated was based on the fact that each of the six Mayor’s Jewelry Stores are operated as separate entities for tax purposes. On the other hand, all six corporations are owned and controlled by the same interests (primarily President Getz) and it is undisputed that negotiations for all six insurance policies were carried on by Shore and Getz for all six stores at the same time. That included the three policies at issue. The central office, located at the Sunset premises, performed centralized accounting, purchasing, hiring, property leasing, master inventory, insurance and advertising functions for all stores. Only Getz, Shore and Getz’ mother were authorized to draw checks on the bank accounts of any of the stores. The stores customarily exchanged and transferred large volumes of merchandise between each other on informal terms. Regardless of the tax setup, it is evident that, as a practical matter, the stores were operated like one enterprise with several branch outlets. In sum, we think that the record compels a finding of a community of interest, a confluence of activity, a cooperation of efforts and a concentration of control — both financial and managerial. There can be no doubt that such evidence establishes that the stores are undeniably closely connected and therefore “associated,” within the meaning of the insurance policy. The District Court’s finding to the contrary is thus “clearly erroneous.” F.R.Civ.P. 52(a). Nor will, estoppel carry the day for the assured. The District Court further found that, “since obtaining its Jeweler’s Block Policies from [St. Paul], the [jewelry stores] have conducted their business relying on the fact that they were not ‘employed by or associated with’ each other within the meaning of Clause 2(B)(3); such reliance was and always has been known to [St. Paul]; and [St. Paul] is now estopped to claim or contend the contrary.” This holding simply cannot be supported by the record. The experts testified that the purpose of the “associated with” exclusion is to enable the insurer to limit his risk exposure at any one location. Mayor’s knew that St. Paul was unwilling to insure the Ft. Lauderdale location for more than $400,000. This limitation was made very clear to Mayor’s and was acceptable to it. In a setting of six related branches each of which was covered under a separate policy the interpretation underlying the District Court’s hypothesis would have meant that the Mayor enterprise would be covered up to $1,500,000 at each store on inter-store transfers, while paying premiums based on maximum risk exposure of $300,000 at each store. There is no basis to estop St. Paul from asserting that its precise limitation of risk was effective. The result is that granting 2(B)(3) coverage for the goods of Dadeland Mall and Sunset was erroneous. IV. A Tag End — Attorney Fees St. Paul also complains that the $68,000 award for attorney fees is excessive. In view of our substantial reversal, adjustment is required. Accordingly, on remand the District Court is directed to redetermine the allowance of attorney fees for the recovery allowed by this opinion. Affirmed in part; Reversed in part; Remanded with instructions. . Cf., Prudential Ins. Co. v. Clark & Clark, 5 Cir., 1972, 456 F.2d 932; Mendelson v. General Ins. Co., 5 Cir., 1972, 455 F.2d 270; Houdaille Industries, Inc. v. United Bonding Ins. Co., 5 Cir., 1972, 453 F.2d 1048; Allstate Ins. Co. v. Employers Liability Assurance Corp., 5 Cir., 1971, 445 F.2d 1278. . LIMITATIONS OF LIABILITY 2. The maximum liability of the Company resulting from any one loss, disaster or casualty is limited to (A) $300,000.00 in respect of property at the Insured’s premises as described herein; (B) $250,000.00 in respect of property which is (1) in transit by first class registered mail, or railway express (subject to the stipulations of Exclusion (E) of Section 5) or by armored car service; (2) deposited in the safe or vault of a bank or safe deposit company; (3) in the custody of a dealer in property of the kind insured hereunder not employed by or associated with the Insured, but property deposited for safe keeping with such a dealer by the Insured or its authorized representatives while traveling is subject to the limit expressed in Clause E of this Section; (O) $50,000.00 in respect of shipments in transit by first class registered air mail or air express (subject to the stipulations of Exclusion (E) of Section 5) sent to any one addressee at any one address during any one day; (D) $25,000.00 in respect of shipments in transit by customer parcel delivery service and the parcel transportation service of railroads, waterborne or air carriers and passenger bus lines (subject to the stipulations of Exclusion (E) of Section 5) ; (E) $25,000.00 in respect of property elsewhere and not included in Clauses (A), (B), (C) and (D) above or otherwise limited herein. . “The maximum liability of the Company resulting from any one loss, disaster or casualty is limited to (A) $300,000 in respect of property at the Insured’s premises as described herein; * * See note 2, supra. . ADT line security is an electronic device which tells ADT when the other premises protective devices have been defeated. ADT has a central system which is supposed to sound an alarm if the jeweler’s premises or safes are violated. If the apparently sophisticated thieves have ways around the usual ADT devices and defeat the central alarm system, the purpose of line security is to warn ADT that the central alarm system has somehow been deactivated. . ADT line security is not visible. The only way one could learn whether or not line security existed at a given location is to ask ADT, because not even a qualified engineer could tell by an inspection of the premises. Apparently, that is because the line security equipment is located in the alarm company’s central station. . Thereafter, on February 3, 1969, Getz also wrote Washick stating that “we have definitely installed this system and it has been in operation for many months.” This letter, however, could not have been received by St. Paul before February 3, 1969, the date on which the extended coverage was bound. . In fact, Schuh himself had suggested that Shore seek to obtain the information from ADT. And Washick testified that he knew that the information would have to come from ADT since the system could not be detected from merely going to the store and looking about. . F.S. 627.01081 reads as follows : “All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, conceal-ments of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either: “(1) Fraudulent; or “(2) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or “(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.” . Washick knew that the system had not been installed at the store “since its inception” and that the letter asserting the contrary could not have been correct, for he testified as follows: “Q. You also got this letter from Gerry Schuh of the same date, the one that he typed out himself, and wrote you confirming the various conversation or conversations, and in which he used the words that it has been there since the inception. What significance did you place upon that? A. None at all, because I knew that when we went on the risk that they did not have that line security protection. We knew that. ch What was your conclusion from the fact that Gerry Schuh was saying it in his letter? What did you believe it was that he was saying? A. Well, it wasn’t a correct statement.” . Schuh’s letter had also suggested that Washick contact ADT directly if he should desire further information. . Clause 2(E), which St. Paul argues applies to this loss, covered losses not included elsewhere in the policy, but limited to $25,000. . Ordinarily a remand for the trial court to fix attorney fees encompasses those for the subsequent successful appellate efforts. Here the trial court will have to consider the partial affirmance and the significant reversal.

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?

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

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

HUNTEMAN v. NEW ORLEANS PUBLIC SERVICE, Inc., et al. No. 9644. Circuit Court of Appeals, Fifth Circuit. May 2, 1941. Rehearing Denied May 31, 1941. James W. Hopkins, of New Orleans, La., for appellant. Alvin R. Christovitch and William W. Ogden, both of New Orleans, La., for ap-pellees. Joseph M. Jones, of New Orleans, La., for amicus curiae. Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges! HOLMES, Circuit Judge. Henry Hunteman was fatally injured while working as a subcontractor on a construction project in New Orleans, Louisiana. Plis surviving widow and children brought this suit for damages against New Orleans Public Service, Inc., Arthur J. Rife, and the Liberty Mutual Insurance Company, alleging that the injury resulted from their joint and concurrent negligence, and asking judgment in solido against them. The court below granted the motion of New Orleans Public Service, Inc., to dismiss the suit, as against it, on the ground that the complaint failed to state a claim upon which relief could be granted. This appeal was taken from that judgment of dismissal, and is met in this court with a motion to dismiss on the ground that the judgment appealed from lacks the finality necessary to confer jurisdiction upon this court, since the action against the other defendants was not disposed of by the judgment but is still awaiting trial in the court below. The question thus posed, whether this court has jurisdiction to entertain the appeal, must be answered in the negative upon the authority of Menge v. Warriner, 5 Cir., 120 F. 816, General Electric Co. v. Allis-Chalmers Co., 3 Cir., 194 F. 413, and Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443. An order, judgment, or decree dismissing one defendant and leaving, for the future disposition of the court, the same controversy as to others who are charged to be jointly liable with him, is not a final decision which will support an appeal to this court under Section 128 of the Judicial Code, as amended. 28 U.S.C.A. § 225, 43 Stat. 936. When a final decree is rendered which determines the rights of all the parties to the controversy, and which, upon affirmance, would leave nothing to be done by the court below except to execute the decree, then, and not before, may an appeal properly be taken. These principles do not conflict with the letter or spirit of the Federal Rules of Civil Procedure. The rules are not intended to affect the jurisdiction of the district courts with whose procedure they deal; they do not affect the jurisdiction of the, appellate courts to which they are not directed. By seeking a judgment in solido against several defendants charged to be jointly and concurrently negligent, we think appellant presented but one claim for determination between the parties. When a judgment is entered which puts an end to that controversy between all of the parties litigant, appellate jurisdiction may be invoked. By entering the order, a case involving one cause of action was divided into two sections, the one dormant and the other active. This may be unfortunate. The trial of the whole cause may already have been delayed by this attempt to appeal; and, if the case goes to trial between the remaining litigants, the resulting judgment may be set aside on appeal if the motion to dismiss was erroneously granted to New Orleans Public Service, Inc. It might have been better to overrule the motion to dismiss and permit the whole case to progress to its proper disposition, but this was for the district court to determine. It may yet set aside the order of dismissal and reinstate the action as to the New Orleans Public Service, Inc. The entire case is still in the district court and subject to its control. There being no final judgment, the appeal is dismissed. See also: Bank of Rondout v. Smith, 156 U.S. 330, 15 S.Ct. 358, 39 L.Ed. 441; Hewitt v. McCormick Lumber Co., 2 Cir., 22 F.2d 925; Moss v. Kansas City Life Ins. Co., 8 Cir., 96 F.2d 108; Atwater v. North American Coal Corp., 2 Cir., 111 F.2d 125. United States v. Girault, 11 How. 22, 13 L.Ed. 587; Morrison v. Burnette, 8 Cir., 154 F. 617, Id., 212 U.S. 291, 29 S.Ct. 394, 53 L.Ed. 517; Merriman v. Chicago & E. I. R. Co., 7 Cir., 64 F. 535; Morgan v. Thompson, 8 Cir., 124 F. 203; American Bank Protection Co. v. Electric Protection Co., C.C., 181 F. 350; United States v. Bighorn Sheep Co., 8 Cir., 276 F. 710. Cf. United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339. Rule 82 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. See also the treatment given this problem in Moore’s Federal Practice, Vol. 3, pages 3155 et seq., and at pages 469 et seq., 1940 supp.

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

COMMODITY FUTURES TRADING COMMISSION, Plaintiff-Appellee, Cross-Appellant, v. The AMERICAN BOARD OF TRADE, INC., Arthur N. Economou, Phyllis H. Economou, the American Board of Trade Clearing Corp., Inc., the American Board of Trade Service Corp., Inc., and Arthur N. Economou and Company Inc., Defendants-Appellants, Cross-Appellees. Nos. 936, 938 and 1073, Dockets 81-6240, 85-6134 and 85-6388. United States Court of Appeals, Second Circuit. Argued April 1, 1986. Decided Oct. 10, 1986. Daniel S. Goodman, Washington, D.C. (Kenneth M. Raisler, Gen. Counsel, Pat G. Nicolette and Whitney Adams, Deputy Gen. Counsels, Anne H. Wright, Washington, D.C. on brief), for plaintiff-appellee, cross-appellant. Paul A. Batista, New York City, for defendants-appellants, cross-appellees The American Bd. of Trade, Inc., Phyllis H. Economou, The American Bd. of Trade Clearing Corp., Inc., The American Bd. of Trade Service Corp. Inc., and Arthur N. Economou and Co., Inc. Arthur N. Economou, pro se. Before KEARSE, PRATT and ALTIMARI, Circuit Judges. KEARSE, Circuit Judge: Defendants American Board of Trade, Inc. (“ABT”), et al., appeal from a final judgment entered in 1985 in the United States District Court for the Southern District of New York, Vincent L. Broderick, Judge, which, inter alia, permanently enjoined defendants from engaging in certain commodity option transactions in violation of the Commodity Exchange Act, as amended (“the Act”), 7 U.S.C. §§ 1-24 (1982), and ordered defendants to disgorge $126,706 to their injured customers and to pay approximately $210,000 as the fees and expenses of a court-appointed trustee. On appeal, defendants contend principally that the district court erred in finding the Act applicable to their activities and abused its discretion in fashioning relief. Plaintiff Commodity Futures Trading Commission (“CFTC” or the “Commission”) cross-appeals, contending principally that the court should have ordered defendants to disgorge at least $434,961, representing its estimate of the profits received by defendants in their unlawful activities. For the reasons below, we affirm the judgment in all respects. I. BACKGROUND ABT is an organization that provided, inter alia, an exchange and marketplace for certain commodity options transactions. Defendants Arthur N. Economou (“Economou”) and Phyllis H. Economou are officers and directors of ABT. The other defendants are corporations affiliated with ABT, Economou, and Phyllis H. Economou. CFTC commenced the present action in April 1979, alleging that defendants, none of whom was then registered with the Commission in any capacity, were engaged in the offer and sale of “put,” “call,” “standard double,” “combination double,” and “hedge double” options in gold and silver bullion, silver coins, platinum, copper, plywood, and several foreign currencies, in violation of §§ 4c(b) and 4c(c) of the Act as then codified at 7 U.S.C. §§ 6c(b) and 6c(c) (1976 & Supp. II 1978), and of Commission Regulations 32.7 and 32.11, promulgated under the Act, 17 C.F.R. §§ 32.7, 32.11. CFTC sought injunctive relief and an order requiring defendants to disgorge all benefits received from their allegedly unlawful transactions. In their answers to the complaint, defendants admitted that they were engaged in the option transactions described in the Commission’s complaint, but denied that such transactions were subject to regulation under the Act. Economou asserted several affirmative defenses and counterclaims, which eventually were adopted by his codefendants, alleging, inter alia, that regulatory and statutory actions limiting commodity options violated defendants’ First Amendment rights, deprived them of their property without due process, and created unreasonable classifications. The principal thrust of defendants’ statutory argument was that the Act reached only options on futures contracts, not options in spot and cash markets, i.e., options on the underlying commodities; since defendants engaged only in the latter transactions, they contended that their conduct was outside the Act. Alternatively, they contended that a sentence (the so-called “Treasury Amendment”) in § 2(a)(1) of the Act, 7 U.S.C. § 2, excluded from the Act options to buy or sell foreign currency, which were part of defendants’ business. A. The Proceedings Leading to the Granting of the Permanent Injunction The Commission promptly moved for and was granted preliminary injunctive relief against defendants’ continuation of their commodity options transactions. In a Memorandum Order filed on July 13, 1979, and published at Commodity Futures Trading Commission v. Economou, Am. Bd. of Trade, 473 F.Supp. 1177, the district court construed the Act, in light of its language and legislative history, to extend to options on the underlying commodities as well as options on futures contracts, and to cover options to buy and sell foreign currencies. Finding it clearly likely that defendants would continue their challenged activities unless enjoined, the court entered an order preliminarily enjoining defendants, inter alia, (a) from accepting money, securities, or property (or extending credit in lieu thereof) from any person in connection with the purchase or sale of any commodity option; [and] (b) from soliciting and accepting orders for the purchase or sale of commodity options and from supervising persons so engaged Id. at 1178. In October 1981, having granted the Commission’s motion to strike defendants’ affirmative defenses and denied defendants’ motions to file amended answers on the ground that they failed to state viable constitutional defenses, the district court found that there were no genuine issues of material fact as to the unlawfulness of defendants’ activities. It therefore granted the Commission’s motion for partial summary judgment making the preliminary injunction permanent, adopting the findings of fact and conclusions of law set forth in its order granting the preliminary injunction. As incorporated into the final judgment in 1985, defendants were enjoined from (a) offering to enter into, entering into, or confirming the execution of any commodity option transaction involving any commodity regulated under the Act; (b) accepting money, securities or property (or extending credit in lieu thereof) from any person in connection with the purchase or sale of any commodity option; (c) soliciting or accepting orders for the purchase or sale of commodity options, or from supervising persons so engaged; and (d) refusing to produce for inspection by authorized representatives of the Commission records that Commission regulations require to be kept; in violation of Sections 4c(b) and 4c(c) of the Commodity Exchange Act, as amended, 7 U.S.C. §§ 6c(b) and 6c(c) (1982), and Regulations 32.7(e) and 32.11 promulgated under the Act, 17 C.F.R. §§ 32.7(e) and 32.11 (1983). B. The Disgorgement Order Following the entry of its permanent injunction, the district court ruled that defendants would be required to disgorge certain sums received as a result of their unlawful transactions. A trustee was appointed, and defendants were ordered to deliver to the trustee “all premiums and other proceeds received by defendants in connection with the offer and sale, by them, of commodities options during the period June 1, 1978 to July 13, 1979.” The trustee was given authority to, inter alia, retain an accounting firm and other consultants to assist him, take testimony under oath, and examine into defendants’ books and records. He was directed to report to the court a proposal for distribution of the recovered proceeds to customers who had purchased commodity options from defendants during the period at issue. An initial report filed by the trustee in February 1984, accompanied by an analysis made by his retained accounting firm, calculated that defendants had received premiums and other proceeds totaling at least $5.1 million. An alternative calculation of $6.3 million was also reported. The different figures represented disagreements between the parties as to the proper interpretation of the court’s order leading to the proceedings before the trustee. The district court held a hearing with respect to the trustee’s report and raised further questions with respect to the amount of profits gained by defendants from the sale of commodity options in the period specified. In January 1985, the trustee reported back to the court that, in light of certain retractions in the testimony of defendants’ accountant there was “no way to quickly ascertain ABT’s profits from the sale of commodity options.” In a hearing convened thereafter, the court stated as follows: While I find that there were substantial profits realized, I am satisfied that it is almost impossible, without a further extraordinary expenditure of effort and expense, to determine the amount of such profits____ What I have done, therefore, is to determine an amount of disgorgement which, under all the circumstances of this case, I determine to be equitable. The court concluded that defendants should be required to disgorge the sum of $126,-706, representing the monetary losses suffered by their customers as a result of the unlawful transactions. As incorporated in the final judgment, the disgorgement order provided as follows: 1. That defendants shall disgorge to the trustee the sum of $126,706, or such other sum as the court approves, as may be necessary to make whole those members of the public who lost money through the purchase of commodity options from defendants during the period ór thereafter. 2. That the defendants shall pay to the trustee, and to accountants or others retained by him in connection with the performance of his duties, the reasonable fees and expenses, in the sum of $31,-047.26 to Robert G. Morvillo, Esq. and $179,183 to Arthur Young and Co., and such other fees and expenses, as the court approves, as may reasonably be incurred by the trustee in connection with the distribution of disgorged funds to purchasers of commodity options, as described in Paragraph 1 above. 3. Defendants shall be jointly and severally liable for the payment of the disgorgement, fees and expenses set forth above. CFTC moved for reconsideration of the court’s ruling as to the amount defendants would be required to disgorge, arguing that they should be ordered to disgorge all of the profits they received from the unlawful transactions. It contended that, conservatively estimated, defendants had netted at least $434,961 in profits. The court denied CFTC’s motion, and these appeals and the cross-appeal followed. II. THE MERITS In their challenge to the district court’s rulings on the merits of the Commission’s claims against them, defendants principally renew their contentions (1) that the Act did not apply to their transactions because it reached only options on commodity futures and not options on the underlying commodities, (2) that their transactions relating to foreign currency fell within the ambit of the Treasury Amendment and were therefore not subject to regulation under the Act, and (3) that regulation of their commodity option business by Congress and the Commission violated their constitutional rights. We find no merit in any of these arguments. A. The Statutory and Regulatory Bans on Options The Act as it existed during the period in question set out an intricate scheme of regulation of trading in options. Certain options transactions were prohibited outright. Thus, § 4c(a), 7 U.S.C. § 6c(a) (1976 & Supp. II1978), made it unlawful to enter into certain options transactions involving commodities that were specifically listed in § 2(a)(1) of the Act prior to the enactment of the Commodity Futures Trading Commission Act of 1974 (“CFTA”), Pub.L. No. 93-463, 88 Stat. 1389. Prior to the CFTA, § 2(a)(1) defined as commodities wheat, cotton, rice, and a number of other agricultural products. The commodities to which defendants’ transactions pertained were not, prior to 1974, listed in § 2(a)(1). In 1974, the § 2(a)(1) definition of commodity was expanded by the CFTA to include “all other goods and articles, except onions..., and all services, rights, and interests in which contracts for future delivery are presently or in the future dealt in.” Options transactions in these newly included commodities were not banned outright but were subjected to regulation or prohibition by the Commission. Thus, § 4c(b), 7 U.S.C. § 6c(b), made it unlawful to enter into transactions involving commodities regulated but not listed in 7 U.S.C. § 2 prior to the CFTA, if to do so would violate a rule or regulation of the CFTC: (b) Commodities regulated but not specifically listed No person shall offer to enter into, enter into, or confirm the execution of, any transaction... involving any commodity regulated under this chapter, but not specifically set forth in section 2 of this title, prior to October 23,1974, which is of the character of, or is commonly known to the trade as, an “option”, “privilege”, “indemnity”, “bid”, “offer”, “put”, “call”, “advance guaranty”, or “decline guaranty”, contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe 7 U.S.C. § 6c(b) (Supp. II 1978). In 1978, the Commission, persuaded that its attempts at less restrictive regulation had failed because “the offer and sale of commodity options has for some time been and remains permeated with fraud and other illegal or unsound practices,” 43 Fed. Reg. 16153, 16155 (Apr. 17, 1978); see also British American Commodity Options Corp. v. Bagley, 552 F.2d 482, 486-87 (2d Cir.), cert. denied, 434 U.S. 938, 98 S.Ct. 427, 54 L.Ed.2d 297 (1977), adopted a regulation banning transactions in commodity options: (a) Notwithstanding any other provision of this Part 32, it shall be unlawful on and after June 1, 1978, until further rule, regulation or order of the Commission, for any person to solicit or accept orders for, or to accept money, securities or property in connection with, the purchase or sale of any commodity option, or to supervise any person or persons so engaged. 17 C.F.R. § 32.11. Thus, with certain exceptions not relevant here, as of June 1, 1978, all commodity options transactions were prohibited. In the Futures Trading Act of 1978 (“1978 Act”), Congress codified the prohibition embodied in 17 C.F.R. § 32.11 by enacting a similar statutory provision effective October 1, 1978. See Pub.L. No. 95-405, 92 Stat. 865, 867. The prohibition enacted in 1978 became § 4c(c) of the Act, 7 U.S.C. § 6c(c) (Supp. II 1978), and provided in relevant part: (c) Commodity option transaction; conditions ending prohibition; excepted persons Notwithstanding the provisions of subsection (b) of this section, no person may, after September 30, 1978, offer to enter into, enter into, or confirm the execution of any commodity option transaction involving any commodity regulated under this chapter but not specifically set forth in section 2 of this title prior to October 23, 1974, until (1) the Commission transmits to the House Committee on Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry documentation of its ability to regulate successfully such transactions, including a copy of the Commission’s proposed rules and regulations, and (2) the expiration of thirty calendar days of continuous session of Congress after the date of such transmittal. With certain exceptions not pertinent here, therefore, as of October 1, 1978, the Act itself prohibited transactions in all commodity options. There is no dispute that the transactions engaged in by defendants from June 1, 1978, until they were preliminarily enjoined on July 13, 1979, were options, and that they were options on articles not listed in § 2(a)(1) prior to the CFTA. Nor is there any genuine question that the commodities on which defendants bought and sold options were commodities “in which contracts for future delivery are presently... dealt in,” i.e., options made subject to regulation by the CFTA. By their plain terms, therefore, CFTC Regulation 32.11 as of June 1, 1978, and § 4c(c) as of October 1, 1978, prohibited defendants’ transactions. We see no merit in defendants’ argument that the Act and the regulations did not reach their activities because defendants bought and sold options in the spot and cash markets, i.e., options on the commodities themselves rather than options on futures contracts. The terms of the statute and the regulation were all-encompassing: Section 4c(b) referred to any transaction “involving any commodity regulated under this chapter,” 7 U.S.C. § 6c(b) (emphasis added); and the prohibitions of both § 4c(c) and Regulation 32.11 applied to “any commodity option,” 7 U.S.C. § 6c(c) (emphasis added); 17 C.F.R. § 32.11 (emphasis added). The language of § 2(a)(1), including within the term “commodity” all articles or services whose futures are or will be traded, did not, as defendants would have it, suggest that, only options on futures contracts are regulated. The thrust of this definition was expansive rather than limiting. As one of our sister Circuits has stated, “[b]y [the 1974] amendment, literally anything other than onions could become a ‘commodity’... simply by its futures being traded on some exchange.” Board of Trade v. SEC, 677 F.2d 1137, 1142 (7th Cir.) (footnote omitted), vacated as moot, 459 U.S. 1026, 103 S.Ct. 434, 74 L.Ed.2d 594 (1982); accord 1 P. Johnson, Commodities Regulation § 1.01, at 4 (1982). Nor do we accept defendants’ contention that the language of various cases demonstrates that Congress’s only concern was to regulate trading in options on futures contracts. See, e.g., Strobl v. New York Mercantile Exchange, 768 F.2d 22, 25 (2d Cir.) (noting, in a case involving futures manipulation, that early enactments established “the pattern of commodity futures regulation”), cert. denied, --- U.S. ---, 106 S.Ct. 527, 88 L.Ed.2d 459 (1985). The discussions in those cases focused on the factual situations at issue; and their language is not to be taken as restricting the plain language of the statute and the regulation. We conclude that the district court did not err in finding that defendants’ commodity options transactions from June 1, 1978, to July 13, 1979, violated §§ 4c(b) and (c) of the Act and Regulation 32.11. B. The Treasury Amendment Defendants also contend that the district court erred in failing to hold that their option transactions relating to foreign currencies were excluded from the Act’s reach by operation of the Treasury Amendment, a sentence found in § 2(a)(1) of the Act, 7 U.S.C. § 2. That sentence read, in pertinent part, as follows: Nothing in this chapter shall be deemed to govern or in any way be applicable to transactions in foreign currency... unless such transactions involve the sale thereof for future delivery conducted on a board of trade. The district court reasoned that an option to buy or sell foreign currency is not a purchase or sale of the currency itself and hence is not a transaction “in” that currency, but at most is one that relates to the currency. See 473 F.Supp. at 1182. (The court thus found it unnecessary to reach the question whether the defendants’ transactions fell within the “unless” clause of the section.) We agree. An option transaction giving the option holder the right to purchase a foreign currency by a specified date and at a specified price does not become a “transaction[ ] in” that currency unless and until the option is exercised. See Board of Trade, 677 F.2d at 1154 (relying partly on the opinion of the district court in this case); CFTC v. Sterling Capital Co., [1980-1982] Comm.Fut.L.Rep. (CCH) ¶ 21,169, at 24,783-84 (N.D.Ga.) (same), modified on other grounds, [1980-1982] Comm.Fut.L.Rep. (CCH) ¶ 21,170 (N.D.Ga.1981). Hence the Treasury Amendment did not, on its face, appear to exclude defendants’ foreign currency options business from regulation. This interpretation of the Treasury Amendment is consistent with its legislative history. That history discloses that the exception was included in the CFTA at the behest of the Treasury Department on the ground that the protections of the Act were not needed for the sophisticated financial institutions, already subject to regulation, that participated in such transactions: [T]he Committee included an amendment to clarify that the provisions of the bill are not applicable to trading in foreign currencies and certain enumerated financial instruments unless such trading is conducted on a formally organized futures exchange. A great deal of the trading in foreign currency in the United States is carried out through an informal network of banks and tellers. The Committee believes that this market is more properly supervised by the bank regulatory agencies and that, therefore, regulation under this legislation is unnecessary. S.Rep. No. 1131, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad. News 5843, 5863; accord id. at 5848 (“the Committee amendment provides that interbank trading of foreign currencies and specified financial instruments is not subject to Commission regulation”) (emphasis in original); see 1 P. Johnson, Commodities Regulation § 101, at 5 & n. 4. These descriptions of the intended reach of the Treasury Amendment belie the notion that the exception was designed to exclude from regulation foreign currency options transactions such as those defendants engaged in with private individuals. C. Defendants’ Constitutional Defenses Defendants contend that the district court erred in dismissing their constitutional defenses to the present action. These included principally the assertions that the present suit violates their First Amendment rights and that the Act and the Commission’s regulations violate notions of substantive due process and equal protection. We conclude that the district court did not err in dismissing these claims summarily. With respect to their First Amendment claim, it is not entirely clear whether defendants contend that the present suit is designed to punish them for their past efforts to have the Act amended or to silence them in the future, or both. In any event, defendants sought to support this claim by pointing to the following statement in a 1976 memorandum from one CFTC commissioner to another: Economou will argue that because he is selling options on a physical commodity he is therefore not subject to the exclusive jurisdiction provisions of the CFTC. However, we will argue against this, but, even if we would fail to prevail, the end result should be the same, i.e., Economou is still subject to our regulations. Therefore, his options program should be out of business. Defendants made no other factual allegations, relying solely on allegations that the district court accurately termed “conclusory, vague, and general.” We agree with the district court that the memorandum does not appear to have any bearing on the claim that CFTC sought to interfere with defendants’ First Amendment rights. It speaks solely in terms of defendants’ business, the applicability of CFTC regulations to that business, the anticipated effect of those regulations, and the statutory interpretation argument Economou was expected to make. It contains no suggestion that the Commission’s concern with defendants related to defendants’ past or future exercise of their First Amendment rights or to any other impermissible factors. In the absence of any factual allegations as to specific instances of misconduct, the court properly dismissed the First Amendment claim. See San Filippo v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977) (per curiam). Nor does the fact that Economou is mentioned, as described above, in a Commission memorandum suffice to permit defendants to pursue a claim of selective prosecution, since they have failed to proffer any facts that could show that the Commission’s effort to regulate defendants was based on impermissible factors. See United States v. Moon, 718 F.2d 1210, 1229 (2d Cir.1983) (factual showing required in order to obtain pretrial discovery on claim of selective prosecution), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984). Defendants’ contention that §§ 4c(b) and (c) of the Act and the Commission’s regulations violated their rights to substantive due process and equal protection, based on their assertion that these provisions cannot "be said to be remotely related to the objective which they were intended to secure,” is entirely frivolous. It has long been settled that in assessing a substantive due process attack on economic legislation, our inquiry “must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for [the legislation].” United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938). Indeed, “the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless... it is of such a character as to preclude the assumption that it rests upon some rational basis.” Id. at 152, 58 S.Ct. at 783 (emphasis added). Similar considerations inform our review of a claim that regulation of commercial activities amounts to a denial of equal protection: When... economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations____ Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam). There can be no question here that the prevailing state of affairs in the commodities industry gave Congress an ample basis for regulation of commodity options and for empowering the Commission to issue further regulations. In British American Commodity Options Corp. v. Bagley, 552 F.2d at 485-86, we described the attributes of commodity options that lent themselves so readily to fraud and fiscal irresponsibility, and noted that this “especially hospitable environment for abuse” amply justified Congress and the Commission in concluding that the enactments there challenged were necessary. Defendants’ arguments to the contrary do no more than question the wisdom of the statutes and are more “properly addressed to the legislature, not to us.” Ferguson v. Skrupa, 372 U.S. 726, 731, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 1347 (1963). III. THE RELIEF With respect to the relief granted by the district court, defendants contend that both the permanent injunction and the disgorgement order were an abuse of the district court’s discretion. CFTC challenges the disgorgement order as too lenient, contending that the court should have required defendants to disgorge a more substantial sum. We find all of these contentions unpersuasive. A. The Propriety of the Permanent Injunction In contending that the entry of a permanent injunction constituted an abuse of the court’s discretion, defendants point out that they were never charged with fraud in their options business, and they argue that the injunction deprives the public of the ability to continue investing in the options that defendants formerly offered and deprives defendants of the ability to continue in a business developed after “vast expenditures.” These arguments need not detain us long. An injunction prohibiting a party from engaging in conduct that violates the provisions of a statute is appropriate when there is a likelihood that, unless enjoined, the violations will continue. See CFTC v. Co Petro Marketing Group, Inc., 680 F.2d 573, 582 n. 16 (9th Cir.1982); SEC v. Holschuh, 694 F.2d 130, 144-45 (7th Cir.1982); cf. CFTC v. British American Commodity Options Corp., 560 F.2d 135, 141 (2d Cir.) (preliminary injunction), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1147 (1977). A district court may properly infer a likelihood of future violations from the defendant’s past unlawful conduct. Cf. id. at 142; SEC v. Management Dynamics, Inc., 515 F.2d 801, 807 (2d Cir.1975) (“commission of past illegal conduct is highly suggestive of the likelihood of future violations”); see also Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed.2d 754 (1944) (court’s discretion not necessarily abused by denial of injunction where violations of statute had been inadvertent and defendant had promptly and voluntarily taken steps to correct them). We find no basis for concluding that the district court’s entry of a permanent injunction constituted an abuse of its discretion. There were no issues of fact as to the nature of defendants’ business, but merely legal questions as to the applicability of the Act and the regulations to that business. Nor was there any genuine issue as to the need for an injunction to ensure that defendants would in the future comply with the Act and the regulations. Even the cold record on appeal fairly shouts the probability that defendants would continue their operations if not enjoined. Their persistent contention that the Act did not apply to them and that the Commission’s regulations therefore could not, as a statutory matter, apply to them, their contention that regulation by Congress and the Commission violates their constitutional rights, and their adherence to other even less meritorious positions furnish no confidence that if not enjoined, defendants would refrain from the options transactions found here to violate the Act and the regulations. Indeed, the principal grounds urged in attacking the injunction — the unavailability of ABT to the public for such transactions and the inability of defendants to carry on their established business — indicate that defendants would otherwise proceed with their unlawful options business. The fact that defendants have not been charged with fraud is immaterial. While fraudulent transactions are indeed unlawful, the Act and the regulations prohibited the options transactions at issue without regard to questions of fraud. Defendants’ manifest intent to continue their options business unless enjoined fully justified the entry of a permanent injunction against them. As incorporated in the final judgment, the injunction was carefully tailored to avoid any interference with legitimate activities. Thus, the court stated that the injunction was intended to make it clear that the conduct which is permanently enjoined is conduct which is prohibited under the Act and the regulations thereunder. The injunction is not intended to prohibit commodity option transactions or activities which conform to the requirements of the Act and the regulations thereunder. Amendment to Final Order of Permanent Injunction dated October 11, 1984. We conclude that defendants have failed to show any basis for disturbing the permanent injunction. B. The Disgorgement Order Both CFTC and defendants challenge the district court’s order requiring defendants to pay the disgorgement trustee $126,706, an amount that is expected to make whole those customers who lost money through the purchase of defendants’ commodity options. Defendants contend that they should not have been compelled to disgorge any moneys because they were not charged with fraud and they “derived no identifiable profit or ill-gotten gain from [their] operation of [the commodity options] program.” (Emphasis in original deleted.) The Commission, on the other hand, contends that its most “conservative” analysis indicates that defendants enjoyed profits totaling $434,961 in the period June 1,1978, to July 13,1979, and that the court erred in not requiring the disgorgement of at least this sum. We reject both sides’ contentions. It is clear that the district court had the power to order disgorgement as a remedy for violations of the Act, for “the purpose of depriving the wrongdoer of his ill-gotten gains and deterring violations of law.” CFTC v. British American Commodity Options Corp., 788 F.2d 92, 94 (2d Cir.1986) (per curiam). “Disgorgement not only deprives the wrongdoer of benefits derived from unlawful conduct but it also effectuates the purpose underlying the Commodities [sic ] Exchange Act — protection of the investor.” Id. A finding of fraud is not a prerequisite. See id. (citing CFTC v. Co [Petro] Marketing Group, Inc., 502 F.Supp. 806, 819 (C.D.Cal.1980), aff'd, 680 F.2d 573 (9th Cir.1982); CFTC v. Hunt, 591 F.2d 1211, 1222-23 (7th Cir.1979)). Normally, where the defendant has received benefits from both lawful and unlawful activities, the party seeking disgorgement must distinguish between the legally and illegally derived profits. See, e.g., CFTC v. British American Commodity Options Corp., 788 F.2d at 93. In the present case, however, both defendants and the court appear to agree that such a distinction is not practicable. Defendants argue that their profits from the unlawful transaction are not “identifiable”; the trustee appointed by the court, after making efforts to identify those profits by examination of defendants’ records and by the formal and informal solicitation of information from defendants and their accountant, reported that there appeared to be no way to quantify quickly ABT’s profits from the unlawful transactions; and the court concluded that ascertainment of such profits could not be achieved absent “extraordinary expense.” The district court found that although not quantifiable, the profits in question were “substantial”; defendants plainly cannot contradict this finding since they state that those profits are not identifiable. In the circumstances

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

Auckland SEMPER and Eldra Semper, Appellants, v. Raymundo SANTOS and Everett Investments, Inc. d/b/a Caribbean Car Rentals. No. 87-3203. United States Court of Appeals, Third Circuit. Argued April 19, 1988. Decided May 12, 1988. Ronald W. Belfon (argued), Law Office of Warren M. Williams, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellants. Douglas A. Brady (argued), Jacobs & Brady, Christiansted, St. Croix, U.S. Virgin Islands, for appellee. Before SEITZ, SLOVITER, BECKER, Circuit Judges. OPINION OF THE COURT SLOVITER, Circuit Judge. This case presents two issues: whether the trial court was required to grant a new trial because the jury failed to award damages for pain and suffering to plaintiff, and whether the trial court may preclude testimony of a witness who was not timely identified. I. Facts Auckland Semper (Semper) and his wife brought suit in the Territorial Court of the Virgin Islands for injuries suffered by Semper when the automobile he was driving was hit by one driven by defendant Raymundo Santos. Santos, who had never before been in the Virgin Islands, was driving a rented car and was unaware that he was required to drive on the left side of the road. Because both cars were travelling at less than fifteen (15) miles per hour, a head-on collision was avoided and the impact was slight. Semper sued Santos and the company from which he rented the car. The trial court’s grant of summary judgment to Semper against Santos on liability was uncontested. Thus, the only issue at trial as to Santos pertained to the amount of damages. Following the accident, the police took Semper to the hospital, where he complained of chest pain and dizziness, Dr. Alfred Heath, a physician working in the emergency room, examined him, noted a contusion (bruise) to Semper’s chest, and released him after receiving negative x-rays. It is not clear whether Semper was prescribed medication upon his release. Although Dr. Heath, defendants’ witness, stated at trial that the normal procedure is to prescribe medication, he noted that the emergency room records did not indicate medicine being prescribed. App. at 204. Semper was charged $57.00 for emergency room services. Approximately two weeks later, Semper, again complaining of chest pain, returned to Dr. Heath. Again, the diagnosis was a contusion to the chest, the symptoms of which normally subside within two or three weeks from the date of injury. App. at 215. At that time, Dr. Heath gave Semper a prescription for tylenol and codeine for pain. App. at 211. There is no evidence that this prescription was filled. No billing statement for this visit was offered into evidence, and Dr. Heath was unable to corroborate Semper’s testimony that he was charged for this visit. Semper testified at trial that he saw an unlicensed “healer” about a month after seeing Dr. Heath. Again, however, no bills were produced and it remained uncorroborated that Semper had actually paid for the “healer’s” services. Semper also testified that he visited several physicians on account of injuries received in the accident. Only one of these physicians, Dr. McDonald, testified. He stated that he had seen Semper on three occasions beginning approximately two and one-half years after the accident, and that although Semper complained of lower back pain, neck pain, a numb right leg, tremors, and pain around his waist, he complained primarily about his sexual dysfunction. None of these complaints was noted on the records of the hospital emergency room immediately after the accident or on Dr. Heath’s records of Semper’s visit two weeks later. Dr. McDonald suggested that there might be a psychogenic (“in the mind”) cause for Semper’s sexual dysfunction. App. at 91. Dr. McDonald testified that he prescribed Semper medication for the spasms in his lower back. App. at 66. Semper introduced evidence of other prescriptions, but Dr. Heath testified that those medications prescribed were for the treatment of ulcers and for the treatment of earaches. App. at 222-23. Following the trial on the issue of damages, the jury found for the defendant car rental company, against Semper’s wife, and for Semper in the amount of $57.00 against Santos, the amount of the total out-of-pocket expenses for which Semper submitted evidence. The trial court denied Semper’s motion for a j.n.o.v. or for a new trial. Semper appealed to the Appellate Division of the District Court of the Virgin Islands, complaining, inter alia, about the inadequacy of the verdict and the trial court’s refusal to permit a treating physician to testify. The Appellate Division of the District Court rejected both of these contentions, holding that the Territorial Court did not abuse its discretion. Semper appeals to this court. We consider first the scope of our review over the decision of the Appellate Division of the District Court of the Virgin Islands. The usual deference that an appellate court gives the trial court’s discretionary rulings, see United States v. Criden, 648 F.2d 814, 817-19 (3d Cir.1981), is inapplicable when one appellate court reviews another. We have held in connection with another system of two-tiered appellate review that the second appellate tribunal should review the trial court’s determination using the same standard of review applied by the first appellate tribunal. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-102 (3d Cir.1981) (reviewing district court’s appellate review of bankruptcy court decision). In such a system, both appellate courts are equally able to review the factual findings and discretionary rulings of the trial court, and it is only through an independent review of the trial court’s findings that the second appellate court can determine whether the first appellate court erred in its review. See id. at 102. This reasoning is equally applicable to our review of the Appellate Division of the District Court of the Virgin Islands. II. Inadequacy of Damage Award The scope of this court’s review of a damage award is “ ‘exceedingly narrow’ ”, Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.1987) (quoting Walters v. Mintec International, 758 F.2d 73, 80 (3d Cir.1985)), whether the appeal is from an allegedly excessive jury verdict or an allegedly inadequate damage award. See, e.g., Nussbaum v. Warehime, 333 F.2d 462, 464 (7th Cir.1964), cert. denied, 379 U.S. 979, 85 S.Ct. 682, 13 L.Ed.2d 570 (1965). We have ordered a new trial for excessive damages only when the verdict is so grossly excessive as to “shock the judicial conscience.” Williams, 817 F.2d at 1038 (citation omitted). Similarly, the remedy of a new trial for insufficient damages is only appropriate where the evidence indicates that the jury awarded damages in an amount “ ‘substantially less than was unquestionably proven by plaintiff’s uncontradicted and undisputed evidence.’ ” Taylor v. Bennett, 323 F.2d 607, 609 (7th Cir.1963) (quoting Schaeper v. Edwards, 306 F.2d 175, 177 (6th Cir.1962)); see also Tann v. Service Distributors, Inc., 56 F.R.D. 593, 598 (E.D.Pa.1972) (new trial will not be awarded unless damages assessed by jury are so unreasonable as to offend conscience of the court), aff'd, 481 F.2d 1399 (3d Cir.1973). The question of adequacy of damages is primarily left to the sound discretion of the trial court in considering a motion for a new trial, and this court will not disturb that determination unless a “ ‘manifest abuse of discretion’ [is] shown.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d 215, 225-26 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); see also Murray v. Fairbanks Morse, 610 F.2d 149, 153 (3d Cir.1979) (“trial judge is in the best position to evaluate the evidence and assess whether the jury’s verdict is rationally based”); Porterfield v. Burlington Northern Inc., 534 F.2d 142, 146 (9th Cir.1976) (appellant has “substantial burden to demonstrate that the trial judge’s discretion was abused”). Semper places his principal reliance on Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir.1972), where the court ordered a new trial because the jury had awarded plaintiff only the exact dollar amount of his out-of-pocket expenses for hospital and medical costs. However, in that case the court explained that “[u]nder applicable Colorado law the jury’s authority does not include limiting the award to actual medical expenses where the undisputed evidence establishes both pain and suffering and permanent disability.” Id. at 20 (emphasis added). Even if we were inclined to follow the same rule, an issue we do not decide, Brown is not apposite here because there is no undisputed evidence of any permanent disability. Semper’s testimony regarding his pain, backaches, sexual dysfunction, and emotional problems was all uncorroborated. The jury was free to draw its own conclusion from the totality of evidence presented, particularly in light of Semper’s failure to mention many of these alleged medical problems to the only physician who saw him shortly after the accident and his failure to seek any further medical attention other than that of a “healer” for two years after the accident. Semper argues that his testimony that he suffered two weeks of chest pain was well-corroborated and undisputed, and that the trial court abused its discretion in refusing to grant a new trial because no reasonable jury could have failed to award him damages for pain and suffering. The testimony shows that he complained of chest pains immediately after the accident and on his visit to Dr. Heath approximately ten days later. However, although Semper was prescribed a pain medication when he saw Dr. Heath the second time, Semper did not testify that he filled that prescription or that he took the medication. Santos testified that immediately after the impact Semper did not complain of any injury and that Semper stated he was “okay” and showed no signs of being in pain. App. at 41. The jury was in the best position to evaluate the credibility of Sem-per’s testimony of his pain and suffering. See Murray v. Fairbanks Morse, 610 F.2d at 154; Porterfield v. Burlington Northern Inc., 534 F.2d at 146 (allegedly inadequate damage award should not be overturned where it results from credibility judgments by the trier of fact); Szewczyk v. Doubet, 354 A.2d 426, 430 (Del.1976) (jury free to reject plaintiff’s testimony as to pain and suffering). The jury was under no obligation to believe the testimony of Semper as to his chest pain, even if that testimony were undisputed. Cf. Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 486 (3d Cir.1965) (“the trier of fact, whether the issue be one of an excessive or inadequate verdict, is at liberty within the bounds of reason to reject entirely the un-contradicted testimony of a witness which does not convince the trier of its merit”). This court has stated that, “[ejvidence of pain and suffering is particularly ill-suited to review upon only a written record.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d at 227 n. 16. Plaintiff stresses that in his argument to the jury, defense counsel suggested that an award of $3,000 would be appropriate. Defense counsel explains that this comment was in response to plaintiff counsel’s request that the jury award plaintiff $200,-000. Appellee’s Brief at 28. The arguments of counsel are not evidence, and the jury remained free to make its own assessment. Because the jury could have decided to discredit Semper’s testimony of pain and suffering on this record, we cannot hold that the jury’s award of $57.00 covering Semper’s only verified expense, the cost of the emergency room treatment following the accident, “shock[s] the judicial conscience,” Williams, 817 F.2d at 1038. The trial judge who also heard the evidence and observed the witnesses found the verdict not to be against the weight of the evidence nor unconscionable. We conclude that he did not abuse his discretion in denying Semper’s motion for a new trial. III. Exclusion of Expert Witness on Rebuttal Semper also argues that the trial judge abused his discretion in excluding testimony of a physician Semper denominates as “an important rebuttal witness.” Appellant’s Brief at 21. The court based its ruling excluding the witness on Semper’s failure to timely disclose that this proposed expert witness, Dr. Omitowoju, had been an examining physician or that he would be called as a witness for plaintiffs at trial. Dr. Omitowoju had originally seen Semper in November, 1984, well in advance of the discovery deadline. App. at 254. Nonetheless, Semper ignored defendants’ request for supplementation of responses to discovery and did not identify Dr. Omitowoju by the April 12,1985 deadline that the court set for naming witnesses. It was only on April 30, 1985, one day after jury selection, that defendants received mail notice dated April 20, 1985 of Semper’s intention to call Dr. Omitowoju as an expert witness. Defendants then moved in limine to exclude the doctor as a trial witness, and the trial court granted the motion due to Semper’s failure to comply with the court-imposed discovery deadline. Because jury selection had already commenced and the case was about to proceed to trial, defendants had been effectively precluded from the opportunity to obtain discovery concerning Dr. Omitowoju’s treatment, findings, or prospective testimony- Semper attempted to call Dr. Omitowoju in rebuttal following the close of defendants’ case. Semper concedes that he made no offer of proof as to the scope of the doctor’s testimony. Appellant’s Brief at 21-22 & n. 4. The trial judge cannot be faulted, therefore, for excluding the testimony as, in the appellate division’s words, “a back-door attempt to bolster the case-in-chief.” App. at 551. Even more important, the trial court had the discretion to exclude testimony of a witness who had not been identified. The trial court’s exclusion of testimony because of the failure of counsel to adhere to a pretrial order will not be disturbed on appeal absent a clear abuse of discretion. Franklin Music Co. v. American Broadcasting Companies, 616 F.2d 528, 539 (3d Cir.1979). As the trial court stated, had Dr. Omitowoju been permitted to testify, Semper “would have profitted from its own failure to comply with the discovery deadlines,” App. at 545, since defendants would have been prejudiced. In Murphy v. Magnolia Electric Power Ass’n, 639 F.2d 232 (5th Cir.1981), on which Semper relies, not only had plaintiffs offered to exchange experts’ reports ten days before trial, but also the evidence excluded “struck at the heart of appellants’ case.” Id. at 235; see also Meyers v. Pennypack Woods, 559 F.2d 894, 904 (3d Cir.1977) (“importance of the excluded testimony” one of the factors to be considered in deciding whether trial court abused its discretion in excluding witness), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985), aff'd, — U.S.-, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). Here, it is questionable whether the rebuttal testimony would have materially helped Semper. Semper argues “that Dr. Omitowoju would have testified in rebuttal that Dr. Heath was wrong to say that back problems normally become apparent within 72 hours of a trauma, as in fact they normally can take as long as six weeks.” Appellant’s Brief at 21-22. Although Semper contends this testimony would have bolstered his credibility, and discredited Dr. Heath, both the trial judge and the Appellate Division of the District Court discounted the significance of this proposed testimony. In light of the fact that Semper sought no further medical attention other than that of the “healer” for more than two years after the accident, testimony that he might have had back pain six weeks thereafter hardly “strikes at the heart” of Semper’s case. IY. Conclusion For the reasons set forth above, we will affirm the judgment of the Appellate Division of the District Court. . The appellate division did hold that the trial court erred in permitting defendant to amend his answer to allege contributory negligence after the summary judgment on liability; it held that Semper was entitled to the full $57.00 verdict, without reduction by the 25% for which the jury found Semper negligent.

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

ANDERSON et al. v. OWENS et al. No. 13313. United States Court of Appeals Ninth Circuit. May 29, 1953. Rehearing Denied July 7, 1953. Davis & Renfrew, Anchorage, Alaska, for appellant. Chadwick, Chadwick & Mills, Seattle, Wash., John E. Manders, Anchorage, Alaska, Faulkner, Banfield & Boochever, Juneau, Alaska, for appellees. Before HEALY, BONE and POPE, Circuit Judges. POPE, Circuit Judge. The Owens partners bought a tug from the Anderson partners. This suit was for breach of warranty of the condition of the tug. The dealings leading up to the contract of sale and purchase took, place at Seattle, Washington, although all the parties were residents of Alaska. The senior Anderson and A. E. Owens carried on the negotiations. Anderson had brought the tug to Seattle for repairs. It had been ¡purchased a year previously as a war surplus vessel. He met Owens at Seattle and negotiations followed which are described in the findings of the trial court as follows : “7. J. C. Anderson stated that the vessel was in fair condition with the exception that the crankshaft pin for No. 5 cylinder was scored and that the forefoot or the stem was damaged from striking a log on the trip to Seattle, but that the vessel did not leak. Anderson further stated that the vessel could be put in first class shape for $5,000. “8. The defendants offered to sell the vessel to the plaintiffs for $25,000 in its then condition or for $30,000 repaired. “9. On April 1, 1947, A. E. Owens, on behalf of the plaintiffs, agreed to purchase the vessel for $25,000 and elected to make his own repairs. ‘TO. A written agreement was executed on April 1, 1947, but the agreement did not refer to the condition of the tug.” By way of conclusions the court found that “The defendants made express warranties in regard to the condition of the vessel T. P. 100”; that the plaintiffs, ap-pellees here, were induced to purchase the vessel in reliance thereon, and that the warranties were breached and the plaintiffs damaged thereby in the sum of $24,478.86. The evidence shows that after preliminary negotiations between Anderson and Gwens, both parties went to the office of Owens’ attorney at Seattle and an agreement in writing was drawn and executed. With respect to this Owens testified as follows: “Q. Did you eventually make any agreement in regard to the purchase of this boat? A. Later on we did. We made an agreement to purchase the boat for twenty-five thousand dollars; five thous- and dollars cash, and two thousand dollars a month until the balance was paid off. Q. Was that agreement reduced to writing? A. It was.” The agreement so drawn and executed is a complete and formal one. It states the desires of the parties to sell and purchase the boat; that Anderson had not yet received the bill of sale, but that delivery of the appropriate documents is to be made as soon as the bill of sale has been procured. It describes the vessel with particularity; states the purchase price; provides for a down payment of $5000, and subsequent installments of $2000 per month plus interest; it arranges for the execution of a new note constituting the balance of the purchase price to be secured by a mortgage upon the vessel, the note and mortgage to be substituted for a then existing mortgage; it provides for insurance upon the vessel with loss payable provisions for the benefit of the holder of the note and mortgage; for immediate delivery of the boat, and for deposit of the down payment of $5000 in escrow with Owens’ attorneys, the same to be delivered upon receipt of the Government bill of sale. The agreement contains no warranties with respect to the condition of the boat. Anderson claims that the sale was without warranties; that he sold the boat “as is”; that he left it to Owens to say whether he would buy the boat in its then condition for $25,000, or whether he would pay $30,-000 with an agreement by Anderson to repair it, and that Owens chose to pay the $25,000 and make his own repairs. It was understood by both parties that some repairs were required. The claim of Owens was that in the negotiations which preceded the execution of the written agreement, Anderson made the warranties as to the extent of the required repairs. It is these warranties which the trial court held were breached. It is obvious that the primary question to be determined is whether the written agreement between the parties constituted an integration of their agreement so that the parol evidence of prior negotiations, upon which the court based its findings of warranties, was immaterial and inadmissible. Appellees say that the appellants are in no position to make any such contention for the reason that the evidence of the negotiations which preceded the execution of the writing came in without objection and hence these matters were before the court and judgment can be based thereon. It is conceded by both parties that the transaction in question is covered by the law of Washington where the negotiations took place and the agreement was made. While the law of that State upon the point has not always been clear, yet the later decisions of the Supreme Court of Washington hold that the parol evidence rule is not a rule of evidence but one of substantive law, and hence where that rule applies, the terms of a written agreement may not be altered or modified by parol evidence of prior or contemporaneous oral negotiations, whether that evidence be objected to or not. Jackson v. Domschot, 40 Wash.2d 30, 33, 239 P.2d 1058, 1060; Preugschat v. Hedges, Wash. 251 P.2d 166. We proceed then to inquire whether the parol evidence rule must be applied here, and whether the trial court could properly find that there were express warranties in the sale of the boat. The question is whether in the circumstances, the prior negotiations between the parties were embodied, that is, integrated in the writing. That depends upon the disclosed intent of the parties and is a question for the court. In the case of Sears, Roebuck & Co. v. Nicholas, 2 Wash.2d 128, 97 P.2d 633, at page 635, that court, after a discussion of the decisions of other courts, proceeded to make the following statement of the test of integration: “While this doctrine has been very generally followed, some courts have held that the intent' of the parties controls, and that in determining their intent, the nature of the alleged oral agreement not embodied in the contract, and the matter of whether or not such an agreement would ordinarily have been embodied in the written instrument had the parties in fact made such an agreement, are entitled to great weight. In 3 Williston on Contracts 1834, § 638, is found the following: ‘The test of admissibility is much affected by the inherent probability of parties who contract under the circumstances in question, simultaneously making both the agreement in writing which is before the court, and also the alleged parol agreement;’ * * *. In the case of Thompson [Thomson] & Stacy Co. v. Evans, Coleman & Evans, 100 Wash. 277, 170 P. 578, 580, it was held that a written contract for the sale of grain sacks was not ambiguous or incomplete merely because it did not by its terms designate the place whence the sacks were to come, it being held that parol evidence that the sacks were to be shipped from British Columbia was inadmissible. In the course of the opinion, this court said: ‘Moreover the parties to every written contract, which, on its face, imports a complete legal obligation, are presumed to have introduced into [it] every material item and term. Silence on a point which might have been embodied does not open the door to parol evidence to include it.’ ” The Washington court thus made it clear that there may be integration such as to exclude parol evidence of prior negotiations upon certain matters even although the writing is silent upon those matters. Thus it is the view of that court that in determining whether, after a writing has been executed, prior oral negotiations may be proven, the question is whether the situation is such that in the natural course of things the parties would include in the writing what was said during their prior negotiations if they intended the oral statements to be a part of the bargain. In the case of Logsdon v. Trunk, 37 Wash.2d 175, 222 P.2d 851, 854, the Washington court quoted with approval the following language which the Supreme Court of Oregon in turn had quoted from Jones on the Construction of Contracts:. " 'The test of the completeness of the writing, proposed as a contract, is the writing itself. If this bears evidence of careful preparation of a deliberate regard for the many questions which would naturally arise out of the subject-matter of the contract, and if it is reasonable to conclude from it that the parties have therein expressed their final intentions in regard to the matters within the scope of the writing, then it will be deemed a complete and unalterable exposition of such intentions.’ ” We think that when these rules are considered in the light of the circumstances of this case, and the rather elaborate and complete writing which the parties executed, that there was here such an integration; that the parties must look to the writing alone; and that an action cannot be predicated upon these prior oral negotiations. Cf. Wigmore on Evidence, 3d ed., § 2434, note 1. It is apparent that the case was tried below upon the theory that plaintiff was entitled to recover upon express warranties of quality or condition. The trial court adopted this theory and its findings and conclusions disclose that liability was predicated upon the existence of express warranties, for the court so described them. Upon this appeal, however, appel-lees argue that the judgment may be sustained upon the theory of an implied warranty. They base their argument in this respect upon the following provision of the statute which Washington has adopted from § 15 of the Uniform Sales Act, Remington Revised Statutes Wash., § 5836-15: “Implied warranties or conditions as to quality or fitness. Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. * * * ” It is true that Owens testified that during the negotiations he told Anderson that he was engaged in logging operations and wanted the tug to tow logs, and the trial court so found. However, before an implied warranty may arise under the section quoted, it must appear not only that the buyer makes known to the seller the purpose for which the goods are required, but it must also appear that the buyer “relies on the seller’s skill or judgment”. Puratich v. Pacific Marine Supply Co., 184 Wash. 531, 535, 51 P.2d 1080, 1082. The trial court found that “A. E. Owens had been engaged in the logging business for many years during the course of which he had bought and operated boats.” No finding whatever was made as to whether in the circumstances of this case Owens relied upon Anderson’s skill or judgment. The inquiry is whether notwithstanding this lack there is evidence in the record upon which such a finding might be based. Clearly this is not the typical case in which the prospective purchaser who requires machinery or other personal property for a special purpose advises the seller of his needs and requests the seller to furnish equipment that will meet his requirements. Such a case was Long v. 500 Co., 123 Wash. 347, 212 P. 559. Here the parties dealt with respect to a definite, a single, specific boat. There is no evidence whatever that Owens relied upon Anderson’s skill or judgment to pick out this particular tug. If anything, the evidence would tend to show that Owens, long in the logging business, and the previous owner and operator of a number of boats used for that purpose, was relying on his own skill and judgment. Of course he claims that he was relying upon what Anderson said about the condition of the motor, the driveshaft, and the stem, but those are matters relating to the alleged express warranties which, as we have seen, cannot be relied upon here. The contrast between the facts of this case and those of Long v. 500 Co., supra, is well stated in American Player Piano Co. v. American Pneumatic Action Co., 172 Iowa 139, 154 N.W. 389, 393, as follows: “The distinction between the cases in which a warranty is implied and where it is not implied is that in one case a person buys a distinct thing, an exact article, and gets the thing he bargained for. He cannot complain that it does not accomplish the purposes for which he purchased it, although he communicated that purpose to the seller. In such cases he takes his own risk as to the fitness of the thing for the intended purpose, and no warranty is implied. This rests upon the thought that no one can complain of another, or charge him with fault, who gives to him the exact thing which he bargained to give, although it is not fit for the purposes for which he bought it.” The same distinction was recognized in Long v. 500 Co., supra, where the court in explaining certain Washington cases applying the rule just quoted from the Iowa case, said, 212 P. at page 560: “These cases, it is true, sustain the general principle that, where a known, described and definite article is ordered of a dealer, who is not the manufacturer of the article, and an article of the known and described kind is delivered, there is no warranty that the article supplied is suitable for the purpose for which the buyer intends to use it, even though the buyer may have made known to the dealer, at the time he gave the order, the intended use”. We think that the record will not sustain a finding to support an implied warranty of the kind claimed here. Since we are of the view that the appel-lees’ claim cannot be sustained upon the basis of either an express or implied warranty, the judgment must be reversed. The case has one tag end. The court, in addition to awarding appellees damages for breach of warranty, awarded damages in the sum of $500 for wrongful detention of a lifeboat. No fault can be found with that part of the judgment and to that extent it must be affirmed. The judgment is reversed and the cause remanded to the court below with directions to modify the judgment so that the same will award plaintiffs the sum of $500 only. . Appellants shall recover their costs-upon this appeal. . “The parol evidence rule is not a rule of evidence, but is a rule of substantive law. Andersonian Inv. Co. v. Wade, 108 Wash. 373, 184 P. 327; 5 Wigmore on Evidence (2d Ed.) § 2400, p. 236. Hence, evidence properly falling within the inhibition of the rule does not become admissible merely because it has probative value or is not objected to.” . In this respect the Washington court was adopting the view expressed in Seitz v. Brewers’ Refrigerating Mach. Co., 141 U.S. 510, 517, 12 S.Ct. 46, 48, 35 L.Ed. 837, as follows: “Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this instance complete and perfect on its face, without ambiguity, and embracing the whole subject-matter, it obviously could' not be determined to be less comprehensive than it was. And this conclusion is-unaffected by the fact that it did not allude to the capacity of the particular' machine. To hold that mere silence opened the door to parol evidence in that regard would be to beg the whole question.” . “It 17111 be observed that under the first subdivision there is no implied warranty of fitness for a particular purpose unless that purpose is made known to the seller and the buyer relies on the seller’s skill or judgment. In the case now before us, the evidence shows that the purpose for which the netting was sold was made known to the appellant, the seller. But there is no evidence from which it can be inferred that the respondent relied upon the seller’s skill or judgment. In fact, Ms testimony was in effect, to tlie contrary. If the respondent did not rely on the seller’s skill or judgment, he has not fulfilled the requirements necessary to make a cause of action on the ground of implied warranty of fitness for a particular use.” . The buyer in that case needed a truck for hauling logs. The seller selected and furnished a 3% ton truck which proved inadequate and broke down.

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

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

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

ROSE, WARDEN v. LOCKE No. 74-1451. Decided November 17, 1975 Per Curiam. Respondent was convicted in the Criminal Court for Knox County, Tenn., of having committed a “crime against nature" in violation of Tenn. Code Ann. § 39-707 (1955). The evidence showed that he had entered the apartment of a female neighbor late at night on the pretext of using the telephone. Once inside, he produced a butcher knife, forced his neighbor to partially disrobe, and compelled her to submit to his twice performing cunnilingus upon her. He was sentenced to five to seven years’ imprisonment. The Tennessee Court of Criminal Appeals affirmed the conviction, rejecting respondent’s claim that the Tennessee statute’s proscription of “crimes against nature” did not encompass cunnilingus, as well as his contention that the statute was unconstitutionally vague. 501 S. W. 2d 826 (1973). The Supreme Court of Tennessee denied review. Respondent renewed his constitutional claim in a petition for a writ of habeas corpus filed in the District Court for the Eastern District of Tennessee. The District Court denied respondent’s petition, holding that when considered in light of previous interpretations by the courts of Tennessee, § 39-707 was “not unconstitutionally vague nor impermissibly overbroad.” Respondent appealed to the Court of Appeals for the Sixth Circuit, and that court sustained his constitutional challenge. Believing that the statutory term “crimes against nature” could not “in and of itself withstand a charge of unconstitutional vagueness” and being unable to find any Tennessee opinion previously applying the statute to the act of cunnilingus, the Court of Appeals held that the statute failed to give respondent “fair warning.” 514 F. 2d 570 (1975). It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U. S. 612, 617 (1954); see Wainwright v. Stone, 414 U. S. 21, 22 (1973). But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U. S. 282, 286 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. Cf. Nash v. United States, 229 U. S. 373 (1913); United States v. National Dairy Corp., 372 U. S. 29 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden. Viewed against this standard, the phrase “crimes against nature” is no more vague than many other terms used to describe criminal offenses at common law and now codified in state and federal penal codes. The phrase has been in use among English-speaking people for many centuries, see 4 W. Blackstone, Commentaries *216, and a substantial number of jurisdictions in this country continue to utilize it. See Note, The Crimes Against Nature, 16 J. Pub. L. 159, 162 n. 19 (1967). Anyone who cared to do so could certainly determine what particular acts have been considered crimes against nature, and there can be no contention that the respondent’s acts were ones never before considered as such. See, e. g., Comer v. State, 21 Ga. App. 306, 94 S. E. 314 (1917); State v. Townsend, 145 Me. 384, 71 A. 2d 517 (1950). Respondent argued that the vice in the Tennessee statute derives from the fact that jurisdictions differ as to whether “crime against nature” is to be narrowly applied to only those acts constituting the common-law offense of sodomy, or is to be broadly interpreted to encompass additional forms of sexual aberration. We do not understand him to contend that the broad interpretation is itself impermissibly vague; nor do we think he could successfully do so. We have twice before upheld statutes against similar challenges. In State v. Crawford, 478. S. W. 2d 314 (1972), the Supreme Court of Missouri rejected a claim that its crime-against-nature statute was so devoid of definition as to be unconstitutional, pointing out that its provision was derived from early English law and broadly embraced sodomy, bestiality, buggery, fellatio, and cunnilingus within its terms. We dismissed the appeal from this judgment as failing to present a substantial federal question. Crawford v. Missouri, 409 U. S. 811 (1972); see Hicks v. Miranda, 422 U. S. 332, 343-345 (1975). And in Wainwright v. Stone, supra, we held that a Florida statute proscribing “the abominable and detestable crime against nature” was not unconstitutionally vague, despite the fact that the State Supreme Court had recently changed its mind about the statute’s permissible scope. The Court of Appeals, relying on language in Stone, apparently believed these cases turned upon the fact that the state courts had previously construed their statutes to cover the same acts with which the defendants therein were charged. But although Stone demonstrated that the existence of previous applications of a particular statute to one set of facts forecloses lack-of-fair-warning challenges to subsequent prosecutions of factually identical conduct, it did not hold that such applications were a prerequisite to a statute’s withstanding constitutional attack. If that were the case it would be extremely difficult ever to mount an effective prosecution based upon the broader of two reasonable constructions of newly enacted or previously unapplied statutes, even though a neighboring jurisdiction had been applying the broader construction of its identically worded provision for years. Respondent seems to argue instead that because some jurisdictions have taken a narrow view of “crime against nature” and some a broader interpretation, it could not be determined which approach Tennessee would take, making it therefore impossible for him to know if § 39-707 covered forced cunnilingus. But even assuming the correctness of such an argument if there were no indication which interpretation Tennessee might adopt, it is not available here. Respondent is simply mistaken in his view of Tennessee law. As early as 1955 Tennessee had expressly rejected a claim that “crime against nature” did not cover fellatio, repudiating those jurisdictions which had taken a “narrow restrictive definition of the offense.” Fisher v. State, 197 Tenn. 594, 277 S. W. 2d 340. And four years later the Tennessee Supreme Court reiterated its view of the coverage intended by § 39-707. Emphasizing that the Tennessee statute’s proscription encompasses the broad meaning, the court quoted from a Maine decision it had earlier cited with approval to the effect that “ ‘the prohibition brings all unnatural copulation with mankind or a beast, including sodomy, within its scope.’ ” Sherrill v. State, 204 Tenn. 427, 429, 321 S. W. 2d 811, 812 (1959), quoting from State v. Cyr, 135 Me. 513, 198 A. 743 (1938). And the Maine statute, which the Tennessee court had at that point twice equated with its own, had been applied to cunnilingus before either Tennessee decision. State v. Townsend, supra. Thus, we think the Tennessee Supreme Court had given sufficiently clear notice that § 39-707 would receive the broader of two plausible interpretations, and would be applied to acts such as those committed here when such a case arose. This also serves to distinguish this case from Bouie v. City of Columbia, 378 U. S. 347 (1964), a decision the Court of Appeals thought controlling. In Bouie, the Court held that an unforeseeable judicial enlargement of a criminal statute narrow and precise on its face violated the Due Process Clause. It pointed out that such a process may lull “the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction.'3 378 U. S., at 352. But as we have noted, respondent can make no claim that § 39-707 afforded no notice that his conduct might be within its scope. Other jurisdictions had already reasonably construed identical statutory language to apply to such acts. And given the Tennessee court's clear pronouncements that its statute was intended to effect broad coverage, there was nothing to indicate, clearly or otherwise, that respondent's acts were outside the scope of § 39-707. . There is no possibility of retroactive lawmaking here. See 378 U. S., at 353-354. Accordingly, the petition for certiorari and respondent’s motion to proceed in forma pauperis are granted, and the judgment of the Court of Appeals is reversed. So ordered. “39-707. Crimes against nature — Penalty.—Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five (5) years nor more than fifteen (15) years.” Respondent also sought relief on the theory that he was denied due process of law because he was convicted on the uncorroborated testimony of his victim. The District Court dismissed this ground as failing “to state a claim of constitutional significance/’ and respondent does not appear to have pursued it. This is not a case in which the statute threatens a fundamental right such as freedom of speech so as to call for any special judicial scrutiny, see Smith v. Goguen, 415 U. S. 566, 572-573 (1974).

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?

Eleanor L. FITZGERALD, Appellant, v. CENTURY PARK, INC., an Oregon Corporation, Appellee. No. 78-2593. United States Court of Appeals, Ninth Circuit. Argued.and Submitted Sept. 2, 1980. Decided April 20, 1981. Donald A. Bick, Bick & Monte, P.C., Eugene, Or., on brief, for appellant. Gregory R. Mowe, Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., on brief, for appellee. Before ALARCON and CANBY, Circuit Judges, and HOFFMAN, Senior District Judge. The Honorable Walter E. Hoffman, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. CANBY, Circuit Judge. Appellant, Eleanor Fitzgerald, on behalf of herself and others similarly situated, appeals a summary judgment granted by the district court to Century Park, Inc., an Oregon land developer. Appellant’s claim is brought under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq., and arises from alleged misrepresentations made by Century Park in the sale of lots in a subdivision for mobile homes. The district court ruled that no member of the class suffered cognizable damages under § 1709(c) of the Act because the increase in value of the lots more than offset any losses appellants might have incurred. Fitzgerald contends that the trial court erred by limiting damages to “out of pocket” losses and refusing to allow “benefit of the bargain” damages. Alternatively, she urges that even if we conclude that damages are not available, we nevertheless remand for trial on the issue of nominal damages. We reject both arguments and affirm. Fitzgerald filed this action in March of 1976 alleging damages resulting from untrue statements of material fact contained in the Property Disclosure Report provided by Century Park in connection with the sale of lots in Florence, Oregon. The Report included the following statement with respect to special assessments: Buyer should be aware that state law grants the power to make special assessments to various governmental units including different types of public service districts. At the time of this filing, no property ... is subject to any such special assessment. Fitzgerald asserts that this statement and a claim that there would be no installation or hookup charges for any facilities other than telephones were untrue because of the prior adoption of Municipal Ordinance No. 531. Ordinance No. 531 provided a framework by which the City of Florence could pass on to property owners charges for enlargement of street, sewer and water facilities required by new development. The ordinance did not establish fees. Those were fixed by a subsequent resolution of the Florence City Council enacted after appellants purchased their lots. The fee ultimately imposed was $320 per lot. Century Park moved for summary judgment. The district court granted the motion on the ground that no class member suffered any cognizable damages under 15 U.S.C. § 1709(c) because all lots in the subdivision had appreciated by at least $320 between the time of the purchase and the time this action was brought. (a) Damages under § 1709(c). At the times relevant to this litigation, § 1709(c) provided that suit for misstatements or omissions in a required property report “may be to recover” damages representing the difference between the price paid for a lot and its improvements and (where the purchaser still owns the property) the market value of the lot and improvements at the time suit is brought. Because that measure of damages clearly provides no relief for appellant and her class, whose lots appreciated to a value in excess of their purchase price, she contends that the word “may” in § 1709(c) indicates that the measure prescribed there is not the exclusive one, but is simply one option. She contends that she and her class should be afforded damages representing the “benefit of the bargain,” which would place them in as good a position as they would be had the $320 assessment never been imposed. Alternatively, she argues that even if the language of § 1709(c) does not so suggest, we should imply into the Act, as a new remedy, benefit of the bargain damages. Both arguments are without merit. Neither the language of the Act nor the legislative history indicates that Congress intended to afford purchasers benefit of the bargain damages. The primary congressional concern, as expressed in the Senate Committee Report, appears to have been to compensate purchasers, who may have lost their life savings by investing in fraudulent land sales, for their actual, out of pocket, losses. Report of the Committee on Banking and Currency, United States Senate, to accompany S.3497, Housing and Urban Development Act of 1968, Senate Report No. 1123, 90th Congress 2d Sess. at 103. Nor will we imply benefit of the bargain damages into the Act. The Act expressly provided a particular remedy; there is no justification for creating others. National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). (b) Effect of the 1979 amendments. In 1979, after this suit was commenced, Congress enacted a comprehensive revision of the Interstate Land Sales Act. Included was an amendment of § 1709 to permit a more liberal measure of damages so that the effects of inflation would not inevitably defeat recovery. The question therefore arises whether this amendment is to be applied retroactively to the present suit. In general, an appellate court applies the remedial law in effect at the time it renders its decision unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary. Bradley v. School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); United States v. Fresno Unified School District, 592 F.2d 1088, 1093 (9th Cir.) cert. denied, 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979). We think that retroactive application of the amendment to § 1709 is contrary to the intent of the revision and its legislative history. We consequently decline to apply it to the present litigation. The 1979 amendments did not merely liberalize the damages provision of § 1709(c); they changed the liability provisions of the Act and exempted some developers who were previously subject to the disclosure provisions. 15 U.S.C. § 1702(b) (1979). The amendments to the liability and damages provisions of the Act were interrelated. We believe that Congress made clear its intent that both should be applied prospectively when it specified that the amendments (with one exception not relevant here) should become effective “on the effective date of regulations implementing such amendments, but in no case later than six months following the date of enactment.... ” P.L. 96-153, § 410, 93 Stat. 1132 (1979). It is unlikely that Congress would delay the effective date of amendments which are to be applied retroactively. Indeed, the conference report on the amendments expressly indicates that the liability portions of the Act were to be prospective, for it states that “[t]he conferees intend that the transition for exemptions and requirements under present law to the amended law should not affect real estate already sold or leased as of the exective (sic) date of the amendments.” House Conference Report No. 706, 96th Cong., 1st Sess. 82; [1979] U.S.Code Cong. & Admin. News, 2317, 2402, 2441. If, as the conferees clearly intended, the exemption amendments are to be prospective only, then to apply the damages amendments retroactively could lead to a developer’s being subjected to expanded damages imposed by a revision of the Act which prospectively exempted that developer from coverage. We doubt that Congress intended to permit that result. While it is not clear in the present case that Century Park would fall within the new exemptions, the prospect of such an occurrence militates against the view that the amendment to § 1709 is to be applied retroactively. We consequently conclude that its effect is prospective only. (c) Remand for Nominal damages. Fitzgerald’s request for nominal damages is raised, for the first time, on appeal to this court. We decline to consider arguments not presented to the district court unless circumstances indicate that injustice might otherwise result. Friedman v. Commissioner, 627 F.2d 175, 177 (9th Cir. 1980); In re U. S. Financial Inc., 594 F.2d 1275, 1282 (9th Cir. 1979). We find no injustice here. The decision of the district court is accordingly affirmed. . Until its amendment after this suit was initiated, 15 U.S.C. § 1709 (1970) provided: (b) Any developer or agent who sells or leases a lot in the subdivision ... (2) By means of a property report which contained an untrue statement of material fact or omitted to state a material fact required to be stated therein, may be sued by the purchaser of such lot. (c) The suit authorized under subsection . .. (b) of this section may be to recover such damages as shall represent the difference between the amount paid for the lot and the reasonable cost of any improvements thereto and the lesser of (1) the value thereof as of the time such suit was brought, or (2) the price at which such lot shall have been disposed of in a bona fide market transaction before suit, or (3) the price at which such lot shall have been disposed of after suit in a bona fide market transaction but before judgment. . The amended section, 15 U.S.C. § 1709 (1979) provides: (a) ... In a suit authorized by this subsection, the Court may order damages, specific performance, or such other relief as the Court deems fair, just, and equitable. In determining such relief, the Court may take into account, but not be limited to, the following factors: The contract price of the lot or leasehold; the amount the purchaser or lessee actually paid, the cost of any improvements to the lot; the fair market value of the lot or leasehold at the time relief is determined; and the fair market value of the lot or leasehold at the time such lot was purchased or leased.

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

Are there two issues in the case?

UNITED STATES of America, Plaintiff-Appellant, v. Jose De Jesus Flores MARTINEZ, Defendant-Appellee. No. 91-30096. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1992. Decided Aug. 17, 1992. As Amended Sept. 17, 1992. Nina Goodman, Asst. U.S. Atty., U.S., Dept, of Justice, Washington, D.C., for plaintiff-appellant. Bryan E. Lessley, Asst. Federal Public Defender, Eugene, Or., for defendant-ap-pellee. Before: BROWNING, D.W. NELSON and CANBY, Circuit Judges. CANBY, Circuit Judge. This is an interlocutory appeal by the United States of an order suppressing a statement that defendant Jose Flores Martinez made to federal investigators. The central issue is whether Martinez’s request for counsel in his state proceedings prohibited a subsequent interrogation by federal officials outside the presence of counsel after the state charges were dismissed. We conclude that the resolution of this question depends on the degree of cooperation between federal and state authorities, which is not clear from the record before us. We therefore remand. FACTUAL BACKGROUND Martinez was arrested in March 1990 and was subsequently charged in the Circuit Court for Wasco County, Oregon with possession of a firearm by a convicted felon, theft of a firearm, and possession of a controlled substance. At his arraignment, he requested an attorney and completed a form entitled “Affidavit of Indigence and Order for Appointment of Counsel.” The state charges were dismissed, however, so no attorney was appointed. Martinez nonetheless remained in state custody, because his pre-existing parole had been revoked as a result of his arrest. On September 4, 1990, two days before Martinez’s custodial time on the parole violation was scheduled to elapse, a federal criminal complaint was filed alleging possession of a firearm by Martinez, a convicted felon. On September 6, state authorities released him into federal custody. The federal agents advised Martinez of his Miranda rights, which he waived, and then questioned him about the gun at issue. During that interrogation, Martinez admitted that he had knowingly purchased the handgun, and he executed an affidavit to that effect. On the same day, Martinez made his first appearance in federal court and counsel was appointed. After he was indicted, Martinez moved to suppress his statement to the federal agents, arguing that their initiation of interrogation after his request for counsel on the state charges violated his rights under the Fifth and Sixth Amendments. No evidence was introduced about the relationship between the state and federal investigations. The district court granted Martinez’s motion, and the United States now appeals. DISCUSSION The issue in this case is relatively straightforward: Did Martinez’s request for counsel at his arraignment on state charges preclude the federal officers from questioning him outside the presence of counsel on federal charges arising from the same incident, when the state charges had been dismissed? Martinez suggests two possible bases for an answer in the affirmative: the Miranda rights under the Fifth Amendment and the Sixth Amendment right to counsel. I. The Fifth Amendment Martinez argues that his request for an attorney at the state arraignment, which clearly triggered his Sixth Amendment right to counsel for the state charges, also invoked his Fifth Amendment right to an attorney under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), thereby preventing the federal agents (as well as the state officials) from questioning him about any offense outside the presence of counsel. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (if suspect invokes Miranda right to counsel, police cannot reapproach regarding different offense unless counsel is made available). The district court ruled in favor of Martinez on the Miranda ground. In doing so, however, the district court did not have the benefit of the later decision of the Supreme Court in McNeil v. Wisconsin, — U.S.-, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). In that case, McNeil requested an attorney at a bail hearing on an armed robbery charge (arising out of an incident in West Allis, Wisconsin), thereby triggering his Sixth Amendment right to counsel. Police subsequently interrogated him (after properly advising him of his Miranda rights) about a murder in Caledonia, Wisconsin, and he made several incriminating statements about the Caledonia crime. McNeil contended that his request for counsel at the bail hearing invoked both his Sixth and Fifth Amendment rights to counsel, and that the court accordingly should have suppressed the evidence arising out of the interrogations on the Caledonia murder. The Supreme Court rejected that argument, holding that McNeil’s invocation of his Sixth Amendment right to counsel did not also invoke his Fifth Amendment right to counsel. In so ruling, the court stated that application of Miranda and Edwards “requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.” McNeil, 111 S.Ct. at 2209 (emphasis in original). Martinez gives us no reason to distinguish his invocation of his Sixth Amendment right at his arraignment from McNeil’s similar invocation at his bail hearing, and there appears to be none. In both cases, the suspect requested assistance of counsel in defending himself at trial, and in neither case did the suspect express his “desire for the assistance of an attorney in dealing with custodial interrogation by the police.” We conclude, therefore, that McNeil applies to Martinez’s Fifth Amendment argument and compels us to reject Martinez’s assertion that the federal authorities’ interrogation violated his right to counsel under the Fifth Amendment. It was accordingly error for the district court to suppress Martinez’s statement on Miranda grounds. II. The Sixth Amendment In Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986), the Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” The Court in Jackson had no occasion to consider the question of an interrogation for another crime, but the Supreme Court discussed the issue in Maine v. Moulton, 474 U.S. 159, 179-80, 106 S.Ct. 477, 488-89, 88 L.Ed.2d 481 (1985), and ruled on it in McNeil. In the latter case, as we noted above, McNeil had requested (and received) assistance of counsel with respect to the West Allis charge but was later interrogated about the Caledonia murder outside the presence of counsel. The Supreme Court found that the statements McNeil gave in the interrogations did not fall under the Jackson rule, because they concerned separate offenses. The Court stated that both the Sixth Amendment right and “its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews [are] offense-specific.” 111 S.Ct. at 2207; see also Moulton, 474 U.S. at 179-80 & nn. 15, 16, 106 S.Ct. at 488-89 & nn. 15, 16 (noting admissibility of post-arraignment statements if involving other crimes). The dispositive issue regarding the Sixth Amendment claim in the instant case, as both the United States and Martinez agree, is whether, in light of McNeil and Moul-ton, Jackson applies to the federal authorities’ interrogation of Martinez. Resolution of this question depends upon the significance of two factors: (1) that the state and federal charges arose from identical conduct, and (2) that the state charges had been dismissed at the time of the federal interrogation. With regard to the first factor, the Supreme Court offers no definitive signals. All of the relevant Supreme Court cases either involved interrogations regarding the charged offense (e.g., Jackson and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)) or interrogations concerning separate offenses arising from separate acts (e.g., McNeil and Moulton). None involved separate prosecutions for the same set of acts, which is what we have here. There is language in McNeil that can be read as supporting either the United States’s or Martinez’s position. It is true, as the United States notes, that McNeil states that Jackson’s effect is “offense-specific,” McNeil, 111 S.Ct. at 2207, and that this phrase could reasonably be interpreted as limiting Martinez’s Sixth Amendment protection to the state firearms offense. It is also true, however, that McNeil relied on Moulton, which in turn focused on the existence of “ ‘new or additional crimes.’ ” McNeil, 111 S.Ct. at 2207 (quoting Moulton, 474 U.S. at 179, 106 S.Ct. at 489). This language could reasonably be read as suggesting that Jackson does apply to Martinez, because the federal questioning concerned no new or additional crime of Martinez. This court has recently opined that “[a]n exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). Certainly the state charges against Martinez and the federal charge were “inextricably intertwined,” for they involved the same conduct. Hines, then, supports Martinez’s view that the state and federal charges are so similar that they should be treated as the “same” for Sixth Amendment purposes. In Hines, however, we were dealing with interrogation concerning a second crime when charges for the first crime were still pending. Here, the state charge had been dismissed. Although Martinez was still in state custody because his parole had been revoked, there was no pending state charge for which he needed the assistance of counsel. That distinction brings us to a consideration of the second factor — the gap between the pendency of state charges and the interrogation on the federal charges. In urging that dismissal of the state charges totally ended Martinez’s Sixth Amendment right of counsel, the United States focuses on the Supreme Court’s statement that the Sixth Amendment right to counsel “arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him.” Roberson, 486 U.S. at 685,108 S.Ct. at 2100. The government argues that neither the state nor the federal prosecution satisfied the Roberson requirements to trigger Martinez’s Sixth Amendment rights at the time of the federal agents’ interrogation. The government relies on the fact that the state had dismissed its charges against Martinez months before he was interrogated by federal agents. With respect to Martinez’s arrest on the federal charge, the government notes that the Sixth Amendment right “does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” McNeil, 111 S.Ct. at 2207 (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (internal quotation omitted)); see also United States v. Pace, 833 F.2d 1307, 1312 (9th Cir.1987) (“We hold that Pace’s sixth amendment right to counsel did not attach upon the filing of the complaint by the FBI, the issuance of the warrant of arrest, or Pace’s arrest.”), cert. denied, 486 U.S. 1011, 108 S.Ct. 1742, 100 L.Ed.2d 205 (1988). Thus, the government asserts, neither the dismissed state charges nor the arrest by federal authorities was sufficient to trigger Sixth Amendment protections. Simply stated, the government argues that, because there were no pending charges against Martinez, he was not “facing a state apparatus that ha[d] been geared up to prosecute him,” Roberson, 486 U.S. at 685, 108 S.Ct. at 2100, and, therefore, he had no Sixth Amendment right to counsel. Martinez presents two arguments for a considerably broader construction of the Sixth Amendment’s protections. First, he contends that, despite the dismissal of the state charges, we should still focus on the conduct that the officers were investigating, not the specific charges that were brought. His position amounts to an argument that the doctrine of “inextricable intertwine[ment],” Hines, at 257, should be extended indefinitely in time. He argues that, once a defendant has been charged, he may not thereafter be interrogated about the subject matter of those charges unless his counsel is present. We are reluctant, however, to extend that doctrine indefinitely into the future after the initial charge is dismissed. To do so would extend the prohibition on interrogation outside the presence of counsel to any investigation of a given set of acts, even if the second investigating unit had no connection to the first. It would require suppression of a statement given to federal authorities regarding a federal crime if, unbeknownst to the federal agents, the suspect had been charged for the same substantive act at some earlier time. Such a broad prophylactic application of the Sixth Amendment runs counter to the reasoning of Moulton and McNeil, which stressed both the narrow application of the Sixth Amendment right to counsel and the importance of allowing police to initiate and pursue investigations. Martinez’s second argument is that, even if there is no blanket prohibition on interrogations on the subject matter of previous charges, in this case the state and federal authorities cooperated so closely that Martinez was, in effect, subject to prosecution of a single offense by different sovereigns. Martinez suggests that the government’s position — that the state prosecution was dismissed and the federal not yet begun — ignores reality and does not comport with the policies underlying the Sixth Amendment right to counsel. Essentially, he argues that the federal authorities took over where the state left off, creating a seamless web of both incarceration and prosecution. Hines offers stronger support for Martinez’s second argument insofar as it focuses on collusion. In Hines, the state had originally charged Hines with an offense committed in December 1988. While that charge was pending, federal authorities interrogated him, outside the presence of his counsel, concerning an offense committed in January 1989. The state then dismissed its charge. The federal government thereafter indicted Hines for both the December and January offenses. He moved to suppress the statements made to federal authorities regarding the January offense. We held that the two offenses were distinct and therefore not “inextricably intertwined.” Hines, at 258. We also pointed out, however, that even without the necessary intertwining, Hines would be entitled to suppress his statements if “the government breached its ‘affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.’ ” Id. (quoting Moulton, 474 U.S. at 171, 106 S.Ct. at 484). We found no such breach by the government because “there [was] no evidence that the state’s dismissal of the January charges and the federal government’s subsequent joinder of the same charges were the result of collusion between the authorities.” Id. Hines therefore suggests that collusion by the prosecutorial authorities to circumvent the right to counsel may cause Sixth Amendment protection to bridge the gap between separate and non-intertwined offenses. If Martinez is correct in asserting that the federal and state authorities worked together in shuffling his charge from the state to the federal system, then the situation is analogous to that in Jackson and Martinez’s statements should be suppressed. When there is improper collusion, there is no danger that the second sovereign will unwittingly violate the Sixth Amendment by interrogating a suspect in ignorance that he or she was charged by another sovereign at some time in the past. There are, moreover, sound reasons for permitting suppression in cases of collusion, as Hines suggests. If the dismissal of state charges or the initiation of federal interrogation was a mutual endeavor in anticipation of a federal prosecution, then, as a practical matter, Martinez’s Sixth Amendment right not to be interviewed without his counsel was circumvented. He was prosecuted on a charge identical to that of the state, using a statement that the state could not have secured from him if it had proceeded with its prosecution. The key, of course, is the extent of coordination between the state and federal authorities. We have no record on that point. Because the district court granted the suppression motion without receiving any evidence concerning the level of the relevant state-federal cooperation, we cannot decide whether Martinez was entitled to an order suppressing his statement. We therefore vacate the district court’s order and remand for further fact-finding. In the absence of such a record, we do not rule on the precise acts of cooperative conduct that might amount to collusion to circumvent Martinez’s Sixth Amendment rights. Areas appropriate for factual inquiry include the degree of federal participation, if any, in the state’s decision to dismiss its charges; the degree of state participation, if any, in the decision of federal officers to interrogate and charge Martinez; and the degree of joint decisionmaking over the forum in which Martinez should be prosecuted. This list is not exhaustive; other areas of inquiry may well suggest themselves to the experienced district judge. The order of the district court granting the motion to suppress is vacated, and the cause is remanded to the district court for further appropriate proceedings. VACATED AND REMANDED. . Whether law enforcement officers may initiate interrogation of a suspect who previously requested counsel is a question of law that we review de novo. See United States v. DeSantis, 870 F.2d 536, 538 (9th Cir.1989). . Thus, implementation of this rule would mean that a federal agent could not question a suspect without first determining that no state had charged the suspect with a crime arising out of the same act(s).

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

SHINRONE, INC. and Frances G. Bridge, Appellees, Cross-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Appellant, Cross-Appellee. Nos. 77-1015, 77-1044. United States Court of Appeals, Eighth Circuit. Submitted Oct. 11, 1977. Decided Feb. 7, 1978. James L. Kramer, Fort Dodge, Iowa, for appellant, Arthur H. Johnson, Fort Dodge, Iowa, on brief. Thomas L. McCullough, Sac City, Iowa, for appellee, Colin J. McCullough, Sac City, Iowa, on brief. Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge. The Honorable Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation. GIBSON, Chief Judge. In this diversity case, removed from the state court, a jury verdict resulted in a judgment of $82,240 for plaintiffs Shinrone, Inc. and Frances G. Bridge (hereinafter referred to as Shinrone or plaintiffs) on an insurance policy covering livestock. Defendant, Insurance Company of North America (INA), appeals, contending that the court’s instructions were prejudicially erroneous and the plaintiffs failed to make a submissible case. Shinrone cross-appeals on the trial court’s ruling that a dismissal of a part of plaintiffs’ claim was with prejudice. The policy issued to Shinrone provided in pertinent part: 3. b. This policy insures livestock against: (1) Death or destruction, directly resulting from or made necessary by: (b) Windstorm * * *. 4. This policy does not insure: (b) Against loss or damage caused by * * * dampness of atmosphere or extremes of temperature. On April 8, 1973, a severe wind and snow storm struck Iowa, during which 166 calves died on the Shinrone ranch. Previous to the storm, the weather was unseasonably warm and wet, causing extremely muddy conditions. The mud was two feet deep in the Shinrone feedlots when the windstorm commenced. The wind was accompanied with considerable snow, but most of the snow fell on the second and third days of the storm. At the time of the storm, there were 15,000 cattle on the ranch, and of these, 166 calves, approximately six months old and averaging 300 to 400 pounds in weight, died. Plaintiffs’ expert, a veterinarian, testified that six factors combined to cause the calves’ death: (1) wind; (2) drop in temperature; (3) snow; (4) the size and age of the cattle; (5) the extremely muddy conditions; and (6) the lack of adequate wind protection. The veterinarian also gave as his opinion that the calves died because of the storm, pointing out that calves do not handle stress as well as older animals, and that the calves died from exposure, exhaustion and shock in trying to cope with the storm. He also testified the wind was the most significant factor but that the wind alone would not have killed the animals. Plaintiffs’ complaint sought to recover the value of 390 head of cattle, 166 of which were the property of Frances Bridge, allegedly lost on April 9, 1973, in Iowa (Division I), and of 101 head of cattle allegedly lost in Colorado between October 31 and November 7, 1972 (Division II). No testimony was offered in support of the Division II claim for the cattle lost in Colorado, and the district judge subsequently dismissed that part of the claim with prejudice. In connection with the Iowa cattle loss, INA contends that for plaintiffs to recover it would be necessary to establish (1) that there was a windstorm; (2) that the death of the cattle resulted directly from the windstorm; and (3) that the policy exclusions against dampness of atmosphere or extremes of temperature do not prevent recovery. Based on the above requirements, INA requested the following instruction: You are instructed that a windstorm, in contemplation of law, is a storm characterized by high winds, with little or no precipitation, and an ordinary gust of wind, no matter how prolonged, is not a windstorm. In order to constitute a windstorm, the wind must be of such violence and velocity as to assume the aspect of a storm, that is, an outburst of tumultuous force. A windstorm means a storm of wind of unusual force and violence. A windstorm must be taken to be a wind of sufficient violence to be capable of damaging the insured property by its own unaided action. The trial court deleted the reference to “little or no precipitation” and otherwise tailored INA’s request to instruct as follows: You are instructed that a windstorm, in contemplation of law, is a storm characterized by high winds, and an ordinary gust of wind, no matter how prolonged, is not a windstorm. In order to constitute a windstorm, the wind must be of such violence and velocity as to assume the aspect of a storm, that is, an outburst of tumultuous force. INA’s principal attack on this instruction is the court’s deletion of the requirements that the storm be accompanied with little or no precipitation and that the windstorm must be of sufficient violence to be capable of damaging the insured property by its own unaided action. INA cites Jordan v. Iowa Mutual Tornado Insurance Co., 151 Iowa 73, 130 N.W. 177, 178 (1911), where the court, augmenting a definition from Webster, defined windstorm as: A storm characterized by high wind with little or no precipitation. * * * more than an ordinary current of air, no matter how long continued. * * * In other words it must assume the aspect of a storm, i. e., an outburst of tumultuous force. This definition of windstorm, was, many years later, in Crozier v. Lenox Mutual Insurance Association, 252 Iowa 1176, 110 N.W.2d 403, 408 (1961), used and amplified as an Iowa definition of windstorm. The court there commented that the additional criterion, that “a windstorm must be taken to be a wind of sufficient violence to be capable of damaging the insured property by its own unaided action”, was supported by authority, but recognized that “[t]he added sentence might not be appropriate in all cases”, although in the case then on trial this language was a proper adaptation to the issues in evidence. Crozier v. Lenox Mutual Insurance Association, supra at 409. From these decisions, INA deduces that the Iowa definition of windstorm has always meant a storm with little or no precipitation. INA’s other requested instruction sought to incorporate the concept that even if there was a windstorm which combined with the dampness of atmosphere or the extremes of temperature and either directly or indirectly caused the death of the livestock, the verdict must be for the defendant, since an included condition had combined with an excluded condition to bring about the death of the livestock. INA argues that, in that situation, death of the livestock could not be viewed as occurring as a direct result of the wind. INA’s requested instruction read: You are instructed that if the windstorm combined with a hazard expressly excluded from the policy coverage, that is, extremes of temperature or dampness of atmosphere, or both, to produce the death of plaintiffs’ livestock, the death of the livestock is not a direct result of windstorm and the plaintiffs may not recover. The trial court’s instruction read: You are instructed that the burden of proof is on the plaintiffs to prove by a preponderance of the evidence in this case that the death of their livestock, for which they seek to recover in this case, was caused directly by windstorm and not the result of some other cause. If you find, from a preponderance of the evidence, that the death of plaintiffs’ livestock was not directly caused by the windstorm, or if you find, from a preponderance of the evidence, that the extremes of temperature and the dampness of the atmosphere were the dominant and proximate cause of the death of the plaintiffs’ livestock, you should return a verdict for the defendant. The court also stated that policy exclusions were affirmative defenses which must be established by the insuror. INA contends that exclusions contained in the policy bar recovery if the excluded risks contributed to the death of the livestock. INA concedes that the Iowa Supreme Court has not directly passed upon this issue, but contends that from the Iowa decisions it could be inferred that the Supreme Court of Iowa appears to favor the rule that the coverage does not exist where an excluded risk combines with an included risk to bring about the loss. With no authoritative Iowa cases to settle this issue, INA cites Lydick v. Insurance Co. of North America, 187 Neb. 97, 187 N.W.2d 602 (1971), as the case closest on point to the case at bar. In that case the cattle had died during a storm. They had descended to a sheltered area around a snow- and ice-covered pond in order to escape the cold and the wind and had ventured onto the ice. The combined weight of the cattle broke the ice and the cattle drowned. The insurance policy provided for direct loss by windstorm but excluded loss caused directly or indirectly by frost or cold weather or ice and had an additional provision excluding liability for animals running into streams or ditches or for losses resulting from their fright. The court there held that the loss of the cattle was not caused directly by the wind but was due to a combination of different factors with the wind merely being one of the prior conditions contributing to the loss. Since the policy insured against direct loss only and there were contributing factors which produced this loss, the court held for the defendant, stating: “The general rule is that if a windstorm combines with a hazard expressly excluded from the policy coverage to produce the loss, the insured may not recover.” (Citations omitted.) Lydick v. Insurance Co. of North America, supra at 605. Lydick is supportive of INA’s position, but the policy terms there differed from and were more restrictive than those in INA’s policy. As is not unusual, the courts have differed on the approach taken in cases involving insurance losses due to mul-ti-factored causes, some of which are covered and others of which either are not covered or are expressly excluded. Where the wind and an excluded risk concur in causing loss, some courts deny recovery. National Fire Insurance Co. v. Crutchfield, 160 Ky. 802, 170 S.W. 187 (1914); Lydick v. Insurance Co. of North America, supra; Coyle v. Palatine Insurance Co., 222 S.W. 973 (Tex.Com.App.1920). Other courts have held that the insured may recover even though the excluded risks contributed to the loss, so long as their contribution was indirect and incidental. Anderson v. Connecticut Fire Insurance Co., 231 Minn. 469, 43 N.W.2d 807 (1950); Trex-ler Lumber Co. v. Allemannia Fire Insurance Co. of Pittsburgh, 289 Pa. 13, 136 A. 856 (1927). Yet a third analytic approach, adopted by a number of the courts that have addressed the question of recovery under insurance policies covering “direct loss” by windstorms, is keyed to the issue of whether the windstorm was the efficient or proximate cause of loss, notwithstanding the contribution of other factors to the loss. Kemp v. American Universal Insurance Co., 391 F.2d 533 (5th Cir. 1968); Travelers Indemnity Co. v. Wilkes County, 102 Ga.App. 362, 116 S.E.2d 314 (1960); Lum-bermens Mutual Casualty Co. v. Ely, 253 Md. 254, 252 A.2d 786 (1969). The trial court’s instruction defining windstorm and direct loss policy provisions permitted recovery where the windstorm was “the dominant or proximate cause” of the loss. This definition of the direct loss policy provision certainly was a permissible approach that falls within the parameters of the decisional law discussed above and appears to be an appropriate and reasonable view on the issue here presented. The trial court’s position does not appear to be contrary to the Iowa law, since there are no Iowa cases directly on point. However, the Iowa case of Jordan v. Iowa Mutual Tornado Insurance Co., supra, did hold that the issue of proximate cause was a fact question and that: [T]he trial court was justified in finding loss would not have happened but for the windstorm, and that this windstorm was the efficient cause of the damage. That other irresponsible causes may also have contributed to the loss does not, of itself, relieve the defendant from responsibility. [Citations omitted.] Jordan v. Mutual Tornado Insurance Co., supra 130 N.W. at 181. As noted heretofore, INA had the option in this case to secure an authoritative decision from the Iowa courts. We feel that INA’s restrictive view of its coverage, requiring a windstorm “with little or no precipitation” and of “sufficient violence to be capable of damage to the insured property by its own unaided action”, renders the policy virtually inoperative and practically meaningless. No coverage would exist during the winter months and the highly restrictive coverage during the other months would be of such limited value as to be an imposition on the public seeking insurance covering losses occasioned by the vagaries of the elements. Here the questions of “direct loss” and “proximate cause” were properly submitted to the jury for the determination of whether the windstorm was the dominant or efficient cause of the loss, even though there may have been other contributing causes. We find no error in the court’s instructions in this case and affirm on that issue. The plaintiffs’ cross-appeal lacks merit. Plaintiffs, having filed their cause of action and proceeded to a trial thereon, should have, absent unusual circumstances, proceeded to a resolution of the issues therein raised. Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, “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. * * * Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.” Here the plaintiffs, at the close of all the evidence and after defendant had moved for a directed verdict, dismissed Division II of their complaint. No evidence had been offered on Division II for the stated reason that the witness to that claim would not be in court until the following day. The court informed the jury that the Division II claim had been withdrawn and submitted the other claim for the jury’s determination. The court later ruled that the dismissal of the Division II claim was with prejudice. Whether the dismissal of the Division II claim was with or without prejudice was at the discretion of the court. The court exercised its discretion in holding that the dismissal was with prejudice. The plaintiffs here did not ask for a continuance or advance any substantial reason why they were not prepared to proceed with their Division II claim. It would be palpably unfair to subject the defendant to the additional expense and inconvenience of a second trial on this claim under these circumstances. Rule 41, as now written, gives broad discretion to trial courts to consider the factors and the equities involved in dismissals, and either to deny them or allow them with or without prejudice. There was no abuse of discretion in this case. The judgment of dismissal with prejudice of Division II of the plaintiff’s claim is affirmed. Judgment affirmed. . Shinrone’s complaint consisted of two separate claims: Division I, for loss of cattle in Iowa; and Division II, for loss of cattle in Colorado. At the close of all the evidence, INA moved for a directed verdict on both claims. Shinrone then withdrew the Division II claim and the motion on the Division I claim was overruled. . Cattle losses were general throughout Iowa. Over 100,000 head of Iowa cows, calves and feeder cattle died in the storm, according to one exhibit received in the case. . This case again focuses on the anomaly of having a federal court declare unsettled principles of state law where the parties could have an authoritative decision in this matter from the Iowa courts. The plaintiffs filed the case in Iowa state courts, and INA had the option of continuing in Iowa courts or removing to the federal court. INA thus forsook the opportunity of obtaining an authoritative decision from the state court for a federal court’s opinion of what the Iowa law ought to be. And, of course, the federal court’s holding in this diversity case has no binding effect on state law. In cases of this type it would always appear preferable to have the matter decided authoritatively by the state court. . For an instructive analysis of cases dealing with the question of direct loss under windstorm policies, see Annot., 65 A.L.R.3d 1128 (1975).

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

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

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

LAING v. UNITED STATES et al. No. 73-1808. Argued January 21, 1975 Reargued October 15, 1975 Decided January 13, 1976 Marshall, J., delivered the opinion of the Court, in which Brennan, Stewart, White, and Powell, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 185. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 188. Stevens, J., took no part in the consideration or decision of the cases. Joseph S. Oteri reargued the cause for petitioner in No. 73-1808. With him on the brief were Rudolph F. Pierce and Charlotte A. Perretta. Stuart A. Smith reargued the cause for the United States et al. in both cases. With him on the brief were Solicitor General Bork and Assistant Attorney General Crampton. Donald M. Heavrin reargued the cause and filed a brief for respondent in No. 74^75. Together with No. 74-75, United States et al. v. Hall, on certio-rari to the United States Court of Appeals for the Sixth Circuit. Mr. Justice Marshall delivered the opinion of the Court. These companion cases involve two taxpayers whose taxable years were terminated by the Internal Revenue Service (IRS) prior to their normal expiration date pursuant to the jeopardy-termination provisions of § 6851 (a)(1) of the Internal Revenue Code of 1954 (Code), 26 U. S. C. § 6851 (a)(1). Section 6851 (a)(1) allows the IRS immediately to terminate a taxpayer’s taxable period when it finds that the taxpayer intends to do any act tending to prejudice or render ineffectual the collection of his income tax for the current or preceding taxable year. Upon termination the tax is immediately owing and, after notice, the IRS may, and usually does, levy upon the taxpayer’s property under § 6331 (a) of the Code, 26 U. S. C. § 6331 (a), to assure payment. We must decide whether the IRS, when assessing and collecting the unreported tax due after the termination of a taxpayer’s taxable period, must follow the procedures mandated by § 6861 et seq. of the Code, 26 U. S. C. § 6861 et seq., for the assessment and collection of a deficiency whose collection is in jeopardy. The answer, as we shall see, depends on whether the unreported tax due upon such a termination is a “deficiency” as defined in § 6211 (a) of the Code, 26 U. S. C. § 6211 (a) (1970 ed. and Supp. IV). The Government argues that the tax liability that arises after a § 6851 termination cannot be a “deficiency,” and that the procedures for the assessment and collection of deficiencies in jeopardy are therefore inapplicable. We reject this argument. We agree with the taxpayers that any tax owing, but unreported, after a § 6851 termination is a deficiency, and that the assessment of that deficiency is subject to the provisions of § 6861 et seq. We reverse in No. 73-1808 and affirm in No. 74-75. I A. No. 73-1808, Laing v. United States. Petitioner James Burnett McKay Laing is a citizen of New Zealand. He entered the United States from Canada on a temporary visitor’s visa on May 31, 1972. On the following June 24, Mr. Laing and two companions sought to enter Canada from Vermont but were refused entry by Canadian officials. As they turned back, they were detained by United States customs authorities at Derby, Vt. Upon a search of the vehicle in which the three were traveling, the customs officers discovered in the engine compartment a suitcase containing more than $300,000 in United States currency. The IRS District Director found that petitioner Laing and his companions were in the process of placing assets beyond the reach of the Government by removing them from the United States, thereby tending to prejudice or render ineffectual the collection of their income tax. He declared the taxable periods of petitioner and his companions immediately terminated under § 6851 (a). An assessment of $310,000 against each was orally asserted for the period from January 1 through June 24, 1972. The assessment against Mr. Laing was subsequently abated to the amount of $195,985.55 when a formal letter-notice of termination and demand for payment and the filing of a return were sent. Mr. Laing received no deficiency notice under § 6861 (b) and no specific information about how the amount of the tax was determined. After Mr. Laing and his companions refused to pay the tax, the IRS seized the currency that had been found in the vehicle. A portion thereof was applied to the tax assessed against Mr. Laing. On July 15, petitioner filed suit against the United States, the Commissioner of Internal Revenue, the District Director, and the Chief of the Collection Division, District of Vermont, in the United States District Court for the District of Vermont. He asserted the absence of a notice of deficiency, which he claimed was required under § 6861 (b), and he challenged as violative of due process both the provisions of the levy and distraint statute, § 6331 (a), and the actions of the IRS in seizing and retaining the currency “without any finding of a substantial or probable nexus between that money and taxable income.” App. in No. 73-1808, p. 20. The District Court, relying on its controlling court’s decision in Irving v. Gray, 479 F. 2d 20 (CA2 1973), held that a notice of deficiency is not required when a taxable period is terminated pursuant to § 6851 (a)(1), and dismissed the suit as prohibited by the Federal Anti-Injunction Act, § 7421 (a) of the Code, 26 U. S. C. § 7421 (a), and as within the plain wording of the exception to the Declaratory Judgment Act, 28 U. S. C. § 2201, for a controversy with respect to federal taxes. 364 F. Supp, 469 (1973). Adhering to its earlier ruling in Irving, the Second Circuit affirmed per curiam. 496 F. 2d 853 (1974). It expressly declined to follow the Sixth Circuit’s decision in Rambo v. United States, 492 F. 2d 1060 (1974). These rulings of the Second Circuit, and one of the Seventh Circuit, Williamson v. United States, 31 A. F. T. R. 2d 73-800 (1971), appeared to be in conflict with holdings by other Courts of Appeals, Rambo v. United States, supra; Hall v. United States, 493 F. 2d 1211 (CA6 1974); and Clark v. Campbell, 501 F. 2d 108 (CA5 1974). Suggesting that the conflict was irreconcilable and noting that some 70 pending cases in the federal courts depended on its resolution, the Solicitor General did not oppose Mr. Laing’s petition for certiorari. We granted certiorari to resolve the conflict. 419 U. S. 824 (1974). B. No. 74-75, United States v. Hall. Respondent Elizabeth Jane Hall is a resident of Shelbyville, Ky. After the arrest of her husband in Texas on drug-related charges, Kentucky state troopers obtained a warrant and searched respondent’s home on January 31, 1973. They found controlled substances there. The next day the Acting District Director notified respondent Hall by letter that he found her “involved in illicit drug activities, thereby tending to prejudice or render ineffectual collection of income tax for the period 1-1-73 thru 1-30-73.” App. in No. 74-75, p. 11. Citing § 6851, the Acting Director declared respondent’s taxable period for the first 30 days of 1973 “immediately terminated” and her income tax for that period “immediately due and payable.” Ibid. He further informed respondent that a tax in the amount of $52,680.25 for the period “will be immediately assessed” and that “[d]emand for immediate payment of the full amount of this tax is hereby made.” Ibid. A return for the terminated period, pursuant to § 443 (a) (3) of the Code, 26 U. S. C. § 443 (a)(3), was requested but not filed. The formal assessment was made on February 1. As was the case with Mr. Laing, Mrs. Hall received no deficiency notice under § 6861 (b) and no specific information about how the amount of the tax had been determined. Respondent was unable to pay the tax so assessed. Therefore, the IRS, acting pursuant to § 6331, levied upon and seized respondent’s 1970 Volkswagen and offered it for sale. Respondent Hall instituted suit on February 13 in the United States District Court for the Western District of Kentucky, seeking injunctive relief and compensatory and punitive damages. The court issued an order temporarily restraining the IRS from selling the automobile and from seizing any more of respondent’s property. Thereafter, relying upon Schreck v. United States, 301 F. Supp. 1265 (Md. 1969), the court held that the Federal Anti-Injunction Act, § 7421 (a), was inapplicable because of the IRS’s failure to follow the procedures of § 6861 et seq. The court ordered the return of respondent’s automobile upon her posting a bond in the amount of its fair market value. It issued a preliminary injunction restraining the defendants (the United States, the Acting District Director, the Group Supervisor of Internal Revenue, and a lieutenant of the Kentucky State Police) “from harassing or intimidating [respondent] in any manner including but not limited to trespassing on, seizing or levying upon any of her property of whatever nature, be it rental property or not.” Pet. for Cert. in No. 74-75, p. 5a. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed per curiam, 493 F. 2d 1211 (1974), relying upon its opinion and decision in Rambo v. United States, supra, decided one month earlier. In Rambo the court had held that the failure of the IRS to issue a deficiency notice for a terminated taxable period, and the consequent unavailability of a remedy in the United States Tax Court, entitled the taxpayer to injunctive relief. Because of the conflict, indicated above, we also granted certiorari in Mrs. Hall’s case. 419 U. S. 824 (1974). II In these cases, the taxpayers seek the protection of certain procedural safeguards that the Government claims were not intended to apply to jeopardy terminations. Specifically, the taxpayers argue that the procedures mandated by § 6861 et seq. for assessing and collecting deficiencies whose collection is in jeopardy also govern assessments of taxes owing, but not reported, after the termination of a taxpayer’s taxable period under § 6851. Resolution of this claim requires analysis of the interplay between these two basic jeopardy provisions — § 6851, the jeopardy-termination provision, and § 6861, the jeopardy-assessment provision. The initial workings of the jeopardy-termination provision, which essentially permits the shortening of a taxable year, are not in dispute. When the District Director determines that the conditions of § 6851 (a) are met — generally, that the taxpayer is preparing to do something that will endanger the collection of his taxes — the District Director may declare the taxpayer’s current tax year terminated. The tax for the shortened period and any unpaid tax for the preceding year become due and payable immediately, § 6851 (a), and the taxpayer must file a return for the shortened year. § 443 (a)(3). The disagreement between the taxpayers and the Government focuses on the applicability of the jeopardy-assessment procedures of § 6861 et seq. to the assessment and collection of taxes that become due upon a § 6851 termination. Section 6861 (a) provides for the immediate assessment of a deficiency, as defined in § 6211 (a), whenever the assessment or collection of the deficiency would be “jeopardized by delay.” By allowing an immediate assessment, § 6861 (a) provides an exception to the general rule barring an assessment until the taxpayer has been sent a notice of deficiency and has been afforded an opportunity to seek resolution of his tax liability in the Tax Court. Certain procedural safeguards are provided, however, to the taxpayer whose deficiency is assessed immediately under § 6861 (a). Within 60 days after the jeopardy assessment, the District Director must send the taxpayer a notice of deficiency, § 6861 (b), which enables the taxpayer to file a petition with the Tax Court for a redetermination of the deficiency, 26 U. S. C. § 6213 (a) (1970 ed., Supp. IV). The taxpayer can stay the collection of the amount assessed by posting an equivalent bond, § 6863 (a). Any property seized for the collection of the tax cannot be sold until a notice of deficiency is issued and the taxpayer is afforded an opportunity to file a petition in the Tax Court. If the taxpayer does seek a redetermination of the deficiency in the Tax Court, the prohibition against sale extends until the Tax Court decision becomes final. § 6863 (b) (3) (A). The taxpayers view the provisions of § 6861 et seg. as complementary to those of § 6851. They contend that to the extent the tax owing upon a jeopardy termination has not been reported, it is a “deficiency” as that term is defined in § 6211 (a) and used in § 6861 (a), and that the deficiency, being of necessity one whose assessment or collection is in jeopardy, must be assessed and collected in accordance with the procedures of § 6861 et seg. Under the Government’s view, on the other hand, §§ 6851 and 6861 are aimed at distinct problems and have no bearing on each other. “Section 6851,” according to the Government, “advances the date when taxes are due and payable, while Section 6861 advances the time for collection of taxes which are already overdue [i e., already owing for a prior, normally expiring taxable year].” Brief for United States 10. The validity of this distinction rests on the Government’s claim that a deficiency can arise only with respect to a nonterminated taxable year, so that no deficiency can be created by a § 6851 termination. If there is no deficiency to assess, of course, the provisions of § 6861 et seq. cannot apply. Thus, under the Government’s reading of the Code, the procedures for assessment and collection of a tax owing, but not reported, after the termination of a taxable period are not governed by § 6861 et seq. The Government argues that, with the single exception of the bond provision of § 6851 (e), the taxpayer’s only remedy upon a jeopardy termination is to pay the tax, file for a refund, and, if the refund is refused, bring suit in the district court or the Court of Claims. See 28 U. S. C. § 1346 (a) (1). Since the IRS has up to six months to act on a request for a refund, the taxpayer, under the Government's theory, may have to wait up to half a year before gaining access to any judicial forum. See 26 U. S. C. §§ 6532 (a), 7422 (a) (1970 ed. and Supp. IV). The Government does not seriously challenge the taxpayers’ conclusion that if the termination of their taxable periods created a deficiency whose assessment or collection was in jeopardy, the assessments and collections in these cases should have been pursuant to the procedures of § 6861 et seq. The question, then, is whether the tax owing, but not reported, upon a jeopardy termination is a deficiency within the meaning of § 6211 (a). Ill In essence, a deficiency as defined in the Code is the amount of tax imposed less any amount that may have been reported by the taxpayer on his return. § 6211 (a). Where there has been no tax return filed, the deficiency is the amount of tax due. Treas. Reg. § 301.6211-1 (a), 26 CFR § 301.6211-1 (a) (1975). As we have seen, upon terminating a taxpayer’s taxable year under § 6851, the District Director makes a demand for the payment of the unpaid tax for the terminated period and for the preceding taxable year. The taxpayer is then required to file a return for the truncated taxable year. § 443 (a)(3). The amount due, of course, must be determined according to ordinary tax principles, as applied to the abbreviated reporting period. The amount properly assessed upon a § 6851 termination is thus the amount of tax imposed under the Code for the preceding year and the terminated short year, less any amount that may already have been paid. To the extent this sum has not been reported by the taxpayer on a return, it fits precisely the statutory definition of a deficiency. The Government resists this conclusion by reading the definition of “deficiency” restrictively to include only those taxes due at the end of a full taxable year when a return has been or should have been made. It argues that a “deficiency” cannot be determined before the close of a taxable year. Of course, we agree with the Govemment that a deficiency does not arise until the tax is actually due and the taxable year is complete. The fact is, however, that under § 6851 the tax is due immediately upon termination. Moreover, upon a § 6851 termination, the taxpayer’s taxable year has come to a close. See Sanzogno v. Commissioner, 60 T. C. 321, 325 (1973). Section 441 (b) (3) defines as a “taxable year” the terminated taxable period on which a return is due under § 443 (a)(3). See also § 7701 (a) (23). Under the statutory definition of § 6211 (a), the tax owing and unreported after a jeopardy termination, which in these cases and in most § 6851 terminations is the full tax due, is clearly a deficiency. We see nothing in the definition to suggest that a deficiency can arise only at the conclusion of a 12-month taxable year; it is sufficient that the taxable period in question has come to an end and the tax in question is due and unreported. Besides conflicting with the plain language of the Code provisions directly before us, the Government’s position in these cases would, for no discernible purpose, isolate the taxpayer subjected to a jeopardy termination from most other income-tax payers. If the unreported tax due after a jeopardy termination is not a deficiency, the IRS need not issue the taxpayer a deficiency notice and accord him access to the Tax Court for a redetermination of his tax. Denial of an opportunity to litigate in the Tax Court is out of keeping with the thrust of the Code, which generally allows income-tax payers access to that court. Where exceptions are intended, the Code is explicit on the matter. See, e. g., § 6871 (b). Denying a Tax Court forum to a particular class of taxpayers is sufficiently anomalous that an intention to do so should not be imputed to Congress when the statute does not expressly so provide. This is particularly so in view of the Government’s concession that the jeopardy-assessment procedures of § 6861 et seq. are sufficient to protect its interests, and that providing taxpayers with the limited protections of those procedures would not impair the collection of the revenues. IV While the plain language of the provisions at issue here and their place in the legislative scheme suggest that the unreported tax due upon a § 6851 termination is a deficiency and that the deficiency, its collection being in jeopardy, must be assessed and collected according to the procedures of § 6861 et seq., the Government attempts to undercut this conclusion by pointing to the legislative history of the several provisions at issue in this case. We are unpersuaded. The jeopardy-assessment and jeopardy-termination provisions have long been treated in a closely parallel fashion, and nothing that the Government points to in the early codifications suggests the contrary. As the Government points out, the Revenue Act of 1918 (1918 Act) contained a termination provision, § 250 (g), 40 Stat. 1084, that was very similar to the present § 6851. Under the 1918 statute all assessments were made under the authority of Rev. Stat. § 3182, and the taxpayer could attack an assessment only by paying the amount claimed and bringing suit for a refund in district court. Since there was no way for the taxpayer to contest assessments prior to payment, the Government had no need for any expedited jeopardy-assessment procedure such as is now authorized in § 6861. When a termination was made under § 250 (g), the tax assessment and collection thus proceeded exactly as in any other case— the taxpayer had to pay first and litigate later. In the Revenue Act of 1921 (1921 Act), 42 Stat. 227, Congress added both a special procedure for prepayment challenges to assessments and an exception to that procedure. The special procedure made available, under certain circumstances, a limited administrative remedy within the Bureau of Internal Revenue (predecessor to the IRS) by which taxpayers could question assessments before paying the taxes assessed. § 250 (d) of the 1921 Act, 42 Stat. 266. The Commissioner could, however, pretermit that procedure if he believed that collection of the revenues might be jeopardized by-delay. This exception, contained in a proviso to § 250 (d), was the precursor of § 6861. Since the proviso limited the availability of the administrative remedy to cases where collection of the taxes due would not be “jeopardized by such delay,” the remedy was necessarily inapplicable to cases in which a § 250 (g) termination was made. As of 1921, then, the nascent prepayment remedy was available to ordinary taxpayers but not to taxpayers in either jeopardy situation — where the tax year had been terminated pursuant to § 250 (g), or where the full tax year had run and the Commissioner had determined that the collection of the tax would be jeopardized under the proviso to § 250 (d). The Government, however, relies heavily on the 1921 Act, claiming that £<[t]he key to an understanding of the term 'deficiency' lies” therein. Brief for United States 42. It relies on a reference to the term “deficiency” in § 250 (b), which set out the procedure for handling underpayments after returns had been filed: “If the amount already paid is less than that which should have been paid, the difference, to the extent not covered by any credits due to the taxpayer under section 252 (hereinafter called 'deficiency')... shall be paid upon notice and demand by the collector.” 40 Stat. 265. This “hereinafter” reference was permanently eliminated when the Act was revised in the Revenue Act of 1924 (1924 Act) and the word “deficiency” precisely defined — in much the same way as it is today. Nonetheless, the Government persists in viewing the reference in the 1921 Act as an authoritative definition of “deficiency.” Since the reference related only to money owed after a return had been filed and examined, the Government argues that Congress in 1921 did not consider the amount assessed pursuant to a jeopardy termination— which often must be assessed before a return is filed — to be a “deficiency.” This supposed limitation in the 1921 Act continues, in the Government's view, to this day. We disagree with the Government’s analysis. To understand the use of the word “deficiency” in the 1921 Act, it is necessary to begin with the 1918 Act, where the term first appeared. In the 1918 statute the term was not formally defined but appeared in various provisions dealing with underpayments and overpayments of tax, referring to the difference between the amount due and the amount already paid. “Deficiency” was used synonymously with the word “understatement,” and it is clear from the context that neither word was being used as a term of art. In the 1921 Act, the 1918 language was left largely unchanged, except that after the reference to the difference between the amount paid and the amount due, Congress added the parenthetical expression “(hereinafter called ‘deficiency’),” and from that point on replaced all references to “understatement” with the word “deficiency.” From the context, it is evident that the “hereinafter” parenthetical term was not intended as a restrictive definition of deficiency, but merely as an indication that throughout the subsection the word would be used as shorthand for the difference between the amount paid and the amount that should have been paid. We thus find nothing in the informal use of the term “deficiency” in the 1921 Act to limit our construction of the precise definition in § 6211 (a) of the present Code. In 1924 Congress made a number of important changes in the jeopardy-assessment scheme. The termination section, § 282, 43 Stat. 302, remained basically the same as it had been in § 250 (g) of the 1921 Act, but taxpayers’ prepayment remedies in the jeopardy-assessment provision were substantially altered. Section 274 (a) of the 1924 Act, 43 Stat. 297, provided that if, “in the case of any taxpayer, the Commissioner determine [d] that there is a deficiency” in the tax imposed by the Act, the Commissioner was required to mail a notice of deficiency to the taxpayer. Within 60 days of mailing of the notice, and prior to payment of the deficiency, the taxpayer was entitled to file an appeal with the Board of Tax Appeals, an agency independent of the Bureau of Internal Revenue. The only exception to this statutory provision permitting general access to the Board of Tax Appeals was that for a jeopardy assessment. The jeopardy-assessment provision, § 274 (d), permitted the Commissioner to assess and collect a deficiency immediately, bypassing various procedures set out in § 274 (a) for the ordinary assessment and collection of deficiencies. Even in the jeopardy-assessment situation, however, the taxpayer could gain access to the Board of Tax Appeals by posting a bond. § 279 (a). Section 273 of the 1924 Act defined “deficiency,” much as it is now defined, as the amount by which the tax due exceeds the tax shown on the taxpayer’s return, or, “if no return is made by the taxpayer, then the amount by which the tax exceeds the amounts previously assessed (or collected without assessment) as a deficiency.” § 273 (2). In cases in which no return was filed and no amount had previously been assessed or collected, § 273 (2) in effect defined a “deficiency” simply as the amount of tax due. Since § 282 — the termination provision— provided that at the time of termination the Commissioner would demand “immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid... and that the tax demanded would become “immediately due and payable,” the tax “due and payable” at the time of the termination notice, to the extent unreported, would appear to fit the definition of “deficiency” in § 273 (2). This being so, the Government’s assertion that under the 1924 Act, § 282 terminations were not subject to the procedures of § 274 (d) is incorrect, and much of the force of its argument from the history of the statute is lost. With the amendments made by the Revenue Act of 1926, c. 27, 44 Stat. 9, the statutory provisions relevant to these cases took essentially their present form. The jurisdiction of the Board of Tax Appeals (subsequently renamed the Tax Court) was broadened, in part by granting taxpayers subjected to jeopardy assessments a means of having their assessment redetermined by the Board without having to post bond as had previously been required. Under the new jeopardy-assessment procedures, the Commissioner could immediately assess the deficiency, but in addition to a demand for payment, he was required to send a notice of deficiency, § 279 (b), which allowed the jeopardy taxpayer immediate access to the Board of Tax Appeals. § 274 (a). As in the 1924 Act, there was no indication that taxpayers subjected to a jeopardy termination would not then be assessed under the jeopardy-assessment procedures to the extent a deficiency was owing, and thereby allowed to follow the same route to the Board of Tax Appeals that was available to other jeopardy taxpayers. In sum, to the extent that it sheds any light on the question at all, the legislative history seems to help the taxpayers rather than the Government. In the course of the development of a prepayment remedy and a jeopardy exception to that remedy between 1918 and 1926, taxpayers subjected to jeopardy terminations and those subjected to jeopardy assessments for nontermi-nated taxable years were consistently treated alike. In 1921, when the administrative remedy was first created, neither those subjected to a jeopardy assessment for a nonterminated year nor those subjected to a termination could avail themselves of that remedy. In 1924, those terminated and those subjected to jeopardy assessments for nonterminated years were similarly denied access to the Board of Tax Appeals, unless they filed a bond in the amount of the claim. And in 1926, when the scheme assumed its current form, there was no indication that Congress intended for the first time to treat the two groups separately by granting direct access to the Board of Tax Appeals to those subjected to a jeopardy assessment for a nonterminated year, but denying it to those subjected to an assessment following a jeopardy termination. V Based on the plain language of the statutory provisions, their place in the legislative scheme, and the legislative history, we agree with the taxpayers’ reading of the pertinent sections of the Code. Under that reading, the tax owing, but not reported, at the time of a § 6851 termination is a deficiency whose assessment and collection are subject to the procedures of § 6861 et seq. Section 6861 (b) requires a notice of deficiency to be mailed to a taxpayer within 60 days after the jeopardy assessment. Section 6863 bars the offering for sale of property seized until the taxpayer has had an opportunity to litigate in the Tax Court. Because the District Director failed to comply with these requirements in these cases, the taxpayers’ suits were not barred by the Anti-Injunction Act, § 7421 (a) of the Code. The judgment of the United States Court of Appeals for the Sixth Circuit in No. 74 — 75 is affirmed. The judgment of the United States Court of Appeals for the Second Circuit in No. 73-1808 is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of these cases. Section 6851 (a)(1) provides: “If the Secretary or his delegate finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax for the current or the preceding taxable year unless such proceedings be brought without delay, the Secretary or his delegate shall declare the taxable period for such taxpayer immediately terminated, and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired; and such taxes shall thereupon become immediately due and payable. In any proceeding in court brought to enforce payment of taxes made due and payable by virtue of the provisions of this section, the finding of the Secretary or his delegate, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of jeopardy.” Section 6861 (a) provides for the immediate assessment of deficiencies whose assessment or collection would otherwise be in jeopardy: “If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213 (a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary or his delegate for the payment thereof.” The Code provides that a § 6851 termination will be ordered by “the Secretary or his delegate,” § 6851 (a). The Regulations provide that the District Director is in all cases authorized to mahe the required findings and order the termination. Treas. Reg. § 1.6851-1 (a) (1), 26 CFR § 1.6851-1 (a) (1) (1975). A deficiency notice is of import primarily because it is a jurisdictional prerequisite to a taxpayer’s suit in the Tax Court for re-determination of his tax liability. See infra, at 171. Petitioner Laing has not denied ownership of the currency. Tr. of Oral Arg. 64; Tr. of Oral Rearg. 48. Petitioner Laing also has filed suit for refund in the United States District Court for the District of Vermont. Trial is being delayed, pursuant to stipulation of the parties, pending our decision in the present case. Rambo is before us as No. 73-2005, cert, pending. Cert. pending svb nom. United States v. Clark, No. 74-722. The developing conflict among the federal courts was recognized in Willits v. Richardson, 497 F. 2d 240, 246 n. 4 (CA5 1974), and Jones v. Commissioner, 62 T. C. 1, 2-3 (1974). Counsel for respondent Hall asserted that the IRS also “seized $57 from her bank account,” and that it would, or did, seize her paycheck. Tr. of Oral Arg. 46. Counsel also stated that $77 was later refunded to Mrs. Hall. Id., at 57. We are not advised how the latter amount was computed. A corporate surety bond in the amount of $1,650 was duly filed. The precise findings required are: (1) that the taxpayer designs quickly to depart from the United States or to remove his property therefrom; or (2) that he intends to conceal himself or his property therein; or (3) that he is about to do any other act tending to prejudice or render wholly or partly ineffectual proceedings to collect income tax for the current or preceding year. § 6851 (a). See n. 1, supra. The “assessment,” essentially a bookkeeping notation, is made when the Secretary or his delegate establishes an account against the taxpayer on the tax rolls. 26 U. S. C. § 6203. In both of the cases at bar, the assessments were made immediately upon termination of the taxpayers’ taxable years. In the past, the Government has argued that § 6851 contained its own assessment authority, see Schreck v. United States, 301 F. Supp. 1265 (Md. 1969), but it has since abandoned that position, see Lisner v. McCanless, 356 F. Supp. 398, 401 (Ariz. 1973), and it does not press the point here. Cf. n. 17, infra. A tax deficiency whose collection is not in jeopardy is collected according to the procedures of §§ 6211-6216 of the Code, 26 U. S. C. §§ 6211-6216 (1970 ed. and Supp. IV). Under § 6213 (a), the taxpayer ordinarily has 90 days after mailing of his deficiency notice in which to file his claim with the Tax Court. The rule against sale of the taxpayer’s property has three limited exceptions: the property can be sold (1)

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

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

James H. THOMPSON and Mrs. La Vaye Thompson, Appellants, v. James T. STAPLES, Robert Kenneth Staples, Bob & Jake’s Steak House, Inc., and Fireman’s Fund Insurance Company, Appellees. No. 21495. United States Court of Appeals Fifth Circuit. Feb. 18, 1965. Rehearing Denied March 16, 1965. Sylvia Roberts and H. Alva Brumfield, Baton Rouge, La., for appellants. Maurice J. Wilson and Breazeale, Sachse & Wilson, Baton Rouge, La., for appellees. Before WISDOM and GEWIN, Circuit Judges, and BOOTLE, District Judge. PER CURIAM. On December 9, 1961, plaintiff-appellant Mrs. Thompson sustained personal injuries when she slipped on the floor of a restaurant operated by the Staples. She and her husband instituted suit on January 8, 1964, against the Staples and their insurer to recover damages for her injui’ies. The complaint was filed approximately one year and thirty days, after the running of the one-year Louisiana prescription for damages “resulting from offenses or quasi offenses.” The plaintiffs sought to avoid the prescription statute by alleging that an insurance-adjuster representing appellee Fireman’s Fund had, by his actions and words,, made deliberate misrepresentations, detailed in the complaint, which led Mrs. Thompson reasonably to believe that the-insux’ance company fully intended to settle her claim. She asserted that these misrepresentations were the sole cause of her failux'e to obtain legal counsel or otherwise take action during the year prior to the running of the period of prescription. The trial court gx-anted defendants’ motion to dismiss the complaint for failux’e to state a claim on which relief could be granted, and the-plaintiffs appeal. Since jurisdiction in this caséis based solely on diversity of citizenship, we are bound to apply the substantive law of Louisiana. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We agree with the-trial court’s conclusion that plaintiffs” allegations do not set forth a claim for avoidance of the px'escription statute under the Louisiana decisions. See Green v. Grain Dealers Mutual Ins. Co., (La. App.1962) 144 So.2d 685; Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409, 411-412 (1951). The judgment is. therefore affirmed. . Art. 3536, LSA-Civ.Cocle.

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

CARPENTERS DISTRICT COUNCIL OF DENVER AND VICINITY, on behalf of its affiliated local unions of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Plaintiff-Appellee, v. BRADY CORPORATION, a Colorado Corporation, Defendant-Appellant. No 74-1705. United States Court of Appeals, Tenth Circuit. March 27, 1975. John W. McKendree, Denver, Colo., for appellee. Robert G. Good and Kenneth R. Stett-ner, Denver, Colo., for appellant. Before SETH, McWILLIAMS and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Brady Corporation (Brady) appeals from the judgment entered in favor of Carpenters District Council of Denver and Vicinity (Union), involving issuance of a mandatory injunction ordering arbitration. Brady is a general contractor engaged in the construction industry. During the instant dispute, both parties were signatory to a collective bargaining agreement for the period from May 1, 1972, through April 30, 1975. Article XXI-11(A) of the agreement provides, inter alia: (A) CONTRACTUAL DISPUTES Section 1. In the event that a dispute, other than a jurisdictional dispute, arises involving the application or interpretation of the terms of this Agreement, the parties agree that the same shall be determined and settled in the manner and by the procedures [i. e., the contractual grievance and arbitration provisions of the agreement] hereinafter set forth. (Emphasis added). Further, in establishing the work jurisdiction of Union, Article V(B) of the same agreement provides, inter alia: It is agreed that the work covered by this agreement shall and does include the use of any instruments or tools on layout work and the shooting of all grades and elevations incidental to the trade; except to the extent that any of the work enumerated is claimed by another labor organization or another trade, craft or class. (Emphasis added). On January 8, 1973, William Mayres, a Brady “staff engineer” [admittedly a “class” for purposes of Article V(B)], performed “layout” work of the type enumerated in Article V(B). The parties stipulated that Mayres was not a member of a labor organization covered by the collective bargaining agreement; that he had been assigned the layout work as a matter of Brady company policy; and that he had neither requested nor objected to the assigned layout work. On January 15, 1973, Union grieved the performance of layout work by Mayres [apparently contending that the Staff Engineer had not “claimed” this work as required under Article V(B)], and requested the dispute be processed pursuant to the grievance and arbitration provisions of Article XXIII(A) of the agreement. Brady refused to process the dispute, asserting that it was a “jurisdictional dispute” specifically excluded from binding dispute procedures by Section 1 of Article XXIII(A), supra. Union subsequently filed the instant suit under § 301(a) of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185, seeking a declaratory judgment that the dispute was subject to the grievance and arbitration provisions of Article XXIII(A) and a mandatory injunction requiring Brady to process such dispute before a Board of Adjustment and, if necessary, before an arbitrator. In its memorandum opinion, the Trial Court found that the central issue raised by the dispute was whether, under Article V(B) of the contract, the staff engineer had made a “claim” to the layout work. Further, relying upon United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), wherein the Supreme Court held that doubts as to coverage of an arbitration clause must be resolved in favor of coverage, the Trial Court held that the question of whether the staff engineer had, under the circumstances presented, made such a “claim” was not clearly excluded from the arbitration clause; that it was essentially a question of fact and of contract interpretation; and that it was “peculiarly susceptible to arbitration.” The Trial Court concluded that there existed no “jurisdictional dispute” (as contended by Brady), in light of the stipulation of the parties that that term was to be given the same meaning given it under Section 8(b)(4)(D) and 10(K) of the Labor Management Relations Act. Under that meaning, the Trial Court found a “jurisdictional dispute” exists only when there is present “coercion or threat of coercion”, absent here, on the part of the competing claimants to the work, resulting in the employer being placed in the middle ground between two warring groups of employees. Brady’s primary contention on appeal is that the Court erred in ordering the parties to arbitrate whether .a “claim” under Article V(B) of the agreement had been made since this constitutes a question of law which the Court, and not an arbitrator, must decide in order to fulfill its duty of determining whether the dispute is, in fact, a “jurisdictional dispute” and hence “substantively arbitrable.” I. We have no disagreement with Brady’s contention that as a general rule courts, rather than arbitrators, determine issues of “substantive arbitrability.” Johnson Builders, Inc. v. United Brotherhood of Carpenters and Joiners, Local Union No. 1095, AFL—CIO, 422 F.2d 137 (10th Cir. 1970); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) v. Folding Carrier Corporation, 422 F.2d 47 (10th Cir. 1970). We do not believe that in this case the Trial Court renounced that duty. Brady argues, in effect, that a determination of what constitutes a “claim” under Article V(B) of the agreement is a question inextricably tied to (and/or is a determination which is a necessary condition precedent to) a determination of whether a “substantively arbitrable” dispute has been presented [i. e., whether the dispute is “jurisdictional” and therefore not covered by the arbitration mechanism of Article XXIII(A)]. Hence, it is contended, it is a determination which the trial court, and not an arbitrator, must make. We disagree. We hold applicable the rule that where an exclusion-from-arbitration clause is vague, and the arbitration clause is broad, only the most forceful evidence of a purpose to exclude the claim from arbitration will deter a court from directing the dispute to arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra; Brotherhood of Locomotive Firemen and Enginemen, Lodge 844 v. Kennecott Copper Corporation (Utah Copper Division), 338 F.2d 224 (10th Cir. 1964); International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, AFL—CIO v. Cardwell Manufacturing Company, 304 F.2d 801 (10th Cir. 1962). As noted by the Trial Court, the meaning of the term “claimed” under. Article V(B) is at the very heart of the present dispute. That term is not patently clear and the exclusion clause of Article XXIII(A) does not specifically exclude from arbitration the meaning this term is to be given under Article V(B). See, Acme Markets, Inc. v. Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 275 F.Supp. 638 (E.D.Penn.1967). Furthermore, Brady has not presented cogent evidence of a “purpose to exclude” an interpretation of this term from arbitration. We agree with the reasoning of the Trial Court that while the “jurisdiction” of the union and staff engineers may, as a practical matter, be incidentally affected by a determination of an arbitrator of the meaning of the term “claimed” under Article V(B), the “subject” of the instant dispute is not whether a “jurisdictional dispute” exists under Article XXIII(A) (which would require resolution by the court), but rather the contract interpretation of a term for purposes of the application of Article V(B) itself [i. e., this is an Article V(B) dispute and not one exclusively covered by the exclusion clause of Article XXI-11(A)]. Compare, International Association of Machinists and Aerospace Workers, AFL—CIO v. General Electric Company, 406 F.2d 1046 (2nd Cir. 1969); Desert Coca Cola Bottling Company v. General Sales Drivers, Delivery Drivers and Helpers Local 14, 335 F.2d 198 (9th Cir. 1964); Sidney Wanzer & Sons, Inc. v. Milk Drivers Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 249 F.Supp. 664 (N.D.Ill.1966). The Trial Court correctly found that it could not be said “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” We hold that the dispute as to the interpretation to be given the term “claimed” under Article V(B) is within the scope of the grievance and arbitration provisions of Article XXIII(A) of the agreement. II. Having held that the Trial Court properly ordered the parties to arbitration, we need not reach Brady’s additional contention that the Trial Court’s alternative or supplemental basis in support of its judgment was unwarranted, i. e., the Court’s interpretation of “jurisdictional dispute” under Article XXIII(A). The Trial Court fulfilled the “narrow function” allotted it under United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960), when it determined that the interpretation of the term “claimed” under Article V(B) was a dispute arbitrable under Article XXIII(A) and that such arbitration was not necessarily precluded by the exclusion clause of Article XXIII(A). It was not necessary for the Court to venture further in determining whether a “jurisdictional dispute” would have been presented if it be assumed that there, in fact, existed conflicting claims to the work under the circumstances of this case. This surplusage, even if predicated on an incorrect analysis, cannot prove fatal to the instant decision. If a Trial Court’s decision is correct upon any theory we must uphold that decision. Pound v. Insurance Company of North America, 439 F.2d 1059 (10th Cir. 1971); Potter v. LaMunyon, 389 F.2d 874 (10th Cir. 1968). III. Those authorities cited by Brady for the proposition that it is generally accepted that actual performance of work constitutes a “claim” for such work are inapposite to the case at bar. Assuming, arguendo, that Brady is correct in this contention, still grievances do not lose their arbitrability simply because we think they can be correctly decided only one way. United Steelworkers of America v. American Manufacturing Co., supra; Local 1912, International Association of Machinists v. United States Potash Company, Division of United States Borax & Chemical Corporation, 270 F.2d 496 (10th Cir. 1959), cert. denied 363 U.S. 845, 80 S.Ct. 1609, 4 L.Ed.2d 1728 (1960). We affirm.

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

In the Matter of KDI CORPORATION, Debtor. Frederick BEACH and Vincent Di Rubbio, Appellants, v. KDI CORPORATION and KDI Creditors’ Committee, Appellees. No. 72-1485. United States Court of Appeals, Sixth Circuit. Argued Nov. 28, 1972. Decided April 10, 1973. See also 6 Cir., 477 F.2d 742. J. Vincent Aug, Nieman, Aug, Elder & Jacobs, Cincinnati, Ohio, on brief for appellants, Frederick Beach and Vincent Di Rubbio; Converse Murdoch, Peter J. Walsh, Wilmington, Del., of counsel. Mark S. Lieberman, Chicago, Ill., and John A. Benjamin, Cincinnati, Ohio, for appellee, KDI Corp.; Gottlieb & Schwartz, Chicago, Ill., and Robert O. Edington, Cors, Hair & Hartsock, Cincinnati, Ohio, on brief. John A. Benjamin, Benjamin, Faulkner & Tepe, Cincinnati, Ohio, on brief for KDI Creditors Committee. Before MILLER, KENT and LIVELY, Circuit Judges. LIVELY, Circuit Judge. This appeal is from an order of the District Court denying a motion pursuant to § 328 of the Bankruptcy Act to dismiss. proceedings brought under Chapter XI of the Bankruptcy Act and in effect to transfer them to Chapter X. Chapter XI of the Bankruptcy Act deals with Arrangements whereas Chapter X deals with Corporate Reorganizations. Section 306 of the Act, 11 U.S.C. § 706(1) contains the following definition: “ ‘arrangement’ shall mean any plan of a debtor for the settlement, satisfaction, or extension of the time of payment of his unsecured debts, upon any terms.” The debtor is KDI Corporation, a publicly owned holding company created under the laws of Delaware with its headquarters in Cincinnati, Ohio. In the three years immediately prior to its public disclosure of financial problems, KDI had acquired 69 wholly-owned subsidiaries involving more than 50 operating businesses in the United States, Canada and England. It is a widely diversified conglomerate, although the parent company is not engaged in any business itself and its only assets are stock in its subsidiaries and cash. KDI furnishes management services to its subsidiaries and is paid fees which, along with the profits of the wholly-owned subsidiaries, supply its operating funds. For the year ended December 31, 1969, KDI reported net sales of nearly $140,000,000.-00 and earnings of approximately 5.3 million dollars. Nevertheless, by August of 1970 the corporation was without funds to meet its current obligations. At this point a management consulting firm was retained by the corporation and an immediate analysis of its financial position was undertaken. The consultant found that KDI owed about $31,000,000.00 to banks, $9,000,000.00 to its debenture holders and $25,000,000.00 to other creditors. It was estimated that the cash needs for the following six months would be $5,000,000.00 in excess of receipts. The-consultant, after analysis, classified the subsidiaries and affiliates into four different groups. Those which were classified as “established companies” were operating profitably and required little financial support from KDI. The next category of “developing companies” were projected for losses in the near future and would continue to require sizable contributions of working capital from the holding company. The third classification was “foreign subsidiaries” which were estimated to have reasonable prospects of producing modest profits in the near future. The fourth category included those affiliated companies in which KDI owned a minority interest and had options to buy control. All oT these were unprofitable and appeared to require steady infusions of working capital. In September, 1970, the directors of KDI adopted a group of specific proposals made by the consultant which included immediate termination of all acquisitions and other commitments which would require cash outlays, immediate end to the flow of cash to developing companies and affiliated companies and a reduction in corporate staff and overhead. In the next few months 26 subsidiaries were either sold or closed and there was a complete reorganization of the top management of KDI. The two chief officers during the period of rapid expansion were removed from office and subsequently they resigned as directors. Louis W. Matthey, who had prepared the report and recommendations for the consulting firm, was elected president and chief executive officer of KDI. A new board of directors consisted of Matthey and the presidents of seven of the retained subsidiaries. After approximately one year only fourteen of the top forty-two staff and operating personnel remained on the payroll of KDI and its subsidiaries. In addition to stopping the outflow of cash, one of the most pressing problems which faced the new management was the fact that over $31,000,000.00 was owed to a consortium of eleven banks on a demand basis and that an interest payment to one of the banks had been missed on August 1, 1970. That bank would not agree to any refinancing unless all of the bank lenders were involved. In order to meet its immediate needs KDI borrowed an additional $1,125,000.00 from the banks and on September 1, 1970, agreed to pledge all stock owned by it in its subsidiaries and affiliates and all notes from subsidiaries and affiliates, not only as security for the new money but to secure the total bank debt which now was $32,425,000.00 plus accrued interest. The maturity date of the entire bank debt was then extended to March 15, 1971. The second largest item of debt was $9,200,000.00 of convertible debentures held by one or more insurance companies, which agreed to a change in restrictions so that the creation of the secured positions of the banks could not result in a default in the debentures. Financial statements and earnings estimates which had been issued by the company in mid 1970 were found to be seriously in error. The directors announced publicly that the previously issued statements were not correct and new estimates of operations for the year 1970 were made. The new management of KDI caused a thorough audit to be made by independent certified public accountants and as a consequence substantial operating losses were reported for 1970. The final figures for that year showed operating losses in excess of $9,000,000.00 from continuing operations and in excess of $8,000,000.00 from discontinued operations. In addition to these operating losses there were extraordinary losses of over $19,000,000.-00, including the write-off of good will in consolidated subsidiaries and certain reserves which were deemed to be worthless. The publication of these figures caused a precipitous drop in the price of KDI stock and triggered nine law suits by stockholders and former stockholders who had sold various subsidiaries to KDI during 1969 and 1970. These suits sought rescission of the agreements by which these subsidiaries were acquired and in some cases substantial damages were demanded in addition. Frederick Beach and Vincent Di Rubbio, the appellants in this action, were among those who filed rescission suits. On December 30, 1970, KDI filed its petition under Chapter XI of the Bankruptcy Act and the proposed plan of arrangement which is annexed to this opinion as an Appendix was submitted on April 6, 1971. On February 10, 1971, a creditors’ committee had been elected at the first meeting of creditors and it had employed an attorney and a certified public accountant. On April 14, 1971, the creditors’ committee issued a report to the general creditors of KDI Corporation in which it reviewed the events of the recent past which had brought KDI Corporation to the bankruptcy court and analyzed the plan of arrangement which had been proposed. The report strongly endorsed the plan of arrangement and urged all unsecured creditors to file consents to the plan immediately. In addition to discussing the plan itself, the report disclosed the transactions between KDI and the bank consortium which had resulted in the banks’ acquiring security for their preexisting debts. While this transaction was described as being “vulnerable,” under section 70(e) of the Bankruptcy Act (11 U.S.C. § 110(e)), nevertheless, the creditors’ committee felt that it was not in the best interests of the unsecured creditors to attack it. The committee also reported that it had negotiated with the banks and had been successful in converting $7,000,000.00 of the bank debt to a category equal to that of general creditors and obtaining $3,000,000.-00 from the banks for operating funds for the corporation on certificates of indebtedness, one-half of which was to be available immediately after the plan was approved. On July 29, 1971, Beach and Di Rubbio filed a motion to dismiss the proceedings under Chapter XI unless the petition should be amended for proceedings under Chapter X. The reason given was that the circumstances and capital structure of the debtor were such that the relief afforded by Chapter XI is inadequate to satisfy the needs to be served and, therefore, the petition should originally have been brought under Chapter X. The hearing on the application to confirm the arrangement was held before the referee in bankruptcy on October 29, 1971. Proof was submitted at that time that a majority in number and in amount in each class of creditors under the division of creditors set forth in the arrangement had approved the plan and filed written consents. Mr. Matthey was then called as a witness in support of confirmation of the plan of arrangement and stated that operations in the first nine months of 1971 had generally been in line with predictions at the time the petition for arrangement was filed on December 30,-1970. He stated that the corporation would show a profit for the year 1971, though it would be less than projected, and that all nonrecurring losses had now been absorbed and that virtually all unprofitable units had been disposed of. He then described the capital structure of KDI as of the time of the hearing and compared it with the capital structure which would exist if the plan were confirmed. Matthey stated that prior to confirmation there were seven million shares of common stock outstanding and that this would remain unchanged after confirmation. There were $35,000,000.00 of obligations to a group of banks and this was due on demand. The obligations to the debenture holders totaled $9,200,000.00 and there was approximately $5,000,-000.00 owed to general creditors. The witness stated that as of that time the corporation had a negative tangible worth. Assuming that the plan of arrangement would be confirmed he stated that there would be significant changes in the capital structure. The first of these would be that the 9.2 million dollars of convertible debentures would be converted into the same value of preferred stock. Also approximately $5,000,000.00 of trade obligations would be converted into the same amount of new convertible debentures. Further, approximately $7,000,000.00 worth of the bank debt would be converted into a like amount of convertible debentures. Approximately $15,000,000.00 of bank debt would be converted from a demand loan into a ten year term loan and approximately $15,000,000.00 of the same would be converted into a three year revolving credit. He stated that this would give KDI a positive' tangible worth. In addition to these changes in the capital structure the plan of arrangement provided that the new debentures issued to the banks and trade creditors would not bear any interest for the first two years and would have an interest rate of four per cent for the following eight years. Of the remaining bank obligations one and one-half million dollars would bear interest at six per cent for the first two years and the balance would carry interest of three per cent for that period. The witness stated that in his opinion the creditors of the company under a liquidation would probably receive something in the order of one-quarter to one-half of what he projected they would get through the plan of arrangement. He also discussed the rescission suits which were then pending against KDI. He stated that even if KDI should lose all of these suits and be required to divest itself of the eight subsidiaries involved, while it would have an effect on the business, it would not be substantial enough to affect the success of the plan of arrangement. Matthey also testified that representatives from the Securities and Exchange Commission had visited KDI headquarters and interrogated the management, investigated the contents of various minute books and records of the corporation and had visited with the independent certified public accountants employed by the corporation. He further stated that after the motion to dismiss the Chapter XI proceedings was filed, another representative of the SEC came to Cincinnati and examined their various corporate records and interviewed counsel concerning the proceedings. Mr. Matthey concluded his testimony by saying that in his opinion the plan of arrangement is feasible and in the best interest of the creditors. Much of the cross-examination of this witness was concerned with the treatment of Class 6 creditors. All of the debts included in Class 6 arose out of the various acquisitions by KDI of operating companies during its period of expansion. Some of the contracts involving these acquisitions contained individual guarantees by KDI of the value of its stock on some future date where stock was used as payment for the subsidiary. While all of the contracts involved in Class 6 were set up as tax free exchanges, there were different provisions in the several agreements. The proposed Chapter XI arrangement put a ceiling on the number of shares of common stock of KDI which would be required to satisfy these guarantees by providing that all debts arising from such guarantees would be satisfied in full by paying a number of shares of the common stock equal to the number of shares of the same stock held by each such creditor on December 31, 1970. It was further provided that the persons who received common stock pursuant to this portion of the plan of arrangement could participate in registration of the stock only if approved by KDI. In some cases the plan would result in substituting “piggyback” rights of registration for what had been mandatory rights to registration in the original contracts. With respect to the security given to the bank consortium, the witness testified on cross-examination that even if the security were set aside as being a preference the banks would still hold seven-eighths of the claims against the corporation. In his opinion the alteration in the terms of the bank loans was of sufficient benefit to justify the giving of security. In regard to the changes effected in the rights of the Class 6 creditors, the witness testified that for purposes of the plan of arrangement these people were treated as a single group of creditors and it was only incidental that they were also shareholders. They were not listed in Class 6 because they were shareholders, but because they had a particular type of unsecured claim against the corporation which arose out of an acquisition contract. He described the guarantee provisions of the acquisition contracts as guaranteeing a certain amount of money on the date that the guarantee was effective, to be satisfied by the payment of additional stock if the market price of the stock at that time was below the assumed value when the contract of acquisition was made. In answer to a hypothetical question concerning a situation where the seller of one of the subsidiaries had received a relatively small down payment in stock and there was a drastic reduction in market price at the time the final payment was due, the witness agreed that the rights of the holder of this guarantee would be drastically affected, but stated that it would affect his position because he is a creditor of KDI and not because he is a shareholder. The number of shares of stock he would receive on the settlement date would be substantially less under the plan of arrangement than under his original contract, but the witness insisted that it was his creditor position that was affected and not his position as a shareholder. The debt- or-creditor relationship between these persons and KDI arose out of a contract which was entered into before they became shareholders, he stated. Louis Matthey was the only witness called by the debtor and he filed a number of exhibits with his testimony. The creditors’ committee called its certified public accountant who expressed general support for the plan of arrangement. The objectors did not produce any witnesses in opposition to the plan but relied entirely on cross-examination to establish their position. The referee took the matter under submission after a day of testimony and argument. The hearing on the motion to dismiss was held before District Judge David S. Porter on December 13, 1971. As they had done in the hearing before the referee, the movants Beach and Di Rubbio introduced no witnesses. Instead their counsel produced various documents which had been filed as exhibits in the hearing before the referee, and additional documents which were introduced for the first time at the District Court hearing, and called to the attention of the trial judge particular portions of these documents which counsel felt established its right to dismissal. Following this there were extensive arguments. In their objections to the plan of arrangement and on their motion to dismiss the Chapter XI proceedings the appellants maintained that the proposed plan of arrangement was illegal, that it was not feasible and that it was not in the best interests of the unsecured creditors. In the hearing before the referee they were joined by several other Class 6 creditors who claimed only that the plan was illegal and did not question that it was feasible and in the best interests of the creditors generally. These particular creditors did not join in the motion to dismiss, nor did the Securities and Exchange Commission. On March 9, 1972, the District Judge filed an opinion and order in which he denied the motion to dismiss the proceedings under Chapter XI. In the opinion Judge Porter noted that the movants were among the former owners of businesses acquired by KDI who had rescission suits pending against the corporation. In addition he noted that these same two parties had recently been removed from management positions in the subsidiary which they had formerly controlled. The opinion of the court was based on the record made before the referee in the hearing concerning approval of the plan as well as that made before the District Judge on the motion to dismiss. However, the judge noted that some of the determinations required to be made in one proceeding were different from those required in the other. In reaching his decision, he considered and answered the following five questions : (1) Does the plan illegally affect shareholders? (2) Is there a need for a trustee to investigate charges of mismanagement and fraud? (3) What are the plaintiffs’ particular needs and the needs of others in category 6 — the need to challenge the security of the banks? What is the need of KDI for a source of new money? (4) Is there a need for a trustee to protect the public in view of S.E. C.’s inaction? (5) Is there a need for a trustee because the present plan is not feasible? In answering the first question in the negative the trial court found that the plan preserves the relative position of each member of Class 6 and that the rights affected by the plan for Class 6 creditors do not have their origin in stock but in contracts of acquisition. The court found that the classification and treatment of Class 6 creditors was fair and equitable and was one which dealt with contractual debts which were capable of being estimated and liquidated and, therefore, were subject to being materially and adversely affected by a plan of arrangement. In answering the second question the court noted that KDI already had new management and that there was no public debt. Further the court found that charges of fraud, self-dealing and mismanagement were not supported by any evidence at the two hearings other than exhibits produced by KDI itself. The court was impressed with what had already been accomplished by the new management and stated that many of the steps which a trustee would be expected to take had already been taken by Mr. Matthey and his associates. The court specifically found that there was no improper self-dealing or other breach of fiduciary duty by any of the directors and that no need was demonstrated to investigate the charges that mismanagement had resulted in large losses to the corporation. It was held that these losses had been sufficiently explained by Mr. Matthey and that they had resulted from general economic conditions and mistakes in judgment rather than any wrongdoing. The opinion also noted the active role of the creditors’ committee in negotiating with the bank consortium and working closely with the new management in effecting needed changes in the affairs of the corporation. In answering the third question the District Court analyzed the transaction between the group of banks and KDI and noted particularly that the creditors’ committee had concluded that the overall effect of this transaction was beneficial. The court pointed out that the banks as secured creditors were not included in the plan of arrangement and that the information concerning the bank transaction was put there so that everyone would be advised of what had occurred. It was noted that if the proceedings were transferred to Chapter X, KDI would lose the advantageous refinancing of the bank debt and that no other source of operating capital appeared to be available. The court concluded that neither the needs to be served of the appellants nor the needs of others required the appointment of a trustee, but in fact that the needs of the unsecured creditors generally would be disserved by the appointment of a trustee. In answering question number four the court took note of the fact that representatives of the SEC were very familiar with all the proceedings concerning KDI and had not seen fit to join in the motion to dismiss or transfer to Chapter X. Without drawing any conclusions from this fact alone the court determined that the interests of the public would be properly protected in Chapter XI proceedings and that there was no necessity to appoint a trustee for this purpose. With respect to question number five the court found that the plan proposed by KDI is “absolutely feasible” and adopted as a test of feasibility the probability of actual performance of the plan as proposed. At this point the opinion reviewed the terms of the plan in some detail and found that it was workable. The court noted the argument made by appellants that the plan is too complex and actually accomplishes a reorganization of KDI rather than a simple arrangement of debt. The court concluded that most of the steps which would normally be taken in a Chapter X proceeding had already been taken by KDI before it came into bankruptcy court. The court determined that the plan only affected unsecured creditors and, considering the needs to be served, no reason for dismissing had been shown. The standards set by Congress in determining whether a motion under § 328 of the Act should be granted are expressed in the broadest possible terms. A judge “may” grant the motion “if he finds that the proceedings should have been brought under Chapter 10 of this title.” The Supreme Court has dealt with the problem in three cases and all parties to this action agree that the controlling decisions are Securities and Exchange Commission v. United States Realty and Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940); General Stores Corp. v. Shlensky, 350 U.S. 462, 76 S.Ct. 516, 100 L. Ed. 550 (1956) and Securities and Exchange Commission v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965). This court had the question before it for decision in Securities and Exchange Commission v. Wilcox-Gay Corporation, 231 F.2d 859 (6th Cir. 1956). Only general principles may be drawn from any opinion dealing with this issue, because the fact situation is different and largely determinative of the outcome of each case. One of the most important differences in procedures under the two chapters is that Chapter X requires the appointment of a disinterested trustee to take possession of the assets of the debtor, while Chapter XI permits the debtor in possession to continue to hold the assets and to continue its operations subject to the control of the court. At the outset we must determine, then, whether the record in this particular case reveals a set of facts where the appointment of a trustee would best serve the various interests- involved. We believe the District Judge correctly decided this question and his findings on the subject are supported by the evidence. The new management of KDI, headed by Louis Matthey, has moved promptly and skillfully to restore the corporation to a profit-making enterprise with financial stability. The long-term success of these efforts could be seriously hindered, or even completely doomed, by a transfer to Chapter X and the consequent appointment of a trustee. Matthey testified that he would not stay with KDI if this were done and the banks, who are by far the largest creditor as a group, notified the referee that the adjustment of terms of their loans was contingent upon qontinued operation under Chapter XI. In addition to supplying new management, a trustee is frequently needed to investigate past mismanagement, fraud or breach of trust by officers or directors. While KDI has suffered from bad management in the sense of poor business judgment and insufficient financial controls and accounting practices, the appellants failed to produce convincing proof of any fraud or bad faith. Several transactions with former directors had the result of relieving KDI of obligations which were connected with the properties sold to these individuals. The record supports the findings of the trial judge that these transactions were openly carried out with full disclosure to other directors who approved them, and that the net effect of each was to strengthen KDI. Many, if not all the steps which a trustee would be expected to take in the circumstances of this case had already occurred before the petition was filed in the bankruptcy court. The corporation had been substantially reorganized without court assistance, but it needed “breathing room” in order to continue operations. The most pressing debts were the bank loans which were payable on demand. Once these had been transformed into term loans and new working capital had been provided in the revolving credit of $3,000,000.00, KDI maintains it was necessary to resort to the protection of the bankruptcy court to be assured of this “breathing room.” Nevertheless, the appellants contend that the proposed arrangement is actually a reorganization and that the capital structure of KDI is too complex for proceedings under Chapter XI. They assert that the proceedings are illegal because the rights of shareholders are materially and adversely affected, that the proposed plan is not feasible and that Chapter XI is not appropriate to the needs to be served in this case. The two statutory methods of accomplishing the rescue of financially distressed corporations “are not alternate routes, the choice of which is in the hands of the debtor. Rather, they are legally, mutually exclusive paths to attempted financial rehabilitation.” SEC v. American Trailer Rentals, supra 379 U.S. at p. 607, 85 S.Ct. at p. 520. Though the debtor makes the first choice between the remedies of the two chapters, proceedings under Chapter X will not be permitted unless “adequate relief” is not obtainable under Chapter XI; and if the proceedings “should have been brought” under Chapter X, the court must dismiss a petition filed under Chapter XI. In determining which method of rehabilitation should be followed in a given case, the trial court does not have untrammeled discretion, but must make the decision in the light of enunciated principles. The question on appeal is not whether there has been a clear abuse of discretion, but whether the “exercise of discretion transcended the allowable bounds.” General Stores Corp. v. Shlensky, supra 350 U.S. at p. 468, 76 S.Ct. at p. 520. The Supreme Court has held that the determination of whether a debtor should proceed under Chapter X or XI cannot be based exclusively on the size of the corporation, whether it has few or many security holders or whether its securities are held by the public; although, as a general rule, Chapter X is better adapted to large corporations with complicated balance sheets and numerous shareholders. SEC v. United States Realty and Improvement Co., supra. Furthermore, in General Stores it was held that neither the character of the debtor nor the nature of its capital structure should be the controlling consideration in making a choice between the two chapters. The decision must be based on the “needs to be served.” 350 U.S. at p. 466, 76 S.Ct. 516. The teachings of United States Realty and General Stores were followed by the District Court and this Court in SEC v. Wilcox-Gay Corp., 133 F.Supp. 548 (W.D.Mich. 1955), 231 F.2d 859 (6th Cir. 1956). While there are important factual differences between Wilcox-Gay and the present case, we continue to adhere to its guiding principles without relying directly upon it for our decision. In Trailer Rentals the Court reaffirmed the previous holdings that there is no absolute rule that Chapter X must be used when the debtor is publicly owned. Furthermore, if a plan alters the rights of public investors it does not necessarily require proceedings under Chapter X. While holding that Congress had not seen fit to make absolute distinctions based on these considerations, it, nevertheless, laid down the general rule that Chapter X is the “appropriate proceeding for adjustment of publicly held debt.” 379 U.S. at p. 613, 85 S.Ct. at p. 524. The opinion goes on to hold that Congress was primarily concerned with the protection of public investors in enacting Chapter X, whereas Chapter XI provides primarily for the adjustment of the rights of trade creditors by way of a “simple composition.” p. 614, 85 S.Ct. 513. There is support for the positions of both the appellants and the appellees in the three Supreme Court decisions. Considered alone United States Realty might appear to rule out any possibility of KDI’s proceeding under Chapter XI because there is a rearrangement of its capital structure under the proposed plan. However, when United States Realty was decided, an arrangement under Chapter XI was required to be “fair and equitable” and the decision seems to rest largely on the court’s holding that the proposed plan did not, on its face, meet this test. Since Congress has subsequently removed the “fair and equitable” requirement from Chapter XI proceedings and since the important facts in that case, particularly the existence of publicly owned debentures are so different from those in the present one, it is impossible to decide this case in reliance on SEC v. United States Realty and Improvement Co., supra. In General Stores none of the unsecured trade and commercial debts which were being rearranged was publicly held. In that respect it is similar to the present case because here the debentures (Class 5 under the plan) are too closely held to be classified as publicly held debt securities. The same is also true of the debts arising out of the contractual rights of the Class 6 creditors. Likewise, all of the debts in the first four classes under the plan are trade or commercial debts. However, there are important differences between the eases. There was a long story of financial difficulties, including previous bankruptcy proceedings, in the history of the General Stores Corporation. The financial conditions of the company were so precarious that the proceedings appeared to offer only a short moratorium that “may be merely a prelude to new disasters.” 350 U.S. at p. 467, 76 S.Ct. at p. 519. The ease was ultimately decided on the finding that no “feasible” plan would be possible under Chapter XI. It was held that the two lower courts did not transcend the allowable bounds of discretion in finding that rehabilitation of the debtor would require a more drastic restructuring of its capital than could be accomplished under Chapter XI. Turning to the most recent Supreme Court case, we find an obvious and important difference in the debt structure of American Trailer Rental Co. and KDI. There were numerous widely scattered small investors who had purchased trailers and leased them back to the corporation. In fact the business had largely been financed by this sale and lease-back scheme until the Securities and Exchange Commission ruled that the agreements were investment contracts requiring registration as securities. Two previous attempts at public financing had been blocked by the SEC on the ground that materials issued by the debtor contained false and misleading statements. The financial statement filed with the Chapter XI petition of Trailer Rentals showed an entirely different situation from that disclosed by KDI. There were very few assets beyond an extremely doubtful item listed as its trailer rental system which consisted of agreements with some 500 individual service stations. On the other hand its liabilities consisted of over $900,000.00 owed to investors under the lease-back plan, in excess of $285,000.00 owed to officers and directors and only $71,805.00 owed to trade and general creditors. A further comparison with Trailer Rentals discloses that the plan of arrangement which was- proposed by the debtor in that ease would have left the old management in control of a successor corporation, the stock of which was being issued in various ratios to the different groups of creditors. In that case the plan also provided for payment in full of an unsecured bank loan which the officers and directors of American Trailer Rental Co. had individually guaranteed. The entire plan appeared to be highly favorable to those persons whose acts had been largely responsible for the plight of the debtor. In reversing the denial of the motion to dismiss or transfer the proceedings to Chapter X the Court in Trailer Rentals found that the proposed arrangement under Chapter XI would materially affect the rights of widespread public investor creditors. This fact alone would have required a Chapter X proceeding. However, the opinion continued :— “On the other hand, General Stores also makes it clear that even though there may be no public debt materially and directly affected, Chapter X is still the appropriate proceeding where the debtor has widespread public stockholders and the protections of the public and private interests involved afforded by Chapter X are required because, for example, there is evidence of management misdeeds for which an accounting might be made, there is a need for new management, or the financial condition of the debtor requires more than a simple composition of its unsecured debts.” 379 U.S. pp. 614-615, 85 S.Ct. p. 524. The Court also considered the argument that the time and expense involved in a Chapter X proceeding should be weighed against the speed and economy possible under Chapter XI. In ruling that this could not be a determinative consideration, the opinion pointed out that “it must be recognized that Chapters X and XI were not designed to prolong — without good reason and at the expense of the investing public — the corporate life of every debtor suffering from terminal financial ills.” 379 U.S. at p. 618, 85 S.Ct. at p. 526. Taking into account the principles enunciated and conclusions reached in the three controlling Supreme Court opinions and the decisions of a number of other courts cited in brief and argument, we have concluded that the judgment of the District Court should be affirmed. None of the debt subject to the plan of arrangement is evidenced by publicly held securities, and it is all unsecured. The proposal to issue convertible subordinated income debentures and convertible preferred stock is a permissible method of providing for the rearrangement of unsecured debts within § 356 of the Bankruptcy Act (11 U.S.C. § 756) which provides for modifying or altering the rights of unsecured creditors “upon any terms or for any consideration.” In § 306(2) of the Act [11 U.S. C. § 706(2)] “consideration” is defined as including “evidences of indebtedness, either secured or unsecured, stock and certificates of beneficial interest therein, and certificates of beneficial interest in property.” The appellants are Class 6 creditors under the proposed plan. They complain that the plan will result in their receiving fewer shares of stock of KDI in the future than they contracted for when they sold their company to KDI. This will be true if the market value of KDI stock remains at its depressed level. However, all of the Class 6 creditors are treated the same, and of the 77 proofs of claim representing 760,956 shares of stock received from Class 6 creditors, 67 representing 716,336 shares filed acceptances of the plan. The District Court correctly held that the acquisition contracts dealt with in Class 6 created unsecured debts of KDI, and the fact that these debts were payable in common shares of the corporation does not make them ineligible for modification or alteration under Chapter XI. A number of cases have been cited by appellants in support of their contention that the proposed proceedings under Chapter XI are illegal. We have examined the decisions and do not find them to be controlling. In two cases decided since Trailer Rentals the Eighth and Tenth Circuits have reversed orders of district courts which denied motions, pursuant to § 328, to dismiss proceedings under Chapter XI. The case of In re Peoples Loan and Investment Company of Fort Smith, 410 F.2d 851 (8th Cir. 1969), involved a finance company which had raised most of its capital by selling certificates of deposit to numerous small investors. These public investors constituted a large majority of the unsecured creditors. They were widely scattered and

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

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

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

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

Vasiliky C. ROUMEL, Appellant, v. Norman BERNSTEIN et al., Appellees. No. 13352. United States Court of Appeals District of Columbia Circuit. Argued Oct. 5, 1956. Decided March 14, 1957. Petition for Rehearing In Banc Denied May 15, 1957. Mr. Irwin B. Lipman, Washington, D. G., for appellant. Mr. Leonard S. Melrod, Washington, D. C., with whom Mr. Joseph V. Gart-lan, Jr., Washington, D. C., was on the brief, for appellees. Before WASHINGTON, BASTIAN and BURGER, Circuit Judges. WASHINGTON, Circuit Judge. The plaintiff-appellant filed this suit to recover damages which she allegedly sustained as a result of misrepresentations in connection with a purchase of property. At the pretrial hearing the defendants moved to dismiss the complaint on the ground that the plaintiff’s testimony taken on deposition failed to show that she suffered any damage as a result of the purchase. The District Court agreed and dismissed the complaint. This appeal followed. The record made thus far indicates that the plaintiff desired to buy a block of three apartment buildings located in Arlington, Virginia, title to which was in the name of a corporation. The defendants owned all the stock of the corporation. After negotiations, an agreement was made on May 7, 1951, whereby the plaintiff agreed to buy and the defendants agreed to sell the stock. It was understood that the defendants would immediately dissolve the corporation and transfer to plaintiff title to the buildings. This was apparently done. Some two years after the purchase agreement was entered into, and carried out, the plaintiff sued the defendants. Her complaint claimed damages as a result of (1) misrepresentations as to the amount of certain operating expenses at the time of signing the purchase agreement, (2) the concealment by defendants of the need for immediate and necessary repairs, (3) their refusal to complete the installation of formica counters and faucets and sprays for sinks in all the apartments in accord with their promise, (4) the withholding of information as to a serious condition of termites, and (5) their refusal to comply with their representation that they would make good anything found wrong with the property. The defendants took the plaintiff’s deposition and elicited from her the following testimony, insofar as now material: She was not injured as a result of the purchase of the stock; she transferred the apartment buildings to two sons for the price that she had paid; before settlement she was advised that the formica tops, faucets, and sprays had not been installed in the kitchens of 5 or 6 apartments and that defendants refused to do so; she decided to forget about this last item “as long as we have everything else”; accordingly, she waived this and signed the settlement agreement; after about a year the rent for all the apartments was raised an average of S2.50 a month over what it was when the property was shown to her, and about a year later was raised an average of $5.00 a month, but “we stood a lot of repairs there.” The plaintiff’s testimony on deposition that she had not been injured as a result of the purchase of the stock does not warrant the conclusion that she suffered no damage from the whole transaction. For present purposes the testimony should be construed most favorably to the plaintiff. She wanted to buy the buildings; she did not want stock and would not have bought it, but was persuaded to do so by the defendants’ undertaking to dissolve the corporation immediately and place the buildings in her name. 2**In reality, then, the parties appear to have dealt on the basis of selling and purchasing the buildings, even though as a matter of form for the convenience of the sellers the transaction was cast as a sale of stock. The complaint is drawn on this premise, asserting several instances of damage from misrepresentations in connection with the buildings and none from purchasing the stock as such. The plaintiff’s testimony that she was not injured by purchasing the stock does not — on a construction favorable to her — relate to or negative these allegations. Under Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.B.C.A., the pleadings as well as the deposition are pertinent in determining whether there is a genuine issue as to any material fact. Cf. Dewey v. Clark, 1950, 86 U.S.App.D.C. 137, 140-145, 180 F.2d 766, 769-774; Garrett Biblical Institute v. American University, 1947, 82 U.S.App.D.C. 265, 163 F.2d 265; 6 Moore’s Federal Practice 2123 (2d Ed. 1953). As to the allegation of the complaint that the plaintiff was damaged by the refusal of the defendants to install formica counters in all the apartments, we agree that her testimony on deposition removes any basis for recovery. It indicates that she was aware of the matter prior to settlement but decided to waive it and settle for the property. Thus, she gave up the right to claim damage, if any, resulting from this item. To be sure, she might have filed affidavits seeking to overcome the effect of her deposition in this regard, but she did not do so. Except for the plaintiff’s statement that “we stood a lot of repairs,” her testimony on deposition does not deal with the other four alleged misrepresentations resulting in damage as set out in her complaint, namely, those relating to operating expenses, immediate and necessary repairs, the termite condition, and making good anything found wrong with the property. As indicated in the margin, the complaint is faulty in its allegations as to the operating expenses and that item is removed from our consideration. The remaining three allegations all pertain to expenditures which the plaintiff was required to make to place the property in good condition. Her testimony that she sold the buildings to two sons for the same price that she paid does not negative damages resulting from amounts she spent on the property in addition to the purchase price. Her statement that “we stood a lot of repairs,” construed most favorably in her behalf, indicates that she was required to spend some amount to make substantial repairs — and the term “repairs” may well have been used in a broad sense to include items necessitated by the termite condition and to make good things found wrong with the property. Counsel did not inquire further of plaintiff as to the kind of repairs made or the amount spent. Her deposition then does not show that she was not damaged with respect to any of the three items now under consideration, but instead tends, so far as it goes, to leave those questions open. In other words, we cannot say on this record that as to the latter three it is impossible for the appellant to make out a case. The issues raised by these allegations, which were denied, remain genuine issues, and as to them, the plaintiff cannot properly be foreclosed from offering such proof as. she may have. Dewey v. Clark, supra, 86 U.S.App.D.C. at pages 140-145, 180 F.2d at pages 769-774; Garrett Biblical Institute v. American University, supra. The record before us, limited as it is, supports the District Court’s action as to parts of appellant’s claims, e.g., claims relating to the formica counters which she expressly waived, and a claim relating to operating expense representations, but as to other matters we think the complaint entitles appellant to an opportunity to go forward with her case even .after a two year delay in asserting the claim. Our action is without prejudice to the District Court’s power to allow, in its discretion, amendment of the complaint. The order dismissing the complaint is affirmed in part, reversed in part and remanded for appropriate proceedings not inconsistent with this opinion. So ordered. . The defendants were apparently unwilling to dissolve the corporate form prior to the sale. The complaint alleges that they insisted upon selling the corporation’s shares because it would be to their tax advantage to do so. . The complaint alleged that some of the expenses of operating the buildings were found to be hither at the time the plaintiff took control than they were represented to be at the time of the negotiations to buy and the signing of the purchase agreement. It is not alleged that the defendants represented that the operating expenses would continue after the date of signing the agreement at the figures stated. There is no allegation from which wo can infer that the plaintiff assumed control on the date of the purchase agreement; in the usual case she would not be given possession until after settlement. There is no allegation of a representation by defendants as to what the expenses were as of that time. Thus, the complaint in its present form fails to state a cause of action as to the misrepresentation of operating expenses. . We leave open the question of what effect resale at purchase price might have upon damage claims other than out-of-pocket expenses, and also whether in circumstances of this sort there might be recovery by the sons, or by their mother on their behalf.

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

ATLANTIC REFINING CO. v. FEDERAL TRADE COMMISSION. No. 292. Argued March 30, 1965. Decided June 1, 1965. Frederic L. Ballard, Jr., argued the cause for petitioner in No. 292. With him on the briefs were Charles I. Thompson, Jr., Tyson W. Coughlin, Roy W. Johns, Joel L. Carr and Harry W. Gill, Jr. John F. Sonnett argued the cause for petitioner in No. 296. With him on the briefs were Arthur Mermin, David Ingraham and Marshall H. Cox, Jr. Daniel M. Friedman argued the cause for respondent in both cases. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, James Mel. Henderson, Alvin L. Berman and Lester A. Klaus. Cecil E. Munn filed a brief for Champlin Petroleum Co., as amicus curiae, urging reversal in No. 292. Harold T. Halfpenny and Mary M. Shaw filed a brief for the Automotive Service Industry Association, as amicus curiae, urging affirmance in No. 292. William F. Kenney, William Simon and John Bodner, Jr., filed a brief for Shell Oil Co., as amicus curiae, in both cases. Together with No. 296, Goodyear Tire & Rubber Co. v. Federal Trade Commission, also on certiorari to the same court. Mr. Justice Clark delivered the opinion of the Court. The Federal Trade Commission has found that an agreement between the Atlantic Refining Company (Atlantic) and the Goodyear Tire & Rubber Company (Goodyear), under which the former “sponsors” the sale of the tires, batteries and accessory (TBA) products of the latter to its wholesale outlets and its retail service station dealers, is an unfair method of competition in violation of § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. § 45 (1964 ed.). Under the plan Atlantic sponsors the sale of Goodyear products to its wholesale and retail outlets on an overall commission basis. Goodyear is responsible for its sales and sells at its own price to Atlantic wholesalers and dealers for resale; it bears all of the cost of distribution through its warehouses, stores and other supply points and carries on a joint sales promotion program with Atlantic. The latter, however, is primarily responsible for promoting the sale of Goodyear products to its dealers and assisting them in their resale; for this it receives a commission on all sales made to its wholesalers and dealers. The hearing examiner, with the approval of the Commission and the Court of Appeals, enjoined the use of direct methods of coercion on the part of Atlantic upon its dealers in the inauguration and promotion of the plan. Atlantic does not seek review of this phase of the case. However, the Commission considered the coercive practices to be symptomatic of a more fundamental restraint of trade and found the sales-commission plan illegal in itself as “a classic example of the use of economic power in one market... to destroy competition in another market... 58 F. T. C. 309, 367. It prohibited Atlantic from participating in any such commission arrangement. Similarly, it forbade Goodyear from continuing the arrangement with Atlantic or any other oil company. Goodyear and Atlantic filed separate appeals. The Court of Appeals approved the findings of the Commission and affirmed its order. “Appraising the broader aspects of the system [used by Atlantic and Goodyear] as a tying arrangement,” it agreed with the Commission that it injured “competition in the distribution of TBA at the manufacturing, wholesale, and retail levels.” 331 F. 2d 394,402. We granted certiorari, 379 U. S. 943, because of the importance of the questions raised and especially in light of the holding of the Court of Appeals for the District of Columbia Circuit in Texaco, Inc. v. Federal Trade Comm’n, 118 U. S. App. D. C. 366, 336 F. 2d 754, which is in apparent conflict with these cases. We affirm the judgments of the Court of Appeals. I. Since Atlantic has not sought review of paragraphs 5 and 6 of the Commission’s order as to its use of overt acts of coercion on its wholesalers and retailers those portions of the order are final. We therefore do not set out in detail all of the facts which are so carefully examined in the opinion of the Court of Appeals. Atlantic is a major producer, refiner and distributor of oil and its by-products. Its market is confined to portions of 17 States along the eastern seaboard. Its distribution system consists of wholesale distributors who purchase gasoline and lubricants in large quantities and retail service station operators who do business either as lessees of Atlantic or as contract dealers selling its products. In 1955 Atlantic had 2,493 lessee dealers, who purchased 39.1% of its gasoline sales, and 3,044 contract dealers, who bought 18.1 %. About half of the contract dealers were service station operators; the remainder were operators of garages, grocery stores and other outlets which sell gasoline but do not handle tires, batteries and accessories. Goodyear is the largest manufacturer of rubber products in the United States with sales of over $1,000,000,000 in 1954. It distributes tires, tubes and accessories through 57 warehouses located throughout the country. It doés not warehouse batteries; “Goodyear” batteries are tradenamed by it but manufactured and directly distributed to Goodyear outlets by the Electric Auto-Lite Company and Gould-National Batteries, Inc. Goodyear also sells its products at wholesale and retail through about 500 company-owned stores and through numerous independent dealers. These independent franchised dealers number more than 12,000, there being among them a number of Atlantic wholesale petroleum distributors and retail petroleum jobbers. Goodyear has also had a substantial number of nonfranchised dealers which includes most service station customers, including the Atlantic stations involved here. Gasoline service stations are particularly well suited to sell tires, batteries and accessories. They constitute a large and important market for those products. Since at least 1932 Atlantic has been distributing such products to its dealers. In 1951 it inaugurated the sales-commission plan. Its contract with Goodyear covered three regions: Philadelphia-New Jersey, New York State and New England. The Goodyear-Atlantic agreement required Atlantic to assist Goodyear “to the fullest practicable extent in perfecting sales, credit, and merchandising arrangements” with all of Atlantic’s outlets. This included announcement to its dealers of its sponsorship of Goodyear products followed by a field representative’s call to “suggest... the maintenance of adequate stocks of merchandise” and “maintenance of proper identification and advertising” of such merchandise. Atlantic was to instruct its salesmen to urge dealers to “vigorously” represent Goodyear, and to “cooperate with and assist” Goodyear in its “efforts to promote and increase the sale” by Atlantic dealers of Goodyear products. And it was to “maintain adequate dealer training programs in the sale of tires, batteries, and accessories.” In addition, the companies organized joint sales organization meetings at which plans were made for perfecting the sales plan. One project was a “double teaming” solicitation of Atlantic outlets by representatives of both companies to convert them to Goodyear products. They were to call on the dealers together, take stock orders, furnish initial price lists and project future quotas of purchases of Goodyear products. Goodyear also required that each Atlantic dealer be assigned to a supply point maintained by it, such as a warehouse, Goodyear store, independent dealer or designated Atlantic distributor or retail dealer. Atlantic would not receive any commission on purchases made outside of an assigned supply point. Its commission of 10% on sales to Atlantic dealers and 7.5% on sales to its wholesalers was paid on the basis of a master sheet prepared by Goodyear and furnished Atlantic each month. This list was broken down so as to show the individual purchases of each dealer (except those whose supply points for Goodyear products were Atlantic wholesalers). Under this reporting technique, the Commission found, “Atlantic may determine the exact amount of sponsored TBA purchased by each Atlantic outlet... 58 F. T. C. 309, 351. Goodyear also furnished, this time at the specific request of Atlantic, a list of the latter’s recalcitrant dealers who refused to be identified with the “Goodyear Program.” These lists Atlantic forwarded to its district offices for “appropriate action.” On one occasion a list of 46 such dealers was furnished Atlantic officials by Goodyear. The Commission found that “the entire group... was thereafter signed to Goodyear contracts and Goodyear advertising signs were installed at their stations.” Id., at 346-347. The effectiveness of the program is evidenced by the results. Within seven months after the agreement Goodyear had signed up 96% and 98%, respectively, of Atlantic’s dealers in two of the three areas assigned to it. In 1952 the sale of Goodyear products to Atlantic dealers was $4,175,890 — 40% higher than Atlantic’s sales during the last year of its purchase-resale plan with Lee tires and Exide batteries. By 1955 these sales of Goodyear products amounted to $5,700,121. Total sales of Goodyear and Firestone products from June 1950 to June 1956 were over $52,000,000. This enormous increase, the findings indicate, was the result of the effective policing of the plan. The reports of sales by Goodyear to Atlantic enabled it to know exactly the amount of Goodyear products the great majority of its dealers were buying. The Commission stressed the evidence showing that “Atlantic dealers have been orally advised by sales officials of the oil company that their continued status as Atlantic dealers and lessees will be in jeopardy if they do not purchase sufficient quantities of sponsored” tires, batteries and accessories. Id,., at 342. Indeed, some dealers lost their leases after being reported for not complying with the Goodyear sales program. But we need not detail this feature of the case since Atlantic has conceded the point by not perfecting an appeal thereon. II. Section 5 of the Federal Trade Commission Act declares “[ujnfair methods of competition in commerce, and unfair... acts or practices in commerce... unlawful.” In a broad delegation of power it empowers the Commission, in the first instance, to determine whether a method of competition or the act or practice complained of is unfair. The Congress intentionally left development of the term “unfair” to the Commission rather than attempting to define “the many and variable unfair practices which prevail in commerce....” S. Rep. No. 592, 63d Cong., 2d Sess., 13. As the conference report stated, unfair competition could best be prevented “through the action of an administrative body of practical men... who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations.” H. R. Conf. Rep. No. 1142, 63d Cong., 2d Sess., 19. In thus divining that there is no limit to business ingenuity and legal gymnastics the Congréss displayed much foresight. See Federal Trade Comm’n v. Cement Institute, 333 U. S. 683, 693 (1948). Where the Congress has provided that an administrative agency initially apply a broad statutory term to a particular situation, our function is limited to determining whether the Commission’s decision “has ‘warrant in the record’ and a reasonable basis in law.” Labor Board v. Hearst Publications, Inc., 322 U. S. 111, 131 (1944). While the final word is left to the courts, necessarily “we give great weight to the Commission’s conclusion....” Federal Trade Comm’n v. Cement Institute, supra, at 720. III. Certainly there is “warrant in the record” for the findings of the Commission here. Substantial evidence supports the conclusion that notwithstanding Atlantic’s contention that it and its dealers are mutually dependent upon each other, they simply do not bargain as equals. Among the sources of leverage in Atlantic’s hands are its lease and equipment loan contracts with their cancellation and short-term provisions. Only last Term we described the power implications of such arrangements in Simpson v. Union Oil Co., 377 U. S. 13 (1964), and we need not repeat that discussion here. It must also be remembered that Atlantic controlled the supply of gasoline and oil to its wholesalers and dealers. This was an additional source of economic leverage, United States v. Loew’s, Inc., 371 U. S. 38, 45 (1962), as was its extensive control of all advertising on the premises of its dealers. Furthermore, there was abundant evidence that Atlantic, in some instances with the aid of Goodyear, not only exerted the persuasion that is a natural incident of its economic power, but coupled with it direct and overt threats of reprisal such as are now enjoined by paragraphs 5 and 6 of the order. Indeed, the Commission could properly have concluded that it was for this bundle of persuasion that Goodyear paid Atlantic its commission. We will not repeat the manner in which this sponsorship was carried out. It is sufficient to note that the most impressive evidence of its effectiveness was its undeniable success within a short time of its inception. In 1951, seven months after the sales-commission plan had gone into effect, Goodyear had enjoyed great success in signing contracts with Atlantic dealers despite the fact that a 1946-1949 survey had shown that 67% of the dealers had preferred Lee tires and 76% Exide batteries. With this background in mind, we consider whether there was a “reasonable basis in law” for the Commission’s ultimate conclusion that the sales-commission plan constituted an unfair method of competition. > H-1 At the outset we must stress what we do not find present here. We recognize that the Goodyear-Atlantic contract is not a tying arrangement. Atlantic is not required to tie its sale of gasoline and other petroleum products to purchases of Goodyear tires, batteries and accessories. Nor does it expressly require such purchases of its dealers. But neither do we understand that either the Commission or the Court of Appeals held that the sales-commission arrangement was a tying scheme. What they did find was that the central competitive characteristic was the same in both cases — the utilization of economic power in one market to curtail competition in another. Here that lever was bolstered by actual threats and coercive practices. As our cases hold, all that is necessary in § 5 proceedings to find a violation is to discover conduct that “runs counter to the public policy declared in the” Act. Fashion Originators’ Guild v. Federal Trade Comm’n, 312 U. S. 457, 463 (1941). But this is of necessity, and was intended to be, a standard to which the Commission would give substance. In doing so, its use as a guideline of recognized violations of the antitrust laws was, we believe, entirely appropriate. It has long been recognized that there are many unfair methods of competition that do not assume the proportions of antitrust violations. Federal Trade Comm’n v. Motion Picture Advertising Service Co., 344 U. S. 392, 394 (1953). When conduct does bear the characteristics of recognized antitrust violations it becomes suspect, and the Commission may properly look to cases applying those laws for guidance. Although the Commission relied on such cases here, it expressly rejected a mechanical application of the law of tying arrangements. Rather it looked to the entire record as a basis for its conclusion that the activity of Goodyear and Atlantic impaired competition at three levels of the tires, batteries and accessories industry. It found that wholesalers and manufacturers of competing brands, and even Goodyear wholesalers who were not authorized supply points, were foreclosed from the Atlantic market. In addition, it recognized the obvious fact that Firestone and Goodyear were excluded from selling to Atlantic’s dealers in each other’s territories. Both of these effects on competition flowed from the contract itself. It also found that the plight of Atlantic wholesalers and retailers was equally clear. They had to compete with other wholesalers and retailers who were free to stock several brands, but they were effectively foreclosed from selling brands other than Goodyear. This restraint is in this respect broader than the one found in International Salt Co. v. United States, 332 U. S. 392 (1947), where the dealers could stock other salt if they could buy it at lower prices. Here the dealers could buy only at Goodyear’s price. Thus the Commission was warranted in finding that the effect of the plan was as though Atlantic had agreed with Goodyear to require its dealers to buy Goodyear products and had done so. It is beyond question that the effect on commerce was not insubstantial. In International Salt Co., the market foreclosed was $500,000 annually. Firestone and Goodyear sales alone exceeded $11,000,000 in 1955 and $50,000,000 in six years, and more than 5,500 retailers and wholesalers were affected. Goodyear and Atlantic contend that the Commission should have made a far more extensive economic analysis of the competitive effect of the sales-commission plan, examining the entire market in tires, batteries and accessories. But just as the effect of this plan is similar to that of a tie-in, so is it unnecessary to embark upon a full-scale economic analysis of competitive effect. We think it enough that the Commission found that a not insubstantial portion of commerce is affected. See United States v. Loew’s, Inc., 371 U. S. 38, 45, n. 4 (1962); International Salt Co. v. United States, 332 U. S. 392 (1947). Nor can we say that the Commission erred in refusing to consider evidence of economic justification for the program. While these contracts may well provide Atlantic with an economical method of assuring efficient product distribution among its dealers they also amount to a device that permits suppliers of tires, batteries and accessories, through the use of oil company power, to effectively sew up large markets. Upon considering the destructive effect on commerce that would result from the widespread use of these contracts by major oil companies and suppliers, we conclude that the Commission was clearly justified in refusing the participants an opportunity to offset these evils by a showing of economic benefit to themselves. Northern Pacific R. Co. v. United States, 356 U. S. 1, 6-7 (1958). The short of it is that Atlantic, with Goodyear’s encouragement and assistance, has marshaled its full economic power in a continuing campaign to force its dealers and wholesalers to buy Goodyear products. The anticom-petitive effects of this program are clear on the record and render unnecessary extensive economic analysis of market percentages or business justifications in determining whether this was a method of competition which Congress has declared unfair and therefore unlawful. V. We now turn to the matter of relief. ■ As we have said, the Commission’s order forbids Atlantic’s participation in any contract with any supplier of tires, batteries and accessories whereby it receives anything of value in connection with the sale of such products by any marketer. It also prohibits Goodyear from continuing or effecting any contract with Atlantic, “or with any other marketing oil company,” whereby Goodyear pays 'anything of value to the oil company in connection with the sale of tires, batteries and accessories by Goodyear to wholesalers or retailers of the oil company. 1. We first consider Atlantic, whose major argument is that the order is arbitrary and goes too far. It disallows the sales-commission plan, Atlantic says, but permits reinstitution of thé old purchase-resale plan even though the latter has the same anticompetitive effects and is a less effective method of distribution. This position flows from the language of the order which prohibits Atlantic’s receipt of anything of value in connection with the sale of tires, batteries and accessories by any marketer “other than The Atlantic Refining Company.” The merits of the purchase-resale plan, however, were not before the Commission and we therefore have no occasion to pass upon them. Nor do we believe that the order is too broad. Section 5 (b) empowers the Commission to issue a cease-and-desist order against anyone using an unfair method of competition in commerce. The Commission was of the opinion that to enjoin the use of overt coercive tactics was insufficient. We think it was justified in this conclusion. The long existence of the plan itself, coupled with the coercive acts practiced by Atlantic pursuant to it, warranted a decision to require more. The Commission could have decided that to uproot the practice required its complete prohibition; otherwise dealers would not enjoy complete freedom from unfair practices which the Act condemns. These are matters well within the ambit of the Commission’s authority. 2. As for Goodyear we hold that the order is entirely within the power of the Commission. Both the Commission and the Court of Appeals stressed that the sales-commission plan enabled Goodyear “to integrate [into] its own nationwide distribution system the economic power possessed by Atlantic over its wholesale and retail petroleum outlets.” 58 F. T. C., at 348. In addition, the Commission dedicated a considerable portion of its opinion to Goodyear’s role in carrying it out. Thus, although it is the oil company’s power and overt acts toward its outlets that outlaw the commission plan, the Commission was not restricted solely to an examination of its activity. Rather, in deciding upon the relief to be entered against Goodyear, it could appropriately consider its propensity for harnessing and utilizing that power. Because of the relevance of that evidence to our present inquiry we will consider it here in some detail. Goodyear was no silent or inactive partner in the implementation of the sales-commission plan. It did not simply sit back and passively accept whatever benefits might accrue to it from the Atlantic contract. Indeed, the most striking aspect of the program, in the Commission’s view, was the degree to which the petitioners worked together to achieve the program’s success. A.Goodyear representative put it very neatly when he said: “After years of courtship Atlantic and Goodyear have wed.... We welcome wholeheartedly this merger.” Examples of this close cooperation were numerous. Atlantic had a rather large turnover in dealerships, as well as a substantial number of new station openings each year. With the selection of persons to man these stations,-Goodyear supply points were notified by Atlantic before they actually began operations, thus allowing Atlantic-Goodyear teams an opportunity to call on the prospective dealer, to get initial orders before local competitors and to condition acceptance of the Goodyear line. Goodyear brands were used for demonstration in Atlantic training schools for these new dealers, and discussions of tires, batteries and accessories at these schools were often conducted by representatives of both Atlantic and Goodyear. Moreover, Atlantic gave Goodyear lists of its dealers so that the latter could remove advertising for other products and replace it with its own. Goodyear sent lists of dealers refusing to accept its advertising to Atlantic for “appropriate action”; and it will be recalled that on one occasion when a list of 46 such dealers was forwarded to Atlantic, all soon fell into line. This is a particularly impressive example of Goodyear’s inclination to use Atlantic’s power for its own benefit. And there are more. The reporting technique used by petitioners was especially revealing. Through it, Atlantic could determine the exact amount of sponsored products purchased by each Atlantic retail outlet from its assigned supply point. Goodyear supplied this information sua sponte insofar as the record shows. Ostensibly it was used in determining commissions due Atlantic. What makes it suspect is the detail with which it was compiled — wholly unnecessary for commission-payment purposes. Its potential use for channeling pressures upon recalcitrant dealers is obvious. And when considered alongside the admitted overt coercive practices of Atlantic, this list becomes a potent device in ensuring the success of the program. The Commission also found that Goodyear and Atlantic concluded that the most effective merchandising tactic was dual solicitation or so-called “double-teaming.” Goodyear relied heavily on this technique and had urged it on the oil companies in a 1951 letter from its sales-commission program manager. The Commission found that “Goodyear thus appeared confident that the presence of an Atlantic salesman together with the Goodyear representative would render unnecessary any higgling or haggling over price before obtaining an initial order for TBA from Atlantic dealers.” 58 F. T. C., at 355. (Emphasis in original.) Goodyear’s confidence was justified, for as the Commission observed, the annual dealer evaluation by Atlantic salesmen carried substantial weight when the district managers decided upon annual lease extensions, and dealers were therefore understandably susceptible to the encouragement of Goodyear salesmen when Atlantic men were nearby looking over their shoulders. Thus, the Commission was well justified in concluding that Goodyear had in effect purchased a “captive market.” With the preceding discussion in mind, we turn to Goodyear’s relationships with other oil companies. As of December 1964 it had sales-commission agreements with 20 other oil companies. Nine of these contracts were before the Commission in the instant case and were found to be “in all material respects identical with the Goodyear-Atlantic contract.” Id., at 352. They similarly require the companies to assist actively in the “selling and promotion” of Goodyear products. There is specific evidence in the record of the short-term lease agreements used by Shell, Sinclair and Sherwood Bros., three of the companies with which Goodyear has such agreements. Moreover, there was some indication that only three oil companies use three-year leases. Furthermore, there was evidence of practices by at least four oil companies and Goodyear similar to those existing under the Atlantic arrangement. These included threats as well as more subtle pressures. Goodyear complains that there is no evidence of the economic power of many of the companies with which it has sales-commission plans. However, the Commission’s order does not directly restrict the activities of these companies. Goodyear, on the other hand, was before the Commission and was found to be a transgressor. There was substantial evidence of its propensity to use the power structure of Atlantic and at least four other oil companies to further its own distribution program. Nor is it any objection for Goodyear to claim that it did not exert any overt coercive pressures on the oil companies’ outlets. It is of little consequence that Atlantic actually applied the pressure. For so close was the teamwork of the two companies that, even with blinders on, Goodyear could not have been ignorant of those practices. It is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers — an ability adequately demonstrated on this record. Its allowance of these substantial overriding commissions in fact paid off handsomely. Goodyear’s sales under its various sales-commission contracts rose from $16,700,000 in 1961 to $36,000,000 in 1965. The Commission, of course, has “wide discretion in its choice of a remedy deemed adequate to cope with... unlawful practices....” Jacob Siegel Co. v. Federal Trade Comm’n, 327 U. S. 608, 611 (1946). Furthermore, it acts within the limits of its authority when it bars repetitions of similar conduct with other parties. Federal Trade Comm’n v. Henry Broch & Co., 368 U. S. 360, 364 (1962). There was ample evidence establishing on Goodyear’s part a course of conduct lasting over 14 years aimed at utilizing oil company power structures to curtail competition in tires, batteries and accessories. We think that the Commission could appropriately conclude that this course of conduct required forbidding the use of sales-commission plans by Goodyear completely. This order does not necessarily prohibit Goodyear from making contracts, with companies not possessed of economic power over their dealers. The evidence in this particular record, however, does involve relationships such as It has enjoyed with Atlantic and its propensity to use those relationships for an unfair competitive advantage. Goodyear offered no evidence that it has arrangements differing from those mentioned in the instant case. In these circumstances it is sufficient to point out that in the event it has such a contract with such a company it may seek a reopening of the order approved today. The Commission has statutory power to reopen and modify its orders at all times. But Congress has placed in the Commission in the first instance the power to shape the remedy necessary to deal with unfair methods of competition. We will interfere ohly where there is no reasonable relation between the remedy and the violation. Federal Trade Comm’n v. Ruberoid Co., 343 U. S. 470, 473 (1952). On this record we cannot say that the Commission’s remedy is unreasonable and the judgments are therefore Affirmed. Section 5 provides in pertinent part: “(a) (1) Unfair methods of competition in commerce, and unfair... acts or practices in commerce, are declared unlawful “(6) The Commission is empowered and directed to prevent persons, partnerships, or corporations... from using unfair methods of competition in commerce and unfair... acts or practices in commerce. “(b) Whenever the Commission shall have reason to believe that any such person, partnership, or corporation has been or is using any unfair method of competition or unfair... act or practice in commerce, and if it shall appear to the Commission that a proceeding by it in respect thereof would be to the interest of the public, it shall issue and serve upon such person,' partnership, or corporation a complaint stating its charges in that respect and containing a notice of a hearing upon a day and at a place therein fixed- at least thirty days after the service of said complaint.... If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited by [this Act], it shall make a report in writing in which it shall state its findings as to the facts and shall issue and cause to be served on such person, partnership, or corporation an order requiring such person, partnership, or corporation to cease and desist from using such method of competition or such act or practice.... After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require....” Atlantic was ordered to cease and desist from: “1. Entering [into] or continuing in operation or effect any contract, agreement or combination, express or implied, with The Goodyear Tire & Rubber Company, or The Goodyear Tire & Rubber Company, Inc., or with any other rubber company or tire manufacturer, or any other supplier of tires, batteries, and/or accessories, whereby The Atlantic Refining Company receives anything of value in connection with the sale of TBA products to any wholesaler or retailer of Atlantic petroleum products by any marketer or distributor of TBA products other than The Atlantic Refining Company; “2. Accepting or receiving anything of value from any manufacturer, distributor, wholesaler, or other vendor of TBA products, for acting as sales agent or for otherwise sponsoring, recommending, urging, inducing, or promoting the sale of TBA products, directly or indirectly, by any such vendor to any wholesaler or retailer of Atlantic petroleum products; “3. Using or attempting to use any contractual or other device, such as, but not limited to, agreements, leases, training programs, promotions, dealer meetings, dealer discussions, service station identification, credit cards, and financial loans, to sponsor, recommend, urge, induce, or otherwise promote the sale of TBA products by any distributor or marketer of such products other than The Atlantic Refining Company to or through anj- wholesaler or retailer of Atlantic petroleum products; “4. Employing any method of inspecting, reporting, or surveillance or using or attempting to use, in any manner, its relationship with Atlantic outlets to sponsor, recommend, urge, induce, or otherwise promote the sale of any specified brand or brands of TBA products by any distributor or marketer of such products other than The Atlantic Refining Company to any wholesaler or retailer of Atlantic petroleum products; “5. Intimidating or coercing or attempting to intimidate or coerce any wholesaler or retailer of Atlantic petroleum products to purchase any brand or brands of TBA products; “6. Preventing or attempting to prevent any wholesaler or retailer of Atlantic [petroleum] products from purchasing and reselling, merchandising, or displaying TBA products of his own independent choice.” 58 F. T. C., at 369-370. Goodyear was ordered to cease and desist from: 'T. Entering into or continuing in operation or effect any contract, agreement or combination, express or implied with The Atlantic Refining Company or with any other marketing oil company whereby Goodyear, directly or indirectly, pays or contributes anything of value to any such marketing oil company in connection with the sale of TBA products by Goodyear or any distributor of Goodyear products to any wholesaler or retailer of petroleum products of such marketing oil company; “2. Paying, granting or allowing, or offering to pay, grant or allow, anything of value to The Atlantic Refining Company or to any [other] marketing oil company for acting as sales agent or for otherwise sponsoring, recommending, urging, inducing or promoting the sale of TBA products, directly or indirectly, by Goodyear or any distributor of Goodyear

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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REGENTS OF THE UNIVERSITY OF CALIFORNIA v. PUBLIC EMPLOYMENT RELATIONS BOARD et al. No. 86-935. Argued January 12, 1988 Decided April 20, 1988 O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Blackmun, and Scalia, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 603. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 604. Kennedy, J., took no part in the consideration or decision of the case. James N. Odie argued the cause for appellant. With him on the briefs were James E. Holst, Susan M. Thomas, and Kingsley R. Browne. Christopher J. Wright argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Lauber, Anthony J. Steinmeyer, and Charles D. Hawley. Andrea L. Biren argued the cause for appellees and filed a brief for appellee California Public Employment Relations Board. Andrew Thomas Sinclair filed a brief for appellee Wilson. Briefs of amici curiae urging affirmance were filed for the American Federation of State, County, and Municipal Employees, AFL-CIO, by Richard Kirschner; for the American Federation of Teachers by Lawrence A. Poltrock and Gregory N. Freerksen; for the California Faculty Association by Julius Reich and Glenn Rothnerand for the National Educational Association et al. by Robert H. Chanin and Kirsten Zerger. Justice O’Connor delivered the opinion of the Court. This case presents the question whether a state university’s delivery of unstamped letters from a labor union to university employees violates the Private Express Statutes, 18 U. S. C. §§ 1693-1699, 39 U. S. C. §§ 601-606. These statutes establish the postal monopoly and generally prohibit the private carriage of letters over postal routes without the payment of postage to the United States Postal Service. I Appellant Regents govern a large state-owned university with over 100,000 employees. The university (hereafter referred to as appellant) operates an internal mail system to facilitate the delivery of mail to the various sites on its campuses. Appellant’s employees collect mail originating on the campuses from many mail depositories and take it to a central location for sorting. The mail is separated into three groups: (1) mail already bearing United States postage; (2) unstamped internal university mail; and (3) other unstamped mail. Group (1) is delivered to the Postal Service without further handling by appellant. Group (2) is monitored to ensure that it includes only official university mail. Group (3) is examined for any letters addressed to university destinations that come within an exception to the Private Express Statutes and can therefore be delivered by the appellant without postage. Appellant affixes United States postage to the remainder of mail in group (3) and delivers it to the Postal Service, then charges the senders for the costs involved. In late 1979, appellee William H. Wilson, president of appellee Local 371 of the American Federation of State, County, and Municipal Employees (Union), attempted to use appellant’s internal mail system to send unstamped letters from the Union to certain employees of appellant. The Union represented these employees and had filed a request for recognition of a bargaining unit. A subsequent unit determination, however, placed these employees in a different bargaining unit. Brief for Appellee Wilson 2, n. 2. Appellant refused to carry the letters in its internal mail system on the ground that the Private Express Statutes prohibited such carriage. Believing that this refusal violated a state law, the Higher Education Employer-Employee Relations Act (HEERA), Cal. Govt. Code Ann. §§3560-3599 (West 1980), Wilson and the Union filed an unfair labor practice charge with appellee California Public Employment Relations Board (PERB), the state agency charged with interpretation and enforcement of HEERA. Before PERB, appellant argued that the carriage of the Union letters would violate the Private Express Statutes; it relied on an advisory opinion from the United States Postal Service to that effect. Advisory Op., PES No. 82-9 (July 2, 1982), App. to Juris. Statement A66. Wilson and the Union in turn argued that refusal to carry the letters violated HEERA’s requirement that employers grant unions access to their “means of communication.” PERB initially declined to consider the federal law issues pressed by appellant and held that HEERA required delivery of the letters. The California Court of Appeal agreed with PERB’s determination that denial of access violated HEERA, but noted that the HEERA right of access was expressly subject to “reasonable regulations.” 139 Cal. App. 3d 1037, 1041, 189 Cal. Rptr. 298, 300-301 (1983). The court found an unresolved factual issue, namely, whether appellant’s denial of access was a “reasonable regulation” in light of all the surrounding circumstances, including the Private Express Statutes. It therefore remanded the case back to PERB for consideration of this issue. Id., at 1042, 189 Cal. Rptr., at 301. On remand, PERB found this HEERA requirement to be consistent with federal law because it determined that the carriage involved was within two different exceptions to the Private Express Statutes, namely the “letters-of-the-carrier” exception, 18 U. S. C. § 1694; 39 CFR § 310.3(b) (1987), and the “private-hands” exception, 18 U. S. C. § 1696(c); 39 CFR § 310.3(c) (1987). The California Court of Appeal affirmed. 182 Cal. App. 3d 71, 227 Cal. Rptr. 57 (1986). The court concluded that the “letters-of-the-carrier” exception permitted the delivery of the Union’s letters through appellant’s internal mail system. In light of this conclusion, the court declined to address the “private-hands” exception. Id., at 77, 227 Cal. Rptr., at 60. The California Supreme Court denied appellant’s petition for review. App. to Juris. Statement A-13. We noted probable jurisdiction, 483 U. S. 1004 (1987), and now reverse. II Congress enacted the Private Express Statutes pursuant to its constitutional authority to establish “Post Offices and post roads,” U. S. Const., Art. I, § 8, cl. 7. In general these statutes establish the United States Postal Service as a monopoly by prohibiting others from carrying letters over postal routes. A postal monopoly has prevailed in this country since the Articles of Confederation, see Act of Oct. 18, 1782, 23 J. Continental Cong. 672-673 (G. Hunt ed. 1914), and Congress embraced the concept in its first postal law, see Act of Feb. 20, 1792, ch. 7, § 14, 1 Stat. 236. Because Congress desires “prompt, reliable, and efficient services to [postal] patrons in all areas,” 39 U. S. C. § 101(a) (emphasis added), it has enacted the Private Express Statutes and has provided for nationwide delivery of mail at uniform rates. There is no doubt that the general prohibition would apply to the carriage involved here, see 18 U. S. C. §§ 1693, 1694, so the central issue is whether such carriage is within one of the numerous exceptions to the Private Express Statutes. Appellees urge that both the “letters-of-the-carrier” and “private-hands” exceptions apply. We consider each in turn. A The letters-of-the-carrier exception is founded on the portion of 18 U. S. C. § 1694 italicized below: “Whoever . . . carries, otherwise than in the mail, any letters or packets, except such as relate . . .'to the current business of the carrier . . . shall, except as otherwise provided by law, be fined not more than $50.” (Emphasis added.) It is this exception that allows appellant to operate an internal mail system at all. To fall within the exception, the face of the statute requires that the letters “relate” to the “current business” of the carrier. Precisely what constitutes a carrier’s “current business” is not further described. The ordinary sweep of the term, however, falls far short of encompassing the letters involved in this case. The letters relate to the Union’s efforts to organize certain of appellant’s employees into a bargaining unit. This is a subject in which appellant certainly is interested, but it is also a subject which can be accurately described only as the Union’s current business, not appellant’s. It strains the statutory language to contend that the phrase “current business” includes such activity. Appellees argue that California has through HEERA made harmonious labor relations the business of its state universities, and thus in a sense the Union’s business is the university’s business. Cf. Cal. Govt. Code Ann. § 3560(a) (West 1980) (“fundamental interest in the development of harmonious and cooperative labor relations”). To be sure, a State generally is free to define the nature of its institutions and the scope of their activities as it sees fit. But this principle must have some limits in this context for, otherwise, a State could define delivery of mail to all its citizens as the “current business” of some state agency and thereby defeat the postal monopoly. Appellees are urging far too expansive a reading of the statute. We rely on the normal meaning of the language chosen by Congress and conclude that the letters-of-the-carrier exception does not permit appellant to carry the Union’s letters. The legislative history confirms our reading of the statutory language, making clear that the exception is a narrow one. Congress added the letters-of-the-carrier exception to the Private Express Statutes in 1909. Until that time, the prohibition on private carriage was unqualified. The new exception responded to an Opinion of the Attorney General rendered in 1896. 21 Op. Atty. Gen. 394, 397-399. That opinion concerned a Postal Department regulation that allowed railroads to carry their own mail. The Attorney General said that the regulation was valid because two conditions were present. First, the letters were related to the carrier’s business. Second, the letters were “letters sent by or addressed to the carrying company, or on its behalf.” Id., at 400. The Attorney General concluded that without the second condition, the implied exception would be too broad. Congress generally approved of the Attorney General’s decision, but some Members found the exception difficult to square with the express, unqualified language of the statute. See 42 Cong. Rec. 1901-1905 (1908). Therefore a movement began to amend the statute to include the present exception for letters that relate to “the current business of the carrier.” Id., at 1976. See Act of Mar. 4, 1909, ch. 321, § 184, 35 Stat. 1124. Senator Sutherland, the sponsor of the specific amendment, explained its intent: “I move that amendment because I think that it puts in express language precisely what the section means as it stands without it ... . I think the opinion of the Attorney-General . . . gives the correct construction to this section. The section is dealing with the carrying of mail for others. It is not dealing with the question of the carrying of the mail for the carrier itself.” 42 Cong. Rec. 1976 (1908). The House Report reflected a similar intent that the amendment put the statute “in exact conformity with the construction placed upon existing law.” 43 Cong. Rec. 3790 (1909) (referring to 21 Op. Atty. Gen. 394 (1896)). This history suggests an intention to codify the Attorney General’s construction. That construction includes a requirement that the letters be “sent by or addressed to the carrying company, or on its behalf,” to qualify for the letters-of-the-carrier exception. 21 Op. Atty. Gen., at 400. See also 29 Op. Atty. Gen. 418, 419 (1912) (“Congress has imposed two conditions upon the free transportation of letters outside the mail: First, that the letters should be the letters of the carrier itself; and second, that they should relate to its own current business”); 28 Op. Atty. Gen. 537 (1910). Our only previous decision concerning the letters-of-the-carrier exception, United States v. Erie R. Co., 235 U. S. 513 (1915), is consistent with a narrow view of the statutory language. Erie involved carriage by a railroad of letters concerning a joint venture between the railroad and a telegraph company. The Court simply held that the “business of the carrier” included the business of the joint enterprise. Erie therefore sheds no light on the proper construction of the statute in this quite different context. Moreover, the specific letters involved in Erie fall within our view of the proper scope of the statute. They were written by an employee of the railroad in his official capacity and addressed to other employees in their capacities as representatives of the railroad. Particularly in light of the clarifying legislative history, we conclude that the letters-of-the-carrier exception is far narrower than appellees would have it. Cf. Tanner v. United States, 483 U. S. 107, 125 (1987); Dixson v. United States, 465 U. S. 482, 491-496 (1984). Whether or not it can be read to include a requirement that the letters be written by or addressed to the carrier, a question we need not reach, it is at least limited to “business of the carrier” that is closer to the carrier’s own affairs than the letters involved here. The alleged “business” in this case is not close enough to appellant’s affairs to be the natural subject of letters concerning appellant’s “current business.” Accordingly, we hold that the letters-of-the-carrier exception does not permit appellant to carry the Union’s letters. B The private-hands exception derives from 18 U. S. C. § 1696(c): “This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation.” From its inception, the monopoly granted the Postal Service had always been limited to the carriage of mail “for hire.” See Act of Oct. 18, 1782, 23 J. Continental Cong. 670, 672-673 (G. Hunt ed. 1914); Act of Feb. 20, 1792, ch. 7, § 14, 1 Stat. 236. The private-hands exception is a reflection of the limited nature of the monopoly; it was designed to ensure that private carriage is not undertaken “for hire or reward.” Ibid. While the limited nature of the postal monopoly always implied that private, gratuitous carriage was excepted from the prohibitions of the Private Express Statutes, Congress made the exception express in 1845, at a time when it was greatly concerned with the dwindling revenues of the Postal Service. See S. Rep. No. 137, 28th Cong., 1st Sess., 1, 10 (1844); H. R. Rep. No. 477, 28th Cong., 1st Sess., 1 (1844). To increase postal revenues, Congress lowered prices and limited franking privileges. Congress also sought to boost revenues by eliminating competition. Therefore, it strengthened the general prohibition on private carriage, intending to “put an end to all interference with the revenues of the department” from that source. S. Rep. No. 137, supra, at 10. Against this backdrop, Congress developed a narrow exception for carriage by “private hands,” crafting the exception in such a way as to permit only gratuitous carriage undertaken out of friendship, not pursuant to a business relationship. H. R. Rep. No. 477, supra, at 4 (“Penalties are provided . . . with exceptions in favor of the party . . . who conveys the letter out of neighborly kindness, without fee or reward”). Congress used unambiguous language to accomplish its goals. Persons or entities other than the United States Postal Service — i. e., “private hands” — may carry letters without violating the Private Express Statutes only so long as they do not receive any form of benefit from the sender— i. e., “without compensation.” While the pivotal term, “compensation,” is not further defined, Congress in no way qualified its reach. We therefore give effect to congressional intent by giving the language its normal meaning. A dictionary from the period during which the private-hands exception was enacted illustrates the general nature of the term; it defines compensation to include “that which supplies the place of something else” and “that which is given or received as an equivalent for services, debt, want, loss, or suffering.” N. Webster, An American Dictionary of the English Language 235 (C. Goodrich ed. 1849). Accordingly, we hold that the private-hands exception is available only when there is no compensation of any kind flowing from the sender to the carrier. A business relationship between the two parties may render the exception unavailable, because acts undertaken in the course of such a relationship may involve an exchange of benefits or a quid pro quo. Congress understood this point. Early in the debates on the 1909 amendments to the Private Express Statutes, which added the letters-of-the-carrier exception, Senator Sutherland expressed concern that adding such an exception would permit railroads to agree to carry mail for each other. He was concerned that by undertaking such carriage pursuant to “some common understanding,” the railroads “would not be carrying for compensation.” Senator McLaurin, one of the supporters of amendment, responded: “[A]n arrangement of that kind . . . would itself be for compensation. It would be a quid pro quo and it would violate the law.” Senator Sutherland evidently accepted this view for, as noted above, he sponsored the actual amendment that became the letters-of-the-carrier exception. The construction Congress placed on the private-hands exception is perhaps best summarized through Senator McLaurin’s statement that an exception for carriage without compensation was intended solely to permit “an innocent man ... to do a favor to some[one].” 42 Cong. Rec. 1905 (1908). A business relationship ordinarily converts such “favors” at the very least into implicit attempts to further the business relationship. The private-hands exception consistently has been interpreted as not authorizing carriage pursuant to a business relationship. Thus, “compensation” has been read to encompass the nonmonetary consideration that is implicit in a business relationship. United States v. Thompson, 28 F. Cas. 97 (No. 16,489) (DC Mass. 1846). Thompson involved the prosecution of the proprietor of a delivery service for carrying letters along with other merchandise. The defendant argued that he carried letters only in connection with delivery of other merchandise and that he received no additional compensation for carrying the letters with the merchandise. In essence, the defendant contended that he carried the letters only as a gesture of good will. The court rejected this argument, holding that the statute did not permit the carriage of letters “as a part of his business of a merchandise express, although no charge was made for letters as such. ” Id., at 98. The Attorney General took a similar view of the exception’s scope when he opined that railroads could not agree to carry each other’s mail, because the “express or implied obligation of railroads to carry letters for each other . . . would amount to ‘compensation’ within the meaning of the statute.” 21 Op. Atty. Gen., at 401. Applying this well-established construction to the situation at hand, we conclude that appellant’s carriage of the Union’s letters would not be “without compensation.” Appellees initially argue that there would be no compensation because the Union would not pay appellant specifically to carry the letters. This obviously gives far too restrictive a reading to the term “compensation.” That term includes indirect as well as direct compensation. If we read the exception to include any private carriage so long as no direct payment is made, it quickly would swallow the rule; senders and carriers could manipulate their relationships to avoid direct compensation and thereby evade the Private Express Statutes. Appellees also argue that compensation would be lacking because appellant merely would perform a mandatory duty imposed by state law. This lack of legal consideration, appellees argue, demonstrates that the carriage is not part of any business relationship. As a matter of general contract law, it may be true that performance of a legal duty cannot constitute legal consideration. Common-law notions of consideration, however, do not control the interpretation of this statute. Congress, after all, used the generic term “compensation,” which can include less direct exchanges of benefits. Here there is an arm’s-length business relationship between the Union and the employees on the one side and appellant on the other. By delivering the Union’s letters, appellant would perform a service for its employees that they would otherwise pay for themselves, through their union dues. This service would become part of the package of monetary and nonmonetary benefits that appellant provides to its employees in exchange for their services. In our view, carriage of the Union’s letters pursuant to such an exchange of benefits necessarily means that the carriage is not “without compensation.” Accordingly, it does not fall within the private-hands exception. C The parties and the United States as amicus curiae have focused their arguments largely on Postal Service regulations construing the letters-of-the-carrier and the private-hands exceptions. With respect to the letters-of-the-carrier exception, the Postal Service has consistently read the'statute to require that the letters be written by or addressed to the carrier. Even before the Service issued formal regulations, it espoused this view in periodic pamphlets it published describing the reach of the Private Express Statutes. See, e. g., United States Post Office Dept., Restrictions on Transportation of Letters 16-17 (4th ed. 1952). When it issued formal regulations, the Postal Service included the requirement that the letters be the carrier’s own: “The sending or carrying of letters is permissible if they are sent by or addressed to the person carrying them. If the individual actually carrying the letters is not the person sending the letters or to whom the letters are addressed, then such individual must be an officer or employee of such person (see [39 CFR] § 310.3(b)(2)) and the letters must relate to the current business of such person.” 39 CFR § 310.3(b) (1987). The Postal Service’s regulations also read “compensation” for purposes of the private-hands exception in a way consistent with our evaluation of the term. They describe the exception’s scope as follows: “The sending or carrying of letters without compensation is permitted. Compensation generally consists of a monetary payment for services rendered. Compensation may also consist, however, of non-monetary valuable consideration and of good will. Thus, for example, when a business relationship exists or is sought between the carrier and its user, carriage by the carrier of the user’s letter will ordinarily not fall under this exception.” § 310.3(c). Appellant and the United States have urged us to defer to these agency constructions of the statute. While they reach a different conclusion as to the proper application, appellees specifically indicated at oral argument that they were not challenging the validity of the regulations. Tr. of Oral Arg. 33. Because we have been able to ascertain Congress’ clear intent based on our analysis of the statutes and their legislative history, we need not address the issue of deference to the agency. Ill The California Court of Appeal incorrectly concluded that the carriage of letters involved in this case was within an exception to the Private Express Statutes. Properly construed, neither of the statutory exceptions proffered by appellees —the letters-of-the-carrier exception and the private-hands exception — permits appellant to carry the Union’s letters in its internal mail system. Accordingly, the judgment of the California Court of Appeal is Reversed. Justice Kennedy took no part in the consideration or decision of this case. - The Postal Service is authorized to suspend the operation of the Private Express Statutes when required by the “public interest,” 39 U. S. C. § 601(b). In this case, PERB also found that the Postal Service’s “suspension” for letters of “bona fide student or faculty organizations,” 39 CFR § 320.4 (1987), applied to the letters involved here and therefore permitted their carriage by appellant. The California Court of Appeal did not address this ground and PERB has expressly declined to press it before this Court. Brief for Appellee PERB 16, n. 9. Accordingly, we do not consider the applicability of the suspension. Contrary to the suggestion in the dissent, post, at 611-612, n. 5, this qualified statement obviously does not purport to render the private-hands exception automatically inapplicable whenever a business relationship exists. Rather, it simply indicates that a business relationship ordinarily suggests that the carriage is not without compensation. Cf. 39 CFR § 310.3(e) (1987).

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?

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

ARKANSAS ELECTRIC COOPERATIVE CORP. v. ARKANSAS PUBLIC SERVICE COMMISSION No. 81-731. Argued January 17, 1983 Decided May 16, 1983 Brennan, J., delivered the opinion of the Court, in which Marshall, Blackmun, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. White, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 396. Robert D. Cabe argued the cause for appellant. With him on the brief was Leland F. Leatherman. Jeff Broadwater argued the cause for appellee. With him on the brief was Robert H. Wood, Jr. Wallace F. Tillman filed a brief for the National Rural Electric Cooperative Association as amicus curiae urging reversal. Paul Rodgers filed a brief for the National Association of Regulatory Utility Commissioners as amicus curiae urging affirmance. Justice Brennan delivered the opinion of the Court. This appeal requires us to decide whether the Arkansas Public Service Commission (PSC) acted contrary to the Commerce Clause or the Supremacy Clause of the Constitution when it asserted regulatory jurisdiction over the wholesale rates charged by the Arkansas Electric Cooperative Corporation (AECC) to its member retail distributors, all of whom are located within the State. The Arkansas Supreme Court upheld the PSC’s assertion of jurisdiction. We affirm. I Maintaining the proper balance between federal and state authority in the regulation of electric and other energy utilities has long been a serious challenge to both judicial and congressional wisdom. On the one hand, the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States. See Munn v. Illinois, 94 U. S. 113 (1877). On the other hand, the production and transmission of energy is an activity particularly likely to affect more than one State, and its effect on interstate commerce is often significant enough that uncontrolled regulation by the States can patently interfere with broader national interests. See FERC v. Mississippi, 456 U. S. 742, 755-757 (1982); New England Power Co. v. New Hampshire, 455 U. S. 331, 339 (1982). This dilemma came into sharp focus for this Court early in this century in a series of cases construing the restrictions imposed by the Commerce Clause on state regulation of the sale of natural gas. Our solution was to fashion a bright line dividing permissible from impermissible state regulation. See Missouri v. Kansas Gas Co., 265 U. S. 298, 309 (1924); Public Utilities Comm’n for Kan. v. Landon, 249 U. S. 236 (1919); cf. Pennsylvania Gas Co. v. Public Service Comm’n of N. Y., 252 U. S. 23 (1920). Simply put, the doctrine of these cases was that the retail sale of gas was subject to state regulation, “even though the gas be brought from another State and drawn for distribution directly from interstate mains; and this is so whether the local distribution be made by the transporting company or by independent distributing companies,” Missouri v. Kansas Gas Co., supra, at 309, but that the wholesale sale of gas in interstate commerce was not subject to state regulation even though some of the gas being sold was produced within the State. Our rationale was that “[transportation of gas from one State to another is interstate commerce; and the sale and delivery of it to the local distributing companies is a part of such commerce,” 265 U. S., at 307, but that “[w]ith the delivery of the gas to the distributing companies... the interstate movement ends” and the further “effect on interstate commerce, if there be any, is indirect and incidental,” id., at 308. See also, e. g., State Corporation Comm’n v. Wichita Gas Co., 290 U. S. 561, 563-564 (1934); East Ohio Gas Co. v. Tax Comm’n of Ohio, 283 U. S. 465, 470-471 (1931). The wholesale/retail line drawn in Landon and Kansas Gas was applied to electric utilities in Public Utilities Comm’n of R. I. v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927). Attleboro involved an attempt by the Rhode Island Public Utilities Commission to regulate the rates at which the Narragansett Electric Lighting Co. — a Rhode Island utility— could sell electric current to a Massachusetts distributor. We struck down the regulation, holding that, because it involved a transaction at wholesale, it imposed a “direct” rather than an “indirect” burden on interstate commerce. In doing so we held that it was immaterial “that the general business of the Narragansett Company appears to be chiefly local,” id., at 90, or that the State Commission grounded its assertion of jurisdiction on the need to facilitate the regulation of the company’s retail sales to its Rhode Island customers. As a direct result of Attleboro and its predecessor cases, Congress undertook to establish federal regulation over most of the wholesale transactions of electric and gas utilities engaged in interstate commerce, and created the Federal Power Commission (FPC) (now the Federal Energy Regulatory Commission) (FERC) to carry out that task. See Federal Power Act of 1935 (Title II of the Public Utility Act of 1935), 49 Stat. 838-863; Natural Gas Act of 1938, 52 Stat. 821. Although the main purpose of this legislation was to “ ‘fill the gap’ ” created by Attleboro and its predecessors, see New England Power Co. v. New Hampshire, supra, at 340; United States v. Public Utilities Comm’n of California, 345 U. S. 295, 311 (1953), it nevertheless shifted this Court’s main focus — in determining the permissible scope of state regulation of utilities — from the constitutional issues that concerned us in Attleboro to analyses of legislative intent. For example, in Illinois Gas Co. v. Public Service Co., 314 U. S. 498 (1942), we were required to determine whether the sale of natural gas by an Illinois pipeline corporation to local distributors in Illinois was subject to the jurisdiction of the Federal Power Commission or the Illinois Commerce Commission. We began our analysis by describing the wholesale/retail test drawn in Landon, Kansas Gas, Attleboro, and other cases. We then noted another line of cases — relating to both utility regulation and other Commerce Clause issues — in which the Court was “less concerned to find a point in time and space where the interstate commerce... ends and intrastate commerce begins, and... looked [instead] to the nature of the state regulation involved, the objective of the state, and the effect of the regulation upon the national interest in the commerce.” 314 U. S., at 505. We stated: “In the absence of any controlling act of Congress, we should now be faced with the question whether the interest of the state in the present regulation of the sale and distribution of gas transported into the state, balanced against the effect of such control on the commerce in its national aspect, is a more reliable touchstone for ascertaining state power than the mechanical distinctions on which appellee relies.” Id., at 506. We concluded, however, that we were “under no necessity of making that choice here,” ibid., for Congress, partly to avoid “drawing the precise line between state and federal power by the litigation of particular cases,” id., at 507, had adopted the “mechanical” line established in Kansas Gas and Attleboro as the statutory line dividing federal and state jurisdiction. The analysis in Illinois Gas was reaffirmed in subsequent cases and extended to similar jurisdictional disputes arising under the Federal Power Act. See, e. g., Panhandle Eastern Pipe Line Co. v. Public Service Comm’n of lnd., 332 U. S. 507, 517 (1947) (“The line of the statute was... clear and complete. It cut sharply and cleanly between sales for resale and direct sales for consumptive uses”); United States v. Public Utilities Comm’n of California, supra, at 308 (“Congress interpreted [Attleboro] as prohibiting state control of wholesale rates in interstate commerce for resale, and so armed the Federal Power Commission with precisely that power”) (footnote omitted); FPC v. Southern California Edison Co., 376 U. S. 205 (1964). The last of these cases is particularly noteworthy for our purposes here, for it held, among other things, that under the Attleboro test, a California utility that received some of its power from out-of-state was subject to federal and not state regulation in its sales of electricity to a California municipality that resold the bulk of the power to others. See also FPC v. Florida Power & Light Co., 404 U. S. 453 (1972). II AECC is one of a large number of customer-owned rural power cooperatives established with loan funds and technical assistance provided by the federal Rural Electrification Administration (REA) in order to bring electric power to parts of the country not adequately served by commercial utility companies. See generally Rural Electrification Act of 1936, 49 Stat. 1363, 7 U. S. C. §901 et seq. (1976 ed. and Supp. V). Unlike most rural power cooperatives, however, AECC does not provide power directly to individual consumers. Rather, its sole members and primary customers are 17 smaller Arkansas rural power cooperatives who in turn serve the ultimate consumer. AECC is governed by a Board of Directors consisting of 34 persons, 2 designated by each of the 17 member cooperatives. Among the duties of this Board is to determine the rates charged the member cooperatives by AECC. AECC obtains most of its energy from a number of power-plants located in Arkansas, which it wholly or partially owns. Moreover, it sells most of what it generates to its member cooperatives. Like most electric utilities, however, AECC also participates in a variety of sale and exchange arrangements with other producers, buying power when its own need or the excess capacity of other utilities is high, and selling it when the opposite is the case. By virtue of these arrangements, AECC is ultimately tied into a multicompany and multistate “grid,” and, electricity being what it is, see FPC v. Florida Power & Light Co., supra, it is difficult to say with any confidence that the power AECC provides to its member cooperatives at any particular moment originated entirely within the State. The retail rates charged by AECC’s member cooperatives are regulated by the Arkansas PSC. If AECC were not a rural power cooperative, the wholesale rates it charges to its members would, under the scheme we described in Part I, supra, be subject exclusively to federal regulation. See § 201(b) of the Federal Power Act, 49 Stat. 838, 847, as amended, 16 U. S. C. § 824(b) (1976 ed., Supp. V); FPC v. Southern California Edison Co., supra; FPC v. Florida Power & Light Co., supra. In 1967, however, the FPC held that it had no jurisdiction under the Federal Power Act to regulate wholesale rates charged by rural power cooperatives under the supervision of the REA. Dairyland Power Cooperative, 37 F. P. C. 12, 67 P. U. R. 3d 340. Thus, until the proceedings that culminated in this case, the rates charged by AECC to its member cooperatives were not subject, at either the federal or the state level, to the type of pervasive rate regulation almost universally associated with electric utilities in this country. In 1979, after public hearings, the Arkansas PSC entered an order asserting jurisdiction over the rates charged by AECC to its member cooperatives. The PSC based its decision on the same Arkansas statutes that authorize its regulation of rural power cooperatives engaged in retail sales of electricity. App. 52-53; see Ark. Stat. Ann: §§73-201(a), 73-202(a), 73-202.1 (1979). In response to objections raised by AECC, the PSC held that state regulation was neither forbidden by Attleboro or FPC v. Southern California Edison Co., supra, nor pre-empted by the Federal Power Act or the Rural Electrification Act. On review, the Pulaski County Circuit Court set aside the PSC’s order, but the Arkansas Supreme Court reversed and upheld the jurisdiction of the PSC. 273 Ark. 170, 618 S. W. 2d 151 (1981). We noted probable jurisdiction. 457 U. S. 1130 (1982). In its brief on the merits, AECC presses both the Commerce Clause and the pre-emption arguments rejected by the Arkansas PSC. We consider the statutory argument first. I — < h-Í The basic principles governing the pre-emption of state regulation by federal law are well known. See Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 (1982); Jones v. Rath Packing Co., 430 U. S. 519, 525-526 (1977). In this case, we are concerned with the possible preemptive effects of two federal statutes and administrative acts taken pursuant to them: the Federal Power Act and the Rural Electrification Act. A As we discuss supra, at 381-382, the FPC determined in 1967 that it did not have jurisdiction under the Federal Power Act over the wholesale rates charged by rural power cooperatives. That does not dispose of the possibility that the Federal Power Act pre-empts state regulation, however, because a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left tmregulated, and in that event would have as much pre-emptive force as a decision to regulate. See NLRB v. Nash-Finch Co., 404 U. S. 138, 144 (1971); cf. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, supra, at 155. In this case, however, nothing in the language, history, or policy of the Federal Power Act suggests such a conclusion. Congress’ purpose in 1935 was to fill a regulatory gap, not to perpetuate one. Moreover, the FPC’s refusal in 1967 to assert jurisdiction over rural power cooperatives does not suggest anything to the contrary. In that decision, the FPC simply held that, purely as a jurisdictional matter, the relevant statutes gave the REA exclusive authority among federal agencies to regulate rural power cooperatives. Dairy land Power Cooperative, 37 F. P. C., at 26, 67 P. U. R. 3d, at 352-354. It did not determine that, as a matter of policy, rural power cooperatives that are engaged in sales for resale should be left unregulated. Indeed, the FPC’s published opinion concluded by specifically urging Congress to amend the statute and grant it jurisdiction over at least some of the activities of such utilities. Id., at 28, 67 P. U. R. 3d, at 355. We therefore find no bar to the PSC’s assertion of jurisdiction either in the Federal Power Act itself or in the FPC’s Dairyland decision. B We turn then to the REA. Nothing in the Rural Electrification Act expressly pre-empts state rate regulation of power cooperatives financed by the REA. Nevertheless, AECC and certain of the amici, including the United States, argue that the PSC’s assertion of jurisdiction interferes with the REA’s pervasive involvement in the management of the rural power cooperatives to which it loans funds, and may frustrate important federal interests. As the United States expresses this position in its brief: “The terms and conditions of a loan to a generation and transmission association [such as AECC] require the borrower’s rates and rate structure to be approved by the REA, not just at its inception, but throughout the term of the loan. And in passing on rate questions, the REA considers, not only the security thus afforded for payment of the loan, but also the suitability of the rates and structure to the Act’s underlying purpose of facilitating the availability of cheap electric power in rural America. “The spectre of state regulation poses a threat to the REA loan because of the possibility that the state may refuse to permit its cooperatives to pay a generation and transmission association the rates to which they agreed and upon the security of which the loan was issued. Moreover, the policy behind the Rural Electrification Act is at stake.... [T]he REA has always encouraged its borrowers to establish affordable rates for all of its subscribers. In this way, costs are shared in a manner which, over the long run, benefits all by the creation of a sound, extensive rural electric system. If the state were to insist on a restructuring of the generation and transmission association’s rate structure, the policies of the Act would be undermined.” Brief for United States as Amicus Curiae 12-13. As the United States and AECC admit, the REA is a lending agency rather than a classic public utility regulatory body in the mold of either FERC or the Arkansas PSC. This case might therefore present the interesting question of how we should in general define the proper relationship between the requirements established by federal lending agencies and the more direct regulatory activities of state authorities. We need not examine the issue at that level of abstraction, however, because we have quite specific indications of congressional and administrative intent on precisely the question before us. Cf. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S., at 159, n. 14. First, the legislative history of the Rural Electrification Act makes abundantly clear that, although the REA was expected to play a role in assisting the fledgling rural power cooperatives in setting their rate structures, it would do so within the constraints of existing state regulatory schemes. See, e. g., 80 Cong. Rec. 5316 (1936) (Rep. Lea); Hearing on S. 3483 before the House Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 30, 37, 51, 52 (1936). Admittedly, the legislative record focuses on retail rates charged by rural power cooperatives, but with respect to the particular concerns that AECC and amici have pressed in support of pre-emption, we can discern no relevant difference between wholesale and retail rates: both types of rates implicate the Government’s interest in securing its loans, and, if anything, retail rates more directly implicate the Government’s interest in assuring that individual rural households receive electricity at a reasonable price. Second, the present published policy of the REA is wholly inconsistent with pre-emption of state regulatory jurisdiction. Although generating cooperatives dealing with the REA must obtain the agency’s approval whenever they modify their wholesale rates, the same document setting out guidelines for what constitute proper wholesale rates also states: “Borrowers must, of course, submit proposed rate changes to any regulatory commissions having jurisdiction and must seek approval in the manner prescribed by those commissions.” REA Bulletin 111-4, pp. 1-2 (1972). Since Bulletin 111-4 was issued subsequent to the FPC’s decision in Dairyland, the “regulatory commissions having jurisdiction” to which it refers can only be state regulatory agencies such as the Arkansas PSC. Moreover, it is worth noting that the REA’s supervision of wholesale rates charged by its borrowers appears to be no more exclusive than its supervision over their retail rates, REA Bulletin 112-2 (1971); REA Bulletin 112-1, pp. 1, 16 (1979), and it has never been contended that state regulatory jurisdiction over those rates is pre-empted, see REA Bulletin 112-2, at 5; Brief for United States as Amicus Curiae 11. There may come a time when the REA changes its present policy, and announces that state rate regulation of rural power cooperatives is inconsistent with federal policy. If that were to happen, and if such a rule was valid under the Rural Electrification Act, it would of course pre-empt any further exercise of jurisdiction by the Arkansas PSC. See Ray v. Atlantic Richfield Co., 435 U. S. 151, 171-172 (1978); cf. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S., at 154; Free v. Bland, 369 U. S. 663, 668 (1962). Similarly, as Arkansas already recognizes, see Ark. Stat. Ann. §73-202.3 (1979), the PSC can make no regulation affecting rural power cooperatives which conflicts with particular regulations promulgated by the REA. Moreover, even without an explicit statement from the REA, a particular rate set by the Arkansas PSC may so seriously compromise important federal interests, including the ability of the AECC to repay its loans, as to b,e implicitly pre-empted by the Rural Electrification Act. See Jones v. Rath Packing Co., 430 U. S., at 525-526, 540-543; cf. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 231-232 (1947). We will not, however, in this facial challenge to the PSC’s mere assertion of jurisdiction, assume that such a hypothetical event is so likely to occur as to preclude the setting of any rates at all. Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 130-131 (1978). See generally Merrill Lynch, Pierce, Fenner & Smith v. Ware, Inc., 414 U. S. 117, 136-140 (1973). IV A Even in the absence of congressional legislation, “the Commerce Clause contains an implied limitation on the power of the States to interfere with or impose burdens on interstate commerce.” Western & Southern Life Insurance Co. v. Board of Equalization, 451 U. S. 648, 652 (1981) (footnote omitted). If the constitutional rule articulated in Attleboro were applied in this case, it would require setting aside the PSC’s assertion of jurisdiction over AECC, since AECC, like the utility in Attleboro, sells at wholesale electric energy transmitted in interstate commerce. As we pointed out in Illinois Gas, however, see supra, at 379-380, it is difficult to square the mechanical line drawn in Attleboro and its predecessor cases, and based on a supposedly precise division between “direct” and “indirect” effects on interstate commerce, with the general trend in our modern Commerce Clause jurisprudence to look in every case to “the nature of the state regulation involved, the objective of the state, and the effect of the regulation upon the national interest in the commerce.” 314 U. S., at 505. Cf. Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). This modern jurisprudence has usually, although not always, given more latitude to state regulation than the more categorical approach of which Attleboro is one example. But in any event, it recognizes, as Attleboro did not, that there is an “infinite variety of cases, in which regulation of local matters may also operate as a regulation of [interstate] commerce, [and] in which reconciliation of the conflicting claims of state and national power is to be attained only by some appraisal and accommodation of the competing demands of the state and national interests involved.” Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 768-769 (1945). See Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 (1981); Pike v. Bruce Church, Inc., supra, at 142; Parker v. Brown, 317 U. S. 341, 362-363 (1943). We are faced, then, in this case, with precisely the question left open in Illinois Gas: Do we follow the mechanical test set out in Attleboro, or the balance-of-interests test applied in our Commerce Clause cases for roughly the past 45 years? Of course, the principle of stare decisis counsels us, here as elsewhere, not lightly to set aside specific guidance of the sort we find in Attleboro. Nevertheless, the same respect for the rule of law that requires us to seek consistency over time also requires us, if with somewhat more caution and deliberation, to seek consistency in the interpretation of an area of law at any given time. Thus, in recent years, this Court has explicitly abandoned a series of formalistic distinctions — akin to the one in Attleboro — which once both defined and controlled various corners of Commerce Clause doctrine. See, e. g., Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981) (abandoning rule that constitutionality of state severance tax depended on whether it was imposed on goods prior to their entry into interstate commerce); Hughes v. Oklahoma, 441 U. S. 322 (1979) (rejecting rule, based on legal fiction of ownership, that States had absolute control over disposition of wild animals within their borders); Washington Revenue Dept. v. Association of Washington Stevedoring Cos., 435 U. S. 734 (1978) (rejecting rule that tax on stevedoring automatically constituted an impermissible “direct” tax on interstate commerce); cf. Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976) (overruling “original package” rule in Import-Export Clause doctrine). The wholesale/retail line drawn in Attleboro is no less anachronistic than the rules we rejected in the cited cases. Moreover, we have had no occasion, since the 1930’s, either to apply that line or to reject it in a case not governed by statute. The difficulty of harmonizing Attleboro with modern Commerce Clause doctrine has been apparent for a long time, so much so that we expressed skepticism about its continuing soundness as a constitutional, rather than statutory, rule in Illinois Gas. Our constitutional review of state utility regulation in related contexts has not treated it as a special province insulated from our general Commerce Clause jurisprudence. See New England Power Co. v. New Hampshire, 455 U. S. 331 (1982); Panhandle Eastern Pipe Line Co. v. Michigan Public Service Comm’n, 341 U. S. 329, 336-337 (1951). Finally, we can see no strong reliance interests that would be threatened by our rejection today of the mechanical line drawn in Attleboro. Therefore, here, as in few other contexts, the burden shifts somewhat to the party defending the rule to show why it should be applied in this case. AECC makes essentially two arguments, in the course of its brief and oral argument, for why Attleboro should govern here. First, it contends that the constitutional import of the Attleboro line was reaffirmed in FPC v. Southern California Edison Co., 376 U. S. 205, which was decided in 1964. This claim is simply wrong. Southern California Edison Co. did no more than interpret the Federal Power Act, and it cited with approval the constitutional agnosticism spelled out at length in Illinois Gas. See 376 U. S., at 214. Second, AECC argues that, although “[t]he Attleboro line of cases established an admittedly mechanical test for determining the limitation of state power,... the court arrived at that test by careful consideration of what was national importance as opposed to what was essentially local and could be, therefore, regulated by the states,” Tr. of Oral Arg. 11, and that nothing that has happened since has changed that implicit balance. This contention is also unpersuasive. Even if we assume — as is not necessarily the case, see supra, at 390 — that the underlying substantive concerns motivating the Court to strike down the state regulation in Attleboro were identical to the considerations articulated in our more recent cases, that in itself does not explain why the bright-line test drawn in Attleboro should be applied to the somewhat different set of facts present here, see n. 16, supra. Bright lines are important and necessary in many areas of the law, including constitutional law. Moreover, Southern California Edison Co. and other cases have made it clear that the Federal Power Act draws a bright line between the respective jurisdictions of federal and state regulatory agencies. Nevertheless, AECC has given us no good reason why a bright line between state regulation and unexercised federal power is more justifiable here than in other contexts in which we must interpret the negative implications of the Commerce Clause. Attleboro and its predecessors are by no means judicial atrocities, plainly wrong at the time they were decided. In the first place, it is not entirely insignificant, quite apart from the sort of statutory analysis in which we engaged in Part III, supra, that those cases were decided in a day before Congress had already spoken with some breadth on the subject of utility regulation. Cf. Duckworth v. Arkansas, 314 U. S. 390, 400 (1941) (Jackson, J., concurring in result). This Court was in 1927 the sole authority safeguarding federal interests over a wide range of state utility regulation. Under those circumstances, drawing a fairly restrictive bright line may have made considerable sense. Indeed, the line the Court drew in Attleboro, though by no means perfect, would undoubtedly lead in a large number of cases to results entirely consistent with present-day doctrine. Second, the judicial turn of mind apparent in Attleboro, although problematic in many respects, can also be a healthy counterweight in many contexts to an otherwise too-easy dilution of guarantees contained in the Constitution. Nevertheless, Attleboro can no longer be thought to provide thersole standard by which to decide this case, and we proceed instead to undertake an analysis grounded more solidly in our modern cases. B Illinois Gas cited as examples of the less formalistic approach to the Commerce Clause such now-classic cases as South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177 (1938), and Duckworth v. Arkansas, supra. One recent reformulation of the test established in those cases is found in Pike v. Bruce Church, Inc.: “Where [a] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” 397 U. S., at 142 (citation omitted). Applying the Bruce Church test to this case is relatively simple. The most serious concern identified in Bruce Church — economic protectionism — is not implicated here. Compare Philadelphia v. New Jersey, 437 U. S. 617 (1978), with Minnesota v. Clover Leaf Creamery Co., 449 U. S., at 471-472. Moreover, state regulation of the wholesale rates charged by AECC to its members is well within the scope of “legitimate local public interests,” particularly considering that although AECC is tied into an interstate grid, its basic operation consists of supplying power from generating facilities located within the State to member cooperatives, all of which are located within the State. Cf. id., at 473, n. 17. An argument could be made that, because AECC’s Board of Directors consists exclusively of representatives of its 17 customers, it is effectively self-regulating, and that therefore any state regulation is not supported by an appreciable state interest. Cf. Salt River Project Agricultural Improvement & Power District v. FPC, 129 U. S. App. D. C. 117, 120, 391 F. 2d 470, 473 (1968). Nevertheless, there is evidence that even cooperative power utilities may engage in economically inefficient behavior, see generally R. Schmalensee, The Control of Natural Monopolies 91-93 (1979), and sources cited, and we will not under these circumstances second-guess the State’s judgment that some degree of governmental oversight is warranted. See Clover Leaf Creamery Co., supra, at 469, 473; Exxon Corp. v. Governor of Maryland, 437 U. S., at 128. Finally, although we recognize that the PSC’s regulation of the rates AECC charges to its members will have an incidental effect on interstate commerce, we are convinced that “the burden imposed on such commerce is not clearly excessive in relation to the putative local benefits.” Part of the power AECC sells is received from out-of-state. But the same is true of most retail utilities, and the national fabric does not seem to have been seriously disturbed by leaving regulation of retail utility rates largely to the States. Similarly, it is true that regulation of the prices AECC charges to its members may have some effect on the price structure of the interstate grid of which AECC is a part. But, again, we find it difficult to distinguish AECC in this respect from most relatively large utilities which sell power both directly to the public and to other utilities. It is not inconceivable that a particular rate structure required by the Arkansas PSC would be so unreasonable as to disturb appreciably the interstate market for electric power. But, as we said in our discussion of the pre-emption issue, see supra, at 389, we are not willing to allow such a hypothetical possibility to control this facial challenge to the PSC’s mere assertion of regulatory jurisdiction. See Exxon Corp. v. Governor of Maryland, supra, at 128-129. V On this record, the PSC’s assertion of jurisdiction over the wholesale rates charged by AECC to its members offends neither the Supremacy Clause nor the Commerce Clause. The judgment of the Arkansas Supreme Court is Affirmed. See FPC v. Southern California Edison Co., 376 U. S. 205 (1964), and United States v. Public Utilities Comm’n of California, 345 U. S. 295 (1953), for discussions of the relevant legislative history. But cf., e. g., New England Power Co. v. New Hampshire, 455 U. S. 331 (1982). We make no attempt in this opinion to trace the subsequent development of these statutes, except as may be relevant to our decision today. The United States Court of Appeals for the District of Columbia Circuit reached the same conclusion in Salt River Project Agricultural Improvement & Power District v. FPC, 129 U. S. App. D. C. 117, 391 F. 2d 470 (1968). But cf. n. 7, infra. We discuss infra, at 385-388, the role of the REA in regulating the rates set by rural electric cooperatives. We also note infra, at 394, the argument that AECC, because it is owned and directly managed by its 17 principal customers, is essentially self-regulating. There is a legitimate question in this ease as to whether the pre-emption argument advanced by AECC is properly before us. AECC’s jurisdie-tional statement raised only the pure Commerce Clause issue, and did not offer pre-emption as a separate ground for reversal. Only after the United States, as amicus curiae, relied strongly on a pre-emption argument did AECC devote considerable attention to it in its brief on the merits. Nevertheless, the relationship between legislative and judicial enforcement of the Commerce Clause is close enough for the pre-emption issue to come, if by the barest of margins, within those “subsidiary questions] fairly included” in the principal question on appeal. See this Court’s Rule 15.1(a); Brown v. Socialist Workers ’74 Campaign Committee, 459 U. S. 87, 94, n. 9 (1982); United States v. Arnold, Schwinn & Co., 388 U. S. 365,

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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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, their arrangements with the municipalities constituted, “in essence,” pre-existing cost-plus contracts. 628 F.Supp. at 613. Relying in part on our observation in County of Oakland v. City of Berkley, 742 F.2d 289, 296 (6th Cir.1984), that Oakland County was “a mere conduit” through which payment of charges allocated to the municipalities flowed into the coffers of the City of Detroit, the district court decided that it was “easy to prove” that the plaintiff counties had not been damaged. Accordingly, the court concluded, even if the counties could meet the standing requirement, the cost-plus contract exception to the Hanover Shoe rule ought to be invoked. 620 F.Supp. at 1402-03. Mindful, as we were in Jewish Hospital Assn. v. Stewart Mechanical Enterprises, Inc., 628 F.2d 971, 975 (6th Cir.1980), cert. denied, 450 U.S. 966,

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?

RICE et al. v. ELMORE. No. 5664. Circuit Court of Appeals, Fourth Circuit. Dec. 30, 1947. Irvine F. Belser and Christie Benet, both of Columbia, S. C. (W. P. Baskin, of Bishopville, S. C., Charles B. Elliott, of Columbia, S. C., P. H. McEachin, of Florence, S. C., J. Perrin Anderson, of Greenwood, S. C., W. Brantley Harvey, of Beaufort, S. C., Edgar A. Brown, of Barnwell, S. C., and Yancey A. McLeod, of Columbia, S. C., on the brief), for appellants. Thurgood Marshall, of New York City (Harold R. Boulware, of Columbia, S. C., and Edward R. Dudley, of New York City, on the brief), for appellee. Before PARKER, SOPER and DOBIE, Circuit Judges. PARKER, Circuit Judge. This is an appeal from a decree adjudging that Negroes are entitled to vote in Democratic primary elections in South Carolina and enjoining defendants, who conduct such elections, from denying to Negro electors the right to vote therein. Plaintiff, who has brought this as a class suit in behalf of all Negro electors similarly situated, is a Negro duly qualified to vote under the Constitution and laws of the State of South Carolina. He has been denied the right to vote in the Democratic primary of that state by rules promulgated by the Democratic Party limiting the right to vote in the primary to white persons. The defendants are officials of the Democratic Party of South Carolina, who have charge of the primary in the county and precinct where plaintiff resides. The only question presented by the appeal is the correctness of the declaration as to the right to vote contained in the decree appealed from and the validity of the injunction therein granted. Plaintiff contends that the decree should be upheld under the Fourteenth and Fifteenth Amendments to the Constitution and the provisions of the Civil Rights Acts, 8 U.S.C.A. §§ 31, 43. Defendants contend that, because there has been no statutory regulation of primaries in South Carolina since the repeal in 1944, 44 St. at Large, p. 2231, of the statutes relating thereto, the constitutional limitations on state action relied on by plaintiff have no application and that there is consequently no jurisdiction in the court to grant declaratory or injunctive relief. They argue that defendants in the action complained of were acting, not as state officials, but as members of the Democratic Party, which, they say, is a voluntary political association which can exercise unrestricted choice of membership. There is no dispute as to the facts, which are fully and fairly set forth in the opinion of the District Judge. See Elmore et al. v. Rice et al., D.C., 72 F.Supp. 516. They may be briefly summarized as follows : For half a century or more the Democratic Party has absolutely controlled the choice of elective officers in the State of South Carolina. The real elections within that state have been contests within the Democratic Party, the general elections serving only to ratify and give legal validity to the party choice. So well has this been rcognized that only a comparatively few persons participate in the general elections. In the election of 1946, for instance, 290,223 votes were cast for Governor in the Democratic primary, only 26,326 in the general election. In South Carolina, as in most other states of the Union, the primary had become an integral part of the election machinery recognized and regulated by law. Article II, sec. 10, of the State Constitution of 1895 directed that the Legislature provide by law for the regulation of party primary elections, and pursuant thereto a complete set of primary laws had been adopted and were in effect when the Supreme Court of the United States decided the case of Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A.L.R. 1110, holding that the right to vote in a primary election held under state law might-not be denied on the ground of race or col- or. Immediately following this decision, the then Governor of South Carolina convened the state legislature and recommended that it repeal all laws with relation to primaries with the avowed purpose of preventing voting by Negroqs in the Democratic primaries of the state. Pursuant to this recommendation, the primary laws of the state were repealed and the Democratic primary was conducted thereafter under rules prescribed by the Democratic party. That the primary when conducted by the party fulfilled the same function-in the election machinery of the state and was managed in practically the same way as when conducted under state law, does not admit of doubt. With respect to this, the District Judge, after describing the procedure when the statutes regulating the primary were in effect, went on to say [72 F.Supp. 525]: “In 1944 substantially the same process was gone through, although at that time and before the State Convention assembled, the statutes had been repealed by action of the General Assembly, heretofore set out. The State Convention that year adopted a complete new set of rules and regulations, these however embodying practically all of the provisions of the repealed statutes. Some minor changes were made but these amounted to very little more than the usual change of procedure in detail from year to year. * * * “In 1946 substantially the same procedure was used in the organization of the Democratic Party and another set of rules adopted which were substantially the same as the 1944 rules, excepting that the voting age was lowered to 18 and party officials were allowed the option of using voting machines, and the rules relative to absentee voting were simplified * * The question presented for our decision is whether, by permitting a party to take over a part of its election machinery, a state can avoid the provisions of the Constitution forbidding racial discrimination in elections and can deny to a part of the electorate, because of race and color, any effective voice in the government of the state. It seems perfectly clear that this question must be answered in the negative. The fundamental error in defendant’s position consists in the premise that a political party is a mere private aggregation of individuals, like a country club, and that the primary is a mere piece of party machinery. The party may, indeed, have been a mere private aggregation of individuals in the early days of the Republic, but with the passage of the years, political parties have become in effect state institutions, governmental agencies through which sovereign pov.er is exercised by the people. Party primaries are of more recent growth. Originating in the closing years of the last century as a means of making parties more responsive to the popular will in the nomination of candidates for office, they had been adopted by 1917 in all except four of the states of the Union as a vital and integral part of the state election machinery. Encyclopedia of Social Sciences, vol. 6, p. 396. The relation of the primary to the election was well stated by Mr. Justice Pitney in his concurring opinion in Newberry v. United States, 256 U.S. 232, 285, 41 S.Ct. 469, 484, 65 L.Ed. 913, where he said: “It seems to me too clear for discussion that primary elections and nominating conventions are so closely related to the final election, and tlicir proper regulation so essential to effective regulation of the latter, so vital to representative government that power to regulate them is within the general authority of Congress. It is matter of common knowledge that the great mass of the American electorate is grouped into political parties, to one or the other of which voters adhere with tenacity, due to their divergent views on questions of public policy, their interests, their environment, and various other influences, sentimental and historical. So strong with the great majority of voters are party associations, so potent the party slogan, so effective the party organization, that the likelihood of a candidate succeeding in an election without a party nomination is practically negligible. As a result, every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations, and constrained to consider their eligibility, in point of personal fitness, as affected by their party associations and their obligation to pursue more or less definite lines of policy, with which the voter may or may not agree. As a practical matter, the ultimate choice of the mass tvf voters is predetermined when the nomina - tions have been made.” As primaries have become inbedded in the election machinery of the country, there has come gradually a recognition by the courts of the function they perform and the application to them of the laws relating to elections. In the Newberry case, supra, decided in 1921, the Supreme Court, by a bare majority, had held the Federal Corrupt Practices Act, 2 U.S.C.A. § 241 et seq., not applicable to a primary election held for United States Senator under a law adopted prior to the 17th Amendment. In United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, decided in 1941, however, it was expressly held that a primary was an election within the meaning of art. 1 sec. 4 of the Constitution and the court pointed out that the Newberry case could not be considered authority to the contrary. In Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, a Texas statute forbidding Negroes to participate in Democratic primaries was held violative of the 14th Amendment. Following that decision, the statute was repealed and a law enacted authorizing the Executive Committee of a political party to prescribe who might vote in its primaries, and under this the Democratic Executive Committee adopted a resolution limiting participation in the Democratic primary to white persons. The exclusion of Negroes from voting pursuant to this resolution was held violative of the 14th Amendment, in Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 487, 76 L.Ed. 984, 88 A.L.R. 458, the Court saying: “The test is not whether the members of the Executive Committee are the representatives of the state in the strict sense in which an agent is the representative of his principal. The test is whether they are to be classified as representatives of the state to such an extent and in such a sense that the great restraints of the Constitution set limits to their action.” The Texas law was again amended to eliminate delegation of authority to the Executive Committee and thereupon the Democratic State Convention, without statutory authority for so doing, limited the right to participate in the Democratic primary to white persons. The exclusion of a Negro from voting in the Democratic primary pursuant to this action was held not violative of constitutional right in Grovey v. Townsend, 295 U.S. 45, 55 S.Ct. 622, 79 L.Ed. 1292, 97 A.L.R. 680; but Grovey v. Townsend was expressly overruled a few years later in Smith v. Allwright, supra, 321 U.S. 649, 64 S.Ct. 757, 765, 88 L.Ed. 987, 151 A.L.R. 1110, where the Court said: “When primaries become a part of the machinery for choosing officials, state and national, as they have here, the same tests to determine the character of discrimination or abridgement should be applied to the primary as are applied to the general election. * * * “The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any State because of race. This grant to the people of the opportunity for choice is not to be nullified by a State through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied. Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281. “The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, 295 U.S. 45, 55, 55 S.Ct. 622, 626, 79 L.Ed. 1292, 97 A.L.R. 680, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state.” It is true, as defendants point out, that the primary involved in Smith v. All-wright was conducted under the provisions of state law and not merely under party rules, as is the case here, but we do not think this a controlling distinction. State law relating to the general election gives effect to what is done in the primary and makes it just as much a part of the election machinery of the state by which the people choose their officers as if it were regulated by law, as formerly. Elections in South Carolina remain a two step process, whether the party primary be accounted a preliminary of the general election, or the general election be regarded as giving effect to what is done in the primary; and those who control the Democratic Party as well as the state government cannot by placing the first of the steps under officials of the party rather than of the state, absolve such officials from the limitations which the federal Constitution imposes. When these officials participate in what is a part of the state’s election machinery, they are election officers of the state de facto if not de jure, and as such must observe the limitations of the Constitution. Having undertaken to perform an important function relating to the exercise of sovereignty by the people, they may not violate the fundamental principles laid down by the Constitution for its exercise. Cf. Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Kerr v. Enoch Pratt Free Library, 4 Cir., 149 F.2d 212, 218. As said in the case last cited, “We know of no reason why the state cannot create separate agencies to carry on its work in this manner, and when it does so, they become subject to the constitutional restraints imposed upon the state itself.” Even though the election laws of South Carolina be fair upon their face, yet if they be administered in such way as to result in persons being denied any real voice in government because of race and color, it is idle to say that the power of the state is not being used in violation of the, Constitution. As said in Yick Wo v. Hopkins, 118 U.S. 356, 373 374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, “Though the law itself be fair on its face, and impartial in appearance, yet if it is applied and administered by public authority, with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” It is pointed out in the case of United States v. Classic, supra, 313 U.S. 299, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368, that the right to vote in the primary and to have one’s vote counted is to be protected, not only where state law has made the primary an integral part of the procedure of choice, but also where in fact it effectively controls the choice, as is unquestionably true, in South Carolina. The Court said in that case: “From time immemorial an election to public office has been in point of substance no more and no less than the expression by qualified electors of their choice of candidates. Long before the adoption of the Constitution the form and mode of that expression had changed from time to time. There is no historical warrant for supposing that the framers were under the illusion that the method of effecting the choice of the electors would never change or that if it did, the change was for that reason to be permitted to defeat the right of the people to choose representatives for Congress which the Constitution had guaranteed. .The right to participate in the choice of representatives for Congress includes, as we have said, the right to cast a ballot and to have it counted at the general election whether for the successful candidate or not. Where the state law has made the primary an integral part of the procedure of choice, or -where in foot the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right protected by Article I, § 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative. Here, even apart from the circumstance that the Louisiana primary is made by law an integral part of the procedure of choice, the right to choose a representative is in fact controlled by the primary because, as is alleged in the indictment, the choice of candidates at the Democratic primary determines the choice of the elected representative.” (Italics supplied.) An essential feature of our form of government is the right of the citizen to participate in the governmental process. The political philosophy of the Declaration of Independence is that governments derive their just powers from the consent of the governed; and the right to a voice in the selection of officers of government on the part of all citizens is important, not only as a means of insuring that government shall have the strength of popular support, but also as a means of securing to the individual citizen proper consideration of his rights by those in power. The disfranchised can never speak with the same force as those who are able to vote. The Fourteenth and Fifteenth Amendments were written into the Constitution to insure to the Negro, who had recently been liberated from slavery, the equal protection of the laws and the right to full participation in the process of government. These amendments have had the effect of creating a federal basis of citizenship and of protecting the rights of individuals and minorities from many abuses of governmental power which were not contemplated at the time. Their primary purpose must not be lost sight of, however; and no election machinery can be upheld if its purpose or effect is to deny to the Negro, on account of his race or color, any effective voice in the government of his country or the state or community wherein he lives. The use of the Democratic primary in connection with the general election in South Carolina provides, as has been stated, a two step election machinery for that state; and the denial to the Negro of the right to participate in the primary denies him all effective voice in the government of his country. There can be ho question that such denial amounts to a denial of the constitutional rights of the Negro; and we think it equally clear that those who participate in the denial are exercising state power to that end, since the primary is used in connection with the general election in the selection of state officers. There can be no question, therefore, as to the jurisdiction of the court to grant injunctive relief, whether the suit be viewed as one under the general provision of 28 U.S.C.A. §41(1) to protect rights guaranteed by the Constitution, or under 28 U.S.C.A. § 41(11) to protect the right of citizens of the United States to vote, or under 28 U.S.C.A. § 41(14) to redress the deprivation of civil rights. There was no error and the judgment appealed from will be affirmed. Affirmed. In summing up their argument, counsel for defendants say in their brief: “Plaintiff has no more right to vote in the Democratic primary in the State of South Carolina than to vote in the eleclion of officers of the Forest Lake Country Club or for the officers of the Colonial Dames of America, which principle is precisely the same.” In King v. Chapman, D.C., 62 F.Supp. 639, it was held that, because the Democratic primary was an integral part of the electoral process of the State of Georgia, a Negro might not be excluded from voting therein. The judgment in favor of plaintiff was affirmed on appeal (Chapman v. King, 5 Cir., 154 F.2d 460, 463) in an opinion based on the ground that the state collaborated in the primary and put its power behind the rules of the party. The appellate court intimated that it did not consider “of great legal significance” some matters to which we attribute importance; but, while we have great respect for that court, we are, of course, not bound by these expressions of opinion. It is worth noting, however, that the court emphasized in its opinion that “it (the State of Georgia) adopts the primary as a part of the public election machinery.” Where this is done as a matter of fact and custom, the presence or absence of statutory regulation of the primary does not seem a matter of controlling importance.

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

Did the court declare any statute or administrative action unconstitutional?

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Henry SHIELDS, Defendant-Appellant. No. 17305. United States Court of Appeals Seventh Circuit. Oct. 7, 1969. Rehearing Denied Nov. 5, 1969. Harold P. Southerland, David Loeffler, Milwaukee, Wis., for appellant. James B. Brennan, U. S. Atty., David J. Cannon, Asst. U. S. Atty., Milwaukee, Wis., Robert J. Lerner, U. S. Atty., Thomas R. Jones, Asst. U. S. Atty., Milwaukee, Wis., for appellee. Before DUFFY, Senior Circuit Judge, SWYGERT and CUMMINGS., Circuit Judges. PER CURIAM. This is an appeal from a judgment wherein defendant was adjudged guilty of wilfully and knowingly refusing to submit to induction in the armed services of the United States in violation of 50 U.S.C. App. § 462(a) (1964). Defendant filed a motion in the District Court seeking to dismiss the indictment and remanding his case to the Selective Service System. This motion was denied. Defendant also appeals the denial of his motion for dismissal arid remand. While a student, defendant was classified 2-S but when no longer a student, the Board changed his classification to 1-A. In due course, defendant was found acceptable for service in the armed services, and was ordered to report for induction on November 29, 1966. Defendant did report on that date, but refused to submit to induction. Defendant did not file for conscientious objector status (SSS 150) under 50 U.S.C. App. § 456(j) (1964). Her did not claim that he was opposed to wart “in any form” pursuant to the definition ^ of conscientious objector contained in § ; 456(j), supra. Defendant believed he could submit evidence on the issue of selective pacifism and non-religious conscience to the trial court without first submitting such evidence to the Selective Service System. Approximately two weeks prior to defendant’s trial, this Court decided the case of United States v. Kurki, 384 F.2d 905 (7 Cir., 1967). This case, in effect, held that the evidence concerning conscientious objector status could not be submitted to the trial court unless it had first been presented to the Selective Service System. Defendant, in the instant case, then sought to remand to the Selective Service System in order to present his evidence first to them. This motion was denied. Based on United States v. Kurki, swpra,, the trial court refused to allow defendant to present evidence concerning the issue of conscientious objector status. Defendant does not claim he refused to submit to induction because of his conscientious convictions of opposing war as a general concept. He claims that he does not feel opposed to war or the use of force in all situations. He claims he is a selective conscientious objector. Defendant points out that Section 6(j) of the law as presently written and administered requires that a conscientious objector oppose “war in any form.” At his trial in the District Court and here, defendant argued that the distinction which Congress made between religious objectors and non-religious objectors was unconstitutional under the First and Fifth Amendments to the United States Constitution. The same questions were raised in United States v. Sisson, 297 F.Supp. 902 (D.C.Mass., 1969) which case is now before the United States Supreme Court. If the Supreme Court holds that it has jurisdiction to consider that case arid passes upon the principal question there raised, the decision to be made in the instant case may be there clearly indicated. Upon a remand of this case, the District Court may return the defendant’s file to his draft board so that the Board may pass upon the “selective conscientious objector” constitutional argument. Thus defendant will be able to exhaust his administrative remedies, as he sought to do by his motion to remand, The judgment herein is reversed and the cause remanded to the District Court in order for the defendant to have the opportunity to exhaust his administrative remedies, and so that the trial court may have the opportunity to adjudge the constitutional law question raised by defendant herein. Reversed and remanded. . Since the Selective Service system and subsequently the trial court will pass upon defendant’s constitutional claim, we do not decide on the applicability of McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) to these facts.

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

Hammy MARTIN, Plaintiff-Appellant-Appellee, v. M/V WAR ADMIRAL in rem, et al., Defendants. DEEP WATER OPERATORS, INC., et al., 1 Defendants 1 Third-Party Plaintiffs-Appellees-Appellants, v. BAYOU VISTA MACHINE WORKS, INC., et al., Third-Party Defendants-Appellees, READING & BATES OFFSHORE DRILLING CO., Third-Party Defendant-Appellee-Appellant, Employers Liability Assurance Corp., Intervener-Appellee. No. 74-1690. United States Court of Appeals, Fifth Circuit. Feb. 10, 1975. C. Kenneth Deshotel, William A. Brinkhaus, Opelousas, La., for plaintiff-appellant-appellee. James E. Diaz, Lafayette, La., for Signal Oil. W. Gerald Gaudet, Lafayette, La., for Deep Water Operators. W. Eugene Davis, J. Louis Gibbens, New Iberia, La., for Reading & Bates Offshore Drilling. Wood Brown, III, Máchale A. Miller, New Orleans, La., for Bayou Vista & Employers Liability Corp. Joseph Wilson, Morgan City, La., for appellees. Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges. DYER, Circuit Judge: Martin, a roughneck at an offshore drilling rig in the Gulf of Mexico, sustained injuries while returning to port from his worksite aboard the crewboat WAR ADMIRAL. He sued, and following a bench trial, was awarded damages based on the court’s finding that the negligence of Deep Water Operators, Inc. [Deep Water], the operator of the WAR ADMIRAL, had been a proximate cause of the accident. The judgment was reduced by 35% due to Martin’s contributory negligence, with the lion’s share of the net award going to Employers Liability Assurance Corporation, Ltd. [Employers], the workmen’s compensation insurer of Martin’s employer, as indemnification for benefits advanced to Martin. The main issues on appeal are Martin’s claims that his judgment was erroneously small because of the court’s refusal to consider evidence of psychological disability in awarding damages, and that, as his action created the fund from which Employers recouped its compensation payments, the insurer should be required to share the cost of Martin’s attorney’s fees. Deep Water in turn appeals from the finding of its negligence underlying the judgment. We affirm the district court in all respects. At approximately 2:30 P.M. on January 9, 1969, Martin boarded the crewboat WAR ADMIRAL to begin the four and one-half hour journey back to port from the offshore rig tender on which he worked: About halfway, he felt the urgent need to use the ship’s “head” located in the rear of the passenger cabin. The passageway to the rear was partially obstructed by luggage brought on board by other passengers, and as Martin was stepping over a duffel bag in the aisle, he was knocked off balance by the force of a wave striking the ship and fell backwards striking his hip on a footlocker. Although he was able to continue to the head and return to his seat without apparent difficulty, the injury had become so painful by the time the vessel docked that Martin had to be assisted to his car and driven to a local medical clinic by a co-worker. At the clinic, Martin was treated by his personal physician, Dr. Deshotels, who initially prescribed conservative care to minimize swelling and pain. Dr. Deshotels later requested the consultation of orthopedist Dr. Bordelon, who performed surgery on August 12, 1969, to remove an inflamed bursal sac from Martin’s hip and to explore his knee for a possible popliteral cyst, which was not found. After a number of follow-up -visits, Dr. Bordelon discharged Martin on March 16, 1970, stating in his discharge report that: This patient has apparently made a recovery from the injury which was previously noted. At the present time I find no evidence of physical impairment from an objective orthopaedic standpoint which would prevent the performance of normal activity. This medical conclusion was supported by that of Dr. Saer, who examined Martin on March 26, 1970, and found that “[o]n the basis of his physical status there was nothing wrong which would prevent him doing normal activities if he wished to do so.” Martin, however, contended that the accident had left him totally and permanently disabled. To support his claim he introduced the depositions of two psychiatrists, Dr. Cloyd and Dr. Blackburn, who testified in substance that, because of Martin’s psychological makeup, he continued to experience severe pain as a result of his injuries even though it might not be justified by his physical ailments. While both admitted that their conclusions were based on what Martin had related to them about his condition, coupled with their observation of his demeanor, they also stated their opinion that he was not consciously malingering. The trial court awarded damages for lost wages and medical expenses up to the date of Dr. Bordelon’s discharge report of March 16, 1970, plus an allowance for pain and suffering, but denied any recovery for future disability. On this appeal, Martin argues, that in light of what he terms the “uncontradicted” psychiatric evidence of disability, this denial was erroneous. Seizing on a statement in the court’s opinion that it could not “support a reward for disability based purely on plaintiff’s past and present psychological problems,” he also suggests that the reason for the court’s refusal to award disability damages was its erroneous legal view that only pain with a demonstrable organic basis is compensable. See, e.g., Hayes v. Cele-brezze, 5 Cir. 1963, 311 F.2d 648, 654. We cannot agree. Taken as a whole, the opinion makes it clear that the reason disability damages were denied was the court’s factual finding that Martin’s afflictions attributable to the accident, from either physical or psychological sources, were not disabling. Indeed, in the opening sentences of its consideration of the damage issue the district court stated: In his complaint the plaintiff claims he has been totally and permanently disabled as a result of this fall in January of 1969. In determining the award of damages in this case, the Court has viewed with careful scrutiny all pertinent medical evidence. We are unable to conclude the plaintiff is presently disabled either totally or permanently. Nor can we agree that the court’s conclusion is without substantial support in the record. In arguing that his psychological disability had been established by uncontradicted psychiatric testimony, Martin overlooks the fact that the key consideration is not the cause of pain, but its effect. To be disabling, it must at a minimum impair the plaintiff’s ability to engage in normal activity. See Gaultney v. Weinberger, 5 Cir. 1974, 505 F.2d 943. Here, Drs. Bordelon and Saer specifically testified that Martin was able to engage in normal physical activity. Moreover, as specifically noted by the district court, these findings were based on clinical examinations of Martin’s injuries, while the contrary opinions of Drs. Cloyd and Blackburn were rendered primarily from Martin’s subjective rendition of his complaints. In sum, there is substantial evidence to support the district court’s conclusion that Martin was not disabled, and it must be affirmed. McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20. Martin’s second contention is that he should be awarded attorney’s fees out of the compensation payments recouped by Employers from his judgment. Cit-ing the insurer’s active opposition to any recovery, he relies on Chouest v. A & P Boat Rentals, Inc., 5 Cir. 1973, 472 F.2d 1026, cert. denied, 412 U.S. 949, 93 S.Ct. 3012, 37 L.Ed.2d 1002, as establishing a legal basis for the award of such fees. We decline to reach this issue because this claim for relief was not presented to the district court and will not be considered for the first time on appeal. Excavators and Erectors, Inc. v. Bullard Engineers, Inc., 5 Cir. 1973, 489 F.2d 318, 320; Kottemann v. Goodway, Inc., 5 Cir. 1971, 439 F.2d 766, 767. Finally, we need not be detained by Deep Water’s argument that the district court was clearly erroneous in finding it liable for Martin’s injuries. The skipper of the WAR ADMIRAL himself testified that it was the duty of the crew to tell passengers to remove their luggage from the aisles; there is also adequate support in the record for the court’s finding that failure to observe this duty was a proximate cause of the accident. Affirmed. . Martin also objects to the court’s decision to limit recovery of medical expenses to those incurred prior to March 16, 1970. In light of Dr. Bordelon’s discharge report of that date, which declared Martin to be medically recovered from his injuries, this conclusion as well cannot be deemed clearly erroneous. McAllister, supra. . Because we affirm the district court, we need not discuss any of the protective appeals filed herein.

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

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

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

COLGATE-PALMOLIVE COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. TED BATES & COMPANY, Inc., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. Nos. 5972, 5986. United States Court of Appeals First Circuit. Nov. 20, 1962. Mathias F. Correa, New York City, with whom Arthur Mermin, Cory don B. Dunham, New York City, John F. Gro-den, Boston, Mass., Cahill, Gordon, Rein-del & Ohl, New York City, and Withing-ton, Cross, Park & McCann, Boston, Mass., were on brief, for petitioner Colgate-Palmolive Co. Joseph A. McManus, New York City, with whom Lane McGovern, Boston, Mass., Coudert Brothers, New York City, and Ropes & Gray, Boston, Mass., were on brief, for petitioner Ted Bates & Co. Miles J. Brown, Washington, D. C., Attorney, with whom James Mcl. Henderson, General Counsel, J. B. Truly, Assistant General Counsel, and Frederick H. Mayer, Washington, D. C., Attorney, were on brief, for respondent. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. . Counsel for respondents claim that the purported sandpaper looked coarser on the movie exhibit introduced in evidence by the Commission than it appeared to the television viewers. Apart from the absence of evidentiary support for tbis contention, it is pointless in tbe light of the candid testimony of one of Bates’ employees that the commercial’s sandpaper appeared coarser than the finishing paper on which respondents rely. ALDRICH, Circuit Judge. These petitions to review and set aside a cease and desist order of the Federal Trade Commission are noteworthy principally because of the extremes to which the dispute has led the parties. We shall refer to the petitioners as they were below, viz., as respondents. Respondent Colgate-Palmolive Company, with the aid and at the suggestion of its advertising agency, respondent Ted Bates & Company, in 1959 released three substantially similar television commercials (hereinafter referred to in the singular) to advertise the “moisturizing” qualities of Colgate’s pressurized shaving preparation Palmolive Rapid Shave, hereinafter the cream. The commercial was a dramatic “audio” and “video” exposition in which sandpaper was apparently shaved with a safety razor with a single stroke immediately following the application of the cream. This demonsti’ation, it was vocally claimed, “proved” the moisturizing qualities of the cream and that it would have the same effect “for you.” In fact the demonstration did not employ sandpaper at all, but a simulated mockup of sand on plexiglass. The Commission brought a civil complaint against respondents, charging misrepresentations in that “ * * * said visual demonstration was a ‘mock-up’ * * * [and] does not prove the ‘moisturizing properties of Palmolive Rapid Shave, in actual use, for shaving purposes.” Respondents’ answers admitted that the demonstration was a mock-up, but asserted that the “commercials contained a fair and true illustration of the otherwise proven fact that Palmolive Rapid Shave has excellent wetting qualities.” Following a trial the Commission issued a broad order against both respondents of which they now seek review. Respondents’ first defense is that the cream did in fact permit the shaving of sandpaper as apparently shown, so that there was no misrepresentation. This claim is conspicuously lacking in merit. Ordinary coarse sandpaper can be shaved, but not until the cream has remained upon it for upwards of an hour. Even if we could assume that a particularly fine grade of paper, described as “finishing paper,” could fall within the common understanding of what the audio portion described as “tough” sandpaper, which we msfy doubt, and even if the visual demonstration, which was clearly of a coarse brand of sandpaper, did not conclusively foreclose that assertion in this case, which we doubt even more, respondents are not aided. Their best evidence was that even finishing paper required that the cream rest upon it for one to three minutes before shaving was possible. The video portion of the demonstration shows no such inconvenient wait, but graphically exhibits no pause or break between the application of the cream to the paper, the reaching for the razor, and the shaving operation. It is true that the accompanying audio portion of the commercial uses the word “soak.” Respondents contend that soaking means an appreciable passage of time. The Commission was well warranted in finding that the word “soak” was so unobtrusive that many viewers might not notice it, and that even those who did might conclude that the length of the announced soaking was not one to three minutes or more, but the insignificant interval defined by the visual portrayal, the same as was shown for “soaking” the human beard. It should be obvious by Nfiow to anyone that advertisements are not judged by scholarly dissection in a college classroom. F. T. C. v. Standard Education Society, 1937, 302 U.S. 112, 116, 58 S.Ct. 113, 82 L.Ed. 141; Aronberg v. F. T. C., 7 Cir., 1942, 132 F.2d 165. Respondents next contend that the length of time required to shave sandpaper was not within the pleadings. We agree with them that the Commission did not happily phrase its order denying a motion to amend the complaint. Although respondents predicate some argument on this denial, which the Commission might well have anticipated, one may nevertheless question how seriously they were misled into thinking the .issue was simply whether sandpaper of a variety not depicted could eventually be shaved, when the complaint plainly charged that the “commercials, which include a visual demonstration * * * represented, directly or by implication, that * * * it is possible to forthwith shave off the rough surface of said sandpaper * * More important, respondents have not been able to suggest to us how, in the light of the evidence which they introduced after a suitable interval to prepare against the Commission’s showing, they have been prejudiced. Rather, we think they are simply trying to restrict the issue to one they might be able to meet, instead of one they plainly cannot. The Commission rejected this attempt, and we agree. Next, respondents assert that the commercial, even if not true with respect to sandpaper, was mere metaphorical puffing; that there is no contention that the cream did not possess entirely adequate moisturizing properties for shaving humans (the Commission makes no claim of inadequacy of the cream); that no one bought the cream intending to shave sandpaper, and that therefore there was no misrepresentation as to any material matter. Within limits we are sympathetic with the principle allegedly underlying respondents’ contention. Graphic visual demonstrations that have dramatic appeal may well be mere puffing. References to sandpaper beards may of themselves be harmless, and so may be pictures illustrating the analogy. We see no objection to obvious fancy, provided there is no underlying misrepresentation. But respondents’ difficulty is that they do not come under any such principle. They went far beyond generalities and eye-catching devices into asserting as a fact that the cream enables sandpaper to be shaved forthwith, and that this fact “proved” the cream’s properties for shaving humans. They cannot now suggest that ability to shave sandpaper forthwith was an irrelevant fact and an irrelevant representation. We agree with the Commission that it is immaterial that the cream may in fact have adequate shaving qualities. If a misrepresentation is calculated to affect a buyer’s judgment it does not make it a fair business practice to say the judgment was capricious. Mohawk Refining Corp. v. F. T. C., 3 Cir., 1959, 263. F.2d 818, cert. den. 361 U.S. 814, 80 S.Ct. 53, 4 L.Ed.2d 61; C. Howard Hunt Pen Co. v. F. T. C., 3 Cir., 1952, 197 F.2d 273. It may well be that little injury was done to the public by respondents’' representations. We suggested in our opening sentence that we consider this-a rather trivial case. Nonetheless, we could not possibly say that it was not. within the province of the Commission to conclude that such conduct should, be-forbidden. Colgate’s motion to dismiss the complaint was properly denied. Respondent Bates contends that, as a mere advertising agency no order-should be entered against it in any event. On one occasion the Commission has. drawn such a distinction on the ground that the agency was but a secondary actor. This ruling, however, was expressly stated to be a matter, of “sound discretion.” Bristol-Myers Co. et al., 1949, 46 F.T.C. 162, 176. Where, as-here, the Commission was warranted in finding that the advertising agency was an active, if not the prime, mover, we could not say that the Commission lacked either jurisdiction or discretion. Cf. C. Howard Hunt Pen Co. v. F. T. C., supra 197 F.2d at 281; Chas. A. Brewer & Sons v. F. T. C., 6 Cir., 1946, 158 F.2d 74; see also National Cash-Register Co. v. Leland, 1 Cir., 1899, 94 F. 502, 507, cert. den. 175 U.S. 724, 20 S.Ct. 1021, 44 L.Ed. 337. Very different questions, however, arise when we come to the scope of the order. The interdiction of which respondents principally complain prohibits the following: “Representing, directly or by implication, in describing,! explaining,';? or purporting to prove the quality or merits of any product, that pictures, depictions, or demonstrations, either alone or accompanied by oral or written statements, are genuine or accurate representations, depictions, or demonstrations of, or prove the quality or merits of, toy product, when such pictures, depictions, or demonstrations are not in fact genuine or accurate representations, depictions, or demonstrations of, or do not prove the quality or merits of, any such product.” Analysis of this portion of the order shows it to be quite ambiguous. On first reading we had thought that, in effect, it simply forbade demonstrations which represented a product as doing something that it could not do, or as appearing to have qualities which it did not possess. There could be no objections to such an order, except respondents’ special objection that this particular one embraces too many products. But respondents say that the language goes far beyond such conduct, and would prohibit any demonstration even if it did not misstate facts about, or misrepresent the appearance of, the product, if it was not “genuine” in that the actual substance used in the studio, because of technical problems of photography, was not the product itself. In other words, it would be no defense that, as the examiner found on undisputed testimony here, the shaving of sandpaper, even when in fact accomplished, does not properly reproduce on television and must be simulated to be effective. Similarly, it appears that coffee, orange juice and iced tea lose their true colors, so that artificial substances have to be substituted to make them look natural, while in another area products such as ice cream and the “head” on beer melt under the hot camera lights and require the use of more stable substitutes. On consideration we agree with respondents that the order may be read as forbidding such conduct. Furthermore, we believe that this was the Commission’s intention. In its opinion accompanying the order the Commission stated that one of the issues was whether, even if the cream permitted the shaving of sandpaper precisely as pictured, there was “nonetheless a misrepresentation * * * and an unfair advertising practice.” The Commission resolved this issue by concluding that it was “an illegal practice,” and was likely to deceive the public and cause purchasers to buy what otherwise they would not have bought. We, of course, agree with the Commission that there is a misrepresentation, of a sort, in any substitution case. But we are unable to see how a viewer is misled in any material particular if the only untruth is one the sole purpose of which is to compensate for deficiencies in the photographic process. The Commission has put the shoe on the wrong foot. What the viewers are interested in, and moved by, is what they see, not by the means. We suggested to counsel that this could be readily tested. Suppose, in the case of color television, a milk producer wishes to advertise the rich quality of his cream. Obviously he cannot use a foreign substance so that his product will appear yellower and richer than it is. But, equally, should he be allowed to use his own cream if he knows that by the normal photographic process its color would be changed so as to appear substantially better on the screen than it was ? We suspect the Commission would think it clear he could not. Yet if he used an artificial substance in order to produce the exactly correct appearance, under the Commission’s rule there would be deceit. Counsel gave no answer. We are not critical of counsel, because we think his client has left him without one. The Commission has confused two entirely different situations. Of course, as we have already said, if a purported demonstration attributes to a product qualities it does not in fact possess, the advertiser will not be permitted to say that the product can still do all it needs to do, or is “just as good” even though it does not have the claimed characteristic. The Commission properly said that the customer is entitled to get what he is led to believe he will get, whether he is right or wrong in thinking it makes a difference. But where the only untruth is that the substance he sees on the screen is artificial, and the visual appearance is otherwise a correct and accurate representation of the product itself, he is not injured. The viewer is not buying the particular substance he sees in the studio; he is buying the product. By hypothesis, when he receives the product it will be exactly as he understood it would be. There has been no material deceit. The present order must be set aside. We do not, of course, suggest that it was erroneous in every particular, but the Commission’s fundamental error so permeates the order that we think it best that an entirely new one be prepared. We also think it best that the Commission be the one to do so. We will make, however, two suggestions. The Commission has directed this part of its order to every lcind of product that Colgate may hereafter advertise, and, in the case of Bates, with regard to every customer. If mock-ups, or what the Commission chooses to call demonstrations that are not “genuine,” were illegal per se, then it might be appropriate, although we need not decide, to enter a broad order forbidding all such demonstrations en masse. We have undercut the basis for any such order. Under our construction there is no showing of any “method” or “practice” in the sense discussed by the Commission in its opinion. Respondents’ only offense was the making of a single misrepresentation about a single product. The fact that this was accomplished by a “demonstration” did not warrant a broad order against all future misrepresentations of any kind by demonstrations any more than the fact that a misrepresentation was made in print would justify an order against all future misrepresentations of any kind by printing. The Commission has revealed that it is well aware of the scope to be applied to single misrepresentations, and we need say no more on this subject. See e. g., Colgate-Palmolive Co., Docket No. 7660, March 9, 1961, Trade Reg.Rep., (1960-61 Transfer Binder) ¶ 29445. Secondly, with respect to the respondent Bates, we think there may well be distinction between a principal and an agent in the permissible scope of an order. In some degree a principal may well be held to advertise at his peril. But we have reservations as to how far it is appropriate to go in the case of an agent, in the absence, at least, of any suspicion on its part that the advertisement is false. Cf. Bristol-Myers Co., supra. Judgment will be entered setting aside the order of the Commission. Further proceedings to be in accordance with this opinion. . See Carter Products, Inc. v. Colgate-Palmolive Co., 4 Cir., 1959, 269 F.2d 299 . Respondents object to the Commission’s reference to the adjective “tough” because it was not specifically mentioned in the complaint, and elsewhere make other, similar, objections. There was no dispute as to what was in the commercial. We can not think the complaint had to set forth every word. . Respondents do not make tbe contrary suggestion that beards, too, must be soaked for one to three minutes. Indeed, they could not, without making the picture a serious misrepresentation in another respect. . The Commission makes an interesting counter-suggestion. If shaving sandpaper did not prove something about shaving humans, was there not a still further misrepresentation? . Indeed, the Commission seemed eager to raise this question. For example: “Thus, while the particular facts of this case may seem trivial, it raises the broad question whether mock-ups or simulated props may lawfully be used in television commercials to demonstrate qualities claimed for products, where the audience is told that it is seeing one thing being demonstrated while actually it is seeing something different.” . To be doubly sure our understanding of the Commission’s position was correct, we put the following case to its counsel. Suppose a prominent person, is photographed saying, “I love Lipsom’s iced tea,” while, apparently, he drinks a glass of iced tea. In truth the individual does like Lipsom’s tea, and frequently drinks it, but for the above-mentioned technical reasons is then drinking colored water. What the viewer sees on the screen looks exactly as Lipsom’s iced tea does in fact look. Asked if this would be misconduct, counsel replied that it was the Commission’s position that it would be, because the viewer has been led to believe he is-seeing iced tea when in fact he is not. . We realize that counsel might have replied that products which do not photograph accurately should never be represented. This would" "SSem — at least to f those who use television commercials— ' a drastic remedy. We believe the burden • should be on the Commission to demonstrate an equivalent need. . The Commission also relied on what it called “phony” testimonial cases. F. T. C. v. Standard Education Society, supra, 302 U.S. at 118, 58 S.Ct. at 116; Niresk Industries, Inc. v. F. T. C., 7 Cir., 1960, 278 F.2d 337, cert. den. 364 U.S. 883, 81 S.Ct. 173, 5 L.Ed.2d 104. We would agree that it is an unfair advertising practice to publish a purported testimonial when none had been received, even if, from the fact that the advertiser’s sales were high and constant, it must be obvious that he has many satisfied customers. A more accurate analogy would be if the advertiser did in fact receive a testimonial, but written in ink that would not photograph. Would the advertiser be guilty of deceit if he copied it over and photographed the copy? ' If an endorser may not be shown enjoying colored water that looks like, but is not, iced tea, then, seemingly, it would not be “genuine” to photograph a copy of a testimonial leading viewers to believe it was an original document. It is difficult to think the Commission fully appreciated the principle it has espoused.

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

KICKAPOO TRIBE OF OKLAHOMA, Johnny Ortega, a minor child through next friend, Vernon Ketcheshawno, Herbert White, Bob White, Delores Murdock, Joyce Naneto, Ruth Sanderson, James Wahpepah, Emma Gonzales, Fredrico Gonzales, Emma Salazar, Fredrico Salazar, Antonio Anico and Vernon Ketcheshawno, Plaintiffs-Appellees, v. Lloyd RADER, Debra Roth, Joanna Romero, Victoria Burkes, Andres Martinez, Helen Martinez, George Miller, Cheryl Mullin, Jane Conner, Earline Logan, Dian England, Defendants-Appellants, State of Oklahoma, Department of Human Services, Defendant In Intervention-Appellant, Betty Davis, the Hon. Arthur Lory Rakestraw, the Hon. Judge Loys Criswell, and Department of Human Services, Defendants. No. 84-2279. United States Court of Appeals, Tenth Circuit. July 2, 1987. Thomas H. Tucker, State of Oklahoma Dept, of Human Services, Oklahoma City, Okl. (Pamela K. Padley, was also on brief), for defendants-appellants Lloyd Rader, Debra Roth, Joanna Romero, Victoria Burkes, George Miller, Cheryl Mullin, Jane Conner, Earline Logan and Dian England. Boyd Baker, Altus, Okl, for defendants-appellants Andres Martinez and Helen Martinez. Sue Wycoff, Oklahoma Indian Legal Services, Oklahoma City, Okl. (Susan Work Haney, Oklahoma City, Okl. and Mary Barksdale, Tahlequah, Okl., were also on brief, for plaintiff-appellee Kickapoo Tribe), Albert Ghezzi and Berry Benefield, Native American Center, Oklahoma City, Okl, for plaintiff-appellee Antonio Anico. Before HOLLOWAY, Chief Judge, DOYLE, Circuit Judge, and BROWN, District Judge. The late Honorable William E. Doyle heard the argument of the appeal but did not participate in this opinion. The Honorable Wesley E. Brown of the District of Kansas, sitting by designation. HOLLOWAY, Chief Judge. This appeal generates several difficult legal issues involving the application of the Indian Child Welfare Act of 1978 (ICWA), the role of federal and state courts in the adoption proceedings of an Indian child, Johnny Ortega, the recognition by federal courts of state court judgments construing federal statutes, and the due process rights of an Indian father who speaks no English. I Factual Background A. Johnny Ortega was born on October 5, 1977. Johnny’s biological parents are Sylvia Marquez Ortega and Antonio Anico, an enrolled member of the Kickapoo Tribe of Oklahoma. In March 1978, Sylvia took Johnny, then five months old, to the Children’s Memorial Hospital in Oklahoma City for treatment of an arm disorder. Physicians at the hospital suspected child abuse or neglect and alerted the Oklahoma Department of Human Services (DHS). Johnny was placed in the emergency custody of DHS on March 9, 1978, by state court order. On March 10, DHS filed a petition in the District Court of Oklahoma County seeking to have Johnny made a ward of the court as a deprived child and to have the parental rights to Johnny terminated. The petition listed Antonio Anico as the father and gave his address as “Mexico.” At that time Mark Litke, a DHS agent, filed an “Affidavit For Service By Publication” with the state court which recited: that the present whereabouts of the father of said child is unknown to your petitioner; that after due search and diligent inquiry your affiant has been unable to ascertain an address at which personal service may be given and that affiant wishes to obtain service by publication. (I R. 53). The Oklahoma County District Court order of March 9,1978, had placed custody of Johnny with DHS and set the matter for hearing on April 26, 1978. Moreover, the court directed that “notice of hearing be given to parents of the child either by personal service or by publication in the manner provided by law.” (I R. 51). A March 9, 1978 affidavit by Juvenile Officer Litke of Oklahoma County had stated that the whereabouts of the father were unknown to petitioner Litke, that after due search and diligent inquiry Litke had been unable to ascertain an address for personal service, and that he wished to obtain service by publication. (Id. at 53). Service on Antonio Anico was by publication of a notice of the April 26, 1978 hearing to terminate parental rights in the Daily Law Journal-Record of Oklahoma City. The notice was published once in English on March 11, 1978. The notice was addressed to “Antonio Aneco [sic]” and stated that a petition alleging that Johnny Ortega was a deprived child and for termination of parental rights had been filed, and that a hearing would be held on the cause on April 26, 1978, where he might appear to be heard. On March 17, 1978, DHS returned custody of Johnny to Sylvia Ortega. On April 26, 1978, on the basis of evidence of a new skull injury, the state court entered an order making Johnny a ward of the court as a deprived child. Visitation rights were granted to the mother and stepfather twice a month. Although it is not clear from the record on appeal, the hearing of April 26, 1978, where Antonio Anico’s parental rights to Johnny were to be terminated appeared to be continued to September 7, 1978. There is no showing in our record of further notice attempted on Antonio. On May 9, 1978, DHS placed Johnny in a foster home. On September 7, 1978, the District Court of Oklahoma County terminated the parental rights of Antonio Anico to Johnny Ortega. (I R. 56). Neither Antonio nor his representative was present at the termination hearing. On November 3, 1978, the Indian Child Welfare Act became law, in part effective immediately, and in part effective May 8, 1979. DHS possessed information suggesting that Johnny was an Indian child on September 12, 1979, and communicated that information to the Oklahoma County District Court on or about October 2, 1979. Nevertheless on October 7, 1979, DHS moved Johnny from the foster home where he was placed on May 9, 1978, to another non-Indian foster home. On May 1, 1980, the District Court of Oklahoma County terminated the parental rights of Sylvia Ortega to Johnny Ortega, with the court reserving the right to consent to adoption. On September 4, 1980, some two years after Antonio Anico’s parental rights were terminated and one day before Johnny was placed for adoption by DHS, an Order Nunc Pro Tunc was entered by the District Court of Oklahoma County finding: That on the 7th day of March, 1978 this Court found that the whereabouts of Antonio Aneco [sic], alleged natural father of the referenced juvenile, were unknown and that a diligent effort had been made to ascertain the whereabouts of the alleged natural father. That as a result of such findings, this Court authorized the publication of notice to Antonio Aneco [sic], Through clerical error these findings were not recorded or reflected in the court file in this matter. This clerical record should be corrected. (I R. 55). This order was issued by a judge different than the one presiding over the March 10, 1978 hearing. The following day, DHS placed Johnny for adoption in the home of Andres and Helen Martinez, non-Indians. On November 3, 1980, the Kickapoo Tribe attempted to intervene in the state court proceedings pursuant to 25 U.S.C. § 1911(c), with the purpose of transferring the case to the Indian Tribal Court so that the Kickapoo tribe could place the child in accordance with Kickapoo custom, pursuant to the ICWA. (I R. 32). The state court denied the Kickapoo Tribe’s petition to intervene, finding that the ICWA did not apply to any proceeding under state law for foster care placement or termination of parental rights which was initiated prior to May 8, 1979. (Id. at 33). The Oklahoma County District Court terminated the parental rights of Sylvia Ortega to Johnny on May 1, 1980. On November 25, 1980, Andres and Helen Martinez filed a petition to adopt Johnny in the District Court of Jackson County, Oklahoma. On February 26, 1981, that court entered a decree granting the adoption. The state court found that DHS “did not receive reliable confirmation of any Indian heritage of this child [Johnny] until December fo [sic] 1980.” (II R. 300). B. Plaintiffs-appellees commenced this action in July 1981, in the United States District Court for the Western District of Oklahoma, alleging violations of the Due Process Clause of the Fourteenth Amendment, the ICWA, and the Indian Religious Freedom Act. The plaintiffs sought declaratory and injunctive relief as well as damages. At the pretrial conference in the federal district court, the parties entered into certain stipulations which are relevant on appeal. The stipulations include these facts: (1) Antonio Anico is an enrolled member of the Kickapoo Tribe of Oklahoma; (2) the district courts of Oklahoma and Jackson Counties did not follow the placement preferences of the ICWA in the foster care and adoptive placement of Johnny; (3) the Kickapoo Tribe was not given notice of the state court proceedings involving Johnny; (4) the ICWA was not in effect on September 7, 1978, the date on which Antonio Anico’s parental rights to Johnny were terminated; and (5) the Kickapoo Tribe of Oklahoma has certified that Johnny is eligible for membership in the tribe. (II R. 383-85). On cross-motions for summary and partial summary judgment, the district court held (1) that the defendants-appellants had violated the ICWA in the foster care placement and adoption of Johnny; (2) that the plaintiff Antonio Anico’s parental rights to Johnny were terminated without adequate notice in violation of the Due Process Clause, and in doing so the defendants had also violated the relevant Oklahoma notice statute; (3) that the adoption of Johnny by Helen and Andres Martinez was void ab initio; and (4) that the determination of custody and placement of Johnny must be re-determined by the state courts of Oklahoma in accordance with the ICWA. Judgment was then entered pursuant to Rule 54(b), Fed.R.Civ.P. Still remaining for disposition by the district court are issues concerning injunctive relief and damages. The defendants-appellants appeal the order of the federal district court. By agreement of the parties, the judgment of the district court insofar as it affects the custody of Johnny was stayed pending the outcome of this appeal. We affirm in part, reverse in part, and remand. II Antonio Anico’s Due Process Rights The plaintiff Antonio Anico claims that he was denied procedural due process of law as guaranteed to him by the Fourteenth Amendment. Specifically, he contends that he was not provided adequate notice of the hearing of September 7, 1978, at which his parental rights to Johnny Ortega were terminated by the District Court of Oklahoma County. The defendants vigorously disagree, stating that the notice by publication in the Oklahoma City legal newspaper was adequate in these circumstances. “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 314, 70 S.Ct. at 657 (citations omitted). The right to raise one’s children is “far more precious... than property rights.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (quoting May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953)). In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court expressly held that “state intervention to terminate the relationship between [a parent] and [a] child must be accomplished by procedures meeting the requisites of the Due Process Clause” and that the interest of a parent in avoiding the termination of his parental rights is important enough to entitle him to the procedural protections embodied in the Due Process Clause. See id. at 749, 753-54, 102 S.Ct. at 1394-95; Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62 (1965); see also Blair v. Supreme Court of Wyoming, 671 F.2d 389, 390 (10th Cir.1982) (relationship between parent and child is constitutionally protected); Wise v. Bravo, 666 F.2d 1328, 1336 (10th Cir.1981) (Seymour, J. concurring) (right to relationship with one’s child is a liberty interest protected by the Due Process Clause). Such critical rights are clearly implicated here since it is undisputed that Antonio Anico is the biological father of Johnny Ortega. OkIa.Stat. tit. 10, § 1131 explicates the standards for providing notice of a hearing to terminate parental rights: A parent shall be given actual notice of any hearing to terminate his parental rights. The notice shall indicate the relief requested, and the hearing shall not be held until at least ten (10) days after the receipt of such notice, except with the consent of the parents, if known. If the Court finds that the whereabouts of the parent cannot be ascertained, it may order that notice be given by publication and a copy mailed to the last-known address of the parent. The notice shall be published once in a newspaper of general circulation in the county in which the action to terminate the parental rights is brought, and the hearing shall not be held for at least ten (10) days after the date of publication of the notice. Where a parent has not received actual notice of the hearing at which he is deprived of his parental rights, the order depriving him of those rights shall not become final for a period of six (6) months after the hearing. Nothing in this section shall prevent a court from immediately taking custody of a child and ordering whatever action may be necessary to protect his health or welfare. For the purpose of terminating parental rights, a father or putative father of a child born out of wedlock who has not, prior to commencement of a proceeding to terminate parental rights to such child, exercised parental rights and duties shall not be deemed to have parental rights to such child, but the father shall be given notice of an opportunity to be heard on the issue of whether or not he has exercised parental rights and duties. When the address or identity of the putative father is unknown, the court may waive the giving of notice by publication, but when the giving of notice by publication is waived the order terminating parental rights shall not become final for a period of fifteen (15) days from the date of the order. (Emphasis added). The Supreme Court of Oklahoma has held that § 1131 requires a parent be given actual notice of any hearing to terminate parental rights. “If and only if the court finds the whereabouts of the parents cannot be ascertained, may notice be given by publication.” Tammie v. Rodriquez, 570 P.2d 332, 334 (Okla.1977). In addition to publication, a copy of the notice must be mailed to the parents’ last known address if such address can be ascertained with due diligence. See Dana P. v. State, 656 P.2d 253, 257 (Okla.1983); Tammie, 570 P.2d at 334. It is as true now as it was in 1940 when Justice Jackson observed that “[p]ublication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual... does or could examine all that is published to see if something may be tucked away in it that affects his property interests.” Mullane, 339 U.S. at 320, 70 S.Ct. at 660; see also Cate v. Archon Oil Co., Inc., 695 P.2d 1352, 1356 (Okla.1985). Thus, “[g]reat caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 343, 61 L.Ed. 608 (1917) (citation omitted). In Mullane the Supreme Court did not prohibit the use of publication in all circumstances as a means of providing constitutionally adequate notice. The Court held that publication is still a valid means of providing notice as to persons whose whereabouts could not with “due diligence” be ascertained. 339 U.S. at 317, 70 S.Ct. at 659. Section 1131 as construed by the Supreme Court of Oklahoma is not unconstitutional on its face. However, the critical question in the instant case is the basis for notice by publication — whether there was “due diligence” under Mullane to justify such a departure from the constitutional norm of service of notice. We are convinced that the district court here properly held that the premise for notice by publication was fatally defective so that the attempted notice by publication did not afford due process. From the record it is unmistakably clear that no diligent efforts were made to ascertain the whereabouts or address of Antonio Anico. For reasons that follow, we therefore uphold the district court’s conclusion that the statute, as applied here, denied due process. DHS Agent Litke made the affidavit for service by publication, stating that “after due search and diligent inquiry your affiant has been unable to ascertain an address at which personal service may be given and your affiant wishes to obtain service by publication.” (I R. 53) (emphasis added). However Litke testified in federal court that he did not gather the information in the praecipe or the petition filed in the state court. (VIII R. 13). He did not remember talking to any particular case worker on the case. His statement as to the father’s whereabouts was not “based on any independent information gathered by [him].” (Id. at 13). He said specifically that “he did not know” what efforts would have been made by the Protective Service office or the caseworker to locate the father. (Id. at 16). He said that if he felt that information he received was insufficient to file a petition, he would either make further inquiry, “or would have filed it with her information only, or something along that line.” (Id. at 34). Litke further testified that he relied on an investigative report from an intake worker in preparing the praecipe, petition and affidavit for service by publication. (Id. at 13, 16). The only relevant references contained in the report, Plaintiffs’ Exhibit 4 (Litke) here, are that the father’s address was listed as “Mexico” and that “[t]he baby’s father lives in Mexico.” The intake worker who made the report on investigation of the Ortega child abuse complaint was Mike Swepston. He testified his job was to determine if there had been child abuse. (IX R. 6). He sent in a report form, Plaintiffs’ Exhibit No. 4 (Litke) here, on the Ortega case. He was not involved in preparation of the affidavit for publication. (Id. at 13-14). Referring to the report form, he said that Sylvia Ortega told him the father’s home was “Mexico” and no other whereabouts were given. He asked if she knew a specific address and she said that she did not, “Just that he was in Mexico.” (Id. at 19). Swepston did not ask Sylvia if she still communicated with the father or he with her. Sylvia did not tell Swepston where the father’s family or relatives were. (Id. at 19-20). Swepston said the whereabouts of a person were unimportant to him if the person was not involved in child abuse, and in this case he would not look further beyond what he learned from his conversation with Sylvia. (Id. at 24). The persons preparing the petition for the state court did not contact Swepston. What can be discerned from the records kept by the DHS employees is illuminating. Antonio Anico’s identity as at least the putative father was known to DHS and the published notice of the hearing to terminate parental rights referred to him by name. (I R. 54). One month before Antonio Anico’s parental rights to Johnny were terminated, DHS knew that Antonio’s sister lived next door to Sylvia Ortega. (Ill R. 21; IV R. 19-20; VI R. 16; Plaintiffs’ Exhibit 13). Linda Green, the DHS caseworker assigned to Johnny, testified that although she was aware that Antonio Anico’s sister lived next door to Sylvia, she never remembered going to see the sister to ask if she knew where Antonio could be found. (VI R. 20-21, 36). More troubling, Green did not inform the state district court judge that Antonio Anico’s sister could be easily located or that Antonio had recently called Sylvia wanting to see his son, even though Green attended the termination hearing. (Id. at 29-30). See McKee v. Heggy, 703 F.2d 479, 482 (10th Cir.1983) (posted public notice deficient where police knew the location of the interested party and address of interested party’s parents). Moreover, shortly after the termination hearing, DHS knew the whereabouts of the parental grandparents. (III R. 17-18). See McKee, 703 F.2d at 482. We are cognizant of the cautionary note sounded by Justice Jackson in Múlleme that “[a] construction of the Due Process Clause which would place impossible or impractical obstacles in the way could not be justified.” 339 U.S. at 313-14, 70 S.Ct. at 657. “But when notice is a person’s due, process which is mere gesture is not due process.” Id. at 315, 70 S.Ct. at 657. We do not hold that the Due Process Clause requires DHS to make extreme efforts to ascertain the whereabouts of parents. Nevertheless in light of the critical parental rights at stake we are convinced that due process clearly requires that DHS exert diligent efforts to locate parents before their rights are terminated. See id. at 317, 70 S.Ct. at 658; see also Mennonite Board of Missions v. Adams, 462 U.S. 791, 798-99 n. 4, 103 S.Ct. 2706, 2711, n. 4, 77 L.Ed.2d 180 (1983) (a government body is not required to undertake extraordinary efforts to discover identity and whereabouts). Here, the efforts expended to locate Antonio Anico to ascertain his whereabouts or address were manifestly insufficient to satisfy the demands of the Due Process Clause. Accord McKee, 703 F.2d at 482 (reasonable diligent efforts include a reasonable attempt at ascertaining the name and last-known address of the interested party and informing any relatives of the interested party whose addresses were known about the actions to be taken). Therefore, the judgment of the district court must be affirmed. Ill The Indian Child Welfare Act The Kickapoo Tribe attempted to intervene in the adoption proceedings of Johnny, arguing that the ICWA applied. The petition to intervene was denied by the state district court which found that the ICWA did not apply. Foregoing an appeal of that decision, the Tribe sought to collaterally attack the state order in federal district court. The district court concluded that the ICWA did apply and was violated in this case. On appeal the defendants-appellants contend that there was an order denying the Kickapoo Tribe’s petition to intervene, that the order was appealable, and that no appeal was attempted after the state court ruling denying intervention. Brief of Appellants at 16. The petition for intervention of the Tribe had relied on the Indian Child Welfare Act. In the district court, the brief of the Department and the Department defendants for summary judgment argued that the provisions of 28 U.S.C. § 1738 on full faith and credit being given to state court proceedings, and res judicata principles, bar the Tribe’s reassertion of the ICWA. (I R. 10-14). We agree. The ICWA was enacted in 1978 to remedy perceived inequities in adoption standards and to protect the interest of Indian Tribes in the preservation of their valuable heritage. Guerrero, Indian Child Welfare Act of1978: A Response To The Threat To Indian Culture Caused By Foster And Adoptive Placements Of Indian Children, 7 Am.Indian L.Rev. 51, 67 (1979). In the ICWA, Congress declared that part of the trust responsibility of the United States is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. 25 U.S.C. § 1902. The ICWA “recognizes that preservation of the integrity of tribes is tied to control of adoption and foster home placement of [Indian] children.” F. Cohen, Handbook of Federal Indian law 241 (1982 ed.). The ICWA provides exclusive tribal jurisdiction over child custody proceedings where the Indian child resides on the tribal reservation, and, upon application, provides for transfers of child custody proceedings from state courts to tribal courts. See 25 U.S.C. § 1911; see also F. Cohen, supra, at 241; Guerrero, supra, at 67. Subsequent to the district court decision in this case, we decided Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir.1985), cert. denied, — U.S. -, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986). There we held that a Kansas court’s determination that the ICWA did not apply to a particular adoption proceeding is binding on the federal courts unless it is “so fundamentally flawed as to be denied recognition under 28 U.S.C. § 1738 [the full faith and credit statute].” Kremer v. Chemical Construction Corp., 456 U.S. 461, 480, 102 S.Ct. 1883, 1896, 72 L.Ed.2d 262 (1982). Our opinion in Kiowa Tribe rested on 28 U.S.C. § 1738, which requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the state in which the judgments were rendered. See Kremer, 456 U.S. at 466, 102 S.Ct. at 1889; see also 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4469, at 659-60, 669 (1981). The Supreme Court has held “that § 1738 requires a federal court to look first to state preclusion law in determining the preclusive effects of a state court judgment.” Thournir v. Meyer, 803 F.2d 1093, 1094 (10th Cir.1986) (quoting Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 381, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985)). The Oklahoma courts invoke the doctrine of res judicata when the following criteria are satisfied: (1) identity of the subject matter of the claim; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of quality or capacity in persons to be affected. Marshall v. Amos, 442 P.2d 500, 504 (Okla.1968). Employing the analysis used in Kiowa Tribe, we conclude that all four criteria are met here and that the Oklahoma courts would consider the Tribe’s suit barred by res judicata. First, in both suits the Tribe is essentially asserting its right to intervene in the adoption proceedings of Johnny Ortega under the ICWA; therefore, identity of the subject matter of the action is present. Second, in both suits the cause of action is based on the ICWA. Third, in both suits the Tribe and the adoptive parents are aligned as adversarial parties. Finally, there is no significant difference in the quality or capacity of the parties in the two actions. We further conclude that the proceedings satisfied “the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause.” Kiowa Tribe, 777 F.2d at 591 (quoting Kremer, 455 U.S. at 481, 102 S.Ct. at 1897). The record shows that the Kickapoo Tribe was afforded due process on the issue of the applicability of the ICWA by the state district court. Therefore, the district court’s opinion and judgment finding that the ICWA was applicable to this proceeding is reversed. IV Conclusion The ruling of the district court that Antonio Anico’s parental rights to Johnny Ortega were terminated in violation of the Due Process Clause, and that there be a re-determination on the custody and placement of Johnny Ortega by the state courts, is AFFIRMED. The ruling of the district court that the ICWA applied to the adoption proceedings of Johnny Ortega and that the ICWA was violated in this case is REVERSED. The case is REMANDED to the district court for further proceedings on the claims for damages and injunctive relief as to the procedural due process violation; and on remand, the district court shall enter appropriate orders to permit the State courts to proceed with a re-determination on the custody and placement of Johnny Ortega. IT IS SO ORDERED. . 25 U.S.C. §§ 1901 through 1923. . The notice in full read as follows (I R. 54): (5256) NOTICE OF HEARING No. JF-78-386 In the District Court of Oklahoma County, State of Oklahoma. In the Matter of Johnny Ortega, an Alleged Deprived Child. THE STATE OF OKLAHOMA TO: Antonio Aneco [sic]. YOU ARE HEREBY NOTIFIED that a duly certified petition has been filed in the Juvenile Division of the District Court of Oklahoma County, Oklahoma, alleging said child to be deprived and praying for termination of parental rights and praying that said child be brought before this Court to be dealt with according to law. YOU ARE FURTHER NOTIFIED that said cause is set for hearing the 26th day of April, 1978, at 1:30 P.M. in the Courtroom of Judge Stewart Hunter at the County Courthouse, Oklahoma City, Oklahoma, when and where you may appear to be heard. YOU ARE FURTHER ADVISED of your right to be represented by counsel of your choice at said hearing. Dated this 10th day of March, 1978. DAN GRAY, Court Clerk By Debra Thomas, Deputy (Seal) (8-11-78) . There is no indication in the record that notice was sent to the parties regarding the nunc pro tunc order. . 42 U.S.C. § 1996. . Antonio Anico has asserted paternity. Johnny’s mother, Sylvia Ortega, acknowledges Antonio as Johnny’s father. . Caseworker Green’s own case status report, Plaintiffs’ Exhibit No. 13, noted that on August 10, 1978, approximately one month before Antonio’s rights were terminated, “Ms. Ortega [Sylvia] stated Johnny’s father had called from Texas wanting to see him. She stated that his sister lives next to them in Chocataw [sic].” . Defendants argue that the affidavit for service by publication which recites that "due search and diligent inquiry” were undertaken to ascertain the whereabouts of Antonio Anico were sufficient to generate a genuine issue of material fact, precluding summary judgment. We disagree for several reasons. First, the affidavit recites a conclusion of law or merely conclusory facts on due diligence. A party opposing summary judgment must introduce more than conclusory facts or conclusions of law. See 6 J. Moore, Moore Federal Practice (Part I) ¶ 56.15a at 56-485. Second, the affiant testified subsequently by deposition that he never investigated the whereabouts of the father, (VIII R. 11-17), and merely relied on Swepston’s report, discussed above. In light of the depositions, the defendants are hard pressed to argue that there was a truly genuine issue of material fact. See Bennett v. Flanigon, 220 F.2d 799, 803 (7th Cir.1955) (deposition testimony removed issue raised by earlier allegation in complaint, permitting summary judgment); cf. Losch v. Borough of Parkesburg, Pennsylvania, 736 F.2d 903, 909 (3d Cir.1984) (summary judgment proper if opposing evidence is "too incredible to be believed by reasonable minds”). Further, the affidavit for service by publication and subsequent deposition testimony shows that the affiant Litke had no personal knowledge as to the efforts expended in attempting to locate the father. When relied on in proceedings under Rule 56 on summary judgment, the affidavit was insufficient to raise a genuine issue of fact because of the dictates of Fed.R. Civ.P. 56(e) that "opposing affidavits shall be made on personal knowledge.” . The defendants cite the cases Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), and Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), for the proposition that Antonio Anico should not be afforded constitutional protection in these circumstances. These cases are inapposite. In Lehr the Court held that the unwed father who had never established a relationship with his two-year old daughter was not entitled to an absolute right of notice of the proceedings for adoption by the child’s stepfather where New York sufficiently protected an unmarried father’s inchoate relationship by the maintenance of a putative father registry; registration there'would have entitled the father to notice of an adoption proceeding, but was not used. Oklahoma does not have a putative father registry or similar statutory protections, thus Lehr is not persuasive. Moreover, there has been no adjud

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

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

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

NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND TECHNICIANS, AFL-CIO, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Wrather Corporation, WPIX, Inc., Intervenors. No. 18849. United States Court of Appeals District of Columbia Circuit. Argued Jan. 6, 1965. Decided May 13, 1965. Mr. Warren Woods, Washington, D. C., with whom Mr. Jon F. Hollengreen, Washington, D. C., was on the brief, for appellant. Mr. John H. Conlin, Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, Daniel R. Ohlbaum, Deputy General Counsel, and Howard Jay Braun, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Thomas H. Wall, Washington, D. C., with whom Messrs. John B. Jacob and Alfred C. Cordon, Jr., Washington, D. C. , were on the brief, for intervenor, Wrather Corporation. Mr. Percy H. Russell, Jr., Washington, D. C., with whom Messrs. Aloysius B. McCabe and Erwin G. Krasnow, Washington, D. C., were on the brief, for intervenor, WPIX, Inc. Before Danaher, Burger and McGowan, Circuit Judges. BURGER, Circuit Judge: This is an appeal from an order of the Federal Communications Commission granting an application for assignment of the license of New York City metropolitan area radio station WBFM, owned by Wrather Corporation, to WPIX, Inc., the licensee of television station WPIX in New York, and denying appellant National Association of Broadcast Employees and Technicians’ (NABET’s) petition to deny the application or in the alternative to designate it for hearing. The transfer agreement provided that WPIX was not required to take on any of the employees of WBFM. NABET was the certified collective bargaining agent representing half a dozen of WBFM’s technical employees. In response to a NABET request to know whether WPIX would continue to recognize NABET as bargaining agent by accepting the existing collective agreement between it and Wrather, WPIX said that the sale was one for physical properties only and included no transfer of personnel and, further, that WPIX probably would not need more technical personnel in the immediate future but might be willing to consider the NABET members should a subsequent need arise. WPIX has collective bargaining agreements with six different unions, one of which agreements purports to cover all “radio broadcast” employees. The refusal of WPIX to “do business” with NABET rests primarily on the possibility of jurisdictional strife between IBEW, the union party to its existing bargaining agreement, and NABET. Appellant contends that the Commission was required to hold an evidentiary hearing to develop the public-interest ramifications of the proposed transfer growing out of NABET’s interests as bargaining agent. Its argument here, as at the Commission, is two-fold: (1) that the Commission must consider the economic injury to the six employees in determining what the public interest requires; (2) that WPIX’s refusal to recognize NABET’s bargaining rights contravenes national labor policy and therefore is prima facie against the public interest. NABET’s first contention is, on this record, founded upon a bare allegation that the transfer of the license will have an adverse economic impact on six employees of the assignor. We do not believe that this allegation, without more, compelled the Commission to inquire further into the matter by hearing. But we do not hold that the Commission lacks power to take labor relations matters into account as one of the factors in the totality of considerations in passing upon a license assignment application. If further allegations connect the impact on the employees with at least potentially substantial adverse effects upon the service being supplied the public by the licensed activity, we assume the Commission may protect that broader interest, of which it is the duly constituted guardian, by conditioning its consent in such manner as is likely to protect the public interest. But the Commission’s concern is focused always upon the service and, in the absence of explicit provision by Congress for the prescription by the Commission of economic benefits for those with no continuing role to play in the furnishing of the service, an allegation limited to this kind of injury does not require inquiry and consideration by the Commission. Nor does the allegation that WPIX’s refusal to become a party to the collective agreement between Wrather and NABET contravenes national labor policy require a hearing. As the Commission’s opinion notes, “WPIX Inc.’s pleading contains uncontroverted representations concerning the existence of its present collective bargaining agreements and its intentions not to deny union representation to any future employees of WBFM.” NABET’s principal reliance in urging a contrary finding is placed upon John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). That case involved the narrow question whether a surviving nonunionized corporation is bound to arbitrate employee grievances under the procedure set up by a collective agreement between the merged corporation and a union. Here, in contrast, there is no claim made concerning the existence of a compulsory arbitration procedure in the agreement between Wrather and NABET or what bearing such a procedure might have in the present context. The transfer approved by the Commission was a transfer of physical assets and operating authority; it did not include personnel; in Wiley the controversy was triggered by the wholesale movement of personnel pursuant to the plan of the merger. Here the “new employer” already has an agreement with a rival union which embraces the jobs in dispute; in Wiley the Court expressly-noted that it was not dealing with such a situation. See 376 U.S. at 551-552, n. 5, 84 S.Ct. 909. It is thus apparent that the Wiley case does not afford a basis for NABET’s claim that a hearing was required to consider the alleged disregard of national labor policy. Affirmed. . NABET understandably has not relied on threats of jurisdictional strife in order to compel a hearing. The Commission .was not unaware of the possibility of such strife here but we do not think that possibility or its impact on the public interest — the listening public — requires that the Commission grant a hearing. In argument the court was advised that the New York metropolitan area has 42 FM and 36 AM stations and that there is nothing especially distinctive about the programming WPIX proposes for WBFM. Even if we were to assume that WBFM might temporarily go “off the air” because of labor strife, the other facilities available to serve the public indicate the silence of WBFM would not be critical. Hence the Commission was not required to hold a hearing to consider whether such strife would come about. We might have another ease if, for example, we were confronted with a possibility that labor strife flowing from legitimate bargaining interests would extinguish the only source of weather reports to some remote area not served by other outlets.

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

DIVISION NO. 14, The ORDER OF RAILROAD TELEGRAPHERS, by R. D. Wilson, et al., for use and benefit of all persons similarly situated, Appellants, v. G. E. LEIGHTY, President, The Order of Railroad Telegraphers, H. C. Wyatt, Vice-President and General Manager of Norfolk and Western Railway Company, and Norfolk & Western Railway Company, Appellees. No. 8357. United States Court of Appeals Fourth Circuit. Argued Oct. 12, 1961. Decided Jan. 3, 1962. L. S. Parsons, Jr., Norfolk, Va. (Parsons, Stant & Parsons, Norfolk, Va., on brief), for appellants. A. Paul Funkhouser, Roanoke, Va., for appellees, Wyatt and Norfolk & W. Ry. Co. Edward J. Hickey, Jr., Washington, D. C. (Joseph L. Kelly, Jr., and Moses Ehrenworth, Norfolk, Va., on brief), for appellee, Leighty. Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges. SOBELOFF, Chief Judge. A problem that almost inevitably arises when railroads are merged.is how to integrate the seniority rights of the employees of the component roads. One of the commonplace objectives of a merger is to effect more economical and efficient performance through operating changes. Usually some of the operations of one or the other of the merging railroads are abandoned, and employees are displaced from their customary positions. Congress foresaw just such possibilities when it enacted that the I.C.C., before approving a merger, “shall require a fair and equitable arrangement to protect the interests of the railroad employees affected.” 49 U.S.C.A. § 5(2) (f). The I.C.C. has followed the entirely reasonable practice of looking to the employees’ bargaining representatives for some measure of guidance. Sometimes, however, while the railroad is indifferent as to how the competing interests of the individual employees are to be adjusted and stands ready to put into operation any arrangement acceptable to the employees, the latter find themselves unable to agree. This is such a case. The present litigation has its origin in the absorption of the Virginian Railway Company by the Norfolk & Western Railway Company. The telegraphers formerly employed by the Virginian, the “merged railroad,” are represented by Division 13 of The Order of Railroad Telegraphers, while those who before the merger were, and still are, Norfolk & Western employees are affiliated with Division 14. The railroad had tentatively agreed that no jobs would be abolished by reason of the merger if the seniority rosters of the two Divisions were integrated in respect to future jobs. However, the two Divisions could not agree on the manner of accomplishing the integration. The dispute centered around the fact that most if not all of the future job opportunities would be on the property of the old Norfolk & Western, to which Division 14 members formerly enjoyed exclusive access. For this reason, Division 14 contended for an integration plan which would deny to Division 13 members any credit for “old” seniority on the Virginian Railway when they bid for jobs outside their old seniority district. This plan, known as homesteading, was to have the same effect on the seniority rights of the members of Division 14 when they bid for jobs on the old Virginian property, but it was, for the reason above stated, reciprocal in theory only. On the other hand, Division 13 apparently insisted upon a plan, called dovetailing, whereby accrued seniority of all employees would be maintained no matter what jobs were being bid for. This controversy had not been settled when the Grand Division Convention, described as the “summit of power of the telegrapher’s order,” met in June of 1960. The Convention authorized the national president, Mr. Leighty, to resolve the dispute, but his efforts at conciliation failed. On August 31, 1960, Mr. Leighty, acting for the national order, entered into a collective bargaining agreement with the railroad embodying a compromise between the extreme positions of the two Divisions. It provided for integration of the seniority rosters of the two Divisions by dovetailing, but required the former Virginian employees to exhaust their job opportunities on their old district before exercising seniority bidding or “displacement rights on the Norfolk & Western vacancies or new positions.” Division 14 took an appeal, as permitted in the Convention’s resolution under which Mr. Leighty acted, to the Board of Directors which governs between conventions. This body unanimously affirmed the president’s action, and an appeal was then noted to the Grand Division Convention which is scheduled to meet in 1964. On January 13, 1961, District 14 instituted the present suit in the United States District Court for the Eastern District of Virginia. The plaintiffs sought a permanent injunction against the railroad and the parent union to prevent them from acting under the August 31 agreement and, in the alternative, a temporary injunction until the plaintiffs could be heard by the 1964 Grand Division Convention. The District Court dismissed the complaint, both for want of jurisdiction and on the merits. This is the appeal from that action. The contentions of Division 14 here are the same as before the intra-union agency and the District Court — that its members should not be detrimentally affected by the merger and that the August 31 agreement is unfair because its members will lose job opportunities without, as a practical matter, gaining rights in return. The essential legal argument is that the settlement achieved by the national order through its president, Mr. Leighty, is invalid because the railroad should have bargained with Division 14 rather than with the parent body. Reliance is placed on Article XI, section 16(c) of the union constitution and Rule 18 of the working agreement between Division 14 and Norfolk & Western. We do not reach the merits of this argument, having concluded that this is an intra-union representation dispute and hence not justiciable in the District Court. The legislative history of the Railway Labor Act, 45 U.S.C.A. § 151 et seq. is carefully traced in Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); General Committee of Adjustment, etc. v. Missouri-Kansas-Texas R., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943); and General Committee of Adjustment, etc. v. Southern Pacific Co., 320 U.S. 338, 64 S.Ct. 142, 152, 88 L.Ed. 85 (1943). This trilogy of cases authoritatively determines that judicial intervention in railway labor disputes is restricted to the narrowest scope; that large segments of this field remain subject to the voluntary processes of conciliation, mediation and arbitration ; that particularly in representation disputes the adjudicatory function has been committed by Congress to the National Mediation Board; and that the services of this Board may be invoked for the adjustment of grievances and disputes arising between a railroad and its employees concerning changes in rates of pay, rules, or working conditions not adjusted in conference and not referable to the Railroad Adjustment Board. The General Committee cases involved disputes between two certified unions, each claiming the authority to treat with the railroad on a . particular issue. The railroad having bargained with one, the other brought suit in the District Court to set aside the ensuing contract. The argument was pressed that the contract was invalid because it had been entered into by the railroad with the wrong employee representative and that the District Court had jurisdiction to decide the case because the railroad had thereby violated the express mandate of the Railway Labor Act requiring bargaining with the true employee representative. In rejecting this argument, the Court reasoned that it was clear “from the legislative history of § 2, Ninth [45 U.S.C.A. § 152, Ninth, which vests the Mediation Board with jurisdiction to resolve representation disputes], that it was designed not only to help free the unions from the influence, coercion and control of the carriers but also to resolve a wide range of jurisdictional disputes between unions or between groups of employees.” The Court went on to say that “[h]owever wide may be the range of jurisdictional disputes embraced within § 2, Ninth, Congress did not select the courts to resolve them,” but “[t]o the contrary, it fashioned an administrative remedy [which] is exclusive.” 320 U.S. at 336, 64 S.Ct. at 152. The Court ordered dismissal of the cases by the District Court for want of jurisdiction. These decisions furnish the controlling directive for our disposition of the present case. Indeed, Division 14 makes the precise argument to establish federal court jurisdiction that was there rejected by the Court. Although here two separate unions are not involved, the dispute is nonetheless a representational one which falls well within the range of the Court’s holding in the General Committee cases. We must decline to follow decisions of lower courts to the contrary. Railroad Yardmasters of America v. Pennsylvania R., 224 F.2d 226 (3d Cir. 1955); Order of Railway Conductors and Brakemen v. Switchmen’s Union, 269 F.2d 726 (5th Cir. 1959). In the Fifth Circuit case the question presented was whether the contract between the railroad and the Switchmen’s Union was valid since no notice of the negotiations was given to the Brotherhood of Railroad Trainmen. The controlling issue was, as the Fifth Circuit recognized, whether Brotherhood of Railroad Trainmen or Switchmen’s Union was the proper representative. The court held that it had jurisdiction to settle the dispute because it viewed the issue as concerning the underlying validity of the contract, and not its interpretation. The same reasoning appears in the Third Circuit case. Both courts place principal reliance on the language of the Supreme Court in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 774, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952), to the effect that district courts have jurisdiction to determine the “validity” of a bargaining agreement. However, Howard dealt with an agreement directly violative of the Act, and in view of the General Committee cases, the conclusion is inescapable that district courts have no such authority where “validity” of the contract depends upon the merits of a representation dispute. It is suggested that an injunction would merely maintain the status quo pending an ultimate decision by the Convention in 1964. However, an injunction could have no such neutral effect here. It would not merely hold the line, without injury to either party, pending Convention action. Rather, it would reverse irretrievably for the intervening period the action of the Board of Directors and the president, and give to Division 14 the rights it claims to the exclusion of Division 13. Whatever merits this solution may have, a court injunction would not be an act of neutrality. On the face of things, it would seem appropriate and consistent with national labor policy for a parent labor organization to undertake through its own organizational machinery to remove internal tensions by resolving disputes between two of its subordinate bodies pressing competing claims to work opportunities for their respective members. However, if these intra-organizational efforts are challenged, Board action, not judicial intervention, is indicated. For these reasons the order of the District Court dismissing the complaint is Affirmed, . This section vests the divisions with authority to “negotiate, make, establish and administer collective bargaining agreements governing wages, rules and working conditions” but also restricts division authority to matters which are strictly intra-divisional. Also, any agreement between a division and the railroad must be approved by the President of the Order. . Rule 18 provides: “Seniority rights of men on newly acquired lines shall date on the seniority district to which they become attached only from date of consolidation. In like manner seniority rights of men on tbe seniority district adopting such line shall apply on the adopted line only from date of consolidation.” The plaintiffs do not argue that this provision is not subject to change; they maintain only that the national order had no power to make the change unilaterally. . At oral argument, counsel for Division 14 attacked the collective agreement as unfair in operation, but did not assert bad faith or that his clients had been hostilely discriminated against. . See 45 U.S.C.A. § 152, Ninth. . Decisions of the Supreme Court subsequent to the General Committee cases establish that the National Railroad Adjustment Board is the forum in which jurisdictional disputes should be litigated if they depend for resolution upon an interpretation of existing bargaining agreements. See Order of Ry. Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318 (1946); Slocum v. Delaware, L. & W. R., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950). . The court viewed the case as not requiring adjudication of a representation dispute, and, therefore, within the rule of Virginian Ry. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937), see footnote 7, infra. However, it is apparent from the opinion that there was some doubt as to the bargaining authority of the Switchmen’s Union. . The only circuit court case found in which the General Committee cases were considered in the context of an alleged representation dispute is Brotherhood of Railroad Trainmen v. Smith, 251 F.2d 282 (6th Cir. 1958). There the court recognized the force of the Supreme Court cases, but convincingly demonstrated that no real representation dispute was involved in its case: The Mediation Board had certified the Order of Railway Conductors and Brakemen as the representative of the conductors and the Brotherhood of Railroad Trainmen as the representative of the trainmen, but Brotherhood of Railroad Trainmen undertook to bargain with the railroad in respect to the seniority rights of conductors. The facts, therefore, brought the case within the purview of Virginian Ry. Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937), where the Court held that the District Court had jurisdiction to enjoin a contract entered into between the railroad and a company union in disregard of the Federation which had been certified by the Board as the employee representative. It may also be noted that the Seventh Circuit has held that an intra-union representation dispute which depends for resolution upon an interpretation of the union constitution should be litigated in the state rather than the federal courts. See Peterson v. Brotherhood of Locomotive Fire. & Eng., 272 F.2d 115 (7th Cir. 1959). This conclusion may be at variance with the statute which has vested the Mediation Board with exclusive jurisdiction to resolve representation disputes. In any event, that circuit agrees that the federal district courts are without jurisdiction in such matters.

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, for the Use and Benefit of GLOBAL BUILDING SUPPLY, INCORPORATED, Plaintiff-Appellant, v. WNH LIMITED PARTNERSHIP; Thomas P. Harkins, Incorporated; Harkins Builders, Incorporated; the Federal Insurance Company, Defendants-Appellees, and Toledo Drywall, Incorporated, Defendant. UNITED STATES of America, for the Use and Benefit of SUPERIOR SUPPLY ASSOCIATES, INCORPORATED, Plaintiff-Appellant, v. WNH LIMITED PARTNERSHIP; Thomas P. Harkins, Incorporated; Harkins Builders, Incorporated; Toledo Drywall, Incorporated; Today Contractors, Incorporated; the Federal Insurance Company, Defendants-Appellees. Nos. 92-1467, 92-1775. United States Court of Appeals, Fourth Circuit. Argued March 4, 1993. Decided June 9, 1993. Robert Keith Richardson, Odin, Feldman & Pittleman, P.C., Fairfax, VA, argued, for plaintiff-appellant. David Charles Hjortsberg, Reese & Carney, Columbia, MD, argued, for defendants-appellees. Before PHILLIPS and NIEMEYER, Circuit Judges, and RESTANI, Judge, United States Court of International Trade, sitting by designation. OPINION PHILLIPS, Circuit Judge: The Miller Act, 40 U.S.C. § 270a et seq., requires persons awarded substantial public works contracts with the United States to post a payment bond protecting some of those supplying the contract’s labor and materials from defaults in payment. In this case we consider whether two materials suppliers victimized by such a default can lay claim to the bond or whether they are too distant from the party contracting with the government to do so. The district court took the latter view, and we affirm its summary judgment rejecting their claims. I In September of 1989, Thomas P. Harkins, Inc. (Harkins Inc.) contracted with the United States Navy to construct and lease a large apartment complex. Harkins Inc. had been organized in 1965. At the time of contracting, its shareholders were its president, J.P. Blase Cooke, and its chairman, Thomas P. Harkins (Harkins). Harkins and Cooke later formed another entity to execute the project, WNH Limited Partnership. They installed Harbor Land Company — a corporate shell wholly owned by Harkins — as the general partner and themselves as limited partners. Harbor Land Company held only one percent of the partnership; Harkins and Cooke owned the remainder. On May 10, 1990, WNH assumed Harkins Inc.’s obligations under the lease/construction contract with the Navy pursuant to agreements among WNH, Har-kins Inc., and the United States; Harkins Inc. remained involved in the contract solely as guarantor of performance for WNH. That same day WNH also contracted with another entity, Harkins Builders, Inc. (Builders), to construct the complex, thereby subcontracting a substantial portion of WNH’s total contractual obligation to the Navy. Organized in 1974, Builders is wholly owned by its chairman, Harkins, and its president, Cooke. A week later WNH posted the payment bond required by the Miller Act, with Federal Insurance Company as surety. Federal had conditioned its agreement to serve as surety on execution of an indemnity agreement by all members of the Harkins Group, which included Harkins Inc., WNH, Builders, and two other corporate entities not otherwise relevant here. Shortly thereafter Builders commenced construction. In late 1990 and early 1991 it retained Today Contractors, Inc. and Toledo Drywall, Inc. to furnish and install drywall on the project. Global Building Supply, Inc., one of the plaintiffs-appellants here, supplied materials to Toledo. Superior Supply Associates, Inc., the other plaintiff-appellant, supplied materials to Toledo and Today. Neither supplier was paid. Consequently, both sued. Global sought relief against Toledo on the supply contract and also brought a use-suit against Harkins Inc., WNH, Builders, and Federal (as surety) on the Miller Act payment bond; Superior filed a similar claim on amounts owed it by both Toledo and Today. Following submission of stipulated exhibits, memoranda, and oral argument in the Global suit, the district court entered a default judgment for Global on its contract claim against Toledo but also granted summary judgment for Harkins Inc., WNH, Builders, and Federal on the Miller Act claim, holding that Global’s relationship to WNH was of too remote a degree to permit recovery under the Miller Act. Superior agreed to rest on Global’s exhibits and arguments and submitted its case on the briefs. The district court granted summary judgment for Superior on its contract claims against Toledo and Today but once again, and for identical reasons, granted summary judgment for Harkins Inc. and its associates on the Miller Act claim. Both Global and Superior appealed the grants of summary judgment for Harkins Inc., WNH, Builders, and Federal on the Miller Act payment bond. Global also appealed the. district court’s denial of its own motion for summary judgment on the Miller Act claim, but Superior filed no equivalent motion. We consolidated the two appeals at the request of all parties. II A In reviewing the district court’s decision, we apply the same standard it did, viewing all facts and inferences in the light most favorable to the nonmovant to determine whether summary judgment was appropriately granted. Moore v. Winebrenner, 927 F.2d 1312, 1313 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 97, 116 L.Ed.2d 68 (1991). The Miller Act protects those who furnish labor or material for substantial federal public works contracts from defaults in payment by compelling the party awarded the government contract (the “contractor”) to post a payment bond against which the suppliers of labor or materials may claim in the event of such a default. 40 U.S.C. § 270a(a)(2), 270b(a). This provides laborers and materialmen on federal projects with a substitute for the common law materi-alman’s lien and its relatives, which can’t attach to federal property. J.W. Bateson Co. v. United States ex rel. Board of Trustees, 434 U.S. 586, 589, 98 S.Ct. 873, 875, 55 L.Ed.2d 50 (1978). The statute doesn’t apply to everyone who supplies labor or materials toward the completion of the federal public works contract, however; it’s limited to those who “deal directly with the prime contractor” and those who “have [a] direct contractual relationship with a subcontractor.” Clifford F. MacEvoy Co. v. United States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107, 64 S.Ct. 890, 894, 88 L.Ed. 1163 (1944). Global and Superior claim no express or implied contractual relationship with the prime contractor in this case; instead, they assert direct relationships with the “subcontractors” Toledo and Today. Bateson, however, essentially limited statutory “subcontractors” to first-tier subcontractors, i.e. those having direct contractual relations with the prime contractor. 434 U.S. at 594, 98 S.Ct. at 877. That means parties other than first-tier subcontractors and those having direct contractual relations with them are too remote to recover under the statute. This poses problems for Global and Superior, because a formal approach to this case would label WNH the prime contractor, Builders the subcontractor, and Toledo and Today second-tier subcontractors. Global and Superior only had contracts with Toledo and Today, so this approach would identify them as third-tier subcontractors, placing the Miller Act payment bond posted by WNH beyond their reach. Not surprisingly, Global and Superior seek to avoid this harsh result by taking a different tack. They argue for a functional, rather than formal, definition of “prime contractor” that, given the inbred nature of the contractual relationships here and the alleged virtual identity of WNH and Builders, would collapse those two entities into one prime contractor. That would bring Global and Superior within reach of the payment bond by transforming Toledo and Today into first-tier subcontractors, leaving Global and Superior in the position of second-, rather than third-, tier subcontractors. We reject this approach, for the reasons that follow. B Global and Superior correctly assert that the Miller Act’s remedial purposes require liberal construction and application. MacEvoy, 322 U.S. at 107, 64 S.Ct. at 893. That liberality animated the Supreme Court’s construction of the Act in F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), heavily relied on by Global and Superior, wherein the Court adopted “a functional rather than a technical definition for the term subcontractor” focusing on “the substantiality and importance of [the entity’s] relationship with the prime contractor.” Id. at 123, 94 S.Ct. at 2162. Rich involved a Miller Act payment bond claim by Industrial Lumber Company, which had supplied plywood to Cerpac Company for ultimate provision to the F.D. Rich Company, a government contractor. Id. at 118-20, 94 S.Ct. at 2159-61. Relying on MacEvoy’s holding that a direct contractual relationship with a mere supplier of — rather than subcontractor for — the prime contractor doesn’t permit recovery under the Miller Act, Rich argued that its plywood supply contract with Cerpac, for the satisfaction of which Industrial had been retained, rendered Cerpac a supplier and therefore barred Industrial’s recovery on the bond. Id. at 122, 94 S.Ct. at 2161. Unlike the supplier in MacEvoy, however, Cerpac had two contracts with Rich arising out of the latter’s government contract. Although one was the simple plywood supply contract described above, the other was more involved, calling for Cerpac to select, modify, detail, and install custom mill-work on the government project. Id. at 119, 94 S.Ct. at 2160. With this in mind, Industrial argued that the Court should consider the entirety of Cerpac’s relationship with Rich and find it a subcontractor under the Act. The Court agreed, finding that the commonality of ownership, the conduct of prior dealings, and the multiplicity of contracts between Cerpac and Rich rendered the former a subcontractor, and not merely a supplier, of the latter. Id. at 124, 94 S.Ct. at 2162. Taken together, MacEvoy, Rich, and Bate-son present a functional approach to distinguishing first-tier “subcontractors” from other entities contracting with the prime contractor circumscribed by bright-line rules barring recovery by second-tier entities contracting with nonsubcontractors and by all entities beyond the second-tier. Global and Superior seek to undermine the latter restriction by relying on Rich’s functional approach to collapse a putative general contractor and a putative first-tier subcontractor into a single entity. But the Supreme Court’s application of a functional test to determine whether one entity was a subcontractor of another rather than a mere supplier certainly doesn’t compel a similar approach to the question whether two distinct corporations should be treated as a unitary “contractor” under the Miller Act. See United States ex rel. Gold Bond Bldg. Prods, v. Blake Constr. Co., 820 F.2d 139, 142 (5th Cir.1987). In fact, neither MacEvoy, Rich nor Bateson resolves the question with which we are now presented. Considerations of sound policy coupled with the general tenor of prior judicial decisions, however, lead us to reject appellants’ contentions. In the context of the Miller Act, the Supreme Court has repeatedly warned that the “salutary policy [of liberal construction of remedial statutes] does not justify ignoring plain words of limitation and imposing wholesale liability on payment bonds.” Bateson, 434 U.S. at 594, 98 S.Ct. at 878 (quoting MacEvoy, 322 U.S. at 107, 64 S.Ct. at 893). That warning is apt here. The statute in question identifies the (prime) “contractor” as the person awarded the contract with the government, 40 U.S.C. § 270a(a), or the person posting the payment bond, 40 U.S.C. § 270b(a); it leaves little room for interpretation. Unless Builders can be collapsed into WNH or otherwise considered the legal “person” awarded the government contract or posting the payment bond, it can’t be classified a prime contractor. We think that’s appropriate only where ordinary principles of corporate law permit the courts to disregard corporate forms. The aging pre-Bateson cases on which Global and Superior rely, Glens Falls Ins. Co. v. Newton Lumber and Mfg. Co., 388 F.2d 66 (10th Cir.1967), cert. denied, 390 U.S. 905, 88 S.Ct. 821, 19. L.Ed.2d 873 (1968); Continental Casualty Co. v, United States ex rel. Conroe Creosoting Co., 308 F.2d 846 (5th Cir.1962); Fine v. Travelers Indemnity Co., 233 F.Supp. 672 (W.D.Mo.1964), arguably applied a more lenient standard, but each understandably fails to address the Supreme Court’s more recent admonition in Bateson to heed the Miller Act’s terms and avoid imposing “wholesale liability” on payment bonds. 434 U.S. at 594, 98 S.Ct. at 878. The statute by its terms limits recovery to those having direct contractual relationships with subcontractors who in turn have direct contractual relationships with the “contractor furnishing [the] payment bond,” 40 U.S.C. § 270b(a), and we must-enforce that limitation. In rigorously applying it, we follow other courts which have recognized that “in [the Miller Act’s] risk-allocation scheme certainty is essential.” Gold Bond, 820 F.2d at 142; see United States ex rel. K & M Corp. v. A & M Gregos, Inc., 607 F.2d 44 (3d Cir.1979); see also Bateson, 434 ,U.S. at 593, 98 S.Ct. at 877 (noting “the importance of certainty with regard to bonding practices on Government construction projects”). While the possibility that general contractors will weave elaborate webs of do-nothing subcontractors between themselves and the ranks of legitimate subcontractors in order to deprive them, of Miller Act coverage cannot be discounted altogether, it must be balanced against the uncertain allocation of risks that might result from a more open-ended inquiry and the ability of professional parties to provide contractually their own insurance against defaults. Parties contracting with others who can either produce a contract with the government or produce a contract with a subcontractor who can in turn produce a government contract will have the assurance of a Miller Act remedy. All other parties will have the assurance of its lack, and the incentive to order their affairs accordingly. C Having established the rule to be applied where a party seeks to collapse two entities into a single prime contractor under the Miller Act, we now apply it. Corporate forms exist to limit liability, and courts are reluctant to set them aside simply because they’ve done so. Decisions to “pierce the corporate veil” turn on a case-by-ease factual inquiry in which the presence of the following factors suggests with varied force the appropriateness of disregarding the corporate forms distinguishing two business entities: gross undercapitalization of the subservient corporation, failure to observe corporate formalities, nonpayment of dividends, siphoning of the subservient corporation’s funds, non-functioning officers and directors, a lack of corporate records, and the fact that the corporation is merely a facade for the operation of the dominant stockholder or stockholders. Keffer v. H.K Porter Co., 872 F.2d 60, 65 (4th Cir.1989). The general absence of these factors here suggests that disregarding corporate forms would be inappropriate. Global and Superior presented no evidence that Builders was un-dercapitalized, lacked corporate records separate from WNH’s, or was a victim of siphoning by WNH. They argue, in essence, that both WNH and Builders are mere facades for Harkins and Cooke, occasionally suggesting in addition that corporate forms haven’t been observed and that WNH’s and Builder’s officers and directors really have no role. We disagree. The record shows that Builders is a fully functional general contractor operating independently of WNH. The fact that Harkins Inc. was marketing the collective expertise of the Harkins Group when it bid on the contract doesn’t render WNH and Builders the same corporation. Harkins and Cooke installed WNH rather than Builders as the government contractor for a variety of sound business reasons, not simply to deprive remote subcontractors of a statutory remedy. WNH was a single-project development partnership whose role was to acquire the property, build the project, and lease it to the government for twenty years. Its limited partnership form provided well known tax advantages not available to a corporation like Builders. Builders, by contrast, was a general contractor of long standing with a number of other clients whose role was to perform the actual construction. Separating the two entities kept WNH’s mortgage creditors out of Builders’s coffers and Builders’s other construction creditors away from WNH’s funds. The evidence doesn’t support the intimation by Global and Superior that WNH and Builders failed to observe corporate forms. Their relations were governed by a valid and enforceable contract. WNH breached its contractual obligation to the government by inadvertently omitting certain provisions in that contract, but this doesn’t make WNH and Builders the same corporation. Nor does the fact that WNH’s standard form contract with Builders refers to the former as the project “owner” and the latter as the “contractor.” The claim that WNH and Builders had nonfunctional officers is likewise unsustainable. Harkins and Cooke controlled both corporations and served as their chief officers, so it’s unsurprising that they resolved disputes between them. Richard Lombardo, Vice President of Harbor Land Company, WNH’s general partner, administered the project for WNH. James Tobin, a Vice President of Builders, ran the job for that corporation. The fact that Harkins and Cooke resolved disputes between. the, two corporations doesn’t change that; they were, after all, the chief officers of WNH’s general partner and of Builders. Global and Superior rely heavily on this commonality of ownership and control between WNH and Builders, but that without more doesn’t justify setting aside corporate forms, and nothing more exists. Global and Superior point to a host of facts alleged to be material, but they’ve failed to establish that any party had difficulty determining whether it was dealing with WNH or Builders. Under the circumstances, disregarding corporate forms would be inappropriate. IV Viewing the parties’ contentions in the light most favorable to the nonmovants Global and Superior, it’s nonetheless apparent that application of our construction of the Miller Act to the facts presented here leaves Global and Superior in the position identified as theirs by the district court — third-tier subcontractors for whom WNH’s Miller Act payment bond was beyond reach. We therefore affirm that court’s challenged orders granting summary judgment for Harkins Inc., WNH, Builders, and Federal on the Miller Act claims brought by Global and Superior and denying summary judgment for Global on the same. SO ORDERED. . At the time it was called Harkins CM, Inc. . Because WNH owns the project here and merely leases the complex to the government, it appears that those remedies were actually available to Global and Superior in this case. See Va.Code Ann. § 43-1 et seq. . Claims by the latter group also require provision of timely notice of claim to the prime contractor, 40 U.S.C. § 270b(a), but that’s not contested here. . Moreover, all who have direct contractual relations with the prime contractor aren’t "subcontractors"; the term includes only those who ”perform[] for and take[] from the prime contractor a specific part of the labor or material requirements of the original contract.” MacEvoy, 322 U.S. at 109, 64 S.Ct. at 894. Ordinary laborers and materialmen don't qualify. Id. Appellees don’t deny that Toledo and Today were performing a specific part of the original contract, however; they claim only that Toledo and Today were second-tier subcontractors rather than first-tier ones. . It’s not clear whether federal or state corporate law supplies the rule governing our decision whether to disregard the corporate forms distinguishing WNH from Builders, compare Kamen v. Kemper Fin. Servs., Inc., —. U.S. -,- -, 111 S.Ct. 1711, 1717-18, 114 L.Ed.2d 152 (1991) (requiring incorporation of state law concerning shareholder demand requirement as rule of decision in private action under federal securities laws because parties expect their corporate affairs to be governed by state law and because incorporating the state rule wouldn't impair the federal remedy or contravene the statute), with United States ex ret Woodington Elec. Co. v. United Pac. Ins. Co., 545 F.2d 1381, 1382 (4th Cir. 1976) (applying federal law to determine whether two parties are contractor-subcontractor or joint venturers in Miller Act action) (citing Rich, 417 U.S. at 127-28, 94 S.Ct. at 2164). Since appellants rested their hopes on the contention that the standard for collapsing two corporations under the Miller Act was "not nearly so stringent" as the test for piercing the corporate veil, Appellants' Brief at 35, and appellees contended ■that a "sham” rule was inappropriate under any circumstances and its application unwarranted here regardless, neither party found it necessary to address the conflicts question we've identified. Finding the substantive result unambiguous under. any of the conceivably applicable tests for , disregarding corporate form, we decline to take up this unargued question here. See Keffer v. H.K. Porter Co., 872 F.2d 60, 65 (4th Cir.1989); Travel Committee, Inc. v. Pan American World Airways, Inc., 91 Md.App. 123, 603 A.2d 1301, 1317-19(19.92); Beale v. Kappa Alpha Order, 192 Va. 382, 64 S.E.2d 789, 797-98 (1951).

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

COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Appellees, v. Carmen TURNER, Appellant. No. 89-7120. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 20, 1989. Decided Jan. 26, 1990. Linda Lazarus, with whom Gerald J. Stief, Robert J. Kniaz, Robert L. Polk, and Bruce P. Heppen were on the brief for the appellant. Andrew T. Karron, with whom Maureen E. McGirr, and Arthur B. Spitzer were on the brief for appellees. Before MIKVA, EDWARDS, and WILLIAMS, Circuit Judges. . The district judge did not make the findings required by Stewart because he relied on United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (holding the public sidewalks around the Supreme Court to be a traditional public forum), and held that the above ground areas of WMATA are traditional public forums. CCNV, 714 F.Supp. at 32. Opinion for the Court filed by Circuit Judge MIKVA. Opinion concurring in the judgment filed by Circuit Judge WILLIAMS. MIKVA, Circuit Judge: The Washington Metropolitan Area Transit Authority (“WMATA”) promulgated a regulation (the “Regulation”) governing the use of WMATA property by those wishing to engage in free speech activities. The trial court determined that certain provisions of the Regulation were facially vio-lative of the first amendment and thus invalid. In particular, the trial court invalidated the provisions that require those who wish to engage in free speech activities to obtain a permit, empower WMATA to modify or rescind the permit under certain specified conditions, allow WMATA to set the maximum number of persons who may engage in free speech activities on a station-by-station basis, and prohibit certain forms of expression. For the reasons expressed below, we affirm the trial court’s decision to invalidate the Regulation’s permit requirement and the provisions allowing WMATA to establish the maximum number of people who may engage in free speech activities in each station, empowering WMATA to suspend or modify a permit, and requiring that free speech activities be carried out in a “conversational tone.” We reverse the trial court’s decision to strike the provisions banning chanting, dancing, shouting, outcries, and the use of musical instruments and voice amplification devices, and we remand for development of the factual record necessary to evaluate the constitutionality of these restrictions. I On January 15, 1987, WMATA adopted the Regulation to govern “the organized exercise of rights and privileges which deal with political, religious, or social matters and are non-commercial.” The Regulation requires those wishing to engage in these free speech activities to obtain a permit by mail or in person from the WMATA central business office during normal business hours. The Regulation also provides for the enforcement of its restrictions under applicable local criminal laws and ordinances. In a separate consolidated criminal action, appellees Snyder, Fennelly, and other members of Community for Creative NonViolence (“CCNV”) were arrested and prosecuted for allegedly violating the Regulation. Superior Court Judge Hamilton dismissed the case on the grounds that the Regulation was facially overbroad and thus violative of the first amendment. Appellees subsequently filed a complaint charging that the Regulation contravened the first, fifth, and fourteenth amendments to the Constitution. The parties filed cross-motions for summary judgment. On May 17,1989, Judge Sporkin issued a Memorandum Opinion and Order granting the appellees’ motion for partial summary judgment and invalidating the entire Regulation. 714 F.Supp. 29. On May 19, 1989, the trial court issued an Amended and Substituted Order superseding the May 17, 1989 order and granting in part the appel-lees’ motion for partial summary judgment. - F.Supp. -. The trial court’s Amended Order invalidated the following provisions of the Regulation: Section 100.10 Free Speech Activities (b) Permit. All individuals and groups requesting permission to engage in free speech activities on WMA-TA property must first submit and have approved the permit request in accordance with Section 100.2, permits. (c) Modification and Suspension. All free speech permits are subject to modification and suspension as a result of or in the event of any emergencies such as snow storms, traffic accidents, power failures, transportation strikes; or on the day of the observance of national holidays; or other conditions which may affect the traffic flow in the area covered by free speech activities creating a dangerous condition or substantially interfering with the general public. (e¡T Number of Individuals. The number of persons permitted to engage in free speech activities at each Metro Station will be designated on a station-by-station basis. (g) Prohibitions. Free speech activities are to take place in a conversational tone and at no time shall such activities include chanting, dancing, shouting, outcries, or the use of any device for voice amplification or any other sound device including musical instruments. II A. The Permit Requirement The trial court determined that the Regulation’s permit requirement, § 100.10(b), constitutes an unconstitutional prior restraint on the exercise of first amendment rights. Because § 100.10(b) requires that any party who wishes to engage in free speech activities on WMATA property must first obtain a permit from the Office of General Counsel, it is a prior restraint, as it gives “ ‘public officials the power to deny use of a forum in advance of actual expression.’ ” Ward v. Rock Against Racism, - U.S. -, 109 S.Ct. 2746, 2756 n. 5, 105 L.Ed.2d 661 (1989) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1976)). The Supreme Court has consistently indicated that a system of prior restraint comes to a court “bearing a heavy burden against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n. 10, 83 S.Ct. 631, 639 n. 10, 9 L.Ed.2d 584 (1963). The Court has also noted, however, that prior restraints are not per se invalid. A prior restraint may be constitutional if attended by procedural safeguards designed “to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). To this end, the Court has required the regulating body to provide “narrow, objective, and definite standards to guide the licensing authority” and ensure a content-neutral determination. Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969). In accord with these precedents, this court has indicated that reasonable time, place, and manner restrictions are an exception to the general prohibition against prior restraints. See Lebron v. WMATA, 749 F.2d 893, 896 (D.C.Cir.1984). This court has also stated that it is common ground that appropriate permit systems are permissible under the First Amendment.... A permit system is an embodiment of time, place, and manner restrictions that have long enjoyed the approbation of the Supreme Court. Kroll v. United States Capitol Police, 847 F.2d 899 (D.C.Cir.1988), modified on reh’g, No. 83-2014 (Jan. 19, 1989) (emphasis added). The standard for reviewing time, place, and manner restrictions on expression protected by the first amendment depends on the nature of the forum being regulated. If it is a “public forum,” the Supreme Court has held that the regulation must be content-neutral, narrowly tailored to serve a significant governmental interest, and allow for sufficient alternative channels of communication. See Rock Against Racism, 109 S.Ct. at 2753. If the proposed forum for expression is not a public forum, the regulation will be upheld as long as the restrictions are reasonable and are not directed at opposing the views of particular individuals. See Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1986). Courts that have addressed the public forum question have determined that a property may become a public forum in two ways. First, courts have tended to characterize as a public forum property that resembles streets and parks because such property historically has been devoted to the exchange of free ideas. See, e.g., United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1982) (sidewalks surrounding the Supreme Court grounds); see also U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760, 763-66 (D.C. Cir.1983) (discussing the factors that support “public forum” status). Second, in Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), the Court stated that it has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent. Id. at 802, 105 S.Ct. at 3449; see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (state university created public forum for students’ use by express policy of making its meeting facilities available for their use); Madison Joint School Dist. v. Wisconsin Employment Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (state statute providing for open school board meetings created public forum); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (municipal auditorium and city-leased theater were public fora because they were designed for and dedicated to expressive activities). In contrast, the Court has refused to find a designated public forum where there is clear evidence of contrary intent or the nature of the regulated property is inconsistent with free speech activity. See, e.g., Perry Education Ass’n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (school district’s internal mail system is not a public forum); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (advertising areas on city buses were not public fora because city intended to limit access to advertising space); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (military base is not a public forum because principal function of property would be disrupted by expressive activity); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (same justification for holding that prisons are not public fora). Under the foregoing standards, the above-ground free areas of the WMATA stations are public fora, either in traditional terms or by designation. To the extent that this property is indistinguishable from the public sidewalks, it constitutes a traditional public forum under Grace. Alternatively, the above-ground free areas are designated public fora because, by promulgating the Regulation and its predecessor regulation, WMATA has indicated an intent to open these areas to a wide range of free speech activities. The fact that the Regulation attempts to limit the time, place, and manner of this expression does not alter this conclusion. WMATA’s arguments to the contrary are somewhat puzzling. WMATA contends that, at most, the above-ground free areas are public fora dedicated to a specific use and thus are not open to the public at large. The terms of the Regulation belie this assertion, however, because they do not purport to limit permits to certain groups or individuals. Rather, any group may engage in very broadly defined free speech activities in the above-ground free areas so long as they obtain a permit-which, WMATA has vehemently argued, may be denied only for safety-related reasons. Thus, WMATA's reliance on cases that have recognized the government's right to limit access to a forum to select groups or purposes is misplaced. Significantly, the Supreme Court's language in Cornelius suggests that where, as here, "the granting of the requisite permit is merely ministerial," and not attended by "extensive admission criteria to limit access to those organizations considered appropriate," the regulator's claim of selective access would fail. 473 U.S. at 804-05, 105 S.Ct. at 3450-51; accord Perry, 460 U.S. at 47, 103 S.Ct. at 956. As noted above, because the above-ground free areas are public fora, the permit requirement can survive constitutional scrutiny only if it is content-neutral, narrowly tailored to achieve a significant government objective, and leaves open ample alternative channels for communication. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). 1. Content-Neutrality We accept WMATA’s contention that the permit requirement is content-neutral because it is “justified without reference to the content of the regulated speech.” Clark, 468 U.S. at 293, 104 S.Ct. at 3069. WMATA offers several justifications for the permit requirement: promoting safety, ensuring that WMATA property is used for transportation purposes, and providing equal access to WMATA facilities for all members of the public desiring to express their views. Each of these is grounded in concerns independent of content. 2. Narrow Tailoring It is clear that the interests that WMA-TA intends to serve through the permit requirement are significant. See Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 2565, 69 L.Ed.2d 298 (1981) (“As a general matter, it is clear that a State's interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.”); Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972) (same); Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941) (same). Our focus under this prong of the inquiry must be on the extent to which the permit requirement is narrowly tailored to achieve these interests. In Rock Against Racism, the Supreme Court recently clarified the “narrowly tailored” standard: Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content-neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so. 109 S.Ct. at 2757-58. Instead, the Court indicated that “the requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” Id. at 2758 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985)). The Court constricted the foregoing standard somewhat by stating that “this standard does not mean that a time, place, or manner restriction may burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Id. In upholding New York City’s regulation governing the use of a Central Park bandshell, the Court noted that [t]he guideline does not ban all concerts, or even all rock concerts, but instead focuses on the source of the evils the city seeks to eliminate — excessive and inadequate sound amplification — and eliminates them without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils. This is the essence of narrow tailoring. Id. 109 S.Ct. at 2758 n. 7. WMATA’s permit requirement fails the “narrow tailoring” inquiry. Although WMATA’s stated interests are achieved more effectively with the regulation than without it, the permit requirement also restricts many incidents of free expression that pose little or no threat to WMATA’s ability to provide safe and efficient transportation and an equitably available forum for public expression. By definition, the permit requirement applies to “the organized exercise of rights and privileges which deal with political, religious, or social matters and are non-commercial.” Despite WMATA’s attempt to provide a viable limiting construction for this provision, it is unclear what free speech activities would not be covered by the permit requirement. The meaning of “organized” is at best vague. It is unclear why an individual’s decision to wear a political button or a tee-shirt bearing a slogan would not be an “organized” free speech activity requiring a permit. Even assuming that we read “organized” to mean two or more individuals speaking or otherwise proselytizing in the above-ground area of a Metro station, it is clear that many of these activities would not interfere meaningfully with WMATA’s asserted interests. Nonetheless, as written, the Regulation requires a permit for all such free speech activities. This provides a striking contrast to the bandshell guideline upheld in Rock Against Racism. While the Regulation arguably eliminates the “sources of evil” that allegedly threaten WMATA’s ability to provide a safe and efficient transportation system, it does so at too high a cost, namely, by significantly restricting a substantial quantity of speech that does not impede WMATA’s permissible goals. Because the failure to satisfy any prong of the test invalidates a regulation, our conclusion that the permit requirement is not “narrowly tailored” is dispositive. Nonetheless, for the sake of completeness we will briefly consider the availability of alternative channels of expression under the permit requirement. 3. Alternative Channels of Expression In considering whether a regulation leaves open ample alternative channels of communication, the Court has generally upheld regulations which merely limit expressive activity to a specific part of the regulated area or to a limited time frame. Thus, in Clark v. Community for Creative Non-Violence, the Court determined that a regulation banning sleeping in Lafayette Park left open sufficient alternative means of communicating certain demonstrators’ concern about the plight of the homeless, as the challenged regulation did allow the demonstrators to remain on the property with their “symbolic city, signs, and the presence of those who were willing to take their turns in a day-and-night vigil.” 468 U.S. at 295, 104 S.Ct. at 3070. In Frisby v. Schultz, the Court construed an ordinance prohibiting “picketing before or about the residence or dwelling of any individual in the Town of Brookfield” as allowing protestors to express their message by marching through the streets of a neighborhood so long as they did not stop and direct their picketing at a particular residence. 487 U.S. 474, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988). Thus, the Court concluded that the challenged ordinance allowed protestors ample alternative means to express their views. Id. Most recently, in Rock Against Racism, the Court determined that New York City’s bandshell guideline satisfied this criterion because “the guideline continues to permit expressive activity in the Bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification.” 109 S.Ct. at 2760. In contrast with the foregoing restrictions, WMATA’s permit requirement completely excludes those desiring to engage in organized free speech activity from the above-ground free areas of WMATA property unless they have a permit. There are no WMATA areas not covered by the permit requirement. Persons desiring to engage in any organized free speech activities in the WMATA forum are subject to the permit requirement; it does not regulate only the volume, location, or duration of such expression. There is no intra-fo-rum alternative. We affirm the trial court’s decision to invalidate the permit requirement. In so doing, however, we acknowledge that WMATA is charged with providing safe and efficient transportation for almost 500,000 passengers daily and must be able to ensure that these passengers are able to reach its stations with as little risk as possible. WMATA must be able to regulate to some extent the expressive activities that occur in and around its stations. A narrowly tailored permitting scheme — one that reasonably identifies particular expressive conduct for which a permit is required — is an entirely appropriate tool. The existing permit requirement attempts to achieve this goal but sweeps too widely, burdening substantially more speech than is necessary to guarantee WMATA’s safe and efficient operation. Although it is not our province to design an appropriate regulation, we cannot give effect to regulatory efforts that tread unnecessarily on first amendment guarantees. B. The Other Restrictions While we are unquestionably bound to strike down legislative and administrative enactments that impermissibly burden constitutional rights, the Supreme Court has articulated repeatedly that this exercise should be, to the extent practicable, surgically precise. Thus, we adhere to the “ ‘elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.’ ” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985) (quoting Allen v. Louisiana, 103 U.S. 80, 83-84, 26 L.Ed. 318 (1881)). Applying the foregoing approach, our decision to affirm the trial court’s invalidation of the permit requirement does not require an automatic carryover invalidation of the rest of the Regulation. We must determine whether the Regulation’s other provisions are severable from the permit requirement. Our inquiry does not end simply because the Regulation contains no sev-erability clause. The Supreme Court has held that “the ultimate determination of severability will rarely turn on the presence or absence” of such a clause. United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 1218 n. 27, 20 L.Ed.2d 138 (1968). In assessing severability, we must contemplate whether WMATA would have enacted the other challenged provisions in the absence of a permit requirement. See Brockett, 472 U.S. at 506 n. 15, 105 S.Ct. at 2803 n. 15; see also Gary v. United States, 499 A.2d 815, 821-22 (D.C.1985), cert. denied, 475 U.S. 1086, 106 S.Ct. 1470, 89 L.Ed.2d 725 (1986). In such an inquiry, the presumption is always in favor of severability. See Regan v. Time, 468 U.S. 641, 653, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984); Gary, 499 A.2d at 822. Obviously, WMATA would not have enacted § 100.10(c), governing modification and suspension of permits, absent the permit requirement. Therefore, this provision is not severable from the § 100.10(b) permit requirement. Because we affirm the trial court’s decision to strike § 100.10(b), we likewise affirm the invalidation of § 100.10(c). To aid in the redrafting of the permit provision, we note that on its own § 100.10(c) is unobjectionable constitutionally. Assuming that WMATA redrafts the permit requirement in a manner that does not burden substantially more speech than is necessary to achieve its legitimate goals, § 100.10(c) could be readopted in its existing form. Given its stated goals, WMATA would almost certainly have enacted the remaining provisions, §§ 100.10(e) and 100.10(g), even in the absence of the permit requirement. Section 100.10 of the Regulation is entitled “Free Speech Activities.” “Free speech activity” is defined in § 100.7 as “the organized exercise of rights and privileges which deal with political, religious, or social matters and are noncommercial.” It is inconceivable that WMATA would forego all regulation of these activities if it were unable to implement a permit system. WMATA would still have desired to establish a maximum number of individuals who could engage in free speech activity at each station and would have desired limitations on dancing, chanting, shouting, and the use of musical instruments whether or not it required a permit for such activity. The permit requirement is merely a subset of the category of restrictions on free speech activities. The other provisions, with the exception of § 100.10(c) as noted above, are not contingent upon the permit requirement for their existence and viability. Because these provisions are severable from § 100.10(b), we examine their constitutionality independently. 1. Section 100.10(e) Section 100.10(e) provides: “The number of persons permitted to engage in free speech activities at each Metro Station will be designated on a station-by-station basis.” This restriction fails for the same reason as the permit requirement. Given the Regulation’s extremely broad definition of free speech activities, § 100.10(e) could be used, for example, to ban more than one or two individuals wearing a tee-shirt bearing a political slogan from moving simultaneously through the above-ground areas of the Metro. Because this would burden substantially more speech than necessary to further WMATA’s legitimate safety objectives, § 100.10(e) is not a reasonable time, place, or manner restriction. We affirm the district court’s decision to strike this provision. 2. Section 100.10(g) The trial court invalidated the portion of § 100.10(g) that reads as follows: Free speech activities are to take place in a conversational tone and at no time shall such activities include chanting, dancing, shouting, outcries, or the use of any device for voice amplification or any other sound device including musical instruments. a. Conversational Tone. We agree with the trial court that the “conversational tone” standard is too vague to survive. The Supreme Court has indicated that “[t]he general test of vagueness applies with particular force in review of laws dealing with speech.” Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1976). In Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959), the Court said: [Sjtricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. By restricting permissible free speech activities to those conducted in a “conversational tone,” WMATA has created a classically vague restriction, replete with the dangers at which the void-for-vagueness doctrine has been aimed. The lack of precision would give those enforcing this prohibition an impermissibly wide discretionary range in which to determine who is in violation. More importantly, the standard would likely chill legitimate exercises of free speech, as a person “of common intelligence must necessarily guess at its meaning.” Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). WMATA responds to the .trial court’s invalidation of this provision by arguing that, even if the court found the “conversational tone” language to be overbroad or vague, it should have adopted a narrowing construction of the terms rather than invalidating the provision. In support of this position, WMATA cites cases from the Supreme Court and this court which hold that a reviewing court must read a challenged regulation in a common-sense manner and not require semantic precision. See Rock Against Racism, 109 S.Ct. at 2755 (“[P]er-fect clarity and precise guidance have never been required even of regulations that restrict expressive activity.”) (citing Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972); Kovacs v. Cooper, 336 U.S. 77, 79, 69 S.Ct. 448, 449, 93 L.Ed. 513 (1949)); Juluke v. Hodel, 811 F.2d 1553, 1560-61 (D.C.Cir.1987). We do not see how a court could reasonably provide a narrowing construction of “conversational tone” that would obviate the problems noted above. The vagaries which this prohibition generates are so patent and mischievous that this language provides no standard at all. That a court’s construction might winnow down the parade of horribles does not salvage the provision. If WMATA cannot be more precise as to what additional speaking styles it desires to regulate, it should not try to prescribe the tone of the speaker. b. The Remaining Prohibitions. Unlike the "conversational tone" standard-which is constitutionally infirm on any set of facts-the remaining prohibitions in § 100.10(g) might pass constitutional muster under certain circumstances. Tinder the analysis outlined above, if the prohibitions at issue did not burden significantly more speech than necessary to further WMATA's legitimate safety objectives, the restrictions would be constitutional. Whether the prohibitions are sufficiently narrowly tailored depends upon such material facts as the extent and character of the open space at each of WMATA's stations and the nexus between the restrictions and WMATA's stated goals. Because the trial judge struck down the restrictions in a summary judgment, his ruling may be upheld only if there is no genuine dispute as to these material facts. Fed.R.Civ.P. 56(c). A review of the parties' pleadings reveals that WMATA and CONY disagree strongly about a number of these crucial issues. Compare Complaint for Declaratory and Injunctive Relief, ¶ 33 with Answer of Carmen Turner as General Manager of the Washington Metropolitan Transit Authority, Ii 33 (disputing whether enforcement of the Regulation is necessary to further WMATA's safety interests); and compare Plaintiffs' Rule 108(h) Statement of Material Facts Not in Dispute, 1114 with Defendant's Statement of Material Facts as to Which There Is a Genuine Issue in Opposition to Plaintiffs' Motion for Summary Judgment, ¶1 14 (disputing the extent and character of the open space surrounding certain Metro stations). The trial judge did not resolve these factual disputes. Indeed, the judge provided no specific reasons for striking the prohibitions; he included them in the injunction only after the parties requested a clarification of the order. Therefore, we reverse the trial court’s decision to strike the prohibition of dancing, chanting, shouting, outcries, and the use of musical instruments and sound amplification devices; we remand for further factual development of these issues. Conclusion Appellees urge us to affirm the trial court’s decision to invalidate a substantial portion of the Regulation. The line between wholesale invalidation and the more selective review that we have given the Regulation’s provisions obviously is thin. But a reviewing court must not wield the Constitution as a bludgeon to crowd policymakers out of making their decisions altogether. It is for WMATA to decide how it wishes to complete its regulatory scheme. The court ought not, and has not, raised any barriers to WMATA’s ability to further the safety and convenience of its passengers — it is the Constitution that requires WMATA to revisit the drawing board to craft more precise means to these ends.

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

Did the court declare any statute or administrative action unconstitutional?

NATIONAL LABOR RELATIONS BOARD v. ROCKAWAY NEWS SUPPLY CO., INC. No. 318. Argued January 14, 1953. Decided March 9, 1953. Frederick U. Reel argued the cause for petitioner. With him on the brief were Solicitor General Cummings, George J. Bott, David P. Findling and Mozart G. Ratner. Julius Kass argued the cause for respondent. With him on the brief was Harry S. Bandler. Briefs of amici curiae urging reversal were filed by J. Albert Woll, Herbert S. Thatcher and James A. Glenn for the American Federation of Labor; Arthur J. Goldberg for the Congress of Industrial Organizations; and Stephen C. Vladeck and Sylvan H. Elias for the Newspaper and Mail Deliverers' Union of New York and Vicinity. Mr. Justice Jackson delivered the opinion of the Court. The Court of Appeals has set aside the National Labor Relations Board’s order that Rockaway News Supply Co. reinstate one Charles Waugh as a chauffeur and route-man and make him whole for an unlawful discharge. The court below was divided, and we granted certiorari. Waugh had been employed by respondent about seven years. His duty was to drive a truck along a regular route to pick up and deliver certain newspapers and other publications. One of his scheduled stops was at the Rockville Center plant of The Daily Review Corporation, publisher of the Nassau Daily Review, consignments of which he was to pick up and deliver to various retail dealers. Waugh, like all others similarly employed by respondent, was a member of the Newspaper and Mail Deliverers’ Union of New York and Vicinity. For some years respondent had recognized this union as the exclusive bargaining representative of its employees, without the formality of an election. It had an employment contract bargained with this union which contained a union-security clause not conditioned upon a vote of the employees under § 9 (e) of the Labor Management Relations Act, an omission which raised questions as to the validity of the clause and of the contract as a whole. The Nassau County Typographical Union No. 915, A. F. L., of which Waugh was not a member, established a picket line about the premises of The Daily Review Corporation which, on March 2, 1950, prevented a pickup of its newspaper except by passing through the picket line. Waugh assured himself that the line was ordered by the Typographical Union in connection with a labor dispute. He then informed his foreman that, because he was himself a union man, he would not cross the picket line of another union. He was advised not to take that attitude and was told “It might mean your job.” Waugh insisted that he would not do harm to another union and asked to have the papers somehow delivered to him outside of the picket line. This was done for two days, but the following day he was ordered to cross the line and get the papers — “Otherwise you are fired; if you refuse, you are fired.” Waugh left the premises but returned daily for three weeks seeking reemployment which was refused. Waugh had been willing to perform all duties provided he was not required personally to cross the picket line. The other drivers were also members of the same union as Waugh, but only he refused to cross the line. Waugh’s union had a collectively bargained contract with respondent which provided against strikes, lockouts, other cessation of work or interference therewith except as against a party failing to comply with a decision, award, or order of the Adjustment Board for which it provided. The union initiated an arbitration thereunder and the Adjustment Board, on March 31, 1950, made an award in favor of respondent. Waugh then filed the charge of unfair labor practice and the General Counsel initiated these proceedings. The parties here see the case as requiring decision of sweeping abstract principles as to the respective rights of employer and employee regarding picket lines. But this decision does not, and should not be read to, declare any such principles. The actual controversy here is within a very narrow scope, so narrow that the Board in its opinion said: “Although Waugh’s refusal to cross the picket line was a protected activity, the Respondent, as a normal incident of its right to maintain its operations, could have required Waugh to elect whether to perform all his duties or, as a striker, to vacate his job and make way for his replacement by the Respondent. Instead the Respondent discharged Waugh.” The Court of Appeals said, “We cannot follow the Board’s reasoning.” Nor can we. The distinction between discharge and replacement in this context seems to us as unrealistic and unfounded in law as the Court of Appeals found it. This application of the distinction is not sanctioned by Labor Board v. Mackay Co., 304 U. S. 333, 347. It is not based on any difference in effect upon the employee. And there is no finding that he was not replaced either by a new employee or by transfer of duties to some nonobjecting employee, as would appear necessary if the respondent were to maintain the operation. Substantive rights and duties in the field of labor-management do not depend on verbal ritual reminiscent of medieval real property law. In this case there is no finding, evidence or even charge that the dismissal of Waugh resulted from antiunion bias, or was intended to or did discriminate against him to discourage membership in a labor organization. Waugh’s refusal to cross the line was not in obedience to any action by his union. Even Waugh was willing to have the picket line breached, so long as it was done by others. No other member of his own union joined him. He held his position under his union’s collectively bargained contract, the adjustment processes of which went against him. It is ironical that respondent has been denied the result of the arbitration by the Board solely because the respondent, by the contract, conceded too much to union security, allowing the union what the Taft-Hartley Act does not permit. If respondent pursued any wrong course in dealing with Waugh, it evidently was not due to hostility to labor organizations. The Board, apparently conceding that, if valid, the contract between the union and respondent would establish the latter’s defense against the charge of unfair labor practice, held the contract utterly null and void and denied it any effect whatever in this case. Also, in a proceeding decided June 5, 1951, the Board declared the contract to be illegal in its entirety and set it aside. . In the present case it followed that decision and said, “It would not effectuate the policies of the Act to give effect in this case to a contract which the Board set aside in its entirety in a prior proceeding. Accordingly, the no-strike clause of that contract can have no impact upon Waugh’s refusal to cross the picket line.” The Board’s reference to a prior case refers to one decided about a month and a half before the present case. But it was not prior to the conduct out of which this case arises. The Board did not choose to rely on the doctrine of res judicata in the present proceedings, a doctrine whose applicability here is not free from doubt. The ruling that the contract is without effect was reexamined in these proceedings and readopted as an essential part of the decision in this case. There are two obstacles in the way of the Board’s complete disregard of this contract. The first is that, even if inclusion of a forbidden provision is enough to justify the Board in setting it aside as to the future, it does not follow that it can be wholly ignored in judging events that occurred before it was set aside. It is one thing for the Board to say that the parties should not go on under such a contract; it is another to say that no effect whatever may be given to a contract negotiated in good faith by the union and the employer which both believed to be valid and operative, to which both were conforming their conduct, and which no authority had yet held void. Even where a statute is unconstitutional and hence declared void as of the beginning, this Court has held that its existence before it has been so declared is not to be ignored. We think the principle is applicable here, which Mr. Chief Justice Hughes stated for a unanimous Court: “The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. ... It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. . . .” Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 374. The second hurdle in the way of the Board’s position is that it ignores savings and separability clauses of the contract itself, which we set forth in the margin. We have never known that they are per se illegal. We do not, of course, question that there may be cases where a forbidden provision is so basic to the whole scheme of a contract and so interwoven with all its terms that it must stand or fall as an entirety. But the Board here simply held that the provision concerning union security invalidates the whole contract, as the examiner said, “because it does not expressly provide that the operation of the union-security provision was to be conditioned upon compliance with- the provisions of Section 9 (e) of the Act.” (Italics supplied.) The features to which the Board rightly objects not only may be severed but are separated in the contract. The whole contract shows respect for the law and not defiance of it. The parties, who could not foresee how some of the provisions of the statute would be interpreted, proposed to go as far toward union security as they are allowed to go, and this is their right; and they proposed to go no farther, and that is their whole duty. Moreover, there is no showing that these illegal provisions in any way affected Waugh’s employment, his discharge, or any conduct of any party that is relevant to this decision. The total obliteration of this contract is not in obedience to any command of the statute. It is contrary to common-law contract doctrine. It rests upon no decision of this or any other controlling judicial authority. We see no sound public policy served by it. Realistically, if the formal contract be stricken, the enterprise must go on — labor continues to do its work and is worthy of some hire. The relationship must be governed by some contractual terms. There is no reason apparent why terms should be implied by some outside authority to take the place of legal terms collectively bargained. The employment contract should not be taken out of the hands of the parties themselves merely because they have misunderstood the legal limits of their bargain, where the excess may be severed and separately condemned as it can here. We therefore consider this controversy to require no determination of rights or duties respecting picket lines broader than this contract itself prescribes. It is provided in this agreement that “No strikes, lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the term hereof except as against a party failing to comply with a decision, award, or order of the Adjustment Board.” If this be considered ambiguous in meaning, respondent offered, as evidence of its intent and meaning, to prove that during the negotiations one of the demands made by the union was a clause in the contract with reference to work stoppages which would have said “No man shall be required to cross a picket line,” that this clause was rejected by respondent and the union acquiesced in the rejection and consented to the no-strike clause as above recited. The trial examiner said: “All right. Let the offer of proof appear in the record.” From this it is not clear whether it was accepted or rejected. But the arbitrators’ interpretation of the contract was in harmony with the offer. They said, “In addition, the contract between the parties does not specifically permit the refusal by the employee to comply with such an order although other contracts in the industry do contain such a provision.” In the section by which the Labor Management Relations Act prescribes certain practices of labor organizations which shall be deemed unfair, there is a proviso that nothing therein “shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act . ...” This clearly enables contracting parties to embody in their contract a provision against requiring an employee to cross a picket line if they so agree. And nothing in the Act prevents their agreeing upon contrary provisions if they consider them appropriate to the particular kind of business involved. An employee’s breach of such an agreement may be made grounds for his discharge without violating § 7 of the Act. Labor Board v. Sands Co., 306 U. S. 332, 334. In some instances he may not, even with an employer’s assent, supplement the collective agreement with individual preferences over others employed under it. J. I. Case Co. v. Labor Board, 321 U. S. 332. We hold that the no-strike and arbitration provisions of the contract are not prohibited, nor were they rendered illegal by appearing in the same contract with forbidden provisions in view of the circumstances we have recited. Under the circumstances of this case, it was not an unfair labor practice to discharge Waugh, and the judgment below is Affirmed. 197 F. 2d 111. 344 U. S. 863. “The undersigned, constituting the members of the Board of Adjustment, designated in accordance with the agreement between the parties, having heard the proof and allegations, award as follows: Under Section 4 of the agreement between the parties, it is the obligation of an employee to comply with orders of the foreman, and if such orders are objectionable to him personally, to have the issues discussed and brought to arbitration in accordance with the procedure set forth therein. He may not, in the first instance, refuse to obey the order merely because it is personally distasteful to him, unless it is the type of order which might subject him to physical danger or be contrary to public policy. “Of course, the order which the employee here refused to obey cannot be held to have been against public policy (and eoncededly it does not physically endanger him) particularly since the union had knowingly refrained from taking any position and the act required was willingly performed without objection by six other employees who were members of the union. In addition, the contract between the parties does not specifically permit the refusal by the employee to comply with such an order although other contracts in the industry do contain such a provision. “Consequently it must be ruled that the act of Charles Waugh in refusing to obey the order of the foreman on March 7, 1950, constituted just cause for discharge. Signed, I. Robert Feinberg, Impartial Chairman; John Somyak, John Fylstra.” Thereunder is stated “The members of the Adjustment Board designated by the Union dissent from this award, dated, New York, New York, March 31, 1950.” See Wallace Corp. v. Labor Board, 323 U. S. 248. “To the best knowledge and belief of the parties this contract now contains no provision which is contrary to federal or state law or regulation. Should, however, any provision of this agreement, at any time during its life, be in conflict with federal or state law or regulation then such provision shall continue in effect only to the extent permitted. In event of any provision of this agreement thus being held inoperative, the remaining provisions of the agreement shall, nevertheless, remain in full force and effect.” 29 U. S. C. § 159 (e) (1): “Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a) (3) of this title, of a petition alleging they desire that such authority be .rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.” 61 Stat. 142, 29 U. S. C. § 158 (b) (4) (D).

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?

Donald Kilsmuth HESS and Louis Clifton Hess, Appellants, v. UNITED STATES of America, Appellee. No. 74-1022. United States Court of Appeals, Eighth Circuit. Submitted April 16, 1974. Decided May 13, 1974. Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellants. J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee. Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges. MATTHES, Senior Circuit Judge. In December of 1956, Donald Kilsmuth Hess and Louis Clifton Hess, brothers, were convicted in the United States District Court for the Western District of Missouri of two separate kidnappings in violation of 18 U.S.C. § 1201. On December 14, 1956, each was sentenced by the trial judge, the Honorable Richard M. Duncan, to two consecutive life terms, as was a codefendant in one of the proceedings, Lewis Milton Williams. Thereafter, this court granted all three defendants leave to appeal in forma pauperis from their convictions. In accordance with the prevailing procedures, they were not provided with assistance of counsel. The convictions were affirmed. Hess v. United States, 254 F.2d 578 (8th Cir. 1958); Hess v. United States, 254 F.2d 585 (8th Cir. 1958). In 1969, Williams filed a § 2255 motion seeking relief on the ground that he had not been represented by counsel on direct appeal from his conviction. Judge Duncan denied the motion, and Williams appealed, this time with the aid of a court appointed attorney. Our court agreed that Williams was constitutionally entitled to counsel on appeal from his conviction. The remedy fashioned was to treat Williams’ appeal from the trial court’s denial of his § 2255 motion as a direct appeal from his conviction. Again, Williams’ conviction was affirmed. Williams v. United States, 416 F.2d 1064 (8th Cir. 1969). On September 13, 1973, the Hess brothers also filed a § 2255 motion, alleging, inter alia, the absence of counsel on appeal. On the basis of the Williams decision and without objection from the government, Judge Duncan certified the § 2255 proceeding to this court on December 21, 1973. A panel of judges of this court agreed that the Hess brothers should be given the same consideration given to Williams. Accordingly, it was directed that the § 2255 motion be considered as an application to reinstate the direct appeals of the Hess brothers, that such application be granted, and that counsel be appointed. It is in this posture that we now consider the case. Appellants’ sole challenge is to the trial court’s sentencing procedure. Specifically, it is alleged that the trial court took into account the following allegedly impermissible factors in determining sentence: 1) that, instead of pleading guilty, appellants exercised their right to jury trial; 2) that Louis Hess testified falsely on his own behalf; and 3) unsupported misinformation supplied by the government. By the very nature of their attack, appellants do not seek reversal of their convictions or new trials, but only resentencing. I. This circuit has joined a host of other courts in recognizing that whether a defendant exercises his constitutional' right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed. United States v. Marzette, 485 F.2d 207 (8th Cir. 1973). See United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Hopkins, 150 U.S.App.D.C. 307, 464 F.2d 816, 822 (1972); Scott v. United States, 136 U. S.App.D.C. 377, 419 F.2d 264, 269-274 (1969); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); United States v. Wiley, 278 F.2d 500, 504 (7th Cir. 1960). But cf. United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.), cert. denied, 414 U.S. 918, 94 S.Ct. 214, 38 L.Ed.2d 154 (1973); United States v. Jansen, 475 F.2d 312, 319 (7th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973); United States v. Leh man, 468 F.2d 93, 109-110 (7th Cir. 1972); Gollaher v. United States, 419 F.2d 520, 529-530 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969). Before imposing sentence in this case, the trial judge stated: There is some suggestion that leniency ought to be shown to these young men because of their youth. It has been my experience in life that when we seek leniency, when we seek to be absolved of our sins, we must first admit our sins, and in this case there has been no admission of sins. There has been, on the contrary, a determination to pursue every remedy; and they have had that right, they had that right under the law. It would have made no difference if they had been caught red-handed in the commission of these acts, they would still have had the constitutional right, thank God, under our system to come into this court and say, “We have a jury pass on it.” * * * * * * These defendants have come into court and stand trial, although they have made no defense whatsoever. They have had no defense whatsoever, and they could make no defense. So they stand not only convicted by a jury before this Court, but under all of the facts in the cases it is so plain that they were guilty that there is no ground for doubt in the world about it. Seizing upon the foregoing, appellants contend that Judge Duncan enhanced appellants’ sentences because they opted to stand trial rather than admit their guilt. If the seasoned trial judge has ever inflicted a heavier penalty upon a defendant because he chose to exercise his constitutional right to trial, our attention has not been directed to a record demonstrating such action. We would be hard pressed to conclude from Judge Duncan’s sentencing remarks, considered in entirety, that the above quoted statements support appellants’ argument. Nevertheless, since the tenor of the court’s observation is not entirely clear, and because the remedy is relatively painless, we believe the trial judge should be afforded an opportunity to fully examine his sentencing procedure and to consider the factors which motivated the sentences imposed. II. Louis Hess argues that his sentence was lengthened by the trial judge’s personal belief that Louis had lied during the trial. Prior to sentencing, while discussing “the kind of individuals [appellants] are,” the trial judge said: I just want to say one more thing about Louis Hess. The others pretty much speak for themselves; neither of them took the stand. Of course, that was their right not to do so and no advantage could be taken of it. Louis Hess took the stand. He is a fine looking man. He said he fell in the bathroom and got the cut on his head. It is probable that if the thing that caused the injury had been the width of a toothpick closer, he would not have been here to stand trial in this case but he would have been in his grave, it came that close to getting him. Bathroom falls do not cause that sort of injury. The Court wasn’t impressed with it at the time. The Court didn’t believe it at the time and, of course, the jury didn’t believe it. The inference may be warranted that the judge was influenced by his belief that Louis Hess had committed perjury during the trial. But it is by no means clear that this is an impermissible factor in the sentencing process. At least four circuits have held that the sentencing judge may properly take into consideration a belief that the defendant testified falsely. United States v. Moore, 484 F.2d 1284, 1287 (4th Cir. 1973) (Craven, J., dissenting); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972); United States v. Wallace, 418 F.2d 876, 878 (6th Cir. 1969); United States v. Levine, 372 F.2d 70, 74 (7th Cir.), cert. denied, 388 U.S. 916, 87 S.Ct. 2132, 18 L.Ed.2d 1359 (1967). Contra, Scott v. United States, supra, 419 F.2d at 268. See Note, The Influence of the Defendant’s Plea On Judicial Determination of Sentence, 66 Yale L.J. 204, 211-17 (1956). The trial judge is constitutionally entitled to consider a wide variety of information bearing on the character and background of the defendant in fixing sentence. We are not prepared to say that the court’s bona fide belief that the defendant committed perjury during the trial cannot also be weighed in the balance. Nevertheless, we approve the cautionary language of Judge Butzner of the Fourth Circuit in United States v. Moore, supra, 484 F.2d at 1288: “Judges must constantly bear in mind that neither they nor jurors are infallible. A verdict of guilty means only that guilt has been proved beyond a reasonable doubt, not that the defendant has lied in maintaining his innocence.” III. Lastly, appellants urge that the district court was misinformed about their alleged prior criminal activity. They suggest that the record is presently unclear as to the exact source of information considered by the sentencing judge and, for that reason, the case should be remanded for a determination whether inaccurate and prejudicial information was considered. Prior to the imposition of sentence, the prosecutor presented a lengthy oral statement detailing prior criminal activity of appellants and eodefendant Williams. At the outset of the statement, the prosecutor recommended “a substantial and rigorous penalty.” Although there may be important distinctions between a prosecutor’s report and a presentence report prepared by a probation officer, United States v. Rosner, 485 F.2d 1213, 1230 (2d Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3407 (U.S. Jan. 7, 1974) (No. 73-1062); United States v. Solomon, 422 F.2d 1110, 1121 (7th Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2201, 26 L.Ed.2d 565 (1970); 8A Moore’s Federal Practice fí 32.04 [3] (1973), for our present purposes, the prosecutor’s report in this 1956 proceeding may be compared to a presentence report. Neither appellants nor their counsel questioned the accuracy or reliability of the prosecutor’s report. Nor did they ask to inspect the records upon which the report was based. Only now do they suggest the possible existence therein of “unsupported information.” We do not doubt that a sentence based upon materially false information, which the defendant had no opportunity to correct, could not stand. Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). To guard against such grievous error, Judge Lay suggested in United States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970): It is always advisable for the trial judge to at least state on the record the various factors he has taken into consideration in rendering his sentence. The court may advise counsel of these factors without necessarily disclosing the sources of the information to him. Such a procedure serves as a checkmate to the danger of misinformation being placed in the hands of the court. * * * If the defendant’s record, as publicly disclosed at the hearing, is incorrectly reported, defendant should have an opportunity to explain any discrepancy. If factual background is erroneous, defendant should have the opportunity to inform the court concerning the alleged misinformation. See United States v. Mims, 440 F.2d 643 (8th Cir. 1971). But in the present case appellants were advised by the prosecutor’s oral statement in open court of the substance of the record which had been placed before the trial judge, and no objection was raised. Indeed, no specific inaccuracy is alleged now. What appellants actually seek is full disclosure of the prosecutor’s sources of information. And while the issue of disclosure of presentence information to the defense continues to be a subject of robust debate, see e. g., United States v. Dockery, 145 U.S.App.D.C. 9, 447 F.2d 1178, cert. denied, 404 U.S. 950, 92 S.Ct. 299, 30 L.Ed.2d 266 (1971); 8A Moore’s Federal Practice fí 32.03 [4] (1973); ABA Project on Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 4.4(a), Commentary (Approved Draft 1968); Annot., Defendant’s Right to Disclosure of Presentence Report, 40 A.L.R.3d 681 (1971), this court has yet to require the trial judge, as a matter of due process, to disclose the report in its entirety to the defendant. United States v. Schrenzel, 462 F.2d 765, 775 (8th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); Gallo v. United States, 461 F.2d 1008 (8th Cir. 1972); United States v. Mims, supra; United States v. MacLeod, 436 F.2d 947, ‘950 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971); United States v. Carden, supra. Nor will we declare the failure to disclose the sources of information of the prosecutor’s report in this case a violation of due process when appellants neither requested such disclosure nor objected to the accuracy of the substance of the report as it was revealed to them. Nevertheless, we hasten to add the caveat that, as a matter of policy, full disclosure under Rule 32, Fed.R. Crim.P., is to be preferred whenever possible. IV. The circumstances attending this case constrain us to offer several concluding observations. First, the time element has some significance. The offenses were committed in November, 1956. The offenders were tried in December, 1956, and the sentences under attack were rendered on December 14. The convictions were affirmed in 1958. Although the Hess brothers and their confederate, Williams, were represented by counsel during the trial, they appealed pro se. Beyond doubt, the trial and appeal comported with then prevailing standards. Since 1958, however, decisions of momentous importance have emerged, affording additional safeguards to the accused and the convicted. See, e. g., Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). These cases have provided appellants an avenue for review of sentences imposed more than seventeen years ago. Fortunately for all concerned, Judge Duncan, who presided at the trial and whose judicial conduct with regard to sentencing is challenged, is still rendering judicial service in the status of a senior judge. It is pertinent to make brief reference to his judicial career. Judge Duncan was appointed to the federal bench in 1943 and has served continuously since that year. He has frequently been assigned to districts in other circuits for service. The record he has forged attests to his ability, integrity, and dedication to the principle of rendering fair and equal justice for all litigants so far as it is possible for any individual subject to human frailties to perform that task. Inasmuch as Judge Duncan certified appellants’ § 2255 motion to this court on the basis of Williams without clarifying whether he, in fact, considered appellants’ failure to plead guilty in imposing sentence, fairness dictates that these proceedings be remanded to the district court for the purpose of permitting Judge Duncan to determine whether the sentences were enhanced for that reason. Should the judge find upon an objective evaluation of all pertinent circumstances that the sentences were influenced by that improper consideration, then he shall set them aside and resentence. On the other hand, should the judge conclude that he. did not penalize appellants for their insistence on trial, he shall file an appropriate order so finding. Remanded for proceedings in accordance with this opinion. . Appellants’ brief reveals that Louis Hess has been released on parole. At oral argument, we were informed that, in May, 1974, Donald Hess will become eligible for parole. Their release on parole, of course, does not render the case moot. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). . The government argues that the fact that all three defendants were sentenced equally shows that Louis Hess was not individually penalized for committing perjury during the trial. It appears, however, that Louis’ prior criminal activity was less extensive than that of his codefendants. . We note that the proposed amendments to Rule 32, recently transmitted to Congress by Chief Justice Burger, would mandate, at the least, an oral or written summary of the factual information contained in the presentence report and relied upon by the trial judge in determining sentence. 15 Crim.L. Rptr. 3001 (April 24, 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 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?

Charles H. MOORE, Appellant, v. Patricia R. HARRIS, Secretary of Health & Human Services, Appellee. No. 78-1610. United States Court of Appeals, Fourth Circuit. Argued Nov. 7, 1979. Decided June 12, 1980. Daniel M. Hall, Abingdon, Va., for appellant. Fred Marinucci, Dept, of Health & Human Services, Philadelphia, Pa. (Paul R. Thomson, Jr., U. S. Atty., Robert S. Stubbs, Asst. U. S. Atty., Roanoke, Va., Stephanie W. Naidoff, Regional Atty., Joan Kaehne Garner, Region III, Dept, of Health & Human Services, Philadelphia, Pa., on brief), for appellee. Before HALL and MURNAGHAN, Circuit Judges, and PERRY, District Judge. The Honorable Matthew J. Perry, United States District Judge for the District of South Carolina, sitting by designation. MURNAGHAN, Circuit Judge: In 1971 Charles H. Moore, appellant, sought black lung benefits under the Black Lung Benefits Title of the Federal Coal Mine Health and Safety Act of 1969 (“Black Lung Benefits Act”). The claim was denied by the Secretary of Health, Education and Welfare, now the Secretary of Health and Human Services (“the Secretary”), whose action was sustained by the district court as supported by substantial evidence. The problem which confronts us is whether nearly a decade of activity as a miner while Moore was self-employed in a family mine or employed by a close corporation of which he was a principal shareholder should be considered for purposes of certain favorable presumptions established by statute to determine eligibility. We hold that it should be so considered and reverse. Considering those years of self-employment gives Moore over fifteen years of coal mine employment, as against the less than ten years allowed by the Secretary for periods when Moore’s mining activities took place while he was the employee of mine operators other than himself and his close corporation. I The Statute. The case is governed by the provisions of the act as they existed prior to amendment in 1978. Under those provisions, benefits shall be paid with respect to the disability of a person if four requirements are satisfied: 1. The person must be a miner, which the statute defines as “any individual who is or was employed in a coal mine.” 2. The person must be totally disabled as determined by regulations prescribed by the Secretary. 3. The total disability must be due to pneumoconiosis, “a chronic dust disease of the lung.” 4. It must be shown that the disease is one “arising out of employment in a coal mine.” To facilitate the administration of the act and to ease the inherent difficulties of proving the existence and the causation of the disease, the statute makes available several presumptions to help establish requirements 2, 3, and 4 above. Thus, “if a miner is suffering.. from a chronic dust disease of the lung which [yields specified medical symptoms when diagnosed by X-ray, biopsy, or other means], then there shall be an irrebuttable presumption that he is totally disabled due to pneumoconiosis. ” (“the irrebuttable presumption”). That is, requirements 2, 3, and 4 are deemed satisfied. Also, “if a miner was employed for fifteen years or more in one or more underground coal mines, and if [a chest X-ray fails to meet the standards of the irrebuttable presumption], and if other evidence' demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis. ” (“the fifteen-year presumption”). That is, requirements, 2, 3, and 4 may be deemed satisfied. Finally, “if a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines there shall be a rebuttable presumption that his pneumoconiosis arose out of such employment” (“the ten-year presumption”). That is, requirement 4 may be deemed satisfied. The Regulation. By regulation the Secretary has attempted to modify and restrict the statutory definition of “miner.” Where the statute speaks of an “individual who is or was employed in a coal mine,” the Secretary has substantially altered the phraseology to an “individual who is working or has worked as an employee.” 20 C.F.R. § 410.110(j) (1979) (emphasis added). Having introduced the word “employee,” which nowhere appears in the relevant portion of the statute, the Secretary has also prescribed that it refers to a “legal relationship under the usual common-law rules.” Id. § 410.110(m). The Facts. The findings of the administrative law judge (“ALJ”) were adopted by the Secretary. The AU determined that claimant had years of work as a coal-mine employee, at least 7lk years of work in an unincorporated family coal mine of which he was part owner, and approximately 2 years of work in that mine after its incorporation. Thus, even if the work for the close corporation is treated as that of an employee under usual common law rules, of Moore’s conceded sixteen or more years of work in coal mines, less than ten years were as an employee as defined by the Secretary’s regulation. The ALJ, applying the definition contained in the regulation, refused Moore the benefit of any of the statutory presumptions. The ALJ, considering a contention of Moore that, even without the benefit of the presumptions he had established entitlement, found that, as of the relevant date for benefits, Moore had “a chronic respiratory or pulmonary impairment,” but that the preponderance of the medical information failed to meet Moore’s burden of proof regarding the existence of pneumoconio-sis. The ALJ further found that, even if Moore had shown the existence of pneumo-coniosis, he had not shown that that illness arose out of his activities as an employee. Because of the dusty conditions under which he worked in the family mine, “any pneumoconiosis which the claimant may establish could reasonably have arisen from his self-employed coal mining work.. The district court, accepting without question the Secretary’s regulatory definition of a miner as an employee under usual common law rules, held that there was substantial evidence that claimant had less than ten years as an employee, and it ruled that the presumptions were unavailable to him. It further held that, because of his substantial exposure to coal dust in the family mine, he was unable to establish by other evidence that his respiratory condition, however severe it might be, arose out of activity as a coal mine employee. Accordingly, the court affirmed without reviewing the severity of Moore’s respiratory impairment. Moore claims that for purposes of the ten- and fifteen-year presumptions, Congress did not authorize a distinction between self-employment in one’s own coal mine and wage labor in someone else’s coal mine, that “employment in a coal mine” or being “employed in a coal mine” were intended by Congress to refer simply to miners’ occupations and customary activities, not to who was the entrepreneur. II The regulation on its face accomplishes a change in the statutory language. As a simple matter of customary usage, one who is “employed” is not automatically or predominantly an employee. Since the regulation immediately generates a doubt as to whether it truly interprets the statute, our first task is to determine what Congress intended when it enacted the statute before us. Although the isolated language the presumptions and of the definition of “miner” may be susceptible both to the Secretary’s interpretation and to the interpretation which Moore urges, the legislative history and statutory purpose of the provisions make abundantly clear that Congress intended to benefit all persons — those employed by third parties and self-employed persons alike — who had contracted a chronic dust disease of the lung as a result of their work in the nation’s coal mines. of The Statutory Language. The ease with which the statutory language supports the meaning which Moore urges is shown by the construction of the current version of the statute. In 1978, Congress amended the definition of “miner” and made unmistakable its intent that self-employed miners be eligible for black lung benefits. The Secretary fully accepts that, under the current language of the Black Lung Benefits Act, self-employment in a coal mine counts toward the definitions of “miner” and “pneumoconio-sis” and toward the presumptions. That is, Moore’s suggested reading of the statute is accepted today notwithstanding that a miner’s work is referred to as “such employment,” 30 U.S.C.A. § 902(d) (West Supp. 1979), that pneumoconiosis still must arise out of “coal mine employment,” id. § 902(b), and that the rebuttable presumptions are still based on the miner’s having been “employed for [at least some period of time] in one or more” coal mines. Id. § 921(c)(1), (2), (4). The expected reply of the Secretary, of course, is that self-employment now falls within those sections only because other evidence shows that the 1978 amendments were intended to make benefits available to qualifying self-employed miners. But implicit in that approach is the assumption that, before 1978, other evidence equally clearly established the opposite, namely that self-employment was not to count for purposes of qualifying for black lung benefits. Yet there is overwhelming evidence that in 1969 and 1972 Congress intended to benefit all persons who were totally disabled by pneumoconiosis as a result of coal mine work. Those constructions of “employed in” and “employment” which are correct to effect Congress’ 1978 wishes are also correct in light of, and are required by, earlier congressional intent as well. The Secretary’s only evidence that “employed in” and “employment” as used in the statute referred to an employer-employee relation is very indirect and the argument is forced. For the other titles of the Federal Coal Mine Health and Safety Act of 1969 the definition of “miner” was “any individual working in a coal mine.” An individual engaged in coal mine activity works there as much if self-employed as he does if employed by another. The rebut-table presumption of formal consistency states that use of different language creates the inference that Congress meant different things. So the Secretary’s contention is that “employed in” must mean something other than “working in.” However, where the statutory purpose and legislative history establish that no difference was in fact intended, the presumption is rebutted. Inadvertent statutory usage of synonyms in parallel sections does not require us to conjure up a distinction which would violate the statute's raison d’etre. Statutory Purpose and the Legislative History. The act’s remedial purpose was to recognize the widespread incidence of pneumoco-niosis among American coal miners and to provide, on a national basis, alleviating compensation. A federal program was needed because in most instances workers’ compensation programs of the several states did not provide benefits. That consideration would, of course, be stronger, not weaker, in the case of the self-employed than in the case of those in a traditional common law employer-employee relationship. Nowhere in the legislative history is there any suggestion that a distinction should be drawn between miners in a formal employer-employee relationship to coal mine operators and the individual miner /operators of small mines whose working conditions were comparable to those of miners hired by larger mines. The legislative history contains no suggestion that the American enthusiasm for the sturdy, independent sole proprietor was waning to the point where he would be treated in a disadvantageous manner as compared with miners hired to work by larger operators. The difference between the definition of “miner” in the Black Lung Benefits Title and that applicable to the rest of the 1969 Act arose from the legislative decision to limit black lung benefits to those who actually had been engaged in underground coal mining activities and from the need for a definition which would cover retired as well as active miners. Thus the special definition was inserted for purposes altogether independent of, and unrelated to, a distinction between “self-employed” and “employed by another.” The members of Congress as the legislation made its way from introduction to enactment appeared to use interchangeably the phrases “was employed in a mine” and “worked in a mine.” For example, a frequently used summary of the conference committee’s version of the 1969 bill described one of the presumptions as follows: “If a miner worked ten years in [an underground coal] mine and died of a respirable disease, there will be a rebuttable presumption that his death was due to pneumoconio-sis.” The statute, however, happened to use “was employed... in” for this presumption. The “worked in” language for the presumption was also employed during debates by Representative Carl D. Perkins, one of the House conferees and the chairman of the House Committee on Education and Labor, and by Representative John H. Dent, another of the conferees and the chairman of that committee’s General Subcommittee on Labor. Even more to the point is the way the two phrases were indiscriminately used by those who created the fifteen-year presumption in 1972. The presumption was added to the House Bill, H.R. 9212, by the Senate Committee on Labor and Public Welfare and was then accepted by the full Senate and finally by the House. Although the presumption itself used “employed in” and “employment,” the Senate committee report tended to use “worked in” and “work”: The bill.. establishes a rebut-table presumption that a totally disabled coal miner who worked in an underground mine for 15 years or a surface miner who was employed under environmental conditions similar to those experienced by underground miners, is totally disabled by pneumoconiosis if he has a totally disabling respiratory or pulmonary impairment, even if he has an X-ray which cannot be interpreted as positive for complicated pneumoconiosis. The Secretary of Health, Education and Welfare may rebut the presumption if... he establishes.. that the miner’s disability did not arise out of, or in connection with, his work in a coal mine. The Committee intends that the burden will be placed on the claimant to prove the existence of pneumoconiosis in cases where the miner worked fewer than fifteen years in a coal mine, but that judgment will be allowed to be exercised in determining the validity of claims in such cases, including the determination that the miner’s disability is not due to pneu-moconiosis or that it is not related to his employment in a coal mine. A miner’s work history reflecting many years of mining work, though short of fifteen, and the severity of his impairment, shall also be considered.. It must be made clear by the Committee, however, that it expects and intends that miners with fewer than fifteen years in the mines who are totally disabled and who have X-ray evidence of pneumoconi-osis other than complicated pneumoconio-sis, who are now eligible for benefits, will remain so under the Committee amendments. Such random alternation is not the mark of legislators who intend to deny disability benefits on the basis of the distinction between “worked in” and “was employed in.” The legislators who created the statute believed that it covered all individuals suffering from lung problems contracted in the coal mines. Opponents of the benefits program attacked it as discriminatory because it provided neither for miners disabled by other maladies nor for workers disabled by occupational lung diseases in other industries, but none of the opponents suggested that the program differentiated among victims of black lung disease itself on the basis of “self-employment” versus “employment by another.” In considering the target population for the benefit program, members of Congress frequently estimated that there were 100,000 victims of pneumoconiosis, of whom 50,000 were disabled. One hundred thousand was the figure given by the Surgeon General as the total incidence of black lung in the United States. The Secretary’s predecessor contributed to Congress’ belief that all afflicted individuals were covered by the legislation in question. In 1972, nearly two years after the regulations we are considering had been promulgated, the Secretary’s predecessor wrote to the chairman of the Senate Committee on Labor and Public Welfare, “ ‘Employment in underground coal mines’ has been interpreted as work in an underground coal mine, whether below the surface performing functions in extracting the coal or above the surface at the mine preparing the coal so extracted.” The Secretary stated that he favored continuation of the provisions restricting the program to underground miners. He characterized removing that restriction — removal which, despite the Secretary’s opposition, was effected in 1972, retroactive to 1969 — as “extension of Federal black lung benefits to all coal miners.” In oral argument, counsel for the Secretary tried to explain why Congress might have restricted benefits to miners employed by others. He suggested that perhaps Congress erroneously believed that all black lung sufferers had been employees. If Congress had had that mistaken belief and if in haec verba it had restricted benefits to “employees,” then perhaps only Congress could rectify the error. The error is highly unlikely, however, for Senators and Representatives from coal-mining states would surely have known their constituents well enough to appreciate that not all who mined coal did so wearing another’s collar. Congress had the manifest purpose of covering all victims, and where it used language which, without strained construction, extends to all victims, we find no justification for an alternate, improbable construction which would rely on a hypothesized congressional mistake and would substantially frustrate the statutory purpose. Thus, a foundation was altogether lacking for the modification by the Secretary of the statutory language through insertion of the concept represented by the words “by another” after the word “employed.” Perhaps the then Secretary was influenced by the considerations that he was using the Social Security Administration to administer the black lung program and that, under the Black Lung Benefits Act, the standards for disability were to be no more restrictive than standards applicable under section 223(d) of the Social Security Act, 42 U.S.C. § 423(d). Social security law, by reason of its peculiar historical antecedents, does concern itself with the distinction between those in the common law employer-employee relationship and self-employed individuals, who pay different taxes to be eligible for social security benefits. However natural the employed-by-another construction may have seemed to persons steeped in the intricacies of the Social Security Act, the purposes of the black lung benefits remedial legislation were quite different. Bureaucratic preference for distinctions long employed for other purposes by the bureaucracy may explain, but it does not justify, the modification of the statutory definition of a miner in a manner never intended by Congress. Indeed, that may be a kinder explanation than history would allow. Ill Despite the clear indications of congressional intent in 1969 and 1972 to cover all victims of black lung, the Secretary, to justify the unduly restrictive definition of miner for purposes of eligibility for black lung benefits, points to events since 1969 which, she says, contradict the intent and which, therefore, should bar us from giving effect to the intent. The events may be grouped as administrative, judicial, and legislative interpretations of the act. Administrative Interpretation. The administrative interpretation is, of course, the Secretary’s own when in 1970 the then Secretary promulgated the regulations whose validity is at issue in this case. However, recourse to administrative interpretation as an aid in ascertaining legisla-five intent occurs only when there is ambiguity in the statute. There was no ambiguity. Having determined that the preferred meaning of the language used in the statute and the clear intent of Congress in 1969 coincide, we consider the administrative interpretation as clearly wrong and, therefore, not persuasive. The statute gave the Secretary explicit authority “to issue such regulations as [he] deems appropriate to carry out the provisions of [the Black Lung Benefits Act],” 30 U.S.C. § 936(a) (1976). If, arguendo, Congress thereby entrusted the Secretary with primary responsibility for interpreting all statutory terms, the regulation in question would be “entitled to more than mere deference or weight. It [could] be set aside only if the Secretary exceeded his statutory authority or if the regulation is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ 5 U.S.C. §§ 706(2)(A), (C).” Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977). Even such delegation, however, does not free courts from their responsibilities to say what the law is and to determine whether the regulation in question is consistent with the law. “What Congress has given the Secretary may not take away.” Bozwich v. Mathews, 558 F.2d 475, 480 (8th Cir. 1977). Thus, despite express delegation to prescribe standards for determining what constitutes one of the requirements for benefit eligibility, “the Secretary’s authority to prescribe standards is not unlimited. [Sh]e could not, for example, adopt a regulation that bears no relationship to any recognized concept of [the requirement in question] or that would defeat the purpose of the [benefit] program.” Batterton v. Francis, 432 U.S. at 428, 97 S.Ct. at 2407. Accord, United States v. Larionoff, 431 U.S. 864, 873, 97 S.Ct. 2150, 2156, 53 L.Ed.2d 48 (1977): [Regulations, in order to be valid, must be consistent with the statute under which they are promulgated. Judicial Interpretation. The Secretary next turns to court cases which applied her regulation and its definition of employment as excluding self-employment. Ball v. Mathews, 563 F.2d 1148 (4th Cir. 1977), contained dicta in which the court without discussion accepted the Secretary’s interpretation. Ball’s holding, however, was that, notwithstanding that interpretation, the claimant met the ten-year presumption test. Such reference to the Secretary’s definition, when doing so did not affect the outcome of the case, does not bar us now from questioning the regulation’s validity, when the answer to the question makes a difference. Conversely, in Neese v. Califano, 594 F.2d 985 (4th Cir. 1979), the regulation’s invalidity might have mattered, but neither the parties nor the court addressed the issue. See 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice 1228.02[2 — 1], at 28-7 (2d ed. 1980) (“[N]ormally the court will not consider issues that are not... raised and argued [in the appellant’s initial brief].”); Virginians for Dulles v. Volpe, 541 F.2d 442, 444 (4th Cir. 1976). In Montel v. Weinberger, 546 F.2d 679 (6th Cir. 1976), the majority rejected the contention that working for a closely held family corporation constituted “employment” as the Secretary had defined it. The majority opinion contains the flat assertion: “We believe the Secretary’s definition is consistent with the language of the act.” 546 F.2d at 681. So it may be, if an alternate meaning for the operative word “employment” is adopted, but it is utterly inconsistent with the act’s history and purpose. As Judge McCree’s dissent indicates, the problem on which the court focused was the propriety vel non of treating employment by a close corporation as indistinguishable from self-employment. Not concentrating on the question of the validity of the Secretary’s regulation, the Montel court reached a conclusion on that point with which we must respectfully disagree. Other cases in which the Secretary’s definition has been uncritically accepted without investigation of the plain meaning of the statutory language and of the legislative history are Fleming v. Weinberger, 412 F.Supp. 293 (W.D.Va.1975); Weaver v. Weinberger, 392 F.Supp. 721 (S.D.W.Va. 1975); Markosky v. Mathews, 435 F.Supp. 374 (E.D.Pa.1977); Yenetskie v. Secretary of HEW, 426 F.Supp. 1372 (E.D.Pa.1977); and Braden v. Mathews, 407 F.Supp. 1032, 1034 (E.D.Tenn.1976), aff’d mem., 559 F.2d 1219 (6th Cir. 1977). In our view, they are not persuasive authority for the reasons we have outlined in declining to follow Montel. Legislative Interpretation. Finally, the Secretary relies on congressional action in 1972 and 1978 as confirming the accuracy of her perception of the 1969 legislative intent. In 1972, distressed by the rate at which the Secretary was denying benefits under the 1969 act, Congress liberalized many provisions of the act and made the liberalized provisions retroactive to December 30, 1969. Among the 1972 changes were the introduction of the fifteen-year presumption and an amendment to the definition of “miner” in 30 U.S.C. § 902(d) which substituted “a coal mine” for “an underground coal mine.” Since in 1970 her predecessor had promulgated the regulation with the requirement that “miners” be “employees,” the Secretary may point to the 1972 action by Congress as a statutory reenactment which adopted the extant administrative interpretation. Although reenactment may be “persuasive evidence that the [administrative] interpretation is the one intended by Congress,” NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed. 2d 134 (1974), that evidence is subject to rebuttal. As Professor Davis put it, “[T]he committees or subcommittees of Congress may or may not know of outstanding interpretations when they are considering reenactment; they do not in fact approve what they know nothing about.” Moreover, the Supreme Court has stated, “Where the law is plain the subsequent reenactment of a statute does not constitute adoption of its administrative construction.” Biddle v. Commissioner, 302 U.S. 573, 582, 58 S.Ct. 379, 383, 82 L.Ed. 431 (1938). For instance in SEC v. Sloan, 436 U.S. 103, 119-21, 98 S.Ct. 1702, 1712-13, 56 L.Ed.2d 148 (1978), the act before the Court had been re-enacted several times, the administrative interpretation in question had been mentioned at congressional hearings, and at least one congressional committee had filed a report explicitly approving the practice at issue. Notwithstanding the evidence of congressional awareness, the Court held that, even under those circumstances, reenactment did not constitute adoption of the interpretation. “The absence of any truly persuasive legislative history to support the [administrative interpretation], and the entire statutory scheme suggesting that in fact the [interpretation is wrong], reinforce our conclusion....” 436 U.S. at 122-23, 98 S.Ct. at 1714. In the instant case, when the Secretary’s predecessor sent his letter dated February 15, 1972, to the chairman of the Senate Committee on Labor and Public Welfare, the letter may have misled Congress about the substance of the extant administrative interpretation. The letter discussed both the pre-1972 law and the proposed amendment as if there were no employee-status requirement. See notes 41, 43, supra. Although Senator Randolph during a committee hearing once mentioned the Secretary’s requirement, no other legislator or witness even alluded to that requirement, either during committee hearings or on the floor of either house of Congress. It is at least as likely as not, therefore, that the action of Congress in reenacting the language to which the Secretary’s interpretation attached was in part the result of reliance on the Secretary’s misleading communication. Given the unambiguous legislative history of, and statutory purpose behind, the Black Lung Benefits Act, the argument is even stronger here than in Sloan for holding that reenactment did not constitute adoption of extant but obscure administrative constructions. When Congress remedies some administrative misinterpretations of an existing statute, it does not act at the risk of barring courts from correcting other misinterpretations on which Congress does not then focus its attention. Legislators who believed that they were expanding the availability of benefits will not be deemed by us to have narrowed them. Judge Learned Hand has said in the context of the same tax statute construed by Biddle: To suppose that Congress must particularly correct each mistaken construction under penalty of incorporating it into the fabric of the statute appears to us unwarranted; our fiscal legislation is detailed and specific enough already. While we are of course bound to weigh seriously such rulings, they are never conclusive; here, it seems to us that they are not enough to turn the scale. F.W. Woolworth Co. v. United States, 91 F.2d 973, 976 (2d Cir. 1937), cert. denied, 302 U.S. 768, 58 S.Ct. 479, 82 L.Ed. 597 (1938). As her last shot, the Secretary puts forth the contention that, in 1978, when Congress clearly included self-employed miners among the beneficiaries of the act, the Committee reports treated that inclusion as an expansion of the act’s coverage, rather than as a correction of a prior administrative misinterpretation. This, of the Secretary’s three interpretation arguments, is the one with the most force. While a later Congress cannot dictate what was meant by an earlier Congress, its understanding as to what was meant should be accorded substantial deference by the courts. But it is the intent of the earlier Congress, which enacted the statute, that controls. In the instant case, we regard the committees’ subsequent interpretation of the 1969 act as inconsistent with the clear 1969 statutory purpose and history. To the extent a later Congress erred, the error was induced by the Secretary’s regulatory definition and by some courts’ uncritical application of the definition. The main purpose of Congress in 1978 was to insure that benefits would no longer be denied because part or all of a miner’s activities had been in “self-employment. It was interested in curing a situation for the future and not in apportioning blame by ascertaining whether the situation arose as a result of misinterpretation of the earlier statute or as a result of inadequacy of the earlier statute. The clear meaning of the 1969 statute itself suffices to outweigh anything a congressional committee could have said in later years. For this court, on the other hand, the question of the origin of the exclusion of self-employment is the crucial one. With all deference to the Ninety-Fifth Congress, we adhere to our conclusion that the 1969 statute enacted by the Ninety-First Congress was misinterpreted, first administratively, then judicially, and finally legislatively. IV Accordingly, we reverse and remand with instructions that the district court order the Secretary to make her findings giving the claimant the benefit of presumptions deriving from over fifteen years of coal mine employment. REVERSED AND REMANDED. . Pub.L. No. 91-173, §§ 401^26, 83 Stat. 742 (current version at 30 U.S.C.A. §§ 901-945 (West Supp. 1979)). . See 30 U.S.C.A. § 901(b) (West Supp. 1979). . Such employment by the close corporation merits no less favorable treatment of a claimant under the Black Lung Benefits Act than does self-employment. See Montel v. Weinberger, 546 F.2d 679, 682 (6th Cir. 1976) (McCree, J., dissenting). . The earliest date as of which benefits might be calculated if Moore were to succeed in the present claim is the date his claim was filed, April 23, 1971. See 30 U.S.C. § 924(c) (1976). By its own terms, the relevant portions of the Black Lung Benefits Act of 1972 were made retroactive to December 30, 1969. Pub.L. No. 92-303, § 4(g), 86 Stat. 150. The further liberalization effected by the provisions of the Black Lung Benefits Reform Act of 1977, Pub.L. No. 95-239, 92 Stat. 95 (1978) (under which Moore’s self-employment would clearly count for purposes of the statutory presumptions) does not extend to claims such as this one, which was instituted prior to 1974 under Part B of the pre-1978 act. Treadway v. Califano, 584 F.2d 48 (4th Cir. 1978) (en banc). If Moore were ultimately to lose this claim, he would be able to file a claim for review under the 1978 act, which, however, would be retroactive only to January 1, 1974. 30 U.S.C.A. § 945 (

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

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

UNITED STATES of America v. LEIBY, Glenn, Appellant. No. 86-1702. United States Court of Appeals, Third Circuit. Submitted May 15, 1987. Decided May 27, 1987. Cheryl J. Sturm, Wayne, Pa., for appellant. Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief, Appellate Section, Joseph M. Miller, Eric Rraeutler, Asst. U.S. Attys., Philadelphia, Pa., for appellee. Before GIBBONS, Chief Judge, and MANSMANN, Circuit Judge, and McCUNE, District Judge. Honorable Barron P. McCune of the United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT MANSMANN, Circuit Judge. This matter comes before us on appeal from an order of the district court which denied the appellant’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (1982). We find that the district court did not abuse its discretion by denying the motion without a hearing, since the motion presented grounds for relief which the court determined adversely to the appellant on the merits in a previous § 2255 application. Because a direction to consider the merits of the latest motion would not serve the ends of justice as expressed in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), we will affirm the district court’s judgment. I. On September 7, 1983, the Government charged the appellant, Glenn Leiby, with conspiracy to manufacture and to distribute methamphetamine in violation of 21 U.S.C. § 846 (1982), manufacturing and distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) (1982), and engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1982). Pursuant to a plea agreement, Leiby pled guilty on January 20, 1984 to one count of conspiracy and to one count of distributing methamphetamine. On February 23, 1984, the district court sentenced Leiby to five years imprisonment with five years of special parole and imposed a $15,000 fine on the § 841(a)(1) count. The court further sentenced Leiby to three years probation to run consecutively to the special parole term and fined him $15,000 on the conspiracy count. Leiby raised no immediate objection to the sentence. On June 18, 1984, Leiby filed a motion for reduction of sentence under Fed.R. Crim.P. 35(b). Following the Government’s response, the district court denied the motion. Leiby filed a notice of appeal to this court, but the district court entered an order of voluntary dismissal on October 23, 1984. On July 5, 1985, Leiby filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion alleged, inter alia, that: (1) “The special parole term of 5 years, if allowed by the plea agreement, was illegal in that the petitioner was not advised of a 5 year special parole term and this renders petitioner’s guilty plea involuntary” and (2) “Petitioner’s conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily in that the plea agreement was violated.” The district court granted the motion in part and denied it in part. By order dated October 18, 1985 the court accordingly amended Leiby’s sentence on the § 841(a)(1) count by reducing the special parole term from five to two years. In amending the sentence the court stated: Mr. Leiby concedes that the court correctly advised him that if he pled guilty to count six, he could receive a sentence of five years followed by a special parole term of at least two years. A special parole term of at least two years is required by the statute. Therefore, the defendant and his attorney knew, in fact, and fully contemplated that if sentence was imposed on count six there would have to be a special parole term of at least two years. (Motion to Vacate, Set Aside, or Correct Sentence at 5). In his petition, he states that he bargained for two years special parole, not three. “The plea he was advised of was 5 + 5 + 2. At sentencing he received 5 + 5 + 3.” Id. Mr. Leiby cannot reasonably argue that he had a mistaken belief that the United States Attorney or the court could impose a sentence under count six without adding a special parole term. Here, there was in defendant full expectation that if sentenced under count six, there could be the maximum period of incarceration permitted by law but there would have to be the minimum special parole terms permitted under law since the plea agreement did not specify a greater period. To the extent that there was a special parole term of three years imposed on count six, the sentence is illegal since it is at odds with the plea agreement. The court, having power to correct an illegal sentence at any time, will reduce the special parole term to two years. No appeal was taken from the order of October 18, 1985. On September 9, 1986, Leiby filed a second § 2255 motion. That motion averred as its sole ground for relief that “Petitioner’s conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily in that Petitioner was not advised of the imposition of a special parole term as part of the plea agreement.” The district court summarily denied the motion on October 23, 1986. The court specifically found: “Petitioner alleges no new grounds for relief. Petitioner’s claims concerning his guilty plea and his plea agreement are identical to those adjudicated on the merits in the previous motion. I find no reason to reconsider the issues raised in the previous action.” Leiby v. United States, No. 83-00305-02, final order at 2-3 (E.D.Pa. Oct. 23, 1986). This timely appeal followed. II. A. The Supreme Court in Sanders v. United States formulated guidelines to govern successive applications for federal habeas corpus and motions under 28 U.S.C. § 2255. The Court announced: Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief [footnote omitted] only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. 373 U.S. at 15, 83 S.Ct. at 1077. The Court emphasized, however, that “these rules are not operative in cases where the second or successive application is shown, on the basis of the application, files, and records of the case alone, conclusively to be without merit. [Citations omitted.] In such a case the application should be denied without a hearing.” Id. B. On appeal, Leiby argues that the district court abused its discretion in refusing to entertain the second § 2255 motion, since the court’s prior determination was not on the merits and since the ends of justice would be served by reaching the merits of the subsequent application. In his brief, though, Leiby concedes that “the issue raised in the second Section 2255 Motion ha[s] been raised in the first Section 2255 Motion — that is, whether Appellant’s plea of guilty was unlawfully induced and not made voluntarily in that Appellant was not advised of the imposition of a special parole term as part of the plea agreement, or that any sentence [footnote omitted] would exceed five years[.]” Therefore, this appeal implicates only the last two of the three Sanders criteria. III. First, we find that the district court determined the voluntariness of Leiby’s guilty plea on the merits when the court considered Leiby’s initial § 2255 motion. In other words, “[t]he prior denial ... rested on an adjudication of the merits of the ground presented in the subsequent application.” Sanders, 373 U.S. at 16, 83 S.Ct. at 1077. The appellant insists, however, that the district court did not properly determine the voluntariness of the plea since the court did not hold an evidentiary hearing. Leiby accordingly cites Tucker v. United States, 427 F.2d 615 (D.C.Cir.1970), for the proposition that denial of a § 2255 motion without a hearing cannot satisfy the “on the merits” requirement of Sanders. Yet a closer look at Sanders and Tucker belies Leiby’s view. In Sanders, the Court defined “on the merits” to mean “that if factual issues were raised in the prior application, and it was not denied on the basis that the files and records conclusively resolved these issues, an evidentiary hearing was held.” 373 U.S. at 16, 83 S.Ct. at 1077. The Court thus recognized that a district court need not hold a hearing where the record as it stands decisively answers the § 2255 motion; in such a case, the court’s decision will be “on the merits.” Indeed, the district court in this case possessed the full files and records, including extensive transcripts, which indicated whether Leiby realized that his guilty plea might result not only in imprisonment but also in a special parole term and fines. Most significantly, Leiby confessed in his first § 2255 motion that the court “explained to [him] that on counts 1 and 6 he could receive ... a maximum of 10 years imprisonment plus a $30,000 fine together with a special parole term of ... ‘at least’ 2 years.” Nothing, in short, required the district court to venture outside the then-existing record to determine Leiby’s claims. Leiby misplaces his reliance on Tucker v. United States. There, a pro se prisoner filed a series of motions for post-conviction relief, all of which the district court denied without either holding a hearing or appointing counsel. The prisoner’s final application, in addition, raised several grounds for relief which could not be decided solely upon existing files and records. One claim, in fact, rested upon an intervening change in the law which, as the court of appeals observed, “would entitle him to a new hearing even if the merits had been determined adversely to him prior to that time.” 427 F.2d at 618 (footnote omitted). But the facts supporting the holding that the district court had not denied Tucker’s prior petitions “on the merits” simply do not exist in Leiby’s case. Second, we find that the ends of justice would not be served by reaching the merits of Leiby’s second § 2255 motion and that, therefore, the district court properly gave controlling weight to its decision on Leiby’s first application. See Sanders, 373 U.S. at 15, 83 S.Ct. at 1077. While the Court in Sanders noted that the “ends of justice” test “cannot be too finely particularized,” id. at 17, 83 S.Ct. at 1078, the Court stressed that “the burden is on the applicant____” to demonstrate its applicability. Id. Leiby has failed to do so. Leiby proffers only the alleged involuntariness of his guilty plea to support his claim that the district court erred in refusing to eliminate from Leiby’s sentence the two-year special parole term and the fines. Yet, although no reference to special parole or fines appears in the plea bargain colloquy, Leiby admits that the district court advised him at the plea acceptance hearing that he might “receive ... a maximum of 10 years imprisonment plus a $30,000 fine together with a special parole term of ... ‘at least’ 2 years.” The prisoner, nonetheless, pled guilty and raised no objection when the court imposed sentence. Compare United States v. Hawthorne, 806 F.2d 493, 497-98 & n. 8 (3d Cir.1986) (reversing a sentence imposing restitution where neither the plea agreement nor the change of plea colloquy mentioned restitution, and “the first mention of restitution was at the time it was imposed”) and Lane v. Williams, 455 U.S. 624, 626, 102 S.Ct. 1322, 1324, 71 L.Ed.2d 508 (1982) (noting that “[djuring the plea acceptance hearing, neither the trial judge, the prosecutor, nor defense counsel informed Williams that his negotiated sentence included a mandatory parole term of three years”). Finally and most important, Leiby chose to file successive § 2255 motions instead of appealing the district court’s decision on the first petition. The appellant thus bypassed the opportunity to bring the merits of his case before us. In such circumstances, the ends of justice do not require the district court to re-examine those same issues. Indeed, a second petition alleging the same grounds for relief as an earlier motion amounts to an abuse of the rules of procedure when filed beyond the prescribed time for appeal from decisions in § 2255 proceedings. See supra note 4. Rule 11 of the rules governing § 2255 proceedings provides that the time limit for an “appeal from an order entered on a motion for relief made pursuant to these rules is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure.” Fed.R.App.P. 4(a)(1), in turn states in relevant part: In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry. Without appealing from the district court’s October 18, 1985 decision, Leiby filed a second § 2255 motion on September 9, 1986, which, as he concedes, once again presented the very issue raised in his initial petition. From a policy standpoint, a rule requiring district courts to address the merits of prisoners’ motions in such cases as Leiby’s would effectively grant prisoners cartes blanches to flout the rules of habeas corpus procedure. For example, a petitioner who by oversight or otherwise failed to appeal timely from a district court’s decision on his § 2255 motion might (as Leiby essentially did) simply re-file it. If the district court could not summarily deny such a successive motion but instead had to rule again on its merits, the petitioner could then appeal the merits to us. We refuse, however, to allow through our back door what could not enter through our front door. IV. We conclude that the district court rightly denied the appellant’s § 2255 application without a hearing. The court determined the alleged involuntariness of Leiby’s guilty plea adversely to him on the merits in his previous § 2255 motion. The ends of justice would not be served by reviewing that issue. Accordingly, the judgment of the district court denying the appellant’s motion will be affirmed. APPENDIX THE COURT: ... Mr. Leiby, is there any plea agreement between you and the government? MR. ROSENBERG [for the Government]: Yes, Your Honor, there is. In exchange for the guilty pleas to Counts 1 and 6, first at the time of sentencing the government would move to dismiss the remaining counts against Mr. Leiby. The plea agreement would be under those two counts Mr. Leiby could face up to 5 years incarceration on one count, for example, and then that any additional sentence imposed on the second count would be consecutive probation to any period of incarceration imposed on the first count, meaning the count that the Court chooses to impose incarceration, if it does. That was the most inarticulate explanation. I hope it came out somewhat clear. There will be 5 years exposure to incarceration. Any additional time would be consecutive probation to whatever incarcerated period was imposed. THE COURT: You say consecutive? MR. ROSENBERG: Probation consecutive to any incarceration period. THE COURT: As I understand it, are you saying you are recommending that a sentence not exceed 5 years? MR. ROSENBERG: We’re stipulating that the sentence, whatever the Court deems to impose, cannot exceed 5 years incarceration. THE COURT: All right. MR. ROSENBERG: But not stipulating to what it might be, but that consecutive probation would be an option the Court could impose following any period of incarceration. THE COURT: Is that the full extent of it? MR. ROSENBERG: There’s an additional part of the plea agreement. THE COURT: Is Mr. Leiby charged in any other counts? MR. ROSENBERG: Yes, he is. THE COURT: Are those other counts to be dismissed at the time of sentencing? MR. ROSENBERG: That’s correct. MR. KIDD: [for Mr. Leiby]: That’s correct. MR. ROSENBERG: Of course the government later will be stating a factual underpinning for the plea, but it’s specifically agreed that paragraph 12 of Count 1 of the superseding indictment, Mr. Leiby stipulates to that as a fact. MR. KIDD: That’s correct, that’s part of the plea bargain. THE COURT: Is that the full agreement? MR. ROSENBERG: Yes, Your Honor, with the government free to recommend at sentencing up to that five years as vigorously as it wishes. MR. KIDD: Just as the defense can argue for anything from zero to five years. THE COURT: Under this arrangement, do you understand Mr. Leiby, that what your attorney and the attorney for the government are asking is that the Court accept a limitation upon its discretion to sentence you to the maximum penalty and therefore limit its sentencing prerogative to five years, and specifically the terms as have been agreed upon? The Court is not bound to accept that plea agreement. If the Court determines to accept the plea agreement, you will not be able to withdraw your guilty plea, okay? MR. LEIBY: Yes. THE COURT: If the Court determines not accept the terms of the plea agreement, it will state so in open Court, and you would have the opportunity, should you choose, to withdraw your guilty plea and go to trial. MR. LEIBY: Yes. MR. KIDD: That’s correct. THE COURT: And you would also have the right to maintain your guilty plea and throw yourself basically on the mercy of the Court and have the Court then sentence you to whatever sentence it might, do you understand that? MR. LEIBY: Yes, Your Honor. THE COURT: Has there been any promise to you or representation to you about what your sentence would be in this case other than what has been stated here in open court by your attorney and the attorney for the government? MR. KIDD: Your Honor, I’ve told Mr. Leiby he can get from zero to five years under this plea agreement, plus probation. THE COURT: You understand whatever your attorney has told you is not a promise, it is only an explanation of what the plea agreement is and what the law is? MR. LEIBY: Yes. THE COURT: Do you understand that you won’t be able to come back at some later time, assuming I accept your guilty plea, and say that your attorney promised you something that wasn’t delivered, or that the government promised you something that wasn’t made good with respect to your guilty plea and sentencing in this case? MR. LEIBY: Yes, Your Honor. . We set forth the plea bargain colloquy among the Government, Leiby, and the district court at length in the appendix which follows the opinion. . Title 21 U.S.C. § 841(b)(1)(B) at the time of Leiby’s offense provided in relevant part: "In the case of a controlled substance in schedule ... II which is not a narcotic drug ..., such person shall ... be sentenced to a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both____ Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment____” . In his § 2255 motion, Leiby stated, “The Court ... explained to Mr. Leiby that on counts 1 and 6 he could receive 5 years on each count or a maximum of 10 years imprisonment plus a $30,-000 fine together with a special parole term of 3 years. The prosecutor then indicated that the special parole term would be ‘at least’ 2 years.” . Title 28 U.S.C. § 2255 (1982) provides: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A motion for such relief may be made at any time. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner. . Rule 9(b) of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2255 similarly provides: A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

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

BARNES v. UNITED STATES No. 72-5443. Argued March 20, 1973 Decided June 18, 1973 Powell, J., delivered the opinion of the Court, in which BurgeR, C. J., and Stewart, White, Blackmttn, and RehNQUist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 848. BreN-NAN, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 852. Malcolm, H. Mackey, by appointment of the Court, 411 U. S. 946, argued the cause and filed a brief for petitioner. Deputy Solicitor General Friedman argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Mark L. Evans, and Sidney M. Glazer. Mr. Justice Powell delivered the opinion of the Court. Petitioner Barnes was convicted in United States District Court on two counts of possessing United States Treasury checks stolen from the mails, knowing them to be stolen, two counts of forging the checks, and two counts of uttering the checks, knowing the endorsements to be forged. The trial court instructed the jury that ordinarily it would be justified in inferring from unexplained possession of recently stolen mail that the defendant possessed the mail with knowledge that it was stolen. We granted certiorari to consider whether this instruction comports with due process. 409 U. S. 1037 (1972). The evidence at petitioner’s trial established that on June 2, 1971, he opened a checking account using the pseudonym “Clarence Smith.” On July 1, and July 3, 1971, the United States Disbursing Office at San Francisco mailed four Government checks in the amounts of $269.02, $164.70, $184, and $268.80 to Nettie Lewis, Albert Young, Arthur Salazar, and Mary Hernandez, respectively. On July 8, 1971, petitioner deposited these four checks into the “Smith” account. Each check bore the apparent endorsement of the payee and a second endorsement by “Clarence Smith.” At petitioner’s trial the four payees testified that they had never received, endorsed, or authorized endorsement of the checks. A Government handwriting expert testified that petitioner had made the “Clarence Smith” endorsement on all four checks and that he had signed the payees’ names on the Lewis and Hernandez checks. Although petitioner did not take the stand, a postal inspector testified to certain statements made by petitioner at a post-arrest interview. Petitioner explained to the inspector that he received the checks in question from people who sold furniture for him door to door and that the checks had been signed in the payees’ names when he received them. Petitioner further stated that he could not name or identify any of the salespeople. Nor could he substantiate the existence of any furniture orders because the salespeople allegedly wrote their orders on scratch paper that had not been retained. Petitioner admitted that he executed the Clarence Smith endorsements and deposited the checks but denied making the payees’ endorsements. The District Court instructed the jury that “[possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen.” The jury brought in guilty verdicts on all six counts, and the District Court sentenced petitioner to concurrent three-year prison terms. The Court of Appeals for the Ninth Circuit affirmed, finding no lack of “rational connection” between unexplained possession of recently stolen property and knowledge that the property was stolen. 466 F. 2d 1361 (1972). Because petitioner received identical concurrent sentences on all six counts, the court declined to consider his challenges to conviction on the forgery and uttering counts. We affirm. I We begin our consideration of the challenged jury instruction with a review of four recent decisions which have considered the validity under the Due Process Clause of criminal law presumptions and inferences. Turner v. United States, 396 U. S. 398 (1970); Leary v. United States, 395 U. S. 6 (1969); United States v. Romano, 382 U. S. 136 (1965); United States v. Gainey, 380 U. S. 63 (1965). In United States v. Gainey, supra, the Court sustained the constitutionality of an instruction tracking a statute which authorized the jury to infer from defendant’s unexplained presence at an illegal still that he was carrying on “the business of a distiller or rectifier without having given bond as required by law.” Relying on the holding of Tot v. United States, 319 U. S. 463, 467 (1943), that there must be a “rational connection between the fact proved and the ultimate fact presumed,” the Court upheld the inference on the basis of the comprehensive nature of the “carrying on” offense and the common knowledge that illegal stills are secluded, secret operations. The following Term the Court determined, however, that presence at an illegal still could not support the inference that the defendant was in possession, custody, or control of the still, a narrower offense. “Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — ‘the inference of the one from proof of the other is arbitrary . . . .’ Tot v. United States, 319 U. S. 463, 467.” United States v. Romano, supra, at 141. Three and one-half years after Romano, the Court in Leary v. United States, supra, considered a challenge to a statutory inference that possession of marihuana, unless satisfactorily explained, was sufficient to prove that the defendant knew that the marihuana had been illegally imported into the United States. The Court concluded that in view of the significant possibility that any given marihuana was domestically grown and the improbability that a marihuana user would know whether his marihuana was of domestic or imported origin, the inference did not meet the standards set by Tot, Gainey, and Romano. Referring to these three cases, the Leary Court stated that an inference is “ ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U. S., at 36. In a footnote the Court stated that since the challenged inference failed to satisfy the more-likely-than-not standard, it did not have to “reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.” Id., at 36 n. 64. Finally, in Turner v. United States, supra, decided the year following Leary, the Court considered the constitutionality of instructing the jury that it may infer from possession of heroin and cocaine that the defendant knew these drugs had been illegally imported. The Court noted that Leary reserved the question of whether the more-likely-than-not or the reasonable-doubt standard controlled in criminal cases, but it likewise found no need to resolve that question. ’ It held that the inference with regard to heroin was valid judged by either standard. 396 U. S., at 416. With regard to cocaine, the inference failed to satisfy even the more-likely-than-not standard. Id., at 419. The teaching of the foregoing cases is not altogether clear. To the extent that the “rational connection,” “more likely than not,” and “reasonable doubt” standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance. What has been established by the cases, however, is at least this: that if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well- as the more-likely-than-not standard, then it clearly accords with due process. In the present case we deal with a traditional common-law inference deeply rooted in our law. For centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods. James Thayer, writing in his Preliminary Treatise on Evidence (1898), cited this inference as the descendant of a presumption “running through a dozen centuries.” Id., at 327. Early American cases consistently upheld instructions permitting conviction upon such an inference, and the courts of appeals on numerous occasions have approved instructions essentially identical to the instruction given in this case. This longstanding and consistent judicial approval of the instruction, reflecting accumulated common experience, provides strong indication that the instruction comports with due process. This impressive historical basis, however, is not in itself sufficient to establish the instruction’s constitutionality. Common-law inferences, like their statutory counterparts, must satisfy due process standards in light of present-day experience. In the present case the challenged instruction only permitted the inference of guilt from unexplained possession of recently stolen property. The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possession consistent with innocence. On the basis of this evidence alone common sense and experience tell us that petitioner must have known or been aware of the high probability that the checks were stolen. Cf. Turner v. United States, 396 U. S., at 417; Leary v. United States, 395 U. S., at 46. Such evidence was clearly sufficient to enable the jury to find beyond a reasonable doubt that petitioner knew the checks were stolen. Since the inference thus satisfies the reasonable-doubt standard, the most stringent standard the Court has applied in judging permissive criminal law inferences, we conclude that it satisfies the requirements of due process. II Petitioner also argues that the permissive inference in question infringes his privilege against self-incrimination. The Court has twice rejected this argument, Turner v. United States, 396 U. S., at 417-418; Yee Hem v. United States, 268 U. S. 178, 185 (1925), and we find no reason to re-examine the issue at length. The trial court specifically instructed the jury that petitioner had a constitutional right not to take the witness stand and that possession could be satisfactorily explained by evidence independent of petitioner’s testimony. Introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify. The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination. Yee Hem v. United States, supra, at 185. Ill Petitioner further challenges his conviction on the ground that there was insufficient evidence that he knew the checks were stolen from the mails. He contends that 18 U. S. C. § 1708 requires knowledge not only that the checks were stolen, but specifically that they were stolen from the mails. The legislative history of the statute conclusively refutes this argument and the courts of appeals that have addressed the issue have uniformly interpreted the statute to require only knowledge that the property was stolen. Since we find that the statute was correctly interpreted and that the trial court’s instructions on the inference to be drawn from unexplained possession of stolen property were fully consistent with petitioner’s constitutional rights, it is unnecessary to consider petitioner’s challenges to his conviction on the forging and uttering counts. Affirmed. The witness’ findings with respect to the Young and Salazar signatures were inconclusive. This explanation of petitioner’s possession of the checks, presented through the postal inspector’s testimony, was adopted by petitioner’s counsel in argument to the jury. Tr. 107-108. The full instruction on the inference arising from possession of stolen property stated: “Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen. “However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of recently stolen property. “The term 'recently' is a relative term, and has no fixed meaning. Whether property may be considered as recently stolen depends upon the nature of the property, and all the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. “If you should find beyond a reasonable doubt from the evidence in the case that the mail described in the indictment was stolen, and that while recently stolen the contents of said mail here, the four United States Treasury checks, were in the possession of the defendant you would ordinarily be justified in drawing from those facts the inference that the contents were possessed by the accused with knowledge that it was stolen property, unless such possession is explained by facts and circumstances in this case which are in some way consistent with the defendant’s innocence. “In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the witness stand and testify. “Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.” Tr. 123-124. The Turner Court also considered the validity' of inferring that a defendant knowingly purchased, sold, dispensed, or distributed a narcotic drug not in or from the original package bearing tax stamps from the fact that the drugs had no tax stamps when found in the defendant’s possession. 26 U. S. C. §4704 (a) (1964 ed.). The Court upheld the inference that a defendant possessing unstamped heroin knowingly purchased it in violation of the statute, but struck down the inference with regard to cocaine. 396 U. S., 398, 419-424. Thayer also described the historical development of the presumption: “[T]he laws of Ine [King of Wessex, A. D. 688-725] provide that, ‘if stolen property be attached with a chapman, and he have not brought it before good witnesses, let him prove . . . that he was neither privy (to the theft) nor thief; or pay as wite (fine) xxxvi shillings.’ To be found thus in the possession of stolen goods was a serious thing; if they were recently stolen, then was one ‘taken with the mainour,’ — a state of things that formerly might involve immediate punishment, without a trial; and, later, a trial without a formal accusation; and, later still, a presumption of guilt which, in the absence of contrary evidence, justified a verdict, and at the present time is vanishing away into the mere judicial recognition of a permissible inference . . . .” Id., at 328. (Citations omitted.) See, e. g., Wilson v. United States, 162 U. S. 613 (1896); Commonwealth v. Millard, 1 Mass. 6 (1804); Knickerbocker v. People, 43 N. Y. 177 (1870); State v. Raymond, 46 Conn. 345 (1878); Cook v. State, 84 Tenn. 461 (1886). E. g., United States v. Russo, 413 F. 2d 432 (CA2 1969); United States v. Smith, 446 F. 2d 200 (CA4 1971); United States v. Winbush, 428 F. 2d 357 (CA6), cert. denied, 400 U. S. 918 (1970); United States v. Hood, 422 F. 2d 737 (CA7), cert. denied, 400 U. S. 820 (1970); United States v. Dilella, 354 F. 2d 584 (CA7 1965). The reasoning of the statutory-inference cases is applicable to analysis of common-law inferences. Cf. United States v. Gainey, 380 U. S. 63, 70 (1965); Rules of Evidence for United States Courts and Magistrates (proposed Nov. 20, 1972), Rule 303 (a), 56 F. R. D. 212. Common-law inferences, however, present fewer constitutional problems. Such inferences are invoked only in the discretion of the trial judge. While statutes creating criminal law inferences may be interpreted also to preserve the trial court’s traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury, Turner v. United States, 396 U. S. 398, 406 n. 6 (1970); United States v. Gainey, supra, at 68-70, such discretion is inherent in the use of common-law inferences. Of course, the mere fact that there is some evidence tending to explain a defendant’s possession consistent with innocence does not bar instructing the jury on the inference. The jury must weigh the explanation to determine whether it is “satisfactory.” Supra, at 840 n. 3. The jury is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the defendant did have knowledge that the property was stolen, an essential element of the crime, remains on the Government. “ ‘Common sense’ . . . tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled.” It is true that the practical effect of instructing the jury on the inference arising from unexplained possession of recently stolen property is to shift the burden of going forward with evidence to the defendant. If the Government proves possession and nothing more, this evidence remains unexplained unless the defendant introduces evidence, since ordinarily the Government’s evidence will not provide an explanation of his possession consistent with innocence. In Tot v. United States, 319 U. S. 463 (1943), the Court stated that the burden of going forward may not be freely shifted to the defendant. See also Leary v. United States, 395 U. S. 6, 44-45 (1969). Tot held, however, that where there is a “rational connection” between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant. Where an inference satisfies the reasonable-doubt standard, as in the present case, there will certainly be a rational connection between the fact presumed or inferred (in this case, knowledge) and the facts the Government must prove in order to shift the burden of going forward (possession of recently stolen property). We do not decide today whether a judge-formulated inference of less antiquity or authority may properly be emphasized by a jury instruction. Nor can the instruction “be fairly understood as a comment on the petitioner’s failure to testify.” United States v. Gainey, 380 U. S., at 70-71. “Whoever . . . unlawfully has in his possession, any . . . mail . . . which has been so stolen . . . , knowing the same to have been stolen, . . . [shall be fined or imprisoned or both].” Prior to 1939 the statute required proof of possession of articles stolen from the mail “knowing the same to have been so stolen.” 18 U. S. C. § 317 (1934 ed.) (emphasis added). See, e. g., Brandenburg v. United States, 78 F. 2d 811 (CA3 1935). In 1939 Congress eliminated the word “so” preceding the word “stolen.” H. R. Rep. No. 734, 76th Cong., 1st Sess., 1 (1939), explains the change: “The reported bill amends the existing law so that it will sustain a conviction for the Government to prove that the property was in fact stolen from the mails and that the defendant knew the property he received had been stolen. The committee feel that this should be sufficient without requiring the Government to prove also that the defendant knew the property received had been stolen from the mails.” See also S. Rep. No. 864, 76th Cong., 1st Sess (1939). United States v. Hines, 256 F. 2d 561 (CA2 1958); Smith v. United States, 343 F. 2d 539 (CA5), cert. denied, 382 U. S. 861 (1965); United States v. Gardner, 454 F. 2d 534 (CA9), cert. denied, 409 U. S. 867 (1972); United States v. Schultz, 462 F. 2d 622 (CA9 1972). Although affirmance of petitioner’s conviction on two of the six counts carrying identical concurrent sentences does not moot the issues he raises pertaining to the remaining counts, Benton v. Maryland, 395 U. S. 784 (1969), we decline as a discretionary matter to reach these issues. Cf. United States v. Romano, 382 U. S. 136, 138 (1965).

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 J. DRYDEN, Appellant, v. Margaret B. DRYDEN, Theodore Loving Dryden and David L. Dryden, Appellees. No. 16143. United States Court of Appeals Eighth Circuit. April 14, 1959. Ralph M. Jones, Kansas City, Mo. (Roy P. Swanson, John C. Thurlo, and Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, Mo., on the brief), for appellant. Rufus Burrus, Independence, Mo., for appellee Margaret B. Dryden. Before SANBORN, JOHNSEN, and VAN OOSTERHOUT, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. This is an appeal from final order dismissing Counts I, III, and IV of plaintiff’s complaint for want of federal jurisdiction. *III.Jurisdiction is based upon diversity of citizenship. Plaintiff is a citizen of the District of Columbia. All defendants are citizens of Missouri. Each count alleges that the amount in controversy exceeds $3,000. Plaintiff in the various counts of his complaint asserts claims against real estate alleged to have been acquired by him as heir of his father, L. T. Dryden, and his mother, Mary Dryden. L. T. Dryden was married three times. He first married Carrie Dryden. Defendant Theodore Dryden is the sole issue of said marriage. L. T. Dryden’s second marriage was to Mary Dryden, now deceased. The plaintiff and defendant David Dryden were the issue of that marriage. L. T. Dryden at the time of his death was married to defendant Margaret Dryden, who survived him. No children were born as the result of this marriage. L. T. Dryden died intestate on December 9, 1957, leaving as his heirs his three sons, above named, and his widow, Margaret Dryden. In Count I plaintiff alleges that his mother, Mary Dryden, received a substantial inheritance from her father; that the proceeds of such inheritance, belonging solely to Mary Dryden, were, with her consent, used by L. T. Dryden to purchase certain real estate, referred to in the record as Lots A and B; that none of L. T. Dryden’s funds went into the purchase; that title to the real estate was taken in the name of L. T. Dryden; that L. T. Dryden became trustee of said land for the benefit of Mary Dryden and her heirs; that plaintiff and David Dryden are the sole heirs of Mary Dryden and that under the law of Missouri they are entitled to said land. In Count II, which is not directly involved in this appeal, plaintiff asserts that L. T. Dryden invested large sums of money belonging to the plaintiff as heir of his mother in real estate, described in the record as Lot C, taking title thereto in his own name, although he furnished no part of the consideration; that L. T. Dryden became trustee of said land for the plaintiff, and that plaintiff is entitled to be adjudged the sole owner of Lot C. In Count III plaintiff prays for the partition of land known as Lot D. Plaintiff alleges that his father, L. T. Dryden, died seized of said land, and that by virtue of the laws of descent in Missouri title thereto is vested one-half in Margaret Dryden and one-sixth each in plaintiff, David Dryden, and Theodore Dryden. In Count IV plaintiff asked for alternative relief in the event he is not given the relief he asks for in Counts I and II. Plaintiff alleges that if his claims for relief made in Counts I and II are not established he at least inherited a one-sixth interest from his father, L. T. Dryden,- in Lots A, B, and C involved in Counts I and II; that title to said property should be established in the same persons and in the same proportions and upon the same basis as urged in Count III; and that partition of said real estate should be ordered. Defendant Margaret Dryden filed no answer to Counts I, III, and IV of the complaint, but, instead, filed a motion to dismiss for want of jurisdiction. Theodore Dryden in his answer denied plaintiff’s allegations supporting Counts I and II and prayed for the dismissal of such counts. The answer admitted the allegations of Counts III and IV and joined in plaintiff’s prayer for partition. David Dryden in his answer did not controvert any of the allegations of Counts I, III, and IV and joined plaintiff in his prayer for relief as to each of said counts. He denied the allegations of Count II not here involved. The trial court realigned David as a plaintiff as to Count I, and realigned David and Theodore as plaintiffs as to Counts III and IV. Such realignments destroyed diversity of citizenship between the parties as to Counts I, III, and IV. The trial court dismissed said counts for want of jurisdiction. This appeal followed. Upon the face of the pleadings the requisite diversity of citizenship appears between the plaintiff and the defendants. The plaintiff is a citizen of the District of Columbia and all defendants are citizens of Missouri. However, it is well established that the designation of parties as plaintiff or defendant in the pleadings is not controlling in determining jurisdiction. The applicable law is stated by the Supreme Court in City of Indianapolis v. Chase National Bank, 314 U.S. 63, 69-70, 62 S.Ct. 15, 17, 86 L.Ed. 47, as follows: “ * *' To sustain diversity jurisdiction there must exist an ‘actual’, Helm v. Zarecor, 222 U.S. 32, 36, 32 S.Ct. 10, 11, 56 L.Ed. 77, ‘substantial’, Niles-Bement-Pond Co. v. Iron Moulders’ Union, 254 U.S. 77, 81, 41 S.Ct. 39, 41, 65 L.Ed. 145, controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. Strawbridge v. Cur-tiss, 3 Cranch. 267, 2 L.Ed. 435. Diversity jurisdiction cannot be conferred upon the federal courts by the parties’ own determination of who are plaintiffs and who defendants. It is our duty, as it is that of the lower federal courts, to ‘look beyond the pleadings, and arrange the parties according to their sides in the disputo’. City of Dawson v. Columbia Ave. Sav. Fund, Safe Deposit, Title & Trust Co., 197 U.S. 178, 180, 25 S.Ct. 420, 421, 49 L.Ed. 713. Litigation is the pursuit of practical ends, not a game of chess. Whether the necessary ‘collision of interest’, Dawson v. Columbia Ave. Sav. Fund, Safe Deposit Title & Trust Co., supra, 197 U.S. at page 181, 25 S.Ct. at page 421, 49 L.Ed. 713, exists, is therefore not to be determined by mechanical rules. It must be ascertained from the ‘principal purpose of the suit’, East Tennessee [V. & G. R.] Co. v. Grayson, 119 U.S. 240, 244, 7 S.Ct. 190, 192, 30 L.Ed. 382, and the ‘primary and controlling matter in dispute’, Merchants’ Cotton Press Co. v. Insurance Co., 151 U.S. 368, 385, 14 S.Ct. 367, 373, 38 L.Ed. 195. These familiar doctrines governing the alignment of parties for purposes of determining diversity of citizenship have consistently guided the lower federal courts and this Court.” In Thomson v. Butler, 8 Cir., 136 F.2d 644, 647, this court says: “ * * * For purposes of testing the jurisdiction of a federal court on the basis of diversity of citizenship, it is immaterial how the parties may have been designated in the pleadings, since the court must align them for jurisdictional purposes on the basis of their actual legal interests and the apparent results to them if the object sought tc be accomplished by the litigation is successful. * * * ” To the same general effect, see Thomas v. Anderson, 8 Cir., 223 F. 41; 3 Moore’s Federal Practice, paragraph 19.03, page 2105; Annotation, 132 A.L.R. 188. Plaintiff in support of his contention that there should be no realignment of parties relies upon cases such as Franz v. Franz, 8 Cir., 15 F.2d 797, and Belding v. Gaines, C.C.E.D.Ark., 37 F. 817. For example, in the Franz case, the court, after stating that the plaintiff is seeking to establish only his own undivided interest in which he alone is interested, ■continues (at page 800 of 15 F.2d): “ * * * in suits respecting undivided interests in property between the several owners and claimants thereof, two or more of the parties frequently seek the same kind of relief against each other respecting their separate interests, and make common cause against one defendant who claims the whole. In such a case, the parties who make common cause against one defendant need not necessarily be aligned as parties plaintiff. * * * ” Our present case is distinguishable from the Franz case, supra, as there the plaintiff sought to establish his own undivided interest, while here plaintiff asserts in Count I that he and David Dryden became the sole owners of the real estate and prays that he and David be adjudged the sole owners of the property. David Dryden in his answer admitted the allegations and joined in the prayer. Moreover, the Franz case was decided before the City of Indianapolis and the Thomson cases here before discussed. In the light of the holdings of those cases we are satisfied that the Franz decision cannot be followed in situations where separate holders of undivided interests make common cause against parties who dispute the validity of the basis upon which their common claims rest and assert adverse interests in the property in litigation. When the law, as above set out, is applied to the factual situation presented by Count I of the complaint, it is perfectly clear that the interests of plaintiff and defendant David Dryden in said cause of action are identical. Each is seeking to establish that he is a beneficiary of the same constructive trust. The claim of each depends upon the establishment of the trust. On the other hand, the rights of the defendants, Theodore Dryden and Margaret Dryden, are dependent upon defeating the establishment of the trust, since if the alleged trust is established they have no interest in the property involved in Count I. We are convinced that the court did not commit error or abuse its discretion in realigning David Dryden as a plaintiff in Count I. Such alignment placed residents of Missouri on both sides of the Count I controversy. Count I was therefore properly dismissed for want of jurisdiction. The question of realignment of parties as to Count III raises a more difficult problem. From all that appears in the record, plaintiff and defendants each acquired an interest in the land in Count III by inheritance from L. T. Dryden. Confirmation of the respective interests of the parties in the property involved and partition thereof are sought. The pleadings disclose no dispute between the parties as to the individual interest owned by each party as alleged by the plaintiff. We find no indication that any tenant in common has any adverse or hostile claim against any other tenant in common. Thus far no one has opposed partition. Defendants, Theodore Dryden and David Dryden, have joined in plaintiff’s prayer for partition as to Counts III and IV. Margaret Dryden has had no occasion to answer such counts. Thus, we have a situation where no real dispute between the litigants is revealed. The right of a tenant in common to partition has long been recognized. In 68 C.J.S. Partition § 20, it is said: “The object of partition proceedings is to enable those who own the property as coparceners, joint tenants, or tenants in common, so to put an end to the tenancy as to vest in each of them title to, and the use in severalty of, some definite part of the property owned in common so that each may take and enjoy and improve his separate estate without let or hindrance from the other, and the object of a bill for the sale of realty for the purpose of partition is to make a sale for the benefit of the owners of the property. The partition suit is primarily a proceeding to sever interests in property, and the determination of interests and quieting of title are only ancillary thereto. * * * ” The right of a tenant in common to partition is generally absolute and is an incident of common ownership. Shell Oil Co. v. Seeligson, 10 Cir., 231 F.2d 14, 17; 68 C.J.S. Partition § 21. Partition is an adversary proceeding and any party may institute a proceeding as plaintiff. Parties in interest who do not join may be made defendants. 68 C.J.S. Partition § 74. In Franz v. Franz, supra, this court quotes from Belding v. Gaines, supra, as follows (at pages 800-801 of 15 F.2d): “ * * * Partition implies a setting apart to each owner his hitherto undivided interest, and each owner has a separate interest in establishing the fact and extent of his title, and in securing his separate share of the estate. * * * ” In Lewis v. Schrader, D.C.N.D.Tex., 287 F. 893, 896, it is said: “One or more plaintiffs in a partition suit may sue their cotenants in a federal court, and in such case the joinder of the plaintiffs is neither arbitrary nor fictitious, but is the usual and ordinary arrangement permitted in partition suits, both under the state statute and under the rules of practice in courts of equity, and that which the law permits is neither fraudulent nor fictitious in a legal sense. * * * ” Thomas v. Thomas, 5 Cir., 165 F.2d 332, supports the proposition that when all that is sought is partition and there is no title controversy no alignment should be made. The court states (p. 334): “Whether or not the defendant Lawrence should be aligned as a plaintiff or retained in the case as a defendant must be determined by the controlling issues in this case. Indianapolis v. Chase Nat. Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47. If, for instance, all of the defendants were to admit in their answers that the purported deed from the wife to the husband was a forgery or a nullity, the only real issue or controversy would be in relation to the partition wherein the interest of all would be adversary and no realignment would bo appropriate. But if and when an issue is made on the allegations of invalidity of the deed, or on the title vel non of plaintiff and Lawrence, a realignment of Lawrence as a plaintiff would then be appropriate. Until there is such an issue, either of law or fact, the order of realignment in this case would be premature. No one has taken issue on plaintiff’s allegations as to the invalidity of the deed or the lack of title in her.” Frequently in partition cases the undivided interests of the parties are not in dispute. In such cases the object of the suit is to end the tenancy in common, and either divide the land in kind or order a sale and divide the proceeds in accordance with the owners’ interests in the property. Our present case appears to be a case of this type. No controversy is now apparent as to the respective interests of the tenants in common or as to plaintiff’s right of partition. So far as here appears all parties have a common interest in having their rights established in the proportions asserted by plaintiff and in having partition made. Any owner of land held in common is entitled to partition. Partition may properly be accomplished by a suit instituted by one tenant in common against the remaining tenants in common. Someone must be plaintiff and someone must be defendant. In the absence of any disputed issue between the parties to the litigation, we can see no basis for realignment of the parties to a partition suit upon the basis of interest in the litigation. The court erred in realigning the parties as to Count III and in dismissing said count for want of jurisdiction. The legal principles discussed in our consideration of Count III govern IV. As we have heretofore stated, partition is asked in Count IV for Lots A and B involved in Count I and Lot C involved in Count II only in the event the relief prayed for in said counts is denied. Since the court’s jurisdiction of Count II has not been challenged, we see no obstacle to the court’s jurisdiction to partition Lot C if plaintiff is not granted the relief he seeks in Count II. The prayer for partition in Count IV as to Lots A and B involved in Count I is conditional upon an adjudication on the merits adverse to the plaintiff on Count I. We have held that Count I was properly dismissed for want of jurisdiction. Thus, an action for partition as to Lots A and B is at least premature. The federal court does not have jurisdiction to decide whether the condition upon which relief as to Lots A and B has been asked in Count IV has been met. Unless the condition precedent to the prayer for alternate relief by way of partition is disposed of by final adjudication on the merits adverse to the plaintiff by a court having jurisdiction, or unless the condition is withdrawn by the plaintiff, the court is without jurisdiction to consider the prayer for alternate relief by way of partition as to Lots A and B. Upon the present state of the record the court was justified in dismissing for want of jurisdiction plaintiff’s prayer for alternate relief by way of partition of Lots A and B involved in Count I. It may be admitted that much could be said in favor of disposing of all the controversies between the parties in the same proceeding. However, the jurisdiction of federal courts is limited, and a federal court cannot assume the power to entertain a cause of action not within its jurisdiction merely because that cause of action has been joined by the plaintiff with one which is within the court’s jurisdiction. Geneva Furniture Co. v. S. Karpen & Bros., 238 U.S. 254, 259, 35 S.Ct. 788, 59 L.Ed. 1295; 54 Am.Jur. United States Courts § 41. Plaintiff if he so desires could doubtless obtain adjudication of all the claims in a suitable proceeding in the state court. Judgment affirmed as to Count I. Reversed and remanded as to Counts III and IV for further proceedings consistent with the views expressed in this opinion. . Order dismissing Oonnts I and III was entered on September 23, 1958. Order was entered November 4, 1958, dismissing Count IV and overruling motion for rehearing on dismissal of Counts I and III. Appeal from such orders was taken on November 28, 1958. The orders originally appealed from were not based upon the determination required by Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. and consequently this court was without jurisdiction to consider the appeal. See Gallon v. Lloyd-Thomas Co., 8 Cir., 261 F.2d 26, 28. On February 26, 1959, the trial court entered final order of dismissal as to Counts I, III, and IV based upon the determination required by Rule 54 (b). Notice of appeal from this order was filed on March 6, 1959, and all parties have stipulated “that this appeal may be submitted as taken from the District Court’s order of February 26, 1959, on the record, briefs and oral argument of counsel made, submitted and presented to this Court on March 5, 1959.” This court therefore has jurisdiction based upon the appeal taken on March 6, 1959, from the trial court’s final order of dismissal of February 26, 1959. . In the complaint plaintiff alleges residence of the parties rather than citizenship. The trial court found that the plaintiff is a citizen of the District of Columbia and defendants are citizens of Missouri. At the time of oral argument before this court all parties agreed that citizenship existed as determined by the trial court, and that the complaint could be considered amended to allege citizenship of the parties rather than residence.

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?

SWIFT & COMPANY PACKERS et al. v. COMPANIA COLOMBIANA DEL CARIBE, S. A. et al. No. 230. Argued December 14-15, 1949. — Decided June 5, 1950. Eberhard P. Deutsch argued the cause for petitioners. With him on the brief was Harry F. Stiles, Jr. Nicholas J. Heady, 3rd argued the cause and filed a brief for respondents. Mr. Justice Frankfurter delivered the opinion of the Court. The question before us is the propriety of an order of the District Court for the Canal Zone vacating a foreign attachment of a vessel made in a libel in personam. We granted certiorari because important questions relating to the scope of admiralty jurisdiction and its exercise are in issue. 338 U. S. 813. On March 7, 1948, the libel was filed against Compania Transmaritima Colombiana, S. A., a Colombian corporation, by Swift & Company Packers, a Nevada corporation, certain Cuban corporations and individuals, and a Colombian citizen. They brought the libel as owners of rice shipped from Ecuador to Cuba. It was alleged that the cargo had been delivered in good order to the M/V Cali, owned and operated by Transmaritima, and that the vessel had sunk, or partially sunk, off the island of Grand Cayman with resulting nondelivery of the cargo. This was supplemented by allegations of negligence. Process was prayed with the further request that if the respondent could not be found its goods and chattels be attached, particularly a vessel known as the Alacran, or Caribe. This vessel was thereupon attached by the marshal. On March 8, libellants filed a supplemental and amended libel, and on the basis of the following allegations joined the Compania Colombiana Del Caribe, S. A., as respondent. On or shortly prior to March 4, the Compania Del Caribe had been organized under the laws of Colombia and the Alacran had been transferred by Transmaritima to Del Caribe in fraud of the rights of libellants. The latter company had been organized by directors, officers and stockholders of Transmaritima, but no funds had been paid into its treasury for the issue of its stock, and the transfer of the Alacran was without real consideration. Del Caribe was “merely the creature or alter ego” of Transmaritima and “they should be held to be, as they are, one and the same.” Del Caribe, on or about March 4, had had the vessel’s name changed from Alacran to Caribe, and a new register had been issued accordingly. In the alternative, the claim was that Del Caribe was indebted to Transmaritima for at least a substantial part if not all of the purchase price of the Caribe. Attachment of the vessel was again prayed on what appears to have been either of two grounds: since Transmaritima and Del Caribe were really one and the same, it mattered not which was deemed to be the owner of the Caribe; since the transfer of the Caribe to Del Caribe was a fraudulent transfer to be set aside, the vessel was in reality Transmaritima’s property and Del Caribe should be garnished. On the basis of the amended libel another attachment of the Caribe was made. With the supplemental libel, libellants submitted a list of interrogatories to be propounded to Del Caribe, calculated to disclose the true status of that company and of the transfer to it of the Caribe. On March 15, respondents gave notice that they would move for an order dismissing the libel and vacating the attachment. An accompanying affidavit relied primarily on the doctrine of jorum non conveniens. The District Court overruled this motion on March 31. The parties then entered into stipulations whereby the respondents’ time to answer the libel and interrogatories was extended to June 17. On June 11, they answered, putting in issue various questions relating to the liability arising out of the sinking of the Cali and to the transfer of the Caribe. At the same time Del Caribe objected to the interrogatories on various grounds. No disposition of these objections appears from the record. On August 16, Del Caribe gave notice of a motion to dismiss the libel as to it and vacate the attachment. Various grounds were urged calling into question the jurisdiction of the court, the propriety of its exercise, and the adequacy of the allegations to state a claim in the libel. An accompanying affidavit set forth matters relating to the transfer. On September 20, the District Court found that the nondelivery of the cargo was due to the beaching of the Cali in January, 1948; that Del Caribe had been organized in the latter part of February, 1948; and that Transmaritima had sold and transferred the Caribe to Del Caribe on February 25. From these facts the district judge concluded that there was no jurisdiction in admiralty to inquire into the relations between the two respondent companies or the sale of the Caribe. In any event, the court declined to exercise jurisdiction to look into the transfer since it had taken place between two foreign corporations and in a foreign country. Accordingly, the attachment was ordered to be vacated. While libellants submitted additional evidence upon a rehearing, the court adhered to its original views. 83 F. Supp. 273. The Court of Appeals affirmed. It held that jurisdiction to set aside a fraudulent transfer before judgment on the main claim was at best “doubtful,” that there was discretion to decline jurisdiction on principles of forum non conveniens, and that, in any event, libellants had not sustained their burden of producing proof that the transfer was fraudulent. 175 F. 2d 513. This we believe to be a fair résumé of an uncommonly confused and opaque record. It is especially hampering that the record is not clearer than it is when legal issues of real complexity are in controversy. I. There is a threshold question as to the jurisdiction of the court below to entertain the appeal. It is claimed that the order vacating the attachment was not a final order and therefore not reviewable. We believe that the order comes squarely within the considerations of our recent decision in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541. The litigation arising out of the claim of the libellants has not run its entire course, but the order now here, like that in the Cohen case, “appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U. S. at 546. Appellate review of the order dissolving the attachment at a later date would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible. Cf. The Panaghia Kathariotisa, 165 F. 2d 430. Under these circumstances the provision for appeals only from final decisions in 28 U. S. C. § 1291 should not be construed so as to deny effective review of a claim fairly severable from the context of a larger litigious process. See Cobble-dick v. United States, 309 U. S. 323, 328-29. The situation is quite different where an attachment is upheld pending determination of the principal claim. Such was Cushing v. Laird, 107 U. S. 69, which is urged on us. In such a situation the rights of all the parties can be adequately protected while the litigation on the main claim proceeds. II. On finding that the Caribe had been sold by Transmaritima to Del Caribe prior to the filing of the libel, the District Court deemed itself without jurisdiction to determine whether the transfer was fraudulent. In consequence it felt compelled to treat Del Caribe as the owner of the vessel, and since only the property of Transmaritima could be validly attached the attachment had to be vacated. The reasoning of the District Court was based on the view that a claim of fraud in the transfer of a vessel was a matter for determination by a court of equity and therefore outside the bounds of admiralty jurisdiction. There is a good deal of loose talk to this effect in the reports, concurrent with talk that courts of admiralty exercise their jurisdiction upon equitable principles. Even as to admiralty jurisdiction we must be wary of verbal generalizations unrelated to their applications. Not the least creative achievement of judicial law-making is the body of doctrines that has been derived from the brief words of the Constitution extending the judicial power “to all Cases of admiralty and maritime Jurisdiction.” TJ. S. Const. Art. Ill, § 2. But it would be beyond human achievement even of a long line of judges especially equipped for dealing with admiralty matters to have produced a wholly harmonious body of admiralty law, or to have written opinions that should not have lent themselves through largeness or looseness of statement beyond the scope of their adjudications. Unquestionably a court of admiralty will not enforce an independent equitable claim merely because it pertains to maritime property. E. g., The Eclipse, 135 U. S. 599, 608, and cases cited. The reasoning of the District Court would be pertinent if the libellants, as creditors of Transmaritima, had gone into admiralty by way of a creditor’s bill to set aside a pretended sale of the Caribe as a fraudulent transfer. But that is not the case before us. Libellants went into admiralty on a claim arising upon a contract of affreightment supplemented by charges of negligence in the nondelivery of a sea cargo — matters obviously within admiralty jurisdiction. As an incident to that claim, in order to secure respondents’ appearance and to insure the fruits of a decree in libellants’ favor, they made an attachment under General Admiralty Rule 2. The issue of fraud arises in connection with the attachment as a means of effectuating a claim incontestably in admiralty. To deny an admiralty court jurisdiction over this subsidiary or derivative issue in a litigation clearly maritime would require an absolute rule that admiralty is rigorously excluded from all contact with nonmaritime transactions and from all equitable relief, even though such nonmaritime transactions come into play, and such equitable relief is sought, in the course of admiralty’s exercise of its jurisdiction over a matter exclusively maritime. It would be strange indeed thus to hobble a legal system that has been so responsive to the practicalities of maritime commerce and so inventive in adapting its jurisdiction to the needs of that commerce. Controversies between admiralty and common law are familiar legal history. See Mr. Justice Story’s classic opinion in De Lovio v. Boit, 7 Fed. Cas. 418, No. 3,776, 2 Gall. 398; 4 Benedict on Admiralty cc. 61-63 (Knauth ed. 1940). We find no restriction upon admiralty by chaneery so unrelenting as to bar the grant of any equitable relief even when that relief is subsidiary to issues wholly within admiralty jurisdiction. Certainly there is no ground for believing that this restriction was accepted as a matter of course by the framers of the Constitution so that such sterilization of admiralty jurisdiction can be said to have been presupposed by Article III of the Constitution. A few illustrative cases will take us out of the fog of generalities, for the decisions dealing with concrete situations afford a working approach even if not a rigid rule. Nonmaritime contracts may be examined to determine whether they constitute a valid defense, although the same contracts will not support a libel or cross-libel for affirmative relief. Armour & Co. v. Fort Morgan S. S. Co., 270 U. S. 253, 258-60. An equitable claim which does not support a possessory suit may be availed of as a valid defense against a similar suit by the holder of legal title. Chirurg v. Knickerbocker Steam Towage Co., 174 F. 188; cf. The Daisy, 29 F. 300; see Morrison, Remedial Powers of the Admiralty, 43 Yale L. J. 1, 21 (1933). Admiralty cannot entertain a suit to reform a release from liability executed under a mutual mistake merely because it pertains to a maritime claim; but when such a release is pleaded in defense against assertion of that claim, admiralty is not barred from determining whether it was executed by the parties under mutual mistake. Rice v. Charles Dreifus Co., 96 F. 2d 80. And so as to accounting, “It is true that a court of admiralty will not entertain a suit for an accounting as such: as, for example, an accounting between co-owners of a vessel, or between maritime adventurers, or between principal and agent . . . [citing cases]. Nevertheless, it has never been true, when an accounting is necessary to the complete adjustment of rights over which admiralty has independent jurisdiction, that it will suspend its remedies midway and require the parties to resort to another court.” W. E. Hedger Transp. Corp. v. Ira S. Bushey & Sons, Inc., 155 F. 2d 321, 323, per Learned Hand, J. In each of these cases a holding that admiralty must stay its hands as to a matter intrinsically nonmaritime but “necessary to the complete adjustment of rights over which admiralty has independent jurisdiction” would have seriously impaired the discharge by admiralty of the task which belongs to it. To recognize these subsidiary powers of admiralty to deal justly with the claims that are within its jurisdiction is not to enlarge the admiralty jurisdiction but to avoid its mutilating restriction. To generalize beyond this is to invite misleading or empty abstractions. We can now see the immediate problem in its proper perspective. The process of foreign attachment is known of old in admiralty. It has two purposes: to secure a respondent’s appearance and to assure satisfaction in case the suit is successful. Manro v. Almeida, 10 Wheat. 473, 489. While the process may be utilized only when a respondent is not found within the jurisdiction, an attachment is not dissolved by the subsequent appearance of respondent. See Birdsall v. Germain Co., 227 F. 953, 955; 2 Benedict on Admiralty § 290 (Rnauth ed. 1940). Disputes over ownership of attached vessels are of course inevitable since only the respondent’s property may be attached. E. g., Cushing v. Laird, 107 U. S. 69; cf. Mc-Gahern v. Koppers Coal Co., 108 F. 2d 652; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F. 2d 265. Inevitably such disputes may involve transactions not themselves the subject matter, of an independent libel. If jurisdiction be wanting in a court of admiralty when such a controversy arises in the context of an attachment made in a libel over which the court indubitably has jurisdiction, a congenital defect would have to be attributed to the ancient process of foreign attachment. If colorable transfers of property were immune to challenge in a court of admiralty when a libel in personam has been brought in a District where the respondent cannot be personally served, admiralty jurisdiction would be sacrificed to a sterile theory of judicial separatism. No support for such a conclusion is to be found in any decision of this Court or in those of the lower courts which have had so large a share in the development of admiralty law. The relevant rulings look the other way. In Lee v. Thompson, 15 Fed. Cas. 233, No. 8,202, 3 Woods 167, Mr. Justice Bradley held that an admiralty court had power to look into an allegedly fraudulent transfer where the question was relevant to execution upon a decree in admiralty. He fully recognized that a libel based solely on the transfer could not be maintained, but where that issue was “incidental to its general jurisdiction, and for maintaining the same, it [the admiralty court] has plenary power to decide, and frequently does decide, conflicting claims to property. Without such power its jurisdiction would often be defeated.” 15 Fed. Cas. at 235; 3 Woods at 173. The force of Mr. Justice Bradley’s decision is sought to be cut down in that it dealt with execution on a judgment and not with an attachment. The fact is, however, that Mr. Justice Bradley relied in his reasoning on the process of foreign attachment, and reason rejects any significant distinction between the jurisdiction of admiralty to inquire into a fraudulent transfer in the two situations. In both admiralty is not seized of jurisdiction to correct a fraud simply because it is a fraud; that’s the business of equity. The basis of admiralty’s power is to protect its jurisdiction from being thwarted by a fraudulent transfer, and that applies equally whether it is concerned with executing its judgment or authorizing an attachment to secure an independent maritime claim. Cf. The New York, 113 F. 810; The Columbia, 100 F. 890 (judgment in admiralty vacated because obtained by fraud). We must conclude that the District Court was not without power to look into the transfer of the Caribe under the circumstances of this suit. But because power exists, its use is not inexorable. Cf. Massachusetts v. Missouri, 308 U. S. 1, 19. We would be passing on situations not before us were we to attempt now to define when power which we recognize should be withheld. In the circumstances of this case the power should be exercised, for there are good reasons for the attachment. If the libellants are ultimately successful, judgment may well avail them nothing unless duly secured. Cf. Asiatic Petroleum Corp. v. Italia Societa Anonima Di Navigasione, 119 F. 2d 610. The issues of fact on which libellants’ claim of fraud turn do not appear to be complicated and they may be speedily adjudicated by the District Court prior to a hearing on the affreightment contract. III. It is urged that, even if there existed power to ascertain whether the transfer was fraudulent, vacation of the attachment was justified by libellants’ failure to establish a prima jade case of fraud. No doubt, the ultimate burden of establishing a fraudulent transfer was upon libellants. See Cushing v. Laird, 107 U. S. 69, 83-84. Under Admiralty Rule 23 of the District Court for the Canal Zone, the district judge might have required libellants to present their proof in order to determine whether substantial questions of fact were raised respecting the fraudulence of the transfer. Had libellants then failed to respond without adequate reason, the attachment would properly have been vacated. Rule 23 was in substance invoked by respondents, as the Court of Appeals held, but the record does not support the view that its invocation put libellants to their proof that the transfer was fraudulent. They had no reason to believe that such proof was needed before trial. Neither of the two motions of respondents to vacate the attachment rested on an absence of fraud as a matter of fact. Respondents presented evidence through affidavits that a new corporation had been formed and a transfer of title to the vessel effected, but this was only to support their charges that the court lacked jurisdiction, that in any event it should decline jurisdiction under principles of forum non conveniens, and that the allegations in the libel did not state a cause of action. Nor were libellants put on notice by the District Court’s first opinion to put in proof on rehearing. Its holding was based on lack of jurisdiction to inquire into the transfer or, alternatively, on discretion to decline its exercise. Quite clearly it did not determine the issue of fraud in the transfer. The opinion denying rehearing did not break new ground. On these facts, the attachment could not be vacated for. a failure of libellants to support their charge of a fraudulent transfer. IV. There remains the question whether the District Court’s order may be justified as an exercise of discretion to decline jurisdiction under the doctrine of jorum non conveniens. The doctrine is of long standing in admiralty, but this Court has not previously had to apply it to a suit brought by a United States citizen. Such application has been rare even in the lower federal courts. Cf. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413; United States Merchants’ & Shippers’ Ins. Co. v. A/S Den Norske Afrika OG Australie Line, 65 F. 2d 392; see Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 920-21 (1947); Bickel, Forum Non Conveniens in Admiralty, 35 Cornell L. Q. 12, 41-47 (1949). We need not now decide the abstract question whether United States admiralty courts may decline jurisdiction over libels brought by United States citizens. Discretion could not sustain declination in this case. Application of jorum non conveniens principles to a suit by a United States citizen against a foreign respondent brings into force considerations very different from those in suits between foreigners.* ** The District Court gave no indication that it recognized such considerations. Its opinion indicates that in so far as it may have exercised discretion to decline jurisdiction it was moved to do so by its view that such jurisdiction does not exist. But, in any event, it was improper under the circumstances here shown to remit a United States citizen to the courts of a foreign country without assuring the citizen that respondents would appear in those courts and that security would be given equal to what had been obtained by attachment in the District Court. The power of the District Court to give a libellant such assurance is shown by Canada Malting Co. v. Paterson Steamships, Ltd., 285 U. S. 413, 424. See also The City of Agra, 35 F. Supp. 351. While the District Court exercised discretion to vacate only the attachment and not to dismiss the entire libel, libellants’ rights were seriously impaired by their loss of security. The importance of the right to proceed by attachment to afford security has been emphasized. E. g., In re Louisville Underwriters, 134 U. S. 488; Asiatic Petroleum Corp. v. Italia Societa Anonima Di Navigazione, 119 F. 2d 610. Libellants’ right to maintain the attachment will depend on their ability to prove fraud in the transfer of the Caribe upon a hearing. They are entitled to have that hearing. The case must be reversed and remanded for proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Douglas took no part in the consideration or decision of this case. The marshal’s return failed to state that respondents could not be found within the jurisdiction. Cf. International Grain Ceiling Co. v. Dill, 13 Fed. Cas. 70, No. 7,053, 10 Ben. 92. The Court of Appeals properly held this to be a formal defect, easily correctible on remand. The district judge also found that the stockholders and managing officers of the two respondents were not identical, but these facts were irrelevant to his disposition of the case and are to the disposition made here. The District Court did not dismiss the garnishment proceeding against Del Caribe, since that company was allegedly indebted to Transmaritima and some of the property of the Cali had been attached aboard the Caribe. The Court of Appeals suggested that the issue of fraud in the transfer of the Caribe could be adjudicated as part of the garnishment proceeding. Libellants also sought to hold Del Caribe personally liable for the destruction of the Cali’s cargo of rice on the ground that it was merely the alter ego of Transmaritima. Success on this theory would render the issue of fraudulent transfer irrelevant, for then the assets of either company could be attached. The jurisdiction of a court of admiralty to determine the question of alter ego is undoubted. The Willem Van Driel, Sr., 252 F. 35; Luckenbach S. S. Co. v. W. R. Grace & Co., 267 F. 676; Yone Suzuki v. Central Argentine R. Co., 27 F. 2d 795, 806; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F. 2d 265; Gardner v. Dantzler Lumber & Export Co., 98 F. 2d 478. But it is settled doctrine that, apart from any transfer of assets by Transmaritima to Del Caribe, the latter company could not be held personally liable on an alter ego theory, since it came into existence after the Cali sank. Yone Suzuki v. Central Argentine R. Co., supra; Kingston Dry Dock Co. v. Lake Champlain Transp. Co., supra. It is important to note, however, that the relationship between the two respondent companies has an obvious relevance to the issue of fraudulent transfer. The relevant portion of General Admiralty Rule 2 is as follows: “In suits in personam the mesne process shall be by a simple monition in the nature of a summons to appear and answer to the suit, or by a simple warrant of arrest of the person of the respondent in the nature of a capias, as the libellant may, in his libel or information pray for or elect; in either case with a clause therein to attach his goods and chattels, or credits and effects in the hands of the garnishees named in the libel to the amount sued for, if said respondent shall not be found within the District.” The Court of Appeals apparently regarded this distinction as important, for it held that the issues relating to the vessel Caribe might be adjudicated in the garnishment proceeding but not in connection with the attachment. The relevant portion of Rule 23 is as follows: “In case of the attachment of property . . . the party arrested or any person having a right to intervene in respect of the thing attached, may, upon evidence showing any improper practice or a manifest want of equity on the part of the libellant, have an order from the judge requiring the libellant to show cause instan ter why the arrest or attachment should not be vacated.” See 5 Benedict on Admiralty (Whitman ed. 1949) 234. The eight months intervening between the filing of the libel and the opinion on rehearing were spent largely on respondents’ motions and to afford respondents opportunity to file answers. It is also pertinent that libellants’ interrogatories to Del Caribe were never answered and the exceptions taken to them never passed on by the District Court. The evidence contained in respondents’ affidavits was inadequate to support any determination of the fraud issue. Of course, if the court had required libellants to present such proof as they had, it would have been for them to move that the exceptions to the interrogatories be overruled. But, as indicated, the importance of such a move was never made clear. Compare Koster v. Lumbermens Mutual Casualty Co., 330 U. S. 518, 524: “In any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown.” See also O’Neill v. Cunard White Star, Ltd., 160 F. 2d 446.

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?

Frances P. NORMAN and Frances P. Norman d/b/a The Norman Company, a partnership consisting of Frances P. Norman and Norman Norman, Appellees, v. Leonard LAWRENCE, Appellant. No. 66, Docket 26043. United States Court of Appeals Second Circuit. Argued Nov. 1, 1960. Decided Dec. 21, 1960. Swan, Circuit Judge, dissented. Mock & Blum, Blum, Moscovitz, Friedman & Blum, Alex Friedman, New York City, for defendant-appellant. Kenyon & Kenyon, Ralph L. Chappell, Richard A. Huettner, New York City, for plaintiffs-appellees. Before HAND, SWAN and MEDINA, Circuit Judges. HAND, Circuit Judge. This is an appeal from a judgment of Judge Bruchhausen (180 F.Supp. 186), holding valid and infringed Claim 1 of Patent No. 2,763,999, issued to one of the plaintiffs, Frances P. Norman, for “earring pads.” The disclosure was for two kinds of “pads” — the “clip-on” and the “screw-on — but we need concern ourselves only with the “clip-on” type. It was designed to provide a “clip” that would grasp an earring to the lobe of the ear and hold it firmly in place to resist entanglements in the hair, but without too much pressure on the lobe for the comfort of the wearer. There had been numerous earring “clips” before, at times using round sections of a soft rubber cylinder, and holding their position by adhesives on one or both of the two arms of a spring pressed clamp. We accept, because they are not shown to be “clearly erroneous” Judge Bruchhausen’s findings of fact as follows. “The articles on the market prior to the introduction of plaintiffs’ article were so-called stick-on pads, supposed to remain glued onto the rear of the earring clamp upon application of finger pressure. However, these pads would continually loosen and become caught in a user’s hair. Also, on the market was a tubular rubber cot or sleeve for twisting on to the rear of the earring. The cot or sleeve was found unsatisfactory because the rubber cots or sleeves were difficult to twist on to the earring clamp and, since the clamps were not strong, would frequently break. The plaintiff, Frances P. Norman, then experimented and eventually developed her article, a flat flexible thin rubber pocket created by the dipping of two flat thin rubber pieces into a latex solution, holding the pocket intact and rendering it extremely flexible. It also developed that a sponge rubber pad could be retained on the fiat side of the rubber pocket, which would not slip off or loosen from the pocket.” The pads themselves were very old, but were not satisfactory for the reasons just given. The other element of the combination, the rubber “pocket” just mentioned, known as the Dorsey “boot,” had appeared thirty years before the application for the patent; it was made up of sections of a rubber tubing to be slipped over one of the clamps, quite unlike the patented circular discs of rubber about the size of the clamp on which they were to be used. Two of these were stuck together at their circumferences except for an opening between them long enough to admit the inner clamp by stretching. The plaintiffs sold their “pockets” with a pad already glued on; in the accused clip the pads and “pockets” were sold separately with instruction that a pad should be glued to the inner “pocket.” The invention therefore consisted of combining a kind of “pocket” that could be easily slipped on and off the clamp, with the old pad into a single member that would hold the earring in place upon the lobe of the wearer’s ear. In spite of the fact that this combination was of the simplest sort, made of two elements that had for many years been used in the industry, no one had thought of combining them. Hence it is argued, as it always is when an invention consists of a combination of old elements, that there can be no “invention” in mere “aggregation.” In the case at bar the judge has found that “the commercial success was phenomenal, and again there is no reason to hold that this finding was “clearly erroneous.” The appeal therefore presents the question that so often arises as to patents: what shall be the test or standard of invention? We have just discussed this once again in the case of Reiner v. I. Leon & Co., 285 F.2d 501, handed down at the same time as this, and could only repeat what we there said. It is true that courts have again and again evinced repugnance to recognizing as patentable a trivial readjustment of existing elements into a new combination, apparently insisting that monopolies should be limited to new assemblages of old elements that are important and imposing. That disposition will no doubt continue; it is hard to attach value to a trifling modification of a gadget that has arisen on the surface of a stream of novelties because it has found immediate favor. We can only reply that, while the standard remains what it is, we can see no escape from measuring invention in cases-where all the elements of the new combination had been long available, (1) by whether the need had long existed and been desired, and (2) whether, when it. was eventually contrived, it was widely exploited as a substitute for what had. gone before. 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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.

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

UNITED STATES of America, Appellee, v. Robert Bryant JENKINS and Orvilla Jenkins, Appellants. No. 155, Docket 33742. United States Court of Appeals, Second Circuit. Submitted May 8, 1970. Decided May 14, 1970. Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, Kevin J. Mclnerney and Paul B. Galvani, Asst. U. S. A ttys., for appellee. Robert Bryant Jenkins and Orvilla Jenkins, pro se. Before LUMBARD, Chief Judge, WATERMAN, Circuit Judge, and JAMESON, District Judge. Sitting by designation. PER CURIAM. Robert and Orvilla Jenkins appeal from an order of the Southern District denying their motions to vacate the judgments and set aside their sentences under 28 U.S.C. § 2255 (1964), entered in 1965. Robert was convicted on one count of selling cocaine, 28 U.S.C. §§ 173, 174 (1964), one count of conspiracy to sell cocaine, and one count of selling cocaine without the proper order forms, 26 U.S.C. § 4705(a) (1964). Orvilla was convicted on three counts of selling, one conspiracy count, and one order form count. The defendants received the mandatory minimum five year sentences on each count, to be served concurrently; their direct appeal was dismissed in 1967 for want of prosecution. In the light of Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the government concedes that the conspiracy and sale convictions cannot stand. In Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), however, the Supreme Court upheld the constitutionality of the order form statute, and the government here argues that the Jenkins’ conviction on these counts should not be set aside. We agree. It appears from a perusal of the record that substantially all the proof offered on the invalid counts was also admissible on the order form count. Therefore no prejudice could have resulted from a trial of all the counts in the indictment. See United States v. Febre, 425 F.2d 107 (1970). We order this action remanded to the district court for vacation of the judgments and setting aside the convictions of Robert and Orvilla Jenkins for selling cocaine and conspiring to sell cocaine. We affirm so much of the order appealed from as denied vacation of the order form convictions.

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

Thomas S. CASALE, et al., Petitioners, Appellants, v. Michael FAIR, etc., Respondent, Appellee. No. 87-1180. United States Court of Appeals, First Circuit. Heard Oct. 5, 1987. Decided Nov. 18, 1987. David Berman, with whom Berman and Moren, Lynn, Mass., were on brief, for petitioners, appellants. Susan S. Beck, Asst. Atty. Gen., Crim. Bureau, Boston, Mass., with whom James M. Shannon, Atty. Gen., and A. John Pappa-lardo, Deputy Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondent, appellee. Before CAMPBELL, Chief Judge, TIMBERS, Senior Circuit Judge, and BREYER, Circuit Judge. Of the Second Circuit, sitting by designation. TIMBERS, Circuit Judge: Appellants Thomas S. Casale (“Casale”) and Vincent Federico (“Federico”) appeal from a judgment entered February 17, 1987 in the District of Massachusetts, John J. McNaught, District Judge, 653 F.Supp. 856, which denied their petition for a writ of habeas corpus brought by appellants pursuant to 28 U.S.C. § 2254 (1982). Appellants are prisoners of the Commonwealth of Massachusetts, having been convicted of second degree murder on December 22, 1978 after a jury trial. On the instant appeal, appellants claim, first, that the evidence was insufficient to sustain their convictions of second degree murder on a theory of joint enterprise; second, that they could not be convicted on a joint enterprise theory when they had been indicted separately; third, that the trial court erred in instructing the jury that it could judge intent from conduct and that it knew how the victim met his death; fourth, that they were denied equal protection of the law when the trial court denied their motions for directed verdicts while granting a similar motion by their code-fendant; and, fifth, that they were denied effective assistance of counsel at trial. We hold that the evidence at trial was sufficient to sustain the convictions of second degree murder on a theory of joint enterprise; that appellants waived their claims regarding the necessity for joint indictments, the jury instructions and equal protection; that appellants failed to exhaust state remedies with respect to other claims regarding the trial court’s instructions on the joint venture theory and the ineffectiveness of state appellate counsel; and that appellants were not denied effective assistance of counsel at their trial. We affirm. I. We summarize only those facts believed necessary to an understanding of the issues raised on appeal. On the morning of November 6, 1977, Robert McFarlane, who was destined to become the victim in this case, was helping Lynne Russo load her possessions into a van parked in front of Russo’s apartment on the fifth floor of No. 20 Stillman Street in Boston. Three other friends, William Hackler, James Theologus and Dominic Monforte, also assisted with the moving. During the two hours that the group (“Russo’s group”) spent loading the van, appellants repeatedly harassed them, blocking the doorway, swearing, spitting on the sidewalk and challenging them to fight. At about 11:30 a.m., appellants had a conversation in the doorway of No. 18 Still-man Street. Federico then went into No. 20 Stillman Street, where he lived on the second floor. Casale left and was later seen returning with Joseph Bruno and two unidentified persons. This group of four (“Casale’s group”) was seen moving quickly, two by two, in a “strong steady march” toward Stillman Street. When this group reached the corner of Stillman and North Margin Streets, Federico quickly emerged from his building and joined the group, which then passed by the van. Casale’s group paused in front of the van and then went into a playground across the street. At this point, which was about 12:30 p.m., McFarlane and his friends were near the van and Russo was upstairs. Five shots rang out from the playground area. McFarlane fell to the ground, saying, “They got me. They got me.” McFarlane later died of a gunshot wound. Two of McFarlane’s friends saw Casale running in the playground and pursued him. When Russo heard the shots she looked out her fifth floor window. She saw Casale and Bruno running and Federico standing near an opening in the playground fence. During the loading of the van and at the time of the shooting, neither Russo nor anyone in her group had seen any other people in the area aside from the five in Casale’s group. A short time later, two police officers responded to a report of the shooting. They noticed Casale running down the street. By the time they were able to catch up with him, Casale had stopped on the sidewalk. When they pulled alongside him, however, and one officer began to get out of the car, Casale ran down another street. Other officers found Bruno and Federico in a bowling alley. The evidence indicated that the person who shot McFarlane had fired the shots from the gap in the playground fence. Specifically, ballistics analysis showed that a bullet that had lodged in a sign on Still-man Street was fired from the gap in the fence. Appellants stipulated that the bullet found in the sign and a bullet found under McFarlane’s body were fired from the same gun. Thus, it was likely that the bullet found under McFarlane’s body was fired from the gap in the fence. On April 20, 1978, Casale, Federico and Bruno were indicted in the Suffolk County Superior Court for the murder of McFar-lane. After denial of their motions for a directed verdict, the three defendants were found guilty on December 22, 1978. All three renewed their motions after the verdict. The trial court granted Bruno’s motion but denied those of Federico and Ca-sale. The Supreme Judicial Court affirmed appellants’ convictions on July 17, 1980. Commonwealth v. Casale, 381 Mass. 167, 408 N.E.2d 841 (1980). On March 18, 1982, appellants moved for a new trial. They asserted ten grounds, including three they had not previously raised. This motion did not include grounds based on error in the jury instructions on joint enterprise or ineffectiveness of appellate counsel. The trial court denied this motion and appellants appealed. The Appeals Court affirmed. Commonwealth v. Casale, 16 Mass.App.Ct. 1103 (1983). The Supreme Judicial Court denied appellants’ application for further appellate review. On August 20, 1985, appellants filed the instant habeas petition. The district court required appellants to amend their petition to delete several claims for failure to exhaust state remedies, including claims regarding instructions on joint enterprise and ineffectiveness of state appellate counsel. Appellees challenged four of the claims in the petition on the ground that appellants had waived them. The district court denied the petition on February 17, 1987. This appeal followed. For the reasons stated below, we affirm. II. The standard applied in a habeas proceeding challenging the sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution,” a rational jury “could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case the crime charged was murder in the second degree. The prosecution relied on a theory of joint enterprise. Thus, the issue presented is whether a rational jury could have found that the prosecution had met the standards for second degree murder and joint enterprise liability. We are satisfied that a rational jury easily could have so found. Second degree murder in Massachusetts is “an unlawful killing with malice aforethought.” Commonwealth v. Casale, supra, 381 Mass, at 171, 408 N.E.2d at 844. “Malice” includes committing an act that creates “a plain and strong likelihood that death or grievous harm will follow.” Commonwealth v. Lowe, 391 Mass. 97,107, 461 N.E.2d 192, 198-99, cert. denied, 469 U.S. 840 (1984). Moreover, under the Massachusetts theory of joint enterprise, one may be punished in the same manner as a principal if one “aids in the commission of a felony.” Mass.Gen.L.Ann. ch. 274, § 2 (West Supp. 1987). Although mere presence at the scene of the crime and knowledge of the intended act is insufficient, Commonwealth v. Soares, 377 Mass. 461, 471, 387 N.E.2d 499, 507, cert. denied, 444 U.S. 881 (1979), one may be found guilty as an aider if he, “by agreement, is in a position to render aid to the principal offender, even if he does not participate in the actual perpetration of the crime_” Id. at 471-72, 387 N.E.2d at 507. The jury may infer an agreement from the aider’s actions. Commonwealth v. Whitehead, 379 Mass. 640, 652, 400 N.E.2d 821, 832 (1980). While the aider must share the principal’s intent, Commonwealth v. White, 392 Mass. 282, 289, 467 N.E.2d 79, 83-84 (1984), a jury presumably may infer that intent from the aider’s actions, just as it may infer the principal’s intent. Commonwealth v. Ferguson, 365 Mass. 1, 3, 309 N.E.2d 182, 186-87 (1974). Under these principles, a rational jury could have drawn the inferences necessary to find that appellants had participated in a joint enterprise to commit second degree murder. Such a jury could have begun the decision-making process by considering the facts that someone shot McFarlane; that no other persons were seen near the scene at the time of the shooting; and that Ca-sale was seen running from the scene. From these facts, a jury could have inferred that someone in Casale’s group pulled the trigger and that someone in Ca-sale’s group thereby committed an act that created a “strong likelihood that death or grievous harm” would follow — i.e., an act that constituted second degree murder. Even assuming, moreover, that Casale or Federico did not themselves pull the trigger, a rational jury could have inferred from their actions that they intentionally became part of a joint enterprise to shoot McFarlane. Such actions would include particularly Casale’s and Federico’s prior harassment of Russo’s group; their subsequent meeting in the doorway of No. 18 Stillman Street; Casale’s departure and return with three other men, walking two-by-two in a quick purposeful manner; and Federico’s rejoining this group. In short, these actions and the other evidence were more than sufficient to permit a rational jury to find guilt beyond a reasonable doubt. We hold that the district court correctly held that the evidence was sufficient to sustain the convictions for second degree murder on a theory of joint enterprise. III. We turn next to the issue of whether appellants have waived three claims they have raised on this appeal by their failure to raise them on their direct appeal. On their direct appeal, the only issue appellants raised was whether the evidence was sufficient for the jury to convict appellants of second degree murder on a joint venture theory. Appellants failed to raise three claims that they could have raised on direct appeal; indeed, they did not raise these claims until they moved for a new trial on March 18, 1982 — almost two years after their direct appeal had been decided adversely to them. The three claims involved: (1) whether appellants were convicted properly on a joint enterprise theory when they were indicted separately; (2) whether the trial court’s charge to the jury, in which the jury was told that it could infer appellants’ intent from their conduct and that it knew how the victim was brought to his death, violated appellants’ constitutional rights; and (3) whether denying appellants’ motions for a directed verdict while granting their codefendant’s similar motion denied them equal protection of the law. Since appellants could have raised these claims, but failed to do so, they have waived the claims under Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In Wainwright, the Supreme Court held that when a defendant’s failure to object to the admission of evidence at trial amounted to an independent and adequate state ground for upholding his conviction, the failure to object also barred federal habeas review of the admission of that evidence, unless, under Davis v. United States, 411 U.S. 233 (1973), the defendant could show cause for his failure to make a timely objection and that his failure resulted in prejudice to him. Wainwright, supra, 433 U.S. at 87. As we previously have held, a failure to object amounts to an adequate state ground if “1) the state in fact has a ‘contemporaneous objection’ rule; 2) the state enforces and does not waive the rule; and 3) the defendant fails to show both ‘cause’ for[,] and ‘prejudice’ from, not having complied with the rule.” McCown v. Callahan, 726 F.2d 1, 3 (1st Cir.1984). In the instant case, we are satisfied that these three requirements have been met. It is clear that Massachusetts has a contemporaneous objection rule. McCown, supra, 726 F.2d at 3. Since the Massachusetts Appeals Court held that the claims had been waived, it is equally clear that the Commonwealth has not waived the rule. Nor can appellants show both cause for and prejudice from their failure to comply with the rule. To demonstrate “cause”, appellants would have had to show that an objective external factor, such as newly discovered facts, prevented their attorneys from objecting at trial, see Murray v. Carrier, 477 U.S. 478, 488 (1986), and to demonstrate “prejudice”, appellants would have had to show that their failure to object “worked to their actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Appellants here have made neither showing. We are convinced that they could not do so. The only “cause” for their failure to object was the counsel’s omission. Appellants would be hard pressed to show that “actual and substantial disadvantage” resulted from their failure to object and that the entire trial was infected with error of constitutional dimensions. We hold that appellants waived their claims regarding the necessity for a joint indictment, the jury instructions and equal protection. IV. Appellants have attempted to raise on the instant appeal two claims that the district court had ordered deleted from their habeas petition on the ground that appellants had not raised these claims in the state courts. The two claims involved: (1) an alleged error by the trial court in instructing the jury on the joint venture theory, and (2) alleged ineffective assistance of state appellate counsel. Since appellants failed to exhaust their state remedies, we hold that the district court correctly dismissed these two claims. A federal court may not grant a writ of habeas corpus “unless it appears that the applicant has exhausted the remedies available in the courts of the state.” 28 U.S.C. § 2254(b) (1982); see also Ex Parte Royall, 117 U.S. 241, 251-53 (1886). This exhaustion requirement permits the state courts to correct any constitutional error before the federal habeas court addresses it. Rose v. Lundy, 455 U.S. 505, 515 (1982). Appellants argue that they have raised similar claims in the state court. They assert that to require exhaustion of related claims now would be absurd. Specifically, they state that they previously raised the joint venture claim when they argued that the evidence was insufficient to support a joint venture theory and when they challenged the indictments on the ground that, since the prosecution was relying on a joint venture theory, it was improper to rely on separate indictments. They assert that requiring them now to exhaust the new claim regarding the jury instructions on joint venture would serve no purpose because the state court already has effectively rejected their claim. We disagree. The two claims are analytically distinct from one another. While both claims are at least nominally concerned with the joint venture theory, the claims raised in the state courts involved the adequacy of the indictments and the sufficiency of the evidence, while the new claim involves the adequacy of the jury instructions. With regard to their ineffectiveness of state appellate counsel claim, appellants argue that they could not have raised this claim earlier because they did not realize that counsel had been ineffective until the Appeals Court held that certain issues appellants raised in their motion for a new trial had been waived. On the contrary, appellants could have raised the claim of counsel’s ineffectiveness much earlier, as part of their motion for a new trial, because by that time appellants knew or should have known that their counsel had failed to raise the issues on their direct appeal. We hold that the district court correctly held that appellants failed to exhaust state remedies with respect to claims regarding the trial court’s instructions on the joint venture theory and the ineffectiveness of state appellate counsel. V. This brings us to the claim of the alleged ineffectiveness of appellants’ trial counsel. Appellants base their ineffectiveness claim on several alleged omissions by their trial counsel, including: (1) failure to investigate the possibility that others had a motive to kill McFarlane; (2) failure to seek a manslaughter charge; (3) failure to move for a directed verdict on the ground that the indictment charged appellants separately; and (4) failure to object to two parts of the jury instructions, regarding the propriety of inferring intent from conduct and whether the jurors knew how the victim met his death. The test for ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, appellants must have shown that (1) counsel’s performance was deficient and (2) the deficiency resulted in prejudice so great as to deprive them of a fair trial. Id. at 690. The question turns on whether, at the time of the conduct, counsel’s conduct was reasonable. Id. It is inappropriate for an appellate court to succumb to “the distorting effects of hindsight” since “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance”. Id. at 689. Indeed, the defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). On the facts of this case, we conclude that counsel’s performance was reasonable and not “deficient”. Appellants therefore have failed to satisfy even the first prong of Strickland. A reasonable attorney faced with the facts of this case would not have investigated the motives of other persons because the evidence indicated that no other persons were anywhere in the vicinity. Russo had seen only Casale and Federico during the entire morning of the incident. At the time of the shooting, her friends saw no one in the area except the five men in Casale’s group. Moreover, it would have been poor trial strategy for counsel to have done what appellants now say should have been done because to have done so would have diminished counsel’s credibility. The assertion that the indictment should have charged appellants separately is utterly without merit because the Massachusetts Rules of Criminal Procedure do not require joinder of defendants in one indictment. See Mass.R.Crim.P. 9(b) (1980). Similarly, the assertion regarding counsel’s failure to object to two parts of the jury instructions is extremely weak. Instructing the jury that it knew “how the victim was brought to his death” was a perfectly proper reference to the undisputed fact that McFarlane died from a gunshot wound. This instruction, to which appellants now say their counsel should have objected, was hardly likely to relieve the jury of its duty to find the cause of the victim’s death. Counsel reasonably could have decided not to make such an objection. Counsel likewise reasonably could have decided not to object to the court’s charging the jury that it could judge a person’s intent from “what that person does” and could draw its “conclusions from that.” Such an instruction was well within the permissible boundaries set by the relevant. case law. See, e.g., Commonwealth v. Soares, supra, 377 Mass, at 470, 387 N.E.2d at 507. Finally, to have requested a manslaughter charge, in addition to diminishing counsel’s credibility, would have undercut his theory that the evidence failed to establish that appellants had even participated in the crime. Thus, a reasonable attorney could well have decided that it was “sound trial strategy” not to request such a charge. We hold that appellants were not denied effective assistance of counsel at their trial. VI. To summarize: We hold that the evidence at trial was sufficient to sustain a conviction of second degree murder on a theory of joint enterprise; that appellants waived their claims regarding the necessity for a joint indictment, the jury instructions and equal protection; that appellants failed to exhaust state remedies with respect to other claims — regarding the trial court’s instructions on the joint venture theory and the ineffectiveness of state appellate counsel; and that appellants were not denied effective assistance of counsel at their trial. Affirmed. . While appellants also assert that they did raise the jury instruction claim in their brief in the Massachusetts Appeals Court following denial of their motion for a new trial, our review of the pages to which appellants cite in their brief in our Court reveals only a point concerning an entirely different issue regarding jury instructions.

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?

POTOMAC ELECTRIC POWER COMPANY, Petitioner, and Public Service Commission of the District of Columbia, Intervenor-Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, and Consolidated Rail Corporation, Intervenor-Respondent. No. 83-1820. United States Court of Appeals, District of Columbia Circuit. Argued April 10, 1984. Decided Sept. 21, 1984. J. Raymond Clark, Washington, D.C., with whom Mary Todd Foldes and Samuel M. Thomasson, Jr., Washington, D.C., were on the brief, for petitioner. Lloyd N. Moore, Jr., Washington, D.C., with whom Roberta Willis Sims, Washington, D.C., Acting Gen. Counsel, was on the brief, for intervenor-petitioner, Public Service Com’n of the District of Columbia. Timm L. Abendroth, Washington, D.C., with whom John Broadley, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, I.C.C., J. Paul McGrath, Asst. Atty. Gen., John J. Powers III and John P. Fonte, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondents. John A. Daily, with whom Paul A. Cunningham, Robert M. Jenkins III, and Marc D. Machlin, Washington, D.C., were on the brief, for intervenor-respondent, Consol. Rail Corp. Before HARRY T. EDWARDS, SCALIA and FRIEDMAN, Circuit Judges. Opinion for the Court filed by Circuit Judge FRIEDMAN. United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a). FRIEDMAN, Circuit Judge: This is another, and hopefully the last, round in the longstanding dispute before the Interstate Commerce Commission (Commission) over the reasonableness of railroad rates charged the petitioner, Potomac Electric Power Company (PEPCO), for the transportation of coal between Pennsylvania and Maryland. In the order under review, the Commission dismissed PEP-CO’s complaint challenging the rates as unreasonable. We affirm. I A. The Prior Proceedings. The history of the prior Commission and court proceedings is set forth in our most recent opinion involving the matter. Potomac Electric Power Co. v. I.C.C., 702 F.2d 1026, 1028-30 (1983). We restate only as much of that history as is necessary to understand the present case. PEPCO filed its complaint with the Commission against the Penn Central Transportation Co. (to which intervenor-respondent Consolidated Rail Corporation (Conrail) is the successor) in December 1974. The complaint challenged as unjust and unreasonable the rates Penn Central charged PEPCO for transporting coal from mines in Pennsylvania to three of PEPCO’s electric generating plants in Maryland. In 1977, the Commission held the rates unreasonable on shipments to one of the three plants, but not unreasonable on shipments to the other two. Potomac Electric Power Co. v. Penn Central Transportation Co., 356 I.C.C. 815 (1977). PEPCO filed with us a petition to review, challenging portions of the decision adverse to it. We vacated the part of the decision that upheld the rates to the two plants, and remanded the case to the Commission for further proceedings not inconsistent with our opinion. Potomac Electric Power Co. v. United States, 584 F.2d 1058 (CADC 1978). Following the remand, the Commission reopened the record, held a new hearing, and then used a series of superseding methodologies for determining the reasonableness of coal rates. See Potomac Electric Power Co. v. I.C.C., 702 F.2d at 1029-30. In February 1981, the administrative law judge, applying then current methodology, filed a decision holding the rates to be unreasonably high. Id. at 1030. Both PEPCO and Conrail appealed the decision to the Commission. The Commission reopened the record for new evidence because it had decided not to adopt the methodology upon which the administrative law judge based his decision. The Commission did not propose any new methodology, and stated that maximum coal rate determinations would involve “case-by-case adjudication at least until remaining issues are resolved.” Id. PEPCO then filed with us a petition challenging the Commission’s decision to reopen the proceedings. On March 1, 1983, we held that “the Commission has unreasonably delayed disposition of PEPCO’s complaint.” 702 F.2d at 1028. We ordered the Commission to “reach a final decision in PEPCO’s and Conrail’s appeal within sixty days of the effective date of our order.” Id. at 1035. In so directing, we stated that “[sjufficient time has elapsed that the Commission has now enunciated broad policy considerations affecting coal rate proceedings,” which “can guide the Commission on a ‘case-by-case’ basis, alleviating the effect of the lack of an overall methodology to govern coal rate cases.” We added: Consequently, the lack of a final methodology should pose no problem to proceeding to a final disposition of PEPCO’s complaint. We further stated that this order respects the Commission’s discretion to have the final say regarding the rate methodology to be applied to PEPCO’s complaint, and thus avoids any undue displacement of the Commission’s role in deciding the reasonableness of the contested rates. Id. Five days before that order, the Commission had proposed a new set of guidelines for determining the reasonableness of coal rates (the 1983 Guidelines, discussed below). On March 10, 1983, the Commission set a deadline of April 6, 1983, for the submission of additional evidence directed to two parts of the new guidelines. Id. at 1036. PEPCO then filed with us a motion for a stay of that order and an order directing the Commission to decide the appeal from the administrative law judge’s decision on the evidence then before it, using the former methodology that the administrative law judge had applied. We denied PEPCO’s request that the Commission be required to decide the appeal on the existing record. In a supplemental opinion we stated: This request, however, overlooks the doctrine of primary jurisdiction and the limitations upon this court’s power to control matters statutorily relegated to the Commission’s discretion. The Commission’s primary jurisdiction over rates includes the power to develop methods for determining the reasonableness of rates. Id. at 1037 (citation omitted). We concluded that in the circumstances, we should “extend the time limit [we] imposed on the Commission, even though PEPCO specifically disavows any interest in this relief.” Id. We subsequently approved the parties’ agreement to submit to the Commission “simultaneous filings of further evidence and arguments directed to the new coal rate guidelines” by April 18, 1983 and to file rebuttal evidence by May 2, 1983 “when the evidentiary record in this appeal will be closed.” Potomac Electric Power Company v. I.C.C., 705 F.2d 1343, 1343-44 (1983). The parties disagreed over the time the Commission should have to decide the case. PEPCO urged that the Commission should be required to act by June 1, 1983, Conrail proposed either no deadline or 90 days, and the Commission proposed no deadline. We ordered the Commission to decide the appeal by August 1, 1983. Id. at 1344. B. The Pertinent Legislation. The Commission formulated its 1983 Guidelines against the background of two recent statutes governing the regulation of railroad rates. 1. In the first of the two statutes, the Railroad Revitalization and Regulatory Reform Act (the 4-R Act), Pub.L. No. 94-210, 90 Stat. 31 (1976), Congress significantly deregulated rates for rail transportation by eliminating Commission jurisdiction over rates on traffic for which the railroad had effective competition. It did this by restricting the Commission’s authority to prescribe maximum reasonable rates to traffic on which the carrier had “market dominance,” which it defined as “an absence of effective competition from other carriers or modes of transportation for the transportation to which a rate applies.” 90 Stat. at 35, 36, 49 U.S.C. § 10709(a), (b) (1982). “The effect of this provision was to end for most rail service decades of ICC control over maximum rates and to permit carriers not having market dominance to set rates in response to their perception of market conditions.” Bessemer and Lake Erie Railroad Co. v. I.C.C., 691 F.2d 1104, 1108 (3d Cir.1982). 2. In 1980, Congress enacted the Staggers Rail Act of 1980 (Staggers Act), Pub.L. No. 96-448, 94 Stat. 1895. The conference report on that Act stated that the “over-all purpose is to provide, through financial assistance and freedom from unnecessary regulation, the opportunity for railroads to obtain adequate earnings to restore, maintain and improve their physical facilities while achieving the financial stability of the national rail system.” H.R. Rep. No. 96-1430, 96th Cong., 2d Sess. 80 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 3978, 4110, 4111. One of the congressional findings (section 2(9) of the Act) was that “modernization of economic regulation for the railroad industry with a greater reliance on the market-place is essential in order to achieve maximum utilization of railroads to save energy and combat inflation.” 94 Stat. at 1896. The congressional declaration of rail transportation policy included: “(1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for transportation by rail” and “(3) to promote a safe and efficient rail transportation system by allowing rail carriers to earn adequate revenues, as determined by the Interstate Commerce Commission.” Section 101(a), 94 Stat. at 1897, 49 U.S.C. § 10101a (1982). In a section headed “Standards for rates for rail carriers,” Congress provided that “[i]n determining whether a rate established by a rail carrier is reasonable for purposes of this section, the Commission shall recognize the policy of this title that rail carriers shall earn adequate revenues, as established by the Commission ____” Section 201(a), 94 Stat. at 1899, 49 U.S.C. § 10701a(b)(3) (1982). In the so-called Long-Cannon amendment in the Act, Congress required the Commission, in determining whether a rate is reasonable, to consider evidence of the following three factors: (i) the amount of traffic transported at revenues that do not contribute to going concern value, and efforts to maximize such traffic; (ii) the amount of traffic that contributes only marginally to fixed costs, and the extent to which rates on that traffic can be changed to maximize revenues from it; and (iii) the carrier’s mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier’s overall revenue. Section 203(a), 94 Stat. at 1904, 49 U.S.C. § 10707a(e)(2)(C) (1982). C. The 1983 Guidelines. The Commission described its 1983 Guidelines as “culminatpng] our efforts to arrive at a formula for prescribing maximum reasonable coal rates in instances where railroads exercise market dominance over this traffic.” Interstate Commerce Commission, Ex Parte No. 347 (Sub. No. 1), Coal Rate Guidelines — Nationwide 2 (February 8, 1983) (footnote omitted) [hereinafter cited as the 1983 Guidelines ], summarized in 48 Fed.Reg. 8362 (February 28, 1983). The Guidelines grew out of an earlier Commission proceeding, begun in 1978, that involved coal rates from the West, which the agency expanded in 1980 to cover all coal rates. In promulgating the 1983 Guidelines, the Commission considered, in addition to the 4-R Act and the Staggers Act, its former criteria for determining the reasonableness of coal rates, its experience with those criteria, and the extensive comments it had received on the problem from rail carriers and shippers (including PEP-CO). The key element in the Guidelines was the Commission’s adaptation of the principle of “constrained market pricing” as the touchstone for determining the reasonableness of rates on market dominated coal traffic. The Commission stressed that because a railroad has little ability to increase rates on traffic for which it has competition, it may be required to carry such traffic at rates that do not cover its fully distributed costs and therefore that it must make up the difference by charging higher rates on traffic for which it has no competition. The Commission pointed out that in the Staggers Act Congress recognized the need for this system of rates, known as “differential” or “demand based” pricing, if railroads are to achieve the revenue adequacy that Congress intended them to accomplish. It stated: Our regulatory task is to determine the reasonableness of only those rates which are set in an essentially non-competitive market environment. We must develop a means to assure that the rate assessed on this traffic properly reflects the high demand for the service, but is not set at an unreasonably high or “monopoly” level. 1983 Guidelines at 9 (footnote omitted). The method the Commission selected to accomplish these objectives was to permit carriers to use “market demand as the basis for their rate-making,” subject to the following four upward constraints: (1) the cost of serving that traffic without regard to any other traffic (“stand-alone cost”); (2) certain checks on obviously inefficient management; (3) achievement of revenue adequacy; and (4) phasing of any substantial rate increases. Id. at 10. (Since Conrail is not revenue-adequate and this case involves not rate increases but a challenge to existing rates, constraints (3) and (4) are inapplicable here.) The Commission stated: With these constraints in place, carriers would have the necessary incentive to maximize their net revenue contribution from competitive traffic. They would also be effectively limited in the rates they could charge on captive traffic. Id. at 11. The Commission explained “Stand-Alone Cost” as follows: The “stand-alone cost” to any given shipper (or shipper group) is the cost of serving that shipper alone, as if it were isolated from the railroads’ other customers. It represents that level at which the shipper could provide the service itself.No shipper would reasonably agree to pay more to a railroad for transportation than it would cost to produce in isolation itself, or more than it would cost a competitor of the railroad to provide the service to it. Thus, the stand-alone cost serves as a surrogate for competition; it enforces a competitive standard on rail rates in the absence of any real competitive alternative. Id. (footnotes omitted). With respect to constraint (2), “checks on obviously inefficient management,” the Commission stated: [W]e must consider: (1) the amount of the carrier's traffic that fails to contribute to going concern value and the carrier’s efforts to minimize such traffic; (2) the amount of traffic that contributes only marginally to fixed costs and the extent to which rates on such traffic can be raised; and (3) the impact of the proposed rate increase on national energy and the rail transportation policy. 49 U.S.C. 10707a(e)(2)(B). In judging rate reasonableness, we must consider the first two factors listed above and a third factor — the carrier’s mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier’s overall revenues. 49 U.S.C. 10707a(e)(2)(C).... * * * * * * If we should determine that in a particular instance any of the foregoing factors have contributed to produce an artifically [sic] high and unreasonable rate, we will act to ensure that captive shippers pay no more than necessary under an efficient market pricing system. Id. at 13-14 (footnote omitted). D. The Commission Decision. In compliance with our order approving the parties’ agreement to file by April 18, 1983 “further evidence and arguments directed to the new coal rate guidelines,” Conrail on that date filed a lengthy standalone cost study, which concluded that the challenged rates were below the cost to PEPCO of itself providing the service. PEPCO filed no stand-alone cost study of its own, but instead argued against the application of the 1983 Guidelines and presented updated revenue and cost data directed to the methodology the administrative law judge had applied in his decision. In its rebuttal case, however, PEPCO submitted a stand-alone cost analysis based upon Conrail’s presentation, with a single change. Conrail’s analysis assumed that the new theoretical railroad that PEPCO would create could acquire from Amtrak trackage rights over a 71-mile portion of the required route at a rate of 21 cents per mile, the same rate Conrail paid Amtrak for use of that track. In its analysis PEP-CO further assumed that it could obtain trackage rights from Conrail and Amtrak for 21 cents per mile over the entire route between Pennsylvania and Maryland. This resulted in a lower cost than Conrail’s estimate of building and maintaining a separate railroad line. In its rebuttal case PEPCO also contended that Conrail was inefficiently managed. It relied on two items of evidence: (1) the administrative law judge’s finding in his decision that Conrail’s deficit from noncompensatory traffic increased between 1977 and 1978, and (2) the testimony on cross-examination in another proceeding by a Conrail vice president of marketing indicating that he was unaware of the exact impact on revenues of certain pricing practices of Conrail. In a lengthy opinion, the Commission concluded that PEPCO had not met its burden of proof that the challenged rates were unreasonable and dismissed the complaint. Potomac Electric Power Co. v. Consolidated Rail Corp., 367 I.C.C. 532 (1983). The Commission held that PEPCO had not met its burden of proof with respect to either “the stand-alone cost of providing [the] service” or “the Long-Cannon factors, including whether defendant, Conrail, is inefficiently managed and whether (and to what extent) such alleged inefficiencies led to revenue inadequacy. In short, PEPCO has not met its burden of proof in spite of clear notice as to what was required.” Id. at 533. The Commission stated: In this proceeding, we have decided to rely on our proposed 1983 Guidelines, which, as here pertinent, are based on the stand-alone cost methodology and the Long-Cannon factors. These guidelines represent our best and most recent thinking, and reflect several years of experience and consideration of the issue and the wide-ranging comments received on our several proposals, as well as on changes that have occurred in the rail industry and its pricing mechanisms. Id. at 535. After explaining the 1983 Guidelines and their background, the Commission discussed at length and rejected PEPCO’s objection to the use of the Guidelines, PEP-CO’s own stand-alone cost analysis, and PEPCO’s argument that under the Long-Cannon factors the challenged rates were unreasonable because Conrail was inefficiently managed. We discuss these arguments in detail in the remainder of our opinion. II In addition to its substantive challenges to the Commission’s decision, which we discuss in parts III and IY below, PEPCO argues that the Commission improperly applied the 1983 Guidelines because (A) the Guidelines are not final; (B) the Commission singled out PEPCO for disparate treatment by applying the Guidelines only in PEPCO’s case but not in any other pending coal rate case; (C) it was unfair to PEPCO for the Commission to change its methodology during the case; (D) PEPCO did not have sufficient time to prepare its own stand-alone cost study; and (E) PEPCO was denied the information it needed to show that Conrail was inefficiently operated. A. The fact that the Guidelines were not final did not preclude the Commission from applying them in this case. As the Commission explained, it relied on the Guidelines because they “represent our best and most recent thinking” and reflected the Commission’s “several years of experience and consideration of the issues” and the “wide-ranging comments” the agency had received on its “several proposals.” 367 I.C.C. at 535. The Commission cannot be faulted for deciding the case upon the most persuasive analysis then available to it. Moreover, in our March 1, 1983 decision, we recognized that “the lack of a final methodology should pose no problem to proceeding to a final disposition of PEP-CO’s complaint.” 702 F.2d at 1035. In our supplemental opinion in that case, we approved the parties’ agreement to submit by specified dates “further evidence and arguments directed to the new coal rate guidelines.” 705 F.2d at 1343. We understood and anticipated that, despite the nonfinal character of the new Guidelines, the Commission would apply them in deciding this case. B. The Commission did not improperly single out PEPCO’s case as the only one in which to apply the proposed Guidelines. PEPCO relies upon San Antonio, Texas v. Burlington Northern Railroad Co., I.C.C. Docket No. 36180, et al., order of Oct. 11, 1983, in which the Commission granted requests to hold certain coal rate proceedings in abeyance until the final guidelines had been adopted. In that decision, however, the Commission explained that it was taking that action because in those cases, unlike the present case, the Commission was not under any court-imposed time deadlines for decision. In its brief in this court, the government has stated, and PEPCO has not denied, that following that decision the Commission “has decided to proceed in several of the cases without waiting for final guidelines... where parties have urged the Commission to do so.” Since, as explained above, it was PEPCO that insisted upon expediting the Commission’s decision, PEPCO cannot now complain that because of the court-imposed deadlines it obtained, the Commission could not suspend PEPCO’s case until the Guidelines became final. If PEPCO wanted such suspension, it could have requested us to extend or terminate the Commission’s deadline for a decision. C. The Commission was warranted in changing its methodology while these proceedings were pending. The history of the Commission’s attempts to devise an appropriate methodology for determining the reasonableness of coal rates has been a process of trial and error in which the Commission changed its standards in the light of accumulating knowledge and experience. Nothing in the Interstate Commerce Act or general principles of administrative law required the Commission to adhere to standards that had proven unsound or unreasonable or barred the agency from applying its “best and most recent thinking, reflecting several years of experience and consideration of the issue” in deciding this particular case at this particular time. 367 I.C.C. at 535. Such flexibility in rate-making reflects an appropriate exercise of the Commission’s broad discretion to “alter its past interpretation and overturn past administrative rulings and practice” in response to “changing needs and patterns of transportation.” American Trucking Association v. Atchison, Topeka & Santa Fe Railway Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967). Moreover, in our March 1, 1983 decision, we noted the shift in the Commission’s methodology, but nevertheless approved the Commission’s proposed application of the 1983 Guidelines in deciding this case. Contrary to PEPCO’s contention, we do not read the legislative history of the Staggers Act as requiring the Commission to apply in rate cases the “existing law” in effect when that Act was enacted. As we have recognized, the Commission has substantial discretion to select the method and basis by which it will determine the reasonableness of coal rates. The Staggers Act did not limit the Commission’s discretion so as to bar the agency from considering different methodologies than those it was using when that Act became effective. D. PEPCO has not shown that it was denied sufficient time to prepare a stand-alone cost analysis. As the Commission pointed out, Conrail prepared an extensive stand-alone cost analysis in 6 weeks, the time period for submitting such a study to which the parties had agreed. 367 I.C.C. at 548-49. If PEPCO had required more time to prepare such a study, it could have requested it. PEPCO made no attempt to submit such a study, as it had been told and had undertaken to do. On the day on which its submission of “further evidence and arguments directed to the new coal rate guidelines” was due, PEPCO’s submission merely repeated its contention that its case should be decided not under those guidelines but under the superseded earlier standards the administrative law judge had applied. E. PEPCO’s contention that it was denied the information it needed to show that Conrail was inefficiently operated does not withstand analysis. The argument rests upon PEPCO’s unsuccessful attempt in another Commission proceeding to obtain information from Conrail. PEPCO asserts that because in that proceeding the Commission refused to compel discovery, it would have been “futile” for PEPCO to have made a similar request here. The short answer is that PEPCO did not seek discovery here. If it had done so, we cannot say what the result would have been. Cf. United States v. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952). PEPCO cannot properly complain because it did not receive information it did not attempt to obtain through the procedures available to it. Moreover, as the Commission pointed out, “PEPCO cannot be heard to complain of time constraints in light of its repeated efforts to expedite the proceeding with full knowledge of what its burden would be.” 367 I.C.C. at 556. Ill A. PEPCO and the intervenor Public Service Commission of the District of Columbia contend that the Commission’s use of the stand-alone cost concept in deciding PEPCO’s challenge to the reasonableness of Conrail’s coal rates was an impermissible rate-making methodology. PEPCO argues that the Commission’s use of stand-alone cost is inconsistent with the Staggers Act and other provisions of the Interstate Commerce Act that require the Commission to determine whether rates are reasonable. PEPCO contends that the Commission gave undue and improper weight to the congressional policy reflected in the 4-R and Staggers Acts that railroad rates must produce sufficient revenue to make the carriers self-sufficient. According to PEPCO, in those statutes Congress intended the Commission to base its decision on the reasonableness of Conrail’s coal rate upon an analysis of Conrail’s fully allocated cost of providing the particular service and left no room for the methodology the Commission used. This court has recognized that the 4-R Act permitted differential pricing under which “some rates [are] set at a level exceeding fully allocated costs in order to compensate for those rates which must be set at less than fully allocated costs to meet competition from other transportation modes,” since this method of rate-making “is pertinent to the objective of providing an adequate over-all level of earnings.” Houston Lighting & Power Co. v. United States, 606 F.2d 1131, 1148 (1979); San Antonio, Texas v. United States, 631 F.2d 831, 852 (D.C.Cir.1980). In enacting the Staggers Act, Congress “understood] the necessity of such differential pricing,” since “[b]eeause of the existence of competition, all rates cannot pay an equal percentage of ‘fixed costs.’ ” H.R.Rep. No. 1035, 96th Cong., 2d Sess. 39, reprinted in 1980 U.S.Code Cong. & Ad. News 3978, 3984. “[N]ot all traffic can be transported at fully allocated cost level due to competitive considerations____” S.Rep. No. 96-470, 76th Cong., 1st Sess. 7 (1980). We conclude that the Commission’s use of stand-alone cost in determining the reasonableness of the rates of a railroad with inadequate revenues (as Conrail was) for noncompetitive traffic is an appropriate implementation of differential pricing. Congress enacted the Staggers Act because of concern that the 4-R Act “has not provided the flexibility that the industry needs to earn revenues sufficient to maintain and improve the rail system.” H.R.Rep. No. 1035 at 38,1980 U.S.Code Cong. & Ad.News at 3983. In the words of the conference committee, the “overall purpose” of the Staggers Act was “to provide, through financial assistance and freedom from unnecessary regulation, the opportunity for railroads to obtain adequate earnings ____” H.R.Rep. No. 1430 at 80, 1980 U.S.Code Cong. & Ad.News at 4111. Since under differential pricing a railroad must be able to charge enough on the traffic for which it has no competition to compensate it for its inability to earn its fully allocated costs on traffic where it has competition, the problem is to determine the point at which the rates on the noncompetitive traffic are unreasonably high. These rates necessarily must exceed fully allocated costs if the carrier is to earn adequate revenue. As the Commission explained in this case: [T]he stand-alone cost to a given shipper, is the cost of serving that shipper (or possibly group of captive shippers) as if the railroad had no other customers using the subject facilities. In the absence of competitive alternatives, so long as the railroad’s rate is less than the cost to the shipper of providing the service for itself, it is economically advantageous to the shipper to use the carrier’s service. Moreover, a rate below stand-alone cost ensures the shipper that it is not cross-subsidizing the rate of other shippers. In other words, the shipper is not paying for facilities or services that it does not use. In fact, if the shipper is paying less than the full stand-alone cost of the service, it is benefitting from certain economies of scale or other cost-sharing activities that allow the carrier to charge a lower rate. 367 I.C.C. at 541-42. In other words, as long as the challenged rate has not been shown to exceed what it would cost the shipper itself to provide the service, the rate is reasonable because it (1) enables the carrier to maximize its earnings, while at the same time (2) protects the shipper from monopoly pricing in which the carrier sets its rates without regard to competition. Although stand-alone pricing deals with hypothetical and not actual transportation situations, it provides an appropriate analytical tool for determining whether a return on noncompetitive traffic “properly reflects the high demand for the service, but is not set at an unreasonably high or ‘monopoly’ level.” 1983 Guidelines at 9. PEPCO and the Public Service Commission of the District of Columbia argue that since stand-alone cost applies only in situations where the railroad has no competition for the traffic, it enables the carrier to maximize “monopoly profits.” The concept of differential pricing, however, necessarily contemplates that the carrier will maximize its profits on traffic for which it has no competition so as to offset its lower earnings on competitive traffic. It does not aid analysis to describe a carrier’s rate on noncompetitive traffic pejoratively as producing “monopoly profits.” The question is whether these rates, although noncompetitive, are reasonable. As the Commission pointed out in its Guidelines “the stand-alone costs serve as a surrogate for competition; it enforces a competitive standard on rail rates in the absence of any real competitive alternative.” Furthermore, stand-alone cost is not the only ceiling on rates. In addition, a rate that exceeds stand-alone cost may be held unreasonable if the carrier is not efficiently operated, or if either of the two other constraints (not applicable in this case, see p. 189, supra) come into play. B. Alternatively, PEPCO argues that if a stand-alone cost approach is permissible, the Commission erred in rejecting PEPCO’s stand-alone cost analysis. As noted, that analysis did not provide any data that PEPCO itself developed. Instead, as PEPCO explained in its brief, it merely took Conrail’s study and changed it “only in extending the traffic rights operations over the entire route of movement of the hypothetical railroad.” PEPCO’s stand-alone cost study assumed that the hypothetical railroad could obtain, at the same rate of 21 cents per mile that Conrail pays Amtrak, not only the right from Amtrak to move its cars over the 71 miles of Amtrak line that Conrail now uses in moving the PEPCO shipments, but also similar rights from Conrail over all other portions of the hypothetical route. Under PEPCO’s analysis the stand-alone cost was less than the existing Conrail rates. Assuming that PEPCO’s submission complied with each party’s agreement initially to submit evidence relating to the stand-alone cost theory in the 1983 Guidelines, the Commission justifiably rejected it as fatally flawed. As the Commission explained, there was [no] reason to expect Conrail to make PEPCO such an offer or any offer for trackage rights that is more favorable to PEPCO than the rate itself.... In addition, the 21 cents per mile figure is based on the “avoidable cost” to Amtrak of allowing Conrail to use that particular section of track. :)s sji :)í sfc jjs PEPCO’s stand-alone costs represents the minimum compensation to prevent out-of-pocket losses to Conrail. A rate based on such a computation is not even fully compensatory and is wholly inconsistent with differential pricing and our policy of placing greater reliance on the market in setting rates. 367 I.C.C. at 552-53. Although PEPCO criticized Conrad’s stand-alone cost study, the Commission found it unnecessary to evaluate that study because PEPCO “failed to produce its own estimate of stand-alone cost to counter Conrad’s estimates.” The Commission concluded on this aspect of the case: “Since PEPCO has failed to show that Conrail’s rates exceed the stand-alone cost of service, under any definition of stand-alone cost, we cannot find Conrad’s rates unreasonable per se." Id. at 553 (emphasis in original). In our earlier opinion in this case, we recognized “the Commission’s discretion to have the final say regarding the rate methodology to be applied to PEPCO’s complaint____” 702 F.2d at 1035. We cannot say that, in applying the stand-alone cost analysis to conclude that PEPCO had failed to carry its admitted burden of proof that Conrail’s coal rates were unreasonable, the Commission abused its discretion. IV The Long-Cannon amendment of the Staggers Act provides in pertinent part as follows: (C) In determining whether a rate is reasonable, the Commission shall consider, among other factors, evidence of the following: (i) the amount of traffic which is transported at revenues which do not contribute to going concern value and efforts made to minimize such traffic; (ii) the amount of traffic which contributes only marginally to fixed costs and the extent to which, if any, rates on such traffic can be changed to maximize the revenues from such traffic; and (iii) the carrier’s mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier’s overall revenues. Section 203(a), 94 Stat. 1904, 49 U.S.C. § 10707a(e)(2)(C) (1982). In its 1983 Guidelines, the Commission described these criteria as “certain cheeks on obviously inefficient management.” In its decision in this case, the Commission explained: In considering management efficiency, we look both at a carrier's operating practices and its pricing structure. We stated [in the Guidelines] that we would examine the carrier’s mix of traffic and would not permit one shipper or commodity to bear an undue portion of the carrier’s revenue need. 367 I.C.C. at 542. In this case the Commission followed its ruling in Arkansas Power & Light Co., 365 I.C.C. 983, 999 (1982), affirmed on other issues, Arkansas Power & Light Co. v. I.C.C., 725 F.2d 716 (D.C.Cir.1984), that [t]he complainant bears the burden of proof in a complaint proceeding. Accordingly, it is appropriate that the complain

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

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

UNITED STATES of America, Plaintiff-Appellee, v. James HARRIS and Richard Gray, Defendants-Appellants. Nos. 83-1778, 83-1801. United States Court of Appeals, Seventh Circuit. Argued Dec. 8, 1983. . Decided Feb. 24, 1984. See also, 561 F.Supp. 1178. Patrick A. Tuite, Chicago, 111., Patrick Reardon, Chicago, 111., for appellants. Gillum Ferguson, Asst. U.S. Atty., Chicago, 111., for appellee. Before PELL, CUDAHY and POSNER, Circuit Judges. POSNER, Circuit Judge. These consolidated appeals raise significant issues regarding the scope of important federal criminal laws, and lesser evidentiary and procedural questions, all growing out of a theft of tiles that the Chicago Housing Authority had bought with federal money. James Harris, a CHA employee for more than 20 years, was in charge of, and Richard Gray a member of, a team assigned to lay tile in public housing owned by the CHA. The materials for the project were paid for entirely by a grant from the Department of Housing and Urban Development; and although the CHA contributed the labor for the project, HUD paid for 60 percent of the CHA’s operating expenses, including Harris’s and Gray’s wages. Theft of CHA property was suspected. An undercover agent, Matthews, asked around about hiring workers to renovate his home, and a man named Spencer referred Matthews to Harris. Matthews and Spencer met with Harris at the Chicago townhouse where supposedly Matthews lived. Harris offered to tile the kitchen and bathroom floors for $260. He wanted Matthews to see the tile he would use and therefore asked him to come the next day to an address that turned out to be that of the CHA housing project where Harris was working. There, in the presence of Gray, Harris asked Matthews to give Gray the key to the townhouse. The next day Matthews saw six boxes of tile in the townhouse, one of them open. A box full of new tiles is worth $17.28, so if all of the boxes were full their total value was $103.68. Harris and Gray completed the tile job that day, but two of the six boxes were not used and Gray gave them to Matthews. The next day Matthews paid Harris $260, and Harris gave $75 to Gray. The indictment charged Harris and Gray each with one count of embezzling tile belonging to HUD worth more than $100, in violation of 18 U.S.C. § 657, which so far as relevant here provides that “Whoever, being an officer, agent or employee of or connected in any capacity with [HUD] ... embezzles, abstracts, purloins or willfully misapplies any moneys, funds, credits, securities or other things of value belonging to [HUD] ... shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount or value embezzled ... does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.” The indictment also charged each of the defendants with one count of violating 18 U.S.C. § 371, which makes it a felony for “two or more persons [to] conspire either to commit any offense against the United States, or to defraud the United States,” but further provides that if “the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.” Both defendants were found guilty in a bench trial of the offenses charged. Harris was fined $1,000, and placed on probation for two years, on each count, the sentences to run concurrently. Gray was given concurrent sentences of a year’s probation on each count. Section 657, a consolidation of eleven federal criminal statutes, punishes embezzlement and willful misapplication by officers, agents, etc. of several different federal agencies that extend credit in various forms, and of some private but federally insured financial institutions, mainly savings and loan associations. A number of other statutes apply similar prohibitions to officers, agents, etc. of other federal agencies, of federally insured banks, and of various federal contractors. See 15 U.S.C. §§ 645(b), 714m(b); 18 U.S.C. §§ 656, 665; 25 U.S.C. § 450d; 42 U.S.C. § 3220(b). In all of these and several other federal criminal statutes (see 12 U.S.C. § 631; 18 U.S.C. §§ 1006, 1904) the same expression — “connected in any capacity with” — is used to round out the prohibition against theft or fraud by an officer, director, agent, or employee of the institutions protected by the statute. We must decide whether Harris and Gray, who were employees of a state agency that received 60 percent of its operating funds from the Department of Housing and Urban Development and who when they (allegedly) embezzled HUD property were working on a project the materials for which had been paid for 100 percent by HUD, were connected with HUD in any capacity. Read naturally, as well as literally, the words cover Harris and Gray. Their wages were paid in major part out of funds provided by HUD and they were working on a project the materials for which were paid for entirely by HUD. Although not technically agents of HUD, they were doing its work. Their connection to HUD was as close as the connection of the defendant in United States v. Coleman, 590 F.2d 228 (7th Cir.1978), to the agency from which he had embezzled funds in violation of a statute worded almost identically to section 657. This is 18 U.S.C. § 665, which punishes embezzlement, etc., by whoever is “an officer, director, agent, or employee of, or connected in any capacity with any agency receiving financial assistance under the Comprehensive Employment and Training Act.” Although Coleman was an employee of the General Services Department of the City of Gary rather than of Gary Manpower, the agency that had received the CETA grant, he was the Department’s assistant director and the Department had agreed to use some of the people whom Gary Manpower was training with its CETA grant. These facts created a sufficiently close connection between Coleman and Gary Manpower to satisfy section 665. See 590 F.2d at 231 (alternative holding); also United States v. Pintar, 630 F.2d 1270, 1282 and n. 16 (8th Cir.1980). The federal government has a greater interest than the states in deterring the embezzlement of federal property (whether the tiles in this case were federal property is discussed next); and the danger of embezzlement is no less when the embezzler happens to be an employee not of the federal agency that owns the property but of a contractor who has custody of it. We are not much troubled by the defendants’ argument that the words “connected in any capacity with” are subject to indefinite expansion unless confined to consultants, brokers, and other quasi-agents. Persons employed full-time on a project 100 percent of the materials for which and 60 percent of the labor for which (including their own wages) are paid for by a federal agency are “connected in [some] capacity with” that agency as clearly as a broker or consultant would be; we leave to another day decision of the case where the agency pays for only a small fraction of the project costs. Our interpretation does not place on employees an undue burden of investigating the financial relationships between their employer and the federal agency that funds it. Harris and Gray knew they were stealing the tiles and it is immaterial whether they thought they were committing a federal or merely a state crime in doing so. Culpability does not require proof that the defendant knew the facts that create federal jurisdiction of the offense. See, e.g., United States v. Feola, 420 U.S. 671, 684, 95 S.Ct. 1255, 1263, 43 L.Ed.2d 541 (1975); United States v. Hamilton, 726 F.2d 317, 319-20 (7th Cir.1984); United States v. Baker, 693 F.2d 183, 186 (D.C.Cir.1982); United States v. Gregg, 612 F.2d 43, 46-50 (2d Cir.1979); United States v. Stanford, 589 F.2d 285, 297-98 (7th Cir.1978); United States v. Herrera, 584 F.2d 1137, 1150 (2d Cir.1978). This is true even when the penalties under state law for the defendants’ conduct are lighter than those under federal law, as they were here. See Ill.Rev.Stat.1981, ch. 38, ¶¶ 8-2(c), 16-1(e)(1). The argument that federal law can have no incremental deterrent effect unless the potential offender knows that it applies to his conduct is unpersuasive, especially on the facts of this case. The defendants’ workplace was festooned with notices of HUD’s grants. The defendants must have known that they were working on a project wholly funded by HUD, that the tiles they were stealing had been purchased with HUD funds, and that their misconduct might trigger federal as well as state criminal liability. And the successful prosecution of these defendants will give pause to similarly situated CHA workers. Indeed, the small amount of money involved in their crime suggests that the prosecutions were brought (at great expense to the government) for their demonstration effect, which would be nullified if the statute were read so narrowly that these defendants had to be acquitted. In any event, requiring proof beyond a reasonable doubt of a defendant’s knowledge that his conduct is within federal jurisdiction would, by increasing the difficulty of conviction (knowledge always being hard to prove), actually reduce the statute’s deterrent effect. The next question is whether the defendants indeed stole “things of value belonging to” HUD. We do not understand them to be arguing that as soon as federal grant funds are deposited to the grantee’s account they cease to “belong to” the granting agency regardless of how much control of the funds the agency retains under the terms of the grant. They could not make that argument after cases like United States v. Hamilton, supra, 726 F.2d at 320; United States v. Montoya, 716 F.2d 1340, 1344 (10th Cir.1983); United States v. Mitchell, 625 F.2d 158, 161 (7th Cir.1980); United States v. Smith, 596 F.2d 662, 663-64 (5th Cir.1979); United States v. Maxwell, 588 F.2d 568, 571-74 (7th Cir.1978), and especially United States v. Cartwright, 632 F.2d 1290, 1292 (5th Cir.1980), the last a case under 18 U.S.C. § 657. The CHA had to get HUD’s approval for every specific use that it proposed to make of the grant funds, had to maintain and make available to HUD detailed records of expenditures, and had to repay any expenditures that it made and HUD disapproved as well as repay all unexpended funds. The CHA kept the funds in a separate bank account and HUD even negotiated the contract under which the CHA bought the tiles that Harris and Gray stole. The retention of control gave HUD a sufficient interest in the funds to support a prosecution under section 657. But the defendants argue that once the funds were converted into tangible property (the tiles) to which the CHA held the legal title, HUD no longer had a sufficient interest. We however find it difficult to understand why if the funds remained “things of value belonging to” HUD even after they were paid over to the CHA it should make a difference whether they were kept in a bank account or converted into tangible property. The reference in the statute to “things of value,” when read in context (“any moneys, funds, credits, securities or other things of value belonging to such institution, or pledged or otherwise intrusted to its care”), suggests that the form of the property is indeed unimportant. Although it might seem that the tiles, being less liquid than the funds that the CHA used to buy them with, would be less likely to be stolen and hence less needful of the protection of federal criminal law, this consideration is balanced by the fact that building materials sitting on a building site are easier to embezzle than money sitting in a CHA bank account. The narrow interpretation of the statute for which the defendants contend would merely encourage the aspiring embezzler to wait till the grant money was expended pursuant to the terms of the grant. Our conclusion would be different if the money could not be traced to the particular piece of property that the defendants embezzled, as might be the case if the money was used to buy a can of paint to repaint a chair that had not been bought with federal money, and the defendants then stole the chair. “[W]hen an outright grant is paid over to the end recipient, utilized, commingled or otherwise loses its identity, the money in the grant ceases to be federal.” United States v. Smith, supra, 596 F.2d at 664 (dictum). But there is no tracing problem in this case; the defendants embezzled goods that had been bought 100 percent with federal money. So we need not decide whether commingling would necessarily defeat federal criminal liability. Commingling of federal with non-federal cash would not. See United States v. Gibbs, 704 F.2d 464, 466 (9th Cir.1983) (per curiam), and cases cited there. Although we have concluded (postponing an evidentiary question relating to Gray) that the defendants violated section 657, we must consider their argument that the value of the tiles was not proved beyond a reasonable doubt to exceed $100, as required for a felony rather than misdemeanor violation of section 657. If they had been full of new tiles the six boxes would have been worth a shade — but only a shade — over $100. And probably they were full of new tiles. But with all due deference to the contrary view of the experienced district judge we think it apparent that the government failed to prove this fact beyond a reasonable doubt. Before the defendants began to lay the tiles, Matthews, the only witness to their contents, saw five closed boxes and one open one; and he did not look in any of the boxes. If (when the defendants took the boxes) the open box had been missing even a small fraction of its tiles, or if any of the other boxes had been missing even a few tiles, or if some of the boxes had contained old rather than new tiles, the total value of the six boxes would have been less than $100. The cumulative possibilities create a reasonable doubt as a matter of law. The defendants should therefore have been acquitted of the section 657 felony charge and convicted only of misdemeanor violations of the statute. This raises the question whether the defendants could nevertheless be convicted (as they were) of felony violations of 18 U.S.C. § 371, the general federal conspiracy statute. There is no doubt that there was a conspiracy to violate section 657, and such a conspiracy violates section 371; but there is considerable doubt whether the conspiracy was one to commit a felony violation of section 657. It may have been, despite our conclusion that the evidence does not justify conviction of a completed felony. If the conspiracy was to embezzle as much tile as necessary to do the job and more than $100 worth of tile might have been required for it, the conspiracy would have been one to commit a felony, though in the event only a misdemeanor was committed. See United States v. Shively, 715 F.2d 260, 266-67 (7th Cir.1983), and cases cited there. Or if the conspiracy was to commit a series of thefts of tile of which the theft of the six boxes for the pretended Matthews townhouse was only the first, it might be possible to view the conspiracy as one to engage in a continuing course of conduct amounting to a felony violation of section 657. Cf. United States v. Billingslea, 603 F.2d 515, 518-20 (5th Cir.1979). But although there was evidence to support both of these characterizations of the conspiracy we are not clear that there was enough evidence to establish them beyond a reasonable doubt or even that the trier of fact thought there was enough evidence. But this is unimportant. The defendants were guilty of a conspiracy to defraud an agency of the United States, an independent basis of felony liability under section 371 and one they were charged with in the indictment. Many federal offenses, including many offenses under section 657 and cognate statutes, are not directed against the United States. For example, embezzlement from a federally insured savings and loan association is not, at least if the embezzlement does not endanger the association’s solvency and thereby create a risk that the federal agency which insures its deposits will have to make good depositors’ losses. As to such offenses the only basis for charging a violation of section 371 is that the defendants conspired to violate a specific federal criminal statute. But the conspiracy in this case was directed against an agency of the United States. A conspiracy to embezzle property belonging to the United States is a conspiracy to defraud the United States (“To conspire to defraud the United States means primarily to cheat the government out of property or money,” Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924)); and it is a felony regardless of the value of the property taken. It is true that if the indictment had charged the defendants with just a conspiracy to violate section 657 they could not have been convicted of a felony. It is only because it also charged a conspiracy to defraud the United States that they could be. And since the offense defined in section 657 is more specific than the offense of defrauding the United States (so that conspiracy to violate section 657 is also more specific than conspiracy to defraud the United States), it might seem to follow that the defendants’ felony conspiracy convictions violate the principle that when the same conduct is forbidden by two statutes the offender must be punished under the more specific. See, e.g., Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 1754, 64 L.Ed.2d 381 (1980). But the conduct forbidden by section 657 and by section 371 (insofar as it punishes conspiracies to defraud the United States) is not the same conduct, though there is an overlap. Section 657 does not require that the defrauded entity be a federal agency, and it would not be surprising if federal criminal law imposed heavier penalties for offenses that hit the federal government in its pocket than for those that merely hit private entities with which the federal government has a relationship as insurer or otherwise. As a matter of fact, the general statute that punishes fraud against the United States or its agencies, 18 U.S.C. § 1001, makes such fraud punishable as a felony regardless of the amount of money involved. Since a minor fraud against the United States is felonious, there is no inconsistency in interpreting section 371 to make a conspiracy to commit such a fraud also felonious. Moreover, since there is no doubt that what the defendants did here was to defraud an agency of the United States, the interpretation that they argue for could lead the government in future such cases to indict only under the general fraud provision of section 371. If that had been done here the defendants presumably would have tried to show that their conduct also constituted a misdemeanor violation of section 657 — and the trier of fact would have had to decide the defendants’ guilt of an offense they had not been charged with in order to decide whether they had committed a felony or a misdemeanor under section 371. An interpretation of section 371 that requires such digressions is not attractive. Two evidentiary questions are also raised. The first is whether certain statements made by Harris were admissible against Gray as a coconspirator’s statements in furtherance of the conspiracy. The first statement, and the only one problematical enough to require discussion, was Spencer’s to Agent Matthews at their first meeting. Gray points out that the statement was made before he joined the conspiracy. But the conspiracy was in embryonic existence between Spencer and Harris when Spencer referred Matthews to Harris to do a job that was intended to be a fraud on the federal government. The fact that Gray joined the conspiracy later is of no moment. Statements made in furtherance of a conspiracy are admissible against members of the conspiracy who join after the statements were made, provided the conspiracy was in existence when they were made. United States v. United States Gypsum, Co., 333 U.S. 364, 393, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1947). Gray also argues that there was not enough evidence to convict him beyond a reasonable doubt of conspiracy to defraud the United States, or even of a section 657 misdemeanor. He argues that as a worker on Harris’s tile-setting team he was merely following Harris’s directions and did not know that he was laying embezzled tile in a private house. But the trier of fact was entitled to disbelieve his story. Gray was present when Harris and Matthews discussed payment for the job. It was Gray who showed Matthews a sample of the tile for Matthews’ approval, though, as Gray must have known, if Matthews had been a resident of public housing his approval of the tile would not have been required or sought, because he would not have been the owner of the townhouse — the Chicago Housing Authority would have been. Nor would Gray have given a resident of public housing the two boxes that were not used. And Gray accepted payment in cash from Harris after Matthews paid Harris $260 the day after the job was done, though he could not have believed that the CHA was paying him in this manner. We need not decide what Gray’s criminal liability would be if his only connection to the conspiracy between Harris and Spencer had been accepting payment knowing it was for unauthorized work; there was, as we have just seen, a good deal more evidence of his participation in the embezzlement and the conspiracy. Since the defendants should not have been convicted of felony violations of section 657, the convictions and sentences imposed for those violations must be set aside and the case remanded for resentencing of the defendants for misdemeanor violations of that statute. See Tinder v. United States, 345 U.S. 565, 569-70, 73 S.Ct. 911, 913-14, 97 L.Ed. 1250 (1953). Although we affirm the conspiracy convictions and although the district judge imposed concurrent sentences on the section 657 and conspiracy counts, we shall remand for resentencing on the conspiracy count as well. The judge’s exercise of his sentencing discretion might have been influenced by his erroneous belief that each of the defendants had committed two felonies rather than, as we have found, one felony (under section 371) and one misdemeanor (under section 657). United States v. Shively, supra, 715 F.2d at 269. So Ordered.

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. Douglas S. SZYCHER, Defendant-Appellant. No. 77-1345. United States Court of Appeals, Tenth Circuit. Oct. 16, 1978. Stephen M. Duncan, Denver, Colo. (Charles Eugene Grover of Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, Colo., on the brief), for defendant-appellant. Edward W. Nottingham, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee. Before SETH, Chief Judge, and HOLLOWAY and McKAY, Circuit Judges. HOLLOWAY, Circuit Judge. Defendant Szycher was convicted after a jury trial on three counts of an indictment charging that he knowingly and intentionally distributed cocaine, a Schedule II controlled substance, on three occasions in April and May, 1976, in violation of 21 U.S.C. § 841(a)(1). He appeals the convictions and sentence, arguing mainly: (1) that there is no rational basis for the classification of cocaine as a Schedule II narcotic drug, and that consequently he is subjected to the danger of loss of liberty without due process; (2) that the failure to apply the same lesser penalty to cocaine as is applied to other drugs with identical properties, characteristics and effects, and with fewer potential dangers than narcotics, violates the concept of equal justice; (3) that the conduct of the government, acting through Drug Enforcement Agency (DEA) personnel and their paid informer, so violated concepts of fundamental fairness and was so outrageous as to require dismissal of the case under due process principles or as an exercise of supervisory power by the courts; and (4) that the trial court erred in its instruction on entrapment. It is convenient to detail the facts later as we discuss these separate appellate contentions. I First, we consider defendant’s challenges to the classification of cocaine as a narcotic drug, as well as to the penalties attached to its distribution. Defendant bases his arguments mainly on expert opinions and scientific evidence relating to the nature of cocaine, contending that both equal protection and due process principles are violated by the application of 21 U.S.C. § 841(a) to cocaine under its classification as a Schedule II controlled substance. See 21 U.S.C. § 812 and 21 C.F.R. § 1308.12(b)(4). Our court has recently rejected similar arguments. United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.); United States v. Smaldone, 484 F.2d 311, 319-20 (10th Cir.), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469. Congress could rationally classify cocaine as a Schedule II controlled substance for regulatory and penalty purposes, regardless of its proper medical classification. United States v. Wheaton, 557 F.2d 275, 277-78 (1st Cir.); United States v. Marshall, 532 F.2d 1279, 1288 (9th Cir.); United States v. Harper, 530 F.2d 828 (9th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80; see also State v. Erickson, 574 P.2d 1, 15-18 (Alaska); contra Commonwealth v. Miller, 20 Crim.L.Rep. (BNA) 2331 (Roxbury, Mass., Dist.Mun.Ct.). Normally a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts. United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6, 91 S.Ct. 16, 27 L.Ed.2d 4. We are satisfied that there are sufficient grounds for the classification made for penalty purposes, and reject the challenges to the statutory treatment of cocaine. II Defendant next argues for reversal on the grounds that the evidence demonstrates outrageous governmental conduct violative of the concept of fundamental fairness and due process. He also maintains that, in any event, the courts should exercise their supervisory powers and bar prosecution in these circumstances to preserve the integrity of federal criminal justice. The defendant says that the trial court erred in overruling two motions presenting these issues. This argument for dismissal is, of course, interwoven with the entrapment defense which was asserted at trial, submitted to the jury, and rejected by it. The trial judge treated the due process theory based on the conduct of the Government agents as an issue for the court to decide, and, as noted, denied the motions to dismiss on this ground. While arguing that the trial court erred in its rulings rejecting the defense, the defendant does not claim there was error in the issue being ruled on by the court rather than being submitted to the jury. We feel that the trial judge was correct in deciding this issue himself. The question whether circumstances are demonstrated which would bar prosecution under due process principles is for the court. United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.); United States v. Graves, 556 F.2d 1319, 1322-23 (5th Cir.), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516; United States v. Quinn, 543 F.2d 640, 647-48 (8th Cir.). The trial court’s first ruling on this issue was an oral denial, without elaboration, of a motion to dismiss made at the conclusion of presentation of evidence. (Supp. I R. 3). Six days after the verdict, defendant made a written motion arguing that the prosecution stemmed from introductions made by an informer of the DEA, that the informer’s actions were illegal and so outrageous as to violate due process, and that to prevent such conduct from continuing, dismissal of the case and action by the court against the DEA and its agents were necessary in the exercise of the court’s supervisory powers. (V R. 44). This motion was denied by a written memorandum opinion and order of the trial court. (Id. at 45-48). In the memorandum the court noted that the defendant admitted participating in the cocaine transactions, but that his defense was that he had been induced to do so by the undercover agents and the paid informer. The court stated that the informer was recruited while in custody in Gunnison, Colorado, on marijuana charges; that he began to infiltrate the Nederland, Colorado, area in the fall of 1975; that he met the defendant in Nederland; and that defendant attended a party given by the informer and the woman with whom he was living. The court stated further that the undercover DEA agents also attended the party, that defendant invited the agents and the informer to the defendant’s residence where he offered them the use of a small amount of cocaine, and that the agents clearly and repeatedly expressed their interest in acquiring large amounts of cocaine. The court said further that the cocaine involved in the transactions for which defendant was convicted was obtained by defendant from sources other than the paid informer. The court noted testimony by defense witnesses that the informer himself distributed cocaine to other persons, that he attempted to induce these witnesses to use cocaine, and that the informer himself used cocaine in their presence. Most of this testimony related to incidents occurring after the transactions alleged in the indictment. The judge pointed out that the jury was instructed on the issue of entrapment and that there was adequate evidence of predisposition to sustain the Government’s burden of proof on this question. The trial court’s memorandum noted that the challenged conduct of the Government informer included not only the use and distribution of cocaine, established by testimony; but that it was also based on an offer of proof concerning what other witnesses would relate as to the informer’s fraudulent solicitation of credit, conversion and theft of property, and failure to pay just debts. The latter testimony, however, was said to have been excluded as irrelevant, immaterial and collateral under Rule 403, F.R.E. Relying on United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113, and United States v. Spivey, 508 F.2d 146, 149-50 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104, the trial court denied the motion to dismiss on the basis of outrageous governmental conduct. The court concluded (V R. 47): In this case, the questioned conduct had an impact on Mr. Szycher only in providing an introduction of the government’s undercover agents as persons ready, willing and able to engage in large volume transactions. Given the defendant’s clear predisposition, that is nothing more than providing a favorable opportunity to commit these offenses. If the paid informer is also guilty of illegal acts, the remedy must be something other than the dismissal of these proven charges against this defendant. While the memorandum stated that the court had “no authority or jurisdiction” to grant the motion, we do not believe that the trial judge actually rejected the defendant’s motion as one which he had no power to entertain. The court’s quotation from Spivey, its analysis of the evidence, and its conclusion quoted above show that the defense was entertained but rejected as lacking in merit. On appeal, defendant strenuously argues that due process principles require reversal of the trial court’s rulings concerning the conduct of the DEA agents and the paid government informer involved in this case. Defendant refers, inter alia, to the statement in Justice Frankfurter’s opinion concurring in the result in Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 825, 2 L.Ed.2d 848, on conduct falling “below standards, to which common feelings respond, for the proper use of governmental power”; to the statement in the Court’s opinion in United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, that a case may someday be presented in which the conduct of law enforcement agents is “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction”; and to statements in the concurring and dissenting opinions in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113, discussing this due process theory of defense. As a factual basis for these contentions Szycher points to (1) the fact that the DEA agents, Barter and Lamberson, hired the informer, Widmark, an individual with a criminal record who was at the time incarcerated in Colorado on drug-related charges and agreed to pay him approximately $300 for each person he could “get into a cocaine situation; ” (2) the evidence that after Wid-mark was so employed, he distributed cocaine to others, induced others to used cocaine, and used cocaine, himself; and (3) the pressure exerted and threats said to have been made to Szycher by the DEA agents to purchase cocaine for them. We must agree that the theories pressed by the defendant have not been barred by prior decisions and that they are available as defense arguments. The Court’s statement in Russell, 411 U.S. at 431-32, 93 S.Ct. at 1643, cited above, noted the possibility of such due process defense where “the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking the judicial processes to obtain a conviction.” A majority of the Supreme Court continues to recognize the possibility of a bar to prosecution imposed under due process principles or as an exercise of the supervisory powers of the courts, in circumstances of sufficiently offensive conduct by law enforcement authorities. See Hampton, supra, 425 U.S. at 495, 96 S.Ct. 1646 (Powell, J., concurring in the result); id. at 497, 96 S.Ct. 1646 (Brennan, J., dissenting). Our opinion in United States v. Spivey, supra, 508 F.2d at 149, points up the availability of the due process defense in some circumstances: We recognize that, under Russell, a positive test for ‘outrageous conduct’ is, by itself, reason enough for the reversal of a conviction notwithstanding that the defendant was predisposed, and notwithstanding that a criminal otherwise goes free. It is thus that Russell’s constitutional standard protects the ‘sense of justice’ referred to in Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 96 L.Ed. 183. Yet it is clear also that, to be relevant at all, the government’s conduct must be postured as connected in some way to the commission of the acts for which the defendant stands convicted. In cases decided since Russell, in which constitutional arguments have been raised similar to that here, this connection has been implicitly acknowledged by reference to the extent to which the government instigated, participated in, or was involved or enmeshed in, the criminal activity itself. Thus, the more immediate the impact of the government’s conduct upon the particular defendant, the more vigorously would be applied Russell’s test for constitutional impropriety, (footnote omitted). It is under these general principles staked out in the Supreme Court’s opinions, as well as in the Spivey opinion of this court, that we must consider the defendant’s due process and supervisory function claims here. Generally the evidence bearing on the due process and supervisory function theories was as follows: The government’s case was based on three deliveries of cocaine by defendant to Richard Barter, an undercover DEA agent posing as a photographer from New Mexico. Defendant first met Barter at a party on April 25, 1976, hosted by the informer, Widmark, who was posing as the son of the actor. Defendant testified that at the party, Widmark told him he wanted defendant to meet two of his friends who were "millionaires.” Defendant testified that these agents, Barter and Lamberson, were “pretty hard-looking guys,” with expensive-looking jewelry and black leather jackets. At the party, Widmark said he wanted some cocaine to “turn on” his friends. Defendant testified that he had a “little cocaine,” about half a gram, at his house (III R. 126-28), and that he told Widmark to come over to his house. Barter and Lam-berson, as well as Widmark and his roommates, then went with defendant to his house. Defendant testified that once at his home, he put about half a gram of cocaine on a mirror and everybody “had a little.” (Id. at 129). Defendant further testified that during this visit, agent Lamberson asked him if he could get an ounce of cocaine and said that if he would, Lamber-son would give defendant a gram out of it. Defendant responded that he was not a cocaine dealer, but then indicated that he would “look around, or something.” (Id. at 131). After several telephone inquiries from agent Barter following the party, defendant did find an ounce of cocaine. Defendant then contacted Barter and arranged a meeting at a restaurant in Boulder on April 26. Before this meeting a gram of cocaine was taken out for defendant, according to his testimony. At the restaurant, defendant gave the cocaine to Barter and in return Barter gave defendant the money ($1800), which defendant passed on to the man who supplied the cocaine. (Id. at 133; I R. 24-26). This transaction was the basis for count one. Defendant testified that shortly after this first transaction he met Widmark at a club in Boulder. Widmark called defendant into a back room, gave defendant two “small lines” of cocaine, and took two “lines” himself. Barter testified that on May 4 he telephoned defendant seeking another ounce of cocaine. Defendant later saw Barter and Lamberson at a bar. Defendant testified that at this time Barter was angry because the first ounce had not been good and he had lost money on it. Defendant said he himself was “getting scared.” (IV R. 5-6). He said that he didn’t know what would happen to him if he didn’t get another ounce for them, and so he told them he would do so to make up for the bad ounce. (Id. at 7). Defendant later obtained “a little sample” and gave it to Barter at a Boulder restaurant, at which time Barter was accompanied by another undercover DEA agent, Greager. Barter left and field-tested the cocaine (which proved to be 77% pure), returned, and told defendant he liked it and wanted the ounce. (Id. at 8). This transaction at about 3:40 p. m. on May 5 was the basis of count two. Defendant testified that they then got into his car and drove to Left-Hand Canyon where defendant stopped the car and got the cocaine from his source nearby, ran back to the car and handed it to Barter. Barter gave defendant the money ($1650), which he took back to the supplier, without keeping any for himself. (Id. at 8-9). This transaction formed the basis for count three. Defendant also testified that for the next three months the undercover agents continued pressuring him to sell them larger and larger quantities of cocaine. He stated that he finally became so frightened that he sought the protection of local law enforcement officers. This evidence, plus proof concerning Wid-mark’s use of cocaine and his offering the drug to a number of persons in the area, was essentially the basis for the claim of outrageous governmental conduct. In contrast with pertinent parts of defendant’s testimony outlined above, it should be noted that agents Barter and Lamberson denied telling defendant that he could keep a gram out of any cocaine he might obtain for them. (I R. 68-69; II R. 156; IV R. 98). Barter implied in his testimony that the defendant may have gotten some cocaine for himself simply by agreement with his source. (I R. 94-95). The agents also testified that they did not “[have] a little” cocaine with defendant at his home following Widmark’s party, as alleged by defendant, but instead dumped the proffered sample on the floor when defendant was called away to the phone. (I R. 63, 97-98; II R. 154). Furthermore, Barter denied threatening the defendant. (II R. 126-27, 130). He said he did'tell the defendant that he was “disappointed” and “upset” over the quality of the cocaine first transferred (I R. 28, 96), but he testified that defendant had never acted fearful in all his dealings with the agent. (IV R. 110). Indeed, defendant himself testified that he was “impressed” by Barter and Lamberson when he first met them, and that he had “wanted to make friends with them.” (Ill R. 135-36). As noted, the trial court in its memorandum opinion discussed the general nature of the evidence and found against defendant. The trial judge found that the questioned conduct merely provided “an introduction of the government’s undercover agents as persons ready, willing and able to engage in large volume transactions. Given the defendant’s clear predisposition, that is nothing more than providing a favorable opportunity to commit the offenses.” We cannot say that the court’s findings were clearly erroneous or that there was any error as a matter of law. Government officers can, of course, employ appropriate artifice and deception to ferret out illegal activities. United States v. Gurule, 522 F.2d 20, 23 (10th Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800. Offensive conduct involving threats and coercion could, of course, exceed permissible bounds. Here, however, the conduct by which defendant said he felt threatened was reasonable as being in keeping with the role that Barter had adopted as a purchaser who, as it happened, was cheated on the first delivery of cocaine which proved to be only 9% pure. (I R. 76-77). See United States v. Reynoso-Ulloa, 548 F.2d 1329, 1339 (9th Cir.). Moreover, the informer’s own alleged activities in using and distributing cocaine to others was not sufficiently related to the acts for which defendant was convicted to serve as a bar to this prosecution. See Spivey, supra, 508 F.2d at 149. In sum, we sustain the trial court’s ruling that the case not be dismissed on due process grounds or as an exercise of the court’s supervisory powers. Ill Lastly, defendant claims error in the entrapment instruction given the jury. He says that the definition as to predisposition was erroneous in that a showing of predisposition requires proof not only of a desire to commit a crime in the nature of the offense charged, but also that absent the involvement of the government in the case, the defendant was still likely to actually commit the crime. This latter point was not covered by the charge, and defendant contends that this omission was reversible error. (Brief of Appellant, 51). More specifically, defendant points out that the instruction given was directed solely to whether the defendant was “ready and willing,” or had the “previous intent or purpose,” to commit an offense like that charged. The charge did not focus on the question whether — if the government agents had never known of the defendant’s existence — the defendant would have set in motion events resulting in the unlawful distribution of cocaine. Defendant also notes, inter alia, that there was no evidence of contemporaneous sales of cocaine by defendant to others; that there were no large quantities of drugs or drug paraphernalia in defendant’s possession; that there was no proof that defendant had ever before engaged in the unlawful distribution of cocaine; and that defendant received no monetary profit. Defendant says that in view of these factors the jury could well have concluded, if properly instructed, that despite a desire on his part to distribute cocaine, he was unlikely to do so, absent the agents’ actions. Timely objection was made to the entrapment instruction. We cannot agree with the defendant’s position. We feel that the instruction as given was sufficient and covered the essence of entrapment as outlined in Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 372-73, 78 S.Ct. 819, 2 L.Ed.2d 848, and United States v. Russell, supra, 411 U.S. at 428-29, 93 S.Ct. 1637. See also United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.); United States v. Swets, supra, 563 F.2d at 990; United States v. Gurule, supra, 522 F.2d at 23, 25; United States v. Shaw, 570 F.2d 770 (8th Cir.); United States v. Pena-Ozuna, 511 F.2d 1106 (9th Cir.), cert. denied, 423 U.S. 850, 96 S.Ct. 92, 46 L.Ed.2d 73. Adding a statement such as defendant suggests would seem to saddle the government with a further burden not contemplated by the Supreme Court’s opinions. Defendant’s arguments as to the lack of evidence on certain points are valid factual contentions on the issue of predisposition; however, this question was properly submitted to the jury and decided against defendant and the verdict is not without support in the record. We conclude that no ground for reversal is shown and accordingly the judgment is AFFIRMED. . Defendant was given sentences of two years on each of the three counts, with the sentences on counts two and three to run concurrently with that on count one. It was ordered that defendant serve 90 days of the sentence and that the remainder of the sentence be suspended, and that defendant be placed on probation for four years as to each count, with the period of probation on counts two and three to run concurrently with that on count one. . The defendant also claims that the entrapment instruction was in error. We treat this issue in Part III, infra. . The trial judge rejected a tendered defense instruction on the issue of outrageous conduct. (Supp. I R. 4-5). The court did, however, submit an entrapment instruction. In discussing the entrapment issue in the charge the judge did mention coercion or inducement as an element the jury could consider bearing on whether there was predisposition on the part of the defendant to commit the offense. (Supp. I R. 63, 68). . No claim of error is made as to this evidentiary ruling by the trial judge. . Other courts have likewise noted the continuing availability of the due process defense. See, e. g., United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.); United States v. Graves, 556 F.2d 1319, 1324 (5th Cir.), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516; United States v. Quintana, 508 F.2d 867 (7th Cir.); United States v. Archer, 486 F.2d 670, 676 n.6 (2d Cir.). . Relying on Heath v. United States, 169 F.2d 1007 (10th Cir.), and similar cases, defendant also says there was fatal error in the government’s use of the undercover agents to develop the case because they had no reasonable basis for believing he was engaged in criminal activity when the undercover procedures began. See also Ryles v. United States, 183 F.2d 944 (10th Cir.), cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 637. We have recently rejected this theory and overruled Heath and Ryles in this respect. United States v. Swets, 563 F.2d 989, 991 (10th Cir.). . The instruction on entrapment read, in pertinent part as follows (Supp. I R. 67-68): Now, the defendant asserts that he was a victim of entrapment as to the crime charged in the Indictment. Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law, as a matter of policy, forbids his conviction in such a case. On the other hand, where a person already has the readiness and the willingness to commit an offense, the mere fact that Government agents provide what appears to be a favorable opportunity to do so, is not entrapment. Thus, it is not entrapment for a Government agent merely to pretend to be someone else and to offer to purchase narcotics. If the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in the case, the defendant was ready and willing to commit crimes such as charged in the Indictment whenever opportunity was afforded, and the Government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment. On the other hand, if the evidence in the case should leave you with a reasonable doubt, whether the defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or the persuasion of some officer or agent of the Government directly or indirectly, then it is your duty to acquit him. This instruction substantially followed the standard entrapment instruction in Devitt and Blackmar, Federal Jury Practice and Instructions, § 13.09 (1977).

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

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

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. No. 89-1445. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 15, 1990. Decided Nov. 2, 1990. Rehearing Denied Jan. 11, 1991. Deborah L. Cade, Asst. Atty. Gen., with whom Kenneth O. Eikenberry, Atty. Gen., and Charles F. Secrest, Asst. Atty. Gen., were on the brief, for petitioner. Russell M. Young, Atty., U.S. Dept, of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., E. Donald Elliot, Gen. Counsel, and Earl Salo, Asst. Gen. Counsel, E.P.A., were on the brief, for respondent. Margaret Kane Harrigan, Atty., U.S. Dept, of Justice, also entered an appearance for respondent. Before EDWARDS, D.H. GINSBURG and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge EDWARDS. EDWARDS, Circuit Judge: The petitioner in this case, Washington State Department of Transportation (“WSDOT”), challenges a decision by the Environmental Protection Agency (“EPA”) to include property WSDOT owns on a list of contaminated environmental areas subject to federal cleanup under the “Superfund” program. WSDOT claims that the EPA designated its property as part of a larger, pre-existing Superfund priority site without first affording WSDOT notice and an opportunity to comment. It also claims that the EPA did not follow its own regulations in determining the site’s geographic scope. WSDOT asks this court to require the EPA to remove its property from the Superfund list and to give it an opportunity to comment before any future attempt to redesignate the property as a Superfund site. Because WSDOT had reasonable notice some years ago that its property was potentially affected by the 1983 site listing, and because it failed to seek judicial review within the 90-day limitations period imposed by statute, see 42 U.S.C. § 9613(a) (1988), we deny the petition as untimely. I.Background In 1983, the EPA promulgated a list of areas throughout the United States known to be contaminated by hazardous wastes. Sites included on the so-called National Priorities List (“NPL”) are considered the leading candidates for cleanup financed by the Superfund program. See 42 U.S.C. § 9605(a)(8)(B) (1988). “[T]he modest and limited purposes” of the NPL within the Superfund scheme have been well described in previous cases. See, e.g., Eagle-Picher Industries v. EPA, 759 F.2d 922, 932-33 (D.C.Cir.1985) (“Eagle-Picher II”); Eagle-Picher Industries v. EPA, 759 F.2d 905, 919-21 (D.C.Cir.1985) (“Eagle-Picher I’). It is sufficient to restate here that Congress intended the EPA to employ the NPL as a tool for identifying quickly and inexpensively those sites meriting closer environmental scrutiny. Among the 400-odd locations included on the initial NPL were two portions of Commencement Bay, part of Puget Sound in Washington state. One of those sites, which concerns us here, was listed as “Commencement Bay Nearshore/ Tideflats.” After notice and comment, the NPL was promulgated as a final rule on September 8, 1983. See 48 Fed.Reg 40,-658-73 (1983). In keeping with agency policy, the EPA did not specify any exact geographic boundaries of the Commencement Bay Nearshore/Tideflats site. Background documents concerning the site simply described it as the “Tideflats industrial area,” a stretch of Commencement Bay in Tacoma, Washington, peppered with docks, manufacturing and processing plants and other industrial facilities. Unable to know without further study precisely which of these industrial sources were responsible for the pollution, the EPA conducted investigations of two facilities to confirm its suspicion that shoreline industrial properties were polluting the Bay. These two facilities — a Hooker Chemical Company plant and an ASARCO copper smelter— were evaluated according to criteria embodied in the Hazard Ranking System (“HRS”) and produced scores sufficient to justify NPL listing. Based on these HRS data and on more generalized documentation of pollution in Commencement Bay, the EPA listed the “Nearshore/Tideflats” site on the NPL. WSDOT owns property located some 500 feet from a man-made tributary of Commencement Bay known as City Waterway and about three miles from the Hooker chemical plant. WSDOT acquired the property, which had long been used for a variety of industrial activities, in 1983 in order to construct an urban highway connecter known as the Tacoma Spur. During the course of readying the site for construction in 1984, WSDOT discovered hidden deposits of hazardous waste left from earlier industrial uses. A consultant hired by WSDOT to study contamination at the Tacoma Spur site advised WSDOT that pollution from the property was seeping into the nearby City Waterway through underground channels. WSDOT promptly notified the EPA of its discovery and undertook its own efforts to remove the waste and eliminate the hazard. The EPA, following routine procedure, assigned the location a separate EPA site identification number and, over the next several years, undertook preliminary assessments of the property to determine whether it might qualify as a Superfund cleanup site. In April 1989, the EPA notified WSDOT that its property was considered part of the earlier-announced Commencement Bay Nearshore/Tideflats site and that it was considered a “potentially responsible party” for the costs of cleaning up both its own property and the Bay itself. Three months later, WSDOT brought this action challenging the 1983 designation of the Commencement Bay site. II. Analysis The designation of a hazardous waste site on the NPL is considered rule-making subject to judicial review under 42 U.S.C. § 9613(a) (1988). See Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1517 (D.C.Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1528, 103 L.Ed.2d 833 (1989). That statutory provision requires that “application [for judicial review] ... be made within ninety days from the date of promulgation” of the contested regulation. Since the Commencement Bay listing was promulgated on September 8, 1983, the statutory period for judicial review expired on December 7, 1983. Because WSDOT did not bring this action until July 21, 1989, its challenge is plainly time barred unless it was deprived of reasonable notice that it had an interest in the action. See Recreation Vehicle Indus. Ass’n v. EPA, 653 F.2d 562, 568 (D.C. Cir.1981) (“Before any litigant reasonably can be expected to present a petition for review of an agency rule, he first must be put on fair notice that the rule in question is applicable to him.”). Under established law, the EPA may include specific parcels of land within a NPL site so long as they are within the broad compass of the notice provided by the initial NPL listing. In Eagle-Picher Industries v. EPA, 822 F.2d 132 (D.C.Cir.1987) (“Eagle-Picher III”) (per curiam), this court held that the EPA may alter or expand the boundaries of a NPL site if subsequent study reveals a wider-than-expected scope of contamination. Nor is the EPA required in every instance to assign a separate HRS score to each parcel within a NPL site. See id. at 141-42. WSDOT’s Tacoma Spur property plainly fell within the broad compass of the 1983 Commencement Bay listing. The property is located 500 feet from Tacoma’s City Waterway, a short inlet off Commencement Bay. It lies at the core of a heavy industrial area and was itself long used for industrial purposes. It is just three miles from the Hooker chemical plant and five miles from the ASARCO copper smelter whose HRS scores supported the site’s NPL designation. The nametag assigned the NPL site did not suggest that it was limited to a particular industrial facility, but instead used the name of a broader region, of which WSDOT had reason to know its property could be considered a part. If there was any doubt about the sufficiency of the notice provided WSDOT by the 1983 listing of the Commencement Bay site, that doubt vanished in 1984 when WSDOT’s own consultant advised it that its Tacoma Spur property was contributing to the pollution of City Waterway, which WSDOT acknowledges “is part of Commencement Bay.” Brief for Petitioner at 3. Having reported this matter to the EPA, WSDOT was then — if not before — on notice that its property might be considered part of the Commencement Bay listing. Because WSDOT did not file its petition for judicial review within 90 days of the September 1983 NPL listing — or, if we assume that WSDOT was in need of “actual notice,” within 90 days of its discovery in 1984 that its own property was contaminated and could be polluting nearby Commencement Bay — its petition is untimely under 42 U.S.C. § 9613(a) (1988) and must be denied. III. Conclusion The petition is denied. So ordered. . It is the policy of EPA that it need not specify precise geographic boundaries in designating a NPL site, and that if boundaries are initially defined they may be enlarged later if additional study reveals a wider scope of contamination. See, e.g., Eagle-Picher Industries v. EPA, 822 F.2d 132, 144 n. 59 (D.C.Cir.1987) ("Eagle Picker III ’’) (per curiam). This policy was most recently enunciated in 54 Fed.Reg. 13,298 (1989) ("EPA contemplates that the preliminary description of facility boundaries at the time of scoring will need to be refined and improved as more information is developed as to where the contamination has come to be located”). .The general description of the site provided in EPA documentation connected with the site listing stated: COMMENCEMENT BAY — NEARSHORE/ TIDEFLATS INDUSTRIAL AREA Tacoma, Washington The Commencement Bay — Nearshore/ Tideflats Industrial Area in Tacoma, Washington, includes heavy industry such as aluminum processing, chemical, pulp and paper, and primary metal smelting. Contamination is known to be in the industrial waterways and several land areas in the Tideflats. Problems include arsenic-laden slag and airborne dust, chemical contamination of soil and sediment, and industrial wastes. Hazard Ranking System Worksheet for Commencement Bay Nearshore/Tideflats Site, reprinted in Petitioner’s Appendix 1. .The HRS was reviewed and upheld by this court in Eagle-Picher I, 759 F.2d 905. . See Hart-Crowser & Associates, Soil and Ground Water Quality Evaluation, SR-705 Tacoma Spur 16 (1984) ("Ground water containing contamination from beneath the [Tacoma Spur] project site flows directly to the City Waterway.”), reprinted in part in Respondent’s Appendix 5. . In Eagle-Picher III, a NPL site was expanded from 15 square miles to 115 square miles as the EPA discovered the full extent of contamination. "Standing alone,” the court noted, "the change in the Agency's description of the site’s size does nothing more than indicate the Agency’s acquisition of more accurate information on the scope of the contamination.” 822 F.2d at 144 n. 59. . Also in Eagle-Picher III, the affected property owner objected to the placement of its property on the NPL based partly on inferences drawn from HRS scores derived from neighboring property. This court rejected the petitioner’s claim that its site listing "was based on data improperly borrowed” from another site as "exalt[ing] form over substance.” 822 F.2d at 141. It was sufficient, the court held, that the EPA borrowed HRS data from a closely related neighboring site and corroborated it with observations specific to the non-HRS site. See id. at 142. . We are not persuaded that WSDOT was deprived of notice because it was “misled” by EPA's response to its report of contamination at the Tacoma Spur property. While it is true that WSDOT's report to EPA set in motion a standard bureaucratic response, including the assignment of a new EPA site identification number to the Tacoma Spur property, we remain convinced that WSDOT had ample warning that its property was very likely contributing to the despoliation of Commencement Bay and that it might therefore have an interest in the Commencement Bay NPL site designation.

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?

CITY ELECTRIC, INC., on its own behalf and for behalf of City-Manson-Osberg, a Joint Venture composed of City Electric, Inc., et al., Plaintiffs-Appellees, v. LOCAL UNION 77, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant-Appellant. No. 73-1270. United States Court of Appeals, Ninth Circuit. May 28, 1975. Rehearing Denied July 10, 1975. Certiorari Denied Oct. 14, 1975. See 96 S.Ct. 194. David E. Williams (argued), Richland, Wash., for defendant-appellant. Bruce M. Cross (argued), Seattle, Wash., for plaintiffs-appellees. Honorable J. Edward Lumbard, Senior United States Circuit Judge of the Second Circuit, sitting by designation. OPINION Before LUMBARD, MERRILL and WRIGHT, Circuit Judges. MERRILL, Circuit Judge: This action was brought by appellees to secure a declaratory judgment respecting the effect of an arbitrator’s decision. They contended that the decision was binding as to one determination but that as to a second determination it exceeded the arbitrator’s authority. Appellant Union contended that the decision should be held binding in its entirety or not at all and that the dispute over the effect of the decision should have been resolved through contractual grievance procedures rather than by the district court. The district court agreed with plaintiffs and granted summary judgment. Before dealing with the merits of the appeal from judgment a preliminary matter requires attention. After summary judgment was rendered the Union moved for reconsideration, contending for the first time that plaintiffs had waived any right to resort to court action on the dispute by having agreed to abide by the results of arbitration. The motion when made was without factual support. It was not until nearly a month afte.. it had been filed that an affidavit was tendered in support. The district court denied reconsideration. On the basis of this tardily tendered factual dispute, appellants now contend that summary judgment was premature. We disagree. The motion for reconsideration was directed to the court’s discretion. We do not regard rejection of the issue so tardily tendered as abuse. We turn to the merits of the dispute. Appellee City-Manson-Osberg is a joint venture of which appellee City Electric, Inc. (“the Company”), is managing partner. The Company and appellant Union are parties to a collective bargaining contract governing the wages, hours and working conditions of certain of the Company’s employees. In the fall of 1971 the joint venture was awarded a contract to perform construction work in connection with Grand Coulee Dam. A portion of this work is within the jurisdiction of the Union and covered by the collective bargaining agreement. Article V of the collective bargaining agreement governs the designation of “job headquarters” for a particular project. If the location of work being performed under the agreement can properly be designated a “job headquarters,” the employer is not required to pay the Union workmen for their travel to and from the job site or their board and room costs. “Job headquarters” is defined as “any location within the area of this Agreement which may be designated by the Contractor as headquarters for any job. It shall be at a place where accommodations are sufficient within a 5 mile radius from such Job Headquarters to provide suitable board and lodging for all workmen reporting to such Job Headquarters.” Article V establishes the procedure for resolving a dispute as to whether a construction site can qualify as job headquarters. Prior to the start of any job the issue should, if possible, be resolved by conference between the parties. If they are unable to agree, the issue will be submitted to the Labor-Management Committee; and if the members of that committee cannot agree, the matter is to be referred to arbitration. In this case the joint venture calculated its bid for the work on the assumption that Grand Coulee would be a proper job headquarters and that therefore no travel allowance would have to be paid to Union workmen. The Union, at the pre-job conference, did not agree that Grand Coulee qualified as job headquarters. The Labor-Management Committee could not agree and the matter went to arbitration. The arbitrator ruled that the accommodations at Grand Coulee were sufficient to provide suitable board and lodging for a work force of 22 men. He ruled: “ * * * that Grand Coulee can be accepted as Job Headquarters for this project to which a total of 22 men shall report.” But “[i]f more than 22 men are employed on this project, then the decision rendered is no longer applicable.” It is this portion of the decision that plaintiffs-appellees sought to have declared binding. We agree with the district court that this ruling of the arbitrator was binding. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Union’s dispute respecting job headquarters was based upon its experience with other electrical employers engaged in construction projects at Grand Coulee Dam. All (until this employer) had reached pre-job agreements with the Union that employees would receive at least $10 per day travel allowance. This was a compromise figure between the $16 a day allowable by contract if Grand Coulee were determined not to be job headquarters and the zero amount allowable if it were determined to be job headquarters. Plaintiffs here refused to agree to this compromise and the arbitrator took note of the fact that as a result this employer was out of line with the others. The arbitration decision provided: “It is also the opinion of the arbitrator that, in keeping with common practice and past experience (not ‘past practices’ or ‘established practices’) which should have been known by City Manson Osberg at the time of estimating and bidding on this project, the contractor and the union shall seek to negotiate the matter of an additional amount of daily stipend to the workmen employed on this particular project. As the United States Supreme Court pointed out in a 1960 decision, the arbitrator’s decision is not limited only to the wording of the contract but must take into consideration ‘such factors as the effect upon productivity of a particular result, its consequences to the morale of the shop, his judgment whether tensions will be heightened or diminished.’ While the arbitrator cannot accept— as stated in a previous hearing on Grand Coulee — that $10.00 is an established amount to be paid men who are required to report to Grand Coulee as Job Headquarters, it is his opinion that the fact that men in the same industry, working on similar jobs and under the jurisdiction of the same union as those employed by City Manson Os-berg for this project, are receiving an additional sum creates a situation that requires the attention of the parties involved and which demands consideration. This matter is referred to City Manson Osberg and Union 77, I.B.E.W. for negotiation.” It was this portion of the decision that plaintiffs wished the court to declare void and beyond the authority of the arbitrator. The district court so held. We agree. The arbitrator recognized that the $10 allowance was not pursuant to collective bargaining agreement (or an “established practice”), but was, with the other employers, the subject of an ad hoc modification. His ruling was that the parties should “seek to negotiate the matter.” It is not the function of an arbitrator, under this agreement or traditionally, to decide in .what respects the contract in question should be modified in order to bring it into line with agreements of other employers. Contract modifications are not traditionally matters for arbitration. It is the function of the arbitrator to resolve disputes as to what the contract itself provides — as to what the rights of the parties are under the contract then in force — and it is in that connection that note is to be taken of the factors on which the arbitrator here relied in directing the parties to negotiate the amount of a stipend. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). It is in that connection that we have given broad deference to arbitral decisions based on collective bargaining agreements. We conclude that the decision of the arbitrator respecting the $10 daily allowance was unauthorized and unenforceable. The Union contends that, nevertheless, the Company’s refusal to negotiate pursuant to the arbitrator’s decision furnished the Union with a grievance which properly was processed under the collective bargaining agreement. Section 1.4 of the agreement provides: “Any grievance which may arise between the Union and the Contractor with respect to the interpretation or application of any terms of this Agreement or with respect to such matters as the alleged discriminatory or arbitrary treatment of an individual employee arising out of his employment * * * shall be determined by the following procedure.” When the Company refused to comply with the arbitrator’s direction to negotiate the rate of travel allowance, Local 77 processed its grievance under this section. The Labor-Management Committee was unable to agree that a grievance under § 1.4 was presented and the dispute was taken to the Council on Industrial Relations for the Electrical Contracting Industry (CIR) which noted that the parties “have not negotiated to conclusion on the issue of a daily stipend,” and “suggested” that they continue to negotiate. The district court ruled that since this was not a dispute “with respect to the interpretation or application of any terms of this agreement” under § 1.4 the grievance process of the agreement did not apply and the CIR was without jurisdiction to entertain the dispute. We agree. See Sinclair Refining Co. v. Atkinson, 370 U.S. 238, 241-43, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). Local 77 contends that the dispute involved the construction of Article V. We cannot agree. As we have noted, it did not involve the agreement as it exists but rather the reaching of an ad hoc modification to bring it into line with what had been agreed upon by other employers. Local 77 contends that jurisdiction of the CIR is not limited to the precise language of the agreement. It points to a provision of the “Standing Council Policies” which Local 77 asserts is binding upon all parties: “XIII. INTERPRETATION OF EXISTING CLAUSES SUBMITTED FOR ADJUDICATION (Adopted February, 1959) The Council reserves unto itself the right to change or substitute wording, if deemed advisable by the Council, when existing sections of agreements are submitted to the Council for interpretation as to their application or intent.” In our judgment this must be construed to apply only to changes to make more clear the application or intent of an existing section in accordance with what is found to be the intent of the contracting parties. It cannot include changes that alter the obligations of the parties. By use of the term “wording” the Council has indicated that it is talking not about changes in the substance of the agreement but rather changes in the manner in which the substance of the agreement has been expressed. Here there is no dispute but that the Company had not agreed to a departure from the terms of Article V. It was the Company’s refusal to depart from the terms of the contract that constituted Local 77’s “grievance.” Judgment affirmed. . Jurisdiction was based on § 301 of the National Labor Relations Act as amended, 29 U.S.C. § 185 (1970), and the Declaratory Judgment Act, 28 U.S.C. § 2201 (1970). . See United Steelworkers of America v. Amax Aluminum Mill Prods., Inc., 451 F.2d 740, 741-42 (9th Cir. 1971); Holly Sugar Corp. v. Distillery R. W. & A. Workers Union, 412 F.2d 899, 901-02 (9th Cir. 1969); San Francisco-Oakland Newspaper Guild v. Tribune Pub. Co., 407 F.2d 1327 (9th Cir. 1969); Anaconda Co. v. Great Falls Mill & Smeltermen’s Union No. 16, 402 F.2d 749, 750-51 (9th Cir. 1968).

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"?

William Addison WALKER, Appellant, v. UNITED STATES of America, Appellee. No. 25317. United States Court of Appeals, Fifth Circuit. Oct. 23, 1970. John R. Foster, Del Rio, Tex., for appellant. Ernest Morgan, Seagal V. Wheatley, U. S. Attys., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, for appellee. Before BELL AND SIMPSON, Circuit Judges, and ROBERTS, District Judge. SIMPSON, Circuit Judge:' Walker was convicted below, after a jury trial, under a two-count indictment. The first count charged Walker with receiving, concealing and facilitating transportation and concealment of marijuana in violation of Title 21, U.S.C., Section 176a. The second count was brought under Title 26 U.S.C., Section 4755(a) (1). It charged that Walker imported marijuana without having registered or paid the tax required by Title 26, U.S.C., Sections 4751-4753, inclusive. The appellant was given a five-year sentence as to the first count and a three-year confinement sentence as to the second count, the sentences to run concurrently. This appeal followed. Walker and three other persons, not involved in this appeal, entered the United States from Mexico in an automobile. At the Border Customs Station at the International Bridge in Eagle Pass, Texas, Walker was asked his citizenship and if he had anything to declare at Customs. The appellant stated that he had nothing to declare. A subsequent customs inspection revealed twelve plastic bags of marijuana weighing a total of ten pounds, eleven ounces. Appellant took the stand and was quite candid about his marijuana activities. He admitted purchasing the marijuana in Mexico and importing it into the United States. Walker’s testimony on direct examination consisted of a fourteen page monologue extolling the virtues of marijuana and denouncing the federal laws against its importation. He testified that his intent in crossing the bridge with the marijuana was to test such laws. On appeal, Walker raises the following issues: lack of effective counsel, insufficiency of the evidence, and the alleged unconstitutionality of Title 26, U.S.C., Sec. 4755(a) (1) and Title 21 U.S.C., Sec. 176a. The main thrust of the appellant’s attack on his trial counsel's effectiveness is directed at counsel’s failure to object during the United States Attorney’s reference in closing argument to “detrimental narcotics” and “hippie people”. Often, the decision as to whether or not to object to particular statements made in closing argument is a matter of tactics. Since an objection may tend to emphasize a particular remark to an otherwise oblivious jury, the effect of objection may be more prejudicial than the original remarks of opposing counsel. Williams v. Beto, 5 Cir. 1965, 354 F.2d 698, 705, 706. We find that lack of effective counsel is not shown. The appellant argues that the evidence was insufficient to support a finding of concealment or a finding that any marijuana was imported into the United States. As to the concealment contention, the evidence is abundant. A customs inspector testified that Walker, when asked if he had anything to declare, answered “Nothing”. Walker’s own testimony revealed that the marijuana was wrapped in his clothing and packed in a suitcase. The importation question is likewise without merit. Appellant suggests that he was wrongfully convicted because the customs inspection prevented completion of the importation. A similar theory was rejected in Walden v. United States, 5 Cir. 1969, 417 F.2d 698. The appellant contends that the jury was erroneously instructed that it was entitled to presume importation from the fact Walker had possession of the marijuana. The trial judge paraphrased Title 21 U.S.C., See. 176a, which states in pertinent part: “Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marijuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.” The appellant correctly contends that the above provision is unconstitutional in marijuana cases. Leary v. United States, supra, footnote 1. While such an instruction may be technical error in light of Leary, we find that in the instant case it was harmless. Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Where the evidence clearly demonstrates that the defendant transported marijuana from Mexico to the United States and no reliance was placed upon the presumption, there is no prejudice. Waldon v. United States, supra. Accordingly we affirm the judgment of conviction rendered under Title 21, U.S.C., Sec. 176a. Since concurrent sentences were imposed, this Court in its discretion declines to pass on the validity of the judgment of conviction under Title 26 U.S.C., Section 4755(a) (1). Benton v. Maryland, 1969, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The judgment is Affirmed. . No retroactivity issue is present because appellant’s direct appeal was pending pri- or to the disposition of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. See United States v. Scardino, 5 Cir. 1969, 414 F.2d 925.

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTHEASTERN UNIVERSITY, Respondent. No. 78-1222. United States Court of Appeals, First Circuit. Argued March 14, 1979. Decided June 26, 1979. Richard A. Cohen, Atty., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Marjorie S. Gofreed, Atty., Washington, D. C., were on brief for petitioner. Jerome Medalie, Boston, Mass., with whom Widett, Widett, Slater & Goldman, P. C., Boston, Mass., was on brief for respondent. Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. Of the District of Rhode Island, sitting by designation. COFFIN, Chief Judge. The National Labor Relations Board (hereinafter the Board) petitions for enforcement of its decision and order finding the respondent university in violation of sections 8(a)(1) and 8(a)(2) of the National Labor Relations Act (29 U.S.C. §§ 158(a)(1) & (2)) by denying its employees equal access to university facilities for the purpose of engaging in activities protected under section 7 of the Act (the 8(a)(1) access issue) and by dominating a labor organization (the 8(a)(2) domination issue). We enforce only so much of the Board’s order as relates to the access issue. The facts underlying the two violations are not in substantial dispute. Except as otherwise noted below, we rely upon the factual findings of the administrative law judge, a thorough review of the record having revealed substantial evidence to support his factual findings. The Domination Issue — Section 8(a)(2) The labor organization allegedly dominated by the university is known as the Weekly Staff Cabinet (WSC). It is a representative body consisting of fifteen employees drawn from the ranks of those “staff” (as opposed to professional) employees who are not exempt from the provisions of the wage and hour laws. The category of non-exempt or staff employees includes approximately 600 technicians, secretaries, buildings and ground personnel, and assorted other support staff workers, all of whom receive weekly paychecks. A member of the WSC is elected by his or her particular category of staff workers. Thus, there is one WSC member for each 30 to 40 secretaries, representing the secretaries’ interests. The WSC was formed in November qf 1974 when the Women’s Cabinet, representing secretaries, and the Technician’s Committee decided to merge. The employees formed the idea of creating a unified representational body, and the university gave its blessing. The by-laws of the organization, prepared by the employees, provide that the purposes of the organization are to: promote harmonious working relationships between staff and university; provide for an exchange of information relating to staff problems; sponsor social activities; give the staff employees input into the formation or change of university policy affecting the staff; and provide a mechanism for the staff to propose changes in university practices. As originally drafted in 1974, the by-laws provided for eight members of the cabinet to be elected by the employees and seven members to be appointed by the president of the university from names suggested by the WSC. The appointment power was to be used to insure representation of a cross-section of the types of workers and ethnic groups represented. The president was also empowered to fill mid-term vacancies on the cabinet with candidates suggested by the WSC. In early 1975, the president of the university publicly announced the “establishment” of the WSC by the university, the names of initial members, that by-laws would be drafted by the employees and submitted to him for approval, and that staff employees were encouraged to take their problems and suggestions to the WSC. In February, 1976, an annual election (for the 1976-1977 academic year) was held and the eight elective slots were filled. The president filled the remaining seats with candidates selected by the then-sitting WSC. In February of 1977, realizing that the method of selection of WSC members formed a part of the Board’s case, the WSC chose to hold elections for all open seats. The university apparently acquiesced. Subsequent to the hearing before the ALJ, the by-laws were amended to eliminate any university participation in selection of WSC members. WSC election procedures are managed by the sitting members of the cabinet, with university assistance. The WSC solicits nominations and gives the names of candidates to the university, which prints ballots and distributes them with paychecks. Ballots are returned in the university mails and counted by WSC members not involved in the particular election (e. g., technicians count secretaries’ ballots). The WSC meets monthly during the lunch break in a room provided by the university. A limited number of staff employees are allowed to attend, but they must make a prior appointment due to space limitations. Mass meetings with the staff are not held. The WSC communicates with members of the staff through a monthly newsletter (printed at university expense) and through extensive personal contacts. A network of “contact persons” supplements the work of WSC members. Administration officials generally attend WSC meetings only when invited on the cabinet’s initiative, but on at least one occasion an official requested and was granted an opportunity to appear. WSC members are not docked if a meeting runs over into work time. The WSC has no formal membership (all staff employees not represented by a traditional union are entitled to vote), no dues, and no source of income. Its expenses, including the cost of printing, supplies, and such recreational events as an annual picnic, are covered by the university through an internal charge system with a budget allotment of some $2500. The WSC has not negotiated a formal collective bargaining agreement. It has, however, affected the terms and conditions of staff employment by formally proposing and obtaining university agreement to such matters as increased paid personal leave and improved medical benefits. It has been unsuccessful in more ambitious endeavors to obtain paid up life insurance in fifteen years and a four day work week. Central to the instant controversy is one such- proposal for a 21 per cent across-the-board pay increase. After formally proposing the raise and supporting its request with data available to it, the WSC conferred extensively with the university and settled for a substantially smaller increase and an adjustment in some of the individual pay scales. Shortly after the increase went into effect, members of a secretaries’ organization at Northeastern (the 9 to 5 group) circulated a petition again calling for a 21 percent increase. The ten members of the 9 to 5 organization succeeded in collecting some 200 signatures. The university then refused to accept the petition from the individual secretaries involved, stating that the WSC was the proper vehicle for wage proposals. Members of the 9 to 5 group then met with the WSC, and the latter agreed to forward the petition to the university. The WSC did not, however, endorse the petition as a second formal proposal but rather explained to 9 to 5 members that the university had adequately demonstrated salary parity with comparable institutions in the Boston area. In short, the WSC felt an identical wage proposal should not be pressed again at that time. In addition to the above facts found by the ALJ, we find from uncontroverted testimony in the record that the president has never deviated from WSC recommendations in appointing WSC members. Elimination of the appointment system was made feasible by increased participation by all categories of employees in the WSC elections. Nevertheless, only 210 out of a possible 600 employees voted in the February, 1977, election. This limited participation does not, however, support an inference of interest in more traditional forms of union organization. Various segments of the staff have rejected traditional unions in Board-sponsored elections both before and after formation of the WSC. In a recent AFL-CIO poll, only 35 out of 325 workers polled expressed any interest in a union. The university police voted in a traditional union in a 1973 election consented to by the university. The university negotiated in good faith with the union, but the police voted it out the following year. Custodians at the university are represented by a traditional union which has negotiated a collective bargaining agreement with the university. No rival labor organization, traditional or otherwise, is waiting in the wings to replace the WSC. The ALJ expressly found that if the WSC is disestablished, the employees will have no representation at all. Based on all of the foregoing, the AU concluded that “[ojverwhelming facts need no elaborate analysis.” Citing only the existence of the power to appoint WSC members, “regardless of whether that power is presently being asserted”, and the university’s statement that it had “established” the WSC, the ALJ concluded that the WSC is as much a creature of the university as the administration’s executive committee and is therefore a dominated labor organization. With great reluctance, the ALJ then imposed the only remedy allowed by the Board in domination cases, complete disestablishment of the WSC. The Board adopted the ALJ’s findings and proposed order without comment. Reexamination of the Legal Standard It is clear that both the Board and the ALJ, in resting the finding of domination on the potential for domination, consciously refused to follow the precedents in this circuit, which require evidence of actual domination. This has caused us to reexamme those*precedents to see whether they were ill considered or adventitious and whether, if not when decided, circumstances have so changed as to make ancient good uncouth. Neither kind of reexamination persuades us to abandon our standard. In the first place, our precedents not only range back over two decades but consist of a considerable battery of four cases, two presenting fact patterns we have held to be on the permissible cooperation side of the line and two which we .held to amount to impermissible domination. They represent, we think, a deliberate and consistent approach over the years. The first two cases, Coppus Engineering Corp. v. NLRB, 240 F.2d 564 (1st Cir. 1957) and NLRB v. Prince Macaroni Mfg. Co., 329 F.2d 803 (1st Cir. 1964), illustrated much of the same kind of facilitating arrangements on the part of the employer as are found in this case — allowing use of company space for meetings, payment of shop committee members for meeting time (including time and a half for overtime meetings in Coppus), bearing the cost of elections; and exhibited the same hallmarks of ineffectiveness — no collective bargaining agreement or effort to obtain one, no mass meetings, no dues. In each case the employer had suggested creation of the shop committee. In Coppus we adopted the requirement of actual evidence of domination of Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d 165 (7th Cir. 1955), and found none. Chief Judge Magruder, in a concurring opinion, recognized fully that the Shop Committee may have been “a feeble instrument”, 240 F.2d at 573, but that it was “not the duty of the employer nor a function of the Board to ‘baby’ along the employees in the direction of choosing an outside union.” Id. at 574. Prince reached the same conclusion even though the Employees’ Committee met only with management and the president of the company resolved any matters at impasse. Our subsequent cases, in which we upheld Board findings of domination, were NLRB v. Dennison Mfg. Co., 419 F.2d 1080 (1st Cir. 1969) and NLRB v. Reed Rolled Thread Die Co., 432 F.2d 70 (1st Cir. 1970). In the former a 50 year old committee had been found to be closer to management, rarely disagreeing with it; in the latter, the plant committee, consisting of the president, general manager, and seven employees, considered only such items as the president put on the agenda. The company’s response to employee suggestions was one of “bland unilateralism”. Id. at 71. This collection of precedents, recognizing some room for management-employee cooperation short of domination, looking to the subjective realities of domination of employee will and not just the objective potentialities of organizational structure seems also in harmony with the approach in other circuits. See Hertzka & Knowles v. NLRB, 503 F.2d 625 (9th Cir. 1974), cert. denied, 423 U.S. 875, 96 S.Ct. 144, 46 L.Ed.2d 106 (1975); NLRB v. Wemyss, 212 F.2d 465 (9th Cir. 1954); Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d 165 (7th Cir. 1955); NLRB v. Post Publication Co., 311 F.2d 565 (7th Cir. 1962); Modern Plastics Corp. v. NLRB, 379 F.2d 201 (6th Cir. 1967); NLRB v. Keller Ladders Southern, Inc., 405 F.2d 663 (5th Cir. 1968). We therefore see no reason, in terms of internal coherence or divergence from the mainstream of authority, to abandon our customary standard. Indeed, we might add that, if anything, changing conditions in the labor-management field seem to have strengthened the case for providing room for cooperative employer-employee arrangements as alternatives to the traditional adversary model. See Note, New Standards for Domination and Support Under Section 8(a)(2), 82 Yale L.J. 510 (1973). We would add that if it is appropriate in any sphere to countenance other than an adversary model of labor relations, a university setting would seem to be most appropriate. Id. at 522-23. Application of the Standard Ordinarily, having found that the Board and ALJ applied the wrong standard, i. e., potential rather than actual domination, we would remand. But because of the careful job done by the ALJ in developing the facts and making critical findings, we think our task is no less clear than it was in Coppus and Prince. We proceed to examine the record' to see whether this case belongs on the Coppus-Prince side of the line or on the Reed-Dennison side. In arguing this appeal the Board stresses the factual indicia that distinguish the WSC from a traditional labor organization. We have already discussed our cases standing for the proposition that merely facilitating the operations of a labor organization — allowing meetings on company property and company time, assisting with election procedures, providing printing and secretarial services, and funding occasional social activities — does not a domination case make. Similarly, our cases establish that an organization is not per se dominated simply because it has no formal membership, no dues, no mass meetings, and no written collective bargaining agreement. We add that tijgJBoardls-^ittempLio infer the existence subtle domination” from management attendance at some meetings and consultation with management by individual members of the WSC does not sway us. In many of the cases cited above, management regularly attended or was even a formal part of the meetings of the labor organization under attack. See Prince Macaroni, supra; Hertzka & Knowles, supra. In this case, the ALJ found that management attended WSC meetings only upon invitation from the employees. Moreover, the record reveals that when management representatives attended WSC meetings they were subjected to extensive grilling about the university’s position on subjects of collective bargaining and were induced to provide information needed by the WSC. The record does not support the Board’s suggestion that any private conferences that may have taken place (none were established before the ALJ) were more collusive than constructive. Finally, the Board’s reliance on the university’s announcement that it had “established” the WSC as evidence of domination is misplaced for two reasons. First, the ALJ made an express finding that the employees, and not the university were the impetus behind the formation of the WSC. Second, as noted in the cases cited above, there is nothing per se unlawful about an employer encouraging his employees to arrange a collective means of expression. Many of these characteristics of the WSC may serve to weaken its bargaining strength as a labor organization. Some of the problem areas appear to have been improving with time. As for those weakening factors that remain,-they reflect-em; ployee choice of structure and practice, choices that do not suffice to support a finding of employer domination. See Prince Macaroni, supra, 240 F.2d at 572; Hertzka v. Knowles, supra, 503 F.2d at 629-30. There remains to be considered the most serious evidence that employee free choice may not be reflected in the structure and operation of the WSC: the president’s appointment power. As noted above, the ALJ’s opinion finds domination in the potential power to appoint, regardless of its exercise. This focus upon potential power is duplicated in the ALJ’s statement of his view of the case at oral argument at the close of the hearing. Because this focus is clearly wrong, we must determine whether the record supports a finding of actual domination in the existence and use of the power. Notably, in the very discourse in which the ALJ found the potential power to dominate to be dispositive, he stated: “I do not think that [General Counsel] has proved that [the WSC is] a dominated labor organization on the ground that he has shown that it is ineffective or has misacted in relationship to the 9 to 5 group. As a matter of fact, the way I see this issue I don’t think I even have to come to that, but if I were to come to that, I would find that on the contrary, this record establishes that the Weekly Staff Cabinet is an effective labor organization in the realm of labor relations at Northeastern University.” As in his formal opinion, the ALJ went on to state that the mere existence of an unexer-cised power in the by-laws to appoint members of the WSC established legal domination. We think the ALJ’s conclusion that the WSC is an effective labor organization is fully supported by the record. To a very large degree, this finding of effectiveness implies that any appointing that may have taken place in the early days of the cabinet did not affect the WSC’s ability to adequately represent employees. To the extent that a finding of effectiveness does not resolve the question of possible actual domination, we note the appointment power was never used to name management’s favorite but rather was uniformly used to rubber stamp the WSC’s selection. Moreover, most of those selected by the WSC had demonstrated employee support by winning votes in an election. Finally, we are. not convinced that even formal management minority participation on a shop committee is illegal, so long as such representation reflects the employees’ free choice. See Hertzka & Knowles, supra (permissible for employees of architectural firm to establish representative committee on which a partner is permanent member with voting rights); Prince Macaroni, supra (permissible for shop committee to hold all meetings with management actively present). We conclude that the record does not demonstrate actual domination of the WSC. The Access Issue — Section 8(a)(1) The Board found that the university violated section 8(a)(1) of the Act by refusing the request of members of the 9 to 5 group to use a room in the Ell Student Center because the group intended to discuss wages and conditions of employment. There is little dispute about the facts. The Ell Student Center is available to all members of the university community provided that the function for which a room is needed is sponsored by a recognized university group. Nonstudent groups must be sponsored by a member of the university hierarchy, and the reservation form for the room must be countersigned by the sponsoring official. Such groups as the Northeastern Library Support Staff Association, a professional association, and the American Association of University Professors commonly meet in the Ell Student Center. Members of the 9 to 5 organization, however, were unsuccessful in their attempts to reserve a room since they lacked a sponsor. After several reservation applications had been rejected, members of the 9 to 5 group met with Dean LaTorre and Vice President Curry to find out why. The university offi-ríais explained the reservation system and explained that they would not sponsor a 9 to 5 meeting. In the course of the conversation, Curry referred to 9 to 5 as a “budding labor organization.” He later revealed that this characterization and his reticence to allow a 9 to 5 meeting were based upon advice of counsel admonishing the university to avoid acts that could be interpreted as recognition of the group. The meeting then turned to the goals of 9 to 5 and the business that the employees wished to discuss at the meeting. Finally, Curry offered to act as sponsor himself if the employees wanted to meet as individuals and not as the Northeastern University Chapter of 9 to 5. One of the employees asked what would happen if, once the group had obtained a room with Curry’s sponsorship, their meeting covered the same business as if they were meeting in the name of 9 to 5, i. e., improving the wages, hours, and working conditions of respondent’s office workers. LaTorre responded, “That would be a subterfuge.” The meeting then broke up. Relying on Trustees of Columbia University, 225 N.L.R.B. No. 9 (1976), the Board held that the university had violated section 8(a)(1) by denying use of a room otherwise available to employee organizations solely because the employees wished to engage in activity protected by section 7 of the Act. Respondent now challenges this ruling by attacking both the facts set forth in the preceding paragraph and by alleging it has fulfilled any duty it owed the 9 to 5 group by providing alternate facilities. The factual issue before the ALJ was a close one and involved a resolution of narrow differences in testimony. Respondent’s version of the “subterfuge” comment is that LaTorre and Curry objected only to the use of the name of an outside organization, not to the discussion of conditions of employment. The charging parties claim that both 9 to 5 and its goals were the subject of the university’s discrimination. The issue was squarely framed before the ALJ, and he believed the complaining employees’ version. We will not upset an ALJ’s resolution of a close credibility issue. E. g., NLRB v. Matouk Industries, Inc., 582 F. 2d 125 (1st Cir. 1978). Given that the university was refusing access normally available to employees because the employees wished to engage in protected activity, we have little trouble approving the finding of an 8(a)(1) violation. Respondent’s complaints that the 9 to 5 group had for years used the Womens’ Center in the Ell Building (different from the Ell Student Center) for weekly lunches are of no avail. The employees sought to make use of a larger facility available for virtually any reason and respondent denied access because it objected to use for a protected reason. Such is clearly discrimination on account of exercise of protected activity. Indeed, in view of the fact that other labor organizations were allowed to use the Center, we find it difficult to understand respondent’s proffered justifications for denying access to a particular group desiring to discuss terms and conditions of employment. Trustees of Columbia University, supra, is squarely in point. Accordingly, that portion of the Board’s order requiring access to the Ell Student Center on an equal nondiscriminatory basis with other employee groups for purposes of engaging in protected activities will be enforced. Enforced in part, enforcement denied in part. No costs. . The statute provides: “(a) It shall be unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it . . .." . The record does not reveal, and the ALJ did not find, the number of initial members who were elected or appointed. The ALJ did conclude that some employees who had not run for the WSC were appointed. . There is no evidence in the record that submitting the by-laws for approval was necessary under any rules governing the WSC. Nor was there any evidence that subsequent amendments have involved university approval. There was uncontroverted testimony that consultation with the university during the formation of the WSC was considered a matter of courtesy and a “mere formality”. . The ALJ, near the close of proceedings before him, made clear his awareness of our leading case, Coppus Engineering Corp. v. NLRB, 240 F.2d 564 (1st Cir. 1957), and indicated how he would distinguish it “if the Board’s attitude towards the First Circuit decision in Copus [sic] Engineering were such as to permit me as a Board Administrative Law Judge to be bound by the Copus decision in the First Circuit.” His purported distinction, consistent with his formal ruling, was that the WSC “is legally dominated because . . . the administration has the potential power to name members to [it].” (Emphasis supplied.) . We recognize that early cases dealing with employer-formed labor organizations that predated the NLRA are quite abrupt in their application of section 8(a)(2). See, e.g., NLRB v. Newport News Co., 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219 (1939); Bethlehem Shipbuilding Corp. v. NLRB, 114 F.2d 930 (1st Cir. 1940). The possibility of extensive cooperation between an employer and an effective labor organization was not seriously considered when dealing with long standing, pervasively powerful company unions. We think such cases distinguishable on their facts. As the above-cited cases demonstrate, they have not been disposi-tive in the past in situations that do not share the same historical context of domination. Indeed, even Bethlehem Shipbuilding left open the question of the proper treatment of a labor organization dominated in only a “technical” sense, 114 F.2d at 941. . For instance, prior to and independent of the instant proceeding, the WSC took steps to improve communication with the rank and file by soliciting grievances and by publishing self-criticisms in the newsletter. . We note in passing that a common sense solution to the problem, abolition of the power, would not suffice given the present state of the law. As part and parcel of a long-standing policy against shop committees (see NLRB v. Walton Mfg. Co., 289 F.2d 177, 182 (5th Cir. 1961) (Wisdom, J., dissenting)), the Board applies the theory that once domination has been shown, no remedy short of complete disestablishment can ever be adequate. Such is the Board’s position even when the offending practice has been cured prior to the hearing in the case. Thus, we cannot rely on the abolition of the appointment power by the WSC nor fault the Board’s refusal to consider the amendment to the by-laws without addressing the complex issue of the Board’s choice of remedies. Because the Board’s discretion in fashioning remedies is extremely broad (see Bethlehem Shipbuilding, supra ), we decline to consider at this time the propriety of the Board’s remedial policy. . We think it important to note that our holding does not irrevocably enshrine the WSC as an employee representative body at Northeastern University. First, it is only because the ALJ found the WSC is presently an effective organization that we can resolve the factual question of actual domination. Should the WSC fail in its task of expressing employee free choice or should the university utilize the WSC as a tool of an impermissible intent to hinder the free exercise of section 7 rights, the Board is free to act under section 8(a)(2). Perhaps more important, the Board is free to challenge those forms of support and assistance it considers illegal in the way the WSC functions. See, e.g., Duquesne University, 198 N.L.R.B. No. 117, 1972 N.L.R.B. Dec. ¶ 24514. Domination and support/assistance are two distinct violations. NLRB v. Dennison Mfg. Co., supra, 419 F.2d at 1082. Although we do not decide the issue, the Board may be free to consider the more limited assistance issues not raised in this proceeding. Finally, and most important, any time that 30% of the employees decide that the WSC does not reflect their free choice, they are free to obtain the Board’s assistance in throwing the organization out. . Notably, 9 to 5 expressly disavows the status of a labor organization under section 2(5) of the Act, and the ALJ found that the group is not a labor organization for the purposes of this proceeding.

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?

HOPKINS v. McCLURE. No. 3060. Circuit Court of Appeals, Tenth Circuit. March 10, 1945. George Bingaman, of Purcell, Okl., for appellant. Ram Morrison, of Oklahoma City, Okl., for appellee. Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges. MURRAH, Circuit Judge. This appeal challenges the 'judgment of the United States District Court for the Eastern District of Oklahoma, which ordered payment of an alimony judgment out of funds realized from condemnation proceedings, and held in the registry of the court for distribution to the owners of .the land taken. On September 26, 1942, the United States Government, acting by and through its Special Attorney Curtis P. Harris, and under authority of the Second War Powers Act, 1942, 56 Stat. 177, 50 U.S.C.A.Appendix, § 632, filed condemnation proceedings against a tract of land in Qeveland County, Oklahoma, allegedly owned by Ruth Idell Hopkins, appellant here, her father E. E. Hopkins (also known as Ernest E. Hopkins), J. W. Hopkins and H. C. Freeney. Pursuant to notice to all interested parties, the trial court on December 15, 1942, tried the title to the tract of land and adjudged “a life estate to Ruth Idell Hopkins, subject to the occupancy rights of Ernest E. Hopkins, remainder in Ernest. E. Hopkins or his heirs,” and on the same date appellant appearing by and through her attorney of record, filed a demand for jury trial on the, fair cash market value of the lands taken by the Government. On the trial of the case the jury fixed the value of the land “belonging to E. E. Hopkins and Ruth Idell Hopkins” at $2,800, and on the same date the court entered judgment bn the verdict reciting that the fair, cash market value of the land owned by “Ruth Idell Hopkins, in full fee simple title” was $2,800.' On October 15, 1943, Clay McQure (formerly Mrs. E. E. Hopkins, and appellee here), with permission of the court, filed a petition in intervention in the condemnation proceedings alleging that on August 12, 1943, she had been granted a divorce from E. E. Hopkins in the District Court of Oklahoma County,, and a judgment of $1,872.50, as alimony and attorney’s fee. The petition sought to enforce a first and prior lien against the interest of E. E. Hopkins in the fund held by the Court Clerk under the condemnation judgment, on the grounds that the alimony judgment by its terms granted her a first and prior lien against the property of E. E. Hopkins. It was specifically alleged that E. E. Hopkins owned an interest in the real estate involved in the condemnation proceedings, having a value in excess of $2,000, and .that he was entitled to receive as just compensation for his interest in the land taken, a sum of money in excess of $2,000. When the matter came on for hearing on October 25, 1943, neither Ruth Idell Hopkins nor her father, E. E. Hopkins, appeared and the court found .that they had been notified of the hearing, and adjudged them in default. Judgment was entered decreeing that E. E. Hopkins owned an “estate” in the land involved and that the alimony judgment was a first and prior lien against that interest, as represented by the condemnation fund. Accordingly, it ordered the Clerk to satisfy the judgment lien out of the $2,800 fund by issuing his voucher to Clay McQure in the sum of $1,872.50. On the following November 27, appellant, Ruth Idell Hopkins, moved to vacate the order allowing the petition in intervention and to strike the same, on the grounds that neither she nor her attorney had notice of the motion for leave to intervene, nor was either of them served or furnished with a copy of the said petition; that the leave to intervene was granted upon an ex parte hearing without notice to, or knowledge of, appellant or her attorney of record, and that the petition should be stricken on the further grounds that upon its face Clay McClure could not have any lien or claim against the condemnation fund. On the same date the appellant moved to vacate the default judgment, alleging that “by the fraud of Clay McClure and her attorney, Curtis P. Harris” she did not receive notice of the hearing and was thereby prevented from appearing on October 25, 1943, when the default judgment was entered. She alleged that the land condemned by the Government, and represented by the condemnation fund, was a part of the homestead allotment, owned and occupied by her mother, a member of the Choctaw-Chickasaw Tribe of Indians, until shortly prior to her death in 1939, when she deeded the said land to her husband E. E. Hopkins in trust for appellant as a gift from the mother to her minor daughter. That she was at the time of the institution of the condemnation proceedings, and has ever since been, the owner of the fee simple title to the land condemned, and as such entitled to the just compensation for its taking. That E. E. Hopkins had never at any time during the pendency of the proceedings claimed or asserted any right, title or interest in or to the property or to the condemnation fund, and had no interest therein against which a judgment lien could attach. After a full hearing conducted on January 17, 1944, and in pursuance of a memorandum opinion filed the following May 20, the trial court on June 5, 1944, by formal order, denied the motion to vacate and this appeal is from that order and not the default judgment. On appeal, appellant challenges: (1) the validity of the court’s order of October 15, 1943, allowing the appellee to intervene m the condemnation proceedings; (2) the validity of the order of December 15, 1942, fixing title to the lands taken, contending that the judgment of September 21, 1943, on the jury verdict was conclusive of that issue; (3) the payment of $1,872.50, out of funds on deposit in the registry of the court to Clay McClure, as void for the reason that the court did not ascertain the value of the estate if any, owned by E. E. Hopkins in the land condemned, as represented by the $2,800 in the registry of the court; and (4) the default judgment of October 25, 1943, as void on the grounds that it was obtained by fraud of the intervenor and her attorney. All of the points relied upon and complained of directly attack the validity of the default judgment of October 25, 1943. An aggrieved party may prosecute a timely appeal from a default judgment, but the distinct and positive averments in the complaint, upon which the judgment is rendered, are conclusively binding upon the appellant, and insofar as the judgment conforms to the complaint, it is unassailable on appeal. Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105; Ohio Central Railroad Company v. Central Trust Co., 133 U.S. 83, 10 S.Ct. 235, 33 L.Ed. 561; City of Winter Haven Florida v. Gillespie, 5 Cir., 84 F.2d 285; Freeman on Judgments, Section 1298, p. 693. But as wc have seen, this appeal is not from the default judgment and ordinarily an order denying a motion to vacate a default judgment is not a final and appealable order within .the meaning of 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a). Taylor v. United States, 10 Cir., 145 F.2d 641; State Tax Commission of Utah v. United States, 10 Cir., 136 F.2d 903; Crutcher v. Joyce, 10 Cir., 134 F.2d 909; Glinski v. United States, 7 Cir., 93 F.2d 418. However, where as here the motion to vacate attacks the judgment for lack of service on the movant or for fraud in its procurement, it may be treated as an independent action, a judgment on which is final, hence appealable. Taylor v. United States, supra; Stevirmac Oil & Gas Company v. Ditman, 245 U.S. 210, 38 S.Ct. 116, 62 L.Ed. 248; State Tax Commission of Utah v. United States, supra; Jackson v. Heiser, 9 Cir., 111 F.2d 310; Glinski v. United States, supra. In cases where the appeal is from the order denying the motion to vacate, the scope of the appeal is, of course, confined to the points complained of in ithe motion and to the order of the court from which the appeal is taken. In other words, the appellant may not complain on appeal of that which she did not complain in the motion to vacate. However, the motion to vacate the order allowing the intervention and to strike the petition in intervention was filed simultaneously with the motion to vacate the default judgment. The trial court apparently considered the .two pleadings together in disposing of the motion to vacate and we shall do likewise for .the purposes of this appeal. The declaration of taking; the deposit of the estimated just compensation in the registry of the court; the fixing of title (Second War Powers Act, Í942, 56 Stat. 177, 50 U.S.C.A.Appendix, § 632, and 40 U.S.C.A. § 258a) ; the determination of just compensation in accordance with state procedure (66 O.S.A. §§ 53 to 60 inclusive) as directed by Federal law (36 Stat. 1167, 40 U.S.C.A. § 258), and the ultimate distribution of the just compensation to those determined to be legally entitled thereto is one continuous integrated process of litigation. See Catlin v. United States, 65 S.Ct. 631; United States v. 17,280 Acres of Land, etc., D.C., 47 F.Supp. 267. And the allowance'of an intervention by one who claims an interest in the condemnation fund or who will be adversely affected by its distribution is only one of the steps in the attainment of the ultimate objective of the litigation. Cf. United States v. 1,830.62 Acres of Land, etc., D.C., 51 F.Supp. 158. The petition in intervention claimed a lien against the undistributed condemnation fund in the registry of the court and the court was specifically authorized to make “just and equitable” orders in respect to asserted liens and other charges. 40 U.S. C.A. § 258a. It follows that the court had jurisdiction of the subject matter and of the parties and was authorized to decide the issues raised in the petition in intervention. Whether, therefore, the allowance of (the petition in intervention is governed by state or by Federal procedural requirements, Jhe action of the court thereon was not erroneous. Shores v. Hendy Realization, 9 Cir., 133 F.2d 738; Miami County Nat. Bank of Paola, Kansas v. Bancroft, 10 Cir., 121 F.2d 921; Simms v. Andrews, 10 Cir., 118 F.2d 803; Morton v. Baker, 183 Okl. 406, 82 P.2d 998. Cf. Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 665, 61 S.Ct. 666, 85 L.Ed. 975. In denying the motion to vacate, the trial court specifically found that the attorney for the intervenor mailed a copy of the intervening petition to the attorney for the appellant and discussed the matter with him personally, and that due notice of the hearing on the petition in intervention was also given to the attorney of record. This finding is based upon sharply conflicting evidence, and it is conclusively binding here. Moreover, the appellant has not challenged it on appeal. It follows for the purpose of this appeal that the appellant did have Notice of the hearing on the petition in intervention, pursuant to which the default judgment was entered, and that she was not precluded from appearing through the fraud of the interven- or or her attorney. In its memorandum opinion the court further considered and decided the question whether the alimony judgment constituted a valid lien against the interest of E. E. Hopkins in the condemnation fund, and based upon Oklahoma law (Gardenhire v. Gardenhire, 2 Okl. 484, 37 P. 813), held that the said judgment did constitute a lien against all of Hopkins’ property, including his interest in the condemnation fund. The contention in the motion to vacate, and on appeal, to the effect that Hopkins had no interest in the land, hence no interest in the condemnation fund, and that in any event the trial court was powerless to satisfy a judgment out of the joint funds without first judicially ascertaining the value of the interest of the judgment creditor therein, is met by the distinct and positive allegations in the petition of intervention to the effect that Hopkins owned an interest in the land having a value in excess of $2,000. Had the appeal been prosecuted from the default judgment these untraversed allegations would be conclusively binding upon appeal here and they would support the judgment of the court. Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105; Ohio Central R. Co. v. Central Trust Co., 133 U.S. 83, 10 S.Ct. 235, 33 L.Ed. 561; City of Winter Haven, Florida v. Gillespie, 5 Cir., 84 F.2d 285; Freeman on Judgments, Sec. 1298, p. 693. We think they are for the same reason equally binding and unassailable, when as here, the appeal is from an order denying the motion to vacate the otherwise invulnerable default judgment. We therefore conclude that the judgment must stand. The motion to vacate the judgment did not complain of the trial court’s failure to separately value the interest of E. E. Hopkins in the land or fund, but it did specifically deny that Hopkins had any interest whatsoever in the condemned land and we think that averment is sufficiently broad to reach the point on appeal from the order denying the motion to vacate.

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?

Marc D. LEH, individually, and The Progress Company, a co-partnership comprised of Marc D. Leh and David Brown, co-partners, Appellants, v. GENERAL PETROLEUM CORPORATION, a corporation, Standard Oil Company of California, a corporation, Texaco, Inc., a corporation, Richfield Oil Corporation, a corporation, Union Oil Company of California, a corporation, Tidewater Oil Company, a corporation, Appellees. No. 18333. United States Court of Appeals Ninth Circuit. April 2, 1964. Richard D. Harris, Los Angeles, Cal., for appellants. Paul E. Bermingham, New York City, Arthur Kelly Howard Painter Los Angel Cal., for appellee General Petroleum Corp ^, T w.„. „,, Francis R. Kirkham, William E. Mussman, Thomas E. Haven and H. Helmut Eorm^ San Francisco, Cal., for appellee Standard Oil Co. of Cal. Charles E. Beardsley, Los Angeles, Cal., and George W. Jansen, New York City, for appellee Texaco Inc. William J. DeMartini, Los Angeles, Cal., for appellee Richfield Oil Corp. Moses Lasky and Richard Haas, San Francisco, Cal., for appellee Union Oil Co. of Cal. Edmund D. Buckley and Wayne H. Knight, Los Angeles, Cal., for appellee Tidewater Oil Co. Before BARNES and JERTBERG, Circuit Judges, and BURKE, District Judge. BARNES, Circuit Judge. This is an appeal from a judgment of dismissal below, upon the sole ground the statute of limitations had run against The Progress Company on its cause of action against appellees, filed September 28, 1956. The action was for treble damages under Section 4 of the Clayton Act (15 U.S.C. § 15), arising from the alleged violation of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2). Jurisdiction below rested on Section 1337 of Title 28 United States Code, and rests here on Sections 1291 and 1294(1) of Title 28 United States Code. It is conceded by appellants that their cause of action accrued no later than February 1954, and that the applicable statute of limitations began to run at that time. The question before us is first: What is the applicable statute of limitations? And, second: Whether (if the one year statute Cal.Code Civ.P. § 340(1) is applicable, rather than the three year statute Cal.Code Civ.P. § 338(1)) it was tolled or suspended under § 5 of the Clayton Act (15 U.S.C. § 16, as amended, 15 U.S.C. § 16(b), 1955) by a similar proceeding “instituted by the United States.” The alleged similar proceeding was United States v. Standard Oil Co., et al., Civil No. 11584-C, heretofore pending in the United States District Court for the Southern District of California (the same district from which this case arose, although the cases were assigned to and tried by different judges). Seven specifications of error raise the above primary questions. They need not here be quoted in full. The appellees likewise raise two separate defenses, which need not here be considered in view of our subsequent primary conclusions. It is further conceded by both parties that the four year federal limitations period with respect to private causes of action under the antitrust laws is inapplicable to a cause accruing in 1954; and that resort must be had to state law. (Steiner v. 20th Century-Fox Film Corp., 9 Cir. 1956, 232 F.2d 190, 194 ) The difficulty with the “solution” of “looking to state laws” is that there the problem starts. I This action is one where much can be said on both sides. Where a strong diversity of judicial opinion exists, and we attempt to prognosticate (as all other federal courts must who face the problem) the result at which a state court would arrive, we find many gray areas. Are we to consider what our opinion might be, based on an original solution of the problem, or are we to consider the trial court’s conclusion and opinion, and determine only whether it is clearly erroneous? We conclude the latter is the proper measuring stick, and under it, after some soul searching, we affirm the district court. We are reminded of what Judge Wyzanski said so frankly to a jury in a private treble damage antitrust action (Cape Cod Food Products v. National Cranberry Association, D.Mass.1954, 119 F.Supp. 900, 910) speaking of damages, “You can’t go to a book and look for the answer.” The California Code of Civil Procedure §§ 335 and 338(1) read as follows (in pertinent part): “§ 335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows * * * “§ 338. * * * “Within three years: “1. An action upon a liability created by statute, other than a penalty or forfeiture.” California Code of Civil Procedure, § 340(1) reads as follows (in pertinent part): “§ 340. * * * “Within one year: “1. Statutory penalty or forfeiture. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the State, except when the statute imposing it prescribes a different limitation; -x -x -x» Is the action based upon a statutory penalty or forfeiture, or is it an action based upon a liability created by statute other than a penalty or forfeiture? In considering this question, it is our problem, as it was that of the court below, to determine not what we would rule were it a case of first impression before us, but which of said statutes a California court would apply if it had jurisdiction of this case. Hall v. Copco Pacific, Ltd., 9 Cir., 1955, 224 F.2d 884. Appellants have five prongs to their spear in their attack on the one year penal statute interpretation. We discuss each of appellants’ contentions in turn. (A) Appellants suggest that “at least one California trial court has construed the action as compensatory rather than penal.” This decision is unreported, but what purports to be a certified copy of a “Memorandum and Order on Demurrers and Motions to Strike” is attached to appellants’ opening brief as an appendix. It is from the Superior Court of the State of California in and for the County of Fresno, No. 97179, and is entitled “Charles S. Ehrhorn, d.b.a. Navy Gas Co., Plaintiff, vs. Caminol Company, et al, Defendants.” The trial judge in Ehrhorn v. Caminol Co., supra, first sustains certain general and special demurrers, and grants leave to amend. He likewise states: “The Court is of the opinion that the three year statute of limitations applies.” This is a state action based on the Cartwright Act, a state antitrust statute. No reasons are given for the holding; and no authority is cited. We do not know what the precise issue was, raised by the pleadings then before the trial judge, or whether he was merely delivering “an advisory opinion” to aid counsel for plaintiffs therein in drafting his required new complaint. We think it of some, but little, precedential value. We adopt in this connection a portion of appellees’ argument, appearing in their opening brief: “[A] decision of the Superior Court at an intermediate stage of the case is binding on no one, Stevens v. Key-Resistor Corp. (1960) 186 C.A.2d 325, 8 Cal.Rptr. 908; Carley v. City of Santa Rosa (1957) 154 C.A.2d 214, 315 P.2d 905; Curnutt v. Holk (1962) 203 A.C.A. 6 [203 C.A.2d 6, 21 Cal.Rptr. 224]; Phillips v. Phillips (1953) 41 Cal.2d 869, 874, 264 P.2d 926; Grable v. Citizens Nat. Trust & Sav. Bank (1958) 164 C.A. 2d 710, 331 P.2d 103, and even a final decision is not binding on any other superior court. People v. Cowles (1956) 142 C.A.2d [Supp.] 865, 298 P.2d 732; see generally Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [20 Cal.Rptr. 321] 369 P.2d 937. Superior Court opinions are rarely reported in California and there is no digest of points decided in such opinions. It is precisely for this reason that King v. Order of [United Commercial] Travelers (1948) 333 U.S. 153, 161-162 [68 S.Ct. 488, 92 L.Ed. 608], held that state trial court decisions need not be regarded by federal courts in diversity actions as declaratory of state law. Otherwise a plaintiff might secure a fortuitous victory in a federal court by virtue of an authority that would not be recognized in the state courts and might be contrary to many other such unreported cases. “Upon the basis of its own thorough knowledge of the nature of California Superior Courts, this Court in State of California [Dept. of Employment] v. Fred S. Renauld & Co., 179 F.2d 605 (9 Cir. 1950) with careful analysis rejected an argument that a decision of a Superior Court is binding on the United States Court of Appeals, saying (179 F.2d at 609): ‘federal courts are bound (a) when the supreme judicial tribunal of the state has decided a given question, or (b) a state appellate court which is in the line of the state appellate structure leading up to the supreme tribunal of the state has decided it, or (c) a goodly number of the trial courts of the state generally and for a considerable period of time have adhered to a common interpretation of the point. Neither of the cited California decisions is binding on any other court of the state excepting only that the Superior Court Appellate Department decisions may be said to be binding on other Municipal Courts of the county in which the decision was had. ‘It is our opinion that neither of the California cases cited falls within either of the categories mentioned and neither, nor both of them together, bind the federal court.’ ” (Emphasis appellees’.) In Reid v. Doubleday & Co., N.D.Ohio 1952, 109 F.Supp. 354, Judge Kloeb, a trial judge experienced in antitrust litigation, held that treble damages awarded under the Robinson-Patman Act were remedial rather than penal, and in doing so, considered whether a federal court, in determining what state law is or is to be, and eliminating "other persuasive evidence,” must follow (a) the Supreme Court of that state; (b) an intermediate appellate court; (c) lower state courts of original jurisdiction. He stated the answers are to (a) “Yes.” Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; to (b) “Yes.” King v. Order of United Commercial Travelers of America, 1948, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608; Six Companies of Cal. v. Joint Highway District, 1940, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114, reh. den. 311 U.S. 730, 61 S.Ct. 438, 85 L.Ed. 475; Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109, reh. den. 311 U.S. 730, 61 S.Ct. 438, 85 L.Ed. 475; to (c) “Yes and no.” King v. Order of United Commercial Travelers of America, supra, 333 U.S. at 159, 68 S.Ct. at 491, 92 L.Ed. 608. The federal courts, he concludes, may or may not follow the lower state courts, as they think proper. In deciding the matter, Judge Kloeb relied on many of the cases later cited and discussed herein (109 F.Supp. p. 363). (B) Turning to the cases which appellants list as recognizing the three year statute, we find the following listed: Burnham Chemical Co. v. Borax Consolidated, 9 Cir., 1948, 170 F.2d 569, 578, cert. den. 336 U.S. 924, 69 S.Ct. 655, 93 L.Ed. 1086, reh. den. 336 U.S. 955, 69 S.Ct. 878, 93 L.Ed. 1109; Suckow Borax Mines Consol. v. Borax Consolidated, 9 Cir. 1950, 185 F.2d 196, 207; cert. den. 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680, reh. den. 341 U.S. 912, 71 S.Ct. 620, 95 L.Ed. 1349; Steiner v. 20th Century-Fox Film Corp. supra. (In the last two cases cited the authority is dimmed somewhat by the fact the parties agreed that the three year statute applied.) Four district court decisions are then listed — two each from Northern and Southern California: Aero Sales Co. v. Columbia Steel Co., N.D.Cal.1954, 119 F.Supp. 693; Manny v. Warner Bros. Pictures, S.D.Cal.1953, 116 F.Supp. 807; Levy v. Paramount Pictures, N.D.Cal. 1952, 104 F.Supp. 787; United West Coast Theatres Corp. v. South Side Theatres, S.D.Cal. 1949, 86 F.Supp. 109. In the Burnham Chemical Co. case, supra, a reading indicates that this court stated (170 F.2d at p. 578): “The [trial] court therefore properly held the cause barred by Section 338(1) of the California statute of limitations.” (Emphasis added.) The “therefore” refers to the fact that “the only damages for which a recovery might be had (under federal antitrust laws) are those which accrued and were suffered «within three years prior to the filing of the complaint and the record reveals that none were shown during this period.” Obviously if no damages could be shown during a three year period immediately prior to the filing of the complaint, none could be shown during the one year period prior to the filing of the complaint; hence no choice between the two periods was offered the court, nor any choice between the two periods necessary or required. Thus a reading of Burnham, supra, Suckow Borax Mines, supra, and Steiner v. 20th Century-Fox, supra, indicates that in none of these has the precise issue here present been met. In the first it was not necessary because of the facts; in the last two, the three year statute was agreed upon by the parties as applicable. In Aero Sales Co. v. Columbia Steel Co., N.D.Cal.1954, 119 F.Supp. 693, Judge Harris held that Judge Goodman, in Wolfe v. National Lead Co., had already decided the question that the treble damage provision of the Clayton Act was not penal, hence the three year statute prevailed, and that Judge Harris concurred despite “persuasive arguments” in favor of the one year penalty theory. Judge Harris also referred to the United West Coast Theatres (supra) opinion which was written by Judge Mathes (the same judge who came to the opposite conclusion in our instant case). Judge Harris discussed and differentiated Ben C. Jones & Co. v. West Publishing Co., 5 Cir. 1921, 270 F. 563, dismissed, 270 U.S. 665, 46 S.Ct. 208, 70 L.Ed. 789, upon two grounds — (1) it had not been followed, either in the courts of Texas nor in the federal courts sitting in that state, and (2) that in the Jones case, the four year statute was an effective bar, without a consideration or discussion as to whether the two year Texas statute prevailed, as the action was barred by either statute of limitations. In Manny v. Warner Bros., supra, Judge Westover specifically noted: “[I]t is immaterial whether the plea of the statute of limitations is under the provisions of subdivision 1 of § 340 or subdivision 1 of § 338 of the Code of Civil Procedure of the State of California. If the contention of moving defendants is correct * * then the cause of action is barred by both sections.” (116 F.Supp. at 808-809.) In Levy v. Paramount Pictures, supra, Judge Carter.assumed the three year statute applied, without the necessity of determining whether the one year statute was applicable. In United West Coast Theatres Corp. v. South Side Theatres, supra, Judge Mathes, after reciting that the California courts had not decided the point (86 F.Supp. at 110), ruled: “ * * * the nature of the remedies accorded a private person * * would seem to mark the liability as one ‘created by statute, other than a penalty or forfeiture.’ * * * ” (the language used in § 338(1)) Judge Mathes then cites Fleitmann v. Welsbach Street Lighting Co., 1916, 240 U.S. 27, 29, 36 S.Ct. 233, 60 L.Ed. 505; United Copper Securities Co. v. Amalgamated Copper Co., 1917, 244 U.S. 261, 37 S.Ct. 509, 61 L.Ed. 1119, and relies upon Burnham Chemical, supra, already discussed as a ninth circuit case supporting his position, and refers to Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir. 1936, 85 F.2d 742, 751-753, cert. den. 299 U.S. 613, 57 S.Ct. 315, 81 L.Ed. 452; Culver v. Bell & Loffland, 9 Cir. 1944, 146 F.2d 29, 31, and states: “[T]his action having been commenced more than six years * * * thereafter * * * [each claim for damages had accrued] the counterclaim is long barred by § 338(1) of the California Code of Civil Procedure, unless * * * tolled.” In reversing his position in his reexamination of the problem in this case, Judge Mathes gave it careful study. He states in his memorandum of decision filed August 30, 1962 (to be considered as his Findings and Conclusions, 208 F. Supp. at 291): “The correct method whereby to determine which State statute of limitations is properly applicable to a cause arising under the antitrust laws prior to the Federal limitations statute has been the subject of some judicial disagreement. One view is that, inasmuch as the private antitrust action involves a Federal cause of action, whatever State limitations period is to be applied turns upon the Federal court’s view as to the nature of the Federal action, as being either ‘remedial’ or ‘penal’. [Cf.: Fulton v. Loew’s Inc., 114 F. Supp. 676, 682 (D.Kan.1953); Christensen v. Paramount Pictures, 95 F.Supp. 446, 449 (D.Utah 1950); see also Momand v. Universal Film Exchange, 43 F.Supp. 996, 1008-1009 (D.Mass.1942).] And since the Court concluded in the Chattanooga Foundry case, supra, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241, that actions for treble damages under the Federal antitrust laws are not subject to the general Federal statute of limitations governing actions to recover a ‘penalty’ under the laws of the United States [28 U.S.C. § 791, as amended, id. § 2462 (1948)], it has been reasoned that a State limitations statute dealing with recovery of ‘penalties’ in the State courts cannot in any event be applied to treble-damage claims grounded upon Federal antitrust violations. [See: Greene v. Lam Amusement Co., 145 F.Supp. 346, 348 (N.D.Ga.1956); Wolf Sales Co. v. Rudolph Wurlitzer Co., 105 F.Supp. 506, 509 (D.Colo.1952).] “The majority view, however, as formulated in recent years, holds that the question of limitations applicable to private antitrust actions was, as Mr. Justice Holmes put it, ‘left to the local law by the silence of the Statutes of the United States’. [Chattanooga Foundry & Pipe Works v. Atlanta, supra, 203 U.S. at 397, 27 S.Ct. 65.] Moreover, the word ‘penalty’, as applied in a Federal statute such as 28 U.S.C. § 2462, obviously may have ‘a different meaning than the same word in the * * * [State] statute’. [Bertha Building Corp. v. National Theatres Corp. 269 F.2d 785, 788 (2d Cir. 1959), cert. denied, 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960).] Accordingly, in keeping with the principle that statutory construction by a State’s highest court is deemed an integral part of the text of the State’s statute of limitations, it has been declared that Federal courts ‘must accept the statutes as construed and interpreted by the * * * [State] courts. It is for them to determine what is meant by the word “penalty” in the * * * [State] statute’. [Bertha Building Corp. v. National Theatres Corp, supra, 269 F.2d 785, 788, (2d Cir. 1959), cert. denied, 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960); cf.: Moore v. Illinois Central R. Co, 312 U.S. 630, 634, 61 S.Ct. 754, 85 L.Ed. 1089 (1941); Costello v. Bank of America, 246 F.2d 807, 812 (9th Cir. 1957).] “Adherence to the rationale just stated has required' the Federal courts to compare the nature of the Federal treble-damage antitrust action with that of analogous State causes, as construed by the courts of the particular State involved, and from such a comparison to decide which local statute of limitations the courts of the State would deem applicable to actions embracing Federal treble-damage antitrust claims. [See: North Carolina Theatres, Inc. v. Thompson, 277 F.2d 673 (4th Cir. 1960) ; Powell v. St. Louis Dairy Co., 276 F.2d 464 (8th Cir. 1960) ; Bertha Building Corp. v. National Theatres Corp., supra, 269 F.2d 785; Gordon v. Loew’s Inc., 247 F.2d 451 (3rd Cir. 1957); Green v. Wilkinson, 234 F.2d 120 (5th Cir. 1956); Hoskins Coal & Dock Corp. v. Truax Traer Coal Co., 191 F.2d 912 (7th Cir. 1951), cert. denied, 342 U.S. 947, 72 S.Ct. 555, 96 L.Ed. 704 (1952); Leonia Amusement Corp. v. Loew’s Inc., 117 F.Supp. 747 (S.D. N.Y.1953); and see: Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947); Englander Motors, Inc. v. Ford Motor Co., 293 F.2d 802, 806 (6th Cir. 1961); Momand v. Universal Film Exchanges, 172 F.2d 37, 47 (1st Cir. 1948), cert. denied, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118 (1949); United Banana Co. v. United Fruit Co., 172 F.Supp. 580, 585 (D.Conn. 1959); compare: Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109 (1899); Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892).] “A study of the decisions convinces me that the precedent of seeking guidance from the construction given a particular limitations statute by State courts is a sound one to follow in the case at bar, notwithstanding the inherent difficulty of diverse judicial interpretations in the various States as to the essential nature of private multiple-damage actions. [See: North Carolina Theatres, Inc. v. Thompson, supra, 277 F.2d 673; Bertha Building Corp. v. National Theatres Corp., supra, 269 F.2d 785; Englander Motors, Inc. v. Ford Motor Co., 186 F.Supp. 82, 90 (N.D.Ohio 1960), modified on other grounds, 293 F.2d 802 (6th Cir. 1961).] “Turning, then, to the scope of the three-year [Cal.C.C.P. § 338(1)] and the one-year [Cal.C.C.P. § 340(1)] statutes in question here, as construed by the State coui'ts, it is noted that although the California courts have not as yet interpreted for limitations purposes a similar private-action provision under the State’s antitrust law [see Cal.Bus. & Prof.C. § 16750, as amended, id. § 16750(a) (1959)], they have considered the applicability of both § 338(1) and § 340(1) on several occasions in cases involving circumstances closely analogous to those presented at bar. For example, a statutory provision for recovery of twice the amount paid to a decedent in excess of legally-incurred payments under the State Old Age Security Law has been characterized as ‘penal’, and hence the one-year period of limitation specified in § 340(1) was held applicable. [Department of Social Welfare v. Stauffer, 56 Cal.App.2d 699, 133 P.2d 692 (1943).] “The same result was reached where ‘liquidated damages’ were imposed by statute for failure of gas and electric companies to supply requisite power [Hansen v. Vallejo Electric Light & Power Co., 182 Cal. 492, 188 P. 999 (1920); compare Los Angeles County v. Ballerino, 99 Cal. 593, 32 P. 581, 34 P. 329 (1893)] ; where court reporter fees were reduced for failure to comply with court rules [County of San Diego v. Milotz, 46 Cal.2d 761, 300 P.2d 1 (1956)]; and where a buyer sued for return of the amount paid under a conditional sale contract upon the seller’s interference with payment of the balance of the debt prior to maturity [Stone v. James, 142 Cal.App.2d 738, 299 P.2d 305 (1956)]. “The California courts have also characterized as ‘penal’ a statutory provision for double damages in trespass actions involving timber [Helm v. Bollman, 176 Cal.App.2d 838, 1 Cal.Rptr. 723 (1959); cf. Swall v. Anderson, 60 Cal.App.2d 825, 141 P.2d 912 (1943)]; likewise a statutory provision for treble damages in actions for unlawful detain-er [see: Hoban v. Ryan, 130 Cal. 96, 62 P. 296 (1900); Gwinn v. Goldman, 57 Cal.App.2d 393, 134 P.2d 915 (1943)], as well as for damages to adjacent property caused by fire [Clark v. San Francisco & S. J. Val. Ry. Co., 142 Cal. 614, 76 P. 507 (1904); see also Esposti v. Rivers Bros., 207 Cal. 570, 279 P. 423 (1929)]. “While there has been no such concurrence of views as to the proper characterization of Federal treble-damage antitrust actions [see: Schiffman Bros. v. Texas Co., 196 F.2d 695, 697 (7th Cir. 1952) ; Leonia Amusement Corp. v. Loew’s Inc., supra, 117 F.Supp. at 756; and see Loevinger, Private Action — The Strongest Pillar of Antitrust, 3 Antitrust Bull. 167 (1958)], it is reasonable to characterize such actions as compensatory in part, and as exemplary or penal with respect to the trebling of damages to business or property resulting from antitrust violations [see Lyons v. Westinghouse Electric Corp., 222 F.2d 184, 189 (2nd Cir.), cert. denied, 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955) ; cf. Karseal Corp. v. Richfield Oil Corp., 221 F.2d 358, 365 (9th Cir. 1955)]. “Moreover, the California Supreme Court has characterized as a penalty ‘any law compelling a defendant to pay a plaintiff other than what is necessary to compensate him for a legal damage done him by the former’. [Miller v. Municipal Court, 22 Cal.2d 818, 837, 142 P.2d 297, 308 (1943); see also Grossblatt v. Wright, 108 Cal.App.2d 475, 239 P.2d 19 (1951).] “The conclusion is thus impelled that § 340(1) of the California Code of Civil Procedure, as construed by the California courts, is applicable to treble-damage causes under the Federal antitrust laws which accrued prior to the effective date of the four-year Federal limitations period. [15 U.S.C.A. § 15b.] Inasmuch as plaintiffs’ cause of action admittedly accrued in February of 1954, and this action was not commenced until September of 1956, application of the one-year period specified in § 340(1) would clearly raise the time bar upon which defendants rely for summary judgment of dismissal. * * * ” The trial judge then turned to the ninth circuit cases hereinbefore mentioned, and the previous district court decisions from this circuit, supra, and concluded: “Treating the question as res integra, as I now deem it to be, and having due regard for State-court interpretation of the content of the provisions of both § 338(1) and § 340(1), I must hold that the one-year period specified in Cal.C.C.P. § 340(1) is the California statute of limitations properly applicable to Federal treble-damage antitrust causes accruing prior to the effective date of the Federal four-year statute. [15 U.S.C.A. § 15b.]” We have examined the cases cited in the trial court’s memorandum, and we believe they, and his reasoning based thereon, carry conviction. Cf.: Isom v. Rex Crude Oil Co., 140 Cal. 678, 680, 74 P. 294 (1903) and Penziner v. West American Finance Co., 10 Cal.2d 160, 170, 74 P.2d 252 (1937), and our brief discussion of the penalty theory lying behind treble recovery in antitrust litigation in Flintkote Co. v. Lysfjord, 1957, 9 Cir., 246 F.2d 368, 398, cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46. While appellees cite cases from six other state jurisdictions supporting their position, we do not feel that the manner in which other state courts interpret their particular statutes would foretell what the California courts might do, absent an almost unanimous rule in other states. Such unanimity of opinion in other states does not exist. We agree with appellants (Reply Brief, p. 6): “Everyone concedes that the problem is how a California court would characterize this action under the language of the two specific California statutes. If that is the problem, of what assistance is it to know how a New Jersey Court characterized a private antitrust action under different language in different statutes as interpretated (sic) by different decisions.” We realize that Judge Murphy in McLean v. Paramount Pictures, Inc., No. 30262 (in proceedings had on January 10, 1958), held the three year statute applicable, stating: “[T]he Ninth Circuit has never squarely passed upon this issue. However, for almost ten years now the Ninth Circuit has assumed that the three year period of Section 338(1) is the applicable statute.” He cited the cases we have discussed above, his former opinion in Samuel Goldwyn Productions, Inc. v. Fox West Coast Theatres Corp., N.D.Cal.1956, 146 F.Supp. 905, and Christensen v. Paramount Pictures, D.Utah 1950, 95 F.Supp. 446, 449. In Goldwyn, it was said: “The applicability of the three year statute of limitations of Cal.Code of Civil Procedure, § 338(1) * * * to this proceeding is not in issue on this motion, and may be assumed for the purposes of this motion [involving its tolling] to be undisputed.” (146 F.Supp. at 906.) In Christensen, supra, Judge Ritter said: “On the other hand, counsel for plaintiff contend that the Utah statute of limitations for ‘An action upon a statute for a penalty or forfeiture where the action is given to an individual * * *.’ does not apply to actions

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

CITY NATIONAL BANK, First Union National Bank of North Carolina, North Carolina National Bank, Southern National Bank of North Carolina, Wachovia Bank and Trust Company, N.A., First-Citizens Bank and Trust Company and Peoples Bank and Trust Company, Appellees, v. Rufus L. EDMISTEN, Atty. Gen. of the State of North Carolina, Appellant. No. 81-2157. United States Court of Appeals, Fourth Circuit. Argued May 5, 1982. Decided June 30, 1982. James C. Gulick, Asst. Atty. Gen., John F. Maddrey, Associate Atty. Gen., Alan S. Hirsch, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Millard R. Rich, Jr., Deputy Atty. Gen., Raleigh, N. C., on brief), for appellant. John R. Jordan, Jr., Raleigh, N. C. (Robert R. Price, R. Frank Gray, E. Burke Haywood, Jordon, Brown, Price & Wall, Raleigh, N. C., on brief), for appellees. Before WINTER, Chief Judge, SPROUSE, Circuit Judge, and DOUMAR, District Judge. Honorable Robert G. Doumar, United States District Judge for the Eastern District of Virginia, sitting by designation. HARRISON L. WINTER, Chief Judge: Plaintiffs, five national banks and two state-chartered federally insured banks, sought a declaratory judgment from the district court that an annual “membership fee” which they propose to charge holders of bank credit cards would not violate North Carolina’s usury laws if added to the interest currently charged on credit card accounts. On cross motions for summary judgment, the district court granted a declaratory judgment as sought by plaintiffs. Defendant appeals the judgment on the merits, raising, among other issues, the question of jurisdiction. We conclude that the judgment must be vacated and the case dismissed for lack of federal jurisdiction. I. Presently, plaintiffs offer a credit card service whereby the banks, pursuant to a written agreement, will pay for purchases from authorized merchants and advance cash up to the amount of a specified “line of credit.” The cardholder agrees to repay the bank on a monthly basis. The cardholder has the option of paying the outstanding account in full within twenty-five days of the billing date, in which case no interest is charged on the account. Alternatively, the cardholder may pay only a portion of the monthly account, and in that event interest accrues on the remaining balance. Currently, the charge on the unpaid monthly balance is one and one-half percent (1V2%) per month or 18% annually, the maximum amount allowed by state law. Plaintiffs propose to alter their current credit card service by charging each cardholder an annual fee which, as a condition to the credit card agreement, would be imposed regardless of whether the credit card was used to obtain cash or for purchasing goods. Plaintiffs notified the Attorney General of North Carolina of their intention to charge the annual fee in addition to the 18% interest charge on outstanding accounts, and requested an assurance that, in the Attorney General’s opinion, the combined charges would not violate North Carolina’s usury laws. The Attorney General advised plaintiffs that in his opinion the annual fee would be considered a “service charge” within the meaning of N.C.Gen.Stat. § 24-11(a). Under this view, the proposed revision to plaintiffs’ credit card service would require them to reduce the interest rate on unpaid balances because § 24-ll(a) authorizes an 18% interest charge only if “no service charge ... [is] imposed upon the consumer or debtor if the account is paid in full within 25 days from the billing date.” Accordingly, the Attorney General later advised plaintiffs that if they proceeded to charge 18% interest in addition to an annual fee, the interest rate would be unauthorized and legal proceedings under state law would be instituted against plaintiffs for violating North Carolina’s usury statute. Plaintiffs then filed this action in the district court, seeking a declaratory judgment that an annual membership fee does not constitute a “service charge,” finance charge, or interest within the meaning of North Carolina law. II. Plaintiffs allege that this case arises under 12 U.S.C. §§ 85 and 86, and that federal jurisdiction exists by virtue of 28 U.S.C. §§ 1331(a) and 1337(a). Section 1331 provides for jurisdiction over actions “arising under” laws of the United States, and § 1337(a) for cases “arising under” an Act of Congress regulating commerce. The sections of the National Bank Act relating to the interest chargeable by national banks, 12 U.S.C. §§ 85 and 86, are statutes regulating commerce, so that jurisdiction lies under both §§ 1331 and 1337 if, but only if, this case arises under §§ 85 and 86. A suit “arises under” federal law if federal law creates the cause of action. American Well Works Co. v. Wayne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916). However, a state-created cause of action may also arise under federal law if the resolution of the dispute depends upon the validity, construction, or effect of federal law, so long as the federal question is a real and substantial issue, Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912), and its resolution is an essential element of plaintiff’s case. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). The federal question must be an essential element of plaintiff’s complaint; the anticipation of a defense which arises under federal law does not establish federal jurisdiction. Louisville & Nashville Rd. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Accordingly, in an action for a declaratory Judgment,.if jthe plaintiff is seelpng a declaration that it has'a-gjmd defense to a threatened action, it is the /'character of the threatened action and not of the defense which determines whether there is federal question jurisdiction. See Public. Service Commission v. Wycoff, 344 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952). According to these principles, this case does not arise under either § 85 or § 86 of the National Bank Act. Section 85 limits the amount of interest which can lawfully be charged by a national bank to the interest allowed by the state wherein the bank is located. Pursuant to § 85, a national bank has the right to charge the maximum rate of interest permitted by state law to a competing state-chartered institution. United Missouri Bank of Kansas City v. Danforth, 394 F.Supp. 774, 777 (W.D.Mo.1975); 12 C.F.R. 87.7310(a) (1981). Plaintiffs are correct in asserting that this right is embodied in federal law. But this right is not at issue in the case. The disputed issue is simply and solely which state law applies to plaintiffs’ credit card program if that program includes an annual users’ fee. However this dispute is resolved, plaintiffs will be allowed to charge the maximum rate of interest allowed by state law. Therefore, this is not a case in which the assertion of the federal right created by § 85 supports federal jurisdiction. Nor is this a case in which the construction or effect of § 85 is in dispute. The only connection between this case and § 85 is the fact that § 85 incorporates state law in the regulation of the interest chargeable by a national bank. But a federal statute is not a sufficient basis for federal question jurisdiction simply because it incorporates state law. Shoshone Mining Co. v. Rutter, 177 U.S. 505, 508, 20 S.Ct. 726, 727, 44 L.Ed. 864 (1900); Standage Ventures, Inc. v. State of Arizona, 499 F.2d 248, 250 (9 Cir. 1974). Section 86 of the National Bank Act is the penalty provision for usury, i.e., “taking, receiving, or charging a rate of interest greater than is allowed [by § 85].” When a person seeks to enforce § 86 by recovering the penalty provided therein, the case arises under § 86, and thus arises under federal law. Burns v. American National Bank and Trust Co., 479 F.2d at 29. If the Attorney General of North Carolina had threatened action under § 86 in the event that plaintiffs charged an annual fee in addition to 18% interest, this declaratory judgment action would take its character from the threatened action and would arise under federal law. But the Attorney General has threatened to charge plaintiffs with a violation of state usury laws, not a violation of § 86. Plaintiffs could defend an action under state usury law on the ground that § 86 provides the exclusive remedy for usury against a national bank, but the availability of this defense does not convert the threatened action from a state to a federal one for purposes of determining federal jurisdiction. Nuclear Engineering Co. v. Scott, 660 F.2d 241, 253-254 (7 Cir. 1981). Therefore, § 86 is connected with this case, if at all, only as a defense to a threatened state action and does not provide a basis for federal jurisdiction. In sum, this controversy does not arise under federal law. The only issue concerns the construction of North Carolina law. But the parties are not diverse, and diversity jurisdiction is absent. Since no other jurisdictional basis applies, the case must be dismissed for lack of federal jurisdiction. We vacate the judgment of the district court and remand the case with directions to dismiss it for want of federal jurisdiction. VACATED AND REMANDED. . N.C.Gen.Stat. § 24-1 provides that the legal rate of interest shall be no more than 8% annually. But § 24-11(a) sets forth an exception to the 8% limit which, it is agreed by the parties, applies to plaintiffs’ existing credit card service. Section 24-11(a) provides: On the extension of credit under an open-end credit or similar plan (including revolving credit card plans ...) under which no service charge shall be imposed upon the consumer or debtor if the account is paid in full within 25 days from the billing date, there may be charged and collected interest, finance charges or other fees at a rate in the aggregate not to exceed one and one half percent (IV2) per month computed on the unpaid balance of the previous month or the average daily balance outstanding during the billing period. . These undisputed facts show the existence of a “case or controversy” which is justiciable under the Declaratory Judgment Act, 28 U.S.C. § 2201. See Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 44 L.Ed.2d 214 (1975). The Article III, § 2 “case or controversy” prerequisite to federal jurisdiction to issue a declaratory judgment is met if the facts show a real and substantial controversy between the parties having adverse legal interests. Maryland Casualty Co. v. Pacific Coal & Iron Co., 312 U.S. 270, 272-273, 61 S.Ct. 510, 511-12, 85 L.Ed. 826 (1941). This dispute over the construction of N.C.Gen. Stat. § 24-11(a) presents a substantial controversy between the parties of adverse legal interest, and the Attorney General’s threat to institute action against plaintiffs in the event that plaintiffs proceed according to their interpretation of § 24-11 (a) renders the controversy sufficiently real and immediate to warrant the issuance of a declaratory judgment. Septum, Inc. v. Keller, 614 F.2d 456, 459 (5 Cir.), cert. denied, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980) (when plaintiff alleges an intent to engage in conduct and there is a credible threat of prosecution for that conduct, a justiciable controversy exists). . In the original complaint, plaintiffs also sought to enjoin the Attorney General from taking legal action against plaintiffs for imposing an annual membership fee. But in an amended complaint the request for an injunction was withdrawn. . Burns v. American National Bank and Trust Company, 479 F.2d 26, 29 (8 Cir. 1973), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 778 (1977). . Jurisdiction was not contested below but, of course, the parties cannot consent to federal subject matter jurisdiction, California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 390 (1972), and whenever it appears that the federal courts lack jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12(h). . The only other federal law which is relevant to this case is the Declaratory Judgment Act, 28 U.S.C. § 2201. But it is clear that § 2201 is remedial only, and is not itself a basis for federal subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 73 S.Ct. 876, 94 L.Ed. 1194 (1950). . Compare Marquette National Bank v. First of Omaha Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), in which the question was whether a national bank situated in Nebraska must charge the interest rates set by Minnesota on loans obtained by residents of Minnesota. The resolution of the dispute depended upon the construction of § 85 which provides that a national bank must charge the rate of interest allowed by the state “where the bank is located.” . See Stephens v. Monongahela National Bank, 111 U.S. 197, 4 S.Ct. 336, 28 L.Ed. 399 (1884).

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

James P. MITCHELL, Secretary of Labor, United States Dept. of Labor v. William FIORE, Ind. and d/b/a Fiore Trucking Company and William Fiore Contracting Company, Appellant. The UNITED STATES v. In re William FIORE, Individually and doing business as Fiore Trucking and William Fiore Contracting Company, Appellant. Nos. 72-1232, 72-1233. United States Court of Appeals, Third Circuit. Argued Sept. 8, 1972. Decided Dec. 12, 1972. Harold Gondelman, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., for appellant. Jay C. Waldman, Asst. U. S. Atty., Pittsburgh, Pa., for appellee. Before VAN DUSEN, ALDISERT and HUNTER, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. Defendant appeals from the sentence and judgment filed February 2, 1972, in which he was ordered to pay various dollar amounts as fines and costs and to be imprisoned for 60 days, or for 30 days if he paid the “civil judgments and costs” within 30 days. The sentence and judgment are based on the district court’s findings of fact and conclusions of law reported in 337 F.Supp. 972 (W.D.Pa.1972). The district court decided that defendant was in civil and criminal contempt of an injunction previously issued against him pursuant to section 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 217 (1970). We have concluded that the district court’s holding that defendant violated the injunction must be affirmed and that civil and criminal sanctions are appropriate, but, for the reason given below, we modify the financial penalties imposed by the district court. Defendant is in the trucking business and his customers include United States Steel and Jones & Laughlin Steel Co. On November 11, 1959, he consented to an injunction that he be restrained from violating sections 15(a)(2) and 15(a)(5) of the F.L.S.A. by failing to pay overtime compensation as required by section 7 and by failing to keep records in accordance with section 11(c) of the F.L.S.A. and 29 C.F.R. 516. On April 19, 1962, defendant consented to the entry of a decree finding him guilty of civil contempt of the 1959 injunction, requiring restitution of wages wrongfully withheld, requiring payment of the Government’s costs of investigation, and broadening the 1959 injunction to require compliance with the minimum wage provisions of section 6 of the F.L. S.A. (29 U.S.C. § 206). Again on April 25, 1965, defendant was found to have violated the 1959 injunction as amended. Held in criminal and civil contempt, he was ordered to pay a punitive fine of $1,000., a compensatory fine of $1,000. covering the costs of investigation, and court costs, all in addition to the restitution of back wages of $15,000. which he made at that time. The present appeal involves yet another violation of the above-mentioned injunction. On November 3, 1971, the Government petitioned the district court again to find defendant in civil and criminal contempt, alleging that he had violated the minimum wage, overtime, and record-keeping provisions of the injunction. The district court issued an order on November 5 that defendant show cause why he should not be found guilty of criminal and civil contempt. A trial to the court on these charges was held on January 27, 28, and 31, 1972. At the beginning of the trial, the Government made clear that it was proceeding under 18 U.S.C. § 401(3) (1970) in submitting proofs on the issue of criminal contempt. Defendant’s employees would put the time they worked each day on slips or time cards and submit these to defendant. There was uncontradicted evidence that defendant, upon being approached by Labor Department compliance officer McFeele, had retained these slips for only the previous three months, not for the requisite two years, see 29 C.F.R. 516.6(a)(1) (1972). The Government also introduced the testimony of nine former employees of defendant that he made a practice of wrongfully reducing the amount of time the drivers had indicated on the time slips and of failing to compensate drivers for time spent in preparing trucks for use and in driving trucks to and from their assigned work locations. This reduction of time would have made defendant’s payroll records inadequate under 29 C.F.R. § 516.-2(a)(7) (1972); and the failure to pay drivers for this type of preparation and transportation time would have violated the minimum wage and overtime provisions of the F.L.S.A. McFeele testified that, based on interviews with 20 to 30 employees, he estimated the average time not compensated for was 1% hours per man per shift; applying this estimate to the number of employees and amount of time shown on the payroll records defendant did keep, McFeele arrived at the figure of $31,364.57 for the back wages due the 79 employees. Defendant denied all the Government’s contentions except that he conceded he had only retained the time slips for the past three months. The district court concluded that the Government had established its contentions “by clear and convincing evidence and beyond a reasonable doubt” (337 F.Supp. at 974). The district court entered judgments against defendant in the amounts of $31,364.57 for the benefit of the employees, $2,000. to cover the Government’s costs of investigation, and $10,-000. as “a remedial fine ... as punishment for the civil contempt. . . . ” The court also ordered defendant to pay court costs. Finally, the court sentenced the defendant to imprisonment as mentioned above. Defendant contends that the district court erred in its findings. On both the civil and criminal sides, our review of the record shows that the district court holding, that the Government proved its case by, respectively, clear and convincing evidence and beyond a reasonable doubt, was fully supported. For the scope of our review, see United States v. Delerme, 457 F.2d 156, 160 (3d Cir.1972). Defendant focuses his objections upon the procedure followed by the district court. A criminal contempt proceeding need not, as he suggests, be initiated by indictment. The order to show cause furnished him adequate notice under F.R.Crim.P. 42(b) and thus met the requirements of due process. We have concluded that the proper procedures were observed in regard to the criminal contempt, and it was permissible for the district court to try the criminal and civil contempts together. Since no disrespect to or criticism of, the trial judge was involved, see F.R. Crim.P. 42(b), it was proper that he try such contempt charges despite his having presided over defendant’s three earlier trials. The defendant also argues that he was denied his right to a jury trial. There is, of course, no such right in the trial of a civil contempt charge. In Cheff v. Schnackenberg, 384 U.S. 373, 379-380, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), the Supreme Court held that a person sentenced to six months’ imprisonment for criminal contempt had no right to a jury trial because his offense was “petty.” 18 U.S.C. § 1(3) (1970), which the Court referred to in Cheff, defines as petty any offense whose penalty does not exceed six months’ imprisonment or a $500. fine or both. In the present case, the $10,000. fine, although labled by the district court as “remedial,” was neither coercive nor compensatory; rather, it was clearly punitive. Were we to let it stand defendant’s contempt would not be petty and he might have been wrongly deprived of a jury trial. However, for the reason discussed below, we will vacate the $10,000. punitive fine. It could be maintained that, notwithstanding our action, defendant’s offense, having been punished initially with a $10,000. fine, is forever branded as being not petty and thus warranting a jury trial. Two factors persuade us to the contrary. First, the district court viewed the criminal contempt as petty; this is indicated by the court’s mistakenly denominating the fine as “civil” and “remedial.” See Philipps v. United States, 457 F.2d 1313 (8th Cir.1972). Second, in applying the proposition in Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969), that the severity of the penalty actually (as opposed to potentially) imposed best measures the seriousness of the offense we think that the sentence ultimately imposed is the sentence that is relevant. We note that we would not be the first Court of Appeals that has reduced a contempt sentence so as to comply with Cheff, rather than remand for jury trial. See Mirra v. United States, 402 F.2d 888 (2d Cir.1968). Finally, in addition to challenging the correctness of the district court findings and the procedures, defendant contends that the district court’s judgment and sentence were defective. He does not challenge the civil contempt fines concerning back wages, investigation costs, and court costs, except to suggest that they cannot be handed down in combination with sanctions for criminal contempt. The suggestion is incorrect. See Penfield Co. v. SEC, 330 U.S. 585, 593-594, 67 S.Ct. 918, 91 L.Ed. 1117 (1947). Defendant directs at the sentence for criminal contempt three attacks. First, he calls our attention to section 216(a) of the F.L.S.A., which provides for imprisonment of up to six months for all violations of the Act except the first such violation. Had the Government proceeded against him under section 216(a), he would not be liable to imprisonment, never having been convicted a prior time under that section. According to defendant, to permit his imprisonment under 18 U.S.C. § 401(3) (1970) for violating the injunction would subvert the scheme of section 216(a) and rob him of constitutional rights. This line of argument has been accepted by some courts, but it was squarely rejected in the recent case of United States v. Fidanian, 465 F.2d 755 (5th Cir.1972). There the court reasoned, first, that such a limitation on the power of the federal courts to punish violations of their own orders —which orders, we note, were expressly authorized in section 217 — should be explicit. Second, punishment for criminal contempt does not reach the first offenders whom Congress intended to shield in section 216(a); rather, it affects only those who have already experienced a judicial proceeding under the Act, namely, the proceeding when the injunction was issued. As noted above, Fiore has been the defendant in three separate proceedings brought in 1959, 1962 and 1965 to compel him, inter alia, to comply with the provisions of the Act and has been held in contempt in two of these proceedings. Defendant next asserts that the provision in the sentence whereby it would be reduced if he paid the fines within 30 days violates the doctrine set forth by the Supreme Court in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). There the Supreme Court held that an indigent unable to pay a fine cannot be imprisoned for failure to do so. However, defendant did not maintain in the district court, and does not maintain here, that he is unable to pay. Instead he argues that if a poor man in his situation could not be imprisoned, then he too should not be imprisoned. We note that the Supreme Court in both the above cases was careful to disavow any implication that one capable of paying could not be imprisoned for wilful refusal to pay a fine. 401 U.S. at 400-401, 91 S.Ct. 668; 399 U.S. at 242 n. 19, 90 S.Ct. 2018. See United States ex rel. Griffin v. Martin, 409 F.2d 1300, 1302 (2d Cir.1969). Moreover, the situation here can be distinguished from the situations in Williams v. Illinois and Tate v. Short. The fine here is unconditional, and the prison sentence depends not on whether defendant eventually pays but on whether he pays within 30 days. Furthermore, criminal contempt differs from the statutory offenses in those cases because the punishment for contempt in this case was appropriately tailored to the offender. Therefore, the equal protection rationale relied on by the Supreme Court does not apply here. Lastly, defendant contends that because the $10,000. “remedial fine” is neither coercive nor compensatory, which the Government concedes, it must be punitive. Thus, the district court in effect punished the violation of its order with both a fine and imprisonment, even though § 401(3) has been construed to authorize only one or the other. In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500 (1943); Board of Education v. York, 429 F.2d 66 (10th Cir.1970). On this issue, we agree with defendant. While we could remand to the district court for resentencing, we possess the authority to revise the sentence ourselves. In fact, in York, supra, the Court of Appeals corrected the same type of error that appeared here. Because the Government does not urge that the $10,000. fine be imposed in addition to the imprisonment, and because the record before us clearly indicates the appropriateness of some term of imprisonment, we will modify the district court sentence and judgment as follows: (a) Paragraph 2 shall read: “2. A civil judgment is entered against the said defendant, William Fiore, in the sum of $2,000.00 covering the investigative costs and preparation of the trial in this case.” (b) In paragraphs 1 and 2 under “IMPRISONMENT”, this language shall be substitued for “February 15, 1972:” “the fifteenth day after the mandate or certified judgment in lieu of mandate is received by the Clerk from the United States Court of Appeals for the Third Circuit.” Each party shall bear his own costs in this court. . See affidavit of Jay O. Waldman filed September 28, 1972, to which defendant has filed no counter-affidavit. . The precise sentence and judgment is as follows: “. . . the Clerk will enter a civil judgment against the defendant, William Fiore, individually, and' doing business as Fiore Trucking and William Fiore Contracting Company in the sum of $31,364.57 for the benefit of the employees named in the summary of unpaid wages attached to the Findings and Conclusions which are incorporated herein. “2. A civil judgment is entered against the said defendant, William Fiore, in the sum of $12,000.00, which in the aggregate embraces $2,000.00 covering the investigative costs and preparation of the trial in this case, and a remedial fine in the sum of $10,-000.00 as punishment for the civil contempt of this Court. “3. The said defendant, William Fiore, shall pay the costs of the civil and criminal proceedings. IMPRISONMENT “The said William Fiore having been found guilty of criminal contempt of this Court by evidence beyond a reasonable doubt, and in accordance with the oral sentence pronounced from the Bench at the conclusion of the trial: “1. The said William Fiore is herewith sentenced to the custody of the Attorney General of the United States for imprisonment for a period of sixty (60) days to commence at Noon on February 15, 1972. “2. On payment of the civil judgments hereinbefore mentioned and costs within 30 days of February 15, 1972, the prison sentence will terminate at the expiration of the said 30 days.” . Defendant raises several questions as to the accuracy of McFeele’s figures. The Government having shown that employees performed work for which they were not compensated and produced evidence from which the extent of such work, as computed by the district court, could be reasonably inferred, the burden was on defendant to establish the precise amount of work. Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-688, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). The district court here had adequate grounds for rejecting defendant’s evidence on this point. Moreover, here, as in Mount Clemens, “[t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of § 11(c) of the Act.” Id. at 688, 66 S.Ct. at 1192. . Green v. United States, 356 U.S. 165, 183-185, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); United States v. Bukowski, 435 F.2d 1094, 1099-1102 (7th Cir. 1970); Wilson, Criminal Contempt in the Federal Courts, 55 F.R.D. 102, 109 (D.C.1970). . Defendant argues that the order to show cause shifted to him the burden of proving his own innocence. We reject this argument, as did the court in In re Van Meter, 413 F.2d 536, 538 (8th Cir. 1969). The record makes abundantly clear that ing the criminal contempt beyond a reasonable doubt. . United States v. United Mine Workers of America, 330 U.S. 258, 295-298, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Backo v. Local 281, Carpenters, 438 F.2d 176, 181-182 (2d Cir. 1970); United States v. Bukowski, 435 F.2d 1094, 1102-1103 (7th Cir. 1970). Counsel for defendant, who did not handle the case before the district court, now maintains that the failure of the transcript to include the opening remarks of the Assistant United States Attorney prejudiced the defendant in preparing the appeal. In an affidavit submitted to this court, the Assistant United States Attorney states that in these remarks he made clear that the Government relied on 18 U.S.C. § 401(3) (1970), which authorizes the federal courts to punish violations of their orders. We fail to see how defendant has been prejudiced by any possibly technical non-compliance with F.R.A.P. 10(e). The transcript contained numerous references to “criminal contempt;” and appellate defense counsel recognized the relevance of § 401 (3), for his brief includes a discussion of it. . United States v. United Mine Workers of America, 330 U.S. 258, 298-301, 67 S.Ct. 677, 91 L.Ed. 884 (1947). . Nilva v. United States, 352 U.S. 385, 395-396, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957); United States v. Conole, 365 F.2d 306, 308 (3d Cir. 1966). . Defendant never requested a jury trial. For present purposes, however, we will assume that he did not waive any rights in this respect. . We again point out that defendant had notice that the Government was proceeding under section 401(3).: See p. 1151 above. . For example, section 216(a) also provides for a fine of up to $10,000., and a violation of it would thus not fall within the category of petty offense as defined in 18 U.S.C. § 1(3) (1970). . United States v. B & W Sportswear, 53 F.Supp. 785 (E.D.N.Y.1943); United States v. P & W Coat Co., 52 F.Supp. 792 (E.D.N.Y.1943). But see United States v. Harwoods, 46 C.C.H.Lab.Cas. ¶31,343 (E.D.Mich.1962). . Unfortunately the legislative history sheds no light on this issue. A provision authorizing injunctions first appeared in the House amendment to the bill already passed in the Senate, S. 2475, see H.R.Rep.No.2182, 75th Cong., 3d Sess. (1938) ; and the relief for first offenders was added in the House-Senate conference committee, see H.R.Rep.No. 2738, 75th Cong., 3rd Sess. (1938). However, neither of these two reports contains any discussion of the relation between sections 216(a) and 217. . Appellees’ Brief at 4 n. 3. . Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); Drivers Local No. 639 v. Penello, 137 U.S.App.D.C. 64, 420 F.2d 632, 635 (1969); United States v. Conole, 365 F.2d 306 (3d Cir. 1966). . Appellees’ Brief at 4 n. 3. . We note that the Government has agreed, see Appendix at 551a-552a, that the defendant should be 'allowed to serve the sentence on weekends, in order that bis trucking business may not be interrupted.

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

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 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?

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

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

HINES v. WARD BAKING CO. No. 8812. Circuit Court of Appeals, Seventh Circuit. May 3, 1946. John H. Lyle, P. F. Murray, and E. H. Gager, all of Chicago, Ill., for appellant. Thomas Robert Mulroy, of Chicago, Ill. (A. M. Grean, Jr., of New York City, and C. Ives Waldo, Jr., of Washington, D. C., of counsel), for appellee. Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge. LINDLEY, District Judge. Plaintiff appeals from a judgment entered on the pleadings in his suit to recover additional employment compensation from defendant. He urges that the court erred in, (1) holding as a matter of law that an executed modified employment contract requires no consideration; (2) striking from his pleadings an averment of conversations between him and defendant’s vice president, alleged to have been the basis of inducement to plaintiff to sign the modified ^agreement, and, (3), failing to hold that his original contract was, by his continuation in defendant’s employment without execution of a new one, automatically extended for a period of five years. He prays, in the alternative, in this court for the first time that, if the entire amount demanded, some $54,000, may not be allowed him, he recover either $14,830 or $11,330. Defendant insists that the court’s rulings were proper and that the judgment should be affirmed. The undisputed facts, as culled from the pleadings upon which judgment was entered, follow. Plaintiff became an executive employee of defendant under a contract beginning August- 1, 1931, terminating at the end of five years, at an annual salary of $35,000, payable in equal monthly installments on the last day of each month. On May 1, 1933, plaintiff wrote defendant that it was “agreeable” to him to accept a temporary 10% reduction in his salary, effective May 8, 1933, and, on May 20, 1933, that he understood that the reduction referred to in his letter of May 1 should apply for the balance of his contract period, provided, however, that he be free to submit to the board of directors for its consideration at any time a partial or complete restoration of his salary to the rate specified in tile contract “for the then unexpired balance of its term.” From that date until July 31, 1936, plaintiff continued in defendant’s employment, receiving, accepting and retaining compensation at the reduced figure in equal monthly installments without protest. The original five-year term having expired on July 31, 1936, plaintiff continued in defendant’s employment for an additional year at the same reduced rate without further negotiation or arrangement of any character. On July 1, 1937, defendant wrote plaintiff that, although his contract had expired July 31, 1936, and had not been renewed and he had continued in the company’s employment at the rate of compensation provided in the modified contract, his employment would terminate on July 31, 1937. On July 31, 1937, plaintiff acknowledged receipt of this letter; and on the same day defendant wrote plaintiff further that, although his employment had been terminated as of that day, the company desired him to do some special work for it in its labor relations for the compensation of $100 per day and expenses, this arrangement to continue until such time as the company should determine to end it. On the same day plaintiff replied that the proposition as set forth in this letter was “agreeable to him” and he thereafter continued in defendant’s employment for some four years on this basis. The District Court found that the letters of May 20, 1933, constituted a modified contract of employment under which plaintiff agreed to accept a lesser compensation for future services than that provided in his original contract; overruled plaintiff’s contention that the modification was not effective for the reason that it lacked consideration and held that no consideration is necessary to support a modified agreement to accept a smaller sum for work to be done in the future than that originally specified, if thereafter it is fully executed. This holding we approve. Ordinarily an agreement modifying a former agreement by promising to accept a lesser sum in lieu of a liquidated, matured contracted amount is without consideration and void. The law of Illinois, in accord with the general authority, recognizes an exception that, where the modified contract is to be and actually is thereafter fully performed as to sums maturing after such new agreement, no consideration need be shown. Illinois holds that if the parties proceed to execute fully the modified agreement, so that nothing remains to be done by either party and it is no longer executory, the contract as executed will not be disturbed; that, so long as the modified agreement remains executory, the party waiving the greater amount and accepting the lesser has a right to repudiate the agreement and claim the full amount specified in his original contract; that while the modified agreement remains executory, one may rightfully demand full payment of the specified payments, but that, having the right to waive performance of the original agreement and carry the modified contract into effect, if he does so and fully performs and accepts the benefit of the new agreement, he cannot thereafter repudiate it and sue for the larger sum. Snow v. Griesheimer, 220 Ill. 106, 77 N.E. 110; Doyle v. Dunne, 144 Ill.App. 14; Levy v. Greenberg, 261 Ill.App. 541. Cases from other jurisdictions supporting this are Romaine v. Beacon Lithographic Co., 13 Misc. 122, 34 N.Y.S. 124; State v. American Surety Co., 137 Or. 394, 300 P. 511, 2 P.2d 1116; Julian v. Gold, 214 Cal. 74, 3 P.2d 1009, 1010; Nordfors v. Knight et ux., 90 Utah 114, 60 P.2d 1115; Price v. Price, 24 Cal.App.2d 462, 75 P.2d 655; Bishop on Contracts, 2d Ed. 37; Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 62 Idaho 683, 115 P.2d 401; 17 C.J.S., Contracts, § 376, p. 862. Plaintiff places emphasis upon Fichter v. Milk Wagon Drivers’ Union, 382 Ill. 91, 46 N.E.2d 921, but we think .the facts of that case render its pronouncements inapplicable to the present record. There plaintiff, a member of a union, paid his dues until he sustained a permanent injury-in 1928. The by-laws of the union then provided for accident and illness benefits at the rate of $20 a week throughout the continuation of the disability, with an additional $2 per week for wife and for each child under 16 years of age. The union paid Fichter at the rate of $26 weekly until December, 1935, when it amended the bylaws and advised him that it would thereafter pay him $20 per week for 92 weeks and after that nothing further. He accepted the $20 per week for 92 weeks and then sued for the payments accruing thereafter under the original by-laws. The court held that Fichter’s right to payments vested at the time of his injury and that he could not be deprived of that right by a later ex parte amendment to the by-laws. Obviously the facts are not parallel to those at bar and the resulting distinction in law is equally manifest. Plaintiff’s complaint of the action of the court in striking from his reply averments of oral conversations with an executive of the company preliminary to the execution of the modified agreement runs directly in the face of hornbook law forbidding modification of written agreements by proof of preliminary parol negotiations or inducements. Illinois recognizes the elementary principle that, where no doubt exists as to the meaning of words used in a writing, extrinsic evidence is not admissible to show the intention of the parties in using those words or the circumstances surrounding the execution of the agreement. Buchanan v. Swift, 7 Cir., 130 F.2d 483; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 133 N.E. 711; Robbs v. Illinois Rural Rehabilitation Corp., 313 Ill.App. 418, 426, 40 N.E.2d 549; Wilkin v. Citizens National Bank, 298 Ill.App. 38, 18 N.E.2d 251; Chicago Auditorium Ass’n v. Corporation of Fine Arts Building, 244 Ill. 532, 91 N.E. 665, 18 Ann.Cas. 253. Under these authorities, it is only when the terms of the agreement are ambiguous, when there is doubt as to the sense and meaning of the written contract, that resort may be had to parol evidence for the purpose of ascertaining the intention of ’the parties. Here we think there is no ambiguity, no lack of certainty as to the meaning of the modified agreement. In his letter of May 20, 1933, plaintiff said “It is understood that the 10% reduction in my salary referred to * * * shall apply for the balance of my contract.” The only condition reserved was that he would be free to submit to the Board of Directors for its consideration at any time “partial or complete restoration” of his salary to the rate specified in the original contract “for the then unexpired balance of its term.” Here is an unequivocal agreement to the lesser compensation with reservation of a right which would exist independent of its expression, namely, the right to apply for higher compensation. There being no ambiguity and no uncertainty, the court rightfully struck from plaintiff’s reply its averments of immaterial and irrelevant preceding conversations, for, inasmuch as the evidence to support the allegation would be immaterial and impertinent, the pleading likewise must fail because of the same defect. Plaintiff contends that, inasmuch as his employment was continued by defendant after the termination date of the original contract, he “held over for the same period and on the same terms as the original contract.” It is quite generally held that where one is employed under a contract having a duration of only one year and continues in the same employment and receives the same rate of pay for a short period subsequent to the termination of the contract, he will hold over in his employment on the original terms for another year pursuant to an agreement inferred by law. But it is equally true that, where the original term is for more than a year, a continuation in employment will not support a presumption of continuation for a renewal of the original term but, at the most, only of employment from year to year thereafter. 39 C.J. 49. Illinois adheres to this doctrine in contracts of leases, the law of which is analogous. Grover & Baker, etc., v. Bulkley, 48 Ill. 189, 192; Fish v. Marzluff, 128 Ill.App. 549, 551; Besley v. Ridgely, 195 Ill.App. 435; Bills v. Cooling, 187 Ill.App. 642. At best, therefore, plaintiff could urge a renewal for only one year and, inasmuch as his contract was formally terminated at the end of that year and a new one made for continuation thereafter upon specified different terms, there is no implied renewed contract. We have examined the pleadings to ascertain whether the facts as pleaded, as we have narrated them, are sufficient to support the judgment as required by Rules 8(b) and 8(d) of Federal Rules of Procedure, 28 U.S.C.A. following section 723c. We think there can be no question that every fact essential to complete final action by the court was present and that there were no averments of plaintiff which would necessitate a trial. Nieman v. Bethlehem National Bank, D.C., 32 F.Supp. 436; Reed v. Hickey, D.C., 2 F.R.D. 92; Squire v. Levan, D.C.E.D.Pa.1940, 32 F. Supp. 437. Complaint is made of the letter of July 31, 1937. It is said that the statement of the company therein is self-serving. In that document defendant reiterated termination of plaintiff’s prior employment and proposed special re-employment at $100 •a day and expenses. Plaintiff’s reply to the letter is silent as to any denial of the averments of termination, but contains his voluntary avowal that “the proposition * * * is entirely agreeable to me * * Here again is no uncertainty but a clear meeting of the minds upon a new employment contract, which was after-wards performed. The fact that there may be a self-serving statement in the first letter does not disqualify that instrument as evidence, inasmuch as plaintiff’s reply shows acquiescence therein. Kesner v. Faroll, 268 Ill.App. 531; National Importing & Trading Co. v. E. A. Bear & Co., 324 Ill. 346, 155 N.E. 343; Fenno v. Weston, 31 Vt. 345; Lotty v. Leona Holding Corp., 98 Misc. 625, 163 N.Y.S. 86; 31 C.J.S., Evidence, § 297, pp. 1065, 1066; Jones on Evidence, 2d Ed., Sec. 1050. We have examined other contentions of the plaintiff and find them without merit. The judgment is affirmed.

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

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

GILL AND DUFFUS SERVICES, INC., Appellant, v. A. M. NURAL ISLAM, et al. No. 81-2087. United States Court of Appeals, District of Columbia Circuit. Argued March 15, 1982. Decided April 13, 1982. Ernest G. Reeves, with whom W. Peyton George, Jr., Washington, D. C., was on the brief, for appellant. Wayne H. Rusch, Washington, D. C., with whom Henry A. Berliner, Jr., Washington, D. C., was on the brief, for appellees. Before MacKINNON, MIKVA and GINSBURG, Circuit Judges. Opinion filed PER CURIAM. PER CURIAM: Appellant claims a loss suffered as a result of the actions of three “associated” persons: The district court held that under the doctrine of res judicata a judgment in favor of appellant against one of those persons, even though unsatisfied, foreclosed a second action against the others. The district court misperceived preclusion doctrine. An unsatisfied judgment against one of two or more persons answerable for an injury or on an obligation generally does not bar further litigation. As a rule, “[t]he rendition of a judgment against one of two or more persons liable for a loss does not terminate a claim that the injured party may have against any other person who may be liable therefor.” Restatement (Second), Judgments § 94 (Tent. Draft Ño. 3, 1976). We therefore vacate the judgment from which this appeal has been taken. The appellant, Gill and Duffus Services, Inc., is a commodity securities broker. Appellee A. M. Nural Islam is president and owner of appellee Transcontinental IMEX. In July 1980, Islam arranged for the opening of an account with Gill and Duffus in the name of Khalid Hasan, a part-time employee of Transcontinental. The account was actively traded, principally by Islam but on occasion by Hasan. As of December 1980,' the account had an alleged deficit balance of $239,035.80. That month, Gill and Duffus sued Hasan for the deficiency in the United States District Court for the Eastern District of Virginia. In May 1981, while the action against Hasan was still pending, Gill and Duffus commenced this diversity action against Islam and Transcontinental in the United States District Court for the District of Columbia. In June 1981, the Virginia action resulted in a judgment for Gill and Duffus, entered in accordance with a jury verdict against Hasan, in the amount of $176,185.80. Shortly thereafter, Islam and Transcontinental moved to dismiss the instant action on a variety of grounds, among them, res judicata. Addressing only the res judicata plea, the district court dismissed the complaint in September 1981. In a brief memorandum, that court stated that Islam and Transcontinental were in “privity” with Hasan and therefore could not be sued by Gill and Duffus. We find this analysis misguided. As sole authority for its decision, the district court cited Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), a leading case defining the concepts of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Sunnen involved the impact of prior adjudication upon subsequent litigation between the same parties; it did not involve any attempt by a nonparty to the first adjudication to invoke that adjudication in another action as a shield against liability. In the course of elaborating preclusion principles, however, the Court used traditional res judicata terminology, “a final judgment on the merits of a cause of action [binds] the parties to the suit and their privies.” 333 U.S. at 597, 68 S.Ct. at 719. The term “privity” signifies that the relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon the others, although those others were not party to the lawsuit. See F. James & G. Hazard, Civil Procedure 576 (2d ed. 1977). It is a cornpendious term that may mislead more than it enlightens: [T]he connections indicated by “privity” . . . vary from purely procedural to essentially substantive. . . . [A] third party may invoke a prior judgment against a present adversary simply on the ground that the adversary was involved in the prior litigation and that judgment was adverse to him; no connection need be shown between the third party and the litigants in the prior action. In contrast, many preclusive effects of a judgment are wholly substantive, for example, the rule ... that a successor to property is bound by adjudications involving his predecessor in title. Restatement (Second), supra, Introduction, at 16 (Tent. Draft No. 7, 1980) (emphasis added). Islam and Transcontinental are not in “privity” with Hasan under the traditional definition of the term; they are not persons who “claim[] an interest in the subject-matter affected by the judgment through or under one of the parties, i.e., either by inheritance, succession or purchase.” See Comment, Privity and Mutuality in the Doctrine of Res Judicata, 35 Yale L.J. 607, 608 (1926) (emphasis in original). Decisions cited by Islam and Transcontinental expanding the traditional definition to encompass other relationships do not involve situations such as the one presented here. Rather, they present the question whether it is fair and reasonable to preelude a person, not a party to a prior adjudication, because someone closely connected with that person was an unsuccessful party in the prior adjudication. See, e.g., Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir. 1968) (subsidiary corporation’s unsuccessful action against defendant barred parent corporation from pursuing the same matter against the same defendant); Crane Boom Life Guard Co. v. Saf-T-Boom Corp., 362 F.2d 317 (8th Cir. 1966) (consent decree permanently enjoining defendants from infringing plaintiff’s patents barred those in “privity” with defendants from launching an attack upon, and from infringing, plaintiff’s patents), cert, denied, 386 U.S. 908, 87 S.Ct. 853, 17 L.Ed.2d 782 (1967). In this light, if Islam and Transcontinental were indeed in “privity” with Hasan, then the judgment Gill and Duffus obtained against Hasan would be binding upon Islam and Transcontinental. The logical terminal point of the “privity” argument, however, would not be to release Islam and Transcontinental. On the contrary, “privity” with Hasan should preclude them from resisting liability to Gill and Duffus for the amount due under the Virginia judgment. In short, the “privity” asserted by Islam and Transcontinental, if it in fact existed, should yield a result precisely opposite the one arrived at by the district court. Such a result, we believe, would not be fair or reasonable. Islam and Transcontinental should not be precluded from fully defending against the claims asserted in the instant action because a person merely “associated” with them, Hasan, was unsuccessful in the prior action; we therefore would not describe the three as “privies.” That label, we conclude, is inappropriate to the situation and affiliation before us. The “privity” label was misapplied by the district court and served to impede, not to advance, the proper analysis and adjudication of this case. Without regard to any notion of “privity,” had Gill and Duffus lost the Virginia action against Hasan, Islam and Transcontinental might properly have invoked that defeat to preclude relitigation of issues decided adversely to Gill and Duffus. For it is the general rule that a party defeated on the merits in a first action is thereby precluded from relitigating issues raised and necessarily decided in that action. The preclusion operates not only in favor of the opposing party in the first action, it encompasses as well persons who had no part in that adjudication. See Restatement (Second), supra, § 88 (Tent. Draft No. 2, 1975) (issue preclusion in subsequent litigation with others). But Gill and Duffus prevailed in Virginia. Joinder of Islam and Transcontinental in that action was permissive, not mandatory. See Fed.R.Civ.P. 20(a). Double recovery is surely foreclosed. See Restatement (Second), supra, § 94, comment a, at 74 (Tent. Draft No. 3, 1976). Only one satisfaction may be obtained for a loss that is the subject of two or more judgments. See id. § 95(2). Nor may Gill and Duffus try again on an issue, to the extent that it was determined against them in the Virginia action; for example, the amount due on the account was established .by the jury verdict to be $176,185.80, not the $239,035.80 demanded in the complaint. See id. § 94, comment a, at 74. Further, Gill and Duffus may be precluded from taking inconsistent positions in the two actions. See id. at 75. Subject to such constraints, however, the doctrine of res judicata is not a barrier to the maintenance of the Gill and Duffus suit against Islam and Transcontinental. For the foregoing reasons, the judgment dismissing the case commenced by Gill and Duffus against Islam and Transcontinental is vacated and the case is remanded with directions to reinstate the complaint. It is so ordered. . As an illustration of the general rule, the Restatement (Second) supplies this example: A is the payee of a note for $1,000 executed jointly by B and C. In an action by A against B on the note, C is not joined as a party. B defends on the ground that the obligation was paid, but the court finds that payment was made only to the extent of $300 and enters judgment for A for $700. A may maintain an action against C on the note but his recovery is limited to $700. Jd.t comment b, illustration 3. . The complaint in this action alleges that (1) Gill and Duffus is a New York corporation with its principal place of business in Ñew York, (2) Transcontinental IMEX is a District of Columbia corporation with a place of business in the District, (3) Islam is a resident of Maryland and a citizen of Bangladesh with a place of business in the District of Columbia, (4) Hasan is a citizen of Bangladesh residing in Virginia. Joint Appendix 3, 4. At argument, counsel for Gill and Duffus stated he did not join Islam and Transcontinental in the Virginia action because they were not amenable to service of process in that state. Counsel further stated that not until Hasan testified in the Virginia action was Gill and Duffus alerted to the prospect of a fraud claim against Islam and Transcontinental. . This court has described “privity” as an “elusive concept.” Jefferson School of Social Science v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.Cir.1963). Representative definitions in the circuit include: [T]he word [“privity”] designates a person so identified in interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved. Id. Privity is clearly established by the identity of cause of action and of interest in the two cases. Privity is “the mutual or successive relationship to the same rights of property.” First Nat’l Bank of Holdenvilie, Okla. v. Ickes, 154 F.2d 851, 853 n.9 (D.C.Cir.1946) (quoting 2 Bouvier’s Law Dictionary 2722 (3d rev. ed. F. Rawle 1914». The test of privity is whether [a party] participated in control of an action, individually or in cooperation with others, to establish and protect some proprietary or financial interest of his own. Uebersee Finanz-Korporation v. Brownell, 121 F.Supp. 420, 424 (D.D.C.1954). All these cases presented the question whether a determination adverse to a party in a first action bound a related person in a second action. . See also F. James & G. Hazard, supra, at 575-76: [Persons in “privity”] fall into two broad categories. First, a person who is not a party may be concluded when his interests have been represented by another who is authorized to act as a party on his behalf. Second, a person who is not a party may be concluded when his substantive legal right is so defined that it stands or falls according to a judgment involving another who was a party to prior litigation.... [“Privity”] remains useful as a general descriptive term but [it is a word that] must be used with great caution. . The district court’s approach to this case, however, would substantially erode the distinction between permissive and compulsory joinder. . See also the example set out at supra note 1. The slim record at this stage is inadequate to indicate whether the fraud count stated in the complaint might entitle Gill and Duffus to any sum over the amount of the judgment obtained against Hasan.

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

Ronald GIBSON, Plaintiff-Appellee and Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant and Cross-Appellee. Nos. 76-2490 and 76-2673. United States Court of Appeals, Third Circuit. Argued Oct. 17, 1977. Decided Dec. 15, 1977. S. M. Chris Franzblau, Franzblau, Falkin & Di Marzio, Newark, N. J., for appellee and cross-appellant. Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Jonathan L. Goldstein, U. S. Atty., Newark, N. J., Morton Hollander, Michael Kimmel, Attys., Civ. Div., App. Section, Dept, of Justice, Washington, D. C., for appellant and cross-appellee. Before ADAMS and GARTH, Circuit Judges, and LAYTON, District Judge. The Honorable Caleb R. Layton, 3rd, United States District Court for the District of Delaware, sitting by designation. OPINION OF THE COURT GARTH, Circuit Judge. This is the second time we have had this case before us on appeal. Plaintiff Ronald Gibson brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (1970) [FTCA], having suffered an injury from an assault which occurred on November 5, 1966 at the federal Job Corps Center at Camp Kilmer, in Edison, New Jersey. The Kilmer Center was operated by Federal Electric Company [FEC] under contract with the Office of Economic Opportunity [OEO], an agency of the United States. Gibson filed suit on November 1,1968 in the District of New Jersey. The district court dismissed the complaint on the ground that the FTCA, 28 U.S.C. § 2680(h), which exempts the United States from tort liability for the assaults and batteries of its employees, prohibited recovery. On appeal, this court reversed, holding that the facts as pleaded (which included an allegation that the United States had operational control of the Center) stated a claim upon which relief could be granted. Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972). On March 17, 1975, after a non-jury trial limited to liability, the district court filed an opinion (dated March 14, 1975) holding that, since the United States did not have day-to-day control of the Center, it could not be liable for failing to control Gibson’s assailant. The district court, however, went on to hold the Government liable for the negligent acts of FEC’s (the contractor’s) employees, under the doctrine of re-spondeat superior. Alternatively, it held the Government liable under the theory that a contractee is vicariously liable for the negligence of its independent contractor when the work performed is “inherently dangerous.” On May 20, 1976, after a bench trial on damages the district court in an unpublished opinion assessed damages at $106,980, but refused to include damages claimed because of Gibson’s alleged inability to attain a doctoral degree. The court held that Gibson’s ability to realize his professional goals had not been substantially hindered by his injury. On June 8,1976 Gibson filed a Rule 52(b) motion seeking reconsideration on the issue of damages. On June 15, 1976 the district court entered judgment against the United States in accordance with its May 20 opinion, but at that time did not dispose of the Rule 52(b) motion. On September 17, 1976 the district court denied Gibson’s Rule 52(b) motion. Both parties timely appealed, Gibson on the issue of damages (at No. 76 — 2490), and the United States on the issue of liability (at No. 76-2673). When the district court ruled in favor of Gibson on the issue of liability, it did not have the benefit of the Supreme Court’s opinion in United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), which was decided more than a year after the liability trial had concluded. Because we believe that Orleans controls, we must reverse, although we do so reluctantly in light of the eleven year history of this case. I. In 1972 our first opinion, at 457 F.2d 1391, set out the factual background in somewhat greater detail than we find necessary to repeat here. Thereafter, the district court’s unpublished opinion on liability only made extensive findings of fact, which, as they relate to the issues before us now, are summarized briefly as follows: A. The Accident. The Job Corps was created as part of the Economic Opportunity Act of 1964, 42 U.S.C. § 2711 (now 29 U.S.C. § 911), to assist disadvantaged youths by establishing rural and urban centers in which enrollees would participate in educational programs, vocational training, work experience, and other activities. The Director of OEO was authorized to enter into contracts with private contractors for the operation of Job Corps centers. Camp Kilmer was a residential training center for boys, operated by FEC pursuant to a contract with OEO. Ronald Gibson was employed by FEC as a group leader at Kilmer. As such he lived in the dormitories. On the night of November 5,1966, one of the enrollees, Andrew Jessie, became involved in several arguments and disturbances. After the second incident, Gibson took Jessie to the duty officer in charge of security, who may have placed Jessie in the security dormitory. Shortly thereafter Jessie returned to Gibson’s dormitory and became involved in another disturbance. Gibson instructed the security personnel to leave, and he tried to calm Jessie. Gibson then went to the latrine section. Jessie followed him and stabbed him in the temple with a screwdriver, inflicting severe injuries. B. The Respective Duties of OEO and FEC. Camp Kilmer was a federal reservation. There was a permanent OEO on-site representative at the Kilmer Job Corps Center, and a project manager in Washington. The OEO had broad supervisory authority over Camp Kilmer, and many aspects of the Camp’s operation were subject to OEO approval. The OEO was solely responsible for choosing enrollees, and for approving center staffing. Nevertheless, as found by the district court (Finding of Fact No. 6, Dist. Ct.Op. of Mar. 14, 1975, at 8, Appendix at 14a), control over the Center’s day-to-day operations resided in FEC. C. Security at the Kilmer Center. At the time of Jessie’s assault on Gibson, FEC had four or five unarmed, civilian security employees assigned to each shift. These security officers were not empowered to make arrests. One security dormitory at Kilmer was used to segregate enrollees who created disciplinary problems. That dormitory was identical to the other dormitories and had no special security features, bars, or locks. Under its contract with OEO, FEC was responsible for taking “all reasonable steps and precautions to prevent accidents and to protect the life and health of Contractor [FEC]... personnel performing or in any way coming in contact with the performance of this contract....” (Part XIX of Contract). FEC had authority to remove physically from the Center any enrollee causing disciplinary problems. OEO also disseminated guidelines for controlling the conduct of the enrollee corpsmen. In Bulletin J/M 67-1, dated September 19, 1966 (Government Exhibit G-l), the OEO required that “each Center must develop and enforce those rules that are necessary for its orderly functioning. Beyond this, Centers have an obligation to create an atmosphere that promotes adherence to acceptable standards of behavior..” This same bulletin additionally provided that it was the responsibility of the Job Corps Headquarters [OEO] to define general policy regarding discipline, and the responsibility of each Center [FEC] to develop and enforce disciplinary rules. The Bulletin also specified that an on-site isolation facility should be maintained for corpsmen whose behavior constituted a threat to themselves or to any other person or property, and that physical restraint and isolation could be used, but only to the extent necessary to gain control of the corpsman who posed a threat. Prior to the attack on Gibson there had been numerous incidents of misconduct by enrolled corpsmen, and the OEO had received reports concerning these disciplinary problems. In addition, FEC security personnel had discussed with the OEO on-site representative the need for a secure isolation facility and for deputization of the guards as Deputy U.S. Marshals with arrest authority. (In fact, this was part of an improvement plan (Exhibit P-7) prepared by the FEC staff at Kilmer, but never submitted to OEO for approval.) FEC, however, never requested assistance from OEO in dealing with its discipline problems, and never formally sought permission to build a security facility or to obtain arrest authority for its guards. II. The facts found by the district court which we have summarized in part IB of this opinion, when examined in light of the recent decision in United States v. Orleans, supra, lead to the conclusion that the district court erred in imposing liability on the United States for the negligence of FEC, its independent contractor, under both of the district court’s theories of vicarious liability. The plaintiff in Orleans brought suit against the Government under the FTCA when he was injured in an automobile accident. The plaintiff alleged that his injury was caused by the negligence of an employee of a community action agency funded under the Economic Opportunity Act of 1964. That agency operated community centers under a contract with OEO. Its employees were not federal employees. The Supreme Court concluded that since OEO did not exercise detailed control over the physical performance of the community agency’s tasks, the community agency was an independent contractor, and as such the United States could not be held liable for the negligence of the agency’s employees. The Court observed that the FTCA waived sovereign immunity only for the “negligent and wrongful act or omission of any employee of the Government,” 28 U.S.C. § 1346(b), and that “employee” included employees of any “federal agency,” id. § 2671, but that a “federal agency” was defined in § 2671 as not including “any contractor with the United States,” id. The Orleans Court then characterized the question as “not whether the community action agency receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government” 425 U.S. at 815, 96 S.Ct. at 1976 (emphasis added). A. Respondeat Superior. Applying the Orleans standard to the facts of the case sub judice compels us to conclude that the district court erred by its imposition of respondeat superior liability upon the United States. While it may be argued that the OEO exercised a greater degree of control over the Job Corps program and the FEC, than it did over community action agencies of the type involved in Orleans, nonetheless the district court specifically found that the Government exercised no operational, day-to-day control over Camp Kilmer or FEC’s employees. Under Orleans the United States may not be held vicariously liable for the negligence of FEC as an independent contractor (28 U.S.C. § 2671), or that of FEC’s employees, in failing to supervise or control Jessie. This result is required by the language of the FTCA, as construed in Orleans. The fact of broad, supervisory control, or even the potential to exercise detailed control, cannot convert a contractor into an agent, nor can it be the basis for imposing vicarious liability on the United States. United States v. Orleans. Thus, the district court erred in concluding that the government could be liable under the doctrine of respondeat superior because it “retained sufficient control of the manner in which FEC’s work was to be performed.” (Dist.Ct.Op. of Mar. 14, 1975 at 25, Appendix at 31a). See also Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). Indeed, this court and other courts have consistently held that the United States cannot be vicariously liable for injuries to workmen on Government construction sites, solely because the Government has retained control over the work and safety practices of the independent contractor whose negligence caused the injury. See Fisher v. United States, 441 F.2d 1288 (3d Cir. 1971). Accord, e. g., U. S. v. DeCamp, 478 F.2d 1188 (9th Cir. 1973); Gowdy v. U. S., 412 F.2d 525 (6th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 (1969); Market Insurance Co. v. U. S., 415 F.2d 459 (5th Cir. 1969); Roberson v. U. S., 382 F.2d 714 (9th Cir. 1967); Lipka v. U. S., 369 F.2d 288 (2d Cir. 1966); Grogan v. U. S., 341 F.2d 39 (6th Cir. 1965); United States v. Page, 350 F.2d 28 (10th Cir. 1965), cert. denied, 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966). B. Inherently Dangerous Activity. The district court formulated an alternative theory of liability as follows: There is another theory of liability, also based on the doctrine of respondeat superior, upon which responsibility may vest in the United States for the negligence of FEC. Simply stated, the contractee [the Government] is liable where the work performed is inherently dangerous and the contractor’s [FEC’s] negligence causes injury within the scope of that danger. Dist.Ct.Op. of Mar. 14, 1975, at 26, Appendix at 32a. Although the district court made no express reference to §§ 416 and 427 of the Restatement Second of Torts, it is evident from the New Jersey cases cited by the district court that the court’s analysis was predicated on the doctrine which those sections embody. Those sections provide: § 416. Work Dangerous in Absence of Special Precautions One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise. § 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger. The “inherently dangerous activity” doctrine of §§ 416 and 427 is an exception to the general rule that one who employs an independent contractor is not liable for the contractor’s negligence. See Rest.2d Torts § 409. The doctrine essentially states a theory of vicarious liability, “making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault.” Rest.2d Torts, Introductory Note to Topic 2 [which contains §§ 416 and 427], at 394. The liability imposed under §§ 416 and 427 is thus a form of respondeat superior liability, imposed upon a contractee as a result of the negligence of its independent contractor. But the FTCA has limited the liability of the Government to the “negligent or wrongful acts” of its employees. In this context, Government employees do not include the employees of independent contractors. 28 U.S.C. §§ 1346(b) and 2671; United States v. Orleans, supra. The inquiry then must focus on FEC’s status, and, as we have previously pointed out, FEC, which had day-to-day operational control of the Kil-mer Center, was perforce an independent contractor. Therefore, under Orleans, the Government cannot he held liable for the torts of FEC or its employees. Sections 416 and 427 of the Restatement Second, to the extent they would impose such vicarious liability on the Government, cannot provide the basis for recovery under the FTCA. Moreover, even if the theory of liability stated in §§ 416 and 427 is construed as a theory of absolute liability of “non-delegable duty” (see Rest.2d Torts, Introductory Note to Topic 2, at 394), and not as a theory of vicarious or respondeat superior liability, such absolute liability cannot be the basis for recovery in this case. It is clear that the United States may be held liable only for “negligent or wrongful acts,” and may not be held liable on any absolute liability theory. Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972) (no strict or absolute liability for ultrahazardous activity); see Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). “Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of ‘misfeasance or nonfeasance... on the part of the Government.’ ” Laird v. Nelms, supra, 406 U.S. at 799, 92 S.Ct. at 1901 (quoting Dalehite v. United States, supra, 346 U.S. at 45, 73 S.Ct. 956). C. Direct Negligence of the United States. There remains for consideration the question of the direct negligence of the United States. In his opinion, the district court judge, while carefully identifying the two theories of liability discussed above (see Parts 11(A) and (B) supra), also adverted to “a duty [of the United States] to exercise reasonable care to assure the safety of persons coming into contact with its trainees.” Dist.Ct.Op. of Mar. 14, 1975, at 27, Appendix at 33a. While this duty to which the district court opinion refers appears to pertain to the district court’s analysis of the “inherently dangerous activity” theory of liability, we do not wish to overlook the possibility that the district court was advancing still a third theory on which to predicate the Government’s liability. Such a theory would be based on a contention that OEO had notice of a dangerous situation, by virtue of the fact that it knew that many enrollees were drug users, had criminal records, or were otherwise potentially violent, and that it had received reports of disciplinary problems at Kilmer. Because OEO had such knowledge, the argument would continue, it had a duty to the plaintiff, and to others foreseeably injured by corpsmen, to take reasonable measures to assure adequate discipline and security. A failure by OEO to provide for adequate security would breach that duty of care, resulting in Government liability. See McGarry v. United States, 549 F.2d 587 (9th Cir. 1976), cert. denied- U.S. -, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977); Thorne v. United States, 479 F.2d 804 (9th Cir. 1973). The crux of this argument would necessarily be OEO’s supposed failure, in light of the character of enrollees admitted to the program, to construct or require construction of adequate security facilities, or to give FEC’s security officers arrest authority by deputizing them as Deputy U. S. Marshals. Assuming without deciding that such a theory of liability is a viable one under the FTCA, and that no discretionary function was implicated, nevertheless the record in this ease will not support a recovery for Gibson. The factual findings of the district court, rather than showing a breach of duty by the Government, demonstrate that OEO had taken reasonable measures to provide for security at the Kil-mer Center. In brief, the district court found that, while the OEO’s Project Manager was aware of a proposal that arrest authority be obtained for FEC’s security guards, and that a special isolation facility had been suggested, such a plan had never been submitted by FEC to OEO for approval. Finding of Fact Nos. 14 & 15. Moreover, FEC, which had control of the day-to-day operations at the Center (Finding of Fact No. 6), was required to submit a request for the construction of a detention facility or for deputization of its guards if it foresaw the need for these measures. No formal request was ever made by FEC' to the Government to provide for either. Finding of Fact No. 16. In addition, although an enrollee could not be discharged from the program without OEO’s permission, FEC had the authority to remove physically from the Center any corpsman who caused disciplinary problems. Finding of Fact No. 17. Of added significance is the district court’s Finding of Fact No. 18: 18) On September 19, 1966, O.E.O. in Washington issued Men’s Center Bulletin J/M 67-1 (Exhibit G-l). The bulletin delegated to the Center Directors the power to discharge enrollees for disciplinary reasons and required each Job Corps center to provide an on-site facility for the isolation of corpsmen whose conduct constituted a threat to themselves, other persons, or property. The bulletin, however, was never implemented. See also Testimony of Mr. Thomas, OEO’s Project Manager, Tr. V-148. That same Bulletin also required that each center provide an “on-site facility for the isolation of those Corpsmen whose behavior constitutes a threat to themselves, any other person, or property,” Exhibit G-l, at 8, and authorized the use of “physical restraint or isolation to prevent a Corpsman from injuring himself, another person, or property,” id.; see also Testimony of Mr. James, security assistant at Kilmer, Tr. I-92. We note as well that OEO’s contract with FEC provided that FEC would have the responsibility for taking reasonable precautions to protect the life and health of its personnel (Part XIX of Contract). From these findings it is clearly evident that the duty to provide adequate security measures devolved not upon the Government, but rather upon FEC. Accordingly, the district court’s conclusion that “the Government breached its duty when it failed to provide for adequate safety precautions,” Dist.Ct.Op. of Mar. 14, 1975, at 27, Appendix at 33a, finds no support in the record and is inconsistent with the district court’s own findings. To the extent, therefore, that the district court opinion may be construed as seeking to premise its holding on a theory of direct governmental negligence, that attempt must fail. The record reveals that OEO, in light of the supervisory nature of its responsibilities, properly discharged whatever obligation it had to assure adequate security at Kilmer. In sum, it appears that OEO after formulating its policies, made them known to FEC, informed FEC of its [FEC’s] responsibilities, required FEC to take certain basic precautions, and provided FEC with sufficient authorization to do what was necessary in order to perform its functions. Lacking operational control over the activities at Kilmer, the United States cannot be held liable for the lack of proper security facilities at Camp Kilmer. III. CONCLUSION Because FEC was an independent contractor for the United States, United States v. Orleans, supra, requires that the district court’s two theories of vicarious liability be rejected as bases for liability under the FTCA. Moreover, we conclude on the record before us that the OEO staff members, employees of the United States, were not negligent in carrying out any duty to assure adequate security at the Camp Kilmer Job Corps Center. The United States, therefore, may not be held liable under the FTCA for Gibson’s injuries, and the district court’s judgment against the United States in favor of Gibson must be reversed. Accordingly the district court will be directed to vacate its judgment of June 15,1976 and to enter a judgment in favor of the United States. As noted earlier (see note 3 supra) the entry of a judgment in favor of the United States also disposes of Gibson’s appeal as to damages at No. 76-2490, and the said appeal will be dismissed as moot. Each side is to bear its own costs. . The relevant sections of the FTCA provide: Subject to the provisions of Chapter 171 of this title, the district courts... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages...for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). As used in this chapter and sections 1346(b) and 2401(b) of this title, the term— “Federal agency” includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. “Employee of the government” includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation. 28 U.S.C. § 2671. The provisions of this chapter and section 1346(b) of this title shall not apply to. any claim arising out of assault, battery 28 U.S.C. § 2680(h). . On August 12, 1976, the United States filed a notice of appeal at No. 76-2310, appealing from the judgment of June 15, 1976. Since the pending Rule 52(b) motion suspended the finality of the June 15 order, see Fed.R.App.P. 4, the Government’s appeal was taken from a non-final order. The Government so conceded at oral argument. Accordingly, the appeal at No. 76-2310 was dismissed by the Clerk on October 31, 1977, pursuant to Fed.R.App.P. 42(b), per stipulation of the parties. . Because we reverse on liability, we do not reach the issue of damages. . The evidence and the findings below are not clear as to whether or not Jessie was actually placed in the security dormitory. If he was placed there, however, he did not remain so confined. . The district court found that 42 U.S.C. Sec. 2715 provided that no individual was to be selected as an enrollee unless it was determined that “he is not likely to engage in actions or behavior that would prevent other enrollees from receiving the benefit of the program or be incompatible with the maintenance of sound discipline.. Section 2720 provided that “within the Job Corps centers standards of conduct and department shall be provided and stringently enforced.” Finding of Fact No. 2, Dist.Ct.Op. of Mar. 14, 1975, at 8, Appendix at 13a. . The contract appears in the Record as Plaintiffs Exhibit P-9. The page of the contract (page 9) containing Part XIX is missing from the Exhibit. It is the only page missing from the 57-page contract and schedule. The language of Part XIX quoted in the text is taken verbatim from the Government’s Brief at 9-10. No issue has ever been taken with this language by Gibson. We therefore attach no significance to the fact that page 9 is missing from the contract placed into evidence, attributing its absence to an inadvertent error in collation. . We recognize that in our case Jessie had been found by the district court to be a federal employee. Finding of Fact No. 41, Dist.Ct.Op. of Mar. 14, 1975, at 13, Appendix at 19a. That difference between this case and Orleans is not significant because here Gibson complains of FEC’s (and its employees’) actions in failing to supervise Jessie properly, rather than the actions of Jessie himself. It is clear that Jessie’s actions cannot be imputed to the United States because the FTCA does not apply to any “claim arising out of assault [or] battery... 28 U.S.C. § 2680(h). See note 1 supra. . Gibson makes the argument that Orleans was also based on the fact that the community action agencies involved in that case were “local” in character, and that this case is distinguishable in that the Job Corps program was a national one, and did not have a “local” character. While we agree that the Court in Orleans may have been influenced in part by the “local” nature of the community action agency, the key to the Court’s holding was clearly the lack of operational control by the Government (despite its close supervision of the community action agency, 425 U.S. at 807, 96 S.Ct. 1971), and accordingly the Court only looked to the community action agency’s “local” character for additional support for its conclusion. See 425 U.S. at 817-18, 96 S.Ct. 1971. . Section 427 is “closely related to, and to a considerable extent a duplication of, [the rule] stated in § 416.” Rest. 2d Torts § 427, comment a. . Whether the facts of this case present a situation to which § 416 or § 427 may properly be applied is not at all clear. We are not convinced that a Job Corps center “poses a peculiar risk of physical harm” or is inherently dangerous. Nor are we persuaded that an employee of a contractor, injured by the negligence of that contractor, may recover under the doctrine of §§ 416 and 427. It has been argued that the “inherently dangerous activity” doctrine is limited to third parties such as innocent bystanders or adjacent landowners. See Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170-71, 115 A.2d 553, 555 (1955); Wolczak v. National Elec. Products Corp., 66 N.J.Super. 64, 75, 168 A.2d 412, 414 (App.Div.1961); see also Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (E. & A. 1942). But see Rodrigues v. Elizabethtown Gas Co., 104 N.J. Super. 436, 444, 250 A.2d 408, 412 (App.Div. 1969) (dictum); Woolen v. Aerojet General Corp., 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708, 711 (1962). Given our disposition of this issue, however, we do not find it necessary to decide these questions. . Indeed, the Introductory Note cited in the text goes on to state that “the liability imposed is closely analogous to that of a master for the negligence of his servant.” . Our difficulty in assessing the direction taken in the district court opinion stems from the district courts language, which speaks to the breach of the government’s duty, in failing to provide for adequate safety precautions, as leading to liability in favor of the plaintiff, “regardless of the fact that it delegated certain functions to FEC, an independent contractor.” Dist.Ct.Op. of Mar. 14, 1975, at 27, Appendix 33a. However, despite this statement, the district court’s conclusion makes no reference to direct liability, but instead holds that liability is to be found because of respondeat superior and the presence of an “inherently dangerous activity” (both of which, as we have pointed out, constitute theories of vicarious liability). If the record does support a theory of liability not addressed by the district court, we may nevertheless affirm. PAAC v. Rizzo, 502 F.2d 306 (3d Cir. 1974). In this case, however, as we observe in the text, the record does not provide a basis on which the district court’s conclusion can be sustained on this theory, any more than it can be sustained on the two theories of vicarious liability. . Certainly OEO cannot be held to have been negligent for selecting and enrolling drug users, former criminal offenders, and ghetto youths, since those are precisely the people the program was designed to help. See 42 U.S.C. § 2715. . See McGarry v. United States, supra; Thorne v. United States, supra. But see Fisher v. United States, supra, and cases cited at p. 1243 of this opinion, supra. . See 28 U.S.C. § 2680(a). It may well be that any decision with respect to the type of security facilities which should be provided at the Job Corps centers is made at a planning rather than at an operational level. If so, the decision would be pursuant to a discretionary function and excepted from FTCA liability. See Daleh-ite v. United States, supra, 346 U.S. at 42, 73 S.Ct. 956; Driscoll v. United States, 525 F.2d 136, 138 (9th Cir. 1975). However, we do not pass upon this question. . Moreover, to the extent that the lack of arrest authority was crucial (although it is difficult to ascertain in what way arrest authority would have averted Jessie’s attack on Gibson), FEC clearly believed that obtaining such authority was its responsibility. See Exhibit P-3 (a letter from FEC’s Center Director to the OEO Project Manager, dated April 19, 1966, describing the Center Director’s attempt to get special authority for his security officers from local police); Exhibit P-7 (Kilmer Improvement Plan, dated June 22,

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

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

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