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Ismael COLON NUNEZ, Plaintiff, Appellant, v. HORN-LINIE, Defendant, Third-Party Plaintiff, Appellee, v. FRED IMBERT, INC., et al., Third-Party Defendants, Appellees. No. 7275. United States Court of Appeals, First Circuit. Heard Feb. 2, 1970. Decided March 27, 1970. Harvey B. Nachman, San Juan, P. R., with whom Nachman, Feldstein, Lafitte & Smith, San Juan, P. R., was on brief, for appellant. A. Santiago Villalonga, San Juan, P. R., with whom Hartzell, Fernandez, Novas & Ydrach, San Juan, P. R., was on brief, for appellee. Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. This appeal raises a difficult issue concerning the construction of Puerto Rico’s Workmen’s Accident Compensation Act, 11 L.P.R.A. § 1 et seq. More specifically, we must decide whether a shipowner who hires an independent stevedoring contractor is a “third party” within the meaning of 11 L.P.R.A. § 32, and hence liable to suit by an injured longshoreman, or an “employer” who “insures his workmen” within the meaning of 11 L.P.R.A. § 21, and therefore immune from civil liability. The case arises from injuries sustained by plaintiff Ismael Colon Nunez, a Puerto Rican longshoreman, while working aboard a vessel owned by defendant Horn-Linie, a West German corporation. Plaintiff filed suit in federal district court, alleging that his injuries had been caused by defendant’s negligence and the unseaworthiness of its vessel. Defendant moved for summary judgment on the grounds that it was plaintiff’s “statutory employer” and hence entitled to immunity from suit under the Compensation Act, 11 L.P.R.A. § 21. For purposes of defendant’s motion, the parties stipulated that plaintiff had been employed by an independent stevedoring contractor, who had insured plaintiff as required by the Compensation Act; that plaintiff had already received the benefits to which he was entitled under the Compensation Act; and that defendant carried no workmen’s compensation insurance. The district court, relying on this court's decision in Musick v. Puerto Rico Telephone Co., 357 F.2d 603 (1st Cir. 1966), and its own extensive opinion in Lopez Correa v. Marine Navigation Co., 289 F.Supp. 993 (D.P.R. 1968), granted defendant’s motion. The decision of the district court highlights a latent conflict among the decisions of this circuit interpreting Puerto Rico’s Compensation Act. In a case similar to this, Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1st Cir. 1956), we permitted a longshoreman’s action for unseaworthiness on the grounds that the shipowner was a “third party” within the meaning of 11 L.P.R. A. § 32, a provision which preserves the rights of employees against strangers who contribute to their injuries. We reaffirmed this holding in Waterman Steamship Corp. v. Rodriguez, 290 F.2d 175 (1st Cir. 1961). Subsequently, in Musick v. Puerto Rico Telephone Co., supra, a diversity case involving no issue of maritime law, we decided that principal contractors who were potentially liable to the employees of their subcontractors under the Compensation Act, 11 L.P.R.A. § 20, were also entitled to immunity from suit under the statute’s exclusive remedy provision, 11 L.P.R.A. § 21. As plaintiff points out, applying Musick in a maritime context would effectively overrule Guerrido. Plaintiff seeks to avoid this result by emphasizing that the rights he asserts are based on federal rather than Puerto Rican law, but his attempt founders on the special status of Puerto Rico’s coastal waters. Normally, federal law governs maritime torts, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 409, 3 L.Ed.2d 550 (1959), but Congress has granted Puerto Rico the power to pass inconsistent legislation governing the rights of local workers in local waters. Guerrido v. Alcoa Steamship Co., supra. Thus, if Puerto Rico’s Compensation Act conflicts with the federal remedies which plaintiff asserts, Puerto Rican law prevails. Fonseca v. Prann, 282 F.2d 153 (1st Cir. 1960); Alcoa Steamship Co. v. Perez Rodriguez, 376 F.2d 35 (1st Cir. 1967). To avoid this logic, plaintiff challenges the Musick doctrine itself. He places special emphasis on the decision of the Supreme Court of Puerto Rico in Gonzalez v. Cerveceria Corona, Inc. (No. R-68-272, Jan. 29, 1969), a decision which, though cryptic, seems inconsistent with Musick. Plaintiffs in Gonzalez sought recovery from a building owner for the wrongful death of a painter. The deceased had been employed by an independent contractor who had procured the necessary compensation insurance. Relying on our decision in Mu-sick, the lower court granted the building owner’s motion for summary judgment on the grounds that it was the deceased’s “statutory employer” and hence entitled to immunity from suit. Plaintiffs sought review by Puerto Rico’s Supreme Court, arguing that the Musick doctrine did not reflect the law of Puerto Rico. A division of the court reversed without opinion, remanding for findings on who was in fact the deceased’s employer and for trial on the issue of the building owner’s negligence. Although the lack of an opinion obscures the rationale of this decision, the court’s failure to apply Musick in a case where Musick seemed clearly applicable provides us with a strong incentive to reexamine our interpretation of Puerto Rican law. When we decided Musick we recognized that the precise question was one of first impression. No decision of the Supreme Court of Puerto Rico then provided guidance. Nor were we aware of the possible relevance of Guerrido, perhaps because Musick contained no smell of the sea. We therefore addressed ourselves directly to the language of 11 L. P.R.A. § 21, which grants exemption from civil liability “when an employer insures his workmen or employees”. We decided that the principal contractor was an “employer” within the meaning of this section because the statute sometimes imposed on him an employer’s liability for compensation. He “insured” his subcontractor’s employees, we thought, because he bore the additional expense of hiring insured subcontractors. However, after a careful reconsideration prompted by a recognition, of the relevance of Guerrido and by the subsequent decision of the Supreme Court in Gonzalez v. Cervecería Corona, we have decided that our earlier views were not required by the statute. We first inquire whether the principal contractor is an “employer” within the meaning of the statute. No provision of the Compensation Act defines employer. Nevertheless, inspection of the statute as a whole indicates that the term is usually used in the ordinary sense to denote one who engages the services of workers and supervises their labors. For example, the statute obliges “every employer” to keep a register of his employees, their positions and wages, 11 L.P.R.A. § 29, to make detailed annual statements concerning wages and types of employment to the Manager of the State Insurance Fund, 11 L.P.R.A. § 28, and to report all accidents involving his employees, 11 L.P.R.A. § 14. These duties fall most naturally on the subcontractor who engages a worker for hire rather than on the principal contractor whose dealings with his subcontractor’s employees are likely to be few and fleeting. An exception to this general usage is 11 L.P.R.A. § 20, which provides that: “Every insured employer shall, on reporting his annual payrolls, include in said payrolls the wages paid to all the workmen and employees working for or employed by him, whether by job or under some person with whom the employer contracted for the job, or under a contractor or independent subcontractor employed or contracted by said employer; and all accounts or taxes collected by the State shall be based on the employer’s current payroll in which shall be included the above-mentioned laborers; Provided, that this provision shall not be applicable to employers for whom work is done by an independent contractor who is insured as an employer under the provisions of this chapter.” (Italics added.) This provision by its terms seems to treat a principal contractor as the “employer” of all workers engaged in his business, regardless of contractual relations of hire. However, as the Supreme Court of Puerto Rico has pointed out, the liability of the principal contractor is conditional and attaches only when the subcontractor fails to meet his obligations. Montaner, Mgr. v. Industrial Comm., 59 P.R.R. 284, 289 (1941). As long as the subcontractor remains insured, the principal contractor escapes all the manifold duties which the Act imposes on employers. The choice of terminology in section 20 does not, in our opinion, necessarily reflect an intent to make the principal contractor the employer for all purposes, but only a desire to avoid the technical distinctions between employees and independent contractors to which employers sometimes resort in an effort to avoid the burden of social legislation. See Montaner, Mgr. v. Industrial Comm., 59 P.R.R. at 290; cf. N. L. R. B. v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); Brodie, The Adequacy of Workmen’s Compensation as Social Insurance, 1963 Wisc.L.Rev. 57, 63-65. This rationale does not, we think, compel extending an employer’s immunity to a principal contractor who bears none of an employer’s statutory burdens. A second exception to the statute’s general usage of “employer” may be found in 11 L.P.R.A. § 16, a provision dealing with the penalties to be assessed against uninsured employers. Section 16 provides that injured employees prejudiced by their employer’s failure to insure may bring suit for damages, and goes on to provide: “In such proceedings, the fact that the workman or employee was guilty of contributory negligence; or that he assumed the risk of the injury; or that the injury was caused by the negligence of a contractor or independent subcontractor, unless such contractor or independent subcontractor is insured in accordance with the provisions of this chapter, shall not constitute a defense for the employer.” (Italics added) The exception for injuries caused by insured subcontractors, while admittedly ambiguous, seems tacitly to assume that a principal contractor may in some cases be the “employer”. In context, however, the effect of this exception is not to exempt totally the principal contractor from civil liability, but only to restore an affirmative defense or defenses which the Act otherwise denies him. This interpretation of the proviso supports plaintiff’s argument that the principal should be subject to normal civil liability when his subcontractor is insured. We therefore conclude that, under Puerto Rican law, the principal contractor is not the “employer” of workers hired by an insured independent contractor. Nor do we now think that the principal contractor “insures” the employees of independent contractors as we held in Musick. The Compensation Act uses the term “insures” in a specific sense, meaning to make detailed annual statements, 11 L.P.R.A. § 28, and to pay the premiums which the Manager of the State Fund assesses on the basis of such statements, 11 L.P.R.A. § 26. It is true, as we pointed out in Musick, that the principal contractor does “insure” his subcontractor’s workers in the sense that he must ultimately bear the burden of his subcontractor’s insurance premiums in the form of higher costs. In this respect, however, the burden on the principal contractor is no different than that on any other Puerto Rican businessman or consumer. Puerto Rico’s compensation scheme, unlike many others, applies to every worker engaged in the business of his employer. 11 L.P.R. A. § 2; DeCastro v. Industrial Comm., 72 P.R.R. 622 (1951). The expense of insurance under such a pervasive scheme is simply a cost of doing business to be borne by all who participate in Puerto Rico’s economy. Thus we conclude that the principal contractor who does not himself assume the reporting obligations and pay the premiums does not insure his subcontractor’s employees within the meaning of the Compensation Act. This conclusion is, we think, in accord with the policies expressed by Puerto Rico’s compensation scheme. Section 32 of the statute, 11 L.P.R.A. § 32, carefully preserves the rights of workmen injured “under circumstances making third parties liable” and permits the Manager of the State Insurance Fund to subrogate himself to the injured workmen’s rights. The third persons who pose the greatest threat to a worker’s safety are those like the principal contractor who are employed on the same project. We would deprive section 32 of much of its efficacy if we excluded all statutory employers from its scope, especially since Puerto Rico gives broad application to the statutory employer concept. Moreover, provisions like section 32 are designed to insure that the burden of loss falls ultimately on the actual wrongdoer rather than the injured worker or his insurer. 2 Larson, Workmen’s Compensation Law § 71.10 (1969). In the light of this policy, it would be anomalous if a foreign shipowner could escape the consequences of his wrongdoing and throw the burden of an injured worker’s loss back onto the economy of Puerto Rico merely because he employed an insured stevedoring contractor. This anomaly has sometimes been justified on the grounds that immunity from suit is necessary to induce the principal contractor to hire insured subcontractors. In this view, immunity is required to guarantee that the principal contractor who insists on insurance will be in a better position than his counterpart who deals with uninsured— and therefore cheaper — subcontractors. Bindbeutel v. L. D. Willcutt & Sons Co., 244 Mass. 195, 138 N.E. 239 (1923); 2 Larson, supra at § 72.31, p. 194, both cited in Musick v. Puerto Rico Telephone Co., supra, 357 F.2d at 605. This argument may have merit in the approximately 25 states where compensation insurance is optional, or in those jurisdictions where substantial numbers of employers are exempt from coverage. 3 Larson, supra at Appendix A, Tables 3, 7. But Puerto Rico’s Act, as we have seen, covers virtually all of the island’s employers, and its provisions are mandatory. 11 L.P.R.A. § 29. Puerto Rico has reinforced these mandatory provisions with stiff penalties for those who fail to comply. Failure to insure subjects an employer to fine and imprisonment, 11 L.P.R.A. § 18, to substantial civil penalties for injuries sustained by his employees, 11 L.P.R.A. § 16, and, in some cases, to injunctions against further work until the requisite insurance has been obtained, 11 L.P.R.A. § 2. Furthermore, the sins of the subcontractors may be visited on their principal contractors. If both the subcontractor and the principal contractor fail to insure the subcontractor’s employees, then the principal contractor may be treated as an uninsured employer even though he has paid the premiums for his own immediate employees. Puerto Rico American Sugar Refinery, Inc. v. Industrial Comm., 63 P.R.R. 611 (1944); see 11 L.P.R.A. § 26. Thus the principal contractor who attempts to cut costs by hiring an uninsured subcontractor must run a gamut of penalties which will ultimately make disobeying the law more costly than obedience. These provisions indicate to us that the legislature intended to insure compliance with the stick of punishment rather than the carrot of immunity from liability. Cf. Probst v. Southern Stevedoring Co., 379 F.2d 763, 766 (5th Cir. 1967). We therefore overrule Musick v. Puerto Rico Telephone Co., supra, and hold that, under Puerto Rican law, a longshoreman employed by an independent, insured stevedoring contractor may sue a shipowner for injuries caused by the shipowner’s negligence or the unseaworthiness of his vessel. Reversed and remanded for proceedings not inconsistent with this opinion. . Since the Compensation Act covers accidental death as well as injury, 11 L.P. R.A. § 3 subd. 5, workmen’s compensation is the exclusive remedy of the beneficiaries of a deceased worker against his employer. Thus a broad reading of Musick would in effect overrule our decision in Compañía Transatlantica Espanlo, S.A. v. Melendez Torres, 358 F.2d 209 (1st Cir. 1966), where we applied the doctrine of The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1958), to permit an action under Puerto Rican law for the wrongful death of a longshoreman caused by the unseaworthiness of a vessel. . 11 L.P.R.A. § 21. Exclusiveness of Remedy : “When an employer insures his workmen or employees in accordance with this chapter, the right herein established to obtain compensation shall be the only remedy against the employer, even in those cases where maximum compensations and benefits have been granted in accordance thereof * * *." . 11 L.P.R.A. § 32. Third party; subrogation : “In cases where the injury, the occupational disease, or the death, entitling the workman or employee, or his beneficiaries, to compensation in accordance with this chapter, has been caused under circumstances making third parties liable for such injury, disease or death, the injured workman or employee or his beneficiaries may claim and recover damages from the third party liable for said injury, disease, or death, within one year following the date when becomes final the decision of the case by the Manager of the State Insurance Fund, who may subrogate himself in the rights of the workman or employee or his beneficiaries to institute the same action * * *." . Under many state statutes, an employer becomes a “statutory employer” only when he hires outside help to perform work which would otherwise be accomplished by his own employees. If the work in question is normally performed by independent contractors, then the employer has no obligation to insure and no namunity from suit, even though the work is intimately related to his own business. Cannon v. Crowley, 318 Mass. 373, 61 N.E.2d 662 (1945); 1A Larson, supra at § 49.12. This interpretation, however, is usually based on restrictive language which Puerto Rico’s Act does not contain. Thus a Puerto Rican businessman who enters a contract for services arguably assumes all the obligations of a statutory employer, whether or not the services are normally performed by his own employees. See Montaner, Mgr. v. Industrial Comm., 57 P.R.R. 263 (1940). . Of course, the shipowner bears part of the loss because the bill from his stevedoring contractor includes the cost of compensation insurance. Workmen’s compensation, however, covers only a relatively small percentage of an injured worker’s total loss. See McCoid, The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Non-Employers, 37 Tex.L.Rev. 389, 401, 402 (1959).

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?

Nick FIORENTINO, Leon Di Abundo and Nick Di Abundo, Trustees in Dissolution of the Century Transit Co., a corporation of the State of New Jersey v. UNITED STATES of America. No. 11590. United States Court of Appeals Third Circuit. Argued Oct. 4, 1955. Decided Oct. 24, 1955. Walter Akerman, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, A. F. Prescott, Sp. Assts. to the Atty. Gen., Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., John H. Mohrfeld, III, Asst. U. S.. Atty., Camden, N. J., on the brief), for appellant. Norman Heine, Camden, N. J., for ap-pellee. Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges. GOODRICH, Circuit Judge. This case presents a question of the jurisdiction of a district court of the United States in an action to recover taxes paid to the federal government. The District Court for the District of New Jersey gave a money judgment for the taxpayer and the government appeals. The Commissioner of Internal Revenue in 1943 mailed to the taxpayer a statutory notice of a deficiency for the years 1939,1940 and 1941. This notice advised it of the determination of the deficiencies in its federal taxes for that period. Within the ninety days thereafter as provided by statute the taxpayer filed a petition for redetermination with the Tax Court. The Commissioner, through his counsel, filed a motion for dismissal on the ground that the petition, in form, failed to comply with the rules and practices of the Tax Court. This motion was heard by the Tax Court and on June 25, 1943, the proceedings were dismissed for lack of prosecution. The Tax Court determined that the deficiencies existed in the amount determined by the Commissioner. Later the taxpayer paid the Collector in Camden, New Jersey, the amount of the deficiencies plus interest and filed claims for a refund which were disallowed and then proceeded to bring suit in the federal court for the district of New Jersey. The question for our consideration is whether that court had authority to hear the case. The statutory provision is found in section 322 of the Internal Revenue Code of 1939. This section provides that if a notice of deficiency has been sent a taxpayer “and if the taxpayer files a petition with the Board of Tax Appeals within the time prescribed * * * no suit by the taxpayer for the recovery of any part of such tax shall be instituted in any court * * Then follow certain exceptions not relevant here. When one looks at the facts of this case and then reads the language of the statute there seems little doubt that the statutory language covers the matter precisely. The taxpayer did file his suit •for redetermination with the Tax Court. The Tax Court eventually dismissed for lack of prosecution. The taxpayer could have appealed to the Court of Appeals. He did not. The statute, we think, very effectively bars the suit in district court for recovery of the alleged overpayment. There is good authority squarely on the point that a dismissal for want of prosecution is a sufficient determination of the case by the Tax Court to bar the taxpayer from proceeding in district court. Monjar v. Higgins, 2 Cir., 1943, 132 F.2d 990; Resnik v. Welch, D.C.D.Mass.1941, 37 F.Supp. 112; accord, Warren Mfg. Co. v. Tait, D.C.D.Md.1932, 60 F.2d 982. Indeed, this is a situation anticipated by the Congress when the statute was passed, as is shown by the committee report. The taxpayer cites and relies upon the case of Cutting v. United States, D.C.E.D.N.Y.1939, 26 F.Supp. 586 where a suit was permitted in the district court following taxpayer’s earlier communication to the Board of Tax Appeals. If that case is to be regarded as properly decided it must be on the basis that the communication to the Board was so completely vague that nothing was presented to the Tax Court on which it could tell what the taxpayer wanted or why he wanted it. That a presentation to the Tax Court defective in form does not prevent the jurisdiction of that body from attaching see Continental Petroleum Co. v. United States, 10 Cir., 1936, 87 F.2d 91, certiorari denied 1937, 300 U.S. 679, 57 S.Ct. 670, 81 L.Ed. 883. The Tax Court rules provided amply for amendments to pleadings. It is well settled that pleadings defective in form do not affect the jurisdiction of a court to entertain a case for whatever action may be appropriate therein. There is only one further point to discuss and the taxpayer makes much of it. As said above, the Commissioner’s objection to the taxpayer’s petition was that it was not in the proper form. The final dismissal by the Tax Court was for want of prosecution. The Commissioner now argues that the filing of the petition, although defective in form, barred the taxpayer from proceeding in the district court. The taxpayer regards this argument as a proof that the Commissioner has blown hot and cold and he does not think the Commissioner should be permitted to do so. He points to no rule of law requiring the Commissioner to be consistent at all stages of the proceeding, even assuming that there is an inconsistency, which we think there is not here. The judgment of the district court will be reversed and the case remanded with directions to enter judgment for the defendant. . See Century Transit Co. v. United States, . D.C.N.J.1951, 99 F.Supp. 692; Id., D.C. N.J.1954, 124 F.Supp. 148. . Century Transit Company will be referred to as the taxpayer; the individual plaintiffs are its trustees in dissolution. . Int.Rev.Code of 1939, § 272(a) (1), 53 Stat. 82, 26 U.S.C.A. . Int.Rev.Code of 1939, § 322(e), 53 Stat 92, 26 U.S.C.A. . Int.Rev.Code of 1939, § 1117(d), 53 Stat. 161, 26 U.S.C.A., provides that “a decision of the Tax Court dismissing the proceeding shall be considered as its decision that the deficiency is the amount determined by the Commissioner * * . Int.Rev.Code of 1939, § 1142, 53 Stat. 165, 26 U.S.C.A. . This report is set out as a footnote to Moir v. United States, 1 Cir., 1945, 149 F.2d 455, 458 note 7. . Tax Ct. Rule 17, 26 U.S.C.A. following section 7453. . Thompson v. Terminal Shares, 8 Cir., 1937, 89 F.2d 652, 655, 657, certiorari denied Guaranty Trust Co. of New York v. Thompson, 1937, 302 U.S. 735, 58 S.Ct. 121, 82 L.Ed. 568; see also Binderup v. Pathe Exchange, Inc., 1923, 263 U.S. 291, 44 S.Ct. 96, 68 L.Ed. 308.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

BANK OF AMERICA, NAT. TRUST & SAVINGS ASS’N v. LERER. No. 7508. Circuit Court of Appeals, Ninth Circuit. May 20, 1935. Torregano & Stark and Charles M. Stark, all of San Francisco, Cal., for appellant. Eli Freed, of San Francisco, Cal., for appellee. Before WILBUR, GARRECHT, and DENMAN, Circuit Judges. WILBUR, Circuit Judge. On April 26, 1933, one Thanos D. Lagios, doing business under the fictitious name of Standard Dairy Products Company, Limited, filed a voluntary petition in bankruptcy. Upon liquidation there was' not sufficient funds to pay the claims of the-creditors in full. For the four months pre-' ceding the filing of the petition, the bankrupt was unable to pay his- debts, and his-liabilities exceeded his assets over that .period of time. The bankrupt was indebted, to the French-American Branch of the Bank of America for more than four-months previous to bankruptcy in the sum. of $500, which was evidenced by a promissory note. This amount was the balance due upon an original debt of $1,000, $500‘ having been paid and the -note for the balance having been renewed in September,. 1932; The bankrupt had in his possession two'automobile trucks which he was operating in his business; the Bank of America had' the certificates of registration dated in Sep-' terfiber, 1932, showing that “legal” 'title ta-the trucks was in the bank; • 'the “registered” title was m the Standard Dairy-Products Company, Limited, as required by section 41 (Cal. Stat. 1931, p. 2104), section 44 (Cal. Stat. 1929, p. 514), and section 451/4 (Cal. Stat. 1931, p. 2517) of the Motor Vehicle Act, in case of a chattel mortgage. Although it is argued in the brief that there is no valid chattel mortgage from the bankrupt to the bank, upon the argument it was conceded that the trucks were hypothecated for the loan. On April 17, 1933, a few days before the voluntary petition in bankruptcy was filed (April 26, 1933), an arrangement was entered into by the bank, the bankrupt, and a friend of the bankrupt, named Economou, who had agreed to lend his credit to the bankrupt by executing his own note for $500 payable to the bank in consideration of the surrender by the bank to the bankrupt of the $500 note and the sale to Economou of the two automobile trucks. Thus stated, the transaction, so far as the bank is concerned, assumed the form of a purchase by Economou of the interest of the bank in the trucks for the sum of $500, and there was no preferential payment by the bankrupt to the .bank, and so far as the bankrupt was concerned, of the surrender of his equity in the trucks in consideration of the accommodation maker’s note. The evidence shows, however, that the bank upon the receipt of the $500 note from Economou in lieu of the $500 note of the bankrupt issued its check to Economou payable to him for the sum of $500 and that this check was taken by Economou and the bankrupt to the paying teller’s window where $500 was paid either to Economou or the bankrupt. They returned to the window where the bankrupt’s note and collateral were kept where the money was exchanged for the promissory note of the bankrupt and for the registration slips indicating that the bank was chattel mortgagee of the automobile trucks. The transaction thus assumed the form of the loan by the bank to Economou of $500 upon his promissory note and the purchase by Economou from the bank with the fund loaned of the bank’s chattel mortgage. In any view the bank received nothing at that time from the bankrupt. Whatever it received was from Economou who made the promissory note for which the bankrupt’s note and collateral security were surrendered, and, consequently, the action to recover a preferential payment cannot be maintained. The trial court found there was a payment of $500 from the bankrupt to the bank, but the evidence is undisputed and the conclusion of the trial judge upon that subject was an erroneous conclusion of law rather than of fact. See First Nat. Bank of Danville v. Phalen (C. C. A.) 62 F.(2d) 21, 88 A. L. R. 75; Doughty v. Nassau Factors Corp. (D. C.) 56 F.(2d) 862. Order 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. 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?

Esterya MENON and Ruby Rebecca Menon, an infant under the age of 14 years, by her mother, Esterya Menon, Relators-Appellees, v. P. A. ESPERDY, as District Director of the Immigration & Naturalization Service, Respondent-Appellant. No. 152, Docket 32694. United States Court of Appeals Second Circuit. Argued Oct. 31, 1968. Decided June 30, 1969. Esterya Men on, New York City, pro se, Edith Lowenstein, New York City (Robert Pincus, New York City, on the brief) by appointment of the Court, for relators-appellees. Francis J. Lyons, Special Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York and Daniel Riesel, Special Asst. U. S. Atty., on the brief), for respondent-appellant. Before LUMBARD, Chief Judge, and KAUFMAN and HAYS, Circuit Judges. LUMBARD, Chief Judge: Relators Esterya Menon and her minor daughter, Ruby Rebecca Menon, were ordered excluded from the United States by the Board of Immigration Appeals on July 13, 1965. Subsequently they received notice from the Immigration and Naturalization Service to report for deportation to Turkey. Relators challenged their exclusion order by bringing a declaratory judgment action in the district court, which properly treated the action as a habeas corpus application under 8 U.S.C. § 1105a(b) (Supp.1969). Judge Cooper’s decision and order, filed November 15, 1965, held that the exclusion order was valid, but also ruled that the Menons could not be deported to Turkey since it was not the country “whence [they] came” under § 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a) (1964). Although both the Menons and the government appealed, the Menons later moved to withdraw their appeal on August 1, 1968, which motion was granted. We affirm the order of the district court in all respects, and hold that the Menons may be deported only to Switzerland under § 237(a). Section 237(a) provides a deceptively simple formula for determining the country to which aliens may be deported after they have been found excludable from the United States: “Any alien * * * arriving in the United States who is excluded under this chapter, shall be immediately deported to the country whence he came, in accommodations of the same class in which he arrived, on the vessel or aircraft bringing him, unless the Attorney General, in an individual ease, in his discretion, concludes that immediate deportation is not practicable or proper.” Obviously the statute’s goal of immediate deportation has not been achieved in this ease, despite the absence of any determination by the Attorney General that it is not practicable or proper. Instead, the factual and procedural status of the Menons’ case has grown increasingly complex over the course of three years of litigation. It is necessary to review this background in some detail before we can understand how the intent of § 237(a) has been so frustrated, and before we can address the underlying issue of the manner in which the courts should construe the statute. Mrs. Menon has led a life of international scope, as is indicated by the fact that she speaks seven languages. The record reveals that she was born in Istanbul, Turkey, in 1926, and she is still a Turkish citizen. In 1949 Mrs. Menon moved to Israel; she is of the Jewish faith. While in Israel she met her future husband, V. P. Menon, a national of India employed by the United Nations. Mr. Menon was assigned to Geneva, Switzerland in 1953, and he sponsored the travel of his prospective bride to that city in March of the same year. The Menons were married in Geneva on July 16, 1953. The Menons have not lived together since 1956, but it appears, although the record is not entirely clear on this point, that their marriage is still valid and that no legally effective separation agreement or divorce decree has been obtained. In 1956 Mr. Menon was transferred to Seoul, Korea, and did not take his wife with him. Their daughter, Ruby Rebecca, born in Geneva July 6, 1956, is a Turkish citizen by virtue of her mother’s citizenship. Mr. Menon was stationed in New York between 1960 and 1962, and during this period Mrs. Menon formed the intention of coming to this country. The record contains a letter to her from Mr. Menon dated December 11,1961 rejecting her request to come to this country as his dependent, and also stating his desire for a divorce. But Mrs. Menon successfully obtained from the United States consulate in Geneva, on December 8, 1961, a non-immigrant visitor-for-pleasure visa (a “B-2” visa) good for applications for admission to this country until December 8, 1965. The visa has on it the notation “visit relatives,” and Mrs. Menon did indeed visit a relative in Detroit while present in this country. Her primary purpose, however, may have been to gain in per-sonam jurisdiction over Mr. Menon in order to sue him for support. She has achieved a certain degree of success in this effort through the New York courts. Although the present status of this litigation is not apparent, at some point Mrs. Menon obtained a court order requiring the payment of $45 a week by her husband, an amount which was deducted by the United Nations from his paycheck and used to finance Ruby’s education. It seems clear that at the time of her application for a visa to this country Mrs. Menon and her daughter were residents of Geneva, living in an apartment still in Mr. Menon’s name. The consular officials in Geneva must have believed that Mrs. Menon, upon the conclusion of her visit to the United States, would return to Switzerland, for an alien may not be admitted to this country as a non-immigrant visitor for pleasure unless he has “a residence in a foreign country which he has no intention of abandoning * * 8 U.S.C. § 1101(a) (15) (B). Mrs. Menon did return to her Geneva apartment for one month, in July, 1963, during one of her several temporary absences from the United States which were followed by her readmission to this country as a visitor for pleasure. However, since that date Mr. Menon has sold the apartment, leaving the relators without an established residence anywhere in the world outside of this country. Mrs. Menon does own furniture insured for $10,000 whch is being held in Switzerland for her. The Menons were first admitted into this country as visitors for pleasure on January 2, 1962, for a period of four months. Thereafter, on eight different occasions, the Menons departed from this country for periods of time ranging from one day to six months, following which they gained readmission to the country under their renewed B-2 visas. All of these trips outside the United States were to Canada, with the exception of the one-month visit to Switzerland in 1963. On July 25, 1964 the Menons departed from the United States for the ninth time since their original admission in 1962. They stayed in Canada for only two hours, and then sought readmission at the border. On this occasion, either on their own initiative or at the urging of the customs officials, the Menons requested admission not as visitors for pleasure but rather as dependents of a United Nations employee, pursuant to 8 U.S.C. § 1101(a) (15) (G) (iv) (hereinafter referred to as G-4 status). They were paroled into this country pending a determination of their G-4 application, and have remained in that status to this date. Since a parole does not constitute an admission into the United States, Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925), the question on this appeal involves an exclusion under § 237(a) of the Act, 8 U.S.C. § 1227(a) rather than an expulsion under § 243(a), 8 U.S.C. § 1253(a). The provisions of these sections with respect to the place of deportation differ in important respects, as will be noted. In September and October of' 1964 a hearing pursuant to exclusion proceedings was held before a Special Inquiry Officer. 8 U.S.C. § 1226. The Menons appeared with counsel, Jules Coven, Esq., who was appointed by the Officer and served without fee. The Officer’s oral decision on October 16, 1964 found the Menons excludable on three grounds: 1) They were likely to become public charges, 8 U.S.C. § 1182(a) (15); 2) They were persons not in possession of the appropriate valid nonimmigrant visas, 8 U.S.C. § 212(a) (26); 3) They are immigrants, because of their intention to stay in the United States for an indefinite period of time, not in possession of the required valid immigrant visas, 8 U.S.C. § 1182(a) (20). The Officer also held that since the United Nations had not granted the Menons G-4 status they could not gain admission as United Nations dependents. On April 6, 1965, the Board of Immigration Appeals sustained an appeal by the Menons from this decision, finding that they did not intend to stay in this country for an indefinite period. The Board directed that the Menons be admitted as nonimmigrant visitors for pleasure for a period of three months, but under such conditions as the field office of the Immigration and Naturalization Service might wish to impose, including the exaction of a bond. The office, acting under the authority of 8 U.S.C. § 1252(a), required that the Menons post a $500 bond as security for their departure at the expiration of their three-month visa. Mrs. Menon was unable to post the required bond, and consequently her case was certified back to the Board of Immigration Appeals. After hearing oral argument by Mrs. Menon, who at her own request, appeared without counsel, the Board on July 13, 1965 withdrew its earlier order and affirmed the Special Inquiry Officer’s order of October 16, 1964, excluding the Menons. The Board specifically found that the Menons were not entitled to G-4 status, but did not state any reasons for this conclusion. Neither the Special Inquiry Officer nor the Board in its decision explicitly addressed the question of the place of deportation. This determination was made by the Service, and on October 12, 1965, the Menons received notice to report on October 27 for deportation to Turkey. However, on receipt of this notice Mrs. Menon, who judging from the record is a very determined woman, headed not for the Hudson River piers but for the United States Courthouse. On October 25, 1965, Mrs. Menon filed suit for a declaratory judgment in the Southern District. The complaint alleged that the action of the Immigration Service in denying the Menons admission to the country was in violation of procedural due process and an abuse of the Service’s statutory discretion. On the point now before us Mrs. Menon challenged the right of the Service to order her deportation to Turkey without holding a deportation hearing and affording her an opportunity to demonstrate that Turkey was not the appropriate place of deportation. The relief prayed for was a temporary restraining order and a declaration that deportation was illegal until a full hearing was held. Cf. United States ex rel. Di Paola v. Reimer, 102 F.2d 40 (2d Cir. 1939). While the complaint was not characterized as an attack on the exclusion order, it certainly was so in fact. Under 8 U.S.C.A. § 1105a(b) (Supp.1969) the sole procedure for challenging an order of exclusion is by an application for a writ of habeas corpus. For this reason on October 25 Judge MacMahon denied the application for an order to show cause and a temporary restraining order. But the following day he treated the papers as an application for a writ of habeas corpus and allowed the writ. See Gordon & Rosenfield, Immigration Law and Procedure § 8.8, at p. 8-41 (1967); Application of Argyros, 245 F.Supp. 190, 191 (S.D.N.Y.1965). Return of the writ was made on November 3. At the hearing before Judge Cooper attorney Coven appeared and made an argument against the designation of Turkey as the country of deportation. The government informs us that Mrs. Menon did not agree with this strategy and instead urged the invalidity of the exclusion order itself. As a formal matter attorney Coven participated, apparently, as a friend of the court rather than as Mrs. Menon’s counsel. Judge Cooper’s opinion, 248 F.Supp. 261, 265 (S.D.N.Y.1965), holds that the Menons are not entitled to G-4 status since the United Nations rejected her claim to that status. The court also found the exclusion order valid. But it held that Switzerland and not Turkey was the country to which the Menons must be deported under § 237(a), since thereby “the situation existing before the arrival of the alien [s] in this country [would] be restored so far as is possible.” United States ex rel. Milanovic v. Murff, 253 F.2d 941, 943 (2d Cir. 1958). Both sides noticed appeals from Judge Cooper’s decision, Mrs. Menon on November 17 from the portions of the decision upholding the exclusion order and denying her claim for a G-4 visa, and the government, on January 11, 1966, from the court’s decision that the Menons could not be deported to Turkey. In addition, Mrs. Menon had noticed on October 27, 1965, an appeal from Judge MacMahon’s order of October 25 denying her motion for an order to show cause and a temporary restraining order. The two appeals of Mrs. Menon were consolidated by our order of June 17, 1966. On January 3, 1966, we granted the Menons’ motion to proceed in forma, pauperis, but denied their request for appointed counsel without comment. It should be noted that when we denied the Menons’ motion for the appointment of counsel we had only the Menons’ appeal before us. Apparently the panel hearing the motion concluded that the issues raised in that appeal were insubstantial. But with the government’s notice of appeal eight days later the clearly substantial issue of the country of deportation was raised, a fact which ultimately has led us to appoint counsel for the Menons despite our original denial of their motion for that relief. Their need for counsel also has been demonstrated by the following intervening events. The District Director waited until June 10, 1968, two years after filing his notice of appeal, before requesting this court to set a briefing schedule, alleging that the parties themselves had been unable to do so. A schedule was set by the court, with Mrs. Men-on’s brief being due on August 1, failing which her appeal was to be dismissed. On July 26, however, Mrs. Menon moved to withdraw her appeal on the ground that she had pending in the district court a declaratory judgment action the determination of which “will ultimately be dispositive of the issues involved in this appeal.” In fact this supposition was in error for the declaratory judgment action was not pending in the district court. As noted above, it had been properly treated by Judges MacMahon and Cooper as an application for a writ of habeas corpus, the denial of which was the subject of Mrs. Menon’s appeal. Thus by withdrawing her appeal Mrs. Menon was depriving herself of the right to further contest the validity of the exclusion order and her claim to a G-4 visa, a fact pointed out by the government in its opposing affidavit of July 31, 1968. We granted the motion to withdraw on August 1. Mrs. Menon has been confused on this point throughout the course of the government’s appeal. She filed no brief in opposition to the District Director’s brief. Instead, she filed a motion to dismiss the government’s appeal, alleging inter alia that it had become moot because she was no longer in possession of a valid Turkish passport; her possession of the passport had been one of the reasons advanced by the government to justify the proposed deportation to Turkey. This argument of Mrs. Menon is clearly insufficient to justify a dismissal of the government’s appeal, although we have considered its possible effect on the merit of that appeal. But the main thrust of Mrs. Menon’s motion to dismiss is that she is entitled to a default judgment in her district court action because of the government’s refusal to answer her original complaint for declaratory relief. Once again she proceeds on the mistaken assumption that her action for declaratory relief is still alive. We therefore denied the motion to dismiss on December 19, 1968. The result of all this was that on the original hearing of the government’s appeal we had no brief from Mrs. Menon concerning the only question properly before us, i. e., whether Turkey or Switzerland is the appropriate objective of deportation. We did have an extensive affidavit and argument filed by Mrs. Menon in the district court in connection with her motion for default judgment, but it is concerned solely with her claim for a G-4 visa. We heard counsel for the District Director in the absence of Mrs. Menon, who had telephoned that she was ill, but the government’s able argument further indicated the closely balanced nature of the § 237(a) issue. Since Mrs. Menon obviously was confused concerning the procedural status of her litigation, and because we felt the need for a brief answering the government’s position concerning § 237(a), subsequent to hearing the government’s oral argument we appointed Edith Lowen-stein as counsel for Mrs. Menon, see Cunningham v. Erie R. R. Co., 266 F.2d 411, 413 (2d Cir. 1959), and her excellent brief has been of great aid to this court in resolving the § 237(a) issue. In our order of appointment we encouraged counsel Lowenstein to move to vacate the dismissal of the Menons’ appeal if she found that it presented any non-frivolous issue, but she concluded that that appeal raised no non-frivolous issues. Mrs. Menon, who was unable to cooperate with the two lawyers who assisted her without fee on different occasions prior to this appeal, also finds herself in disagreement with the Lowenstein brief. She has in fact moved to strike the brief in its entirety, apparently because Mrs. Menon is disinterested in the § 237 (a) issue and instead wishes to press her claim to G-4 status as a United Nations dependent. We of course deny the motion to strike the brief of appointed counsel. In the circumstances of this case appointed counsel is aiding the court in attempting to reach a correct resolution to a generally applicable point of law, as much as counsel is aiding Mrs. Menon. Therefore we avail ourselves of counsel’s able brief, while recognizing that the Menons are not bound by its recital of facts or legal contentions. Mrs. Menon still insists that she has a declaratory judgment action raising the G-4 question pending in the district court. Since, for reasons noted previously, she does not, out of an abundance of caution we will examine her claim to G-4 status in connection with this appeal. Claim to United Nations Dependent Status The Menons base their claim for admission on 8 U.S.C.A. § 1101(a) (15) (G) (iv). In accordance with the International Organizations Immunities Act, § 8(a) (3), 59 Stat. 669 (1945), this section provides for the admission as non-immigrants of “officers, or employees” of certain international organizations, of which the United Nations is one, “and the members of their immediate families.” The Menons claim they are the wife and daughter respectively of Mr. V. P. Menon, who is employed by the United Nations Secretariat in New York, and that therefore they are entitled to G-4 visas as long as Mr. Menon retains his United Nations employment. The Menons have unsuccessfully sought a G-4 visa on several occasions from immigration officials and from the United Nations. In essence it appears that the Immigration Service has refused to issue the visa because the United Nations has not requested that it do so or indicated that it believes the Menons are entitled to G-4 status. The United Nations, it may be inferred from the record, has acted unfavorably on the Menons’ requests because of the wishes of Mr. V. P. Menon. It is proper for the United States to refuse to issue a„G-4 visa unless and until requested to do so by the international organization involved. The purpose of the G-4 and related visa categories is to facilitate the operations of international organizations in this country. If such an organization concludes that the grant of a given G-4 visa is not needed to facilitate its operations then there is no reason for this court to require the United States to grant such status. The sensible interpretation of the G-4 provision is that it does not confer the right to a visa by its own terms, but rather only provides a basis for the issuance of a visa upon a request or certification by the appropriate international organization. Moreover, the Menons are not within the classification "immediate family” contemplated by the statute in question. The regulations give this definition of the phrase: “[C]lose relatives who are members of the immediate family by blood, marriage, or adoption, who are not members of some other household, and who will reside regularly in the household of the principal alien.” 22 C.F.R. § 41.1 (emphasis added). There is a dispute lurking in the record whether Mrs. Menon is separated or divorced from her husband, but for present purposes we accept her contention that a legal and valid marriage still exists. Nonetheless, it is clear that Mrs. Menon has not lived with her husband since 1956, and that there is no prospect that she will do so in the future. Indeed Mrs. Menon’s principal activity in this country has been the prosecution of an action for support against her husband in the New York courts. We note in addition that Mr. Menon has not been stationed in this country since 1963. Thus, it cannot be said that Mrs. Menon would “reside regularly” in her husband’s household. The regulation is a reasonable explication of the statutory purpose of facilitating the functioning of recognized international organizations in this country. This purpose will not be furthered by the admission of an estranged wife of an employee of the organization who himself is not stationed in the United States. Mrs. Menon appears to request in the alternative that this case be remanded to the district court for a full hearing on her G-4 claim. But we see no disputed factual issue respecting which a resolution favorable to the Menons would entitle them to the relief they seek. The decision of Judge Cooper upholding the validity of the order of exclusion is affirmed. Country of Deportation under § 237(a) At the outset, § 237(a), providing for the deportation of aliens who are excluded from this country to the “country whence [they] came,” must be distinguished from § 243(a), 8 U.S.C.A. § 1253, which deals with the deportation of aliens expelled from the country subsequent to their admission. Under § 243 (a) the alien is allowed to designate the country to which he wishes to be deported, and this designation binds the government unless the country selected is not willing to admit the alien, or the Attorney General concludes that deportation to that country would be prejudicial to the interests of the United States. If either of these two exceptions is invoked, or if the alien declines to designate a country, then the statute contemplates deportation to any country of which the alien is a “subject[,] national, or citizen,” if such country is willing to accept him. If not, the Attorney General is given broad discretion to order deportation. He may select the country of birth, the country in which the alien last resided before coming to the United States, the country from which the alien entered the United States, or the country from which the alien embarked either for this country, or for a foreign contiguous territory. Finally, if deportation to any of these countries is “impracticable, inadvisable, or impossible,” then deportation may be ordered “to any country which is willing to accept such alien into its territory.” 8 U.S.C.A. § 1253(a) (7). Section 243(a) thus provides for a series of alternative countries to which the alien may be deported, ultimately extending to any country in the world willing to accept the alien. But § 237(a), involved in this case, by contrast provides for deportation only “to the country whence [the alien] came.” There can be only one country — “the country” in the words of the statute — which corresponds to the § 237(a) definition under a given set of circumstances. See United States ex rel. Tom We Shung v. Murff, 176 F.Supp. 253, 257-258, 261 (S.D.N.Y. 1959), aff’d United States ex rel. We Shung v. Esperdy, 274 F.2d 667 (2d Cir. 1960) (per curiam). The test for determining the country “whence [the alien] came” was stated in United States v. Holland-American Line, 231 F.2d 373 (2d Cir. 1956), as follows: “[T]he country from whence an alien comes is that country in which the alien has a place of abode and which he leaves with the intention of coming ultimately to this country.” 231 F.2d at 376. A literal application of Holland-American to this case might result in the Menons being “deported” to the United States. They were excluded at the border on June 25, 1964, following a two hour visit to Canada, prior to which they had lived in this country for six months without interruption. It is clear that in departing for Canada on June 25 the Menons intended only to stay briefly and then return to the United States, where they maintained their place of abode. Thus looking only at the situation at the time of the actual exclusion of the Men-ons, the United States was that country in which they had a place of abode and which they left “with the intention of coming ultimately to this country.” See Stacher v. Rosenberg, 216 F.Supp. 511 (S.D.Cal.1963). But this result, clearly at odds with the purposes of the immigration laws, is not required in this case. In Stacher the district court was faced with an extreme set of circumstances. An alien who had lived in this country for nearly 50 years was excluded after returning from a brief visit to Europe. Because the alien had not established an abode outside the United States since emigration from Russia in 1912 the court, applying the Holland-American test, had no alternative but to conclude that the United States was the country of deportation under § 237(a), noting that the government had treated as an instance of exclusion what in reality was an attempt to expel a permanent alien resident of this country. 216 F.Supp. at 514. Here the Menons never achieved permanent resident status. Their several successive readmissions to this country were all pursuant to their temporary visitors-for-pleasure visa issued in 1961. All of these later admissions represent only a renewal of the Menons’ original intention to come to this country, an intention formed in 1961 and first achieved in 1962. In the circumstances of this case, then it is logical to regard 1962 as the year in which the Menons “came” to this country, and therefore to apply § 237 (a) and Holland-American with reference to the circumstances surrounding the Menons’ original admission to the United States in that year. Once 1962 is fixed as a reference point it is difficult to avoid the conclusion that Judge Cooper was correct in determining that Switzerland, and not Turkey, was the appropriate country of deportation. It is beyond dispute that the Menons maintained an abode and resided in fact in Switzerland from 1953 until their first admission into the United States, and that it was from Switzerland that they left “with the intention of coming ultimately to this country.” United States v. Holland-American Line, 231 F.2d 373, 376 (2d Cir. 1956). The government in effect asks us to abandon the Holland-American test in exclusion cases, and instead adopt a more flexible approach, since “every case depends on its own facts.” United States ex rel. Karamian v. Curran, 16 F.2d 958, 961 (2d Cir. 1927). In attempting to support deportation to Turkey, it relies on the Menons’ possession of a Turkish passport at the various times they gained admission to this country. It also points out that Mrs. Menon was born in Turkey, apparently still has some relatives living there, and finally on one occasion sought the aid of the Turkish Consulate in New York concerning her immigration problems. These facts, we are told, establish a sufficient connection between the Menons and Turkey to support the deportation order. The government’s brief also states that Mrs. Menon has never objected to returning to Turkey. In fact she has made clear her opposition to this course, Special Inquiry Hearing, Oct. 16, 1964, at p. 52, but in any event the desires of an alien are not relevant to a § 237(a) determination given the mandatory statutory language. Even if we were to accept the government’s flexible approach to § 237(a) it is far from clear that deportation to Turkey would be proper. While the Menons are citizens of Turkey, Mrs. Menon has not been in that country since 1949 and her daughter, born in Switzerland, has never been to Turkey. On several occasions this court has refused to approve the deportation of aliens to countries from which they had been absent for periods considerably shorter than Mrs. Menon’s absence from Turkey. See, e. g., United States ex rel. Mazur v. Comm’r of Immigration, 101 F.2d 707 (2d Cir. 1939) (11 year absence); United States ex rel. Milanovic v. Murff, 253 F.2d 941, 943 (2d Cir. 1958) (13 year absence). We are aware of no case sustaining the deportation of an excluded alien to a country he has never been in, which would be the result here were Ruby deported to Turkey. It can hardly be said that deportation of these aliens to Turkey will restore “so far as possible” “the situation existing before the arrival of the alien[s] in this country.” United States ex rel. Milanovic v. Murff, supra, 253 F.2d at 943. Finally, while the Men-ons did need their Turkish passport to gain admission into this country, they also needed their B-2 visa, which was issued upon a finding that they maintained a residence in Switzerland which they had “no intention of abandoning * * 8 U.S.C.A. § 1101(a) (15) (B). Thus if the government’s argument is based on estoppel, no reason appears why the estoppel does not relate just as strongly to Switzerland as to Turkey. But our principal disagreement with the government’s position concerns its basic contention that this court is free to ignore the specific and mandatory language of § 237(a) and adopt instead an interpretation of the section which would resemble the statutory scheme under § 243(a) governing instances of expulsion. We gather from oral argument that the government fears it will be unable to deport the Menons to Switzerland because of that country’s refusal to accept them. In this circumstance, which in any event is not supported by the record, we are asked to look back in Mrs. Menon’s lifetime and find the country with which she has the closest relationship other than Switzerland. Presumably if Turkey rejected the Menons we might be asked to consider the permissibility of deportation to Israel, and so on. The ultimate approach might be to examine the life history of an alien backward in time, like peeling the layers off an onion, until a country were found willing to accept the alien. Such an approach to the problem of deporting excluded aliens might be desirable, and indeed is analogous to the scheme provided by § 243(a) for the deportation of expelled aliens. It would eliminate the danger which exists under § 237(a) as presently construed whereby the one “country whence the alien came” will refuse to accept the alien, and thus frustrate the attempt of the Immigration Service to deport persons clearly not entitled to admission into this country. E.g., United States ex rel. Mezei v. Shaughnessy, 195 F.2d 964 (2d Cir. 1952), rev’d, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953). But while the approach suggested by the government has merit, is is not the one enacted by Congress. Instead, we are confronted with an anachronistic relic which in its operative language dates back at least as far as the 1882 Chinese Exclusion Act. See United States v. Chong Sam, 47 F. 878 (E.D.Mich.1891). The purpose of Congress in this and succeeding immigration laws dealing with excluded aliens was to insure that transportation lines would not profit from the practice of booking passage to the United States by aliens the lines knew would be excluded, and then collecting a return fare when the aliens were indeed refused admission. United States ex rel. Tom We Shung v. Murff, 176 F.Supp. 253, 259 (S.D.N.Y.1959). Congress provided for the “immediate” deportation of each alien on the vessel which brought him to the “country whence he came,” that is, the country in which he boarded the vessel or aircraft which brought him to this country. The line is responsible for the cost of deportation unless the alien was in possession of valid immigrant or non-immigrant papers, thus giving the line no reason to suspect that the alien would be excluded. This is the case with the Menons, for on each of their journeys to this country they possessed a valid B-2 non-immigrant visa. In a case such as this the above scheme, now embodied in § 237(a), is inappropriate.

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

Patricia G. MATULIN, Plaintiff-Appellee, v. VILLAGE OF LODI, Edward Richardson, Village of Lodi Police Department, and Stefan Siverd, in their official and individual capacities, Defendants-Appellants. No. 87-3957. United States Court of Appeals, Sixth Circuit. Argued Oct. 14, 1988. Decided Dec. 6, 1988. Lawrence J. Whitney (argued), Burdon and Merlitti, Akron, Ohio, for defendants-appellants. Edward L. Gilbert (argued), Parms, Pur-nell & Gilbert, Akron, Ohio, for plaintiff-ap-pellee. Before KRUPANSKY and GUY, Circuit Judges, GRAHAM, District Judge. Honorable James L. Graham, United States District Court, Southern District of Ohio, sitting by designation. RALPH B. GUY, Jr., Circuit Judge. Plaintiff, Patricia Matulin, a former part-time police officer, filed suit in federal district court for the Northern District of Ohio against her former employer, the Village of Lodi. The suit also named the Village of Lodi Police Department, the mayor, and the police chief. The complaint included claims of discrimination based on sex and handicap, retaliation under Title VII for participating in a charge of discrimination, retaliation for the exercise of first amendment rights, a violation of her right to due process, breach of contract, and intentional infliction of emotional distress. With respect to her first amendment claim, plaintiff alleged that she had been wrongfully discharged in retaliation for making statements to a newspaper reporter regarding employment discrimination claims which she had previously filed with the Ohio Civil Rights Commission. The first amendment claim was submitted to a jury which returned a verdict in favor of plaintiff awarding her $75,000 in damages. The remaining issues were resolved by the court prior- to trial. The court dismissed the claims relating to employment discrimination and the alleged intentional infliction of emotional distress because there was no evidence to support such claims. The court also held the plaintiff had a limited property interest in her job, and that the defendants deprived her of this property interest without due process of law by discharging plaintiff without affording her a hearing. The defendants appeal both the jury’s verdict granting the plaintiff damages for the violation of her first amendment rights, and the district court’s judgment awarding plaintiff two weeks part-time pay for the violation of her due process rights. Plaintiff has not filed a cross-appeal with respect to her other claims. For the following reasons, the judgment in favor of plaintiff awarding damages for violation of her first amendment rights is affirmed, and the judgment in plaintiff’s favor on her fourteenth amendment due process claim is reversed. I. In November of 1984, plaintiff accepted a position as a part-time police officer in the Village of Lodi Police Department. In March of 1985, a full-time officer resigned and plaintiff applied for the position. On April 13, 1985, Police Chief Stefan Siverd informed plaintiff that he intended to hire another applicant, a male, for the position. One of the reasons given for the decision was that plaintiff had previously suffered a knee injury, and there was some question as to whether she would be able to perform her duties on a full-time basis. On April 22, 1985, plaintiff filed a claim with the Ohio Civil Rights Commission alleging that she had been discriminated against based on her sex and her knee injury, which she claimed constituted a handicap. Thereafter, the male applicant advised the police chief .that he had accepted another job and therefore could not accept the offer to work as a full-time police officer for the Village of Lodi. On May 1, 1985, the plaintiff met with Chief Siverd and after some discussion, plaintiff was offered the full-time position. On May 2, 1985, the Village Council and the mayor accepted the police chiefs recommendation that plaintiff be appointed to the full-time position. Plaintiff, however, was not immediately sworn in as a full-time officer but, rather, continued to work on a part-time basis. Seven days after the Village Council approved the plaintiffs appointment, an article appeared in the local weekly newspaper describing the employment discrimination charges which the plaintiff had previously filed against the Village. The article appeared under the title “Officer alleges des-crimination [sic] By Lodi Police Department.” After detailing the substance of the employment discrimination claim and the procedures of the Ohio Civil Rights Commission, the article described an interview with the plaintiff: Matulin, in an interview last weekend, said the village intended to hire a Lodi man, Jeff Piute, of Janice Street, until it learned of her discrirrynation charge earlier in the week. She says village officials told her that Piute was offered another job between the time Lodi tentatively decided to hire him and when his psychological tests came back, which would have enabled Piute’s official hiring. Matulin rejects this reasoning, though. “Everyone is very concerned about why I got the job right after the papers were served.” Matulin says she decided to go ahead with her complaint despite the job offer because “I’ve decided to stand up and let people know” what’s going on [in] the Police Department. “I am not looking for financial gain,” she says, “I want my credibility restored and my name cleared.” Matulin says that if the village had hired Piute, it would have gotten an officer with less experience and less training than she has. Shortly after she started as a Lodi officer, Matulin injured her leg in a fight while making an arrest. She says village officials were using this as one reason why they did not want to hire her full-time. However, Matulin says the injury has not been serious enough to keep her from performing her duties. In fact, she says, since Bannerman left the Lodi force, there was one instance when she worked 90 hours in a two-week period because the police force was short-handed. This, she says, should have shown that she could still do the job. After reviewing this article, Police Chief Siverd contacted the reporter who wrote the article and verified the statements attributed to the plaintiff. Although the article was published after plaintiff’s appointment, the interview took place prior to that time. On May 13, Chief Siverd submitted a letter to the Village Council withdrawing his recommendation that plaintiff be hired as a full-time officer and further recommended that she be terminated immediately from her present probationary position as a part-time officer. The Council voted to accept the police chief’s recommendation, and the chief called the plaintiff that day to inform her of the Council’s decision. On May 14, 1985, Chief Siverd sent a letter to plaintiff which stated in part: At the May 13, 1985 Village of Lodi Council meeting, it was noted by myself, that your probationary employment as a part-time police officer would be ending on May 26, 1985. At this meeting I made no recommendation as to the continuation for employment beyond the probationary period. This lack of a recommendation results in the immediate termination of your employment with the Village of Lodi. At trial, Chief Siverd testified that the statements made by the plaintiff in the newspaper article violated the written rules of the police department relating to confidentiality and loyalty. Chief Siverd also testified that the plaintiff’s termination was based at least in part, on previous infractions to the work rules which had resulted in verbal reprimands: As previously noted, plaintiff prevailed on her claims based on the first and fourteenth amendments. The district court subsequently denied the defendants’ motion for judgment notwithstanding the verdict. II. Defendants raise five issues on appeal. First, defendants argue that the statements of the plaintiff which appeared in the newspaper article were not constitutionally protected because they did not involve matters of public interest. Second, defendants contend that the newspaper article was not a substantial or motivating factor in the plaintiff’s termination. Third, the defendants argue that the police department’s interest in maintaining discipline and morale outweighs the plaintiff’s first amendment rights. Fourth, defendants claim that the damage award of $75,-000 was excessive. Fifth and finally, defendants argue that plaintiff did not have a property interest in her job with the Lodi Police Department, meaning that defendants cannot be held liable for terminating her employment without affording her a hearing. We address each of these issues separately. A. First Amendment Claim “It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” Rankin v. McPherson, — U.S. -, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987). In Rankin, the United States Supreme Court reaffirmed the balancing test which is used to determine whether a public employee’s speech deserves constitutional protection. The test requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of public services it performs through its employees.” Rankin, 107 S.Ct. at 2896 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). 1. Matter of Public Concern The Supreme Court has stated that “[t]he threshold question in applying this balancing test is whether [the employee’s] speech may be ‘fairly characterized as constituting speech on a matter of public concern.’ ” Rankin, 107 S.Ct. at 2896-97 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. In the instant case, we agree with the district court that the statements made by the plaintiff which appear in the article implicate matters of public concern, and therefore fall within the protection of the first amendment'. First, we note that the plaintiff’s statements involve allegations of invidious discrimination by a public employer based on the sex and perceived handicap of a public employee. Cf. Connick, 461 U.S. at 149 n. 8, 103 S.Ct. at 1691 n. 8 (allegations of racial discrimination by a public employer are “a matter inherently of public concern.”). Second, we note that the plaintiffs statements were made in response to an inquiry regarding an employment discrimination claim she had already filed with the Ohio Civil Rights Commission. Therefore, the basic allegations of sex and handicap discrimination were already a part of the public record. We note as a third factor in her favor that the plaintiff did not initiate the interview but, rather, was contacted by a newspaper reporter who had learned of the plaintiffs pending employment discrimination claims. Recently, the Court of Appeals for the Third Circuit held: Thus, we hold that when a public employee participates in an interview sought by a news reporter on a matter of public concern, the employee is engaged in the exercise of a first amendment right to freedom of speech, even though the employee may have a personal stake in the substance of the interview. Rode v. Dellarciprete, 845 F.2d 1195, 1202 (3d Cir.1988). Rode, a public employee, told a newspaper reporter that she had been harassed and mistreated because of her involvement in a prior racial discrimination suit against the employer. Plaintiff subsequently received a two-day work suspension because of her participation in the interview. The court of appeals held that statements relating to charges of discrimination leveled at public employers and reported upon by newspapers clearly involved matters of public concern. While the defendants would have us hold that plaintiffs speech related solely to private complaints, the Rode finding of public concern is here strengthened by the fact that the plaintiff did not solicit the attention of the media, but simply responded to questions regarding an existing controversy. Under these circumstances, we find that the statements attributed to Ms. Matulin in the newspaper article were protected by the first amendment because they involved a legitimate matter of public interest. 2. Substantial or Motivating Factor The second major issue raised by the defendants focuses on the causation element of plaintiffs claim. In Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed. 2d 471 (1977), the Supreme Court held that the plaintiff has the burden of proving that his speech was a “substantial” or “motivating” factor in the employer’s decision to terminate his employment. Id. at 287, 97 S.Ct. at 576. The burden then shifts to the employer, who must be given an opportunity to prove that the plaintiff would have been fired even if he had not engaged in the protective conduct. Id. The matter of causation is an issue of fact which must be decided by the jury. See Hildebrand v. Board of Trustees, 662 F.2d 439, 443 (6th Cir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982). In the instant case, the court posed a specific interrogatory to the jury: “Do you find that the motivating or substantial factor in Pat Matulin’s termination was the exercise of her first amendment rights?” The jury answered this question in the affirmative and judgment was entered in favor of plaintiff. The defendants filed a motion for judgment notwithstanding the verdict, but the district court denied the motion. On appeal, defendants argue that the jury’s finding of causation was contrary to the weight of the evidence because the plaintiff would have been fired even if she had not made the statements which were quoted in the newspaper article. Defendants contend that “the real reason for Ma-tulin’s termination was not her speech, but the lack of trust she had created in the department.” We find this argument to be without merit. There is ample evidence in the record (including the testimony of the plaintiff, the police chief, and the mayor of Lodi) from which the jury could conclude that the plaintiff’s statements were a substantial factor in the decision to terminate her employment. Moreover, the sequence of events in the instant case clearly demonstrates that the plaintiff’s termination was in direct response to the publication of the newspaper article. We note that this court has previously upheld a jury verdict in favor of a public employee who alleged a first amendment violation based on a retaliatory discharge in circumstances where the evidence of causation was much less compelling than the facts presented in the instant case. See Ratliff v. Wellington Exempted Village Schools Board of Education, 820 F.2d 792 (6th Cir.1987). In Ratliff, the defendants expressly denied that the non-renewal of the plaintiffs employment contract was in retaliation for his public criticism of the school board. Moreover, there was evidence that the plaintiffs job performance was substandard. Nevertheless, we held that the circumstantial evidence was sufficient to permit a reasonable inference that the plaintiff was not rehired in retaliation for making critical comments during a public speech. Ratliff, 820 F.2d at 796. In contrast, the defendants in the instant case clearly admitted that the plaintiffs statements quoted in the newspaper article were a factor in the decision to terminate her employment. The only other reasons for dismissal were minor infractions of the work rules — infractions about which the hiring authority had been told before they offered the full-time position to plaintiff. Given the timing of the dismissal, the admissions of the defendants, and the lack of a legitimate alternative justification, we find ample evidence from which the jury could reasonably conclude that plaintiffs exercise of her first amendment rights was a substantial motivating factor in the termination of her employment. 3. Balancing Test We now consider the defendants’ argument that the plaintiffs discharge was justified because of the detrimental effect her speech had on the police department. As previously noted, the balancing test set forth by the Supreme Court in Pickering v. Board of Education requires the court to balance the employee’s first amendment interest in freedom of expression against “the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. “The State bears a burden of justifying the discharge on legitimate grounds.” Rankin, 107 S.Ct. at 2898. In assessing the effect of the protected speech, the court should consider “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin, 107 S.Ct. at 2899. In the instant case, defendants argue that the statements created a “lack of trust” between plaintiff and her immediate supervisor, Police Chief Siverd. We decline to grant much weight to this argument, noting first that the statements attributed to the plaintiff in the article were neither offensive nor insulting. Plaintiff did not make any personal attacks on the chief of police or any other individuals. In fact, Chief Siverd’s name does not even appear in the article. Second, we note that the defendants did not present any evidence at trial regarding adverse impact on departmental performance as a result of the plaintiff’s statements. Given the factual circumstances of this case, we agree with the district court that the plaintiff’s first amendment interests in responding to inquiries regarding her pending discrimination claims against her public employer outweigh the employer’s interests in suppressing the expression of such statements. 4. Damages Defendants further claim on appeal that the damages awarded by the jury were excessive. The jury returned a verdict awarding $75,000 in damages to the plaintiff. The district court’s instructions to the jury were limited to the issue of compensatory damages, and the jury was expressly instructed not to impose punitive damages. As with the other issues raised in this appeal, our scope of review is extremely limited. A damage award cannot be overturned unless it is so disproportionately large as to “shock the judicial conscience.” Thompson v. National Railroad Passenger Corporation, 621 F.2d 814, 827 (6th Cir.), cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980). In the circumstances of this case, we cannot say that our collective “conscience” is shocked by the award of $75,000 to the plaintiff. B. Fourteenth Amendment Claim Finally, we consider whether the district court was correct in ruling that plaintiff had a protected property interest in completing a probationary term of office, and was thus deprived of that property right without due process of law by the defendants’ decision to terminate her employment without first affording her a hearing. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the Supreme Court held that when state law creates a property interest in continuing employment, a public employer may not deprive an employee of that property interest without complying with the requirements of procedural due process. In the instant case, it is undisputed that the plaintiff was not afforded a hearing either before or after the termination of her employment. Defendants argue that no hearing was necessary because the plaintiff was a probationary employee at the time of her termination and therefore did not have a statutory right of continued employment. In order to determine whether the requirements of due process apply, we must examine the relevant state statutes to determine the threshold issue of whether the plaintiff had a property interest in her continued employment. Property interests are not created by the federal Constitution, but from independent sources, often state law. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Ohio law provides for appointment of village officers who “shall continue in office until removed therefrom for the cause and in the manner provided by section 737.19....” OHIO REV. CODE § 737.16. Section 737.19 provides in part: “The marshal of a village has the exclusive right to suspend any of the deputies, officers, or employees in the village police department [for any denominated reasons shown or] for any other reasonable or just cause.” This section also sets forth elaborate procedures for a termination hearing and subsequent appeals of adverse employment decisions. Defendants argue that the just cause requirements contained in section 737.16 and the hearing procedures set forth in section 737.19 do not apply in this case because the plaintiff was on probationary status at the time of her termination. A probationary period is provided for in section 737.17: All appointments made under sections 737.15 and 737.16 of the Revised Code shall be for a probationary period of six months’ continuous service, and none shall be finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the mayor shall transmit to the legislative authority of the village a record of such employee’s service with his recommendations thereon and he may, with the concurrence of the legislative authority, remove or finally appoint the employee. In interpreting this provision, the district court noted that according to the terms of section 737.17, a probationary employee could be removed or finally appointed based on the recommendation of the mayor “at the end of the probationary period.” The section does not expressly provide for the removal of an employee prior to the end of the probation period. Thus, the district court concluded that just cause requirements set forth in sections 737.16 and 737.19 apply equally to permanent full-time Village police officers and to officers on probationary status. Accordingly, the district court held that plaintiff had a limited six-month property interest in her probationary employment and could not be discharged during that period except in accordance with the procedural requirements set forth in section 737.19. We disagree with the district court s interpretation of the Ohio statutes. Nothing in section 737.17 suggests that a probationary employee may only be terminated at the end of the six-month period. In fact, it appears clear that the Ohio legislature, in drafting this statute, did not intend to create a scheme in which an employee could be fired with no hearing on the one-hundred-eightieth day — the end of the six-month period — but was entitled to a hearing if terminated on the one-hundred-seventy-ninth day. Courts in Ohio have held that a probationary employee who completes a probationary term but is not finally appointed has no reasonable expectation of continued employment. See Harvey v. Brumback, 113 Ohio App. 45, 177 N.E.2d 70 (1960). One who has not completed this period surely cannot have greater rights. Most importantly, no Ohio state courts have interpreted section 737.17 in the way the district court proposes, while at least one Ohio appellate court explicitly rejected this view. In Burden v. Village of Blanchester, No. 430 (Ct.App.Ohio Jan. 29, 1982) [1982 WL 6014] (Lexis, States Library, Ohio file), an Ohio appeals court held that the termination procedures of section 739.19(B) do not apply to probationary employees who are discharged. The Burden court noted: The very nature of a probationary period is to give the employer the opportunity to observe a candidate on the job to determine his fitness for permanent employment. Given this purpose it is obvious that the legislature did not intend the formal removal proceedings that apply to permanently appointed employees to apply to termination of a probationary employee who is not performing satisfactorily. Burden held that a probationary employee, in Ohio, simply does not have the same interest in her job as a permanent employee, and the probationary employee can be terminated without a hearing before the six-month probationary period is over. We feel compelled to follow Burden. In deciding questions of state law (here the interpretation of a state statute) federal courts must rule as would the state s highest court. Glinsey v. Baltimore & Ohio R.R., 495 F.2d 565 (6th Cir.), cert. denied, 419 U.S. 968, 95 S.Ct. 232, 42 L.Ed.2d 184 (1974). When, as in the present case, the state’s highest court has not ruled on the question, the opinions of intermediate appellate courts provide the next best indicia of the state’s position. Kochins v. Linden Alimak, Inc., 799 F.2d 1128 (6th Cir.1986); Henry v. McFaul, 791 F.2d 48 (6th Cir.1986). These opinions control, unless other persuasive factors convince the federal court that the state’s highest court would disagree with the appellate court determinations. Dale Baker Oldsmobile, Inc. v. Fiat Motors of North America, Inc., 794 F.2d 213 (6th Cir.1986); Kochins, 799 F.2d at 1140. In the instant dispute, we find no reason to disregard the holding of the Ohio appellate court in Burden. The Ohio Supreme Court has given no indication it would disagree with Burden. It is perfectly logical to read section 737.17 as did the court in Burden. Most other states, either by statute or by judicial decision, similarly declare that a probationary employee has no recognizable property interest in a probationary position. Phillips v. Civil Service Commission, 192 Cal.App.3d 996, 237 Cal.Rptr. 751 .(1987); Potratz v. Department of Law Enforcement, 154 Ill.App.3d 682, 107 Ill.Dec. 159, 506 N.E.2d 1050 (1987); Dean v. Tensas Parish School Board, 505 So.2d 908 (La.1987); Wagner v. City of Globe, 150 Ariz. 82, 722 P.2d 250 (1986); Housing Authority of Tampa v. Robinson, 464 So.2d 158 (Fla.App.1985); Rafferty v. Commissioner of Public Welfare, 20 Mass.App. 718, 482 N.E.2d 841 (1985). But see Stanfill v. City of Fairbanks, 659 P.2d 579 (Alas.1983) (probationary employee has property interest in employment for whole probationary period). Accordingly, the judgment of the district court is AFFIRMED IN PART and REVERSED IN PART. . Rule 2-16, Public Statements, provides: Members should not publicly criticize or ridicule the departmental policies, or other members by speech, writing or other expression, where such speech, writing or other expression is defamatory, obscene, unlawful, undermines the effectiveness of the department, interferes with the maintenance of discipline, or is made with reckless disregard for truth or falsity. According to Chief Siverd, the plaintiff violated this provision by making statements which implied that he had lied regarding the reasons for offering plaintiff a full-time position after she had been initially rejected. The Chief also maintained that the plaintiff had exaggerated by claiming that she had worked ninety hours in a two-week period since, according to his review of the payroll records, no officer had worked more than eighty hours during a given two-week period. The Chief also believed that the plaintiffs statements violated Rule 2-6, Loyalty, which provides: Members shall maintain a loyalty to the department and their associates that is consistent with the law and departmental rules, regulations, policies, and procedures.

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

In re 211 EAST DELAWARE PLACE BLDG. CORPORATION. KAMPEL v. WHITTEMORE. Nos. 5429, 5461. Circuit Court of Appeals, Seventh Circuit. April 18, 1935. H. J. Rosenberg and David Jetzinger, both of Chicago, Ill., for appellant. Samuel G. Clawson, George E. Q. Johnson, Luther D. Swanstrom, and Walter E. Wiles, all of Chicago, Ill., for appellee. Before EVANS, SPARKS, and FITZ HENRY, Circuit Judges. EVANS, Circuit Judge (after stating the facts as above). Several questions are raised by appellant, a consideration of which necessitates a more detailed fact statement. The significance of this statement will, however, be better appreciated if the legal questions upon which appellant relies are first stated. He asks for the reversal of the decree because (a) the debtor corporation was dissolved pursuant to the statute of the State of Illinois prior to the commencement of the proceedings in the court below; (b) the United States District Court should not disturb the status created by the appointment of the state court receiver until there has been a final decree of reorganization under section 77B (11 USCA § 207) ; (c) the order was made without an adequate hearing on the merits of the application. One Golder was appointed receiver in the Superior Court of Cook County in an equity suit brought to foreclose a trust deed securing bonds in the aggregate amount of $525,000. The receiver entered into possession of the property on or about September 17, 1929, and continued in possession until the United States District Court appointed appellee, trustee of the estate of the debtor.- When in possession of the property said receiver leased the premises to appellant “for the term of the receivership in said causes, commencing on July 21, 1933, unless sooner terminated as hereinafter provided.” The lease also provided for its termination upon sixty days’ notice. On June 29, 1932, upon application of the Attorney General of the State of Illinois and after notice had been published as provided by law, the Superior Court of Cook County entered an order dissolving the 211 East Delaware Building Corporation because of its failure to pay the franchise taxes due November 15, 1931. The property covered by the trust deed constituted all the assets of the corporation. The chief reliance of appellant is upon the fact that the corporation, which is the alleged debtor in the proceedings in the court below, was dissolved by judicial decree pursuant to the statute of the State of Illinois. Appellant argues that upon such dissolution the property passed to the stockholders; the alleged debtor ceased to exist and was thereafter not the subject of an adjudication under sections 77A and 77B of the Bankruptcy Act. Passing without comment the action of the receiver in failing to protect the corporation for which he was in part acting and assuming as between the state and the said corporation the latter was not in esse, it by no means follows that the bondholders could not treat the corporation as an entity subject to adjudication under the Bankruptcy Act or under sections 77A and 77B of said act. That a corporation, thus dissolved, exists for certain purposes, Smith-Hurd Rev. St. Ill. 1931, c. 32, §§ 14, 79, Cahill’s Rev. St, Ill. 1931, c. 32, pars. 14, 79, one of which is to have its estate administered in a court of bankruptcy is the holding of the courts that have passed on this question. Hammond et al. v. Lyon Realty Co. (C. C. A.) 59 F.(2d) 592; In re Double Star Brick Company (D. C.) 210 F. 980; In re Munger Vehicle Tire Company (C. C. A.) 159 F. 901; In re Storck Lumber Company (D. C.) 114 F. 360. The frequency with which corporations have been created for no purpose other than to be used as an instrumentality for the flotation of a bond issue largely in excess of the value of the property mortgaged — that is, to be used as a conduit through which the investors’ money is transferred to the promoters of irresponsible ventures — and then, for all legal purposes, to pass out of existence, necessitates adherence to the rule of the above decisions, unless we find something to substantially distinguish these amendments to the Bankruptcy Act, commonly known as sections 77A and 77B, •from the original Bankruptcy Act. Instead of finding such distinctions there appear, it seems, stronger reasons for extending to such unfortunate bondholders all the protection which may fairly and legitimately be extended to creditors under sections 77A and 77B. It is, however, not necessary to invoke the equities which exist in such cases to reinforce the reasons for the adoption of the rule announced in the above-cited cases to the effect that the dissolution of the corporation, through forfeiture of the charter because of failure to pay taxes, etc., does not deprive the United States District Court of jurisdiction to administer the estate of such corporation in accordance with the provisions of the Bankruptcy Act. Appellant also argues that he had a lease which the trustee could not terminate and moreover, upon the showing made, it should not have been terminated and was not in fact validly terminated by the court or action of the trustee. The lease provided for its termination at the end of the receivership. The appointment of the trustee in the court of bankruptcy terminated the state court receivership. In re Sterba (C. C. A.) 74 F.(2d) 413. Moreover, the lease expressly provided that it might be terminated upon sixty days’ notice, regardless of the date upon which the installment of rent became due. The sixty days’ notice was given by the trustee. It is likewise argued that the court was without authority to make the order in a summary proceeding. A denial of this contention rests upon two grounds: (1) The receiver consented to a determination of the issue in this summary proceeding. It may not therefore be heard later to complain. In re Rockford Produce & Sales Co. (C. C. A.) 275 F. 811. The lessee’s rights are fixed by section 77B (b), 11 USCA § 207 (b). (2) The receiver did not hold the property adversely to the-trustee in bankruptcy. On the court’s approval of the petition filed against the debtor and its appointment of a trustee, the jurisdiction of the District Court over all of the property in the actual or constructive possession of the debtor was exclusive. Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734, 737, 51 S. Ct. 270, 75 L. Ed. 645; Gross v. Irving Trust Co., 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A. L. R. 1215. The District Court was therefore free to terminate existing leases. Section 77B (b). It was unnecessary for the United States District Court to await the submission of a plan acceptable to two-thirds of the creditors before acting. In re Sterba, supra. In its discretion the District Court may direct the immediate transfer of the property. There was a sufficient fact basis in the instant case to justify the exercise of the court’s discretion. We cannot say that the court abused the discretionary power in it lodged. The decree of the District Court is affirmed.

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

SOUTHLAND ROYALTY COMPANY, Phillips Petroleum Company, Shell Oil Company, Chevron U.S.A., Inc., the Superior Oil Company, the Union Oil Company of California, Wilshire Oil Company of Texas, Anadarko Production Company, and Texaco, Inc., Plaintiffs, Appellants, Cross-Appellees, State of Utah, Lynn C. Baker, individually, and as Treasurer of the State of Utah, Utah State Tax Commission, David L. Duncan, Chairman, and Douglas Sonntag, Georgia B. Peterson and Robert D. Bowen, individually, and as members of the Utah State Tax Commission, Utah State Board of Oil, Gas and Mining, Charles Henderson, Chairman, and John L. Bell, Thadis W. Box, C. Ray Juvelin, Edward T. Beck, Constance K. Lundberg, and E. Steele McIntyre, individually, and as members of the Utah State Board of Oil, Gas and Mining, San Juan County, Utah, Edward S. Boyle, William G. Dunow and Calvin Black, individually, and as Commissioners of San Juan County, Utah, Marian Bayles, individually, and as San Juan County Treasurer, and Barbara Montella, individually, and as San Juan County Assessor, Plaintiffs in Intervention (in D.C. No. C-79-296), Defendants-Appellees, v. NAVAJO TRIBE OF INDIANS, Defendant, Appellee, Cross-Appellant, Navajo Tribal Council, Peter MacDonald, individually, and as Chairman of the Navajo Tribal Council, Navajo Tax Commission, Glen C. George, Robert Shorty, Jr., David C. Cole, Delfred Wauneka, and William Morgan, Jr., individually, and as members of the Navajo Tax Commission, Defendants, Appellees, United States of America, James G. Watt, Secretary of the Interior, Martin E. Seneca, Jr., Acting Commissioner of the United States Bureau of Indian Affairs, Defendants, Appellees, Cross-Appellants. Nos. 80-2035 to 80-2038, 80-2067 and 80-2159. United States Court of Appeals, Tenth Circuit. Aug. 22, 1983. Edward L. Barrett, Jr. of Nielsen & Senior, Salt Lake City, Utah (Arthur H. Nielsen, Clark R. Nielsen and John K. Mangum, Salt Lake City, Utah, with him on the brief), for plaintiffs, appellants, cross-appellees Southland Royalty Co., The Superior Oil Co., The Union Oil Co. of California, Wilshire Oil Co. of Texas and Anadarko Production Co. Bruce D. Black of Campbell, Byrd & Black, P.A., Santa Fe, N.M., for plaintiff, appellant, cross-appellee Texaco, Inc. Alan L. Sullivan of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah (Leonard J. Lewis and Gregory K. Orme, Salt Lake City, Utah, with him on the brief), for plaintiffs, appellants, cross-appellees Phillips Petroleum Co., Shell Oil Co., and Chevron U.S.A., Inc. Michael M. Quealy, Asst. Atty. Gen., State of Utah, Salt Lake City, Utah (David L. Wilkinson, Atty. Gen., Richard L. Dewsnup, Dallin W. Jensen and Frank V. Nelson, Asst. Attys. Gen., Salt Lake City, Utah, with him on the brief), for plaintiffs in intervention, defendants-appellees State of Utah and state officials. Katherine Ott and Gary Verberg of Vlassis & Ott, Phoenix, Ariz. (George P. Vlassis of Vlassis & Ott, Phoenix, Ariz., Harold G. Christensen and Max D. Wheeler of Snow, Christensen & Martineau, Salt Lake City, Utah, with Katherine Ott, on brief), for defendant, appellee, cross-appellant The Navajo Tribe of Indians, and Navajo defendants-appellees. Kay L. Richman, Attorney, Dept, of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., James J. Clear and Dirk D. Snel, Attorneys, Dept, of Justice, Washington, D.C., with her on brief, David Etheridge, Attorney, Dept, of the Interior, Washington, D.C., of counsel), for defendants, appellees, cross-appellants United States and federal officials. Bruce K. Halliday, San Juan County Atty., Monticello, Utah, on brief for plaintiffs in intervention, defendants-appellees San Juan County and county officials. Jeff Bingaman, Atty. Gen., State of N.M., Denise D. Fort, Asst. Atty. Gen., Nancy F. Jones and Allison Karslake, Sp. Asst. Attys. Gen., Taxation and Revenue Dept., Santa Fe, N.M., on brief for amicus curiae State of N.M. Mark B. Thompson, III of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, N.M., on brief for amicus curiae Amoco Production Co. Before SETH, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges. SETH, Chief Judge. Since the 1950’s the appellants have held oil and gas leases on lands in the Navajo Indian Reservation in Utah. The Navajo Tribe imposed taxes on the value of mineral interests and on gross receipts. The State of Utah and San Juan County have been collecting similar taxes for some years. The tribe has not collected taxes as yet under the resolutions imposing the taxes. This action is considered to be against the tribal officials. Phillips Petroleum Company, Shell Oil Company and Chevron U.S.A., Inc. brought suit against the tribe and individual tribal officials individually to have the Navajo taxes declared invalid. A similar challenge was brought by Southland Royalty Company, The Superior Oil Company, The Union Oil Company of California, Wilshire Oil Company of Texas and Anadarko Production Company. These plaintiffs argued in the alternative that state and local taxes were invalid. Texaco, Inc. also brought suit against the tribe but did not challenge the state and local taxes. In the Texaco suit the state and county intervened in order to present their own arguments against the tribe’s power to tax oil and gas leases and receipts. All of these cases were consolidated in the district court. The district court dismissed the tribe and tribal entities but kept in the individual defendants. It found that the validity of the Navajo taxes was conditioned upon their approval by the Secretary of the Interior which had not been obtained, and that the state and county taxes were valid. These appeals and cross-appeals followed. As the district court noted, the facts and issues in this case are very similar to those of Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.). Since the district court opinion in the cases before us the Supreme Court decided Merrion. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21. These two cases govern the basic issues in this appeal. It is apparent from Merrion that Indian taxation of oil and gas leases is a valid exercise of tribal authority. As the Court there said, 455 U.S. 130, at 137, 102 S.Ct. 894 at 901, the tribe has a power to tax which derives from “the tribe’s general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction.” See also Washington v. Confederated Tribes, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. Thus the Navajo Tribe had the power to tax and the burden on those who attack that power is to show that it has been modified, conditioned or divested by Congressional action. The Supreme Court in Merrion rejected the argument that the Jicarilla Tribe’s power to tax had been preempted by the extensive federal regulation of oil and gas leases promulgated pursuant to the Indian Mineral Leasing Act, 25 U.S.C. §§ 396a-396g. Despite that position of the Court the plaintiffs again advance a preemption argument, but they contend that there is a critical difference between the Jicarilla Tribe and the Navajo Tribe in that the Navajo Tribe has .not chosen to organize and adopt a constitution under the Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479 (IRA). Thus taxes imposed by the organized Jicarilla Tribe would be reviewed by the Secretary of the Interior in accordance with the Jicarilla Constitution. Revised Constitution of the Jicarilla Apache Tribe, Art. XI § 1(e). This fact was noted by the Court in Merrion. 455 U.S. 130 at 150, 102 S.Ct. 894 at 905. In contrast, plaintiffs argue the taxes imposed by the Navajo Tribe which has no constitution would not be reviewed by any federal agency and might disrupt federal energy policies. Therefore, the plaintiffs argue the Navajo tax should be held to be preempted even though Merrion held that the similar Jicarilla tax was not. We cannot agree with this argument. The secretarial approval required by the Jicarilla Constitution was not the only factor mentioned in Merrion on the point of federal regulation and preemption of the tribe’s power to tax. State taxation might cause similar disruptions of federal policy, and the Court in Merrion, though not faced with the question, clearly indicated that state taxation of these leases was allowed under 25 U.S.C. § 398c. Merrion, 455 U.S. at 150-51, 102 S.Ct. at 908. See also Commonwealth Edison Co. v. Montana, 453 U.S. 609, 101 S.Ct. 2946, 69 L.Ed.2d 884. Further, in Merrion the Court observed that Congress had recognized and allowed for the possibility of Indian taxation in the Natural Gas Policy Act of 1978, 15 U.S.C. § 3320(a), (c)(1) (1976 ed. Supp. III). The tribal taxation contemplated by this statute is not confined to taxes imposed by organized tribes. See 15 U.S.C. § 3316(b)(2)(C)(ii) (1976 ed.) where the meaning of the phrase “Indian tribe” for purposes of the Natural Gas Policy Act is stated. Thus federal energy law expressly allows for tribal taxes, and does so without any suggestion that the power to tax can only be exercised by tribes which have adopted a constitution under the IRA. We therefore hold that the Navajo Tribe’s power to tax exists despite extensive federal regulation of the oil and gas activities- on the reservation. As the district court observed this state of the law may result in an advantage for tribes which have not adopted a constitution or charter under the IRA. The Navajo Tribe, for example, can impose taxes free from any requirement of approval by the Secretary of the Interior while organized tribes if their constitutions so provide must submit to secretarial review at some stage of the taxation process. The district court was concerned that to permit non-organized tribes an advantage would contravene a Congressional policy of encouraging tribes to organize. The court also considered it possible that Congress had generally intended that the Secretary of the Interior oversee all Indian legislation on oil and gas matters whether promulgated by an organized tribe or not. On these grounds, the district court imposed a requirement of secretarial review over the Navajo taxes. We do not agree that there is support for this requirement in the statutes. The purpose of the IRA was to enable and encourage Indian self-government. Organization under the IRA was not the only form of self-government acceptable to Congress. One of the ways in which the IRA reflects a respect for self-government was in the provision that makes adoption of a constitution optional. 25 U.S.C.. § 476. The choice of government is in itself an act of self-government and consonant with Congressional policies. The self-sufficiency of the Navajo Tribe could be impaired by the imposition of a requirement of secretarial approval of its actions as to taxes. Thus we disagree with the position that the delegation of regulatory authority over oil and gas leases to the Secretary requires that the Secretary review and approve these tribal taxes. It is clear that the Secretary’s authority does not control every conceivable dispute or concern over Indian leases. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238. A requirement of secretarial approval would be directed not so much to regulatory uniformity as to the control of Indian affairs versus self-government. If the Congressional intent with regard to secretarial approval of Indian taxation of oil and gas lands is ambiguous then, as the Supreme Court reiterated in Merrion, 455 U.S. at 152, 102 S.Ct. at 909 (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136 at 143-44, 100 S.Ct. 2578 at 2583-84, 65 L.Ed.2d 665): “ ‘Ambiguities in federal law have been construed generously in order to comport with ... traditional notions of sovereignty and with the federal policy of encouraging tribal independence.’ ” Thus we must reverse that part of the district court’s holding which conditioned the validity of the Navajo taxes upon the review and approval by the Secretary of the Interior, and hold that such approval is not here required. The plaintiffs argue also that the Indian taxes offend the Commerce Clause of the United States Constitution. This claim is partially disposed of by the analysis in Merrion, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21. The Court there held that it was not necessary to reach the question of the applicability of the Commerce Clause to Indian reservations in the case of the Jicarilla tax because Congress had specifically allowed those tribes organized under the IRA to tax. Nevertheless, the Court included a Commerce Clause analysis and determined that the Jicarilla tax would survive judicial scrutiny under the Commerce Clause. The Court held that the Jicarilla tax did not discriminate against interstate commerce. The Navajo tax is similar in its legal incidence and in our view should be upheld under Merrion. The plaintiffs further claim that they should be permitted to conduct discovery to determine how the tribe intends to use the proceeds of the tax. The purpose of this would be to see whether the amount of the tax is fairly related to the services intended to be provided by the tribe. This inquiry is related, it is urged, to the test of Commerce Clause validity set out in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326. We, however, agree with the district court that discovery would be inappropriate because no tax has yet been collected and predictions as to its use would be speculative. Discovery now could not yield any information relevant to validity under the Commerce Clause. Furthermore, although the amount sought to be collected is substantial, although at best a rough estimate, it is insignificant by common knowledge in relation to the very large balances in the funds the tribe owns in its own right, and thus again presents no basis for discovery at this time. The other argument advanced by plaintiffs to institute discovery proceedings was to “bolster their claim that the Navajo Business Activity Tax unlawfully discriminated against interstate commerce in favor of intra-Reservation commerce.” Brief of plaintiffs-appellants Phillips Petroleum Company, Shell Oil Company and Chevron U.S.A., Inc. at 30. No description of the information that might be the object of discovery is given, while the allegations that the tax is discriminatory are all based on provisions on the face of the Act. This is not surprising as the tax has never been collected and no practical effects could be shown. Thus discovery would be premature under this claim as well. The plaintiffs make a final argument with regard to the Commerce Clause. They claim that if the State of Utah’s right to tax oil and gas leases on Navajo land is upheld the companies will be subject to multiple tax burdens. However, a multiple tax burden is not necessarily unconstitutional. Washington v. Confederated Tribes, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10. The plaintiffs have a taxable nexus with two governments and must accept the tax burdens. Western Live Stock v. Bureau, 303 U.S. 250, 58 S.Ct. 546, 82 L.Ed. 823. In Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 100 S.Ct. 1223, 63 L.Ed.2d 510, the Supreme Court held that nothing in the Constitution required allocation of tax power to one authority rather than apportionment between two. As long as the extent of taxation does not exceed the nexus between the sovereign and the taxpayer the tax is lawful even where, as here, another also has a right to tax. The scope of taxation is limited by the fact that a similar tax could not be imposed with equal right by any other states or tribes. Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir.). Two final constitutional questions must be considered. The first is couched in the form of an equal protection claim advanced by plaintiff-appellant Texaco Company. Texaco argued that the Navajo tax is of limited application and thus discriminatory in that no Navajo businesses will be affected. Some enterprises are specifically excluded. Texaco asserts that all of the excepted types of establishments on the reservation are owned by Navajos, and most or all other Navajo businesses will be excluded by the standard deduction of $125,000, leaving plaintiffs to bear the entire tax. As we have noted the Council’s tax resolutions have not been put into operation. In view of this fact, and the state of the record, it would be premature to consider this equal protection issue on this appeal. Some of the plaintiffs also suggest that there are serious due process and related concerns arising from the fact that only Navajos can participate in the governmental process and in voting for members of the tribal government. It is apparent that non-Navajos are excluded from participation in the process which imposes the taxes. They are excluded from the other tribal governmental processes. As the Government states in its brief at 6, “Council members are elected by the Navajo people.” The Government refers to the “Navajo Nation” as does the tribe as a separate “nation” within Utah. It also appears that the tribe can exclude from the reservation non-Navajos. It is in this context, and in the absence of a tribal constitution, that the plaintiffs raise the questions as to what if any remedy they might have to challenge the severe enforcement devices included in the Council’s resolutions or any other matters of assessment, valuation and collection. The lessees were, of course, granted a leasehold interest in the reservation as an oil and gas lease provides. The tax apparently recognizes the existence of such an interest and possessory right. But again we must consider these issues to be premature and do not consider them. The state taxation of the same activities must be examined. We have already noted that taxation by two entities is not necessarily unconstitutional. The plaintiffs ask us to decide, however, a different question which is not in any way bound to the validity of the Navajo tax. We are asked to decide the validity of a state severance tax on oil produced from Navajo lands. This state tax is challenged on the theory that 25 U.S.C. § 398c which permits such a tax has been repealed by the Indian Mineral Leasing Act of 1938, 25 U.S.C. §§ 396a-396g. This question is outside the jurisdiction of the federal courts as it concerns the validity of the state tax. 28 U.S.C. § 1341 states: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Several recent Supreme Court cases have reaffirmed the limiting power of this statute. California v. Grace Brethren Church, 457 U.S. 393, 102 S.Ct. 2498, 73 L.Ed.2d 93; Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271; Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464. In Grace Brethren Church, section 1341 operated to bar jurisdiction even where, as here, the interpretation of a federal statute was at issue. The plaintiffs argue that there is no “plain, speedy and efficient” remedy at state law. They contend that with respect to some of the state taxes at issue that the remedies are administrative, and Utah law precludes the examination of constitutional issues in an administrative forum. It is true that the first step in a state challenge of some of the taxes at issue is before the State Tax Commission. See Utah Code Ann. §§ 59-24 — 1 through 9 (Tax Court Act). This is only the first step and under Utah law this proceeding is for the purpose of permitting the Commission to correct administrative errors rather than to consider constitutional challenges. Shea v. State Tax Commission, 101 Utah 209, 120 P.2d 274. The second step of the state challenge may, however, at the option of the complainant, be brought in district court and will be “original, independent proceedings and shall be tried ... de novo,” Utah Code Ann. § 59-24-3(1), and apparently all issues may be raised and considered. The procedure of going first to the Tax Commission, then to district court spells out in statutory form a requirement of exhaustion of administrative remedies. In Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464, the Supreme Court upheld a procedure requiring exhaustion of administrative remedies as “plain, speedy and efficient” for purposes of section 1341. It is the judgment of this court that the judgment of the trial court is reversed insofar as it conditioned the validity of the taxes imposed by the tribe on the approval of the Secretary of Interior, but is otherwise affirmed.

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

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

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

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

FRANKS v. UNITED STATES. No. 13462. Circuit Court of Appeals, Eighth Circuit. Dec. 22, 1947. John L. Sullivan, of St. Louis, Mo. (Lynn Meyer and Roberts P. Elam, both of St. Louis, Mo., on the brief), for appellant. David M. Robin-son, Asst. U. S. Atty., of St. Louis, Mo. (Drake Watson, U. S. Atty., of St. Louis, Mo., on the brief), for appellee. Before SANBORN, WOODROUGH, and COLLET, Circuit Judges. SANBORN, Circuit Judge. The appellant (who will be referred to as “defendant”) was charged, by an information filed by the United States Attorney for the Eastern District of Missouri, with twenty-one separate violations of the provisions of General Ration Order No. 5 (8 F.R. 2195), General Ration Order No. 8 (8 F.R. 3783), and the Second War Powers Act, as amended, Act of March 27, 1942, c. 199, Title III, § 301, 56 Stat. 177, 50 U.S.C.A.Appendix, § 633. Simply ’Stated, the defendant was charged with having wilfully filed with the St. Louis Rationing Board of the Office of Price Administration, on twenty-one different occasions, applications for ration allotments, in behalf of certain restaurant owners, in which he made false statements regarding the number of persons served and the dollar volume of business done at their restaurants. The wilful filing of such an application containing statements known to be false constituted a misdemeanor. The issues raised by the defendant’s plea of not guilty were tried to a jury. The jury found the defendant guilty of the offenses charged in Counts One and Two of the information, and not guilty as to all other counts submitted. The defendant has appealed from the judgment and sentence entered on the verdict. He asserts (1) that there was no adequate evidentiary basis for the verdict, and (2) that the District Court erred in admitting in evidence carbon copies of two letters. It must be remembered that, upon review of a judgment of conviction, the reviewing court is required to take that view of the evidence which is most favorable to the government, and to give to it the benefit of all inferences which reasonably may be drawn from the evidence. It must also be remembered that in order to make a case for the jury, the government is not required to establish the guilt of a defendant to a mathematical certainty or beyond the possibility of a doubt. See Affronti v. United States, 8 Cir., 145 F.2d 3, 5, 6. Count One of the information charged the defendant with making false statements in an application for a ration allotment filed with the Rationing Board on July 3, 1945, in behalf of Charles C. Wirtel and Sophia Wirtel, doing business as the W and W Cafeteria in St. Louis, Missouri. Count Two charged the defendant with making false statements in a similar application in behalf of the same applicants, filed on November 8, 1945. The defendant contends that there was no substantial evidence (1) that he prepared the applications, (2) that they were filed with the Rationing Board, (3) that he filed the applications, (4) that the figures as to dollar volume and number of persons served as shown in the applications were false, or (5) that if such figures were false, the defendant had knowledge of their falsity. The record shows that the defendant was the Secretary of the St. Louis Restaurant Association, a service organization for the proprietors of restaurants; that he was also a member of the St. Louis Rationing Board until about March 15, 1945; that, as Secretary of the Association, he assisted in making out forms of applications for ration allotments for members of the Association; that the printed forms called for a statement of “Number of Persons Served Food” during the preceding allotment period (the previous two months) and a statement of “Gross dollar revenue for Food Services” during the same period; that the rationing allotment given by the Ration Board was based entirely upon the statements in the application as to the number of persons served and the dollar volume of sales during the preceding two months, and that if either of these figures was too large, the applicant would receive a larger allotment than that to which he was entitled. The government’s evidence tended to prove that the defendant made it a practice, in connection with the applications which he prepared or assisted in preparing for members of the Association, to overstate-the number of persons served and the dollar volume of food sales during the previous, two months. It appears that the information contained in the applications was inconsistent with the sales tax returns made by the applicants to the State of Missouri. This inconsistency resulted in an investigation by the Office of Price Administration and the filing of charges against the defendant. The jury was justified in inferring that the applications referred to in Counts One and Two, for ration allotments for Charles C. and Sophia Wirtel, doing business as the W and W Cafeteria, were prepared and filed with the Rationing Board by the appellant. Charles Wirtel testified that the defendant handled all his applications for ration allotments for the restaurant; that he (Wirtel) signed the application forms, but that they were not filled out as to the number of persons served or as to the dollar volume of business at the time he delivered them to the defendant; that the applications for the ration allotments for July and August, 1945 (Count One), and for November and December, 1945 (Count Two), bore his signature; that he after-wards saw these applications at the “O.P.A. office” and placed his initials on each of them. The jury was also justified in1 inferring that the statements in the applications, at least with respect to the dollar volume of business, were false. Wirtel testified positively that he gave to the defendant no statement as to the dollar volume of business done, and told the defendant that he could get that from his (Wirtel’s) Auditor. The application referred to in the first count of the information stated the dollar volume for the previous allotment period to be $5,842.50. The testimony of Wirtel’s Auditor showed the correct figure to be $2,629.37. The application referred to in the second count stated the dollar volume for the months of September and October, 1945, to be $5,639.50. The testimony of the Auditor was that the actual dollar volume was $2,303.85. A carbon copy of a letter of July 13, 1945, written by the Auditor to St. Louis Restaurant Association, giving the correct dollar volume of 'sales for May and June, 1945, and a carbon copy of a similar letter, dated November 14, 1945, giving the dollar volume of sales for September and October, 1945, were received in evidence over the objection of the defendant that they were not the best evidence. The defendant testified in his own behalf. His defense was that the statements in all applications handled by him were in accordance with the information furnished him by the applicants. The real issue in the case was whether the falsity of the statements in the applications referred to in the record was attributable to him or attributable to the applicants themselves. The question of the guilt or innocence of the defendant, under the evidence, was a question of fact for the jury. The court did not err in denying the defendant’s motion for a directed verdict of acquittal. The contention that the carbon' copies of letters were not admissible in evidence is without merit. United States v. Manton, 2 Cir., 107 F.2d 834, 845. The judgment appealed from is affirmed.

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

CONTINENTAL NAT. BANK OF JACKSON COUNTY, AT KANSAS CITY, MO., et al. v. HOLLAND BANKING CO. No. 9673. Circuit Court of Appeals, Eighth Circuit. July 24, 1933. Rehearing Denied Sept. 5, 1933. See, also, 50 F.(2d) 19. George L. Edwards, of Kansas City, Mo. (Omar E. Robinson and Albert E. Stoll, both of Kansas City, Mo., on the brief), for appellants. H. G. Leedy, of Kansas City, Mo., and O'rin Patterson, of Springfield, Mo. (Roscoe C. Patterson, of Kansas City, Mo., and Farrington & Curtis, of Springfield, Mo., on the brief), for appellee. Before GARDNER, SANBORN, and BOOTH, Circuit Judges. BOOTH, Circuit Judge. This'is a suit in equity brought in the federal court by the appellee asking the aid of the court in the collection of a judgment obtained in the state court against the appellant, Continental National Bank. The salient allegations of fact set out in. the bill of complaint are as follows: The defendant, the Continental National Bank of Jackson County, at Kansas City, Mo., hereafter called the Continental National Bank, is a corporation organized under the National Banking Act of the United States of America and located at Kansas City, in Jackson county, in the Western district of Missouri. On the 17th day of October, 1922, the Continental National Bank ceased the transaction of business as a national bank, and on said date it entered into a contract in writing with the Continental National Bank & Trust Company, of Kansas City, Mo-., whereby, in consideration of the assumption by the Continental National Bank & Trust Company of certain liabilities of the Continental National Bank, the latter caused to be transferred and delivered to said Continental National Bank & Trust Company a large portion of its assets. Thereafter, to wit, on the 2d day of January, 1923, by a vote of two-thirds of its shareholders, said Continental National Bank went into voluntary liquidation, and at said time the defendants J. F. Meade, Russell Smith, B. Haywood Hagerman, John M. Cleary, and C. W. Sheldop. were named as liquidating - agents for said bank, and all the remaining assets belonging to said bank were on said date delivered into the possession 'of said liquidating committee, composed of the defendants last named, for the purpose of liquidation, pursuant to section 5220, U. S. Revised Statutes (12 US CA § 181). The capital stock of said bank, on the 2d day of January, 1923-, was $1,000,-000, divided into ten thousand shares of the par value of $100 each; and on said date, said bank, according to its books, had a surplus fund in excess of 20 per cent, of its said capital stock. (The names of numerous persons are given as being stockholders of the bank on January 2,1923; and they and their executors, administrators, heirs, and legatees are still stockholders.) Plaintiff brings this action on its own behalf and on behalf of all other creditors of said Continental National Bank for the purpose of winding up the affairs of said national bank and to establish the existence of a trust in the assets of said national bank for the use and benefit of this plaintiff and all other creditors of said national bank, and to enforce an equitable lien and claim against such assets; and to administer said trust; that the same is also to recover from the defendants who are shareholders of said bank, and from the administrators or executors and heiré and legatees of such of said shareholders who are deceased, the amount of the individual liability of said shareholders for the debts and engagements of said bank to the extent of the amount of the stock of such bank owned by such shareholders at the par value thereof, in addition to the amount invested in such stock by said shareholders. Plaintiff, Holland Banking Company, is a corporation organized and existing under and by virtue of the laws of the state of Missouri with its place of business at Springfield, Greene county, Mo. S. L. Cantley is the duly appointed, qualified, and acting commissioner of finance of the state of Missouri. On the 15th day o.f January, 1924, plaintiff, Holland Banking Company, became insolvent, closed its doors, and placed all of its property and affairs in the possession of F. C. Millspaugh, who was then the duly qualified and acting commissioner of finance of the state of Missouri. S. L. Cantley now has charge thereof for the purpose of liquidation, under the laws of the state of Missouri relating to insolvent banks. After the failure of plaintiff bank, as herein set forth, to wit, on the 19th day of August, 1926, an action was instituted by the Holland Banking Company by S. L. Cantley, finance commissioner aforesaid, in the circuit court of Greene county, Mo., against the defendant, Continental National Bank, and one Edd L. Sanford, seeking the recovery of $100,000 and interest, on account of a conversion on and prior to October 17, 1922, by said defendant bank of funds in said amount belonging to the Holland Banking Company. Thereafter, the venue of said cause was by agreement transferred to the circuit court of Pettis county in the state of Missouri, and the cause of action as to Edd L. Sanford, one of the defendants therein, was thereupon dismissed. Said cause was thereafter in said court duly tried, and on the 5th day of September, 1027, said court rendered judgment in favor of the plaintiff herein and against the defendant, Continental National Bank, in the sum of $97,274.85, with interest from said date at 6 per cent, per annum. The defendant banking association appealed from said judgment to the Supreme Court of the state of Missouri. Thereafter, to wit, on the 8th day of October, 1929, said Supreme Court of Missouri rendered a judgment affirming the judgment of the trial court aforesaid. 324 Mo. 1, 22 S.W.(2d) 821. Thereafter, to-wit, on the--day of January, 1930, said defendant banking association applied to the Supreme Court of the United States for a writ of certiorari to he directed to the Supreme Court of Missouri to send up the record in said cause for review of the judgment of that court. 281 U. S. 724, 50 S. Ct. 239, 74 L. Ed. 1142. On the 7th day of March, 1930, said Supreme Court of the United States denied said writ, and the judgment herein referred to has now become final and conclusive, and binding on said banking association and all of the defendants herein. By reason of the premises, said defendant hanking association was on said October 17, 1922, and has ever since been, lawfully indebted to tile plaintiff bank, and is now indebted to plaintiff bank in the aforesaid sum of $97,274.85, together with interest thereon at the rate of 6 per cent, per annum from the aforesaid 5th day of September, 1927. Plaintiff has demanded of the defendant bank and its liquidating committee the payment of said debt and judgment, but said defendants have failed, refused, and neglected to pay the same, or any part thereof. There are not now sufficient assets belonging to said defendant bank to pay its debts. After the assets on hand have been liquidated and the amount of the same ascertained, and after the amount of its debts have likewise been determined, it will then become necessary to assess the shareholders of said bank to the amount of their stock therein at the par value thereof, in order to pay the debts due plaintiff and other creditors. The defendants who are named heroin as shareholders of said hank or as'the executors, administrators, heirs, or legatees of shareholders, are liable under 38 Slat. 273, § 23 (12 USCA § 64), each to the par value of the stock owned by such shareholders for such deficiency as may hereafter he determined. The prayer is for a receiver, a winding up of the defendant bank, an ascertainment of the debts and assets of the defendant bank, a,n application of the assets to the payment of debts, and judgment against the stockholders of defendant bank sufficient to' pay any deficiency, but not exceeding the statutory liability. The answer of the defendants admits the obtaining of the judgment in the state court by plaintiff; but alleges: “The suit commenced by plaintiff in which he obtained said judgment was commenced to collect a bank credit or deposit for $100,000 entered on its books by the Continental Bank in favor of the Holland Bank on or about the 9th of April,.1921, pursuant to the following contract: At that time, J. L. Hiño and C. E. Randall were vice-president and cashier, respectively, of the Holland Bank and J. P. Meade, president of the Continental Bank. Hiño and Randall proposed to Meade to execute their note to the Continental Bank for said amount and until their note was paid the Holland Bank would keep on deposit with the Continental Bank at least $100,000, against which the Continental Bank might charge their note at any time it desired, they to pay interest on their note at the rate of 6% and the Continental Bank to pay interest on said deposit or credit to the Holland Bank at the ruling clearing house rate. Meade accepted this proposition and Hino and Randall executed and delivered their note to the Continental Bank as agreed, and the Continental Bank entered in favor of the Holland Bank a credit or deposit for $100,-000 as agreed. Interest was paid thereafter as agreed and the Holland Bank thereafter, as agreed, kept a deposit of approximately $100,000 with the Continental Bank. Later on, by mutual agreement, the note of E. L. Sanford, who had become president of the Holland Bank, was substituted for the Hine and Randall note upon the same terms and conditions. Sanford paid $25,000 on his note. In October, 1922, the balance of his note remaining unpaid, the Continental Bank charged it against said deposit so remaining with it at that time amounting to approximately the balance due upon said note, or $75,000. It was to recover this balance of deposit so appropriated to the payment cf Üio balance due upon Sanford’s note that suit was commenced and the trial court entered a judgment against the Continental Bank for the exact amount of said balance of deposit.” The answer further alleges: “That at the time or shortly after the balance due upon Sanford’s note was charged against the balanee of said deposit or credit, Sanford reimbursed to the Holland Bank the amount thereof and which was known to and approved by the Holland Bank and the Commissioner of Finance long before the commencement of said suit, but fraudulently concealed from and unknown to the Continental Bank, its officers, agents and employees, and its liquidating committee, until long after the trial of said suit and even until after it had been submitted to the Supreme Court of Missouri.” The answer then sets out the details of the alleged payment by Sanford to the Holland Bank by the turning over by Sanford to the bank of notes of third parties in October, 1922; that Sanford was at that time solvent; that later the Holland B'ank permitted Sanford to take out the said notes of third parties and substitute his own notes therefor. The answer then sets out the putting up of certain collateral by Sanford (in September, 1923), as president of the Holland Bank in connection with an indemnity contract to meet a requirement of the commissioner of finance relative to bad paper held by the Holland Bank. The answer further alleges that in August, 1924, a contract between the commissioner of finance and Sanford covering the transfer by Sanford of certain property to the bank in settlement of certain of his obligations to the bank was made, subject to approval of the state court of Greene county, but was finally not carried out because disapproved by the court. The answer further alleges that certain of the collateral put up by Sanford was wrongfully, sold by the commissioner of finance and the proceeds applied to the payment of customers’ paper owing to the Holland Bank, instead of to the payment of Sanford’s notes. The answer further alleges that the commissioner of finance had full knowledge of the foregoing facts, but concealed them from the Continental Bank and its officers and the liquidating committee; that none of the foregoing facts were known by the Continental Bank, its officers, or the liquidating committee until long after the trial of the ease in the state court and until that ease had been disposed of by the Supreme Court of Missouri; that the officers of the Holland Bank, at the time of the commencement of the suit in the state court, were under indictment or threatened with prosecution and so in personal jeopardy; that the special deputy commissioner in charge of the liquidation of the Holland Bank gave untrue statements to the representatives of the Continental Bank; that shortly after the commencement of the state court ease, and before the trial thereof, the defendants sent a representative to Springfield, Mo., to inquire of the commissioner of finance, or his deputy, what happened when the Continental Bank in October, 1922, charged the balance due upon Sanford’s note against the balance of the deposit of the Holland Bank; that this representative made this inquiry of J. E. Cahill, special deputy commissioner in charge of the liquidation of the Holland Bank from the 1st of June, 1924, on down to the present time; that in response to this inquiry, Cahill advised the representative of the defendants that the only thing that was.done was that Sanford directed to balance such debit upon the books of the Holland Bank, that the amount thereof be charged to the paying teller, and that nothing further was done, and that the books and records of the Holland Bank did not reveal anything else indicative of what happene'd or what was done by Sanford, or by the Holland Bank to take care of this charge made at that time by the Continental Bank against the Holland Bank; that, at the very time that Cahill made this statement to the representative of the Continental Bank, he well knew all the facts above mentioned, and that his statement to the representative of the Continental Bank was untrue and done for the purpose of misleading and deceiving him as to the real facts; and that, relying upon the statement of Cahill, the defendants made no further investigation as to what occurred at the time mentioned, or what was done at that time by Sanford dr by the Holland Bank to take care of this charge until long after the trial and disposition of the state cause; that the mental condition of Sanford was such that the Continental Bank could not get from him the real facts as to the various transactions already mentioned. The answer further alleges that, by reason of the foregoing facts, it would be inequitable and unconscionable to permit the Holland Bank to contend that the debt of Sanford to the Holland Bank has not been paid and satisfied. The answer prays that the court deny to plaintiff any aid or relief in the enforcement of the judgment of the state court. Prior to the trial of the case at bar upon the merits, a receiver of the Continental National Bank was appointed by the trial court [(D. C.) 43 F.(2d) 640], and the order for a receiver was affirmed by this court [50 F.(2d) 19]. Upon the issues formed by the pleadings, the case was tried, and the trial court made findings Of- fact and conclusions of law in favor of plaintiff, which are set out in the margin. A decree was, accordingly, entered ordering a sale of the property owned by the defendant bank. Jurisdiction was reserved for the purpose of determining the liability of shareholders, and making such further orders as might be necessary. The present appeal followed. The Force and Effect of the Judgment Obtained in the State Court. Counsel for appellants in their brief state: “In the very beginning let us say that we are not asking this court to review as an appellate court the conclusions reached by the, trial and Supreme Court of the State of Missouri.” Yet they quote certain of the findings of the state trial court, and then say: “It is difficult to understand in view thereof how the trial and Supreme Court of Missouri could have reached the conclusion arrived at in the majority opinion of the Supreme Court. On these admitted facts, according to settled principles of law and good morals, reeognized and applied by the courts of all civilized nations from time immemorial, the plaintiff had no cause of action. * * r The conclusion reached by the trial court and by the majority opinion of the Supreme Court is utterly indefensible and plaintiff’s judgment, therefore, rests upon a miscarriage of justice and not a cause of action. * * * The conclusion reached in the majority opinion is out of harmony with the law' of the land as declared by the Supreme Court of Missouri until its divided opinion in the state case, and by every other court from time immemorial.” Apparently counsel have misapprehended the force and effect of the state court judgment. Neither the United States District Court nor this court can by way of review or otherwise allow appellants to relitig'ate issues which were tried and determined against them in the state courts. Neither the findings of fact in the state court nor the sufficiency of the evidence adduced in support thereof are hero open to question. In Southern Pacific Railroad Co. v. United States, 168 U. S. 1, page 48, 18 S. Ct. 18, 27, 42 L. Ed. 355, the court said: “The general principle announced in numerous eases is that a right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for wliieh civil courts have been established, which is to secure the peace and repose of society by the settlement of matters eajjable of judicial determination. Its enforcement is essential to the maintenance of social order; for the aid of judicial tribunals would not be invoked for tlie vindication of rights of person and property if, as between parties and their privies, eonclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue, and actually determined by them. “Among the cases in this court that illustrate tlie general rule are Hopkins v. Lee, 6 Wheat. 109, 113 [5 L. Ed. 218]; Smith v. Kernochen, 7 How. 198, 216 [32 L. Ed. 666]; Thompson v. Roberts, 24 How. 233, 240‘ [36 L. Ed. 648]; Washington, Alexandria & Georgetown Steam Packet Co. v. Sickles, 24 How. 333, 340, 341, 343 [16 L. Ed. 650]; Russell v. Place, 94 U. S. 606, 608 [24 L. Ed. 214]; Cromwell v. Sac County, 94 U. S. 351 [24 L. Ed. 195]; Campbell v. Rankin, 99 U. S. 261 [25 L. Ed. 435]; Mason Lumber Co. v. Buchtel, 101, U. S. 638 [25 L. Ed. 1073]; Bissell v. Spring Valley Township, 124 U. S. 225, 230, 8 S. Ct. 495 [31 L. Ed. 411]; and Johnson Co. v. Wharton, 152 U. S. 252, 253, 14 S. Ct. 608 [38 L. Ed. 429].” See, also, United States v. Moser, 266 U. S. 236, 45 S. Ct. 60, 69 L. Ed. 262; Oklahoma v. Texas, 256 U. S. 70, 41 S. Ct. 420, 65 L. Ed. 831. The rule thus stated has been uniformly followed. And the rule applies as well to defenses which might have been set up in the former suit as to those which were actually litigated. Grubb v. Public Utilities Comm., 281 U. S. 470, 479, 50 S. Ct. 374, 74 L. Ed. 972, and eases cited. It may be noted in passing that equitable defenses are allowable in law actions in Missouri (section 777, Missouri Revised Statutes, 1929 (Mo. St. Ann. § 777); also that a judgment of a state court of competent jurisdiction, when used as the basis, of a claim in a court of the United States, is as conclusive as if the judgment, had been rendered in a court of the United States. Scotland County v. Hill, 132 U. S. 107, 10 S. Ct. 26, 33 L. Ed. 261; Grubb v. Public Utilities Comm., supra. Relief Against Irirforcement of Judgment. But while one court will not re-examine defenses and causes of action once presented, considered, and determined by another court of competent jurisdiction, yet, under certain conditions, a court of equity may restrain the enforcement of a judgment obtained in another court, and this rule applies both to the courts of the United States and to- the state courts. Generally speaking, the facts which condition tlie granting' of relief by a court of equity against the enforcement of a judgment are: First, that the party seeking the relief had a good defense against the cause of action on which the judgment was entered; second, that he was prevented by fraud, concealment, accident, mistake, or the like from presenting such do tense; and, third, that ho has been free from negligence in failing to avail himself of the defense. In Knox County v. Harshman, 133 U. S. 152, 10 S. Ct. 257, 258, 33 L. Ed. 586, the court said: “A court of equity does not interfere with judgments at law, unless the complainant has an equitable defense of which he could not avail himself at law, or had a good defense at law which he was prevented from availing himself of by fraud or accident, unmixed with negligence of himself or his agents.” In. the ease of Smith v. Apple, 6 F.(2d) 559, page 563, this court, speaking by Judge Stone, said: “ * * * When a party has a defense which he could have interposed, and is not prevented from so doing by fraud, accident or mistake, he cannot reserve that defense to some other time or forum and thus split up litigation. If he suffers through his negligent failure to interpose the defense at the proper time and in the proper court, it is from his own fault and he cannot ask relief therefrom in a court of equity.” The rule has been recognized in a multitude of eases, among them: Hendrickson v. Hinckley, 17 How. 443, 15 L. Ed. 123; Toledo Scale Company v. Computing Scale Co., 261 U. S. 399, 43 S. Ct. 458, 67 L. Ed. 719; David A. Manville & Co. v. Francis Oil & Ref. Co., 20 F.(2d) 473 (C. C. A. 8); Jenner v. Murray (C. C. A.) 32 F.(2d) 625; Riverside Oil & Ref. Co. v. Dudley, 33 F.(2d) 749 (C. C. A. 8); Miller Rubber Co. v. Massey (C. C. A.) 36 F.(2d) 466. It is also generally held that the fraud complained of must be extrinsic to the issues which were determined in the suit resulting in the judgment. Freeman on Judgments (5th Ed.), p. 2568, states the rule as follows: “The rule that fraud, to be a ground for relief, must be extrinsic or collateral to the matter tried in the first action, is almost universally acquiesced in. It is merely an application of the general principle that equity will not interfere simply to give a second opportunity to relitigate that which has already been fully litigated. Extrinsic fraud has been defined to be ‘actual fraud, such that there is on the part of the person chargeable with it malus animus, the mala mens, putting itself in motion and ácting in order to take an undue advantage of some other person for the purpose of actually and knowingly defrauding him.’ Extrinsic or collateral fraud operates not upon matters pertaining to the judgment itself but relates to the manner in which it is procured.” In reference to the rule thus stated, this court in Hanna v. Brictson Mfg. Co., 62 F.(2d) 139, 148, speaking by Judge John B. Sanborn, said: “So much has been written on the subject of the right of a court of equity to set aside or enjoin the enforcement of unconscionable judgments or decrees for what has been termed ‘extrinsic fraud,’ and the eases upon that subject have been so often reviewed by this and other courts, that it would be useless once more to enter into an extended discussion of that subject” — citing a large number of cases. The Omitted Defense. The main defense which the defendant Continental National Bank sets up in the case at bar against enforcement of the state court judgment is payment. This defense is set up in a twofold manner: First, by alleging facts which it is claimed constituted a satisfaction and discharge of any obligation of Sanford to the Holland Bank growing out of the charging of Sanford’s note by the Continental National Bank against the credit of the Holland Bank, which facts occurred shortly after that transaction; second, by alleging facts which it is claimed occurred considerably later, but which, in equity, should be held to be a discharge of said obligation of Sanford to the Holland Bank, or at least would constitute an estoppel against the Holland Bank to deny such discharge. The Continental National Bank contends that this defense of payment is now available because it was prevented from setting it up in the state court action by reason of fraud and concealment on the part of the Holland Bank, its officers, and the deputy commissioner of finance in charge of the Holland Bank. The trial court found against the defendant Continental National Bank on the question of payment by Sanford to the Holland Bank and discharge by that bank of his obligation to it growing out of the charging by the Continental National Bank of Sanford’s note to the credit balance of the Holland Bank; found that the defendant Continental National Bank was not prevented by fraud from presenting in the state court suit the defense of payment, if any such defense existed; found that the Continental National-Bank was not diligent in presenting the defense of payment in the state court suit, if any such defense existed; found that the answer of the Continental National Bank, in the case at bar, was without equity. The Question of Fraud. The existence of fraud on the part of the Holland Bank or its officers or the deputy commissioner of finance, which prevented the defendant bank from presenting its alleged defense in the state court, is an indispensable prerequisite to defendant bank’s success in the case at bar. Ffaud must be proved by clear and convincing evidence. What does the present record show? The wrongful charging of the Sanford note by the defendant bank to the credit aecount of tlio Holland Bank occurred about October 17, 1922. About the same date, the defendant Continental Bank ceased to do business. In, January, 1923, said bank voluntarily went into the hands of a liquidating committee. About January 15, 1924, the Holland Bank closed its doors and was placed in the hands of the state commissioner of finance. In August, 1926, the commissioner of finance brought suit in the state court based on the wrongful conversion of the defendant Continental Bank, which occurred in October, 1922. The case was tried in the state court in September, 1927. Judgment was affirmed by the state Supreme Court in October, 1929. Rehearing was denied in November, 1929. The facts relied on by the defendant bank as constituting payment by Sanford of his obligation to the Holland Bank took place in the fall of 1922 and following months. The facts relied upon by the defendant bank as being equivalent in equity to a payment of Sanford’s obligation to the Holland Bank took place in the fall of 1923 and the summer of 1924. It is apparent, therefore, that the facts relied upon by defendant Continental Bank as constituting payment, as a matter of law, by Sanford to the Holland Bank were in existence from three to four years prior to the trial of the action in the state court; and the facts relied upon as sufficient in equity to constitute such payment were in existence about two year's prior to said trial. As stated, the suit in the state court by the commissioner of finance was commenced in August, 1926. The third amended answer of the defendant Continental National Bank, in the suit in the state court, was filed February 23, 1927. Although it set up various defenses, it did not set up payment by Sanford to the Holland Bank in discharge of any obligation on his part to that bank. The trial of the case in the state court commenced May 24, 1927. In the early part of 1927, Meade and Williams, officers of the Continental Bank, went to Springfield, Mo., the place of business of the Holland Bank, to investigate. Mr. Williams testified as follows relative to the purpose of the trips and what was learned: “I accompanied Mr. Meade on his trips to Springfield, Missouri, to investigate the condition of the Holland Bank with a view to> the defense of the state case. Our first trip was in the early part of 1927 and our second trip within thirty or sixty days thereafter. When we arrived in Springfield on our first trip we went to the office of Judge Farrington, of counsel for plaintiff. We advised him of our mission and he introduced us to Mr. Cahill. Our first effort was to find out from Mr. Cahill and the records of the Holland Bank how the $100,000 credit or deposit entered on the books of the Continental Bank in favor of the Holland Bank in April, 1921, was reflected on the books of the Holland Bank. We found that this item was entered on the books of the Holland Bank as a charge against the Continental Bank and we found that against this charge some forty odd thousand dollars of paper had been taken out of the Holland Bank, which consisted of several items but which we were unable to definitely trace, and the balance had been set up in a special account in favor of E. L. Sanford. We asked Mr. Cahill what notes had been taken out of the Holland Bank and why, but he said he did not know. “ * * * We then inquired what had been done when the Continental Bank in October, 1922, charged the balance due on Sanford’s note against the balance of deposit of the Holland Bank, amounting to some $75,-000. We wanted to see what entries had been made on the books of the Holland Bank. We found that this charge had been handled by the general bookkeeper in two items, one of $25,000 and one of fifty thousand two hundred odd dollars, charged against the paying teller. The total of these charges was $75,-212.55. We asked to see tlio paying toller’s blotter, from which we tried to trace out of the paying teller’s window these debits but there was no complete record kept of cash items in the paying teller’s cage, and no way we could find out what took the place of these debit items. Wo tried to find this out from Mr: Cahill and from Mr. Nelson, the note teller ot the Holland Bank and at that time in the employ of the Commissioner of Finance. They told us that they had tried to trace these items and were unable to do so and were unable to give us any information on the subject. Neither Mr. Cahill nor Mr. Nelson directed our attention to the fact that these debits had been taken care of by third party notes delivered by Sanford to the Holland Bank. I first learned this, in the early part of 1930, I think from Mr. Omar Robinson, one of the attorneys in-the state ease and in this case. * * * “Our second trip was made within thirty or sixty days after our first and the main objeet of our second trip was to see and confer with Mr. Sanford. * * * While he expressed a willingness to do everything he could to help us, he gave us no definite information, hut spent most of his time talking of the criminal eases directed against him. * # * “When we went to Springfield to see Mr. Sanford, his mental and physical condition was such that he could give no coherent story of the transactions we inquired about. I knew when I went to see Mr. Sanford that the $75,212.55 had been charged against the deposit of the Holland Bank and about this charge having been carried in the Holland Bank as a charge against the paying teller. As a banker I knew that the Holland Bank should have received on the dates of those charges cash or cash items. The entry of the two charges aggregating that amount on the books of the Holland Bank were necessary as a corresponding entry to the charges madé on the books of the Continental Bank. “We asked Mr. Cahill what he knew about this transaction and he told us that he could not trace it. We looked at the books which Mr. Cahill showed us and we could not trace it either. It simply could not be traced by aid of the books. “ * * * We saw the cash item slips carried in the paying teller’s window and we were furnished any books or records we asked Mr. Cahill for.” The testimony of Mr. Meade, although not so definite and clear as that of Mr. Williams, is along the same general line. It is apparent from the record that the investigation of Meade and Williams was directed toward facts throwing light upon the alleged contract between the Continental Bank and the Holland Bank, as set up in the answer of the Continental Bank, rather than toward facts tending to show payment by Sanford of his obligation to the Holland Bank, of which no mention was made in the answer. Apparently the possibility of a defense by the Continental Bank on the ground of payment by Sanford to the Holland Bank was not in the minds of any of the persons connected with the Continental Bank until suggestion of it was made by one of the attorneys of the Continental Bank after the trial in the state court, but before the case was finally disposed of by the Supreme Court of Missouri.' The facts which the Continental Bank sets up in its answer to the present suit as constituting legal payment by Sanford to the Holland Bank were well known to numerous persons at the time of the visits of Meade and Williams to investigate the records of the Holland Bank. Sanford, Randall, Ferguson, and Bushnell were acquainted with those facts. And the facts which the Continental Bank sets up in, its answer in the present suit as being equivalent in equity to a payment by Sanford to the Holland Bank were known by still more persons. Sanford, Ferguson, McDavid, Millspaugh, Francis, Nelson, Todd, Bushnell, McDaniel, Cahill, Baldwin, Meyer, Woodruff, and McCanse were cognizant of some or all of those facts. Sanford, it is true, was under indictment at the time of the trial in 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. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.

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

NATIONAL LABOR RELATIONS BOARD v. NATIONAL DIE CASTING CO. No. 10877. United States Court of Appeals, Seventh Circuit. Oct. 9, 1953. A. Norman Somers, Asst. Gen. Counsel, Ivan C. McLeod, Washington, D. C., George J. Bott, General Counsel, David P. Findling, Associate General Counsel, Frederick U. Reel, Ruth C. Goldman, Washington, D. C., for petitioner. Russell Packard, Chicago, Ill., for respondent. Before DUFFY, LINDLEY and SWAIM, Circuit Judges. LINDLEY, Circuit Judge. The National Labor Relations Board has filed its petition for enforcement of its order entered May 25, 1951, based upon its finding that respondent, following a temporary shut-down of its plant for legitimate economic reasons, had dis-criminatorily failed to reinstate five employees because of their membership in and participation in the work of a union committee. The sole question involved is whether, on consideration of the record as a whole, the evidence supports this finding. The hearing was conducted by an examiner who died before he had prepared his report. A successor examiner then considered the evidence that had been taken and recommended the order which the Board entered. The complaint originally charged violation of the act by way of discriminatory refusal to recall eight employees. Two of the eight the reporting examiner concluded had not been discriminately treated, one a young lady, and the other, one Sullivan, who had been president of the union and who, upon offer of reinstatement, declined reemployment. Upon review, the Board found that respondent had attempted to reinstate another employee, Obermeyer, but had been unable to find him. Consequently the final order applies to but five employees. It is obvious that inasmuch as neither the reporting examiner nor the Board saw or heard the witnesses testify, and the evidence taken by the deceased examiner came before the successor examiner after it had been transcribed, the usual advantages enjoyed by the trier of the facts in seeing and hearing the witnesses and in determining the credibility which should be extended to them are not present. Consequently we have found it necessary to scrutinize the evidence closely. For some years prior to 1949 the company and the union had cooperated amicably under an employment contract, renewed from year to year. This agreement was to expire on May 18, 1949 and notice of its final termination, by voluntary act of the union, was given on April 14, 1949. The relationship between the employer and the union and its members during the existence of the contract was friendly and cooperative and the evidence reflects continued operation characterized by a scrupulous adherence to the agreed terms by both parties thereto. There is no evidence of remarks or threats by the employer antagonistic to the union or the employees. Respondent was engaged in production and sale of home appliances, principally “orange juicers”. It had been prosperous and continued so until the fall of 1948, when its inventory began to increase alarmingly because of a drop in sales caused apparently by the increased sales of concentrated frozen orange juice. The popularity of this latter product with the public immediately reduced the demand for home fruit juicers. Sales dropped, production out-ran demand, inventories grew inordinately and, as the months proceeded, the situation grew worse and worse, despite strenuous efforts to increase sales and to cut down inventories, so that in April, 1949, the volume of sales had sunk to less than 30% of what it had been in the summer of 1948. The company’s financial situation in the beginning of 1950 was foreboding. In efforts to retrench, the company first cut the work week from 45 to 40 hours in order to keep as many employees as it could. In March, 1949, it made an additional cut to 32 hours. Shortly later the zinc market broke badly, bringing to the respondent an inventory loss of $2000 for each carload of metal on hand. Apparently the problem could not be solved without finding new products, and the company came to the conclusion that it was necessary to shut the plant down, at least temporarily. On Monday, April 25, it posted a notice to all employees informing them that because of the existing conditions the plant would be closed indefinitely at the close of business on April 28, 1949, with the exception of the tool shop, which would remain open in order to continue work on tools and dies, looking to the manufacture of new products. There were 16 employees in that room. The shop committee of the union, led by George Fulk and Peter Nardi, upon receiving notice of the shut-down, protested to the company that it should keep the stewards employed even though there was nothing for them to do. The company did retain Zabski, the union’s tool room steward and committee member, as that room was continuing in operation. Fulk approached President Johnson, who advised him that there was no work for the stewards. Johnson testified that Fulk replied “you will have a strike on your hands. Nobody will be able to go in and out of the plant, including the office force.” On the day of the shutdown, strike rumors floated around the plant, and Nardi and Fulk circulated through the plant passing word to stewards to promote employee action and get union members to a strike meeting. Pinta', business agent for the union, advised the management that “there would be trouble with the company” and that if the stewards did not “come in, nobody else would come in either.” At the strike meeting the tool employees expressed resentment at the protest against their being retained, pointing out that if they did not continue their work it would take that much longer to get new tools and dies into production for new products and that everyone would suffer. However, a strike was voted. On Monday, May 2, certain of the employees appeared in front of the plant. Whether the men there congregated constituted a picket line, it is unnecessary to decide, for they dispersed about nine o’clock. The tool room employees then went into the plant to work and nothing more was heard of the strike. In February, 1949, some two months before the shut-down, when the business was approaching its last decline, the union sent the company a 60-day notice concerning negotiations for revision of the contract. No further communications between the parties occurred until March, when Pinta telephoned President Johnson and asked for a date for negotiation. Pinta testified that Johnson said that the condition of the company was such that it would do no good for the company to negotiate just then. Johnson says he told Pinta he was devoting all his time to reestablishing business. At any rate nothing happened at that time and Pinta said he would call again in a couple of weeks. This he never did. There were no further contacts with the company concerning revision of the contract or negotiating a new one. While the plant was closed, the employees in the tool room, including Zab-ski of the union committee, were working on new experimental models and dies and making handmade samples to send to the trade. Line production was resumed in June, 1949, but the slight up-rise in business soon disappeared, so that in July, 1950, the number of employees had fallen to less than the number employed at the time of the shutdown. Despite these essential facts, the examiner and the Board each drew an inference that the company had exhibited an antipathy toward the union and a further inference that in refusing to reinstate certain employees it did so because of this antipathy and its desire to discriminate against the members of the union in employment. Despite the fact that the complaint charged only discriminatory discharges and did not complain that the company had failed to negotiate, the examiner found that the company had failed to negotiate and from that finding drew the inference of antipathy toward the union. The examiner considered the evidence upon this issue although he reported that at the hearing, the general counsel of the Board specifically informed counsel for respondent that there was no charge that respondent had refused to negotiate and that such a refusal was not an issue. Despite this situation and over respondent’s objection to the evidence, the examiner and the Board found that there was a refusal and that it in turn justified an inference of antipathy to the union. We have searched this record in vain for any substantial evidence justifying either the finding or the inference. There is certainly no direct evidence that the respondent ever refused to negotiate or to bargain. The very most that can be said in this respect is that the company, faced with financial ruin, took the position that negotiation of a new contract at that time was useless' because of the financial situation and asked that the matter be postponed indefinitely. Though the business agent so testified, he did not thereafter attempt to initiate negotiations. We can only conclude that there was no refusal upon the part of the company to negotiate; that the injection of the issue into this case over and beyond what was charged in the complaint was unjustified, and that the findings and inferences of the examiner and the Board in this respect are wholly unsupported by substantial evidence. Consequently the question remaining is whether the company, in amicable and friendly relations with the union for the preceding years, acted discriminatorily in refusing to reinstate five employees because they were connected with the union. Two of the employees, Nardi and George Fulk were members of the shop committee of the union. When they learned that the company would not yield to their demand that respondent retain during the shut-down the union stewards, although there was no labor for the latter to perform, they began activity immediately. The contract still in force between the parties provided that it should serve as means for settlement of all disputes; that the company would not engage in any lock-out and that the employees would not strike, or interfere with or restrict production in any department of the company; that no member of the union would take part in any of such practices during the life of the agreement and that any employee who should violate the provisions of the contract “shall be considered to have quit his job.” The examiner and the Board concluded that there was no strike and, therefore, no violation of this contract by Nardi or Fulk. But the agreement is not merely to refrain from striking. It is a contract also not to interfere with or restrict production. The record discloses beyond any question that after the notice of the shutdown Nardi and Fulk passed about the plant during working hours, stopping first one employee and then another at work and approaching those working on the various machines in the plant. Though they were ordered back to their jobs, they persisted in this conduct, making it clear that they were guilty of deliberate and dangerous interference with production in their attempts to stir up a strike because the stewards were not to be kept in the plant while the tool men were allowed to continue employment. They not only disregarded their own duties but subjected their fellowmen to hazards in clear violation of their contract and shop rules. There was, as we have seen, a gathering in protest against the entry of the tool room men. Whether there was a strike or not, whether one actually came into existence, and then died a short death, are questions wholly immaterial in the disposition of the question of the rightfulness of the refusal to reinstate these men. They had violated the contract by such conduct as automatically removed them from the category of employees, a contract voluntarily made and binding upon them. An employer has the right to demand the single-minded attention of the employee to his work, for in a manufacturing plant, the performance of work with efficiency and without physical danger depends not only upon the devotion of the employees to their work but also upon the amity with which they cooperate. Otherwise, they subject the other employees to grave safety hazards in clear violation of the contract and ultimately remove them from protection. Midland Steel Products Co. v. N. L. R. B., 6 Cir., 113 F.2d 800, 805; N. L. R. B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 496. As the Supreme Court said in N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 514, 83 L.Ed. 682, the Act “does not prohibit an effective discharge for repudiation by the employe of his agreement, any more than it prohibits such discharge for a tort committed against the employer. * * * the breach of contract of which the men were guilty left the company under no obligation to initiate negotiations for a new and different contract of employment with them. * * * ” As we said in United Biscuit Co. v. N. L. R. B., 7 Cir., 128 F.2d 771, at 776 “reinstatement of those who admittedly breached their contract will not effectuate such policies.” See also N. L. R. B. v. Electric Vacuum Cleaner Co., 6 Cir., 120 F.2d 611; Hazel-Atlas Glass Co. v. N. L. R. B., 4 Cir., 127 F.2d 109; N. L. R. B. v. Draper Corp., 4 Cir., 145 F.2d 199. We conclude that Nardi and Fulk, by their own voluntary conduct in interfering with production in breach of their contract with the plaintiff, placed themselves in the category of non-employees as a result of which the company was under no further duty to consider them as employees or to reinstate them after the plant reopened. The other three former employees who were not reinstated were Ira Fulk, Tincher and Parenti, constituting part of the members of the shop committee. The first, Ira Fulk, had been an elevator operator. The only finding possible from the evidence is that he was competent to fill only the simplest of jobs, such as polishing and buffing the “heads” of the devices made. The more complicated parts of the manufacture were reserved for more skilled employees. He did enjoy relatively high earnings, and from this the Board argues that he must have been a valuable man. But the record is conclusive that he was able to earn such high wages because the rate structure at the plant permitted a man on simple operations to turn out a large volume and thus earn more than a man working on slower, more skilled work. The policy may not have been the wisest, but it explains fully the cause of Fulk’s earnings in his comparatively simple work. When the plant reopened there was none of this labor for him to do. An excess inventory of finished “heads” was already in existence and there was no place for him in the more complicated work then in progress in which he had had no experience. The company had changed its models and needed men who were skilled and could do chrome work which Fulk had never done. In this situation, in view of the fact that the work which he formerly had done was no longer required, there was no violation of the Act in failing to reinstate him. Balls-ton-Stillwater Knitting Co. v. N. L. R. B., 2 Cir., 98 F.2d 758, 763. Tincher, during all of his employment by respondent, was a hand filer, whose duty it was to clean excessive metal from new castings. After the plant reopened, hand filing was practically eliminated, in order to reduce expense, in line with the retrenchment program. There had been some four such filers, but, after reopening, only two were required. Each of the two men recalled exceeded Tincher in seniority. The Board seemed to think that Tincher was able to do most anything, but the record is that he never did anything for this company except filing. Parenti worked on the tumbling tubs burnishing aluminum castings. He had had no experience in handling “irridit-ing” and plating work, with which this process was combined when the plant reopened. Tumbling is a mechanical function; the parts to be burnished are placed in a container apparatus and “swished” about to smooth the rough spots. Plating and irriditing are electrolytic processes which require considerable education and chemical knowledge. Parenti was not a chemist and had had no chemical training. He had done no plating work and had no experience in irriditing. Consequently when the plant reopened, the need for tumbling and burnishing being very small, this kind of work was never resumed on a full-time basis and such tumbling as was necessary was handled by a man who could handle all three operations. We think it inescapable, from our examination of the record, that these three cases embraced only situations where jobs had been abolished or combined with other jobs so as to cut costs, amounting to economic action with which the Board may not interfere. Thus, in Martel Mills Corp. v. N. L. R. B., 9 Cir., 114 F.2d 624, 633, the court said: “Where economic considerations necessitate a contraction in the employer’s labor force, the employer, in deciding which employees are to be retained, must be free to choose from the more capable and the more worthy. * * * Cf. Jefferson Electric Co. v. N. L. R. B., 7 Cir., 102 F.2d 949, 957”. See also N. L. R. B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 493; N. L. R. B. v. Boss Mfg. Co., 7 Cir., 107 F.2d 574, 579. We think no conclusion is justifiable except that economic reasons alone constituted the grounds for failure to reinstate these three men. It would appear that rather than justifying an inference that these employees were not reinstated because of the company’s so-called antipathy for the union, the evidence warrants only the contrary inference that the company had no prejudice against the union. Thus the ex-president of the union was offered reinstatement and declined; Obermeyer, a member of the same committee as Fulk and Parenti, was offered reemployment, that is to say, the company tried to locate him to offer reemployment. The Board could find no evidence to justify an order to reinstate him. In other words, the conduct of the company, in taking back union men, in offering employment to the former president of the union and in attempting to procure reinstatement of Obermeyer, another member of the shop committee, disclosed no antipathy but only friendliness with the union and its members. The five exceptions involved in this case were all, upon careful examination of the evidence, justified refusals to reinstate, not because the company had antipathy toward the union or discriminated against them as members of the union but merely because conditions in the plant were such as not to justify their reemployment or, as in the case of the first two mentioned, because they had violated their contract. As we said in N. L. R. B. v. Reynolds International Pen Co., 7 Cir., 162 F.2d 680, the burden was upon the Board to prove affirmatively and by substantial evidence that the failure to reemploy was because of union membership and activities and for the purpose of discouraging membership in the union. We adhere to that doctrine and find no basis in the record for the finding or the inferences of the examiner and the order based on them. N. L. R. B. v. MacSmith Garment Co., 5 Cir., 203 F.2d 868. We conclude, therefore, that there is nothing in this record to sustain a finding or an inference that the company had any antipathy for the union. Rather the evidence discloses only one possible fact in this connection, namely, that the relationship between the union and the company was at all times friendly and amicable. There is no proof that the company failed to negotiate. Indeed, such conduct was not even charged. The men were discharged not because of their affiliations with the union but because of other good and valid reasons. Consequently the petition for enforcement must be and is hereby denied.

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

BALKWILL v. COMMISSIONER OF INTERNAL REVENUE. Nos. 6767, 6672-75. Circuit Court of Appeals, Sixth Circuit. May 7, 1935. W. W. Spalding, of Washington, D. C., and W. H. Annat, of Cleveland, Ohio (Camden R. McAtee, of Washington, D. C., and William G. Gibbons, of Cleveland, Ohio, on the brief), for petitioner. Helen R. Carloss, of Washington, D. C. (Frank J. Wideman, Sewall Key, and J, P.. Jackson, all of Washington, D. C., on the brief), for respondent. Before MOORMAN, HICKS, and ALLEN, Circuit Judges. ALLEN, Circuit Judge. These are petitions to review orders of the Board of Tax Appeals sustaining determinations of the Commissioner hoM- ig the petitioner liable for deficiencies in income tax for the years 1922 to 1929, inclusive. The cases involve precisely the same legal question. The proceedings were consolidated before the Board, excepting No. 6767, which was heard after the decision in the other cases. 25 B. T. A. 1147. The single question presented is whether the Commissioner properly taxed to the petitioner individually his distributive share of income from a partnership. The cases arise out of the following facts: On December 29, 1919, the petitioner and George C. Lucas formed a partnership under the firm name of the Cleveland Frog & Crossing Company, in which the petitioner owned a forty-four per cent, interest. The partnership functioned during the entire period in controversy here. A trust agreement was entered into between the petitioner and his brother and sisters on December 29, 1921, in which the parties conveyed to the petitioner as trustee .their respective interests in certain properties. As a part of the agreement, the petitioner declared that thereafter he would hold in trust for the equal benefit of the parties his interest in the Cleveland Frog & Crossing Company. For each of the years from 1922 to 1929, inclusive, the Cleveland Frog & Crossing Company filed a return of income, apportioning its net income between Lucas and the petitioner as partners, according to their respective interests. For each of these years, the petitioner as trustee filed a fiduciary return of income, and also an individual return, reporting as income in his fiduciary returns the amount of his distributive share of profits from the partnership. The Commissioner eliminated these amounts from income reported as accruing to the trust, and added the adjusted amounts to the petitioner’s individual income. The statutes involved are Revenue Act of 1921, c. 136, 42 Stat. 227, 245, 246, 250, §§ 218 (a), (c), 219 and 224, and corresponding provisions of the Revenue Acts of 1924, 1926 and 1928 (Revenue Acts 1924 and 1926, §§ 218, 219, 224, 26 USCA §§ 959-, 960 note, 965; Revenue Act 1928, §§ 161 et seq., 181 et seq., 26 USCA §§ 2161 et seq. 2181 et seq.). The petitioner contends that the orders fail to give effect to section 219, which imposes the tax upon “the income of estates or of any kind of property held in trust,” urging that as his share of the income of the partnership is distributable under the trust agreement to the cestuis que trustent, it is taxable under that section only. This contention is untenable, for the reason that the partnership income was not received from property held in trust. The petitioner acknowledged that he would hold in trust his interest in the partnership and in the real and personal property owned by it, “subject, however, to all the terms and conditions of his partnership agreement” with Lucas. He did not transfer his interest in the partnership real estate by deed. The parties to the trust agreement contemplated that the assets should remain in the partnership, and that the rights of the beneficiaries under the trust were to be those of assignees, thus bringing the case squarely within the doctrine of Burnet, Commissioner, v. Leininger, 285 U. S. 136, 52 S. Ct. 345, 347, 76 L. Ed. 665, which held that “There was no transfer of the corpus of the partnership property to a new firm with a consequent readjustment of rights in that property and management.” The petitioner, during the years in question, remained a member of the partnership. His declaration of trust did not divest him of his rights pertaining to such membership, including his proprietary right to share in the profits. The trust was not substituted as a member of the partnership, either by contract [Cf. Kasch v. Commissioner, 63 F.(2d) 466 (C. C. A. 5)], or by acquiescence with full knowledge of the facts, such as was shown in Rose v. Commissioner, 65 F.(2d) 616 (C. C. A. 6). Lucas had no knowledge of the existence of the trust. Income tax returns made by the firm revealed the petitioner and Lucas as partners. The assignment of the petitioner’s interest in the partnership was not mentioned on the firm books. No checks from the firm were drawn payable to the petitioner as trustee. An assignee of a partnership interest receives his income not from the firm, but from the assigning partner. Burnet, Commissioner, v. Leininger, supra; Luce v. Burnet, Commissioner, 60 App. D. C. 393, 55 F.(2d) 751; Battleson v. Commissioner, 62 F.(2d) 125 (C. C. A. 9); Mitchel v. Bowers, Collector, 15 F.(2d) 287 (C. C. A. 2); Lucas, Commissioner, v. Earl, 281 U. S. 111, 50 S. Ct. 241, 74 L. Ed. 731. In one sense, the income paid the petitioner by the partnership did not inure to him personally. However, the person who receives income is not relieved from the tax because he chooses not to enjoy it; and this is not necessarily changed by the fact that he is deprived of the income by a legal obligation. Cf. Van Meter v. Commissioner, 61 F.(2d) 817, 819 (C. C. A. 8). Section 218 (a) levies income tax upon individuals carrying on business in partnership, in accordance with their distributive shares of the net income of the partnership{ The petitioner, during all this period, carried on business in partnership. The Commissioner properly applied this section in the computation of the tax. The adjustments made by the Commissioner in determining these deficiencies eliminate the question of double taxation. The orders of the Board of Tax Appeals are affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

Dorothy C. PARKER v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. No. 76-1416. United States Court of Appeals, District of Columbia Circuit. Argued March 25, 1977. Decided June 30, 1977. Paul Blankenstein, Atty., Dept. of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellant. Linda R. Singer, Washington, D. C., for appellee. John L. Burke, Jr. and Roderic V. O. Boggs, Washington, D. C., filed a brief on behalf of Washington Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging affirmance. Before BAZELON, Chief Judge, and WRIGHT and ROBB, Circuit Judges. J. SKELLY WRIGHT, Circuit Judge: This appeal is from the District Court’s judgment requiring appellant to pay attorneys’ fees incurred by appellee. The only issue presented is whether in a suit brought by a federal employee under Title VII of the Civil Rights Act of 1964 — in which the employee is the “prevailing party” — a federal District Court has discretion to award attorneys’ fees that include compensation for legal services performed in connection with related administrative proceedings. Our review of the statutory language, legislative history, case law, and relevant policy concerns convinces us that a District Court does have such discretion and that the judgment below should be affirmed. I. THE FACTS On February 15, 1973 appellee Dorothy Parker filed an administrative complaint with the Office of Education (OE) of the Department of Health, Education and Welfare (HEW). Parker, an employee of OE, alleged that she had been discriminated against on racial and sexual grounds and sought immediate promotion from her position as a GS-9 to a GS-14 with appropriate back pay. Shortly after the complaint was filed, OE’s Equal Employment Office began an investigation of the discrimination charges. An investigative report was filed on September 7, 1973. It concluded that appellee had been discriminated against and recommended that she be promoted to GS-13. Apparently no further action was taken until the spring of 1974 when HEW promoted appellee to GS-11, with assurances that she would soon be promoted to GS-13 as the original investigative report had recommended. In the spring of 1975, however, HEW issued its final determination stating that it would disregard the investigative report and take no further remedial action on appellee’s discrimination claim. Consequently, appellee — still a GS-11— filed the instant suit on May 21, 1975. Appellant filed his answer on July 22, 1975 and denied all allegations in the complaint. Despite these denials, less than two months later — on September 18, 1975 — HEW issued a formal decision to the effect that appellee had been discriminated against and should be retroactively promoted to GS-13 with appropriate back pay. On November 14, 1975 the District Court entered an order approving this settlement of the suit but reserving the question of attorneys’ fees. After considering the parties’ submissions on the question, the District Court on April 1, 1976 awarded attorneys’ fees of $8,770.36. The award included compensation for time spent on the case at both “administrative and judicial levels.” Parker v. Matthews [sic], 411 F.Supp. 1059, 1066 (D.D.C.1976). This appeal followed. II. THE STATUTORY FRAMEWORK Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. Sections 703, 704 of Title VII, 42 U.S.C. §§ 2000e-2,2000e-3 (1970 & Supp. V 1975). Originally, however, this statutory prohibition was inapplicable to federal employees. Section 701, 42 U.S.C. § 2000e(b). See Brown v. GSA, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964, 48 L.Ed.2d 402 (1976). Thus, “[ajlthough federal employment discrimination clearly violated both the Constitution, Bolling v. Sharpe, 347 U.S. 497 [74 S.Ct. 693, 98 L.Ed. 884] (1954), and statutory law, 5 U.S.C. § 7151,” specific implementing legislation was lacking and “the effective availability of either administrative or judicial relief was far from sure.” Id. In fact, federal employees faced numerous and difficult obstacles in attempting to enforce their right of freedom from employment discrimination. Hackley v. Roudebush, 171 U.S.App.D.C. 376, 520 F.2d 108, 115, 128-129, 132, 133-136 & n.67 (1975). This anomaly was eliminated in 1972 by the addition of Section 717 to Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-16 (Supp. V 1975). Hackley v. Roudebush, supra, 529 F.2d at 115-116. Subsection 717(a) of Title VII, 42 U.S.C. § 2000e-16(a) (Supp. V 1975), provides that “[a]ll personnel actions affecting employees or applicants for employment * * * in executive agencies [of the United States] * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin.” To effectuate this provision subsections 717(b) and (c), 42 U.S.C. § 2000e-16(b), (c) (Supp. V 1975), establish complementary administrative and judicial enforcement provisions. Subsection (b) authorizes the Civil Service Commission to enforce the provisions of subsection (a) “through appropriate remedies, including reinstatement or hiring of employees with or without back pay,” to issue “rules, regulations, orders and instructions as it deems necessary and appropriate” to carry out its responsibilities under the Act, and to review equal employment opportunity plans that are annually submitted to it by each agency and department. Subsection 717(c) permits an aggrieved employee or applicant for employment to file a civil action in a federal District Court to review her claim of employment discrimination. Before filing in District Court, however, the employee must meet certain administrative prerequisites. Initially, the complainant must seek relief in the agency that has allegedly discriminated against her. If not satisfied with relief obtained from the agency, the complainant may seek further administrative review with the Civil Service Commission. Alternatively, the complainant, within 30 days of receipt of notice of the agency’s final decision,.may file suit in federal District Court without appealing to the Civil Service Commission. If she does appeal to the Commission, she may file suit within 30 days of the Commission’s final decision. “In any event, the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency or Civil Service Commission has not taken final action.” Brown v. GSA, supra, 425 U.S. at 832, 96 S.Ct. at 1968. In Brown the Supreme Court held that Section 717 provides the “exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” Id. at 829, 96 S.Ct. at 1966. Consequently, failure to comply with the administrative pre-condi-tions of Section 717, as in Brown, precludes the complainant from even getting into court. Subsection 717(d) of Title VII, 42 U.S.C. § 2000e-16(d) (Supp. V 1975), plays a key part in this appeal. It states: “The provisions of section 706(f) through (k) [42 U.S.C. §§ 2000e-5(f) through 2000e-5(k) (1970 & Supp. V 1975)], as applicable, shall govern civil actions brought hereunder.” The subsections thus incorporated, which until Title VII was amended in 1972 applied only to private sector employees, govern such issues as venue, scope of relief, and — of foremost significance for our purposes — attorneys’ fees. Specifically, Section 706(k), 42 U.S.C. § 2000e-5(k) (1970), provides: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. The effect of Section 717(d) coupled with Section 706(k) is, therefore, to allow a federal court, in its discretion, to award reasonable attorneys’ fees to a federal employee or applicant who is the prevailing party in “any action or proceeding” under Title VII. Despite the apparent straightforwardness of the attorney fee provision, however, the parties to this appeal are sharply divided as to its proper interpretation and, in particular, as to the breadth to be accorded the single phrase “any action or proceeding.” Appellant and appellee agree that this language permits courts to award attorneys’ fees to a prevailing party for at least the work performed by her attorney in connection with any lawsuit a complainant may file under Title VII. They disagree, however, as to whether in such a suit the relevant language permits a court to award attorneys’ fees for work performed in connection with the administrative proceedings — proceedings that, as explained above, are a statutory prerequisite to filing a lawsuit alleging employment discrimination by the federal government. Our analysis leads us to reject the limitation suggested by appellant and to conclude that in a Title VII suit, brought by a federal employee, attorneys’ fees awarded under Section 706(k) may include compensation for work done at both judicial and administrative levels. In so holding our decision is consistent with the majority of cases in which the question has been considered. III. THE STATUTORY LANGUAGE We begin our analysis with the language of the statute itself. Consideration of the operative language demonstrates clearly that appellant’s narrow' interpretation requires a strained and unnatural construction. Section 706(k) grants federal District Courts discretion to award reasonable attorneys’ fees and costs to the prevailing party “[i]n any action or proceeding under this subchapter [/. e., Title VII] * * *.” Both prepositional phrases — “in any action or proceeding” and “under this subchapter” —suggest that Congress did not intend to limit awards of fees and costs to services performed after filing of the judicial complaint, since this subchapter requires an agency proceeding before court action. Appellant nevertheless contends that the reference to “action or proceeding” is a reference simply to a civil action brought in federal court. Ignoring the disjunctive link between the two words and the familiar principle that statutory language should be construed so as to avoid redundancy, appellant argues that, in Section 706(k) as incorporated by Section 717(d), 42 U.S.C. § 2000e-16(d), “action” and “proceeding” each refer to a suit in federal court. However, as one court has held in considering the same question, “Had Congress wished to restrict an award of an attorney’s fee to only suits filed in court, there would have been no need to add the words ‘or proceeding’ to ‘any action.’ But ‘proceeding’ is a broader term than ‘action’ and would include an administrative as well as judicial proceeding,” Johnson v. United States, D.Md, Civil Action No. H-74-1343 (June 8, 1976), slip op. at 7, aff’d, 554 F.2d 632 (4th Cir. 1977). In an effort to bolster his argument that neither “action” nor “proceeding” refers to administrative proceedings, appellant cites selectively to other provisions in Title VII where the word “proceeding(s)” is used. In particular, appellant asserts that “proceeding” in Section 706(k) refers to enforcement proceedings which Section 706(i), 42 U.S.C. § 2000e-5(i) (Supp. V 1975), authorizes the Equal Employment Opportunity Commission (EEOC) to institute in District Court. That subsection provides that “[i]n any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section [Section 706, 42 U.S.C. § 2000e-5], the [EEOC] may commence proceedings to compel compliance with such order.” Also, appellant notes that the District Court suit authorized by this subsection is characterized as a “proceeding” by Section 706(j), 42 U.S.C. § 2000e-5(j) (Supp. V 1975). Appellant’s argument, however, is wide of the mark. Neither appellee nor this court assumes that the term “proceeding(s)” as used in Title VII can never refer to a court suit. Quite the contrary, echoing Johnson v. United States, supra, we believe that “proceeding” is broad enough to be properly construed to refer to either judicial or administrative proceedings. This view is borne out by other uses of the term in the Section 706, 42 U.S.C. § 2000e-5, enforcement structure where it is clear beyond any doubt that Congress was referring to administrative proceedings. Section 706(b), 42 U.S.C. § 2000e-5(b) (Supp. V 1975), discusses “findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section.” (Emphasis added.) Section 706(c), 42 U.S.C. § 2000e-5(c) (Supp. V 1975), which requires that in private sector charges of employment discrimination EEOC defer, for at least a 60-day period, to the operation of applicable state or local law, refers repeatedly to “proceedings”: If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced * * * at the time such statement is sent by registered mail to the appropriate State or local authority. (Emphasis added.) See also Section 706(e), 42 U.S.C. § 2000e-5(e) (Supp. V 1975). Since the required deferral is only for 60 days, Congress hardly could be presumed to have intended to defer only to state or local judicial proceedings. Rather, it was clearly administrative proceedings to which Congress referred, see Love v. Pullman, 404 U.S. 522, 524-526, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), and, in fact, many states have by now established, as Congress envisioned, administrative proceedings to handle claims of employment discrimination. Even appellant does not deny that, in these provisions, Congress was referring to administrative proceedings. Furthermore, we find particularly instructive a comparison of the language of the attorney fee provision of Title VII, Section 706(k), 42 U.S.C. § 2000e-5(k), with that of the attorney fee provision of Title II, Section 204(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b) (1970). The provisions were enacted contemporaneously in 1964 as part of the Act. The language of the two subsections is identical except that, where Section 706(k) refers to “any action or proceeding under this subchapter,” Section 204(b) refers simply to “any action commenced pursuant to this subchapter.” (Emphasis added.) This material difference is understandable only in light of the fact that the enforcement scheme of Title II is solely judicial, see Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), while the enforcement scheme of Title VII is both administrative and judicial. Cf. Lea v. Cone Mills Corp., 438 F.2d 86, 90-91 (4th Cir. 1971) (Boreman, J., concurring in part and dissenting in part). The inclusion in Section 706(k) of the reference to “proceeding” —in addition to “action” — appears to be a clear manifestation of Congress’ intent that the attorney fee provision should apply to both aspects of the Title VII enforcement scheme. Admittedly, Titles II and VII differ in that “[w]hen a plaintiff brings an action under [Title II], he cannot recover damages,” Newman v. Piggie Park Enterprises, supra, 390 U.S. at 402, 88 S.Ct. at 966, while a plaintiff can, inter alia, recover damages under Title VII. But the Piggie Park rationale has been found applicable to Title VII cases as well. See, e. g., Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177, 189 (1974); Lea v. Cone Mills Corp., supra, 438 F.2d at 88; Nussbaum, Attorney’s Fees in Public Interest Litigation, 48 N.Y.U.L.Rev. 301, 321-322 (1973) (collecting cases). Moreover, the purposes of the counsel fee provision in the two Titles are, in important respects, parallel. In short, we decline to join appellant in straining to construe the word “proceeding” in as narrow and technical sense as possible so as to make it superfluous and the phrase “action or proceeding” a redundancy. This was also the conclusion reached in McMullen v. Warner, 416 F.Supp. 1163 (D. D.C.1976), a Title VII federal employment discrimination case, where Judge Sirica awarded attorneys’ fees to an employee of the United States Navy “for the administrative portion of this case as well as for the judicial portion.” Judge Sirica stated: The government argues that the phrase “any action or proceeding” does not include administrative proceedings. But the words themselves certainly do not suggest that Congress intended such a distinction. Nor, in this Court’s view, does the section’s purpose. That purpose, so far as injured plaintiffs are concerned, is to remove from them the burden of having to pay the costs of attorneys, and thus to remove a deterrent to seeking legal redress. Cf. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971). See Newman v. Piggie Park Enterprises, 390 U.S. 400, [88 S.Ct. 964, 19 L.Ed.2d 1263] (1968). 416 F.Supp. at 1167. That “any action or proceeding” should be construed in its broader rather than in its narrower sense is made even more obvious by the fact that that phrase is followed by the phrase “under this subchapter [i. e., Title VII].” To interpret the language “any action or proceeding under [Title VII]” as excluding the administrative proceedings that constitute such a central part of Title VII is to ignore not only the statutory language itself but also the authoritative judicial construction that it has received. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974), the Supreme Court plainly stated: [Legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. In the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., Congress indicated that it considered the policy against discrimination to be of the “highest priority.” Newman v. Piggie Park Enterprises, supra, 390 U.S. at 402 [88 S.Ct. [964] at 966]. Consistent with this view, Title VII provides for consideration of employment-discrimination claims in several forums. See 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. II) (EEOC); 42 U.S.C. § 2000e-5(c) (1970 ed., Supp. II) (state and local agencies); 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. II) (federal courts). * * * (Footnote omitted.) The 1972 amendments to the Act, extending its applicability to federal employees, were no less clear as to the interrelatedness of administrative and judicial proceedings. This was stressed in numerous statements by the Supreme Court in its recent opinion in Brown v. GSA, supra, which described the nature of the enforcement scheme of which the attorney fee provision is a part. The Court stated: Section 717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 86 Stat. Ill, 42 U.S.C. § 2000e-16 (1970 ed., Supp. IV), proscribes federal employment discrimination and establishes an administrative and judicial enforcement system. * * * ****** Section 717(b) and (c) establish complementary administrative and judicial enforcement mechanisms designed to eradicate federal employment discrimination. * * * ****** Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. Attached to that right, however, are certain [administrative] preconditions. * * * ****** The balance, completeness, and structural integrity of § 717 are inconsistent with the petitioner’s contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief. His view fails, in our estimation, to accord due weight to the fact that unlike these other supposed remedies, § 717 does not contemplate merely judicial relief. Rather, it provides for a careful blend of administrative and judicial enforcement powers. * * * 425 U.S. at 829-833, 96 S.Ct. at 1966 (emphasis added; footnotes omitted). See also Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323, 1329 (1975); Hackley v. Roude-bush, supra, 520 F.2d at 156-159. The expansive reference to “any action or proceeding under [Title VII]” was plainly intended to refer to this blend of administrative and judicial powers and not simply to one segment of it. The instant case, in fact, is representative of the operation of the integrated enforcement scheme created by Congress. Because of the structure of Title VII enforcement procedures, the administrative and judicial proceedings in this case, as in Johnson v. United States, supra, “were part and parcel of the same litigation for which an attorney’s fee is now sought.” 554 F.2d at 633. In Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), the Supreme Court rejected the Government’s argument that federal employees do not have a right to trial de novo subsequent to Title VII administrative proceedings. The Court noted: “ ‘[T]he plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.’ ” * * * 425 U.S. at 848, 96 S.Ct. at 1953, quoting Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 69 L.Ed. 660 (1925). Mindful of the Court’s admonition, we reject the Government’s attempt to strain the statutory language so as to curtail a prevailing federal employee’s Title VII right to an award of attorneys’ fees just as the Supreme Court in Chandler rejected the Government’s analogous attempt to curtail a federal employee’s Title VII right to a trial de novo. IV. THE PURPOSES OF TITLE VII We find, therefore, that both the plain language of the statute itself and the case law in which that language has been applied support the District Court’s decision. In addition, we are compelled to note that adoption of the position urged by appellant would seriously impinge on effective implementation of Title VII’s established purposes. In Newman v. Piggie Park Enterprises, supra, the Supreme Court construed Title II’s attorney fee provision which, as already discussed, is slightly narrower but otherwise identical to that of Title VII. In ruling that the congressional policy of encouraging private enforcement of civil rights legislation required a construction favoring wide availability of attorneys’ fees, the Court stated: When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. * * * 390 U.S. at 401, 88 S.Ct. at 966 (footnote omitted). Relatedly, the Court also noted that “Congress * * * enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.” Id. at 402, 88 S.Ct. at 966. Similarly, the attorney fee provision of Title VII has the broad purpose of abetting enforcement of that Title by encouraging individuals injured by racial discrimination to seek the relief made available thereunder — relief for which administrative proceedings are essential. Specifically, Piggie Park held that, notwithstanding the statutory language that the District Court, “in its discretion,” may allow the prevailing party fees and costs, the purpose of encouraging private enforcement dictated that “one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” 390 U.S. at 402, 88 S.Ct. at 966. Piggie Park was explicitly cited with approval in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the leading decision as to when attorneys’ fees may be awarded. Courts construing the fees and costs provisions of Title VII have adopted the Piggie Park rationale that statutes authorizing award of attorneys’ fees as part of private enforcement schemes in the Civil Rights Act should be broadly interpreted. In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716 (5th Cir. 1974), the court said with respect to Section 706(k): “This Court, as part of its obligation ‘to make sure that Title VII works,’ has liberally applied the attorney’s fee provision of Title VII, recognizing the importance of private enforcement of civil rights legislation.” (Footnote omitted.) This court adopted the liberal construction of Section 706(k), as enunciated in Johnson, in Evans v. Sheraton Park Hotel, supra, 503 F.2d at 187-189. Furthermore, failure to award attorneys’ fees to a prevailing party in a Title VII action has been held an abuse of the District Court’s discretion. Lea v. Cone Mills Corp., supra, 438 F.2d at 88. The policy favoring private enforcement of Title VII is arguably even more compelling when a federal agency or official is the defendant. Unlike private sector employees, federal employee complainants are not merely private attorneys general; they are the only attorneys general under the enforcement scheme adopted in Section 717, 42 U.S.C. § 2000e-16 (Supp. V 1975). Suits in behalf of federal employees by the Attorney General or EEOC are not authorized against federal agencies. Indeed, the Attorney General is frequently counsel for the other side. Also unlike private sector employees, federal employees must first bring their employment discrimination grievances, not to an independent state or local administrative body or to EEOC, but to the very agency about whose practices they are complaining. Id. Partly for these reasons, no doubt, courts consistently have awarded attorneys’ fees to prevailing plaintiffs in employment discrimination cases in which a federal agency is the defendant. E. g., McMullen v. Warner, supra; Johnson v. United States, supra; Smith v. Kleindienst, 8 F.E.P. 752 (D.D.C.), aff’d, sub nom. Smith v. Levi, 174 U.S.App.D.C. 70, 527 F.2d 853 (1975) (decision without opinion); Reynolds v. Wise, 375 F.Supp. 145 (N.D. Tex.1974). Appellant insists, however, that in awarding attorneys’ fees a distinction should be made between administrative and judicial enforcement of Title VII. Appellant’s entire argument clashes sharply with the clearly perceived structure and aims of the Title. From the passage of the Civil Rights Act of 1964, the Title VII enforcement scheme has included both administrative proceedings and judicial actions. In a passage already quoted from Alexander v. Gardner-Denver Co., supra, 415 U.S. at 47, 94 S.Ct. 1011, the Supreme Court emphasized the interrelatedness of Title VIPs administrative and judicial enforcement scheme in the private sector. And in numerous passages quoted from Brown v. GSA, supra, the Court stressed that Title VIPs administrative and judicial enforcement scheme for federal employees was at least as interrelated. Essentially, appellant’s position on whether attorneys’ fees for representation at the administrative level are necessary to effectuate Title VII policy is an internally inconsistent attempt to have it both ways. On the one hand, appellant argues that payment of attorneys’ fees relates only to a fringe benefit, not to a substantive or procedural defect of the administrative fact-finding process that would prevent equitable resolution of an employee grievance. Moreover, appellant asserts, administrative proceedings in a federal sector Title VII case are non-adversarial. On the other hand, appellant also contends that while the governing regulations give an employee the right to be accompanied, represented, and counseled by a representative of his own choosing at every stage of the proceedings, see 5 C.F.R. § 713.214(b) (1977), paid counsel is unnecessary at this time since employees often have available the services of an attorney without charge. Appellant thus seems uncertain whether he wants to argue that for services at the administrative level (1) attorneys’ fees are unnecessary because attorneys are unnecessary, or (2) attorneys’ fees are unnecessary because, although attorneys are necessary, compensation is not. In any event, we can accept neither argument. To support his contention that an employee in federal sector Title VII administrative proceedings does not need a lawyer, appellant cites the Discrimination Complaints Examiners Handbook (1973), published by the Office of Federal Equal Employment Opportunity. In fact, however, the contents of the Handbook could more accurately be cited for just the opposite proposition. The Handbook offers the self-description that it “sets forth the basic ground rules which will enable the Examiner to conduct a fair and impartial hearing and render a just decision in discrimination complaint cases.” Id., Foreword. In outlining the nature of such a hearing the Handbook sketches a process in which, though not indispensable, lawyers would clearly be of assistance to a lay person. For example, the Handbook makes provision for continuances and describes the grounds for granting or denying them (id. at 20-21), provides for receipt of stipulations (id. at 38), speaks to “relevancy,” “materiality,” and “repetitiousness” as matters of concern when ruling on admissibility (id. at 47-48), and entitles the parties to participate in drafting written interrogatories (id. at 29). The Handbook, and federal regulations, make clear that in a Title VII administrative hearing the employee is expected to put evidence into the record, offer proof, argue against exclusion of evidence, agree on stipulations, and examine and cross-examine witnesses. See 5 C.F.R. Part 713 (1977). Settlement of the charge is possible at any stage of the proceedings and agreements may, accordingly, have to be negotiated and rights may be waived. Furthermore, the agency’s representative is likely to be a lawyer, which can only serve to exacerbate a non-lawyer plaintiff’s disadvantage. Any realistic assessment of Title VII administrative proceedings requires the conclusion that — despite the fact they are not strictly adversarial — an employee would often be ill-advised to embark thereon without legal assistance. Indeed, the services a lawyer may be called upon to perform at the administrative level are well illustrated by the instant litigation. Appel-lee’s counsel has attested that in the course of the administrative proceedings she drafted two administrative complaints and a lengthy affidavit, compiled exhibits, interviewed witnesses, responded to inquiries from the agency investigator, conducted legal research at the request of the agency equal employment opportunity officer, and negotiated a settlement of all charges. Affidavit of Linda P. Singer, JA 20-21. Turning to appellant’s contention that free legal services are available to federal employees in Title VII administrative complaints we note initially that the factual accuracy of the point is disputed. Appellee has submitted an affidavit by the Program Director of the District of Columbia Bar Association Employment Discrimination Complaint Service which asserts that there is a shortage of both private and government attorneys who are “able to provide the time-consuming representation that is necessary for these government EEO cases, within the financial means of the complainants.” Appellee’s br., Attachment A, H 11. We do not propose to resolve on appeal this factual dispute. We do observe, however, that appellant,' in arguing that free legal services are available, relies in part on the availability of attorneys from the employee’s own agency. Appellant’s br. at 28. Without questioning in any way the competence or integrity of such attorneys, we find this an unsatisfactory alternative to allowing a plaintiff to choose his own counsel from outside his particular agency. A plaintiff who is asked to rely on an attorney from within the very agency about whose practices he is complaining may lack faith in the objectivity of the proceeding. We fear that the absence of independent counsel could only compound the conflict of interest that might be perceived to exist when the agency accused of discrimination must process and rule on the claim. In addition to being inconsistent with the recognized policies of Title VII, the distinction between attorneys’ fees for services at the administrative and judicial levels is inconsistent with' the realities of legal practice. For a conscientious lawyer representing a federal employee in a Title VII claim, work done at the administrative level is an integral part of the work necessary at the judicial level. Most obviously an attorney can investigate the facts of his case at a time when investigation will be most productive. The attorney may thus gain the familiarity with the facts of the case that is so important in the fact-intensive area of employment discrimination. Perhaps even more important, the administrative proceedings allow the attorney to help make a record that can be introduced at any subsequent District Court trial. Especially in an instance where development of a thorough administrative record results in an abbreviated but successful trial, refusing to award attorneys’ fees for work at the administrative level would penalize the lawyer for his pre-trial effectiveness and his resultant conservation of judicial time. Simply to describe the operation of appellant’s suggested distinction between attorneys’ fees at the administrative and judicial levels is to emphasize its irrationality. VI. CONCLUSION We hold, in sum, that a federal District Court does have discretion, in a Title VII action where the federal employee is the prevailing

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

FRED W. AMEND CO., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 71-1248. United States Court of Appeals, Seventh Circuit. Dec. 23, 1971. Campbell, Senior District Judge, sat by designation. John Enrietto, Chicago, 111., for petitioner-appellant; Hamel, Morgan, Park & Saunders, Washington, D. C., of counsel. Johnnie M. Walters, Asst. Atty. Gen., Charles R. Burnett, Atty., Meyer Roth-wacks, Bennet N. Hollander, Attys., Tax Division, Department of Justice, Washington, D. C., for respondent-appellee. Before CASTLE, Senior Circuit Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge. Senior District Judge Campbell of the Northern District of Illinois is sitting by designation. CASTLE, Senior Circuit Judge. The petitioner-appellant, Fred W. Amend Co. (hereinafter referred to as taxpayer), prosecutes this appeal from a decision of the Tax Court which sustained the disallowance by the Commissioner of Internal Revenue, respondent-appellee, of deductions in the amounts of $5,500 and $6,200, respectively, claimed by the taxpayer on its income tax returns for its fiscal years ended October 31, 1964, and 1965. The disallowance resulted in. the assessment of income tax deficiencies for those years. The deductions represent payments made by the taxpayer corporation to R. M. Halver-stadt, a Christian Science practitioner, which taxpayer claimed as business expenses. The record discloses that no material factual disputes were presented for resolution by the Tax Court. The taxpayer’s principal contention on appeal is that the Tax Court applied incorrect legal criteria in reaching its conclusion that the payments involved did not qualify for deduction as business expenses under Section 162(a) of the Internal Revenue Code of 1954 (26 U.S.C.A. § 162(a)). The pertinent and material facts, as they appear from the stipulation of the parties and the testimony and documentary evidence adduced at the hearing of the matter, are set forth in detail in the Tax Court’s opinion. We summarize them as follows. Taxpayer, an Illinois corporation, manufactures and distributes jellied candies. It was organized by Fred W. Amend in 1921. He held the offices of president and treasurer until 1956 when his son-in-law became president. Amend remained as treasurer and became chairman of the board of directors. During the years in question Amend and his wife owned approximately 47½ per cent of the corporation’s common stock. Unrelated stockholders held but 29% of such stock. Although Amend had reached the age of 73 years he enjoyed very good health and remained active in a supervisory role with respect to the corporation’s business activities. Beginning in 1954, Amend had utilized the services of R. M. Halverstadt, a Christian Science practitioner, for consultations with respect to personal and business problems. Charges for consultations were ordinarily three dollars. The taxpayer reimbursed Amend for such consultations that related to business problems. In 1961 the taxpayer adopted a resolution authorizing Amend to arrange for the employment of a Christian Science practitioner by the company on such terms as Amend considered appropriate and in the best interests of the corporation, the practitioner to serve: “as a consultant for employees with respect to matters which so disturb them as to handicap them in performing their services for the company, and also as a consultant of the officers as to the best approach to corporate problems”. Amend thereupon retained Halverstadt for the taxpayer and fixed his compensation at $400 per month. Amend increased the compensation to $5,500 per year for 1964 and then later to $6,200. None of the taxpayer’s lower ranking employees were informed of the service available from Halverstadt. And, of the taxpayer’s executives, only Amend availed himself of the service. He would consult with Halverstadt either by letter, telephone, or personal meetings and define the problem. The letters were regarded as confidential, and at Amend’s request were immediately destroyed by Halverstadt after he read and digested them. During the tax years in question, the business problems Amend brought to Halverstadt’s attention related to personnel, office relationships, sales, production, new machinery, financing and labor relations. The practitioner offered no specific or concrete solutions. His procedure was to so interrogate Amend as to bring out the different elements involved, and thus to clarify Amend’s thinking. In addition, Hal-verstadt relied upon the power of prayer to bring enlightenment concerning the problems to Amend and the taxpayer. He testified to daily prayerful intercession on behalf of the taxpayer’s organization; that he prayed for a solution to the given problem through spiritual clarification — that Amend or the taxpayer’s organization be given the right idea. The taxpayer’s secretary and general counsel testified that, in his opinion, the consultations tended to produce in Amend a more detached and calm mind, judgments less affected by emotions, a better grasp of the subject matter and generally sound decisions, all of which resulted in benefit to the taxpayer. The Tax Court found that through the insight provided by Halverstadt’s interrogation Amend was enabled to approach problems with detachment and new understanding but that Halverstadt never offered concrete solutions to any of the matters discussed. Instead, that after exploring a problem via the questioning process, Halverstadt, through prayer sought to invoke the presence of the Divine Mind — the spiritual awareness needed for success in temporal activities according to Christian Science teachings. It is apparent that Halverstadt offered no business advice, as such. The Tax Court concluded that it was not Amend’s skills as a businessman which Halverstadt sought to enhance. Rather, what was sought was a state of harmony in which Amend’s business thinking would be brought into conformity with an ordered universe governed by the Christian Science concept of the Divine Mind. Accordingly, the court concluded that the benefits derived from Halver-stadt’s services were inherently personal to Amend, and thus by virtue of the proscription of Section 262 of the Internal Revenue Act of 1954 (26 U.S.C.A. § 262) not susceptible to qualification as “business expenses” under Section 162. Under Section 162 “ordinary and necessary” expenses paid or incurred in carrying on a trade or business are deductible in computing taxable income. But such deductions are a matter of legislative grace, and unless the claimed deduction comes clearly within the scope of the statute it is not to be allowed. Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416. The burden to make that showing rests upon the taxpayer. International Trading Co. v. C. I. R., 7 Cir., 275 F.2d 578, 584. The taxpayer urges, in substance, that because its business problems created the occasions for and were the origin of the services performed by Halverstadt in connection with Amend’s consultations with Halverstadt, this factor.serves to distinguish the expense here involved from a personal expense attributable to Amend and qualify it for deduction as an ordinary and necessary business expense of the corporation. But the taxpayer overlooks that “origin” alone is not the sole determinative factor. While it is a basic restriction upon the availability of a Section 162 deduction that the expense item involved must be one that has a busines origin, and must be one directly connected with or proximately resulting from a business activity of the taxpayer (Kornhauser v. United States, 276 U.S. 145, 153, 48 S.Ct. 219, 72 L.Ed. 505), the inquiry does not end there. It is of equal importance that the nature of the particular expense is such that places it beyond the thrust of the bar of Section 262. United States v. Gilmore, 372 U.S. 39, 45-46, 83 S.Ct. 623, 9 L.Ed.2d 570. And, with respect to this latter factor, we are of the opinion that the record herein amply supports the finding and conclusion of the Tax Court that the services performed by Halverstadt were by their nature inherently personal to Amend. We have considered the additional contentions made by the taxpayer but find them equally without merit. Taxpayer’s alternative argument that the expenditures are deductible as an addition to the regular compensation paid Amend is without support on the record. There is no evidence that the payments to Halverstadt were intended as compensation to Amend. And, apart from the question of whether the issue was properly raised below, taxpayer’s additional argument that the payments it made to Halverstadt qualify as a “medical expense” business deduction is unpersuasive. Amend testified that he enjoyed very good health and that all of the taxpayer’s personnel was covered by adequate medical and hospital insurance supplied by the taxpayer through an insurance carrier. The decision of the Tax Court is affirmed. Affirmed. . The Tax Court’s decision is officially; reported at 55 T.C. 320. . § 262 provides that in computing taxable income no deduction, except as otherwise expressly provided, shall be allowed for “personal, . . . expenses”. . The record discloses that Amend personally paid Halverstadt for those consultations during the tax years here involved which did not relate to a business problem of the corporation.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

SZABO FOOD SERVICE, INC., et al., Plaintiffs-Appellees, v. CANTEEN CORPORATION, Defendant-Appellant. No. 86-3093. United States Court of Appeals, Seventh Circuit. Argued April 21, 1987. Decided June 29, 1987. Rehearing and Rehearing En Banc Denied Aug. 25,1987. James A. Hardgrove, Sidley & Austin, Chicago, Ill., for defendant-appellant. Francis J. Higgins, Bell, Boyd & Lloyd, Chicago, Ill., for plaintiffs-appellees. Before CUDAHY, POSNER and EASTERBROOK, Circuit Judges. EASTERBROOK, Circuit Judge. Twice in recent months we have encountered cases in which district judges denied substantial motions for sanctions without giving reasons. Twice we have remanded for more complete consideration. Shrock v. Altru Nurses Registry, 810 F.2d 658 (7th Cir.1987); Dreis & Krump Manufacturing Co. v. Machinists & Aerospace Workers, 802 F.2d 247 (7th Cir.1986). We follow the same course today. See also Thomas v. Capital Security Services, Inc., 812 F.2d 984, 989 (5th Cir.1987); Jackman v. WMAC Investment Corp., 809 F.2d 377, 384 (7th Cir.1987); Lieb v. Topstone Industries, Inc., 788 F.2d 151, 157-58 (3d Cir.1986). I The substantive dispute concerns a contract to supply food at the Cook County Jail. Szabo Food Service, Inc., a caterer with more than $200 million in annual sales, held the contract between 1978 and November 1986. The next term was put up for bids. Cook County has an ordinance calling for 30% of all contract work to be awarded to firms owned by members of certain minority groups and women. Rather than take a chance on being in the 70%, Szabo formed a joint venture with Catfish Digby’s, Inc., a successful restaurant chain owned by black entrepreneurs. The principal competing bid came from Canteen Corp., another substantial caterer. Canteen bid on its own behalf, although it claimed that it would subcontract some work, including the recruiting of employees, to minority firms. Canteen!s bid was lower by more than $1 million, although the Szabo-Digby joint venture excelled on other specifications, such as plans for dealing with riots. An evaluation committee rated the Szabo-Digby bid superior, but on October 6, 1986, the County Board awarded the contract to Canteen. On Tuesday, October 14, the joint venture and its venturers (collectively Szabo-Digby) filed a 30-page complaint in the district court against Canteen, the Board, all of the Board’s members, Cook County, and the County’s purchasing agent. The complaint asserted that Szabo-Digby was the victim of racial discrimination, that the procedures used to award the contract to Canteen violated the due process clause of the fourteenth amendment, and that the Board had violated state law; the complaint invoked the district court’s pendent jurisdiction to support the latter claims. Szabo-Digby obtained a hearing at 4:00; at the hearing it moved for a temporary restraining order. The district judge denied the motion on the ground that any injury appeared to be reparable by money damages; nonetheless, Szabo-Digby requested expedition, leading the judge to order Canteen to file within 72 hours its papers and supporting materials in opposition to Sza-bo-Digby’s request for a preliminary injunction. As Canteen tells the tale, there followed round-the-clock preparation of the background materials and briefs necessary to oppose Szabo-Digby’s request for emergency relief. Canteen’s papers were due by 4:30 p.m. on Friday, October 17. At 1:15 that day Szabo-Digby served a notice of voluntary dismissal under Fed.R.Civ.P. 41(a)(l)(i). The notice ended the case without intervention by the court, see Scam Instrument Corp. v. Control Data Corf., 458 F.2d 885, 888 (7th Cir.1972), and Canteen therefore did not file its papers. Szabo-Digby moved across the street to the Circuit Court of Cook County, where it filed a suit based wholly on state and local law. Discovery was had; the Circuit Court entered judgment in favor of Canteen; the case is on appeal. Canteen says that during the discovery in the state suit it became convinced that Szabo-Digby had filed the federal suit either knowing that it could not prevail or without performing the pre-filing investigation required by Fed.R.Civ.P. 11. Canteen concluded that Szabo-Digby knew or should have discovered that Canteen, too, had a minority participant. That squelched any inference of racial discrimination, according to Canteen, even any inference that the County Board had been indifferent to its minority set-aside ordinance. On November 14 Canteen filed a motion asking the district court to award it attorneys’ fees as a sanction under Rule 11; it also sought fees as a “prevailing party” under 42 U.S.C. § 1988. The parties appeared before the district judge on November 21. Canteen offered to file a brief and supporting papers by November 24. Szabo-Digby asked for time to respond. Instead of setting a briefing schedule, however, the district court announced: I have reviewed the motion. I am well aware of the case. I reviewed the materials that were previously filed in connection with the case. I don’t believe, under the circumstances of the case, that a Rule 11 violation has occurred, nor do I believe that Section 1988 fees should be awarded, and so the motion, upon my review of the entire record in this case, is denied. The “entire record in this case” was Szabo-Digby’s complaint and attachments, and Canteen’s skeletal motion for fees. Canteen had not yet filed either the papers it had prepared in response to the complaint or the materials from the state proceedings it planned to use in support of its request for sanctions. II Szabo-Digby dismissed its complaint under Rule 41(a)(l)(i) and maintains that the dismissal deprived the district court of “jurisdiction” to award attorneys’ fees against it. Santiago v. Victim Services Agency, 753 F.2d 219 (2d Cir.1985), offers comfort to that position. Santiago filed and then dismissed a complaint under 42 U.S.C. § 1983; after the Rule 41(a)(l)(i) dimissal, the defendants requested and received an award of fees under § 1988; the court of appeals reversed, stating that “[ojnce the plaintiff has dismissed the action under [Rule 41(a)(l)(i) ], the court loses all jurisdiction over the action.” 753 F.2d at 221. The Second Circuit reasoned that because the court lost “jurisdiction” it could not award fees. Id. at 221-23. Williams v. Ezell, 531 F.2d 1261, 1263-64 (5th Cir.1976), contains similar language and comes to the same conclusion. Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir.1941), which neither Santiago nor Williams cited, had come to the opposite conclusion on a request for fees under the copyright laws. We agree with Santiago's holding, although as we explain below we do not endorse its reasoning. Santiago’s holding dooms Canteen’s request for fees under § 1988. That statute authorizes awards to “prevailing” parties only. A dismissal without prejudice under Rule 41(a)(l)(i) does not decide the case on the merits. The plaintiff may refile the complaint (or, as Szabo-Digby did here, file a redacted complaint in a different court). The defendant remains at risk. A dismissal under Rule 41(a) is unlike a dismissal with prejudice under Rule 41(b), which enables the defendant to say that he has “prevailed”. A cave-in by the defendant may support an award of fees to the plaintiff without a judicial declaration of entitlement to relief, see Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980); Palmer v. City of Chicago, 806 F.2d 1316, 1321-22 (7th Cir.1986). Capitulation or settlement is the practical equivalent of success. Surrender by the plaintiff should be treated similarly. Because the Rule 41(a)(l)(i) dismissal is without prejudice, however, it is not the practical equivalent of a victory for defendant on the merits. On top of that, Rule 41(a)(l)(i) prevents an award of “costs” against the party who dismisses the suit voluntarily. Only the filing of a second suit on the same claim allows the court to award the costs of the first case. See Rule 41(d); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2375 (1971). Section 1988 authorizes an award “as part of the costs” of the action. The Supreme Court takes seriously the assimilation of attorneys’ fees under § 1988 to “costs”. Marek v. Chesny, 473 U.S. 1, 7-11, 105 S.Ct. 3012, 3016-18, 87 L.Ed.2d 1 (1985). Because the court may not award “costs” the first time the plaintiff drops his suit under Rule 41(a)(l)(i), it also may not award attorneys’ fees under a statute that treats fees as part of “costs”. The court’s inability to award fees under § 1988 does not imply the same treatment of its authority under Rule 11. Neither “prevailing” on the merits nor an entitlement to “costs” is a necessary condition of a Rule 11 award. Rule 11 is designed to discourage unnecessary complaints and other filings, for the benefit of the judicial system as much as of the defendants. See Brown v. National Board of Medical Examiners, 800 F.2d 168 (7th Cir.1986); cf. Weinstein v. University of Illinois, 811 F.2d 1091, 1097-98 (7th Cir. 1987). See also Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 557-59 (9th Cir.1986); Westmoreland v. CBS, Inc., 770 F.2d 1168 (D.C.Cir.1985); Eastway Construction Cory. v. City of New York, 762 F.2d 243 (2d Cir.1985); Golden Eagle Distributing Corp. v. Burroughs Corp., 809 F.2d 584, 586-89 (9th Cir.1987) (Noonan, J., dissenting from the denial of rehearing en banc). Unnecessary complaints sap the time of judges, forcing parties with substantial disputes to wait in a longer queue and condemning them to receive less judicial attention when their cases finally are heard. Rule 11 fees may be awarded even against prevailing parties, as in Westmore-land. The violation of Rule 11 is complete when the paper is filed. Pantry Queen Foods, Inc. v. Lifschultz Fast Freight, Inc., 809 F.2d 451, 453-54 (7th Cir.1987). Otherwise splendid conduct of the litigation does not excuse an established violation. This implies that a court always should be able to award fees, whether the plaintiff wins, loses on the merits, or dismisses his own case. Szabo-Digby took up the court’s time on very short notice and received a decision on a request for a TRO; it demanded that Canteen expedite the filing of its papers; if it should not have filed the complaint at all, it has inflicted on both Canteen and the court the sort of injury with which Rule 11 is concerned. Yet it is not easy to distinguish Santiago on these grounds. The Second Circuit did not rely on the considerations particular to § 1988 that we have discussed. It said only that the court lacks “jurisdiction”, implying that the district judge could not have awarded fees under any statute or rule. To the extent the Second Circuit believes that a dismissal under Rule 41(a)(l)(i) deprives the court of power to do anything at all, we agree with the Ninth Circuit’s contrary view in Cor-coran. “Jurisdiction” is an all-purpose word denoting adjudicatory power. A court may have power to do some things but not others, and the use of “lack of jurisdiction” to describe the things it may not do does not mean that the court is out of business. There are at least three ways in which a court may use “lack of jurisdiction” to describe the effect of a motion under Rule 41(a)(l)(i). First, it may mean to invoke the image of subject matter jurisdiction. If one citizen of Illinois files a suit based on state law against another citizen of Illinois, a federal court lacks jurisdiction over the subject matter; so too if a plaintiff files a specious civil rights suit, for an absurd complaint does not even invoke federal question jurisdiction. Hagans v. Lavine, 415 U.S. 528, 537, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974); Cronson v. Clark, 810 F.2d 662, 665 (7th Cir.1987); Dozier v. Loop College, 776 F.2d 752, 753 (7th Cir.1985). Yet a court has jurisdiction to determine its jurisdiction and therefore may engage in all the usual judicial acts, even though it has no power to decide the case on the merits. It may supervise discovery, hold a trial, and order the payment of costs at the end. If the complaint is indeed too silly to create subject matter jurisdiction, attorneys’ fees should be an ordinary incident of the award of costs. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), holding that a court has power to award attorneys’ fees to discourage vexatious litigation; In re TCI Ltd., 769 F.2d 441 (7th Cir.1985). The second sense of “lack of jurisdiction” is that the judge has lost his power to proceed, even though the case is within the federal judicial power. For example, a judge who enters a final judgment loses “jurisdiction” to hold another trial (unless on a timely motion under Rule 52, 59 or 60), see Bailey v. Sharp, 782 F.2d 1366 (7th Cir.1986). Once the losing party files a valid appeal from the final decision, the district judge loses “jurisdiction” — though only on the merits, because awards of fees are collateral questions. Exchange National Bank v. Daniels, 763 F.2d 286 (7th Cir.1985); Patzer v. Board of Regents, 763 F.2d 851, 858-59 (7th Cir.1985). This comes closer to the sense in which a dismissal under Rule 41(a)(l)(i) strips a court of “jurisdiction”. The dismissal terminates the case all by itself. There is nothing left to adjudicate. So several courts, including this one, have held that a judge may not reject the Rule 41(a)(l)(i) notice and then decide the case on the merits; one disposition is enough! See Winterland Concessions Co. v. Smith, 706 F.2d 793 (7th Cir.1983); Williams, 531 F.2d at 1263-64; Bryan v. Smith, 174 F.2d 212 (7th Cir.1949). But see Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir.1953) (court may reject a Rule 41(a)(1) dismissal when there have been substantial proceedings looking to a decision on the merits). In Bryan the parties stipulated to interim relief pending disposition; the plaintiff later dismissed the case under Rule 41(a)(1), and we held that the district judge could not enforce the stipulation. The Second Circuit’s opinion in Santiago used some of these cases as the basis of its “jurisdictional” language, yet it does not take much argument to show that the situations are distinct. A district court that loses its power to decide the merits — perhaps because it has decided them once already — does not also lose power to award attorneys’ fees that may be in order as a result of what happened before the final decision. Still a third “jurisdictional” analogy rests on the case or controversy requirement of Article III. You can’t have a suit without a plaintiff. When the plaintiff packs up his portfolio and goes home, the case goes home with him. There is no longer a dispute for the court to decide. This is so whether the dismissal comes under Rule 41(a) without prejudice or Rule 41(b) with prejudice; in either event, the absence of a plaintiff ends the court’s power. See In re International Business Machines Corp., 687 F.2d 591 (2d Cir.1982). Courts occasionally sum up the effect of the missing plaintiff by stating, as we did in Bryan, 174 F.2d at 214: “It is as if the suit had never been brought.” A court could not award attorneys’ fees in a case that had never begun, so if this analogy prevails Canteen loses. You can get only so far with the comparison to a suit never filed, however. Suppose the plaintiff files suit and pays the filing fee with a rubber check, then orders a transcript of some preliminary proceedings (such as the hearing on a TRO in this case), and dismisses under Rule 41(a)(l)(i). Does the plaintiff avoid paying the docket fee and the court reporter on the ground that “[i]t is as if the suit had never been brought”? Neither filing fees nor reporters need be paid when suit is never filed, yet the plaintiff must pay up nonetheless. Suppose the plaintiff files a suit, seeks a TRO, in the midst of the hearing asks to approach the bench, emits a Bronx cheer, punches the judge in the nose, and as the judge reaches for a handkerchief to stanch the bleeding tenders a dismissal under Rule 41(a)(l)(i). In reply to the inevitable citation for contempt of court, the plaintiff could not say: “I wasn’t there in the eye (nose?) of the law; nothing happened for which I am responsible; for ‘it is as if the suit had never been brought’.” An award of fees under Rule 11 is more like a sanction for contempt of court than like a disposition on the merits or even an award of costs. An award under Rule 11 is a “sanction” for violating a rule of court. The obligation to answer for one’s act accompanies the act; a lawyer cannot absolve himself of responsibility by dismissing his client’s suit. A dismissal under Rule 41(a)(l)(i) is significant to the extent it stops the running of attorneys’ fees. A plaintiff who files a complaint in violation of the Rule and quickly dismisses it usually will find that sanctions are minimal. But they are not zero — and here they may not be minimal. Round-the-clock work by a large law firm does not come cheap. If Szabo-Digby imposed costs on its adversary and the judicial system by violating Rule 11, it must expect to pay. Ill Szabo-Digby maintains that Canteen is responsible for the thin record. If Canteen wanted the district judge to look at evidence suggesting misconduct, Szabo-Digby says, why didn’t it furnish the evidence to the judge? It could have attached supporting materials and a brief to its motion for sanctions. It did not and has only itself to blame for its predicament, Szabo-Digby concludes. Szabo-Digby relies on Local Rule 13(a), which, it insists, requires a moving party to submit briefs and supporting materials no later than five days after the motion. Canteen replies that the district court’s rules do not require a moving party to submit evidentiary materials with or after the motion; Rule 13(a) says only that a party shall file “a short concise memorandum in support of his/her position, together with citations of authority.” Because the time specified by Local Rule 13(a) is five days, moreover, weekends and holidays are excluded, see Fed.R.Civ.P. 6(a), so that “five days” is at least seven calendar days. The district judge denied the motion before the end of the seventh day. Canteen tops off its position by observing that although it filed the motion on November 14, the parties did not stipulate until November 17 to the accuracy of the state court transcript on which Canteen intends to rely. Szabo-Digby did not oppose the motion in the district court on account of a documentary shortfall; the district judge decided the motion on the merits rather than citing Local Rule 13(a); so far as we can tell on an independent review, Canteen did not violate the Rule and had a decent (which is not to say smashing) reason for wanting a little more time. We do not preclude the district court from interpreting and applying its local rule on remand, but we also do not think the rule a sufficient alternative ground on which to affirm the judgment. There is a related timeliness concern: Szabo-Digby dismissed the case on October 17, but Canteen did not request fees until November 14. Neither the district judge nor Szabo-Digby suggests that 28 days is too long. The Supreme Court held in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), that motions for attorneys’ fees under § 1988 are not requests to “alter or amend” the judgment and therefore are not governed by the ten-day limit in Fed.R.Civ.P. 6(b) and 59(b). The Court did not say just what time rules do apply; it both invited district courts to adopt local rules (455 U.S. at 454 n. 16, 102 S.Ct. at 1168 n. 16) and reserved judgment on the possibility that the time limit might be that applicable to bills of costs {id. at 454 n. 17). Several courts have taken the latter suggestion seriously, holding motions to the time within which the party could seek costs. E.g., Mont gomery & Associates, Inc. v. CFTC, 816 F.2d 783 (D.C.Cir.1987). This is more appropriate for fees awarded as “part of costs” than for fees under Rule 11, which are awarded as “sanctions”. The local rules in the Northern District of Illinois give parties 30 days to file bills of costs (Local Rule 45(a)) and 90 days to file requests for attorneys’ fees (Local Rule 46). If the request for sanctions under Rule 11 is assimilated to either category, it is timely. IV Szabo-Digby’s complaint contained three kinds of claims: that the Board engaged in racial discrimination, that the Board violated the due process clause, and that the Board violated state and local laws. We are concerned with the first two, because if the complaint offended Rule 11 in order to obtain federal-question jurisdiction, the sufficiency of the state claims is irrelevant. Rule 11 provides that the presence of an attorney’s signature on a complaint is a certificate that he has read the pleading...; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause any unnecessary delay or needless increase in the cost of litigation. The Rule contains several strands. There must be “reasonable inquiry” into both fact and law; there must be good faith (that is, the paper may not be interposed “to harass”); the legal theory must be objectively “warranted by existing law or a good faith argument” for the modification of existing law; and the lawyer must believe that the complaint is “well grounded in fact”. The attorney filing the complaint or other paper must satisfy all four requirements. Szabo-Digby does not argue for the modification of existing law, and its brief in this court contends that the complaint is adequately supported by fact and law. The due process branch of the complaint is not. Szabo-Digby’s theory of due process is wacky, sanctionably so. The due process clause of the fourteenth amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law”. Szabo-Digby does not say that it has been deprived of “life” or “liberty”. It has not been deprived of “property” either. Its right to perform food services under the contract, a “property” interest, expired. A person has a “property” interest in an expectation of renewal only if state law so provides. Compare Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), with Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). A unilateral expectation of renewal is not a property interest. Only a “legitimate claim of entitlement”, Roth, 408 U.S. at 577, 92 S.Ct. at 2709, an “expectancy... that [is] legally enforceable”, O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 788 n. 21, 100 S.Ct. 2467, 2477 n. 21, 65 L.Ed.2d 506 (1980), is property. See also Miller v. Henman, 804 F.2d 421 (7th Cir.1986) (collecting cases). Szabo-Digby did not have such a claim of entitlement. The invitation to bid on the food service contract for the jail specified that the County “reserves the right to accept or reject any or all proposals and to negotiate with any qualified source or to cancel in part or in its entirety this Request for Proposal. It may accept the proposal that it considers to be in the best interest of the County.” The Supreme Court of Illinois has held that when a request for bids contains language of this sort, no one has an entitlement to receive the contract— even if he submits the lowest bid for the best product. See Polyvend, Inc. v. Puckorius, 77 Ill.2d 287, 294-96, 32 Ill.Dec. 872, 395 N.E.2d 1376, 1379 (1979), appeal dismissed for want of a substantial federal question, 444 U.S. 1062, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). We accordingly concluded that a disappointed bidder for a contract in Illinois lacks a property interest. Coyne-Delany Co. v. Capital Development Board, 616 F.2d 341 (7th Cir.1980). Szabo-Digby’s briefs, its defense of the complaint, do not quote the language of the invitation. They do not even cite Poly-vend, which is an authoritative decision by the Supreme Court of Illinois on the state law issues and the Supreme Court of the United States on the federal question. See Mandel v. Bradley, 432 U.S. 173, 176-77, 97 S.Ct. 2238, 2240-41, 53 L.Ed.2d 199 (1977). Szabo-Digby tries to get around its lack of a property interest — as well as the fact that it got oodles of process and is getting more in the state courts — by insisting that it did not get all the process to which it is entitled under state law. Now one would think that a claim of unauthorized departure from procedure established by state law is exactly what the state courts are for. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 530-36, 104 S.Ct. 3194, 3202-05, 82 L.Ed.2d 393 (1984); Gumz v. Morrissette, 772 F.2d 1395, 1403-04 (7th Cir.1985). Szabo-Digby insists, however, that it has a property interest in the observance of the procedures themselves. To quote its brief: “[Plaintiffs demonstrated that they had been deprived of a substantive constitutional right, ie., the right to be free from having established bidding procedures applied in an arbitrary and capricious manner.” This is the argument that induced us to impose sanctions on our own initiative in Weinstein, 811 F.2d at 1097-98. See also, e.g., Kasper v. Board of Election Commissioners, 814 F.2d 332, 342 (7th Cir.1987); Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 434-35 (7th Cir.1986). The Supreme Court has held, in cases Szabo-Dig-by does not cite, that the due process clause does not require states to follow their own procedures, if there is no underlying property interest. Olim v. Wakinekona, 461 U.S. 238, 248-51, 103 S.Ct. 1741, 1746-48, 75 L.Ed.2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). See also, e.g., Schwartz v. Mayor’s Committee on the Judiciary, 816 F.2d 54, 57-58 (2d Cir.1987). Perhaps Szabo-Digby means by “arbitrary and capricious” that the County Board was wrong on the merits: that it “deserved” the contract. But then it runs smack into Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2079-80, 48 L.Ed.2d 684 (1976), which holds that when there is no substantive property interest there is no review of “the merits” under the due process clause. Even when there is a property interest, the decision may be unreviewable, see University of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 512, 88 L.Ed.2d 523 (1985) (reserving the issue). And if there were review by a federal court, Szabo-Digby could not prevail even so: it is not arbitrary to award a contract to the low bidder. If Szabo-Digby were trying to get the Supreme Court to reconsider Olim or Bishop we would not be keen to impose sanctions; a party is free to ask for reconsideration even when the court is unlikely to respond favorably. But this was not Szabo-Digby’s strategy. It ignored Bishop, Olim., and the wealth of cases in this circuit holding that the Constitution does not guarantee that states will follow their own law. It ignored the language of the Board’s invitation to bid. It ignored Poly-vend. It relied almost entirely on a pre-Olim opinion of a district court in Pennsylvania and on a more recent decision of the Eighth Circuit that assumed a position like Szabo-Digby’s arguendo on the way to deciding the case for defendants on the merits. L & H Sanitation, Inc. v. Lake City Sanitation, Inc., 769 F.2d 517, 523-24 (8th Cir.1985); Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F.Supp. 1118 (W.D.Pa.1980). Szabo-Digby’s ability to find obscure cases such as Three Rivers suggests that its presentation of the due process issue does not suffer from want of time to track down citations. What it does suffer from is “[t]he ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist”. Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987); see also Bonds v. Coca-Cola Co., 806 F.2d 1324, 1328 (7th Cir.1986). We have paid close attention to the argument in Szabo-Digby’s brief not because Rule 11 requires scholarly exposition or exhaustive research — it does not — but because a court must take care not to penalize arguments for legal evolution. The meaning of the due process clause has undergone rapid change; what a district court could state with confidence in Three Rivers in 1980 was washed away by the Supreme Court in Olim in 1983. The complaint need not and should not contain citations or legal argument. To find out whether it was the opening shot in a campaign for some new legal principle, a court must examine what the lawyers later say about their work. Rule 11 creates difficulties by simultaneously requiring courts to penalize frivolous suits and protecting complaints that, although not supported by existing law, are bona fide efforts to change the law. The only way to find out whether a complaint is an effort to change the law is to examine with care the arguments counsel later adduce. When counsel represent that something cleanly rejected by the Supreme Court is governing law, then it is appropriate to conclude that counsel are not engaged in trying to change the law; counsel either are trying to buffalo the court or have not done their homework. Either way, Rule 11 requires the court to impose a sanction — for the protection of the judicial process as much as to relieve the financial burden that baseless litigation imposes on the other side. The due process argument in this case is frivolous on an objective standard; it is therefore not “warranted by existing law” within the meaning of Rule 11. See Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir.1986). Counsel ignore rather than acknowledge the force of existing law, so this case cannot be called an effort to alter the law. The violation being established on the legal record, a hearing is unnecessary. Hill, 814 F.2d at 1200-03 (collecting cases). The Rule requires a sanction for every violation, see Shrock, 810 F.2d at 661, so (to use the Rule’s word) the district court “shall” impose a sanction. We take Rule 11 and its counterpart Fed.R.App.P. 38 seriously and expect district judges, lawyers, and litigants to do the same. See also, e.g., Bailey v. Bicknell Minerals, Inc., 819 F.2d 690 (7th Cir.1987), and the many citations in Hill and Brown. V

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JONES SAUSAGE COMPANY and Jones Abattoir Company, Respondents. No. 7656. United States Court of Appeals Fourth Circuit. Argued June 11, 1958. Decided July 12, 1958. Rosanna A. Blake, Attorney, National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallot-Prevost, Asst. General Counsel, and Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C., on brief), for petitioner. E. C. Brooks, Jr., Durham, N. C. (Eugene C. Brooks, III, Durham, N. C., on brief), for respondents. Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges. SOBELOFF, Chief Judge. The National Labor Relations Board found the respondents, Jones Sausage Company and Jones Abattoir Company, guilty of violating Secs. 8(a) (1) and (3) of the Act, 29 U.S.C.A. § 158, in laying off two employees, Lena Mae Farrier and Willie Mac Hinton, because of their union activities. It found the respondents guilty also of violating Sec. 8(a) (1) by interrogating these and other employees concerning union activities, threatening to withdraw employee benefits, to reduce the work force, and to close the plant if the employees joined the union. The Board ordered the respondents to cease and desist from their illegal conduct and to reinstate these two •employees without prejudice to their rights and with back pay. This is the Board’s petition for enforcement of its order. 29 U.S.C.A. § 160(e). I — Jurisdictional Question The respondents complain that it was improper for the Board to assert jurisdiction in this case. It is said that the two companies should not be treated as a unit, and it is suggested that, considered separately, the requisite volume of business is not transacted by one of them, Jones Sausage Company. Under Board practice, it does not ordinarily entertain proceedings against an employer whose total annual interstate purchases are less than $500,000, but the statute itself contains no such limitation upon the Board’s jurisdiction. 29 U.S. C.A. § 160. Jones Sausage Company, a corporation formed in 1947, is engaged in processing meat. Jones Abattoir Company, also a corporation, was formed in 1955 and slaughters hogs and cattle. The annual interstate purchases of the former exceed $340,000; those of the latter, $570,000. The abattoir sells ninety percent of its products to the sausage company, the amount of such sales exceeding $900,000 annually. Two brothers, Garland Jones and Earl Jones, own all but one share of the abattoir’s stock and are its president and vice president, respectively. They are also vice president and secretary-treasurer, respectively, of the sausage company, in which they are major stockholders. The two companies occupy the same building in Garner, North Carolina. The quarters of the two are connected by an open door. The records of the two businesses are kept in the office of the sausage company. Garland Jones is the general manager of both plants, and the plant manager for both is under his supervision and control. The other brother, Earl Jones, is business manager for both concerns. On February 1, 1956, Jones Sausage Company had one hundred and twenty-four rank and file employees, and the abattoir eight or nine. The respondents stress that there was no interchange, of employees; also, that the sausage company had a pension plan for its employees, while the abattoir did not. On the other hand, all the employees had the same hospitalization and vacation plans, which Earl Jones testified was necessary “where [they] are working so close together.” Also, it is pointed out that the abattoir’s employees had a guaranteed fifty-hour work week, whereas only a very few of the sausage company’s employees had a guaranteed work week. In these circumstances, the substantial identity of ownership and control of the two enterprises, their occupancy of a single building, and the integration of their activities, warranted the Board’s finding that they constituted a single employer engaged in commerce within the meaning of Section 2 of the Act. National Labor Relations Board v. A. K. Allen Co., 2 Cir., 1958, 252 F.2d 37, 40. Cf. National Labor Relations Board v. Williams, 4 Cir., 1952, 195 F.2d 669; National Labor Relations Board v. National Shoes, 2 Cir., 1953, 208 F.2d 688. Even if we were to consider the two units separately, we would reach the same conclusion. While Jones Sausage Company’s purchases amounted to less than $500,000, unquestionably each unit was legally within the jurisdiction of the Board. Despite the Board’s practice of concentrating upon larger employers, to achieve maximum results with a limited budget, we find no illegality or abuse in its exercise of jurisdiction in this instance. T.he language of the Supreme Court, speaking through Mr. Justice Burton, in National Labor Relations Board v. Denver Bldg. Council, 1951, 341 U.S. 675, 684, 71 S.Ct. 943, 949, 95 L.Ed. 1284, is apposite: “Even when the effect of activities on' interstate commerce is sufficient to enable the Board to take jurisdiction of a complaint, the Board sometimes properly declines to do so, stating that the policies of the Act would not be effectuated by its assertion of jurisdiction in that case. Here, however, the Board not only upheld the filing of the complaint but it sustained the charges made in it. “The same jurisdictional language as that now in effect appeared in the National Labor Relations Act of 1935 and this Court said of it in that connection:- ‘Examining the Act .in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maximum de minimis' National Labor Relations Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 83 L.Ed. 1014; see also National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. “The maxim de minimis non curat lex does not require the Board to refuse to take jurisdiction of the instant case.” See, also, National Labor Relations Board v. Parran, 4 Cir., 1956, 237 F.2d 373, 375. II — The Discharges of Farrior and Hinton (a) — Lena Mae Farrior had been employed by Jones Sausage Company nearly ten years, and in point of service was one of its oldest employees. She was among the first of the respondents’ employees to become interested in the union, and its first meeting was held in her home in the middle of January, 1956. On February 12, about twenty-five or thirty Jones employees attended a union meeting at the Elks Club in Raleigh. Learning of this, General Manager Garland Jones sent for her to discuss “union rumors.” He showed her a slip of paper bearing the name of the union organizer. According to Farrior’s testimony, which the Board accepted, Jones commented: “We don’t want this stuff, we don’t need it, we are one big happy family. * * * I am just doing the people a favor. * * * I can do without them, I can put two machines in which I have * * * in storage * * * and those machines would do the work of at least four or five people.” Jones then inquired how much bonus Farrior would receive, and demanded to know “if the union came in, who [is] going to pay the bonus and look after [the employees] when [they] got sick.” When Farrior admitted to Jones that she had attended the meeting, he requested her to keep in touch with the union organizers and let him know their whereabouts. He told her to “go home and pray and let [him] know what [she] thought about it.” The next day her supervisor brought her paycheck to her home, and discharged her with the explanation that “Mr. Jones is cutting down expenses.” Shortly thereafter, Garland Jones addressed a group of his employees at the plant to like effect. He told them they should join the union if they wanted to, that it was a good thing, but that before they did so, they should consider “who [is] going to look after [them] when [they] got sick,” and “who is going to sign [their] bonus checks at Christmas.” At the same time, he reminded his employees that if they wanted anything, they could always reach him, even at the golf course, and assured them they were his boys and girls, that he loved them, and he hoped they loved him. (b) — As to Willie Mae Hinton, the testimony is of a not dissimilar pattern. She was overheard by her supervisor, Thurman Bagwell, when she told a fellow employee that she would have attended the meeting at the Elks Club on February 12 if she had known about it. Although she had, in fact, attended, she denied it to her supervisor when he questioned her. He replied that she should not say that, because he knew everybody that attended, inasmuch as he had someone there. Bagwell later told the packing room employees that they need not think they were “pulling a fast one,” because he knew the names of the people who attended the union meeting. On February 34, 1956, Bagwell inquired of Hinton if she had signed a union card. Untruthfully, she denied having done so. Bagwell told her not to say that, and indicated that he had independent information, having questioned about fourteen different girls that day. It was that afternoon that Supervisor Bagwell told Hinton and another employee that some of the girls were to be laid off because the union rules required employees to work five days a week instead of the four days they were then working. He also declared that he knew about the “secret meetings at some of the girls’ houses” and warned that before the union came in and told the respondents “what to do,” they would close the plant down and send everybody home. At the end of that day, Bagwell laid off employee Hinton. The same day, according to testimony credited by the Board, Bagwell told a group of employees that this was the “Sout|i * * * not the North,” that “no union [was] coming in and tell the Jones how to run their place,” that it was “one big happy family,” and that it was “going to stay that way.” There was further testimony that another supervisor, Perry, made similar inquiries about union-organizing meetings of the employees. Respondents contend that Farrior and Hinton were laid off as part of an effort to stem losses disclosed in the December profit and loss statement; that in all, twenty employees were laid off between February 3 and 17. Of course, if the lay-offs were for economic reasons, the employees may not claim a preferred position by reason of their interest in the union. Union membership or activity does not insulate an employee against the hazards of unemployment due to lack of work or any other reason related to the legitimate management of the business. National Labor Relations Board v. Piedmont Cotton Mills, 5 Cir., 1950, 179 F.2d 345, 347; National Labor Relations Board v. Blue Bell, 5 Cir., 1955, 219 F.2d 796, 798; United Fireworks Mfg. Co. v. National Labor Relations Board, 6 Cir., 1958, 252 F.2d 428, 430. On the other hand, economic reasons may not be asserted to shield an employer against the consequences of his discrimination against an employee who would not have been laid off but for his union activities or membership. North Carolina Finishing Co. v. National Labor Relations Board, 4 Cir., 3943, 133 F.2d 714, 7.18; National Labor Relations Board v. Carolina Mills, 4 Cir., 1951, 190 F.2d 675; National Labor Relations Board v. Dant, 9 Cir., 1953, 207 F.2d 165. The circumstances of each case must be weighed to determine what motivations truly dominated the employer in laying off or discharging the employee. The record discloses ample evidence to sustain the Board’s finding that Farrior and Hinton were laid off discriminatorily because of union activities. Complaints of discriminatory discharges were made by other union members. As to these, however, thefe was no direct testimony, as in the cases of Farrior and Hinton. The respondents insist that the Board was inconsistent in finding discrimination in respect to these two, while refusing to credit the charges of eight or more other union members. The contention is that, having dismissed the other complaints, the only reasonable conclusion the Board could reach was that Farrior and Hinton must have been discharged, not for union activities but for legitimate economic reasons. It does not necessarily follow, however, in law or logic, that the same conclusion must be reached in respect to each of the complaints. If the Board gave the respondents the benefit of the doubt in respect to those employees as to whom there was no direct evidence, it was not thereby precluded from inferring discrimination and violations of the Act if it found that in respect to these two the evidence was more abundant and convincing. Before the Board, various reasons other than business losses and lack of work were assigned by the employers for the lay-offs, such as the inability of some employees to get along with others in the group, and “little things” which employees had done contrary to the rules. In the case of Hinton, Supervisor Bag-well asserted belatedly, after he had given testimony and when recalled to the stand, that she “falsified her time card in December.” In appraising the evidence, the Examiner credited the alleged time card incident, but took into account that Hinton was not dismissed in December, nor was she among the group first laid off in February. He thought it more than a mere coincidence that her dismissal coincided with the intensification of the organizing activities. The trial examiner and the Board both concluded that tampering with the time card was not the real reason for her lay-off, because she was retained for two months thereafter and was dismissed immediately after her supervisor’s conversation with her about her interest in the union. Viewing the record as a whole, and considering the conflicting inferences urged by the respective parties as to the real reason for the discharges, we are of the opinion that there was substantial evidence to support the conclusion of the Board as to each of these employees. Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; National Labor Relations Board v. Spartanburg Sportswear Co., 4 Cir., 1957, 246 F.2d 366. Its order will be Enforced.

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

GOODWIN v. CARLOSS CO. et al. No. 8347. Circuit Court of Appeals, Sixth Circuit. Jan. 8, 1941. Sam D. Rhem, Jr., of Memphis, Tenn. (Chas. L. Neely, Sam D. Rhem, Jr. and James H. Hicks, all of Memphis, Tenn., on the brief), for appellant. John R. Walker, Jr., of Memphis, Tenn. (John R. Walker, Jr., and R. G. Draper, both of Memphis, Tenn., on the brief), for appellees. Before HICKS, SIMONS, and HAMILTON, Circuit Judges. HICKS, Circuit Judge. Suit against appellees for infringement of Letters Patent No. 2,048,158, July 21, 1936, to appellant Goodwin for an “Apparatus for Purifying and Cleaning Water.” The court concluded that the patent was invalid; and if valid that it was uninfringed. Claim 1 only is involved. The apparatus is used primarily in small “local systems” such as for school or farm, where the user has an independent water supply. It is designed for charging the water with air under pressure within an enclosed piping system, the purpose being to break the water into foam, thus liberating gases therefrom with disposition through a vent. Appellant claimed that his was the first system of aeration which depended solely upon the force of compressed air to break up the water as distinguished from systems using gravity, baffle plates, chemicals, coke beds, etc. Claim 1 is for, — “An apparatus of the class described comprising a pressure tank, a pipe line delivering water within the tank, means for admitting air under pressure into said line, said means for admitting air including an expansion chamber in communication with said line, and an air line leading from a source of air under pressure to the expansion chamber, said expansion chamber extending vertically above the pipe line delivering water, with the air line entering at the top of the expansion chamber.” The claim calls for “means” for admitting water into the water line. In Davis Sewing Machine Co. v. New Departure Mfg. Co., 6 Cir., 217 F. 775, 782, we said that, — “* * * where used with reference to the exact point of novelty, ‘means’ or ‘mechanism’ may expose the claim to attack on the ground that it is functional * * *. But where used with reference to the make-up of the field in which the real invention finds its usefulness or with reference to the connecting parts which permit the salient novelty of the invention to accomplish its function, these words are only a convenient formula of the broadest equivalency of which the real invention permits. * * *” The apparatus and “means for admitting air” as disclosed by the claim and elaborated in the specification and drawings were simple. Both the water line from the pump and the air line from the compressor had small check valves to retard any tendency to back-flow. The air was injected into the water through a pipe or “nozzle” slightly smaller than the air line and curved to feed the air in the direction of the flow of the water. The junction was made at a slightly enlarged fitting in the water line, the air line feeding in vertically from above. Interposed between the “nozzle” and the air line proper was an enlarged section of pipe, perhaps four times the diameter of the air line, the “expansion chamber” of the claim. The file wrapper discloses that the original claim 3, Claim 1 here, called for the expansion chamber but was twice rejected and was not allowed until an amendment was inserted which placed the expansion chamber vertically above the water line, with the air line entering at the top of the chamber. The file wrapper indicates that the Examiner considered that the expansion chamber would serve no purpose unless disposed vertically over the water line where he thought it had some use as an additional check valve to prevent water following the air line back to the compressor. This understanding was carried into the specification which said: “The member * * * or more particularly the bore thereof as hereinbefore stated, is of a diameter in excess of the diameter of the bore of the pipeline * * * so that the member * * * will serve effectually as an expansion chamber where air may collect to prevent any water from forcing its way back through the line * * * to the compressor. * * Also interposed in this line * * * is a nonreturn or check valve * * * to further provide means to prevent air flowing back to the compressor.” One other feature of the patentee’s “means” is the coil which served as a further “mixing element” for the air and water, which had been reduced to a “condition of foam” by the air jet. The mixture passed from the coil into the pressure tank within which the released gases moved to the top and passed out through a vent when the water had exceeded a certain height. The water moved on through a pipe to a filter tank with which we have no concern. The injection of air under pressure into a water line in advance-of a pressure tank is old. Examples of such apparatus aré depicted in appellee’s Exhibit 34, a catalog of Deming pumps, copyrighted in 1920. The air was not introduced in the Deming apparatus for purposes of aeration but to supply pressure to the water line. Patent No. 2,009,231, July 23, 1935, to Hartman, disclosed a method of mixing 'ozonized air with water “for the purpose of purifying the latter.” The gas and water were mixed in the injector and passed through a coil which kept the gas dispersed throughout the water in an emulsified condition until they were introduced into the “vortex chamber” where the gas passed upward to the atmosphere through a vertical pipe and the water overflowed the top of the vortex chamber into a storage tank. The Deming pumps did not involve aeration except incidentally and the Hartman apparatus seems npt to have been operated under pressure, but these references serve to show the limited field in which Goodwin was working, and under Davis Sewing Mach. Co. v. New Departure Mfg. Co., supra, if his “means” are not functional they must be considered simply as a part of the “make-up of the field in which the real invention finds its usefulness.” Comparison with the other claims, the specification and the file wrapper disclose that Goodwin considered his real invention to be the expansion chamber, the stated purpose of which was “to prevent any water from forcing its way back through” the air line to the compressor. If this were its sole usefulness there is no operative connection with the “means” described and the claim would be invalid as embodying a mere aggregation of elements. Sands Mfg. Co. v. Smith, 6 Cir., 53 F.2d 459, 461. However, there was evidence to the effect that the expansion chamber served as a reservoir for the compressed air; induced an even flow of air to the nozzle, and achieved a more through aeration of the water than if the air were fed in jets directly from the compressor without the cushioning effect of the expansion chamber. An even flow of air may be desirable in a system depending upon compressed air alone but Goodwin’s device by which he now claims to attain an even flow does not constitute invention. In its relationship to an even flow of air it represents nothing more than a miniature reservoir which could be readily installed upon demand by any skilled mechanic. It is a matter of common knowledge that air storage tanks with outlets for even flow therefrom are maintained at filling stations for inflating automobile tires. It is unnecessary to consider whether the Carloss injector device and perforated plates set athwart the pipe carrying the air-impregnated water infringed Claim No. 1, The District Court found the entire patent invalid, but, as Claim No. 1 was the only claim in issue, the decree will be modified to the extent that Claim No. 1 only is held invalid, and as so modified is affirmed.

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

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

James Arthur BROWN, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee. No. 71-1089. United States Court of Appeals, Fourth Circuit. Argued March 5, 1973. Decided June 28, 1973. Prof. Daniel J. Meador, Charlottesville, Va. (Court-appointed), for appellant. Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges sitting en banc, on resubmission. DONALD RUSSELL, Circuit Judge: This is a habeas proceeding instituted by a Virginia prisoner, after exhaustion of state remedies, in order to secure his outright release from a life sentence imposed after conviction for robbery in the Corporation Court of the City of Norfolk. The District Court denied relief. On appeal, the hearing panel filed its opinion, remanding the proceeding for a hearing such as was required in Kemplen v. State of Maryland (4th Cir. 1970), 428 F.2d 169. Rehearing en banc was sought and granted. On rehearing, affirmance of the District Court, though not on the grounds stated by it, was agreed on by the en banc court. The earlier opinion is accordingly superseded by the following opinion: The factual background of this proceeding is not in dispute. At the time of the commission of his alleged offense of robbery, the petitioner was 17 years of age. A petition charging him with the offense was initially filed in the Juvenile and Domestic Relations Court of Norfolk (hereinafter referred to as Juvenile Court). It does not affirmatively appear from the Juvenile Court record that either of petitioner’s parents was present at ány of the proceedings which followed and it is conceded that the Court did not appoint a guardian ad litem or counsel to represent him. The Juvenile Court found the petitioner “within the purview of the Juvenile Court” and referred tne "matter “to the Probation Department for an investigation, to be made in Grand Jury form.” The matter was continued until September 3, 1963 to permit the investigation to be made. On September 3, 1963 the Juvenile Court conducted a hearing on the basis of the investigation made by the Probation Department and proceeded to transfer the charges against the petitioner to the Corporation Court of the City of Norfolk for criminal proceedings. TTieTransfer was made under the authority of Section 16.1-176, Virginia Code. The petitioner was thereupon indicted for robbery in the Norfolk Corporation Court, pled guilty in January, 1964, and was given a life sentence. As a result of habeas proceedings begun by the petitioner in 1968, this conviction and sentence were, however, declared null and void because of the failure of the Juvenile Court to appoint a guardian ad litem or counsel for the petitioner or to notify the petitioner’s parents in connection with the transfer proceedings. The Court did not, however, order the petitioner’s release but directed that he be detained to await further orders of the Court. The petitioner at this time was 23 years of age. Shortly thereafter, the petitioner was re-indicted for the same 1963 robbery, tried before a jury, found guilty and again sentenced to life imprisonment. He appealed, contending that his second trial was void because re-trial as an adult for an offense committed as a juvenile would be inconsistent with the constitutional requirements of due process and equal protection. The appeal was denied on the authority of Pruitt v. Guerry (1969) 210 Va. 268, 170 S.E.2d 1. Continuing to press his claims, petitioner commenced this habeas corpus proceeding in the District Court in May 1970. From a dismissal of his petition by the District Court, he appealed to this Court. I. Petitioner raises two claims on account of which he asserts he is entitled to immediate release. First, he urges that the jurisdiction of the Juvenile Court over him and his offense has never been validly terminated and that, in order to terminate it and transfer valid jurisdiction to the Corporation Court, a proper transfer proceeding is necessary. He contends, however, that at this late date, almost ten years after the offense, it is impossible for the Juvenile Court or any other Court to hold a meaningful nunc pro tunc transfer hearing in order to effect such a transfer and, under those circumstances, his outright release is the only proper remedy. In addition, he argues that the hearing before the Juvenile Court put him in jeopardy and any trial of him in the Corporation Court is barred under the constitutional prohibition against double jeopardy. We find both contentions without merit. II. There is no dispute between the parties over the proposition that the transfer order entered by the Juvenile and Domestic Relations Court in 1963 was invalid for failure to accord the petitioner procedural due process and that the conviction thereafter, on the basis of the petitioner’s guilty plea in the Corporation Court, was invalid. The state court has so concluded in declaring that conviction a complete nullity. Had the petitioner been a juvenile in 1968 when his initial sentence was voided, jurisdiction over his offense would have been vested in the Juvenile Court, which could have held a new transfer hearing, conducted in full compliance with the petitioner’s constitutional rights. But the petitioner was no longer a juvenile; he was an adult. Thus, the Juvenile Court had no further jurisdiction over him and his offense and he could no longer be dealt with by that Court. But that did not mean that he was “home free” and must be released forthwith because, as the petitioner contends, a reconstructed waiver hearing as contemplated by Kemplen would be impractical. As one Circuit Court has observed in a similar case, “[w]hen a decision in the criminal law is made retroactive, the consequence is not to free all whose convictions are affected. Normally new hearings or new trials will be held in some or all cases.” Mordecai v. United States, supra, 421 F.2d at 1137. As a matter of fact, this demand for immediate release “is the kind of ‘drastic relief’ which the supreme court in identical circumstances in Kent deemed inappropriate.” Knott v. Langlois (1967), 102 R.I. 517, 231 A.2d 767, 773. Thus Kent, the foundation for the petitioner’s constitutional attack on his earlier sentence, did not require the petitioner’s release; rather, after providing for correction of the procedural infirmity in the transfer proceeding it authorized a re-trial. And this is the customary procedure in situations such as that posed here. Habeas is not a remedy to be exploited by the guilty in order to escape trial but a procedure intended to secure to guilty and innocent alike a trial free of constitutional defect. Only when the Commonwealth is unwilling to afford the defendant such trial is release proper. Fundamental fairness, though, demands that the public’s right to retry the petitioner as an adult for a crime, committed while he was a juvenile and subject to the processes of the juvenile court system, be conditioned upon a judicial determination of some kind that the petitioner has not been improperly prejudiced by the loss of the opportunity, in a properly conducted hearing, to have opposed a transfer from the Juvenile Court in 1963. Beyond question, the petitioner would have been so prejudiced if at such a hearing it would have been likely a transfer would have been refused. Such a refusal would have meant that in no event could the petitioner have been subjected to any form of restraint beyond his twenty-first year. Only if it could be fairly said that such a transfer would have been made, had a hearing carried out with constitutional safeguards been had, would it be proper to try the petitioner as an adult. Faced with this same issue in Kemplen, the Court attempted to fashion a procedure whereby the problem in that case might be resolved in fairness to both the public interest and the defendant’s individual right to a just determination. That is the background for Kemplen in which we held that, under ordinary circumstances, a determination on this issue should take place in the context of a reconstructed nunc pro tunc hearing, in which the Trial Court would decide “what the juvenile court judge would probably have done in light of all the information then available that might reasonably have been proffered by competent counsel.” But, as the opinion in Kemplen plainly declares, this remedy is not the only remedy, nor is it a remedy necessarily to be applied inflexibly and blindly in all cases. The decision was careful to point out that the remedy adopted in that case was “the proper remedy for this petitioner, on the facts of this case * * (Italics added) In short, Kemplen stands for the principle that, while ordinarily a reconstructed transfer hearing is the appropriate remedy where a prior transfer order of the Juvenile Court has been invalidated on procedural due process grounds and the Juvenile Court has lost jurisdiction of the defendant by reason of his age, each case must be considered on its own facts, and, if some other remedy or determination will not result in fundamental unfairness to the petitioner and is more appropriate under the facts of the case and will contribute to a more expeditious resolution of the issue, that procedure should be adopted. After a careful review of the facts of this case, we are of the firm opinion that this is not a case requiring a nunc pro tunc waiver hearing, as was required in Kemplen. We have no difficulty in finding to a moral and legal certainty that no Juvenile Court, on the record in this case, would have denied transfer. The petitioner, in a proceeding in the Juvenile Court before the filing of his 1963 robbery charge, had been treated by the Juvenile Court as an adult. Such a circumstance made transfer presumptively proper in connection with any subsequent charge against the juvenile, unless the juvenile could establish “that it would be in the public interest to dispose of the matter in the Juvenile and Domestic Relations Court.” Moreover, the gravity of the petitioner’s offense was such that it would be unreasonable to assume that any court would have denied transfer. It must be recalled, too, that, after transfer, the petitioner pled guilty. The petitioner’s offense, by his own admission, was premeditated; it involved acts of shocking brutality; it was a felony of an aggravated character, which, if committed by an adult, would have rendered him liable to a sentence in excess of twenty years. Nor was it an isolated transaction. It was one of several similar robberies committed by the petitioner. It would be a useless imposition on the Trial Court and an inadmissible waste of valuable judicial time to remand a case as plain as this for a reconstructed nunc pro tunc hearing on the propriety of a transfer. Had the Juvenile Court not ordered transfer initially on the basis of such a record, the Commonwealth’s attorney would have had authority to apply for transfer in the Corporation Court. In the Corporation Court, it is fair to assume opposition to transfer would not have been successful. Moreover, the circumstances in this case were such that, had transfer been denied either in the Juvenile Court or the Corporation Court, a finding of abuse of discretion would have been in order. Accordingly, we have no difficulty in concluding here that a reconstructed transfer hearing was not required and that the retrial of the petitioner in 1968, after he had attained the age of twenty-three, was not violative of any Constitutional rights of the petitioner. III. The petitioner asserts a second claim for immediate release. He contends that his conviction in 1968 violates the double jeopardy proscription of the Fifth Amendment. Obviously, this claim is not related to the earlier conviction in the Corporation Court. That conviction has been declared a nullity. It is of no moment that the Virginia Court did so on state rather than federal grounds. The result is the same in either event. Equally clear is the rule that the voiding of the 1964 conviction on collateral attack is no bar to a new prosecution for the same offense. The petitioner’s double jeopardy claim must, therefore, find its basis in the proceedings in the Juvenile Court. Such a claim based on proceedings in that Court, raises, as one commentator has aptly observed, “two separate conceptual problems,” (1) “whether application of the protection against double jeopardy is appropriate in the juvenile context;” and (2) “at what point jeopardy attaches * * * in a juvenile proceeding”. In a number of cases, influenced by the opinions in Kent and Gault, it was assumed that all constitutional rights as applied in the criminal trials of adults are applicable to juvenile courts. A leading case to this effect is United States v. Dickerson (D.C.1958), 168 F. Supp. 899, rev. 106 U.S.App.D.C. 221, 271 F.2d 487. It is true that in Kent the Court required procedural due process in waiver proceedings and in Gault it supplemented Kent by extending to the juvenile the right to notice of charge, the right to counsel, the right to confront witnesses, and the right against self-incrimination. Later in Winship it found that “due process and fair treatment” imposed on the Juvenile courts the requirement of proof beyond a reasonable doubt during the adjudicatory stage of juvenile proceedings. But in this latter case, the Court was careful to point out, as it had done earlier in Kent, that its conclusion did not “ ‘rest[s] entirely on the assumption that all juvenile proceedings are “criminal prosecutions,” hence subject to constitutional limitations.’ ” It emphasized that its ruling was intended to have “no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing” and “ ‘will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.’ ” Concurring in that case, Justice Harlan expressed the view that, “ [I] t is of great importance, in my view, that procedural strictures not be constitutionally imposed that jeopardize ‘the essential elements of the State’s purpose’ in creating juvenile courts.” Chief Justice Burger and Justice Stewart, in dissent, voiced great concern that the decision by imposing such a strict standard of proof might unduly restrict the juvenile courts. Recently, in McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647, the Court, in holding that the guarantee of a jury trial as provided in the Fifth Amendment is not applicable to proceedings in juvenile courts, emphasized anew that it has never been held by it “that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding (emphasis in opinion).” The Court then proceeded to enunciate the test for ascertaining to what extent constitutional requirements are to be “super-imposed” on the juvenile process. That test is a two-fold one, namely, whether the application of the right is necessary to the achievement of “fundamental fairness” and whether it will disrupt the juvenile court system. It represents what has been described as a balancing of “the need for the specific constitutional protection with the State’s interest in maintaining an independent, benevolent juvenile justice system.” Applying that test, the Court found that the requirement for a jury trial, as made obligatory under the Fifth Amendment for criminal trials of adults, “would not strengthen greatly, if at all, the fact-finding function, [of the juvenile court] and would, contrarily, provide an attrition of the juvenile court’s assumed ability to function in a unique manner.” The right to a jury trial was not accordingly imposed on proceedings in juvenile courts. It should be emphasized that in the case under appeal there was no adjudication in the Juvenile Court imposing confinement or restraint on the petitioner. Of course, had that court taken jurisdiction of the petitioner’s offense for final disposition and made an adjudication of commitment or confinement, it might be said that, under the test established in McKeiver, jeopardy would attach and a later prosecution of the juvenile as an adult in the criminal court would violate “fundamental fairness”. A number of cases have so held. But that was not the course of proceedings in the Juvenile Court in this case. The petitioner, after a hearing, was transferred to the Corporation Court and it was that latter Court which alone made an adjudication of petitioner’s guilt and imposed punishment on him. The question thus in this case is whether, applying the test established in McKeiver, a waiver hearing, with or without testimony, resulting in the transfer of the proceedings to the criminal court, falls within the jeopardy provision of the Fifth Amendment. In resolving this issue, it is necessary to mark out the place the waiver hearing occupies in the juvenile court system. Juvenile Courts were established to provide an informal, largely non-adversary type of proceeding, whereby offending juveniles, whose background warranted an assumption that they would respond to rehabilitation, could be rehabilitated without criminal taint. But in so doing the legislature recognized that there would be many cases where such assumption would not be justified. Accordingly, in the model juvenile act, it established “a dual system of justice for the juvenile” to deal with both types of juveniles. If the “particular acts of the child, in connection with a general pattern of behavior and environmental factors, warranted assumption of rehabilitory control by the State,” then the Juvenile Court retained jurisdiction and undertook to establish a form of commitment or treatment which would accomplish such rehabilitation. On the other hand, should the Juvenile Court conclude that rehabilitation was unlikely to be successful, it should waive jurisdiction in favor of trial of the juvenile in the criminal court. It was to make that determination that provision for waiver hearings was included in the legislation establishing the juvenile court system. The real issues in the waiver hearing do not involve the resolution of the juvenile’s guilt or innocenee. What the Juvenile Court is concerned with at this stage is “the amenability of the child to the rehabilitative measures available to the juvenile court, the necessity of safeguarding the public from the child, and the heinousness of the alleged offense.” “A finding of juvenile delinquency upon the basis of the conduct charged is neither required nor authorized” at a juvenile waiver hearing, which should be “limited to one appropriate to the preliminary nature of the question and the criteria for decision which the juvenile court is required to observe.” Actually, it has been stated that “in cases coming under the waiver statute the juvenile proceeding is comparable to a preliminary hearing since its purpose is to determine whether the person should be tried as an adult or put within the treatment of the juvenile court.” It is, of course, necessary for the Juvenile Court to have before it at the waiver hearing some information on the gravity and nature of the offense. It must engage in “an inquiry not only into the facts of the alleged offense but also into the question whether the par-ens patriae plan of procedure is desirable and proper in the particular case.” Indeed, without such information, the court would have difficulty in complying with the requirement of Kent that the transfer order incorporate “a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts.” (Italics added) Without some facts before it, the Juvenile Court could not pass intelligently on “the seriousness of the alleged offense”, whether it “was committed in an aggressive, violent, premeditated or willfull manner * * * against persons or against property,” as well as “the sophistication and maturity” of the juvenile or his “record and previous history.” All these circumstances were to be considered in authorizing a transfer as mandated in Kent. It is plain that the waiver hearing, with or without evidence, is a vital and integral procedural step in the processes of the juvenile court system. As such it is designed to achieve fairness both to the public and to the juvenile. To hold that it constituted jeopardy, and to apply to it the rules applicable to the criminal trial on the merits of an adult, would effectively undermine the juvenile court system and would be contrary to the spirit of McKeiver. There is no warrant in either Kent or Gault for any such conclusion. While' the Court in Kent did not explicitly hold that a waiver hearing with testimony on the factual issues it indicated were germane, (including the gravity of the offense) would not constitute jeopardy thereby preventing any trial of the juvenile on the basis of the transfer, it is inconceivable that the Court would have indicated that a hearing, conducted with proper regard for procedural due process and directed to the subjects indicated in its opinion, was proper if the result of having such a hearing would have been to make unconstitutional a trial subsequently in the criminal court on the basis of the transfer order. If such a waiver, instead of conferring jurisdiction on the Corporation Court, and instead of being a vital preliminary step in the proceedings, should be construed as creating a bar under the Fifth Amendment for subsequent trial of the juvenile in the Corporation Court, the transfer proceedings in effect would frustrate completely the very purpose and scope of the juvenile court system. It would mean either that no juvenile could ever be tried in the criminal courts as an adult, since a transfer proceeding would bar such trial on jeopardy grounds; or, that the entire juvenile court system would have to be abolished lest a few incorrigibles, guilty of serious crimes, escape punishment as adults. Such considerations prompted one Court to conclude that it is “not improper for the Juvenile Court to conduct a hearing before determining whether or not to waive jurisdiction. To hold that jeopardy attached at that point would preclude the full and informal investigation in the interests of the minor and the community which Congress thought necessary to achieve the salutary remedial purposes of a juvenile court system.” People v. Wilson (1972), 7 Ill.App.3d 158, 287 N.E.2d 211, is directly in point. There a juvenile was appealing from a sentence imposed by the criminal court after transfer from the juvenile division. He urged that his conviction was void since, in the waiver hearing, he had been put in constitutional jeopardy. Dismissing the claim, the Court said: “The hearing in the juvenile division was held for the purpose of effectuating a removal of the case to the criminal division pursuant to Ill.Rev. Stat.1969, ch. 37, par. 702-7(3). All testimony taken at that hearing was solely directed at that goal, thereby enabling the judge to make an intelligent decision in that regard. Thus, the hearing was not held to adjudicate defendant’s delinquency, but was to satisfy the juvenile court judge that the case should have been removed. Because the proceedings in the juvenile division were not ‘adjudicatory’ in nature, criminal proceedings were not barred.” (287 N.E.2d at 213) This distinction between the transfer or certification proceeding and an adjudicatory or dispositional proceeding in Juvenile Court, as stated in Wilson, accords with the Virginia practice. In Cradle v. Peyton, supra, the Court dealt with this distinction between the confinement order and the transfer order in juvenile courts in Virginia. A confinement order “imposes a sentence of confinement” and will, under the authorities already cited, constitute jeopardy. On the other hand, “a certification order transfers the case to another court for original determination whether the accused child shall be confined.” In such order, the Court makes “no finding of [Cradle’s] innocence or guilt, only a finding that he [the juvenile] should stand trial on the merits in another court.” We reach a similar conclusion in this case. After all, the waiver hearing, held, as the order of the Juvenile Judge in this very ease stated, in the nature of a “Grand Jury” hearing, was similar to a preliminary hearing in the criminal courts and no more amounts to jeopardy within the intendment of the Fifth Amendment than does a preliminary hearing in the criminal courts Nor do we find anything in Toth v. Quarles (1955) 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, cited by the petitioner, that would cause a contrary result. As a matter of fact, Toth seems to support the result reached here. In that ease, it was held that, after one had been discharged from the military service, he could not be tried by military court martial for any criminal offense committed while in the military service. But Justice Black specifically declared that the fact the discharged soldier was not amenable to military processes did not preclude his trial in the criminal courts for his offense. This is consistent with our conclusions here. Since the petitioner was over twenty-one, the Juvenile Court had no jurisdiction to deal with him but he was plainly amenable to trial in the criminal court as an adult for an offense committed by him while a juvenile. Affirmed. . The opinion of the District Court is reported at 819 F.Supp. 999. . Reported at 4th Cir., 467 F.2d 1255 (1972). . The able District Judge did not have the benefit of our opinion in Kemplen, filed some months after his decision. . “§ 16.1-176. Transfer to other courts; presentment to grand jury; children under fourteen excepted. — (a) If a child fourteen years of age or over is charged with an offense which, if committed by an adult, could be punishable by confinement in the penitentiary the court after an investigation as prescribed in paragraph (b) of this section, and hearing thereon may, in its discretion, retain jurisdiction or certify such child for proper criminal proceedings to the appropriate court of record having criminal jurisdiction of sucli offenses if committed by an adult; provided, however, that in the event the juvenile court does not so certify a child fourteen years of age or over, charged with an offense which, if committed by an adult, would be punishable by death or confinement in the penitentiary for life or a period of twenty years or more, the Commonwealth’s attorney of the city or county, if he deems it to the public interest, may present the case to the grand jury of the proper court of record, and provided further that if a child fourteen years of age or older who has previously been adjudged to come within the purview of the juvenile and domestic relations court law for committing an offense indicating a viciousness of character, or an offense which, if committed by an adult, could be punishable by confinement in the penitentiary and is subsequently charged with committing a felony, the Commonwealth’s attorney of the city or county, if he deems it to be in the public interest, may, after a preliminary hearing in the juvenile and domestic relations court, present the case to the grand jury of the proper court of record. It shall be the duty of the Commonwealth’s attorney to notify the juvenile and domestic relations court within three days after final adjudication if he deems action by the court of record necessary. Thereafter, the decision as to whether or not to present the case to the grand jury shall be in the sole discretion of the juvenile and domestic relations court. If the grand jury returns a true bill upon such indictment the jurisdiction of the juvenile court as to such case shall terminate.... The ages specified in this section refer to the age of the child or minor at the time of the alleged commission of the offense. “(b) In all cases under this section the court may, unless such information is otherwise available to it from a prior investigation and report to another court, require an investigation of the physical, mental and social condition and personality of the child or minor and the facts and circumstances surrounding the violation of the law which is the cause of his being before the court. Such investigation need not include an examination of the child or minor by a physician or psychiatrist unless the court, in its discretion, so directs. If the court requiring the investigation is a juvenile court, such investigation may be made by the agency providing probation service under § 16.1-205;....” . See, Peyton v. French (1966), 207 Va. 73, 147 S.E.2d 739; Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. . It is interesting that this claim, when found to be of merit, has resulted in conflicting results from two Circuits. In one, it induced the Court to conclude that Kent was not to be given retroactive application. Mordecai v. United States (1969), 137 U.S.App.D.C. 198, 421 F.2d 1133, 1137. The other recognized that under some circumstances the claim would warrant release. Wilson v. Reagan (9th Cir. 1965), 354 F.2d 45, 46; cf., Powell v. Hocker (9th Cir. 1971), 453 F.2d 652, 657, n. 10; James v. Cox (D.C. Va.1971), 323 F.Supp. 15, 24; Miller v. Quatsoe (D.C.Wis.1971), 332 F.Supp. 1269, 1276-1277. . See, Ferguson v. Slayton (D.C.Va.1972), 340 F.Supp. 276, 277. . This conclusion was recently restated in Jones v. Commonwealth (1972), 213 Va. 425, 192 S.E.2d 775, 777. . Cf., Black v. United States (1965), 122 U.S.App.D.C. 393, 355 F.2d 104, 107; In Re Ingram, 15 Md.App. 356, 291 A.2d 78. . See Kent v. United States, supra, 383 U.S. at 564, 86 S.Ct. at 1059: “However petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him.” (Italics added) To same effect: Hight v. Texas (Tex. 1972), 483 S.W.2d 256, 257. The commentator in 29 U. of Pitts.L. Rev. 756, 765 (1968) states it thus: “Just as it is inequitable to try a juvenile twice for essentially the same offense in order that confinement may continue after the child is of age, so it is equally unjust to have one who may have committed a heinous crime to go free merely because he has reached the age of 21 and juvenile jurisdiction has terminated.” . See D’Urbano v. Commonwealth (1963) 345 Mass. 466, 187 N.E.24 831, 836-837, where the Court stated the reasoning behind the rule that a guilty petitioner in habeas has no right “to escape for punishment at the price of the loss of the public right” that the guilty shall be punished. . Kemplen, supra, 428 F.2d at 178. See, also, Woodall v. Pettibone (4th Cir. 1972), 465 F.2d 49, 53. . See, 428 F.2d at 178. . In Watts v. Commonwealth (1972), 213 Va. 57, 58, 189 S.E.2d 346, 347, the Court stated that under the Virginia statute, the Juvenile Court, when considering the situation of a prior juvenile offender, is “under a duty to certify the case to the court of record for proper criminal proceedings, in the absence of a finding that it would be in the public interest to dispose of the matter in the Juvenile and Domestic Relations Court.” . The petitioner’s crime was described by the District Court thus: “On August 10, 1963, petitioner was 17 years of age. Accompanied by his 14 year old girl friend, they planned to rob a bus driver on the evening in question. The girl hoarded the hus and petitioner followed. Petitioner concealed a hatchet in a paper bag and, when reaching in his poclcet as if to pay his fare, proceeded to hit the bus driver with the hatchet, thus rendering permanent brain damage and making him incapable of performing any work for the balance of his life.” (467 F.2d at 1256, n. 2) . Under a respectable line of authority, of- which Smith v. Yeager (3d Cir. 1972), 459 F.2d 124, 126-127, is representative this guilty idea, entered after adequate legal advice, would have been deemed a waiver of any infirmity in the transfer proceedings. See, also, Wilhite v. United States (1960) 108 U.S.App.D.C. 279, 281 F.2d 642, 644 (opinion by then Circuit Judge Burger). Such a holding, had it been adopted by the Virginia Courts, would have validated the first conviction of the petitioner. Cf., also, Brooks v. Boles (1967) 151 W.Va. 576, 153 S.E.2d 526 and Broadway v. Beto (D.C.Tex. 1971) 338 F.Supp. 827, approved 459 F.2d 483. The Virginia Court, however, found the entire proceeding, including the guilty plea, a nullity. . It does not appear from the record that this claim was raised in the District Court. It would not be improper to dismiss the claim on account of such failure to raise it below. That, however, would merely require further litigation. For that reason, we have determined to resolve the claim in this proceeding. . United States v. Ball (1896), 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300. . United States v. Tateo (1964), 377 U. S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448. . Note, Double Jeopardy in Juvenile Justice, 1971 Wash.U.L.Q. 702. . This case is commented on favorably in a Note in 5 Howard L.J. 246 (1959), but in a similar Note in 43 Minn.L.Rev. 1253 at 1257 (1959), the commentator added this warning observation: “A problem created by the conclusion that double jeopardy applies to juvenile proceedings is that the necessity of deciding whether to waive jurisdiction to the criminal court before the question of guilt is determined may hinder the desirable procedure of the juvenile correctional system.” Of course, these comments, as well as Dickerson itself preceded McKeiver, discussed later, and their conclusions have been substantially undermined by that decision. Note, Double Jeopardy in Juvenile Justice, supra, at 703, (1971 Wash. U.L.Q.) . In Re Gault (1967), 387 U.S. 1 at 31-57, 87 S.Ct. 1428, 18 L.Ed.2d 527. . In Re Winship (1970), 397 U.S. 358 at 359, 90 S.Ct. 1068, 25 L.Ed.2d 368. . “We do not mean by this to indicate that the hearing to be held [in juvenile court] must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” (383 U.S. at 562, 86 S.Ct. at 1057) . Winship, supra, 397 U.S. at 359, n. 1, 90 S.Ct. at 1070. .'See, 397 U.S. at 366-367, 90 S.Ct. at 1074. . See, 397 U.S. at 375, 90 S.Ct. at 1078. . See, 403 U.S. at 533 and 541, 91 S.Ct. at 1980 and 1984. Por a discussion of the unique constitutional status of juvenile courts, as reflected by the decisions in Gault, Kent, Winship and McKeiver, see, Note, Parens Patriae and Statutory Vagueness in the Juvenile Court, 82 Yale L.J. 745 at 748-54 (1973). . See, 403 U.S. at 547 and 550-551, 91 S.Ct. 1976. . Note, 24 Stan.L.Rev. 874, 892 (1972). The commentator, while recognizing that this is the rule as illustrated by MeKeiver, Winship, G-ault and Kent, is critical of the conclusion stated by the Court. . See, 403 U.S. at 547, 91 S.Ct. at 1987. . Hultin v. Beto (5th Cir. 1968) 396 F.2d 216 is illustrative of the line of cases which hold that, if there is an adjudicatory hearing, followed by actual commitment, under a proceeding in the Juvenile Court, jeopardy attaches. In that case, the juvenile was charged with delinquency in the juvenile court, testimony was taken on the charge, the juvenile confessed, the Juvenile Court adjudged him guilty and committed him to a youth institution

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?

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

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

Harvey M. SANDERS, Petitioner, Appellant, v. Michael FAIR, et al., Respondents, Appellees. No. 83-1611. United States Court of Appeals, First Circuit. Argued Dec. 9, 1983. Decided Feb. 29, 1984. Certiorari Denied June 18, 1984. See 104 S.Ct. 3541. Brownlow M. Speer, Boston, Mass., for petitioner, appellant. Barbara A.H. Smith, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondents, appellees. Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges. BREYER, Circuit Judge. This appeal from a federal district court decision denying appellant Sanders’ petition for a writ of habeas corpus arises out of his state court trial for rape. At the trial Sanders’ counsel, noting that his client was black and the victim was white, asked permission to question prospective jurors individually about possible racial prejudice. The trial judge felt that, under the circumstances, individual questioning was not required, though he himself raised the issue of racial prejudice generally with the panel of prospective jurors. The jury convicted Sanders and he appealed, claiming that the refusal to allow individual questioning violated Mass.Gen.Laws ch. 234, § 28, which requires individual examination of a juror for bias in any case where it appears that, as a result of ... community attitudes, ... or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent. On appeal, the Supreme Judicial Court (Commonwealth v. Sanders, 383 Mass. 637, 421 N.E.2d 436 (1981)) held that the trial judge had not violated existing state law, which it had previously interpreted to require special questioning only where the judge found “reason to suspect” or “substantial risk” that the jurors might be affected by prejudice, see, e.g., Commonwealth v. Horton, 376 Mass. 380, 395, 380 N.E.2d 687, 697 (1978) (quoting Common wealth v. Dickerson, 372 Mass. 783, 793, 364 N.E.2d 1052, 1059 (1977)), cert. denied sub nom. Wideman v. Massachusetts, 440 U.S. 923, 99 S.Ct. 1252, 59 L.Ed.2d 477 (1979); Commonwealth v. Campbell, 378 Mass. 680, 696, 393 N.E.2d 820, 830 (1979). No such “risk” or “reason” existed here. The court, however, pointed out that in the past it had characterized the allowance of individual juror questioning in interracial rape cases as the better practice. Commonwealth v. Sanders, 383 Mass, at —, 421 N.E.2d at 437 (citing Commonwealth v. Lumley, 367 Mass. 213, 216, 327 N.E.2d 683, 686 (1975)). And it concluded that in future interracial rape cases section 28 should be interpreted to require such questioning at defendants’ request. 383 Mass, at —, 421 N.E.2d at 438. Such a requirement would assure “caution and certainty in the application of § 28,” Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633, 641 (1982), and would also serve to “avoid needless appeals,” Commonwealth v. Lumley, 367 Mass, at 217, 327 N.E.2d at 686. The Supreme Judicial Court, however, did not apply its new rule to Sanders’ case. And Sanders filed a habeas petition in federal court claiming that the state court’s failure to do so violated the federal Constitution. The district court did not agree with his arguments; nor do we. Sanders does not claim that the federal Constitution compels individual juror questioning in his case. He cannot do so, for the Supreme Court has held that the Constitution requires such an inquiry only where explicit racial issues are “inextricably bound up with the conduct of the trial.” Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258 (1976); see Dukes v. Waitkevitch, 536 F.2d 469 (1st Cir.) (per curiam), cert. denied, 429 U.S. 932, 97 S.Ct. 340, 50 L.Ed.2d 302 (1976); Commonwealth v. Lumley, supra. Cf. Rosales-Lopez v. United States, 451 U.S. 182, 192, 101 S.Ct. 1629, 1636, 68 L.Ed.2d 22 (1981) (plurality opinion) (requiring specific inquiry into juror bias, in exercise of Court’s supervisory power). The unchallenged state court finding that the trial court satisfied stronger state law requirements removes this federal issue from the case. And the absence of a federal basis for appellant’s underlying claim makes inapplicable in turn those federal cases discussing the federal question of when courts should apply federal rules of law retroactively. See, e.g., Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Jackson v. Justices of the Superior Court, 549 F.2d 215 (1st Cir.), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977). But cf. United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (abandoning reliance on Stovall factors, although only in fourth amendment cases on direct review). Here, we face only the question of whether, or when, the federal Constitution requires a state court to apply a new rule of state law retroactively. This question was answered by Justice Cardozo, speaking for the Supreme Court, in 1932. He said that the federal constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.... The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, but the legality of their acts. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-65, 53 S.Ct. 145, 148-49, 77 L.Ed. 360 (1932). See also Prater v. Maggio, 686 F.2d 346 (5th Cir.1982) (relying on Sunburst to dismiss habeas petition challenging purely prospective reinterpretation of state law); Lewin-ski v. Ristaino, 448 F.Supp. 690, 696 (D.Mass.1978) (same). Appellant seeks to overcome the force of this language with two arguments. First, he claims that Sunburst applies only where a court makes “new” law, say, by overruling a prior decision. He argues that Sunburst does not apply where a court, as here, considers a question of statutory interpretation for the first time. Such an “initial” interpretation, in his view, is “a declaration of what the law has meant from the date of its effectiveness onward.” Strauss v. United States, 516 F.2d 980, 983 (7th Cir.1975) (quoting Gates v. United States, 515 F.2d 73, 78 (7th Cir.1975)). In our view, however, appellant cannot meaningfully distinguish between precedents that break radically with the past and those that do not. For one thing, as a practical matter the distinction is difficult to draw. One’s view about the extent to which any decision “breaks” with the past likely depends upon how broadly or narrowly one reads the new decision, how broadly or narrowly one reads the precedents, and the context in which one places them. It seems unlikely that the Sunburst Court would have turned its decision on so subjective a matter. Indeed, as we read the Massachusetts precedents prior to Sanders’ case, we would consider its new rule a considerable departure from the Supreme Judicial Court’s prevailing approach to section 28, and thus likely to fit within Sunburst even on appellant’s reading. See, e.g., Commonwealth v. Shelley, 381 Mass. 340, 352, 409 N.E.2d 732, 740 (1980); Commonwealth v. Campbell, supra; Commonwealth v. Horton, supra. See also Commonwealth v. Sanders, 383 Mass, at —, 421 N.E.2d at 438 (characterizing prior decisions as having “given insufficient force to § 28”). For another' thing, whether a state court decides to make retroactive or prospective its resolution of a previously undecided question of statutory interpretation would seem to involve those very considerations of “juristic philosophy” and “conceptions of law” that Justice Cardozo wrote are up to the state’s judges. The Massachusetts Supreme Judicial Court in recent years has frequently introduced new rules, particularly rules involving nonconstitutional matters of criminal procedure, with purely prospective effect as here. See, e.g., Commonwealth v. Day, 387 Mass. 915, 921 & n. 10, 444 N.E.2d 384, 387 (1983) (concerning burden of proof of waiver of Miranda rights); Commonwealth v. Lewinski, 367 Mass. 889, 901-03, 329 N.E.2d 738, 746-47 (1975) (concerning disclosure of prior statements by government witnesses); Commonwealth v. Stewart, 365 Mass. 99, 104-08, 309 N.E.2d 470, 474-75 (1974) (concerning disclosure of grand jury testimony of government witnesses); see also Schrottman v. Barnicle, 386 Mass. 627, 437 N.E.2d 205 (1982) (general discussion of Massachusetts’ approach to retrospectivity, especially in civil contexts); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771 (1980) (prospective elimination of “year-and-a-day” rule for homicides), cert, denied sub nom. Phillips v. Massachusetts, 450 U.S. 929, 101 S.Ct. 1386, 67 L.Ed.2d 360 (1981). It has explained that total retroactivity of a rule like the one announced in Sanders could “have a calamitous impact on the criminal justice system[]” — an adverse impact that is unnecessary where the pre-existing practice had not “materially tainted the outcome of the trial.” Commonwealth v. Lumley, 367 Mass, at 219 & n. 5, 327 N.E.2d at 687. And, when it makes a rule purely prospective, it does so in part because it believes that to apply the prospective rule to the case before it would produce “disparate treatment of similarly situated parties.” Schrottman v. Barnicle, 386 Mass, at 637 n. 6, 437 N.E.2d at 212. Any disagreement with this approach strikes us as conceptual and philosophical, not legal. This is not a case in which a state court has acted gratuitously or without reason. It is not a case where a state court seeks to disturb preexisting reliance, cf. Linkletter v. Walker, 381 U.S. 618, 636-40, 85 S.Ct. 1731, 1741-43, 14 L.Ed.2d 601 (1965) (emphasizing importance of protecting justified reliance on prior rule); Schrottman v. Barnicle, 386 Mass, at 635-36, 437 N.E.2d at 211 (same), nor a case in which it imposes a harsh new rule retroactively, cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (discussing fundamental unfairness of retroactive enlargement of scope of criminal statute), nor a case that, as far as we can see, involves any other sort of fundamental unfairness, cf. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (retro-activity necessary where former practice raises serious questions about accuracy of prior guilty verdicts). In our view Sunburst applies and controls. Second, Sanders argues that the state court’s decision not to apply its new rule to his case deprives him of “equal protection of the laws,” that it unconstitutionally discriminates between him and others. We are not completely certain which “others” Sanders has in mind. Certainly the Supreme Judicial Court has announced purely prospective rules in other cases. And it has adhered to the purely prospective characterization of the Sanders rule in subsequent cases involving jury questioning in interracial sexual assault cases tried prior to the new rule’s announcement. See, e.g., Commonwealth v. Sowers, 388 Mass. 207, 214, 446 N.E.2d 51, 55 (1983); Commonwealth v. Hobbs, 385 Mass, at 873, 434 N.E.2d at 641. [L2] Nor can Sanders complain of the distinction drawn between those tried before and those tried after the Supreme Judicial Court issued its opinion in his case. Since the “jury questioning” issue is one of state procedural law, and does not involve protections required by the federal Constitution, no “fundamental right” is at issue. See Ristaino v. Ross, supra; cf. Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). Thus, the “equal protection” question is solely whether the state’s distinction between litigants such as Sanders and those who will enjoy the benefit of the new rule in the future is rational. See, e.g., id., 404 U.S. at 365, 92 S.Ct. at 484; Rinaldi v. Yeager, 384 U.S. 305, 308-09, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 (1966). We have already discussed the Supreme Judicial Court’s reasons. We see nothing irrational about them. Retroactive application would surely have been far more burdensome for the Commonwealth than the prospective approach. And, to the extent that the court’s purpose was to remove one frequently recurring ground for appeals in interracial rape cases, see Commonwealth v. Lumley, 367 Mass, at 217, 327 N.E.2d at 686, retrospective application would have been counterproductive. The decision of the district court dismissing the petition for habeas corpus is Affirmed.

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

Are there two issues in the case?

Eugene BRIGHT et al., Appellants, v. Lyle TAYLOR, Individually and as President of Local P-46, etc., et al., Appellees. No. 76-1292. United States Court of Appeals, Eighth Circuit. Submitted Dec. 15, 1976. Decided May 4, 1977. Thomas L. Staack, Waterloo, Iowa, for appellant. Thomas D. Allison, Chicago, 111., for Taylor; Irving M. King, Chicago, 111., and Robert D. Fulton, Waterloo, Iowa, on brief. Steven A. Weidner, Waterloo, Iowa, for Rath; Swisher & Cohrt, Waterloo, Iowa, on brief. Before WEBSTER and HENLEY, Circuit Judges, and VAN PELT, Senior District Judge. Robert Van Pelt, United States Senior District Judge, District of Nebraska, sitting by designation. VAN PELT, Senior District Judge. Appellants appeal from a district court judgment which dismissed on the merits their suit brought under the Labor-Management Reporting and Disclosure Act. 29 U.S.C. § 401 et seq. The action was brought by 10 members of Local P-46 of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, against Lyle Taylor (local union president), Richard Price (chief steward) and Fred Nolting (financial secretary) alleging violations of 29 U.S.C. §§ 411(a)(1), 411(a)(2) and 501(a) which assure union members of equal rights in voting, assembly and freedom of speech, and places a fiduciary duty on union officials. Other union members were subsequently allowed to intervene as party plaintiffs. During the course of the suit the district court ordered the union and the employer, Rath Packing Company of Waterloo, Iowa, joined as party defendants since part of the relief requested was nullification of new seniority provisions in the collective bargaining agreement which was ratified by union member vote on October 1,1973 and signed by the union and Rath on October 2, 1973. The district court concluded after a three-day trial that it lacked subject matter jurisdiction under 29 U.S.C. § 411 with respect to Rath, it lacked subject matter jurisdiction under 29 U.S.C. § 501(a) with respect to Rath and the union, and that plaintiffs had failed to prove by a preponderance of the evidence (A) that any of the defendants had violated plaintiffs’ rights under 29 U.S.C. §§ 411(a)(1) and 411(a)(2) or (B) that any of the defendants had violated their fiduciary duties under 29 U.S.C. § 501(a). On appeal, the plaintiffs-appellants contend that: 1) The district court erred in failing to make 13 specific factual findings. A comparison with the pretrial conference order shows that under Paragraph IVa plaintiffs listed 13 factual issues in the district court. Appellants list 10 of the identical issues and urge us to find that the court “erred” in failing to find them. The three other specific findings that appellants urge us to make here likewise embrace the legal contentions in Paragraph V of the pretrial order. 2) The district court erred in failing to find the plaintiffs proved by a preponderance of evidence that the defendants or any of them violated the rights of the plaintiffs under 29 U.S.C. §§ 411(a)(1) and (2). 3) The district court erred in failing to find the plaintiffs proved by a preponderance of evidence that the defendants or any of them violated their fiduciary responsibilities under 29 U.S.C. § 501(a). 4) The district court erred in failing to award plaintiffs’ attorneys fees and costs. It is clear that plaintiffs, having lost on the merits in the lower court, would attempt to retry all of the factual and legal issues again in this court. However, our scope of review is limited to determining whether the district court’s factual findings are clearly erroneous. Pignotti v. Sheet Metal Workers’ Local 3, 477 F.2d 825, 830 (8th Cir.), cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973). We must also be mindful of the fact that the district court was able to observe the demeanor of the witnesses and weigh their credibility. United States v. Minnesota Mining and Manufacturing Co., 551 F.2d 1106 (8th Cir. 1977). This is particularly relevant where, as here, conflicting testimony was given by plaintiffs’ own witnesses in some circumstances. Having reviewed the record, we cannot say the trial judge’s finding that plaintiffs had failed to carry their burden of proof was clearly erroneous. Because it is unlikely that this exact factual situation will ever arise in the future, a detailed recitation of the facts would have little precedential value. Suffice it to say the crux of the dispute concerns a motion made at a February 22, 1973 first shift union meeting long in advance of contract negotiations. It was moved: That we appoint the Negotiating Committee to work up a proposal for plant seniority for the next contract. This motion was made by Peters, seconded by Young. This motion was interpreted by President Lyle Taylor as follows before a vote was taken: I interpret this that, if it would pass, it would allow the Negotiating Committee to draft a plant seniority proposal and bring it back to you for ratification at the contract. It was subsequently amended as follows at the third shift meeting on March 8: Moved by Johnson, seconded by Young that any plan the Negotiating Committee arrives at be brought back to the Rank and File at a mass meeting with a secret ballot vote. This amended version passed at both the first shift meeting on March 8 and the third shift meeting on March 22. No one interpreted the March 8 amendment. However, Taylor interpreted the February 22 motion to mean that the proposal would be brought back “for ratification at the contract” which clearly indicates that the seniority proposal would be brought back with all of the other proposed changes in the collective bargaining agreement to be voted on by the membership as to whether or not they wanted to ratify the contract. There was no objection to this interpretation. The March 8 amendment simply stated that the proposal be brought back to the rank and file at a mass meeting with a secret ballot vote. It never stated specifically that the seniority proposal was to be brought back prior to contract ratification and separate from all other issues. Sections 411(a)(1) and 411(a)(2) provide: (a)(1) Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. (2) Freedom of speech and assembly.— Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations. Every union member had an opportunity to vote on the negotiated contract. After an impartial contract explanation, members were given four days before the ratification vote to “express any views, arguments, or opinions” on the proposed contract and to campaign against it. Section 501(a) provides: (a) The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder, to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization, and to account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization. A general exculpatory provision in the constitution and bylaws of such a labor organization or a general exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy. Defendants did not breach any fiduciary duties where they acted in accord with the language of the amended motion, were not secretive about the fact they were going to negotiate seniority, and did not make false or misleading statements in an attempt to coerce ratification of the contract. Furthermore, plaintiffs never showed that defendants had any interest or ulterior motive leading to the negotiation of the new seniority provisions, as none of the defendants’ seniority status was improved by the new plan. Plaintiffs would have us believe that this is another case like Pignotti, supra. However, Pignotti union officials clearly disregarded the will of the majority by holding successive elections on a pension plan after the membership had voted they did not want to participate in the plan. The same type of situation existed in Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963), where local union officials ignored the vote of the majority and refused to make certain payments which had been approved. In contrast, the union officials here had reason to believe that the union membership favored a change in seniority — the Negotiating Committee, who is directly responsible for negotiating contracts with the company, was appointed by the membership to draft a seniority change and bring it back to the membership at the contract ratification at a mass meeting with a secret ballot vote. What is more, the membership ratified the contract after being told if they were dissatisfied with any portion of it they should vote against it. It was brought out at the oral argument that a new contract had been negotiated in the fall of 1976 which also contained the plant seniority provision and was again ratified by the membership. Appellants contended that this did not make the case moot because when straight plant seniority took over it eliminated the third shift workers who opposed plant seniority, and that because of lay-offs, etc., some of those persons who opposed plant seniority had taken other jobs. This was contested by appellees who claimed that a reduction in the total number of votes cast in the 1976 election was due to the fact that plant seniority was no longer a hotly contested issue. Appellees also informed the court that defendants Taylor and Price were reelected to their union positions, while defendant Nolting chose not to run. On its face, the case would appear to be moot. In their original complaint plaintiffs asked that: 1. Defendants be restrained from any future fiduciary violations; 2. the court declare the October 1 vote a nullity or in the alternative order the defendants to reopen the contract as to seniority and not implement any type of seniority plan until it was authorized by the rank and file. No fiduciary violations have been alleged in the 1976 elections, and a second vote has been held. We are not in a position to judge whether there is any merit to plaintiffs’ contention that many of those persons opposing seniority were eliminated or left the company. The issue of mootness is crucial. Mootness is a jurisdictional question because federal courts are not empowered to decide moot questions or abstract propositions. United States v. Alaska S. S. Company, 253 U.S. 113, 40 S.Ct. 448, 64 L.Ed. 808 (1920). The federal courts impotence to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy. Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). See, North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Locke v. Board of Public Instruction of Palm Beach County, 499 F.2d 359, 364 (5th Cir. 1974). Courts bound by the mootness doctrine occasionally rule on the merits. See Wirtz v. Operating Engineers Local 410, 366 F.2d 438 (2d Cir. 1966), which considered the merits in order to determine whether the appeal should simply be dismissed as moot or whether the judgment should be vacated with instructions to the district court to dismiss the complaint as moot. See also Longshoremen's Local 21 v. Reynolds Metals Co., 487 F.2d 696, 697 (9th Cir. 1973), cert. denied, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974). Cases will sometimes be decided on the merits, even though they would ordinarily be moot, where the problem is capable of repetition yet evading review. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1968); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). No one here has suggested that in the future we are likely to be confronted again with a situation involving the same factual background. The history of collective bargaining tends to be unique from year to year, even among the same parties. However, eases involving breach of fiduciary duty are not to be taken lightly, particularly in this circuit which gives a broad scope interpretation to § 501. We feel that where the protection of union members’ rights was of sufficient public importance to warrant the passage of the Labor-Management Reporting and Disclosure Act, it is also of sufficient “public importance” for us to decide this case on the merits, Solien v. Drivers Local 610, 440 F.2d 124, 127 (8th Cir. 1971), since to do otherwise might discourage union members from bringing suit if they felt a violation had occurred and knew it would be impossible to obtain review before a contract expired. We need not at this time speculate as to what relief, if any, would be available in such a case, since the result here is the same whether the case is dismissed as moot or decided on the merits. Finally, we note that defendants have argued that plaintiffs have not exhausted their union remedies before instituting this suit and are precluded from relief in the courts. The district court aptly rejected this contention in its Order of August 7, 1974 by pointing out that: 1) it believed exhaustion would have been unavailing in light of the fact the international refused to open the contract and considered it binding; 2) that exhaustion is not a prerequisite under 29 U.S.C. § 411(a)(4) which states that a union member “may be required to exhaust reasonable hearing procedures” and where the union constitution provided a union appellate procedure for violations alleged to occur under that constitution (which was not the case here); and 3) it believed that since 10 months had already elapsed since the contract was ratified, there should be judicial resolution without delay. The district court judgment dismissing plaintiffs’ suit for failure to show a violation of 29 U.S.C. §§ 411(a)(1), 411(a)(2) and 501(a) is affirmed. . Prior to 1973, a three-prong seniority system was in effect — department seniority (which determined department lay-offs), plant seniority (which determined plant lay-offs), and job rights (the right to perform a particular job). . While the contract ratification did not take place at a mass meeting, as designated by the March 8 amendment, plaintiffs have not shown how an all day referendum could have prejudiced the election result. Plaintiffs’ witness Jake Ahrends testified that he did not vote on Monday, October 1, 1973, because he was working the third shift which did not start until 10:30 P. M. that night and he lived 31 miles away from town and didn’t want to “make a trip clear into town and back so I didn’t vote.” T.I., p. 226. Even if a Sunday mass meeting had been held, some people would have been working, and those who were not working would have had to make the “extra” trip back into town. Simply because the time was inconvenient for a few, does not mean they were denied the right to vote. . After oral argument, appellees made a motion to supplement the record with an Affidavit of Lyle Taylor which detailed the fact a new collective bargaining contract had been ratified which contained identical seniority provisions. We grant the motion because the issue of mootness is relevant at any stage in the proceedings and secondly, the affidavit does not really present anything new that was not brought out during oral arguments before the court. . Similarly, we do not need to reach the question of whether the district court was correct in finding it did not have subject matter jurisdiction under 29 U.S.C. § 501(a) with respect to Rath and the union, and lacked subject matter jurisdiction under 29 U.S.C. § 411 with respect to Rath.

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

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

CLAY v. SUN INSURANCE OFFICE LIMITED. No. 349. Argued March 22-23, 1960. Decided June 13, 1960. Paschal C. Reese argued the cause for petitioner. With him on the brief was W. Terry Gibson. Bert Cotton argued the cause for respondent. With him on the brief were Eugene A. Leiman and Hortense Mound. By leave of the Court pro hac vice, Robert J. Kelly, Assistant Attorney General of Florida, argued the cause for the State of Florida, as amicus curiae, urging reversal. With him on the briefs were Richard W. Ervin, Attorney General, and Gerald Mager, Special Assistant Attorney General. MR. Justice Frankfurter delivered the opinion of the Court. In 1952, petitioner, while a citizen and resident of Illinois, purchased from respondent in Illinois the contract of insurance upon which this suit is based. The respondent is a British company licensed to do business in Illinois, Florida, and nine other States. The policy, which petitioner bought for a lump sum, ran for three years. Designated a “Personal Property Floater Policy (World Wide),” it provides world-wide coverage against “all risks” of loss or damage to the property covered, property generally classified as personal property having no fixed situs. A provision of the policy, which has given rise to this controversy, required that suit on any claim for loss must be brought within twelve months of the discovery of the loss. Some months after purchasing the policy the petitioner moved to Florida, where he brought this suit for losses sustained in Florida in the winter of 1954-1955. Petitioner reported the losses to the respondent on February 1, 1955, and on April 1, 1955, respondent denied liability. The action, resting on diversity of citizenship, was instituted in the United States District Court for the Southern District of Florida on May 20, 1957, more than two years after discovery of the losses. The respondent defended on two grounds: (1) that under the time limitation for bringing suit, a restriction concededly valid under Illinois law, the suit was barred; and (2) that the “all risks” coverage of the policy does not include the losses resulting from willful injury to or appropriation of the insured property by the insured’s spouse. The jury was charged that if the losses were caused by the deliberate acts of petitioner’s wife, they were not therefore excluded from coverage. The jury found for petitioner, and judgment in the amount of $6,800 was entered. The District Court, without opinion, denied a motion for judgment non obstante veredicto, which was based, inter alia, upon the suit clause, apparently believing that Florida Statutes (1957) § 95.03, which is set out in the margin, rendered the clause ineffective. On appeal the Court of Appeals for the Fifth Circuit reversed (one judge dissenting), sustaining the defense based upon the suit clause on the ground that Florida could not apply its statute to this Illinois-made contract consistently with .the requirements of due process. 265 F. 2d 522. The court considered the preliminary question of state law — whether the Florida statute, § 95.03, in fact applies to a contract made in these circumstances. Strangely enough, it did not decide this threshold question because it apparently found it easier to decide the constitutional question that would be presented only if the statute did apply. Such disposition of a serious constitutional issue justified bringing the case here. 361 U. S. 874. By the settled canons of constitutional adjudication the constitutional issue should have been reached only if, after decision of two non-constitutional questions, decision was compelled. The lower court should have first considered: (1) whether, under the law of Florida, § 95.03 is applicable to this contract; and (2) whether the losses sued upon were within the “all risks” coverage of the policy if in fact caused by petitioner's wife. It would be a temerarious man who described the constitutional question decided below as frivolous. The seriousness of the question becomes manifest from a recital of the decisions of this Court relevant to the determination of the issue on which the court below passed. In Home Insurance Co. v. Dick, 281 U. S. 397, the Court held that Texas could not constitutionally apply its own law to invalidate a suit clause in a contract of fire insurance covering a tugboat. The plaintiff was at all pertinent times both a Texas domiciliary and a resident of Mexico. The contract, of which he was an assignee, was made in Mexico between a Mexican insurer which had no contact whatever with Texas, and a Mexican resident. The premium was paid in Mexico, and the policy covered the tug only while it was in Mexican waters. In Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143, the Court held that Mississippi could not constitutionally apply its own law to invalidate a contract clause limiting the insurer’s liability on a surety bond against defalcations by the insured’s employees “in any position, anywhere,” to losses of which notice was given within fifteen months after the termination of coverage. The contract was made in Tennessee where the insured had offices and the insurer was licensed to do business. Mississippi’s action was struck down although the contract covered an ambulatory risk, the default giving rise to the claim actually occurred in Mississippi, the insurer was under license doing business there, and the insured was incorporated there. The most recent case in the series is Watson v. Employers Liability Assurance Corp., Ltd., 348 U. S. 66. Without questioning either Dick, or Delta & Pine, the Court sustained Louisiana's application, in a suit by a Louisiana citizen, of its own “direct action” statute although thereby it invalidated an express provision against direct liability of the insurer in a contract negotiated and paid for within Illinois and Massachusetts, in both of which the clause was valid. The contract insured Toni, an Illinois corporation distributing its product nationally, against liabilities arising from the use of the product. The insurer was a British corporation licensed to do business in several States, including Massachusetts, Illinois and Louisiana. Toni had no contact with Louisiana and could not be served there. The Louisiana plaintiff had sustained her injury in Louisiana. The Court found Louisiana's contact with the subject justified its application of the statute to make an insurer doing business in Louisiana amenable to suit by a locally injured citizen. The relevant factors of the present case are not identic either with Dick, or Delta & Pine, or Watson, and not one of them can fairly be deemed controlling here. The bearing of all three on the immediate situation would have to be considered and appropriately evaluated in adjudicating the precise constitutional issue presented by it, were that issue inescapably before us. The disposition of either of two unresolved state law questions may settle this litigation. The Court of Appeals was therefore not called upon initially to reach this constitutional question ; nor is this Court. The doctrine that the Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it,” Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, 113 U. S. 33, 39, relied on by Mr. Justice Brandeis in his well-known concurring opinion in Ashwander v. T. V. A., 297 U. S. 288, 347-348, is a well-settled doctrine of this Court which, because it carries a special weight in maintaining proper harmony in federal-state relations, must not yield to the claim of the relatively minor inconvenience of postponement of decision. Of course we do not remotely hint at an answer to a question that is prematurely put. While both questions not disposed of by the Court of Appeals are questions of local law, the question whether under Florida law § 95.03 is applicable to this contract is one on which the state court’s determination is controlling. But, as the Court of Appeals indicated, it could not, on the available materials, make a confident guess how the Florida Supreme Court would construe the statute. See, e. g., Hoagland v. Railway Express Agency, 75 So. 2d 822; Equitable Life Assurance Society v. McRee, 75 Fla. 257. The Florida Legislature, with rare foresight, has dealt with the problem of authoritatively determining unresolved state law involved in federal litigation by a statute which permits a federal court to certify such a doubtful question of state law to the Supreme Court of Florida for its decision. Fla. Stat. Ann., 1957, § 25.031. Even without such a facilitating statute we have frequently deemed it appropriate, where a federal constitutional question might be mooted thereby, to secure an authoritative state court’s determination of an unresolved question of its local law. See Allegheny County v. Mashuda Co., 360 U. S. 185, 189, and cases cited; see also Meredith v. Winter Haven, 320 U. S. 228, 236. Vacated and remanded. Certain property was taken from his home. Other property, clothing, was burned, and a painting was slashed. “All provisions and stipulations contained in any contract whatever . . . fixing the period of time in which suits may be instituted under any such contract ... at a period of time less than that provided by the statute of limitations of this state, are hereby declared ... to be illegal and void. No court in this state shall give effect to any provision or stipulation of the character mentioned in this section.” Section 95.11 (3) provides a five-year limitation for actions on written contracts not under seal. The statute provides that the Supreme Court of Florida may devise rules to govern such certifications; it appears that to date such rules have not been promulgated. See Kurland, Toward a Co-operative Judicial Federalism, 24 F. R. D. 481, 489. It is not to be assumed, however, that such rules are a jurisdictional requirement for the entertainment by the Florida Supreme Court of a certificate under § 25.031.

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?

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Charles N. ANDERSON and Grace M. Anderson, Respondents. No. 16389. United States Court of Appeals Sixth Circuit. Dec. 23, 1966. Frederick Youngman, Dept, of Justice, Washington, D. C. (Louis F. Oberdor-fer, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Michael K. Cava-naugh, Attys., Dept, of Justice, Washington, D. C., on the brief), for petitioner. Richard J. Brentlinger, Columbus, Ohio (Ray G. Brown, Columbus, Ohio, on the brief), for respondents. Before McALLISTER, Senior Circuit Judge, CELEBREZZE, Circuit Judge, and WILSON, District Judge . Frank W. Wilson, District Judge, Eastern District of Tennessee, sitting by designation. WILSON, District Judge. This case comes before the Court upon the petition of the Commissioner of Internal Revenue seeking a review of the decision of the Tax Court of the United States. The Tax Court held, among other things, that the value of meals and lodging furnished the taxpayer by his employer was properly excluded by the taxpayer from gross income under the provisions of Section 119 of the Internal Revenue Code of 1954. (26 U.S.C. 1958 ed., Sec. 119) The facts, as found by the Tax Court, are not here disputed. The Commissioner does insist, however, that the Tax Court was in error in construing that portion of the statute which requires that meals and lodging be furnished “on the business premises of the employer” as a condition to their value being excluded from gross income in determining the taxpayer’s income tax liability. Thus, the single issue presented upon this appeal is one of statutory construction. The facts as found by the Tax Court, and insofar as relevant to the issue presented upon this petition for review, are as follows: Charles N. Anderson, herein referred to as the taxpayer, was employed by the Lincoln Lodge Corporation as the manager of the Lincoln Lodge, a motel located in Columbus, Ohio, such employment beginning upon the date of the motel’s opening on July 1, 1956, and continuing through the years 1958, 1959 and 1960, which form the three taxable years here involved. During the first year of operation, the taxpayer, his wife and three children lived in the motel in a two-room combination livingroom, bedroom, and kitchen suite. The unsatisfactory nature of such crowded quarters as a family residence was shortly called to the employer’s attention. After considering the loss of revenue occasioned by the taxpayer’s occupying additional space within the motel, the employer decided to look for a house close by and move the taxpayer and his family out of the motel. The taxpayer’s preference for a home some several blocks from the motel was rejected by the employer, who desired for business reasons to keep its motel manager as close to the motel as possible. The employer considered, but likewise rejected, building a new residence upon the motel property, inasmuch as that land was considered by the employer to be too valuable for such a use. A lot was finally selected at 191 Schoolhouse Lane in nearby Lincoln Village, the lot being described as “two short blocks” from the motel, and being the closest available property zoned for single residence. The property was paid for by Lincoln Lodge Corporation. The Corporation also paid for the construction of a single family-residence thereon. For reasons not here relevant, title to the property was initially taken in the taxpayer’s name, and later transferred to the name of Lincoln Lodge Corporation, but no issue exists but that the employer furnished all funds for the purchase and construction of the residence and was the owner of the property at all times and for all purposes relevant to this lawsuit. The taxpayer, as manager of the Lincoln Lodge, was required by his employer to be available upon a 24 hour a day basis in order to oversee. the management and operation of the motel. For this reason he was required by his employer, as a condition of his employment, to live in the house at 191 Schoolhouse Lane, which was described as being approximately a four minute walk or a two minute drive from the main lobby of the motel or, as stated above, “two short blocks” from the motel. Upon completion of construction of the house in July of 1957, the taxpayer and his family moved into it. The home was provided by the employer without cost to the taxpayer. The employer also paid all utilities at the home, as well as all laundry, dry cleaning, and cleaning expenses. Additionally, the employer furnished the taxpayer’s family with milk and certain staple groceries without cost to the taxpayer. The Tax Court found the fair rental value of the residence to be in the sum of $1920.00 per year, the value of utilities furnished to be in the sum of $600.00 per year, the value of laundry, dry cleaning-, and cleaning services to be in the sum of $600.00 per year and the value of milk and staple groceries furnished to be in the sum of $300.00 per year. These values are not here in dispute. Thus, for each of the three tax years here involved the value of meals furnished the taxpayer by his employer was in the sum of $300.00 per year and the value of- lodging was in the sum of $3120.00. No issue is here raised by the Commissioner with reference to the conclusions of the Tax Court that the meals and lodging were furnished for the convenience of the employer and the conclusion that the taxpayer was required to accept the lodging as a condition of his employment. Rather, it is the conclusion of the Tax Court that the meals were furnished and the lodging provided “on the business premises of the employer”, and were thus properly excludable from gross income by the taxpayer for the years 1958, 1959 and 1960 that forms the issue presented upon this Petition for Review. Section 61 of the Internal Revenue Code of 1954 defines gross income as “ * * * all income from whatever source derived, including * * * [c] ompensation for services”. (26 U.S.C. 1958 ed., Sec. 61) The relevant Treasury regulations in this regard provide that, “If services are paid for other than in money, the fair market value of the property or services taken in payment must be included in income.” [26 C.F.R., Sec. 1.61-2 (d)] It is thus obvious that the value of meals and lodging received by the taxpayer in return for his services as manager of the motel would properly be includable in his gross income for the tax years involved unless excluded under another provision of the 1954 Code. See Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Commissioner of Internal Revenue v. Lo Bue, 351 U.S. 243, 76 S.Ct. 800, 100 L.Ed. 1142; Commissioner v. Glen-shaw Glass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483. As authority for excluding the value of meals and lodging from gross income, the taxpayer relies upon Section 119 of the 1954 Code. This section provides in relevant part as follows: SEC. 119. Meals or lodging furnished for the convenience of the employer. There shall be excluded from gross income of an employee the value of any meals or lodging furnished to him by his employer for the convenience of the employer, but only if— (1) in the case of meals, the meals are furnished on the business premises of the employer, or (2) in the case of lodging, the employee is required to accept such lodging on the business premises of his employer as a condition of his employment. ****** (26 U.S.C. 1958 ed., Sec. 119) Thus, the conditions for excluding the value of lodging furnished an employee are three: namely, (1) that such lodging be furnished for the convenience of the employer; (2) that it be located on the business premises of the employer; and (3) that the employee be required to accept such lodging as a condition of his employment. The conditions for excluding the value of meals furnished an employee are two: namely, (1) that such meals be furnished for the convenience of the employer and (2) that they be furnished “on the business premises of the employer”. The Tax Court in an unreviewed opinion, and without any specific effort at defining the statutory language “on the business premises of the employer”, concluded that since the employer, motivated by business reasons, and for his own convenience, acquired the residence within two short blocks of the motel and required the taxpayer to live there to be more readily available at the motel on 24 hour a day call, the residence was “on the business premises” of the employer within the meaning of Sec. 119. The specific language of the opinion in this regard was as follows: “In our view to conclude that property owned by an employer within two short blocks of a facility being managed by the employee who is required to be available on a 24 hour call for management of the employer’s business, is not on the business premises of the employer within the meaning of Section 119, where the employee is required to accept such lodgings for the convenience of the employer, is too restrictive an interpretation. We, therefore, hold that the lodgings furnished to petitioner were furnished to him by his employer for the convenience of the employer and that petitioner was required to accept such lodgings on the business premises of his employer as a condition of his employment.” Thus, the Court below appears to have interpreted the phrase “on the business premises of the employer” as including any residential property owned by the employer and furnished the employee, provided (1) it was acquired from business motives; (2) it was in the vicinity of or “within two short blocks” of the place where the employee performed his duties; and (3) the employee was required to accept it as a condition of his employment. With this pragmatic conclusion this Court is unable to agree. Before undertaking a construction or definition of the statutory language “on the business premises of the employer” as that phrase is used in Sec. 119, it is proper to call attention to the well settled rule of statutory construction which requires that provisions within tax legislation granting exemptions be strictly construed in accordance with their terms. Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 61 S.Ct. 109, 85 L.Ed. 29; United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40; Commissioner of Internal Revenue v. Jacobson, 336 U.S. 28, 69 S.Ct. 358, 93 L.Ed. 477; Curtis v. United States, 336 F.2d 714, 721 (C.A.6th); Nielsen v. United States, 333 F.2d 615, 617 (C.A.6th). As the Supreme Court stated in United States v. Stewart, supra, 311 U.S. p. 71, 61 S.Ct. p. 109: “ * * * respondent has succeeded only in casting some doubt on the proper construction of the statute-Yet those who seek an exemption from-, a tax must rest it on more than a doubt, or ambiguity. Bank of Commerce v. [State of] Tennessee, 161 U.S. 134, 146 [16 S.Ct. 456, 460, 40 L.Ed. 645] ; Id. 163 U.S. 416, 423 [16 S.Ct. 1113, 41 L.Ed. 211]. Exemptions from taxation cannot rest upon mere implications. United States Trust Co. [of New York] v. Helvering, 307 U.S. 57, 60, [59 S.Ct. 692, 693, 83, L.Ed. 1104]. As stated by Mr. Justice Cardozo in Trotter v. [State of] Tennessee, 290 U.S. 354, 356 [54 S.Ct. 138, 139, 78 L.Ed. 358], ‘Exemptions from taxation are not to be enlarged by implication if doubts are nicely balanced.’ And see Pacific Co., Ltd. v. Johnson, 285 U.S. 480, 491, [52 S.Ct. 424, 426, 76 L.Ed. 893]. Hence broad, generalized statutory exemptions have frequently been construed narrowly and confined to those situations where the subject matter of the exemption was directly, not indirectly or remotely, involved. Mur-dock v. Ward, 178 U.S. 139, [20 S.Ct. 775, 44 L.Ed. 1009]; Hale v. [Iowa] State Board of Assessment and Review, 302 U.S. 95, [58 S.Ct. 102, 82 L.Ed. 72]; United States Trust Co. [of New York] v. Helvering, supra. •» # * ” The requirement that meals and lodging must be furnished and accepted “on the business premises of the employer” is new in the 1954 Code. The original version of the statute, as enacted in the House of Representatives, used the term “place of employment”. This term was changed by the Senate to “business premises” and this change was acceded to by the House. H. Conference Rep. No. 2543, 83rd Cong., 2d Sess., p. 27 [3 U.S.C.Cong. & Adm.News (1954) 5280, 5286.] Nothing in the Senate or Conference report suggests that the term “business premises” was intended to extend the exclusion beyond the version offered by the House which used the phrase “place of employment”. Indeed the Senate Report stated [S.Rep. No. 1622, 83d Cong., 2d Sess., p. 19 (3 U.S.C.Cong. & Adm.News (1954) 4621, 4649)]: The House and your committee has adopted provisions designed to end the confusion as to the tax status of meals and lodging furnished an employee by his employer. Under both bills meals and lodging are to be excluded from the employee’s income if they are furnished at the place of employment and the employee is required to meet certain other conditions specified below. The Conference Report likewise contained similar language. There it is stated (H. Conference Rep. No. 2543, supra, p. 27): The term “business premises of the employer” is intended, in general, to have the same effect as the term “place of employment” in the House bill. For example, lodging furnished in the home to a domestic servant would be considered lodging furnished on the business premises of the employer. Similarly, meals furnished to a cowhand while herding his employer’s cattle on leased lands, or on national forest lands used under a permit, would also be regarded as furnished on the business premises of the employer. * * ■* Thus, it would appear that ownership by the employer of the lodging or the place where the meals are furnished is not intended by Congress to be the crucial test, nor even an essential element, of the meaning of “business premises”. Rather, the emphasis is upon the place where duties of the employee are to be performed. This emphasis in defining “business premises” in terms of the place where the employee performs significant duties of his employment is likewise set forth in the pertinent Treasury regulations, Sec. 1.119-1, wherein it is provided : SEC. 1.119-1. MEALS AND LODGING FURNISHED FOR THE CONVENIENCE OF THE EMPLOYER. ****** (c) Rules. (1) For purposes of this section, the term “business premises of the employer” generally means the place of employment of the employee. * * * ****** (26 C.F.R., Sec. 1.119-1.) While this Court is not bound by Treasury regulations where they are inconsistent with the revenue statute, which they seek to interpret and implement, they must be sustained unless unreason-ableor plainly inconsistent with the stat- • ute, and may, where long continued with-j out substantial change, be deemed to have ¡received Congressional approval and have jthe effect of law. Morrison v. United States, 355 F.2d 218 (C.A. 6, 1966). As stated in the case of Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831: “This Court has many times declared that Treasury regulations must be sustained unless unreasonable and plainly inconsistent with the revenue statutes and that they constitute contemporaneous constructions by those charged with administration of these statutes which should not be overruled except for weighty reasons.” The phrase “on the business premises of the employer”, as used in Sec. 119, has been the subject of judicial construction in other reported decisions. In the case of United States v. Barrett, 321 F.2d 911 (C.A. 5, 1963) the issue confronting the Court was whether state highway patrolmen were entitled to exclude from gross income the reimbursement received by them from the State of Mississippi for meals purchased at various locations along the highway while on duty. The Commissioner there sought to contend that “business premises” was confined to the State Patrol Headquarters. The Court concluded that since the “business of the state law enforcement agency was not confined to the patrol headquarters, but rather, it covers every road and highway in the State 24 hours a day every day”, the value of meals taken along the highway while on duty was excludable. A similar issue involving the exclusion of the value of meals furnished a highway patrolman was presented in the case of United States v. Morelan, 356 F.2d 199 (C.A. 8, 1966) with a similar result being reached. In affirming the decision of the District Judge, reported at 237 F.Supp. 879, the Appeals Court concluded that restaurants near or adjacent to highways were “on the business premises of the employer” for the purpose of determining the excludability of the value of meals taken there by a highway patrolman while on duty. Although the Court in each of the foregoing cases rejected the Commissioner’s contention that “business premises” would be limited to premises owned or controlled by the employer, the decisions are consistent with the view that the premises must be those upon which some portion of the employee’s duties were performed. In fact, the test was expressly so stated in the case of United States Junior Chamber of Commerce v. United States, 334 F.2d 660, 160 Ct.Cl. 392 (1964). There the plaintiff had provided a home for its national president. The issue confronting the Court was as to the excludability from gross income under Sec. 119 of the rental value of the lodging thus furnished. Having found as a fact that a significant portion of the president’s duties were performed at the home, the Court held that the rental value of the home was not includable in the president’s gross income. In so holding the Court stated: “We think that the business premises of § 119 means premises of the employer on which the duties of the employee are to be performed.” An even more pertinent decision to the issue now confronting this Court is that of Dole v. Commissioner, 43 T.C. 697, as affirmed by the Court of Appeals for the First Circuit at 351 F.2d 308. The significance of the Dole case lies not so much in its factual similarity with the present case as in the fact that the decision of the Tax Court in the Anderson case upon the issue of “business premises” was specifically rejected by the Court of Appeals. The excludability by employees under Sec. 119 of the fair rental value of Company-owned housing furnished for the convenience of the employer was there involved. In an opinion concurred in by a majority of the Tax Court, that Court stated: “There is still another, and equally compelling, reason for holding that petitioners have failed to bring themselves within the purview of section 119. These company-owned houses were not located ‘on the business premises’ of the Packard Mills. Congress has plainly stated that the phrase ‘on the business premises’ generally means at the place of employment. See H. Rept. No. 1337, 83d Cong., pp. 18, A39 (1954); S. Rept. No. 1662, 83d Cong., pp. 19, 190 (1954); and Conference Report, H. Rept. No. 2543, 83d Cong., pp. 26-27. We think the phrase should be construed to mean either (1) living quarters that constitute an integral part of the business property or (2) premises on which the company carries on some of its business activities. We doubt whether Congress ever intended section 119 to apply to situations such as this, where the employee does his work in one location and resides at another location some distance away. Whatever may be said .of the factual conclusion reached in Charles N. Anderson [Dec. 26,806], 42 T.C. 410 (1964), on appeal (C.A. 6, November 20, 1964), that the residence of the motel manager, being within ‘two short blocks’ of the motel, was sufficiently integrated with the motel property as to be ‘on the business premises,’ the facts here do not permit ■ any such ultimate conclusion.” In a concurring opinion Judge Raum of the Tax Court went on to explicitly disapprove of the Tax Court decision in the Anderson case in the following terms: “The matter probably would never have reached this present state of apparent confusion and disagreement among the members of this Court were it not for the unreviewed decision in Charles N. Anderson [Dec. 26,-806], 42 T.C. 410. I think that Anderson is distinguishable for the reason articulated in the majority opinion. But I also think that it is wrong and that it should be overruled to put an end to the confusion that it has created. “The fact that the motel manager’s house in Anderson was ‘only two short blocks’ (42 T.C. at p. 415) from the motel property should have been totally irrelevant. The house either was or was not ‘on the business premises’, and I can find no basis in the statute to stretch those premises ‘two short blocks’, or ‘one short block’, or even ‘one-half short block’ beyond the perimeter of the motel property. Of course, if ‘two short blocks’ are not fatal, it is easy to see how one might be tempted to enlarge the distance to the one mile involved herein, or, for that matter, two miles or five miles. The real difficulty is that neither the residence in Anderson nor any single residence involved herein is ‘on the business premises’ of the employer. And in view of the mischief generated by Anderson I think it should be explicitly disapproved.” The Court of Appeals in affirming, did so specifically upon the opinion of Judge Raum. Each of the foregoing cases is consistent with an interpretation of the phrase “on the business premises of the employer” as requiring that meals be furnished or lodging be provided at a place where the employee performs some significant portion of his duties. That this is not a complete definition of the concept of “business premises,” however, may be illustrated by the case of Boykin v. Commissioner of Internal Revenue, 260 F.2d 249 (C.A. 8, 1958). There a physician employed by the Veterans Administration was assigned living quarters in a residence located upon a Veterans Hospital grounds. While no duties were performed by the employee at the residence, but rather at the hospital, no issue was raised in the case but that under Sec. 119 the lodging was upon the hospital grounds and therefore upon the premises where the employer’s business was conducted, i.e., the hospital. The Court accordingly saw no occasion to raise the “business premises” issue, but rather the case went off upon the meaning of other terms within the statute, which terms are not here in issue. Having thus considered the language of the statute, together with the legislative history, the Treasury regulations, and the relevant case authority from other jurisdictions, while all the time bearing in mind the rule of statutory construction as hereinabove stated, this Court is of the opinion that the phrase “on the business premises of the employer,” as used in Sec. 119, means that in order for the value of meals or lodging to be excluded from gross income, the meals must be furnished or the lodging be provided either at a place where the employee performs a significant portion of his duties or on the premises where the employer conducts a significant portion of his business. Returning now to the decision of the Tax Court, we are of the opinion that the Tax Court arrived at an erroneous construction of the phrase “business premises”. It has construed the phrase as requiring only that the meals be furnished or the lodging be provided upon property acquired by the employer from business motives, provided that such property is located in the vicinity of or “within two short blocks” of other property upon which the employer conducts his business. As regards lodging, the additional requirement imposed by the statute to the effect that the employee be required to accept the lodging as a condition of his employment is apparently included by the Tax Court within its definition of “business premises”. To make ownership by the employer from business motives the test of a “business premises” is to fail to provide for instances of meals furnished or lodging provided on non-owned premises, contrary to the expressed Congressional intent, while at the same time opening wide a tax loophole contrary to any expressed Congressional intent. To make “two short blocks” or nearness to other business property of the employer the test is to disregard the word “on” as contained in the phrase “on the business premises of the employer”, thereby rendering uncertain that which is certain and requiring litigation in each case to determine what may be sufficiently near under the circumstances of the particular case. Had Congress so intended, it would appear that it could readily have used the words “in the vicinity of” or “nearby” or “close to” or “contiguous to” or similar language, rather than say “on” the business premises. To make acceptance by the employee as a condition of his employment the test is to require that which is elsewhere expressly required by the statute and render redundant the phrase “on the business premises of the employer”. Examples, of course, can be given where “near” is so nearly equivalent to “on” as to indicate an absurdity in distinguishing between the two. However, this case does not present such an absurdity. Moreover, there is an element of arbitrariness in the drawing of every line. The drawing of not otherwise unreasonable tax lines is a legitimate function of Congress. When Congress drew this line so as to require that the meals be furnished or the lodging be provided “on the business premises of the employer”, it is not the proper function of a court to disregard that line and substitute a line of its own choosing. The Tax Court did not purport to find that any significant portion of the taxpayer’s duties were performed within the residence provided for his use. Merely being “on call” would not of itself form a basis for such a finding. The evidence is undisputed that the residence was located upon property separate and apart from the motel. The duties of the employee were performed at the motel. The residence therefore was not itself a business premises. The business of the employer was located at, the motel. The residence therefore was; not on the business premises of the employer. Rather, the residence was provided and the meals were furnished upon a premises other than the business premises of the employer. The decision of the Tax Court will be reversed and a judgment will enter in accordance with this opinion.

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?

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

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

HAMMERMILL PAPER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 80-2499. United States Court of Appeals, Third Circuit. Argued May 21, 1981. Decided Aug. 26, 1981. Opinion on Denial of Rehearing Nov. 2,1981. See 665 F.2d 56. Scott F. Zimmerman (argued), Stephen J. Stabler, Reed Smith Shaw & McClay, Pittsburgh, Pa., for petitioner. Robert Sewell (argued), Michael R. White, Attys., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for respondent. Before ADAMS, ROSENN and HIGGIN-BOTHAM, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. This case presents the question whether the National Labor Relations Board should have deferred to, or concurred in, an arbitrator’s decision permitting the disciplinary suspension of Thomas Stritzinger, a union steward. Hammermill Paper Company (Hammermill) admittedly enhanced Stritzinger’s punishment for his failure, as a union steward, to take affirmative steps to defuse an illegal work stoppage. Although upholding, in part, the enhancement of his punishment, the arbitrator found that Stritzinger had no contractual duty under the circumstances to take such affirmative steps. On September 30, 1980, the Board ordered Hammermill to make Stritzinger whole for the loss of pay he suffered by reason of discrimination in violation of section 8(a)(1) & (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (3) (1976). 252 N.L.R.B. 1236 (1980). Hammermill petitioned this court for review, and the Board cross-applied for enforcement under 29 U.S.C. § 160(e) & (f). We enforce the order of the Board and deny the petition for review. I. On the bitterly cold night of February 18, 1979, near Erie, Pennsylvania, nine employees of Hammermill, including Stritzinger, were called upon by their supervisors to build and tend a fire under a frozen “jack-ladder.” They refused. Two of the nine, John Hughes and Paul Gallagher, having no record of prior disciplinary problems at the company, were suspended for two weeks without pay. Six of the nine, each having once previously been reprimanded for an unrelated, unexplained absence from work, were discharged. The ninth man, Stritzinger, despite a “clean” personnel record, was discharged on the ground that he had failed “to take affirmative action as a Union Representative in the face of a concerted action” in violation of the collective bargaining agreement. The nine employees, believing their refusal to build or tend the fire was justified on grounds of either safety or job jurisdiction, and also believing that Hammermill had improperly enhanced the punishments of the seven fired employees, grieved the discipline to arbitration. The arbitrator held that the employees had acted improperly in refusing to build and maintain the fire. The arbitrator believed “that the evidence justifies the finding that the men acted in an egregiously improper manner” and that they deserved disciplinary action but not discharge. Although he concluded that the seven dischargees should be returned to work, he also held that they did not deserve any backpay. In this ease, I feel that to award back-pay to these employees would be interpreted as a reward for their activity on the night in question. It was not conduct which ought to be rewarded. It was conduct that ought to be condemned in the most stringent of terms. Their return to work is based, in part, on the procedural defects in the method used to discharge them, and in part on the fact that the disparity meted out to the employees involved is just too great and not justified by their prior records. Accordingly, in light of all the testimony and evidence, the conclusion will be that the seven employees should be returned to work without backpay. The arbitrator will not disturb the two weeks suspension given to the two employees. The effect of this award was to reduce the penalties of the seven fired employees to a suspension of approximately five months. Although it might have been argued that Hammermill’s impulse to enhance the punishment of the “recidivists” was, to some degree, justifiable, the arbitrator’s award revealed that there was no such justification in Stritzinger’s ease, outside of a belief that the two-week suspension was an overly lenient punishment for any of the men. The arbitrator found that “[tjhere was no reason to single Stritzinger out for differential disciplinary action on the grounds of his stewardship.” This finding followed from the arbitrator’s interpretation of the labor contract. Under it, he found that although Stritzinger was among those employed on the night of the incident, “[a] steward’s jurisdiction is confined to a particular shift, seniority group, and department. [But o]n the evening in question, Stritzinger was not the steward. He was not so regarded.” Thus, the arbitrator apparently concluded that while the employer had no cause for treating Stritzinger more harshly than the other eight men, he believed that a 5-month suspension without backpay was not an inappropriate penalty for any of the men. For this reason, the arbitrator held that the employer did not have just cause to fire Stritzinger and he directed reinstatement, but without backpay. The NLRB’s General Counsel apparently disagreed with the denial of backpay and subsequently issued a complaint charging that Stritzinger’s discipline had constituted a violation of § 8(a)(3), and requesting the Board to order backpay. Before the Board, Hammermill attempted to prove that Stritzinger’s punishment was justified not on the grounds originally asserted by Hammermill (viz., Stritzinger’s failure as steward to affirmatively halt the unauthorized refusal), but on the alternate ground that Stritzinger had instigated or led the refusal. However, the ALJ, like the arbitrator, rejected Hammermill’s evidence. The ALJ declined to defer to the arbitral award itself, however. He held that because the disparity between the sanctions imposed on Stritzinger and the two other men with “clean” records stemmed from Stritzinger’s stewardship, Stritzinger’s discharge violated § 8(a)(3). Thus, he found that the arbitrator’s failure to award Stritzinger back pay was contrary to Board policy. A panel of the Board, by a 2-1 vote, adopted the ALJ’s rulings, findings and conclusions. According to the Board, the arbitrator had “disregarded” the evidence and the Act and had “found that [Hammer-mill’s] treatment of Stritzinger was unrelated to his union affiliation.... ” (Emphasis added.) Therefore the Board found that the arbitrator had “rejected... material evidence which was admitted, unchallenged, and formed a primary basis for Stritzinger’s discharge and the unfair labor practices alleged.” Moreover, even assuming that the arbitrator’s reinstatement of Stritzinger did represent an accommodation of National Labor Relations Act (NLRA) policies, the Board held that by not ordering backpay, the arbitrator had rendered an award incompatible with the Board’s established policy of restoring the status quo ante wherever possible. II. The statutory issue before the Board in this case was not whether Hammermill had just cause to suspend Stritzinger for five months without pay. Rather, the unfair labor practice issue went to the legality, under the NLRA, of Hammermill’s admitted motive (and clearly the “but for” cause) for enhancing Stritzinger’s punishment beyond the two week suspension meted out to the others who, like Stritzinger, had no prior record of disciplinary problems. That motive was found by the arbitrator to have no logical or contractual basis. If, as stated by the Board, that motive together with its practical effect, violated section 8(a)(3), then it follows that the objective existence of just cause for Stritzinger’s punishment failed to negate the illegality of Hammer-mill’s enhancement of the admittedly lenient punishment. “Despite the concurrent existence of a justifiable cause for discharge, the employer violates the act if anti-union animus was the ‘real motive.’ ” Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978). In NLRB v. General Warehouse Corp., 643 F.2d 965 (3d Cir. 1981), we held that it was no abuse of discretion for the Board to reverse the outcome of an arbitral decision that upheld, as a contractual matter, the discharge of an employee, absent “some evidence that the statutory issue has actually been decided.” Id. at 969 (emphasis added); see also id. at 975 n.6 (Aldisert, J., dissenting). In that case an employee, Coon, was allegedly discharged for excessive absenteeism, but suspected that the real reason for his discharge was his vehement opposition to the employer on various collective bargaining issues. Coon grieved his discharge to arbitration, raising the issue whether the discharge was actually in retaliation for his concerted union activities. 643 F.2d at 974 n.3 (Aldisert, J., dissenting). However, the arbitrator made no findings on the employer’s motive for discharge. Instead, the arbitrator held simply that, in an objective sense, there had been ample just cause for the termination. Coon then raised the issue of discrimination under § 8(a)(3) before the Board. The Board refused to defer to the arbitrator’s award and found that the discharge was discriminatory under § 8(a)(3). This court enforced the Board’s order. In doing so, we declined to hold (as the Board had held) that the arbitrator’s award had been “clearly repugnant” to the purposes and policies of the NLRA, thus avoiding the question whether the Board was required to defer under NLRB v. Pincus Brothers, Inc.-Maxwell, 620 F.2d 367 (3d Cir. 1980). Instead, we chose to adopt the rule, developed in a line of cases beginning with Monsanto Chemical Co., 130 N.L.R.B. 1097 (1961), that had expanded upon the three criteria for arbitral deferral originally adopted by the Board in Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), and embellished in International Harvester Co., 138 N.L.R.B. 923 (1962), enforced sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964). Monsanto Chemical and its progeny have devised various formulae to refine the landmark Spielberg test. However, central to them all is a notion that where the propriety of employee discipline is upheld under the terms of a collective bargaining agreement, the Board need not reject a complaint under § 8(a)(3), based on the same discipline, unless there is some indication that in deciding the contract issue, the arbitrator had also decided the questions necessary to the resolution of the statutory inquiry. Pincus Brothers provides an example of a case in which such an indication was present. There, we dealt with a dismissal precipitated by an employee’s distribution of a leaflet. Both the arbitrator and Board treated the dismissal on this ground. The only question was whether dismissal for distributing that particular leaflet was permissible under the law of the shop and the NLRA. By finding that the leafletting was justifiable grounds for dismissal, the arbitrator at least arguably concluded that the leafletting was unprotected both by the NLRA and the law of the shop. For this reason the Board did not, and could not have, upset the arbitral decision simply by applying the rule grounded in Monsanto. As Pincus illustrates, the employer’s motives for disciplinary action will themselves often be ambiguous. At arbitration the employer and the employee will each attempt to convince the arbitrator that the “real” reasons for discipline were, or were not, justified under the law of the shop, which may, as in Pincus, encompass congruent statutory and contractual issues. Thus, when the arbitrator finds that the employer had “just cause” to discipline the employee, his award is typically at least “susceptible” to the interpretation that “there is no causal connection of any anti-union bias and the loss of the job.” Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d at 368. Because the absence of such a causal connection would remove the 8(a)(3) taint from the employer’s acts, the Board may then be obliged to defer to the award under the standard of Douglas Aircraft Co. v. NLRB, 609 F.2d 352 (9th Cir. 1979), specifically approved by this court in Pincus: “If the reasoning behind an award is susceptible of two interpretations, one permissible and one impermissible, it is simply not true that the award was ‘clearly repugnant’ to the Act.” 609 F.2d at 354. An arbitrator’s award may also evince resolution of unfair labor practice issues when the collective bargaining agreement, whose terms it is the arbitrator’s duty to construe, expressly prohibits discriminatory discharges based on union activity. See, e.g. Gulf States Asphalt Co., 200 N.L.R.B. 938, 939 n.11, 940 n.12 (1972); Airco Industrial Gases — Pacific, 195 N.L.R.B. 676, 677 (Member Kennedy, dissenting). On the other hand, the Board has determined that where a disciplined employee fails even to raise the unfair labor practice issue in the arbitral proceeding, subsequent Board inquiry into that issue will not be limited by an arbitral award favorable to the employer. Suburban Motor Freight, Inc., 247 N.L.R.B. No. 2, 103 L.R.R.M. 1113 (Jan. 8, 1980). But failure to raise the statutory issue before the arbitrator is not a sine qua non for refusal to defer even assuming compliance with the three Spielberg criteria. Though the discharged employee may vigorously argue the issue of anti-union discrimination to the arbitrator, it is not unheard of for an arbitrator to specifically disclaim any intent to decide the issue of discriminatory motive, and base an award solely on the existence of objective grounds for discipline. Monsanto Chemical was such a case. There, having heard evidence and arguments on the unfair labor practice issues, the arbitrator stated: 130 N.L.R.B. at 1099. A similar approach was evidenced by the arbitrator’s award in-Kalamazoo Typographical Union Local 122, 193 N.L.R.B. 1065, 1074 (1971). See also Note, The NLRB and Deference to Arbitration, 77 Yale L.J. 1191, 1204-05 (1968). “I have given a good deal of thought to the dilemma which arises out of the dual jurisdiction over the essence of the unfair labor practice charges. Because the NLRB has exclusive jurisdiction in the event of a conflict, and because I believe the case can be decided on other grounds, I have chosen to ignore for purposes of decision the allegations herein contained that Till’s Union activities played a part in his discharge.” It is thus inevitable that the ground upon which the arbitrator acts be subjected to some scrutiny before the Board or a court can conclude that the award disposes of the statutory issue raised before the Board. After all, the Board defers not because the arbitrator could have reached and decided unfair labor practice issues in a grievance arbitration, but because in the very process of deciding the contractual issue, the arbitrator may necessarily dispose of the question whether the employee’s legitimate rights under § 7 of the NLRA were interfered with impermissibly, within the meaning of § 8(a). Thus in a case where the statutory issue — viz., the identity of the “but for” cause for discipline — and the contractual issue — viz., the existence or nonexistence of an objective justification for discipline — are evidently separate and distinct, and it clearly appears that only the latter has been treated by the arbitrator, the rationale for deferral necessarily evaporates. In General Warehouse, for instance, there was a dispute over the impetus for Coon’s dismissal, but the arbitrator’s finding of “objective” just cause seemed to indicate to us that the statutory issue of motive had been completely pretermitted by the arbitrator. Today, we hold that because the arbitrator definitely declined to decide the statutory issue lurking in Stritzinger’s grievance, the Board committed no abuse of discretion in undertaking a de novo review of that issue. Because it is clear that many of the factual and contractual issues bearing on the unfair labor practice issue were, in this case, presented to the arbitrator, and because he wrote an opinion acknowledging his complete familiarity with the relevant evidence, it is especially important here that we hew faithfully to the rule set forth in General Warehouse, viz., that the Board defer to the arbitral decision given “some evidence that the statutory issue has been decided.” We believe that this case, however, calls for a Board decision on the merits because here, even more than in General Warehouse, we are abundantly assured that the arbitrator, although presented with evidence of the motive for discipline, specifically and clearly declined to reach the question whether that motive was statutorily proscribed. As a preliminary matter, we note that the collective bargaining agreement governing the arbitrator’s award apparently contained no anti-discrimination clause, thus raising some question whether the arbitrator was even authorized to set aside discipline for which objective “just cause” existed. Secondly, it is undisputed that the arbitration case was litigated not as a case involving anti-union discrimination under § 8(a)(3), but solely as a just cause matter. The legal standard embodied in § 8(a)(3) was neither discussed nor even raised by the parties to that proceeding. Finally, and most importantly, in the present case there is only one explanation for the enhancement of Stritzinger’s punishment — his status as a union official. The arbitrator specifically found that Hammer-mill’s motive for enhancing Stritzinger’s punishment was the motive explained in Hammermill’s letter. And the arbitrator also specifically found that the explanation for the discipline had no contractual basis. Thus his award could not have been construed as a finding that the collective bargaining agreement had heightened Stritzinger’s responsibilities as union steward, so as to affect the balance of policies embodied in § 7 of the NLRA, and thereby the determination of discrimination under § 8(a)(3). Rather, the arbitrator refused to order backpay on the ground that Stritzinger’s misconduct warranted, in an objective sense, five months of suspension, far more than he would have suffered had he not been a union steward. Although the first of these alternate holdings would have spoken to an unfair labor practice issue, the latter would not. In our view, the arbitrator’s decision came close to stating the sort of “hands-off” approach to the statutory issue that was displayed by the arbitrators in Monsanto Chemical and Kalamazoo Typographical Union. There was no question, even in the arbitrator’s mind, as to what motive prompted Hammermill to discipline Stritzinger more severely than Hughes or Gallagher. Nor was there any question that the actual motive was not valid under the collective bargaining agreement. Thus it cannot plausibly be argued that the arbitrator was concerned about Hammermill’s motive, or that his decision to uphold Stritzinger’s enhanced level of punishment somehow constituted a finding that Hammermill’s motive was legitimate. As Hammermill’s counsel before the arbitrator explained to this court at oral argument, the arbitration case “was dealt with solely as a just cause matter.” We conclude, therefore, that the Board acted correctly in undertaking a de novo review of the statutory issues raised in the complaint issued on behalf of Stritzinger. III. We now turn to the question whether the Board erred in concluding that the disparity of treatment between Stritzinger, on the one hand, and Hughes and Gallagher, on the other, constituted discrimination prohibited by § 8(a)(1) & (3). NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1798, 18 L.Ed.2d 1027 (1967) (emphasis in original); accord, e. g., United Dairy Farmers Cooperative Association v. NLRB, 633 F.2d 1054, 1061 (3d Cir. 1980). We believe that Hammermill’s discrimination against Stritzinger could readily have had an adverse affect on employee rights. The mere office thus became a burden, unilaterally imposed by the employer, even under circumstances where the office carried no extra burden under the terms of the contract. The holding of union office, after all, is the essence of protected union activities; union status may not, without more, be treated by employers as an open invitation for sanctions. All other things being equal, the marginal effect of this burden would be to “discourage members from holding union office” and thus “no doubt have an inherently adverse effect on employee rights.” Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir. 1979). [Ojnce it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him. Secondly, we hold that where an employer offers a contractually unsupportable explanation for imposing more severe sanctions on a union official than it imposes upon an ordinary member for similar misconduct, it has failed to establish, as required by Great Dane, that it was motivated by a legitimate objective. In this case, the employer initially assigned only one reason for its disparate treatment of Stritzinger, a justification found by the arbitrator to be unacceptable under the collective bargaining agreement and in the general factual context of this case. We see no reason for reviewing that finding at this stage. Reconsideration of the contract issue seems particularly inappropriate here, because of all the forums in which this case has been heard, including this court, the arbitration proceeding was the one most suitable — and the one bargained for — to determine the meaning of the collective bargaining agreement in this respect. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). See generally Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123 (3d Cir. 1969). Thus we have not the slightest doubt that the employer’s decision to enhance Stritzinger’s punishment, without a legitimate business reason, and based solely on his union office, constituted a violation of § 8(a)(3). Ironically, however, we reach a result consistent with the majority of the Board panel, even though the panel relied on precedent overruled by this court’s decision in Gould, Inc. v. NLRB, 612 F.2d 728 (3rd Cir. 1979), cert. denied, 449 U.S. 890, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980). We do not, however, mean to express any lack of support for our decision in Gould and its underlying reliance on the reasoning of Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227 (7th Cir. 1979). Gould established that where a collective bargaining agreement explicitly requires union officers and representatives to use every reasonable effort to terminate an unauthorized “work stoppage,” an employer may single out for disciplinary discharge a union steward who fails to take affirmative steps to terminate that work stoppage. Gould, Inc. v. NLRB, 612 F.2d at 730 & n.3. Gould is not, of course, directly applicable here because Stritzinger had no such contractual duty, and the arbitrator so found. Somewhat closer to this case, but still tangential, is Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227 (7th Cir. 1979), the decision from which Gould adopted its reasoning. Indiana also permitted an employer to discipline union stewards more severely than rank-and-file members for participating in unauthorized refusals to work, because participation in the unlawful strike by the stewards constituted not only a violation of their duties as employees, but a repudiation of their responsibilities as union officials. 599 F.2d at 230. However, the contract in Indiana was somewhat less emphatic, and less specific, in spelling out the duties of union officers than was the contract in Gould. In Gould, the contract required that [i]n the event of an illegal, unauthorized or uncondoned strike, work stoppage, interruption or impeding of work, the Local and International Union and its officers shall immediately take positive and evident steps to have those involved cease such activity. These steps shall involve the following: Within not more than twenty-four (24) hours after the occurrence of any such unauthorized action, the Union, its officers and representatives shall publicly disavow same by posting a notice on the bulletin boards throughout the plant. The Union, its officers and representatives shall immediately order its members to return to work, notwithstanding the existence of any wild-cat picket line. The Union, its officers and representatives shall refuse to aid or assist in any way such unauthorized action. The Union, its officers and representatives, will in good faith, use every reasonable effort to terminate such unauthorized action. 612 F.2d at 730 n.3. In Indiana, on the other hand, the contract, in general language, merely stated that the employees covered by this Agreement... will not be called upon or permitted to cease or abstain from the continuous performance of the duties pertaining to the positions held by them 599 F.2d at 228. In a case where no anti-union motive is shown, held Judge Tone, disparate punishment of union officials covered by such an agreement could not be considered “inherently destructive” of important employee rights. Id. at 232. Indiana thus suggests a short step beyond Gould. It allows a court to find that an employee’s status as a union official carries responsibilities to take affirmative steps to prevent unlawful work stoppages, even absent the emphatic and unmistakably clear language of individual duty in Gould. Both parties now before us seemed to urge at oral argument that we take this progression to its limit; they urge us to read in Indiana a rule allowing employers to single out for harsher punishment union officials who merely participate in illegal strikes regardless of the language in their collective bargaining agreements. Of course, such an extension would foster the unacceptable result that employers and unions could no longer agree upon the responsibilities under the contract of union officials. Instead, an inflexible approach would be compelled in every case, regardless of the particular circumstances. Not only do we reject that approach as unsound, but we also note that the factual context in which Indiana arose would forbid us from reading it as anything more than a determination that, within the context of the labor agreement there at issue, the actions of the union stewards violated duties with which the rank-and-file were not burdened. Given that the “status” of union stewardship, without more, is not a criterion upon which discipline is warranted, 599 F.2d at 230, then whether responsibility does, or does not, accompany the status of union stewardship is a conclusion that must be reached by construing the contract, rather than a condition dictated purely by operation of law. The decision in Indiana was tied to contract language that imposed a higher duty on union stewards than the duty imposed on Stritzinger by the labor contract in this case. Here, the contract stated only that “[t]he Union agrees that there will be no strikes, slowdowns, or work stoppages.” In Indiana, on the other hand, the agreement specifically noted that the services to be provided were essential to the operation of a public utility, “and to the welfare of a public dependent thereon.” Thus the contract, “in consideration” of this strong public interest, provided that employees “will not be called upon or permitted to cease or abstain from the continuous performance of their jobs.” 599 F.2d at 228 (emphasis supplied). By use of this language, the contract implicitly differentiated between two tiers of union membership— those who could engage in strike activity, and those who could wield the additional power to promote or deter strike activity by others — and imposed higher duties on members of the latter tier. Even arguing strictly from the face of the contract in this case, it would thus be technically consistent to conclude that Stritzinger’s punishment here penalized the exercise of a protected right, while the differential punishments in Indiana did not. But we have more to go on, here, than the mere face of the contract. In this case the arbitrator made specific findings that negated the inference that any “higher responsibilities” accompanied Stritzinger’s status as a union steward. Thus, the result we reach is not at all inconsistent with Gould and Indiana. Nor do we see any need to reconsider our decision in Gould. The Board argues vigorously on this appeal that it is improper to allow an employer to enforce the special anti-strike obligations of union officials through the sanction of discharge. It argues that the breach of such an obligation is an internal union matter and that “a major policy of the Act is to ‘insulate employees’ jobs from their organizational rights’ and to permit them to be ‘good, bad or indifferent members... without imperiling their livelihood.’ ” Brief for the NLRB 17 (quoting Radio Officers’ Union v. NLRB, 347 U.S. 17, 40, 74 S.Ct. 323, 335, 98 L.Ed. 455 (1954)). Because we have already determined that Stritzinger violated no special anti-strike obligation as union official, it is unnecessary, in the strict sense, for us to reiterate here our view of how an employer may enforce that obligation. However, we caution the Board that insofar as Gould holds that an employer may use discipline as a means of enforcing the individual duties of union officials, we continue to adhere to that precedent. IV. Having concluded that the arbitrator clearly failed to decide the statutory issue in this case, and that therefore the Board did not abuse its discretion in failing to defer, we express no opinion whether the arbitrator’s award was or was not, in any sense, “clearly repugnant to the purposes and policies of the Act.” The Board’s order will be enforced insofar as it requires the employer to treat Stritzinger, Hughes, and Gallagher on an equal basis. The petition for review will be denied. . By letter Hammermill notified Stritzinger that: As a result of your refusal to perform the work assignment given to you by your Foreman and the General Foreman on February 18, 1979, specifically, to prepare materials for a fire at the Woodroom Jackladder, and, additionally, your failure to take affirmative action as a Union Representative in the face of a concerted action in the violation of Article IV, para, (a), your employment with Hammermill Paper Company is terminated. . The arbitrator did not find the prior reprimands an insufficient ground for enhancing the punishment by adding an extra 4'/2 months of suspension. Thus, the arbitrator’s award might arguably have been read as finding that the added suspension period was justified by the prior reprimands. . Even under the Board’s view of § 8(a)(3), and clearly under the Third Circuit’s view, such instigation would have been grounds for differential punishment of a union steward. E. g., Midwest Precision Castings Co., 244 N.L.R.B. 597 (1979). However, Board precedents indicated that absent instigation by Strizinger, Hammermill’s stated reason for discharge would not have passed muster under § 8(a)(3). E. g., Precision Castings Co., 233 N.L.R.B. 183 (1977). See also Westinghouse Elec. Corp., 243 N.L.R.B. 306, 312 n.32 (1979), enforced mem. sub nom. International Union of Elec., Radio & Mach. Workers v. NLRB, No. 79-1707 (D.C. Cir. Dec. 5, 1980), cert. denied,-U.S.-, 101 S.Ct. 3122, 69 L.Ed.2d 980 (1981). Courts of appeals, on the other hand, have taken a view more favorable to employers. As of the date the Board’s order was entered, the rule of Precision Castings had been rejected by the Third and Seventh Circuits. Gould, Inc. v. NLRB, 612 F.2d 728 (3d Cir. 1979), cert. denied,-U.S.-, 101 S.Ct. 247, 66 L.Ed.2d 115 (1980); Indiana & Mich. Elec. Co. v. NLRB, 599 F.2d 227 (7th Cir. 1979). Since that time, the Eighth Circuit seems to have followed the Third and Seventh. See NLRB v. Armour-Dial, Inc., 638 F.2d 51, 55 (8th Cir. 1981). See Part 111 infra. . Said the ALJ: “I credit the three employee witnesses, of course, and I find Stritzinger did not provoke, or in any way cause or encourage the other eight men to strike.” Said the arbitrator: “[T]here is no evidence before me to indicate that Stritzinger was the ring leader on the evening in question. In that sense, the company’s basis of differentiation fails.” Finally, at oral argument before this court, Hammermill’s counsel all but conceded the issue: “1 think that the so-called leadership issue is really a red herring and I will concede it may be one that we fished for a bit.” . There is ample evidence to support the finding that Hammermill’s post hoc assertion as to its reason for dismissing Stritzinger — that he allegedly instigated the illegal action — was, at best, unfounded. See note 4 supra. Consequently, we see no basis for rejecting that finding, which was reached by both the ALJ and the arbitrator. We proceed, then, on the assumption that Hammermill fired Stritzinger for the reasons stated in its letter of discharge. See note 1 supra. . Because reinstatement without backpay failed to eliminate the disparity between Hammermill’s treatment of Stritzinger, on the one hand, and Hughes and Gallagher, on the other, the unfair labor practice issue plainly survived the arbitral award of reinstatement. The issue to which we refer is, of course, not whether the arbitrator’s decision to reinstate Stritzinger without backpay was itself an unfair labor practice, but rather whether Stritzinger’s 4'/z -month layoff without pay was the enduring consequence of the initial illegal discharge. Thus we cannot agree with the dissent when it suggests that, given the reduction of the discharge sanction to a 5-month suspension prior to any proceedings before the Board, compliance with the reinstatement award necessarily insulated Hammermill’s conduct from further scrutiny under the NLRA. . See, e. g., NLRB v. Garry Mfg. Co., 630 F.2d 934, 945 (3d Cir. 1980); L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337, 1341 (9th Cir. 1980); NLRB v. Wilson Motor Freight Co., 604 F.2d 712, 722 (1st Cir. 1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1650, 64 L.Ed.2d 238 (1980); John Kiann Moving & Trucking Co. v. NLRB, 411 F.2d 261, 263 (6th Cir.), cert. denied, 396 U.S.

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"?

ARK DENTAL SUPPLY COMPANY is a copartnership consisting of Archie Sherman and Robert Sherman v. CAVITRON CORPORATION et al. Appeal of ARK DENTAL SUPPLY COMPANY. No. 71-1668. United States Court of Appeals, Third Circuit. Argued May 23, 1972. Decided May 25, 1972. 'A. E. Hurshman, Philadelphia, Pa., for appellant. Gerald Sobel, New York City, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appellee. Before STALEY, ALDISERT and HUNTER, Circuit Judges. OPINION OF THE COURT PER CURIAM: This appeal is from summary judgment entered in the district court, 323 F.Supp. 1145, in favor of defendants. Plaintiff-appellant alleged that the defendants had violated § 1 of the Sherman Act by conspiring to terminate their business relationship with appellant. Plaintiff had been distributing a product manufactured by Coles Electronic Corporation (“Coles”), a subsidiary corporation owned by Cavitron Corporation. In response to an order placed with Coles in July of 1970, plaintiff was advised by letter that sales of Coles products were being restricted to Clev-Dent, a division of Cavitron. The record shows that there are approximately 350 Clev-Dent dealers in the United States and five in the Philadelphia area where appellant does business. Plaintiff’s theory of recovery is that Cavitron conspired with Coles and ClevDent to restrict the sales of the Coles product exclusively to 350 dealers, thereby restraining trade and creating a monopoly. Plaintiff relies on the decisions of the Supreme Court in United States v. Arnold Schwinn & Co., 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), and Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). We do not view either Schwinn or Klors as applicable to the instant case. As was noted by the district court, the instant case bears no resemblance to Schwinn since here there are no restrictions imposed on territory or product and no restrictions on transfer of title or resale. Neither is this case controlled by Klors because here there is no wide combination of manufacturers and distributors whose objective is to drive the appellant out. of business. We deem the decision of the Ninth Circuit in Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (C.A.9, 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), to be dispositive of the instant case. In a thorough and well-researched opinion, the court, speaking through Judge Duniway, held that it is indisputable that a single manufacturer or seller can ordinarily stop doing business with A and transfer his business to B and that such a transfer is valid even though B may have solicited the transfer and even though the seller and B may have agreed prior to the seller’s termination of A. Here, there was nothing more than a business decision to sell only to the dealers of Cavitron’s Clev-Dent division. We can find no violation of § 1 of the Sherman Act in such a decision. See also Tripoli Co. v. Wella Corp., 425 F.2d 932 (C.A.3), cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62 (1970); Instant Delivery Corp. v. City Stores Co., 284 F.Supp. 941 (E.D.Pa.1968); Peerless Dental Supply Co. v. Weber Dental Mfg. Co., 283 F.Supp. 288 (E.D.Pa., 1968). The judgment of the district court will be affirmed. . There is ample authority for holding that the conspiracy required to find a § 1 violation cannot be found here since Clev-Dent is a division of Cavitron, and Coles and (’avitron have never held themselves out as competitors. Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 71 S.Ct. 259, 95 L.Ed. 219 (1951): Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (C.A. 9, 1969), cert. denied, 390 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Beckman v. Walter Kidde & Co., 316 F.Supp. 1321 (E.D.N.Y., 1970), aff’d per curiam, 451 F.2d 593 (C.A. 2, 1971).

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

TOILET GOODS ASSOCIATION, INC., et al. v. GARDNER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al. No. 336. Argued January 16, 1967. Decided May 22, 1967. Edward J. Boss argued the cause and filed a brief for petitioners. Nathan Lewin argued the cause for respondents. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg, Jerome M. Feit and William W. Goodrich. Mr. Justice Harlan delivered the opinion of the Court. Petitioners in this case are the Toilet Goods Association, an organization of cosmetics manufacturers accounting for some 90% of annual American sales in this field, and 39 individual cosmetics manufacturers and distributors. They brought this action in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief against the Secretary of Health, Education, and Welfare and the Commissioner of Food and Drugs, on the ground that certain regulations promulgated by the Commissioner exceeded his statutory authority under the Color Additive Amendments to the Federal Food, Drug, and Cosmetic Act, 74 Stat. 397, 21 U. S. C. §§ 321-376. The District Court held that the Act did not prohibit this type of pre-enforcement suit, that a case and controversy existed, that the issues presented were justiciable, and that no reasons had been presented by the Government to warrant declining jurisdiction on discretionary grounds. 235 F. Supp. 648. Recognizing that the subsequent decision of the Court of Appeals for the Third Circuit in Abbott Laboratories v. Celebrezze, 352 F. 2d 286, appeared to conflict with its holding, the District Court reaffirmed its earlier rulings but certified the question of jurisdiction to the Court of Appeals for the Second Circuit under 28 U. S. C. § 1292 (b). The Court of Appeals affirmed the judgment of the District Court that jurisdiction to hear the suit existed as to three of the challenged regulations, but sustained the Government’s contention that judicial review was improper as to a fourth. 360 F. 2d 677. Each side below sought review here from the portions of the Court of Appeals’ decision adverse to it, the Government as petitioner in Gardner v. Toilet Goods Assn., No. 438, and the Toilet Goods Association and other plaintiffs in the present case. We granted certiorari in both instances, 385 U. S. 813, as we did in Abbott Laboratories v. Gardner, No. 39, 383 U. S. 924, because of the apparent conflict between the Second and Third Circuits. The two Toilet Goods cases were set and argued together with Abbott Laboratories. In our decisions reversing the judgment in Abbott Laboratories, ante, p. 136, and affirming the judgment in Gardner v. Toilet Goods Assn., post, p. 167, both decided today, we hold that nothing in the Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, bars a pre-enforcement suit under the Administrative Procedure Act, 5 U. S. C. §§ 701-704 (1964 ed., Supp. II), and the Declaratory Judgment Act, 28 U. S. C. § 2201. We nevertheless agree with the Court of Appeals that judicial review of this particular regulation in this particular context is inappropriate at this stage because, applying the standards set forth in Abbott Laboratories v. Gardner, the controversy is not presently ripe for adjudication. The regulation in issue here was promulgated under the Color Additive Amendments of 1960, 74 Stat. 397, 21 U. S. C. §§ 321-376, a statute that revised and somewhat broadened the authority of the Commissioner to control the ingredients added to foods, drugs, and cosmetics that impart color to them. The Commissioner of Food and Drugs, exercising power delegated by the Secretary, 22 Fed. Reg. 1051, 25 Fed. Reg. 8625, under statutory authority “to promulgate regulations for the efficient enforcement” of the Act, § 701 (a), 21 U. S. C. § 371 (a), issued the following regulation after due public notice, 26 Fed. Reg. 679, and consideration of comments submitted by interested parties: “(a) When it appears to the Commissioner that a person has: “(4) Refused to permit duly authorized employees of the Food and Drug Administration free access to all manufacturing facilities, processes, and formulae involved in the manufacture of color additives and intermediates from which such color additives are derived; “he may immediately suspend certification service to such person and may continue such suspension until adequate corrective action has been taken.” 28 Fed. Reg. 6445-6446; 21 CFR § 8.28. The petitioners maintain that this regulation is an impermissible exercise of authority, that the FDA has long sought congressional authorization for free access to facilities, processes, and formulae (see, e. g., the proposed “Drug and Factory Inspection Amendments of 1962,” H. R. 11581, 87th Cong., 2d Sess.; Hearings before the House Committee on Interstate and Foreign Commerce on H. R. 11581 and H. R. 11582, 87th Cong., 2d Sess., 67-74; H. R. 6788, 88th Cong., 1st Sess.), but that Congress has always denied the agency this power except for prescription drugs. § 704, 21 U. S. C. § 374. Framed in this way, we agree with petitioners that a “legal” issue is raised, but nevertheless we are not persuaded that the present suit is properly maintainable. In determining whether a challenge to an administrative regulation is ripe for review a twofold inquiry must be made: first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied at that stage. As to the first of these factors, we agree with the Court of Appeals that the legal issue as presently framed is not appropriate for judicial resolution. This is not because the regulation is not the agency’s considered and formalized determination, for we are in agreement with petitioners that under this Court’s decisions in Frozen Food Express v. United States, 351 U. S. 40, and United States v. Storer Broadcasting Co., 351 U. S. 192, there can be no question that this regulation — promulgated in a formal manner after notice and evaluation of submitted comments — is a “final agency action” under § 10 of the Administrative Procedure Act, 5 U. S. C. § 704. See Abbott Laboratories v. Gardner, ante, p. 136. Also, we recognize the force of petitioners’ contention that the issue as they have framed it presents a purely legal question : whether the regulation is totally beyond the agency’s power under the statute, the type of legal issue that courts have occasionally dealt-with without requiring a specific attempt at enforcement, Columbia Broadcasting System v. United States, 316 U. S. 407; cf. Pierce v. Society of Sisters, 268 U. S. 510, or exhaustion of administrative remedies, Allen v. Grand Central Aircraft Co., 347 U. S. 535; Skinner & Eddy Corp. v. United States, 249 U. S. 557. These points which support the appropriateness of judicial resolution are, however, outweighed by other considerations. The regulation serves notice only that the Commissioner may under certain circumstances order inspection of certain facilities and data, and that further certification of additives may be refused to those who decline to permit a duly authorized inspection until they have complied in that regard. At this juncture we have no idea whether or when such an inspection will be ordered and what reasons the Commissioner will give to justify his order. The statutory authority asserted for the regulation is the power to promulgate regulations “for the efficient enforcement” of the Act, § 701 (a). Whether the regulation is justified thus depends not only, as petitioners appear to suggest, on whether Congress refused to include a specific section of the Act authorizing such inspections, although this factor is to be sure a highly relevant one, but also on whether the statutory scheme as a whole justified promulgation of the regulation. See Wong Yang Sung v. McGrath, 339 U. S. 33, 47. This will depend not merely on an inquiry into statutory purpose, but concurrently on an understanding of what types of enforcement problems are encountered by the FDA, the need for various sorts of supervision in order to effectuate the goals of the Act, and the safeguards devised to protect legitimate trade secrets (see 21 CFR § 130.14 (c)). We believe that judicial appraisal of these factors is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here. We are also led to this result by considerations of the effect on the petitioners of the regulation, for the test of ripeness, as we have noted, depends not only on how adequately a court can deal with the legal issue presented, but also on the degree and nature of the regulation's present effect on those seeking relief. The regulation challenged here is not, analogous to those that were involved in Columbia Broadcasting System, supra, and Storer, supra, and those other color additive regulations with which we deal in Gardner v. Toilet Goods Assn., post, p. 167, where the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs. See also Federal Communications Comm’n v. American Broadcasting Co., 347 U. S. 284. This is not a situation in which primary conduct is affected — when contracts must be negotiated, ingredients tested or substituted, or special records compiled. This regulation merely states that the Commissioner may authorize inspectors to examine certain processes or formulae; no advance action is required of cosmetics manufacturers, who since the enactment of the 1938 Act have been under a statutory duty to permit reasonable inspection of a “factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials; containers, and labeling therein.” § 704 (a). Moreover, no irremediable adverse consequences flow from requiring a later challenge to this regulation by a manufacturer who refuses to allow this type of inspection. Unlike the other regulations challenged in this action, in which seizure of goods, heavy fines, adverse publicity for distributing “adulterated” goods, and possible criminal liability might penalize failure to comply, see Gardner v. Toilet Goods Assn., post, p. 167, a refusal to admit an inspector here would at most lead only to a suspension of certification services to the particular party, a determination that can then be promptly challenged through an administrative procedure, which in turn is reviewable by a court. Such review will provide an adequate forum for testing the regulation in a concrete situation. It is true that the administrative hearing will deal with the “factual basis” of the suspension, from which petitioners infer that the Commissioner will not entertain and consider a challenge to his statutory authority to promulgate the regulation. Whether or not this assumption is correct, given the fact that only minimal, if any, adverse consequences will face petitioners if they challenge the regulation in this manner, we think it wiser to require them to exhaust this administrative process through which the factual basis of the inspection order will certainly be aired and where more light may be thrown on the Commissioner’s statutory and practical justifications for the regulation. Compare Federal Security Adm’r v. Quaker Oats Co., 318 U. S. 218. Judicial review will then be available, and a court at that juncture will be in a better position to deal with the question of statutory authority. Administrative Procedure Act § 10 (e) (B)(3), 5 U. S. C. § 706 (2)(C). For these reasons the judgment of the Court of Appettls is Affirmed. Mr. Justice Douglas dissents for the reasons stated by Judge Tyler of the District Court, 235 F. Supp. 648, 651-652. Mr. Justice Brennan took no part in the consideration or decision of this case. [For concurring opinion of Mr. Justice Fortas, see post, p. 174.] The Color Additive Amendments provide for listings of color additives by the Secretary “if and to the extent that such additives are suitable and safe . . . .” § 706 (b) (1), 21 U. S. C. § 376 (b)(1). The Secretary is further authorized to provide “for the certification, with safe diluents or without diluents, of batches of color additives . . . §706 (c), 21 U. S. C. §376 (c). A color additive is “deemed unsafe” unless it is either from a certified batch or exempted from the certification requirement, §706 (a), 21 U. S. C. §376 (a). A cosmetic containing such an “unsafe” additive is deemed to be adulterated, §601 (e), 21 U. S. C. §361 (e), and is prohibited from interstate commerce. § 301 (a), 21 U. S. C. § 331 (a). See 21 CFR §§ 8.28(b), 130.14r-130.26. We recognize that a denial of certification might under certain circumstances cause inconvenience and possibly hardship, depending upon such factors as how large a supply of certified additives the particular manufacturer may have, how rapidly the administrative hearing and judicial review are conducted, and what temporary remedial or protective provisions, such as compliance with a reservation pending litigation, might be available to a manufacturer testing the regulation. In the context of the present case we need only say that such inconvenience is speculative and we have been provided with no information that would support an assumption that much weight should be attached to this possibility. The statute and regulations are not explicit as to whether review would lie, as Judge Friendly suggested, 360 F. 2d, at 687, to a court of appeals under §§ 701 (f) and 706 (d) of the Act, or to a district court as an appeal from the Commissioner’s “final order,” 21 CFR § 130.26, under § 10 of the Administrative Procedure Act. See 21 CFR § 130.31; compare §505, 21 U. S. C. §355. For purposes of this ease it is only necessary to ascertain that judicial review would be available to challenge any specific order of the Commisioner denying certification services to a particular drug manufacturer, and we therefore need not decide the statutory question of which forum would be appropriate for such review. Petitioners also cite the Commissioner’s refusal, in the context of a public hearing on certain drug regulations, to entertain objections to his statutory authority to promulgate them on the ground that “This is a question of law and cannot be resolved by the taking of evidence at a public hearing.” 31 Fed. Reg. 7174. See 3 Davis, Administrative Law Treatise §20.03, at 69 (1958).

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?

PAWLAK, John A. and Stafford, James, v. GREENAWALT, Charles E., Local Union No. 764, Teamsters, Chauffeurs, Ware-housemen, and Helpers, Teamsters Joint Council No. 53 and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. Appeal of Charles E. GREENAWALT and Teamsters Local 764. Appellants in No. 82-3350. Appeal of INTERNATIONAL BROTHERHOOD OF TEAMSTERS. Appellant in No. 82-3552. Nos. 82-3350, 82-3352. United States Court of Appeals, Third Circuit. Argued March 7, 1983. Decided July 29, 1983. Ira H. Weinstock, Paul J. Dellasga (argued), Ira H. Weinstock, P.C., Harrisburg, Pa., for appellants Charles E. Greenawalt and Teamsters Local No. 764. Paul Alan Levy (argued), Alan B. Morrison, Arthur J. Fox, II, Public Citizen Litigation Group, Washington, D.C., for appellees John A. Pawlak and James Stafford. Robert M. Baptiste (argued), Gary S. Witlen, Charles S. DeAngelo, Washington, D.C., John J. Dunn, Sr., Scranton, Pa., for appellant Intern. Broth, of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Before SEITZ, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. This case involves the district court’s award of attorneys’ fees and costs to union members who filed an action to redress their rights under Title I of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-531. We are asked to decide whether the district court abused its discretion in awarding attorneys’ fees and whether it erred in determining the amount awarded. We will affirm in part and remand in part. I. In 1976 John A. Pawlak brought an action against his Union, Local 764 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 764), seeking equitable relief and damages under Section 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185, for an alleged breach of its duty of fair representation. Pawlak v. Intern. Broth. of Teamsters, Etc., 444 F.Supp. 807, aff’d mem., 571 F.2d 572 (3d Cir.1978). The district court dismissed Pawlak’s action because he failed to exhaust the Union’s internal grievance and arbitration procedures as required by Section 301 of LMRA. Id. at 812. Relying on Article XIX, § 12(b) of the Union’s Constitution which authorizes the Union to recover all costs and expenses it incurs in successfully defending an action brought by one of its members who failed to exhaust internal Union remedies, the Executive Board of Local 764 assessed Pawlak $2,635 in legal expenses. In January 1978, Pawlak, James A. Stafford and other members of Local 764 proposed amendments to the Union’s bylaws. Prior to the April 1978 vote on the proposed amendments, Local President Greenawalt sent a letter to the local rank and file advising the members to reject the proposed amendments. Pawlak and Stafford then requested access to the membership list and union funds to finance a counter-mailing in support of the amendments. The Executive Board refused both requests. Pawlak and Stafford filed this second action in October 1978 against Local 764, Greenawalt as President of Local 764, the Teamster’s Joint Council No. 53 and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (International). The first of the two-count complaint alleged that the defendants violated LMRDA, 29 U.S.C. § 411(a)(4), by fining Pawlak $2,635 to recover the expenses Local 764 incurred in defending against his 1976 action. Joint Appendix (J.A.) at 121-24. The second count alleged that Joint Council No. 53, Local 764 and Greenawalt denied Pawlak’s and Stafford’s right to express their views and to participate in the 1978 bylaw referendum in violation of 29 U.S.C. §§ 411(a)(1) and (a)(2) and 501. J.A. at 124-27. Local 764 counterclaimed against Pawlak for the $2,635 in legal fees it had assessed against him. After Council No. 53 was dismissed from the action, the remaining parties moved for summary judgment. The district court granted plaintiffs’ motion for summary judgment. Pawlak v. Greenawalt, 477 F.Supp. 149 (M.D.Pa.1979), aff’d, 628 F.2d 826 (3d Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). The court declared that Article XIX, § 12(b) of the Union’s Constitution violated 29 U.S.C. § 411(a)(4) because it limited the Union member’s right to sue. 477 F.Supp. at 151. The court therefore enjoined defendants from enforcing Article XIX, § 12(b) and from collecting the fine imposed upon Pawlak. Id. It also granted plaintiffs’ request for an additional order directing the International to publicize this order in its monthly magazine. Id. Count two was resolved in 1979 by a consent order. J.A. at 164-66. Plaintiffs waived their claim for damages, but they were granted equal access to union resources to promote bylaw proposals in 1980. Id. at 165. If the Union sent a mailing to rank-and-file members at Union expense, it was required to afford plaintiffs the opportunity at Union expense to insert a letter in the mailing in support of their proposed bylaw amendments. Id. After the district court’s judgment was affirmed and the Supreme Court denied certiorari, plaintiffs filed an application for attorneys’ fees and costs. They asked for $33,844.35 in attorneys’ fees and $1,578.66 in costs for the original action. Id. at 3. However, the parties to count two entered into a settlement agreement that relieved Greenawalt of all liability for attorneys’ fees, that relieved Local 764 of all liability for attorneys’ fees related to count one, that fixed the amount of fees to be awarded in regard to count two at $4,000 and which limited the issues to be decided by the court with respect to this count to two: whether plaintiffs were the prevailing parties on count two and whether the litigation with respect to count two created a substantial common benefit for the members of Local 764. Id. at 349-54. The agreement also stipulated the record upon which these issues were to be decided. Consequently, the fee application is divisible as to the two counts. Plaintiffs seek an award as to count one from the International. They seek an award as to count two from Local 764 and Charles Greenawalt. They also asked for fees and costs for work on the fee application. Id. at 3. II. Title I of LMRDA contains no provision for an award of attorneys’ fees. However, the Supreme Court recognized a decade ago in Hall v. Cole, 412 U.S. 1, 7-9, 93 S.Ct. 1943, 1947-48, 36 L.Ed.2d 702 (1973), that reimbursement of the successful plaintiff’s attorneys’ fees in an action to vindicate rights under Title I of LMRDA is authorized under the common benefit doctrine affirmed in Mills v. Electric Auto-Lite, 396 U.S. 375, 393-97, 90 S.Ct. 616, 626-28, 24 L.Ed.2d 593 (1970). This doctrine applies when “the plaintiff’s successful litigation confers ‘a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them.’ ” Hall v. Cole, 412 U.S. at 5, 93 S.Ct. at 1946, quoting Mills v. Electric Auto-Lite, 396 U.S. at 393-94, 90 S.Ct. at 626. The Court explained how LMRDA cases could come within the common benefit doctrine. Noting that Title I of LMRDA “was specifically designed to promote the ‘full and active participation by the rank and file in the affairs of the union,’ ” Hall v. Cole, 412 U.S. at 7-8, 93 S.Ct. at 1947, quoting American Federation of Musicians of the United States and Canada v. Wittstein, 379 U.S. 171, 182-83, 85 S.Ct. 300, 306-07, 13 L.Ed.2d 214 (1964), the Court concluded that a member’s vindication of his own right of participation in union affairs “necessarily rendered a substantial service to his union as an institution and to all its members.” Hall v. Cole, 412 U.S. at 8, 93 S.Ct. at 1947. The Court also explained that the award of attorneys’ fees would be paid out of the union treasury and thus shifted the cost of the litigation to the class benefited by it. The Court held, therefore, “that an award of counsel fees to a successful plaintiff in an action under § 102 of the LMRDA falls squarely within the traditional equitable power of federal courts to award such fees.... ” Id. at 9, 93 S.Ct. at 1948. With the exception of local counsel Bruce F. Bratton, plaintiffs’ attorneys in this case are employed by a public interest organization, Public Citizen Litigation Group, an arm of Public Citizen, Inc. which is an umbrella organization engaging in a wide variety of public interest activity. J.A. at 3, 31. Public Citizen, Inc. provides the funding for Public Citizen Litigation Group, and it also pays the expenses incurred by attorneys employed by Public Citizen Litigation Group. Because they are salaried employees, plaintiffs’ attorneys will not directly receive the attorneys’ fees awarded in this case; the award will be turned over to Public Citizen, Inc. Id. at 3-4, 32. The district court referred the application to a magistrate for a report and recommendation. The magistrate recommended that the fee application be denied in its entirety because plaintiffs’ counsel failed to keep adequate time records and to make proper allocations among the two claims and the various parties, id. at 85, and because the settlement agreement produced no substantial common benefit. Id. at 85-86. In the alternative for count one, the magistrate recommended an award for fees at a reduced hourly rate in the amount of $10,-287.50 and costs of $1,036.59 reduced by 25% to $7,815.61 and $744.77 because of plaintiffs’ counsels’ failure to keep adequate records and to make proper allocations among claims and parties. Id. at 85. In the alternative for count two, he recommended an award of fees and costs of $4,000 against Local 764 alone. The magistrate recommended that under no circumstances should fees and costs be awarded for the work performed on the fee application. Id. Based upon a de novo review of the record pursuant to 28 U.S.C. § 636(b)(1), the district court rejected the magistrate’s recommendations. J.A. at 4. The court reviewed the recommendations as to each count separately. It found that the resolution of count one “unquestionably conferred upon all of the membership of International at the very least the benefit of removing a chill cast upon the rights of all union members to institute court actions in order to vindicate their rights.” Id. at 7. It also found that the cost of the award would be borne by the Union members who were benefited by the action. Relying on Hall v. Cole, supra, the district court concluded that plaintiffs met the threshold requirements of Title I of LMRDA, 29 U.S.C. § 412 for an award of attorneys’ fees. The court also found that the time “records kept by counsel Levy and Fox are adequate in most respects to support the award of fees for the time reflected in those records and that the time is also adequately allocated by counsel between the counts.” J.A. at 9. However, it did deny an award for the time submitted by counsel Bratton, Sims and Morrison because they failed to keep any time records. Id. The court also rejected the magistrate’s recommendation denying the request for fees for time spent on the fee application. Characterizing plaintiffs’ action as a vindication of “the civil rights of union members,” id. at 10, the district court awarded fees for the time spent on the fee application. Id. Moreover, it concluded that the [requested] hourly rates for Levy and Fox are reasonable rates for attorneys similarly situated geographically and in terms of experience, education, and quality of the work performed. Id. at 11. These rates are as follows: Levy (Pre-January 1980) $65.00 Levy (post-January 1980) 75.00 Fox 90.00 The court thus calculated the amount of the award by multiplying the hours submitted by Levy and Fox by the rates requested: Hours Rate Levy (Pre-January 1,1980) 116.25 $65.00 $ 7,556.25 Levy (Post-January 1,1980) 245.00 75.00 18,375.00 Fox 62.00 90.00 $ 5,625.00 TOTAL $31,556.25 Id. at 12. However, it denied plaintiffs’ request to increase the fee to reflect its contingent nature or to reflect the quality of counsel’s work. Id. at 12-13. Finally, it awarded costs of $1,036.59 to reimburse counsel for amounts expended on matters relating to count one. Id. at 14. The court similarly rejected the magistrate’s recommendation concerning count two. It found that plaintiffs were the prevailing parties because the settlement agreement embraced the relief they sought. Id. at 16. It also found that in requiring Union officers to “give union members ‘equal time’ to express their views at union expense,” id. at 15 (emphasis in original), the settlement agreement conferred a significant common benefit upon plaintiffs and all Union members. Id. at 15-16. It therefore awarded attorneys’ fees for count two as prescribed by the settlement agreement. Id. at 15-16. The district court later amended its award of $32,592.84 in fees and costs to $38,338.84. Id. at 18-25. The court acknowledged that it erred in concluding that counsel Sims failed to keep time records. The record shows that Sims kept time records from August 8, 1981 forward. Id. at 22. The court therefore granted Sims’ request for counsel fees of $3,013.60 computed at the rate of $80.00 per hour. Id. at 23. The court also awarded an additional $3,525.00 for time spent by counsel Levy in regard to plaintiffs’ exceptions to the magistrate’s report concerning count one. Id. at 22-24. The court thus awarded a total of $38,338.84 in attorneys’ fees and costs. The named defendants now appeal from the district court’s orders. We are asked to decide if the district court abused its discretion in awarding attorneys’ fees and costs to the named plaintiffs with respect to the underlying action. We are also asked to determine if the district court erred in awarding attorneys’ fees and costs for the work performed on the application for fees and costs. III. The standard of review of a district court’s award of attorneys’ fees was enunciated by this court in Lindy Bros. Bldrs., Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 166 (3d Cir.1973) (Lindy I) and affirmed in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 115-116 (3d Cir.1976) (Lindy II). The court held in Lindy I: In awarding attorneys’ fees, the district judge is empowered to exercise his informed discretion, and any successful challenge to his determination must show that the judge abused that discretion... failure to adhere to proper standards and to follow appropriate procedures would constitute abuse of the district court’s discretion to award attorneys’ fees. Lindy I, 487 F.2d at 166. In Lindy II, we declared that “ ‘if the district court has applied the correct criteria to the facts of the case, then, it is fair to say that we will ordinarily defer to its exercise of discretion.’ ” Lindy II, 540 F.2d at 116, quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 756 (3d Cir.) (in banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). The proper standards and appropriate procedures to be followed by the district court in determining the amount of fees to be awarded were articulated in Lindy I: the number of hours spent on the litigation; the nature of the services involved; the value of the attorneys’ time based on a reasonable hourly rate; the contingent nature of success in the litigation; and “the extent, if any, to which the quality of an attorney’s work mandates increasing or decreasing the amount to which the court has found the attorney reasonably entitled.” 487 F.2d at 168. The following factors are to be considered in evaluating the quality of the attorneys’ work: “the complexity and novelty of the issues presented, the quality of the work that the judge has been able to observe, and the amount of the recovery obtained.” Id. These standards and procedures are summarized in Lindy II, 540 F.2d at 108. The district court “applied the correct criteria to the facts of the case.” Lin dy II, 540 F;2d at 116. Therefore, we may reverse the lower court only if we find that its decision was “irrational,” id. at 115, or was based upon an erroneous finding of fact. Id. at 116. Appellants contend that the court’s findings of fact were clearly erroneous because the time records lacked sufficient detail to provide the bases for a judicial determination of the exact time spent, the specific nature of the services used, or of an allocation of time between the counts and among the various parties. On some of these issues, however, appellants demand a degree of detail in the time records that is not required by law. We have said that in determining the time spent and the nature of legal services employed “[i]t is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted.... ” Lindy I, 487 F.2d at 167. Yet we do require “some fairly definite information as to the hours devoted to various general activities.... ” Id. This requirement of specificity is intended to permit the district court to determine if the hours claimed are reasonable for the work performed. The court’s focus in assessing the adequacy of submitted documentation, then, is whether the documentation permits the court to determine if the claimed fees are reasonable. This point was recently emphasized by the Court of Appeals for the District of Columbia in reversing a district court’s denial of attorneys’ fees for lack of adequate documentation. Jordan v. United States Dep’t of Justice, 691 F.2d 514 (D.C.Cir.1982). That court declared: Total denial of requested fees as a purely prophylactic measure, however, is a stringent sanction, to be reserved for only the most severe of situations, and appropriately invoked only in very limited circumstances. Outright denial may be justified when the party seeking fees declines to proffer any substantiation in the form of affidavits, timesheets or the like, or when the application is grossly and intolerably exaggerated, or manifestly filed in bad faith. Id. at 518. (Footnotes omitted.) Although Jordan involved a fee application by a successful litigant under the Freedom of Information Act, 5 U.S.C. § 552, its principle is similarly applicable in a case such as the one before us where a fee application is considered under the court’s equitable power. On the basis of the record before us, we cannot say that the district court abused its discretion in its award of attorneys’ fees. The time records that served as the bases of the reconstructed time summaries admittedly were not exemplary, see J.A. Yol. III. Still, our review of them leads us to conclude that the district court was not clearly erroneous or irrational in finding that these records were “adequate in most respects to support the award of fees for the time reflected in those records.” J.A. at 9. International challenges the district court’s allocation to it alone of all of the time spent on count one and its allocation of unspecified time equally to each count. These allocations were the product of the settlement reached between appellees Pawlak and Stafford and appellants Greenawalt and Local 764. See infra at 5. International was not a party to this agreement. International argues that it should not be held liable for attorneys’ fees relating to count one. It claims it was not a party to the litigation that gave rise to Pawlak’s claim for attorneys’ fees as to that count. This assertion is incorrect. Not only was the International a named defendant in the earlier actions, it actively participated in them and its counsel wrote all of the briefs on appeal. Pawlak v. Intern. Broth, of Teamsters, Etc., 444 F.Supp. at 809; Pawlak v. Greenawalt, 477 F.Supp. at 150; J.A. at 104. Judgments in these earlier actions and on appeal were entered against International as they were against the other defendants. Moreover, Local 764 and Greenawalt were agents of International and acted under authority of the International’s constitution. International cannot validly show that it was not a party to the litigation that gave rise to Pawlak’s petition for attorneys’ fees. Nevertheless, this Court has held that, in certain attorneys’ fees petitions involving various defendants, the district court must allocate among them the time chargeable to each defendant. Baughman v. Wilson Freight Forwarding Company, 583 F.2d 1208, 1214 (3d Cir.1978). In Baughman we declared: We do not believe that a defendant may be required to compensate a plaintiff for attorney hours devoted to the case against other defendants who settle or who are found not to be liable. Id. The same case also holds that the hours chargeable to the claims against other defendants are chargeable to a specific defendant if “plaintiff can establish that such hours also were fairly devoted to the prosecution of the claim against” that specific defendant. Id. at 1215. In addition, we have also rejected the simple allocation of liability for attorneys’ fees as a percentage among claims. In Hughes v. Repko, 578 F.2d 483, 486 (3d Cir.1978), we set aside a district court’s judgment which reduced by two-thirds the lodestar it awarded to plaintiffs who prevailed on only one of the three counts of their complaint. The district court erred in determining the attorneys’ fee award without having made a finding as to the time spent on the claim on which plaintiffs prevailed. We noted that there is no necessary relationship between the number of claims and contentions presented in a lawsuit and the lawyer time spent on each. Consequently, the approach adopted by the district court does not have a rational basis to commend it. Id. We held that the district court’s automatic reduction of the lodestar by two-thirds was legally impermissible. The district court failed to allocate time spent by appellants’ counsel as required by Baughman and Repko. Therefore, the district court erred in allocating all of the time spent on count one to International and in allocating unspecified time equally to each count. On remand the district court should determine the number of attorney hours attributable to each count. Of the time allocable to count one, the district court should determine the number of hours chargeable to International. We emphasize that Pawlak bears the burden of proving the number of hours allocable to count one and chargeable to International. Appellants also challenge the hourly rates that the district court determined were the proper rates to be applied to the hours worked in computing the lodestar. They claim that the court’s determination was based on the undocumented assertions of appellees’ counsel concerning the hourly rates prevailing in the community. They insist that these assertions were insufficient bases upon which a determination could be made. The district court, however, found that the rates submitted by appellants’ counsel were “reasonable rates for attorneys similarly situated geographically and in terms of experience, education, and quality of the work performed.” Id. at 11. This court has determined that the value of an attorney’s services is generally measured by his billing rate. Lindy I, 487 F.2d at 167. When an attorney is salaried, as are plaintiffs’ attorneys, and does not have an hourly billing rate, this court has held that, “[t]o the extent salary levels are relevant [to the determination of reasonable attorneys’ fees], the appropriate referent would be comparable salaries earned by private attorneys with similar experience and expertise in equivalent litigation.” Rodriguez v. Taylor, 569 F.2d 1231, 1248 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). The district court was thus obliged “to determine the reasonable hourly rate ‘prevailing in the community for similar work.’ ” National Ass’n of Concerned Veterans. v. Secretary of Defense, 675 F.2d 1319, 1324 (D.C.Cir.1982), quoting Copeland v. Marshall, 641 F.2d 880, 892 (D.C.Cir.1980) (in banc). In making this determination, the court was required to consider such factors as the expertise, experience, position and reputation of the attorneys involved. Baughman v. Wilson Freight Forwarding Co., 583 F.2d at 1216-17. The district court considered these factors in addition to counsels’ education and the quality of counsels’ work in making its determination. J.A. at 11. It based its determination on its “consideration of the undisputed facts of record in this matter together with the testimony given by [plaintiffs’ counsel and their affidavits submitted in support of the application for attorneys’ fees.” Id. at 11. Because the record supports the district court’s determination, we find that it was not clearly erroneous in its determination that the requested rates are reasonable hourly rates prevailing in the community for similar work. National Ass’n of Concerned Veterans v. Secretary of Defense, supra. IV. As to count two, we hold that appellees were the prevailing parties and that their settlement conferred a substantial common benefit on Union members. We find that the Consent Order contributed to a fair process in bylaws referenda. Its impact transcends the 1980 election, for it now stands as a precedent for subsequent bylaw referenda. Therefore, the benefit exists even though appellees’ 1980 bylaws proposals were defeated, and even though they were unable to use a Union-financed mailing of their views because Union officers decided not to send a mailing prior to the 1980 election. We view the Consent Order as a vindication of appellees’ right to free speech guaranteed by Title I of LMRDA which “necessarily rendered a substantial service to [their] union as an institution and to all of its members.” Hall v. Cole, 412 U.S. at 8, 93 S.Ct. at 1947. Appellants also argue that the Consent Order was personal because appellees were motivated by their desire for elective office, and the Consent Order improperly would have advanced their election goals. They insist that this motivation should preclude a judicial finding that their action conferred a substantial common benefit upon Union members. The Supreme Court rejected a similar objection to an award of attorneys’ fees. In Hall v. Cole, supra, a union claimed that a union member’s application for attorneys’ fees should be denied because he was motivated in bringing an action to vindicate his right to free speech under Title I, LMRDA, in part, by his desire to gain elective office. The Supreme Court rejected the union’s theory. It held that “Title I of the LMRDA was specifically designed to protect the union member’s right to seek higher office within the union.... ” Id. at 14, 93 S.Ct. at 1950. It therefore granted attorneys’ fees notwithstanding the personal election goals of the union member “because the litigation confers substantial benefits on an ascertainable class of beneficiaries.” Id. at 15, 93 S.Ct. at 1951. In this case, as in Hall v. Cole, supra, a substantial benefit was conferred upon Union members. In vindicating their rights of freedom of speech and of full and active participation in Union affairs, appellees in this ease, as the respondent in Hall v. Cole, dispelled the “chill” cast upon the rights of all Union members and contributed to the preservation of union democracy. The Supreme Court held that those achievements, notwithstanding personal political motivations, “necessarily rendered a substantial service to [their] union as an institution and to all its members.” Id. at 8, 93 S.Ct. at 1947. Consequently, the substantial benefit this litigation conferred upon Union members by vindicating their civil rights under Title I of LMRDA is not negated by appellees’ desire for elective office. Rather, they are mutually beneficial. Their personal ambitions in bringing the action in no way impedes the court from granting appellees’ petition for attorneys’ fees for work performed on count two: Finding that appellees were prevailing parties in count two and that the Consent Order conferred a substantial benefit on Union members, we will affirm the district court’s award of attorneys’ fees for the underlying litigation. V. The final issue before us is one of first impression. We are asked whether the district court erred as a matter of law in awarding attorneys’ fees for work performed on the application for attorneys’ fees in this nonstatutory common benefit action. We conclude that the district court did not err. Appellants argue that in nonstatutory common benefit actions fee awards are not permitted for time spent litigating the fee application. Their rationale relies on the common fund doctrine, which appellants claim is an identical doctrine, in which the successful plaintiff may recover only attorneys’ fees and costs incurred in creating, preserving or increasing the common fund. For the reasons stated below, we reject this rationale and hold that common benefit actions brought to vindicate civil rights conferred by Title I of LMRDA are distinguishable from common fund actions. Under the common fund theory, fees and costs may be awarded to a party who creates, preserves or protects a fund or property for the benefit of others in addition to himself. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). The fees and costs are paid out of the fund or property because the party seeking compensation benefited others who otherwise would unfairly enjoy the benefit without having shared the cost of acquiring the benefit. To avoid such unfairness, courts permit the costs to be shared by the class of individuals benefited by the action. Id. Attorneys’ fees and costs are not awarded for time spent on the fee application in common fund cases because the common fund or property is not benefited thereby. This court has held that the action for “attorneys’ fees under the equitable fund doctrine belongs to the attorney.” Lindy I, 487 F.2d at 165. The action benefits the attorney but not the fund because it does “not create, increase, protect or preserve it,” Lindy II, 540 F.2d at 111; rather, it would actually deplete the fund and, therefore, the benefit to plaintiff and the benefited class of individuals because the award would be paid out of the fund. We have therefore denied the award of fees and costs for time spent litigating a fee application under the common fund doctrine because the attorneys’ interests in the fee application litigation are in conflict with those of the individuals benefited by the common fund. Id. The rationale supporting the award of attorneys’ fees for the underlying litigation thus precludes an award of fees for the fee application in common fund actions. The United States District Court for the District of Delaware recently applied this rationale in denying fees and costs for a fee application in a common benefit doctrine action. Colpo v. General Teamsters Local Union 326 of the International Brotherhood of Teamsters, 531 F.Supp. 573 (D.Del.1982). The litigation was brought by a union member against his union claiming that the union wrongly disqualified him as a candidate for president of his local because he was delinquent in dues payment. The court found that the union violated the voting and candidacy rights of the union members under 29 U.S.C. § 481(e). The district court awarded petitioner counsel fees for work performed on the litigation, but denied counsel’s request for attorneys’ fees for work performed on the fee application. Id. at 577. The district court reasoned that the plaintiff is entitled to collect fees from the treasury of Local 326 only to prevent unjust enrichment of the Local’s membership which has enjoyed a legal victory at [plaintiff’s] expense. Id. The court asserted that “[i]n such ‘benefit’ conferred cases, the Third Circuit has denied recovery for time spent in litigating a fee application.” Id., citing Lindy II, 540 F.2d at 111. The district court declared: The theory is that while counsel’s efforts in securing a judgment conferred a benefit on the group who should share the expense of securing it, once the merits are resolved, the group receives no additional benefits from the attorney’s effort to secure a counsel fee award. Indeed, at that point, “the attorney’s interest becomes adverse to the interest of the class which he represents.” Id., quoting Prandini v. National Tea Co., 585 F.2d 47, 53 (3d Cir.1978). The district court thus applied the common fund theory to the common benefit theory in denying attorneys’ fees for the time spent on the fee application. Another district court reached the opposite result under a different rationale in an earlier case. Cole v. Hall, 376 F.Supp. 460 (E.D.N.Y.1974). Successful plaintiffs in the seminal LMRDA attorneys’ fee case, Hall v. Cole, supra, brought an action for supplementary attorneys’ fees for services, inter alia, rendered in preparing the appeal to the Supreme Court pursuant to the application for attorneys’ fees. The district court granted attorneys’ fees

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

FORBUSH CO. v. BARTLEY et al. No. 1206. Circuit Court of Appeals, Tenth Circuit. June 27, 1935. Benjamin F. Koperlik, of Pueblo, Colo., for appellant. A. T. Stewart, of Pueblo, Colo., for appellees. Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges. McDERMOTT, Circuit Judge. Appellant filed two claims against the bankrupt estate of The Polar Ice Cream Company, one for $24,500 evidenced by a note given shortly before bankruptcy in alleged renewal of prior notes; one for $21,261.53, balance of an alleged open account for rent, refrigeration, oil and gas, interest, ice, and labor. The referee disallowed the claims after an extensive audit of the books and a lengthy hearing, and the trial court confirmed the referee’s findings and order. The referee, in disallowing the claims, commented on the fact that there were so many erasures and breaks in continuity in the books of account, and so many important records missing, that a substantial doubt was raised as to the integrity of the records relied upon to prove the claims; he also found that the bankrupt was an instrumentality of appellant used to work a fraud upon other creditors. Appellant argues that the uncontradicted testimony, supported by the books of account, conclusively establishes its claim. While the scope of the review on appeals taken under section 25 of the Bankruptcy Act, as amended by Act May 27, 1926, 11 USCA § 48, is not as narrow as in those taken under 24b, as amended by Act May 27, 1926, 11 USCA § 47(b), yet this court can not try de novo all contested claims in bankruptcy. Where there is substantial conflict in the testimony, or where different conclusions may reasonably be drawn, a finding of fact by the referee, particularly where based on testimony of witnesses on the stand, will not be disturbed on appeal unless it clearly appears that the finding is erroneous or .resulted from a mistaken view of the law. Where the trial court has approved the finding, the presumption of correctness is strengthened. Jones v. Clower (C. C. A. 5) 22 F.(2d) 104; Monson v. Hibler (C. C. A. 9) 24 F.(2d) 909; In re Ben Boldt, Jr., Floral Co. (C. C. A. 10) 37 F.(2d) 499; Beneke v. Moss (C. C. A. 4) 46 F.(2d) 948; Maners v. Ahlfeldt (C. C. A. 8) 59 F.(2d) 938; Manufacturers Acceptance Corp. v. Hale (C. C. A. 6) 65 F.(2d) 76; Alexander v. Theleman (C. C. A. 10) 69 F.(2d) 610; Rasmussen v. Gresly (C. C. A. 8) 77 F.(2d) 252. Since the burden of proof was upon appellant, there can be no reversal unless the evidence in support of its claim is so convincing that we can fairly say that there is no reasonable ground for difference of opinion concerning it. The claims being founded on transactions between closely affiliated corporations, they must be subjected to rigid scrutiny, Western Distributing Co. v. Public Service Comm., 285 U. S. 119, 52 S. Ct. 283, 76 L. Ed. 655; Alexander v. Theleman, supra; Howland v. Corn (C. C. A. 2) 232 F. 35; Ohio Valley Bank Co. v. Mack (C. C. A. 6) 163 F. 155, and even uncontradicted evidence, if discredited or improbable, need not be accepted as true. Rasmussen v. Gresly, supra: Reiss v. Reardon (C. C. A. 8) 18 F.(2d) 200. Since 1925 appellant has owned 14,000 of the 17,000 shares of the bankrupt’s com-* mon stock outstanding, and 9500 of the 11,500 shares of preferred. Appellant sublet a part of its business premises to the bankrupt, sold ice, oil, and refrigeration to it, and loaned it money. The bankrupt sold some of its products to appellant. Forbush was president of both companies and active in the management of both. Bliesner, the other stockholder of the bankrupt, was general manager in name of the bankrupt but early in 1932 Forbush installed his son-in-law in the bankrupt’s office who relieved Bliesner of some of his responsibility. The - autocratic control of Forbush over the bankrupt is indicated by the circumstance that the refrigeration furnished bankrupt by appellant, for which claim is now made, was so imperfect that from 10 to 15 gallons of ice cream a day were spoiled, resulting in an aggregate loss of large sums and many dissatisfied customers. This poor refrigeration commenced as far back as 1928 and became increasingly worse until bankruptcy intervened in December, 1932. Bliesner complained to Forbush about it repeatedly, but the condition was not corrected. The books of the bank carrying the accounts of these affiliated companies leave no doubt that many years ago appellant loaned the bankrupt moneys as claimed, and the fact is not disputed that appellant extended credit from time to time to the bankrupt. But that money was once loaned, or credit once extended, does not mean that it is still owing. We are concerned with the state of the account in December, 1932, and not as it stood in 1925. The referee was not bound to accept as true statements of Forbush or his employees ; more, he would not have been justified in doing so. Forbush and his counsel admit that on the eve of bankruptcy they forged minutes of directors’ meetings purporting to authorize increased salaries to Forbush and others; falsified the books of account to correspond, altering some and removing some loose-leaf ledger sheets; assigned to themselves accounts receivable to secure these fictitious salaries in fraud of the creditors — criminal offenses for which the guilty have been convicted. Brayton v. United States (C. C. A. 10) 74 F.(2d) 389. The referee had to deal, then, with one who is willing to defraud creditors and to forge books of account. Certainly it cannot be said that claims, supported by the testimony of such men and books which have been doctored in vital respects, have been incontrovertibly proven. Peculiarly, too, is this a case where the experienced referee’s judgment on facts should not be lightly disturbed. Even the lifeless record indicates evasive witnesses with conveniently poor memories when the questions became embarrassing; but we have not had the opportunity to observe what answers, if any, were given with spontaneous candor, and what with studied evasiveness. Other incidents of the trial, including circumstances under which a missing book of account was rediscovered, gave the referee a decided advantage over this court in passing upon the integrity of these claims. But even the record discloses enough. A disinterested auditor, appointed by the referee, who spent 21 days in an audit of all the books, stated in his report that “many of the essential and important records of the Polar Ice Cream Company could not be found.” “The check register from March, 1927, to March, 1929, could not be located.” “Purchase records were located and checked, March, 1925, to December 31, 1925, such records being missing from January 1, 1926, to May, 1929, except for a few entries appearing in the volume of the check register prior to March, 1927, as above referred to.” “Cash and check records prior, to 1927, however, could not be located.” “The fact that many important records and supporting data for the accounts could not be located, has made it a very difficult task to ascertain the real facts underlying the transactions between these affiliated companies.” “In numerous instances the integrity of the records has been brought into question by the many erasures and changes that have been found. This applies not only to records of the Polar Ice Cream Company, but in several instances was observed in the records of the Forbush Company, involving transactions with the Polar Ice Cream Company.” Checks issued during two entire years when business generally was at its peak, might well disclose payment of indebtedness then existing. They might well disclose a sufficient balance the other way to offset later advances. The bookkeeper testified that she had substituted pages in the journal at the request of and in the presence of Forbush; Bliesner and Brayton, attorney for For-bush, testified that ledger sheets were taken out and others substituted .at the time • the company took bankruptcy. Forbush testified he knew of the substitutions at the time he first testified the books were cor-’ rect. There is more, much more; but it is enough to say that the creditors of this estate should not be despoiled by allowing the claims of a parent'company supported by confessedly forged books and the testimony of those confessedly guilty of an effort to defraud creditors, and where the most important records — those of payments — are lost and unaccounted for. Bankruptcy may not have been contemplated when the credits were extended; but the books disclosing the truth of these intercorporate transactions may well have been altered or lost on the eve of bankruptcy, while the officers were engaged in the task of overhauling the books to dis- . close other indebtedness not in fact incurred. The referee also concluded that the bankrupt was a mere adjunct of appellant or a device used by appellant to defraud other creditors. While corporations are separate entities in the eyes of the law, courts are not blinded by formal doctrine, and if in truth and fact one corporation is but an instrumentality of another, the courts treat it as such; nor does the doctrine stand as an insurmountable barrier when courts are called upon to redress or prevent fraud. The courts, in their quest for truth, have looked through the form to get at the substance in a great variety of cases, in four of which at least the precise question here has been present-' ed. In each it was held that a parent- could not share with other creditors in distributing the estate of the bankrupt child. Edward Finch Co. v. Robie (C. C. A. 8) 12 F.(2d) 360; In re Muncie Pulp Co. (C. C. A. 2) 139 F. 546; Gay v. Hudson River Elec. P. Co. (C. C. A. 2) 187 F. 12; Clere Clothing Co. v. Union Trust & Sav. Bank (C. C. A. 9) 224 F. 363; Remington on Bankruptcy, vol. 4, § 1538. If the capital of the bankrupt represented money or property paid in by the stockholders, if appellant honestly extended credit to it in due course, if there was no intent to defraud creditors, if there was no concealment or misrepresentation, a different rule applies. Finn v. George T. Mickle Lumber Co. (C. C. A. 9) 41 F.(2d) 676; Wheeler v. Smith (C. C. A. 9) 30 F.(2d) 59; Peckett v. Wood (C. C. A. 3) 234 F. 833; In re Watertown Paper Co. (C. C. A. 2) 169 F. 252. The bankrupt was not a wholly owned subsidiary of appellant, Bliesner having a substantial holding of both common and preferred stocks; the businesses of the two corporations, while related in part, were different in part. Appellant did, however, control and dominate the bankrupt; was that control exercised in fraud of creditors ? The referee so found; that finding finds ample support in the same evidentiary facts which we have heretofore noted in connection with the integrity of the claim. Even if the bankrupt cannot fairly be considered as a mere adjunct of appellant, the two concerns were closely affiliated, and their transactions inter sese must be rigidly scrutinized when the rights of third parties are involved. Consolidated American Royalty Corporation v. Taliaferro (C. C. A. 10) 78 F.(2d) 802. The proof here falls far short of withstanding such scrutiny, and the order appealed from is affirmed.

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

CHISHOLM-RYDER CO., Inc., v. BUCK. No. 3443. Circuit Court of Appeals, Fourth Circuit. June 15, 1933. Arthur P. Greeley, of Washington, D. C. (J. Calvin Yeatter, of Washington, D. C., on the brief), for appellant. C. B. DesJardins, of Washington, D. C. (Melville Church, of Washington, D. C., and H. Beale Rollins, of Baltimore, Md., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. SOPER, Circuit Judge. Chisholm-Ryder Company, Inc., filed a bill of complaint in the District Court to secure an injunction restraining Benjamin I. Buck from infringement of certain United States Letters Patent issued to William E. Ursehel, to wit: Patents No. 1,256,491 and No. 1,256,492, issued on February 12, 1918, for a process and a machine respectively for snipping string beans, and patent No. 1,-336,991, issued on April 13, 1920, for an improvement in the machine. It was alleged in the bill that title to these patents had become vested in the complainant by certain assignments, and that each of the patents had been infringed by the defendant. The defendant answered, denying the title of the complainant, and putting in issue the validity of the patents and the infringement thereof. The District Court dismissed the bill, after making specific findings of fact and conclusions of law, and filing an exhaustive opinion, 1 F. Supp. 268, wherein the patents in suit, and the machine made and used by the defendant were fully and accurately described, and it was held: (1) That the complainant was vested with title to the patents; (2) that the process patent, No. 1,256,491, is invalid on the ground that it covers merely the function of the machine disclosed in the machine patent, No. 1,256,492; (3) that, claims 1 and 2 of patent No. 1,256,491 are invalid as covering no more than was shown by the prior United States Patent No. 600,554 to Sanborn of 1898; and (4) that claim 3 of Patent No. 1,256,491, claims 1 and 7 of No. 1,256,492, the only claims of this patent relied on by the complainant, and claims 1, 2, and 3 of patent No. 1,336,991, the only claims of this patent relied on by the complainant, have not been infringed by the defendant. We are in accord with the conclusion of the District Court that the bill of complaint should be dismissed. The limitations necessarily imposed upon the claims of the patents in suit, when construed in the light of the prior art, and the absence from the machine made and used by the defendant of the distinctive features of the patents in suit are fully described in the opinion of the District Judge. The failure of the complainant to sustain the charge of infringement of the claims of the machine patents, and of claim 3 of the process patent is there made manifest, and we need not repeat the discussion here. The same conclusion as to claims 1 and 2 of the process patent is reached, when they are considered in connection with the state of the art existing when the application for the patent was filed. It is true, as pointed out in the argument of the complainant in this court, that the prior patents not set up in the defendant’s answer, for instance, the patent to Sanborn, may not be used to invalidate the patents in suit for want of novelty or invention; but nevertheless these prior patents may properly be received in evidence to show the state of the art and to aid in the construction of the claims relied upon. Grier v. Wilt, 120 U. S. 412, 7 S. Ct. 718, 30 L. Ed. 712; Eachus v. Broomall, 115 U. S. 429, 6 S. Ct. 229, 29 L. Ed. 419; Morton v. Llewellyn (C. C. A.) 164 F. 693. When this is done, it becomes obvious that none of the claims of the process patent can be construed so broadly as to establish infringement thereof by the defendant. We agree also with the conclusion of the District Court that the process patent, No. 1,256,491, is invalid, because it involves only the function of the machine described in patent No. 1,256,492. A patent may issue for a new process to be performed or carried out by a machine, and also for the machine, provided that in each case invention is found; but a patent may not issue to cover a process which involves nothing more than the operation of a piece of mechanism. Corning v. Burden, 15 How. 252, 14 L. Ed. 683; Risdon Iron & Locomotive Works v. Med-art, 158 U. S. 68, 15 S. Ct. 745, 39 L. Ed. 899; Expanded Metal Co. v. Bradford, 214 U. S. 366, 29 S. Ct. 652, 53 L. Ed. 1034; Gulf Smokeless Coal Co. v. Sutton (C. C. A.) 35 F.(2d) 433; Demco v. Doughnut Machine Corp. (C. C. A.) 62 F.(2d) 23. The sim ilarity of the claims of the process patent to those of the machine patent in the pending case is pointed out in the opinion of the District Court. The drawings in the accompanying specifications are identical. Thus it appears that the method proposed may be performed by the patented machine; but the evidence fails to indicate how the process may be carried out practicably in any independent fashion, and the result is that the process patent merely states the function or effect of the machine, and is invalid under the established rule. A new argument is presented for the first time in the litigation in this court, in order to support the charge of infringement of the machine patent, No. 1,256,492. An attempt is made to show that the Buck machine contains an equivalent of the triangular bars placed in the relatively narrow spiral channel within the perforated cylinder which constitutes the essential and distinctive feature of the patented structure. The function of the bars within the channel is to reverse the beans in falling so that after one end has been cut, the other end may also be snipped off. In the evidence in the District Court, this structure was contrasted with Buck’s machine which was shown to contain a cylinder, the interior of which was quite plain and unprovided with the triangular bars or transverse plates, and hence the District Court failed to find any equivalent of the feature of the patented structure now being described. We are now told, however, that such an equivalent is to be found in the framing of the cover or door of the cylinder in the Buck machine, which consists of angle bars projecting to some slight extent into the interior of the drum. It is contended that the projections thus produced accomplish the same purpose in upending the beans in their downward course, and presenting their ends to the perforations in the cylinder. There is not a word of testimony in the record to establish this conclusion. Representatives of the complainant, possessed of mechanical skill and experience, observed the operation of the defendant’s machine and described it in their testimony, but they did not suggest the point that is now raised for the first time. Our conclusion, after an examination of the drawings and of the operations of the Buck machine, is that the angle irons serve merely as framing for the door, and perform no other function. The complainant presents to this court a motion “to receive and consider as a part of the record” United States Patent No. 1,882,481, issued October 11, 1932, to Benjamin I. Buck, on an application filed in the Patent Office June 2, 1931, together with the file wrapper and contents of the application. Since the decree was rendered September 12, 1932, and the appeal was granted on September 29, 1932, this evidence was not available at the trial below, although it was admitted by defendant that an application for a patent on his machine was at that time pending. It is claimed by the complainant that these documents will show that Buck, in the Patent Office proceedings, attached great importance to the function of four parallel rods within the cylinder, running lengthwise of his machine, as upending the bean pods and directing them towards the perforations in the side walls, while in the lower court-it was insisted on his behalf that these rods were insignificant in the operation of the machine. It is now contended that we should receive this evidence in order to show the real facts and prevent a miscarriage of justiee. We are not required to decide whether this evidence might have been made available in some other way, but merely whether it should be received at this time in this court, and we may not be guided in reaching our conclusion by the disadvantage to which the defendant is subjected by the omission of the evidence from the record. It may be noted in passing that at the trial below the function of the longitudinal bars in the Buck machine was fully considered by witnesses on both sides, and that the District Judgé, after careful consideration, came to the conclusion that they did not constitute an equivalent of the triangular bars in the TJrsehel structure. The present motion must be decided with reference to the rule that this court has no authority to receive new evidence. Ever since the system of equity jurisdiction was established, it has been the settled practice that an appellate court cannot look beyond the record before it to influence its judgment, and that no paper not before the court below can be introduced in evidence on appeal. Russell v. Southard, 12 How. 139, 158, 159, 13 L. Ed. 927. This rule was at an early time embodied in an express statutory prohibition, in the Act of March 3, 1803 (2 Stat. 244; R. S. § 698 [28 USCA § 8631), whieh, in its present form provides: “Upon the appeal of any cause in equity * ~ * no new evidence shall be received in the Supreme Court. * y * ” This statute was enforced in Russell v. Southard, supra, and in Roemer v. Simon, 91 U. S. 149, 150, 23 L. Ed. 267, which held that the Supreme Court could not receive new evidence even for the more limited purpose of remanding the ease to the trial court for a rehearing of the case. In the Act of March 3,1891, c. 517, § 11, 26 Stat. 829 (28 USCA § 228 note), which created the Circuit Courts of Appeals and transferred to them a large part of the appellate jurisdiction formerly exercised by the Supreme Court, this portion of the Act of March 3,1803, together with all other provisions of law then in force, “regulating the methods and system of review,” was made applicable to the Circuit Courts of Appeals. See The Philadelphian (C. C. A.) 60 F. 423, 426; State of Kansas v. Meriwether (C. C. A.) 171 F. 39, 41. Amongst these other provisions is R. S. § 701 (28 USCA § 876), whieh authorizes the Supreme Court to affirm, modify, or reverse any judgment or decree of a District Court lawfully brought before it for review, and to direct such judgment or decree to be rendered and sueh further proceedings to be had by the inferior court as the justiee of the case may require; but it has been quite recently decided in the ease of Realty Acceptance Corp. v. Montgomery, 284 U. S. 547, 551, 52 S. Ct. 215, 76 L. Ed. 476, that a Circuit Court of Appeals cannot take further proof and set aside a judgment of a District Court, if no error appears in the record, and cannot remand the case to the District Court in order that it may receive new evidence after the expiration of the term at whieh the judgment was rendered. Instances are not lacking in which an appellate court has taken judicial notice of matters not in the formal record before it, as for instance, in Meccano, Ltd., v. John Wanamaker, New York, 253 U. S. 136, 141, 40 S. Ct. 463, 64 L. Ed. 822, and E. I. Du Pont de Nemours & Co. v. Richmond Guano Co. (C. C. A.) 297 F. 580, in each of whieh was considered a change of circumstances resulting from a reversal of a decree upon whieh the trial court relied. See, also, Ridge v. Manker (C. C. A.) 132 F. 599; Schevenell v. Blackwood (C. C. A.) 35 F.(2d) 421. These decisions do not ran counter to the prohibition of the established rule now embodied in the federal statute that appellate proceedings cannot be converted into a trial de novo. Such would be the practical result if the pending motion should be granted in this ease, for the evidence offered could not justly be received without affording to the appellee an opportunity to introduce further evidence to controvert or explain it. The motion must therefore be denied. Affirmed.

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

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

Ronald E. STEWART, et al., Plaintiffs-Appellees, v. James A. RHODES, et al., Defendants-Appellants. No. 80-3662. United States Court of Appeals, Sixth Circuit. Argued June 17, 1981. Decided Aug. 12, 1981. Rehearing and Rehearing En Banc Denied Sept. 29, 1981. Weick, Circuit Judge, dissented and filed opinion. Allen Adler, Asst. Atty. Gen., Columbus, Ohio, for defendants-appellants. Jean P. Kamp, Legal Aid Society of Columbus, Alvin J. McKenna/D. Michael Miller, Columbus, Ohio, for plaintiffs-appellees. Before EDWARDS, Chief Judge, and WEICK and KEITH, Circuit Judges. PER CURIAM. This action was commenced by several inmates at the Columbus Correctional Facility (“CCF”) on behalf of all persons incarcerated at the prison. The inmates charged CCF prison officials with: (1) the unlawful segregation of prisoners by race, and (2) the use of certain types of physical restraints on the inmates. The complainants sought declaratory and injunctive relief against the CCF prison officials for the alleged unconstitutional conditions of confinement. On July 13, 1979, the district court issued a preliminary injunction against the further use of physical restraints and the segregation of prisoners by race. CCF then perfected an interlocutory appeal of the injunction to this court. In December 1979, before this court entered judgment on the appeal of the preliminary injunction, the parties signed a Consent Decree which incorporated the provisions of the July 13, 1979 order. After entry of the Consent Decree, the attorneys representing the plaintiffs moved for an award of attorney’s fees. The district court granted fees in the amount of $117,020.34 for approximately 1850 hours of work. The defendants then appealed the award of the fees to this court. Both appeals, the appeal of the preliminary injunction and the appeal of the award of attorney’s fees, were consolidated for the purpose of oral argument. This court dismissed as moot the appeal of the preliminary injunction in our order issued from the bench on June 17, 1980. We now hold that the district court’s award of attorney’s fees did not constitute an abuse of discretion. The defendants appealed the award alleging that the district court: (1) based its order for the payment of attorney’s fees on the expenditure of an unreasonable number of hours; (2) failed to make deductions where a substantial amount of duplication existed; (3) failed to reduce the award of attorney’s fees to reflect the fact that plaintiffs had caused or aggravated many of the conditions underlying their complaint; (4) improperly awarded plaintiffs’ counsel fees for the work of paralegals; (5) failed to order attorney’s fees based on a reasonable rate of compensation; and (6) failed to deduct a percentage of the requested attorney’s fees for failure to keep accurate and contemporaneous records. This court has thoroughly outlined the criteria for determining the appropriateness of an award of attorney’s fees. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). The district court discussed and correctly applied the standards established in Northcross. The defendants have not raised any issues which were not raised below. The district court held an extensive hearing in which it addressed all of the issues. We find no error in its findings of fact or conclusions of law. Accordingly, the judgment of the district court, Judge Robert M. Duncan, 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 "civil rights - civil rights claims by prisoners and those accused of crimes".

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

FOUCHA v. LOUISIANA No. 90-5844. Argued November 4, 1991 Decided May 18, 1992 White, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Blackmun, Stevens, O’Connor, and Souter, JJ., joined, and an opinion with respect to Part III, in which Blackmun, Stevens, and Souter, JJ., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, post, p. 86. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 90. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J, and Scalia, J., joined, post, p. 102. James P. Manasseh argued the cause for petitioner. With him on the briefs was Martin E. Regan, Jr. Pamela S. Moran argued the cause for respondent. With her on the brief was Harry F Connick. Briefs of amici curiae urging reversal were filed for the American Orthopsychiatric Association et al. by James W. Ellis and Barbara E. Bergman; and for the American Psychiatric Association by Joel I. Klein. Justice White delivered the opinion of the Court, except as to Part III. When a defendant in a criminal case pending in Louisiana is found not guilty by reason of insanity, he is committed to a psychiatric hospital unless he proves that he is not dangerous. This is so whether or not he is then insane. After commitment, if the acquittee or the superintendent begins release proceedings, a review panel at the hospital makes a written report on the patient’s mental condition and whether he can be released without danger to himself or others. If release is recommended, the court must hold a hearing to determine dangerousness; the acquittee has the burden of proving that he is not dangerous. If found to be dangerous, the acquittee may be returned to the mental institution whether or not he is then mentally ill. Petitioner contends that this scheme denies him due process and equal protection because it allows a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness. 1 — l Petitioner Terry Foucha was charged by Louisiana authorities with aggravated burglary and illegal discharge of a firearm. Two medical doctors were appointed to conduct a pretrial examination of Foucha. The doctors initially reported, and the trial court initially found, that Foucha lacked mental capacity to proceed, App. 8-9, but four months later the trial court found Foucha competent to stand trial, id., at 4-5. The doctors reported that Foucha was unable to distinguish right from wrong and was insane at the time of the offense. On October 12, 1984, the trial court ruled that Foucha was not guilty by reason of insanity, finding that he “is unable to appreciate the usual, natural and probable consequences of his acts; that he is unable to distinguish right from wrong; that he is a menace to himself and others; and that he was insane at the time of the commission of the above crimes and that he is presently insane.” Id., at 6. He was committed to the East Feliciana Forensic Facility until such time as doctors recommend that he be released, and until further order of the court. In 1988, the superintendent of Feliciana recommended that Foucha be discharged or released. A three-member panel was convened at the institution to determine Foucha’s current condition and whether he could be released or placed on probation without being a danger to others or himself. On March 21, 1988, the panel reported that there had been no evidence of mental illness since admission and recommended that Foucha be conditionally discharged. The trial judge appointed a two-member sanity commission made up of the same two doctors who had conducted the pretrial examination. Their written report stated that Foucha “is presently in remission from mental illness [but] [w]e cannot certify that he would not constitute a menace to himself or others if released.” Id., at 12. One of the doctors testified at a hearing that upon commitment Foucha probably suffered from a drug induced psychosis but that he had recovered from that temporary condition; that he evidenced no signs of psychosis or neurosis and was in “good shape” mentally; that he had, however, an antisocial personality, a condition that is not a mental disease and that is untreatable. The doctor also testified that Foucha had been involved in several altercations at Feliciana and that he, the doctor, would not “feel comfortable in certifying that [Foucha] would not be a danger to himself or to other people.” Id., at 18. After it was stipulated that the other doctor, if he were present, would give essentially the same testimony, the court ruled that Foucha was dangerous to himself and others and ordered him returned to the mental institution. The Court of Appeal refused supervisory writs, and the State Supreme Court affirmed, holding that Foucha had not carried the burden placed upon him by statute to prove that he was not dangerous, that our decision in Jones v. United States, 463 U. S. 354 (1983), did not require Foucha’s release, and that neither the Due Process Clause nor the Equal Protection Clause was violated by the statutory provision permitting confinement of an insanity acquittee based on dangerousness alone. Because the case presents an important issue and was decided by the court below in a manner arguably at odds with prior decisions of this Court, we granted certiorari. 499 U. S. 946 (1991). II Addington v. Texas, 441 U. S. 418 (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others. Proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying due process. When a person charged with having committed a crime is found not guilty by reason of insanity, however, a State may commit that person without satisfying the Addington burden with respect to mental illness and dangerousness. Jones v. United States, supra. Such a verdict, we observed in Jones, “establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness,” id., at 363, an illness that the defendant adequately proved in this context by a preponderance of the evidence. From these two facts, it could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed. We held, however, that “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,” id., at 368; i. e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. We relied on O’Connor v. Donaldson, 422 U. S. 563 (1975), which held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, “it could not constitutionally continue after that basis no longer existed.” Id., at 575. In the summary of our holdings in our opinion we stated that “the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” Jones, 463 U. S., at 368, 370. The court below was in error in characterizing the above language from Jones as merely an interpretation of the pertinent statutory law in the District of Columbia and as having no constitutional significance. In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. O’Connor, supra, at 574-575. The State, however, seeks to perpetuate Foucha’s confinement at Feliciana on the basis of his antisocial personality which, as evidenced by his conduct at the facility, the court found rendered him a danger to himself or others. There are at least three difficulties with this position. First, even if his continued confinement were constitutionally permissible, keeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness. In Vitek v. Jones, 445 U. S. 480 (1980), we held that a convicted felon serving his sentence has a liberty interest, not extinguished by his confinement as a criminal, in not being transferred to a mental institution and hence classified as mentally ill without appropriate procedures to prove that he was mentally ill. “The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.” Id., at 492. Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. Jones, supra, at 368; Jackson v. Indiana, 406 U. S. 715, 738 (1972). Here, according to the testimony given at the hearing in the trial court, Foueha is not suffering from a mental disease or illness. If he is to be held, he should not be held as a mentally ill person. See Jones, supra, at 368; Jackson, supra, at 738. Cf. United States v. Salerno, 481 U. S. 739, 747-748 (1987); Schall v. Martin, 467 U. S. 253, 270 (1984). Second, if Foueha can no longer be held as an insanity ac-quittee in a mental hospital, he is entitled to constitutionally adequate procedures to establish the grounds for his confinement. Jackson v. Indiana, supra, indicates as much. There, a person under criminal charges was found incompetent to stand trial and was committed until he regained his sanity. It was later determined that nothing could be done to cure the detainee, who was a deaf mute. The state courts refused to order his release. We reversed, holding that the State was entitled to hold a person for being incompetent to stand trial only long enough to determine if he could be cured and become competent. If he was to be held longer, the State was required to afford the protections constitutionally required in a civil commitment proceeding. We noted, relying on Baxstrom v. Herold, 383 U. S. 107 (1966), that a convicted criminal who allegedly was mentally ill was entitled to release at the end of his term unless the State committed him in a civil proceeding. “ ‘[T]here is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.’” Jackson v. Indiana, supra, at 724, quoting Baxstrom, supra, at 111-112. Third, “the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v. Burch, 494 U. S. 113, 125 (1990). See also Salerno, supra, at 746; Daniels v. Williams, 474 U. S. 327, 331 (1986). Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Youngberg v. Romeo, 457 U. S. 307, 316 (1982). “It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Jones, supra, at 361 (internal quotation marks omitted). We have always been careful not to “minimize the importance and fundamental nature” of the individual’s right to liberty. Salerno, supra, at 750. A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribution. But there are constitutional limitations on the conduct that a State may criminalize. See, e. g., Brandenburg v. Ohio, 395 U. S. 444 (1969); Robinson v. California, 370 U. S. 660 (1962). Here, the State has no such punitive interest. As Foucha was not convicted, he may not be punished. Jones, supra, at 369. Here, Louisiana has by reason of his acquittal exempted Foucha from criminal responsibility as La. Rev. Stat. Ann. § 14:14 (West 1986) requires. See n. 1, supra. The State may also confine a mentally ill person if it shows “by clear and convincing evidence that the individual is mentally ill and dangerous,” Jones, 463 U. S., at 362. Here, the State has not carried that burden; indeed, the State does not claim that Foucha is now mentally ill. We have also held that in certain narrow circumstances persons who pose a danger to others or to the community may be subject to limited confinement and it is on these cases, particularly United States v. Salerno, supra, that the State relies in this case. Salerno, unlike this case, involved pretrial detention. We observed in Salerno that the “government’s interest in preventing crime by arrestees is both legitimate and compelling,” id., at 749, and that the statute involved there was a constitutional implementation of that interest. The statute carefully limited the circumstances under which detention could be sought to those involving the most serious of crimes (crimes of violence, offenses punishable by life imprisonment or death, serious drug offenses, or certain repeat offenders), id., at 747, and was narrowly focused on a particularly acute problem in which the government interests are overwhelming, id., at 750. In addition to first demonstrating probable cause, the Government was required, in a “full-blown adversary hearing,” to convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person, i. e., that the “arrestee presents an identified and articulable threat to an individual or the community.” Id., at 751. Furthermore, the duration of confinement under the Bail Reform Act of 1984 (Act) was strictly limited. The arrestee was entitled to a prompt detention hearing and the maximum length of pretrial detention was limited by the “stringent time limitations of the Speedy Trial Act.” Id., at 747. If the arrestee were convicted, he would be confined as a criminal proved guilty; if he were acquitted, he would go free. Moreover, the Act required that detainees be housed, to the extent practicable, in a facility separate from persons awaiting or serving sentences or awaiting appeal. Id., at 747-748. Salerno does not save Louisiana’s detention of insanity ac-quittees who are no longer mentally ill. Unlike the sharply focused scheme at issue in Salerno, the Louisiana scheme of confinement is not carefully limited. Under the state statute, Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous. At the hearing which ended with Foucha’s recommittal, no doctor or any other person testified positively that in his opinion Foucha would be a danger to the community, let alone gave the basis for such an opinion. There was only a description of Foucha’s behavior at Feliciana and his antisocial personality, along with a refusal to certify that he would not be dangerous. When directly asked Whether Foucha would be dangerous, Dr. Ritter said only, “I don’t think I would feel comfortable in certifying that he would not be a danger to himself or to other people.” App. 18. This, under the Louisiana statute, was enough to defeat Foucha’s interest in physical liberty. It is not enough to defeat Foucha’s liberty interest under the Constitution in being freed from indefinite confinement in a mental facility. Furthermore, if Foucha committed criminal acts while at Feliciana, such as assault, the State does not explain why its interest would not be vindicated by the ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of dealing with patterns of criminal conduct. These are the normal means of dealing with persistent criminal conduct. Had they been employed against Foucha when he assaulted other inmates, there is little doubt that if then sane he could have been convicted and incarcerated in the usual way. It was emphasized in Salerno that the detention we found constitutionally permissible was strictly limited in duration. 481 U. S., at 747; see also Schall, 467 U. S., at 269. Here, in contrast, the State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term. It would also be only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law. “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, supra, at 755. The narrowly focused pretrial detention of arrestees permitted by the Bail Reform Act was found to be one of those carefully limited exceptions permitted by the Due Process Clause. We decline to take a similar view of a law like Louisiana’s, which permits the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others. I HH HH It should be apparent from what has been said earlier in this opinion that the Louisiana statute also discriminates against Foucha in violation of the Equal Protection Clause of the Fourteenth Amendment. Jones established that insanity acquittees may be treated differently in some respects from those persons subject to civil commitment, but Foucha, who is not now thought to be insane, can no longer be so classified. The State nonetheless insists on holding him indefinitely because he at one time committed a criminal act and does not now prove he is not dangerous. Louisiana law, however, does not provide for similar confinement for other classes of persons who have committed criminal acts and who cannot later prove they would not be dangerous. Criminals who have completed their prison terms, or are about to do so, are an obvious and large category of such persons. Many of them will likely suffer from the same sort of personality disorder that Foucha exhibits. However, state law does not allow for their continuing confinement based merely on dangerousness. Instead, the State controls the behavior of these similarly situated citizens by relying on other means, such as punishment, deterrence, and supervised release. Freedom from physical restraint being a fundamental right, the State must have a particularly convincing reason, which it has not put forward, for such discrimination against insanity acquittees who are no longer mentally ill. Furthermore, in civil commitment proceedings the State must establish the grounds of insanity and dangerousness permitting confinement by clear and convincing evidence. Addington, 441 U. S., at 425-433. Similarly, the State must establish insanity and dangerousness by clear and convincing evidence in order to confine an insane convict beyond his criminal sentence, when the basis for his original confinement no longer exists. See Jackson, 406 U. S., at 724; Baxstrom, 383 U. S., at 111-112. Cf. Humphrey v. Cady, 405 U. S. 504, 510-511 (1972). However, the State now claims that it may continue to confine Foucha, who is not now considered to be mentally ill, solely because he is deemed dangerous, but without assuming the burden of proving even this ground for confinement by clear and convincing evidence. The court below gave no convincing reason why the procedural safeguards against unwarranted confinement which are guaranteed to insane persons and those who have been convicted may be denied to a sane acquittee, and the State has done no better in this Court. For the foregoing reasons the judgment of the Louisiana Supreme Court is reversed. So ordered. Louisiana law provides: “If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.” La. Rev. Stat. Ann. §14:14 (West 1986). Justice Kennedy disregards the fact that the State makes no claim that Foucha was criminally responsible or that it is entitled to punish Foucha as a criminal. The panel unanimously recommended that petitioner be conditionally discharged with recommendations that he (1) be placed on probation; (2) remain free from intoxicating and mind-altering substances; (3) attend a substance abuse clinic on a regular basis; (4) submit to regular and random urine drug screening; and (6) be actively employed or seeking employment. App. 10-11. Although the panel recited that it was charged with determining dangerousness, its report did not expressly make a finding in that regard. Justice Thomas in dissent complains that Foucha should not be released based on psychiatric opinion that he is not mentally ill because such opinion is not sufficiently precise — because psychiatry is not an exact science and psychiatrists widely disagree on what constitutes a mental illness. That may be true, but such opinion is reliable enough to permit the courts to base civil commitments on clear and convincing medical evidence that a person is mentally ill and dangerous and to base release decisions on qualified testimony that the person is no longer mentally ill or dangerous. It is also reliable enough for the State not to punish a person who by a preponderance of the evidence is found to have been insane at the time he committed a criminal act, to say nothing of not trying a person who is at the time found incompetent to understand the proceedings. And more to the point, medical predictions of dangerousness seem to be reliable enough for Justice Thomas to permit the State to continue to hold Foucha in a mental institution, even where the psychiatrist would say no more than that he would hesitate to certify that Foucha would not be dangerous to himself or others. Justice Kennedy’s assertion that we overrule the holding of Jones described in the above paragraph is fanciful at best. As that paragraph plainly shows, we do not question and fully accept that insanity acquittees may be initially held without complying with the procedures applicable to civil committees. As is evident from the ensuing paragraph of the text, we are also true to the further holding of Jones that both Justice Thomas and Justice Kennedy reject: that the period of time during which an insanity acquittee may be held in a mental institution is not measured by the length of a sentence that might have been imposed had he been convicted; rather, the acquittee may be held until he is either not mentally ill or not dangerous. Both Justices would permit the indefinite detention of the acquittee, although the State concedes that he is not mentally ill and although the doctors at the mental institution recommend his release, for no reason other than that a psychiatrist hesitates to certify that the ac-quittee would not be dangerous to himself or others. Justice Kennedy asserts that we should not entertain the proposition that a verdict of not guilty by reason of insanity differs from a conviction. Post, at 94. Jones, however, involved a case where the accused had been “found, beyond a reasonable doubt, to have committed a criminal act.” 463 U. S., at 364. We did not find this sufficient to negate any difference between a conviction and an insanity acquittal. Rather, we observed that a person convicted of crime may of course be punished. But “[djifferent considerations underlie commitment of an insanity acquittee. As he was not convicted, he may not be punished.” Id,., at 369. Justice Kennedy observes that proof beyond reasonable doubt of the commission of a criminal act permits a State to incarcerate and hold the offender on any reasonable basis. There is no doubt that the States have wide discretion in determining punishment for convicted offenders, but the Eighth Amendment ensures that discretion is not unlimited. The Justice cites no authority, but surely would have if it existed, for the proposition that a defendant convicted of a crime and sentenced to a term of years may nevertheless be held indefinitely because of the likelihood that he will commit other crimes. Justice Thomas, dissenting, suggests that there was no issue of the standards for release before us in Jones. The issue in that case, however, was whether an insanity acquittee “must be released because he has been hospitalized for a period longer than he might have served in prison had he been convicted,” 463 U. S., at 366; and in the course of deciding that issue in the negative, we said that the detainee could be held until he was no longer mentally ill or no longer dangerous, regardless of how long a prison sentence might have been. We noted in footnote 11 that Jones had not sought a release based on nonillness or nondangerousness, but as indicated in the text, we twice announced the outside limits on the detention of insanity acquittees. The Justice would “wish” away this aspect of Jones, but that case merely reflected the essence of our prior decisions. Justice Thomas’ dissent firmly embraces the view that the State may indefinitely hold an insanity acquittee who is found by a court to have been cured of his mental illness and who is unable to prove that he would not be dangerous. This would be so even though, as in this case, the court’s finding of dangerousness is based solely on the detainee’s antisocial personality that apparently has caused him to engage in altercations from time to time. Justice Thomas, however, does not challenge the holding of our cases that a convicted criminal may not be held as a mentally ill person without following the requirements for civil commitment, which would not permit further detention based on dangerousness alone. Yet it is surely strange to release sane but very likely dangerous persons who have committed a crime knowing precisely what they were doing but continue to hold indefinitely an insanity detainee who committed a criminal act at a time when, as found by a court, he did not know right from wrong. Justice Thomas’ rationale for continuing to hold the insanity acquittee would surely justify treating the convicted felon in the same way, and if put to it, it appears that he would permit it. But as indicated in the text, this is not consistent with our present system of justice. Justice Thomas relies heavily on the American Law Institute’s (ALI) Model Penal Code and Commentary. However, his reliance on the Model Code is misplaced and his quotation from the Commentary is importantly incomplete. Justice Thomas argues that the Louisiana statute follows “the current provisions” of the Model Penal Code, but he fails to mention that § 4.08 is “current” only in the sense that the Model Code has not been amended since its approval in 1962, and therefore fails to incorporate or reflect substantial developments in the relevant decisional law during the intervening three decades. Thus, although this is nowhere noted in the dissent, the Explanatory Notes expressly concede that related and similarly “current” provisions of Article 4 are unconstitutional. See, e. g., ALI, Model Penal Code §4.06(2), Explanatory Note (1985) (noting that § 4.06(2), permitting indefinite commitment of a mentally incompetent defendant without the finding required for civil commitment, is unconstitutional in light of Jackson v. Indiana, 406 U. S. 715 (1972), and other decisions of this Court). Nor indeed does Justice Thomas advert to the 1985 Explanatory Note to § 4.08 itself, even though that note directly questions the constitutionality of the provision that he so heavily relies on; it acknowledges, as Justice Thomas does not, that “it is now questionable whether a state may use the single criterion of dangerousness to grant discharge if it employs a different standard for release of persons civilly committed.” Justice Thomas also recites from the Commentary regarding §4.08. However, the introductory passage that Justice Thomas quotes prefaces a more important passage that he omits. After explaining the rationale for the questionable provision, the Commentary states: “Constitutional doubts ... exist about the criterion of dangerousness. If a person committed civilly must be released when he is no longer suffering mental illness, it is questionable whether a person acquitted on grounds of mental disease or defect excluding responsibility can be kept in custody solely on the ground that he continues to be dangerous.” Id., § 4.08, Comment 3, p. 260. Thus, while Justice Thomas argues that the Louisiana statute is not a relic of a bygone age, his principal support for this assertion is a 30-year-old provision of the Model Penal Code whose constitutionality has since been openly questioned by the ALI reporters themselves. Similarly unpersuasive is Justice Thomas’ claim regarding the number of States that allow confinement based on dangerousness alone. First, this assertion carries with it an obvious but unacknowledged corollary— the vast majority of States do not allow confinement based on dangerousness alone. Second, Justice Thomas’ description of these state statutes also is importantly incomplete. Even as he argues that a scheme of confinement based on dangerousness alone is not a relic of a bygone age, Justice Thomas neglects to mention that two of the statutes he relies on have been amended, as Justice O’Connor notes. Nor does Justice Thomas acknowledge that at least two of the other statutes he lists as permitting confinement based on dangerousness alone have been given a contrary construction by highest state courts, which have found that the interpretation for which Justice Thomas cites them would be impermissible. See State v. Fields, 77 N. J. 282, 390 A. 2d 574 (1978); In re Lewis, 403 A. 2d 1115, 1121 (Del. 1979), quoting Mills v. State, 256 A. 2d 752, 757, n. 4 (Del. 1969) (“By necessary implication, the danger referred to must be construed to relate to mental illness for the reason that dangerousness without mental illness could not be a valid basis for indeterminate confinement in the State hospital”). See also ALI, Model Penal Code, supra, at 260 (although provisions may on their face allow for confinement based on dangerousness alone, in virtually all actual cases the questions of dangerousness and continued mental disease are likely to be closely linked). As the widespread rejection of the standard for confinement that Justice Thomas and Justice Kennedy argue for demonstrates, States are able to protect both the safety of the public and the rights of the accused without challenging foundational principles of American criminal justice and constitutional law.

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?

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

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

George CALESHU, Petitioner, v. Hon. H. Kenneth WANGELIN, United States District Judge for the Eastern District of Missouri, Respondent. No. 76-2074. United States Court of Appeals, Eighth Circuit. Submitted Feb. 8, 1977. Decided Feb. 17, 1977. Douglas B. Brockhouse, St. Louis, Mo., for petitioner. Myron C. Baum, Acting Asst. Atty. Gen., and Gilbert E. Andrews, Chief, App. Section, Tax Div., Dept, of Justice, Washington, D. C., for respondent. Before LAY, WEBSTER and HENLEY, Circuit Judges. WEBSTER, Circuit Judge. George Caleshu petitions this Court for a writ of mandamus to compel the District Court to vacate its order of October 29, 1976, granting a change of venue to Hawaii in petitioner’s tax refund suit against the United States. Petitioner contends that venue is proper only in the Eastern District of Missouri. Petitioner brought an action under 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422 in the United States District Court for the Eastern District of Missouri against the United States and others, seeking a refund of alleged overpayments of federal taxes and an injunction against further collection of assessed taxes. In his complaint, he alleged that he was a resident of St. Louis, Missouri, and gave his mailing address as “care of Marketing Department, Chase Hotel, 212 N. Kingshighway, St. Louis, Missouri, 63108.” The government filed a motion to dismiss the complaint for improper venue on the ground that petitioner was not a resident of the Eastern District of Missouri. It requested the action be transferred to California or Hawaii under 28 U.S.C. § 1402(a), on the ground that those states have substantial factual contact with the issues in the case. Petitioner filed a reply in opposition to the government’s motion to change venue. On October 29, 1976, the District Court denied the motion to dismiss for improper venue, but ordered the action transferred to the United States District Court for the District of Hawaii. In an attached memorandum, the court said that although petitioner leads a nomadic life, it was convinced “he does reside in St. Louis within the meaning of the applicable venue statute. 28 U.S.C. § 1402.” The court then stated that it was transferring the action to Hawaii “in the interest of justice and for the convenience of the parties” because the majority of the events in question took place there and because the government had pointed out that most of its relevant records are also in that state. Petitioner then filed a motion to vacate this transfer order. He also requested that if the court would not vacate the order, that it should amend its findings so that petitioner could file an interlocutory appeal under 28 U.S.C. § 1292(b) from the venue change order. In response, the District Court entered an order denying the motion to vacate, but finding that its order involved a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. Petitioner did not pursue his appeal under § 1292(b), but instead chose to file the petition for writ of mandamus that is before us. Because petitioner’s original complaint for refund named the United States as a defendant, venue in this suit is governed by 28 U.S.C. § 1402, which provides in pertinent part: (a) Any civil action against the United States under subsection (a) of section 1346 of this title may be prosecuted only: (1) Except as provided in paragraph (2) , in the judicial district where the plaintiff resides; (2) In the case of a civil action by a corporation under paragraph (1) of subsection (a) of section 1346, in the judicial district in which is located the principal place of business or principal office or agency of the corporation; or if it has no principal place of business or principal office or agency in any judicial district (A) in the judicial district in which is located the office to which was made the return of the tax in respect of which the claim is made, or (B) if no return was made, in the judicial district in which lies the District of Columbia. Notwithstanding the foregoing provisions of this paragraph a district court, for the convenience of the parties and witnesses, in the interest of justice, may transfer any such action to any other district or division. The District Court concluded that the last sentence of paragraph (2) refers to all of subsection (a), and thus any civil action against the United States brought under 28 U.S.C. § 1346(a) may be transferred to any other district in the interest of justice. We disagree, and conclude that only such actions by a corporation may be so transferred. Refund suits brought by individual taxpayers may be prosecuted only in the judicial district in which the plaintiff resides. Subsection (a) was added to § 1402(a) in 1958 to resolve a disagreement among courts as to whether the definition of corporate residence found in § 1391(c) of the general venue statute was applicable to suits against the United States by corporations for the refund of taxes. 7B J. Moore, Federal Practice § 1402, at JC-598 (2d Ed. 1976). There is nothing in the legislative history of this amendment to indicate that the last sentence of paragraph (2) was intended to apply to individuals filing tax refund suits. See 3 U.S.Code Cong. & Ad. News p. 5263 (1958). See also C. Wright, Handbook of the Law of Federal Courts § 44, at 189 n. 47 (3d Ed. 1976). Thus, we must hold that venue in this case is proper only in the district of petitioner’s residence. 28 U.S.C. § 1402(a)(1). We accept as correct, for purposes of this petition, the finding of the District Court that petitioner resides in St. Louis. There is certainly no basis for concluding that this finding is clearly erroneous. Venue is therefore proper only in the Eastern District of Missouri and the action should not have been transferred to Hawaii. The use of the mandamus power conferred on this Court by the All Writs Statute, 28 U.S.C. § 1651, is a proper remedy to correct an erroneous transfer. See Wilkins v. Erickson, 484 F.2d 969, 971 (8th Cir. 1973); Shutte v. Armco Steel Corp., 431 F.2d 22, 23 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971); Technitrol, Inc. v. McManus, 405 F.2d 84, 87-88 (8th Cir. 1968), cert. denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969). Mandamus is available in “exceptional circumstances amounting to a judicial ‘usurpation of power,’ ” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967), and when a district court has exceeded “the sphere of its discretionary power.” Id. at 104, 88 S.Ct. at 278. See In re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 68 (8th Cir. 1976). We conclude that such circumstances exist in the present case. Accordingly, we order that a writ of mandamus issue directing the District Court to vacate its order filed October 29, 1976, granting a change of venue from the United States District Court for the Eastern District of Missouri to the District of Hawaii, and to deny the government’s motion for change of venue. Writ granted. . Pursuant to 26 U.S.C. § 6672, the Commissioner of Internal Revenue had assessed various penalties against petitioner as a responsible person of Union Investments, Inc., a publicly held company operated under the laws of Hawaii and having its principal place of business in that state, and also as.a responsible person of two subsidiaries of Union Investments, Inc., Malei, Inc. and Melia Park, Inc., each a Hawaii corporation with its principal place of business in Honolulu, Hawaii. . In the alternative, the government requested that Count II of petitioner’s complaint, which demanded injunctive relief, be dismissed for failure to state a claim upon which relief could be granted or, alternatively, for lack of jurisdiction. The government asserted that 26 U.S.C. § 7421 prohibits injunctive actions to restrain the assessment or collection of any federal tax. In its order of October 29, 1976, the District Court directed that the motion to dismiss Count II be stayed. . We note that “(a)” under 28 U.S.C. § 1402 is classified as a “subsection” and “(2)” is classified as a “paragraph.” The last sentence of “(2)” clearly refers only to that “paragraph.” . Because venue is proper only in the Eastern District of Missouri, transfer of this case cannot be justified by 28 U.S.C. § 1404(a), which provides that a district court, for the convenience of parties and witnesses, in the interest of justice, may transfer any civil action to any other district or division “where it might have been brought.” The change of venue statute does not dispense with the requirement that venue must be proper in the transferee district. Van Dusen v. Barrack, 376 U.S. 612, 619-20, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Hoffman v. Blaski, 363 U.S. 335, 342-44, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). The government conceded in its brief to the District Court that § 1404 was inapplicable. . We reject respondent’s contention that mandamus is not available to petitioner because, prior to the filing of this petition, the District Court had properly certified to this Court as a controlling issue of law under 28 U.S.C. § 1292(b) the same issue that is raised in the mandamus petition. The availability of an interlocutory appeal under 28 U.S.C. § 1292(b) depends upon an assessment of factors that are not free from doubt. See A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 442-43 (2d Cir. 1966). The grant or denial of mandamus lies within the discretion of this Court. We do not think we are bound to require that petitioner first seek interlocutory review where mandamus is clearly an appropriate remedy. See Technitrol, Inc. v. McManus, supra, 405 F.2d at 87-88.

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

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

Marvin D. HORNE, et al., Petitioners v. DEPARTMENT OF AGRICULTURE. No. 14-275. Supreme Court of the United States Argued April 22, 2015. Decided June 22, 2015. Michael W. McConnell, Washington, DC, for Petitioners. Edwin S. Kneedler, Washington, DC, for Respondent. Jeffrey M. Prieto, Acting General Counsel, Carrie F. Ricci, Associate General Counsel, Leslie K. Lagomarcino, Senior Counsel, Department of Agriculture, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Benjamin C. Mizer, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Elizabeth B. Prelogar, Assistant to the Solicitor General, Michael S. Raab, Joshua Waldman, Attorneys, Department of Justice, Washington, DC, for Respondent. Brian C. Leighton, Clovis, CA, Michael W. McConnell, Counsel of Record, John C. O'Quinn, Stephen S. Schwartz, Jason M. Wilcox, Devin A. DeBacker, Kirkland & Ellis LLP, Washington, DC, for Petitioners. Opinion Chief Justice ROBERTSdelivered the opinion of the Court. Under the United States Department of Agriculture's California Raisin Marketing Order, a percentage of a grower's crop must be physically set aside in certain years for the account of the Government, free of charge. The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market. The question is whether the Takings Clause of the Fifth Amendment bars the Government from imposing such a demand on the growers without just compensation. I The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate "marketing orders" to help maintain stable markets for particular agricultural products. The marketing order for raisins requires growers in certain years to give a percentage of their crop to the Government, free of charge. The required allocation is determined by the Raisin Administrative Committee, a Government entity composed largely of growers and others in the raisin business appointed by the Secretary of Agriculture. In 2002-2003, this Committee ordered raisin growers to turn over 47 percent of their crop. In 2003-2004, 30 percent. Growers generally ship their raisins to a raisin "handler," who physically separates the raisins due the Government (called "reserve raisins"), pays the growers only for the remainder ("free-tonnage raisins"), and packs and sells the free-tonnage raisins. The Raisin Committee acquires title to the reserve raisins that have been set aside, and decides how to dispose of them in its discretion. It sells them in noncompetitive markets, for example to exporters, federal agencies, or foreign governments; donates them to charitable causes; releases them to growers who agree to reduce their raisin production; or disposes of them by "any other means" consistent with the purposes of the raisin program. 7 CFR § 989.67(b)(5) (2015). Proceeds from Committee sales are principally used to subsidize handlers who sell raisins for export (not including the Hornes, who are not raisin exporters). Raisin growers retain an interest in any net proceeds from sales the Raisin Committee makes, after deductions for the export subsidies and the Committee's administrative expenses. In the years at issue in this case, those proceeds were less than the cost of producing the crop one year, and nothing at all the next. The Hornes-Marvin Horne, Laura Horne, and their family-are both raisin growers and handlers. They "handled" not only their own raisins but also those produced by other growers, paying those growers in full for all of their raisins, not just the free-tonnage portion. In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so. The Government sent trucks to the Hornes' facility at eight o'clock one morning to pick up the raisins, but the Hornes refused entry. App. 31; cf. post, at 2442 (SOTOMAYOR, J., dissenting). The Government then assessed against the Hornes a fine equal to the market value of the missing raisins-some $480,000-as well as an additional civil penalty of just over $200,000 for disobeying the order to turn them over. When the Government sought to collect the fine, the Hornes turned to the courts, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment. Their case eventually made it to this Court when the Government argued that the lower courts had no jurisdiction to consider the Hornes' constitutional defense to the fine. Horne v. Department of Agriculture,569 U.S. ----, 133 S.Ct. 2053, 186 L.Ed.2d 69 (2013)(Horne I). We rejected the Government's argument and sent the case back to the Court of Appeals so it could address the Hornes' contention on the merits. Id.,at ----, 133 S.Ct., at 2063-2064. On remand, the Ninth Circuit agreed with the Hornes that the validity of the fine rose or fell with the constitutionality of the reserve requirement. 750 F.3d 1128, 1137 (2014). The court then considered whether that requirement was a physical appropriation of property, giving rise to a per setaking, or a restriction on a raisin grower's use of his property, properly analyzed under the more flexible and forgiving standard for a regulatory taking. The court rejected the Hornes' argument that the reserve requirement was a per setaking, reasoning that "the Takings Clause affords less protection to personal than to real property," and concluding that the Hornes "are not completely divested of their property rights," because growers retain an interest in the proceeds from any sale of reserve raisins by the Raisin Committee. Id.,at 1139. The court instead viewed the reserve requirement as a use restriction, similar to a government condition on the grant of a land use permit. See Dolan v. City of Tigard,512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Nollan v. California Coastal Comm'n,483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). As in such permit cases, the Court of Appeals explained, the Government here imposed a condition (the reserve requirement) in exchange for a Government benefit (an orderly raisin market). And just as a landowner was free to avoid the government condition by forgoing a permit, so too the Hornes could avoid the reserve requirement by "planting different crops." 750 F.3d, at 1143. Under that analysis, the court found that the reserve requirement was a proportional response to the Government's interest in ensuring an orderly raisin market, and not a taking under the Fifth Amendment. We granted certiorari. 574 U.S. ----, 135 S.Ct. 1039, 190 L.Ed.2d 907 (2015). II The petition for certiorari poses three questions, which we answer in turn. A The first question presented asks "Whether the government's 'categorical duty' under the Fifth Amendment to pay just compensation when it 'physically takes possession of an interest in property,' Arkansas Game & Fish Comm'n v. United States,--- U.S. ----, 133 S.Ct. 511, 518, 184 L.Ed.2d 417 (2012), applies only to real property and not to personal property." The answer is no. 1 There is no dispute that the "classic taking [is one] in which the government directly appropriates private property for its own use." Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,535 U.S. 302, 324, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)(brackets and internal quotation marks omitted). Nor is there any dispute that, in the case of real property, such an appropriation is a per setaking that requires just compensation. See Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419, 426-435, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home. The Takings Clause provides: "[N]or shall private property be taken for public use, without just compensation." U.S. Const., Amdt. 5. It protects "private property" without any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any "constable or other bailiff" from taking "corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller." Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914). The colonists brought the principles of Magna Carta with them to the New World, including that charter's protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting "mans Cattel or goods of what kinde soever" from being "pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford." Massachusetts Body of Liberties ¶ 8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus "live stock, or beef, pork, or bacon" for the military, but only upon "paying or tendering to the owner the price so estimated by the appraisers." 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of "necessaries" for public use, but provided that "said articles so seized shall be paid for agreeable to the prices such and the like articles sold for on the ninth day of October last." 1779 S.C. Acts § 4. Given that background, it is not surprising that early Americans bridled at appropriations of their personal property during the Revolutionary War, at the hands of both sides. John Jay, for example, complained to the New York Legislature about military impressment by the Continental Army of "Horses, Teems, and Carriages," and voiced his fear that such action by the "little Officers" of the Quartermasters Department might extend to "Blankets, Shoes, and many other articles." A Hint to the Legislature of the State of New York (1778), in John Jay, The Making of a Revolutionary 461-463 (R. Morris ed. 1975) (emphasis deleted). The legislature took the "hint," passing a law that, among other things, provided for compensation for the impressment of horses and carriages. 1778 N.Y. Laws ch. 29. According to the author of the first treatise on the Constitution, St. George Tucker, the Takings Clause was "probably" adopted in response to "the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war, without any compensation whatever." 1 Blackstone's Commentaries, Editor's App. 305-306 (1803). Nothing in this history suggests that personal property was any less protected against physical appropriation than real property. As this Court summed up in James v. Campbell,104 U.S. 356, 358, 26 L.Ed. 786 (1882), a case concerning the alleged appropriation of a patent by the Government: "[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser." Prior to this Court's decision in Pennsylvania Coal Co. v. Mahon,260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the Takings Clause was understood to provide protection only against a direct appropriation of property-personal or real. Pennsylvania Coalexpanded the protection of the Takings Clause, holding that compensation was also required for a "regulatory taking"-a restriction on the use of property that went "too far." Id.,at 415, 43 S.Ct. 158. And in Penn Central Transp. Co. v. New York City,438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Court clarified that the test for how far was "too far" required an "ad hoc" factual inquiry. That inquiry required considering factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. Four years after Penn Central,however, the Court reaffirmed the rule that a physical appropriationof property gave rise to a per setaking, without regard to other factors. In Loretto,the Court held that requiring an owner of an apartment building to allow installation of a cable box on her rooftop was a physical taking of real property, for which compensation was required. That was true without regard to the claimed public benefit or the economic impact on the owner. The Court explained that such protection was justified not only by history, but also because "[s]uch an appropriation is perhaps the most serious form of invasion of an owner's property interests," depriving the owner of the "the rights to possess, use and dispose of" the property. 458 U.S., at 435, 102 S.Ct. 3164(internal quotation marks omitted). That reasoning-both with respect to history and logic-is equally applicable to a physical appropriation of personal property. The Ninth Circuit based its distinction between real and personal property on this Court's discussion in Lucas v. South Carolina Coastal Council,505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), a case involving extensive limitations on the use of shorefront property. 750 F.3d, at 1139-1141. Lucasrecognized that while an owner of personal property "ought to be aware of the possibility that new regulation might even render his property economically worthless," such an "implied limitation" was not reasonable in the case of land. 505 U.S., at 1027-1028, 112 S.Ct. 2886. Lucas,however, was about regulatory takings, not direct appropriations. Whatever Lucashad to say about reasonable expectations with regard to regulations, people still do not expect their property, real or personal, to be actually occupied or taken away. Our cases have stressed the "longstanding distinction" between government acquisitions of property and regulations. Tahoe-Sierra Preservation Council,535 U.S., at 323, 122 S.Ct. 1465. The different treatment of real and personal property in a regulatory case suggested by Lucasdid not alter the established rule of treating direct appropriations of real and personal property alike. See 535 U.S., at 323, 122 S.Ct. 1465.(It is "inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a 'regulatory taking,' and vice versa" (footnote omitted)). 2 The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. App. to Pet. for Cert. 179a; Tr. of Oral Arg. 31. The Committee's raisins must be physically segregated from free-tonnage raisins. 7 CFR § 989.66(b)(2). Reserve raisins are sometimes left on the premises of handlers, but they are held "for the account" of the Government. § 989.66(a). The Committee disposes of what become its raisins as it wishes, to promote the purposes of the raisin marketing order. Raisin growers subject to the reserve requirement thus lose the entire "bundle" of property rights in the appropriated raisins-"the rights to possess, use and dispose of" them, Loretto,458 U.S., at 435, 102 S.Ct. 3164(internal quotation marks omitted)-with the exception of the speculative hope that some residual proceeds may be left when the Government is done with the raisins and has deducted the expenses of implementing all aspects of the marketing order. The Government's "actual taking of possession and control" of the reserve raisins gives rise to a taking as clearly "as if the Government held full title and ownership," id.,at 431, 102 S.Ct. 3164(internal quotation marks omitted), as it essentially does. The Government's formal demand that the Hornes turn over a percentage of their raisin crop without charge, for the Government's control and use, is "of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine." Id.,at 432, 102 S.Ct. 3164. The Government thinks it "strange" and the dissent "baffling" that the Hornes object to the reserve requirement, when they nonetheless concede that "the government may prohibit the sale of raisins without effecting a per se taking." Brief for Respondent 35; post, at 2443 (SOTOMAYOR, J., dissenting). But that distinction flows naturally from the settled difference in our takings jurisprudence between appropriation and regulation. A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be "consist[ent] with the letter and spirit of the constitution." McCulloch v. Maryland,4 Wheat. 316, 421, 4 L.Ed. 579 (1819). As Justice Holmes noted, "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way." Pennsylvania Coal,260 U.S., at 416, 43 S.Ct. 158. B The second question presented asks "Whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion." The answer is no. The Government and dissent argue that raisins are fungible goods whose only value is in the revenue from their sale. According to the Government, the raisin marketing order leaves that interest with the raisin growers: After selling reserve raisins and deducting expenses and subsidies for exporters, the Raisin Committee returns any net proceeds to the growers. 7 CFR §§ 989.67(d), 989.82, 989.53(a), 989.66(h). The Government contends that because growers are entitled to these net proceeds, they retain the most important property interest in the reserve raisins, so there is no taking in the first place. The dissent agrees, arguing that this possible future revenue means there has been no taking under Loretto. See post,at 2437 - 2440. But when there has been a physical appropriation, "we do not ask ... whether it deprives the owner of all economically valuable use" of the item taken. Tahoe-Sierra Preservation Council,535 U.S., at 323, 122 S.Ct. 1465; see id.,at 322, 122 S.Ct. 1465("When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof." (citation omitted)). For example, in Loretto,we held that the installation of a cable box on a small corner of Loretto's rooftop was a per setaking, even though she could of course still sell and economically benefit from the property. 458 U.S., at 430, 436, 102 S.Ct. 3164. The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here. The dissent points to Andrus v. Allard,444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979), noting that the Court found no taking in that case, even though the owners' artifacts could not be sold at all. Post,at 2440. The dissent suggests that the Hornes should be happy, because they might at least get something from what had been their raisins. But Allardis a very different case. As the dissent recognizes, the owners in that case retained the rights to possess, donate, and devise their property. In finding no taking, the Court emphasized that the Government did not "compel the surrender of the artifacts, and there [was] no physical invasion or restraint upon them." 444 U.S., at 65-66, 100 S.Ct. 318. Here of course the raisin program requires physical surrender of the raisins and transfer of title, and the growers lose any right to control their disposition. The Government and dissent again confuse our inquiry concerning per setakings with our analysis for regulatory takings. A regulatory restriction on use that does not entirely deprive an owner of property rights may not be a taking under Penn Central. That is why, in PruneYard Shopping Center v. Robins,447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), we held that a law limiting a property owner's right to exclude certain speakers from an already publicly accessible shopping center did not take the owner's property. The owner retained the value of the use of the property as a shopping center largely unimpaired, so the regulation did not go "too far." Id.,at 83, 100 S.Ct. 2035(quoting Pennsylvania Coal Co.,260 U.S., at 415, 43 S.Ct. 158). But once there is a taking, as in the case of a physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation. See Suitum v. Tahoe Regional Planning Agency,520 U.S. 725, 747-748, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997)(SCALIA, J., concurring in part and concurring in judgment). That is not an issue here: The Hornes did not receive any net proceeds from Raisin Committee sales for the years at issue, because they had not set aside any reserve raisins in those years (and, in any event, there were no net proceeds in one of them). C The third question presented asks "Whether a governmental mandate to relinquish specific, identifiable property as a 'condition' on permission to engage in commerce effects a per se taking." The answer, at least in this case, is yes. The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don't like it, they can "plant different crops," or "sell their raisin-variety grapes as table grapes or for use in juice or wine." Brief for Respondent 32 (brackets and internal quotation marks omitted). "Let them sell wine" is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law. In Loretto,we rejected the argument that the New York law was not a taking because a landlord could avoid the requirement by ceasing to be a landlord. We held instead that "a landlord's ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation." 458 U.S., at 439, n. 17, 102 S.Ct. 3164. As the Court explained, the contrary argument "proves too much": "For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices." Ibid. As the Court concluded, property rights "cannot be so easily manipulated." Ibid. The Government and dissent rely heavily on Ruckelshaus v. Monsanto Co.,467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). There we held that the Environmental Protection Agency could require companies manufacturing pesticides, fungicides, and rodenticides to disclose health, safety, and environmental information about their products as a condition to receiving a permit to sell those products. While such information included trade secrets in which pesticide manufacturers had a property interest, those manufacturers were not subjected to a taking because they received a "valuable Government benefit" in exchange-a license to sell dangerous chemicals. Id.,at 1007, 104 S.Ct. 2862; see Nollan,483 U.S., at 834, n. 2, 107 S.Ct. 3141(discussing Monsanto). The taking here cannot reasonably be characterized as part of a similar voluntary exchange. In one of the years at issue here, the Government insisted that the Hornes turn over 47 percent of their raisin crop, in exchange for the "benefit" of being allowed to sell the remaining 53 percent. The next year, the toll was 30 percent. We have already rejected the idea that Monsantomay be extended by regarding basic and familiar uses of property as a "Government benefit" on the same order as a permit to sell hazardous chemicals. See Nollan,483 U.S., at 834, n. 2, 107 S.Ct. 3141(distinguishing Monsantoon the ground that "the right to build on one's own property-even though its exercise can be subjected to legitimate permitting requirements-cannot remotely be described as a 'governmental benefit' "). Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection. Raisins are not dangerous pesticides; they are a healthy snack. A case about conditioning the sale of hazardous substances on disclosure of health, safety, and environmental information related to those hazards is hardly on point. Leonard & Leonard v. Earle,279 U.S. 392, 49 S.Ct. 372, 73 L.Ed. 754 (1929), is also readily distinguishable. In that case, the Court upheld a Maryland requirement that oyster packers remit ten percent of the marketable detached oyster shells or their monetary equivalent to the State for the privilege of harvesting the oysters. But the packers did "not deny the power of the State to declare their business a privilege," and the power of the State to impose a "privilege tax" was "not questioned by counsel." Id.,at 396, 49 S.Ct. 372. The oysters, unlike raisins, were "feræ naturæ" that belonged to the State under state law, and "[n]o individual ha[d] any property rights in them other than such as the state may permit him to acquire." Leonard v. Earle, 155 Md. 252, 258, 141 A. 714, 716 (1928). The oyster packers did not simply seek to sell their property; they sought to appropriate the State's. Indeed, the Maryland Court of Appeals saw the issue as a question of "a reasonable and fair compensation" from the packers to "the state, as owner of the oysters." Id.,at 259, 141 A., at 717(internal quotation marks omitted). Raisins are not like oysters: they are private property-the fruit of the growers' labor-not "public things subject to the absolute control of the state," id.,at 258, 141 A., at 716. Any physical taking of them for public use must be accompanied by just compensation. III The Government correctly points out that a taking does not violate the Fifth Amendment unless there is no just compensation, and argues that the Hornes are free to seek compensation for any taking by bringing a damages action under the Tucker Act in the Court of Federal Claims. See 28 U.S.C. § 1491(a)(1); Monsanto,467 U.S., at 1020, 104 S.Ct. 2862. But we held in Horne Ithat the Hornes may, in their capacity as handlers, raise a takings-based defense to the fine levied against them. We specifically rejected the contention that the Hornes were required to pay the fine and then seek compensation under the Tucker Act. See 569 U.S., at ----, 133 S.Ct., at 2063("We ... conclude that the [Agricultural Marketing Agreement Act] withdraws Tucker Act jurisdiction over [the Hornes'] takings claim. [The Hornes] (as handlers) have no alternative remedy, and their takings claim was not 'premature' when presented to the Ninth Circuit."). As noted, the Hornes are both growers and handlers. Their situation is unusual in that, as handlers, they have the full economic interest in the raisins the Government alleges should have been set aside for its account. They own the raisins they grew and are handling for themselves, and they own the raisins they handle for other growers, having paid those growers for all their raisins (not just the free-tonnage amount, as is true with respect to most handlers). See supra,at 2424 - 2425; Tr. of Oral Arg. 3-4. The penalty assessed against them as handlers included the dollar equivalent of the raisins they refused to set aside-their raisins. 750 F.3d, at 1135, n. 6; Brief for Petitioners 15. They may challenge the imposition of that fine, and do not have to pay it first and then resort to the Court of Federal Claims. Finally, the Government briefly argues that if we conclude that the reserve requirement effects a taking, we should remand for the Court of Appeals to calculate "what compensation would have been due if petitioners had complied with the reserve requirement." Brief for Respondent 55. The Government contends that the calculation must consider what the value of the reserve raisins would have been without the price support program, as well as "other benefits ... from the regulatory program, such as higher consumer demand for raisins spurred by enforcement of quality standards and promotional activities." Id.,at 55-56. Indeed, according to the Government, the Hornes would "likely" have a net gain under this theory. Id.,at 56. The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach, or its notion that general regulatory activity such as enforcement of quality standards can constitute just compensation for a specific physical taking. Instead, our cases have set forth a clear and administrable rule for just compensation: "The Court has repeatedly held that just compensation normally is to be measured by 'the market value of the property at the time of the taking.' " United States v. 50 Acres of Land,469 U.S. 24, 29, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984)(quoting Olson v. United States,292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)). Justice BREYER is concerned that applying this rule in this case will affect provisions concerning whether a condemning authority may deduct special benefits-such as new access to a waterway or highway, or filling in of swampland-from the amount of compensation it seeks to pay a landowner suffering a partial taking. Post,at 2435 - 2436 (opinion concurring in part and dissenting in part); see Bauman v. Ross,167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270 (1897)(laying out of streets and subdivisions in the District of Columbia). He need not be. Cases of that sort can raise complicated questions involving the exercise of the eminent domain power, but they do not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here. Nothing in the cases Justice BREYER labels "Baumanand its progeny," post, at 2435, suggests otherwise, which may be why the Solicitor General does not cite them. In any event, this litigation presents no occasion to consider the broader issues discussed by Justice BREYER. The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53. 750 F.3d, at 1135, n. 6. The Government cannot now disavow that valuation, see Reply Brief 21-23, and does not suggest that the marketing order affords the Hornes compensation in that amount. There is accordingly no need for a remand; the Hornes should simply be relieved of the obligation to pay the fine and associated civil penalty they were assessed when they resisted the Government's effort to take their raisins. This case, in litigation for more than a decade, has gone on long enough. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed. It is so ordered. 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.

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Clifton BYRD et al., Plaintiffs-Appellants, v. CITY OF SAN ANTONIO, TEXAS et al., Defendants-Appellees. No. 77-1014. United States Court of Appeals, Fifth Circuit. Jan. 2, 1979. Rehearing and Rehearing En Banc Denied Feb. 2,1979. Craig L. Austin, San Antonio, Tex., for plaintiffs-appellants. F. W. Baker, Jon C. Wood, Crawford B. Reeder, Asst. City Atty., Jane H. Macon, City Atty., San Antonio, Tex., for defendants-appellees. Before GEE and VANCE, Circuit Judges, and HUNTER, District Judge. United States Senior District Judge for the Western District of Louisiana, sitting by designation. EDWIN F. HUNTER, Jr., District Judge: Plaintiffs instituted this suit to redress the alleged deprivation of federal constitutional and statutory rights. It is in essence a frontal attack upon what plaintiffs refer to as “self perpetuation of the control and management of a municipal bureaucracy, the City Public Service Board of San Antonio.” They contend that the procedure utilized in selecting Board members deprives them of their right to vote, and constitutes a denial both of Equal Protection and the right to a Republican Form of Government. The district court dismissed the action, finding that each claim alleged was, as a matter of law, wholly without merit. We AFFIRM. I. FACTUAL BACKGROUND In 1942, the City of San Antonio acquired ownership of the gas and electric utility system in that city. This purchase was financed by the proceeds from the sale of $33,950,000 first mortgage bonds. The bonds were issued pursuant to Article 1111, et seq., of the Texas Civil Statutes, which allow Texas cities to purchase utility systems through the issuance of bonds secured by a pledge of the revenues from operation of the systems, provided that such obligations shall never be a debt of the City but solely a charge upon the revenues of the encumbered systems. Article 1115 provides for the management and control of such systems during the time of encumbrance to be placed either in the City Council or in a Board of Trustees, to be named in the contract of encumbrance, having not more than five members, one of whom must be the mayor of the city. The statute further provides: The terms of office of such board of trustees, their powers and duties, the manner of exercising same, the election of their successors, and all matters pertaining to their organization and duties may be specified in such contract of encumbrance. Pursuant to this authority, the Trust Indenture securing the original issue of bonds vested management of the systems in a five-member board, including the mayor as an ex officio member. The other initial members were appointed by the City Council. Any vacancy on the Board is filled by a majority vote of the remaining board members. The term of membership is fixed at five years. The individual members of the Board cannot “perpetuate” themselves in office because the indenture limits members to two terms of service. This 1942 indenture, authorized by an ordinance of the City Council, was superseded by an indenture dated February 1, 1951, also adopted as an ordinance, and contained identical selection provisions. The 1951 indenture was amended by seven supplemental indentures, each duly authorized by a city ordinance. The management provisions of the 1951 indenture were incorporated by reference into each supplemental indenture. The three most recent issues of revenue bonds occurred in 1975, 1976 and 1977. These are referred to as “New Series” Revenue Bonds and were issued under ordinances authorizing a Board selection method different from that prescribed in the 1951 indenture. The new procedure may be utilized only upon the payment of all the Old Series Bonds. The basic claim of constitutional deprivation is premised on the presumption that the Board is “a form of government” subject to strictures of republicanism and federal voting controls. This premise is incorrect. The only “governmental body” of San Antonio to which the constitutional and statutory provisions urged by appellants would apply is the City Council. Only it can issue bonds for extending or improving the system. Only the Council can review, revise or set rates. Only the Council can authorize condemnation of land. The district court’s holding that the Board “is not a form of government but is a board of managers of the municipally-owned San Antonio Electric and Gas system held and operated as a corporate and proprietary activity of the City of San Antonio” is precisely correct. See San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262, 264 (Tex.1976). There is no statute or constitutional provision which requires election — or appointment by elected officials — of the persons who carry out this proprietary and non-governmental function. The appellants cite neither judicial nor statutory law which would hold that the officers in question are legislative officers under the appropriate federal standards, or that their selection by the methods appellants urge would be required as a matter of law. See Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Rosenthal v. Board of Education, 385 F.Supp. 223 (E.D. N.Y., 1974), aff’d. 420 U.S. 985, 95 S.Ct. 1418, 43 L.Ed.2d 667 (1975); Benner v. Oswald, 444 F.Supp. 545 (M.D.Pa., 1978). Appellants insist that the vacancy selection procedure denies them the Republican Form of Government guaranteed by the Constitution, because the Board has been effectively removed from direct or indirect accountability to the electorate. The Supreme Court has consistently held that the Guaranty Clause is primarily political in nature, and its enforcement is a matter for Congress rather than the courts. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912); Ohio ex rel. Bryant v. Akron Metropolitan Power District, 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710 (1930); Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). Someday, in certain circumstances, the judicial branch may be the most appropriate branch of government to enforce the Guaranty Clause. This is definitely not such a case. The City Public Service Board does not usurp from the City of San Antonio nor can it, as a matter of law, exercise in its own right any governmental powers which would result in constituting it either a “form of government” or a “governmental body.” In the area in which we are involved — federal constitutional and statutory law — we find no support for plaintiffs’ contentions. They insist that the ordinances and indentures, pursuant to which the Council delegated to the remaining members of the Board the power to fill vacancies, exceeded the authority granted to the Council under the state statute. The problem presented by that contention is, of course, simply a matter of interpretation of state law, and does not present a federal question. The judgment of the district court is AFFIRMED. . United States Constitution, Amendment XIV, § L . United States Constitution, Article IV, § 4. . We are not suggesting that the City of San Antonio is powerless to change the existing selection process now. Indeed, it has consistently expressed its preference to retain the present selection procedure until all of the Old Series bonds have been retired. There are now $195,000,000 in bonds still outstanding which contain the provisions for management in the trust indentures issued from 1951 through 1974. There are $170,000,000 in bonds issued under the New Series. . Appellants insist “that elections be promptly held in order that new members of the Board may be Constitutionally selected or, in the alternative, order that Defendants * * * as members of the City Council of the City of San Antonio, fill the existing vacancy and appoint trustees to serve the remainder of the appointive members terms;” . The majority concurring opinion by Judge Wisdom in Kohler v. Tugwell, 292 F.Supp. 978, 985 (E.D.La.1968), aff'd 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969). . One of the many allegations of the complaint is that the vacancy appointment procedure “is for the purpose and has the effect of continuing racial and ethnic discrimination * * * by the virtual exclusion of Mexican-Americans and the total exclusion of Blacks from the City Public Service Board of San Antonio.” It was revealed during argument that there are now four (4) appointed members. Two are Mexican-Americans, one of whom is Chairman. One member is Black. One member is Anglo.

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

BOOSALIS v. CRAWFORD. No. 6966. United States Court of Appeals for the District of Columbia. Decided July 18, 1938. Harry T. Whelan, W. B. O’Connell and Wm. A. Gallagher, all of Washington, D. C., for appellant. David A. Pine, U. S. Atty., John J. Wilson, Asst. U. S. Atty., Elwood H. Seal, Corp. Counsel, and Chester H. Gray, Asst. Corp. Counsel, for appellee. Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices. STEPHENS, Associate Justice. This is an appeal from a judgment of the District Court of the United States for the District of Columbia. The action was one in replevin brought by the appellant as owner of three “claw machines” seized by members of the Metropolitan Police Department, District of Columbia, and delivered to the appellee as Property Clerk of the Department. There was a trial to a jury. At the outset of the trial it was stipulated that the machines were the property of the appellant and that they were seized by the police; it was stipulated further that the case was to be a test case to determine the legality of the operation of claw machines in the District. As the case was tried below the only substantive issue raised was whether the machines were, within the meaning of the pertinent statutory provisions, gambling devices. As to the power of the police to seize and forfeit the machines if they are gambling devices, no question was raised below and none is raised on this appeal. Evidence was introduced by both parties. To the admission of certain of the evidence objection was made and exception taken. At the close of the case the appellee moved for a directed verdict and the motion was granted. Thereafter a motion for a new trial was made and denied, judgment for the appellee was entered, and this appeal was taken. The basic question before us is whether the trial judge was justified in taking the case from the jury. A court may direct a verdict against a plaintiff if the evidence is such, giving the plaintiff the full effect of every legitimate inference, that no reasonable juryman could reach a verdict for him. Lyons v. Liberty Nat. Bank, 67 App. D.C. 14, 89 F.2d 486, 1937; Fleming v. Fisk, 66 App.D.C. 350, 87 F.2d 747, 1936; Speirs v. District of Columbia, 66 App.D. C. 194, 85 F.2d 693, 1936. The pertinent statutory provisions are: “Whoever shall in the District set up or keep any gaming table, or any house, vessel, or place, on land or water, for the purpose of gaming, or gambling device commonly called ABC, faro hank, E O, roulette, equality, keno, thimbles, or little joker, or any kind of gaming table or gambling device adapted, devised,, and designed for the purpose of playing any game of chance for money or property, or shall induce, entice, and permit any person to bet or play at or upon any such gaming table or gambling device, or on the side of or against the keeper thereof, shall be punished by imprisonment for a term of not more than five years.” [D.C.Code (1929) tit. 6, § 153] “All games, devices, or contrivances at which money or any other thing shall he bet or wagered shall be deemed a gaming table within the meaning of sections 153, 154, and 155 of this title; and the courts shall construe said sections liberally, so as to prevent the mischief intended to be guarded against.” [D.C.Code (1929) tit. 6, § 156] This court, in accordance with the Congressional injunction in the second paragraph, has construed the first one liberally. See Miller v. United States, 6 App.D.C. 6, 1895, and Swan v. United States, 54 App. D. C. 100, 295 F. 921, 1923, holding that accepting bets upon horse races is within the statute. We said: “ ‘Any games, devices, or contrivances set up or kept for the purpose of gaming, or any gambling device, so set up and kept, adapted, devised and designed for the purpose of playing any game of chance for money or property, and to which the public may resort to bet or wager money, is a gaming table within the meaning of the statute. The definition of a gaming table under the statute does not involve the ordinary mechanical definition of a table, but depends for its statutory meaning upon the means or contrivances adopted for playing the game.’ ” [54 App.D.C. at page 102, 295 F. at page 923 ; 6 App.D.C. at page 12] The claw machines involved in the instant case and illustrated in the accompanying cut taken from the record, consist, as shown by the evidence, of a miniature electric shovel or claw operating through a boom and mast set upon the forward portion of a miniature ship within a glass case. When in operation that portion of the case surrounding the ship is filled with candy to approximately the level of the top of the hull. Set upon the candy are items of merchandise such as kodaks, wrist watches, safety razors, clocks. Operation of such a machine, when carried on by a player according to the printed directions, is as follows: The player turns the locator-handle at the right center of the machine to the right or left with the effect of moving the boom and the claw so that the latter will be suspended at a point in the vicinity of a desired article. He then inserts a nickel in the aperture at the left center of the machine. This pauses an electric motor to commence operating and the following movements occur: first, the boom moves forward; second, the claw drops down, spreading as it touches an object; third, the claw returns upward, closing as it does so; fourth, the boom moves backward, carrying the claw to a position over a chute located in the prow of the ship; fifth, the claw drops and opens. If the claw descends upon an article it may grasp the same in its closing and upward movement and carry and deposit it in the chute. When this occurs, the player, by pulling out the receptacle in the center of the machine, obtains the article. It would serve no useful purpose to detail the evidence introduced in respect of the question whether or not the machines operate as gambling devices. Suffice it to say that in respect of a player operating a machine according to directions, the evidence was uncontroverted that, except to the extent that he could, by turning the locator-handle, suspend the claw in the vicinity of a desired article, the operation of the machine was beyond his control. It was further uncontroverted that even if the claw, were suspended immediately over an article, “there are chances that the claw may not strike the article . . ., that if it does strike the article, it may not grip the article, or, having gripped the article, that it may slip off, without in any way moving the article, or that, if it does lift the article, the article may drop off before reaching the chute, or may be knocked off by some other articles in the way.” So it was put by the trial judge, and we think accurately. Under these circumstances, no reasonable juryman could reach a conclusion that these machines were not gambling devices within the meaning of the statute. Even giving -the appellant the benefit of an assumption that the evidence establishes that skill played a part in suspending the claw in the vicinity of a desired article, no other conclusiqn could reasonably be reached than that, on the whole of the operation of the machines according to directions, chance predominated over skill or was present in such manner as to thwart the exercise of skill. Under such facts, the device operates as a game of chance. See Commonwealth v. Plissner, Mass., 4 N.E.2d 241, 1936; Commonwealth v. Ward, 281 Mass. 119, 183 N.E. 271, 1932; People ex rel. Ellison v. Lavin, 179 N.Y. 164, 71 N.E. 753, 66 L.R.A. 601, 1 Ann.Cas. 165, 1904. These cases construed the phrase “game of chance”; and Commonwealth v. Plissner and Commonwealth v. Ward involved claw machines. There was evidence in the case which tended to establish that an experienced player, going beyond directions, could, by rapidly spinning the locator-handle after the claw had seized an article and moved it upward, cause the boom to carry the claw and article more swiftly than it otherwise would to a point over the chute; and that this decreased the chances of the article’s being dropped on the way, so that such a player would have substantial success in obtaining an article once it had been grasped by the claw. But the appellant cannot escape the force of the statute because a player may, by going beyond the directions upon the machine, achieve a skill resulting in substantial success in obtaining articles once they have been grasped by the claw. It would overstrain credulity to conclude that the appellant set these machines up to be operated beyond directions 'and in a manner which would enable a skilled player to get a valuable item of merchandise for a nickel. Obviously the machines were -adapted, devised, and designed to operate in favor of the house. In respect of the admission of evidence : The testimony of certain police officers that they operated the machines according to directions and largely unsuccessfully was objected to as negative in character. This objection goes to the weight, not to the admissibility, of the evidence. The testimony of certain police officers as to their observation of the use of the machines by others was objected to as res inter alios acta. This rule of exclusion is designed to apply to evidence of transactions not affecting a party to the litigation and to which he was not a party. See Humble, Evidence (1934) § 342. But the rule is one merely of auxiliary policy authorizing a trial judge to exclude evidence which unduly multiplies issues or which, though relevant, may he unfairly prejudicial. See Hughes, Evidence (1907) pp. 36-7; 1 Wigmore, Evidence (2d ed.1923) c. 16, and especially therein Sections 443 and 444. So considered the rule is inapplicable in the instant case. The issue here is not one between the appellant and another as to the operation of the machines upon a particular occasion. The issue is whether or not the machines are gambling devices as played by the public according to directions. The manner and effect of the operation of the machines by members of the public, whether testified to by players themselves or by those observing players, is relevant to this issue; and such relevancy is not dependent upon the resolution of collateral issues. The evidence was not unfairly prejudicial. 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?

David M. KEARNS and Janet Kearns, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 91-2228. United States Court of Appeals, Sixth Circuit. Argued Aug. 3, 1992. Decided Nov. 23, 1992. Kenneth Andrew Gamble, Theodore F. Claypoole (argued and briefed), Gamble, Hartshorn, Grace & Alden, Columbus, Ohio., for petitioners-appellants. Abraham N.M. Shashy, Jr., Chief Counsel, I.R.S., Office of Chief Counsel, Gary R. Allen, Acting Chief (briefed), Gilbert S. Rothenberg, William J. Patton (argued), U.S. Dept, of Justice, Appellate Section Tax Div., Washington, D.C., for respondent-ap-pellee. Before: MARTIN and SILER, Circuit Judges; and DOWD, District Judge. The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. BOYCE F. MARTIN, JR., Circuit Judge. David and Janet Kearns appeal the United States Tax Court’s finding that they underreported their joint income for 1979, 1980, and 1981. David Kearns also appeals the court’s imposition of additional penalties based on his fraudulent underreporting of income on the federal tax forms. From 1979 through 1981, David Kearns owned and operated an automobile parts and service company. Janet Kearns, his wife, was the bookkeeper for the business. In their testimony before the Tax Court, they admitted that they conducted the vast majority of their automobile parts business in cash. During 1979 the Kearns reported an annual gross income of $19,512. The Tax Court determined that in 1979 and the following two years, the Kearns made bank deposits and cash expenditures of substantially larger amounts. It was proven that in mid-1979 the Kearns paid approximately $24,000 in cash for a purchase of land. The Kearns spent approximately $61,000 on materials and services to build a new house on the newly-acquired property, even though they reported an annual gross income of no more than $22,600 for those years. A tax audit was conducted and a deficiency was found for each of the tax years in question. Because the Kearns lacked accurate records, the Commissioner reconstructed the contested income by using the “bank deposits and cash expenditures” method. See 26 U.S.C. § 446(b) (1986); United States v. Abodeely, 801 F.2d 1020, 1023 (8th Cir.1986). In using the bank-deposits-and-cash-expenditures method, the government must “ ‘initially introduce evidence to show (1) that, during the tax years in question, the taxpayer was engaged in an income producing business or calling; (2) that he made regular deposits of funds into bank accounts; and (3) that an adequate and full investigation of those accounts was conducted in order to distinguish between income and non-income deposits.’ ” Abodeely, 801 F.2d at 1023-1024 (quoting United States v. Morse, 491 F.2d 149, 152 (1st Cir.1974)) (exhaustive explanation of the mechanics of the bank-deposits-and-cash-expenditures method). The bank-deposits-and-cash-expenditures method involves some simple mathematical calculations. It totals all bank deposits and deducts the non-taxable deposits and amounts on deposit prior to the tax years in question from this gross total. Abodeely at 1023-24. This subtotal is the net taxable bank deposits. Id. It then adds to this amount “any other income which the taxpayer received but did not deposit in any bank .account.” Id. The resulting figure is net unreported income. The government must also demonstrate that the net unreported income calculated by this method is derived from a taxable source. Id. Using this method of calculating income, the Commissioner found deficiencies in the Kearns’ federal income tax of $7,667 in 1979, $14,078 in 1980, and $6,705 in 1981. As a result, the Commissioner assessed civil penalties that totalled $14,225. The Kearns challenged the Commissioner’s determinations before the Tax Court. The Kearns explained that they had assembled a cash hoard of at least $90,000 in 1979 that was stored in a cash box. The Kearns claimed that they acquired the hoard from gifts, inheritances, loans, and nontaxable sales of equipment. The Kearns argued that their expenditures during 1979-1981 were drawn from this cash hoard, accounting for the discrepancy between their bank deposits, expenditures, and their tax returns. At trial, the Kearns testified that the cash hoard consisted of $60,000 in loans from David Kearns’ father, James Kearns; $15,000 from five Christmas gifts from James Kearns; a $6,500 award from a civil suit; $12,000 saved from per diem payments from David Kearns’ job with a mortgage company; and proceeds from the sale of automobiles, machinery, and tools. The Tax Court found that the Kearns' explanations about the existence and makeup of the cash hoard were internally contradictory and inconsistent, and it determined that the Kearns only possessed the $6,500 cash award from the civil suit. Specifically, the court found that James Kearns did not possess the financial means to make the alleged loans of $60,000 or the alleged Christmas gifts of $15,000. The court discounted, the $12,000 that David Kearns allegedly saved from the mortgage company per diem, finding that his various explanations concerning the payments were implausible and inconsistent. The court also found that the Kearns did not place funds from the sale of various cars, motorcycles, and equipment into the cash hoard. The court also found that the Commissioner proved that the underpayments were due to fraud. After adding a fraud penalty to the assessment of David Kearns, the court found that the period of assessment remained open for both David and Janet Kearns. Because Janet Kearns significantly benefitted from the underreporting, the court did not award her the innocent spouse relief under section 6013(e) of the Internal Revenue Code. In reviewing the findings of the Commissioner, the Tax Court adjusted the deficiencies and penalties in favor of the Kearns to account for eight cash expenditures items. Here the Kearns argue that the Tax Court' erred in assessing their deficiencies and in finding that the - Commissioner proved that David Kearns fraudulently un-derreported nis income. The Kearns argue that the Tax Court erred by not shifting the burden of proof to the Commissioner when the Tax Court adjusted some of the Commissioner’s findings concerning the Kearns’ deficiency. The Kearns also argue that the Tax Court erred by ignoring alleged misrepresentation by an Internal Revenue agent assigned to investigate the Kearns. The Commissioner’s determination of a tax deficiency is generally presumptively correct and the taxpayer has the burden of proving that- the determination is erroneous or arbitrary. United States v. Janis, 428 U.S. 433, 440, 96 S.Ct. 3021, 3025, 49 L.Ed.2d 1046 (1976). See also Rule 142(a), Rules of Practice and Procedure of the United States Tax Court (Jan. 16, 1984). We generally review the Tax Court’s findings of fact on the clearly erroneous standard. Rose v. Commissioner, 868 F.2d 851, 853 (6th Cir.1989). We have generally followed the rule that factual determinations are not clearly erroneous unless we are left with a definite and firm conviction that a mistake has been made. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). We review .the Tax Court’s application of the law using the de novo standard. Rose, 868 F.2d at 853. See also Humana Inc. v. Commissioner, 881 F.2d 247, 251 (6th Cir.1989). In the present case, the Tax Court heard the Kearns’ evidence concerning the existence of a cash hoard and found that the Kearns had deficiencies for the years in question. It is the Tax Court’s role to find the facts and it is our role to review those findings of fact and apply the clearly erroneous standard to them. See Rose, 868 F.2d at 853; Humana, 881 F.2d at 251. The Tax Court’s determination of a deficiency, utilizing and adjusting the Commissioner's determination, was a finding of fact and therefore is subject to the clearly erroneous standard of review. The Ta,x Court found that the Commissioner’s determinations were substantially correct. After hearing the evidence, including the Kearns’ rebuttal of the Commissioner’s evidence, the Tax Court found against the Kearns. In light of the court’s fact-finding and considering the evidence the Tax Court had before it, the Kearns’ argument concerning burden shifting is without merit. The finding that there was no cash hoard of $90,000 was not clearly erroneous. We also reject the Kearns’ argument that the Tax Court erred in finding that David Kearns committed fraud in underreporting income. The facts certainly establish that David Kearns committed fraud and accordingly the Tax Court’s finding of fraud was not clearly erroneous. The Kearns’ final argument is that the Internal Revenue agent who conducted the audit acted fraudulently by intimidating witnesses and fabricating evidence. This contention involves credibility and is relevant to the legal question of how much did the Kearns owe. David Kearns claims that two cash expenditures on the Commissioner’s notice of deficiency were fabricated by the IRS agent. The disputed items are an expenditure of $800 to David Evans for backhoe work and an expenditure of $4,000 to Paul Edwards for paving a driveway. At trial, David Evans testified that he did not do any backhoe work and that Kearns did not pay him $800. Evans also testified that Cremeens, the IRS agent in question, intimidated Evans by threatening an audit. Paul Edwards testified that Keariis only paid him $3,800 in cash for the driveway work. Edwards also stated that Cremeens took a blank invoice. The blank invoice was later filled in with $4,000 and Edwards’ signature, ostensibly by Cremeens. The Tax Court properly examined Kearns’ assertions in determining the taxes and penalties owed by the Kearns. Concerning the $800 and $4,000 invoices, the government conceded the Kearns’ position on the two expenditures at trial. By that time, Cremeens no longer worked for the IRS and could not be found in order to testify. Moreover, Kearns admitted spending $3,800 on paving a driveway during one of the tax years in question and thus got the benefit of the government’s conclusion. Kearns did not present evidence that established that the Tax Court erred in computing the amount due. Consequently, sufficient evidence existed to support the determination by the Tax Court that Kearns owed $14,225 in civil penalties. For the reasons stated above, we affirm the judgment of the Tax Court.-

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

Ronnie BUCK, Petitioner-Appellee, v. Calvin GREEN, Warden, Respondent-Appellant. No. 88-8522. United States Court of Appeals, Eleventh Circuit. June 13, 1989. William B. Hill, Jr., Paula K. Smith, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellant. Alice Stewart, Atlanta, Ga., for petitioner-appellee. Before HILL and EDMONDSON, Circuit Judges, and ATKINS , Senior District Judge. Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation. EDMONDSON, Circuit Judge: This habeas corpus appeal involves 28 U.S.C. sec. 2254(d)(1) and the presumptive correctness of certain state court determinations. The district court granted habeas corpus relief to Ronnie Buck on the ground that blacks were systematically excluded from the grand and traverse jury rolls from which the jury that convicted Buck was selected. We vacate the district court’s judgment and remand with directions. Background Ronnie Buck was indicted on four counts of armed robbery and on one count of aggravated battery. Buck was tried, convicted, and sentenced to four concurrent life sentences on the armed robbery counts plus twenty years consecutive imprisonment for the aggravated battery. In a motion for new trial, Buck claimed for the first time that blacks and women were improperly excluded from the grand and traverse jury pools. In support of his motion, Buck submitted the grand and traverse jury lists for 1974 and 1976 with the race and sex of each name supposedly identified. Buck contended that this identification was made by first looking at the voter registration list and then by asking black citizens with personal knowledge to identify the race and sex of those persons who could not be found on the voter list. Counsel then compared the percentage of blacks on the jury lists with the percentage of age-eligible blacks in the county and argued that the resulting disparity amounted to a prima facie case of discrimination. The trial judge denied the motion for new trial. Buck appealed to the Georgia Court of Appeals. That court denied the claim on the merits, noting that the state never conceded that the racial designations accurately reflected the racial composition of the jury list and that the trial court made no finding that the designations were accurate. Buck v. State, 151 Ga.App. 252, 259 S.E.2d 493, 495 (1979). Buck filed for federal habeas corpus relief. Initially the district court dismissed his petition for failure to exhaust state remedies. This court reversed the district court and remanded for further proceedings. Buck v. Green, 743 F.2d 1567 (11th Cir.1984). The district court fully adopted the magistrate’s recommendation — made following an evidentiary hearing — and granted habeas relief. 690 F.Supp. 1034. Georgia now appeals the judgment of the district court. Presumption of correctness Because petitioner alleged facts in his petition which, if true, would entitle him to federal habeas relief, we cannot say that the district court abused its discretion in holding an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (federal courts may hold evidentiary hearing even when hearing is not mandatory); Holley v. Smith, 792 F.2d 1046, 1049 (11th Cir.1986). The state argues that the district court improperly denied a presumption of correctness to the state court’s factual finding that Buck had failed to prove improper racial composition of the jury pools. Section 2254(d) of Title 28 of the United States Code establishes a presumption of correctness for a state court’s factual finding unless one of the eight listed conditions is met or unless convincing evidence shows that the factual determination by the state is erroneous. See Thomas v. Zant, 697 F.2d 977, 984 (11th Cir.1983), vacated, Kemp v. Thomas, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), on remand, Thomas v. Kemp, 800 F.2d 1024 (1986). In this case, the state trial court noted that a list of juror’s names had been introduced into evidence and that the defense contended that the list had been studied by black citizens of the county and marked for racial identification. The state stipulated that the jury list itself was correct but did not admit the accuracy of the racial identifications. The state trial court said, “This evidence amounts to an unsubstantiated assertion that blacks were systematically excluded.” Id. at 120. The court pointed out that no other evidence had been proffered except census figures. Having found that Buck failed to establish the accuracy of the racial identification of each venireperson, the trial court determined that the “doubtful designations on the list tendered in evidence fail to establish a prima facie case of discrimination.” Id. at 120-21. The trial court then declared that the “mere allegation unsupported by proof” presented no cause for granting a motion for new trial. Id. at 121. On appeal, the Georgia Court of Appeals observed that the defendant had the burden of showing jury discrimination. Buck v. State, 151 Ga.App. 252, 259 S.E.2d 493, 494 (1979). The appeals court stressed that the prosecution made no concession that the racial designations were accurate and that “the trial judge did not so find.” Id. 259 S.E.2d at 495. The court further determined that “[t]he defendant did not establish a prima facie case since he failed to show a significant disparity between the eligible black jurors and those chosen. Hence the trial judge did not err in denying the defendant’s motion for a new trial.” Id. at 495. Federal courts must defer to state court findings of fact unless one of the conditions listed at 28 U.S.C. sec. 2254(d) is present. Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). Section 2254(d) specifies no procedural requirements that must be satisfied for a “hearing on the merits of a factual issue” except that the habeas petitioner and the state or its agents be parties to the state proceeding and the state court determination be evidenced by “a written finding, written opinion or other reliable and adequate written indicia.” Id. The magistrate determined that neither the state trial court nor the court of appeals made a factual finding on the sufficiency of Buck’s claim. The magistrate refused to apply the presumption of correctness because “the merits of the factual dispute were not resolved in the State court hearing....” See 28 U.S.C. sec. 2254(d)(1). We disagree with this conclusion. The merits of the factual dispute were resolved in the state courts. Both state courts found that the accuracy of the racial designations were unsubstantiated and, therefore, determined that Buck failed to establish a prima facie case of discrimination. “Unsubstantiated” means “not proved;” and the state trial court’s determination that the designations were unsubstantiated and that defendant’s allegations of discrimination were unsupported amounts to a finding of fact of no under-representation of blacks or women. The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion. . 28 U.S.C. section 2254(d) states: In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit— (1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous. . These designations were notations of race and sex (BF, BM, WF, WM) made by persons under no oath and unknown to the trial court. . To avoid the presumption of correctness, the magistrate’s recommendation relied expressly on 2254(d)(1). We therefore address only 2254(d)(1).

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?

William J. GREENE, Jr., an Infant, by his Parents and Next Friends, William J. Greene and Ereline Greene, Appellants, v. James E. WEATHERINGTON, Appellee. No. 16626. United States Court of Appeals District of Columbia Circuit. Argued Jan. 3, 1962. Decided March 29, 1962. Mr. Leonard L. Lipshultz, Washington, D. C., with whom Messrs, Sol. Friedman and Hyman L. Rosenberg, Washington, D. C., were on the brief, for appellants. Mr. Joseph A. McMenamin, Washington, D. C., for appellee. Before Wilbur K. Miller, Chief Judge, and Bazelon and Fahy, Circuit Judges. FAHY, Circuit Judge. James E. Weatherington, appellee herein, at all material times has been a nearby resident of Maryland. He was arrested within the District of Columbia for the alleged shooting of appellants’ minor son. He was thereafter charged in this jurisdiction with the crimes of assault with a dangerous weapon and carrying a dangerous weapon. Upon posting bond he was released pending a preliminary hearing. On June 12, 1961, he appeared at the preliminary hearing in obedience to the terms of the bond. At the conclusion of the hearing he was held for action of the grand jury. While awaiting the processing of a further bond he was remanded to the custody of a Deputy United States Marshal and placed in a cell in the courthouse of the Municipal Court, in the District of Columbia. While being detained in the cell appellee was served with a summons in a civil action filed in this jurisdiction by appellants in their own right and as. next friends of their infant son, claiming damages alleged to have grown out. of the shooting incident. Appellee moved to quash service of the summons, contending that in the-circumstances he was immune from service of process. The court granted the.motion. This appeal was taken from the-order denying appellants’ motion to set aside the order quashing service. As a general rule service of process on a defendant in a transitory action such as this may be maintained where-ever he can be found. Stewart v. Baltimore & O. R. R., 168 U.S. 445, 448, 18 S.Ct. 105, 42 L.Ed. 537; Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 90 N.E. 962, 27 L.R.A.,N.S., 333 (1910). But there is also a general exception “that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit are immune from service of process in another,” a. rule, however, “founded, not upon the-convenience of the individuals, but of the court itself.” Lamb v. Schmitt, 285 U.S. 222, 225, 52 S.Ct. 317, 76 L.Ed. 720 ; Government of the Dominican Republic v. Roach, 108 U.S.App.D.C. 51, 280 F.2d 59, cert. denied, 364 U.S. 878, 81 S.Ct. 166, 5 L.Ed.2d 101; Schwarz v. Thomas, 95 U.S.App.D.C. 365, 222 F.2d 305; Church v. Church, 50 App.D.C. 239, 270 F. 361. In Church the defendant, a Virginia resident employed in North Carolina, was served in this District in a civil action at a time when he had come here from North Carolina to stand trial in a related criminal case. The court held that his motion to quash the service should have been granted. It was said to be immaterial whether his presence in this jurisdiction was voluntary or involuntary, though the court believed it to be the latter. But in Government of the Dominican Republic v. Roach, supra, we said in reference to the Church decision, “It may be that the broad rule announced in Church v. Church is subject to limitation. We apply the Church rule here only to the limited extent required by the fact before us —to wit, voluntary appearance to criminal charges. We do not reach, and express no opinion concerning, questions whether the rule should be applied in other situations — for example, where attendance was not voluntary or where attendance at the trial of the cause by the person served with process in another action will not facilitate the disposition of such cause, or where the granting of immunity will defeat the ends of justice in the very cause for the protection of which the immunity is invoked.” 108 U.S.App.D.C. at 53, 280 F.2d at 61. Some language in Stewart v. Ramsay, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192, which preceded Lamb v. Schmitt, supra, as well as in Church, can be interpreted as referring to the privilege as that of the individual, but it is clear from the whole of both opinions that the privilege was recognized as that of the court, as was later made explicit in Lamb v. Schmitt. The Court there said: “As commonly stated and applied, it [the privilege] proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation. * * * •»**•»** “It follows that the privilege should not be enlarged beyond the reason upon which it is founded, and that it should be extended or withheld only as judicial necessities require. [Citations] Limitations of it on this basis have been not infrequently made because the attendance upon the trial of a cause, however vital to the personal interests of those concerned, was not for the purpose of facilitating the progress of the cause [Citations], or because the service was made on one whose attendance was not voluntary, and hence had no tendency to interfere with judicial administration. Netograph Co. v. Scrugham, supra.” 285 U.S. at 225, 226, 52 S.Ct. at 318. The facts in Lamb v. Schmitt made the service issue there rather unique, but we think the above guiding principies are applicable to our case, and we seek a solution within their confines. Our case pulls somewhat in both directions. Insofar as the civil action itself is concerned it is clear the convenience of the court would not be furthered by quashing the service. The events giving rise to the action occurred here, appellee was employed within this jurisdiction, and the shooting appears to have taken place while he was so employed; and as we have said he also resides nearby, although in Maryland. Moreover, his co-defendant, by whom he was employed, was the local transit company. However, the convenience of the court, or, in the language of Lamb v. Schmitt, “the due administration of justice,” which it is the purpose of the privilege to promote, has reference primarily to the proceedings the person has come into the jurisdiction to attend, not those in which the challenged service upon him is then made. Here again we think the reasons for the immunity do not apply to the service upon appellee. While one does not relish the idea of a man being served in a cell awaiting arrangements for release on bond, it can hardly be said appellee had come into this jurisdiction voluntarily when he was served. He was here in response to his obligation under a bond in a criminal proceeding growing out of alleged offenses committed in this jurisdiction. Thus the principal reason for the immunity, namely, to encourage voluntary cooperation with judicial administration, is absent. Service in somewhat similar circumstances was upheld in Netograph Mfg. Co. v. Scrugham, supra, with the difference that the person there served in the civil action was not actually in detention. He was a nonresident, however, and had appeared in compliance with a recognizance previously given in a criminal case. To like effect see Employers Mut. Liab. Ins. Co. v. Hitchcock, 158 F.Supp. 783 (E.D.Mo.1958); Ryan v. Ebecke, 102 Conn. 12, 128 A. 14, 40 A.L.R. 88 (1925). There may be said to be some embarrassment to the court due to the service upon appellee in a cell in the courthouse, but when we consider the limited effect of the service, this circumstance is not as serious as it might be in some situations. The effect is not to interfere with the criminal proceedings or to discourage voluntary attendance of nonresidents in judicial proceedings here, because appellee’s attendance was not voluntary. The effect is merely to require appellee, who lives nearby, to respond later to a civil action in this District where he was employed when he is alleged to have committed the assault. The fact that the privilege belongs to the court, and not to the individual, does not mean that the court has a discretion which is free of the standards under which the law authorizes the privilege to be granted. These are designed to prevent interference with the administration of justice, and, particularly, to encourage those who are not hound to attend to do so voluntarily and thus assist the courts in their work. It does not seem to us that these underlying reasons for the privilege call for the invalidation of the service in this case. Reversed.

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

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

What follows is an opinion from a United States Court of Appeals. 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 50. 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 50? Answer with a number.

Albert C. ANDERSON and Olive Anderson, Plaintiffs, Appellants, v. OWENS-ILLINOIS, INC., et al., Defendants, Appellees. No. 85-1622. United States Court of Appeals, First Circuit. Heard April 11, 1986. Decided Aug. 25, 1986. John T. Barrett with whom Thornton & Early, Boston, Mass., was on brief, for plaintiffs, appellants. Lawrence G. Cetrulo with whom Burns & Levinson, Boston, Mass., was on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges. BAILEY ALDRICH, Senior Circuit Judge. Albert Anderson, plaintiff appellant, a former boilermaker and shipyard worker allegedly, suffering from asbestosis and a preexisting lung condition aggravated by exposure to asbestos, sued Owens-Illinois, Inc. and four other manufacturers of asbestos for negligence and for breach of warranty, based on their failure to warn of the dangers of asbestos exposure. Pretrial, plaintiff asked the court to strike defendants’ “state of the art” defense, and to exclude state of the art evidence for purposes of the warranty claim. The court refused. After a trial at which both sides introduced evidence on the state of the art, the court instructed the jury on its relevance and put the case to the jury on special questions. The jury returned verdicts for defendants on all claims. Plaintiff, alleging, further, various errors in the court's charge, appeals. We affirm. Plaintiff’s objections relate principally to the state of the art defense. Relying on language in Hayes v. Ariens, 391 Mass. 407, 462 N.E.2d 273 (1984), he had asked the court to instruct the jury, ... the adequacy of a warning is measured by the warning that would be given at the time of sale by an ordinarily prudent vendor who, at that time, is fully aware of the risks presented by the product. A defendant vendor is held to that standard regardless of the knowledge of risks that he actually had or reasonably should have had when the sale took place. The vendor is presumed to have been fully informed at the time of the sale of all risks. The state of the art is irrelevant, as is the culpability of the defendant____ Instead, the court charged, the duty to warn extends only to such dangers — to such dangers or defects about which the manufacturer either actually knew or about which it reasonably should have known. Now should have known here means that a manufacturer is held to that level of knowledge which the experts in the particular industry had or in view of the state of medical and scientific knowledge in general should have had at any particular point in time. Plaintiff duly excepted to the charge, both as improperly allowing the jury to consider state of the art evidence on the warranty claim and as inadequately instructing on the meaning of the term “state of the art.” We start with plaintiff’s first and, we think, most important objection. The requested charge, and, equally, the basis for the pretrial motion to strike the state of the art defense, is a virtually verbatim quote from Hayes v. Ariens, ante, 391 Mass, at 413, 462 N.E.2d 273. Plaintiff argues forcefully that the sentence, “The state of the art is irrelevant, as is the culpability of the defendant,” is dispositive. The district court, however, found this statement to be dictum, and therefore not necessarily controlling. Accordingly, it considered the law of Massachusetts as a whole, and concluded that, notwithstanding the Hayes dictum, Massachusetts law requires a seller to warn only of reasonably foreseeable or scientifically discoverable dangers. We agree in all respects with the court’s resolution. Massachusetts does not recognize the doctrine of strict liability in tort enunciated in section 402A of the Restatement (Second) of Torts. Swartz v. General Motors Corp., 375 Mass. 628, 630, 378 N.E.2d 61 (1978). It does, however, recognize the doctrine of implied warranty, Mass.Gen. Laws c. 106, § 2-314, which “[t]he Legislature has made ... congruent in nearly all respects with the principles expressed in [section 402A].” Back v. Wickes, 375 Mass. 633, 640, 378 N.E.2d 964 (1978). The Massachusetts courts, therefore, in determining the scope of warranty liability, have looked both to section 402A, e.g., Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353, 446 N.E.2d 1033 (1983), and to “the strict liability cases of other jurisdictions,” Back, ante, 375 Mass, at 640, 378 N.E.2d 964. Thus, our inquiry begins with Massachusetts warranty cases, but turns, where necessary, to the Restatement and cases from jurisdictions that recognize it. Before considering the legal issue, we note the scope of plaintiff’s contention. The state of the art defense required that even scientific experts be unaware of the danger, and thus of the risk of the injury which plaintiff ultimately suffered. Plaintiff is not claiming that the dangers inherent in defendants’ product — asbestos— were socially unacceptable, and that it should not have been put on the market at all, but, only, that when placed it should have been accompanied by a warning, even though, on defendants’ evidence, which the jury, on the basis of the charge accepted, it was impossible for anyone to say of what the warning should have consisted. With the issue thus defined, we start with the leading Massachusetts case of Back v. Wickes, ante, from which we have already quoted. This was not a warning case. There a motor home accidentally struck a cable fence at the edge of the road, causing the fuel tank to shear, inflaming the vehicle. Plaintiff contended the tank should have been within the frame, and that, if less exposed, it would not have been injured. Defendant asserted the design met highest industry practice, and that the occurrence was not foreseeable. It also claimed that there was misuse. On the warranty count the court had allowed evidence as to industry practice, and instructed the jury that if it agreed with defendant as to misuse, its verdict should be for the defendant. The jury found for the defendant. In reversing, the Supreme Judicial Court ruled that, so far as warranty was concerned, striking a side-rail was within the realm of possibilities, and that, from the standpoint of misuse, the test was the product, not the defendant’s anticipation. At the same time, the court held that there was no error in permitting defendant to show the standards of the trade, even a lower standard than state of the art, in determining whether the motor home was “unreasonably dangerous.” Thereafter, in Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 446 N.E.2d 1033 (1983), also not a warning case, the court dealt with whether the plaintiff’s contributory negligence was a defense in an action for breach of warranty of an unreasonably dangerous object, there a defective tire, or a defective trailer rig. In holding contributory negligence was not a defense, the court, as it did in Back, continued to note its adherence to the Restatement and the interpretations of other jurisdictions. Hayes v. Ariens, ante, was a failure to warn case. It arose in an unusual fashion: whether special jury findings with respect to negligence and to warranty were inconsistent. There the defendant had sold a snow blower that clogged with heavy snow. The plaintiff reached into the discharge chute, without stopping the motor, and injured his fingers. The machine bore a notice: “Caution: Stop engine before removing obstruction from blower or rake.” The plaintiff went to the jury on two theories; that the warning was inadequate, and that the machine was improperly designed because it clogged and lacked a “deadman’s clutch.” The jury found plaintiff and defendant both negligent, (with plaintiff 60% negligent, so that he could not recover under Massachusetts negligence law) but that defendant did not breach its warranty of merchantability. In reversing, the Massachusetts court held that if defendant was negligent, whether because of improper design or inadequate warning, it necessarily breached its warranty. The court thereafter engaged in a discussion as to a manufacturer not being relieved of liability for an unreasonably dangerous article even if he had taken all reasonable precautions, for which it cited Back and Correia. However, the dangers there were obvious, a far different situation from the case at bar where, it has been found, even experts did not know that dangers existed, let alone that the product was unreasonably dangerous. Under these circumstances we believe the district court was correct in saying that with respect to such facts the court’s broad language was not controlling as “considered dicta.” Michelin Tires (Canada) Ltd. v. First National Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981); cf. In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1196 (7th Cir.1983), cert. denied, 464 U.S. 866, 104 S.Ct. 204, 78 L.Ed.2d 178. Equally uncontrolling was the court’s citing plaintiff’s case of Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982), a case which did present our facts. Rather, the question is, would the Massachusetts court follow that dictum today if faced with the very different facts here presented? We believe it would not, for several reasons. We commence by noting that, subsequent to Hayes, the court used far less embracing language. In MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65 (1985), cert. denied, — U.S. -, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985), a case involving “the pill,” and where plaintiff had suffered a “stroke,” and claimed negligence and breach of warranty, the case went to the jury on what the court described as “a single claim of failure to warn.” The court referred to no absolute duty, but stated the “duty is to provide to the consumer ... reasonable notice of the nature, gravity and likelihood of known or knowable side effects.” 394 Mass, at 139, 475 N.E.2d 65. But even more important is the fact that examination of the Restatement and the weight of authority elsewhere, where unknowable dangers are involved, shows a declination to impose liability upon a manufacturer for not warning against dangers which, on the then state of the art, are not known to exist. The significant portion of the Restatement is as follows. § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer. (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer____ (2) The rule stated in Subsection (1) applies although (a) The seller has exercised all possible care in the preparation and sale of his product____ This broad language is not to be applied indiscriminately, however, without analyzing the problem. Defendants’ asbestos products are “unreasonably dangerous,” even post facto, only in the claimed sense of a lack of warning. But if a danger is unknowable, how can effective warning be given? To warn that a product may have unknown and unknowable risks is to give no meaningful warning at all. See Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing, 58 N.Y.U.L.Rev. 734, 747 (1983). That this situation is outside the black letter Restatement is flagged by comment j, which reads, in part, “ ... if the ingredient is one whose danger is not generally known, ... the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger ...” Although differently expressed, this is exactly the charge the court gave. Plaintiff says it is a negligence charge, but it is not. It imposes a much higher standard than due care, but speaks in terms of expert knowledge, the product itself, exactly the distinction drawn in Back, 375 Mass., ante, at 643, 378 N.E.2d 964, Cases elsewhere do the same. E.g., Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1088 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (Texas law); Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir.1969) (Connecticut law); Woodill v. Parke-Davis, 79 Ill.2d 26, 37, 37 Ill.Dec. 304, 308, 402 N.E.2d 194, 198 (1980); Oakes v. Geigy Agricultural Chemicals, 272 Cal.App.2d 645, 650, 77 Cal.Rptr. 709, 713 (1969). See Murray, Requiring Omniscience: The Duty to Warn of Scientifically Undiscoverable Defects, 71 Geo.L.J. 1635, 1638-39 (1983). It should also be noted that in citing Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 834-35 (1973), the Hayes court failed to observe that in his article in 58 N.Y.U.L.Rev., ante, at 763, the author had accepted the distinction in the present issue. See, also, Page, Generic Products Risks: The Case Against Comment k and for Strict Liability, 58 N.Y.U. L.Rev. 853, 921 (1983). We believe the Hayes dictum is not the law. Nor do we think this conclusion to be contrary to the Hayes court’s looking to manufacturer’s liability insurance to spread the loss. An insurance company must appraise risks to determine premiums. It is appropriate that it consider scientific knowledge, as distinguished from the conduct of its individual insureds, but beyond that it, and the consumer on whom the premium ultimately falls, should not be riding blind. If a manufacturer, with the best scientific knowledge available, cannot tell his consumer to guard against asbestos dust, or, say, against asbestos fumes when it is hot, or to protect the skin from contact over prolonged periods, or not to be burdened at all, as ultimately the case may be, equally we consider it socially undesirable that insurance must be bought, and computed on an equally blind basis. It should be time enough to charge manufacturers when there is something to point to beyond scientific unanticipated consequences. Neither is there any merit in the claim that the court “transferred the burden of proof on this issue to the plaintiff.” Plaintiff failed to take a proper and timely objection to the District Court’s charge. Merely objecting to the court’s declaration that the state of the art issue was “the nub of the case” did not constitute a distinct objection to the burden of proof instruction. Fed.R.Civ.P. 51. Plaintiff, moreover, never requested an instruction placing the burden of proof for state of the art on the defendants. He cannot, therefore, argue on appeal that he was prejudiced by the court’s charge. Furthermore, it is far from clear that the court did place the burden of proving the state of the art on the plaintiff. Again, plaintiff would have defendants weigh their conduct “against the danger.” However relevant that often is, or even might have been here, it is inapplicable when, on the jury’s findings, there was no knowable danger to weigh against. If, which we do not suggest, there was error, there was no prejudice. The same is to be said with regard to plaintiff’s complaint of the court’s failure to charge that defendants had a duty to test. The court correctly felt it was irrelevant. Since defendants were held to be knowledgeable to the measure and extent of scientific experts, their testing of the product could not have added anything. Absent a showing of what else defendants could have learned, there could be no prejudice. Plaintiff has no valid complaints as to the charge. We come finally to plaintiff’s request for a new trial against Carey Canada, Inc. on the issue of damages. As to this defendant, the jury answered special question 2, “Was defendant negligent by failing to warn users ... subsequent to sale ...?” in the affirmative, but question 3, “Was plaintiff exposed to any asbestos containing products of defendant?” in the negative. The jury did not answer question 4, relating to injury and causation. Plaintiff contends that, because a sanction order entered September 26, 1984 mandated findings of exposure, injury, and cause, the court, on receiving the verdict of negligence, should have instructed the jury on the effect of the order, and sent them out for further deliberations on damages. Here again, plaintiff’s argument must fail for lack of a specific objection. Simply stated, his present argument is that material established facts were improperly drawn from the jury’s consideration. At no time until the verdict had been returned, however, did plaintiff even request that the jury be informed of the order. Instead, he rests his present argument on a brief colloquy that occurred before opening statements. MR. TRULAND: Your Honor, there was the matter of the sanctions against Carey Canada. I just wanted to clear up before Mr. Motley makes his opening whether they will be handled the same way as they were in the Santa Maria case? THE COURT. Yes. From this one oblique reference, before the trial commenced, to an earlier trial, plaintiff must now argue that the court was duly forewarned of his expectations concerning treatment of the order at the end of the trial. Assuming this to be a promise of future conduct by the court, it was for plaintiff to complain when it did not occur. It is universal practice that a court be given opportunity to correct its mistake, if any there be. This ruling makes it unnecessary to reach defendants’ not unmeritorious contention that any error here was harmless in light of the jury’s finding that plaintiff suffered no compensable damages. Affirmed. . All asbestos cases in the District of Massachusetts have been placed on a consolidated docket for pretrial management. These motions were made on the consolidated docket, and their disposition applies to all cases on that docket, including plaintiffs. . Note, in this connection, the court’s response to appellant’s post-verdict suggestion that the jury be reinstructed and sent back out: "I wish you had brought it to my attention ahead of time so I could have instructed it.”

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

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

UNITED STATES v. METZGER, Judge, et al. No. 10291. Circuit Court of Appeals, Ninth Circuit. Jan. 9, 1943. As Amended on Denial of Rehearing April 5, 1943. Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson and Roger P. Marquis, Attys., Dept, of Justice, both of Washington, D. G, for petitioner. Delbert E. Metzger in pro. per., of Honolulu, T. H., for respondent D. E. Metzger. Olaf Oswald in pro. per., of Honolulu, T. H., for respondent Oswald. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. DENMAN, Circuit Judge. Petitioner filed its petition seeking a writ of mandamus to compel respondent Oswald, the court reporter for the United States District Court for the Territory of Hawaii, an officer appointed pursuant to Section 86 of the Act of April 30, 1900, 31 Stat. 158, c. 339, 48 U.S.C.A. § 644, to furnish petitioner, for purposes of an appeal here, taken from a judgment of that court in a suit in which petitioner is a party, a transcript of the proceedings of the trial therein, which transcript Oswald refused to furnish unless paid certain amounts per folio, a payment in excess of his official salary. The petition also sought -the writ against Judge Metzger to compel him to order Reporter Oswald to furnish the transcript without charge to petitioner. An order to show cause was issued and served upon the ■two respondents, who have appeared and responded to it. The jurisdiction of this court to entertain .the petition for the writ in a case on appeal here exists in the aid of the appeal, which the refused performance of Oswald's alleged official duty may embarrass or prevent. Judicial Code § 262, 28 U.S.C. 377, 28 U.S.C.A. § 377. Oswald admits the allegations of the petition of the demand of the petitioner for the transcript and his refusal to furnish it, but alleges on information and belief that his refusal finally took the form of an offer that “if the United States would agree to accept delivery of and pay for each 100 pages of transcript when and as prepared by respondent, he would proceed forthwith, being willing to gamble his labor in preparing the first 100 pages on the Government’s good faith in the matter.” His answer claims affirmatively, also on information and belief, an agreement of petitioner to pay the added folio charges. Such allegations of matters in which Oswald personally participated are of his own knowledge and may not be placed in issue in a mandamus proceeding by mere affirmations concerning a pleader’s information and belief. No proof was offered to support the affirmative allegations of Oswald’s answer. However, no question was raised as to the sufficiency of the answer and the petitioner relies on its claim of the absence of its authority to agree to pay Oswald more than his statutory compensation for furnishing the transcript. In this we agree with petitioner. We have held that the furnishing of the transcript is an “official service” which is an “ordinary duty” of Oswald’s office, for which he cannot claim compensation in excess of his official salary, though such added compensation is attempted to be provided by a rule of court. Oswald v. United States, 9 Cir., 96 F.2d 10, 13. It is provided in R.S. § 1765, 5 U.S.C. § 70, 5 U.S.C.A. § 70, that “No officer in any branch of the public service, or any other person whose salary, pay, or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicity states that it is for such additional pay, extra allowance, or compensation.” Oswald does not claim and we know of no such appropriation of Congress providing for such added compensation to the court reporter for the Hawaiian district court for furnishing of the transcript in question. The appropriation for stenographic services for the Department of Justice contains no “explicit statement” tfiat any of it may be paid to official reporters as “additional compensation.” It is intended for compensation to reporters not officers, as in Miller v. United States, supra. The petitioner had no power to make such an agreement as described in Oswald’s answer. It is entitled to its writ against him. Petitioner also seeks our writ of mandamus against respondent Judge Metzger of the District Court of Hawaii to compel him to order Oswald to furnish the transcript to it without such per folio additional compensation. It alleged that it moved the court presided over by Judge Metzger for its order to compel such action, but that, instead of granting the motion, the court ordered Oswald to furnish the transcript upon payment of the per folio charges of its court rules, which apparently, have not been amended to conform to our decision in Oswald v. United States, supra. There is no provision for an appeal from such an order. It is arguable that such an order hampers an appeal and hence that we may, by mandamus, have it set aside. State of Maryland v. Soper, 270 U.S. 9, 29, 46 S.Ct. 185, 70 L.Ed. 449. In view of what has been said, we do not deem it necessary to consider such action. The writ against Reporter Oswald as prayed for is granted. Unlike the reporters in other district courts for which no statutory provision is made. Cf. Miller v. United States, 63 S.Ct. 187, 87 L.Ed. —.

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 48. 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 48? Answer with a number.

Joseph M. BRENNAN, Plaintiff-Appellant, v. Bertha E. SELLERS, DefendantAppellee. No. 8242. United States Court of Appeals Tenth Circuit. Feb. 1, 1966. Rehearing Denied March 25, 1966. Joseph M. Brennan, pro se. Robert W. Baker, Denver, Colo. (E. Michael Canges, Denver, Colo., was with him on the brief) for appellee. Before PICKETT, LEWIS and HILL, Circuit Judges. LEWIS, Circuit Judge. This appeal is taken by the appellant-plaintiff, pro se, from an order of the District Court for the District of Colorado directing a judgment notwithstanding the verdict under Rule 50(b), Fed. R.Civ.P. Appellant, by complaint prepared and filed pro se, had sought in a diversity action to recover from appellee-defendant the physical possession of stock certificate No. 1, representing 253 shares of the Rock Wool Insulating Company, a Colorado corporation, upon allegation that he had purchased such shares from appellee in 1954, that such certificate had been delivered to him, that ap-pellee had later surreptitiously regained possession and had continued to withhold possession of the stock notwithstanding demand. In a second alleged cause of action appellant asserted that appellee’s acts had damaged appellant in his capacity as an officer and stockholder of Rock Wool to the extent of $10,000. Although appellant was then represented by counsel, the trial proceeded with great difficulty and the record reveals a complete failure of proof upon appellant’s specific claims. The undisputed evidence indicated that appellee had neither actual nor constructive possession of the subject stock certificate at the time the action was commenced, a prerequisite under Colorado law in an action in the nature of replevin. Colorado R.Civ.P. 104. Cf. Brennan v. W. A. Wills, Ltd, 10 Cir., 263 F.2d 1, cert. denied, 360 U.S. 902, 79 S.Ct. 1284, 3 L.Ed.2d 1254. Appellant’s second claim was totally unsupported by evidence. The case was, however, submitted to a jury upon a then urged theory of conversion and resulted in a verdict favoring appellant. The verdict was subsequently set aside upon the ground that appellant had not shown any consideration as a premise to his claimed stock purchase. The verdict of the jury was properly set aside and the judgment is affirmed. When pressed several times by both court and counsel to state what consideration moved from him to appellee for the claimed right to legal title to the subject stock, appellant countered only by a narrative of services rendered to appellee as one of numerous stockholders of Rock Wool in a continuing and persistent investigation of suspected corruption in the then management of Rock Wool. Appellant’s investigative efforts were successful and did indeed enhance the value of Rock Wool stock, but such cannot be a legal premise for a claimed purchase of designated stock. Appellant frankly stated that he gave appellee no specific consideration for the subject 253 shares, admittedly appellee’s total holdings in the Rock Wool Company. . This controversy relates to extended litigation brought’by Mr. Brennan concerning the ownership of Rock Wool Insulating Co. stock. Bor other cases decided by this court see Brennan v. Rock Wool Insulating Co., 10 Cir., 337 F.2d 849; Brennan v. Korholz, 10 Cir., 293 F.2d 751; Brennan v. W. A. Wills, Ltd., 10 Cir., 263 F.2d 1, cert. denied, 360 U.S. 902, 79 S.Ct. 1284, 3 L.Ed.2d 1254. . Appellee testified that she assigned and delivered the stock certificate to appellant as an aid to his investigative efforts.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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, Appellant, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Appellee. No. 15798. United States Court of Appeals Eighth Circuit. Jan. 29, 1958. Leo Meltzer, Attorney, Department of Justice, Washington, D. C. (Warren Olney III, Asst. Atty. Gen., Osro Cobb, U. S. Atty., James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., and Floyd R. Benny, Attorney, Interstate Commerce Commission, Washington, D. C., were with him on the brief), for appellant. R. Ben Allen, Little Rock, Ark. (Pat Mehaffy, Little Rock, Ark., was with him on the brief), for appellee. Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges. SANBORN, Circuit Judge. This action was brought by the United States to recover statutory penalties for alleged violations of the Safety Appliance Acts, 45 U.S.C.A. §§ 1-16. Jurisdiction is based on 45 U.S.C.A. § 6. The complaint contained seven causes of action. Issues were joined and the case was tried to a jury, which returned a verdict in favor of the defendant (ap-pellee) on each cause of action. Judgment was entered on the verdict. The Government has appealed from the judgment as to the Sixth and Seventh causes of action only, upon the grounds that the District Court erred in denying the Government’s motion for a directed verdict in its favor and its motion, after verdict, for judgment notwithstanding, upon those two causes of action. The Sixth cause of action stated in the complaint is that on March 26, 1955, the defendant operated over its tracks a train consisting of nineteen cars drawn by a diesel locomotive “from Track No. 7, Hold Yard, to Tie Plant, in and about North Little Rock, Arkansas, * * * when none of the cars * * * had their brakes used and operated by the engineer of the locomotive drawing said train,” contrary to 45 U.S.C.A. § 9 and the order of the Interstate Commerce Commission of June 6, 1910, 49 C.F.R. 132.1, requiring that when a “train is operated with power or train brakes, not less than 85 per cent of the cars of such train shall have their brakes used and operated by the engineer of the locomotive * * The Seventh cause of action is the same as the Sixth, except that it refers to a train of twrenty-five cars operated from “Lead Track, Tie Plant, to Locust Street Yard, in and about North Little Rock, Arkansas.” There was no dispute as to the car movements of March 26, 1955, having been made substantially as alleged in the complaint “while the power brakes were in use on the locomotive only.” The question was whether the movements were train movements or switching operations. The record shows that the switching limits of the Missouri Pacific Railroad at North Little Rock include the areas known as the Hold Yard, the Locust Street Yard, and the Tie Plant; that switching limits are set up by agreement with the Railroad Union; that officers of the Railroad can set up yard limits, but not switching limits which constitute the area within which switching operations are conducted by switch crews; that the distance between the Tie Plant and the north end of the Locust Street Yard is a mile and a quarter; that from that end of the Locust Street Yard to its south end is 8,000 feet; that from the south end of that yard to the north end of the Hold Yard is around 2,200 feet, a half mile; that within this area train movements are controlled by electric signals ; that in thirty-five years there has never been an accident in the area as a result of switching operations; that between the Hold Yard and the Tie Plant there are two private crossings, which “are gated and kept locked”; that switch movements to the Tie Plant are not scheduled; that the service is usually performed by the same switch engine on duty; that a number of switch engines operate within the area, and also road crews on engines doing road work, and yard crews within the switching limits doing switching work. With respect to the movements in suit, the record shows that on March 26, 1955, a diesel locomotive of the switch-engine type, with nineteen cars attached, was in the defendant’s Hold Yard; that all the cars had power brakes, but that the air was not coupled between the locomotive and any of the ears; that when the locomotive and cars left Track 7 they followed “Old Lead Track to the Valley ‘Y’ [Wye] Connection,” and then went onto the east or main track of the Missouri Pacific for 1.21 miles until they reached the Tie Plant, a total distance of 2.92 miles; that the movement did not exceed in speed fifteen miles an hour for the entire distance; that there was no stopping and setting out of a car or cars or taking on a car between the Hold Yard and the Tie Plant, and that the order in which the cars were assembled was not changed in any way; that the locomotive was stopped “clear of the track that goes into the Tie Plant”; that the locomotive was cut off, “reached into a lead track,” and “got 25 loaded cars already lined up and together”; that the locomotive picked up the 19 cars on the main track, shoved all the cars onto the lead track of the Tie Yard, left the 19 cars there, and came out with the 25 cars; that, on the trip from the Tie Plant to the Locust Street Yard with the 25 cars, the movement traveled on the main line track for a distance of 1.21 miles, went onto the running track and onto the lead track to the Locust Street Yard, where the movement came to rest, a total distance of 1.71 miles; that the speed of the movement did not exceed 8 miles an hour; that on that movement the locomotive was pushing the 25 cars; that in the area where the movements in suit occurred, fast trains operate, and on the main line area out near the Tie Plant the speed limit for trains is 50 miles an hour. It seems clear to us that what was done on March 26, 1955, which gave rise to this controversy was: (1) transferring 19 ears from the Hold Yard to the Tie Plant, a distance of slightly less than 3 miles, about a mile and a quarter of which was over a main line track; (2) setting out the 19 cars at the Tie Plant; (3) picking up the 25 cars at that plant and transferring them to the Locust Street Yard, again using a main line track for a distance of a mile and a quarter. It is our opinion that these movements were transfer movements, and not switching movements, and that whatever switching or interchange of the 19 cars for the 25 cars was done at the Tie Plant was merely incidental to these transfer movements. It is our understanding that when cars are assembled at one point in a railroad terminal and moved intact a considerable distance for delivery at another point in the same terminal, the movement is not a switching operation but is, as a matter of law, a train movement, and particularly so when main line tracks are used or crossed. This Court held to the contrary in United States v. Northern Pacific Railway Co., 8 Cir., 255 F. 655, but was reversed by the Supreme Court, United States v. Northern Pacific Railway Co., 254 U.S. 251, at page 254, 41 S.Ct. 101, at page 102, 65 L.Ed. 249, in an opinion by Mr. Justice Brandéis, who said: “ * * * It is admitted that this railroad is engaged in interstate commerce; and the cases cited [United States v. Erie R. R. Co., 237 U.S. 402, 35 S.Ct. 621, 59 L.Ed. 1019; United States v. Chicago, Burlington & Quincy R. R. Co., 237 U.S. 410, 35 S.Ct. 634, 59 L.Ed. 1023, and Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 534, 39 S.Ct. 355, 63 L.Ed. 757] show that transfer trains, like those here involved, are ‘trains’ within the meaning of the act [Safety Appliance Act]. A moving locomotive with cars attached is without the provision of the act only when it is not a train; as where the operation is that of switching, classifying and assembling cars within railroad yards for the purpose of making up trains. Congress has not imposed upon courts applying the act any duty to weigh the dangers incident to particular operations; * * In Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 534, 538, 39 S.Ct. 355, 356, the Court said: “The work done with the cars, as described, was not a sorting, or selecting, or classifying of them, involving coupling and uncoupling, and the movement of one or a few at a time for short distances, but was a transfer of the 26 cars as a unit from one terminal into that of another company for delivery, without uncoupling or switching out a single car, and it cannot therefore with propriety be called a switching movement.” On the question of transfer movements being train movements, see also and compare: Great Northern Ry. Co. v. United States, 8 Cir., 288 F. 190; Illinois Central R. Co. v. United States, 8 Cir., 14 F.2d 747; Chicago, St. P., M. & O. Ry. Co. v. United States, 8 Cir., 36 F.2d 670; United States v. South Buffalo R. Co., 2 Cir., 168 F.2d 948, 950-952; United States v. Panhandle & Santa Fe Ry. Co., 5 Cir., 203 F.2d 241, 245-247; United States v. Northern Pac. Ry. Co., D.C.Minn., 72 F.Supp. 528. Our conclusion is that, under the evidence, the question whether the movements in suit were train movements- or were switching operations was a question of law for the court and not a question of fact for the jury, and that the court erred in denying the Government’s motion for a directed verdict on the Sixth and Seventh causes of action. The judgment based on the verdict of the jury as to the Sixth and Seventh-causes of action is reversed, and the case is remanded with directions to enter judgment for the United States thereon. . In response to requests by the Government for admissions, the following statements were made by the defendant: “5. The defendant admits that on March 20, 1955 the defendant during a switching operation switched a cut of 19 cars by its Diesel Locomotive 9146 from its Track No. 7 in its ‘hold’ yard, North Little Rock, Arkansas, to what is known as the ‘Tie Plant’ in North Little Rock, Arkansas, while the power brakes were in use on the locomotive only. After leaving the ‘hold’ yard, the switching operations were continued upon the northward main track at ‘Valley Wye’ and continued northward on the main track for a distance of approximately one mile and a quarter until the train reached the tie plant connection, a total distance of between one and three miles. At that point, other switching operations were conducted on the main line and, after the necessary switcliiug, all were switched into the tie plant and there left. The defendant does not have knowledge as to whether other cars were picked up or set out during the switching operations. One private road was crossed at grade during said operation. “6. The defendant admits that on March 26, 3955 the defendant conducted switching operations with its Diesel Locomotive 9146 and twenty-five cars between the ‘tie plant’ to the ‘hold’ yard over the same route described in paragraph 5 above, but in the opposite direction. The defendant does not have knowledge as to whether cars were picked up or set out in route. The power brakes were in use on the locomotive only. In this switching operation the main line track was used for approximately a mile and a quarter.”

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

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

Alvin R. CAMPBELL et al., Defendants, Appellants, v. UNITED STATES of America, Appellee. No. 5847. United States Court of Appeals First Circuit. Heard April 4, 1962. Decided May 22, 1962. Rehearing Denied June 26, 1962. Melvin S. Louison, Taunton, Mass., and Lawrence F. O’Donnell, Boston, Mass., for appellants. William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U.S. Atty., was on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. This opinion supplements the opinion of this court of November 7, 1961, 296 F.2d 527, wherein, while retaining jurisdiction generally, we directed return of the original papers to the district court for further proceedings before another judge. Further proceedings were had as directed and the court’s findings and conclusions are before us on briefs and arguments. Before turning to those findings and conclusions a brief résumé will be helpful. This court originally affirmed the appellants’ sentences for bank robbery, giving only brief consideration to the question of their right under the Jencks Act, 18 U.S.C. § 3500, to have access to a so-called “Interview Report” of the FBI agent who investigated the robbery the day after it happened. Campbell v. United States, 269 F.2d 688, 690 (C.A.1, 1959). On certiorari, Campbell v. United States, 365 U.S. 85 at pages 93, 94, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), the Supreme Court described the Interview Report and its origins and basis in detail and remanded to the District Court for further findings, saying that the aid of extrinsic evidence was required to answer four specific questions. These questions in substance were: (1) Whether the FBI agent, Toomey, wrote down what the witness, Staula, told him at the interview, and if so, whether Toomey gave Staula the paper to read to make sure that it was right and did Staula sign it? (2) Was the Interview Report the paper described by Staula or a copy of it? (3) If the Interview Report was neither the original nor a copy of the paper Staula described, what became of the paper? and (4) “In any event, even if the Interview Report was not the original or a copy of the paper Staula described, had Staula read over and approved the Interview Report? * * * Or was the Interview Report a substantially verbatim recital of an oral statement which the agent had recorded contemporaneously ?” The District Court on that remand held a further hearing after which it made findings of fact and drew conclusions of law and the case again came before this court on appeal. Campbell v. United States, 296 F.2d 527 (C.A.1, 1961). We found the hearing unsatisfactory in a number of respects. Nevertheless, we found it adequate to provide the answers to some of the questions propounded by the Supreme Court. As we understood the opinion of that Court in this case subsection (1) of section (e) of the Jencks Act defining the statutory meaning of a “statement” as “ * * * a written statement made by said witness and signed or otherwise adopted or approved by him” covered not only statements written by the witness himself but also statements orally made by a witness but written down by someone else provided the witness “signed or otherwise adopted or approved” the writing although it did not follow the words of the witness “substantially verbatim.” And we held that subsection (2) of section (e) quoted in the margin was limited to oral statements of a witness taken down contemporaneously by a stenographer or recorded mechanically or electrically or in some equivalent way, which would assure production by transcription, perhaps later, of a “substantially verbatim recital” of what the witness said. Applying the facts as then found, indeed the undisputed facts, to our understanding of the statute we held that the Interview Report was not a statement within (e) (2), because it was not in Staula’s words but in Toomey’s. Moreover, the Interview Report cannot qualify as a statement under this subsection because Toomey’s recording onto the disk, which was later transcribed and became the Interview Report, was not contemporaneous with Staula’s oral statement to Toomey. Toomey interviewed Staula around noon but did not dictate from his notes onto the disk until evening. This answered in the negative the last part of the fourth question propounded by the Supreme Court and the only one with respect to subsection (e) (2). Wherefore we concluded that the Interview Report was not producible under subsection (e) (2) but could only be producible if it were a “statement” within the definition of subsection (e) (1). We thought the findings of the court below on the question of the producibility of the report under this subsection were not completely satisfactory. Nevertheless we found the record made at that hearing adequate to answer some of the other questions propounded by the Supreme Court. We found on Toomey’s testimony, Staula had not testified, that at the interview Toorney took longhand notes of what Staula said, occasionally using symbols and abbreviations; that after the interview Staula was not shown the notes and did not sign or initial them, but that Toorney had recited the “substance” of the notes back to Staula and that Staula had said that Toorney “had the story straight.” Then we found that Toorney attended to other matters for the rest of the day and that evening dictated his so-called Interview Report onto a disk in a machine. In doing so we found that Toorney had not dictated his notes but had first rearranged them in chronological order and then, relying primarily on his notes but also on his memory, and using his own language, had dictated a report that “reflects the information in the notes.” We found that Toorney sent the disk to the Boston office of the FBI to be transcribed and upon receipt of the transcription a few days later checked it against his notes and finding it accurate destroyed his notes in accordance with standard FBI practice. Toorney did not show his report to Staula and did not interview him again. These findings disposed of most of the Supreme Court’s questions. However, Staula had not been called to testify at that hearing and at the trial he had testified that, although he could not clearly remember, he thought that “ * * * they wrote down what I said, and then I think they gave it back to me to read over, to make sure that it was right. And I think I had to sign it. Now, I am not sure.” Campbell v. United States, 365 U.S. 85, 89, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961), footnote 2. There being a discrepancy between this testimony and Toomey’s, and Staula not having testified at the hearing on the Supreme Court’s remand, we, while retaining jurisdiction generally, remanded to the District Court “ * * * for further hearings and findings, with Toorney and Staula both to testify, as to whether Staula signed or otherwise adopted or approved the notes, in order that the mandate of the Supreme Court be fully complied with.” After a hearing on this remand the court below found, 199 F.Supp. 905, that Staula had not signed his approval of Toomey’s notes. Nor did it find that Toorney had purported to read his notes back to Staula in just the order or in the exact words written down by Toorney on his pad. It did find, however, that: “At the end of the reading, Staula told Toorney that what the latter had written [actually on the undisputed testimony Staula never saw what Toorney had written] was to the best of Staula’s knowledge what had happened, and that to the best of his knowledge it was true.” And the court below found that in its opinion there was “ * * * no difference of any substance, and hardly any difference in form or order of presentation between what Toorney repeated to Staula and what Toorney had jotted on the pad, or between what Toorney had jotted on the pad and that portion of what Staula told Toorney which had any value as possible testimony at any stage of this case.” On the basis of these and similar findings of close correspondence between Toomey’s notes, what Toorney had recited to Staula from those notes and what Toomey had dictated on the disk from which his Interview Report was transcribed, the court below concluded that in its opinion the latter was a “substantially verbatim recital” of what Staula had said to Toomey. These latter findings go to the verge, if not perhaps beyond the scope, of our mandate. However, even if we were to accept them our opinion would not be changed. Slight changes in phraseology can often work vast changes in meaning. And in Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959), the Court, referring to legislative history, said that Congress felt it would “ * * * be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own rather than the product of the investigator’s selections, interpretations and interpolations.” Moreover, to determine what language appearing in the Interview Report had actually been used by Toomey and approved by Staula when Toomey recited from his notes to Staula after the interview, imposes a subtle and exceedingly difficult if not impossible problem for the district court. Furthermore, to delete from the Interview Report the words not approved by Staula would result in his being confronted on cross-examination with his words out of context. Therefore we think we must assume that when the Court in its opinion in the present case at pages 93 and 94 of 365 U.S., at page 421 of 81 S.Ct. used the word “copy” in the questions it propounded with respect to subsection (e) (1) it meant just what it said and not something less than a copy, barring perhaps minor misspellings, typographical errors and the like. Construing “copy” as used by the Court as meaning not almost a copy or anything less than a copy, we now categorically answer the Supreme Court’s questions as follows: (1) Toomey did not write down what Staula told him at the interview but at the most only the essence or substance, in part in his own words, of what Staula told him and Toomey did not give the paper to Staula to read or read it to him word for word to make sure that it was right nor did Staula sign it; (2) the Interview Report was neither the paper described by Staula nor a copy of it; (3) that paper was destroyed by Toomey in accordance with FBI practice and (4) Staula did not read over and approve, indeed he never even saw, the Interview Report. The second part of question (4) we have already answered. Judgments will be entered affirming the judgments of the District Court. . With respect to this question the Court commented that in either event the Report would be a producible statement under § (e) (1) of the Act, for that section is not limited in its application to statements actually written by a witness but includes statements written by another if signed by the witness or “otherwise adopted or approved” by him in which event a signature was not necessary. , The Court said that if Staula had read over and approved the Interview Report it would be admissible under § -(e) (1) even though “not related” to the paper Staula described. . Commenting on the second part of this question the Court said: “If extrinsic evidence established this, the report would be producible under subsection (e) (2).” . “(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.” , The court below, no doubt from an excess of caution, allowed counsel for the defendants over government counsel’s objection to elicit evidence bearing upon producibility under subsection (e) (2) and made findings on that evidence. Adhering to the views previously expressed we shall not comment on that evidence or the findings based thereon. . The foregoing discussion applies to subsection (e) (1) not to subsection (c) (2) containing the “substantially verbatim” phrase. . We considered the consequences flowing from this in the opinion which this one supplements.

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

McCOLGAN v. CLARK et al. In re SNYDER. (Circuit Court of Appeals, Ninth Circuit. December 20, 1926.) No. 4898. 1. Bankruptcy <©=>123 — Creditor, conniving in bankrupt’s retention of interest in property sold under power, held disqualified from voting for new trustee. Where petition of one of two creditors to reopen estate and elect new trustee was granted on ground that bankrupt connived with M., the other creditor, to retain interest in property sold under power given to M. in trust deed, held, that M. was disqualified to vote for new trustee, and petitioning creditor was qualified, notwithstanding latter’s agreement with bankrupt for contingent, interest in property recovered from M. by trustee. 2. Bankruptcy <©=>446 — Claim of no cause of action' against creditor held determinable by trial court, and not on petition to revise. Claim that no cause of action was established against bankrupt’s creditor, to whom property was sold under power, must be determined by trial court on issues properly made by pleadings, and not by Circuit Court of Appeals on petition to revise order confirming referee’s order disqualifying creditor from voting for new trustee on reopening of estate. Petition for Revision of an Order of the District Court of the United States for the Southern Division of the Northern District of California, in Bankruptcy; Frank H. Kerrigan, Judge. In the matter of Albert E. Snyder, bankrupt. On petition of Adelaide McColgan, as administratrix of the estate of Daniel A. McColgan, deceased, to revise an order of the District Court sustaining referee’s order disqualifying petitioner from voting for new trustee, and in permitting another creditor to vote for such trustee. Affirmed. Keyes & Erskine, of San Francisco, Cal., for petitioner. Glensor, Clewe & Van Dine, of San Francisco, Cal., for respondents. Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge. Rehearing denied January 31, 1927. JAMES, District Judge. On November 16, 1917, Albert A. Snyder, upon his voluntary petition, was adjudged a bankrupt. A trustee was appointed who discovered no assets other than property of the value of $100 which was awarded to the bankrupt as exempt. Two creditors, who filed elaims with due proof, were Daniel A. McColgan, who asserted a debt owing him of $60,525.35, and Charles H. Clark, who claimed $675. The McColgan claim was represented to be for a balance due over and above the price received for certain real property, which had been made the subject of a trust deed in favor of Daniel A. McColgan, securing an original indebtedness of the bankrupt to MeColgan in the sum of $90,525.35. Discharge of the bankrupt from his debts was allowed on February 2,1918. The creditor Clark, by Ernest Clewe, his attorney in fact, on October 3, 1923, filed a petition in the District Court to have the estate of the bankrupt reopened and a second trustee elected. This petition alleged that since the closing of the estate the petitioner had learned that the bankrupt owned an interest in certain real property which had not been scheduled or administered upon in the bankruptcy proceeding. R. McColgan, representing himself to have been a copartner of Daniel A. McColgan, moved to set aside the order reopening the bankruptcy proceeding. Snyder filed an affidavit in opposition to this motion. The motion was by the court denied. A petition to review and revise,'brought in this court by R. McColgan, was dismissed, the court holding that petitioner had no standing in the bankruptcy proceeding which entitled him to question the order reopening the bankrupt estate. McColgan v. Clark (C. C. A.) 4 F.(2d) 627. The matter of the election of a trustee was afterwards taken up before the referee. Adelaide McColgan, representing the estate of Daniel A. McColgan, deceased, sought to vote her claim for a trustee. The referee held that, inasmuch as the property claimed to be unadministered in the bankrupt estate was an interest in the property sold under the trust deed referred to, thé McColgan interest was adverse to that of the other creditor and to the bankrupt, and the McColgan claim was disqualified to vote. On the other hand, it was shown that the attorney who represented the Clark claim had an agreement with the bankrupt for a contingent interest in all property which might be secured from the McColgans by the trustee, and which might remain i after creditors had been paid. Because the bankrupt would bé permitted thus indirectly, but nevertheless certainly, to select the trustee to manage his estate, petitioner herein objected to the Clark elaim being voted. The referee overruled the objection. The District Court sustained the action of the referee on both questions. It is the last-mentioned order that petitioner asks to have revised and annulled. An inspection of the record discloses that the order reopening the bankrupt estate depended altogether for support upon the assertion of the bankrupt that he had connived with Daniel A. MeColgan and Reginald MeColgan, copartners, to whom he admitted owing large sums of money, to have instituted bankruptcy proceedings and to allow the' McColgans to elect the trustee, and bring the proceeding to a close, all the while owning an interest in the real property which was sold by Daniel MeColgan under the power given by a trust deed to said MeColgan; that the McColgans agreed to hold the interest of the bankrupt, which he alleged to be of the value of more than $50,-000, secretly and for his benefit, and to thereafter convey same to him; that this agreement was later repudiated by the McColgans. This charge the McColgans vigorously denied. The ease of the bankrupt is one deserving small consideration in a court of justice, and, were it not for the claim of the one creditor, Clark, there would be little reason for allowing the cause to proceed further. Clark’s interest appears to be involved in that of the bankrupt, but in a measure that situation, finds its justification in the fact that Clark’s claim cannot be paid unless the bankrupt’s interest, as he asserts it to be, can be established against the McColgans. We have not here to review the strength of the showing made before the District Court upon which the order reopening the estate was made, or the decision refusing to vacate that order, but only whether, as a matter of law, the referee was justified in refusing to allow the MeColgan elaim to be voted at the election of a trustee, and in overruling the objection made by the MeColgan interest to the voting of the Clark elaim at the same meeting of creditors. In the' condition of the -estate as the referee found it to be at the time of the election of the last trustee, interests of no creditors were involved, except that of Clark and that of the MeColgan estate. Necessarily the MeColgan estate would be adversary to any effort of the trustee to recover the only property that can be brought into the bankruptcy court. True, the interest of the bankrupt is tied to that of the creditor Clark. But, as there are no other creditors entitled to participate in dividends, and as the bankrupt is interested as greatly as Clark in recovering the property, a situation is presented which takes from the rule denying the right of a bankrupt to influence the selection of a trustee its reason. The trustee selected seems to have met with the approval of the referee. No error appears in the overruling of objections to the voting of the Clark claim on any of the grounds expressed by the MeColgan interest. As to the contention that no valid cause of action was shown to exist against the Mc-Colgans, that question must be left for the determination of a trial court, where defenses of the bar of the statutory limitation or sufficiency of the evidence may be heard and tried under issues properly made up by pleadings. What has been decided herein is not to be taken as a determination that the referee is bound to authorize the trustee to proceed and bring an action against the McColgans to recover property, or as an intimation that a sufficient ease of facts was presented by the bankrupt and the creditor, Clark, in their affidavits as filed before the referee, to require such an order to be made. The order of the District Court is affirmed.

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

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

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

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

Joseph SERRANO, et al., Plaintiffs-Appellants. v. JONES & LAUGHLIN STEEL CO., LTV Corporation, Defendants-Third Party Plaintiffs-Appellees. International Union, United Steelworkers of America, AFL-CIO; Local No. 2163, United Steelworkers of America, AFL-CIO-CLC, Third Party Defendants-Appellees. No. 84-3992. United States Court of Appeals, Sixth Circuit. Argued Jan. 10, 1986. Decided May 8, 1986. Staughton Lynd (argued), Northeast Ohio Legal Services, Youngstown, Ohio, for plaintiffs-appellants. Willis J. Goldsmith (argued), Deborah Cranda, Jones, Day, Reavis & Pogue, Washington, D.C., Richard J. Brean, United Steelworkers of America, Pittsburgh, Pa., for defendants-third party plaintiffs-appellees. Before LIVELY, Chief Judge, WELL-FORD, Circuit Judge, and PORTER, Senior District Judge. The Honorable David Porter, Senior Judge, United States District Court for the Southern District of Ohio, sitting by designation. LIVELY, Chief Judge. The principal question presented by this appeal is whether the National Labor Relations Board (NLRB or Board) has exclusive jurisdiction over a dispute between individual employees and their employer arising out of an agreement between the employer and the employees’ union. The agreement provided for concessions by the employees if the employer should decide to modernize an old facility. The district court held that three causes of action pled by the plaintiffs, claiming fraud by the employer, were preempted by federal labor law, and dismissed them. The court further held, with respect to two additional causes of action, that the plaintiffs failed to demonstrate the existence of genuine issues of material fact, and granted summary judgment in favor of the defendants. I. A. Prior to 1981 Jones & Laughlin Steel Co. (J & L) was a major employer in Youngstown, Ohio. As this court has previously noted, a recession in the steel industry in the 1970s hit Youngstown particularly hard. See Local 1330, United Steel Workers v. United States Steel Corp., 631 F.2d 1264 (1980). In an effort to avoid a shutdown of J & L’s Campbell Works coke plant, J & L and the United Steelworkers of America (the Union) negotiated and executed an agreement pertaining to rebuilding the coke batteries at the Campbell Works. The negotiations took place in June and July 1981, and the agreement was signed July 13, 1981. The agreement granted J & L the right to depart from the provisions of the basic collective bargaining agreement in certain matters of work practices, manning and scheduling. J & L was to be allowed to implement some of these concessions “[ejffective as of the date that Management announces its determination to rebuild Campbell Works CQke Batteries.” Other provisions of the agreement were not to take effect until the batteries were actually rebuilt. The preface of the agreement provides: The Management of the Company is in the process of deciding whether or not the Coke Batteries and associated facilities of the By Product Coke Department at the Campbell Plant should be reconstructed. It is recognized by the Company and the Union that a decision to rebuild the concerned facilities would result in enhanced employment opportunities for many employees, and, as these employees leave the work force, job opportunities for laid off employees and/or for unemployed residents of the Youngstown Area. While it is recognized that the final decision as to whether or not to invest the monies required to rebuild the concerned facilities rests solely with Management, the local parties, without intending any limitation on Management’s rights under the terms of the Labor Agreement, hereby agree to the following in an effort to make a rebuilt Coke Making and By Product operation efficient and economical, thereby encouraging Management to invest the monies required to rebuild these facilities at the Campbell Plant. Sixteen numbered paragraphs follow the preface. Some deal with the concessions to be implemented when J & L announced its decision to rebuild and some with those to take effect only if the coke plant is actually rebuilt. Paragraph 15 gives management the right to use outside contractors for the entire rebuilding project. Paragraph 16 states: The provisions of this Agreement shall be effective only if Management announces its determination to rebuild Campbell Works Coke Batteries. In the event such a project is not approved, the above provisions are void and will not be referred to by either party in any current or future issue. The basic collective bargaining agreement referred to in the preface reserved solely to J & L the decision to close or discontinue a plant permanently. B. The agreement was ratified by the union members at meetings on July 11 and 13. Local officials of J & L spoke with groups of workers at these meetings, urging ratification. Plaintiffs claim that the plant superintendent promised that if the Union accepted the concessions, the plant would remain open. On July 18 the board of directors of LTV Corporation, corporate parent of J & L, approved an expenditure of $151,000,000 to rebuild the Campbell Works Coke batteries. On July 22, 1981 LTV issued a press release that stated in part: LTV ANNOUNCES PLANS FOR ADDITIONAL $315 MILLION IN STEEL CAPITAL ... The first coke oven battery scheduled for rehabilitation at Youngstown, number 8 battery, will be in operation in 22 months. Number 7 coke oven battery will be in full production in 42 months. The press release also quoted a statement by Thomas C. Graham, head of the LTV steel group and chief executive officer of J & L: “The decision to rebuild the two Youngstown batteries was aided by a recently signed agreement with the local union of the United Steelworkers of America,” Mr. Graham said. “The agreement will maximize the effective use of manpower on the batteries following the rebuild.” The concessions triggered by J & L's announcement of its intent to rebuild the coke plants were implemented. Between July 22,1981 and January 1983 J & L spent approximately $12,000,000 to demolish and rebuild coke battery number 8. In November 1982 J & L notified the Union that it had decided to discontinue operation of the existing Campbell Works coke batteries by December 31, 1982. Thereafter, in accordance with requirements of the collective bargaining agreement, J & L advised the Union that it intended to close the Campbell Works coke plant permanently. Coke production ceased on February 4, 1983. The Union filed a grievance, but pursued it through only three of the five steps provided for in the collective bargaining agreement. The grievance charged J & L with violating the July 1981 agreement as well as certain provisions of the underlying collective bargaining agreement. As relief the grievance demanded that J & L reopen the coke plant and abide by the July agreement or, in the alternative, make each affected employee whole for wages and benefits until his date of retirement at age 65. At the third stage of the grievance proceedings the Union charged that J & L had not intended to rebuild the Campbell Works coke batteries. II. A. When the Union terminated the grievance without taking it to binding arbitration, 133 former J & L Campbell Works employees filed the present action in an Ohio court. Following removal to the United States District Court for the Northern District of Ohio, the plaintiffs filed a first amended complaint which set forth the five causes of action previously referred to. In the first three causes the plaintiffs charged J & L, respectively, with fraud in the announcement of the decision to rebuild the coke plant, fraud in the execution of the announced plan to rebuild, and fraud in negotiations with the Union at other coke plants. The fourth and fifth causes alleged negligent performance of contractual duties under the July agreement and breach of that agreement. The first four causes of action were presented as pendent state law claims. The plaintiffs asserted jurisdiction under section 301 of the Labor Management Relations Act, 1947, as amended, 29 U.S.C. § 185 (1982), with respect to the fifth cause of action. The plaintiffs did not sue the Union. However, J & L did bring the Union in as a third-party defendant, alleging that if the plaintiffs should be found entitled to damages, the Union would be liable for any amount by which damages were increased by the Union’s breach of its duty of fair representation. The fraud claims were based on the assertion that, despite its unequivocal statements of intent to rebuild the coke plants, J & L actually intended to do so only if it could obtain an extension from the United States Environmental Protection Agency (EPA) of deadlines for bringing the Campbell Works into compliance with Clean Air Act requirements. Union representatives were told in November 1982 that J & L planned to close the Campbell Works. This was before the EPA made a final decision. On December 29, 1982 EPA denied J & L’s application for a discretionary extension and less than one month later J & L announced its abandonment of plans to rebuild the plants. The fourth cause of action merely charged J & L with failure to exercise due care to perform all aspects of the July agreement and the fifth claimed that the decision to close the coke plants permanently violated the agreement. B. The district court found that the plaintiffs had stated the first three causes of action as state fraud claims in an attempt to circumvent the exclusive jurisdiction of the NLRB. Referring to the guidelines set forth by the Supreme Court in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), the district court concluded that the conduct which the plaintiffs sought to have remedied under state law was arguably prohibited under the Labor Act as failure to bargain in good faith. This being so, the claims for relief from J & L’s alleged misconduct were within the exclusive jurisdiction of the Board. Clearly, the manifest underlying basis for the terms negotiated in the Memorandum of Agreement of July 13, 1981, was the continuation of coke operations at the Campbell plant. J & L bargained for and obtained concessions from the Union “to encourage Management to invest monies required to rebuild the facilities at the Campbell plant.” Since the duty to bargain unquestionably extends beyond the period of contract negotiations, defendant had the duty to disclose any information they had concerning a shutdown of the Campbell plant as it related to the concessions made in the Memorandum of Agreement during the entire period of that agreement. Failure to make the disclosures would constitute a failure to bargain in good faith. Thus, plaintiffs’ claims in the first three causes of action that defendants failed to provide them with information relating to whether the Campbell plant would close while still taking advantage of the concessions negotiated in the Memorandum of Agreement involve conduct which is arguably prohibited under the NLRA. District Court Memorandum Opinion, App. 86. The district court recognized that plaintiffs were also claiming fraud in J & L’s failure to disclose information about closing the Campbell Works or in misleading the Union as to their true intentions, aside from the understanding contained in the July agreement. However, the court found that this conduct, if proven, would be covered by the employer’s duty to bargain about the effects of its decision to shut down the Campbell Works. Again, any failure to disclose or any affirmative misrepresentations about the decision arguably would be prohibited by the Labor Act as bad faith bargaining. The district court granted summary judgment as to the fourth and fifth causes of action. The court found that the fourth cause of action, though pled as a state claim for negligent performance of a contract, was subject to the federal common law developed under section 301 of the Labor Act. Thus, it treated the fourth and fifth causes together as actions for breach of a labor contract. The court determined that the claimed breach of contract consisted of J & L’s permanent closure of the Campbell Works. Since the July agreement unequivocally reserved to J & L the sole decision whether to close the plant, the district court found no genuine issue of material fact with respect to the alleged breach. The complaint was dismissed in its entirety. The district court also dismissed the third-party complaint against the Union as moot. The plaintiffs have appealed. III. On appeal the plaintiffs argue that the fraud claims were not preempted “because the controversy presented under state law is not identical to that which could have been presented to the NLRB.” They also maintain that even if these claims could have been presented to the NLRB, they came within an exception to the preemption doctrine as claims that “touch interests so deeply rooted in local feeling and responsibility that no Congressional intent to preempt can be inferred.” In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), the Supreme Court stated that when it is not clear whether activity sought to be brought under state regulation is protected by section 7 of the Labor Act, or prohibited under section 8, or is outside the coverage of both sections, the Board rather than the courts must make the determination. The Court continued: When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted. Id. at 245, 79 S.Ct. at 780. In Motor Coach Employees v. Lockridge, 403 U.S. 274, 285-91, 91 S.Ct. 1909, 1917-20, 29 L.Ed.2d 473 (1971), the Court reviewed the reasons for application of the judicial doctrine of preemption in the area of labor law. Writing for the court, Justice Harlan summarized the rationale for preemption as follows: The rationale for pre-emption, then, rests in large measure upon our determination that when it set down a federal labor policy Congress plainly meant to do more than simply to alter the then-prevailing substantive law. It sought as well to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and developing this comprehensive legal system in the hands of an expert administrative body rather than the federalized judicial system. Thus, that a local court, while adjudicating a labor dispute also within the jurisdiction of the NLRB, may purport to apply legal rules identical to those prescribed in the federal Act or may eschew the authority to define or apply principles specifically developed to regulate labor relations does not mean that all relevant potential for debilitating conflict is absent. Id. at 288-89, 91 S.Ct. at 1918-19 (footnote omitted). Though the Court found that Lockridge presented a clear case for application of preemption under Garmon’s “arguably protected by § 7 or prohibited by § 8 of the Act” guideline, the Court did set forth three exceptions to the Garmon rule. One of the exceptions is the basis of the plaintiffs’ second argument — a situation where it cannot be presumed that Congress intended “to intrude so deeply into areas traditionally left to local law.” Id. at 297, 91 S.Ct. at 1923. The Court refined Garmon further in Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). A state court enjoined peaceful picketing on Sears property that constituted a continuing trespass under California law. In upholding the injunction the Supreme Court noted that the matter which the state court sought to regulate was the location of the pickets, not the question of whether the picketing was protected activity. Id. at 187, 98 S.Ct. at 1752. Cautioning against a literal, mechanical application of Garmon, the Court prescribed a balancing approach when the activity sought to be subjected to state control is only arguably, as opposed to “clearly”, subject to section 7 or 8 of the Labor Act. Id. at 187-88, 98 S.Ct. at 1752-53. In “local interest” cases involving conduct arguably prohibited by section 8, two factors control the preemption decision. There must exist “a significant state interest in protecting the citizen from the challenged conduct.” If this condition exists, even though the challenged conduct occurs in the course of a labor dispute, preemption is not required if state jurisdiction “entail[s] little risk of interference with the regulatory jurisdiction of the Labor Board. Although the arguable federal violation and the state tort [arise] in the same factual setting, the respective controversies presented to the state and federal forums would not [be] the same.” Id. at 196-97, 98 S.Ct. at 1757 (footnote omitted). The next paragraph of the opinion refers to identical controversies, language which the plaintiffs have relied upon in their first argument: The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to (as in Gamer) or different from (as in Farmer) that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court’s exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid. Id. at 197, 98 S.Ct. at 1757-58 (footnote omitted). The Court concluded that the “primary jurisdiction” rationale for preemption was not sufficient to oust the state court of jurisdiction over the trespass action. The state court could determine that the location of the picketing violated state trespass laws without a significant risk of interference with the Board’s uniform enforcement of the provisions of the Labor Act. In Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983), the Supreme Court reviewed its “approach to the pre-emption issue,” as it had “stated and restated” it in earlier opinions: First, we determine whether the conduct that the state seeks to regulate or to make the basis of liability is actually or arguably protected or prohibited by the NLRA. Garmon, supra, at 245; [79 S.Ct. at 779] see Sears, supra, at 187-90. [98 S.Ct. at 1752-54] Although the “Garmon guidelines [are not to be applied] in a literal, mechanical fashion,” Sears, supra, at 188, if the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily pre-empted. Farmer, supra, at 296. [97 S.Ct. at 1061] When, however, the conduct at issue is only a peripheral concern of the Act or touches on interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, it could not be inferred that Congress intended to deprive the State of the power to act, we refuse to invalidate state regulation or sanction of the conduct. Garmon, supra, at 243-44. [79 S.Ct. at 778-79] The question of whether regulation should be allowed because of the deeply rooted nature of the local interest involves a sensitive balancing of any harm to the regulatory scheme established by Congress, either in terms of negating the Board’s exclusive jurisdiction or in terms of conflicting substantive rules, and the importance of the asserted cause of action to the State as a protection to its citizens. Id. at 676, 103 S.Ct. at 1459 (citations and footnote omitted). In Engineers v. Jones, the question was whether an action by a discharged employee against a union for tortious interference with his employment contract, and against the employer for breach of that contract, was preempted. The state court held that it had a deep and abiding interest in its citizens’ contractual rights and that the tort action was so unrelated to the concerns of federal labor laws that the state action would not interfere with the administration of that law. After conducting the required balancing the Supreme Court disagreed, finding that the action affected arguably protected conduct. The Court emphasized the dual nature of preemption in the field of labor law. In addition to protecting “the exclusive jurisdiction of the Board over matters arguably within the reach of the Act,” it requires “the substantive pre-emption by the federal labor law in the area to which it applies.” Id. at 680, 103 S.Ct. at 1461. The Court concluded that the plaintiff’s cause of action against the union for tortious interference with contractual relations was not of merely peripheral concern to federal labor policy. More recently the Supreme Court has dealt with preemption in an unusual setting. In Belknap, Inc. v. Hale, 463 U.S. 491, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), Belknap hired replacement workers during a strike, promising them that they would not be discharged to accommodate returning workers at the end of the strike. The striking union brought unfair labor charges and Belknap filed counter-charges with the NLRB. As part of a settlement of all charges Belknap agreed to reinstate returning strikers. As a result of this agreement, Belknap laid off the replacements. When the lay-offs became final terminations the replacements sued Belknap in state court for misrepresentation and breach of contract. The Kentucky Court of Appeals reversed the trial court’s entry of summary judgment for Belknap, holding that preemption was not required since the employer’s activities were not an unfair labor practice and the misrepresentation and contract claims were of only peripheral concern to federal labor law, while deeply rooted in local law. The Supreme Court of the United States granted certiorari and affirmed. The Supreme Court held that even though Belknap’s offer of permanent employment to the replacements arguably would have been an unfair labor practice, the actions for fraud and breach of contract were not preempted. The controversy between Belknap and the replacements could not be said to be identical to that between Belknap and the strikers. The focus of the Board in determining whether Belknap had committed unfair labor practices as charged by the union “would be on whether the rights of strikers were being infringed.... The Board would be concerned with the impact of strikers not with whether the employer deceived replacements.” Id. at 510, 103 S.Ct. at 3183. On the other hand, in the state court action, the focus would be on the rights of the replacements. The Court found that permitting the state action “would not interfere with the Board’s determination of matters within its jurisdiction and that such an action is of no more than peripheral concern to the Board and the federal law. At the same time, Kentucky surely has a substantial interest in protecting its citizens from misrepresentations that have caused them grievous harm.” Id. at 510-11, 103 S.Ct. at 3183. In addition, the Board could not have awarded relief to the replacements. IV. The district court properly held that the three fraud claims concerned conduct arguably prohibited by the Labor Act. Section 8(d) requires an employer to bargain in good faith with respect to “wages, hours and other terms and conditions of employment,” 29 U.S.C. § 158(d). No matter how it is stated, the gravamen of the three fraud charges is that J & L did not bargain in good faith in obtaining concessions from the Union in the July agreement. To the extent that plaintiffs claim fraud unrelated to the July agreement, the same principles apply. The plaintiffs appear to argue that J & L fraudulently misled them after the agreement had been made in deciding to close the coke plants. This claim also implicates a section 8(d) duty. Though J & L retained the sole right to decide that the Campbell Works should be closed, it had a duty to bargain in good faith over the effects of that decision. First National Maintenance Corp. v. N.L.R.B., 452 U.S. 666, 677 n. 15, 101 S.Ct. 2573, 2580 n. 15, 69 L.Ed.2d 318 (1981). In an attempt to show that they are not pursuing an unfair labor practice claim, plaintiffs argue that J & L’s conduct was not a refusal to bargain over the effects of a plant closure since the company complied with the requirement of the collective bargaining agreement that required 90 days notice in advance of the shutdown. Nevertheless, whether classified as a violation of the general duty to bargain in good faith or the more particular duty to bargain over the effects of a plant closure, the conduct about which plaintiffs are complaining was arguably a violation of section 8. This conduct is continuing to take advantage of the concessions without revealing the likelihood of a shutdown. Failure of an employer to bargain in good faith about terms and conditions of employment is not peripheral to the concerns of federal labor law; rather, it strikes at the heart of one of the basic concerns of that law. Unless the fraud claims bring this case within an exception, the Garmon preemption doctrine applies. We do not believe this case comes within the exception relied upon by the plaintiffs. Preemption by federal law of these claims would not “intrude so deeply into areas traditionally left to local law” as to upset the traditional federal-state balance. Motor Coach Employees v. Lockridge, 403 U.S. at 297, 91 S.Ct. at 1923. The examples of such deep intrusion cited by the Court in Lockridge involved libel, Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), and mass picketing and threats of violence, United Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958), both unprotected union activity. The alleged misconduct of J & L is not of the same order. The plaintiffs argue that Belknap v. Hale supports their position. It is true that Belknap permitted a state court action for alleged employer misrepresentations to employees. However, Belknap is distinguishable on several grounds. Most importantly, the Court found that the strikers and the replacements had controversies with Belknap that were not identical. The NLRB could deal with the claims of the strikers, and the state court could deal with those of the replacements without infringing in any way upon the Board’s exercise of its jurisdiction. “The interests of the Board and the NLRA, on the one hand, and the interest of the State in providing a remedy to its citizens for breach of contract, on the other, are ‘discrete’ concerns.” 463 U.S. at 512, 103 S.Ct. at 3184 (citation omitted). Just as the controversies in Belknap were not identical, the Board could not provide a remedy to the replacements. Its treatment of the strikers’ claims for back wages and restoration of benefits would not be affected by any relief in damages that the replacements might obtain in their state court action. Applying the step-by-step process outlined in Engineers v. Jones, we have first determined that the conduct that the plaintiffs seek to have regulated under state law is arguably prohibited by the Labor Act. This being so, applicable state law and procedures ordinarily will be preempted. We also have determined that the conduct at issue is not “a mere peripheral concern of the Act.” Since the plaintiffs assert that their claims involve interests so deeply rooted in local feeling and responsibility as to rule out any congressional intent to preempt state law, we are required to engage in a “sensitive balancing.” 460 U.S. at 676, 103 S.Ct. at 1459. When the proper balancing of interests is undertaken, it is clear to us that the concern with the substantive rights created and protected by federal law outweighs any interest the state might have in protecting its citizens from fraud and misrepresentations. There is only one group of employees in the present case and the conduct about which they complain deeply implicates employer-employee relationships. Since it is conceded that J & L cannot be required to reopen the Campbell Works, any remedy for J & L’s conduct will involve back wages and continuation of benefits or compensation for the value of the concessions. These are precisely the forms of relief requested by the Union in its grievance. Unlike Belknap, this is not a case involving discrete controversies. In its essence the controversy presented to the court is identical to the one that could be presented to the NLRB in an unfair labor practice complaint. While the state has an interest in protecting its citizens from misrepresentations, we believe this interest is properly overriden by the need to enforce a uniform federal labor law. V. Federal courts have jurisdiction under section 301 of the Labor Act over suits to enforce collective bargaining agreements. This is true even when the employer’s conduct is arguably covered by section 7 or 8. Motor Coach Employees v. Lockridge, 403 U.S. at 298, 91 S.Ct. at 1923; Storey v. Local 327, International Brotherhood of Teamsters, 759 F.2d 517, 522 (6th Cir.1985). Thus, the district court properly did not apply the Garmon preemption tests to the fourth and fifth causes of action pled by the plaintiffs. Nevertheless, the district court granted summary judgment for J & L on both claims. A. The plaintiffs contend that the fourth cause of action should have been treated as a separate tort claim and not “collapsed” into the fifth cause which admittedly was a breach of contract claim under section 301. The plaintiffs argue that the fourth cause set forth a separate claim for breach of the common law duty to perform a contract with ordinary care and skill. The district court adopted the reasoning of the court of appeals in Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, 647 F.2d 372 (3d Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982). In Wilkes-Barre, the court held that district courts have jurisdiction under section 301 over claims for tortious interference with labor contracts and that federal common law controls. We believe the same reasoning applies to claims for negligent performance of a labor contract. The fourth and fifth causes of action both involve claims for violation of the terms of a collective bargaining agreement. The plaintiffs have not presented a tort claim that is independent of any section 301 contract claim. See Allis-Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), and Gibson v. A.T. & T. Technologies, 782 F.2d 686, 121 LRRM 2626 (7th Cir.1986). B. The district court held that the July agreement, like the basic collective bargaining agreement, unambiguously reserved to J & L the sole right to determine whether to keep the Campbell Works open or to close them. The plaintiffs argued that the agreement reserved this right to J & L only until its decision on rebuilding the coke plants was announced. They contend on appeal that summary judgment was improper because they put forth a plausible interpretation of the agreement and thus created an issue of fact. They seek to rely on extrinsic evidence to support their interpretation, relying on this court’s recent statement that “[t]he intended meaning of even the most explicit language can, of course, only be understood in light of the context which gave rise to its inclusion.” United Automobile Workers v. Yard-Man, Inc., 716 F.2d 1476, 1479 (6th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984). This statement was made in the context of the court’s discussion of an agreement found to be ambiguous and after the court had stated that “the court should first look to the explicit language of the collective bargaining agreement for clear manifestations of intent.” Id. Yard-Man did not change the rule stated by this court in Local 783, Allied Industrial Workers v. General Electric Co., 471 F.2d 751, 757 (6th Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973): It is true that there is generally broad latitude in the admissibility of bargaining history to construe a collective bargaining agreement. But where the meaning of the clause in question is clear, no construction is necessary. We have examined the cases cited by the plaintiffs in support of their contention that J & L had somehow surrendered its clearly stated right to decide whether to cease operations at the Campbell Works and have found none of them persuasive. As this court stated in Local 1330, United Steelworkers v. United States Steel Corp., 631 F.2d 1264, 1280 (6th Cir.1980), there is no legal basis for this court’s ordering an employer to continue operations which it has determined to discontinue for economic reasons. The plaintiffs do not dispute that the decision to close the Campbell Works was based on economic considerations. The July agreement not only failed to bind J & L to continue operations of the coke plant; it explicitly provided that J & L could determine whether to invest more money there to rebuild the plant and reserved to J & L the sole right to decide whether the plant would be closed. We believe the district court was correct in concluding that the memorandum in question, including its preface, reinforced and “expressly preserved defendants’ unilateral right set forth in the basic Labor Agreement to close the Campbell plant.” The plaintiffs presented no genuine issue of material fact with respect to the claim for breach of the July agreement. The judgment of the district court is affirmed.

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

P. J. MILLER, Johnnie Dexter and Perry Bruner, who sue individually on their own behalf and as President, Secretary-Treasurer and Wage Committeeman, and on behalf of the class of persons constituting United Glass and Ceramic Workers of North America, AFL-CIO, Kingsport Local No. 117, a local labor union organized as an unincorporated association, with its office and principal place of business in Kingsport, Tennessee, Appellants, v. BLUE RIDGE GLASS CORPORATION, a corporation maintaining an office and agents in the City of Kingsport, Tennessee, Appellee. No. 13573. United States Court of Appeals Sixth Circuit. March 20, 1959. John S. McLellan, Jr., Kingsport, Tenn., and Eastman Portrum, Rogers-ville, Tenn., for appellants. Edwin O. Norris, and Ernest F. Smith, Kingsport, Tenn.; Penn, Hunter, Smith & Davis, Kingsport, Tenn., on the brief, for appellee. Before ALLEN, Chief Judge, SIMONS, Circuit Judge, and KENT, District Judge. PER CURIAM. This is an appeal from a judgment of the District Court dismissing a class action by three appellants against appellee, Blue Ridge Glass Corporation, their former employer. The dispute is as to vacation pay for 1955 alleged to be due appellants and others similarly situated under a collective bargaining agreement in effect from January 30, 1955, to January 28, 1956. After the usual negotiations concerning the expiration of this agreement the parties failed to execute a new contract and a strike occurred January 28, 1956. It is stipulated that since then appellants have not worked for appellee. In 1947 appellee executed a collective bargaining agreement with the Kings-port Flat Glass Workers Association. June 24, 1949, a new agreement was executed between appellee and United Glass and Ceramic Workers of North America, Local 117, AFL-CIO. The old agreement, which expired June 24,1949-, provided for vacation pay. Under the new agreement, effective June 25, 1949, a new vacation pay provision came into effect. The original contract contained a term practically identical with that in each subsequent contract, including the one in suit dating from January 30, 1955, to January 28, 1956, namely, that the vacation pay for each employee for each year was a percentage of the “gross earnings for the preceding calendar year.” The terms of the contract here involved are shown in Article XV of the January 30, 1955, agreement. The pertinent paragraph, 2, briefly summarized, is as follows: For one year’s service performed by November 30 of the current year if employee has worked from February 1 to November 30 of the current year and at least 500 hours the preceding calendar year, he receives one week’s vacation. Pay is 2% of the earnings of the preceding calendar year, or at least $25.00. An employee having worked two years or more receives at least 40 hours pay at average rate. In paragraphs 3 and 4 proportionate vacation pay is fixed for employees who have had longer service. Of necessity vacations were staggered throughout the year in order to sustain the level of appellee’s production. The contract expressly provided that vacation scheduling should not interfere with plant operations. Vacation pay checks were prepared by machine early in each year and all dated as of the day of preparation. The checks were not executed by appellee until given to the employees. The matter in dispute is whether the vacation pay received in 1955 was for 1954 or 1955. Appellants claim that it was for 1954, hence appellee owes them vacation pay for 1955. Appellee claims that the vacation payment in 1955 was for 1955, hence it owes appellants nothing. Appellants’ contention relies on two principal points. First, since Article XV, paragraph 2, states that the vacation pay in the current year is based on the earnings of the previous year, the vacation pay, appellants claim, is for the previous year. Concretely, since the vacation pay in 1955 was based on the gross earnings of 1954, they urge that particular pay was for 1954 and appellee still owes vacation pay for 1955. Second, appellee’s income tax return filed in 1956 for the year 1955 made a deduction for vacation pay to be paid in 1956. That deduction, appellants urge, represents vacation pay for 1955 and supports the contention that vacation payments made in 1955 were for the year 1954. In answer to the first contention appellee presented the following evidence: The original union agreement with the Kingsport Association required vacation pay through June 24, 1949. It was paid when the agreement expired, hence it was paid for the period through June 24, 1949. An adjustment was made under the new union agreement with Local 117 and appellee paid the balance of vacation pay in 1949 so that at the end of 1949 appellants had received vacation pay in full for that year. In each successive year similar complete vacation payments were made. It is conceded that, with the exception of certain employees covered by stipulation, the conditions essential to the receipt of vacation pay for 1955 were fulfilled in 1955 by each member of the class. Hence appellee urges that the vacation pay received in 1955 by the employees was for 1955. An example of this situation is Exhibit 5, Data Concerning Vacation Pay of Production Employees, which sets forth the vacation pay statistics concerning Johnny Dexter, one of appellants, as follows : Date Hired: 7-6-43 Last Day Worked: 1-27-56 Kingsport Flat Glass Workers Association Vacation 1948 Date Paid Vacation Hours Paid Gross Amount Paid 8-7-48 40 $48.00 To June 25,1949 Vacation 1949 4-2-49 40 $50.80 June 25,1949 — C. I. O. Local 117 Vacation Adjustment (Adjusted Gross Amount) 8-17-49 40 $75.09 Vacation 1950 6- -50 80 $126.74 Vacation 1951 6- -51 80 $154.25 Vacation 1952 6- -52 80 $132.33 Vacation Taken 1953 6-17-53 80 $130.40 Vacation Taken 1954 6-30-54 88 $160.16 Vacation Taken 1955 4-14-55 96 $179.52 This statement was typical of other employee accounts presented in evidence. We deduce that the last payment by Kingsport Flat Glass Corporation made to June 25, 1949, was for the 1949 vacation pay, that the vacation pay adjustment made August 17, 1949, under the new contract with AFL-CIO Local 117 was for the year 1949. Hence, the vacation pay in 1950 was for the year 1950 and through subsequent years for each year in which made. Likewise vacation pay during the year in question, 1955, was for the year 1955. As to the estimate of vacation pay embodied in a deduction in appellee’s income tax report for 1955, filed in 1956 while employees were on strike, appellants’ contention that this estimate constituted an admission of liability for the amounts involved herein has no merit. The permission to accrue anticipated expenses for income tax purposes is granted under the Internal Revenue Regulations, Revenue Ruling 57-325, IRB 1957-27, P-H Fed. Tax Service Section 11600 (1958), “Accrual of Vacation Pay,” page 11229. This ruling declares that “where an agreement with a union provides that employees who work not less than a specified number of days during the year will receive a vacation with pay the following year, or pay in lieu of vacation, a reasonable estimate for vacation pay is deductible by an employer on the accrual basis in the year the qualifying services are completed. It is not necessary to postpone the accrual till the following year when the vacation is taken, or the pay received.” This ruling simply authorizes deduction of a reasonable estimate in the year the qualifying services are completed. The ruling specifically applies to a case like this where the contract provided that part of the qualifying services take place in the year preceding the year in which the vacation with pay is to be received by the employee. As to the particular deduction made in this case, it was prepared in 1955 and filed in 1956 in spite of the strike because there was always a possibility that the strike would end and the vacation payments would continue. As the strike did not end and the men were replaced, a later adjustment was made and appellee in its 1956 income tax report changed the deduction to income and paid a tax thereon. Bearing in mind the fact that the contract expressly recognized the flexibility of the vacation schedule as being controlled by the employer, we conclude that the contract was not ambiguous and that appellee operated according to its terms. Since appellants stipulated that they had not worked during the period from February 1 to November 30 of 1956, the argument that the employees were engaged in a legal economic strike, held the status of employees, and from a legal standpoint were working for appellee during that period, needs only to be stated to demonstrate its fallacy. The District Court’s finding that appellee had paid full vacation pay for 1955 is clearly supported by the evidence. Other questions raised have been considered and found unnecessary to discuss. The judgment of the District Court is affirmed.

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

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

Daniel KNIGHT, Appellant, v. STATE OF MINNESOTA, Appellee. No. 73-1137. United States Court of Appeals, Eighth Circuit. Submitted June 13, 1973'. Decided July 20, 1973. Luther A. Granquist, Minneapolis, Minn., for appellant. Theodore Rix, Asst. County Atty. of Hennepin County, Minneapolis, Minn., for appellee. Before Mr. Justice CLARK, HEANEY and BRIGHT, Circuit Judges. Associate Justice Tom C. Clark, United States Supreme Court, Retired, is sitting by designation. CLARK, Associate Justice. In this habeas corpus action Knight challenges the validity of state conviction and sentence on a charge of theft by check of an amount in excess of $100.00. Minn.Stat. § 609.52, subd. 2(3). Originally he was charged on November 18, 1967, with aggravated forgery in violation of Minn.Stat. § 609.625, subds. 1 and 3, to which he pleaded not guilty. On December 6, 1967, Knight appeared before the court with his privately retained counsel and entered a guilty plea to the lesser degree crime of theft by check. The trial court accepted the plea, finding it voluntarily and freely made. However, on January 9, 1968, when his case came on for sentencing, Knight sought leave of the court to withdraw his plea on the ground that he had neither signed nor seen the check involved and, therefore, was not guilty of the charge. The court held a private conference in chambers with the prosecutor and Knight’s counsel and thereafter denied Knight’s motion to withdraw his plea; it then sentenced him to a term of 0-5 years to be served consecutively to a previously imposed sentence. Knight appealed and the Minnesota Supreme Court remanded the case for a post-conviction hearing. Post-conviction relief was denied and the Minnesota Supreme Court affirmed. 292 Minn. 419, 192 N.W.2d 829 (1971). This habeas corpus application was then filed and the District Court below denied relief. Apparently Knight is still being held under the sentence here challenged. In light of certain inadequacies in Knight’s guilty plea hearing and sentencing appearance, we believe that Knight is entitled to a full hearing in the District Court on his claims that his guilty plea was not made with knowledge of the elements of the crime charged and that he was denied the effective assistance of counsel. 1. Factual Background: The basic facts upon which our decision turns appear undisputed. Two girls, Vicki Gottrey and Sheila Spence Smith, purchased a pair of men’s alligator shoes at a certain Florsheim Shoe Shop on October 11, 1967. They paid with a forged check in the amount of $115. Knight later either “took” the shoes or the girls gave them to him. Knight exchanged the shoes for another pair at the same price but which were of the style and size that he preferred. Police officers had an old arrest warrant for one of the girls, and they traced her to an apartment where they found Knight, the two girls and another man. The alligator shoes were on the floor. All four individuals were arrested, the shoes were seized, statements were taken and a charge of aggravated forgery was filed against Knight. He pleaded not guilty and filed a motion to suppress the shoes and his statement, arguing that the officers entered the apartment illegally and arrested him without probable cause. On December 6, 1967 the aggravated forgery charge was dismissed and the theft by check charge was filed to which Knight pleaded guilty. At a hearing he admitted under oath that he entered the plea of guilty of his “own free will and volition”, knowing that he could be sentenced to a term up to five years in the State Penitentiary; that he had “discussed the matter on numerous occasions” with his retained attorney; that “on the night of October 11, 1967, at Brookdale Shopping Center . a check” [was] given the Florsheim Shoe Shop”; that he was “not the person who wrote the check or gave the check”; but that “he knew that the check was a forged check” and “did not belong to the person who gave it”; that “the person who did pass the check . . . got a pair of alligator shoes”; that he “took the alligator shoes the next day and knowing that she had obtained it by a bad check”; and that he “knowingly took the shoes that were given to you from this purchase and exchanged them for another pair of shoes.” Knight also admitted that by his plea of guilty that he was waiving his right to question the entry into the apartment, the seizure of the shoes and the validity of his statement in connection therewith. Knight also testified that his retained counsel had “competently and conscientiously advised and represented .... [him] throughout this matter.” At the same hearing and on application of his counsel, Knight’s bail bond was reduced from $5000 to $2000 without objection from the State. At his January 9, 1967 appearance for sentencing Knight stated that he had discussed his case with another lawyer and wanted to withdraw his guilty plea. The court announced a brief recess at which point Knight’s retained counsel stated that “before doing that, may I put on the record that I didn’t know anything about this”, and the judge replied, “I kind of gathered that.” The judge, Knight’s counsel and the prosecutor then went into the judge’s chambers. When they returned the judge asked Knight the name of the other attorney he had consulted, and Knight gave the court his name and said that they had discussed the case two days before. The judge then announced that he had read the transcript of the guilty plea hearing and that Knight’s motion to withdraw the guilty plea was denied. The judge asked Knight if he had anything to say before sentence was imposed. Knight replied: “Well, I am not guilty of the charge. The State’s own witnesses said that two girls came in there and bought a pair of shoes, not I. I haven’t signed a check. I haven’t even seen a check.” The state then announced: “it isn’t our contention that he passed this check. The contention is, and the plea of guilty shows, that he was a part of the conspiracy to steal by means of a false bank check over one hundred dollars.” Knight’s retained counsel, upon being asked if he wished to say anything before sentence was imposed said: “Mr. Cohen. Yes, Your Honor, I think I should clarify the record and also make a record to the effect that I was not apprised to Mr. Knight’s desire to change or withdraw his plea of guilty until this morning, or until such time as he took the stand. I also should add in this particular case I represented Mr. Knight from the inception of the case, that there was a preliminary hearing in Municipal Court which I represented him and that subsequent to that I had numerous conferences with the county attorney’s office; and I should point out for the record that the initial charge was forgery which carried a term of ten years, but after discussions with the county attorney and pursuant to papers filed with the Court and in the Court file, the county attorney agreed to reduce the charge to theft by check which carries a maximum of five years. “I feel under the circumstances, Your Honor, that the defendant was represented — I represented the defendant adequately and kept him informed at all times of what was going on and what the situation was. I think the Court is aware of the fact, and the record shows, that the questions asked at the plea of guilty were those put to the defendant by myself and that the defendant answered the questions in the affirmative and admitted his guilt. “I can’t help what advice the defendant received in jail outside of my presence, Your Honor, and I would ask the Court to ignore that and refer to the original report and all reports on this defendant in making its sentence, and ignore anything that happened today with regard to the imposition of sentence.” The court then sentenced Knight to an indeterminate, five-year maximum sentence at the St. Cloud Reformatory for Men. 2. The Guilty Plea Hearing of December 6, 1967: We have carefully studied the record of this hearing and conclude that it leaves much to be desired. Although the prosecutor did not claim that Knight passed the check but “that he was a part of the conspiracy to steal by means of a false bank check over one hundred dollars”, we find no reference to any conspiracy in the record of December 6th. Knight was not queried about his knowledge of a conspiracy, the members composing it or any overt acts resulting therefrom. Indeed, the questions seem to skirt any mention of Vicki Gottrey and Sheila Spence Smith, who apparently passed the check. It is true that Knight admitted knowing that the check was forged when he took the shoes, but this alone was not sufficient to bring him within the offense charged. His receipt of the shoes merely indicated that he might have been an accessory after the fact, not an offense in Minnesota. State v. Matousek, 287 Minn. 344, 348, 178 N.W.2d 604 (1970); State v. Lyons, 144 Minn. 348, 175 N.W. 689 (1919). It appears strange to us that neither counsel, the prosecutor nor the judge developed the basic element necessary to the charge, i. e., Knight’s participation in a conspiracy. Knight’s right to plead not guilty was taken from him — even though he demanded it — despite the Supreme Court’s admonition that the courts should exercise the “utmost solicitude” in making sure that the accused “has a full understanding of what the plea connotes and of its consequences.” Boykin v. Alabama, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Although we have held that Boykin’s requirement that the record affirmatively show that a guilty plea was voluntarily and understanding^ made is not retroactive, Mel-ler v. Missouri, 431 F.2d 120 (8 Cir. 1970), the necessity that courts approach guilty pleas with “utmost solicitude” is to some extent inherent in the traditional concept of due process. See also Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring; Marshall, J., concurring and dissenting). 3. The Sentencing Proceeding of January 9,1968: We are also disturbed by Knight’s claim that he lacked the effective assistance of counsel at the hearing of January 9, 1968, when he attempted to withdraw his plea. It appears clear that he had no support from his counsel in this regard. Knight had advised the court that he was dissatisfied with his counsel and had sought the advice of another. Still his original counsel told the court that he was surprised at Knight’s request; that he had “represented the defendant adequately” and had obtained the agreement on the lesser offense. At no time did he speak on behalf of Knight’s request to withdraw his plea; on the contrary he gave every evidence of being against that course. Nor did counsel speak on Knight’s behalf with regard to the appropriate sentence. Subsequently the court imposed a maximum sentence consecutive to one already being served. Four factors weigh heavily against the action of the court in refusing to allow Knight to withdraw his plea: (1) the inadequacy of the plea of guilty hearing of December 6th; (2) the failure of counsel to support Knight in his offer to withdraw his plea; (3) the failure of the court to hold a hearing on the motion to withdraw the plea; and (4) counsel’s apparent distraction from his duty to represent Knight on the issue of sentencing by his concern over justifying his past handling of the ease. 4. The Post-Conviction Hearing: The State seems to say that all of these defects were cured by the subsequent post-conviction hearing held on March 9, 1970. However, we find the post-conviction hearing of little assistance since that court made no findings on the issue of whether Knight’s guilty plea was knowingly and intelligently made. There is no indication in the post-conviction transcript that Knight entered his guilty plea with knowledge of the elements of the offense charged; on the contrary, the only evidence on this point was Knight’s testimony that he did not understand the elements of theft by check. Resolution of this issue is crucial in view of the fact that the guilty plea transcript was insufficient on its face to support acceptance of the plea. Although the state post-conviction court did find that Knight was adequately represented by counsel “at all proceedings in this Court up to’ and including conviction,” our study of the transcripts of the guilty plea hearing and especially the sentencing proceedings leaves us with serious doubt as to the correctness of this ruling. The State’s reliance on United States v. Rawlins, 440 F.2d 1043 (8 Cir. 1971), is misplaced. The Court there upheld the trial court’s refusal to permit the accused to withdraw his guilty plea even though “ . . . there remained a slight possibility that the defendant may not have understood all of the essential elements of the crime.” In Rawlins the defendant’s counsel actively supported his client’s effort to withdraw his plea. Furthermore, the motion was deferred for a hearing which encompassed the issue of defendant’s understanding of all the elements of the crime. In the present case Knight apparently had neither the assistance of his counsel in attempting to withdraw his plea nor a hearing on whether he understood the essential elements of the crime when he entered his guilty plea on December 6, 1967. In light of these considerations, the judgment is reversed and the case remanded for a full hearing on whether Knight had the effective assistance of counsel and whether his guilty plea was knowingly and intelligently made. Reversed and remanded.

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

Harold G. WEIL and Bea Weil, His Wife, Appellants, v. Joe KESHNER, Appellee. No. 16818. United States Court of Appeals Eighth Circuit. March 21, 1962. Walter S. Berkman, St. Louis, Mo., for appellants. George A. Spencer, Columbia, Mo., and Wilder Lucas, St. Louis, Mo., for appellee. • Before VOGEL, BLACKMUN and RIDGE, Circuit Judges. VOGEL, Circuit Judge. Harold G. Weil and Bea Weil, his wife, plaintiffs-appellants, hereinafter referred to as plaintiffs, brought this suit against Joe Keshner, defendant-appellee, hereinafter referred to as defendant, to recover actual and punitive damages claiming they had been defrauded by the defendant in the sale to them of a one-half interest in a bull. It was alleged by the plaintiffs that the defendant represented that the bull was a breeder of fine cattle, in good health and that they relied thereon, but that actually the bull was a reactor to the agglutination test for brucellosis and incapable of producing healthy and satisfactory offspring. They sought $20,000 because of alleged damage by way of contamination to their herd, plus $10,000, representing their one-half interest in the bull that was necessarily destroyed, and $25,000 punitive damages. In his answer defendant denied plaintiffs’ charges and filed a counterclaim against plaintiffs, alleging that while the bull was in the plaintiffs’ possession they allowed it to become infected so that it was a reactor to the agglutination test for brucellosis; that it thereafter could not be used for breeding purposes and it was necessary to destroy it, and that the plaintiffs, in allowing the bull to become so infected, had acted willfully, wrongfully and maliciously. Defendant asked for $15,000 actual damages and $15,000 punitive damages. The case was tried to a jury which found against the plaintiffs and for the defendant on the defendant’s counterclaim, assessing his actual damages against plaintiffs in the sum of $6,000 less one-half the salvage or $147.31, plus punitive damages against plaintiffs in the sum of $4,000. This appeal by the plaintiffs is only on the verdict and judgment rendered in favor of defendant and against the plaintiffs on the counterclaim. Plaintiffs do not here urge an appeal from the adverse findings as to their original cause of action. In appealing, plaintiffs charge error in (1) denial of their motion for a directed verdict as to defendant’s counterclaim because of failure of proof; (2) in the court’s charge to the jury; (3) in the admission of the testimony of Dr. Leonard A. Rosner over plaintiffs’ objections. To rule on the questions presented, it becomes necessary to summarize the evidence presented to the jury and upon which their verdict was based. In doing so we, of course, take that view of the evidence which is most favorable to sustaining the jury’s verdict and accept as established all reasonable inferences arising from the testimony which tend to support the jury’s conclusion. Plaintiffs own and maintain a herd of Angus cattle near Dallas, Texas. Defendant is in the business of raising and breeding Angus cattle on his farm near New Florence, Missouri. In February, 1956, plaintiffs purchased from the defendant for $10,000 a one-half interest in a bull named “Prince Eric Good Earth 157”. The arrangement between the parties was that each was to have the use of the bull for six months out of each year. Bangs disease or brucellosis is an infectious disease in cattle, swine and goats. It causes animals to abort and it causes undulant fever in human beings. There is no known cure. Cattle can be vaccinated against it, usually at an early age. Bulls are usually not vaccinated but female calves are. On February 21, 1956, subsequent to the sale of a one-half interest in the bull to plaintiffs and preparatory to its being sent to plaintiffs in Texas, Dr. Tom Omohundro, a veterinarian, tested the bull for brucellosis. The test was negative and the bull found to be clean and healthy. The following month the bull was taken by the plaintiffs to their farm in Texas. It was returned to the defendant’s place in October, 1956. In November, 1956, it was again sent to the plaintiffs in Texas and returned to the defendant in October, 1957. Shortly before the bull was returned to the defendant in October, 1957, a veterinarian in Texas tested him and, finding him “clean”, issued a good health certificate to that effect. Such testing and good health certificates are legal requirements for the moving of animals in interstate commerce. In June, 1958, the bull was again tested for brucellosis at defendant’s place of operation in Missouri. At that time there was a positive reaction to the test. All other previous tests had been negative. In light of the clean history of the defendant’s herds, the veterinarian suspected that perhaps a vaccination had been given. In neither plaintiffs’ nor defendant's herds of cattle had there ever been a case of brucellosis. Promptly upon the positive test of June, 1958, the veterinarian in charge of defendant’s herds tested all animals and found no reactors excepting for one or two previously vaccinated cattle. On June 23rd, August 5th and August 13th of 1958 the defendant wrote Harold G. Weil, one of the plaintiffs, asking whether they had vaccinated the bull against brucellosis while it was in Texas. It was pointed out that if the positive reaction to the test was due to vaccination then the animal would not have to be destroyed. Plaintiff’s answer to the defendant’s inquiry was evasive, “I remember specifically standing next to the truck and asking Aiken to get the certificate from his pocket, which he did and he gave it to you at the time. Other than that I do not know what to say.” As a result the bull was slaughtered in accordance with requirements of the State of Missouri. Salvage totalled $294.62. At the trial plaintiff Harold Weil specifically denied vaccinating the bull, but an ex-farm manager of the plaintiffs, one Aiken Knox, testified to the contrary. He was working for the plaintiffs in October, 1957, when the bull was tested before reshipment back to Missouri. He testified that the day the plaintiff Harold G. Weil was informed by his veterinarian that the bull had tested negative for brucellosis he said to Knox that now he could get his money back. He said, « * * * I am going to get my money back on that bull if it is the last thing I ever do” and “ * * * this bull would never return to the farm”. He instructed Knox to vaccinate the bull for brucellosis. Knox refused, saying that Keshner was nobody’s fool and that it would ■cost Weil plenty. After ascertaining that the other men were out in the fields working, Weil, with Knox watching, personally tied up the bull and innoculated it with 5 cc. of anti-brucellosis Strain 19. 'Two days thereafter he instructed Knox to load the bull on a truck for delivery "back to the defendant’s place in Missouri. Knox met the plaintiffs in Kansas City :and Mr. Weil went with him to deliver the bull to the defendant’s farm, at such time giving to the defendant the health papers indicating the bull was clean. Neither told defendant of Weil’s having vaccinated the bull. Knox, who was still working for plaintiffs, thought his job would be in jeopardy if he did so. Two veterinarians testified in behalf ■of the defendant — Dr. Omohundro, who had examined and tested the defendant’s herds many times and who was thoroughly familiar with them, and also Dr. Leonard A. Rosner, State Veterinarian. Dr. Omohundro testified without objection on the part of the plaintiffs that in his opinion the positive reaction to the brucellosis test given in June, 1958, was ■caused by a vaccination. He grounded his opinion on the past history of the ■defendant’s herd and all of the surrounding circumstances. Dr. Rosner, basing his testimony on his experience, likewise ■gave it as his opinion that the positive reaction was caused by vaccination, not disease. His testimony was received ■over strenuous objections on the part of plaintiffs, who argued that inasmuch as Dr. Rosner had never been on the defendant’s farm and was not familiar with defendant’s herd there was no foundation for his testimony. Defendant then established further foundation by means of the records kept by Dr. Rosner as State Veterinarian concerning the history of state herds relative to brucellosis, this herd in particular and the fact that it was a brucellosis-free herd. Dr. Rosner’s opinion was allowed to stand. The foregoing summary of the testimony is in itself a refutation of plaintiffs’ first assignment of error to the effect that the court should have granted a directed verdict on the defendant’s counterclaim because of a failure of proof thereof. There is here substantial testimony which, if believed — and obviously it was believed — would support a finding that plaintiffs, being dissatisfied with their bargain, deliberately set out to get their money back and that plaintiff Harold Weil, upon Knox’s refusal to vaccinate the bull, did it himself, knowing it would result in a positive test and thus possibly lay the basis for a suit against the defendant on the claim that the bull was not as represented when plaintiffs purchased a half interest therein. Nevertheless, plaintiffs argue that the bull’s positive reaction to the agglutination test may be as reasonably attributed to a cause excusing the plaintiffs from liability as to a cause subjecting them thereto; and that the cause excusing them should therefore be presumed, citing Jellison v. Kroger Co., 6 Cir., 1961, 290 F.2d 183, 184. They argue that the expert witnesses who testified for defendant admitted, in effect, that there was no way to tell if the positive reaction was from the disease or from a vaccination, relying on Pennsylvania R. Co. v. Chamberlain, 1933, 288 U.S. 333, 339, 53 S.Ct. 391, 393, 77 L.Ed. 819, wherein the Supreme Court said: “We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover.” (Citations omitted.) Plaintiffs’ argument loses any cogency through complete omission of reference to the eyewitness Knox who was present and saw plaintiff Weil vaccinate the bull a few days after he had been tested and found to be clean. The jury was entitled to believe, and undoubtedly did believe, the witness Knox. Further, defendant’s experts, in expressing their opinions, did not rely upon the test alone. Plaintiifs overlook the fact that both herds were brucellosis free, that all other tests had been negative, and that according to the two experts the indications pointed towards vaccination, not disease. We hold that there was substantial testimony in the record upon which the jury could reasonably reach a verdict in favor of the defendant on his counterclaim against the plaintiifs. Plaintiffs’ next point is that the trial court erred in its charge to the jury. In substance, the charge complained of was to the effect that if the jury found that plaintiffs injected the bull with vaccine causing the bull to react positively to the agglutination test for brucellosis, as alleged and as testified to by witness Knox, then the jury should find for the defendant. It is plaintiffs’ contention that there was no competent evidence upon which to submit the charge in question. Having found to the contrary on the first point, we of course find no error in such instruction, which we have considered as a whole and which we find fairly and fully instructed the jury as to the issues on defendant’s counterclaim. Plaintiffs nevertheless contend that the court erred in using the following words: “ * * * if you further find and believe from the evidence that upon such a test being made, it is not possible to determine, with any assurance, whether the animal actually had the disease known as brucellosis, or whether he was merely mildly infected as a result of the vaccination, * * * ” (emphasis supplied) arguing that the words “mildly infected” aré erroneous because there is no evidence in the record to show that there is a way to differentiate between “the reaction caused by natural infection and that from vaccine”. Plaintiffs’ point is not well taken. The phrase is to be read in its context. It is obvious that the question was whether the bull had brucellosis or whether it was reacting to a vaccination. Although the results may be identical in response to the agglutination test, there is indeed a practical difference. Furthermore, it is common knowledge that a vaccine does have the effect of “mildly infecting”. We find no error in the court’s choice of words. Plaintiffs’ final argument is that the trial court erred in admitting the testimony of Dr. Rosner on the question of whether or not in his opinion the bull had been vaccinated. A reading of the record, we believe, fully justifies the receipt of Dr. Rosner’s professional opinion, based as it was upon the fact that he knew by state records the history of the defendant’s herd in question over many years, and the information given him by the veterinarian-in-charge that it was a brucellosis-free herd in which there had never been an infection, and that all previous tests hád been negative. Be that as it may, however, the opinion testimony given by Dr. Rosner was identical with that given by Dr. Omohundro, to which no objection whatsoever was made. Even if there were error in admitting the testimony of Dr. Rosner— and we think there was not — it was nevertheless non-prejudicial and harmless, being merely cumulative of that which had been received without objection through Dr. Omohundro. Gerhart v. Henry Disston & Sons, Inc., 3 Cir., 1961, 290 F.2d 778, 786; Standard Accident Ins. Co. v. Rossi, 8 Cir., 1929, 35 F.2d 667, 670; Dorsey v. Muilenburg, Mo., 1961, 345 S.W.2d 134, 139. Affirmed.

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

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

PUGET SOUND POWER & LIGHT CO. et al. v. CITY OF PUYALLUP. No. 6369. Circuit Court of Appeals, Ninth Circuit. Aug. 4, 1931. F. D. Oakley, of Tacoma, Wash., and Elmer E. Todd, Frank E. Holman, Todd, Holman & Sprague, and Clarence R. Innis, all of Seattle, Wash., for appellants. E. K. Murray and Leo Teats, both of Tacoma, Wash., and M. F. Porter, City Atty., of Puyallup, Wash., for appellee. Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge. WILBUR, Circuit Judge. This is an appeal from a judgment rendered from a condemnation proceeding brought by the city of Puyallup, a municipal corporation, to condemn a distributing system installed and owned by the Puget Sound Power & Light Company within the city limits of the city of Puyallup'. The other appellants are joined because of their interest in an incumbrance upon the property. Tha verdict and judgment was for $216,825.67. It is conceded that the appellants were entitled to the market value of the property taken, and, in view of the fact that appellants were the owners of a large generating and distributing system, of which the system in the city of Puyallup was a small but integral part, the appellants were also entitled to the damage to its remaining property, due to the severance of property taken. As both parties introduced evidence as to these items, and the verdict of the jury is based upon comprehensive but conflicting testimony, that verdict is conclusive upon appeal, unless error was committed in the reception of evidence or in the court’s charge to the jury. The only questions presented by the appellants relate to the proper method of ascertainment of market value and to rul.ings made by the trial court during the taking of the evidence. - Preliminarily, it may be stated that the evidence was full and comprehensive, that the witnesses who testified were fully advised as to the various elements of value which have been considered by the courts in condemnation proceedings, and by rate-making bodies in proceedings for the fixing of rates for public utilities, and by the courts in considering th'e constitutionality of the rates thus fixed. The direct and cross examination of the witnesses fully developed the opinion of such witnesses with relation to such elements of value and the reasons upon which their conclusions as to market value were based. In addition to the witnesses who testified with reference to' the market value of the entire plant to be condemned, witnesses were introduced by both parties who testified on their direct examination with reference to some of the elements of value which it had been consistently and repeatedly held are ap-. propriate evidence to be received in ascertaining the fair value of property for rate-making purposes. As the principal questions presented by appellants relate to the sufficiency of evidence upon these elements and to the rulings of the court with relation to the introduction or rejection of such evidence, it should be stated at the outset that the problem presented in a condemnation proceeding is essentially different from that presented to a rate-making body or to the courts in the consideration of whether or not rates thus established are confiscatory. In condemnation proceedings, “just compensation” is the market value of the property taken. In rate-making eases, the standard of market value of the investment cannot be applied in determining just compensation, for the simple reason that market value is dependent upon earning capacity and fluctuates with that capacity; consequently, in determining what earning capacity is just, the market value of the investment which is a result of earning capacity cannot be utilized as a basis for the determination of what constitutes the reasonable or just earning capacity of the plant. In view of this situation, it has been determined that the Constitution of the United States prohibiting the taking of property without compensation requires that the owners of a public utility shall not be deprived of a fair return upon the fair value of the property devoted to the public use. In arriving at the fair value of a public utility investment, the courts have gradually evolved rules with relation to- the evidence pertinent to that issue. These rules which, indicate the nature and character of the evidence to be considered by the rate-making body and by the courts in determining the fair value of a public utility property are largely prohibitive in character; that is to say, the courts have determined that rates cannot be fixed upon a basis which ignores certain elements of value which go to make up a fair value of the property. This process of evolving an appropriate method of valuation for rate-making purposes is still in a state of development, and involves very great practical difficulties, some of which are not completely solved, partly for the reason that under the Constitution final authoritative decision rests in the courts which have no power to make rates and no machinery for the ascertainment of all of the complex elements entering into the determination of what constitutes a fair valuation of the property. The province of the court in such a matter is confined to the duty of preserving to the owner of property the fundamental right guaranteed to him by the Constitution that his property shall not be taken from him without just compensation, and for that purpose to prohibit the nibbling away of his property by the fixing of rates which gradually but effectively destroy the value thereof. In the case at bar, however, we have the familiar problem of ascertaining market value where expert witnesses found by the court to be competent to express an opinion on that subject have expressed that opinion in appropriate fashion, and opposing counsel have had an opportunity for full and complete cross-examination. In such a ease the function o-f the judge has been largely performed when he has passed upon the competence of witnesses, and then the jury must determine under appropriate instructions the weight and credibility of such evidence and render a verdict in accordance with their judgment as to the various items or claims advanced by the witnesses in support of their conclusion. This verdict upon the facts under our system is a final and conclusive determination of market value, for the same Constitution which prohibits the taking of property without just compensation guarantees the right to a trial by jury, and this right applies to the ascertainment of market value and pertains as much to the plaintiff as to the defendant in a condemnation case. The obligation of the plaintiff in a condemnation proceeding is to pay to the owner the market value of the property to be taken as fixed by a jury in a condemnation proceeding, and the right of the defendant to just compensation in such a proceeding is to the amount so fixed by the jury. This verdict, if supported by the evidence, is binding upon the courts, both in direct and collateral attack, subject to the power of the trial judge to grant a timely and appropriate motion for a new trial. No court can know, nor is there any method of ascertaining, the basis upon which a jury arrives at its verdict fixing a lump sum for prop erty condemned, if it is within the limits of value fixed by the evidence. With these preliminary observations we turn to the assignments and specifications of error relied upon by the appellants in the case at bar, and we will further develop the facts as we proceed with a discussion of the legal questions involved. We will state the propositions involved on the appeal in the language of the appellants. The first point thus presented is as follows: “Appellants’ Puyallup properties are in active and successful operation under franchises which have approximately twenty-five years to run. They have a value as an established and profitable enterprise over and above their reproduction and development cost. Appellants were denied the right to prove this value and were thereby denied that ‘due process’ of law guaranteed by the fourteenth amendment to the constitution of the United States, and the ‘just compensation’ guaranteed by Article I of section 16 of the constitution of the state of Washington.” In support of this proposition, the appellants discuss at some length the alleged difference between “franchise value” and “going concern value,” but we will not follow this general discussion, for the reason that, as we have pointed out, such a discussion must be related to a definite assignment of error, and will therefore approach the matter from that standpoint. Mr. C. Ray Moore, an expert witness introduced by the appellants, having testified upon direct examination as to the value of •various items of personal property to be condemned and the cost of reproduction of the property and the value thereof less depreciation, having testified that he allowed $256 in his estimate for securing franchises in the city of Puyallup, and having indicated his method of arriving at the going concern value, and having fixed the severance damage of $24,115 by reason of the cost of construction thereby rendered necessary, testified as follows : “In addition to these costs, which are a part of the severance damage, I have an item that represents a loss to' the company in revenue should the Puyallup be severed from the Puget Sound system. “Q. Have you taken into consideration the earnings of the company? A. Yes, sir. * # ii> “Q. You have another item of severance damage here? A. Yes, sir. I have an item that represents a loss to the company in revenue should the Puyallup system be severed from the Puget Sound system. “Q. Has that any relation to the value of this franchise? A. Yes, sir. “Q. Does the loss of the franchise — A. It is based upon the value of the franchise. “Q. Now, what did you determine with reference to that? “Mr. Murray. [Appellee’s counsel]— Just a minute. Is he trying to arrive at the value of the franchise of the,distribution we are taking? “Mr. Oakley. [Appellants’ counsel] Yes; there are two franchises being taken. “Mr. Murray. I thought you already testified to those. “Mr. Oakley. No, he did not, he testified as to original cost that it would cost that to get it, the mechanics of getting the franchise was $250. He testified to no value other than the cost of getting it in cost to the company of mechanical cost of obtaining that franchise. That is all your witnesses have testified to. * * * “Mr. Oakley. Yes, and this is being taken from them, now I am simply basing the value of that right as reflected in the earnings. I know from reading his report that is the way he has treated that — earnings of the company. It has been uniformly held that that is proper to consider. “Mr. Murray. Is it as severance damage, or value of the property? I object to any proof of loss of profits as an element of damage. I don’t quite understand — ■ “The Court. Well, as I understand the question and the statement, it is sought to ■prove a value of the franchise and property, and to argue that that is such a value in some way from the profits of the business.” This was followed by a general discussion between the court and counsel as to the right to receive the value of a franchise in a condemnation proceeding. The court sustained the objection to the question, “Now, what did you determine with reference to that?” but stated that the matter would be left open for argument. Counsel proposed the question in a new form, as follows: “Q. Now, Mr. Moore, did you include any value for franchise in your going concern value [$30,873.45]? A. No, sir. “Q. As I recall your testimony, you included in your estimate simply the cost of acquiring? A. That is correct. “Q.. You did not— “The Court. As a part of the overhead? A. —not as a part of the overhead, as a part of the cost of the structural value as the actual amount of money expended in acquiring the franchise. “You considered the earnings as testified to by Mr. Robbins here? A. Yes, sir. “Have you considered the value of this franchise and the loss to the company by reason of the taking of the franchise in this suit, having in mind the earnings of the company both past and present and prospective — probable earnings? “Mr. Murray. * * * I think probably we can get at it a little better on cross examination, for the reason that we will concede that the value of franchise as property is a proper element, but as ordinarily, it is merged in going concerns. Now, whether his statement is going to show that he arrived at it by capitalizing earnings, or how, I don’t know, but I don’t see any other way to dispose of it than to wait and see. Therefore, as far as I am concerned he can answer. A. You want the amount first, Mr. Oakley? “Q. Yes. A. $74,192.00. I arrived at that value for the franchise by determining the loss that the company would incur annually if the company were deprived of the right to do business in Puyallup. That is based upon the structural plant depreciated, plus going concern value, which amount is $290,212. The company has been and is today earning eight per cent on the money invested in the property in Puyallup. Six per cent of that eight per cent which is being earned is to cover the cost of money that is invested in the property at Puyallup. Two per cent of the eight per cent is the net profit to the company as the result of its operations in Puyallup. The two per cent of the $290,212 is $5,804. This represents the amount that the company would lose annually if the Puyallup property is severed. This amount capitalized for the life of the franchise would be $145,100. The present worth of that amount of money is $74,192, which is the amount that I am contending is a fair and reasonable amount for severance damage Number 2. “Q. Well, the value of the franchise? A. The value of the franchise. “Mr. Murray. At this time, if your Hon- or please, wé move to strike the answer of the witness given as to his reasons for arriving at the valuer and the value as fixed upon the franchise for the reason that it is based upon as an improper basis. What he has done here is to take and try to capitalize certain difference in earnings, and the courts nowhere recognize the propriety of any such thing as that. He has taken the difference.between what he says is the ordinary cost on the market to borrow money and what they are earning out here, but that element is included in going concern; it must necessarily be.”. Appellee moved to strike out this answer for the reason that it is based upon an improper basis. “He has taken the difference between what he says is the ordinary cost on the market to borrow money and what they are earning out here, but that element is included in going concern; it must necessarily be.” After discussion, this motion was granted. It should be said at this juncture that the witness had testified to a going concern value of $30,873.45. He arrived at this value “ * * * by applying the average percentage to the structural value that is used in determining the going concern values of public utilities. I ascertained that, from going concern values that I had placed on properties that had been sold and purchased and from going concern values that had been allowed in similar companies by federal and state courts and state commissions, and by state regulatory bodies. I have attempted to use the average percentage. “Going concern value on the electric property in Puyallup is a difference in the plant' of the Puget Sound Power and Light Company as a successful public utility and a similar plant, assembled but not yet functioning. It includes the costs which are not included in the structural value, the cost of getting customers and all items entering into making the company a going concern and a profit-making institution. The going concern value very materially depends upon the success of the business and the property. With respect to the Puyallup property I found that the company is entitled to 15 per cent of its structural value as a going concern, which on the cost of reproduction new amounts to $41,476.56. On the present depreciated structural value it amounts to $30,-873.45. This makes the total under the cost ■of reproduction basis of structural value, plus going concern value, the sum of $317,-'986.99 and the present depreciated value the sum of $236,696.27. “With reference to the allowance for going concern value, I considered allowances of which I have knowledge in the following eases: Pacific Gas and Electric Company of San Francisco was allowed 12 per cent of the physical value of its physical property. The Houston Electric Company of Houston was allowed 21 per cent by the Federal Court. The Mountain States Telephone & Telegraph Company of Utah was allowed ten per cent by the State Commission of Utah. The Hoke National Gas Company of West Virginia was allowed ten per cent by the State Commission of West Virginia. The Pioneer Telephone & Telegraph Company of Oklahoma was allowed twenty per cent by the Federal Court. The Interstate Light & Power Company of Wisconsin was allowed ten per cent by the State Commission of Wisconsin. The Public Service Company of New Jersey was allowed 14 per cent by the State Commission of New Jersey. The Indiana General Service Company of Indiana was allowed 13 per cent by the Indiana State Commission. The Appalachian Power Company was allowed 13 per cent by the State Commission of West Virginia. The Public Service Company of New Jersey was allowed 30 per cent by the State Commission of New Jersey. The Baker Utility of Montana was allowed ten per cent by the State Commission of Montana.” It is apparent from the foregoing that the witness had already testified to a valuation based upon the earning capacity of the plant in his going concern value, although, having adopted an arbitrary rule of percentages in arriving at that going concern value, the witness may not have been aware of that fact, as he had based his percentage allowance upon a large number of eases which he cited wherein the. going concern value allowed by public utility commissions and courts have varied from 12 to 30 per cent. The testimony of the witness that $74,192, which represented the present worth of return of 2 per cent, upon the value of the company’s property for 25 years, represented the severance damage, or the franchise value, was correctly stricken out. It tended to confuse the issue before the jury by submitting to it as distinct elements of damage a going concern value which necessarily involved earning capacity and the same earning capacity in the form of franchise value or severance damage. The ruling of the trial court was correct. Appellants followed their exception by an offer to prove with the witness “that the fair and reasonable market value of that franchise is $74,292.00.” This was objected to, and the objection was sustained. But this offer must be read in light of the testimony of the witness to the effect that he ascertained the value of the franchise or the severance value by the method indicated, which was not a proper way to estimate such value. Later, appellants, through their witness W. H. McGrath, vice president and manager of the Puget Sound Light & Power Company, renewed their effort to present to the jury the item of $74,292. The witness was asked the following questions: “Q. Mr. McGrath, in your opinion what loss will the whole system of the company suffer, — now you need not answer this until counsel has objected, — I will withdraw that part of the question and repeat again. Mr. McGrath, in your opinion, what loss will the entire system of the company suffer by reason of having severed from it this plant from its market for 1,000 kilowatts? * * * A. The answer to that question is, I take it, in dollars? “Q. No, what would be the effect upon the whole system of the company including its general system? A. Well, the effect in the first place is that we would lose the profits from that business. We are in business to make money. We have a market in Puyal-lup for the next 25 years by contract with the city. The removal of that market from our system removes the profits for the next 25 years.” Appellee moved to strike out this answer on the ground-that loss of profits was not an element of the matter, and the motion was granted and exception taken, The court, in its ruling, made the following statement: “The Court. It is the duty of the court to keep the issues submitted to the jury as simple as possible. Now, the witness has said that they have got a contract with the city for 25 years and that by this proceeding you are going to lose that profit. Well, the court does not care to enter into a thesis with the jury as to that contract which the company may have with the city being at all times subject to a condemnation proceeding. The matter for the jury to consider is the physical value of the property taken and the use that is being made of that property by the company in its business. The profits they are making is something bearing on that value, but it is not necessary to wholly protect you in the full and fair value of your property that the witness stress this loss. What the city is taking is your property and the value of that property is to be determined among other things by the use you are making of it, and the profitable use you are making of it.” In commenting upon this ruling, appellants in their brief say: “The evidence which was stricken shows that the value added to the Puyallup properties, because they constituted an established and profitable enterprise, was $74,192 and that appellants were prevented from making any proof of this value either under the head of ‘franchise value* or under the head of'‘severance damage.’ There can be no doubt but that this was a reasonable additional value to place on the Puyallup properties which were to be taken.” In considering the propriety of the ruling of the court, it should be stated that the witness had testified to the market value of the property taken, and had arrived at that value by multiplying the gross earnings by four or the net earnings by eleven. The value arrived at by the first method was $444,-000 and by the second $450,000. He testified : “Having obtained all these reports and studies by experts as to the values of the property, the cost of reproduction, less depreciation, the statement of what the property is doing in the way of gross earnings, what its operating expenses are, what the net earnings are and what the future prospects are, there are several yardsticks available to measure your market value. In case of electric light and power properties the yardstick usually used is not less than four times the gross earnings and not less than ten or eleven times the net earnings. By net earnings I mean the difference between the gross earnings and the operating expenses and taxes. By operating expenses I mean the cost of power.” In view of the fact that the witness testified fully as to the capitalization of the profits derived from Puyallup system, it was not proper for him to again capitalize the same earning capacity under the name of “severance damages.” It should be borne in mind that the question involved is the market value of the property taken, including as it necessarily would the franchise under which the company is operating. The witnesses on both sides were fully advised by their experience and by the rulings of the court that they were permitted to take into consideration the earning capacity of appellants’ property in determining its market value; that this earning capacity was something in addition to the value of the tangible property sought to be taken. It must have been clear to the witnesses who testified as to the market value of the property sought to be condemned that the taking over' of this property by the city would necessarily appropriate the franchise, and that the right of the appellant to operate as a going concern was entirely dependent upon the franchise, and they evidently considered that fact in fixing the market value. We may assume that there is a difference between going concern value, as it is arrived at in rate-making eases, and the market value of a franchise to be fixed in the condemnation proceedings. A condemnation ease necessarily involves ascertainment of the market value of the right of the public utility to continue to operate as such and to derive such future income therefrom as is foreshadowed by the fact that it is operating the property as a going concern, and has a large number of present, and a larger number of prospective, customers, by whatever. name we may call that right. A critical analysis of the distinction between the franchise value and going concern value as presented in the two types of cases is entirely unnecessary in the case at bar. The witnesses were allowed to express' their opinions fully and completely as to the market value of the property and also as to the separate items of value usually considered in a rate-making case for the purpose of determining a fair value of the property, and we are only concerned in this case by the foregoing rulings of the court excepted to by the appellants, which rulings,' as we have held, were a proper exercise of the discretion of the trial judge in the conduct of the trial by the elimination of misleading testimony which might distract the attention of the jury from the fundamental questions involved; namely, the ascertainment of the market value of the property taken plus the depreciation of the market value of the property retained. It would perhaps have been better for the parties, after qualifying their witnesses, to have merely asked the basic questions, “What is the market value of the property taken?” and “What is the depreciation of the market value of the property retained by reason of its severance from the property taken?” giving the witnesses full opportunity to explain^ the basis of their valuation. In such ease no doubt the same questions would come up on direct and cross examination, for, if it appeared either on direct or cross examination that the witness had pursued a wholly unwarranted course in arriving at his estimate of value, it would be necessary to make correction thereof either by striking out his estimate of the market value or by instructing the jury to disregard that portion of the value due to the erroneous method. Appellants’ next point is as follows: “Appellee’s attorneys had no right to eliminate from the proceedings e.ertain items of property which were included in and covered by the language of the city ordinance authorizing condemnation.” The language of the ordinance was very general in its terms, and the description therein does not specifically indicate the items to he taken. That portion of the ordinance was as follows: “The existing works, plants and facilities of the Puget Sound Power So Light Company, a corporation, in the city of Puyallup, for the distribution of electricity within such city, together with the right to sever the same from the remaining works, plants and facilities of said Puget Sound Power So° Light Company. Such plants and facilities to be so acquired, consist of a substation, transformers, switches, motors, meters, machinery and equipment, distribution lines, poles, wires, lamps and all appurtenances and accessories, and all contracts, franchises, rights and privileges necessary and convenient for the distribution of such electricity or relating thereto.” The itemizing of the property was accomplished by a detailed statement furnished by the appellee to the appellants. The specific ruling assigned as error is the sustaining by the trial court of an objection by the appellee to proof of the value of certain transformers temporarily installed at the fair grounds within the city for use dur- ing the fair. It is stated in the objection that these transformers were used only once a year, being moved in and out during the week of the fair (in September) under arrangements between the fair association and the company, “and we filed a disclaimer of any intention to take them. They are used probably a week or two or ten days by the fair’association, and by the company the rest of the year elsewhere.” Objection to this evidence was sustained, whereupon appellants offered to show that the transformers were necessary for the transaction of the business of the company during the fair week, and objection to this offer was also sustained. The trial court was justified under the evidence in concluding that these transformers did not come within the terms of the ordinance which applied to existing works and facilities in the city. The ordinance directing the institution of condemnation proceedings was passed July 3, 1929. The election authorizing the condemnation and approving a bond issue therefor was held March 12,1929. Later, appellants offered to prove the value of certain materials stored in the substation at Puyallup for replacement purposes which were there prior to December 31, 1929, necessary for the operation and maintenance of the system worth $7,009.88. The argument advanced in the brief in support of the contention of the appellants is that neither court nor counsel had a right to interpret “the ordinance as excluding the foregoing item.” It was of course the duty of the trial court to interpret the ordinance, and its ruling to the effect that this property did not come within the description contained in the ordinance was proper. Certainly appellants cannot complain that their property was not taken from them by condemnation proceedings where they were awarded any damages resulting to the property not taken because of its severance from that which was taken. The third point presented by appellants is as follows: “Though the city ordinance under which the condemnation proceedings were instituted specifically provided to the contrary, the appellee city was allowed to introduce evidence that it might continue to take power from Puget Sound Power & Light Company.” The provision of the ordinance referred to is that for the construction of a transmission line to connect the distributing system to be condemned with the generating plants operated by the city of Tacoma. The question arose during the trial in this way: Mr. Towne, a witness called on behalf of the city, had given his opinion as to the severance damage suffered by the appellants as $14,-952. Included in this total he specified several items, among others, the removal of an electric sign, $575; the cost of adjusting street lights at Sumner, $1,350; cost of making severance changes in the system north of Puyallup, $3,018; cost of salvaging the severed thirteen K-V line from north of Puyal-lup to the Puyallup' city limits, $650; to make necessary changes to take care of the district south of the city of Puyallup, $3,-740; cost of adjustment necessary to take care of the territory east of the city of Puyal-lup, $1,610; cost of work necessary to dismantle transformers in the existing substation, together with incidental damages and costs, $3,242; cost of salvaging the tap in the main transmission line to the substation, $567. On cross-examination he gave the items in a somewhat different form. The cost of one transformer at North Puyallup, $2,018;.moving electric sign, installing outdoor street light regulators in Sumner, $1,-350; transformers, etc., on the south and west, $3,750; on the east, $1,510; salvage value of KL-V line from the city limits to North Puyallup, $650; removal and warehousing of materials on hand at the warehouse, $650; dismantling, packing, and moving large transformers and oil switch, $3,-242; salvaging of the 55 K-V tap for the main transmission line, $567. He had also stated in estimating the damages to the company by reason of the taking away of the Puyallup property and considering the amount of damage by reason of the severance or by reason of the fact that the company would lose so much business: “It is my opinion that the amount of the damage is negligible, for the reason that in my opinion the city of Puyallup would go to the Puget Sound Power & Light Company for power in the event it takes over the distribution system. The Puget Sound Company is the logical company for supplying the city of Puyallup. In the event that the city of Puyallup did not buy from the Puget Sound Company then it is my opinion that the damages stiff would be negligible ‘by reason of its proportion to the rest of the system.’ In the event it is shown that the company is going to absolutely lose this business and be prohibited from the sale of wholesale power to the city of” Puyallup, thereby suffering a loss, and providing this loss is a loss that is guaranteed and perpetuated, it is my opinion that the company should be paid for it, but otherwise that it should not be paid. “In the allowance made by me for the severance damage I did not allow any amount of money whatever based upon the earnings of the company.” On redirect examination appellee asked this witness: “Now, Mr. Towne, getting back to this severance again, as to whether or not the earnings of the company, — the remaining property after the severance, I will ask you whether or not you considered the probability of the company keeping on selling to Puyallup in arriving at whether or not there would be any severance loss to the company by reason of loss of business?” This was objected to on the ground it was irrelevant,' incompetent, and immaterial and not proper in this ease. The objection was overruled. Inasmuch as this evidence had already been adduced without objection, appellants cannot take advantage of this ruling. The ruling of the court on this subject was again invoked by motion to strike out testimony already adduced upon this subject. The motion, however, did not specifically indicate the questions and answers to be stricken out; moreover, as we have already pointed out, some of this evidence was introduced without objection. The motion was in part as follows: “If the Court please, before we proceed with our case, I would like to move the court to strike out all evidence given by the petitioner’s witnesses to all of which we objected, to the effect that the city of Puyallup might buy its power from the Puget Sound Power & Light Company at the substation in Puyallup, for the reason that under the ordinance just introduced in evidence which set forth «the plan, part of that plan is that the transmission line be built into the city of Tacoma, they are to.buy power either from the city of Tacoma, or from some other person, and the plan eannot be deviated from.” The motion was properly denied, for the reason that it was too general. Moreover, the probability or possibility that the city might buy its power from the Puget Sound Power & Light Company was a proper element to consider in determining loss suffered by the severance, if in the opinion of the witness it affected the market value of the remaining property. The court, in allowing an exception to this ruling, stated as follows: “The Court! Exception allowed. The jury will understand that you are not to speculate. The only bearing that the court can see that evidence has, although you are instructed you are the sole and exclusive judges o£ the weight of the evidence, is that the city would be, if it acquires this property, a potential customer of this company.' It amounts to showing you that the city is not tied up in any way to keep it from being a customer; that it would be in the. market to purchase power such as the company furnishes. I see no other bearing it has in the case. “Mr. Todd. May we have our exception to the remark of the Court. “The Court. Considering your exception too general, it is disallowed.” Thereupon counsel specified the same grounds of exception stated in the motion to strike out the testimony. The court, in its final instructions to the jury upon this subject, stated: “You are not to take into consideration in arriving at your verdict, as a reason to lessen the owner’s compensation for property taken, the fact that the city of Puyallup, after it acquires the electrical distribution system of the defendant Puyallup, may purchase from the defendant electrical current for such distribution system.” No exception was taken to this instruction, and it was more favorable to the appellants than they were entitled to. As we have stated, in severance damages an element to be considered is the depreciation of the market value of the balance of the plant by reason of the severance of the unit taken. A purchaser of such a plant would undoubtedly take into consideration the. fact that there would be an opportunity to sell power to the city of Puyallup. This would be true regardless of the legal obstacles which might be.interposed at the outset to the purchase of such power under then existing conditions. In other words, the question is, What would the purchaser and seller consider in fixing the market price of the property? The rule invoked by appellants in support of their position is thus

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

PERKINS, Secretary of Labor, et al. v. ELG. ELG v. PERKINS, Secretary of Labor, et al. Nos. 7096, 7097. United States Court of Appeals for the District of Columbia. Argued June 14, 1938. Decided Aug. 1, 1938. David A. Pine, U. S. Atty., and John II. Mitchell, Asst. U. S. Atty., both of Washington, D. C., for Frances Perkins and another. Henry F. Butler, of Washington, D. C., for Marie E. Elg. Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices. Writ of certiorari granted 59 S.Ct. 245, 83 L.Ed. —. GRONER, C. J. The main question in this case is whether appellee, a natural born citizen of the United States, has lost her citizenship involuntarily and by operation of law, by reason of her removal from the United States by her parents in her infancy and her residence in a foreign country until she was 21 years of age. A secondary question is whether the suit is properly brought under the Declaratory Judgment Act, 28 U.S.C.A. 400. The facts are these: Marie Elizabeth Elg was born October 2, 1907, in the city and state of New York, and at the time of bringing this suit was and now is a resident of Mt. Kisco, Westchester County, New York. Some years prior to her birth her parents emigrated from Sweden to the United States, and in September 1906 her father was naturalized in ’New York. In 1911, when four years of age, Miss Elg was taken by her mother to Sweden, where she resided until she was 21 years of age. Her father remained in the United States until 1922, at which time he too returned to Sweden, where he has lived ever since. Shortly before she attained, her majority Miss Elg inquired of an American consul in Sweden what steps she should take when she reached legal age to return to the United States as an American citizen. As the result of this inquiry the Secretary of State of the United States issued instructions to the consul at Goteborg in Sweden to furnish Miss Elg an American citizen’s passport, and in 1929 when 21 years of age, Miss Elg returned to the United States and was admitted at the port of New York as a natural born citizen of the .United States. In April 1934, — because investigation of her father’s status by American consular officials developed the fact that he had no intention of returning to the United States and was willing to surrender his naturalization certificate,- — Miss Elg was examined by the immigration service in New York; and in April 1935 she was notified that she was an alien illegally in the United States, and was ordered to leave the country and threatened with deportation if she did not. As the result of her protest, the Secretary of Labor and the Commissioner of Immigration, as a matter of grace, suspended action temporarily, but all the while insisting upon the validity of the holding that she was an alien illegally in the United States and all the while threatening to have her deported. In July 1936 Miss Elg applied to the Secretary of State for an American passport, which the Secretary refused on the ground that, because of the residence of her father in Sweden since 1922 without the intention of returning to the United States, the Department considered that he had renounced his American citizenship and reacquired Swedish nationality, and that because of her residence with her father she too had lost the one and acquired the other. In January 1937 Miss Elg brought her suit in the United States District Court in the District of Columbia against the Secretary of Labor, the Commissioner of Immigration, and the Secretary of State. She prayed for a judgment declaring that she is. a natural born citizen of the United States and entitled to all the rights and privileges of a citizen; and she prayed further that the Secretary of Labor and the Commissioner of Immigration be enjoined from carrying out the threat to deport her from the United States or from interfering with her residence therein; that the Secretary of State be enjoined from officially holding her not to be a citizen of the United States and refusing to issue her a passport; and for general relief. A show cause order was issued, and the case was heard on the return thereto and on a motion to dismiss the bill. The court held that plaintiff had not lost her American citizenship by her residence abroad during her minority; that when she elected to return and did return to the United States immediately after her emancipation she was entitled to be treated as a citizen of the United States; and that the deportation proceedings begun against her and suspended only by her suit, presented an actual controversy entitling her to a declaratory judgment. The court dismissed the bill as to the Secretary of State on the ground that' the issuance of a passport involved discretion, but refused to dismiss as to the Secretary of Labor and the Commissioner of Immigration. All parties elected to stand on their pleadings, and the present cross appeals were duly effected. We think the decision of the lower court is in all respects correct. The law of England,t as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance , which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States. And this was undoubtedly the view of Mr. Justice Curtis in his dissenting opinion in the Dred Scott Case, 19 How. 393, 581, 15 L.Ed. 691, in which he said: “ * ■* * we find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend on the place of birth.” This doctrine of citizenship by reason of place of birth is spoken of by the writers on the subject as the jus soli or common law doctrine. The Roman rule is different and is in effect in many of the continental European countries. This is called the jus sanguinis and depends upon the nationality of the parents and not upon the place of birth. Professor Bluntschild, in speaking of the latter doctrine, said: “The bond of the family lies at the foundation of national and political life, and attaches the child to the people among whom he is born. The opinion that fixes upon the locality of nativity, instead of the personal tie of the family, as the cause of nationality, abases the person to be a dependence of the soil.” But this was not the common law. United States v. Wong Kim Ark, 169 U. S. 649, 18 S.Ct. 456, 42 L.Ed. 890. When the Constitution was adopted the people of the United States were the citizens of the several States for whom and for whose posterity the government was established. Each of them was a citizen of the United States at the adoption of the Constitution, and all free persons thereafter born within one of the several States became by birth citizens of the State and of the United States. The first attempt by Congress to define citizenship was in 1866 in the passage of the Civil Rights Act (Rev.St. § 1992, 8 U.S.C.A. § 1). The act provided that: “All persons born in the United States and not subject to any foreign power are declared to be citizens of the United States.” And this in turn was followed in 1868 by the adoption of the Fourteenth Amendment, U.S.C.A.Const. Amend. 14, declaring: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As a result of the adoption of the amendment, whatever differences existed between statesmen and jurists on the general subject prior to the War Between the States was put to rest, and it may now be stated as an established rule that every person born within the United States (except in the case of children of ambassadors, etc.), whether born of parents who are themselves citizens of the United States or of foreign parents, is a citizen of the United States. In the Wong Kim Ark Case, supra, the whole question of citizenship is traced from its source and the subject is so elaborately considered as to make unnecessary any further reference to this phase of the question. But see generally on the subject: McCreery v. Somerville, 9 Wheat. 354, 6 L.Ed. 109; In re Look Tin Sing, C.C., 21 F. 905; Ex parte Chin King, C.C., 35 F. 354; Gee Fook Sing v. U. S., 9 Cir., 49 F. 146; Lynch v. Clarke, 1 Sandf. Ch., N.Y., 583; Opinion of Attorney General Black in 1859, 9 Op. Attys. Gen. 373; Opinion of Attorney General Bates in 1862, 10 Op. Attys. Gen. 394. And this brings us to the second branch of the question, that is, whether appellee through the act of her parents has lost the rights of citizenship which she acquired at her birth. The question is not new. In circumstances such as these Attorneys General have for nearly a hundred years, and almost unanimously, answered it in the negative; and their views are supported by the decisions of many courts. In this case it is agreed that appellee has done no act of her own showing an intention to surrender or forfeit her rights as a citizen of the United States. To the contrary, it is recognized that immediately upon her emancipation, she asserted them, and after the recognition of them by the United States returned to this country. If, in spite of this, she has lost those rights, it must be because she became by operation of Swedish law a naturalized citizen "of Sweden upon her father’s repatriation there, and in consequence ceased, also by operation of law, to be a natural born American citizen. We think there is a conclusive answer to this proposition. The Swedish law, it is agreed by both sides, is found in paragraph 3 of Article VIII of the Citizenship Act of Sweden of 1894. The parties, however, differ in the translation of the paragraph. Appellee insists that, rendered in English, it reads as follows: “If Swedish citizenship is recovered by a * * * father Swedish citizenship shall also accrue to his * * * children who are under age, unless * * * they are not resident in Sweden at the time when the * * * father recovers Swedish citizenship or have not lost along with him citizenship in the foreign country.” • As rendered by appellants, it reads: «If * * * Swedish right of citizenship has been regained by the * * * father, such right also accrues to his * * * children under age, unless * * * they neither • are domiciled in this country when citizenship is regained by the * * * father, nor have lost their citizenship in the foreign country together with him.” The parties likewise differ as to the interpretation of the paragraph. Appellee insists it means that two conditions must concur to confer Swedish citizenship on the infant — the infant must be with his father and the law of the country of his birth must have expatriated him upon his father’s resumption of Swedish citizenship. Appellants insist that the conditions in the paragraph must be read in the alternative and, so read, must be taken to confer Swedish citizenship on the infant either in the event of his being in Sweden or in the event of his losing his citizenship upon his father’s repatriation. Relying upon this latter reading of the paragraph, appellants say that by virtue of the express terms of Section 2 of the Act of March 2, 1907 (8 U.S.C.A. § 17), — which provides that any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, — appellee was at no time after two years from the date of her father’s return to Sweden a citizen of the United States. But in the view we take of the main question, it is not necessary to determine the meaning or effect of the Swedish statute. For, even granting the interpretation insisted on by appellants, we think the argument based upon it goes too far. If we concede that under Swedish law appellee became a naturalized Swedish citizen during her minority residence in that country, we should have only what is well known in international law as double citizenship, and whatever effect that status might have on appellee’s right to call on the United States for protection while she remained abroad, it. would not affect her right of election when she reached her majority to claim and resume her American citizenship and return to the United States. Or, stated differently, even if we assume that a naturalized American citizen by abandoning his residence in this country and by returning to the country of his birth animo manendi, ceases to be a citizen of the United States and that his minor child born in the United States partakes during his legal infancy of his father’s restored nationality, such child nevertheless, upon becoming sui juris, has the right to elect to retain his American citizenship, — and such election, which is best evidenced by a return to the United States, restores his original status as a citizen of the United States. This was the view expressed by Secretary Bayard in a letter to Mr. Liebermann on July 9, 1886, and grows out of the well recognized doctrine that expatriation is a matter of intent on the part of the person concerned, which intent must be shown by some express act or some other act from which it can be gathered. The record in this case is wholly lacking in any showing of intent, actual or presumptive, on the part of appellee at any time to abandon American citizen-ship and, lacking such showing, what was said by Attorney General Piefrepont in Steinkauler’s Case, 15 Op. Attys. Gen. 15, is true here; that: “There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, arid, in due time, if the people elect, he can become President of the United States * * Like opinions were expressed by Secretary Olney on May 29, 1896, in a letter to Mr. Materne, by Secretary Frelinghuysen in 1882, and by Mr. Blaine in 1892. These and many other instances of the application of the rule to a state of facts like those in the present case -are to be found in Moore’s Digest of International Law, Vol. 3, p. 532, et seq. And the rule is summarized in the statement of Mr. Uhl, acting Secretary of State, in a letter to Mr. Rudolph of May 22, 1895, as follows: “ * * * no principle is better settled than that birth in the United States, irrespective of the nationality of the parents, confers American citizenship. The right of election of nationality, which it is generally conceded a person born under such circumstances has, cannot be exercised until he attains his majority. The father cannot by any act of his alter the status conferred upon the son by his birth in this country.” This was also the conclusion of Judge Hough in United States v. Husband, 2 Cir., 6 F.2d 957, where, quoting from Secretary Bayard, he said (page 958) : “It has been repeatedly held by us that, when a person born in the United States arrives at 21 in a foreign country, the mode of expressing his election to be a citizen of the United States is by promptly returning to the United States. * * * That is what is called double allegiance, and by. the law of nations the nationality of such persons is to be determined by their own election* of nationality at their maturity, which election is evidenced by placing themselves in the country they elect.” See, also, to the same effect, United States v. Day, Com’r of Immigration, D.C., 28 F.2d 44; State ex rel. Phelps v. Jackson, 79 Vt. 504, 65 A. 657, 8 L.R.A., N.S., 1245. This result necessarily follows from the fundamental rule that a natural born citizen of the United States retains his citizenship until he changes it himself in due form and voluntarily becomes a citizen of some other country. Morse, Citizenship by Birth, etc., p. 239'. The change can neither be worked by the father nor by the sovereignty into which the child involuntarily is taken, for under the English and American doctrine the child himself acquires rights and owes fealty besides that which attaches to the father. Wong Kim Ark Case, page 691, 18 S.Ct. 456. In the instant case neither the Act of March 2, 1907, 34 Stat. 1228, nor any other statute has taken away or diminished those rights, and it is doubtful, indeed, if there is any power in Congress, — in view of the provisions of the Fourteenth Amendment, U.S.C.A. Const. Amend. 14 — to take them away. On this subject the Supreme Court in the Wong Kim Ark Case said, page 703, 18 S.Ct. page 477: “Congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act or omission of congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the constitution itself, without any aid of legislation. The fourteenth amendment [U.S.C.A.Const.Amend. 14], while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.” We are, therefore, of opinion that when in 1929, upon a full disclosure of all the facts set out herein, — as the hill declares was the case,- — the State Department of the United States issued to appellee a passport to return to the United States as an American citizen, it acted properly and in accordance with the law. In our opinion appellee is a natural horn American citizen whose right to all the privileges of citizenship, — whether or not, as far as concerns diplomatic protection, it be considered as suspended during her minority and sojourn in a foreign country, — was in full effect when on her majority she applied for and received her passport. We are, therefore, of opinion that she was properly admitted into this country and, as the lower court held, is entitled now to be free of molestation. We have carefully examined the opinion of the Attorney General in Tobiassen’s Case, 36 Op. Attys. Gen. 535, and the case of United States v. Reid, 9 Cir., 73 F.2d 153, certiorari denied on the sole ground that the petition was not filed in time 299 U.S. 544, 57 S.Ct. 44, 81 L.Ed. 400, upon which appellants rely; and we think that the arguments they make out are not supported by the statute on which they are mainly built, and likewise that the conclusions reached are opposed to the established .rules and principles which, it seems to us, not only should apply but since the adoption of the Constitution have been applied. And this brings us to the final question in the case, namely, whether the Declaratory Judgment Act, 28 U.S.C.A. § 400, is applicable. The trial court, as we have seen, concluded that the case was properly brought within the declaratory judgment statute. We are of the same opinion. There can be no doubt that the lower court had jurisdiction of the several defendants and that it has jurisdiction of the subject matter of the suit. There is no other proceeding at law by which appellee could obtain an adjudication that she is a United States citizen, — certainly none by which she can obtain that adjudication without being subject to arrest and confinement until her case may be heard on a petition of habeas corpus. Appellants, Secretary of Labor and Commissioner of Immigration, are required by law to deport aliens illegally in this country and in accordance with law they ■ have threatened her with arrest and deportation. The threat remains unretracted and is in abeyance only by agreement of counsel pending the decision of the case. She has not yet been' arrested, and therefore she cannot now test by habeas corpus- the question raised here; but she is entitled to a declaration of her political status, for her rights as a citizen are valuable rights, —certainly no less valuable than property rights, — and an actual and vital controversy exists between her and the government in relation to them. The right to be immune from threats of deportation and from the declarations of public officials that she is an alien and subject to arrest is, we think, a right within the declaratory judgment act entitling Miss' Elg to p’rosecute this suit. If she is deported as an alien, her return at all to the United States will be possible only under very difficult conditions. And if the Secretary and Commissioner decide for purposes of their own to postpone her deportation indefinitely, she would, as a publicly declared alien, be subject to entirely different conditions of residence in the United States and to curtailment of the rights and privileges which she might enjoy as a citizen of the United States, such as traveling about freely, demanding and receiving protection from her government, voting, serving as a juror, and holding public office. We think the facts we have outlined present a case fairly within the intent and purpose of the act whereby appellee may test the validity of the threat and have, as she is entitled to have, a declaratory judgment of her American citizenship. For we certainly have a case “admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged,” and in these circumstances the Supreme Court has said the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. The decree of the District Court declaring appellee to be a natural born citizen of the United States is in all respects affirmed. Affirmed. Article 2, Rev. de droit Int. & leg. Compaie. See also Dr. Arnolds’ (of Rugby) Mis. writings, art. Christian policies, p. 465; 1 Gibbon 45 — 2 Ibid. 158. Both England, and the United States (Act of 25 Ed. Ill Stat. 2, passed in 1350, and Act of April 14, 1802, R.S. § 1993, 8 U.S.C.A. § 6) under some circumstances recognized citizenship on the part of children of subjects or citizens born out of the jurisdiction of the respective countries. Mr. Calhoun in his published work upon the Constitution denied that there was any citizenship of the United States in any other sense than as being connected with the government through the States. Much confusion has resulted from the failure to distinguish between cases involving the question whether a citizen is entitled to protection abroad and cases involving per se the question of citizenship. Moore’s Digest of International Law, p. 542. Van Dyne, Citizenship of the U. S. (1904), p. 275. The opinion assumes, directly in the teeth of established principles of international law, that the involuntary acquisition of alien citizenship by an American ehild divests and destroys his native citizenship. In this respect it overlooks the principle of double citizenship (Moore, Vol. 3, p. 518) and the right of election at majority (Moore, p. 541) and see also Boyd v. Thayer, 143 U.S. 135, 178, 12 S.Ct. 375, 36 L.Ed. 103, and it is not supported by any language to be found in the Act of 1907, for that statute by its plain terms contemplates the personal abandonment of allegiance effected by personal acts. It is universally recognized that an infant cannot change his domicile, Lamar v. Micou, 112 U.S. 452, 470, 5 S.Ct. 221, 28 L.Ed. 751, for in such a matter he has no will of his own; and, as the basis of expatriation is deliberate intention, that quality is wholly lacking where the act is the result of constraint. See the opinion of Judge Fee in this same case in the District Court, In re Reid, 6 F.Supp. 800. 8 U.S.C.A. § 17 (presumption statute).

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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, Plaintiff-Appellant, v. CARLIN COMMUNICATIONS, INC. Carl Ruderman, Ira Kirschenbaum, Kevin Goodman, and Samantha Fox, Defendants-Appellees. Nos. 85-2645, 85-2652 to 85-2655. United States Court of Appeals, Tenth Circuit. April 9, 1987. Richard N.W. Lambert, Asst. U.S. Atty., and Brent D. Ward, U.S. Atty., Salt Lake City, Utah, with him on brief, for plaintiff-appellant U.S. Harold R. Tyler, Jr., Patterson, Belknap, Webb & Tyler, New York City, for defendants-appellees. With him on brief were Michael B. Mukasey, Patterson, Belknap, Webb & Tyler, New York City, Stephen R. McCaughey and Christine F. Soltis of Hatch & McCaughey, Salt Lake City, Utah, Frank H. Wohl of Lankier, Siffert & Wohl, New York City, John H. Weston of Brown, Weston & Sarno, Beverly Hills, Cal., and Jerome Mooney of Mooney & Smith, Salt Lake City, Utah, for defendants-appellees. Before McKAY and BALDOCK, Circuit Judges, and BROWN, Senior District Judge. Honorable Wesley E. Brown, United States District Senior Judge for the District of Kansas, sitting by designation. WESLEY E. BROWN, Senior District Judge. A twenty-three count indictment filed in Salt Lake City on April 25, 1985, charged Carlin Communications, two of its officers, and one employee, and an actress, Samantha Fox, with various federal obscenity crimes in connection with the operation of a “dial it” telephone service whereby persons could call a New York City telephone number and listen to a sexually suggestive, pre-recorded message. Upon motion by all defendants under Rule 12(b), the Indictment was dismissed in its entirety as to all defendants for the reason that it failed to charge any offense. The government appeals. The only issue in this appeal is whether or not provision of the “dial-it” service, which offered callers who chose to dial, the opportunity to hear the pre-recorded telephone messages of a sexually explicit nature, violated the provisions of 18 U.S.C. Secs. 1462, and 1465, and/or 47 U.S.C. Sec. 223(a). Counts I through VIII of the Indictment in this case charged that on various dates in 1983, the defendants did knowingly transport in interstate commerce, from New York City, New York, to various points in Utah, obscene matter for the purpose of sale and distribution, to-wit: a prerecorded audio message portraying explicit sexual conduct, all in violation of 18 U.S.C. Secs. 1465, and 2. Counts IX through XVI of the Indictment charged that on dates in 1983, the defendants knowingly used a common carrier for carriage in interstate commerce from New York City to points in Utah matters of obscene character, that is, the pre-recorded messages, in violation of 18 U.S.C. Sec. 1462. Counts XVII through XXIII of the Indictment charged that on specific dates in 1983, the defendants did knowingly cause the making of an obscene comment, request, suggestion and proposal by means of interstate telephonic communications between New York and Utah locations — by means of the pre-recorded message. The parties have stipulated that all of the acts charged in the Indictment were charged to have been effected by telephone through the use of a dial-it service in which callers place a telephone call to a New York number, which call is answered by an electronic device that plays a pre-recorded message. Section 1465 of Title 18 U.S.C.A., the statute involved in Counts I-VIII of the Indictment, provides in pertinent part that: “Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” * * * # * * “When any person is convicted of a violation of this Act, the court in its judgment of conviction may, in addition to the penalty prescribed, order the confiscation and disposal of such items described herein which were found in the possession or under the immediate control of such person at the time of his arrest.” Section 1462 of Title 18, the subject matter of Counts IX through XVI of the Indictment, prohibits the “importation or transportation of obscene matters”: “Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce— (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or (c) any drug, medicine, article, or thing designed, adapted, or intended for pro- ducing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; * * * * * * Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter. Section 223 of Title 47 U.S.C.A. the statute involved in Counts XVII-XXIII, pertains to “obscene or harassing” telephone calls in interstate communications. Prior to December 8, 1983, and at the time of the offenses charged in this action, that section, in its entirety, provided that: “Whoever— (1) in the District of Columbia or in interstate or foreign communication by means of telephone— (A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent; (B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number; (C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or (D) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or (2) knowingly permits any telephone under his control to-be used for any purpose prohibited by this section, shall be fined not more than $500 or imprisoned not more than six months, or both. Carlin’s telephone service has been the subject of previous litigation in the District of New York and before various administrative agencies, and a full review of the subject matter may be found in Carlin Communications, Inc. v. F.C.C., 749 F.2d 113 (2nd Cir.1984). Briefly stated, it appears that the dial-it service received 800,-000 calls per day in May, 1983, and a total of 180,000,000 calls during the year ending February, 1984. The calls are made to numbers in the Metropolitan New York area, with 80% being local calls and the remaining being long distance calls. The service began in February, 1983 and the telephone numbers are advertised in adult-type magazines. Under leased line tariffs, the calls are made at ordinary rates, and Carlin makes two cents per local or long distance call, and the telephone companies receive the remaining revenues. Peter F. Cohalan, the County Executive for Suffolk County, New York, began a drive to regulate the dial-it service by filing suit against Carlin and the FCC in New York state court. This suit was dismissed for lack of jurisdiction on removal to the federal court in March, 1983. Cohalan v. High Soc’y Magazine, Inc., No. 3490/1983 (N.Y.Sup.Ct.), (on removal, No. CV 83-603, E.D.N.Y.) Cohalan and Congressman Thomas J. Bliley (R-Va.) then sought to have the FCC terminate Carlin’s dial-it service by administrative action, but the FCC concluded that federal law did not restrict the service. Congressman Bliley then proposed an amendment to Section 223 of the Communications Act, 47 U.S.C. Sec. 223, which was ultimately passed and signed by the President on December 8,1983, Pub.L. 98-214, Sec. 8(a), (b), 97 Stat. 1469, 1470. This amendment, which now appears as Section 223 (b) provides that: “(b)(1) Whoever knowingly— (A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene or indecent communication for commercial purposes to any person under eighteen years of age or to any other person without that person’s consent, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person’s control to be used for any activity prohibited by subpara-graph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both.” “(2) It is a defense to a prosecution under this subsection that the defendant restricted access to the prohibited communication to persons eighteen years of age or older in accordance with procedures which the Commission shall prescribe by regulation.” ****** “(5) The Attorney General may bring suit in the appropriate district court of the United States to enjoin any act or practice which violates paragraph 1(A) or 1(B)____” (Emphasis supplied). After Section 223(b) was passed, the FCC initiated proceeding in order to promulgate the regulations mentioned by Congress in paragraph (b)(2), and ultimately issued a regulation providing that it would be a defense to prosecution under Section 223(b) if the defendant took steps to restrict access to dial-it services by operating only between the hours of 9:00 p.m. and 8:00 a.m. Eastern Time, or required payment by credit card before transmission of a message. The operating hour provision was designed to apply to Carlin’s dial-it services, and the credit card provision would apply only to regulate live telephone services. Carlin then petitioned for review of the FCC rule-making order, 49 Fed. Reg. 24,-996, 25,003 (1984) which was to be codified at 47 C.F.R. Sec. 64.201, contending that the regulation would violate the First Amendment’s requirement that restrictions on protected speech be in the least restrictive form, and that the regulation was either impermissibly overbroad or vague, and arbitrary and capricious. Upon this petition, the Second Circuit, without declaring the regulation impermissible, found that the record was not sufficiently developed to sustain it. The court specifically noted that while “(t)he interest in protecting minors from salacious matter is no doubt quite compelling,” the Commission had “failed adequately to demonstrate that the regulatory scheme is well tailored to its ends or that those ends could not be met by less drastic means.” Carlin Communications, Inc., v. F.C.C., supra, 749 F.2d 113, at 121. After further rule-making hearings in which the Commission considered the feasibility of blocking or scrambling devices, or the use of identity codes, it was concluded that the most effective means of restricting access by minors was to send messages only to those adults who first obtained an access or identification code from the service provider, or to require payment by credit card before access could be obtained. Users of the service would be required to fill out a written application, containing proof of age before obtaining an access code number. Upon the petition of Carlin, these second regulations were set aside upon a finding that, with respect to services operating under the communciation system of the New York Telephone Company, there was no evidence that access codes were technically feasible, and that there was insufficient evidence to establish that the access code system was the least restrictive means of limiting minors’ access to dial-it services. Carlin Communications v. F.C.C., 787 F.2d 846 (2nd Cir.1986). In so doing, the Court particularly considered the intent of Congress in enacting Section 223(b): “Under section 223(b)(2), compliance with these regulations establishes a defense to criminal prosecution for violating section 223 (b((l); making ‘any obscene or indecent communication for commercial purposes to any person under eighteen years of age ...’ This prohibition was enacted by a Congress well aware that not only were ‘very complex issues’ relating to ‘technical feasibility’ involved, 105 Cong.Rec. E5966-67 (daily ed. Dec. 14, 1983) (remarks of Rep. Kas-tenmeier), but that under the Constitution the adult population may not be reduced to ‘hearing only what is fit for a child’____ The regulations are to ‘permit adult access while limiting children’s access,’ having in mind that ‘(i)f ... no such regulations are feasible, then less restrictive measure rather than broader restrictions will have to suffice to avoid any constitutional infirmity.’ 105 Cong. Rec. at E5966.” (787 F.2d at 847). After reviewing the record, which includes an extensive Appendix containing documents relating to administrative hearings before the F.C.C. as well as House and Senate Reports on the statutes in question, we are persuaded that defendants’ conduct did not fall within the proscriptions of 18 U.S.C. Sec. 1462,18 U.S.C. Sec. 1465, or 47 U.S.C. Sec. 223(a), and we therefore affirm the dismissal of the Indictment. Section 1462 of Title 18, the statute involved in Counts IX through XVI of the Indictment, prohibits the transportation in interstate commerce of obscene articles by means of an express company or other common carrier. While the term “common carrier” can include telephone companies in certain settings, when used in Section 1462, it should be understood in its ordinary sense as applying to means of transportation which carry persons or tangible property for hire. The meaning of “common carrier” in Section 1462 is also clear by the context in which the term appears, that is, in connection with phrase “express company or other common carrier.” It is also clear that Section 1462 prohibits the shipment of tangible articles and not the intangible communication of telephone messages. Subsection (b) relates only to the transportation of sound-producing devices, and not the transmission of sound itself. Like Section 1462, Section 1465, the statute charged in Counts I through VIII, is restricted in its terms to the transportation of tangible objects. Read as a whole, it is simply inapplicable to telephone messages — it refers to copies of any publication — or to “any article” of proscribed nature. In addition, the legislative history of Sections 1462, and 1465, as supplied by counsel, makes clear the fact that Congress had no understanding or intent that these sections would reach telephone calls. The final counts of the Indictment charged defendants with violating 47 U.S.C. Sec. 223(a)(1)(A). Again, the legislative history, and judicial interpretations of that statute establish that it was designed to prohibit the practice of making abusive telephone calls: “The purpose of this bill is to make it a Federal offense to make certain obscene or harassing telephone calls in interstate or foreign commerce.” S.Rep. No. 1334, 89th Cong.2d Sess. 1 (1966) (emphasis added).” “The bill makes the use of a telephone ... for the placing of obscene, abusive or harassing telephone calls (most of which are anonymous) across State boundary lines or within the District of Columbia a Federal crime____” House Report No. 1109, 90th Cong.2d Sess. 2 (1968) [U.S.Code Cong. & Admin.News 1968, p. 1915] (emphasis added).” The courts have uniformly construed the purpose of Section 223(a) as prohibiting the making of abusive or harassing calls. United States v. Darsey, 342 F.Supp. 311 (E.D.Pa.1972); and see, United States v. Lampley, 573 F.2d 783, 787 (3rd Cir.1978). In addition, the F.C.C. itself specifically concluded that dial-it services were not prohibited by Section 223(a): “... the legislative history (of that section) overwhelmingly supports the conclusion that section (223(a)) was directed only against persons who deliberately place obscene ... telephone calls.” Memorandum Opinion and Order, F.C.C. 84-76, at p. 9, March 7, 1984. (Emphasis supplied). ****** “(T)he purpose of the statute is clear: section 223 (current Sec. 223(a)) was intended to apply to obscene or indecent phone calls that are deliberately made to innocent, unconsenting individuals. The absence of any reference in the legislative history to obscene phone calls between consenting parties leads us to conclude that such messages simply were not within the ambit of section 223’s prohibition.” Ibid, at p. 12. The F.C.C.’s determination is entitled to substantial deference. It is well established that when an administrative agency construes a statute it is charged with enforcing, that construction is entitled to great weight. Jensen v. United States, 662 F.2d 664, 666 (10th Cir.1981). The Supreme Court recently had occasion to rule that when a statute does not “plainly and unmistakably” cover a defendant’s conduct, that statute will not be expanded by court interpretation. In refusing to expand the provisions of 18 U.S.C. Sec. 2314 to cover interstate transportation of “bootleg records,” the Court in Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 3131-3132, 87 L.Ed.2d 152 (1985) pointed out that federal crimes “ ‘are solely creatures of statute’ ”, and that “(a)ccordingly, when assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the conduct the enactment forbids. Due respect for the prerogatives of Congress in defining federal crimes prompts restraint in this area, where we typically find a ‘narrow interpretation’ appropriate.” In our particular situation, we have clear evidence of Congressional intent because legislative history indicates that in enacting Section 223(b) Congress itself recognized that the former Section 223, now Section 223(a) and other criminal statutes, did not cover the dial-it services provided by defendants. H.R. Report No. 356, 98th Cong. 1st Sess., reprinted in 1983 U.S. Code Cong. & Ad. News, 2219, 2235. In determining to regulate dial-it services by enacting Section 223(b), Congress recognized the constitutional interests involved, and provided a statutory defense to prosecution in the case of providers who limited access by minors pursuant to regulations to be provided by the Commission. Congressman Kastenmeier, one of the sponsors of the amendment to Section 223, noted that “we have carefully constructed section 223, as amended, to avoid reducing the adult population to hearing only what is fit for a child.” 129 Cong. Rec. E5966 (Dec. 14, 1983). Under the statutes relied upon by the government there is no such balanced approach. Sections 1462 and 1465 of Title 18 U.S.C., and Section 223(a) of Title 47 were never intended to, and do not, apply to defendants’ conduct. We find that the district court’s order dismissing the Indictment was based upon a correct construction of the relevant statutes and that order is AFFIRMED. . Samantha Fox, an actress, was named as defendant only in Counts IV, XVI, XVII, and XVIII. Each count in the Indictment also charged aiding and abetting in violation of 18 U.S.C. Sec. 2. In each instance it was charged that the message was distributed to a minor child, age 16 years or younger. . Section 1463 and Section 1464 of Title 18, which prohibit the mailing of indecent matter on wrappers or envelopes, and the utterance of any "obscene, indecent, or profane language by means of radio communication," are not involved in this litigation. . The statute was amended December 8, 1983, by Pub.L. 98-214, and the above quoted provisions were designated as subsection (a) of Sec. 223. In paragraph (2), the word "facility" was inserted after the word "telephone”, and the penalty provision was raised from $500 to $50,-000. This amendment also added subsection (b) to Sec. 223, discussed infra. . By April, 1985, dial-a-porn calls appeared to have leveled off at 6 to 7 million per month. Based on tariffs as of May, 1985, which yielded 2 cents per call to the provider of the service, providers of such services earned gross revenues of $130,000 per month, while the New York Telephone Company received 9.4 cents per call, thus grossing revenues exceeding a half million dollars per month. Carlin Communications v. F.C.C., 787 F.2d 846 (2nd Cir.1986). . All of the offenses charged in the Indictment here allegedly occurred prior to enactment of Sec. 223(b).

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

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

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Adelaide D. J. BURGWIN, Respondent. No. 13036. United States Court of Appeals Third Circuit. Argued Feb. 18, 1960. Decided March 31, 1960. Meyer Rothwacks, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Carolyn R. Just, Attys., Dept. of Justice, Washington, D. C., on the brief), for petitioner. Carl E. Glock, Jr., Pittsburgh, Pa. (Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for respondent. Before BIGGS, Chief Judge, and STALEY and HASTIE, Circuit Judges. HASTIE, Circuit Judge. The taxpayer, Adelaide Burgwin, is the life beneficiary of a testamentary trust of personalty, including corporate stock. In 1952 she filed a suit in a Pennsylvania state court to obtain the allocation and distribution to her of a part of certain stock which had been acquired by the trust in exchange for other stock as a result of a tax-free corporate reorganization. In 1954, upon the unsuccessful termination of that suit, taxpayer paid attorneys’ fees and other expenses of the litigation. As a cash-basis tax-' payer, she claimed this expense item as a deduction in her 1954 income tax return. The Commissioner disallowed the claimed deduction. However, the Tax Court, in an opinion reported at 31 T.C. 981, ruled that a portion of these legal expenses, stipulated to have been paid for legal services rendered and valued on a time basis in 1952 and 1953, had been expended for the production of income which, if received in 1952 or 1953, would have been taxable to the trust beneficiary under Section 162(b) of the Internal Revenue Code of 1939. On that basis the Tax Court allowed a deduction, under Section 212(1) of the Internal Revenue Code of 1954, of so much of the 1954 expenditure as represented payment for work done in 1952 and 1953 in an effort to compel the above described distribution of part of the trust estate to the life beneficiary. The Tax Court also considered but rejected an alternative contention that the claimed deduction was allowable under Section 212(2) of the 1954 Code as an expense “for the management, conservation or maintenance of property held for the production of income”. 26 U.S.C., 1958 ed., § 212(2). Both theories of deductibility have been argued to us on this petition to review the decision of the Tax Court. We consider only one of the objections which the government makes to the allowance of a deduction under Section 212(1). It is that, assuming the 1939 Code rather than the 1954 Code governs the question, the allocation of stock to the beneficiary as sought in 1952 and 1953 would not have constituted taxable income to the beneficiary. It is clear and undisputed that a deductible expense under Section 212(1) must be incurred in the effort to obtain gain which, if collected, will constitute income taxable to the spender. 26 C.F.R. § 1.-212-1 (1960). Here the trust assets in controversy were the product of a tax-free exchange and it is not contended that the trust itself realized income in the transaction. Therefore, even if the state court had awarded part of the proceeds of that transaction to the life beneficiary, that distribution would not have constituted taxable income to her. We so decided very recently with full analysis of the problem in Dovey v. United States, 3 Cir., 1958, 254 F.2d 538. We there considered and expressed our disagreement with the decisions and the reasoning upon which the Tax Court has relied in the present case. We have not changed our view of the matter. Accordingly, we conclude that the taxpayer’s 1952 and 1953 legal expenses were not incurred in an effort to obtain taxable income and, therefore, are not deductible under Section 212(1). We think the alternative argument of the taxpayer is also unsound. Here we agree with the Tax Court that the expenditure was not “conservatory in nature” but rather was an effort to establish entitlement to something supplementary to the life beneficiary’s unquestioned right to the income of the trust. The life beneficiary was seeking not to vindicate her fully recognized basic interest in the trust estate which entitled her to current income, but rather to establish an additional equitable claim to a partial distribution of the corpus, thought to be valid under a rule of Pennsylvania law. Cf. Garrett v. Crenshaw, 4 Cir., 1952, 196 F.2d 185; Marion A. Burt Beck, 1950, 15 T.C. 642, 670. The decision of the Tax Court will be reversed. . Section 162(b) provides that “the amount of the income of the estate or trust for its taxable year which is to be distributed currently. * * * shall be included in computing the net income of the * * * beneficiaries * * 26 U.S.C.A. § 162(b). . “§ 212. Expenses for Production of Income “In the ease of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— “(1) for the production or collection of income” . It is conceded that, if the 1954 Code gov-eras, the allocation which taxpayer sought would not have been taxable income to her. 26 U.S.C. 1958 ed., §§ 652, 662.

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

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

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

Sarah M. BRYAN et al. v. PITTSBURGH PLATE GLASS COMPANY, (PPG INDUSTRIES, INC.) et al. Objecting Plaintiffs, Marie Abate et al., Appellants. No. 73-1697. United States Court of Appeals, Third Circuit. Argued Jan. 15, 1974. Decided April 4, 1974. Joseph M. Maurizi, Joseph W. Conway, Balzarini, Walsh, Conway & Mauri-zi, Pittsburgh, Pa., for plaintiffs-appel-lees. Scott F. Zimmerman, Walter P. DeForest, John M. Mazur, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for PPG Industries, Inc.; Nicholas R. Criss, Jr., Pittsburgh, Pa., of counsel. dayman & Jaffy, Stewart R. Jaffy, Columbus, Ohio, for appellees, United Glass & Ceramic Workers of North America, AFL-CIO, etc., et al. Jane M. Picker, Rita Page Reuss, Charles E. Guerrier, Lisabeth A. Moody, Cleveland, Ohio, Martin Lubow, Pittsburgh, Pa., for objecting plaintiffs-appellants; Howard Moore, Jr., Elizabeth R. Rindskopf, John R. Myer, Moore, Alexander & Rindskopf, Atlanta, Ga., of counsel. William A. Carey, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel (Acting), Beatrice Rosenberg, Charles L. Reischel, Josephine A. Treva-than, Washington, D. C., Equal Employment Opportunity Commission, amicus curiae. Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges. OPINION OF THE COURT SEITZ, Chief Judge. Appeal is taken here, pursuant to 28 U.S.C. § 1291 (1970), from an order of the district court for the Western District of Pennsylvania approving settlement of a class suit and dismissing the complaint with prejudice. The suit was filed on behalf of women presently or formerly employed at the Pittsburgh Plate Glass Company’s Creighton plant. Plaintiffs allege that defendants Pittsburgh Plate Glass Company (“PPG”) and the United Glass and Ceramic Workers (“the Union”) engaged in sex discrimination violating Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (1970). The factual setting for this suit is not complex. Both before and after the effective date of the Civil Rights Act of 1964, PPG classified jobs at its Creighton plant as available to men only or to women only; no job was open to both men and women. Because men and women were not eligible for the same jobs, separate seniority lists were kept. In the 1940’s and 1950’s, PPG laid off a great number of its Creighton employees. These employees, however, continued to accrue seniority while on layoff since the bargaining agreement between PPG and the Union contained no termination provision. When PPG’s Creighton operation experienced a brief upsurge in business, in 1966 and 1967, men were recalled from lay-off and new employees were hired to fill male-only positions. No women were recalled, although had the seniority lists been merged, many women would have been senior to most of the recalled male employees. Complaints filed with the Equal Employment Opportunity Commission (EEOC) resulted in a conciliation agreement pursuant to which PPG merged seniority lists and opened certain jobs to both men and women. Other jobs remained open to only one sex. In 1969, PPG and the Union negotiated an agreement covering Creighton employees by which employment rights of employees laid off for more than five years were terminated. This agreement immediately terminated the rights of 452 women, but no men. Sex discrimination charges again were filed with EEOC. EEOC made no final determination, but issued a “right-to-sue” letter to the complainants. Three women who had filed charges with the EEOC brought suit against PPG and the Union. The district court found maintenance of a class action proper under Rule 23(b)(2) and (b)(3), and the class was defined as the 452 women initially terminated by the cut-off provision negotiated by defendants. Notice was given to the class, and a number of class members opted out of this litigation. After plaintiffs had completed presentation of their case and defendants had presented a substantial part of theirs, agreement on a settlement was reached. Class members were notified of the proposed settlement’s terms and were given the oportunity to voice, and brief, objections. Subsequently, the district court approved the settlement, and 82 objecting plaintiffs appealed. I. The district court has considerable discretion in determining whether a settlement is fair and reasonble, and its determination will be reversed only for abuse of discretion. Appellants, objecting plaintiffs, contend that the district judge abused his discretion in approving the settlement here. The first argument advanced' to support this contention is that the plaintiffs’ case was relatively strong as compared to defendants’ and, therefore, that it was clearly not reasonable to grant plaintiffs a very small percentage of claimed back pay. Consideration of the merits of the case is one step in determining the likely rewards the class would secure, if any, from prosecuting the litigation to a conclusion. United Founders Life Insurance Co. v. Consumers National Life Insurance Co., 447 F.2d 647, 655-656; (7th Cir. 1972); cf. Protective Committee v. Anderson, 390 U.S. 414, 424-425, 88 S.Ct. 1157, 20 L.Ed.2d 1 (1968). The court, of course, need only evaluate the probable outcome of the litigation and is not required to weigh and decide each contention; further, the probable result at trial must be balanced against the probable costs, in both time and money, of continued litigation. Id. With these caveats in mind, we turn to a consideration of the plaintiffs’ and defendants’ cases. Plaintiffs would seem to have made out a prima facie case of violation of Title VII’s prohibition on sex discrimination. See 42 U.S.C. § 2000e-2(a) & (c) (1970); cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). They have shown a past discriminatory policy and an action having immediate discriminatory impact on employment rights. Because plaintiffs probably would be found to have established a prima facie case of sex discrimination, defendants would bear the burden of justifying their discriminatory conduct. Muniz v. Beto, 434 F.2d 697, 700 (5th Cir. 1970). Defendants assert that negotiation of the seniority cut-off provision was not discriminatory. They point out that the provision, although initially terminating rights only of women employees, thereafter terminated the employment rights of numerous male employees. Indeed, continued adherence to this provision is likely to terminate the rights of more men than women. Defendants insist that the termination provision was instituted to promote PPG’s “business purpose” of securing a work force of balanced age. Coupled with a questionable discriminatory effect, this business purpose might well lead the district court to conclude that the negotiation of the seniority cut-off did not constitute discrimination on the basis of sex and, hence, was not an unlawful employment practice. Cf. Robinson v. Lorillard Corp., 444 F.2d 791, 796-797 (4th Cir. 1971), cert, denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972). The appellants, however, contend that the defendants’ action becomes discriminatory when viewed in light of PPG’s established system of job-classification by sex. Assuming that the legal theory underlying this contention is correct, we note that PPG claims that its job classifications were proper, and to support its claim, PPG has made allegations that appear to satisfy some of the disparate tests for ascertaining a bona fide occupational qualification. See Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 235 (5th Cir. 1969); Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev., 1109, 1177-81 (1971). As an additional defense, the defendants assert that plaintiffs’ suit is barred by failure to file charges with the EEOC within ninety days of the alleged unlawful practice, here negotiation and adoption of the seniority cut-off provision. Timely filing with the EEOC has been held a jurisdictional prerequisite to maintenance of a Title VII suit, e. g., Mickel v. South Carolina State Employment Service, 377 F.2d 239, 242 (4th Cir. 1967), and plaintiffs appear not to have met that prerequisite. Two final points concerning the probable outcome of trial here are made by defendants. First, while appellants complain that plaintiffs are receiving a small percent of their back pay claim, plaintiffs have failed to indicate how they would substantiate their claim. Second, defendants correctly note that award of back pay is discretionary, and it is not clear that failure to award such relief here, were plaintiffs successful, would constitute an abuse of discretion. See Kober v. Westinghouse Electric Corp., 480 F.2d 240, 247-250 (3d Cir. 1973). In light of their defenses, we believe there is a strong likelihood that PPG and the Union would not have been held liable to plaintiffs for back pay. We, therefore, reject appellants’ contention that, given the likely trial result, the district court abused its discretion in approving the settlement for a low proportion of plaintiffs’ asserted loss. ii. Appellants contend, however, that the district court abused its discretion in approving as fair and reasonable the particular settlement proposed here when more than twenty percent of the class plaintiffs objected. While the proportion of the class opposed to a settlement is one factor to be considered in assessing its fairness, see C. Wright & A. Miller, Federal Practice and Procedure Civil § 1797 and cases cited n. 42 (1972), a settlement is not unfair or unreasonable simply because a large number of class members oppose it. The drafters of Rule 23 chose as a means of protecting the class the requirement that the district court approve the settlement. They did not require rejection of a settlement on objection of a given part of the class. Rather than asserting that the number of objectors alone makes approval of the settlement improper, appellants argue that the number of objectors coupled with the nature of the right class members seek to vindicate make approval an abuse of discretion. The right to be free from discrimination is a personal right. See Robinson v. Lorillard Corp., supra, 444 F.2d at 799. Appellants argue that litigants should not be forced to abandon personal, as opposed to joint, rights without a judicial decision on the merits. The present Rule 23, however, makes no distinction for settlement purposes between class suits formerly called “true” class actions, where the class shares a joint right or liability, and class suits formerly denominated “hybrid” or “spurious,” where rights or liabilities are several. Fed.R. Civ.P. 23(e), 23.1, 23.2; see J. Moore, 3B Moore’s Federal Practice j[ 23.-80[1] & [2] (2d ed. 1974). Thus, if it is improper to approve a settlement compelling appellants to abandon their claims against defendants, this impropriety must spring from the nature not of personal rights in general but of the specific rights asserted by the class here. Appellants, as well as the EEOC speaking as amicus curiae, note that actions prosecuted by the Attorney General under Title VII cannot bind the discriminatee as res judicata or collateral estoppel. Williamson v. Bethlehem Steel Corp., 468 F.2d 1201, 1203-1204 (2d Cir. 1972). Since they argue, class representatives in a Title VII action function as “private attorneys general,” such representatives should not be more able to bind unconsenting plaintiffs than the Attorney General. This analogy fails on two grounds. First, the class representatives do not bind dissenting class members; the district court, not the class representatives, must determine that the settlement is fair and reasonable. Second, class suits serve different ends than do public suits. The Attorney General’s prosecution of a suit is governed by desire to achieve broad public goals and the need to harmonize public policies that may be in conflict; practical considerations such as where limited public resources can be concentrated most effectively, may dictate conduct of a suit inimical to the immediate interests of the discriminatee, who presumably seeks full satisfaction of his individual claim regardless of the effect on other cases. Unlike suit by the Attorney General or even by a “private attorney general,” who sues to protect public rights, the class action seeks to vindicate the rights of specific individuals, the class members ; and unlike the public action, for a class action to be maintained the class representatives must be members of the class, have claims typical of the class and adequately represent the interests of absent class ' members. Fed.R.Civ.P. 23(a). Further, this action having been classed as a 23(b)(3), as well as (b)(2), class suit, the class members were given the opportunity to opt out of the litigation. It does not seem anomalous to allow a court-approved class settlement, but not a suit by the Attorney General, to compromise a discriminatee’s Title VII claim. III. Although the district court did not abuse its discretion in finding the settlement fair and reasonable, appellants contend that the judgment of the district court must, nonetheless, be reversed. Appellants argue that the district court erred in defining the class broadly for all purposes when the class was clearly divisible into two sub-classes seeking different relief. The more senior class members are presumed by appellants to be interested in securing only back pay, while appellants desire reinstatement as well. Where some ascertainble characteristic shared by only some members of a class causes them to seek relief not desired by the remaining members, it may be improper to treat the class as unitary. A pertinent illustration is offered by the Seventh Circuit’s decision in Air Line Stewards & Stewardesses Association v. American Airlines, Inc., 490 F.2d 636 (7th Cir. 1973), although the court there focused on whether a proper class representative had been selected. The suit in Air Line. Stewards, which challenged American Airlines’ policy of discharging stewardesses who became pregnant, was originally filed on behalf of presently employed stewardesses who did or might desire to become pregnant and on behalf of stewardesses whose employment was terminated due to pregnancy. Obviously, those still employed by American could have an interest only in revocation of the airline’s discharge-for-pregnancy policy, while former employees could assert claims for back pay and reinstatement as well. No such distinction appears here. All class members are former PPG employees terminated at the same time for the same reason by the same action. No difference among the plaintiffs appeared until some objected to the settlement ; and we cannot assume that objection to the settlement sprang from differences generic to one identifiable group of plaintiffs. We, therefore, reject appellants’ contention that the district court erred in refusing to divide the class into sub-classes. Finally, appellants challenge the sufficiency of the district court’s statement of its reasons for approving the settlement and dismissing the suit. It is essential in cases such as this that the district court set forth the reasoning supporting its conclusion in sufficient detail to make meaningful review possible; use of “mere boilerplate” language will not suffice. Protective Committee v. Anderson, supra, 390 U.S. at 434, 88 S.Ct. 1157. Here the district court’s opinion meets that requirement; it catalogues the parties’ contentions, indicates the court’s view of their strengths, and notes additionally the substantial delays likely in ascertaining appropriate back pay, should plaintiffs win such relief. To require a fuller statement of the court’s views would turn a decision on approval of a proposed settlement into a determination on the merits in all but name. The judgment of the district court will be affirmed. . Defendants also contend that, even if discriminatory, the termination provision is not unlawful because it was required by PPG as .a “business necessity.” We do not find consideration of this defense necessary. . PPG claims that it can prove that all or substantially all women would be incapable of the repetitive lifting of heavy loads of glass (which, PPG asserts, is a fragile and dangerous matter) required for formerly male-only jobs and that no practicable test exists to isolate individual women, if any, who may be capable of performing such jobs. We note, however, that in 1973 PPG abandoned all job classification by sex. . The time limit for filing charges with the EEOC has been expanded, since the commencement of this suit, from ninety to one-hundred-eighty days from occurrence of the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e) (Supp. II 1972). We assume that this change does not alter the prerequisites for plaintiffs’ suit.

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

FAIRBANKS, MORSE & CO. v. CITY OF WAGONER, OKL., et al. CITY OF WAGONER, OKL., v. FAIRBANKS, MORSE & CO. Nos. 1243, 1244. Circuit Court o,f Appeals, Tenth Circuit Jan. 9, 1936. Henry G. Snyder, of Oklahoma City, Okl., and Vincent L. Boisaubin, of St. Louis, Mo. (Snyder, Owen & Lybrand, of Oklahoma City, Old., Jones, Hocker, Gladney & Jones, of St. Louis, Mo., and Poppenhusen, Johnston, Thompson & Cole, of Chicago, 111., on the brief), for Fairbanks, Morse & Co. D. H. Linebaugh, of Muskogee, Okl. (John H. Scriba, of Wagoner, Okl., on the brief), for City of Wagoner et al. Before LEWIS, PHILLIPS, and Mc-DERMOTT, Circuit Judges. PHILLIPS, Circuit Judge. On August 19, 1930, Fairbanks, Morse & Company, hereinafter called Fairbanks Morse, commenced a suit in equity against the City of Wagoner, hereinafter called the City, and its municipal officers, predicated on a contract dated September 27, 1927, entered into between Fairbanks Morse and the City. The contract read in part as follows: “General Engine Proposal “Date Sept. 22, 1927. “Fairbanks, Morse * * *, propose to furnish and deliver to The City * * *. “ * * *, the following machinery and materials: 1-360 HP Special Electric Type Y Style VA Diesel Engine direct connected to 300 KVA 3 phase, 60 cycle, 2400 volt Alternator and 10 KW Shunt Wound Exciter; and 1-180 HP Special Electric Type Y Style VA Diesel Engine direct connected to 150 KVA 3 phase, 60 cycle 2400 volt Alternator and 7% KW Shunt Wound exciter; together with foundations for the machinery, exhaust tunnels, stacks, circulating pumps, switchboards, cooling tower, water softener and other equipment necessary for a complete installed power plant but except building * >■: “ * * * the * * * City * *' * hereby contracts that it will pay to Fairbanks, Morse * * *, as purchase price of said Diesel engines and necessary equipment, apparatus and machinery, and for installation of same, the sum of Fifty Five Thousand One Hundred Ninety Five Dollars and Four Cents ($55,195.04), in equal monthly installments covering a period of fifty-two (52) consecutive months,. * * * it is hereby expressly contracted * * * that the payment of said sum * * *, shall be made only from the amount of money which the City * * * will save in the cost of the production of electricity, the saving for any month or part thereof to be the cost of production per kilowatt hour, after the plant has been improved and extended, in pursuance of this contract, as compared with the average cost of production per kilowatt hour to the City * * * for the fiscal year 1926-1927, that is, said saving for any month, or part thereof, to be the difference between the average cost of said production per kilowatt hour for the fiscal year 1926-1927, which has been estimated and determined and is hereby agreed by the parties hereto to be the sum of three and three-hundredths (3.03) cents per kilowatt hour, and the average cost of production of electricity per kilowatt hour for said month or period thereof, after said plant has been improved and extended in pursuance of this contract, and in estimating said cost of production of electricity for such month or period thereof, there shall be included the cost of all repairs to said plant, and salaries and wages of engineers, employes, mechanics, and laborers and other workers engaged in the operation and maintenance of said plant, and all expenses for fuel and oil, and all other expenses and expenditures reasonably necessary for the production of electricity and the operation, maintenance and upkeep of said plant and the machinery, equipment, appliances and appurtenances thereunto belonging and appertaining, and the buildings and structures housing and protecting same, and the cost of insurance on said plant, machinery, equipment, appliances and appurtenances, and said buildings and structures, and in making said estimate there shall not be included any cost of distribution of said electricity to the consumers thereof, nor the expense of collecting for charges made for electricity supplied by said City to consumers and customers; provided, further, that in estimating the production cost of electricity the operating expense must be based on an efficient and economical operation of plant in every particular; and which money so saved or so much thereof as shall be necessary, shall be applied monthly by the City * * * to the payment of said monthly installments, together with any interest that may become due thereon, and said monthly installments shall be paid only from said savings above described and from no other fund, money, property or assets of the City * * *, and no taxes, general or special, shall ever be levied upon the property of the City * * * to pay all or any part of the said sum * * * or any interest due thereon; and it is expressly hereby agreed and understood that this contract does not now nor shall it ever be held to create a debt of the City * * * for the payment of which taxes, general or special, might or could be levied upon the property of the inhabitants of the City * * *_» It provided that the monthly installments should be evidenced by fifty-two instruments or notes in the following form: “Wagoner, Oklahoma. “......, 19.. “...... months after date, for value received, the City * * * promises to pay Fairbanks, Morse * * *, or order at St. Louis, Missouri,...... with interest from maturity until paid at the rate of six per cent (6%) per annum. “This instrument is one of a series of fifty-two (52) instruments or notes of even date. This is not a general obligation of the City * * *, but a special obligation, payable only from the savings in cost of production of electricity by improved electric light and power plant sold to said City * * * by said Fairbanks, Morse * * *, over cost of production of electricity by present light and power plant of said City * * * for the fiscal year 1926-1927, as provided in a certain written contract between said City and said Company, to which reference is hereby made and which is hereby made a part hereof. “Default shall not be made in the payment of this note, nor in any of said series of fifty-two (52) instruments or notes, above mentioned, so long as said savings are applied to the payment thereof, as provided in said written contract, hereby referred to and made a part hereof, and all said savings shall immediately be applied to and paid on this note and said series of notes on their respective dates of maturity, and if insufficient to fully discharge and pay same, said savings shall be continued to be applied immediately to and paid thereon for a period of not to exceed 120 months from the date of this note and said other notes in said series of fifty-two (52) instruments, to-wit:......, 1927, and any sum or sums unpaid upon said installments when due shall draw interest at six per cent (6%) per annum from date same should have been paid until paid in full, and at the expiration of said 120 months, if said savings have been applied and paid as aforesaid, any amount or amounts remaining due and unpaid on this note or instrument, or any of said series of fifty-two (52) instruments or notes, shall be cancelled, and this instrument or note, and any and all of said series of fifty-two (52) instruments or notes, with any and all interest, shall be deemed and held paid and satisfied in full, * * *. “City of Wagoner, Oklahoma, “By.......... “Mayor of said City.” The primary question presented is whether the City undertook to create an indebtedness in violation of the provisions of the Oklahoma Constitution and the City Charter set out in subjoined note l. The facts established by the evidence and found by the trial court are these: In 1912, the City acquired a privately owned electric light plant and distributing system. From the date of its acquisition to September 27, 1927, the electric utility was operated by the City without resort to taxation and the income therefrom was sufficient to maintain the plant, pay all operating expenses and yield a profit to the City. On August 31, 1927, pursuant to an ordinance theretofore duly adopted, a special election was held by the City for the submission, to the qualified electors of the City, of the proposition that the City enter into a contract for the furnishing and installing of “Diesel engines and necessary equipment, apparatus, machinery and appurtenances * * *, for extension and improvement of the electric light and power plant of the City.” At such election 376 votes were cast in favor of, and 286 votes against such proposition. Thereafter, the City adopted specifications and advertised for bids for furnishing and installing the new power plant. On September 19, 1927, the bid of Fairbanks Morse was accepted subject to the submission of a satisfactory 'contract. The contract above referred to was submitted, and the City adopted an ordinance approving it and authorizing the mayor and city clerk to execute it in behalf of the City. It was duly executed on October 6, 1927. In making the bid and entering into the contract, Fairbanks Morse acted in good faith. Fairbanks Morse Company delivered and installed the new power plant, and the City Commissioners, by a unanimous vote, accepted same and directed the mayor and city clerk to execute and deliver the notes to Fairbanks Morse. They were so executed and delivered. The new power plant was duly and properly furnished and installed, and fully ■conformed to the contract specifications. On March 16, 1928, the City commenced the use of the new power plant to generate electric energy for its electric utility. Until May 7, 1928, the electric utility was in charge of an experienced and competent engineer who operated the new power plant properly, efficiently and economically. The electric utility was under the supervision of the City Water & Light Commissioner. On May 7, 1928, a new Water & Light Commissioner took office. He immediately discharged the engineer in charge of the electric utility, and placed it in charge of an inexperienced and incompetent engineer. The new commissioner was opposed to the purchase of the new power plant and favored the buying of electric energy from the Public Service Company of Oklahoma; and he placed the incompetent engineer in charge of the electric utility with the deliberate purpose of creating the impression upon the inhabitants of the City that the Diesel engines were inefficient, expensive to operate, and not capable of carrying the rated capacity load specified in the contract. The new engineer operated the new power plant until October 17, 1930, when the engines were disconnected and their use discontinued. After the new engineer took charge, the Diesel engines were negligently, unskillfully and improperly cared for and operated. A water softener was not used, scale collected in the cooling system, the engines were overheated, nine cylinder heads were cracked, water was permitted to escape into the cylinders and dilute the lubricating oil, and the pistons and cylinders were scored. On September 17, 1927, Zachary and Eby, residents and taxpayers of Wagoner, commenced a suit in the District Court of Wagoner County, Oklahoma, against the City, its mayor and commissioners to enjoin the execution of the contract on the ground it undertook to create an indebtedness contrary to the provisions of the Oklahoma Constitution and the City Charter set out in note 1. After the contract was executed by the City, Zachary and Eby filed a supplemental bill in which they sought to enjoin the City from carrying it out. The trial court sustained a demurrer to the supplemental petition, and entered a decree of dismissal. On appeal the Supreme Court reversed the decree and remanded the cause with instructions to overrule the demurrer. Zachary v. City of Wagoner, 146 Okl. 268, 292 P. 345. Fairbanks Morse was not a party to the suit in the state court. It did not directly or indirectly participate in the trial in the District Court or the hearing in the Supreme Court, or in anywise direct or control the litigation of the suit. It furnished the mayor $750 with which to employ counsel to represent the City on the appeal. The counsel employed in nowise represented Fairbanks Morse. The mandate from the Supreme Court in Zachary & Eby v. City of Wagoner, was received by the District Court of Wagoner County and spread of record October 10, 1930. On October 11, 1930, a decree was entered by the State Court permanently enjoining the City from carrying out the contract. On October 16, 1930, the city commissioners adopted an ordinance authorizing the mayor and city clerk, in behalf of the City, to enter into a contract with the Public Service Company for the purchase by the City from the Public Service Company of electric energy for a period of six months. The rates provided for in such contract with the Public Service Company were 3 cents per K.W.H. for lighting, small power and appliances, 2.05 cents pqr K.W.H. for industrial power, and 2 cents per K.W.H. for street lighting, municipal building lighting and municipal water pumping. The City also bore the line loss. The minimum rate under the contract was.40 cents, and the maximum rate 1.40 cents in excess of the average cost to the City of producing electricity during the period the new power plant was used by the City, even with the unskillful, careless and inefficient operation by the City. On June 25, 1931, Fairbanks Morse filed its application for the appointment of a receiver to take charge of, and operate the electric utility with the new power plant, and offered to place the engines in operating condition. On the same day the Court entered an order appointing T. C. Harrill, receiver, to take charge of and operate the electric utility. Fairbanks Morse expended $1750.-71 in reconditioning the engines and placed them in fair operating condition. The receiver was ordered to keep accurate accounts of operating costs and expenses and of earnings, and to retain the net earnings until the further order of the court. E. D. Lord succeeded Harrill as receiver on October 3, 1932. The electric utility has been continuously operated by such receivers since July 13, 1931. The City, prior to September 27, 1927, had fixed the rates for domestic use at 12 cents per K.W.H. The Court entered an order reducing such rate to 8 cents per K.W.H. effective November 1, 1931. The City operated the electric utility with the'new power plant from March 16, 1928, to August 17, 1930, a period of two years, five months and one day. The receivers’ reports considered in the Court’s findings covered the receivers’ operation from July 13, 1931, to August 28, 1933, a period of two years, one month and fifteen days. For the twelve months ending June 30, 1927, the cost of producing electric energy with the steam plant was 3.03 cents per K.W.H. For the month of April 1928, when the new power plant was operated by a com7 petent engineer, the cost was.98 cents per K.W.H. For the month of May 1928, six days of which the new power plant was operated by a competent engineer, the cost was 1.81 cents per K.W.H. During the period of the City’s operation 1,877,500 K.W.H.’s of electric energy were produced at an average cost of 1.60 cents per K.W.H. This was 1.43 cents per K.W.H. less than the average cost for the fiscal year 1926-1927, and the new power plant effected a saving of $27,189.30. During the period covered by the receivers’ reports 1,688,700 K.W.H.’s of electric energy were produced at an average cost of 1.003 cents per K.W.H. This was 2.027 cents per K.W.H. less than the average cost for the fiscal year 1926-1927, and the new power plant effected a saving of $34,255.88. Due to the fact that the equipment was in better condition when the period of the City’s operation commenced than during the period of the receivers’ operation, the former period should have reflected a greater saving than the latter. The costs during the period of the City’s operation were excessive due to the careless, improper and inefficient operation of the plant by the new engineer. If the City had operated the plant at no greater costs than the receiver, the savings effected would have been increased $11,208.68, and the total saving for both periods would have been $72,623.86. The actual savings for the combined period of the City’s and the receivers’ operations average slightly in excess of $1,-274.00 per month. The notes evidencing the monthly installments under the contract were each for $1,061.44. The City owns and operates a water utility which furnishes water to the City and its inhabitants. Since September 27, 1927, the pumping plant at the waterworks has been operated by electric energy furnished from the electric utility. In its accounting system the City charged its water utility and credits its electric utility with the electric energy used at the pumping plant, but no funds received by the water utility have been used to pay the cost of producing the electric energy used at the water plant. The cost of energy furnished the water utility during the period of the City’s operation of the Diesel plant was $3,650.21, and during the receivers’ operation was $11,420.93. The increase during the latter period is due to the fact that the meter during the period of the City’s operation was defective and under registered. No charge has been made either by the City or the receiver for electric energy used by the City at the city parks, city buildings, and the cemetery, and for street lighting and other City purposes. During the period covered by the receivers’ reports, 22,590 K.W.H.’s were used in the city parks, City Hall, City Library and cemetery, and 124,597 K.W.H.’s were used in the white way and residence street lighting systems. During the period of the City’s operation, electrical energy was being supplied to churches, public schools, and certain individuals without charge; and meters were permitted to be tampered with resulting in some cases in no registration and in others of under registration of the amount cf current used. The receiver corrected these conditions. The loss due thereto during the period of the City’s operation amounted to $3,755.00. During the period of the City’s operation, the total revenue of the electric utility was $56,203.67, and the total expense for labor, materials, supplies, replacements and maintenance of the entire plant was $45,375.07. During the receivers’ operation, the total revenue actually received was $47,047.09, and the total expense for labor, material, supplies, replacements and maintenance of the entire plant was $27,-964.82, leaving net earnings of $19,082.27. The net earnings would have been $26,-030.62 had the rates not been reduced. • The Court made a recapitulation which we set forth in subjoined note 3. If the City had operated the electric utility with proper skill, care and attention, the savings effected and net earnings produced by the new power plant would have been sufficient to have paid the installment notes monthly as they matured without resort directly or indirectly to tax revenues. During the period of the City’s operation it paid in liquidation of 19 of the notes $20,167.36 principal, and $166.67 interest. Thirty-three of the notes remain unpaid. The bill prayed that the defendants account for any funds in the hands of the City Treasurer which represents savings in the cost of producing electricity with the new power plant, that the defendants be required to apply same on the balance due on the contract, and that the defendants be required to pay the remainder out of future savings effected by the new power, plant. The answer set up the proceedings and judgment in the state court suit, and the alleged invalidity of the contract. It alleged that the City paid to Fairbanks Morse $20,332.03 on the contract; that it paid $7,700 thereof, out of a sinking fund and was entitled to recover back double the amount of such payment. It prayed that the contract and the unpaid notes be cancelled and that plaintiff recover the sum of $28,032.03 with interest. The trial court field the contract was void because it made no provision for a depreciation reserve and, therefore, cast an incidental tax burden on the taxpayers of the city. It concluded that Fairbanks Morse was entitled to retain the sum of $20,167.36, principal and $166.67, interest paid on the contract, and to remove and take into its possession, 'the engines and equipment; and that the City was entitled to the net proceeds in the hands of the receiver derived from the operation of the light plant after deducting the costs and expenses of the receivership. It entered a decree accordingly and both sides have appealed. The object of the provisions of the Oklahoma Constitution and City Charter set out in note 1, is to place restrictions on the taxing power and on the incurring of indebtedness payable out of tax revenues. Campbell v. State, 23 Okl. 109, 99 P. 778, 784, 785; Faught v. Sapulpa, 145 Okl. 164, 292 P. 15, 22. Section 26 of article 10 of the Oklahoma Constitution was adopted from the Missouri Constitution of 1875. There has grown up in many jurisdictions in this country what is commonly known as the special fund doctrine to the effect that a contract by a municipality to purchase and pay for property solély out of the net earnings of the property, without resort directly or indirectly to revenues derived from taxation, does not create a debt within the meaning of such constitutional provisions. The doctrine has been approved in Missouri, and Oklahoma and many other states. It is true that the special fund doctrine was disapproved in Zachary v. City of Wagoner, 146 Old. 268, 292 P. 345, 348. However in the later case of Baker v. Carter, 165 Old. 116, 25 P.(2d) 747, 755, the court expressly approved the special fund doctrine. In the opinion the court in part said: “59 C.J. page 225, § 370, announced this general rule: ‘Obligations, issued by a state, if payable only from the revenue to be realized from a particular utility or property acquired with the proceeds of the obligations, if payable only from the revenue to be realized from special taxes for a particular utility or property, acquired by the obligations or proceeds, or if payable only from a special fund to be raised from the sale or lease of lands previously set apart for the purpose of the obligations, do not generally constitute debts of the state within the meaning of constitutional limitations on indebtedness.’ * * * “The Supreme Court of California, Garrett v. Swanton, 216 Cal. 220, 13 P.(2d) 725, 729 in construing the special fund doctrine, held as follows: “ ‘The overwhelming weight of judicial opinion in this country is to the effect that bonds, or other forms of obligation issued by states, cities, counties, political subdivisions, or public agencies by legislative sanction and authority, if such particular bonds or obligations are secured by and payable only from the revenues to be realized from a particular utility or property, acquired with the proceeds of the bonds or obligations, do not constitute debts of the particular state, political subdivision, or public agency issuing them, within the definition of “debts” as used in the constitutional provisions of the states having limitations as to the incurring of indebtedness. * * * “ ‘Thus it is well established that an indebtedness or liability is incurred when by the terms of the transaction a municipality is obligated directly or indirectly to feed the special fund from general or other revenues in addition to those arising solely from the specific improvement contemplated. It also seems to be well settled, as a second limitation to the doctrine, that a municipality incurs an indebtedness or liability when by the terms of the transaction the municipality may suffer a loss if the special fund is insufficient to pay the obligation incurred. * * *’ “An examination of many authorities cited in the brief and a research of many others conducts us to the conclusion that, so far as the special fund doctrine is concerned, the majority rule as set forth in the case of Garrett v. Swanton et al., supra, announces the correct rule that a limitation upon state or municipal indebtedness is not violated by an obligation which is payable out of a special fund, if the state or municipality is not liable to" pay the same out of its general fund should the special fund prove to be insufficient and the transaction by which the indebtedness is incurred cannot in any event deplete the resources of the state or the municipality, limited to the two exceptions noted therein.” Furthermore only the petition and demurrer were before the Supreme Court in Zachary v. City of Wagoner, supra, and it is apparent from a statement in Baker v. Carter, supra, that the court conceived the facts to be that the payments were to be made from the earnings of the entire plant, part of which had been acquired with funds derived from ad valorem taxation, whereas in fact the payments were to be made solely from the earnings of the new power plant. Where a contract is fairly susceptible of two constructions, one of which will render it lawful and the other unlawful, the former will be adopted. Hobbs v. McLean, 117 U.S. 567, 576, 6 S.Ct. 870, 29 L.Ed. 940; Great Northern Ry. Co. v. Delmar Co., 283 U.S. 686, 691, 51 S.Ct. 579, 75 L.Ed. 1349; E. I. Du Pont De Nemours & Co. v. Claiborne-Reno Co. (C.C.A.8) 64 F.(2d) 224, 228, 89 A.L.R. 238; Moffat Tunnel Improvement Dist. v. Denver & S. L. Ry. Co. (C.C.A.10) 45 F.(2d) 715, 733. Therefore, if the language of the contract permits, we should adopt a construction that will render it valid and enforceable. The property sold was a complete power or generating plant. The payments were to be made from the savings effected by the new power plant over the old steam power plant. The savings were in fact, a portion of the net earnings of the generating plant because in arriving at such savings, there were to be deducted salaries and wages of engineers, employees, mechanics, laborers and other workers engaged in the operation and maintenances of the plant, all expenses for fuel and oil and all other expenses reasonably nécessary for the production of the electricity and the maintenance, upkeep and repair of the plant, machinery, equipment, appliances and appurtenances and the buildings and structures housing the same, and the cost of insurance on the plant machinery, equipment, appliances, appurtenances, buildings and structures. The only costs or expenses that were not to be deducted were distributing costs and the expense of collecting charges. These were not generating costs, but were properly allocated to the distributing system. It will be noted that the electric utility, with the steam power plant, produced income sufficient to maintain the same, pay all operating expenses, and yield a profit to the City. The new power plant reduced the costs of generation approximately two cents per K.W.H. or an average monthly saving of about $1300 per month. If the light utility, with the expensive steam plant produced sufficient revenue to pay all costs of maintenance and all operating costs and, in addition, to yield a profit to the City, with a saving of $1300 per month effected by the new power plant in generating costs, it should still yield sufficient net earnings to pay costs of maintenance, operating expenses and to permit the use of $1061.44 of the earnings of the new equipment to be used to pay the purchase price thereof, without resort to taxation to main; tain or operate the plant. The trial court was of the opinion the contract was invalid because it made no provision for a reserve for depreciation of the plant. It will be noted that the contract provides for the deduction of all costs and expenses “for the production of electricity and the operation, maintenance and up-keep of said plant and the machinery, equipment, appliances and appurtenances * * *, and the buildings and structures housing and protecting same.” It is well settled by works on accounting and by accepted accounting practices, that depreciation is an operating cost or expense. American Business Accounting, Jones, Ludlow, Hayden & Winchell, Vol. 1, pp. 39, 383, 385; Science of Accounts, Bentley, pp. 60, 145. Mr. Bentley in his Science of Accounts, says: “In a manufacturing concern the depreciation of the assets used in connection with the production department, reduced to dollars and cents, represents the cost of services rendered by those assets (factory buildings, machinery, tools, stable equipment, etc.) and must be included among the manufacturing expenses.” That the parties intended something more than the cost, of repairs should be deducted, is indicated by the fact that the contract, after providing for deducting costs of repairs, later makes further provision for the deduction of expenses for operation, maintenance and up-keep. We conclude the contract provided for the deduction of depreciation. Where a contract is for the purchase of one unit of a utility, the other unit or units of which have been provided for by tax revenues, an agreement to pay for the unit purchased out of the earnings of the entire utility casts an incidental burden on the taxpayers, and falls within the inhibition of constitutional provision like section 26 of article 10, supra. City of Campbell v. Arkansas-Missouri Power Co. (C.C.A.8) 55 F.(2d) 560, 563. But if the purchase price is payable only from the net earnings of the unit purchased, and there is a reasonable allocation of earnings to that unit, the contract is valid. City of Campbell v. Arkansas-Missouri Power Co. (C.C.A.8) 65 F.(2d) 4-25; Bell v. City of Fayette, 325 Mo. 75, 28 S.W. (2d) 356, 360; State v. Smith, 335 Mo. 825, 74 S.W. (2d) 367, 371; Schnell v. City of Rock Island, 232 Ill. 89, 83 N.E. 462, 14 L.R.A.(N.S) 874. We are of the opinion that the contract provides a reasonable basis for allocating the net earnings of the new power plant; that the installment notes are payable solely therefrom; that the contract does not create a debt within the meaning of section 26, art. 10, supra, and the provisions of the city’s charter, and that it is valid and enforceable. Fairbanks Morse was not a party to the suit of Zachary & Eby v. City of Wagoner, nor in privity with a party thereto; it was not represented by any one in the trial thereof; it did not directly or indirectly control or conduct the defense thereof. We conclude Fairbanks Morse is not concluded by the decree in the state court suit under the doctrine of res judicata. The evidence established, and the trial court found that if the City had managed the electric utility economically and efficiently, and had operated the new power plant properly, the net earnings of the power plant during the period limited in the contract, would have been sufficient, without resorting to tax revenues directly or indirectly, to have paid the notes in full. We conclude Fairbanks Morse is entitled to have the net earnings of the new power plant during the receivership, computed as provided in the contract and applied 'on the unpaid notes, from funds on hand or available to the receiver, and to have the receivership continued until such notes with accrued interest are fully paid from such earnings. In computing the savings under the contract the receiver should deduct a reasonable reserve for depreciation. The receiver should collect from the City the cost of electric energy which had been, and may ^hereafter be furnished, during the receivership, to the water utility, from any available earnings of the water utility,

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

CITY OF ANGELS BROADCASTING, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Fidelity Television, Inc., RKO General, Inc., Intervenors. No. 83-1741. United States Court of Appeals, District of Columbia Circuit. Argued May 8, 1984. Decided Sept. 28, 1984. Frank H. Penski, New York City, with whom Stephen Kurzman and Shelby D. Green, Washington, D.C., were on brief, for appellant. J. Roger Wollenberg, Washington, D.C., with whom Joel Rosenbloom, Harold David Cohen, William H. Fitz and Jack N. Goodman, Washington, D.C., were on brief, for intervenor, RKO General, Inc. Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel and Sue Ann Preskill, Counsel, F.C.C., Washington, D.C., were on brief, for appellee. Nathaniel F. Emmons, Washington, D.C., with whom Eugene F. Mullin, Washington, D.C., was on brief, for intervenor, Fidelity Television, Inc. Howard A. Topel, Washington, D.C., also entered an appearance for Fidelity Television, Inc. Before TAMM, WILKEY and STARR, Circuit Judges. STARR, Circuit Judge. City of Angels Broadcasting, Inc. appeals from a Federal Communications Commission order denying its motion to intervene in a proceeding to determine the recipient of a Los Angeles television station license. We have jurisdiction pursuant to 47 U.S.C. § 402(b). For the reasons which follow, we hold that it was within the Commission’s discretion to deny appellant’s admittedly untimely request to intervene in an ongoing comparative proceeding. I This appeal is the latest chapter in a continuing drama at this court and the Federal Communications Commission (FCC or Commission) involving the efforts of RKO General, Inc. (RKO) to retain its television and radio licenses against various charges of wrongdoing levelled against it and its parent, the General Tire & Rubber Company (General Tire). The only question presently before us is whether the FCC acted arbitrarily in denying appellant City of Angels Broadcasting, Inc. (City of Angels) leave to intervene in an ongoing comparative license renewal proceeding with respect to a Los Angeles television license currently held by RKO. An analysis of this straightforward question, however, requires an understanding of the protracted history leading up to the present appeal. Our story begins two decades ago. In 1965, RKO petitioned the FCC to renew its license for Channel 9, Station KHJ-TV in Los Angeles. A timely application for a construction permit for a new television station on Channel 9 was subsequently filed by Fidelity Television, Inc. (Fidelity). At that early juncture, City of Angels was nowhere to be found. Confronted with these two competing applications, the Commission scheduled a comparative hearing to resolve RKO’s renewal application and Fidelity’s mutually-exclusive application for a construction permit. After adducing evidence, a Hearing Examiner issued an order in 1969 granting Fidelity’s construction permit application and denying RKO’s application for renewal. RKO General, Inc. (KHJ-TV), 44 F.C.C.2d 149 (Initial Decision 1969). While RKO was appealing this adverse decision to the full Commission, across the country another RKO license was under siege. In that proceeding, competing applicants were challenging RKO’s license renewal for Channel 7, WNAC-TV in Boston. See RKO General, Inc. (WNAC-TV), 20 F.C.C.2d 846 (1969). In the Boston proceeding, issues were designated for hearing with respect to anticompetitive practices allegedly engaged in by RKO and its parent company, General Tire, whereby General Tire would condition its purchases of products or materials upon an agreement that the suppliers would purchase advertising time on RKO stations. See RKO General, Inc. (WNAC-TV), 78 F.C. C.2d 1, 38-47 (1980). Known as reciprocal trade dealings, those practices had been raised in the Los Angeles proceeding, although not as broadly as they were subsequently presented in the Boston proceeding. Accordingly, the Commission’s Broadcast Bureau asked the Commission to reopen the Los Angeles hearing for consideration of new evidence being developed in Boston on the reciprocity issue, as well as for consideration of an additional RKO fitness issue concerning the candor of certain witnesses who testified in the original hearing with respect to the alleged reciprocal trade practices. In an order designed to streamline consideration of RKO’s challenge to the Hearing Examiner’s decision, the Commission declined to reopen the Los Angeles proceeding. RKO General, Inc. (KHJ-TV), 31 F.C.C.2d 70 (1971). Instead, the Commission made Fidelity a party to the Boston proceeding, in which evidence as to RKO’s fitness was to be adduced. Id. at 74. Such a procedure, according to the Commission, would adequately protect Fidelity’s right to adduce new evidence bearing upon RKO’s fitness in the event the Commission reversed the Hearing Examiner’s decision in favor of Fidelity and found RKO comparatively superior. Id. If, on the other hand, the Commission affirmed the Hearing Examiner’s decision, any evidence adduced against RKO in Boston would necessarily become immaterial to the Los Angeles proceeding. Id. After some prodding by this court, see Fidelity Television, Inc. v. FCC, 502 F.2d 443, 446-47 (D.C.Cir.1974) (detailing actions taken by this court during 1973 in response to Fidelity’s petition for writ of mandamus to compel allegedly unreasonably delayed agency action), the FCC in late 1973 issued a decision in RKO’s Los Angeles appeal. RKO General, Inc. (KHJ-TV), 44 F.C.C.2d 123 (1973)..Reversing the Hearing Examiner’s conclusion in favor of Fidelity, the Commission held that RKO should have been granted renewal of its license on the basis of the record compiled in the Los Angeles proceeding. In a 3-2 decision that prompted excoriating criticism from the dissenting Commissioners, see id. at 140-42 (Commissioner Johnson, dissenting); id. at 142-48 (Commissioner Lee, dissenting), the FCC majority found RKO and Fidelity to be similarly qualified and stated that “credit must be given in a comparative renewal proceeding, when the applicants are otherwise equal, for the value to the public in the continuation of the existing service.” Id. at 137. Recognizing, however, that further character evidence might be adduced against RKO during the Boston proceeding, the Commission left open the possibility that Fidelity might ultimately be entitled to the Los Angeles license. Specifically, the Commission ordered that “the application of RKO... is DEEMED TO BE GRANTED, and that the application of Fidelity... IS DEEMED TO BE DENIED, subject to whatever action may be deemed appropriate following resolution of the matters in [the Boston proceeding].” Id. at 138. When Fidelity subsequently appealed from this order, the Commission moved to dismiss the appeal on the ground that its order was merely interlocutory, inasmuch as Fidelity’s application had not been finally denied within the meaning of the applicable judicial review provision, 47 U.S.C. § 402(b)(1). This court disagreed. Fidelity Television, Inc. v. FCC, 502 F.2d 443 (D.C.Cir.1974). We held that the challenged order was immediately reviewable inasmuch as it finally approved RKO’s renewal application subject to possible defea-sance only upon termination of the Boston proceeding. See id. at 448-53. When the challenged order was subsequently reviewed on the merits, this court held that the FCC “did not commit reversible error” in renewing RKO’s license and denying Fidelity’s application for a construction permit. Fidelity Television, Inc. v. FCC, 515 F.2d 684, 702 (D.C.Cir.), cert, denied, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 253 (1975). The court noted, however, that its affirmance was “conditional (as was the Commission’s decision) on the ultimate outcome of the [Boston] proceedings.” Id. at 703 n. 45. Shortly after the court’s affirmance of the FCC’s Los Angeles decision, new fitness issues with respect to RKO emerged in the Boston proceeding. The Securities and Exchange Commission (SEC) challenged as violative of the federal securities laws certain undisclosed domestic and overseas conduct engaged in by RKO’s parent company, General Tire. The SEC proceeding resulted in the filing of a consent decree on May 10, 1976, requiring General Tire to undergo an operational review by five non-management directors that would culminate in the issuance of a Special Report. This report, released on July 1, 1977, bore obvious relevance to the FCC proceedings inasmuch as the report admitted wide-ranging corporate misconduct. The Special Report concluded that deficient recordkeep-ing and accounting practices had caused inaccuracies in RKO financial disclosures filed with the FCC. In 1978, before the FCC could act upon the information contained in General Tire’s Special Report, RKO and the two competing applicants for the Boston television license proposed a settlement whereby RKO would assign the license to a new entity to be created by the merger of the two other applicants. This proposed settlement, which was expressly made contingent upon an FCC finding that RKO was qualified to be a broadcast licensee, obviously had dramatic ramifications for the future of the Boston case as a contested proceeding. It was thus crucial for Fidelity, as well as for another RKO competitor, Multi-State Communications, Inc. (an applicant for a television license held by RKO in New York which had also been made a party to the Boston proceeding), to have its participatory rights in the Boston proceeding broadly construed. On the other hand, it was to the benefit of RKO and the formerly competing Boston applicants for such rights to be narrowly interpreted. These latter parties accordingly argued that the original FCC order allowing Fidelity to participate in the Boston proceeding was limited to the issue of anticompetitive reciprocal practices engaged in by RKO and General Tire. Rejecting this argument, the FCC ordered that Fidelity (and Multi-State Communications, Inc.) be allowed to participate on all issues bearing upon RKO’s fitness to be a broadcast licensee. The Commission subsequently explained that: Both Fidelity and Multi-State have a clear, substantial interest in the outcome of the Boston proceeding____ [T]he same reasoning which led the Commission to allow Fidelity and Multi-State to participate as to [the reciprocity and related] issues applies to the matters under consideration as a result of the SEC investigation, since these matters also bear upon RKO’s basic qualifications. Moreover, it is quite clear that a Commission determination that RKO is qualified in all respects to be a Commission licensee — a determination requested by the [Boston] parties — would have a significant impact on the Los Angeles and New York proceedings. Hence, fairness requires that Fidelity and Multi-State have an opportunity to participate in the Boston case to the extent it concerns RKO’s qualifications. RKO General, Inc. (WNAC-TV), 78 F.C. C.2d 1, 24 (1980). On the merits, the Commission found that RKO was unfit to be a licensee of the Boston television station. RKO General, Inc. (WNAC-TV), 78 F.C.C.2d 1 (1980). The Commission finding was based upon three independent grounds: (1) RKO’s reciprocal trade practices; (2) RKO’s inaccurate financial reports; and (3) RKO’s lack of candor during the Boston proceeding. In a companion decision, the FCC held that these three factors also disqualified RKO as a licensee of Channel 9 in Los Angeles. The Commission thereupon ordered further pleadings on whether the application of Fidelity, as RKO’s sole competitor in the licensing proceeding, could thus be granted. RKO General, Inc. (KHJ-TV), 78 F.C. C.2d 355 (1980). See also RKO General, Inc. (WOR-TV), 78 F.C.C.2d 357 (1980) (disqualifying RKO, on basis of the above three factors, as licensee of the New York television station). RKO challenged these qualification orders in separate appeals that were then consolidated by this court. RKO General, Inc. v. FCC, 670 F.2d 215 (D.C.Cir.1981), cert, denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 442 and 457 U.S. 1119, 102 S.Ct. 2931, 73 L.Ed.2d 1331 (1982). We rejected two of the three disqualifying factors proffered by the FCC, holding that neither the reciprocal conduct, id. at 222-25, nor the financial misrepresentations, id. at 225-26, could on the record before us support RKO’s disqualification. On the other hand, the court did uphold the Commission’s reliance upon RKO’s lack of candor (i.e., nondisclosure of material facts) during the Boston proceeding as a basis for disqualifying RKO from holding the license for Boston’s Channel 7. Id. at 228-36. While noting that “it may well be that such a finding [i.e., lack of candor] is inconsistent with a licensee holding a license anywhere,” id. at 237, we stressed that RKO’s lack of candor in the Boston proceeding could not automatically justify revocation of its Los Angeles or New York City licenses. Id. at 236-37. Instead, we directed that further proceedings be undertaken with respect to those two licenses so as to allow RKO an opportunity to demonstrate (e.g., by presenting evidence of meritorious programming) why its performance in Los Angeles and New York City merited different treatment. Id. at 237. Accordingly, the Boston decision was affirmed, while the Los Angeles and New York City cases were remanded for further proceedings. While these events were unfolding, City of Angels and another company had in the meantime filed separate petitions with the FCC in June 1980 seeking to intervene in the Los Angeles proceeding after the Commission attempted to disqualify RKO as a Los Angeles licensee. In its June 1983 order that is the subject of this appeal, the Commission denied these intervention requests. RKO General, Inc. (KHJ-TV), 54 Rad.Reg.2d (P & F) 53 (1983). We now affirm. II A City of Angels' appeal from the FCC’s denial of its petition to intervene is predicated upon the assumption that the Los Angeles proceeding remains a live ongoing proceeding. RKO challenges this assumption, however, arguing ingeniously that the proceeding in fact came to an end in 1981 when this court held that RKO could not be denied a broadcast license based upon reciprocal trade practices engaged in during the early 1960s. In RKO’s theory of the case, the sole condition contained in the Commission’s grant of its license renewal in the face of Fidelity’s challenge was based upon the reciprocity issue; once this issue was resolved favorably to RKO, the argument goes, the proceeding automatically terminated. Fidelity’s sole lingering hope to defease RKO’s license was, in RKO’s view, thereby extinguished. None of the other parties before the court accepts RKO’s creative characterization of the FCC’s proceedings. Quite to the contrary, both the Commission and Fidelity argue vigorously that the Los Ange-les proceeding will not be over until all fitness issues raised against RKO in the Boston proceeding have been resolved. Inasmuch as the effect of RKO’s lack of candor in the Boston proceeding upon its Los Angeles license is yet to be determined, these parties maintain that the Los Angeles proceeding is still alive and well. In support of their respective arguments, the contending sides are able to find comfort in the language of the manifold judicial and administrative opinions that the RKO licensing saga has spawned. Compare Fidelity Television, Inc. v. FCC, 515 F.2d 684, 703 n. 45 (D.C.Cir.1975) (broadly conditioning affirmance “on the ultimate outcome of the [Boston] proceedings”), cert, denied, 423 U.S. 926, 96 S.Ct. 271, 46 L.Ed.2d 253 (1975) and RKO General, Inc. (KHJ-TV), 44 F.C.C.2d 123, 138 (1973) (grant of channel 9 license to RKO made “subject to whatever action may be deemed appropriate following resolution of the matters” in the Boston proceeding) with Fidelity Television, Inc. v. FCC, 502 F.2d 443, 452 (D.C.Cir.1974) (“[I]n the event the court affirms the Commission and no decisive evidence of anticompetitive activity on the part of RKO is developed in the Boston proceeding, RKO preserves its [Los Ange-les] license”) and RKO General, Inc. (KHJ-TV), 31 F.C.C.2d 70, 74 (1971) (limiting Fidelity’s Boston “participation to matters pertaining to RKO’s character qualifications to be a Commission licensee either by reason of antitrust or anticompetitive activities or by reason of the alleged conduct which forms the basis for the [candor] issues added by the Review Board”). The imprecision which with the benefit of hindsight we can discern in the various opinions is entirely understandable. At that time no one, of course, could peer into the future and foresee that the Boston proceeding would significantly expand beyond the reciprocity and related issues. See RKO General, Inc. v. FCC, supra, 670 F.2d at 236 (“The FCC could not have known, when it conditioned [the Los Ange-les proceeding] as it did, that the Boston outcome would turn on a lack of candor issue that had not even been designated in the Boston proceeding.”). It would therefore be disingenuous now to attribute to isolated quotations from these opinions a meaning they were never intended to bear. In our view, the better approach is to acknowledge that these opinions did not address the extent of Fidelity’s participatory rights beyond the reciprocity-related issues and then to ask whether the FCC order conditioning the renewal of RKO’s Channel 9 license (as well as the denial of Fidelity’s construction permit) upon the outcome of the Boston proceeding was sufficiently broad to accommodate Fidelity’s participation as to subsequently arising issues bearing upon RKO’s fitness as a broadcast licensee. The FCC has, of course, consistently answered this question in the affirmative. Our review, in turn, of the Commission’s construction of its own prior order is narrow: we may not overturn it unless there are compelling indications that it is wrong. See Brotherhood of Railway and Airline Clerks, Consolidated System Board of Adjustment 46 v. Burlington Northern Inc., 671 F.2d 1085, 1088 (8th Cir.1982); cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616 (1965) (“The Secretary’s interpretation may not be the only one permitted by the language of the orders, but it is quite clearly a reasonable interpretation; courts must therefore respect it.”) (citations omitted); Tele-Media Corp. v. FCC, 697 F.2d 402, 420 (D.C.Cir.1983). We are, under the circumstances before us, quite unable to hold that the Commission was unreasonable in interpreting its 1973 order in the fashion it did. Our deference to the agency’s reading of its own orders is buttressed in this instance by the specific action taken by this court in 1981 when it remanded the Los Angeles case to the Commission for further proceedings. See RKO v. FCC, supra, 670 F.2d at 236-37. Despite our holding that reciprocal conduct would not support RKO’s disqualification as a broadcast licensee, see id. at 222-25, this court remanded the Los Angeles case to the FCC “for further consideration as it deems appropriate.” Id. at 236. Furthermore, although the orders in which the FCC had rejected RKO’s attempt to limit Fidelity’s participation to reciprocity-related issues were among those under review, the court made no mention of any disagreement whatever with the FCC’s decision in this respect. On the contrary, the court suggested that RKO’s lack of candor in the Boston proceeding might well be a sufficient basis for stripping its Los Angeles license. See id. at 237. We therefore reject RKO’s argument that the terms of the Commission’s 1973 order dictate the conclusion that the RKO/Fidelity comparative proceeding is an irrevocably closed chapter. III A City of Angels’ request to join this ongoing proceeding, although nominally styled a petition to intervene, seeks in essence to have the FCC consider the merits of its application for a construction permit for a television station that would operate on Channel 9 in Los Angeles. Accordingly, the parties have correctly identified the issue as whether the FCC committed reversible error when it refused to waive an administrative “cut-off” rule. That rule quite sensibly prescribes a date after which construction permit applicants which are mutually exclusive with previously-filed license renewal applications will generally not be accepted. See 47 C.F.R. § 73.-3516(e) (current version). Resolution of this issue requires an understanding of the purposes served by the cut-off rule, as well as an understanding of this court’s role in reviewing an agency’s refusal to waive one of its own regulations. The FCC’s cut-off rule was prompted by the watershed decision in Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), requiring the Commission to conduct a comparative hearing whenever mutually exclusive broadcast applications have bepn filed. See also 47 U.S.C. § 309(e) (statutory codification of the Ash-backer “full hearing” requirement). Intended to fill a void identified by the Supreme Court in Ashbacker, see 326 U.S. at 333 n. 9, 66 S.Ct. at 151 n. 9, the rule has consistently been approved by this court as a valid means by which the FCC may carry out its mandate of affording a comparative hearing to mutually exclusive broadcast applicants. See, e.g., Committee for Open Media v. FCC, 543 F.2d 861, 873 (D.C.Cir. 1976); Radio Athens, Inc. (WATH)v. FCC, 401 F.2d 398, 400-01 (D.C.Cir.1968); Century Broadcasting Corp. v. FCC, 310 F.2d 864, 866 (D.C.Cir.1962); Ranger v. FCC, 294 F.2d 240, 243 (D.C.Cir.1961). The cut-off rule basically serves two purposes. First, it advances the interest of administrative finality: “There must be some point in time when the Commission can close the door to new parties to a competitive hearing or, at least hypothetically, no licenses could ever be granted.” Radio Athens, supra, 401 F.2d at 401. Second, it aids timely broadcast applicants by granting them a “protected status,” see Ranger, supra, 294 F.2d at 243, that allows them to prepare for what often will be an expensive and time-consuming contest, fully aware of the competitors they will be facing. See, e.g., Bronco Broadcasting Co., 50 F.C.C.2d 529, 533-34 (1974); Howard University, 23 F.C.C.2d 714, 716 (1970). In the present case, the FCC determined that these dual purposes would be thwarted by waiving the cut-off rule so as to allow City of Angels to file its construction permit application fourteen years late. The scope of our review of this determination is narrow and contained. See generally 5 U.S.C. § 706(2)(A). As we recently had occasion to note, “[a]n applicant for a waiver not only bears the burden of convincing the agency that it should depart from the rules, but on judicial appeal, the applicant must show that the agency’s rea-sonings for declining the waiver were ‘so insubstantial as to render that denial an abuse of discretion.’ ” Thomas Radio Co. v. FCC, 716 F.2d 921, 924 (D.C.Cir.1983); see also ICBC Corp. v. FCC, 716 F.2d 926, 929 (D.C.Cir.1983) WAIT Radio v. FCC, 459 F.2d 1203, 1207 (D.C.Cir.) (“ ‘An applicant for waiver faces a high hurdle even at the starting gate.’ On... appeal to this court, the burden... is even heavier.”), cert, denied, 409 U.S. 1027, 93 S.Ct. 461, 34 L.Ed.2d 321 (1972) (citation omitted). We are quite unable to say that the Commission abused its discretion, or otherwise acted arbitrarily, when it refused to waive its cut-off rule. In refusing City of Angels’ waiver request (as well as the request of another untimely applicant), the Commission correctly noted that the cut-off rule is “designed to permit [it] to close the door to new parties so that a choice can be made between timely filed applicants, thereby giving timely filed applicants protection against opportunistic late-comers.” RKO General, Inc. (KHJ-TV), 54 Rad.Reg.2d (P & F) 53, 58-59 (1983) (footnotes omitted). The FCC concluded that there were “no unusual and compelling circumstances warranting waiver of this rule.” Id. This conclusion was well within the Commission’s broad discretion. This proceeding has now been before the agency and the courts for almost twenty years. It defies reason to suggest that the Commission abused its discretion by concluding that to permit at this late date new competitors for the Channel 9 license would thwart the vital goal of bringing about a fair and final resolution of this long and drawn-out controversy. Furthermore, the Commission’s reference to “opportunistic late-comers” indicates that the agency was concerned that granting waivers would contravene the protected status of Fidelity, which for almost twenty years has expended the substantial time and resources necessary to wage this unfortunately protracted battle. For these reasons we reject City of Angels’ contention that the Commission abused its discretion in refusing to grant a belated intervention application. B City of Angels mounts two additional arguments that, carried to their logical conclusion, go beyond a challenge to the denial of an intervention petition. First, it argues that the record in this case is so stale that the proceeding must be reopened. Second, it argues that this court’s decision in New South Media Corp. v. FCC, 685 F.2d 708 (D.C.Cir.1982), requires that new applicants be allowed to compete for the Channel 9 license. Acceptance of either of these arguments would result in our holding that the RKO/Fidelity comparative proceeding must be terminated in favor of an entirely new proceeding in which any applicant who so desired could compete. This is, of course, the same result championed by RKO. See supra Part II. Unlike RKO, which would have us arrive at this destination by holding that the Commission erroneously construed its own prior orders, City of Angels contends that the Commission is obligated under governing case law to scrap this proceeding and begin anew. Before examining City of Angels’ specific contentions, we set the stage for this branch of our inquiry by observing that the Commission enjoys wide discretion in fashioning its own procedures. Section 4(j) of the Communications Act of 1934, 47 U.S.C. § 154(j), provides in broad fashion that the FCC “may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” In FCC v. Schreiber, 381 U.S. 279, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965), the Supreme Court stated that this provision indicates that “Congress has left largely to [the Commission’s] judgment the determination of the manner of conducting its business which would most fairly and reasonably accommodate the proper dispatch of its business and the ends of justice.” Id. at 289, 85 S.Ct. at 1467 (internal quotation omitted). The Court further noted that this congressional delegation of authority to the FCC encompassed the “power to resolve subordinate questions of procedure such as the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions.” Id. (internal quotation and punctuation omitted). In like manner, we have consistently recognized that the FCC is vested with broad discretion in structuring its own proceedings. See, e.g., MCI Telecommunications Corp. v. FCC, 712 F.2d 517, 533 (D.C.Cir.1983); Western Union Telegraph Co. v. FCC, 665 F.2d 1112, 1121 & n. 13 (D.C.Cir.1981); Nader v. FCC, 520 F.2d 182, 195-97 (D.C.Cir.1975). For the following reasons, we are firmly persuaded that the arguments advanced by City of Angels fall short of overcoming the presumption that the FCC, rather than this court, should determine how best to structure comparative hearings in furtherance of the public interest. City of Angels’ first argument is that both Fidelity and the Los Angeles area served by Channel 9 have undergone dramatic changes since the inception of this proceeding such that the record compiled by the FCC is now stale. There can be no doubt, as the dissent argues, that significant changes have swept over Los Angeles County during the past twenty years. The staleness argument in this case, however, is severely undercut by the fact that the record has been updated in accordance with 47 C.F.R. § 1.65. That rule requires that applications be updated to reflect any substantial changes that may be of decisional significance. We further note that an extremely heavy burden looms before a party seeking to overturn a final administrative order on grounds of staleness. See, e.g., Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 294-296, 95 S.Ct. 438, 446-447, 42 L.Ed.2d 447 (1974). The contention advanced by petitioner, and embraced by the dissent, is even more dramatic. City of Angels asks us to hold, in advance of a final administrative determination with respect to the license for Channel 9, that the record will inevitably be too stale to support an award to either RKO or Fidelity. City of Angels has not shown, even assuming that such a showing could ever be made, that the FCC in the present case will be unable to compile a record sufficiently fresh to withstand a staleness attack. City of Angels’ final argument is that the Commission’s decision to continue the RKO/Fidelity proceeding rather than begin an entirely new proceeding is inconsistent with this court’s decision in New South Media Corp. v. FCC, supra. We held in New South Media that it was unreasonable for the FCC not to accept competing applications for certain RKO radio and television licenses that had been conditionally renewed, subject to noncomparative hearings that were deferred for periods ultimately extending well beyond the applicable three-year license renewal period. In mandating Commission acceptance of competing applications for these licenses, we relied heavily upon the well-established principle that the public interest is best served by comparative hearings to determine broadcast license awards. See id. at 714-15. We held that the Commission “ha[d] not adequately accounted for an action destined to prolong by months and in some cases even years licensee RKO’s immunity from competitive challenge and comparative evaluation.” Id. at 715. In so holding, however, the court was careful to distinguish the situation before it from situations in which would-be competitors “tried to intrude” in an ongoing proceeding that had extended beyond what would normally have been the expiration date of the license term at issue. See id. at 715-16 (distinguishing Committee for Open Media v. FCC, 543 F.2d 861 (D.C.Cir.1976)). In light of the fact that concern for competition formed the basis for this court’s decision in New South Media, City of Angels’ reliance upon that case is misplaced. RKO and Fidelity have been, and continue to be, engaged in the type of “license competition that normally propels a licensee to better broadcasting.” Cf. Committee for Open Media, supra, 543 F.2d at 873 (quoted in New South Media, supra, 685 F.2d at 716). Indeed, City of Angels argues at one point that a continuation of the RKO/Fidelity comparative proceeding would “effectively shield Fidelity from needed com-petition____” Brief for Appellant at 13 (emphasis supplied). The defect in the FCC proceeding identified by this court in New South Media was, of course, precisely the opposite. There, an incumbent licensee (RKO) was the party found to have been improperly shielded from competition. We are unmoved by City of Angels’ claim, which appears dubious in any event, that a construction permit applicant (Fidelity) is not receiving ample competition from an incumbent licensee (RKO). Cf. New South Media, supra, 685 F.2d at 715 (“[T]he court has attempted to close review of Commission policy regarding (renewal expectancy’ to ascertain whether the FCC is according incumbent licensees undue protection to the detriment of the public.”) (citing Central Florida Enterprises, Inc. v. FCC, 683 F.2d 503 (D.C.Cir.1982), cert, denied, 460 U.S. 1084, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983)). In sum, New South Media is by its own terms inapposite to a case involving an ongoing comparative proceeding. IV We have examined with care the contentions that this court should mandate termination of the RKO/Fidelity comparative proceedings, and have found them, upon analysis, to be without merit. Obviously, one cannot resist being given to dismay over the sheer length of this proceeding. Nevertheless, we take the case as it comes to us. And it is our considered view that, given the present posture of the case, it would be inappropriate to order a new proceeding. Notwithstanding City of Angels’ vigorous protestations to the contrary, the inevitable result of opening his proceeding to all comers would be yet further delay in determining who should be the licensee of Channel 9 in Los Angeles. This we decline to do. The decision under review is therefore Affirmed. . The Los Angeles Hearing Examiner received evidence on the reciprocity issue only insofar as it bore relevance to RKO’s stewardship of KHJ-TV in Los Angeles. See RKO General, Inc., 44 F.C.C.2d 149, 152 (Initial Decision 1969). . Although the Commission also based its finding upon certain nonbroadcast misconduct engaged in by RKO’s parent company, we did not construe the FCC’s opinion as relying upon this element as an independent disqualifying factor. RKO General, Inc. v. FCC, 670 F.2d 215, 222, 226-27 (D.C.Cir.1981), cert. denied, 456 U.S. 927, 102 S.Ct. 1974, 72 L.Ed.2d 442 and 457 U.S. 1119, 102 S.Ct. 2931, 73 L.Ed.2d 1331 (1982). . RKO was subsequently able to avoid these further proceedings in New York yet retain its license by taking advantage of newly-enacted legislation that

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

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

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

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

UNITED STATES of America, Plaintiff-Appellee, v. Melvin REYNOLDS and Herbert Brown, Defendants-Appellants. Nos. 73-1294 and 73-1295. United States Court of Appeals, Sixth Circuit. Argued Oct. 19, 1973. Decided Dec. 21, 1973. Joseph P. Zanglin, Detroit, Mich. (Court-Appointed), on brief, for Melvin Reynolds. Martin Reisig, Detroit, Mich. (Court-Appointed), on brief, for Herbert Brown. Ralph B. Guy, Jr., U. S. Atty., William C. Ibershof, Asst. U. S. Atty., Chief, Crim. Div., Detroit, Mich., on brief, for plaintiff-appellee. Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges. JOHN W. PECK, Circuit Judge. Melvin Reynolds and Herbert Brown were arrested and charged with violating federal narcotic laws in 1970. A single indictment naming Reynolds in each of four counts and Brown in the latter two was returned. There was no connection between counts one and two, and three and four on the face of the indictment, nor was conspiracy charged. After an unsuccessful attempt by Brown to have the case severed for separate trials, the initial trial was begun in September of 1972. It ended in a mistrial. The second trial was commenced on October 11, 1972, and it resulted in a jury verdict of guilty on all four counts. Reynolds was sentenced to concurrent terms of ten years on each of the four counts, and Brown received fifteen year concurrent sentences on counts three and four. Both Reynolds and Brown join in this appeal, but the issues raised are not identical. Brown raises the failure of the Trial Court to grant his pretrial motion for severance as prejudicial error. We find merit in this assertion. Rule 8(b) of the Federal Rules of Criminal Procedure provides in pertinent part as follows: “Two . . . defendants may be charged in the same indictment . if they are alleged to have participated in the same act ... or series of acts . . . constituting an offense . . . . ” In this case Reynolds was charged in counts one and two with the possession and sale of heroin in violation of 26 U.S.C. §§ 4704(a) and 4705(a), in that he sold heroin to an agent on March 5, 1970. In counts three and four Brown is charged jointly with Reynolds for illegal sale and unlawful possession of narcotics after illegal importation in violation of 21 U.S.C. § 174 in that they sold heroin to an agent on March 10, 1970. It is clear from the evidence offered by the government that Brown had no connection with the separate offenses charged in counts one and two. “[T]he Rules do not permit cumulation of prejudice by charging defendants with similar but unrelated offenses.” Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 993 (1966). “[W]here multiple defendants are charged with offenses in no way connected, and are tried together, they are prejudiced by that very fact, and the trial judge has no discretion to deny relief.” Ingram v. United States, 272 F.2d 567, 570 (4th Cir. 1959). The case before us is on all fours with Chubet v. United States, 414 F.2d 1018 (8th Cir. 1969), wherein two defendants were jointly tried on an indictment of six counts which named one defendant in all six counts and the other defendant in only two. The indictment alleged neither connection nor conspiracy. The Eighth Circuit held that the common thread in the indictment, the defendant named in every count, “is an insufficient basis for jointly trying the defendants.” Chubet v. United States, supra at 1020. In denying the motion to sever in this case the trial judge allowed an impermissible joinder. The remedy is reversal of defendant Brown’s convictions with orders for a new and separate trial. Defendant Reynolds attempts to take advantage of the severance issue by claiming prejudice to himself. We find no merit in this contention. Reynolds was charged in each count and the government offered evidence on each. No prejudice was possible in this situation. Both defendants urge that their convictions and sentences be set aside arid vacated and the indictment dismissed because the government delayed the trial for over twenty-two months, thus denying their right to a speedy trial. In support of this contention they cite Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), wherein the Supreme Court set out certain factors to be used in determining the merit of an appeal based on the right to a speedy trial. The factors are length of the delay, reasons for the delay, assertion of the right, and prejudice to the defendant. The delay in the present case was twenty-two months. “ [Bjecause of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Barker v. Wingo, supra at 530-531, 92 S.Ct. at 2192. In Barker a delay of five years was found tolerable under the circumstances of that case. A twenty-nine month delay was not a denial of the right to a speedy trial in United States v. DeLeo, 422 F.2d 487 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). The length of the delay is not the determinative factor in this case. The government points out that the only reason for the delay in this case was the crowded court docket. The prosecutor did not ask for or receive any delays. We recognize the government’s ultimate responsibility in bringing defendants to trial, but in light of the circumstances we find that the delay was not caused by the government and was not prejudicial in this case. Although a defendant does not waive his right to a speedy trial by his failure to assert it, the lack of prior assertion is a factor in determining whether he is entitled to the relief available when a violation is discovered. “[Fjailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193. In the case before us neither Reynolds nor Brown asserted this right until after the convictions were obtained. In fact, the issue first appeared on August 8, 1973, in a pro se brief filed by defendant Reynolds nine months after sentence was pronounced, and three months after his attorney filed his appeal brief. This hardly indicates that defendants found the delay a hardship, and in view of the above facts we are reluctant to find one here. The critical factor is prejudice to the defendant. If a defendant is exposed to excessive pretrial incarceration, caused great anxiety or concern, or for any other reason or in any way is impaired in the preparation of his defense, the resulting prejudice gives rise to a violation of his rights. Here, however, neither defendant was incarcerated on the charges involved in this case, and if either was caused ánxiety or concern it is not reflected in the record. Further, neither defendant makes a serious argument that his defense was impaired by the delay. Defendants offered no evidence at trial, and the government’s case, based almost exclusively on the testimony of federal agents, was very strong. It is clear that defendants were not prejudiced by the delay. We conclude, in light of the above analysis, that defendants were not denied their right to speedy trial in this case. Reynolds’ main complaint is that the trial judge communicated with the jury outside the presence of defendant or his counsel. The record reveals that during jury deliberations the foreman asked the bailiff if the jury could have the height of defendant Reynolds. The bailiff relayed this inquiry to the judge’s secretary who in turn repeated it to the judge. The judge, using the same communication system in reverse order, informed the jury it could have no additional information. Rule 43, Fed.R.Crim.P., explicitly states that “The defendant shall be present ... at every stage of the trial . . . . ” The cases hold that it is error for the court to instruct or communicate with the jury in the absence of counsel and without notice to them. Ah Fook Chang v. United States, 91 F.2d 805, 810 (9th Cir. 1937); United States v. Marken, 457 F.2d 186, 188 (9th Cir. 1972). The rule requiring that a defendant be present at all stages of the trial must be considered together with Rule 52(a), Fed.R.Crim.P., which provides that harmless error is to be disregarded. United States v. Gradsky, 434 F.2d 880 (5th Cir. 1970); Yates v. United States, 418 F.2d 1228 (6th Cir. 1969). Thus, a forbidden communication does not constitute reversible error in every case. “The standard by which to determine whether reversible error occurred . . . is . whether there is ‘any reasonable possibility of prejudice.’ ” Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046, 1050 (1971). In the present case the judge told the jury it could have no further information. This communication did not create a reasonable possibility of prejudice. Reynolds also asserts that the District Court erred in denying his motion for new trial because the government failed to prove that the sales of heroin, as alleged in counts two and three, occurred without a written order blank issued for that purpose by the Secretary of the Treasury. Similar arguments were rejected in United States v. Peterson, 424 F.2d 1357 (7th Cir. 1970); United States v. Hooks, 359 F.2d 584 (3rd Cir. 1966); and United States v. Palmiotto, 347 F.2d 223 (2d Cir. 1965). We likewise reject this argument. A number of contentions are raised with respect to statements made by the prosecuting attorney during the trial and a claim is made that the remarks were prejudicial. While some of the remarks made by the prosecutor were unwise, none rises to the level of prejudice sufficient to require reversal. Viewed as a whole the record shows that defendant Reynolds received a fair trial. For the reasons stated herein, the judgment of conviction is reversed as to Brown, and the cause remanded for further proceedings consistent herewith. The judgment is affirmed as to Reynolds.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.

YOUNG v. TERRITORY OF HAWAII. No. 11144. Circuit Court of Appeals, Ninth Circuit. March 5, 1947. Rehearing Denied April 19, 1947. Writ of Certiorari Denied June 16,1947. See 67 S.Ct. 1736. DENMAN, Circuit Judge, dissenting. Fred Patterson and E. J. Botts, both of Honolulu, T. H., and Herbert Chamberlin, of San Francisco, Cal., for appellant. W. Z. Fairbanks, Public Prosecutor, City and County of Honolulu, Honolulu, T. H., for appellee. Before DENMAN, HEALY, and ORR, Circuit Judges, HEALY, Circuit Judge. Appellant was convicted of the crime of abortion, defined by a statute of the Territory of Llawaii, and was given a prison sentence. The appeal is from a judgment of the territorial supreme court affirming the conviction. Territory v. Young, 37 Haw. 150. We are obliged at the outset to determine whether we have jurisdiction in the premises. Section 128(a) of the Judicial Code, 28 U. S.C.A. § 225(a), as amended.; provides: “The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions— * * * Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the value in controversy, exclusive of interests and costs, exceeds $5,000, and in all habeas corpus proceedings.” The jurisdictional claim is that in consequence of an error in charging the jury appellant was denied due process of law in contravention of the Fifth Amendment. The deprival of due process is said to reside in the italicized portion of the following instruction pertaining to reasonable doubt: “I further instruct you that the burden of proof is upon the Territory and the law presumes the defendant to be innocent, and this presumption continues and attends him at every stage of the case until it has been overcome by evidence which proves him guilty to your satisfaction and beyond a reasonable doubt. And in this conneetion, I instruct you that the doubt which will entitle the defendant to an acquittal must be a reasonable doubt, not a conjured-up doubt, such a doubt as you might conjure up to acquit a friend, but a doubt that you could give a reason for. “A reasonable doubt is not a slight doubt, not a probable doubt, not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute • certainty of the guilt of the accused, because everything relating to human affairs and depending upon mortal evidence is open to conjectural or imaginary doubt, and because absolute certainty is not required by law. The real question,is whether after hearing the evidence and from the evidence you have or have not an abiding belief, amounting to a moral certainty that the defendant is guilty and if you have such belief so formed, it is your duty to convict and if you have not such belief so formed it is your duty to acquit” [Emphasis supplied.] Instructions essaying to define reasonable doubt in terms “of a doubt that you could give a reason for,” or in language of like import, have been criticized or condemned in some cases and defended in others. This court in Owens v. United States, 9 Cir., 130 F. 279, 283, disapproved of a similarly worded instruction, but later we held that an identical definition of reasonable doubt, when considered with the whole body of instructions given, was not reversible error, Louie Ding v. United States, 9 Cir., 246 F. 80. In upholding the instruction in. the present case the territorial court said that “from long-continued use and uniform approval by this court when before it for review, it has assumed the dignity of a stock instruction.” Earlier approving decisions of the court, reaching as far back as 1889 and continuing through the years, are cited, including in the number several capital cases; and the court concludes that “measured by the purpose sought to be attained the instruction complained of is, as .a whole, as good as can be devised to convey to the lay mind the ordinary accepted definition of reasonable doubt.” 37 Haw. 154, 155. So far, then, as concerns the instruction under attack, appellant’s trial appears to have been conducted in conformity with the settled course of judicial proceedings in the territory as established by its laws and the decisions of its courts. While perhaps subject to criticism as affording leeway for misunderstanding, the instruction does no violence to our basic concepts of liberty and justice. Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492. The due process clause of the Fourteenth Amendment “leaves the states free to enforce their criminal laws under such statutory provisions and common law doctrines as they deem appropriate; and does not permit a party to bring to the test of a decision in this court every ruling made in the course of a trial in the state court,” Buchalter v. New York supra, 319 U.S. pp. 429, 430, 63 S.Ct. 1130, 1131. And the same holds good of the Fifth Amendment in respect of the administration of the criminal laws of the Territory of Hawaii. Fukunaga v. Territory of Hawaii, 9 Cir., 33 F.2d 396, 397; Kimbrel v. Territory, 9 Cir., 41 F.2d 740. Consult further Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Davis v. Texas, 139 U.S. 651, 11 S.Ct. 675, 35 L.Ed. 300; Howard v. Fleming, 191 U.S. 126, 137, 24 S.Ct. 49, 48 L.Ed. 121. It follows that no federal question of substance is presented by the appeal. -On the oral argument here a member of the court questioned the propriety of the phrase “not a probable doubt” as employed in the definition given. We are not disposed to take notice of any point not raised below, but even if it were otherwise we see no vice in this verbiage in the sense of the due process requirement. The whole instruction, this phrase included, was before the supreme court of the territory and had its approval as being in line with long-settled territorial practice. Appeal dismissed. CoffStfit auiirOWties cited by tbe court oelow, Territory v. Young, 37 Haw. 150.

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

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

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

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

SEVEN-UP BOTTLING COMPANY, OF BOSTON, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 74-1200. United States Court of Appeals, First Circuit. Argued Oct. 8, 1974. Decided Nov. 29, 1974. George H. Foley, Boston, Mass., with whom Hale & Dorr, Boston, Mass., was on brief, for petitioner. William H. DuRoss, III, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, Irving M. Herman, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for respondent. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. The Seven-Up Bottling Company of Boston petitions this court to review an order of the National Labor Relations Board, and the Board cross applies for enforcement of its order directing the company to cease certain unfair labor practices and to bargain with the New England Joint Board, Retail, Wholesale & Department Store Union, AFL-CIO. The union had filed a representation petition with the Board on October 15, 1973, requesting certification as the bargaining representative of a unit consisting of the company’s distributors. After a hearing the Board’s regional director rejected the company’s contention that the distributors were “independent contractors” rather than “employees” under section 2(3) of the National Labor Relations Act, 29 U.S.C. § 152(3), and directed an election for a unit including the distributors and driver-salesmen. The company’s request for review was denied by the Board, and the union won the Board-ordered election by a vote of 27 to 3. Pursuing the accepted method for challenging before this court the Board’s determination that the distributors are employees, the company refused to bargain with the union. In the ensuing unfair labor practice proceeding, the Board found the company in violation of sections 8(a)(1) and (5) of the Act. It is settled that the Board and courts are to apply general principles of agency law in distinguishing employees from independent contractors. NLRB v. United Ins. Co., 390 U.S. 254, 256, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968). In 1947 Congress passed an amendment to the Act specifically excluding independent contractors from the definition of “employee” so that determinations on this question would be based on ordinary tests of the common law rather than on the Board’s view of policy considerations embodied in the Act. H.R.Rep. No. 245, 80th Cong., 1st Sess., 18 (1947); H.R. Conf.Rep. No. 510, 80th Cong., 1st Sess., 32-33 (1947); 93 Cong.Rec. 6441-42 (June 5, 1947). At common law courts often have had difficulty deciding whether an individual is an employee or independent contractor in cases where a principal would be liable for acts of negligence in the performance of duties only if the acts were committed by an agent who is a servant. The right to control the manner of physical performance of the services — as opposed to control over the results sought — is generally determinative of employee status, although a number of matters of fact must be considered in making that determination. See Restatement of Agency (Second) § 220(1) & (2) (1957), and official comments thereon. In cases of employment of a driver with vehicles, the existence of the right to control has traditionally been the decisive question. See generally W. Seavey, Agency § 84, at 142-43 (1964), and cases cited therein. The Board has consistently applied a similar agency test. See, e. g., News Syndicate Co., 164 N.L.R.B. 422 (1967); Pure Seal Dairy Co., 135 N.L.R.B. 76, 79 (1962); Squirt-Nesbitt Bottling Corp., 130 N.L.R.B. 24 (1961). In order to determine whether the Board has correctly applied the test here, we shall first consider the facts in the record bearing upon the relationship between the distributors and the company. The company had franchises to produce and sell several varieties of fountain syrup and beverages within an area covering eastern Massachusetts. Prior to 1970 all deliveries of products to retail accounts were made by driver-salesmen on the company payroll and in company trucks. In May, 1970, the company offered these employees an opportunity to become distributors under an oral arrangement which could be terminated at will by the company or distributor. Under the arrangement a distributor is assigned an exclusive territory, or route, by the company. The company may alter, and has altered, the size of a route. A distributor may lose an account on his route if the customer will not buy from him. The distributors are charged for products loaded on their trucks at the company’s plant, and their profits derive from the difference between the price received from customers and the price paid to the company and other expenses. The company pays no salary, unemployment insurance, Social Security, or Workmen’s Compensation insurance, and takes no tax deductions, on behalf of the distributors. The annual earnings of distributors range from $27,000 to $13,000, while driver-salesmen employed by the company and trained to become distributors receive about $7000 in wages and $2000 in benefits annually. On cash accounts the distributors are responsible for their own collections; but when the customer is a large independent or chain store with a central billing office, the company bills the customer directly through a charge account and assumes credit risks, and the distributor receives a credit towards his purchases. The company maintains a list of suggested prices to charge retailers, but the distributors need not follow the list price although in practice they almost always do. The company states the wholesale price and a suggested retail price on its standard sales receipts which are given by distributors to customers. At the time of the regional director’s decision, twenty-one of the distributors had purchased their trucks directly or indirectly from the company, and the other three used trucks leased from the company. About half the purchases were financed through a bank of which the company president is an officer. The bank has an agreement from the company to buy the truck of any distributor who defaults on payments. The distributors pay all expenses for operation, maintenance, and garaging of their trucks, which are registered and insured in the distributors’ names. The company at its own expense paints the trucks in the same color and style, and the trucks bear emblems of Seven-Up or of the company’s other brands of beverage. The distributors hire and pay for helpers when necessary, but in practice the distributors use only one truck. The distributors may not sell products in competition with those of the company. The company, in cooperation with the franchising parents, pays for advertising carried on the trucks and for other promotional material. The company does not require the wearing of uniforms, but suggests it. The distributors do buy and usually wear uniforms, which include an insignia provided by the company. Three company sales counsellors assist the distributors in promotions and displays, and company merchandisers visit customers’ stores and occasionally accompany the distributors in their trucks. New driver-salesmen and newly hired distributors who were not driver-salesmen previously are introduced to customers on their routes by the counsellors and merchandisers, who also show the new drivers how to put out racks, stock shelves, and call on special accounts. The company sets sales quotas for each distributor according to target goals of the parent franchisors. Distributors exceeding their quotas often receive prizes or cash incentives in addition to the increased sales and profits. The company invites distributors to attend periodic company sales meetings, which provide information on improving sales and on incentive programs. One distributor, who had the lowest sales results, was suspended by the company’s director of marketing when he refused to attend the sales meetings. Occasionally the company conducts customer surveys to evaluate the distributors’ performance. There was testimony that company officials had warned one distributor about his attire and had commented to another distributor on the condition of his shelves and displays. The company has a “100 Point Club” for distributors, who can earn points and then prizes for obtaining prime display space in stores, and who can lose points for irregular personal appearance or for an untidy truck. The company provides distributors with a direction book which lists the names and locations of accounts on the route, the products and quantity to be carried, the person to see in a store, and directions to the next stop. In some instances scheduled stops are listed by day and time when demanded by a customer, but distributors are generally free to follow their own schedule and to make deliveries when they wish. A schedule for loading at the company plant was established to avoid waiting time. Applying the right-to-control test after a hearing, the regional director found that the distributors are employees rather than independent contractors. The regional director acknowledged that a number of the facts might be indicative of independent contractor status. These included the distributors’ ownership and maintenance of their own trucks, their hiring of helpers, their extension and assumption of the risks of customer credit, and their absence from the company payroll. However, the regional director stated that these facts alone do not establish independent contractor status and were outweighed by other facts demonstrating the company’s effective control over the distributors’ operations. Among these facts were the company’s control of the size of each distributor’s territory; its assistance in obtaining new accounts and its extension of credit to chain stores and supermarkets; its assistance in customer relations and merchandising; and its incentive program for performance, including the appearance of uniforms and trucks. In addition, the regional board cited the fact that the company can terminate at will the verbal agreement with the distributors, who neither pay for nor have a proprietary interest in their routes. The Board, denying the company’s motion to reopen the representation hearing, accepted the regional director’s finding that the distributors are employees under the Act. Since the Board’s conclusion was an application of law to facts and involved no special agency expertise, the company contends that the standard of review by this court is not whether substantial evidence supports the Board’s ultimate finding but rather whether the Board had “a choice between two fairly conflicting views.” United Insurance, supra, 390 U.S. at 260, 88 S.Ct. at 991, quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We do not read “fairly conflicting views” to mean complete equipoise. Nor do we think the Court in United Insurance intended to establish a different standard from that of “substantial evidence” as articulated in Universal Camera. And under either formulation the mere fact that the reviewing court itself would have taken a different original view of the matter is insufficient for reversal. The Board decision should be set aside only if not supported by substantial evidence when viewed in light of the entire record, including the evidence opposed to the Board’s position. The record amply supports the Board’s conclusion that the company has the right to, and does, control the distributors’ performance of their duties- — not by any formal authority, but by means of suggestions which are adhered to because of the company’s power to grant and revoke distributorships and to alter their value at will. Cf. The Herald Co. v. NLRB, 444 F.2d 430 (2d Cir. 1971). It is significant that none of the distributors — whatever their theoretical freedom to deliver noncompeting products — perform delivery services for anyone but the company. “[D]aily employment in the regular business of the employer” is a factor which has led state courts to find the driver to be a servant — especially if he is employed at will. See W. Seavey, Agency § 84, at 143 & nn. 41-42 (1964), and cases cited therein. It is also significant that the distributors are trained by the company’s supervisory personnel and perform functions that are essential to the company’s normal operations. Moreover, the distributors do business in the company name with company assistance and guidance. Cf. United Insurance, supra, 390 U.S. at 259, 88 S.Ct. 19. The company further argues that the Board order should not be enforced because the Board’s determination of employee status is inconsistent with its prior holdings in Pure Seal Dairy Co., 135 N.L.R.B. 76, 79 (1962), and American Factors Co., 93 N.L.R.B. 447, 448-49 (1952). But while these cases have undeniable similarities, they are distinguishable on their facts. We disagree with the company’s contention that they stand for an approach irreconcilable with the result reached here. The Board in other not dissimilar cases has found drivers to be employees. See e. g., NLRB v. Pepsi Cola Bottling Co. of Mansfield, 455 F.2d 1134 (6th Cir. 1972); Frito-Lay, Inc., 178 N.L.R.B. 611 (1969); Pepsi Cola Bottling Co. of Michigan, 156 N.L.R.B. 80 (1965); Squirt-Nesbitt Bottling Corp., 130 N.L.R.B. 24 (1961). No easy formula or isolated factor is determinative. All the incidents of the relationship must be assessed and weighed in each case. United Insurance, supra, 390 U.S. at 258, 88 S. Ct. 19. We hold that the Board did not err in finding the company’s distributors to be employees under section 2(3) of the Act. Enforcement granted. . “Where the one for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished the relationship is one of employment, while, on the other hand, where control is reserved only as to the result sought, the result is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative.” News Syndicate Co., 164 N.L.R.B. 422, 423 (1967).

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"?

OREGON-WASHINGTON WATER SERVICE CO. v. CITY OF HOQUIAM et al. Circuit Court of Appeals, Ninth Circuit. October 8, 1928. No. 5549. McCamant & Thompson, of Portland, Or., and Theo. B. Bruener, of Aberdeen, Wash., for appellant. W. H. Abel, of Montesano, Wash., and James P. H. Callahan, of Hoquiam, Wash., for appellees. Warren Olney, Jr., A. Crawford Greene, F. F. Thomas, Jr., and Victor E. Kleven, all of San Francisco, Cal. (McCutcheon, Olney, Mannon & Greene, of San Francisco, Cal., of counsel), amici curia. Before RUDEJN, DIETRICH, and HUNT, Circuit Judges. Decree amended and rehear ing denied 29 F.(2d) —. DIETRICH, Circuit Judge. This is an appeal from a decree entered in harmony with an order sustaining defendant’s motion to dismiss the bill of complaint. By the complaint, which was filed June 1, 1928, it is shown that the plaintiff is the owner of a system of waterworks by which water is supplied to the defendant city of Hoquiam, in Chehalis county, Washington. The system was constructed under an ordinance passed by the city April 19, 1898, granting a franchise to one Harry C. Heermans, who, upon accepting its provisions, assigned his rights to the Hoquiam Water Company, a corporation. By the terms of the ordinance, Heer-mans and his grantees were to commence construction not later than May 30, 1898, and complete the system before September 30, 1898, and the complaint alleges that construction “was diligently prosecuted to completion in time and manner as in the ordinance provided.” This we take to be in effect an averment of completion on or about September 30, 1898. Section 28 of the ordinance is as follows: “The town of Hoquiam shall have the right to purchase, anything to the contrary notwithstanding herein, the waterworks system herein provided for, together with all or any of the tools, machinery or property connected thereto or used therewith, and all extensions thereof and additions thereto, or used therewith, and all extensions thereof and additions thereto, fifteen years after the completion of the same, at a price to be agreed upon by said town and the owners thereof; and in case the town and owners thereof cannot agree to a price to be paid therefor, then a price to be fixed by due process of law: Provided, however, that said town shall give the owner or owners or his or her or their agent, at least one year previous to the expiration of said fifteen years’ notice of the desire of the town to purchase the same, and every five years after said fifteen years, said town shall have a like privilege to purchase the same by giving a like notice to said party or parties of at least one year.” Referring to this provision, the Hoquiam city council on April 6, 1927, duly passed an ordinance which, omitting the formal parts, is as follows: ' “(1) That it is the desire of the City of Hoquiam, Washington, a municipal corporation, to purchase the waterworks system of the Hoquiam Water Company, of the city of Hoquiam, Washington, a corporation, together with all or any of the tools, machinery, or property connected thereto or used therewith, and all extensions thereof, and addi-tioois thereto or used therewith, pursuant to the right granted to said city under the provisions of section 28 of Ordinance No. 89 of the ordinances of the said city of Hoquiam. “(2) That the city clerk be and she is hereby directed to forthwith notify in writing, said Hoquiam Water Company, a corporation, as required by said section.” By a state statute (section 9041, Remington’s Comp. Stat.) it is provided that, before a city council can acquire or construct a water system, the question must be submitted to a vote of the electors, and it is alleged that pursuant to an ordinance of March 7,1928, the question of the purchase of plaintiff’s system was duly submitted to a vote of the electora and that at such election held on April 7, 1928, a large majority of the electors voted for the purchase. It is further averred that on June 28,1927, after notice to it of the passage of the ordinance of April 6, 1927, the Hoquiam Water Company conveyed the entire system to the plaintiff, a Delaware corporation, that “plaintiff offered to sell” the system to the city at “a stated price,” which offer the city officers declined to accept, and that, so it is alleged, “plaintiff and said city are unable to agree upon the price to be paid for said water system.” In substance the prayer is that the court fix a price to be paid and require the city to pay it and take over the system. Without deciding whether by the proceedings referred to the city has become unconditionally bound to purchase the system, we are clearly of the opinion that the decree of dismissal was right. The option of the city provided by the franchise ordinance was to purchase the system at the end of 15 years “after the completion of the same,” or at the end of any subsequent 5-year period. The 5-year period now material would not expire until the 30th of Septembér, 1928. This suit was commenced June 1, 1928, and the decree of dismissal appealed from was entered July 9, 1928. In the most favorable view to appellants, the ordinance of April 6, 1927, constituted an election to purchase pursuant to the terms of the original ordinance; that is, on September 30, 1928, and not before. The notice of desire or intention to purchase did not accelerate the date of either plaintiff’s obligation to sell or the city’s obligation to buy. It is Immaterial that the provision for notice may have been intended primarily for plaintiff’s benefit. Under its theory the ordinance option was a continuing offer, conditioned on the giving of the specified notice, to sell at a stated time, and the giving of the notice operated as an acceptance of the offer. The terms of the contract thus became definitely fixed and could not be changed at the, will of either party alone in respect of date any more than in any other material particular.' Good reasons readily suggest themselves why the city might not desire to consummate the purchase or to take over the system until the expiration of the full period of 30 years, from the time it was finished; but we need not indulge in speculation on that subject, for, without assigning reasons, it had the right to stand on the terms of its contract. We are disinclined to look with favor upon plaintiff’s suggestion that, though the suit was prematurely brought, the lower court should have held it for appropriate proceedings to be taken upon the maturity of the city’s obligation. Aside from the question of time, the bill fails to disclose plaintiff’s right or need to appeal to a court of equity for assistance. There is no showing that the city had declined or was unwilling to purchase at the stipulated time or for a price to be fixed in the manner prescribed by the alleged contract. Under the terms of the ordinance “due process of law” was to be invoked to fix the price only in case the parties could not agree. Neither -party can resort to the courts until, without success, it has in good faith used reasonable efforts to agree upon a fair price. As is well known, litigation for such a purpose is extremely expensive and neither party should have that burden imposed until the necessity for such procedure becomes apparent. The only averments directly or remotely bearing upon that subject are those above quoted. Plaintiff, offered to sell the system at a “stated price.” What the stated price was, it does not disclose, nor does it allege that it was a fair price. Neither are we informed when, under that offer, the transaction would have to be consummated and the money paid, or why the offer, whatever it may have been, was rejected by the city. To be sure, it is alleged generally that the parties “are tunable to agree upon the price,” but in the absence of specific averments of what efforts, if any, were in gqod faith made, such an allegation must be regarded as a mere conclusion and ineffective for any purpose. It is to be borne in mind that plaintiff is not only appealing to a court of equity, but for relief of an extraordinary character. Before proceeding, the court should be advised specifically of the necessity; this for its own protection, and that defendant may not without cause be subjected to a heavy burden of expense. Moreover, if it be assumed that the price named by plaintiff was in fact fair, and that otherwise the offer was not out of harmony with the contract, defendant was not hound to accept it forthwith. After concluding to purchase the system and the passage of the ordinance declaring its desire so to do, it had the right to make a detailed investigation during the period elapsing between the date of such election and the date the purchase was to be made, for the purpose of determining what would be a fair price. Such a determination, if intelligently made, requires the services of specially qualified appraisers and involves time. The city charges that plaintiff’s precipitate Jiaste in bringing this suit was for the purpose of forestalling an appropriate action in eminent domain. While its motives may not be highly material, if, as is asserted, there is provision made by the state statutes for a proceeding of that character, in such ease, it may be a serious question whether plaintiff can be admitted to a court of equity, unless and until the city declines or fails seasonably to take the requisite steps for condemnation. Federal courts of equity do not exercise jurisdiction to render relief where there is a plain, adequate, and complete remedy at law. R. S. U. S. § 723; 28 USCA § 384. The judgment is affirmed.

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

BOE et al. v. MARVEL EQUIPMENT CO. et al. (Circuit Court of Appeals, Sixth Circuit. March 6, 1925.) No. 4201. 1. Patents <Ss=>328 — Reissue 15,427, claims 5, 7, 8, and 9, for attachment for drawing lubricant out of tanks, held not infringed. Boe reissue, No. 15,427, claims 5, 7, 8, and 9, for attachment for drawing lubricant out of tanks and discharging it through nozzle into a bearing, differential, or other device, held not infringed. 2. Patents <§=»! 65 — Claims covering combination of tank and pump held not to include pump mounted on cover of tank. Claims of original and reissue patent, which distinguished between walls and cover of tank, and specifically covered combination of tank and pump arranged outside walls and adjacent thereto, did not include arrangement of pump mounted on cover. Appeal from tho District Court of the United States for tho Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Patent infringement suit by Hans M. Boe and another against the Marvel Equipment Company and another. Decree for defendants, and plaintiffs appeal. Affirmed. John E. Oberlin, of Cleveland, Ohio (Pay, Oberlin & Pay and John P. Oberlin, all of Cleveland, Ohio, on the brief), for appellants. Percy II. Moore, of Washington, D. C. (Percy H. Moore, of Washington, D. C., on the brief), for appellees. Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges. • DONAHUE, Circuit Judge. This appeal involves the question of the validity, and if valid the infringement, of claims 5, 7, 8, and 9 of United States reissue letters patent No. 15,427, to Hans M. Boe. The object of the claimed invention is to provide an attachment for a grease or oil tank or container by means of which lubricants can ho drawn, out of a tank and discharged through a suitable nozzle into a bearing, differential, or any other device where the lubricating material is needed. The record also presents the further question of intervening rights acquired by the appellees prior to tho date of the application for the reissued patent. The District Court found noninfringement and dismissed the bill of complaint. The essential facts in this case are not seriously disputed. The original patent No. 1,-369,517, issued to Boe, February 22, 1921, upon application filed March 12, 1919, differs from the reissued patent in that the claims in suit have been added to the reissued patent. In the original patent the claims were limited to a combination including a hollow guide forming a vertical con-1 tinuation of the pump barrel and having its upper end rigidly mounted in the top or cover of the oil or grease container and on one side of which is provided, for that purpose, a projecting bracket having a vertical socket. This hollow guide projecting vertically above the pump barrel is also intended as a convenient handle for moving the tank from place to place. The purpose of tho reissued patent was to broaden by additional claims the scope of the patent by removing the limitation that the tubular or hollow guide must have “either a hearing at its upper end on the tank,” or “that its upper end must he rigidly mounted in the top of said tank,” or “secure in tho cover of said tank,” so that the Boe pump attachment, instead of having the special tank as illustrated in the patent in suit, might be attached to the metal drums or containers in whieh the oil companies regularly supply these products to the trade. This would include the placing of this pump on what is called in the patent, the “top or cover” part of the container, instead of on its side wall and adjacent thereto. It is claimed on behalf of the appellants that this adaptation of the Boe pump to these commercial containers comes clearly within the description and the claims of the patent. Evidence was introduced on tho part of the defendant tending to prove that the Cuyahoga Parts Company, later the Marvel Equipment Company, early in 1920, commenced the manufacture of a pump designed by Bellar and Spaeth; that on October 17, 1920, patent No. 1,432,658, covering this structure, was issued to Charles A. Bellar on application filed August 6, 1920; that defendant continued to manufacture and is still manufacturing this pump, which is now claimed to be an infringement of the additional claims of the reissued patent; that the defendant’s business in the manufacture of these pumps in accordance with the Bellar design and patent developed very rapidly; that early in 1921 they sold a great many of these pumps to the-Tidewater Oil Company; that in September of 1921, Mr. Hess, representing the Tidewater -Oil Company, proposed to the Marvel Company certain methods by which it coulá cheapen, its product and materially lower the cost of production, but the Marvel Company declined to accept these suggestions; that Hess then, took the .matter up with the Tpkheim Oil Tank & Pump Company, which company used the design of the Bellar patent then being manufactured by the Marvel Company as the basis of the Hess idea and incorporated therein the elements of cheapness suggested by Hess, representing the Tidewater Company, to the defendant; that thereafter the Tokheim Oil Company manufactured these jiumps for the Tidewater Com'pany according to the design and plan submitted by Mr. Hess. It further appears from evidence introduced by the plaintiff that shortly thereafter the Tokheim Company was advised by its solicitor that it was infringing the original Boe patent, and thereupon that company obtained from Boe an exclusive license, except limited shop rights reserved by Boe, to manufacture pumps under his original patents;. that shortly thereafter the Tokheim Company discovered it was not infringing the original claims of the Boe patent and then procured Boe to file his application for the reissued patent, which it is now claimed so broadened the patent as to bring the Tokheim structure and the defendant’s structure within the additional claims of the patent in suit. With this contention we cannot agree. Both patents cover a combination of parts that are old in the art. The claim is made on behalf of,the plaintiffs that it is the arrangement or combination of the elements of the Boe pump, “coupled with a particular feature of construction characterizing the latter and peculiarly adapting the same for use in such arrangement, that constitutes the invention of the patent;” It is further claimed that “the particular feature in question is the inclusion, as a part of the pump structure, of a hollow upward extension that serves as an inelosure and guide for the reciprocable plunger rod of the pump and at the same time serves as a convenient handle.” Both the original and the reissued patent contemplate a special tank container having a leg and two castor suppdrts on which the tank is moved from place to place. In such a combination, the convenient handle afforded by the hollow upward extension that serves as an inelosure and guide for the piston rod might have some novelty and utility, in moving the specially constructed tank of the Boe patent from place to place as therein claimed; but the evidence is practically conclusive- that when the Boe pump is attached to the top or cover of a stationary commercial tank, it has neither. So far as utility is concerned, the “convenient handle” cannot 'be utilized for the purpose of moving the tank from place to place as specified in the patent. The evidence of Boe that, where the pump is used on top of the container, the handle becomes almost indispensable because the operator needs that as a hand grip in operating the pump to steady himself, is evidently an afterthought and clearly inconsistent and in conflict with other evidence in this record in reference to the practicable operation of a pump of this character by one man who, in so far as shown by the specifications and the drawings of the patent in suit, must use one hand to operate the tank and the other to hold and guide the nozzle or, if a stationary, nozzle is provided, then' to hold the receiving vessel. In so far as any broad novelty of this upward extension of the Boe pump is concerned, it is clearly anticipated by Haines 858,-919. It is said, however, that Haines does not utilize this- inelosure as a guide; neither does the defendant. It is further said that the Haines tubular extension cannot possibly serve as a hand grip because it is not intended or designed to be arranged outside the walls of a tank and adjacent thereto, and that the size of the pump and of the tubular extension precludes any use being made of the latter as a hand grip. No reason appears, however, why the Haines pump cannot be mounted upon the container, and certainly a Haines pump may be manufactured under the protection of the Haines patent of any size desired to accomplish the use for .which- it is intended. While it is clear that Haines did not contemplate the use of this tubular extension by the operator as a hand grip by which to steady himself in the operation of the pump, it is equally clear that Boe did not contemplate any such uso and if Haines, in a pump of the proper size for this purpose, affords such utility, Boe is in no position to claim priority. Some objection is made in reference to the Haines pump offered in evidence and which was secured only six months prior to the trial. We do not consider this exhibit as at all important. Our conclusion is based entirely upon the Haines patent and not upon the exhibit. In the application for the original, and in the application for the reissued patent, the sides of the tank or container are designated as the wall, and the top part, the cover. The claims in suit are for the combination of a tank adapted to contain a lubricant and a pump arranged outside the walls of said tank and adjacent thereto. The inventor having so specifically designated the respective parts of the tank and their relation to other elements in the proposed combination, he cannot now consistently claim that such a specific description and arrangement of a pump outside the walls of the tank and adjacent thereto includes an arrangement of a pump mounted on the cover of the tank and not adjacent to the wall. The claim that the top of the tank is also a wall of the tank would he rather a strained construction under any circumstances; but, when the inventor himself has so specifically distinguished between walls and cover, such construction is not possible. Arnold-Craeger Co. v. Barkwill Brick Co. et al., 249 F. 441, 445, 158 C. C. A. 505; D’Arcy Spring Co. et al. v. Marshall Ventilated Mattress Co., 259 F. 236, 240, 170 C. C. A. 304. For the reasons stated, this court is of the opinion that the appellees’ structure does not infringe the claims in suit. It is therefore unnecessary to determine the legality of the reissued patent or whether these additional elaims, limited to the specifications and drawings of the patent, are valid. It is also unnecessary to discuss or determine the question of intervening rights. The decree of the District Court is affirmed. The Tokheim Oil Tank & Pump Company is the licensee of Boe, and at the time this suit was brought the Republic Steel Company was the selling agent ior the Marvel Equipment Company, but is no longer acting in that capacity.

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

Arthur SPARROW, Plaintiff-Appellant, v. YELLOW CAB CO., Defendant-Appellee. No. 12626. United States Court of Appeals Seventh Circuit. Dec. 23, 1959. Rehearing Denied Jan. 20, 1960. Junie L. Sinson, John W. Damisch, Chicago, Ill., for plaintiff-appellant, Jurco, Zahour & Damisch, Chicago, Ill., of counsel. Julius Jesmer, Gerald M. Chapman, Chicago, Ill., for appellee. Before HASTINGS, Chief Judge, ENOCH, Circuit Judge, and PLATT, District Judge. HASTINGS, Chief Judge. Arthur Sparrow, plaintiff-appellant (plaintiff), brought this diversity action in the district court to recover damages for personal injuries he claims to have suffered arising out of the alleged negligence of Yellow Cab Co., defendant-ap-pellee (defendant), in the operation of its taxicab by its driver Andrews. Following a trial by jury, a verdict was returned for plaintiff in the amount of $71,000. Subsequently, defendant filed its motion for judgment notwithstanding the verdict or in the alternative for a new trial. The trial court vacated and set aside the jury’s verdict and entered judgment favorable to defendant. Thereafter, the trial court denied plaintiff’s motion to set aside the judgment n. o. v. and for a new trial, and further ordered that defendant’s motion for new trial be granted in the event of reversal on appeal. It is from the denial of this motion that plaintiff has appealed. Plaintiff, on appeal, has stated that the two contested issues to be considered are as follows: “I. Whether or not a judgment notwithstanding the verdict can be entered in a civil action where the evidence viewed most favorably toward the successful party below would not have allowed the directing of a verdict against said party prior to the jury’s verdict,” and “II. Whether or not, irrespective of the overwhelming evidence presented to the jury in behalf of a party who obtained a jury verdict in his favor, the trial court can enter a judgment notwithstanding the verdict against said party due to the party’s admission of perjury in a subsequent criminal action resulting from statements made by the party in his original civil action.” We shall first consider that part of the record, giving rise to the second contested issue relating to plaintiff’s admitted perjury. The accident in question occurred on July 20, 1955, resulting from a collision between defendant’s cab and plaintiff’s parked car in which he was seated at the time. Plaintiff testified that he sustained, inter alia, severe back injuries, and that, prior to the accident, he was in good health and had had no previous trouble with his back. However, plaintiff’s former wife, now divorced, testified that on a number of earlier occasions he had severely injured his back and through the years continued to complain about pain in his back. Her testimony was that he injured his back in 1938 and was absent from work for several weeks; that two years later he slipped on ice and reinjured his back and again was forced to be absent from work; that in 1946 he aggravated his back injury while carrying a stove, resulting in his hospitalization in the Jefferson Barracks Hospital in St. Louis, Missouri, and in the Marine Hospital in Eirkwood, Missouri; and that he was given traction treatment for his back in both of these hospitals. In rebuttal, plaintiff denied the truth of this testimony by his former wife. At the conclusion of this conflicting testimony and before giving the case to jury, the trial court stated that “this matter will be referred to the District Attorney for investigation and action.” The case was then sent to the jury with the resulting verdict for plaintiff on March 27, 1958. The trial court directed the clerk to defer entering judgment pending determination of any criminal prosecution of plaintiff arising out of possible perjury. In April, 1958, plaintiff was indicted by a federal grand jury under 18 U.S.C. A. § 1621 on four counts of perjury, the pertinent part of the fourth count reading as follows: “That on the aforesaid trial [of the instant case] the defendant herein stated under oath in substance that he had been to the doctor on only two occasions prior to July 20, 1955, and these visits were in connection with his discharge from the Service and as a result of a previous auto accident when he knew said statement was not true.” On November 24, 1958, plaintiff entered a plea of guilty to the fourth count of the perjury indictment and was sentenced thereupon to three years probation. The first three counts of the indictment were then dismissed. Plaintiff admits in this appeal that his denial of prior back injuries and resulting hospitalization was perjured testimony. After the jury verdict was returned in favor of plaintiff but prior to his indictment and confession of perjury, defendant, on April 7, 1958, filed its alternative motion for judgment n. o. v. or for a new trial, and on May 2, 1958, pursuant to Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., moved to set aside the verdict, alleging it to be a fraud upon the court. On December 30, 1958, after plaintiff’s perjury conviction, the trial court conducted a hearing on defendant’s two post-verdict motions and the answers filed thereto and set aside the verdict and entered judgment for defendant. This ruling was based on three grounds set out in the order in substance as follows: (1) the jury was “erroneously permitted to guess and speculate” as to the circumstances and occurrences of the alleged negligence of defendant; (2) in assessing damages, the jury was “influenced by the false and perjurious testimony” of plaintiff; and (3) “reasonable men and women could not possibly reach the result represented by the verdict.” On December 31, 1958, plaintiff filed his motion to set aside the foregoing judgment for defendant and for a new trial. On January 6, 1959, in denying this motion and ordering a new trial only in the event of a reversal on appeal, the trial court gave as its four reasons for so ruling: (1) plaintiff committed a fraud on the court; (2) competent medical testimony indicated that plaintiff’s injuries were not caused by the alleged negligence of defendant; (3) the amount of the verdict was grossly excessive; and (4) the evidence was so wanting that to permit the verdict to stand would result in a miscarriage of justice. Plaintiff admits that in the light of his subsequent conviction for perjury it would be improper to permit the jury’s verdict in his favor to stand. However, he contends that the court erred in entering the judgment n. 0. v. and that he should have been granted a new trial. He argues that even without his own testimony there was sufficient evidence in the record to send the case to the jury and further that the perjured testimony related solely to his injuries and the element of damages and not to the question of causal negligence. We revert now to plaintiff’s first contested issue relating to the sufficiency of the evidence with reference to the granting of judgment n. 0. v. It is well-settled that in reviewing a trial court’s ruling on a motion for judgment n. 0. v., the standards are the same as those raised by a motion for a directed verdict, Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147; that we must determine whether the evidence would justify submission of the case to the jury, Lambie v. Tibbits, 7 Cir., 1959, 267 F.2d 902, 903; and that in so doing, we have held that the trial court should deny such a motion “where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions.” Smith v. J. C. Penney Co., 7 Cir., 1958, 261 F.2d 218, 219. See, Hardware Mutual Casualty Company v. Chapman, 7 Cir., 272 F.2d 614. This requires us to look to the evidence in this case in order to determine this issue. In this connection, defendant aptly points out the requirements of Rule 16 (b) of the Rules of this circuit, 28 U.S. C.A., governing the “Contents of Appendices,” in part as follows: “ * * * in all appendices, the evidence may be abstracted or reduced to narrative form. If appellant or petitioner raises a question of the sufficiency of the evidence to support a finding, ruling, order, verdict or judgment, he shall include in the appendix all evidence pertinent thereto.” (Emphasis added.) We have examined plaintiff-appellant’s appendix with reference to the evidence on which he relies for reversal and a new trial. We find it completely wanting in this regard. There is, in effect, virtually no compliance with our Rule 16(b). The transcript of the proceedings in the trial court setting out the testimony of witnesses contains 528 pages. Three witnesses testified concerning the alleged negligence of defendant’s driver, viz.: Andrews, the cab driver; Sparrow, the plaintiff; and Melba Beck, a bystander. The appendix devotes four lines to the- testimony of Andrews, merely stating that he testified he was the driver of defendant’s cab on the day of the accident and that the vehicle in which he was traveling came in contact with plaintiff’s car. Ten lines in the appendix relate to plaintiff’s actions, showing that plaintiff drove to the scene of the accident, parked his car and while there, “felt something jar me in the back, into my car.” Plaintiff saw Beck standing in a doorway approximately two parking meter spaces away. All that the appendix shows as to Beck’s testimony (about 18 lines) is that she saw a Yellow Cab “come around the corner with a dash and strike the parked car of the plaintiff,” heard an argument between the cab driver and plaintiff, and testified that the cab driver in anger “reversed back and struck him again.” The appendix reports her cross-examination in two lines to the effect that the cab was traveling approximately 20 miles an hour at the time of impact. From this reported testimony in the appendix, chiefly conclusions of the briefwriter and surely not a narrative of the collision, we are utterly unable to understand with any reasonable clarity what took place. Certainly the quantitative test is not to be applied in determining the sufficiency of an appendix. Counsel are encouraged to make a reasonable narrative condensation of testimony that will enable a reviewing court to understand the nature and purport of the testimony. The comparisons we have drawn are to supplement our conclusion of the complete inadequacy of the appendix furnished in this appeal. We are not required to resort to the record to find a basis for reversal. Yet, in order to appraise the testimony within the scope of our appellate review, that is what we would have to do here. Plaintiff, an admitted perjurer, seeks a new trial at our hands in order that he may have a second chance to tell the truth. Under such circumstances we feel no compulsion to search the record for him in order to give him this relief. On the evidence as revealed in the appendix to his brief, we cannot say that the trial court erred in granting defendant’s motion for judgment n. o. v. on the merits of the case. In most instances, because of the importance of questions raised on appeal, we have overlooked this inadequacy and considered the merits. However, we have pointed out that in such cases there could have been an affirmance of the judgment, Interstate Folding Box Co. v. Empire Box Corporation, 7 Cir., 1934, 68 F.2d 500, or a dismissal of the appeal, Vlissidis v. Anadell, 7 Cir., 1959, 262 F.2d 398, 399; Chicago & Eastern Illinois R. Co. v. Southern Ry. Co., 7 Cir., 1958, 261 F.2d 394, 400. See also, National Labor Relations Bd. v. Knight Morley Corp., 6 Cir., 1957, 251 F.2d 753, 760-761; Esso Standard Oil Company v. Secatore’s, Inc., 1 Cir., 1957, 246 F.2d 17, 22-23; and Feener Business Schools, Inc. v. School of Speedwriting, Inc., 1 Cir., 1956, 234 F.2d 1, 3. We hold that, because of the failure of appellant to comply sufficiently with Rule 16(b) of the Rules of this court in the preparation of the appendix to his brief in this appeal, we cannot say that there was sufficient evidence of defendant’s negligence, looking at it in the light most favorable to plaintiff, to warrant sending this case to the jury. In view of this holding, we do not reach the second question of whether plaintiff’s perjury in the trial, per se, was proper justification for the action taken by the trial court; and we express no opinion thereon. Finding no error, the judgment of the district court is Affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "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-Appellant, Appellee, v. 93.970 ACRES OF LAND, MORE OR LESS, SITUATE IN COOK COUNTY, State of ILLINOIS, and Illinois Aircraft Services and Sales Company, Incorporated, Defendant-Appellee, Appellant. Nos. 12191, 12192. United States Court of Appeals Seventh Circuit. July 15, 1958. James L. O’Keefe, George W. Lennon, J. Herzl Segal, Leonard R. Hartenfeld, James F. Ashenden, Jr., Chicago, Ill., for 93.970 Acres of Land, etc. Perry W. Morton, Asst. Atty. Gen., S. Billingsley Hill and Roger P. Marquis, Attys., U. S. Department of Justice, Washington, D. C., Robert Tieken, U. S. Atty., Chicago, Ill., John Peter Lulinski and Luther D. Swanstrom, Asst. U. S. Attys., Chicago, Ill., for the United States. Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges. MAJOR, Circuit Judge. This is a condemnation proceeding instituted by the United States to acquire all outstanding rights, if any, which defendant had in premises in Cook County, Illinois, on which was located an airport, under lease from the government. The lease under which defendant occupied the premises was executed May 2, 1947, with certain modifications made February 9, 1948. The lease granted to lessee (defendant) the option of renewing the lease for a period of five years. This the lessee did. Thus, the lease as renewed extended to May 2, 1957. The lease contained a provision which authorized its revocation by the lessor under certain conditions, subsequently discussed. The government sought to exercise this power of revocation, effective September 27, 1954. Copies of the lease, the amendment thereto and the government’s notice of revocation are attached to and made a part of the complaint. Defendant refused to honor the notice of revocation and vacate the property. On August 10,1954, it sought in the District Court a declaratory judgment that the revocation was ineffective because the government proposed to use the property for purposes other than those described in the lease as a basis for its right to revoke. The defendants in that action refused to waive immunity and moved to dismiss the complaint for lack of jurisdiction. Thereupon, plaintiff in that action withdrew its complaint. The government instituted the instant action October 6, 1954, and was awarded immediate possession of the premises, with certain reservations not here material. The government by its condemnation action sought to acquire “all remaining outstanding right, title and interest, if any” of defendant in the property and to ascertain “just compensation, if any.” Defendant in its answer to the complaint sought just compensation for the remaining term of the lease, that is, for a period of about 2Yz years, or until May 1, 1957. It admitted receiving the notice of revocation but alleged that it was ineffective because it was not made in conformity with the terms of the lease. Defendant’s answer also alleged that in filing a condemnation action, instead of ejectment or a similar action, the government elected “a remedy which is inconsistent with the theory that defendant has no possessory right and therefore implicitly recognizes the existence of a leasehold interest and is precluded as a matter of law from asserting that the lease has been terminated.” The government moved to strike defendant’s answer, and for findings and judgment that defendant was not entitled to possession after September 27, 1954, and was, therefore, entitled to no compensation. The basis for the motion was that the answer set up no valid defense because defendant’s tenancy expired by reason of the revocation, notice of which defendant admittedly received, which effectively terminated its interest on September 27, 1954, and for the further reason that the necessity for taking by the government was not a matter for judicial inquiry. Upon denial of this motion, the government moved for summary judgment of no compensation on the basis that there was no issue of fact concerning the lease and its revocation and that as a matter of law the lease was validly revoked prior to commencement of the action. This motion was also denied. The case was tried before a jury on the issue of compensation. At the inception of the trial the Court ruled that the government could not introduce in evidence or make any reference to the revocation notice, for the reason that it had selected the remedy of condemnation which necessarily acknowledged an outstanding leasehold interest in defendant for the full part of the term remaining, October 6, 1954 to May 1, 1957. Much testimony was offered by each of the parties as to the value of the remaining leasehold interest. It is unnecessary at this point to relate this testimony. It is sufficient to note that the witnesses for the government, based on its interpretation of the lease, testified that the interest sought to be taken had no value and as a result the government was entitled to a finding of no compensation. On the other hand, defendant’s witnesses, based on its interpretation of the lease, placed various estimates upon the value of defendant’s remaining interest in the lease. At the conclusion of the 'evidence, the government’s motion for a directed verdict of no compensation was denied. Consistent with this ruling and also with that made at the inception of the trial, the Court denied the government’s request for the submission to the jury of a form of verdict which would have permitted a possible finding of no compensation. The jury returned a verdict in the amount of $25,000, and on April 16, 1957, judgment was entered in said amount in favor of defendant. After a consideration and disposal of various motions the Court, on July 9, 1957, filed findings of fact and conclusions of law wherein it found and concluded that defendant was entitled to an additur of $50,000 (making a total base award of $75,000), with interest at 5% from October 6, 1954, the date of taking. On the same date the Court entered what it labeled an “amended judgment,” in which it was recited that defendant was entitled to an award of $85,375.02. It is evident that this judgment included $50,000, the amount allowed as additur; $25,000, the amount awarded by the jury, and $10,375.02, interest on the sum of $75,000 from the date of taking. The government has appealed from the so-called amended judgment of July 9, 1957. No mention is made in its notice of appeal of the judgment entered April 16, 1957 (the first judgment). Defendant cross-appealed from the so-called amended judgment of July 9, 1957 (the second judgment) in its favor, on the ground that the Court erred in failing to increase the award to the lowest level of value established by uncontradicted testimony. This so-called uncontradicted testimony refers to that offered by defendant upon its theory of the case, which was that embraced by the trial Court. We are met at the inception with the important and troublesome contention advanced by defendant that the government, having appealed only from the so-called amended judgment of July 9, 1957, is precluded from here raising any issue other than that relative to the allowance of an additur. More specifically, it is contended that the government by its failure to appeal from the judgment of April 16, 1957, is without right to a review of the issues both of law and fact which Tvere raised and decided in the trial which resulted in that judgment. The importance of this contention is at once apparent because, if sustained, it is decisive of all issues other than that which relates to the Court’s allowance of the additur. We have, therefore, up to this point stated only such of the proceedings as we deem essential to bring into focus the instant question. It is hardly open to doubt but that the first judgment standing alone was final and, therefore, appealable. It is equally certain that the Court, either on its own volition or at the instigation of the parties, possessed the authority within an appropriate time to vacate, modify or amend that judgment. We also think that in determining the question of the finality of the first judgment it should not be confined in a vacuum, separate and apart from the proceedings which followed. On April 22, 1957, the government filed its motion to vacate the April 16 judgment and prayed that a judgment of no compensation be entered for plaintiff, notwithstanding the jury verdict. On April 24, 1957 (eight days after the entry of the judgment), defendant filed its motion calling attention to the fact that the judgment did not include interest, and prayed “that the judgment heretofore entered herein be altered or amended” to include interest. On the same date, defendant filed its motion for additur or, in the alternative, for a new trial. In this motion defendant prayed “that the Court substantially increase the jury’s verdict by an additur and enter an amended judgment for the amount of such increased award” or, in the alternative, grant defendant a new trial. Thus, in two respects defendant sought to amend the judgment: first, by the addition of interest and, second, by the allowance of an additur. That the defendant succeeded in both respects is evidenced by the fact that the second judgment included interest and the allowance of an additur. The second judgment also specifically included $25,000, the amount of the jury award, which had been incorporated in the first judgment. It is not discernible how it can be logically held that there are now two final judgments (defendant’s contention requires such a holding). It is certain that defendant would not be entitled to a satisfaction of both judgments. Satisfaction of the second would ipso facto satisfy the first. Conversely, satisfaction of the first would entitle the government to a pro tanto credit on the second. In our view, the first judgment was merged in and became a part of the second. By such merger the first judgment was obliterated as effectively as if it had been expressly vacated by the Court. It is evident that the parties as well as the Court intended such result. Moreover, the result was accomplished at the behest of defendant which, as shown, was urging the Court to enter an “amended judgment,” not another judgment separate and distinct from the first. Defendant in its brief asserts that its contention on this issue is “completely supported” by the following cases: Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245; Durkin v. Mason & Dixon Lines, Inc., 6 Cir., 202 F.2d 425, and Delta Drilling Co. v. Arnett, 6 Cir., 186 F.2d 481. In our view, these cases furnish feeble, if any, support for defendant’s contention. It is pertinent to note that none involved a condemnation proceeding. In the Honeywell case there was involved a cease and desist order issued by the Federal Trade Commission, and the question before the Court was whether the petition for certiorari had been filed in the time designated by statute. A solution of this question required a determination as to when the statutory period commenced to run, that is, from an order of July 5, 1951 or from an order of September 18, 1951 (orders of this Court on petition for review). True, the Court held that the first order was final, but upon the basis that it had not been substantially altered by the second order. As the Supreme Court stated concerning the second order (344 U.S. at page 212, 73 S.Ct. at page 249), “It reiterated, without change, everything which had been decided on July 5.” Relative to the issue of finality, the Court in its discussion stated (344 U.S. at page 212, 73 S.Ct. at page 249): “The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.” The Durkin case involved an action for failure to pay overtime wages. Two periods of time were involved. As to the first, the trial Court dismissed the claim, but allowed recovery as to the second for an amount which was to be determined in accordance with a pre-trial stipulation of the parties. The Court of Appeals held that the order was final because it “settled all the equities between the parties and finally determined their rights.” The Arnett case involved the title to or ownership of certain oil and gas rights, with a prayer for an accounting. Two judgments were entered in the case and the Court of Appeals held that the first judgment was final because it settled the case on the merits. Nothing was added to the second judgment other than the result which flowed from an accounting which had been provided for by the first judgment. It appears settled by the cases that just compensation is a material issue in every condemnation suit and that there can be no finality of judgment until this issue is definitely disposed of. In McCandless v. United States, 298 U.S. 342, 348, 56 S.Ct. 764, 766, 80 L.Ed. 1205, the Court stated: “In an eminent-domain proceeding, the vital issue — and generally the only issue — is that of just compensation.” In Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911, the Court had before it the issue of the finality of a judgment in a condemnation proceeding. In its discussion the Court made the following pertinent statement (324 U.S. at page 233, 65 S.Ct. at page 633): “Hence, ordinarily in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case, and adjudicating all rights, including ownership and just compensation, as well as the right to take the property. This has been the repeated holding of decisions here.” The same rationale was followed in United States v. Richardson, 5 Cir., 204 F.2d 552, 555. We are not able to discern how it can be held that the first judgment, in view of subsequent proceedings, disposed of the whole case or that defendant can consistently contend that it was an award of just compensation for the property right sought to be taken. This is so even though it be thought that such judgment standing alone possessed all the indicia of finality under the rationale of the Supreme Court in Catlin. Its finality, if such it had, at the time of entry was emasculated by subsequent proceedings which culminated in the second judgment from which the appeal is taken. It is, therefore, our view and we so hold that the government by its appeal from the second judgment is entitled to a review of the issues which it here presents. We now come to the contested issues relating to the proceedings in the District Court. As stated in the government’s brief (with no objection on the part of defendant), they are as follows: “1. Whether, in this condemnation proceeding by the United States to reacquire possession and to clear title to property which it had leased to Illinois Aircraft Company, the district court erred in refusing to enter judgment of no compensation on the basis of prior revocation of the lease because it ruled (a) that the use of a condemnation action constituted election of a remedy which admitted an outstanding leasehold interest and (b) that the lease had not been validly revoked under its terms. “2. Whether, on the issue of the value of the remaining term of the leasehold which had to be tried under the foregoing rulings, the court erred (a) in stating before the jury that it would set aside a verdict of no compensation, (b) in receiving evidence of gross and net income from the airport operation or the trailer and barracks housing operation, (c) in receiving piecemeal valuations for the separate operations on the property and (d) in receiving evidence of value based on a construction that the lease was not revocable except ‘for Naval aviation uses’ and that it authorized use of the property for a trailer park and barracks housing not related to the airport function. “3. Whether the court erred in trebling the verdict of the jury by purported additur and in awarding interest on the enlarged award.” Defendant enumerates other contested issues, all of which relate to the additur which the Court included in its second judgment of July 9, 1957. These issues are here by reason of defendant’s cross-appeal. They need not be stated at this point as their relevancy will depend upon our disposition of the issues raised by the government. Prior to the commencement of the trial, the Court ruled that the government could not introduce in evidence or make any reference to the revocation notice (which the government had served on defendant), on the ground that the government had selected the remedy of condemnation, which necessarily acknowledged an outstanding leasehold interest in defendant for the unexpired portion of the lease, that is, from October 6, 1954 to May 1, 1957. In connection with this ruling the Court stated: “The court presumes that the Government knew what it was doing, it had some advantage to gain by filing a proceeding under condemnation rather than following the other procedure, which raised a very highly technical point in controversy which the Government sought to avoid, and properly, in my judgment.” Also, at the beginning of the trial, the Court stated in the presence of the jury: “If they [the jury] found no money at all, counsel, I would be compelled to grant a new trial, and we would be wasting their time, and this should not be submitted to the jury except on the basis of finding a fair value, and no value would be just the kind of a verdict I would have to reverse.” Consistent with this ruling, the Court denied a request by the government for a directed verdict and also a request that there be submitted to the jury a form of verdict to be used in the event the jury found that defendant was entitled to no compensation. The parties devote much effort to the question as to whether the issue of election of remedies in a condemnation suit is to be determined by Federal or State law. In our view, we need not be concerned with this question because the reasoning employed by both the Federal and State courts of Illinois leads to the same result. A more disturbing matter is the dearth of cases in both jurisdictions which have considered the doctrine in condemnation proceedings. We shall first refer to Federal cases other than those in condemnation, where the doctrine has been discussed and applied. In Henderson Tire & Rubber Co. v. Gregory, 8 Cir., 16 F.2d 589, 593, 49 A.L.R. 1503, the Court cites many cases in support of the statement that the doctrine is widely recognized both in Federal and State courts. From the cited cases the Court concluded: “(1) The essential elements of the doctrine are (a) the existence of the two remedies; (b) the inconsistency between the remedies; (c) the choice of one of the remedies.” The doctrine was applied in Intertype Corp. v. Pulver, D.C., 2 F.Supp. 4, 6 (affirmed 5 Cir., 65 F.2d 419). In that case it was held that replevin would not lie because plaintiff had previously sought unsuccessfully to foreclose a chattel mortgage on the same property. In Van Winkle v. Crowell, 146 U.S. 42, 13 S.Ct. 18, 36 L.Ed. 880, it was held that a seller was precluded from maintaining an action of detinue to recover property after attempting, although unsuccessfully, to enforce a lien thereon. In United States v. Oregon Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 67 L.Ed. 261, it was held as to a voidable sale of lands on account of fraud that the plaintiff was entitled to either disaffirm and recover the lands or affirm and recover damages for the fraud, but that it could not do both. After holding that the rule was applicable to the government, the Court stated (260 U.S. at page 295, 43 S.Ct. at page 101): “Any decisive action by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies, and one of the most unequivocal of such determinative acts is the bringing of a suit based upon one or the other of these inconsistent conclusions.” Of the numerous other instances where-the doctrine under consideration has. been recognized in the Federal courts, see Bierce v. Hutchins, 205 U.S. 340, 346, 27 S.Ct. 524, 51 L.Ed. 828; Zimmerman v. Harding, 227 U.S. 489, 33 S. Ct. 387, 389, 57 L.Ed. 608. Now, turning to Illinois cases, we note-those wherein the doctrine has been applied in condemnation proceedings. In. Metropolitan City Railway Co., v. Chicago West Division Railway Co., 87 Ill. 317, at page 322, the Court stated: “Petitioner, after invoking the aid of the law to condemn certain property of defendant, will not be permitted to stultify itself by insisting defendant has no interest in that which it seeks to condemn to its own use under the Eminent Domain act.” In Sanitary District of Chicago v. Pittsburgh, Ft. Wayne and Chicago Ry. Co., 216 Ill. 575, 75 N.E. 248, the Court held that the averments of the petition as to defendants’ interest or title were binding on petitioner but not on the defendants. The Court stated (216 Ill. at page 579, 75 N.E. at page 250) : “If a corporation entitled to exercise the right of eminent domain claims that it already has a right to take land, a petition for condemnation is not the proper proceeding to try that question. It was the duty of the petitioner to ascertain the title to the premises before commencing the proceeding and to name in the petition the owner of the premises, and, if the title was less than a fee simple or subject to an easement it should have been stated in the petition.” In Department of Public Works and Buildings v. Sohm, 315 Ill. 478, 146 N.E, 518, the Court in a condemnation case, on facts similar in many respects to those of the instant case, held that the right of possession was not a proper issue in condemnation but that it should be determined in ejectment. The Court among other things stated (315 Ill. at page 483, 146 N.E. 518, 520) : “The proceeding is special, statutory, and summary, its sole object is to ascertain the compensation to be paid, and the amount is the only issue.” The Court reiterated what it had previously held, that averments in the petition as to title are binding on petitioner and that petition for condemnation is not a proper proceeding to vindicate a right which petitioner otherwise has to take the land. The Federal courts recognize, as do the Illinois courts, that the sole object of condemnation is to ascertain just compensation for that which is taken. Reiterating our previous quotation from McCandless v. United States, 298 U.S. 342, 348, 56 S.Ct. 764, 80 L.Ed. 1205: “In an eminent-domain proceeding, the vital issue — and generally the only issue- — is that of just compensation.” In Danforth v. United States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240, the Court stated: “Condemnation is a means by which the sovereign may find out what any piece of property will cost.” The government argues that claims based on liens or contracts may be settled, and clouds on titles resolved, in condemnation proceedings. This is true no doubt where such claims or rights are incidental to the taking of property, for which just compensation is to be awarded. The government in support of this contention cites Eagle Lake Improvement Co. v. United States, 5 Cir., 160 F.2d 182, and National Refining Co. v. United States, 8 Cir., 160 F.2d 951. Neither case is of any aid to the government. In the Eagle case the question was as to the manner of dividing the compensation award between a fee owner and a lessee. However, the Court made the pertinent observation (160 F. 2d at page 184): “A condemnation proceeding is an action in rem. It is not the taking of rights of designated persons, but the taking of the property itself.” The National Refining case is even more remote. In that case the compensation award was paid by the government into the registry of the Court and the litigation was between rival claimants to the fund. The government asserts that condemning property of which it claims ownership is common practice. In support of the statement it cites United States v. San Geronimo Development Co., Inc., 1 Cir., 154 F.2d 78; Wittmayer v. United States, 9 Cir., 118 F.2d 808, and United States v. 10,245 Acres of Land, D.C., 50 F.Supp. 470. The nebulous support which these cases furnish the government’s assertion is an indication of the weakness of its position. In none was it sought to invoke the doctrine of election of remedies. It is true that in the San Gerónimo case the Court reluctantly approved a petition for condemnation which contained a provision that it was without prejudice to the right of the government to dispute the claim of any party for compensation. The Court did this after characterizing the proceeding (154 F.2d at page 80) as an “unfamiliar hybrid, and the substantive question upon which the decision turns is a special and non-recurring one as to which there are no precedents to indicate the answer.” There is nothing in Wittmayer of any pertinency. In the 10,245 Acres of Land case, the government in connection with the declaration of taking made a deposit of estimated value. It developed, however, that the person who laid claim to the homestead (the premises sought to be condemned) had not perfected his rights and had no interest therein. In the action reported it was held that the government was entitled to a return of its deposit. The case has no bearing here. The government points out what undoubtedly is a fact, that it might have proceeded in ejectment in order to secure possession. From this premise it argues that the defendant has not been hurt by the instant proceeding because if the government had obtained possession in an ejectment action, defendant would have been relegated to the filing of a claim in the Court of Claims, to which the government could have pleaded that it had no interest because of the revocation of the lease. In our view, this argument is beside the issue. We are not concerned with what the rights of the parties might have been had the government proceeded in some other form of action. We are now concerned only with the rights in the condemnation proceeding which the government elected to pursue. Defendant places much reliance upon a decision of this Court, United States v. Chicago, B. & Q. R. Co., 7 Cir., 90 F.2d 161. In that case the government contended that the defendant had failed to establish any interest in a certain portion of the condemned property. The Court, after noting that the action was prosecuted in accordance with the laws of Wisconsin, stated (at page 171): “It is the law of that state that where proceedings are instituted to condemn property, and the petition recites, as it must, title and ownership or interest by the defendant, the condemnor is thereby bound by such expressed recognition of title, and cannot be heard to assert the contrary nor compel one recognized as owner to prove or defend his title.” The Wisconsin rule thus announced and followed by this Court is no different, as previously shown, from that adhered to by the courts of Illinois. In United States v. 11.48 Acres of Land, 5 Cir., 212 F.2d 853, the Court employed similar reasoning and reached the same result. In that case the government condemned the fee simple title and attempted to defeat the payment of just compensation on the contention that the contemplated use would be a mere exercise of the government’s dominant servitude over navigable waters. In short, the government contended that it should not be required to pay just compensation because it had an existing right to use that which it sought to condemn. The eondemnee argued “that the Government has elected to take his riparian rights by eminent domain and that he is therefore entitled to just compensation.” The Court, in sustaining the latter contention, stated (at page 855): “We think that the appellee's alternative contention is sound, and, hence, we do not reach the question of whether the use intended by the Government would be a mere exercise of its servitude over navigable waters. Appellee’s property was always subject to that dominant servitude. Its exercise involved no taking of private property within the meaning of the Fifth Amendment, and necessitated no condemnation proceeding. The United States has elected to take the fee simple, absolute, and indefeasible title to the lands.” The government concedes that it had remedies, other than that of condemnation, by which it might have obtained possession of the property in controversy. This it could have done without the payment of any compensation on its theory that defendant’s interest in the leasehold property had been extinguished by the government's revocation made in conformity with the terms of the lease. Instead, it elected to institute the instant action to condemn defendant’s leasehold interest. It thus, as must be done in all condemnation cases, invoked the jurisdiction of the Court for the purpose of determining just compensation to be awarded for that which it sought to condemn. In reality, that was the sole issue to be tried in the District Court. In our view, the trial Court properly ruled that the government was without right to rely upon its purported revocation of the lease. Such a position was entirely inconsistent with its condemnation complaint. In the same breath, the government proclaimed and denied defendant’s ownership of the leasehold estate. Such an absurd position is not countenanced by law, as we understand it, and neither is it supported by logic, reason or common sense. This brings us to the rulings of the Court as well as the testimony of the respective parties relative to the just compensation to be awarded. This requires some consideration of the terms of the lease, because the extent of defendant’s claim or interest in the leasehold estate is dependent upon such terms. This is forcibly illustrated by the testimony of the witnesses for the respective parties on the issue of just compensation. Witnesses for the government, based upon its interpretation of the lease, testified that defendant’s interest had no value, while defendant’s witnesses, predicated upon its interpretation, testified that defendant’s interest had great value. The lease, as already shown, was executed May 2, 1947, for a term of five years, and was between the Navy Department, on behalf of the United States of America, and defendant. Defendant, •exercising an option contained in the lease, renewed it for an additional five-year term. On April 28, 1954, at the request of the Department of the Army, jurisdiction of the premises was transferred by the Navy Department to the Department of the Army and the lease was formally assigned to it. Defendant was notified of the transfer and tendered rental to the new agency designated. There is no question but that the lease conferred upon the government the power of revocation. The controversy concerns the manner, purpose and by whom such power might be exercised. The government’s theory, rejected by the trial Court, is that it could revoke at any time and apparently for any purpose. On the other hand, defendant contends, and the trial Court held, that the lease was revocable only upon “decision by the Secretary of the Navy that such revocation is essential for aviation purposes.” It is not disputed on either theory but that the lease could be revoked only in the event of a national emergency, that such emergency had been declared by the President on December 16, 1950, and was in existence at the time of the execution of the lease and still is in existence. The heart of the controversy resides in paragraph 14 of the lease, as follows: “It is understood and agreed that this lease will at all times be revocable at will by the Government upon presentation of notice of cancellation to the Lessee, in writing, sixty (60) days prior to such termination, in the event of default with regard to the covenants and conditions of the lease or in event of a national emergency and a decision by the Secretary of ike Navy that such revocation is essential.” The italicized language is that of the government, as shown in its brief, and it is upon that clause that reliance is placed. The last word of the paragraph is “essential,” and the question at once arises, essential for what? It would only unnecessarily add to the length of this opinion, which at best will be too long, to discuss or analyze the lease in detail. We have carefully studied its terms and we agree with the trial Court that tfr.a lease was revocable only upon a decision by the Secretary of Navy that such revocation was essential for aviation purposes. The preamble recited that “Government is the owner in fee simple * * * of the United States Naval Outlying Airfield, Arlington Heights, Illinois,” that “because of its strategic value, it is considered essential that the said airfield and the facilities thereon * * * be retained in a stand-by status for post-war use in connection with Naval Aviation activities,” that “the Lessee desires to lease the airfield and the facilities thereon for use as an airport and for such other uses as may be necessary or incidental to this purpose,” and that such use “will in no wise be detrimental to the present activities of the Navy Department, but is on the contrary deemed to be in the best interest of the Government.” The government argues that this preamble portion of the lease is of little or no consequence in evaluating the agreement of the parties as contained in the granting clauses which followed. This argument, however, overlooks the clause which immediately follows the preamble, “Now Therefore, in consideration of the foregoing, and of the covenants and agreements hereinafter mentioned, the Government * * * acting under the direction of the Secretary of the Navy, does hereby grant, rent, lease and demise unto the Lessee * * We think this language made the preamble a part of the operative portion of the lease. See Wall v. Chicago Park District, 378 Ill. 81, 37 N.E.2d 752. For this and other reasons which we need not enumerate, we think the word “essential” clearly refers to aviation, the purpose for which the field had been employed and that for which the Navy desired its retention. The government calls our attention to the Act of August 29, 1916, 34 U.S.C.A. § 522, which was replaced by the Act of August 5, 1947, 34 U.S.C.A. § 522a, which it is claimed precluded the Secretary of Navy from entering into a lease other than one “revocable at any time.” We have read these provisions and are not convinced that they support the government’s contention. It passes all credulity that Congress would require that a lease be revocable at any time irrespective of the conditions existing or the reasons assigned therefor. More importantly, the record shows that the lease was prepared by the Secretary of Navy or his subordinates, and we think it safe to assume that they were aware of their rights under the law and acted accordingly. In view of the holding of the trial Court, which we have sustained, that the government was precluded from relying upon its notice of revocation, we see no point in discussing it. As we have already said, the revocation provision of the lease is now material only as it bears upon the extent of defendant’s interest in the leasehold property and consequently the compensation to which it was entitled on its taking by the government. We now come to the government’s contention that 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. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.

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

Charles C. MARSHALL, Appellant, v. UNITED STATES of America, Appellee. No. 18047. United States Court of Appeals District of Columbia Circuit. Argued Dec. 12, 1963. Decided June 30, 1964. Mr. Kingdon Gould, Jr., Washington, D. C. (appointed by this court), for appellant. Mr. Stuart R. Poliak, Attorney, Department of Justice, of the bar of the Supreme Court of California, pro hac vice by special leave of court, with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Mr. Robert D. Devlin, Asst. U. S. Atty., also entered an appearance for appellee. Before Edgerton, Senior Circuit Judge, Washington and Danaher, Circuit Judges. EDGERTON, Senior Circuit Judge: As the government says, this case has a long history. Marshall was sentenced July 26, 1963, for a rape charged to have been committed on September 23, 1959. He was arrested October 28, 1959, and indicted November 16, 1959. His third trial, which began July 8, 1963, resulted in the conviction that is here on appeal. The following outline covers the period of some three years and eight months between the indictment and this trial. (1) 75 days, from indictment to February 1, 1960, when the first trial began. Some delay was caused by illness of appellant’s assigned counsel and his need of time to prepare. The jury did not agree on a verdict. (2) 71 days, from the end of the first trial on February 2, 1960, to the second trial on May 12, 1960. During this period there were several continuances: from February 19 to March 22 because new assigned counsel needed time to prepare, to April 26 because a co-defendant’s counsel needed time to prepare, to May 2 because appellant was ill, and to May 12 because a co-defendant’s counsel had another engagement. At the close of the government’s case Marshall pleaded guilty to assault with intent to rape. (3) On November 12, 1960, after he had served six months of his sentence, Marshall moved to vacate his plea of guilty. (4) The motion to vacate was pending 16 months, till March 12, 1962. During all this time appellant was either in prison or in a mental hospital. In January, 1961, he was transferred from Lorton, where he was serving his sentence, to St. Elizabeths for treatment of a mental illness because the Legal Psychiatric Service certified that he was insane. On January 30, 1961 counsel was appointed to represent him on his motion to vacate. On March 13 and again on April 11, 1961, hearing on his motion was continued at his request to allow more time for mental examination. The motion to vacate was heard on February 16 and March 9, 1962. On March 12, 1962 the guilty plea was vacated under 28 U.S.C. § 2255. (5) On or about March 15, 1962 appellant’s third trial was set for July 16, 1962, and he was committed to St. Elizabeths for mental examination, although he had been there for treatment since January 1961. He remained there until June 14, 1962, when he was returned to jail as competent to stand trial. But his third and last trial, resulting in the conviction now here on appeal, was not held until July 8, 1963. During this period of over a year there were the following continuances: (6) 116 days, June 14 to October 8, 1962. Though trial had been set for July 16, on June 12 the trial date was moved back to October 8 “because of the summer schedule and the unavailability of jurors and witnesses.” (7) 38 days, October 8 to November 15, 1962. On October 1, one week before the date set for trial and 45 days after trial counsel was appointed, he asked and was granted leave to withdraw because he had no experience in criminal law. He should not have been appointed in the first place. A capital trial is no place for a lawyer to begin acquiring experience in criminal practice. Trial was set for November 15. Another lawyer was appointed on October 2 and withdrew, for what reason does not appear, within 6 days. A third was appointed October 8, 1962. (8) 67 days, November 15, 1962 to January 21, 1963. On November 15, 38 days after counsel’s appointment, he moved at appellant’s request for more time to prepare. The court continued the trial to January 21, 1963, 67 days later. It does not appear that so long a delay was needed or asked. On December 14, 1962, counsel asked and was granted leave to withdraw because of “serious illness in the family and because he was behind in other office work.” He said he had spent very little time on the case. Five days later the court again appointed new counsel. On January 10, 1963, appellant pro se moved to dismiss the indictment for lack of a speedy trial. (9) 7 days, January 21 to January 28, 1963. The prosecutor was occupied with another case. (10) On January 28, 1963, defense counsel was ill with influenza. Instead of granting a reasonable continuance, such as a week or two, the court continued the case for 42 days, till March 11. (11) 42 days, March 11 to April 22, 1963. On February 13, the government asked for a continuance beyond March 11 because the complaining witness was expecting a child in late March. Trial was set for April 22. As far as appears, it might have been held in February. (12) 21 days, April 22 to May 13, 1963. Government counsel was ill. On April 24, appellant renewed his motion to dismiss the indictment for lack of a speedy trial. (13) 61 days, May 14 to July 8, 1963. On May 14 defense counsel asked leave to withdraw. He said the defendant had become “highly enraged * * * and charged that he believed that I was conspiring with others against him to bring about his conviction.” Counsel also informed the court that a St. Elizabeths doctor “considers Mr. Marshall still very seriously ill”, and questioned his client’s “ability to cooperate * * * in the defense”. Without consulting appellant or informing him that counsel’s withdrawal would cause more months of delay, the court granted counsel’s request, continued the case to July 1, and appointed a fifth lawyer, who withdrew eight days later for no recorded reason. Finally, on July 8, 1963, a sixth lawyer, who told the court he could not put his client on the stand or even communicate effectively with him and that he “blacks out”, tried the case. It had been eontinued from July 1 to July 8 because a new jury list was needed. On May 21, 1963, appellant had made a third motion to dismiss the indictment for lack of a speedy trial. Until July 8, 1960, when he was sentenced after his second trial, appellant was out on bond. From that time until December 4, 1963, he was either in the District of Columbia jail, at Lorton, or at St. Elizabeths. In October, 1962, he asked that bond be set at $1,000 but the District Court set it at $5,000, which he could not meet. On December 4, 1963, he was released pending appeal on bond of $500 by order of this court. If we were “talking English, not law”, it would not be suggested that a man who was tried three years and eight months after indictment had a “speedy” trial. We are to decide whether Marshall had a speedy trial in the technical sense that the law has given to this Sixth Amendment right. We think he did not. On March 12, 1962, when his motion to vacate his former plea of guilty was granted, Marshall had been in St. Elizabeths for treatment more than a year. There was or should have been no occasion to commit him to St. Elizabeths again for a 90-day examination in order to determine whether he was competent to stand trial, because the previous commitment had given the hospital ample opportunity to determine his condition. The three months’ delay (paragraph (5) above) from his new commitment to the hospital on March 15, 1962 to his return from the hospital on June 14, 1962, as competent to stand trial, should not have occurred. Since appellant’s first two trials were short, it should have been foreseen that his third trial, which took only three days, would be short. Since the case was 31 months old in June 1962, the court should then have arranged its calendar so as to avoid postponing the trial until October. Most of the 116-day delay described in paragraph (6) should have been avoided. The 38-day delay described in paragraph (7), from October 8 to November 15, 1962, resulted from the court’s inappropriate assignment of counsel. The court should have avoided, also, much of the 67-day delay described in paragraph (8), most of the 42-day delay described in paragraph (10), and most of the 42-day delay described in paragraph (11). The short delays described in paragraphs (9) and (12) call for no comment except that Marshall did not cause them. In Smith v. United States, 118 U.S.App.D.C.-, 331 F.2d 784, which this court in banc decided February 20, 1964, we held that the speedy trial question turns on whether “the delay has been arbitrary, purposeful, oppressive or vexatious.” (331 F.2d at 787.) By this test Marshall did not have a speedy trial. Though the delay was not purposeful in any meaningful sense, much of it was arbitrary, and in the aggregate it was oppressive and vexatious. We held that Smith was not denied a speedy trial. He was tried five months after indictment. Marshall was tided 43 months after indictment, 32 months after he moved to vacate a plea of guilty, almost 16 months after a trial date was first set, and almost 13 months after he was found competent to stand trial. In Smith, “Alerted by the appellant’s claim of denial of speedy trial * * * the judge then put the case upon a day to» day basis.” 331 F.2d at 788 Marshall moved not once but three times, in January, April, and May, 1963, to dismiss the indictment for lack of a speedy trial. His motions had no apparent effect. If five months’ delay was not arbitrary, oppressive or vexatious in the circumstances of Smith, it by no means follows-that far longer delay was not arbitrary, oppressive or vexatious in the circumstances of this ease. Delay was exceedingly prejudicial to-Marshall. Treatment for mental illness, which he had been undergoing at St. Elizabeths, was interrupted for months, while he waited in jail for his third and final trial. But that is a relatively secondary matter. Delay appears to have been fatal to Marshall’s defense. In 1960, at his first trial, he testified effectively in support of his contention that the prosecutrix consented. In that trial,, the jury did not convict him. In June, 1962, he was found at St. Elizabeths to be competent to stand trial. But in July, 1963, when he was tried once more, according to the undisputed statements of his counsel he could not communicate effectively and was not able to take the stand. This time he was convicted. Because Marshall’s Sixth Amendment right to a speedy trial was denied, the judgment of conviction must be vacated and the indictment dismissed. Reversed, with directions to vacate the-, judgment and dismiss the indictment., . The Court: Is the defendant going to take the stand? Mr. Harris: No, Your Honor. I can’t put him on the stand. I have been really unable to communicate with him. He blacks out. The Court: I wanted to put on the record for him to state that he wanted to take the stand, if he was going to take the stand. I knew you were appointed. Mr. Harris: I am appointed, Your Honor. I doubt that he can take the stand, Your Honor. He has been unable to give me information. The Court: I am not interested as long as he is not going to take the stand. If he were going to take the stand I would like to have it on the record for your protection. Mr. Harris: Thank you, Your Hon- or. 24 D.C.Code § 301 provides: “Whenever * * * prior to the imposition of sentence * * * it shall appear to the court from the court’s own observations, or from prima facie evidence submitted to the court, that the accused * * * is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense, the court may order the accused committed * * * for examination and observation * * Because we are reversing on other grounds, we need not decide whether it was plain error requiring reversal for the court to permit the trial to proceed further without a new investigation of the defendant’s competence. Thirteen months had elapsed since it had been determined that he was competent. . As appellant’s brief says: “In view of the fact that until June 14, 1962, Marshall was at St. Elizabeth’s for psychiatric examination, and that it can he argued that until a finding of present competence was made Marshall was not subject to retrial, appellant is willing to accept June 14, 1962 as being the critical date.”

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

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

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

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

Rosemary FORTIN et al., Petitioners, v. F. Ray MARSHALL, Secretary, Department of Labor, United States of America, Respondent. No. 79-1059. United States Court of Appeals, First Circuit. Submitted Sept. 14, 1979. Decided Nov. 2, 1979. Joanne M. Morris on brief pro se. Carin Ann Clauss, Sol. of Labor, Ronald G. Whiting, Associate Sol., and John R. Garson, Washington, D. C., Counsel for International Affairs, on brief for respondent. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. The issue in this case is whether forty Pan American World Airways (Pan Am) employees who lost their jobs when Pan Am stopped serving Boston on October 31,1978, are entitled to compensation and other benefits under the worker adjustment assistance program of the Trade Act of 1974, 19 U.S.C. §§ 2101-2487. The employees have petitioned this court for review of the Secretary of Labor’s decision that they are not eligible for assistance. 19 U.S.C. § 2322. The worker adjustment assistance program is but one facet of the Trade Act of 1974. A comprehensive piece of legislation, the Trade Act was intended “to foster the economic growth of and full employment in the United States and to strengthen economic relations between the United States and foreign countries through open and nondiscriminatory world trade,” 19 U.S.C. § 2102(1), as well as “to provide adequate procedures to safeguard American industry and labor against unfair or injurious import competition, and to assist industries, firms, workers, and communities to adjust to changes in international trade flows,” 19 U.S.C. § 2102(4). Through this Act, Congress gave the President broad authority to negotiate trade agreements that would reduce or eliminate tariffs and other barriers to international trade. At the same time, recognizing that increased imports could burden some domestic industries, Congress provided adjustment assistance for workers, firms, and communities injured by import competition. UAW v. Marshall, 189 U.S.App.D.C. 232, 233, 584 F.2d 390, 391 (D.C.Cir. 1978). A group of workers can qualify for benefits including compensation, employment services, training, and job search and relocation allowances, 19 U.S.C. §§ 2291-98, if the Secretary of Labor determines that three requirements are met: (1) that a significant number or proportion of the workers in such workers’ firm or appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. § 2272. See Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 500 (1st Cir. 1977). It is the third eligibility requirement that concerns us here. In concluding that the Pan Am workers were ineligible for adjustment assistance, the Secretary determined that they performed a variety of passenger, cargo, mechanical, administrative and managerial tasks in the operation of Pan Am flights from Boston to London and that Pan Am was not involved in the production of an “article” within the meaning of section 222(3) of the Trade Act, 19 U.S.C. § 2272(3). 43 Fed.Reg. 59,176 (1978). This determination was in keeping with the Secretary’s earlier decision, in similar proceedings brought in 1975 by the International Brotherhood of Teamsters on behalf of 691 Pan Am workers laid off in 1974, that Pan Am workers did not qualify for adjustment assistance because the air transportation services Pan Am provided were not “articles.” 40 Fed.Reg. 54,639 (1975). Although judicial review of the Secretary’s 1975 decision was apparently not sought, the Boston Pan Am workers terminated in 1978 are asking that this court overturn the Secretary’s interpretation of the third eligibility requirement and declare them eligible for adjustment assistance. In the brief filed on their behalf by their Teamsters Union shop steward, the workers contend that they lost their jobs to foreign competition. They explain that in July, 1977, the United States and Britain signed an agreement, known as the Bermuda II agreement, which contained a stipulation that only two United States cities would be allowed to have service to London provided by two United States airlines. Subsequently, New York and Los Angeles were given this “dual designation.” On April 19, 1978, the Civil Aeronautics Board named Trans World Airlines as the single American airline to provide service from Boston to London and stripped Pan Am of its Detroit-Boston-London route. Pan Am withdrew from Boston after other operations from the city proved unprofitable. British Airways dramatically increased its share of the Boston-London market. Concerning the Secretary’s conclusion that Pan Am workers are ineligible for adjustment assistance because they do not produce “articles,” the Boston workers simply contend that a service can be considered a product, and that the product Pan Am sells (“particular seat on a particular flight to a particular destination”) should be considered an “article.” On this point we also have the benefit of a detailed memorandum filed during the 1975 proceedings by a Teamsters attorney, who argued that the term “article” is expansive enough to include services and that extending benefits to service workers would be within the remedial intent of the Trade Act. We have found no judicial decisions concerning the eligibility of workers in service industries for adjustment assistance. In deciding whether the workers’ interpretation of the Act has any force, we focus first on the words of the statute itself. E. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Preterm, Inc. v. Dukakis, 591 F.2d 121, 128 (1st. Cir.), cert. denied sub nom. Baird v. Pratt, 441 U.S. 952, 99 S.Ct. 2181-82, 60 L.Ed.2d 1057 (1979). To interpret air transportation services as “articles produced” within the meaning of 19 U.S.C. § 2272(3) is to strain severely, if not fracture, the statutory language. Although in advertising lingo, Pan Am might be said to sell a “product,” we do not think air transportation service is a “product” or an “article” in the ordinary sense of these words. Cf. Kaiser Aluminum and Chemical Corp. v. United States Consumer Product Safety Commission, 574 F.2d 178, 180 (3d Cir.), cert. denied, 439 U.S. 881, 99 S.Ct. 218, 58 L.Ed.2d 193 (1978) (term “article” said to denote “any material thing”). See generally Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975). Nor are we aware of any special commercial meaning of these terms that would include services. See generally Trans-Atlantic Co. v. United States, 471 F.2d 1397, 1398 (C.C.P.A.1973); 2A C. Sands, Statutes and Statutory Construction § 47.31 (4th ed. 1973). Nevertheless, we recognize that the Customs Court has said the term “article” is vague and varies according to context, Close and Stewart v. United States, 268 F.Supp. 466, 468-69 (Cust.Ct.1967), and that one dictionary definition of the word “article” (“a thing of a particular class or kind, as distinct from a thing of another class or kind,” Webster’s Third New International Dictionary (1976)), is broad enough to permit argument that services are included. When read in the context of the entire Trade Act, however, it becomes clear that the term “article” was plainly meant to refer to a tangible thing and not to a service. Although the Trade Act does not contain a definition of the word “article,” the definitions sections contained in the Act’s “General Provisions is persuasive. 19 U.S.C. § 2481. There it is stated that, “for the purposes of this Act,” [a]n imported article is “directly competitive with” a domestic article at an earlier or later stage of processing, and a domestic article is “directly competitive with” an imported article at an earlier or later stage of processing, if the importation of the article has an economic effect on producers of the domestic article comparable to the effect of importation of articles in the same stage of processing as the domestic article. 19 U.S.C. § 2481(5). A product of a country or area is defined as an article which is the growth, produce, or manufacture of such country or area. 19 U.S.C. § 2481(8). Finally, the term “commerce” is said to include services associated with international trade. 19 U.S.C. § 2481(10). Other sections of the Trade Act confirm that the term “article” was used in a somewhat restrictive sense to refer to a thing and that the terms “commerce,” “trade,” and “services” were used when Congress meant to refer to services. On one hand, throughout the Act, an article is referred to as something that can be the subject of a duty. E. g., 19 U.S.C. §§ 2119, 2132, 2135, 2151, 2436, 2461, 2463. In one section, an article is spoken of as something that can be placed in a warehouse. 19 U.S.C. § 2253(g). On the other hand, in a section authorizing the President to negotiate trade agreements with an eye toward reducing barriers to international trade, 19 U.S.C. § 2112, “international trade” is defined to include trade in both goods and services. 19 U.S.C. § 2112(g). Another section empowers the President to withdraw trade agreement concessions, impose duties or other import restrictions on foreign goods, and impose fees and restrictions on foreign services, once he determines that a foreign country’s tariffs and other import restrictions or its export subsidies and other policies unfairly burden United States cóm-merce; “commerce” being defined to include services associated with international trade. 19 U.S.C. § 2411(a). Another provision, which allows the President to enter into bilateral commercial agreements extending non-discriminatory (most favored nation) treatment to products of countries formerly denied such treatment, specifies that these agreements may be renewed if a satisfactory balance of concessions in trade and services has been maintained. 19 U.S.C. § 2435. All of this leads to the conclusion that the term “article” as used throughout the Trade Act, was not meant to include services, and supports the Secretary’s determination in this case that services of the type rendered by Pan Am were not “articles” within the meaning of the worker adjustment assistance eligibility requirement set forth in 19 U.S.C. § 2272(3). There is a presumption that the same words used in different parts of an act have the same meaning. E. g., Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932); United States v. Nunez, 573 F.2d 769, 771 (2d Cir.), cert. denied, 436 U.S. 930, 98 S.Ct. 2828, 56 L.Ed.2d 774 (1978); Hotel Equities Corp. v. Commissioner, 546 F.2d 725, 728 (7th Cir. 1976). Only if the workers could overcome this presumption by showing that the term “article” was intended to be used in a more expansive sense in the adjustment assistance provisions of the act, see, e. g., Atlantic Cleaners & Dyers, Inc. v. United States, supra, 286 U.S. at 433, 52 S.Ct. 607; Hotel Equities Corp. v. Commissioner, supra, at 728, or could demonstrate that an interpretation of the act denying them adjustment assistance would be plainly at variance with the policy of the legislation, United States v. American Trucking Associations, Inc., 310 U.S. 534, 543-44, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940); Preterm, Inc. v. Dukakis, supra, 591 F.2d at 128, would we be persuaded to depart from the apparently plain meaning of the statute, which is ordinarily controlling, see Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The workers’ arguments do not convince us. The workers emphasize that one of the express purposes of the act is “to assist . workers ... to adjust to changes in international trade flows,” 19 U.S.C. § 2102(4), and that one of the act’s principal House sponsors, Representative Ullman, said in calling up the conference report that the adjustment assistance program was intended to protect workers and industries that have been “adversely affected by trade.” 120 Cong.Rec. 41,796-97 (1974). Since the word “trade” was used during the legislative process to include trade in services, S.Rep.No.93-1298, 93d Cong., 2d Sess. 45 (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 7186, 7217, and so used in the Trade Act itself, 19 U.S.C. § 2112(g)(3), the Pan Am workers claim that employees of service industries were meant to be eligible for adjustment assistance. However, when placed alongside the more restrictive language used in the adjustment assistance provisions themselves, these references to “trade” are not compelling evidence that Congress intended to cover service industry employees. The workers also point out that, in enacting the Trade Act, Congress found that the original worker adjustment assistance program created by the Trade Expansion Act of 1962, Pub.L.No. 87-794, 76 Stat. 872 (current version begins at 19 U.S.C. § 1801) had been ineffective and replaced it with a new, streamlined program having more liberal eligibility requirements to be administered by the Labor Department. S.Rep.No.93-1298, 93d Cong., 2d Sess. 131 (1974), reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 7186, 7273; H.R.No.93-571, 93d Cong., 1st Sess. 52-53 (1973). It is true that the Trade Act eliminated the Trade Expansion Act requirement that workers seeking adjustment assistance show (1) a causal link between increased imports and trade agreement concessions, and (2) that increased imports were a “major cause” of separation; the second requirement was replaced with one mandating a lesser showing that increased imports “contributed importantly” to the separations. Compare 19 U.S.C. § 2272 with Pub.L.No. 87-794, § 301, 76 Stat. 883 (repealed 1975). However, like the Trade Act, the Trade Expansion Act speaks in terms of assisting workers whose jobs were threatened or lost because of increased imports of “an article like or directly competitive with an article produced by such workers’ firm, or an appropriate subdivision thereof.” Id. (emphasis added). There is no indication that, in liberalizing adjustment assistance eligibility requirements in the Trade Act, Congress meant to adopt an expansive interpretation of “article” and to extend coverage to employees of service industries. The Pan Am employees further point out that the Trade Act of 1974 was enacted nearly contemporaneously with the International Air Transportation Fair Competitive Practices Act of 1974, Pub.L. 93-623, 88 Stat. 2102 (1975) (codified in and amending scattered sections of 22, 49 U.S.C.). The fact that Congress legislated in one act against unfair practices that had hampered United States airlines does not, however, demonstrate that United States airline employees injured by foreign competition are entitled to adjustment assistance under another act. Finally, the Pan Am workers contend that the Trade Act’s adjustment assistance provisions are to be construed liberally because that part of the Trade Act is remedial in nature. We agree with this general proposition and sympathize with the plight of the workers in this case, but we are not free to rewrite the adjustment assistance provisions to include them. See United Shoe Workers of America, AFL-CIO v. Bedell, 165 U.S.App.D.C. 113, 127, 506 F.2d 174, 187 (D.C. Cir. 1974). The decision of the Secretary of Labor is affirmed. We treat this memorandum, which is included in the Appendix, as part of appellant’s argument in this appeal. . Close and Stewart v. United States, 268 F.Supp. 466, 468 (Cust.Ct.1967) referred to this definition, but did not suggest the term “arti-ele” is broad enough to encompass services. See also United States v. A. Johnson and Co., Inc., 588 F.2d 297, 300 (C.C.P.A.1978). . Here, we are referring to the arguments advanced in the 1975 proceedings. . For a discussion of the worker adjustment assistance program of the Trade Act Expansion Act of 1962 and its legislative antecedents, see United Shoe Workers of America, AFL-CIO v. Bedell, 165 U.S.App.D.C. 113, 506 F.2d 174 (D.C. Cir. 1974). . The Senate report accompanying the bill that became the Trade Act of 1974 also manifests Congress’ concern about discrimination against the United States transportation service industries and its desire that this be the subject of negotiation and other Presidential action. S.Rep.No.93-1298, 93d Cong., 2d Sess. 74, 102, 114, 165, 208 (1974), reprinted in [1974] U.S. Code Cong. & Admin.News, pp. 7186, 7224, 7259, 7303, 7340. But the report does not show that Congress intended to extend adjustment assistance to firms and workers in the air transportation industry.

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

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

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

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

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

Marcy SCHUCK, Individually and on behalf of her infant son, et al., Appellants, v. Earl L. BUTZ, Secretary of Agriculture. No. 72-1973. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 25, 1973. Decided July 25, 1974. Rehearing Denied Aug. 23, 1974. Alan B. Morrison, Washington, D.C., with whom Peter H. Schuck, Washington, D.C., was on the brief, for appellants. James F. McMullin, Asst. U.S. Atty., for appellee. Harold H. Titus, Jr., U.S. Atty. at the time the brief was filed, John A. Terry, Robert S. Rankin, Jr., and Gregory C. Brady, Asst. U.S. Attys., were on the brief for appellee. Garey G. Stark, Asst. U.S. Atty., entered an appearance for appellee. Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit Judges. PER CURIAM: On February 9, 1972, appellants filed a petition with the Secretary of Agriculture, pursuant to 7 C.F.R. § 1.28, asking him to impose an immediate ban on the addition of sodium nitrates and sodium nitrites (hereinafter referred to as nitrites) to meat products. Appellants further requested that the Secretary appoint a panel of “distinguished scientists” to determine the usefulness of nitrites in preventing botulism in meat products. On March 16, 1972, Assistant Secretary Richard Lyng responded to the petition in a letter which stated that the Department would not immediately prohibit all use of nitrites in meat. He asserted that there was no convincing evidence that the addition of nitrites to meat would result in an “adulterated” product. He also pointed to evidence that the addition of nitrites may reduce the dangers of botulism in meat products, and suggested that a ban on nitrites would eliminate this benefit, perhaps unnecessarily. The letter concluded : A research effort to develop more information on nitrite is being carried out by the American Meat Institute Foundation representing principal members of the meat industry. The U.S. Department of Agriculture and the Food and Drug Administration are cooperating in that effort. We recognize the extreme importance and the seriousness of the problem at hand and are giving it priority attention. We believe that any action we take must be based on sound, scientific knowledge. On May 3, 1972, appellants filed a complaint in the District Court, requesting “an order directing the defendant to repeal that portion of Regulations 318.-7[(c)](4) which authorizes the use of nitrites in meat products . . . ” The Department responded with a Statement of Reasons in which it said that the petition was denied because there was “no convincing evidence presented' which indicated that the use of sodium nitrite or sodium nitrate, within the limits specified by the regulations, would result in a product that is hazardous to human health.” The Department offered studies in support of its position and responded to particular points and authorities raised in appellants’ petition. The Statement of Reasons, including the studies and the responses to particular points raised by appellants, formed the basis for the Department’s motion for summary judgment. A cross-motion for summary judgment was filed by appellants and, after a hearing, summary judgment was granted in favor of the Department. On appeal, appellants have recognized for the first time that the relief sought by them at the administrative and trial court levels, namely, a ban on nitrites, is legally available only through a rule-making' proceeding, held in accordance with 5 U.S.C. § 553 and 7 C.F. R. § 1.27, to repeal the departmental regulation that permits the addition of nitrites to fix color. Appellants have accordingly modified their request for relief “to ask only that the Secretary be required to hold a rule making proceeding under the Administrative Procedure Act . . . and his own regulations with regard to the matters raised in the petition.” Appellants’ petition for a ban focused the Department’s response on the ultimate validity of the rule permitting use of nitrites to fix color. Thus, the Department asserted in its Statement of Reasons that the petition did not present “the sound, scientific, and convincing evidence needed to make a final determination.” A petition for rule making, involving public inquiry into the issues, may raise different questions and elicit different responses than a request for a final determination that the rule must be changed. The Department has not been asked to consider the advisability of a rule-making proceeding, and neither the Department’s decision nor the administrative record has been shaped by reference to such a request. The Department, rather than this court, must be given the first opportunity to evaluate the need for a rule-making proceeding. See McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136 (1946). Without passing on the sufficiency of the present record to support either a decision permitting the use of nitrites or a denial of a petition for rule making, we note that the Department itself has recognized that the use of nitrites raises questions deserving of intensive study. Should appellants file a petition for rule making, new data from the Department’s studies and the additional information appellants claim to have recently obtained will place the Department in a better position now to determine whether a rule making proceeding is desirable and, if it decides that rule making is not warranted, to develop a record relevant to such a decision. We therefore affirm the grant of summary judgment, a disposition that leaves appellants free to petition the Secretary for a rule making proceeding on the possible repeal of 7 C.F.R. § 318.7 (c)(4). It is so ordered. . Appellants also requested that all meat products containing nitrites be labeled accordingly. Eight days prior to the petition, the U. S. Department of Agriculture had published a proposed rule requiring such labeling. 37 Fed.Reg.No. 25, at 6. This request was therefore not pursued. . 21 U.S.C. § 601(m) (1) states that a product is adulterated “if it bears or contains any poisonous or deleterious substance which may render it injurious to health. ...” . Paragraph 4 of the letter noted the creation, within the government, of “a panel of distinguished scientists” to continue earlier government studies of the problem. . 9 C.F.R. § 318.7(c) (4). Appellants inadvertently cited the regulation as 318.7 (a) (4). . The Statement further noted that “although sodium nitrite was not specifically authorized as an additive to prevent the development of Clostridium Botulinum, it did not seem appropriate to the Department to ban its use when presently available evidence indicated its possible usefulness in preventing botulism and there was a lack of evidence demonstrating that . . . [it] would be dangerous to human health.” . We do note, however, the Department’s apparent acceptance, on appeal, of appellant’s assertions that possible beneficial effects are not relevant to a determination whether a product is adulterated, and that the proper standard of proof is whether there is convincing evidence that the product “contains any poisonous or deleterious substance which may render it injurious to health.” 21 U.S. C. § 601 (m) (1) (emphasis added).

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

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

UNITED STATES of America, Plaintiff-Appellant, v. Kobert W. LIKAS, Defendant-Appellee. No. 18495. United States Court of Appeals, Seventh Circuit. June 9, 1971. William J. Bauer, U. S. Atty., Michael P. Siavelis, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant; John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., of counsel. George P. Callaghan, Chicago, Ill., for defendant-appellee. Before FAIRCHILD and PELL, Circuit Judges, and GORDON, District Judge. MYRON L. GORDON, District Judge. The appellee, Robert Likas, was indicted under 18 U.S.C. § 1952, it being charged that he used the United States mails in connection with gambling activities which were illegal under Illinois law. The district court granted his motion to suppress certain evidence seized during a search of his apartment on January 12, 1969, and the government has appealed. An FBI agent, Logan Pickerl, obtained a warrant on January 11, 1969 from the circuit court for Cook County to search the appellee’s apartment in Oak Lawn, Illinois. The agent supported his application by averring that on at least two occasions in 1968 quantities of “flash paper” were mailed to the appel-lee from a company in Wisconsin; he also noted that “flash paper” is a highly inflammable substance which can be quickly destroyed. In addition, the agent stated that a reliable informer had, “on more than one occasion,” been in the appellee’s apartment and had observed the appellee record bets on what the informer “believed was flash paper but which could have been [water] soluble paper.” The warrant issued by the circuit court authorized a search for, and seizure of, “all implements, instruments and apparatus kept and used for unlawful gaming, to wit: records of race horse bets, scratch sheets, records of sports bets, sports schedules, bet pads, flash paper, soluble paper, telephones utilized in bookmaking, monies, miscellaneous gambling paraphernalia, or any evidence thereof which have been used in the commission of or which constitute evidence of gambling.” On January 12, 1969, Mr. Pickerl and three Cook County police officers proceeded to the appellee’s apartment. Two of the officers noted that the search warrant listed flash paper as an item for which they were to search, and they then discussed means of preserving the evidence. After reaching the appellee’s apartment building, the two police officers went directly to Mr. Likas’ apartment and, without first announcing their presence or purpose, broke down the door to the apartment with a sledge hammer. When they entered the apartment, they met Mr. Likas coming from the living room, where he had been watching a football game on television; they then told him that they were police officers and gave him a copy of the search warrant. The ensuing search resulted in the discovery of about 2,000 sheets of flash paper. 18 U.S.C. § 3109 provides: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” The government concedes that the search of the appellee’s apartment did not comport with the language of § 3109. It argues, however, that the unannounced entry was warranted by the presence of “exigent circumstances” which justified mon-compliance with the terms of the statute. The United States Supreme Court has never broadened the application of § 3109 beyond its own restricted terms. See Note, 84 Harv.L.Rev. 1465, 1491 n. 125 (1971). On the other hand, the court “has left open the question of whether there may be exceptions to the requirements of section 3109 in certain circumstances.” Bosley v. United States, 138 U.S.App.D.C. 263, 426 F.2d 1257, 1262 (1970). Sabbath v. United States, 391 U.S. 585, 591 n.8, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), points out that Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), recognizes possible exceptions to any constitutional rule relating to an advance announcement; Sabbath also states that exceptions may exist to § 3019. See also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). In addition, several courts of appeal have stated that exceptions exist to the operation of § 3109. See, e. g., Miller v. United States, supra; Bosley v. United States, supra; Wittner v. United States, 406 F.2d 1165 (5th Cir. 1969); Der Garabedian v. United States, 372 F.2d 697 (5th Cir. 1966); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966). In the ease at bar, the government urges that the possibility that the flash paper would be destroyed immediately following any announcement of purpose authorized the officers’ unannounced intrusion. It is our opinion, however, that the government’s position is incorrect under the facts presented, and we affirm the decision of the district court. In so holding, we are not required to resolve the government’s contention that its suggested exception would be consistent with fourth amendment requirements of reasonableness. Ker v. California, supra. We believe, instead, that the officers’ conduct falls within the terms of the federal statute which imposes explicit requirements. Without deciding whether “exigent circumstances” may excuse adherence to § 3109, we find that the present record simply “does not reveal any substantial basis for excusing the failure of the agents * * * to announce their authority and purpose.” Sabbath v. United States, supra, 391 U.S. at 591, 88 S.Ct. at 1759. See United States v. Case, 435 F.2d 766, 770 (7th Cir. 1970). The appellee did not refuse to admit the officers; indeed, he was not given an opportunity to do so. Even if the use of force would be justified to effect entry in order to prevent the destruction of evidence, after admittance had been refused, such hypothesis is simply not applicable to the facts in the case at bar. The possible destruction of evidence in this situation is insufficient to condone the officers’ actions, which are in clear derogation of the strictures of § 3109. In Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the court stated: “We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual’s right of privacy in his house.” While we find that this case does not require us to pass upon the constitutionality of the government’s proposed exception, a recent study of this subject concluded that: “* * * a magistrate should make the determination whether the no-knock entry is justifiable when the warrant authorizing the search is obtained.” Note, 84 Harv.L.Rev. 1465, 1496 (1971). See also Note, 80 Yale L.J. 139 (1970). Affirmed. . The writer of this opinion is sitting by designation from the district court for the Eastern District of Wisconsin.

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

QUINN, COMMISSIONER, CHICAGO FIRE DEPARTMENT v. MUSCARE No. 75-130. Argued March 30, 1976 Decided May 3, 1976 William R. Quinlan argued the cause for petitioner. With him on the briefs were Daniel Pascóle and Edmund Hatfield. Linda R. Hirshman argued the cause for respondent. With her on the brief was Robert S. Sugarman. Briefs of amici curiae urging affirmance were filed by Michael P. Bucklo and David A. Goldberger for the Illinois Division of the American Civil Liberties Union; by Jerry D. Anker for the Coalition of American Public Employees; and by Victor J. Cacciatore for the Chicago Patrolmen’s Assn. J. Albert Woll, Robert C. Mayer, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae. Per Curiam. The respondent, a lieutenant in the Chicago Fire Department, was suspended from his job for a 29-day period in 1974 as a result of charges related to his violation of the department’s personal-appearance regulation. Following the suspension, the respondent brought an action in the United States District Court for the Northern District of Illinois seeking an injunction and backpay on the ground that the regulation infringed his constitutional right to determine “the details of his personal appearance.” The department defended the challenged regulation as a safety measure designed to insure proper functioning of gas masks worn by firefighters and as a means of promoting discipline in the department and .the uniform, well-groomed appearance of its members. After a hearing focusing on the operation of the self-contained breathing apparatus used by members of the department, the District Court found that the personal-appearance regulation was justified “on safety grounds” and that the respondent’s goatee violated the regulation. Explaining that the other regulations cited in the discharge notice were not “relevant or pertinent to the issues,” the court denied the respondent’s motion for injunctive relief. The Court of Appeals for the Seventh Circuit reversed, holding that the respondent “was suspended without procedural due process.” The appellate court concluded that the Constitution requires “that some opportunity to respond to charges against him be made available to the governmental employee prior to disciplinary action against him.” The Court of Appeals did not dispute the District Court’s determination that “the only issue” was whether the suspension for having a goatee was “justifiable under the circumstances.” Although it did not reach the merits of the respondent’s challenge to the constitutionality of the hair regulation, the Court of Appeals did note that the regulation “does not appear to be co-extensive with the need for safe and efficient use of gas masks and, if that is the sole justification, might well be more narrowly drawn.” Following the grant of certiorari and the oral argument in this case, this Court in another case upheld a police department hair regulation similar to that challenged by the respondent in the present litigation. Kelley v. Johnson, ante, p. 238. In that ease, we concluded that “the overall need for discipline, esprit de corps, and uniformity” defeated the policeman’s “claim based on the liberty guaranty of the Fourteenth Amendment.” Ante, at 246, 248. Kelley v. Johnson renders immaterial the District Court’s factual determination regarding the safety justification for the department’s hair regulation about which the Court of Appeals expressed doubt. Moreover, after the grant of certiorari, this Court was informed that the Civil Service Commission of the city of Chicago had revised its rules to provide for pre-suspension hearings in all nonemergency cases. While this voluntary rule change was subject to rescission, counsel for the petitioner candidly advised the Court at oral argument that even if the petitioner should prevail, it was very doubtful that the Commission would revert to its former suspension procedures. In view of these developments, the writ of certiorari is dismissed as improvidently granted. So ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. The personal-appearance regulation provided: “All members of the Chicago Fire Department shall present a clean and proper appearance in personal care and attire at all times. The face shall be clean-shaven, except that a non-eccentric mustache is permissible. Mustaches shall not extend beyond a line perpendicular to the comer of the mouth and the full upper lip must be readily visible. Sideburns shall be trimmed short and shall be no lower than a line from the middle of the ear. “Hair shall be worn neatly and closely trimmed, and the hair outline shall follow the contour of the ear and slope to the back of the neck. It will be gradually tapered overall, in order to present a neat appearance.” § 51.133 of the Rules and Regulations of the Chicago Fire Department. The respondent was also charged with conduct unbecoming a member of the Chicago Fire Department, § 61.001, and disobedience of orders, § 61.006, in connection with his failure to conform his appearance to the above regulation. The respondent contended that the personal-appearance regulation violated his “rights to personal freedom guaranteed by the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.” In addition, he claimed that the regulation proscribing conduct unbecoming a member of the department was vague and overbroad and that his suspension without a prior hearing was unconstitutional. Although the respondent had not been afforded a pre-suspension hearing he had a right to a post-suspension hearing before the Civil Service Commission. The Commission was empowered to award backpay and to order the deletion of the suspension from the employee’s service record. Although the new rule was adopted in August 1975, before the grant of certiorari on October 14, 1975, it was first brought to our attention in the respondent’s brief filed on February 4, 1976. The revised procedures providing an opportunity for a pre-suspension hearing apply to all Chicago civil service employees except members of the police department, who are governed by a different set of similar rules.

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?

Clifton BYRD et al., Plaintiffs-Appellants, v. CITY OF SAN ANTONIO, TEXAS et al., Defendants-Appellees. No. 77-1014. United States Court of Appeals, Fifth Circuit. Jan. 2, 1979. Rehearing and Rehearing En Banc Denied Feb. 2,1979. Craig L. Austin, San Antonio, Tex., for plaintiffs-appellants. F. W. Baker, Jon C. Wood, Crawford B. Reeder, Asst. City Atty., Jane H. Macon, City Atty., San Antonio, Tex., for defendants-appellees. Before GEE and VANCE, Circuit Judges, and HUNTER, District Judge. United States Senior District Judge for the Western District of Louisiana, sitting by designation. EDWIN F. HUNTER, Jr., District Judge: Plaintiffs instituted this suit to redress the alleged deprivation of federal constitutional and statutory rights. It is in essence a frontal attack upon what plaintiffs refer to as “self perpetuation of the control and management of a municipal bureaucracy, the City Public Service Board of San Antonio.” They contend that the procedure utilized in selecting Board members deprives them of their right to vote, and constitutes a denial both of Equal Protection and the right to a Republican Form of Government. The district court dismissed the action, finding that each claim alleged was, as a matter of law, wholly without merit. We AFFIRM. I. FACTUAL BACKGROUND In 1942, the City of San Antonio acquired ownership of the gas and electric utility system in that city. This purchase was financed by the proceeds from the sale of $33,950,000 first mortgage bonds. The bonds were issued pursuant to Article 1111, et seq., of the Texas Civil Statutes, which allow Texas cities to purchase utility systems through the issuance of bonds secured by a pledge of the revenues from operation of the systems, provided that such obligations shall never be a debt of the City but solely a charge upon the revenues of the encumbered systems. Article 1115 provides for the management and control of such systems during the time of encumbrance to be placed either in the City Council or in a Board of Trustees, to be named in the contract of encumbrance, having not more than five members, one of whom must be the mayor of the city. The statute further provides: The terms of office of such board of trustees, their powers and duties, the manner of exercising same, the election of their successors, and all matters pertaining to their organization and duties may be specified in such contract of encumbrance. Pursuant to this authority, the Trust Indenture securing the original issue of bonds vested management of the systems in a five-member board, including the mayor as an ex officio member. The other initial members were appointed by the City Council. Any vacancy on the Board is filled by a majority vote of the remaining board members. The term of membership is fixed at five years. The individual members of the Board cannot “perpetuate” themselves in office because the indenture limits members to two terms of service. This 1942 indenture, authorized by an ordinance of the City Council, was superseded by an indenture dated February 1, 1951, also adopted as an ordinance, and contained identical selection provisions. The 1951 indenture was amended by seven supplemental indentures, each duly authorized by a city ordinance. The management provisions of the 1951 indenture were incorporated by reference into each supplemental indenture. The three most recent issues of revenue bonds occurred in 1975, 1976 and 1977. These are referred to as “New Series” Revenue Bonds and were issued under ordinances authorizing a Board selection method different from that prescribed in the 1951 indenture. The new procedure may be utilized only upon the payment of all the Old Series Bonds. The basic claim of constitutional deprivation is premised on the presumption that the Board is “a form of government” subject to strictures of republicanism and federal voting controls. This premise is incorrect. The only “governmental body” of San Antonio to which the constitutional and statutory provisions urged by appellants would apply is the City Council. Only it can issue bonds for extending or improving the system. Only the Council can review, revise or set rates. Only the Council can authorize condemnation of land. The district court’s holding that the Board “is not a form of government but is a board of managers of the municipally-owned San Antonio Electric and Gas system held and operated as a corporate and proprietary activity of the City of San Antonio” is precisely correct. See San Antonio Independent School District v. City of San Antonio, 550 S.W.2d 262, 264 (Tex.1976). There is no statute or constitutional provision which requires election — or appointment by elected officials — of the persons who carry out this proprietary and non-governmental function. The appellants cite neither judicial nor statutory law which would hold that the officers in question are legislative officers under the appropriate federal standards, or that their selection by the methods appellants urge would be required as a matter of law. See Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967); Rosenthal v. Board of Education, 385 F.Supp. 223 (E.D. N.Y., 1974), aff’d. 420 U.S. 985, 95 S.Ct. 1418, 43 L.Ed.2d 667 (1975); Benner v. Oswald, 444 F.Supp. 545 (M.D.Pa., 1978). Appellants insist that the vacancy selection procedure denies them the Republican Form of Government guaranteed by the Constitution, because the Board has been effectively removed from direct or indirect accountability to the electorate. The Supreme Court has consistently held that the Guaranty Clause is primarily political in nature, and its enforcement is a matter for Congress rather than the courts. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912); Ohio ex rel. Bryant v. Akron Metropolitan Power District, 281 U.S. 74, 50 S.Ct. 228, 74 L.Ed. 710 (1930); Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). Someday, in certain circumstances, the judicial branch may be the most appropriate branch of government to enforce the Guaranty Clause. This is definitely not such a case. The City Public Service Board does not usurp from the City of San Antonio nor can it, as a matter of law, exercise in its own right any governmental powers which would result in constituting it either a “form of government” or a “governmental body.” In the area in which we are involved — federal constitutional and statutory law — we find no support for plaintiffs’ contentions. They insist that the ordinances and indentures, pursuant to which the Council delegated to the remaining members of the Board the power to fill vacancies, exceeded the authority granted to the Council under the state statute. The problem presented by that contention is, of course, simply a matter of interpretation of state law, and does not present a federal question. The judgment of the district court is AFFIRMED. . United States Constitution, Amendment XIV, § L . United States Constitution, Article IV, § 4. . We are not suggesting that the City of San Antonio is powerless to change the existing selection process now. Indeed, it has consistently expressed its preference to retain the present selection procedure until all of the Old Series bonds have been retired. There are now $195,000,000 in bonds still outstanding which contain the provisions for management in the trust indentures issued from 1951 through 1974. There are $170,000,000 in bonds issued under the New Series. . Appellants insist “that elections be promptly held in order that new members of the Board may be Constitutionally selected or, in the alternative, order that Defendants * * * as members of the City Council of the City of San Antonio, fill the existing vacancy and appoint trustees to serve the remainder of the appointive members terms;” . The majority concurring opinion by Judge Wisdom in Kohler v. Tugwell, 292 F.Supp. 978, 985 (E.D.La.1968), aff'd 393 U.S. 531, 89 S.Ct. 879, 21 L.Ed.2d 755 (1969). . One of the many allegations of the complaint is that the vacancy appointment procedure “is for the purpose and has the effect of continuing racial and ethnic discrimination * * * by the virtual exclusion of Mexican-Americans and the total exclusion of Blacks from the City Public Service Board of San Antonio.” It was revealed during argument that there are now four (4) appointed members. Two are Mexican-Americans, one of whom is Chairman. One member is Black. One member is Anglo.

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

Elery Erigen BROWN, Appellee, v. John W. GARDNER, Secretary of Health, Education, and Welfare, Appellant. No. 11354. United States Court of Appeals Fourth Circuit. Submitted on Briefs Nov. 6,1967. Decided Dec. 7, 1967. Barefoot Sanders, Asst. Atty. Gen., Morton Hollander and Jack H. Weiner, Attys., Dept, of Justice, and Milton J. Ferguson, U. S. Atty., on the brief for appellant. Ned H. Ragland, Beckley, W. Va., on the brief for appellee. Before HAYNSWORTH, Chief Judge, MARVIN JONES, Senior Judge, and BUTZNER, Circuit Judge. Sitting by designation. HAYNSWORTH, Chief Judge: We affirm the District Court’s allowance of an attorney’s fee in this Social Security case upon the assumption that it included, and was not entirely in addition to, a fee previously allowed by the Secretary and upon the lawyer’s disclaimer of any right to collect both. After an administrative denial of a claim for disability benefits, a proceeding was brought in the District Court, which concluded in an acceptance of the Secretary’s findings and conclusions. An appeal was taken to this Court, and we directed a remand of the ease to the Secretary. Brown v. Celebrezze, 4 Cir., 367 F.2d 455. Meanwhile, upon an administrative suggestion, a second claim was filed, and a determination was made that the claimant had been disabled since March 31, 1964. Thereafter in further proceedings on the remand directed by this Court, there was a determination that the disability dated from 1960 and the payment of additional benefits was authorized. Upon the finding that the disability began in 1964, accrued benefits aggregating $5,260.30 were paid. Out of that the District Court allowed a fee of $616, being twenty-five per cent of that portion of the benefits paid attributable to the primary claim. Benefits payable to dependents were excluded from the fee base. Upon the later finding that disability dated from 1960, additional accrued benefits of $11,573.30 were paid, and the Secretary allowed the lawyer a fee of $1,487.90 for his services in the administrative proceedings. Thereafter the Court made a supplemental fee award of $2,877.07, and it is from that order that the Secretary has appealed. We have no doubt of the Court’s power to award a reasonable fee to the lawyer for services rendered in this case. While the administrative suggestion of the filing of a second claim was made during the pendency of the case on appeal in this Court, the award entered upon it had a consequential relation to the judicial proceedings, while the later, larger award was the direct result of the remand directed by this Court. In every sense the conclusion of the judicial proceeding was favorable to the claimant. In light of the relationship between the judicial proceedings and the successive administrative awards and the Secretary’s incapacity to allow any . compensation for services rendered in Court, we think the claimant was entitled to all benefits paid by reason of the favorable judgment of this Court within the meaning of 42 U.S.C.A. § 406(b) (1). Conner v. Gardner, 4 Cir., 381 F.2d 497. The order of the District Court allowing a supplemental fee of $2,877.07 is not clear in its inclusiveness of the $1,487.90 allowed by the Secretary for services in the administrative proceedings. The lawyer’s representations in this Court and his disclaimer of any intention to collect both allowances, however, supplies the clarity the order previously lacked. The supplemental fee award of $1,389.17 ($2,877.07 — $1,487.-90) added to the initial allowance of $616, makes the total award for legal services' in the judicial proceedings $2,005.17. That is certainly not an unreasonable fee for extensive services rendered in the District Court and, on appeal, in this Court, and it is far below the statutory maximum of twenty-five per cent of the $16,833.60 paid in the aggregate as accrued benefits on the primary and dependent claims. Construing the supplemental order as we do, as authorizing the payment of an additional fee of $2,877.07 for services in both the administrative and judicial proceedings and inclusive of the $1,487.-90 allowed by the Secretary, it is affirmed. Affirmed. Had the Secretary made no determination of an appropriate fee for the administrative services, the Court would not have been authorized to do so. Robinson v. Gardner, 4 Cir., 374 F.2d 949.

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

In re PHILLIPS PETROLEUM SECURITIES LITIGATION. C.A. 85-14 HUDSON, et al. v. PHILLIPS PETROLEUM COMPANY, et al. C.A. 85-45 HUDSON, et al. v. PHILLIPS PETROLEUM COMPANY, et al. C.A. 85-281 IRWIN, et al. v. DOUCE, et al. C.A. 85-401 KELLY, et al. v. PICKENS, et al. C.A. 85-447 LAWRENCE, et al. v. PICKENS, et al. C.A. 85-537 COHEN v. MESA PETROLEUM CO., et al. Appeal of Florence HUDSON (Civil Action No. 85-14 MMS), Harry W. Voege; S. Paul Posner & Co., a partnership; Ominsky, Joseph & Welsh, P.C., Defined Benefit Plan U/A dated DDT July 1, 1976, Albert Ominsky, Trustee; Barnett Stepak; Initio, Inc.; Alfred D. Whitman; Connecticut Medical Laboratory, Inc.; Murray Bell; Pierre Haber and Leonard Brawer (Civil Action No. 85-45 MMS), Christopher P. Kelly and Brynn Kelly, Trustees for the Kelly Family Trust Under Trust Agreement dated as of October 1, 1977, on behalf of themselves and all others similarly situated (Civil Action No. 85-401 LON), John S. Lawrence, on behalf of himself and all others similarly situated (Civil Action No. 85-447), Jerry C. Cohen (Civil Action No. 85-537 MMS). Appeal of John S. LAWRENCE. Nos. 88-3719, 88-3755. United States Court of Appeals, Third Circuit. Argued March 13, 1989. Decided Aug. 9, 1989. Rehearing and Rehearing In Banc Denied Sept. 6, 1989. Dianne M. Nast, Stuart H. Savett, Kohn, Savett, Klein & Graf, P.C., Philadelphia, for appellant Ominsky, Joseph & Welsh, P.C. Defined Benefit Plan U/A dated DDT 7/1/76, Albert Ominsky, trustee. William Prickett (argued), Prickett, Jones, Elliott, Kristol and Schnee, Wilmington, Del., for appellants. Stephen D. Oestreich, Wolf, Popper, Ross, Wolf & Jones, New York City, for all appellants as lead counsel; individual counsel for appellant Harry Voege. David J. Bershad, Milberg, Weiss, Ber-shad, Spechthrie & Lerach, New York City, for appellant Initio, Inc. Irving Bizar, Bizar, D’Alessandro, Shus-tak and Martin, New York City, for appellant Florence Hudson. David F. Dobbins (argued), Patterson, Belknap, Webb and Tyler, New York City, for appellant John S. Lawrence. Charles F. Richards, Jr. (argued), Thomas A. Beck, William J. Wade, Richards, Layton & Finger, Wilmington, Del., for ap-pellees Mesa Partners, Mesa Petroleum Co., Mesa Asset Co., T. Boone Pickens, Cyril Wagner, Jr., Jack E. Brown, I.T. Cor-ley, Jack K. Larsen, J.R. Walsh, Jr., Robert L. Stilwell, Harley N. Hotchkiss, Wales H. Madden, Jr., David H. Batchelder, Jesse P. Johnson, Cy-7, Inc. and Jack-7, Inc. Before MANSMANN, GREENBERG and SCIRICA, Circuit Judges. OPINION OF THE COURT SCIRICA, Circuit Judge. This is an appeal from a grant of summary judgment against a consolidated plaintiffs class, comprised of individuals who purchased stock in the Phillips Petroleum Company (“Phillips”) from December 5, 1984 through December 21, 1984. The named defendants in the class action include Phillips and the Phillips Board of Directors (the “Phillips defendants”), the Mesa Partnership (“the Partnership”) which attempted to acquire control of Phillips by a hostile takeover in December 1984, and individual members of the Partnership, including Mesa Petroleum Company (“Mesa”) and Mesa’s Chief Executive Officer, T. Boone Pickens, Jr. After a complex procedural history, the plaintiffs had outstanding claims alleging violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Rule 10b-5,17 C.F.R. § 240.10b-5 (1988); a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (1982 & Supp. Ill 1985); and claims arising under Delaware state law. After a settlement that removed the Phillips defendants from the litigation, plaintiffs moved for summary judgment on liability and the Mesa defendants cross-moved for summary judgment. The district court granted the Mesa defendants’ motion, dismissing with prejudice all outstanding claims against them. In re Phillips Petroleum Securities Litigation, 697 F.Supp. 1344 (D.Del.1988).. While this appeal presents several issues, the principal matter confronting us is whether a genuine issue of material fact exists with regard to the securities fraud claims. If so, we must determine whether the record contains any evidence from which a jury could reasonably find scienter on the part of the Partnership, a necessary element of the plaintiffs’ claims under the federal securities laws and RICO — and, thus, whether the district court erred as a matter of law in granting summary judgment on those claims. Because we believe there is sufficient evidence for a jury to so conclude, we will vacate the district court’s judgment dismissing the claims under § 10(b) and Rule 10b-5, and remand for further proceedings on those claims. Additionally, as violations of the federal securities laws can constitute predicate acts under the RICO statute, we will vacate the district court’s judgment and remand for further proceedings on the RICO claim. We will, however, affirm the district court’s dismissal of all claims brought under Delaware state law. I. While this lawsuit concerns the Partnership’s efforts to acquire control of Phillips, the germane facts begin with an earlier attempt by Mesa Petroleum to acquire Great American Oil Company of Texas (“GAO”). In December 1982, Mesa launched a hostile tender offer for GAO. In order to thwart Mesa’s takeover, GAO negotiated a friendly “white knight” merger with Phillips. A key to consummation of the deal, however, was a settlement with Mesa in early January 1983. That settlement included Mesa selling its block of stock back to GAO, being compensated for its expenses and, most importantly, signing a Standstill Agreement whereby Mesa and its affiliates agreed in essence not to attempt to acquire any of the voting securities of GAO for a period of five years. The Standstill Agreement made no reference to any attempt by Mesa or its affiliates to acquire voting shares in Phillips. The Partnership began to purchase Phillips common stock on October 22, 1984. On December 4, 1984, the Partnership issued a press release stating it had acquired approximately 5.7% of Phillips’s outstanding shares and that it was commencing a tender offer for 15 million shares of Phillips common stock at $60 per share. The press release stated explicitly that the Partnership would “not sell any Phillips shares owned by it back to Phillips except on an equal basis with all other shareholders.” The Partnership filed its Schedule 13-D on December 5, 1984, as required under Section 13(d) of the Williams Act, 15 U.S.C. § 78m(d)(l). The Schedule 13-D stated that the proposed tender offer was designed ultimately to obtain control of Phillips. Furthermore, the Schedule 13-D reiterated the statement from the previous day’s press release that the Partnership did not intend to sell its shares to Phillips except on an equal basis with all shareholders. The next day, December 6, 1984, T. Boone Pickens appeared on the nationally televised MacNeil/Lehrer News Hour representing the Partnership. In response to questioning by Mr. MacNeil, Pickens stated unequivocally that “[t]he only way we would consider selling back [to Phillips] is if they make the same offer to all shareholders.” Phillips responded to the Partnership’s actions by attempting to block the takeover attempt in court. From the initial announcement of the takeover, both the Partnership and Phillips filed a succession of suits in an attempt to block or pre-empt the other’s actions. In order of filing, these included the following: (1) an action by the Partnership in the United States District Court for the District of Delaware on December 4, 1984, to enjoin enforcement of the Delaware Tender Offer Act (8 Del.C. § 203) and to determine, under pendent jurisdiction, the applicability of the GAO Standstill Agreement to the Partnership’s takeover of Phillips; (2) a declaratory action in Delaware Chancery Court to declare the GAO Standstill Agreement inapplicable to the Phillips takeover attempt; (3) the ex parte procurement of a temporary restraining order by Phillips in Oklahoma state court preventing the Partnership from moving against Phillips based upon the GAO Standstill Agreement; (4) further action by the Partnership in Delaware Chancery Court to restrain Phillips from pursuing its Oklahoma action; (5) further action by the Partnership in the Delaware Federal District Court to prevent Phillips from initiating action in any other federal court; and (6) an action by Phillips in Louisiana state court to prevent the Partnership from acquiring interest in certain Phillips assets in Louisiana, through control of Phillips itself, without the prior approval of that state’s regulatory agencies. The Louisiana action does not appear to have had any impact on the takeover contest and, indeed, no party to this lawsuit mentions it as having been a factor. The other actions all turned on the applicability of the GAO Standstill Agreement to the Partnership’s attempt to take over Phillips. Both the United States District Court and the Oklahoma state court ultimately deferred to the Delaware Chancery Court for determination of the applicability issue. At the same time the parties were jousting in court, however, Phillips was pursuing private negotiations with the Partnership. Settlement efforts were conducted by a neutral intermediary, Joseph Flom, Esq. On December 7, 1984, Phillips made its first offer, through Flom, to buy out the Partnership’s interest in Phillips. Pickens, representing the Partnership, declined the offer — allegedly because it did not treat all shareholders equally. Phillips made repeated offers over the course of the next two weeks, all of which were refused, according to the defendants, because they did not treat all shareholders equally. The turning point in the takeover fight came on December 20, 1984. On that day, the Delaware Chancery Court ruled that the GAO Standstill Agreement did not apply and, thus, did not bar a takeover of Phillips by the Partnership. Mesa Partners v. Phillips Petroleum Co., 488 A.2d 107 (Del.Ch.1984). With the issuance of the December 20 opinion, Phillips found itself without a viable litigation defense. Thus, after a meeting with advisers, officials at Phillips decided they had to negotiate with the Partnership. Sometime in the early to midafter-noon of December 21, Flom contacted Pick-ens to arrange a meeting for 5:30 p.m. EDT. The significance of the meeting time lay not just in the time of day, occurring after the stock market would have closed, but also in that December 21,1984 fell on a Friday. Thus, the parties had an entire weekend to forge an agreement without having to make disclosures for the benefit of the market. From the inception of the tender offer through December 21, the Partnership had made no less than eight amendments to its Schedule 13-D; indeed, the Partnership made the eighth amendment on the afternoon of December 21. In none of those amendments had the Partnership changed its original statement that it would not sell any of its shares back to Phillips except on an equal basis with all other shareholders. On the face of the record, it would appear that the Partnership should have had every reason to believe that the December 21 meeting would be to negotiate the terms for Phillips’s concession to its offer. Instead, claim the defendants, Phillips presented the Partnership with its plans for a defensive recapitalization which all the defendants allege would have effectively blocked the takeover. Reduced to the barest terms, under the recapitalization plan Phillips proposed to exchange 29% of its common stock for debt securities valued at $60 per share (pro rata among all shareholders), and to sell 27.5 million newly issued shares to a new employee stock ownership plan at a market price assumed to be $50 per share while purchasing 27.5 million shares of its stock back in open market transactions. Additionally, the recapitalization included reductions in expenses and capital expenditures, as well as the sale of approximately $2 billion of Phillips’s lower-earning assets. The parties negotiated vigorously through the weekend, proposing and counter-proposing various plans. The specifics of these proposals are not germane to our decision, but two facts are worth noting. First, Phillips insisted that under no circumstances could the Partnership continue as a shareholder of Phillips. Thus, with the exception of the Partnership on Friday night proposing a leveraged buy-out of Phillips, all negotiations for the remainder of the weekend dealt with the Partnership selling its stock back to Phillips as part of the recapitalization. Second, the Partnership maintains it turned down several proposals in the course of the weekend because they did not treat all shareholders on an equal basis. Nonetheless, on December 23, 1984, Phillips and the Partnership reached an agreement in which all shareholders were not treated on an equal basis. The final agreement provided, first, that Phillips would reclassify 38% of its common stock (pro rata for all shareholders) into preferred stock, which was then to be exchanged for debt in the principal amount of $60 per share. Second, Phillips would create an employee incentive stock ownership plan (an “EISOP”), to which it would sell no more than 32 million newly issued shares at market value. Finally, Phillips was required to purchase at least $1 billion of its common stock on the open market following the exchange. Investment bankers for Phillips placed the value of the blended package — debt securities plus Phillips stock — at $53 for shareholders. The Partnership, however, received a different arrangement. If the recapitalization were approved by the shareholders, it would sell its shares back to Phillips for $53 per share in cash. In the event the shareholders did not approve the recapitalization, the Partnership was given several options: it was given a put whereby it could still sell its shares to Phillips for the same $53 cash per share; it could retain its Phillips shares, subject to a standstill agreement; or it could sell its Phillips shares to a third party. Additionally, Phillips agreed to pay the Partnership’s certified expenses in waging the takeover battle, an amount of $25 million. Other shareholders were not compensated for their expenses. The agreement was announced in a press release, issued on Sunday night, December 23. The following day, Monday, December 24, the Partnership amended its Schedule 13-D yet again, this time to say that the Partnership had agreed not to pursue its attempt to gain control of Phillips and that the Partnership would eventually dispose of its shares; the amendment, however, made no revision in the equal basis statement. The market reacted adversely to announcement of the agreement and, on that same Monday, the price of Phillips stock fell by more than nine points, closing at approximately $45 per share. The value of the blended package available to Phillips shareholders, other than the Partnership, declined accordingly. On March 3, 1985, the Phillips shareholders rejected the recapitalization plan. On March 6, the Partnership exercised its put under the December 23 agreement and sold its shares back to Phillips for $53 cash per share. Subsequently, Phillips made another Exchange Offer to its shareholders, offering another blended package Phillips valued at slightly in excess of $52 per share. At no time were all Phillips shareholders offered the same $53 cash per share received by the Partnership. II. The present case began with the filing of two stockholder derivative and class action suits, which were consolidated under the caption, Hudson v. Phillips Petroleum Co., C.A. No. 85-14/85-45. Dkt. 12, C.A. No. 85-014. The order provided that any subsequently transferred actions which related to the subject matter of the consolidated action would also be consolidated without further order of the court. Three more stockholder class actions, naming all of the Phillips and Mesa defendants, plus a fourth naming just the Phillips defendants, were consequently transferred to the District of Delaware. All were consolidated for pretrial purposes on August 8, 1985 under the caption In re Phillips Securities Litigation, Master File No. Misc. 85-75. Order No. 1 (Case Management Order), Dkt. 1. In March 1986, the district court preliminarily approved a settlement between the Phillips defendants and a class of all record or beneficial holders of Phillips stock as of December 4, 1984, and their successors in interest and transferees, through the close of business on March 29, 1985. Following notice and a hearing, the district court entered an Order and Final Judgment on June 3, 1986, dismissing with prejudice Counts IV, V, VI, VIII, IX, X and X of the Class Action and Verified Derivative Supplemental Amended Complaint (the “Complaint”) and such parts of Count VII of the Complaint which would have required proof of wrongful conduct or participation by the Phillips defendants. On May 18, 1987, the district court entered a consent order which (i) consolidated for all purposes, including trial, the five actions that named all the Phillips and Mesa defendants; (ii) dismissed with prejudice all claims other than those asserted as Counts I, II, II and VII of the Complaint; (iii) certified a class consisting of purchasers of Phillips stock during the period from December 5, 1984 through December 21, 1984; (iv) dismissed with prejudice all plaintiffs who were not members of the certified class; (v) appointed class representatives; (vi) provided a schedule and method for notification to class members. On October 13, 1988, the district court granted the Mesa defendants’ motion for summary judgment and denied the plaintiffs’ motion for partial summary judgment. Count I of the Complaint alleged violations of Section 10(b) and Rule 10b-5. The district court ruled that the plaintiffs had not introduced any evidence of scienter, a necessary element of a cause of action under Section 10(b) or Rule 10b-5. Count II alleged a cause of action under the doctrine of promissory estoppel; Count III alleged that an implied contract was formed by the equal basis statements. The district court ruled that the plaintiffs failed to adduce sufficient evidence to support either of these theories. The plaintiffs, on appeal, also claim that Count III fairly includes a claim under a theory of quasi contract. The district court dismissed this claim on summary judgment as well, ruling that a quasi contract claim was not preserved under the May 18, 1987 consent order and that, in any event, no evidence of quasi contract had been adduced. Finally, the district court dismissed Count VII, which alleged violations of the Racketeer Influenced and Corrupt Organizations Act, because in failing to produce evidence of scienter — and, thus, evidence of violations under Section 10(b) and Rule 10b-5 — the plaintiffs could not point to securities fraud as constituting the predicate acts necessary to invoke the RICO statute. Similarly, ruled the district court, the plaintiffs failed to adduce any evidence of intent to defraud and, consequently, could not prove mail fraud, under 18 U.S.C. § 1341 (1982 & Supp. Ill 1985), or wire fraud, under 18 U.S.C. § 1343 (1982 & Supp. Ill 1985), as predicate acts either. The plaintiffs appeal all of these rulings by the district court. III. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “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 a judgment as a matter of law.” An issue of material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Consequently, a plaintiff may not simply rest upon his bare allegations to require submitting the issue to a jury; rather, he must present “significant probative evidence tending to support the complaint.” Id. at 249, 106 S.Ct. at 2510 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)). The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). If the movant can, to the trial court’s satisfaction, demonstrate such a failure, the burden then shifts to the non-movant to identify which portions of the record support the allegedly unsupported element. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Jersey Central Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir.1985), cert. denied, 475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986). Summary judgment should only be granted, however, where there are no genuine issues of material fact that can only be properly resolved by a trier of fact because they may reasonably be resolved in favor of either party. As the Supreme Court has stated: [T]his standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.... If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-51, 106 S.Ct. at 2511 (citations omitted). On review of a grant of summary judgment, we apply the same test the district court should have utilized initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). We turn to the principal issues in this case, therefore, to decide whether there exists a genuine issue of material fact and, if so, whether a jury could reasonably find scien-ter from the facts contained in the record. IV. Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), forbids “manipulative” or “deceptive” conduct “in connection with the purchase or sale of any security.” Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 473-74, 97 S.Ct. 1292, 1300-01, 51 L.Ed.2d 480 (1977). Rule lob-5, promulgated under § 10(b), prohibits the making of “any untrue statement of material fact” in connection with the purchase or sale of securities. 17 C.F.R. § 240.10b-5. In order to establish a claim under § 10(b) and Rule 10b-5, a plaintiff must prove that the defendant i) made misstatements or omissions; ii) of material fact; iii) with scienter; iv) in connection with the purchase or sale of securities; v) upon which the plaintiff relied; and vi) that reliance proximately caused the plaintiffs injury. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 942-43 (3d Cir.), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985); accord Huddleston v. Herman & Maclean, 640 F.2d 534, 543 (5th Cir.1981), aff'd in part, rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983). The misrepresentations must touch upon the reasons for the investment’s decline in value. Huddleston, 640 F.2d at 549. Scienter is defined as “ ‘a mental state embracing intent to deceive, manipulate, or defraud.’ ” Dirks v. SEC, 463 U.S. 646, 663 n. 23, 103 S.Ct. 3255, 3266 n. 23, 77 L.Ed.2d 911 (1983) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193-94 n. 12, 96 S.Ct. 1375, 1381 n. 12, 47 L.Ed.2d 668 (1976)). A violation of Rule 10b-5 “may be found only where there is ‘intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities.’ ” Id. (quoting Hochfelder, 425 U.S. at 199, 96 S.Ct. at 1384). Scienter must be proven by showing the defendant lacked “a genuine belief that the information disclosed was accurate and complete in all material respects.” McLean v. Alexander, 599 F.2d 1190, 1198 (3d Cir.1979). Moreover, as we stated in McLean, “[circumstantial evidence may often be the principal, if not the only, means of proving bad faith.” Id. We have also recognized that recklessness on the part of a defendant meets the scienter requirement of Section 10(b) and Rule 10b-5. Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 649 (3d Cir.1980). Recklessness, in turn, is defined as ‘an extreme departure from the standards of ordinary care... which presents a danger of misleading... that is either known to the defendant or is so obvious that the actor must be aware of it.’ Id. (quoting Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1045 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977)). See also SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 862 (2d Cir.1968) (en banc) (“Rule 10b-5 is violated whenever assertions are made, as here, in a manner reasonably calculated to influence the investing public... if such assertions are false or misleading or are so incomplete as to mislead_”), cert. denied sub nom., Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). The district court ruled that nothing in the summary judgment record indicated the equal basis statements were considered untrue when made by the Partnership. Rather, the Partnership changed its intent to sell its shares back to Phillips only when faced with the defensive recapitalization. Consequently, said the district court, because statements in a Schedule 13-D need only be true when made, the plaintiffs failed to produce any evidence of scienter by the Partnership. We believe the district court was correct that a statement of intent need only be true when made; a subsequent change of intention will not, by itself, give rise to a cause of action under Section 10(b) or Rule 10b-5. Similarly, we think it self-evident that a change from a party’s initial statement of intent does not by itself prove that the initial statement was a misrepresentation. See, e.g., Bourdages v. Metals Refining Ltd., [1984-85 Transfer Binder] CCH Fed.Sec.L.Rep. II 91,828 at 90,168 (S.D.N.Y. 1984) (“Subsequent misleading statements or other conduct may be admissible as grounds for a reasonable inference of fraudulent intent at the time the transactions were entered into; but they are not and cannot be actionable in themselves.”). Changed circumstances naturally can require a change in plans. See, e.g., Brascan, Ltd. v. Edper Equities, Ltd., 477 F.Supp. 773, 787-88 (S.D.N.Y.1979) (no scienter existed under Rule 10b-5 where investor made a good faith representation of its intent to no longer purchase stock on one day, and then changed its intent and commenced those same purchases the next day). Thus, we believe that in these circumstances all one can fairly require is that notice of a change of intent be disseminated in a timely fashion. At least one commentator has reached the same conclusion: An express statement of intent must be correct when made and an implied intent must be true when it is implied. The Rule [10b-5] would not generally be violated merely because the representer subsequently changed his mind; accordingly, a mere breach of contract is not actionable. But he should be liable for failing to convey his change of heart to a plaintiff who thereafter made an investment decision and whom the defendant knew, or was reckless in not knowing, was relying on his intent. A defendant also violates the Rule if he defers or delays a planned course of action in order to cover up his misrepresented or concealed intent. 5A A. Jacobs, Litigation and Practice Under Rule 10b-5, § 61.01[c][iii] at 3-68 to 3-70 (2d ed.1988) (footnotes omitted). Plaintiffs contend that, if the Partnership did change its intention only to sell its stock back to Phillips on a basis equal to all other stockholders—as opposed to the Partnership having always intended to sell back on an unequal basis—then they are liable under the federal securities laws nonetheless for failing to communicate that change of intention promptly. There can be no doubt that a duty exists to correct prior statements, if the prior statements were true when made but misleading if left unrevised. See, e.g., Thomas v. Duralite Co., Inc., 524 F.2d 577, 583-84 (3rd Cir.1975) (statements about corporation’s dire financial condition, while true when made, formed basis for liability when corporation’s condition improved but speaker did not correct impression of near-insolvency before purchasing stock); see also Exchange Act Rule 13d-2, 17 C.F.R. § 240.13d-l (requiring where “any material change occurs in the facts set forth” in a Schedule 13D, that the person required to file the Schedule 13D “promptly” file “an amendment disclosing such change” with the Securities and Exchange Commission, the issuer of the security, and with any exchange on which the security is traded). The law has been less clear on what constitutes sufficiently prompt revision and dissemination of a statement of intent. With regard to amendment of a Schedule 13D, at least, the Securities and Exchange Commission itself has noted as much: No bright line test has been adopted in order to determine when an amendment to a Schedule 13D is “prompt.”... Strong policy considerations indicate that the “prompt” amendment requirement should be construed flexibly in order to comport with the circumstances of the particular case. In the Matter of Cooper Laboratories, Inc., Fed.Sec.L.Rep. (CCH) 11 83,788 at 87,-526 (June 26, 1985). We believe, as other courts have recognized, that the question of whether an amendment is sufficiently prompt must be determined in each case based upon the particular facts and circumstances surrounding both prior disclosures by the acquirer and the material changes which trigger the obligation to amend. See, e.g., Kamerman v. Steinberg, 123 F.R.D. 66, 74 (S.D.N.Y.1988) (“The determination that an amendment is ‘prompt’ under Rule 13d-2 is a question of fact to be determined from the attendant circumstances of each individual case.”); Scott v. Multi-Amp Corporation, 386 F.Supp. 44, 61 (D.N.J.1974) (treating as question of fact whether required filing was sufficiently “prompt” under Rule 13d-2); SEC v. GSC Enterprises, 469 F.Supp. 907, 914 (N.D.Ill.1979) (whether filing of amendment to Schedule 13D under Rule 13d-2 was “prompt” a question of fact). Moreover, the same type of individual fact determination must be made with regard to amending other statements made outside a Schedule 13D, but still “in connection with” the purchase or sale of a security. An example of such a statement, in the case before us, would be Pickens’s comments during the MacNeil/Lehrer News Hour. On the record before us, however, the Partnership’s delay in disseminating its change of intent could not have proximately caused the plaintiffs’ injury. The plaintiff class is defined as purchasers of Phillips stock during the period from December 5, 1984 through December 21, 1984. Assuming that the equal basis statements were a true representation of the Partnership’s intent when they were made, plaintiffs provide no evidence of a change of intent until after the stock market closed on Friday, December 21. But inasmuch as plaintiffs could not have sold their stock on the open market until it opened on Monday morning, December 24, the difference between announcing a change of intent Sunday night rather than Friday night would not have detrimentally altered plaintiffs’ opportunities. Consequently, on this record a jury could not reasonably conclude that the Partnership was dilatory in announcing its change of intent. Because the plaintiff class does not include purchasers after December 21,1984, assuming that the Partnership did change its intent over the weekend, it is difficult to understand how a delay in the announcement could have injured plaintiffs as they had already purchased the Phillips shares. We arrive at a different conclusion with respect to a jury finding of recklessness by 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. 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?

In re ATKINS’ ESTATE. ATKINS v. COMMISSIONER OF INTERNAL REVENUE. Circuit Court of Appeals, Fifth Circuit. February 25, 1929. No. 5363. J. D. Wilkinson, C. H. Lewis, and W. S. Wilkinson, all of Shreveport, La. (Wilkinson, Lewis & Wilkinson, of Shreveport, La., on the brief), for petitioner. , Mabel Walker Willebrandt, Asst. Atty. Gen., Sewall Key and Randolph C. Shaw, Sp. Asst. Attys. Gen., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Vincent J. Heffernan, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C. (Clark T. Brown, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., on the brief), for respondent. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. As appears by the decision of the Board of Tax Appeals, the question presented in this ease is whether the sum of $23,625.24, representing one-half the amount of notes given by decedent to his sons, is deductible from the decedent’s gross estate in the computation of federal estate taxes. The findings of fact by the board, which are set out in full, are as follows: “Decedent, John B. Atkins, died intestate on October 28, 1923, a resident of the state of Louisiana. Prior to July, 1922, he had given his two daughters homes and cash from time to time and kept an accurate record of such gifts. He had also given one of his-sons, J. B. Atkins, Jr., certain cash. He gave his two sons to understand that, when they became of age, he would give them amounts to equal the gifts he had made his daughters. On July 1, 1922, decedent executed and gave his sons promissory notes, payable to their order. The note to J. B. Atkins, Jr., was for the amount of $8,025.48, payable on or before 5 years after date. The note given to the other son, Joe F. Atkins, was for the amount of $39,225, payable-on or before 10 years after date. Both notes bore interest at the rate of 6 per cent. “Prior to Atkins’ death the amount of $10,000 was paid on the note given to Joe F. Atkins. The principal of the note given to J. B. Atkins, Jr., was paid in full by the heirs on March 25, 1924. The heirs have paid the balance on the note of Joe F. Atkins in full in varying amounts, beginning July 7, 1924, and final payment being made July 1, 1926.” On these facts the board held that the notes were without consideration and not enforceable against the estate; therefore, were not deductible. It may be conceded that, if the law of Louisiana, which must govern, section 403, Revenue Act of 1921 (42 Stat. 279), is not to the contrary, the decision of the board is right. It would be useless to discuss the authorities from other states, cited and followed by the board and relied on by respondent. Petitioner contends that the decedent, having made donations of money to his other children, incurred the natural obligation to equalize his gifts to all his children, and having endeavored to do so by giving the notes to his two sons, as found by the board, that under the law of Louisiana this natural obligation was sufficient consideration for the notes, and they were enforceable one-half against his estate, as an obligation of the community. The articles of the Louisiana Civil Code dealing with natural obligations are as follows : . . Art. 1757. “Obligations are of three kinds: Imperfect obligations, natural obligations, and civil or perfect obligations. “1. If the duty created by the obligation operates only on the moral sense, without being enforced by any positive law, it is called an imperfect obligation, and creates no right of action, nor has it any legal operation. The duty of exercising gratitude, charity and the other merely moral duties, is an example of this kind of obligation. “2. A natural obligation is one which can. not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice. “3. A civil obligation is a legal tie, which gives the party, with whom it is contracted, the right of enforcing its performance by law.” Art. 1758. “Natural obligations are of four kinds: “1. Such obligations as tbe law has rendered invalid for the want of certain forms or for some reason of general policy, but which are not of themselves immoral or unjust. “2. Such as are made by persons having the discretion necessary to enable them to contract, but who are yet rendered incapable of doing so by some provision of law. “3. When the action is barred by prescription, a natural obligation still subsists, although the eivil obligation is extinguished. “4. There is also a natural obligation on those who inherit an estate, either under a will or by legal inheritance, to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only.” Art. 1759. “Although natural obligations can not be enforced by action, they have the following effect: “1. No suit will lie to recover what has been paid, or given in compliance with a natural obligation. “2. A natural obligation is a sufficient consideration for a new contract.” The law of Louisiana regulating inheritance and the relation existing between parent and child differs greatly from that of most other states and is based on the fundamental principle of equality between children. There is the reciprocal duty of support between parent and child. Civ. Code, arts. 227, 229. Children may not bo disinherited, except for just causes, which are specifically mentioned, Civ. Code, arts. 1617-1621 inclusive ; and are forced heirs in the distribution of the parent’s estate, Civ. Code, art. 1493. If a donation has been made to a child in excess of the disposable portion, it must be reduced by collation. This “is founded on the equality which must be naturally observed between children and other lawful descendants.” Civ. Code, arts. 1227-1229. That equality between heirs of the same degree is a cardinal principle of the Louisiana law of inheritance is well settled in the jurisprudence of Louisiana. Montgomery v. Chaney, 13 La. Ann. 207; Succession of Maltry, 161 La. 1032, 109 So. 827. There could be no doubt that there is a moral obligation resting upon a parent to do equity between his children by equalizing his gifts to them during his lifetime. This is not seriously disputed by respondent, but a distinction is sought to be made between a moral and a natural obligation. As to this the contention is that the obligation of a parent to equalize Ms gifts to his children is not embraced in the four classes of natural obligations enumerated in article 1758, Civ. Code, and that they are exclusive. The administration of the law of Louisiana is not hampered by technical and unsubstantial distinctions. In the absence of a positive statute, it is the duty of her courts to apply the principles of equity, appealing to natural law and reason and received usages in support of those principles. Civ. Code, art. 21. And the maxim “inelusio uni-us est exelusio alterius” is not always applicable in construing the articles of the Civil Code. As a rule of construction, announced in 1838, and followed ever since, the Supreme Court said in Ellis v. Prevost, 13 La. 230: “The court cannot bo ignorant of the mode in which our'Codes were prepared and became laws. They were written by lawyers, who mixed with the positive legislation definitions seldom accurate, and points of doctrine always unnecessary. The legislature modified and changed many of the provisions relating to the positive legislation, but adopted the definitions and abstract doctrine, without material alteration; from this circumstance, as well as from the inherent difficulty of the subject, the positive provisions of our Code are often at variance with the theoretical part, which was intended to elucidate them; and whenever that occurs, we deem it a sound rule of interpretation, to disregard the doctrine, and consider the definitions modified by the clear intent of the positive enactments.” A reasonable construction of article 1758, Civ. Code, is that the four classes of natural obligations mentioned therein are illustrative, and not intended to bo exclusive, and that any natural obligation is sufficient consideration for a now contract. Apparently there is no Louisiana decision expressly holding that the obligation of a parent to equalize Ms gifts to his children is sufficient consideration for a new contract; but this, perhaps, may bo because tbe doctrine is so well understood that no one has heretofore raised the question in the settlement of an estate. That a natural obligation is sufficient consideration for a note is well settled by the following analogous eases: Matthews v. Williams, 25 La. Ann. 585, where a son gave his note in place of his father’s note, which was prescribed; Barthe v. Succession of Lacroix, 29 La. Ann. 326, 29 Am. Rep. 330, where a note was given as a gratuity beyond his wages to an old and faithful servant, in which ease the court used the expressions “moral” and “natural” obligations interchangeably; and Interstate T. & B. Co. v. Irwin, 138 La. 335, 70 So. 313, where a note was given by a bank director as a donation to make good the impairment of the capital of his bank. This last case was decided after the adoption of the Negotiable Instruments Law, also relied upon by respondent on the question of consideration. In none of these cases was there consideration for the note, other than a natural obligation. For other eases involving the same principle, though decided on other grounds, see Banta v. McSpadden, 147 La. 847, 86 So. 287; Succession of Rabasse, 49 La. Ann. 1405, 22 So. 767; Hyman v. Succession of Parkerson, 140 La. 249, 72 So. 953, L. R. A. 1917B, 694. It is hardly necessary to discuss the Uniform Negotiable Instruments Law, adopted by the Louisiana Legislature in 1904 (Act No. 64). Except as to the elihiination of days of grace, it made no material change in the law of Louisiana governing bills and notes. It is not in conflict with the articles of the Code making a natural obligation sufficient consideration for a new contract. In fact, in defining valuable consideration, section 24 provides: “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.” Section 25 provides: “Value is any consideration sufficient to support a simple contract.” Applying the law of Louisiana to the facts as found by the board, the conclusion is irresistible that a natural obligation rested on the decedent to equalize his gifts to his children; that in executing and delivering to his sons the promissory notes here in question he fulfilled that obligation; that under the law of Louisiana, which is controlling, regardless of decisions to the contrary in other states, there was sufficient consideration for the notes/and they were deductible from his gross estate in the payment of estate taxes. The petition is granted, and the judgment is reversed.

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

Albert C. ANDERSON and Olive Anderson, Plaintiffs, Appellants, v. OWENS-ILLINOIS, INC., et al., Defendants, Appellees. No. 85-1622. United States Court of Appeals, First Circuit. Heard April 11, 1986. Decided Aug. 25, 1986. John T. Barrett with whom Thornton & Early, Boston, Mass., was on brief, for plaintiffs, appellants. Lawrence G. Cetrulo with whom Burns & Levinson, Boston, Mass., was on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, ALDRICH and COFFIN, Circuit Judges. BAILEY ALDRICH, Senior Circuit Judge. Albert Anderson, plaintiff appellant, a former boilermaker and shipyard worker allegedly, suffering from asbestosis and a preexisting lung condition aggravated by exposure to asbestos, sued Owens-Illinois, Inc. and four other manufacturers of asbestos for negligence and for breach of warranty, based on their failure to warn of the dangers of asbestos exposure. Pretrial, plaintiff asked the court to strike defendants’ “state of the art” defense, and to exclude state of the art evidence for purposes of the warranty claim. The court refused. After a trial at which both sides introduced evidence on the state of the art, the court instructed the jury on its relevance and put the case to the jury on special questions. The jury returned verdicts for defendants on all claims. Plaintiff, alleging, further, various errors in the court's charge, appeals. We affirm. Plaintiff’s objections relate principally to the state of the art defense. Relying on language in Hayes v. Ariens, 391 Mass. 407, 462 N.E.2d 273 (1984), he had asked the court to instruct the jury, ... the adequacy of a warning is measured by the warning that would be given at the time of sale by an ordinarily prudent vendor who, at that time, is fully aware of the risks presented by the product. A defendant vendor is held to that standard regardless of the knowledge of risks that he actually had or reasonably should have had when the sale took place. The vendor is presumed to have been fully informed at the time of the sale of all risks. The state of the art is irrelevant, as is the culpability of the defendant____ Instead, the court charged, the duty to warn extends only to such dangers — to such dangers or defects about which the manufacturer either actually knew or about which it reasonably should have known. Now should have known here means that a manufacturer is held to that level of knowledge which the experts in the particular industry had or in view of the state of medical and scientific knowledge in general should have had at any particular point in time. Plaintiff duly excepted to the charge, both as improperly allowing the jury to consider state of the art evidence on the warranty claim and as inadequately instructing on the meaning of the term “state of the art.” We start with plaintiff’s first and, we think, most important objection. The requested charge, and, equally, the basis for the pretrial motion to strike the state of the art defense, is a virtually verbatim quote from Hayes v. Ariens, ante, 391 Mass, at 413, 462 N.E.2d 273. Plaintiff argues forcefully that the sentence, “The state of the art is irrelevant, as is the culpability of the defendant,” is dispositive. The district court, however, found this statement to be dictum, and therefore not necessarily controlling. Accordingly, it considered the law of Massachusetts as a whole, and concluded that, notwithstanding the Hayes dictum, Massachusetts law requires a seller to warn only of reasonably foreseeable or scientifically discoverable dangers. We agree in all respects with the court’s resolution. Massachusetts does not recognize the doctrine of strict liability in tort enunciated in section 402A of the Restatement (Second) of Torts. Swartz v. General Motors Corp., 375 Mass. 628, 630, 378 N.E.2d 61 (1978). It does, however, recognize the doctrine of implied warranty, Mass.Gen. Laws c. 106, § 2-314, which “[t]he Legislature has made ... congruent in nearly all respects with the principles expressed in [section 402A].” Back v. Wickes, 375 Mass. 633, 640, 378 N.E.2d 964 (1978). The Massachusetts courts, therefore, in determining the scope of warranty liability, have looked both to section 402A, e.g., Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353, 446 N.E.2d 1033 (1983), and to “the strict liability cases of other jurisdictions,” Back, ante, 375 Mass, at 640, 378 N.E.2d 964. Thus, our inquiry begins with Massachusetts warranty cases, but turns, where necessary, to the Restatement and cases from jurisdictions that recognize it. Before considering the legal issue, we note the scope of plaintiff’s contention. The state of the art defense required that even scientific experts be unaware of the danger, and thus of the risk of the injury which plaintiff ultimately suffered. Plaintiff is not claiming that the dangers inherent in defendants’ product — asbestos— were socially unacceptable, and that it should not have been put on the market at all, but, only, that when placed it should have been accompanied by a warning, even though, on defendants’ evidence, which the jury, on the basis of the charge accepted, it was impossible for anyone to say of what the warning should have consisted. With the issue thus defined, we start with the leading Massachusetts case of Back v. Wickes, ante, from which we have already quoted. This was not a warning case. There a motor home accidentally struck a cable fence at the edge of the road, causing the fuel tank to shear, inflaming the vehicle. Plaintiff contended the tank should have been within the frame, and that, if less exposed, it would not have been injured. Defendant asserted the design met highest industry practice, and that the occurrence was not foreseeable. It also claimed that there was misuse. On the warranty count the court had allowed evidence as to industry practice, and instructed the jury that if it agreed with defendant as to misuse, its verdict should be for the defendant. The jury found for the defendant. In reversing, the Supreme Judicial Court ruled that, so far as warranty was concerned, striking a side-rail was within the realm of possibilities, and that, from the standpoint of misuse, the test was the product, not the defendant’s anticipation. At the same time, the court held that there was no error in permitting defendant to show the standards of the trade, even a lower standard than state of the art, in determining whether the motor home was “unreasonably dangerous.” Thereafter, in Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 446 N.E.2d 1033 (1983), also not a warning case, the court dealt with whether the plaintiff’s contributory negligence was a defense in an action for breach of warranty of an unreasonably dangerous object, there a defective tire, or a defective trailer rig. In holding contributory negligence was not a defense, the court, as it did in Back, continued to note its adherence to the Restatement and the interpretations of other jurisdictions. Hayes v. Ariens, ante, was a failure to warn case. It arose in an unusual fashion: whether special jury findings with respect to negligence and to warranty were inconsistent. There the defendant had sold a snow blower that clogged with heavy snow. The plaintiff reached into the discharge chute, without stopping the motor, and injured his fingers. The machine bore a notice: “Caution: Stop engine before removing obstruction from blower or rake.” The plaintiff went to the jury on two theories; that the warning was inadequate, and that the machine was improperly designed because it clogged and lacked a “deadman’s clutch.” The jury found plaintiff and defendant both negligent, (with plaintiff 60% negligent, so that he could not recover under Massachusetts negligence law) but that defendant did not breach its warranty of merchantability. In reversing, the Massachusetts court held that if defendant was negligent, whether because of improper design or inadequate warning, it necessarily breached its warranty. The court thereafter engaged in a discussion as to a manufacturer not being relieved of liability for an unreasonably dangerous article even if he had taken all reasonable precautions, for which it cited Back and Correia. However, the dangers there were obvious, a far different situation from the case at bar where, it has been found, even experts did not know that dangers existed, let alone that the product was unreasonably dangerous. Under these circumstances we believe the district court was correct in saying that with respect to such facts the court’s broad language was not controlling as “considered dicta.” Michelin Tires (Canada) Ltd. v. First National Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981); cf. In re Air Crash Disaster Near Chicago, 701 F.2d 1189, 1196 (7th Cir.1983), cert. denied, 464 U.S. 866, 104 S.Ct. 204, 78 L.Ed.2d 178. Equally uncontrolling was the court’s citing plaintiff’s case of Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982), a case which did present our facts. Rather, the question is, would the Massachusetts court follow that dictum today if faced with the very different facts here presented? We believe it would not, for several reasons. We commence by noting that, subsequent to Hayes, the court used far less embracing language. In MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65 (1985), cert. denied, — U.S. -, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985), a case involving “the pill,” and where plaintiff had suffered a “stroke,” and claimed negligence and breach of warranty, the case went to the jury on what the court described as “a single claim of failure to warn.” The court referred to no absolute duty, but stated the “duty is to provide to the consumer ... reasonable notice of the nature, gravity and likelihood of known or knowable side effects.” 394 Mass, at 139, 475 N.E.2d 65. But even more important is the fact that examination of the Restatement and the weight of authority elsewhere, where unknowable dangers are involved, shows a declination to impose liability upon a manufacturer for not warning against dangers which, on the then state of the art, are not known to exist. The significant portion of the Restatement is as follows. § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer. (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer____ (2) The rule stated in Subsection (1) applies although (a) The seller has exercised all possible care in the preparation and sale of his product____ This broad language is not to be applied indiscriminately, however, without analyzing the problem. Defendants’ asbestos products are “unreasonably dangerous,” even post facto, only in the claimed sense of a lack of warning. But if a danger is unknowable, how can effective warning be given? To warn that a product may have unknown and unknowable risks is to give no meaningful warning at all. See Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing, 58 N.Y.U.L.Rev. 734, 747 (1983). That this situation is outside the black letter Restatement is flagged by comment j, which reads, in part, “ ... if the ingredient is one whose danger is not generally known, ... the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger ...” Although differently expressed, this is exactly the charge the court gave. Plaintiff says it is a negligence charge, but it is not. It imposes a much higher standard than due care, but speaks in terms of expert knowledge, the product itself, exactly the distinction drawn in Back, 375 Mass., ante, at 643, 378 N.E.2d 964, Cases elsewhere do the same. E.g., Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1088 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (Texas law); Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir.1969) (Connecticut law); Woodill v. Parke-Davis, 79 Ill.2d 26, 37, 37 Ill.Dec. 304, 308, 402 N.E.2d 194, 198 (1980); Oakes v. Geigy Agricultural Chemicals, 272 Cal.App.2d 645, 650, 77 Cal.Rptr. 709, 713 (1969). See Murray, Requiring Omniscience: The Duty to Warn of Scientifically Undiscoverable Defects, 71 Geo.L.J. 1635, 1638-39 (1983). It should also be noted that in citing Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 834-35 (1973), the Hayes court failed to observe that in his article in 58 N.Y.U.L.Rev., ante, at 763, the author had accepted the distinction in the present issue. See, also, Page, Generic Products Risks: The Case Against Comment k and for Strict Liability, 58 N.Y.U. L.Rev. 853, 921 (1983). We believe the Hayes dictum is not the law. Nor do we think this conclusion to be contrary to the Hayes court’s looking to manufacturer’s liability insurance to spread the loss. An insurance company must appraise risks to determine premiums. It is appropriate that it consider scientific knowledge, as distinguished from the conduct of its individual insureds, but beyond that it, and the consumer on whom the premium ultimately falls, should not be riding blind. If a manufacturer, with the best scientific knowledge available, cannot tell his consumer to guard against asbestos dust, or, say, against asbestos fumes when it is hot, or to protect the skin from contact over prolonged periods, or not to be burdened at all, as ultimately the case may be, equally we consider it socially undesirable that insurance must be bought, and computed on an equally blind basis. It should be time enough to charge manufacturers when there is something to point to beyond scientific unanticipated consequences. Neither is there any merit in the claim that the court “transferred the burden of proof on this issue to the plaintiff.” Plaintiff failed to take a proper and timely objection to the District Court’s charge. Merely objecting to the court’s declaration that the state of the art issue was “the nub of the case” did not constitute a distinct objection to the burden of proof instruction. Fed.R.Civ.P. 51. Plaintiff, moreover, never requested an instruction placing the burden of proof for state of the art on the defendants. He cannot, therefore, argue on appeal that he was prejudiced by the court’s charge. Furthermore, it is far from clear that the court did place the burden of proving the state of the art on the plaintiff. Again, plaintiff would have defendants weigh their conduct “against the danger.” However relevant that often is, or even might have been here, it is inapplicable when, on the jury’s findings, there was no knowable danger to weigh against. If, which we do not suggest, there was error, there was no prejudice. The same is to be said with regard to plaintiff’s complaint of the court’s failure to charge that defendants had a duty to test. The court correctly felt it was irrelevant. Since defendants were held to be knowledgeable to the measure and extent of scientific experts, their testing of the product could not have added anything. Absent a showing of what else defendants could have learned, there could be no prejudice. Plaintiff has no valid complaints as to the charge. We come finally to plaintiff’s request for a new trial against Carey Canada, Inc. on the issue of damages. As to this defendant, the jury answered special question 2, “Was defendant negligent by failing to warn users ... subsequent to sale ...?” in the affirmative, but question 3, “Was plaintiff exposed to any asbestos containing products of defendant?” in the negative. The jury did not answer question 4, relating to injury and causation. Plaintiff contends that, because a sanction order entered September 26, 1984 mandated findings of exposure, injury, and cause, the court, on receiving the verdict of negligence, should have instructed the jury on the effect of the order, and sent them out for further deliberations on damages. Here again, plaintiff’s argument must fail for lack of a specific objection. Simply stated, his present argument is that material established facts were improperly drawn from the jury’s consideration. At no time until the verdict had been returned, however, did plaintiff even request that the jury be informed of the order. Instead, he rests his present argument on a brief colloquy that occurred before opening statements. MR. TRULAND: Your Honor, there was the matter of the sanctions against Carey Canada. I just wanted to clear up before Mr. Motley makes his opening whether they will be handled the same way as they were in the Santa Maria case? THE COURT. Yes. From this one oblique reference, before the trial commenced, to an earlier trial, plaintiff must now argue that the court was duly forewarned of his expectations concerning treatment of the order at the end of the trial. Assuming this to be a promise of future conduct by the court, it was for plaintiff to complain when it did not occur. It is universal practice that a court be given opportunity to correct its mistake, if any there be. This ruling makes it unnecessary to reach defendants’ not unmeritorious contention that any error here was harmless in light of the jury’s finding that plaintiff suffered no compensable damages. Affirmed. . All asbestos cases in the District of Massachusetts have been placed on a consolidated docket for pretrial management. These motions were made on the consolidated docket, and their disposition applies to all cases on that docket, including plaintiffs. . Note, in this connection, the court’s response to appellant’s post-verdict suggestion that the jury be reinstructed and sent back out: "I wish you had brought it to my attention ahead of time so I could have instructed it.”

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

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

TUNSTALL v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al. No. 5125. Circuit Court of Appeals, Fourth Circuit. April 9, 1945. Charles H. Houston, of Washington, D. C. (Joseph C. Waddy, of Washington, D. C., on the brief), for appellant. William G. Maupin and James G. Martin, both of Norfolk, Va. (Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, on the brief), for appellees. Before PARKER, SOPER, and DOBIE, Circuit Judges. PARKER, Circuit Judge. This is a suit by a Negro fireman employed by the Norfolk-Southern Railway Company, who brings the suit in behalf of himself and other Negro firemen employed by that company. The defendants are the railway company, the Brotherhood of Locomotive Firemen and Enginemen, certain subordinate lodges of that brotherhood and one of-the officers of a local lodge. The gravamen of the complaint is that the brotherhood has been selected as bargaining agent of the firemen of the defendant railway company; that it excludes Negro firemen from membership; that it has negotiated a trade agreement with the company discriminating against Negro firemen; and that as a result of this agreement plaintiff has suffered discrimination with respect to seniority rights and has been damaged thereby. The relief asked is a declaratory judgment to the effect that the brotherhood as .bargaining representative is bound to represent fairly and without discrimination all members of the craft, an injunction restraining the defendants from giving effect to the trade agreement in so far as it discriminates against Negro firemen and restraining the brotherhood from acting as bargaining representative of Negro firejmen so long as it refuses to represent them fairly and impartially, an award against the brotherhood for damages sustained by plaintiff, and an order that plaintiff be restored to the position to which he would be entitled by seniority in absence of the contract. In the court below motions were made to dismiss the case on the grounds that process had not been served on the brotherhood and one of its subordinate lodges and that the court was without jurisdiction of the causes of action alleged. The court overruled the motion based on lack of service of process but dismissed the case because of opinion that there was lack of jurisdiction of the causes of action. We affirmed the dismissal on the authority of decisions which we thought controlling rendered by the Supreme Court while the appeal was pending before us. See 140 F.2d 35. The Supreme Court reversed the dismissal and remanded the case to us for consideration of the jurisdictional questions arising out of service of process. 323 U.S. 210, 65 S.Ct. 235. With respect to the service of process, it appears that summons wa.s issued against the brotherhood, two of its subordinate lodges, Ocean Lodge No. 76 and Port Norfolk Lodge No. 775, W. M. Munden, Chairman of Ocean Lodge, and the railway company. Defendants admit that it was duly and regularly served upon the railway company, Port Norfolk Lodge and W. M. Munden, but deny that the brotherhood and Ocean Lodge were served, since service was not made on an officer, manager or general or authorized agent of the brotherhood and the only service upon Ocean Lodge was service upon its chairman by leaving copies of the summons and complaint with his wife at his usual place of business. They ask that the suit be dismissed as to all parties because they contend that the brotherhood has not been made a party and that its presence is indispensable to jurisdiction against the others. Plaintiff contends that the suit is a class suit and that the service obtained upon members of the class is sufficient to give the court jurisdiction. Three questions are presented for our consideration: (1) May a class suit be brought against an unincorporated association in such a way as to bind the association? (2) May the suit here be treated as such a class suit? (3) If so, has there been sufficient service of process to bring the brotherhood into court? We think that all of these questions should be answered in the affirmative. The right to bring a class suit to enforce the liability of an unincorporated association existed long prior to the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Smith v. Swormstedt, 16 How. 288, 302, 303, 14 L.Ed. 942. In Story’s Equity Pleading, from which quotation is made in the case cited, Mr. Justice Story arranges the cases in which a class suit is proper as follows : “1. Where the question is one of a common or general interest, and one or more sue or defend for the benefit of the whole. 2. Where the parties form "a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; and 3. Where the parties are very numerous, and though they have or may have separate and distinct interests, yet it is impracticable to bring them all before the court.” See also 39 Am.Jur. pp. 920-921, 924. That an unincorporated labor association may sue and be sued in equity in a class suit, with the suit brought by or against representatives of the class is but an application of the well settled general rule. Evenson v. Spaulding, 9 Cir. 150 F. 517, 9 L.R.A.,N.S., 904; Philadelphia Local 192 of American Federation of Teachers v. American Federation of Teachers, D.C., 44 F.Supp. 345; International Allied, etc., Ass’n v. Master Printers Union, D.C., 34 F.Supp. 178; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753, 760, 761, 6 L.R.A.,N.S., 1067, 116 Am.St.Rep. 272, 7 Ann.Cas. 638; Reynolds v. Davis. 198 Mass. 294, 84 N.E. 457, 17 L.R.A.,N.S., 162; Oster v. Brotherhood of Locomotive Firemen & Enginemen, 271 Pa. 419, 114 A. 377. Even in a state like West Virginia which adheres to the common law rule that an unincorporated labor association may not be sued as an entity, see Milam v. Settle, W.Va., 32 S.E.2d 269, such an association may be sued in the state courts by naming as parties and serving individually some of the members composing the association. See West v. Baltimore & Ohio R. Co., 103 W.Va. 417, 137 S.E. 654; Simpson v. Grand International Brotherhood of Locomotive Engineers, 83 W.Va. 355, 98 S.E. 580. The federal rules have in no wise limited or restricted the right to bring class suits in proper cases. Rule 23 provides for them; and, in a note to the rule, the Rules Committee states that it is a substantial restatement of the former equity rule as that rule has been construed by the courts. Subsection a(l) of the rule provides for class actions where the character of the right sought to be enforced for or against the class is joint or common and the persons constituting the class are so numerous as to make it impracticable to bring them all before the court, the typical case of suit by or against an unincorporated association. Professor Moore in Federal Practice vol. 2, p. 2235 et seq. cites sui-ts against unincorporated associations as typical of what he calls the “true class suit” under this rule, i.e. a suit wherein, hut for the class action device, the joinder of all interested persons would be essential. And there is nothing in rule 17(b) which limits the right to bring a class suit under rule 23(a) in proper cases. Rule 17 (b) relates to capacity to sue or be sued; and it provides that, where a partnership or unincorporated association has no such capacity by the law of the state where the court is held, it may nevertheless sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States. There is nothing in this that limits the right to bring the unincorporated association into court by means of a class suit in accordance with the prior practice; and the right to bring such class suit continues to be of great value when the right to sue the association in its common name is, for any reason, unavailable. Instances where it is not available are cases where jurisdiction based on diversity would be defeated by a suit by or against the association but not by a suit by or against representatives or where, as here, it is not possible for the plaintiff to serve process on the association within a convenient jurisdiction. See Moore’s Federal Practice vol. 2 p. 2236; Philadelphia Local 192, etc., v. American Federation of Teachers, D.C., 44 F.Supp. 345. The manifest purpose of the provision of rule 17(b) relating to suits against partnerships and unincorporated associations is to add to, not to detract from, the existing facilities for obtaining jurisdiction over them. The language of rule 17(b) relating to suits against partnerships and unincorporated associations is permissive. So also is the language of rule 23(a). Together they provide alternative methods of bringing unincorporated associations into court. If this were not a class suit, but merely a suit against the unincorporated association in its common name as an entity, there would be much force in the position that the entity was not adequately served. International Brotherhood of Boilermakers v. Wood, 162 Va. 517, 175 S.E. 45, 48. The second question, therefore, becomes important: may the suit as brought be treated as a class suit? We think that it may, since it was undoubtedly brought as a class suit as well as a suit against the brotherhood in its common name. It will be noted that no relief was asked against Munden or the two local lodges except the relief .asked against the brotherhood; and it is perfectly clear that they were joined merely as membex-s of the class constituting the brotherhood against which relief was asked in accordance with the practice prevailing in class suits. This is expressly stated in the complaint. Paragraph 4, which relates to the subordinate lodges, contains the following allegation: “Upon information and belief plaintiff alleges that the defendant subordinate lodges constitute' all of the lodges of the -defendant Brotherhood within the territorial limits of the Norfolk Division of the United States District Court for the Eastern District of Virginia, and are truly and fairly representative of the remaining lodges of the Brotherhood and of the Brotherhood itself, and the interest of all the members, subordinate lodges and the Brotherhood will be adequately represented in the premises by the defendant of record. The defendant subordinate lodges arre sued as representatives of the membership, all the subordinate lodges and the Brotherhood itself." (Italics supplied). Paragraph 5 of the .complaint relates to the defendant Munden and states: “He is Local Chairman of defendant Ocean Lodge, No. 76, and acts for the Brotherhood in enforcing the schedule of rules and working conditions and in matters of grievance adjustments and job assignments on the Northern Seniority District of said Railroad. He is sued in his own right and as a representative of the members of the Brotherliood, particularly those employed on the Norfolk Southern Railroad and its successor in interest, the Norfolk Southern Railway Company." (Italics supplied). Coming to the third question, the inquiry heré is not whether the service was sufficient in a suit against the brotherhood as an entity under its common name (where the provision of Rule 4(d) (3) would be applicable), but whether the joinder and service upon members of the brotherhood was sufficient to bring them as a class before the court in a class suit under Rule 23(a). The answer is that the two subordinate lodges within the court’s jurisdiction were joined, one was unquestionably served, and service was made upon the local chairman of the other. The member who was served was not only chairman of a subordinate lodge but was also representative of the brotherhood, as bargaining agent, in enforcing the rights of employees under their trade agreement with the railway company. This service, as a matter of fact, did bring the brotherhood in, fighting. It cannot be contended with any show of reason that Munden and the subordinate lodge, who were admittedly served, were not fairly representative of the membership of the brotherhood, or that service upon them would not give adequate notice to the class sued to come ,in and defend ; and this, we think, is the criterion as to the sufficiency of joinder and service in a class suit. See United States v. Old Settlers, 148 U.S. 427, 480, 13 S.Ct. 650, 37 L.Ed. 509; Smith v. Swormstedt, supra, 16 How. 288, 302, 303, 14 L.Ed. 942;. McClelland v. Rose, 5 Cir., 247 F. 721, 724; American Steel & Wire Co. v. Wire Drawers’, etc., Union, C.C., 90 F. 598, 607; 39 Am.Jur. 922; note Ann.Cas.1913C, p. 656. And see, also, Operative Plasterer’s and Cement Finishers International Ass’n etc. v. Case, 68 App.D.C. 43, 93 F.2d 56, 65, where service upon the secretary-treasurer of a local union was deemed sufficient to bring the international association into court. While the suit there was against the association in its common name, the same principle would be applicable as to the necessity of serving someone “whose character in relation to the association is such that it could be reasonably expected that he would give notice of the suit to his association.” There is a question whether under the doctrine of the Operative Plasterer’s case, supra, service upon Munden and Norfolk Lodge was not service upon agents of the brotherhood sufficient to bring it before the court as an entity, if it had been sued only in its common name and no other element of a class suit had been present. The brotherhood was operating as bargaining agent for the railway company’s employees within the court’s jurisdiction. In performing its functions as bargaining agent it acted through its subordinate lodges and the officers of those lodges. The subordinate lodges and their officers were unquestionably agencies acting for the brotherhood; and it is not clear why service upon them as agents of the brotherhood would not be sufficient to bring the brotherhood into court. An association or corporation certainly ought not be heard to say that agents through which it transacts the very business for which it is organized and through which it collects funds in a given territory are not agents of such character that process may be served upon them. We need not decide this question, however, as we think that the suit here was unquestionably maintainable as a class suit and that there has been sufficient service upon representative members to give jurisdiction over the entire class constituting the brotherhood. On the same principle, we think that service on Munden was sufficient to bring into court those who were associated with him in Ocean Lodge, whether sufficient to bring in the lodge as an entity or not. , This, however, is unimportant, since the only purpose of joining the lodge was to bring in members of the class sued, and even without that lodge there was sufficient representation. For the reasons stated, we think that there was sufficient service of process to bring the defendants before the court and that the court had jurisdiction of the causes of action alleged. The judgment of dismissal will accordingly be reversed and the cause will be remanded to the District Court for further proceedings not inconsistent with this opinion or the opinion of the Supreme Court. Reversed and remanded.

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Raymond H. COMER, Defendant-Appellant. No. 14332. United States Court of Appeals Sixth Circuit. March 6, 1961. N. Mitchell Meade, Asst. U. S. Atty., Lexington, Ky. (Jean L. Auxier, U. S. Atty., John W. Morgan, Asst. U. S. Atty., Lexington Ky., on the brief), for plaintiff-appellee. Harry B. Miller, Lexington, Ky. (Miller, Griffin, Marks & Stephens, Lexington, Ky., on the brief), for defendantappellant. Before McALLISTER, Chief Judge, and MILLER, Circuit Judge, and THORNTON, District Judge. PER CURIAM. The appellant, Raymond H. Comer, was found guilty by a jury in the District Court of conspiring during April, May, and June 1959 with John J. Lang to wilfully attempt to evade and defeat the special tax of $50.00 per year imposed by Section 4411, Title 26, U.S.Code, to be paid by each person engaged in the business of receiving wagers, and of wilfully attempting to evade and defeat the 10% excise tax imposed by Section 4401, Title 26 U.S.Code, on wagers placed with him while engaged in such business during the period of April 4, 1959, through April 30, 1959. Appellant owned a building in Lexington, Kentucky, in which he operated a restaurant and bar. He used a room on the second floor as his living quarters. On or about January 15, 1959, he rented another upstairs room to Lang who admittedly operated a handbook therein until raided by Internal Revenue Agents on May 14, 1959. It is conceded that the special tax of $50.00 per year had not been paid, and necessarily no stamp indicating payment was displayed. Both appellant and Lang testified that appellant had no proprietary interest in the bookmaking operation and that appellant was merely the landlord of Lang. It is appellant’s contention that the evidence was insufficient to take the case to the jury as against the appellant. In particular, he contends that the evidence failed to prove under the first count knowledge on the part of appellant that the $50.00 gambling tax had not been paid, which was necessary in order to sustain the charge of conspiring to evade the tax, and also failed to prove under the second count that the 10% excise tax had not been paid for the period specified in the indictment, namely, April 4, 1959, through April 30, 1959, although Lang admitted in his testimony that it had not been paid for the period of January 15, 1959, through March 31, 1959. The evidence showed that it was necessary for appellant to go through the betting room to reach his living quarters; that an Internal Revenue Agent secured admittance to the betting room on nine different occasions between April 4, 1959, through May 14, 1959, the day of the raid, and placed bets with Lang; that appellant was seen in the betting room on at least three of these occasions; that on one occasion he produced, at the request of Lang, some papers which were needed by Lang to determine whether the agent had made a winning or losing bet on a prior day; that most of the equipment in the gaming room, including the television set and the radio, was owned by appellant; that a Western Union clock, which is usually essential in the operation of such a business, was in the gaming room, listed as “Merry-Go-Round” at the time it was taken out, the rental for which was being paid by appellant; that appellant had a key to the cabinet under the counter over which Lang accepted bets and made payments; and that there was a metal box in appellant’s living quarters at the time of the raid containing $1,180„00, while there was only $3.91 in the cash drawer underneath the gaming counter. There were other activities by appellant, which, though minor when considered alone, reasonably supported the inference of appellant’s participation in the handbook operation. The evidence against appellant was circumstantial, but circumstantial evidence, if strong enough to convince a jury of a defendant’s guilt beyond a reasonable doubt, is sufficient to sustain a verdict. Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150; Blalack v. United States, 6 Cir., 154 F.2d 591, 594, certiorari denied 329 U.S. 738, 67 S.Ct. 67, 91 L.Ed. 637, rehearing denied 329 U.S. 828, 67 S.Ct. 184, 91 L.Ed. 703; White v. United States, 4 Cir., 279 F.2d 740, 748. We are of the opinion that the evidence in its entirety, with all the reasonable inferences permitted to be drawn therefrom by the jury, Henderson v. United States, 6 Cir., 218 F.2d 14, 19, 50 A.L.R.2d 754, certiorari denied 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253, rehearing denied 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290; United States v. Masiello, 2 Cir., 235 F.2d 279, 284-285, certiorari denied Stickel v. United States, 352 U.S. 882, 77 S.Ct. 100, 1 L.Ed.2d 79, was sufficient to take the case to the jury under both counts of the indictment and to sustain the verdicts thereunder. The judgment is affirmed.

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

Are there two issues in the case?

Dimitrios AVRAMIDIS, et al., Plaintiffs, Appellants, v. ARCO PETROLEUM PRODUCTS COMPANY, et al., Defendants, Appellees. No. 86-1110. United States Court of Appeals, First Circuit. Argued June 2, 1986. Decided Aug. 12, 1986. Myles Jacobson, Boston, Mass., for appellants. Richard Elliott Powers with whom Richard L. Neumeier, Gary D. Buseck and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for appellees Atlantic Richfield Co. and ARCO Petroleum Products Co. William G. Lowerre, Shell Oil Co. Legal Dept., Houston, Tex., for appellee Shell Oil Co. Before COFFIN, Circuit Judge, BROWN, Senior Circuit Judge, and BOWNES, Circuit Judge. Of the Fifth Circuit, sitting by designation. JOHN R. BROWN, Circuit Judge: In this appeal, a group of gasoline station lessees challenges an order of the District Court lifting a preliminary injunction. The injunction had been entered pursuant to the authority of the Petroleum Marketing Practices Act in order to prevent the consummation of a sale of 29 Atlantic Rich-field gasoline marketing franchises to the Shell Oil Company. The lessees claim that, by lifting the preliminary injunction, the District Court permitted their franchises to be terminated without the required 180-day statutory notice period. We disagree and affirm. Arco Pulls Up Stakes This case involves the construction of various provisions of the Petroleum Marketing Practices Act (PMPA), 15 U.S.C. §§ 2801-2806. The PMPA governs certain aspects of the relationships between gasoline marketers and their franchisees (hereafter referred to as dealers), including the termination of franchises. Under § 2804(b)(2)(A), a franchisor who elects to discontinue marketing gasoline in a given geographical market area must so notify any dealer in that area not less than 180 days before the effective termination date of the franchise. In addition, if the dealer is a lessee, the franchisor withdrawing from the geographical market must do one of two things: either it must make a bona fide offer to sell the franchisor’s interest to the dealer, 15 U.S.C. § 2802(b)(2)(E)(iii)(I), or if the franchisor offers to sell two or more of its outlets to another franchisor, it must ensure that the proposed purchaser offers the dealer a “nondiscriminatory” franchise — i.e., a new franchise agreement on the same terms as offered to the purchaser’s existing dealers, 15 U.S.C. § 2802-(b) (2) (E)(iii) (II)- With that statutory backdrop in place, we come to the facts of this case. In the spring of 1985, Atlantic Richfield Company (Arco) decided to sell its marketing and refining assets located east of the Mississippi River. On May 21, 1985, Arco sent written notice to its various dealers in that area advising them that their franchise agreements with Arco would be terminated on November 30,1985. Arco then sought a purchaser for its eastern assets. On July 19,1985, about two months after its written notice of termination, Arco entered into an agreement with Shell Oil Company (Shell) by which Shell would purchase from Arco approximately 400 Arco service stations located in the northeastern United States. Pursuant to the terms of this agreement, Shell agreed to offer to each Arco dealer a nondiscriminatory franchise, as required by the PMPA. In early September, Shell sent each Arco dealer a franchise agreement, a lease setting forth the rents that Shell would charge over a three-year period, and a notice concerning Shell’s Variable Rent Program. The Variable Rent Program was a voluntary program under which a dealer could earn a reduction in contract rent based upon sales of Shell gasoline that exceeded a prescribed volume. The notice indicated that the Variable Rent Program would be made available to the dealers after six months, a time apparently required by Shell to determine a Shell gasoline “volume history,” i.e., quota, for each dealer. The Arco dealers were given a fixed period of time to execute the franchise agreement and lease, and all of the dealers involved in this litigation did so, although several signed the agreements reserving their right to pursue the instant action. Litigation Sets In On October 22, 1985, 29 Arco dealers in the Boston, Massachusetts area brought this civil action against Arco and Shell. In their complaint, brought pursuant to 15 U.S.C. § 2805(a), the dealers alleged that (i) Arco did not make its determination to withdraw from the eastern market in good faith, (ii) Shell’s offer to the Arco dealers discriminated against them in favor of existing Shell dealers, and (iii) the Arco dealers were entitled under the PMPA to purchase their stations from Arco. The dealers sought to enjoin Arco from terminating their franchises and to enjoin Shell from purchasing their franchises. The dealers also sought a declaration that each dealer had a right “to receive an offer to purchase Arco’s interest in his respective marketing premises” pursuant to the PMPA. The dealers moved for a preliminary injunction under 15 U.S.C. § 2805(b)(2), which provides for a granting of a preliminary injunction when the dealer shows that its franchise is being terminated, and when “there exists sufficiently serious questions going to the merits to make such questions a fair ground for litigation____” Id. § 2805(b)(2)(A)(i), (ii). After a hearing the District Court issued the requested preliminary injunction on November 29, 1985, one day before the proposed terminations were scheduled to go into effect. The District Court first found that the dealers had not offered sufficient evidence to support their claim that Arco’s decision to withdraw from the eastern market was not made in good faith. It also found, however, that Shell’s failure to specify precisely the terms of its Variable Rent Program in its franchise offers brought into question the validity of those offers by making them “too indefinite and uncertain for enforcement.” Although the dealers knew what their maximum monthly rent would be, they claimed not to know how to determine the potential reductions in rent available under the program. The District Court concluded that “without stated standards, Shell could apply the VRP in an arbitrary, or even discriminatory, manner based on plaintiffs’ conformity to Shell’s marketing plans.” The District Court did, however, expressly provide that its order was without prejudice to Shell and Arco seeking reconsideration based on a more precise definition of the terms of the Variable Rent Program. Moreover, the District Court denied the dealers’ requested order directing Arco to offer the dealers an opportunity to purchase Arco’s interest in their franchises. The District Court ruled that such relief would be permanent, not preliminary, and in any event, the PMPA did not require Arco to offer its dealers an opportunity to purchase their franchises. Shell subsequently submitted affidavits containing additional details about its Variable Rent Program and moved for reconsideration of the preliminary injunction. After a hearing the District Court found that any defect in Shell’s offers had been cured and that the modified offer was sufficiently definite to constitute a valid offer under the PMPA. On February 11, 1986, the District Court dissolved the preliminary injunction, thereby allowing the franchise terminations to become effective, the sales of the service stations to close, and the dealers to become Shell franchisees. The dealers moved unsuccessfully for a stay pending appeal, both in the District Court and in this Court. On February 15, 1986, after these motions were denied, Shell and Arco closed the sales of the Arco franchises and Arco ceased selling gasoline to the dealers. The dealers now appeal the District Court’s decision to vacate the preliminary injunction. The Dealers Fight a Rearguard Action On appeal, the dealers do not challenge the District Court’s finding that the details of Shell’s Variable Rent Program became sufficiently explicated to transform Shell’s formerly indefinite franchise agreements into valid offers. Rather, the dealers assert that by dissolving the preliminary injunction as soon as the offers became valid (and thus terminating the dealers’ Arco franchises), the District Court allowed Arco to terminate their franchises without providing them with the requisite statutory 180-day notice period that is required before termination can take effect. In other words, the dealers by this appeal request that we order the District Court (1) to require Arco to give a new 180-day notice period prior to a new specified termination date, and (2) to require Shell to renew its franchise offers during that new notice period. We begin our analysis with the standard of review. As we pointed out above, the PMPA directs the District Court to grant a preliminary injunction when “there exists sufficiently serious questions going to the merits to make such questions a fair ground for litigation____” 15 U.S.C. § 2805(b)(2)(A)(ii). In lifting the preliminary injunction, the District Court impliedly determined that the contentions remaining in the dealers’ complaint (after the offer was found to be nondiscriminatory) were no longer sufficiently “serious questions going to the merits.” We review that determination under an abuse of discretion standard. Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981) (decision to grant or deny preliminary injunction is reviewable only for abuse of discretion). The dealers’ contention regarding their entitlement to a “new” 180-day notice period necessarily must be judged against the statutory provisions of the PMPA. Unless there is a “serious question going to the merits” that the dealers are entitled to what they seek, then the District Court did not abuse its discretion in lifting the preliminary injunction. We therefore examine the relevant provisions of the PMPA. Under the PMPA, a franchisor may terminate an unexpired franchise only if the two requirements contained in § 2802(b) are met: the franchisor must satisfy the minimum notice requirements prescribed in § 2804, and the reason for the termination must fall within one of the five categories deemed bona fide grounds for termination by § 2802(b)(2). In this case, the reason for Arco’s termination of its eastern franchises is contained in the fifth of the five categories, “a determination made by the franchisor in good faith and in the normal course of business to withdraw from the marketing of motor fuel through retail outlets in the relevant geographical market area.” 15 U.S.C. § 2802(b)(2)(E). The issue of the good faith of Arco’s decision to withdraw from the eastern United States is not before us on appeal, so we limit our inquiry to the question of notice. Section. 2804 prescribes different notice periods depending on the circumstances of the termination. Section 2804(b)(2)(A) governs the notice requirements for terminations based on the franchisor’s decision to withdraw from a relevant geographical market area. “In the case of any termination of any franchise ... pursuant to the provisions of section 2802(b)(2)(E) of this title [the ‘geographical withdrawal section, see note 3 supra ] ... the franchisor shall ... furnish notification to the franchisee not less than 180 days prior to the date on which such termination or nonrenewal takes effect____” Id. The notification must be in writing and it must contain “the date on which such termination or nonrenewal takes effect.” 15 U.S.C. § 2804(c)(1), (c)(3)(B). It is undisputed that Arco’s May 21,1985 notice was furnished to the dealers more than 180 days before the announced November 30, 1985 termination date. The dealers, however, assert that when the District Court’s November 29th preliminary injunction eliminated the proposed November 30th terminations, the dealers became entitled to new written notification containing a new specific termination date set at least 180 days in the future. They assert that the District Court did not have the power to “cure” and thereby reinstate Shell’s offers; instead it was required to reinitiate the entire 180-day notice and termination process. We disagree. We first observe, as did the District Court, that 15 U.S.C. § 2804(b)(2)(A) prescribes a minimum notice period, but not a maximum. Although the franchisor must provide at least 180 days notice to a to-be-terminated dealer, nothing in the PMPA prevents the franchisor from providing more than 180 days notice. Thus, barring any other infirmities, Arco’s May 21, 1985 notification — more than 190 days before the proposed November 30, 1985 termination date — provided more than sufficient notice of the franchise terminations. That these terminations actually occurred on February 11,1986, the date the preliminary injunction was dissolved, instead of November 30, 1985, as originally proposed, does not violate the 180-day requirement. The dealers argue, however, that the written notification is required to announce the date on which the franchise termination is to take effect. See 15 U.S.C. § 2804(c)(3)(B). They claim that, contrary to the statute, the lifting of the preliminary injunction effectively terminated their franchises without providing them with 180 days notice of the specific date on which their franchises would be terminated. They cite Blankenship v. Atlantic Richfield Co., 478 F.Supp. 1016 (D.Oregon 1979), and Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380 (10th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1982), for the propositions that strict compliance with the notice requirements is necessary and that the courts are without authority to cure or waive notice defects. We find the dealers’ argument to be unpersuasive. The purpose of the PMPA’s notice of termination requirements is to give the dealer sufficient advance warning of the impending termination so that he may make appropriate arrangements. See Frankard v. Amoco Oil Co., 116 Wis.2d 254, 342 N.W.2d 247, 252 (Wis.App.1983) (“sufficient time to seek other distributors so that business will continue uninterrupted”); Davis v. Gulf Oil Corp., 485 A.2d 160, 167 (D.C.App.1984) (“a reasonable period of time in which to make arrangements to dissolve or relocate their businesses”). In Blankenship and Thompson — the cases cited by the dealers as requiring strict notice compliance — the courts were faced with franchisors who provided less than the minimum statutory notice and sought equitable relief from the letter of the PMPA. Under the facts before them, those courts properly refused to waive the statutory notice period. Here, in contrast, the dealers received more than the minimum statutory notice, but through their preliminary injunction, extended the effective termination date by several months. Because the dealers’ own efforts transformed a definite termination date into a later unspecified date, they cannot now complain that they had insufficient notice of the terminations or that a new notification containing a specific new termination date is required. As the District Court observed, “only because of the Court’s involvement is the notice arguably out of compliance with the statute.” The dealers also argue that the PMPA’s statutory scheme implicitly supports their claim that a new 180-day notice period is required. Their argument runs as follows: the PMPA makes certain equitable relief available to a dealer who challenges a proposed termination only within 180 days of the notice of termination. 15 U.S.C. § 2805(b)(4)(B). Therefore, any nondiscriminatory offer made by the franchisor’s successor (here, Shell) must be made within the 180 day period following the termination notice. Otherwise, the dealers argue, the successor could avoid mandatory injunctive relief by delaying its offer until after the 180 day period had passed. The dealers’ argument misses the mark. First, the PMPA does not require that the franchisor’s successor make its nondiscriminatory offer within any particular time. See 15 U.S.C. § 2802(b)(2)(E)(iii)(II) quoted in note 3 supra. In contrast, the PMPA provides a specific timetable for those situations in which the franchisor offers to sell its franchise to the dealer or offers the dealer a right of first refusal. See id. § 2802(b)(2)(E)(iii)(I) quoted in note 3 supra. The fact that one subsection prescribes specific time periods and the adjacent subsection does not must reflect Congress’s wish not to restrict the bargaining flexibility of a franchisor wishing to sell a number of franchises. Second, the purpose of the 180-day notice period is to allow the dealer to make the necessary arrangements to address the termination of his franchise; it is not to allow him to mull over a successor franchisor’s offer. The relief that the dealers seek is from termination and they had more than enough notice of that. Under the PMPA, they do not need another 180 days to decide whether to accept Shell’s offers. Conclusion In its initial granting of a preliminary injunction, the District Court, in its own words, “endeavored to get for the plaintiffs as much as the Court felt could properly be obtained for them within the letter and spirit of the [PMPA].” We find no statutory basis, however, for the dealers’ claim that they are entitled to a new 180-day notice period. Thus, the District Court did not abuse its discretion in lifting the preliminary injunction, nor did it commit any error of law in its reading of the PMPA. The dealers have waged a spirited fight and have managed to delay the inevitable for several months, but their arguments have finally run out of gas. AFFIRMED. . The PMPA allows franchises to be terminated for only five specified reasons, namely, (1) the franchisee’s failure to comply with a material and reasonable provision of the franchise, (2) the franchisee’s failure to exert good faith efforts to carry out the provisions of the franchise, (3) the occurrence of an event which is relevant to the franchise relationship and which makes termination reasonable, (4) an agreement to terminate between franchisee and franchisor, and (5) a good faith business decision by the franchisor to withdraw from retail marketing in a specific geographic area. 15 U.S.C. § 2802(b)(2)(A)-(E). . As defined by the PMPA, a franchisor is "a refiner or distributor (as the case may be) who authorizes or permits, under a franchise, a retailer or distributor to use a trademark in connection with the sale, consignment, or distribution of motor fuel.” 15 U.S.C. § 2801(3). . 15 U.S.C. § 2802(b)(2)(E) provides as a valid reason for termination: In the case of any franchise entered into prior to June 19, 1978, and in the case of any franchise entered into or renewed on or after such date (the term of which is 3 years or longer, or with respect to which the franchisee was offered a term of 3 years or longer), a determination made by the franchisor in good faith and in the normal course of business to withdraw from the marketing of motor fuel through retail outlets in the relevant geographic market area in which the marketing premises are located, if— (iii) in the case of leased marketing premises— (I) the franchisor, during the 180-day period after notification was given pursuant to section 2804 of this title, either made a bona fide offer to sell, transfer, or assign to the franchisee such franchisor’s interests in such premises, or, if applicable, offered the franchisee a right of first refusal of at least 45 days duration of an offer, made by another, to purchase such franchisor’s interest in such premises; or (II) in the case of the sale, transfer, or assignment to another person of the franchisor’s interest in such premises in connection with the sale, transfer, or assignment to such other person of the franchisor's interest in one or more other marketing premises, if such other person offers, in good faith, a franchise to the franchisee on terms and conditions which are not discriminatory to the franchisee as compared to franchises then currently being offered by such other person or franchises then in effect and with respect to which such other person is the franchisor. . See note 3 supra. . See 15 U.S.C. § 2802(b)(2)(E)(iii)(I) laid out in note 3 supra. . The District Court also must find that "the hardships imposed on the franchisor by the issuance of such preliminary injunctive relief will be less than the hardship which would be imposed upon such franchisee if such preliminary injunctive relief were not granted.” 15 U.S.C. § 2805(b)(2)(B). . See 15 U.S.C. § 2802(b)(2)(E) quoted in note 3 supra. Because Shell’s purchase offer included some 400 Arco franchises, as well as numerous other assets, subsection (E)(iii)(II) — requiring only that the purchasing franchisor offer the dealer a nondiscriminatory franchise — applied, rather than subsection (E)(iii)(I) whose "right of first refusal” provision contemplates the sale of a single franchise. . The Variable Rent Program provides that the dealer may earn reductions in rent based upon sales of Shell gasoline exceeding a particular "threshold volume” established by Shell. For every gallon of gasoline above the threshold sold, the dealer receives a specified reduction in rent. In its initial proposal, Shell did not disclose to the dealers what their threshold volumes would be nor how the threshold volumes would be calculated. It was concern over this lack of information that prompted the District Court to issue its preliminary injunction. Shell maintained that its method of calculating threshold volumes was a trade secret, but pursuant to the District Court’s protective order, the plaintiffs’ counsel was allowed to examine the method to satisfy himself that the method was not applied in a discriminatory fashion. In addition, Shell disclosed what the dealers’ threshold volumes would be for February, March, and April of 1986, and it indicated that these volumes would remain constant through April 1987 unless changed by Shell on the basis of objectively reasonable business considerations. . Of course, if the District Court incorrectly interpreted the relevant statutory provisions, its decision is reviewable as an error of law. . Section 2804 specifies notice periods ranging from the "earliest ... reasonably practical" to 180 days depending on the event to be noticed. . See note 1 supra.

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.

UNITED STATES of America, Appellee, v. Robert GARCIA, Jane Lee Garcia and Ralph Vallone, Jr., Defendants, Robert Garcia and Jane Lee Garcia, Defendants-Appellants. Nos. 1358, 1359, Dockets 91-1004, 91-1005. United States Court of Appeals, Second Circuit. Argued April 16, 1991. Decided June 28, 1991. Barry A. Bohrer, New York City (Morvil-lo, Abramowitz & Grand, Joel M. Cohen, Fischetti & Russo, of counsel), for defen-dan ts-appellants . Michele Hirshman, New York City, Asst. U.S. Atty. for the Southern District of New York (Roger S. Hayes, Acting U.S. Atty. for the Southern District of New York, Helen Gredd, Asst. U.S. Atty., of counsel), for appellee. Before TIMBERS, MESKILL and PRATT, Circuit Judges. PRATT, Circuit Judge: Defendants Robert and Jane Garcia appeal from an order of the United States District Court for the Southern District Court of New York, Leonard B. Sand, Judge, denying their motion, made on double jeopardy grounds, to bar their retrial and to dismiss the remaining counts of their indictment. For the reasons that follow, we affirm. BACKGROUND In November of 1988 Robert and Jane Garcia were indicted on charges of bribery, receiving illegal gratuities, and both substantive and conspiracy counts of extortion in connection with Robert Garcia’s congressional activities on behalf of the infamous Wedtech Corporation. See United States v. Wallach, 935 F.2d 445 (2d Cir.1991), United States v. Biaggi, 909 F.2d 662 (2d Cir.1990), cert, denied, — U.S. -, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991), United States v. Stolfi, 889 F.2d 378 (2d Cir.1989). The alleged extortion was premised on two legal theories: (1) extortion by wrongful use of fear and (2) extortion under color of official right. At the close of the evidence at trial, the Garcias moved to dismiss the first theory for insufficient evidence. The district judge denied the motion and submitted both counts to the jury under a charge that permitted them to convict if they found either theory established by the proof. The jury acquitted the Garcias of the bribery and gratuity charges, but convicted them of the substantive and conspiracy charges of extortion. Although given the opportunity by the court, neither the Garci-as nor the government requested that special interrogatories be given to the jury in order to learn upon which theory of extortion the jury had based its guilty verdicts. The Garcias appealed, arguing that the first theory of extortion — extortion by wrongful use of fear — should not have been submitted to the jury, because there was insufficient evidence to support it. We agreed, and reversed the convictions. United States v. Garcia, 907 F.2d 380 (2d Cir.1990). In doing so, we explicitly pointed out that the Garcias, by making a motion under Fed.R.Crim.P. 29, had preserved their right to argue that there was insufficient evidence to support the first of the two extortion theories, and that “if there was insufficient evidence for one of the theories, then the verdict is ambiguous and a new trial must be granted.” Id. at 381 (emphasis added). We remanded to the district court “for further proceedings”. Id. at 385. The Garcias then moved in the district court for an order barring retrial and dismissing the remaining counts of the indictment, claiming that a second trial would violate the double jeopardy protection of the fifth amendment to the constitution. The district court denied the motion, and the Gar-cias appeal. DISCUSSION The double jeopardy clause of the fifth amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Despite its sweeping language, the clause “does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction * * *.” United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). However, when an appellate reversal is based on insufficient evidence, a retrial is prohibited. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978) (the double jeopardy clause “precludes a second trial once the reviewing court has found the evidence legally insufficient * * * ”). The basis for this distinction is clear: “[A]n appellate reversal [based on insufficient evidence] means that the government’s case was so lacking that it should not have even been submitted to the jury * * * [since] as a matter of law * * * the jury could not properly have returned a verdict of guilty.” Id. at 16, 98 S.Ct. at 2150. To allow a second trial under such circumstances would be “to afford the government an opportunity for the proverbial ‘second bite at the apple.’ ” Id. at 17, 98 S.Ct. at 2150. In reversing the Garcias’ convictions, we concluded that there was insufficient evidence to support a conviction of extortion based on wrongful use of fear; therefore any attempt to retry them on this theory would violate the double jeopardy clause. If the Garcias are to be subjected to a second trial, then it can only be for extortion based on the theory of color of official right. The Garcias claim, however, that a retrial on this theory would also violate their double jeopardy protections. Because they were acquitted on the bribery and gratuity counts, the Garcias argue, it is logical to interpret the jury’s silence on the theory of extortion under color of official right as an acquittal: “[i]t is hardly speculation to conclude that it is highly probable that the jury’s rejection of [the bribery and gratituty] charges, which required little proof beyond that of the Congressman's accepting the money in his official capacity, also caused it to reject the theory of extortion premised on the exact same conduct.” For this reason, the Garcias conclude, a retrial on this theory would violate the double jeopardy clause. The Garcias’ argument has several defects. First, it stands in sharp contrast to the one they made at the time of their first appeal. They then asserted that their convictions should be reversed because there was ambiguity in determining which theory of extortion served as the basis for their convictions. In their brief at that time, they stated, “It is not possible to determine under which theory [of extortion] the jury convicted the defendants.” And at oral argument, when asked about which extortion theory had been the basis of the convictions, the Garcias’ lawyer stated: “We don’t know what the jury did.” Now the Garcias press on us a position that is opposite to the one that they took on the first appeal. They argue that not only is it possible to determine under which theory of extortion the jury convicted them, but they confidently state that “[i]t is hardly speculation” to conclude that it is “highly probable” that the jury acquitted the Garcias of extortion under color of official right. But given their position at the first appeal, as well as our basis for reversing their convictions, their current argument borders on the frivolous. The jury’s basis for the extortion conviction cannot be “ambiguous” for purposes of reversal, but an uncontroverted, “implicit acquittal” for double jeopardy purposes. Second, in considering the Garcias’ first appeal, we explicitly stated that if we were to decide that the evidence was sufficient for one of the two extortion theories, but insufficient for the other, “the verdict is ambiguous and a new trial must be granted.” Garcia, 907 F.2d at 381. Concluding that the verdict was ambiguous, we reversed because there was “no way of knowing on which theory of extortion the Garcias were convicted.” Id. at 385. Third, in support of their position, the Garcias rely on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), but this reliance is misplaced. In Green, the Supreme Court concluded that because the jury at the defendant’s first trial “had refused to find him guilty on [the contested] charge”, Green, 355 U.S. at 190, 78 S.Ct. at 225, despite having been “given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so”, id. at 191, 78 S.Ct. at 225, there had been an implicit acquittal. On this basis, the Court held that a retrial had violated the double jeopardy clause. Id. at 198, 78 S.Ct. at 229. But the present case differs from Green in a significant way. There, the jury did not render a verdict on the disputed charge, causing the Court to construe its silence as an implicit acquittal. In the present case, however, the Garcias were convicted on the contested charge, and the only unanswered question was under which of two extortion theories the jury had based its conviction. And since the jury was never asked to state the basis for its conviction on the extortion charge, its silence on the question, unlike the silence of the jury in Green, signifies nothing. The conclusion that the Garcias ask us to accept regarding the extortion theory involves unacceptable speculation — which was precisely the reason that we reversed the Garcias’ convictions in the first place. Fourth, an implicit acquittal may not be inferred, because the elements of the crime of extortion differ from those for the crimes of bribery and illegal gratuity. “At least formally, bribery contains an element that extortion does not: that money was offered with the intention of influencing the recipient.” United States v. Holzer, 840 F.2d 1343, 1351 (7th Cir.), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988). The same is also true of the charge of accepting an unlawful gratuity. Fifth, it is neither unusual nor unacceptable for a jury to render inconsistent verdicts. See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134,135, 88 L.Ed. 48 (1943), Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), United States v. Chang An-Lo, 851 F.2d 547, 559-60 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). Therefore, we conclude, as we did on the Garcias’ first appeal, that the verdict was ambiguous, and, in the words of the Garcias’ lawyer, “there was just no way to know” what the jury was thinking when it rendered its verdict. In rejecting the Garcias’ motion, the district court applied the balancing test for implicit acquittals set out by us in United States ex rel. Jackson v. Follette, 462 F.2d 1041, 1049 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 496 (1972). Under that test, in evaluating an implicit acquittal claim, the court “must strike a balance between fairness to society in obtaining a verdict on a proper indictment and the avoidance of undue vexation to the defendant by a retrial on both original charges * * *." Id. at 1049. However, even to reach “the point where we must weigh on a fine scale the competing interests of the public and [the defendant]”, id., we would first have to conclude that there is some basis for determining that there was an implicit acquittal, and as we have previously discussed, we find no basis for such a conclusion in this case. Implicitly acknowledging this difficulty, the Garcias contend that in cases “where it has been impossible to determine whether the jury actually acquitted”, courts have “resorted to weighing the competing interests of the parties to determine whether retrial should be barred.” In arguing that the balancing test set out in Jackson should be extended beyond implicit acquittals to ambiguous jury decisions, the Garcias point to United States v. Stanley, 597 F.2d 866 (4th Cir.1979), a case in which the fourth circuit reversed on double jeopardy grounds a conviction based on a duplicitous count. Id. at 871-72. It is far from certain that the fourth circuit has interpreted Stanley as broadly as the Garcias do, cf. United States v. Head, 697 F.2d 1200, 1206 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983), and we are, of course, not bound by a holding of a sister circuit; furthermore, there was nothing duplicitous about the counts in the present case. The Garcias never claimed at trial that the counts were duplicitous, nor did they make this argument at the time of their first appeal. They now raise this issue in a footnote, and this feeble argument does not warrant discussion. For all of these reasons, Stanley does not apply. Even if we were to conclude that there was an implicit acquittal in this case, the double jeopardy clause would not automatically bar reprosecution. As already discussed, in an implicit acquittal case, double jeopardy concerns are only implicated where there exists both the implication of an acquittal, and a conclusion that a retrial would not serve “ ‘the ends of public justice.’ ” Jackson, 462 F.2d at 1047 (citation omitted). In determining this latter question, one factor that should be considered is “what opportunity the defendant had to avoid the predicament by appropriate action.” Jackson, 462 F.2d at 1049. Had the Garcias desired, they could have resolved the ambiguity involving the extortion theories. After the jury rendered its verdicts, the district court asked the defendants if they had any other questions for the jury: when none was suggested, the jury was dismissed with the Garcias’ consent. Accordingly, the Garcias are incorrect in arguing that the government is to blame for the ambiguity created by the extortion theories, and there is no basis for concluding, as the Court did in Green, that “the jury was dismissed without returning any express verdict * * * and without [the defendant’s] consent.” Green, 355 U.S. at 191, 78 S.Ct. at 225. Thus, here, as in so many other cases, the uncertainty over theories could have been clarified through the use of special interrogatories, which would have obviated the need for a retrial. Had the jury based its verdict on the “wrongful use of fear” theory only, then there would have been an implicit acquittal on the alternative theory and a retrial would have violated the double jeopardy clause. Had the jury clearly based its verdict on the theory of extortion under color of official right, or both theories, not only would there not have been a double jeopardy problem, but there would not even have been a reversal on the first appeal. Instead, we would have affirmed the convictions, because there was sufficient evidence to support a conviction for extortion under the official-right theory. The Garcias correctly argue that they were under no obligation to request special interrogatories — but neither was the government. Our holding is simply that the Garcias cannot now complain of an ambiguity that they had the opportunity to clarify. Both sides ran a risk by not requesting interrogatories and thereby leaving the verdict ambiguous. The government’s risk, which matured to reality, was that if the evidence was insufficient to support both theories of extortion, the conviction would be reversed. The Garcias’ risk was that if such a reversal were obtained, the result would be not dismissal but a new trial on the remaining theory. In denying the Garcias’ motion, the district court stated that “[t]he issue is not one of fault but one of opportunities missed and the consequences that flow from the omission of all parties.” We agree with the district court; we note, moreover, that in addition to the possibility that this was a situation of “opportunities missed”, there is the possibility that the Garcias may have had a strategic reason for leaving unresolved the ambiguity in the jury’s verdict. After all, the reversal of their convictions was based on this ambiguity. Having rejected the opportunity to clarify this ambiguity, and having secured a reversal on its strength, the Garcias cannot now disregard or deny its existence. The order of the district court is affirmed; the mandate shall issue forthwith.

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

Don Finis CHANDLER, a minor, by mother and next friend, Vera Chandler, and Vera Chandler, individually, Plaintiffs-Appellants, v. Martha Gummer MASSA and Joseph M. Massa, individually, and doing business as Oak Lake Club, Defendants-Appel-lees. No. 18405. United States Court of Appeals Sixth Circuit. Aug. 26, 1969. Walter Buford and Paul Denton, Memphis, Tenn., for appellants. Albert T. McRae, Memphis, Tenn. (Nelson Norvell, Wilson, McRae, Ivy & Farmer, Memphis, Tenn., for Joseph M. Massa d/b/a Oak Lake Club, H. H. McKnight, Memphis, Tenn., for Joseph M. Massa, Individually and Martha Gummer Massa Individually and d/b/a Oak Lake Club, on the brief), for appel-lees. Before WEICK, Chief Judge, O’SULLIVAN and PECK, Circuit Judges. WEICK, Chief Judge. Appellants, who are mother and son, have appealed from a judgment entered upon a directed verdict in an action for personal injuries sustained by the son when he, along with his teen-age brother and a cousin, were trespassing on fenced pasture land owned by defendants but leased to Whitehaven Saddle Club. The defendants owned a 34 acre tract of land the easterly half of which was used for picnics, rodeos and dances and was known as the Oak Lake Club. The westerly half had been leased for five years to the Whitehaven Saddle Club for use as a pasture for horses belonging to its members. West of the Saddle Club premises was a field not owned by defendants which fronted on Horn Lake Road. The leased Saddle Club premises were fenced in entirely by a wire fence. The field on Horn Lake Road was also fenced. On the day of the mishap, Edward Lee Webb went to the Chandler residence to visit Don Finis Chandler’s older brother, Taylor Otis Artis, and his cousin Joseph Hall. The three boys were teen-agers. The residence was located on Horn Lake Road about two blocks from the field. The three boys left the residence to go to the Oak Lake Club to seek employment in cleaning up the place after a rodeo. The boys took a short cut to get to the club by walking through the field and the Saddle Club pasture. The plaintiff, Don Finis Chandler, age four, “tagged along” after them. They went through or over the field fence and the two pasture fences to get to the Club property. Arriving safely at the Club, the teenagers learned that employment was not available and they started to return to the Chandler residence by the same route. They passed again through the barbed wire fence on the Saddle Club property and while walking on a path in the pasture Don, who was barefooted, stepped on some ashes which covered hot embers and was severely burned. The mishap occurred in broad daylight. It is noteworthy that no injury occurred on the way to the Oak Lake Club. The Saddle Club had collected some piles of manure and sawdust in the pasture which caught on fire a few days before the accident. There was conflicting evidence that the defendant, Joseph M. Massa, instructed his employee, Joseph Lee Webb, brother of Edward Lee Webb, to take a tractor and scatter the piles of manure and sawdust so that the fire would die out. There was proof also that the fire department was called. Massa denied that he gave any such instructions or that he called the fire department. On this issue we must accept plaintiffs’ evidence as true. The fire chief testified: “No, sir, we did not put the sawdust fire out. What I done was put the grass out that was burning around the outer edge, and we took what water we had with us at the time, and we went around the edge of this sawdust area where it was spread down, and soaked it down to where it couldn’t catch the grass on fire, because sawdust — you could have been there for a week hauling water on it and still have smouldering.” Employee Webb testified that he again spread the sawdust and manure and that it continued to smolder although “it looked like it was out.” A number of theories for recovery were advanced. Plaintiffs contended that the boys were invitees but there was not a scintilla of evidence to support that conclusion particularly as to the four year old plaintiff. Next plaintiffs claimed the right to recover on the thoery of “attractive nuisance.” But a fenced pasture would hardly fall within that category. There was no proof that Don was lured or enticed to the leased premises by the instrumentality or condition which caused the harm. Pardue v. City of Sweetwa-ter, 54 Tenn.App. 286, 390 S.W.2d 683 (1965). The pasture was not a playground for boys. The District Judge found that plaintiff and his companions were trespassers and, in our opinion, there was no question about it. Plaintiff’s brother, Taylor Otis Artis, who was a witness in plaintiff’s behalf, testified on cross-examination concerning the fence on the Saddle Club property: “Q But this was a fenced pasture? It has a fence all the way around it? A Yes, sir.” Plaintiff offered in evidence a number of photographs, one of which (Exhibit 6) showed a portion of the Saddle Club fence through which plaintiff and his brothers had to pass. It was a wire fence with strands of barbed wire at the top line of the fence. In identifying the exhibit, Taylor Otis Artis testified on direct examination: “Q What does that show? A This is the second fence where we mashed down and got across.” The photograph (Exhibit 6) bears mute testimony to the fact that Artis and his brother and cousin indeed had to “mash down” the wire fence so as to make an opening between the wire fence and the barbed wires, through which to pass. The photograph is appended hereto. The fence was obviously adequate to keep the horses confined in the pasture, but was not impenetrable so as to keep out human trespassers who were able to and did bend or “mash down” the wires. The boys had to pass through or over four fences before the injury occurred. The law imposed no duty on a property owner, much less a landlord out of possession, to erect impenetrable barriers on leased land in order to keep trespassers from entering thereon and injuring themselves. Appellants made the following admission as to Tennessee law in their rebuttal brief: “We acknowledge that the general rule in Tennessee, as elsewhere, restricts the liability of a landowner to licensee or trespasser on his land to circumstances of wanton or wilful injury.” This is a rule of property law. The fact that plaintiff was a minor of tender years does not alter the rule. Ellis v. Orkin, Exterminators Co., 24 Tenn.App. 279, 143 S.W.2d 108 (1940); Garis v. Eberling, 18 Tenn.App. 1, 71 S.W.2d 215 (1934); 65 C.J.S. Negligence § 63 (61) at p. 782. In Tennessee, a landlord is liable to his tenant and to invitees of the tenant for injuries resulting from a dangerous condition of the leased premises which existed at the time of the lease, if the landlord knew or in the exercise of ordinary care should have known thereof. The landlord, however, is not liable for a dangerous condition which originates during the tenancy when the landlord is out of possession of the premises. Willcox v. Hines, 100 Tenn. 538, 46 S.W. 297, 41 L.R.A. 278 (1898); Willcox v. Hines, 100 Tenn. 524, 45 S.W. 781 (1898); Stenberg v. Willcox, 96 Tenn. 163, 33 S.W. 917, 34 L.R.A. 615 (1896); Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824 (1896). See also Manes v. Hines & McNair Hotels, Inc., 184 Tenn. 210, 197 S.W.2d 889 (1946). If the landlord had done nothing to es-tinguish the fire, no liability could possibly have attached to him. In his opinion, the District Judge stated: “The proof is without dispute that prior to this accident, the owners of the property had leased it to the Saddle Club. The plaintiff’s very theory is that the property had been so leased. There is no evidence here even that there was a pile of sawdust and manure down there at the time of the lease, and presumably there wasn’t, because it was the Saddle Club that apparently created the pile after it rented the property.” But it is contended that the landlord sent an employee with a tractor in an effort to put out the fire, which he negligently failed to do; that the landlord later called the fire department, which responded, and which also was negligent in failing to completely extinguish it; and that the ashes covering the burning embers constituted a trap which defendants set for the plaintiff; and, further, that the landlord knew or should have known that adults as well as children were trespassing on the leased land. The District Judge stated: “I think the law is that it would still be necessary to show that the injured party in some way relied on the landlord’s having attempted to correct the situation. As I said earlier in the colloquy with Mr. Buford during argument, the landlord starts without a duty whatsoever with respect to correcting the situation, and some way you have to raise the duty. “Well, as I understand the annotation, in 150 A.L.R., at page 1379, the duty is raised if the landlord gratuitously undertakes to correct a situation and negligently fails to do so, and in reliance thereon, the plaintiff was injured, and the annotation goes on to say that where the plaintiff doesn’t know that the landlord has made any effort to correct the situation, there simply can’t be any reliance, and there is no scintilla of evidence that these boys, and particularly Don Chandler, has any knowledge that Mr. Massa made an effort to correct the situation, if, in fact, he did.” Recently we applied the same principle in Cope v. Southern Ry., 410 F.2d 1146 (6th Cir.1969), a Tennessee case, wherein it was contended that the railroad was liable for negligent performance of a duty which it had assumed without legal obligation. We said: “Plaintiff-appellee, who had no knowledge of a flagman’s presence until after the accident, did not act in any way in reliance upon the flagman’s directions. Where the injured party had no knowledge of nor any reasonable grounds to expect a flagman at the crossing, the legal principles involved are the same as if no flagman were present, and thus no duty was violated.” The dissent relies on dictum in Bass & Co. v. Parker, 208 Tenn. 38, 343 S.W.2d 879 (1961) and Walker v. Williams, 215 Tenn. 195, 384 S.W.2d 447 (1964). In Bass & Co. v. Parker, supra, unlike our case, the plaintiff was found to be an invitee and not a trespasser. In Walker v. Williams, supra, the property owner repaired a screen door in such a manner that it offered less resistance when being pushed open than it previously did, and neglected to warn a guest who was familiar with the previous condition of the door. The guest fell as she pushed open the door. The Court held that as a matter of law this did not constitute a trap. It was the Saddle Club and not Massa who piled the sawdust and manure on the property. Massa did not cause or contribute to cause the fire. Neither do we think that spreading burning embers so that the fire would die out, constituted setting of a trap. It did not constitute negligence for the landlord to call the fire department, if he did make the call. In our opinion, the landlord is not liable for the acts of the fire department in failing to put out the fire. There was no proof that defendants knew that plaintiff or his brother or cousin were trespassing in the leased land. They had never been there before. There was no duty on the part of the landlord to warn trespassers on leased property in the possession of the tenant. There was no duty on the landlord to station guards around the leased property to prevent trespassers from climbing through or over the fences or to warn them of the danger of the smoldering fire. There was no proof that the landlord knew of the existence of a trap, so he was not in position to warn anyone of it. Harrison v. Southern Ry., 31 Tenn.App. 377, 215 S.W.2d 31 (1948), cited in the dissent, involved a path along the side of a railroad track, which the company owning and possessing the property had permitted the public to use. In our case, the path was enclosed by a barbed wire fence which was notice to the public that the path was not a public way. The landlord was not in possession of the Saddle Club property. We hold that the plaintiff, Don Finis Chandler, was a trespasser and that the only duty owed by the tenant, Whitehaven Saddle Club, was not to wilfully or wantonly injure him. The landlord, out of possession of the property, owed no greater duty. Don had no knowledge of any efforts of Mr. Massa to extinguish the fire and hence could not have relied thereon. Massa’s failure to completely extinguish the fire cannot therefore form the basis of actionable negligence. There was no proof of wanton or wilful misconduct. The dissent quotes dictum from Pardue v. City of Sweetwater, 54 Tenn.App. 286, 390 S.W.2d 683 (1965), an attractive nuisance ease dealing with the liability of the occupier or possessor of land to trespassers. Since defendants were not occupiers or possessors of the leased pasture land, the dictum is inapplicable. Appellants assign error relating to an evidentiary issue which we deem without merit. Affirmed. APPENDIX Trial Exhibit No. 6

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

JOHN R. ALLEY & CO., Inc., et al. v. FEDERAL NAT. BANK OF SHAWNEE, SHAWNEE COUNTY, OKL. No. 2318. Circuit Court of Appeals, Tenth Circuit. Jan. 13, 1942. William J. Crowe, of Oklahoma City, Okl. (James S. Twyford and Solon W. Smith, both of Oklahoma City, Old., on the brief), for appellants. Mark Goode, of Shawnee, Okl. (John L. Goode, of Shawnee, Okl., on the brief), for appellee. Before BRATTON, HUXMAN, and MURRAH, Circuit Judges. HUXMAN, Circuit Judge. John R. Alley & Company, Inc., entered into certain contracts with the Oklahoma State Highway Commission for the construction of highways. It completed the work but failed to pay a number of labor and material bills, and it became necessary for the bonding company to assume and pay these bills. The company instituted suit to determine its right and the right of other claimants to certain funds still in the haréis of the highway commission. During the progress of the work the contractor had borrowed various sums from the Federal National Bank of Shawnee, Oklahoma, for which i't gave its notes. The bank filed its answer in the proceeding, alleging that the contractor was indebted to it in the sum of $5,177.16, the balance due on the notes secured by assignment of contractor’s estimates. It prayed for judgment against the contractor in this amount and for a further judgment decreeing its indebtedness to be secured by an assignment of the amount due the contractor from the highway commission. Other defendants filed answers setting up their claims. Thereafter, the contractor filed an amended answer and counterclaim alleging that the bank had charged usurious interest on the various loans, in violation of law, in the total sum of $5,777.65. It prayed that the bank take nothing under its claim and that it have judgment against the bank for $11,555.30, twice the amount of the usurious interest charged. The bank filed a motion to dismiss the amended answer and counterclaim on the ground that the pretended claim of usury could not be set up in this action and could be maintained only in an independent action at law against the usurer. This contention was sustained and judgment was entered dismissing the answer and counterclaim of the contractor. 12 U.S.C.A. § 86 provides: “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred.” It has been held without exception that the right granted by the statute can be asserted only in a separate and independent action in the nature of an action in debt. Barnet v. Muncie Nat. Bank, 98 U.S. 555, 25 L.Ed. 212; Haseltine v. Central Nat. Bank, 183 U.S. 132, 22 S.Ct. 50, 46 L.Ed. 118; Driesbach v. Second Nat. Bank, 104 U.S. 52, 26 L.Ed. 658; Stephens v. Monongahela Nat. Bank, 111 U.S. 197, 4 S.Ct. 336, 337, 28 L.Ed. 399; McCollum v. Hamilton Nat. Bank, 303 U.S. 245, 58 S.Ct. 568, 82 L.Ed. 819. The rationale of these cases is that where, as here, the statute creates a right or offense and provides a specific remedy or punishment, those provisions are exclusive and the liability can be enforced only in an action brought specifically and exclusively for that purpose. All of these decisions antedate the adoption of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and our question is to determine whether the adoption of the new rules has modified the rule announced in these decisions. There is no longer an action in the nature of debt. All forms of actions are abolished, and the rules provide for but a single form of action, known as “civil action.” Rule 13 provides for compulsory counterclaims arising out of the “'transaction” or “occurrence.” The spirit of the new rules is to have a speedy adjudication of all controversies between the parties in a single action and without a multiplicity of suits. The counterclaim arose out of the transaction and is maintainable in this action, unless prohibited by some rule of law. The Congressional authority given the Supreme Court to adopt rules was limited to matters of procedure in the Federal District Court. It was expressly provided that substantive rights should neither be abridged, enlarged nor modified. They were left untouched by the rules. 48 Stat. 1064, 28 U.S.C.A. § 723b. Appellee contends, and the court held, that permitting the assertion of the counterclaim in this action would be giving to appellant a substantive right that it did not have prior to the adoption of the rules, and was therefore beyond the limitation of Congressional authority conferring upon the Supreme Court the power to adopt uniform rules of civil procedure. It is necessary to distinguish between a substantive right and the vehicle or medium through which it is enforced. The substantive right created by the statute is the right to recover twice the amount of usury as a penalty. This right could in no wise be affected by the new rules. The method or procedure provided in the statute for the enforcement of the right was an independent action in the nature of an action of debt, and under the decisions it was held that this right could not be asserted in the form of a counterclaim in a pending action. But the new rules provide for the settlement of all controversies arising between parties in a single action. They specifically provide for compulsory counterclaims arising out of a “transaction” or “occurrence.” The right to the penalty admittedly arose out of the transaction which the bank seeks to enforce and is therefore maintainable as such under the new rules. If there is a conflict between the procedure provided for in the statute for the enforcement of the right created thereby and that provided for in the New Rules of Civil Procedure, the former must yield to the latter, because the Congressional authority under which the new rules were adopted expressly provides that after they become effective any laws in conflict therewith are of no further force or effect. The new rules have the force and effect of statutes. Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 427, 85 L.Ed. 479. As was said in the last cited case: “ * * * the new policy envisaged in the enabling act of 1934 was that the whole field of court procedure be regulated in the interest of speedy, fair and exact determination of the truth.” We see no reason why the new rules should not apply to the remedy to be employed in asserting the substantive right to recover the penalty provided by law in the case of usury. One further question remains for consideration. The action arose prior to the effective date of the new rules. The bank filed its motion to dismiss the amended answer and counterclaim in July, 1938. It is not clear when the motion was argued, but it may be assumed that the argument was had prior to the effective date of the new rules. The matter was taken under advisement by the court, and on March 11, 1941, the court made its findings of fact and conclusions of law and sustained the motion to dismiss. Rule 86 provides that the new rules shall govern all proceedings brought after the effective date thereof and also all proceedings in actions then pending except to the extent that in the opinion of the court their application in the particular action pending when they took effect would not be feasible or would work injustice. Appellee contends that the motion to dismiss having been filed, argued and submitted prior to the effective date of the new rules, was a past proceeding and therefore governed by the old rules. It cites two cases in support of this position, Weber v. Hertzell, 8 Cir., 230 F. 965, and Leach v. Ross Heater & Mfg. Co., 2 Cir., 104 F.2d 88, 90. These cases sustain appellee’s position. While in the Leach case the court stated that a motion to dismiss filed, argued and submitted for decision prior to the effective date of the new rules was a past proceeding, the force of the statement is somewhat weakened by the statement of the court in its opinion that “court and counsel had the understanding at argument of the motion that decision would be under the practice then prevalent. The procedural rules governing the motion should not in face of the understanding be changed by the delay of the court in deciding the motion.” Courts have been generally inclined to a liberal interpretation of the term “further proceedings.” In McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108, the court held that where a notice of appeal was filed on May 2, 1938, and the time for appeal expired prior to September 16, the old rules as to appeals applied. The inference is left, however, that as to appeals in pending actions in which the time for an appeal had not expired, the new rules would apply even though the action had been started and in fact completed by the decision of the District Court before the effective date of the New Rules. Judge Haney in a concurring opinion in Anglo California Nat. Bank v. Lazard, 9 Cir., 106 F.2d 693, suggests that submission of an appeal is a further proceeding under the rules. A somewhat more analogous situation existed in United States v. E. J. Biggs Const. Co., 7 Cir., 116 F.2d 768. One question involved there was whether the assessment of costs should have been made under the old or under the new rules. It was held that although the record disclosed that all the testimony was taken and that most of the costs had been incurred prior to the effective date of the rules, nevertheless the new rules would apply as to the assessment of costs. In Hoffman v. New Jersey Federation, etc., 3 Cir., 106 F.2d 204, the petition was filed before the new rules went into effect. A motion for default judgment was filed prior to the effective date of the new rules. Default judgment was entered after the effective date of the rules without giving the notice required by New Rule 55(b) (2). The court held that the fact that the motion for judgment had been filed before the new rules became effective was of no moment and that it was necessary to give the notice provided for under the new rules. In Thermex Co. v. Lawson, D.C.Ill., 25 F.Supp. 414, a motion to dismiss a complaint had been filed prior to the effective date of the new rules, but it was held that the further proceedings on the motion would be governed by the new rules of Federal Procedure. In Weaver v. Mark et al., 6 Cir., 112 F.2d 917, a demurrer filed to a complaint two days before the effective date of the new rules abolishing demurrers was sustained after the new rules went into effect. On appeal, the Circuit Court of Appeals held that it was error to sustain the demurrer because further proceedings were controlled by the new rules and that the court therefore was in error in sustaining a demurrer, which pleading had been abolished by the new rules. Arguing and submitting the motion to dismiss the answer and cross claim did not end that proceeding. It was pending until the court reached its conclusion and rendered its decision. The purpose is evident in the new rules to extend their application, unless for good cause shown, to all proceedings, whether brought prior to their effective date or thereafter. It has been held that the trial court must specifically find that the application of the new rules would be unjust in order for one complaining of their application to raise the question on appeal. Automobile Ins. Co. v. Springfield Dyeing Co., 3 Cir., 109 F.2d 533. No good reason appears why the new rules should not have been applied in passing on the motion to dismiss the counterclaim, and it was error for the court to sustain the motion. The cause is therefore reversed and remanded, with directions to reinstate the answer and cross petition and proceed with the determination of the issues presented thereby. Herein called the contractor. Herein called the company. Herein called the bank.

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

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

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

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

FORMIGLI CORPORATION, Appellant, v. ALCAR BUILDERS, INC. No. 14450. United States Court of Appeals Third Circuit. Argued Dec. 3, 1963. Decided March 12, 1964. Benjamin Kuby, Philadelphia, Pa. (Paul N. Minkoff, Klovsky & Kuby, Philadelphia, Pa., on the brief), for appellant. Robert F. Cushman, Philadelphia, Pa. (Kenneth M. Cushman, Cushman & Oobert, Philadelphia, Pa., on the brief), for appellee. Before STALEY, GANEY and SMITH, Circuit Judges. GANEY, Circuit Judge. This is an appeal from an order of the District Court staying an action for breach of contract and directing the parties to proceed to arbitration at the request of the defendant-appellee. Diversity of citizenship and the amount involved are the basis for the District Court’s jurisdiction over the subject matter. The threshold question is a jurisdictional one. In Kirschner v. West Company, 300 F.2d 133 (C.A.3, 1962), this Court states at page 134 of the opinion: “An order granting a stay pending arbitration is analogous to an injunctive order which is interlocutory in nature and consequently not appealable as a final decision under § 1291, 28 U.S.C.; appealability exists, however, under § 1292(a) (1), 28 U.S.C., when such a stay is granted (or denied) in an action at law; appealability does not exist under § 1292(a) (1) when a stay is granted (or denied) in an action in equity since the grant (or denial) is merely a step in the control of the litigation. * * *» Therefore we must determine whether the stayed action is at law or in equity. In substance the complaint avers that the defendant-appellee by written contract engaged the services of the plaintiff-appellant as a sub-contractor for the performance of some of the work in the construction of an apartment house in Horsham, Pennsylvania, and that as a result of defendant preventing it from performing the work under the sub-contract, it sustained damages for loss of profit approximating the sum of $25,000, and demands judgment for that amount against the defendant. The sole relief sought is money damages; no coercive remedy is requested. Plainly the action is one at law, and we have jurisdiction to hear the appeal. Plaintiff contends that the arbitration provision of the sub-contract does not expressly encompass a dispute involving a total breach of contract and a claim for damages for the resulting loss of profits. Article XV of the sub-contract provides: “In case, the parties hereto disagree in relation to any clause or provision of this contract and the right of the parties with regard thereto such disagreement shall be arbitrated under the law of the State of Pennsylvania, * * Such arbitration shall be a condition precedent to the institution of any suit arising out of any such disagreement.” In the absence of the applicability of the Federal Arbitration Act, a provision of a contract providing for arbitration is enforceable by a Federal court in a diversity action where the substantive law of the forum is that an agreement to submit a disagreement to arbitration is binding upon the parties. Bernhardt v. Polygraphic Co., 350 U.S. 198, 202-204, 76 S.Ct. 273, 100 L.Ed. 199 (1956). The contract before us was executed on May 21, 1962, in Philadelphia and was to be performed at Horsham, Pennsylvania. The law of that State governs the interpretation and construction of the contract here. Badgett Mine Stripping Corp. v. Pennsylvania Turnpike Commission, 173 F.Supp. 425 (M.D. Pa.1959). With exceptions immaterial here, arbitration provisions in contracts are valid and enforceable in Pennsylvania. Wm. Linker Co., Inc., v. Feinberg, 360 Pa. 601, 62 A.2d 839 (1949). In the case of Philadelphia Marine Trade Ass’n v. International Longshoremen’s Ass’n, Local Union No. 1291, 382 Pa. 326, 115 A.2d 733 (1955), cert. den., 350 U.S. 843, 76 S.Ct. 84, 100 L.Ed. 751, the Supreme Court of Pennsylvania states at p. 336 of its opinion, 115 A.2d at p. 738: “The construction of a contract to determine what questions the parties have agreed therein to submit to arbitration is one, not for the arbitrators themselves, but for the court to decide, and the court will not readily infer that it was intended to empower the arbitrators to determine the extent of their own jurisdiction * * But where the parties have agreed that the arbitrator shall decide what disputes are arbitrable, then such determination is to be left to the arbitrator. See 3 P.L.E., Arbitration, § 7. Since there is nothing in the contract to the contrary, we think a court of state-wide jurisdiction would interpret the words “any clause or provision of this contract” in Article XV to include that article also. Therefore, whether Article XV covers the dispute in question is arbitrable, and the matter must be arbitrated before court action is sought by the parties. The District Court made no determination whether the Federal Arbitration Act of 1947, as amended, 61 Stat. 669, 9 U.S.C.A. § 1 et seq., is applicable or not in this case because it found no necessity for doing so. There is no maritime transaction here and the contract itself does not evidence a transaction involving interstate commerce. We need not ascertain whether interstate commerce is involved here either, for whether the Federal Arbitration Act is or is not applicable here will not require a decision different than that reached by the District Court. See United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Monte v. Southern Delaware County Authority, 321 F.2d 870-(C.A.3, 1963). The order of the District Court will be affirmed. . The opinion of the District Court is reported at 215 F.Supp. 166 (E.D.Pa.1963). . The 1935 amendment of § 2 of the Pennsylvania Arbitration Act of 1927, P.L. 381, 5 P.S. § 162, empowers the court in which an action is pending, upon being satisfied that the issue involved is referable to arbitration under an agreement, to stay such proceeding on application by one of the parties to the agreement. . However, an affidavit, submitted by defendant, states that the only place where plaintiff has a plant for the manufacture of pre-east concrete floor systems is in New Jersey, and that from the time of the execution of the contract to its breach, the parties intended that the pre-cast concrete floor systems would be manufactured by plaintiff in New Jersey and then transported to Pennsylvania for installation in the apartment project.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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, Appellant, v. Albert H. ROTHROCK and Vivian S. Rothrock, Defendants, Appellees. No. 86-1016. United States Court of Appeals, First Circuit. Argued Sept. 11, 1986. Decided Dec. 4, 1986. Donald W. Searles, Tax Div., Dept. of Justice, with whom Michael L. Paup and Robert E. Lindsay, Tax Div., Dept. of Justice, Roger M. Olsen, Acting Asst. Atty. Gen., Washington, D.C., and Richard S. Cohen, U.S. Atty., Augusta, Me., were on brief, for appellant. Peter J. Detroy, III with whom Norman & Hanson, Portland, Me., and Robert J. Foley, Sanford, Me., were on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, WISDOM, Senior Circuit Judge, and COFFIN, Circuit Judge. Of the Fifth Circuit, sitting by designation. LEVIN H. CAMPBELL, Chief Judge. This is an appeal by the United States from the district court’s granting of a judgment of acquittal (and, alternatively, a new trial) after appellees were convicted by a jury on four counts of tax evasion under 26 U.S.C. § 7201 (1982). The district court stated its reasons for overturning the verdict in a comprehensive opinion. Albert and Vivian Rothrock were indicted for willfully attempting to evade their joint income tax for the tax years 1979-1982. At a jury trial, the government showed that during the four years in question the Rothrocks did not report over $180,000 of taxable income and underpaid their federal tax obligation by nearly $90,-000. The Rothrocks did not challenge the government’s figures but defended on the ground the underreporting of income had been unintentional. They introduced evidence tending to show that Albert Roth-rock, a physician specializing in proctology, was disorganized, had little talent for or interest in business-related matters, and had a reputation for honesty. This evidence framed the primary issue at trial, whether the reporting errors resulted from a willful scheme or from the Rothrocks’ misplaced reliance on an incompetent tax preparer. The Rothrocks contend that the doctor’s dislike of finances caused them historically to delegate the preparation of taxes to another person. According to the Rothrocks, this delegation of responsibility was complete; they would simply sign the forms as presented by the tax preparer without even a cursory review of their accuracy. The Rothrocks thus insist that their underpayment of income tax was unintentional and not actionable under the criminal tax laws, which require a showing that the Rothrocks signed the returns knowing them to be false. United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12 (1976). Warren Arthur, who prepared the Roth-rocks’ returns for the years in question, was the government’s primary witness. An insurance salesman, Arthur originally met Dr. Rothrock in 1971 or 1972 when he convinced the doctor to purchase disability insurance. The business and social relationship between the two men blossomed over time. Ultimately, for either the tax year 1976 or 1977, Dr. Rothrock requested Arthur’s assistance in preparing his tax forms. The doctor, according to Arthur, seemed unconcerned that he had no training or particular competence in accounting or tax skills. In computing the Rothrocks’ income, Arthur testified to having relied primarily on the doctor’s receipts from medical insurance companies, as reported on Forms 1099. When asked why he did not search for direct patient payments or interest and investment income, which combined accounted for the bulk of the Rothrocks’ unreported income, Arthur responded that he felt such a search was unnecessary. He testified that the doctor asserted that his and his wife’s only source of income was from insurance companies; in those years where other income was reported, the doctor or his wife had specifically mentioned the existence of that income. Indeed, Arthur claimed that he would not make a “single entry without Dr. Rothrock telling ... me what that entry should be.” Arthur also stated that when he completed the Rothrocks’ taxes, he and the doctor would review the form line by line. On cross-examination, defendants brought out significant inconsistencies in Arthur’s testimony. Nevertheless, the jury returned verdicts of guilty against defendants on all four counts of the indictment. Shortly thereafter, the Rothrocks moved for a judgment of acquittal notwithstanding the verdict and, in the alternative, a new trial. On December 13, 1985, the district court granted both motions. The government filed a timely notice of appeal and now challenges the court’s decision to upset the jury’s verdict. I. JUDGMENT OF ACQUITTAL In giving its reasons for allowing a judgment of acquittal, the district court recognized that its power to set aside a jury verdict was very circumscribed. It acknowledged that it was duty-bound to construe the evidence, together with all legitimate inferences to be drawn therefrom, in the light most favorable to the government. United States v. Lamare, 711 F.2d 3, 5 (1st Cir.1985); United States v. Smith, 680 F.2d 255, 259 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983). The court also properly acknowledged that it may not assess the credibility of a witness in determining the sufficiency of the government’s evidence. Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2149-50, 57 L.Ed.2d 1 (1978). So long as the evidence was such that a rational mind might fairly find guilt beyond a reasonable doubt, the court could not disturb the jury’s verdict. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). Nonetheless, the court here directed a verdict, resting its analysis in no small part on its low assessment of Arthur’s credibility, concluding that his testimony was so “internally inconsistent and contrary to his testimony before the Grand Jury that we think he is thoroughly discredited.” The court thought no “rational trier of fact could conclude beyond a reasonable doubt that Rothrock told Arthur not to report as income such things as fees received from patients, proceeds from the sale of real estate, or interest income.” The court went on to weigh the government’s remaining evidence of willfulness against the-defense’s evidence of Dr. Rothrock’s aversion to paperwork and his reputation for honesty. It concluded that the state of the record did not allow a rational finding of guilt beyond a reasonable doubt. We think the district court underestimated the extent to which Arthur’s testimony, together with the government’s other evidence, was sufficient to support a rational finding of guilt beyond a reasonable doubt. Arthur’s inconsistencies, brought out in cross-examination, could have been thought by the jury to reflect Arthur’s desire to shield himself from criticism (and possibly prosecution) for not having prepared an honest and competent return. The same jury might still have believed, however, that the Rothrocks told Arthur, as he testified, what income to report, and that Arthur went over the returns with the Rothrocks after making them out. A jury is entitled to believe some part of a witness’s testimony and not another. See, e.g., United States v. Cueto, 628 F.2d 1273, 1275 (10th Cir.1980). The government’s other evidence could be thought by the jury to support Arthur’s testimony that, with a few exceptions, the only reportable income mentioned to him as such by the Rothrocks was the medical insurance income. There was evidence that in conversations with an IRS agent, Dr. Rothrock denied having any direct patient income, and that both Rothrocks, in other conversations with an agent, denied having income from non-medical sources. As in fact Dr. Rothrock had significant direct patient income, and as there was evidence that he was personally involved in mortgage transactions that had resulted in interest income, a rational jury could have concluded that the Rothrocks were consciously untruthful in denying the existence of these other types of income, and that in failing to report them they had not relied entirely on the tax preparer. Dr. Rothrock was a law school graduate, had engaged in numerous real estate transactions, had mentioned his interest income in loan applications, and could be viewed as a sophisticated businessman. The district court erroneously seems to have believed that the government’s case had to stand or fall on whether there was direct proof that the Rothrocks had specifically ordered the preparer to prepare fraudulent returns. In fact, the question was not whether the preparer was ordered to falsify but whether the Rothrocks knew, when they signed the returns, that the returns understated their income. We think there was evidence here from which a rational jury could infer beyond a reasonable doubt that the Roth-rocks were aware that the returns were false when they signed them. Accordingly, we reverse the district court’s decision to grant the judgment of acquittal. II. NEW TRIAL ORDER It is a harder question whether to sustain the district court’s ordering of a new trial, based on its conclusions that the verdict was against the weight of the evidence and would result in “a miscarriage of justice.” A district court has greater power to order a new trial than to overturn a jury’s verdict through a judgment of acquittal. As stated in United States v. Wright, 625 F.2d 1017, 1019 (1st Cir.1980), “[m]otions for a new trial are directed to the discretion of the trial court. In considering such a motion, the court has broad power to weigh the evidence and assess the credibility of ... the witnesses who testified at trial....” See also United States v. Indelicato, 611 F.2d 376, 387 (1st Cir.1979) (district judge may weigh the evidence and evaluate the credibility of witnesses). We will not disturb the disposition of a new trial motion unless the court abused its discretion or misapplied the law. United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir.1984); United States v. Thornley, 707 F.2d 622, 626 (1st Cir.1983). Despite our deference to district courts, this circuit, like most of today’s courts of appeals, puts definite limits upon a district court’s right to upset a jury verdict. To protect the fragile power given to the jury, we must ensure that the “remedy of a new trial is sparingly used, and then only where there would be a ‘miscarriage of justice.’ ” United States v. Indelicate, 611 F.2d 376, 387 (1st Cir.1979), quoting United States v. Leach, 427 F.2d 1107, 1111 (1st Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970). This court has emphatically stated that a trial judge is not a thirteenth juror who may set aside a verdict merely because he would have reached a different result. See, e.g., Payton v. Abbott Labs, 780 F.2d 147, 152-53 (1st Cir.1985); Borras v. Sear-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978). Where an order for a new trial is predicated on the district court’s evaluation of the weight of the evidence rather than its concern about the effect of prejudicial acts that may have resulted in an unfair trial, we will exercise a more stringent standard of review, Pay-ton, 780 F.2d at 152, requiring the court to refrain from interfering “ ‘unless it is quite clear that the jury has reached a seriously erroneous result.’ ” Borras, 586 F.2d at 887, quoting 6A J. Moore, Moore’s Federal Practice ¶ 59.-08[5], at 59-160 to 161. In ordering a new trial here, the court articulated the correct standard, namely, that conviction would result in a miscarriage of justice. The question is whether that finding is warranted. As earlier noted, there was sufficient evidence to convict. On the other hand, the court, having heard and seen the Rothrocks ánd Arthur, was persuaded that the Rothrocks had given the necessary information to the preparer, and had innocently overlooked the errors in the returns. That Arthur made significant misstatements on the stand is clear on the record, whatever weight one may attach to this fact. We must bear in mind also that this is a criminal, not a civil case. The government must prove guilt beyond a reasonable doubt, reflecting the structuring of our criminal jurisprudence to avoid stigmatizing and taking away the liberty of an innocent person. See In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); id. at 372, 90 S.Ct. at 1076-77 (Harlan, J., concurring) (“it is far worse to convict an innocent man than to let a guilty man go free”). In a criminal case we are slightly more reluctant than in a civil case to reject a trial judge’s strongly voiced assessment that a jury’s verdict was unjust as being contrary to the weight of the evidence. Given the serious extent to which Arthur was impeached, and the district judge’s considered belief that an injustice had occurred, we hold that the district court did not abuse its discretion in ordering a new trial. III. The parties raise two additional issues that may recur during the new trial and thus merit discussion. First, the Roth-rocks contend that the district court erred by instructing the jury on willful blindness. The court agreed, but because the Roth-rocks had not objected to the instruction during the trial, concluded that the error did not constitute grounds for reversal. We believe the instructions were properly given. In United States v. Picciandra, 788 F.2d 39 (1st Cir.1986), we held that a willful blindness instruction is appropriate if a defendant claims a lack of knowledge, the facts suggest a conscious course of deliberate ignorance, and the instructions, taken as a whole, cannot be understood as mandating an inference of knowledge. Id. at 46. The primary issue in this case is whether the record contains enough evidence that defendants engaged in a conscious course of deliberate ignorance. We think it does. For example, the government could reasonably argue that the Roth-rocks intentionally hired an inexperienced tax preparer hoping that he would lack the knowledge to anticipate sources of income not readily apparent. Moreover,- defendants emphasized at trial that Arthur had a sizable financial interest in the Rothrocks’ continued investment in various insurance programs. The Rothrocks could have expected that Arthur’s dependent position would cause him neither to question their financial assertions nor to search vigorously for income not reported in the Forms 1099. The foregoing examples, by no means exhaustive, show how the Rothrocks may have deliberately established a tax reporting system by which advantageous errors would inevitably occur. If the jury were to believe this theory of the case, the Rothrocks could not defend by claiming never to have examined in any depth the completed tax forms. The purpose of the willful blindness theory is to impose criminal liability on people who, recognizing the likelihood of wrongdoing, nonetheless consciously refuse to take basic investigatory steps. The second issue warranting discussion is the Rothrocks’ assertion that the government made improper comments on the evidence during its closing argument, where it described Dr. Rothrock as “a man that is enjoying the best of America’s life, the best. A lifestyle that most people in America can only dream about.” The government repeated this theme in its rebuttal: “part of the reason, unfortunately, life was so great is part of the income that has to be paid, as we all have to pay part of our income to the United States, wasn’t being paid.... It was being spent on living great.” The Rothrocks contend that the government was using this line of argument to appeal to class prejudice, a tactic long considered impermissible. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 60 S.Ct. 811, 851-52, 84 L.Ed. 1129 (1940). We cannot say that, where a taxpayer is living at a level that could appear too high for one receiving income in the amount reported, the government may not point to this in arguing that the taxpayer must have realized that his reported income was too low. See, e.g., United States v. Hughes, 766 F.2d 875, 878 (5th Cir.1985); United States v. Daniels, 617 F.2d 146, 150 (5th Cir.1980). Flaws in such an argument can be pointed out to the jury by opposing counsel. Still, we do not like the tone of some of the government’s argument here (“a man that is enjoying the best of America’s life, the best”). Argument, especially the government’s, should not degenerate into an appeal to prejudice, and we encourage the district court to intervene whenever this happens and also to refuse to permit argument of this type to stray beyond its evidentiary basis in the record. The judgment of acquittal is reversed; the verdict is set aside and the case is remanded to the district court for a new trial or other proceedings not inconsistent with this opinion. . The government’s calculations were as follows: Gross Income Net Taxable Income Tax Year Actual Reported Actual Reported 1979 $106,007.59 $72,587.00 $59,303.25 $28,762.00 1980 $144,520.10 $93,972.00 $81,359.41 $34,972.00 1981 $151,056.15 $94,973.00 $94,724.54 $37,445.00 1982 $142,172.09 $106,620.00 $84,164.14 $34,896.00 . The government’s evidence established that defendants owed additional taxes totalling $13,495.59 in 1979, $22,617.34 in 1980, $28,576.52 in 1981, and $21,560.61 in 1982. . Arthur testified that he repeatedly urged the Rothrocks to employ a qualified certified public accountant. He claims that the Rothrocks rejected this advice, allegedly telling him "frankly that they didn’t want to have people in the area to know their business.” . On cross-examination, Arthur acknowledged that defendants often provided him with a grocery bag full of receipts, cancelled checks, and bank statements. As later events demonstrated, the records in the bag pointed to income beyond that reported on the Forms 1099. Arthur claimed never to have examined these documents, believing that such an effort would be duplicative and wasteful. He felt that the receipts could offer no new information about the Rothrocks' income, given the doctor’s statement that the family’s income derived exclusively from insurance payments. It was brought out also that Arthur had made earlier statements indicating he had known Dr. Rothrock was receiving some patient income. Arthur conceded knowing that Rothrock had engaged in mortgage and real estate transactions, which could have given rise to reportable income. . Beyond Arthur’s testimony, the government’s evidence included statements by several IRS agents that during his audit Dr. Rothrock repeatedly claimed that all of his income was from insurance company reimbursements and that he had no interest or investment income. The government also brought out that the doctor had graduated from law school and had engaged in a number of successful business ventures, evidence designed to call into question the doctor’s assertion of financial naivete.

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

ARCENEAUX v. LOUISIANA. No. 76. Argued January 15, 1964. Decided March 9, 1964. J. Minos Simon argued the cause and filed briefs for petitioner. Bertrand De Blanc argued the cause for respondent. With him on the brief were Jack P. F. Oremillion, Attorney General of Louisiana, and M. E. Culligan, Assistant Attorney General. Per Curiam. Petitioner, who was before the state court “on a charge of vagrancy,” raised several objections to a denial of a preliminary hearing. The third of these reads as follows: “. . . that the bill of information charges no offense known to law and if it charges an offense within the meaning and intentment [sic] of a Louisiana statute, then both the statute and the bill of information are unconstitutional, null, and void, as being violative of the guaranties contained in the United States Constitution and of the Louisiana Constitution and Laws; . . .” Louisiana Rev. Stat. § 15:154 provides that “after an indictment found or an information filed, it shall be wholly within the discretion of the district court, and not subject to review by any other court, to order or to refuse to order a preliminary examination; . . .” Petitioner, when he asked for a preliminary hearing, was incarcerated and charged by affidavit with the offense of vagrancy. Neither an indictment nor a bill of information had been filed against him. In that state of the proceedings the motion for a preliminary examination was granted and a hearing set for March 8, 1962, and then continued to March 9. On March 9 the District Attorney filed an information charging the accused with the crime of vagrancy. Thereupon, the district judge recalled his order for a preliminary examination. Petitioner appealed to the Louisiana Supreme Court, asking for a writ of habeas corpus and alternatively for certiorari, mandamus, and prohibition. In that application the remedies of certiorari, mandamus and prohibition were sought alternatively for denial of a preliminary examination and for having to stand trial under the Vagrancy Act. In that application the petitioner said: “The bill of information charged no criminal offense, and if it did set forth an alleged offense in the language of a statute, then such statute and the bill of information are unconstitutional, null and void, being violative of both Federal and State Constitutions.” In the prayer for relief contained in the application he asked in the alternative that the Court rule “upon the constitutionality” of the vagrancy statute and whether it and other Louisiana statutes and constitutional provisions cited “are contrary to and violative of the provisions of the United States Constitution, and in particular the Fifth, Sixth and Fourteenth Amendments thereto.” Thus when petitioner sought review of the denial of a preliminary hearing, he tried to raise the question of the constitutionality of the vagrancy statute. The Supreme Court denied the writs on March 16, 1962, paying “Writ refused. There is no error of law in the ruling complained of.” The petition for certiorari to this Court was filed March 31, 1962. Two months later, i. e., May 31, 1962, petitioner appeared in the Lafayette city court (to which the case had been transferred by the District Court) and pleaded guilty to the charge of vagrancy. He was then sentenced to serve four months in jail, but given credit for the time served and forthwith discharged. We granted certiorari, 372 U. S. 906, and the case has been argued. In Louisiana it seems that, with exceptions not relevant here, only orders which finally dispose of criminal cases can be appealed. See La. Rev. Stat. §15:540. “A case is finally disposed of by any judgment which dismisses the prosecution, whether before or after verdict, that grants or refuses to grant a new trial, that arrests or refuses to arrest judgment, or that imposes sentence.” La. Rev. Stat. § 15:541. The “ruling complained of” as referred to by the Louisiana Supreme Court can only be the order recalling the order for a preliminary hearing. Under our decisions in the criminal field, such denial of intermediate relief in state criminal cases is similar to an order overruling a plea in bar (Eastman v. Ohio, 299 U. S. 505) or overruling a demurrer to an indictment (Polakow’s Realty Experts v. Alabama, 319 U. S. 750). Hence under 28 U. S. C. § 1257, denial of the preliminary hearing in a vagrancy case of this character is not a “final” judgment. We therefore dismiss the writ for lack of jurisdiction, without any intimation as to what rights, if any, petitioner may have under the Civil Rights Acts. The statute challenged, La. Rev. Stat. § 14:107 (1962 Cum. Supp.), provides: “The following persons are and shall be guilty of vagrancy: “(8) Persons found in or near any structure, movable, vessel, or private grounds, without being able to account for their lawful presence therein; . . . .” We do not concern ourselves with the state law aspects of habeas corpus, which is, after all, only an alternative form of relief that was sought.

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?

Ime Archibong ETUK, Jana Khalifa, Nuris Santana, Pedro Julio Henriquez, Franklyn Thomas Dunbar, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. William S. SLATTERY, District Director of the New York District Office of the Immigration and Naturalization Service, Gene McNary, Commissioner of the Immigration and Naturalization Service, William P. Barr, Attorney General of the United States, and the Immigration and Naturalization Service, Defendants-Appellants. No. 1527, Docket 92-6040. United States Court of Appeals, Second Circuit. Submitted April 7, 1992. Decided Aug. 4, 1992. Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Beglieter, Deborah B. Zwany, Varuni Nelson, Asst. U.S. Attys., Scott Dunn, Sp. Asst. United States Atty., E.D.N.Y., Brooklyn, N.Y., on the brief, for defendants-appellants. Kathleen A. Masters, Attorney-in-Charge, Park Place Trial Office, Constance P. Carden, Margaret H. McDowell, Manuel D. Vargas, Jane E. Booth, Director of Litigation, Civ. Appeals and Law Reform Unit, The Legal Aid Soc., New York City, for plaintiffs-appellees. Before: MESKILL, Chief Judge, MINER and ALTIMARI, Circuit Judges. PER CURIAM: This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Nickerson, J. In order to provide a lawful permanent resident alien (LPR) with replacement alien registration, the Immigration and Naturalization Service (INS) sometimes marks an I-94 Arrival Record (Arrival Record) with a stamp declaring the LPR’s status and employment authorization. The district court held that such documents, unlike similarly stamped passports, which the INS also uses as replacement registration, were inadequate proof of status and employment authorization. In a subsequently issued order, the district court effectively enjoined the defendants from issuing Temporary I-551s created by using Arrival Records. We reverse.. BACKGROUND This class action, which has been before us previously, see Etuk v. Slattery, 936 F.2d 1433 (2d Cir.1991) (Etuk I), involves claims by LPRs that certain INS policies are contrary to law. Because the background to this case has been set forth fully, see id. at 1436-39, we assume familiarity and address the history of this case only to the extent necessary to explain our holding today. Plaintiff class brought this action in 1989. It challenged, inter alia, the INS’s procedure for dealing with LPRs whose green cards had been lost or stolen. Under the INS practices that were the subject of that claim, LPRs who applied for a replacement green card received one of three forms of temporary documentation, each of which utilized the INS’s “Temporary I-551” stamp, which declares a LPR’s status and employment authorization. See id. at 1445. The stamp was placed on either (1) an applicant’s unexpired foreign passport, (2) the front of an INS “Form 1-94 Departure Record,” or (3) the front of an INS “Form 1-94 Arrival Record.” The district court addressed the plaintiffs’ contentions and concluded in part that federal law imposed a duty on the INS to provide LPRs with adequate temporary documentation that would reflect their LPR status and their unrestricted authorization to work in the United States. See Etuk v. Blackman, 748 F.Supp. 990, 999 (E.D.N.Y.1990). It also held that “[a] suitable temporary substitute must ... contain no information that casts doubt on the bearer’s status as a lawful permanent resident.” Id. at 999. The district court “expressed no doubt as to the sufficiency of the stamp when it is placed in a valid passport.” 936 F.2d at 1445. However, the Temporary 1-551 made with the Departure Record was held insufficient as a temporary substitute because of the following language that its reverse side contains: Warning A nonimmigrant who accepts unauthorized employment is subject to deportation. You are authorized to stay in the U.S. only until the date written on this form. To remain past this date, without permission from immigration authorities, is a violation of the law. The district court concluded that this language suggested a lack of LPR status and only temporary authorization of employment status. 748 F.Supp. at 998-99. Without comment, the district court, in an order issued after its published opinion, also invalidated as temporary proof of LPR status and work authorization the document created by this stamping of the Arrival Record. In Etuk I, we agreed with the district court’s reading of the INS’s duty to provide temporary documentation to LPRs and its conclusions concerning the use of the stamped passport and the Departure Record to create those documents. However, because we could “find no basis in the district court's November 27, 1990 opinion or in its subsequent Order for [its] conclusion” -that the document created with the Arrival Record was infirm, we reviewed that issue. 936 F.2d at 1446. Examining the Temporary 1-551 made with the Arrival Record, we concluded that it “does not suffer from the same infirmity as the ‘Departure Record/ ” id., because “the ‘Arrival Record’ has no misleading information printed on its reverse side.” Id. In fact, we stressed that “in our view, the ‘Arrival Record’ possesses the same attributes as a passport stamped with the ‘Temporary 1-551’ legend.” Id. Reversing and remanding, we stated that the district court either could “confirm our suspicion that a clerical mistake was made or explain in detail the basis for its decision.” Id. at 1447. On remand, the district court did not explain the genesis of its initial ruling on the Temporary 1-551 created by using the Arrival Record. However, it did set forth its belief that the Arrival Record is an inadequate document out of which to create a temporary alien registration. The district court felt that the Temporary 1-551 thus created was inadequate ás a matter of law principally because of two of the Arrival Record’s features: it contains blank spaces where one may fill in, among other things, “country where you live” and “address while in the United States,” and it “is a cardboard, tear-off portion of INS 1-94 arrival/departure record ... [that] is readily obtainable and reproducible by the public.” The district court’s rationale was that these features might make employers wonder about a potential employee’s status. Accordingly, in a subsequently issued order, the district court enjoined the defendants from using as temporary registration a document that contains blank spaces and is “easily obtainable by the public.” This order effectively foreclosed use of the Arrival Record to create Temporary I-551s. Subsequently, we granted a stay pending appeal and ordered that the appeal be considered by the same panel that rendered our decision in Etuk I. 28 U.S.C. § 1292 grants us jurisdiction to review the district court’s injunction. DISCUSSION The appellants argue alternatively that (1) we have already held that the Temporary 1-551 created by using an Arrival Record is adequate proof of status and employment authorization to conform with federal law, and (2) the Temporary 1-551 created by using an 1-94 Arrival Record complies with both federal law and our previous decisions in this case. A lower court must adhere to the decision of a higher court even when it disagrees or finds it erroneous. United States v. Jacobs, 955 F.2d 7, 9 (2d Cir.1992); see generally In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 293, 40 L.Ed. 414 (1895) (Lower court cannot vary or examine a higher court’s decision “even for apparent error.”) (citations omitted); Soto-Lopez v. New York City Civil Service Comm’n, 840 F.2d 162, 167 (2d Cir.1988) (The “lower court [must] follow a ruling made by the reviewing court at an earlier stage of a case, and ... the lower court has no discretion to disregard that duty.”) (citations omitted). Etuk I indicated our belief that the Temporary 1-551 created by using an Arrival Record was a legally sufficient document. 936 F.2d at 1446. However, by stating that on remand the “district court either can confirm our suspicion that a clerical mistake was made or explain in detail the basis for its decision,” id. at 1447, we left open the possibility that we might be persuaded to reconsider our position. We conclude therefore that although the district court failed to pay heed to our reasoning, it did not violate its duty to follow our mandate. With that said, we turn to the matter at hand. As we pointed out in Etuk I, the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., the Immigration Reform and Control Act of 1986, Pub.L. No. 99-603, 1986 U.S.Code Cong. & Admin.News (100 Stat.) 3359 (codified at various sections throughout Title 8 of the United States Code) and the regulations adopted thereunder impose a duty on the INS to provide LPRs with adequate temporary documentation that reflects their LPR status and their unrestricted authorization to work in the United States. 936 F.2d at 1445. Plaintiffs argue that the document at issue is misleading and therefore does not pass muster under this test. We disagree. The Temporary 1-551 created by using an 1-94 Arrival Record clearly declares that the bearer is a LPR. It contains an INS seal and is stamped twice, in a special security ink, with the following legends: PROCESSED FOR 1-551. TEMPORARY EVIDENCE OF LAWFUL ADMISSION FOR PERMANENT RESIDENCE VALID UNTIL_ EMPLOYMENT AUTHORIZED TEMPORARY FORM 1-551 DO NOT LIFT Moreover, the Temporary 1-551 is created by placing a photograph over the left-hand top corner of the document, thereby obliterating the admission number and reference to the document as an Arrival Record. Finally, as the defendants stress, the 1-551 has been identified to businesses and other organizations as proof of lawful permanent resident status in the Code of Federal Regulations. See 8 . C.F.R. § 274a.2(b)(l)(v)(A)(5). The document is not rendered legally inadequate because it contains blank spaces and is made out of cardboard. The Arrival Record’s blank spaces are not misleading in light of the document’s specific language that makes clear that the bearer is a LPR. In fact, each of the named plaintiffs to whom it has been issued has secured employment with this document. In any event, as the defendants point out, a stamp that is placed onto the front of the document obliterates the two of these entries — “country where you live,” and “address while in the United States” — to which Judge Nickerson objected most. As for the composition of the Temporary 1-551, other documents that are acceptable evidence of status and employment authorization are made out of cardboard or a similar material. See, e.g., 8 C.F.R. § 274a.2(b)(l)(v)(A)(2), (3) and (C)(1) (social security card, certificate of citizenship and certification of naturalization). Accordingly, we conclude that the Temporary 1-551 created by using the Arrival Record is valid temporary proof of LPR status and unrestricted work authorization. CONCLUSION The judgment of the district court is reversed and this case is remanded for further proceedings not inconsistent with this opinion.

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

William Thomas CARTWRIGHT, Petitioner-Appellant, v. Gary D. MAYNARD, Warden, Oklahoma State Penitentiary at McAlester, Oklahoma, and Michael C. Turpen, Attorney General of Oklahoma, Respondents-Appellees. No. 86-1231. United States Court of Appeals, Tenth Circuit. Sept. 29, 1986. Mandy Welch, of Payne and Welch, Hugo, Okl., for petitioner-appellant. David W. Lee (Michael C. Turpen, Atty. Gen., with him on briefs), Asst. Atty. Gen., Oklahoma City, Okl., for respondents-appellees. Before BARRETT, McWILLIAMS and TACHA, Circuit Judges. BARRETT, Circuit Judge. Petitioner William Thomas Cartwright, presently incarcerated in the Oklahoma State Penitentiary under sentence of death following his conviction for the offense of Murder in the First Degree, appeals from the federal district court’s denial of his petition for Writ of Habeas Corpus. Appellant-petitioner Cartwright was sentenced to death by lethal drug injection on October 25,1982, for the offense of Murder in the First Degree of the person of Hugh Riddle. On November 12,1982, Cartwright was sentenced to seventy-five years imprisonment for the offense of Shooting With Intent to Kill the person of Charma Riddle. Cartwright was convicted of said offenses following trial by jury in the District Court of Muskogee County, Oklahoma. The convictions and sentences were affirmed on appeal, Cartwright v. State, 695 P.2d 548 (Okl.Cr.1985), and the Supreme Court of the United States denied the petition for writ of certiorari. Cartwright v. Oklahoma, — U.S. -, 105 S.Ct. 3538, 87 L.Ed.2d 661 (1985). On August 22, 1985, Cartwright’s application for Post-Conviction relief was denied by the District Court of Muskogee County. That denial was affirmed on appeal. Cartwright v. State, 708 P.2d 592 (Okl.Cr.1985). A petition for writ of certiorari was denied by the Supreme Court of the United States. — U.S.-, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986). On February 6, 1986, Cartwright filed a Petition for a Writ of Habeas Corpus in the United States District Court for the Eastern District of Oklahoma. On February 11, 1986, that court, following denial of an evidentiary hearing, entered an order denying the petition. This appeal is taken from that order. We affirm the district court’s denial of habeas corpus relief. Factual Background Cartwright was employed by Hugh Riddle and his wife, Charma Riddle, in their construction-remodeling business in Muskogee, Oklahoma, for about six months from July, 1981, until early January, 1982. The relationship was excellent and Cartwright was promoted to foreman of a crew of about five. The Riddles considered Cartwright a conscientious employee and friend. Cartwright visited at the Riddle home often on business and social occasions. In December, 1981, while working for the Riddles, Cartwright fell through loose flooring and injured his leg. He was treated at a hospital emergency room. On January 2, 1982, Cartwright contacted the Riddles about payment of the small medical bill and Hugh Riddle laid him off. In January, 1982, Cartwright moved to Las Vegas, Nevada. Cartwright returned to Muskogee, Oklahoma, on May 1, 1982, after he claimed to have received a phone call from an unidentified attorney advising him that Hugh Riddle had determined to settle on the medical bill. During the evening of May 4, 1982, Hugh Riddle was killed by a shotgun blast at his home. Charma Riddle was also shot twice, her throat was cut and she was stabbed in the abdomen, but was able to notify the police before her attacker, whom she identified at trial as Cartwright, cut the telephone line. Upon arriving at the Riddle residence, the police noticed a lone male running away from the area. Late at night on May 6,1982, Cartwright phoned his sister at her home in Muskogee from a pay telephone. His sister, Dovie Marie Field, informed him that the police were looking for him. After driving him to her home, feeding him and giving him aspirin for a bad headache, she phoned Assistant District Attorney Edmondson with whom she had spoken earlier in the day regarding Cartwright’s whereabouts. Edmondson came to her home and took her and her brother to the police station just before midnight on the evening of May 6, 1986. (R., Vol. I, pp. 218-220). At the police station, Cartwright complained of a headache and a pain in his left knee. He was taken to a hospital emergency room where he was examined by Doctor Charles Thomas Morgan. Cartwright said he had headaches “off and on” since childhood because of a “soft spot” on his head. Dr. Morgan diagnosed Cartwright as having a “nonspecific headache” and recommended aspirin. Id. at 561. Dr. Morgan did not administer any drug and he did not prescribe any. Cartwright was then asked whether he wished to go to the police station and get some rest or go to the courthouse for interrogation. He said he did not care. Id. at 502. Cartwright was taken to the courthouse and was interrogated by Investigator Gary Sturm in the presence of Officer James Allen Stone. Prior to interrogation, Cartwright was orally informed of his “Miranda” rights by Sturm and thereafter he read and acknowledged those rights. Cartwright signed a written waiver. The tape recorded interrogation started at about 2:15 a.m. and lasted about an hour. While Cartwright did complain of a headache, his responses to questions posed by Sturm were clear and direct. For a substantial initial portion of the questioning by Sturm, resulting in some 28 typed pages from the tape recording, id. at 553, Cartwright related that he had gone to the Riddle home on the evening of May 4, 1982, to speak with Hugh Riddle about the medical expenses he (Cartwright) had incurred and while standing on the front porch of the Riddle home speaking with Hugh Riddle, he was hit on the head and blacked out. He had no recollection of anything more until he woke up in a ditch on the morning of May 6, 1982. Cartwright was fully aware of the charges against him but insisted that he had not entered the Riddle home and had not had any further contact with Hugh or Charma Riddle. Suddenly, during the interrogation, Cartwright recalled: going “back” to the Riddle home on the evening of May 4, 1982; watching the Riddles eat; entering the Riddle home through a side door; obtaining a loaded gun in the bedroom closet; the gun going off when Charma Riddle “grabbed” it, and the gun going off again; shooting Hugh Riddle and then finding Charma Riddle sitting on the bedroom floor as he cut the phone wire; his cutting and stabbing Charma Riddle with a pocket knife; and his placement of the two guns, sleeping bags and other things in the Riddle Blazer truck. He also recalled seeing a spotlight as he placed a note on the Riddle door and ran away. An Information was executed by the District Attorney for Muskogee County, Oklahoma, charging Cartwright with the subject crimes on May 5, 1982. It was supported by an Affidavit executed by Mr. Edmondson, the Assistant District Attorney, who related that Lt. Tom Spriggs had informed him that Charma Riddle had stated to him that Tom Cartwright had shot her and her husband with a shotgun in their home on the evening of May 4, 1982. The district court judge found probable cause and a Warrant for Cartwright’s arrest on the subject charges was issued May 5, 1985. The warrant was served on Cartwright May 7, 1985. On that same date, Cartwright executed a pauper’s affidavit and attorney John Garrett was appointed to represent him. Cartwright was ordered to be held without bond. A preliminary hearing was held on June 14, 1982. Cartwright was bound over for district court arraignment and bond was again denied. On July 1, 1982, Cartwright was arraigned. He entered a not guilty plea after waiving reading of the Information. The court granted Cartwright thirty days within which to file motions. After various motions were filed and ruled on, the case came on for trial commencing October 18, 1982. The jury verdict was returned on October 20, 1982, and sentence was handed down on October 25, 1982. On October 25, 1982, Cartwright made out a handwritten statement. He related that he had never seen a doctor for his head pain but each year the pain grows stronger and harder to control. Contrary to his admissions on May 7, 1982, he wrote that he recalled: going to the Riddle home on the evening of May 4, 1982; the conversation with Hugh Riddle about the medical bills; someone struck him on the head and he fell to the ground; he heard screams and shots as someone placed something in his arm; he tried to move but could not because he was numb all over; one of “them” took off his shirt and put it on him so that Charma Riddle would identify him; “they” blindfolded him, tied his hands and feet, placed him in a van; and he did not recall anything until he woke up while laying in a ditch in the rain on the morning of May 6, 1982. Evidence at Trial Cartwright testified at trial in his own defense. He stated that he received a phone call while in Las Vegas from an unidentified attorney advising him that Hugh Riddle wished to settle with him (Cartwright) on the small medical bills involving the injury to his leg during the fall the day he was fired; soon afterwards, he obtained a plane ticket to fly to Tulsa; from Tulsa he travelled to Muskogee, his hometown, where his parents and other relatives reside, arriving on May 1, 1982. He stated that he contacted Hugh Riddle at Riddle’s home phone on the morning of May 4, 1982, at which time it was agreed that he (Cartwright) should come to the Riddle home about 5:30 or 6:00 p.m. that day. There is substantial evidence that Hugh Riddle was not at his home on May 4, 1982, until the evening hours of 5:00 p.m. or thereabouts. Hugh and Charma Riddle had spent the night of May 3, 1982, at Charma’s father’s home in Muskogee. Neither returned to their home until the evening hours of May 4, 1982. A telephone bill was introduced in evidence demonstrating that on May 4, 1982, at 11:13 a.m. a long distance call was placed from the Riddles’ phone to the Las Vegas, Nevada, phone of Cartwright’s fiancee. Cartwright further testified that: when he was a boy he was pushed out of a door of a moving car and hurt his head and that any time he gets any pressure applied to his head, he blacks out; he has blacked out sometimes for two or three days, depending on the amount of pressure applied to his head and this has happened several times; he did not place a long distance call to his fiancee from the Riddle telephone on May 4, 1982; he went to the Riddle home about 5:00 p.m. on May 4, 1982; Hugh Riddle was cutting the lawn when he arrived; he informed Hugh Riddle about receiving the call from an unidentified attorney who advised him that Hugh Riddle wished to settle the medical bills he had incurred involving the fall and injury; Hugh Riddle ordered him off of his property and as he turned to leave he was struck over the head; he has no recollection of anything until the morning of May 6, 1982, when he woke up near a creek in a wooded area near Muskogee. Cartwright also testified that: he had never consulted a doctor about the “blackouts” because he does not like doctors, hospitals and clinics; that he recalled going to District Attorney Edmondson’s office and being interviewed on May 7, 1982, by Mr. Sturm in the presence of three men, but he could not remember making any statements; when he was taken to the courthouse and interviewed by Mr. Sturm, his head was hurting but nobody would pay any attention to his condition. When Cartwright was recalled to the stand he further testified that: he did not know that the statements he made could be used against him; he had been told that District Attorney Edmondson was going to help him; someone told him that if he did not make certain statements to the police when he was picked up that some member of his family would possibly be killed. Id. at 571-73. Charma Leigh Riddle, residing at Dallas, Texas, at the time of trial, testified that: She and her husband, Hugh, had spent the evening of May 3, 1982, at her father’s home and did not return to their home until early evening on May 4th; they ate their evening meal and retired to the living room to watch television; she left to go to the bathroom; she was confronted by a man holding a shotgun with the barrel pointed at her in a narrow hallway; she grabbed the gun barrel and the man fired it, the shot striking her leg; as she fell to the floor she recognized the man as Cartwright; Cartwright shot her again, this time in the other leg; she observed Cartwright walk into the living room where Hugh was; she saw Cartwright fire twice and she heard her husband scream; she dragged or scooted herself down the hallway into a bedroom where she tried to make a call on the telephone but it was dead; she then proceeded to write her assailant’s name on the white bed sheet in her blood; she managed to spell out the letters TOM CAR when she ran out of blood; Cartwright then entered the bedroom; Charma asked Cartwright why he did it and he said “we shouldn’t have fired him,” id. at 394; Charma responded that they did not fire him, rather he was laid off; Charma asked Cartwright to help her and he came to the bed and acted as though he was going to pull her up on the bed; he placed his left hand on her forehead, cut her throat and stabbed her in the abdomen with a hunting knife she and Hugh had given him as a Christmas gift; after Cartwright left the room, she then managed to crawl under the bed and plug in the telephone; she was put in contact by the operator with a Muskogee police dispatcher; Charma, in a critical state, informed them that she and her husband had been shot by Cartwright in their home and that Cartwright was still in the house; Cartwright came back into the bedroom and cut the telephone line. Muskogee law enforcement officers testified that they arrived at the Riddle residence after notification from the police dispatcher. A man was observed standing near the Riddle home by one of the officers and then seen ducking between trees and running away. Clothing, two guns and other personal possessions of the Riddles were found in the Riddle vehicle, including a silver jacket which Cartwright identified as identical to that which he owned and had lost. A note was found attached to the front door of the Riddle home by Charma Riddle’s father on May 6, 1982. It was introduced in evidence. In printed form it read: “SORRY SUTCH SHORT NOTESS WE WHEN’T TO TENNASIE ON EMERGENCE BE BACK NEXT WEEK. FEED IS IN BARN.” It was signed “Hugh M. Riddle.” During cross-examination the State handed Cartwright a piece of paper and pencil and asked him to print the identical words appearing on the note found on the Riddle front door. Id. at 501. This sheet was admitted in evidence as State’s Exhibit 26 and in printed form reads: “SORRY SUTCH SHORT NOTIC WE WENT TO TENNISE ON EMERGENCE BE BACK NEXT WEEK FEED IS IN BARN.” Charma Riddle testified that although she and Hugh had planned a trip to Tennessee the next year, they had no immediate plans to take such a trip and that neither of them had written the note found on their front door. Cartwright’s mother, Betty Cartwright, testified that when Cartwright was three years of age he “had a severe head injury” which caused “several severe headaches on through his life.” Id. at 431. She stated that as a result of the head injury, he has suffered migraine headaches which at times were so severe that “he didn’t know what he was doing, you know.” Id. at 432. The only other witness who testified about Cartwright’s headaches was his sister, Do-vie Field. She stated that when Tom was three years old he was pushed out of a moving car and fell on his head and has had a soft spot on his head since; that when she cut his hair he would pass out from pressure she put on the soft spot on his head; that she has seen Cartwright pass out several times. Id. at 434-36. Eulan Pack, Jr., a friend of both Cartwright and the Riddles, testified that before Cartwright left for Las Vegas he remarked that the Riddles would not pay the medical bills and that if he (Cartwright) did not get the money from Hugh Riddle to pay the bills, he would “get Hugh Riddle.” (R., Vol. I., pp. 101, 102). Similarly, Cartwright remarked to Clifford D. Hamilton, a fellow employee with the Riddles, that he intended “to get even” with Hugh Riddle. Id. at 125. Cartwright denied that he made such a remark to Hamilton. Hamilton worked with Cartwright for some five months, during which time they worked some days as much as ten to fourteen hours; Cartwright did not display any tendencies to violence and did not use any rough language; he visited socially with Cartwright on many occasions. Id. at 458, 459. Hamilton did not testify about any “blackouts” suffered by Cartwright during the period he knew and worked with him. Issues on Appeal The appellant/petitioner presents the following contentions on appeal: (1) He was denied due process of law when the state trial court denied his motion for a complete psychological evaluation; (2) he was deprived effective assistance of counsel at trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (3) the federal district court erred in denying his motion for an evidentiary hearing regarding his petition for writ of habeas corpus; (4) he was deprived of his right to a fair and impartial jury which represented a cross-section of the community in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (5) Oklahoma’s interpretation of “especially heinous, atrocious or cruel” is vague and overbroad, resulting in an arbitrary and capricious imposition of the death penalty, in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States; and (6) the state trial court failed to adequately instruct the jury regarding the meaning of “knowingly creating a great risk of death to more than one person,” leaving the jury with unbridled discretion regarding its meaning and application. I. Cartwright contends that the federal district court erred in finding/concluding that he was not denied due process of law when the state trial court denied his motion for a complete psychological evaluation. Cartwright points out that under Tit. 21, Okl. Stat. § 152(6) (1984) a person cannot be held responsible for criminal conduct if done while unconscious. Prior to trial, Mr. Garrett, trial counsel for Cartwright, filed a motion for a “complete psychological evaluation” going “far beyond the question of right and wrong and ability to assist me as counsel.” The motion was made following Cartwright’s evaluation at the state hospital based on Mr. Garrett’s representation to the court, as follows: And after having many occasions to visit with Mr. Cartwright and not only Mr. Cartwright himself but members of the family, and I can state that it is my opinion after having talked with William Cartwright, William Cartwright’s mother and father and two sisters that he in fact is in dire need, or we are in dire need of, some assistance as far as a complete psychological evaluation from either a doctor within the state institution or from a private source somewhere within the State of Oklahoma. (R., Vol. XIV, p. 3.) Following Cartwright’s trial and conviction, and denial of post-conviction relief and certiorari, Cartwright filed the habeas corpus petition herein. Attached to his motion for an evidentiary hearing on his habeas petition was the Affidavit of Attorney Mandy Welch and a letter dated February 2, 1986, marked Exhibit B, from Kit Farwell, Ph.D. In the letter, Dr. Farwell had, following a review of much of the trial testimony and other material, concluded that “there is a very strong possibility that Cartwright did suffer from a psychological and/or neurological disorder at the time of the crime and the period thereafter,” which, according to Dr. Farwell, created a suspicion that Cartwright “suffered a loss of ability to control his behavior and displayed problems with his memory of events surrounding this period due to serious psychopathology and/or neurological damage.” Dr. Farwell concluded that further psychological testing and referral to a psychiatrist for additional neurological study was required to determine Cartwright’s mental state at the time the offenses were committed. Dr. Farwell did not address the record with any specifics. The federal district court in the case at bar, after applying the facts to the standards (factors) discussed by the Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), (Ake) denied Cartwright’s habeas corpus petition. In so doing, the court agreed with the Oklahoma Court of Criminal Appeals that the record does not establish that Cartwright’s sanity was a viable issue upon which Cartwright could have based his defense. The federal district court favorably quoted from Cartwright v. State, 708 P.2d 592, 595-596 (Okl.Cr.1985), cert. denied, — U.S.-, 106 S.Ct. 837 (1986): In contrast, (with the factors analyzed by the Supreme Court in Ake) the petitioner did not use the insanity defense, he did not display any bizarre behavior, an examination by the state psychiatrist showed that he was competent to stand trial and was able to assist in his defense, and finally stated that further observation was unnecessary. Although the petitioner complained of recurring blackouts, a physician who examined him three days after the crimes could not find anything abnormal even though his attention was specifically called to the “soft spot” on the petitioner’s head alleged to be the reason the blackouts occurred. In his statement to the police, the petitioner first claimed to have experienced a blackout and was therefore unable to recall his last two days, but after further questioning he gave in detail the events during the crimes. These events were corroborated by the witness, Mrs. Riddle. In his testimony during the trial he first claimed that he had been hit on the head, and that he had no recollection of what happened for the next two days. On cross-examination he claimed he could not remember the statement which he made to the police which contradicted his testimony. On sur-rebuttal he changed his story, claimed that he gave the police a statement which he was instructed to give by his unknown assailant about whom he had earlier testified. In the federal district court, as here, petitioner relies almost exclusively on Ake v. Oklahoma, supra, for the proposition that he was denied due process of law and effective assistance of counsel when his motion for a complete psychological evaluation was denied. We agree that Ake, supra, is the focal case for our consideration. Ake holds that when an indigent defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the State must provide access to a psychiatrist’s assistance on the issue. Ake was a first degree murder prosecution. There Ake acted in such a bizarre manner during his arraignment, that the trial court, sua sponte, ordered him committed to the state psychiatric hospital to determine his present sanity or competency to stand trial. The chief forensic psychiatrist at the state hospital notified the trial court that Ake was not competent to stand trial. The trial court held a competency hearing. A state psychiatrist testified that Ake was a paranoid schizophrenic, dangerous, with poor control and suffering from delusions. The trial court found Ake a mentally ill person and in need of care and treatment. The court also found Ake incompetent to stand trial and committed him to the state mental hospital. After months of treatment and medication, Ake was returned for trial. Prior to trial, Ake’s counsel moved for a psychiatric examination by the state or that funds be provided to allow him to obtain the services of a psychiatrist. Ake’s counsel made it clear that Ake’s defense would be that of insanity at the time that the charged killings occurred. The trial court denied the motion. At the guilt phase of Ake’s trial, Ake’s sole defense was insanity at the time of the offense. The psychiatrists who had examined Ake at the state hospital testified extensively but none testified about Ake’s sanity at the time of the offense because none had examined him relative thereto. The jurors were instructed that Ake could be found not guilty by reason of insanity if he could not distinguish right from wrong at the time of the offense. Furthermore, the jury was instructed that Ake was presumed to be sane at the time of the offense unless he presented evidence sufficient to create a reasonable doubt on the issue. There was no expert testimony on the defense interposed by Ake, i.e., his alleged insanity at the time of the offense. As set forth supra, the Court in Ake held that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist if the defendant cannot otherwise afford one. The Court also held: The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination. ****** When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent. ****** We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake, supra, 105 S.Ct. at 1096. We hold that the district court properly denied Cartwright’s habeas petition because it was based on general allegations of need without substantive, supporting facts. Unlike Ake, Cartwright failed to make a preliminary showing that his sanity or mental capacity at the time of the offense was likely to be a significant factor at trial. In Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 2637, n. 1, 86 L.Ed.2d 231 (1985), the Supreme Court, citing to Ake, upheld the trial court’s denial of a motion to appoint experts and investigators to assist the defense. The Court observed that the request was not based on facts but rather a general statement of need, involving “little more than an undeveloped assertions that the requested assistance would be beneficial.” In United States v. Sloan, 776 F.2d 926 (10th Cir.1985), we examined Ake. We there held that if “sanity” or “mental capacity” defenses were to be defense issues, they must be established by a “clear showing” by the indigent defendant as “genuine,” “real” issues in the case. In order for a defendant’s mental state to become a substantial threshold issue, the showing must be clear and genuine, one that constitutes a “close” question which may well be decided one way or the other. It must be one that is fairly debatable or in doubt. Our interpretation of the showing required under Ake is consistent with the interpretation of Ake’s standard for appointment of a medical expert to aid an indigent defendant who has raised the insanity defense set forth in Volson v. Blackburn, 794 F.2d 173, 176 (5th Cir.1986): It is not unreasonable to argue, as Volson does, that a defendant’s sanity at the time of the offense will always be a significant factor at trial whenever the defendant pleads insanity. This Court does not read Ake that broadly, however. Rather, Ake requires that the defendant, at a minimum, make allegations supported by a factual showing that the defendant’s sanity is in fact at issue in the case. In the instant case, Volson’s attorney merely alleged that Yolson was unable to understand the difference between right and wrong at the time of the offense. This conclusional allegation is considerably less evidence of insanity than was present in either Ake or Pedrero.4 (In Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert. denied, 444 U.S. 943 [100 S.Ct. 299, 62 L.Ed.2d 310] (1979), the court held that a showing that the defendant was a drug addict and that he had been in a mental institution a few years before the offense was insufficient to establish his entitlement to a psychiatric expert at state expense). See also, Bowden v. Kemp, 767 F.2d 761, 765 (11th Cir.1985) (on remand for reconsideration in light of Ake) (Ake showing not met by undeveloped assertions that psychiatric assistance would be beneficial), (footnote deleted.) Therefore, the issue before us, properly stated, is whether, upon review of the entire record, Cartwright could have made a threshold showing under Ake that “his sanity at the time of the offense is to be a significant factor at trial____” We hold that, based on the record before us, Cartwright could not have made the threshold showing required under Ake. Before this court, counsel for Cartwright has insisted that questions about Cartwright’s mental condition “were raised in the State’s motion for commitment and Cartwright’s motion for a psychological evaluation.” (Brief of Petitioner, p. 11.) The so-called “State’s” motion for commitment is in fact a Joint Application of Mr. Garrett, trial counsel for Cartwright, and the State based upon “a doubt as to his [Cartwright’s] sanity [which] has been raised by defendant’s attorney.” The trial court, in ordering commitment for “observation and examination” for a period not to exceed sixty days did so based upon the “doubt raised by defendant’s attorney as to the present sanity of the defendant.” (Emphasis added). Thus, present sanity or sanity to stand trial was the sole basis of Cartwright’s request for examination. During the period of Cartwright’s stay at the hospital, his actions and conduct were very normal and cooperative; he displayed a calm disposition and was never on any medication. He did not display any erratic or bizarre behavior, as in Ake. The doctors did not diagnose him as having any mental illness. He was not diagnosed as suffering from any psychotic disorder such as schizophrenia or psychomotor epilepsy. A complete physical examination did not disclose any neurological problems. The electroencephalogram test was normal. Cartwright’s I.Q. tested at 98, which is considered to be average intelligence. The report submitted May 25, 1982, by the Deputy Superintendent for Clinical Services, Dr. Curva, of Eastern State Hospital, Vinita, Oklahoma, stated: Cartwright was able to comprehend the exact nature of the proceedings pending against him; Cartwright can adequately advise/assist his counsel in the defense of his case; the staff concluded that Cartwright was not in need of psychiatric care and/or treatment and was competent to stand trial; Cartwright is not considered dangerous to himself and/or others. Throughout the various documents involving Cartwright’s commitment/evaluation, continual references are made to Cartwright’s “blackout” complaints arising from the injury to his head when he was a child. Every examiner, it seems, was made aware of this history. Yet none recognized it as a condition bearing on Cartwright’s mental state in relation to his competency to assist in his own defense at trial. Cartwright was also examined by a Dr. Richard L. Pentecost on September 8, 1982. Dr. Pentecost’s letter to the trial court of September 28, 1982, makes no reference to complaints made by Cartwright about blackouts or other mental problems. Following Cartwright’s arrest, Dr. Morgan ex-axnined him. He found, following an examination of Cartwright’s head, that there were no abnormalities even though Cartwright had complained of a headache. Cartwright’s “blackout” defense is not substantiated by any medical evidence. Additionally, the inconsistencies in Cartwright’s own testimony regarding the events of May 4, 1982, through May 6, 1982, undermine his “blackout” defense. Cartwright’s statement of May 7, 1982, involves his initial contention that he (Cartwright) suffered a “blackout” at the Riddle residence when he was allegedly struck on the head as he was preparing to leave and that he woke up two days later in a ditch. Then, following additional testimony of non-recall, the transcript of the May 7th statement contains sudden, abrupt admissions of facts by Cartwright regarding the crimes committed at the Riddle home. Significantly, Cartwright further contradicted his testimony about the occurrences after he suffered the “blackout” when struck on the head on May 4, 1982. In his handwritten statement of October 25, 1982, he related that after speaking with Hugh Riddle about the medical bills and after turning to depart, he was hit on the head and as he fell to the ground someone stuck something in his arm as he heard screaming and gun shots. He stated that he tried to move but could not because he was numb all over, that “they” blindfolded him and placed him in a van; one of “them” took off his shirt and put it on him (Cartwright) so that Charma Riddle would identify him (Cartwright). Finally, Cartwright wrote that he woke up in a ditch in the rain. Cartwright contended that the “real killers” had given him instructions as to what to testify to should he get caught. Cartwright’s claim that he suffered a “blackout” when hit on the head at the Riddle residence which created a loss of memory of the crimes with which he was charged, Reply Brief, p. 2, is simply not credible. Unlike the medical report submitted in Ake, here there was no medical indication that Cartwright suffered from any mental infirm

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

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

UNITED STATES of America ex rel. Robert M. LEE, Jr., Plaintiff-Appellant, v. PEOPLE OF the STATE OF ILLINOIS, City of Chicago Police Department et al., Defendants-Appellees. No. 14822. United States Court of Appeals Seventh Circuit. March 22, 1965. Robert M. Lee, Jr., pro se. William G. Clark, Atty. Gen., Chicago, 111., Richard A. Michael, Edward A. Ber-man, Asst. Attys. Gen., of counsel, for defendants appellees. Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges. HASTINGS, Chief Judge. Plaintiff Robert M. Lee, Jr., pro se, is appealing from an order of the district court dismissing his action brought under the Civil Rights Act, 42 U.S.C.A. §§ 1983, 1985 and 1986 against defendants, People of the State of Illinois, City of Chicago Police Department, unknown subjects and party (or parties), Warden Frank J. Pate and others. Plaintiff was granted leave to proceed in forma pau-peris in the district court and before us. He appeared personally before us and orally argued his case. Plaintiff’s complaint does not state a cause of action under the Civil Rights Act against City of Chicago Police Department and People of the State of Illinois since these are not “persons” within the meaning of the Act. Monroe v. Pape, 365 U.S. 167, 191-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The district court had no jurisdiction over defendants designated in the complaint as “Unknown Subjects and Party (s)” since they" were not named and served with summons and a copy of the complaint. Pate is the only defendant named in the complaint over whom the district court had jurisdiction. Plaintiff was incarcerated at the Illinois State Penitentiary, Joliet, Illinois, to serve a sentence of seven years for rape, pursuant to a final judgment of the state courts of Illinois. Penitentiary officials, pursuant to a penitentiary rule, took 360 letters written by plaintiff’s wife, from plaintiff’s possession. These letters were held at the prison for him until his release. Plaintiff’s complaint alleges that enforcement of this rule, which prohibits prisoners from accumulating more than fifteen personal letters in their cells, violated his civil- rights. This rule does not apply- to letters pertaining to legal matters. “Except under exceptional circumstances, internal matters- in state penitentiaries are the sole concern of the states and federal courts will not inquire concerning them.” United States ex rel. Knight v. Ragen, 7 Cir., 337 F.2d 425, 426 (1964). The penitentiary rule limiting each inmate to possession of fifteen personal letters has the valid purpose of preventing fire hazards and is not an exceptional circumstance requiring federal intervention. The question of fact concerning whether the 360 letters in this case are personal or legal is likewise not one of concern to us in the disposition of this case. Alternatively, plaintiff seeks an order requiring prison officials to send the 360 letters to the district court for safekeeping. This question is moot since Pate, at plaintiff’s request, mailed these letters to the district court on July 14, 1964. Plaintiff stated in oral argument that he was discharged from prison- on November 23, 1964. Finding no error in the proceeding below, the order appealed from is affirmed. 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 "civil rights - civil rights claims by prisoners and those accused of crimes".

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

UNITED STATES of America, Plaintiff-Appellant, v. Charles FOCHT, an Individual, and Mark Focht, an Individual, Doing Business Under the Name Liberty Industries, Defendants-Appellees. No. 88-3781. United States Court of Appeals, Third Circuit. Argued July 27, 1989. Decided Aug. 8, 1989. Charles D. Sheehy, Acting U.S. Atty., Bonnie R. Schlueter (Argued), Barbara M. Carlin, Asst. U.S. Attys., for plaintiff-appellant. Louis Pomerico, (Argued), New Castle, Pa., Nancilee Burzachechi, Ellwood City, Pa., for defendants-appellees. Before GIBBONS, Chief Judge, HUTCHINSON, Circuit Judge, and REED, District Judge. Honorable Lowell A. Reed, Jr., District Court Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT GIBBONS, Chief Judge: The United States Consumer Products Safety Commission appeals from a denial of its motion to the court under 15 U.S.C. § 1263(a) to preliminarily enjoin Charles and Mark Focht, doing business as Liberty Industries, from distributing firework components in interstate commerce. The Government contends that the district court misconstrued the statute to require application of a subjective standard to the Fochts’ actions. We will reverse. I. Charles and Mark Focht own and operate Liberty Industries, located in Slippery Rock, Pennsylvania. Liberty sells component parts used to assemble fireworks. Liberty markets its goods nationally using a catalog. The catalog not only lists Liberty’s components but also offers “how-to” books and is sent with a list of chemical suppliers bearing the note: “We hope this list helps you to fill your chemical needs, while Liberty continues to serve all of your other needs!” App. 168, 268. The Consumer Product Safety Commission (“CPSC”) began to investigate Liberty in March, 1987. Between March and July of that year, five CPSC employees from various parts of the country requested and received catalogs from Liberty. The catalogs contained referral cards to Chemco of Virginia. App. 272-73, 338-39, 379-82, 441-42, 483-84. Six CPSC employees then each placed an order for tubes, twice as many end plugs, and fuses. App. 289, 318, 365, 425, 458, 517. Liberty filled the orders. Based on the sales to its employees, the government filed a complaint against Liberty on May 27, 1988 seeking to enjoin Liberty’s interstate sale of tubes, end plugs, and fuses. The complaint theorizes that the sales violated 15 U.S.C. § 1261 because the components shipped were intended for use in illegal fireworks. It raises a question of first impression. The district court held a hearing on the motion on September 13, 1988. There the government introduced the testimony of two experts; Liberty presented the testimony of one. All three agreed that traditional filling of the number 12 tube sold by Liberty would result in a firework over 1,000 times more powerful than allowed by law. The government witness conceded that the same tube also could be used to assemble a less powerful firework by displacing the end plugs. He also testified that the components could be used to manufacture legitimate Class C fireworks, which are sold to the general public. Both sides agreed that the tubes also could be used to construct mortars to loft stars or other fireworks, another legitimate use. After the hearing, the district court consolidated the government’s requests for preliminary and permanent injunctions pursuant to Fed.R.Civ.P. 65(a). The court rendered its decision in a memorandum opinion and order entered September 26, 1988. United States v. Focht, 694 F.Supp. 1199 (W.D.Pa.1988) [hereinafter Dist. Ct. Op.]. It found that the components could be used to assemble legal firecrackers and fireworks. Therefore, the goods per se did not violate the Act. Holding that the regulatory language prohibiting sale of components intended to be used in banned fireworks contemplates the subjective, rather than the objective, intent of the purchaser, the district court denied the government’s motion and entered judgment for Liberty. Based on its finding that no statutory violation had occurred, it never examined whether recurrent violations were likely, the second half of the statutory injunction test. See Commodity Futures Trading Comm’n v. British Am. Commodity Options Corp., 560 F.2d 135, 141 (2d Cir.1977), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1147 (1978). On appeal, the government asserts the district court misconstrued 16 C.F.R. § 1500.17(a)(3), (8) when it held the regulation’s “intended to produce” language imposes a subjective consumer standard on sales of fireworks components to determine whether a violation has occurred. Our review of this question of law is plenary. Dent v. Cunningham, 786 F.2d 173, 175 (3d Cir.1986). II. The Federal Hazardous Substances Act, (“FHSA” or “the Act”), 15 U.S.C. §§ 1261-77 (1982 & Supp. V 1987), makes illegal “[t]he introduction or delivery for introduction into interstate commerce of any ... banned hazardous substance.” 15 U.S.C. § 1263(a) (1982); see also id. at § 1264 (penalties; exceptions); United States v. Scharstein, 531 F.Supp. 460, 465 (E.D.Ky.1982) (FHSA meant “to protect the general public ... from extremely hazardous products”). Neither the parties nor the district court disputes this. The Act contains the following definition of “banned hazardous substance”: (q)(l) The term “banned hazardous substance” means (A) any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted; or (B) any hazardous substance intended, or packaged in a form suitable, for use in the household, which the Secretary by regulation classifies as a “banned hazardous substance” on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required under this chapter for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of interstate commerce: Provided, That the Secretary, by regulation, ... (ii) shall exempt from clause (A), and provide for the labeling of, common fireworks (including toy paper caps, cone fountains, cylinder fountains, whistles without report, and sparklers) to the extent that he determines that such articles can be adequately labeled to protect the purchasers and users thereof. 15 U.S.C. § 1261(q)(l) (1982). The statute grants the Secretary of Health, Education, and Welfare broad regulatory powers. See 15 U.S.C. §§ 1261(f)(1)(B), 1262 (1982). Section 1261(q)(l)(B) expressly instructs the Secretary to make determinations and then ban any substance that cannot be made safe through labeling. Id. § 1261(q)(l)(B); 16 C.F.R. § 1500.17(a) (1988). A ban on two kinds of fireworks has resulted. One applies to aerial fireworks: Fireworks devices intended to produce audible effects (including but not limited to cherry bombs, M-80 salutes, silver salutes, and other large firecrackers, aerial bombs, and other fireworks designed to produce audible effects, and including kits and components intended to produce such fireworks) if the audible effect is produced by a charge of more than 2 grains of pyrotechnic composition.... 16 C.F.R. § 1500.17(a)(3) (1988). The other applies stricter standards to firecrackers exploding on the ground: Firecrackers designed to produce audible effects, if the audible effect is produced by a charge of more than 50 milligrams (.772 grains) of pyrotechnic composition (not including firecrackers included as components of a rocket), aerial bombs, and devices that may be confused with candy or other foods, such as “dragon eggs,” and “cracker balls” (also known as “ball-type caps”), and including kits and components intended to produce such fireworks.... Id. at § 1500.17(a)(8). Thus, the “components intended to produce” language at issue is regulatory. The district court found this language difficult — perhaps even impossible — to construe. Dist.Ct.Op. at 8. We have no such difficulty. The regulations clearly contemplate an objective seller standard. The starting point of our analysis must be the regulatory language itself. Pursuant to 15 U.S.C. § 1261(q)(l)(B). Section 1500.17 bans certain hazardous substances because they are so dangerous that adequate labeling cannot be devised, and therefore “the public health and safety can be served only by keeping such articles out of interstate commerce.” 16 C.F.R. § 1500.17(a) (1988); see R.B. Jarts, Inc. v. Richardson, 438 F.2d 846, 848-49 (2d Cir.1981), United States v. Chalaire, 316 F.Supp. 543, 546 (E.D.La.1982). The regulation borrows this quoted material almost verbatim from section 1261(q)(1)(B). This language tells us three things. First, it tells us the regulation prohibits certain substances from entry into interstate commerce. Second it tells us that an extreme problem, justifying an extreme response, exists. Third, it tells us that Congress expressly authorized such a response. See 15 U.S.C. § 1261(q)(l)(B) (1982); see also H.R.Rep. No. 2166, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Admin.News 4095, 4095, 4096, 4099-4100. Subsections (a)(3) and (a)(8) each bans a particular type of firework, “including kits and components intended to produce such fireworks.” 16 C.F.R. § 1500.17(a)(3), (8) (1988). Taken in context, this language calls for application of an objective seller standard. Congress intended the ban to keep certain items out of commerce; it intended the ban to prevent such goods from ever entering American homes. 15 C.F.R. § 1261(q)(l)(B) (1982). The regulations adopt the statutory language and attempt to effectuate its purpose. See 16 C.F.R. § 1500.17(a) (1988). They identify an item posing a certain type of danger, and then insert catch-all language to trap components or kits that will have the same effect. The district court reached the unnecessary conclusion that the components, with their multitudinous possible legal uses per se were not banned hazardous substances. This is clear from the regulations’ wording, which bans components only when their intended use is to produce banned fireworks. Still, the Fochts attempt to build on this finding by stating that their harmless paper and plastic products could not be deemed hazardous under any test. Case law has shown that even the most innocuous items may be converted into dangerous instrumentalities. See, e.g., United States v. Morrow, 717 F.2d 800, 802 (3d Cir.1983), cert. denied, 464 U.S. 1069, 104 S.Ct. 975, 79 L.Ed.2d 213 (1984) (building as bomb); United States v. Agrillo-Ladlad, 675 F.2d 905, 911 (7th Cir.), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982) (newspapers and naptha as bomb). The district court’s subjective consumer standard undermines the statute’s purpose because it allows the components into the home and, worse still, requires that they be assembled into a banned firework before a violation arises. See Dist. Ct. Op. at 8. The only way to meet the congressional goal of preventing these goods from being introduced into the home is to apply an objective standard at the time of shipment. Furthermore, the regulation uses the “intended to produce” language in subsection (a)(3) to describe assembled fireworks. Such usage necessarily contemplates the manufacturer’s intent in producing the firework or the seller’s intent in marketing it. Thus, a consistent reading would require an objective standard for components as well. In addition, since the regulation uses the components and kits language as a catch-all to snare all shipments that will have the prohibited intended effect, this objective standard also must carry over to the component parts. The district court’s reading would allow the pieces to enter, when the whole is banned. This anomalous result cannot stand. The statute also contains another indication in addition to its general purpose of barring from interstate commerce banned hazardous substances that objective intent should govern. Section 1261(f)(1), which defines “hazardous substance,” uses traditional foreseeability language. 15 U.S.C. § 1261(f)(1)(A) (1982) (defining “hazardous substance” as “[a]ny substance or mixture of substances which ... is flammable or combustible, or ... generates pressure through decomposition, heat, or other means, if [it] may cause substantial personal injury or substantial illness during or as a proximate result of any customary or foreseeable handling or use”). Intended use (including foreseeable misuse, see, e.g., Suchomajcz v. Hummel Chemical Co., 524 F.2d 19 (3d Cir.1975)), objectively defined, necessarily encompasses foreseeability. Thus mitigated, the standard achieves a fair result. Contrary to the district court and the Fochts’ position, the test does not cast the statute’s net too broadly because surrounding circumstances mitigate the result. While Liberty’s merchandise may be used to construct legal fireworks, the government presented expert testimony that “90% of those individuals who order a tube, 2 end caps, and a fuse or who order similar proportions of these items in quantity, will use these items to make illegal fireworks.” Dist.Ct.Op. at 7. The same expert testified that if one of the tubes in question were filled in the traditional manner, it would contain over 1,000 times the legal limit of explosive. Id. at 5-6. This testimony, accepted by the district court, makes it foreseeable that the components in question will be used to build banned fireworks. Such knowledge must be attributed to the Fochts. Thus, the objective test, the regulation, and the statutory purpose are satisfied. Contrary to the district court’s opinion, such a test does not work an injustice upon Liberty. First, application of the objective intent standard does not result in a total ban of sales of the goods in question. As the government suggests, Liberty may avoid violation by policing the orders it receives and refusing to fill those that suggest the components will be put to banned uses. Liberty has chosen to traffic in highly regulated goods. It is common knowledge that doing business in a regulated area brings with it added costs. Having chosen to enter such an area, the Fochts cannot now complain about bearing that cost. It is not “unrealistic to require [Liberty] to examine each order” to determine whether the proportions and types of goods ordered likely will be used to produce banned fireworks. Id. at 7. They must read the order to fill it. Nor is it unreasonable to expect them to check recent orders by the same customer. In the alternative, the Fochts simply may stop selling those goods likely to find their way into banned fireworks, or they may limit their sale to licensed manufacturers. Liberty cannot rely on statements by the orderer that he or she is of age and intends to use the goods only for legal purposes to evade the statute. United States v. Christie Indus., Inc., 465 F.2d 1002, 1008 (3d Cir.1972). Therefore, imposition of an objective standard strikes a fair balance between the Fochts’ business interests and the statutory goals. In sharp contrast, the district court’s rule does violence to the statutory purpose. It would allow the Fochts to ship to homes all the components of illegal fireworks without violating the regulations. A seller’s subjective intent standard would provoke the same result: any good faith belief — such as the Fochts’ claim here — that their goods would not be used, or were not intended to be used, in banned fireworks would insulate the shipment. Cf. United States v. Articles of Banned Hazardous Substances, 614 F.Supp. 226, 232 (E.D.N.Y.1985). III. The district court denied the government’s motion for a preliminary injunction and entered a judgment for the Fochts based on its finding that the challenged goods are not banned hazardous substances. Since we hold that they are, we will reverse the district court’s judgment and remand for a determination by the district court whether recurrent violations are likely and what form of injunction is appropriate. .These parts include paper containers, plastic shells, bases, fuses, end glue, spiral wound tubes, and end plugs. . These books are: The Chemistry of Powder and Explosives, Fireworks Principles and Practice, and Pyrotechnics, App. 264. . Under previous ownership, Liberty sold the chemical, as well as the structural, components of fireworks. App. 162; see App. 265. . Some of the employees’ catalog requests and or orders were made after the complaint was filed. App. 351, 365, 518. . The government brief also includes some facts about an incident involving a fourteen-year-old boy who manufactured banned fireworks in his home using Liberty materials. These events occurred in October 1987, several months after the CPSC filed its complaint. . Specifically, the government asked the district court to enjoin Liberty from future interstate deliveries of banned substances in violation of 15 U.S.C. § 1263(a), pursuant to 15 U.S.C. § 1261(q)(l)(B) and 16 C.F.R. § 1500.17(a)(3), (8); to maintain records of all orders received and all shipments made; to submit a written plan to ensure compliance with section 1263(a); and to permit the CPSC to copy and inspect Liberty’s records to monitor compliance. App. 582-83. The government also asked to recover costs, App. 583, and moved for a preliminary injunction. .Robert Winokur, Liberty’s expert also testified the tubes could be used to make any other multitube device, such as "birthday cakes,” smoke devices, roman candles, and whistles. . The Fochts contend that only the legislature can impose an absolute ban on materials used as components of fireworks. This argument fails, both because Congress expressly empowered and instructed the Secretary to ban substances (s)he determines to be hazardous under the guidelines set forth by Congress, and because the regulation does not prohibit all Liberty sales. Instead it forbids only shipment in interstate commerce of those components intended to produce banned fireworks. . The Fochts maintain that their goods neither are intended for children, nor for use in the household. Brief for the Appellees at 12. This court previously has noted the likely combination of children and fireworks. See Suchomajcz v. Hummel Chem. Co., 524 F.2d 19, 26 (3d Cir.1975). Furthermore, the statute itself treats fireworks as toys. See 15 U.S.C. § 1261(q)(l) (1982) (exempting from the § 1261(q)(l)(A) ban any common fireworks to the extent the Secretary deems adequate labels can be devised). It should be noted, however, that the Secretary promulgated the bans on fireworks pursuant to 15 U.S.C. § 1261(q)(l)(B), not pursuant to (q)(1)(A). See 16 C.F.R. § 1500.17(a) (1988). Therefore, they ban fireworks that have been deemed a threat to society at large. Id. Any focus upon children is misplaced. Since the Fochts ship their products to households, their second argument is disingenuous. . At least one other court has applied an objective seller standard to an FHSA case. United States v. Articles of Banned Hazardous Substances, 614 F.Supp. 226 (E.D.N.Y.1985). The facts of that case required the district court to construe 15 U.S.C. § 1261(f)(1)(D), which defines as a hazardous substance "any toy intended for use by children which the Commission by regulation determines ... presents [certain] risk[s].” Id. at 229 (emphasis added). It concluded that only an objective standard would advance the goals of the FHSA. Id. at 231-32. . The Fochts analogize their paper and plastic goods to a car — an object that is not inherently dangerous yet may be put to innumerable illegal and unpredictable and unintended uses — to support application of a subjective intent standard. Here, however, the facts sufficiently narrow the possibilities to make the analogy invalid. Liberty advertises its goods as fireworks materials. Given the dimensions of certain of its products, and the composition of certain orders, illegal uses become extremely predictable. See infra at 60. . This court previously has held that within the specific confines of particular preliminary injunction, shipment of separate components did not violate the injunction. United States v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir.1972). This holding in no way binds us here. . After they purchased Liberty, the Fochts wrote to the CPSC for an opinion on the legality of shipping the items listed in their catalog. A CPSC attorney suggested that they delete all the tubes on page 2 and the tubes and bases at the top of page 5, as well as the cherry cup sets, items CS-1 and CS-2. App. 207-09, 256, 258, 261. These deletions appear to leave the Fochts with plenty to market. . We do not mean to imply that a balancing of interests is appropriate in an exercise of police power such as this. We merely respond to the district court’s express concern that anything but a subjective consumer standard is unfair to the Fochts and others like them. . Having conceded the appropriateness of the court’s result in United States v. Articles of Banned Hazardous Substances, 614 F.Supp. 226 (E.D.N.Y.1985), the Fochts attempt to distinguish the instant case. There, the court applied an objective standard to rattle regulations promulgated pursuant to the Act. Fireworks cases offer a sharp contrast, the Fochts argue, because no reasonable adult intends fireworks to be used by children. This turns the test inside-out. It also ignores the fact that § 1261(q)(l)(B) is not targeted at children alone, but at the general population. See United States v. Scharstein, 531 F.Supp. 460, 465 (E.D.Ky.1982); 15 U.S.C. § 1261(q)(1)(B) (1982); H.R.Rep. No. 2166, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Admin.News 4095, 4095, 4096, 4099-4100.

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

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

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

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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 re Melvin E. PETERSON, Debtor. Phillip D. ARMSTRONG, Trustee in Bankruptcy for the Estate of Melvin E. Peterson, Appellant, v. Melvin E. PETERSON, Debtor and his Personal Representative Bruce Peterson and Marshall Peterson, Appellees. No. 89-5118. United States Court of Appeals, Eighth Circuit. Submitted Oct. 11, 1989. Decided March 1, 1990. Phillip D. Armstrong, Minot, N.D., for appellant. Michael Ward, Minot, N.D., for appellees. Before McMILLIAN and WOLLMAN, Circuit Judges, and SNEED, Senior Circuit Judge. The Honorable Joseph T. Sneed, Senior United States Circuit Judge for the Ninth Circuit, sitting by designation. McMILLIAN, Circuit Judge. Phillip Armstrong (trustee) appeals from a final judgment entered in the District Court for the District of North Dakota finding that the bankruptcy homestead exemption of debtor Melvin Peterson survived his death and could be distributed to his heirs. We affirm. I. Peterson filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code (Code) on December 9, 1985. Peterson claimed a homestead exemption when he filed the petition. The trustee concedes that at the time of filing, Peterson was entitled to and properly claimed a homestead exemption. At the time he filed his petition, Peterson had five children, one of whom was a dependent. Peterson died on August 20, 1986, while his case was still pending. In April 1988, the trustee moved for a declaratory judgment that the homestead exemption lapsed when Peterson died before his bankruptcy case closed without leaving a surviving spouse or a dependent child. On October 24, 1988, the bankruptcy court ruled in favor of trustee, holding that under North Dakota law the homestead exemption continues after the claimant dies only if there is a surviving spouse or a dependent child. The court ruled that Peterson’s homestead exemption was relinquished when he died during the pendency of his bankruptcy without leaving a spouse or a dependent child, and the property reverted to the bankruptcy estate. Peterson’s estate appealed the bankruptcy court’s decision to the district court. On January 17, 1989, the district court reversed the bankruptcy judge, ruling that Bankruptcy Rule 1016, the Bankruptcy Act of 1898 and its legislative history established that the exemptions of a debtor are preserved even if the debtor dies prior to the closing of the case. See In re Peterson, No. A4-88-272, slip op. at 4 (D.N.D. January 17, 1989). Trustee’s motion for reconsideration was denied. This appeal followed. II. A brief review of how the homestead exemption fits into the overall bankruptcy scheme, as well as the interplay between federal and state law, will enable this court to more effectively address the issue raised by the trustee. At the time the debtor files a Chapter 7 petition, a bankruptcy estate is created which is comprised of all of the debtor’s legal and equitable interests in property, 11 U.S.C. § 541(a)(1) (1988). See In re Fandrich, 63 B.R. 250, 251 (Bankr.D.N.D.1986) (Fandrich); In re Sivley, 14 B.R. 905, 909-910, 5 Collier Bankr.Cas.2d (MB) 565, 572 (Bankr.E.D.Tenn.1981). Section 541(a)(1) is a broad provision which encompasses all apparent interests of the debtor. In re Graham, 726 F.2d 1268, 1270-71 (8th Cir.1984). Code section 522(b)(2)(A) permits debtors to exempt from the bankruptcy estate any property that is exempt under federal, state, or local law applicable on the date of filing the petition. 11 U.S.C. § 522(b)(2)(A) (1988). Debtors may claim exemptions by filing a list of exempt property at the time the petition is filed. Unless the trustee or any creditor objects within a specified time period, the property claimed is exempt. 11 U.S.C. § 522(l) (1988). A homestead exemption is one of the exemptions available under North Dakota law. The North Dakota Constitution mandates that laws be established which exempt a homestead from forced sale. N.D. Const, art. XI, § 22 (1981). N.D.Cent.Code § 28-22-02 accords the head of family certain absolute exemptions from attachment, levy and sale, among them being “the homestead as created, defined, and limited by law.” N.D.CentCode § 28-22-02(7) (Supp.1989). The amount of real property which may be taken as a homestead exemption is set forth at N.D.Cent.Code § 47-18-01 (Supp.1989), which defines the homestead as consisting “of the land upon which the claimant resides, and the dwelling house on that land in which the homestead claimant resides, with all its appurtenances, and all other improvements on the land, the total not to exceed eighty thousand dollars in value, over and above liens or encumbrances or both.” See generally Fandrich, 63 B.R. at 252. III. With this overview in mind, we turn to the issue raised by trustee. For reversal, trustee argues that the homestead exemption lapsed and reverted to the bankruptcy estate when Peterson died without leaving a spouse or dependent children while his bankruptcy case was still open. Because entitlement to a bankruptcy exemption is a question of law, we review the judgment of the district court de novo. In re Hutton, 893 F.2d 1010, 1011-12 (8th Cir.1990); Stevens v. Pike County Bank, 829 F.2d 693, 695 (8th Cir.1987). We do not agree with Trustee’s contention that Peterson’s death cause his exemption to lapse. “It is hornbook bankruptcy law that a debtor’s exemptions are determined as of the time of the filing of his petition.” In re Friedman, 38 B.R. 275, 276 (Bankr.E.D.Pa.1984) (Friedman). We join these courts finding that bankruptcy exemptions are fixed on the date of filing. See White v. Stump, 266 U.S. 310, 313, 45 S.Ct. 103, 104, 69 L.Ed. 301 (1924); Mansell v. Carroll, 379 F.2d 682, 684 (10th Cir.1967). By holding that exemptions are fixed on the date of filing, we focus only on the law and facts as they exist on the date of filing the petition. There is no doubt that the law as it exists on the date of filing determines a debtor’s claimed exemption. 11 U.S.C. § 522(b)(2)(A), which allows a debtor to claim state-created exemptions, explicitly provides that the state law applicable on the date the petition is filed governs the exemptions which may be taken. The propriety of limiting our factual investigation to those facts existing on the date of filing is less self-evident. Nevertheless, for the reasons set forth below, we hold today that only the facts existing on the date of filing are relevant to determining whether a debt- or qualifies for a claimed exemption. Our decision to consider only the facts and circumstances as they exist on the date of filing is supported by precedent, Bankruptcy Rule 1016, logic, and policy considerations. Although no court in this circuit has addressed the issue of which facts should be examined to determine whether a debtor qualifies for a claimed exemption, several other courts have reached the same conclusion we reach today. In Friedman, 38 B.R. at 276-77, the bankruptcy court rejected an argument similar to the one made by the trustee in this case. The court held that the $7500 federal homestead exemption claimed by the husband on the date of filing survived his death and could be claimed by his wife in addition to her own homestead exemption. The court reasoned that the husband’s entitlement to the homestead exemption vested at the time the petition was filed and his subsequent death did not destroy the claimed exemption. Id. at 276. Similarly, in In re Rivera, 5 B.R. 313, 315-16 (Bankr.M.D.Fla.1980), the bankruptcy court denied the debtor a homestead exemption because he was unmarried and did not qualify for head of family status under Florida law at the time he filed his petition, even though his child was born three days after the bankruptcy petition was filed. The court held that “the right to claim exemptions by a Debtor is governed by the facts and governing circumstances which existed on the date the petition was filed and not by any changes which may have occurred thereafter.” Id. at 315 (emphasis added). Because the debtor was unmarried and childless at the time of filing, the court determined that the debtor was not entitled to a homestead exemption. Several courts have extended the Rivera rule to hold that trustees or creditors were not entitled to the proceeds of exempt property which the debtor sold after filing, so long as the debtor was entitled to the exemption on the date of filing. See, e.g., In re Patterson, 64 B.R. 120, 123 (W.D.Wis.1986) (“[o]nce a debtor’s available exemptions are determined, a debtor generally will not lose the available exemptions because of the subsequent sale of the exempt assets”); In re Werner, 79 B.R. 819, 820 (Bankr.W.D.Wis.1986) (sale of exempt farm property two days after filing of petition does not alter exempt status because “debtors are entitled to the exemptions they had available on the date of filing their bankruptcy petition”); In re Brzezinski, 65 B.R. 336, 339 (Bankr.W.D.Wis.1985) (sale of exempt farm property at auction 17 days after filing does not destroy exemption because “[exemption rights are determined based on the circumstances present at the time of filing ... [c]hanges occurring after filing are not relevant”). Secondly, Bankruptcy Rule 1016 (1988) provides in relevant part that “[d]eath or insanity of the debtor shall not abate a liquidation case under Chapter 7 of the Code. In such event, the estate shall be administered and the case concluded in the same manner, so far as possible, as though the death or insanity had not occurred.” Chief Judge Conmy noted that this rule does not address the specific issue raised in this case, but found the rule helpful. See In re Peterson, No. A4-88-272, slip op. at 2. We agree. Rule 1016 states that where possible, death of the debtor should not influence the administration or resolution of a bankruptcy proceeding. By determining exemptions based on the facts as they exist on the date of filing, Rule 1016’s dictate that a debtor’s death or insanity not influence the bankruptcy proceedings is effectuated. See Friedman, 38 B.R. at 277. Thirdly, logic supports our conclusion that only the facts existing on the date of filing a petition should be examined to determine a debtor’s right to exemptions. In 11 U.S.C. § 522(b)(2)(A), Congress specified that state law applicable on the date of filing determines the debtor’s right to state-created exemptions. As a logical matter, it makes sense to apply the law applicable on the filing to the facts and circumstances existing on the date of filing. It would be asymmetrical and cause confusion to apply the law existing on the date of filing to facts which arose sometime after the petition was filed. Finally, policy considerations support evaluating a debtor’s right to exemptions based on the facts in existence at the time of filing. One of the main goals of the Bankruptcy Code is to provide honest debtors with a fresh start. In re Lindberg, 735 F.2d 1087, 1090 (8th Cir.1986), cert. denied, 469 U.S. 1073, 105 S.Ct. 566, 83 L.Ed.2d 507 (1984) (Lindberg). As stated by this court in Lindberg, “[djebtors are permitted to exempt a certain amount of their personal assets to facilitate a ‘fresh start.’ They may make full use of exemptions, and can even convert non-exempt property to exempt property on the eve of bankruptcy.” Id. Determining the debtor’s right to exemptions on the date of filing facilitates the debtor’s fresh start. If events subsequent to the date of filing are allowed to alter a debtor’s exemptions, uncertainty and subsequent litigation could impede a debtor’s fresh start. Moreover, allowing postpetition facts to alter a debtor’s homestead exemption might cause confusion in real estate titles and make it more difficult to finally resolve bankruptcy cases. Consideration of post-petition facts would thus hinder the quick, expeditious resolution of bankruptcy disputes. For these reasons, we conclude that Peterson’s right to a homestead exemption is determined by applying North Dakota law to the facts and circumstances of Peterson’s case as of the date he filed his petition. Peterson filed his bankruptcy petition on December 9, 1985. His entitlement to a homestead exemption is thus examined under the facts as they existed on that date. There is no doubt that Peterson was entitled to a homestead exemption at the time he filed his petition. At the time of filing, Peterson’s youngest daughter was a dependent and lived with him on the homestead property. Peterson was thus a head of a family within the meaning of N.D. Cent.Code § 28-22-01.1(2)(a) (Supp.1989). Peterson also properly filed his exemption claim when he filed his petition. Indeed, trustee concedes that Peterson was entitled to and properly claimed a homestead exemption at the time he filed his petition. Peterson’s homestead exemption became fixed and vested on the date of filing. Peterson’s death, which occurred eight months after the date of filing, is irrelevant for determining his right to a homestead exemption. Accordingly, we hold that Peterson’s death eight months after filing his petition did not constitute an abandonment of the homestead or cause it to lapse and revert back to the bankruptcy estate. Accordingly, the judgment of the district court is affirmed. . The Honorable Patrick A. Conmy, Chief Judge, United States District Court for the District of North Dakota. . When the petition was filed, Peterson’s youngest daughter, Deenie Peterson, was 18 years old and lived on the homestead property. When Peterson died, Deenie Peterson was 19 and in college. She continued to live on the Peterson property through the summer of 1987. . Although 11 U.S.C. § 522 permits the debtor to elect between state exemptions or the federal exemptions set forth at 11 U.S.C. § 522(d), North Dakota is among the majority of states which has chosen to "opt out” of the federal exemption scheme and limit its residents to the exemptions allowable under North Dakota law. See N.D.Cent.Code 28-22-17 (Supp.1989). Besides North Dakota, at least 34 other states have opted out of the federal exemption scheme and limited residents to the exemptions provided for under state law. 3 Collier on Bankruptcy ¶ 522.02, at 522-11 n. 4A (5th ed. 1989). .Bankruptcy Rules Í007 and 4003 establish procedures for filing lists of exempt assets, objections to such lists, and the resolution of issues presented by the objections. See In re Lindberg, 735 F.2d 1087, 1089 n. 7 (8th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 566, 83 L.Ed.2d 507 (1984). . Section 47-18-01 has been construed as a limitation and definition of the value of the homestead rather than a definition of the term “homestead." Cullen v. Sullivan, 51 N.D. 384, 199 N.W. 760, 761 (1924). . The court found that debtor’s cohabitation with his girlfriend did not constitute a family unit. In re Rivera, 5 B.R. 313, 315-16 (Bankr.M.D.Fla 1980). . Trustee is correct in pointing out that the scope of Peterson’s homestead exemption is determined by North Dakota law. See Hanson v. First National Bank, 848 F.2d 866, 868 (8th Cir.1988) ("[w]hen the debtor claims a state-created exemption, the scope of the claim is determined by state law”); Norwest Bank Nebraska, N.A. v. Tveten, 848 F.2d 871, 873 (8th Cir.1988) (same). However, trustee errs in suggesting that North Dakota law be applied to post-petition facts. . Even assuming arguendo that post-petition facts are relevant to determining Peterson’s right to a homestead exemption, we take issue with the trustee’s proposed interpretation of North Dakota law. The trustee asserts that Peterson’s death caused his homestead to lapse and revert to the bankruptcy estate, or that his death constituted an abandonment of the homestead. We disagree with both contentions. We do not believe that the homestead lapsed when Peterson died. Under North Dakota law, the property covered by the homestead exemption survives the death of the claimant, so long as the homestead property is devised or descends to a surviving spouse or child. See N.D. Cent.Code § 30-16-04 (1976). Section 30-16-04 does not require that the heirs be minor or dependent children. In this case, Peterson died intestate and did not leave a surviving spouse. N.D.Cent.Code § 30.1-04-03(1) (1976) specifies that the entire intestate estate passes to the issue of the decedent if there is no surviving spouse. Under North Dakota law, the property covered by Peterson’s homestead exemption did not lapse but rather passed to his five children free from the claims of creditors. We also doubt that North Dakota courts would find that Peterson’s death constituted an abandonment of the homestead. In order to find an abandonment of a homestead, the trial court must determine that the debtor has voluntarily departed from the homestead property, and left without the intent to return and occupy it as a home. Farmers State Bank v. Slaubaugh, 366 N.W.2d 804, 808 (N.D.1985) (Slaubaugh). Peterson passed away. He did not admit residency of another state, enter into a divorce, or otherwise voluntarily relinquish his homestead property. See Slaubaugh, 366 N.W.2d at 808 (abandonment of homestead found when claimant admitted under oath that he was an actual, bona fide resident of another state); Young v. White, 267 N.W.2d 799, 802 (N.D.1978) (homestead terminated by divorce because status as head of household lost). The debtor’s death in this case is most akin to the situation presented in Larson v. Cole, 76 N.D. 32, 33 N.W.2d 325 (1948), where the Supreme Court of North Dakota found no abandonment because the claimant was involuntarily called away from the property to serve as a dentist during World War II. Id. 33 N.W.2d at 327-30. The court found that the claimant did not voluntarily relinquish his homestead even though he moved his wife and daughter to a different state, offered the homestead for sale, sold nearly all of its furnishings and household goods, and gave a lease for the premises with an option to buy. Although it appears that North Dakota courts have yet to resolve this issue, we do not believe that death would constitute a voluntary departure from or relinquishment of the homestead property.

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

FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, Plaintiff-Appellee, v. John L. MOLINARO, et al., Defendants, and Kurahara & Morrissey, Real Party in Interest-Appellant. No. 88-6216. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 5, 1989. Decided Jan. 17, 1991. Michael T. Morrissey, Joseph R. Kafka, Kurahara & Morrissey, San Jose, Cal., for real party in interest-appellant. Carol Burney, Lawler, Felix & Hall, Los Angeles, Cal., for plaintiff-appellee. Before GOODWIN, Chief Judge, SCHROEDER and O’SCANNLAIN, Circuit Judges. SCHROEDER, Circuit Judge: Michael Morrissey and Kurahara & Mor-rissey, a law firm, appeal from a district court order imposing Rule 11 sanctions against them. The court imposed the sanctions after it had determined that the counterclaims they had filed against the Federal Savings & Loan Insurance Corporation (FSLIC) were barred by the doctrine of sovereign immunity. The appellant’s client, Kimberleigh Ferm, had been married to John Molinaro, a former officer and director of the failed Ramona Savings & Loan Association. FSLIC’s claims against Ferm, and her sanctioned counterclaims at issue in this appeal, briefly occupied a very small corner of the stage where FSLIC, Molinaro and other defendants litigated the financial liability of the officers and directors for Ramona’s defalcations. See Federal Savings and Loan Insurance Corporation v. Ferm, 909 F.2d 372 (9th Cir.1990); Federal Savings and Loan Insurance Corporation v. Molinaro, 901 F.2d 1490 (9th Cir.1990). FSLIC originally instituted the underlying action in September of 1986, and did not name Ferm as a party. The amended complaint, filed in June of 1987, contained two claims against Ferm along with 39 other claims against various defendants, including Molinaro. The claims against Ferm alleged that she engaged in a 'conspiracy with Molinaro, through certain property transfers, to prevent FSLIC from recovering property which belonged to Mo-linaro. On September 14, 1987, the district court entered summary judgment in favor of FSLIC and against Molinaro in the amount of more than $2 million. In still another judgment, also against Molinaro, entered approximately two months later, the district court awarded FSLIC an additional $6.4 million plus interest. Neither of these judgments ran against Ferm, and Ferm did not participate in the proceedings which led up to them. FSLIC moved for summary judgment against Ferm in January of 1988. In response, Ferm moved, pursuant to Fed.R. Civ.Pro. 12, to dismiss FSLIC’s claims against her on the ground that the transfers were not subject to the law of fraudulent conveyances because they were transfers of community property by way of a marriage settlement. On March 7, 1988, the district court denied Ferm’s motion to dismiss FSLIC’s claims against her. The court, significantly and expressly, did not treat her motion as a motion for summary judgment and thus did not enter any judgment at that time in favor of FSLIC and against Ferm. The March 7 order dealt with eight different pending motions and included an order that the funds being held by the clerk be paid over to FSLIC in partial satisfaction of FSLIC’s judgments against Molinaro which had not been superseded. Much confusion in this appeal has been generated by the suggestion on the part of FSLIC, apparently accepted by the dissent, that the March 7 order was an adjudication of the merits of the dispute between FSLIC and Ferm concerning the funds that had been deposited with the Clerk. It was not such an adjudication. What the order did, in fact, was to deny Ferm’s motion to dismiss and to permit FSLIC to supplement its claims against Ferm. The March 7 order also granted FSLIC’s motion to direct the funds to be paid to FSLIC. The district court thereby rejected Ferm’s position, as stated in her opposition to FSLIC’s motion, that no such order should issue until there had been adjudication of her claims to the money. The March 7 order did not decide or even consider the merits of those claims. Subsequently, FSLIC filed the supplemental complaint that the order contemplated. Later, in March of 1988, Ferm answered this supplemental complaint. She also raised the now sanctioned counterclaims against FSLIC in order to assert her claims to the money that by now had been paid by the Clerk to FSLIC pursuant to the March 7 order. Ferm’s counterclaims were therefore not an effort to relitigate matters previously decided in the March 7 order. At the sanctions hearing, the district court made it clear that the sanctions were not a response to Ferm’s decision to assert her counterclaims at this point in the case. When counsel for Ferm pointed out that Ferm’s claims had become ripe only as a result of the very recent transfer of funds to FSLIC, the district court said “I quite agree with you, insofar as the timing of the claim and nobody suggests that anyone is to be sanctioned for that.” The district court entered its ruling on the merits of Ferm’s claim in the same order in which the district court imposed sanctions. The order stated as follows: 1. The Court grants plaintiff’s motion to dismiss defendant Ferm’s First Amended Counterclaim and Cross-Claim with prejudice. Ferm’s pleading is procedurally unauthorized to the extent that she did not obtain leave of Court to file it. See Fed.R.Civ.P. Rules 13(e), 14(a) and 15(a). Furthermore, Ferm’s claims against FSLIC for fraudulent conveyance, abuse of process, trespass and conversion are barred by the doctrine of sovereign immunity as they are torts arising outside the scope of the Federal Tort Claims Act, 28 U.S.C. § 1371, et seq. See FDIC v. Citizens Bank & Trust Co., 592 F.2d 364, 371 (7th Cir.), cert. denied, 444 U.S. 829, 100 S.Ct. 56, 62 L.Ed.2d 37 (1979); Colony First Federal Savings & Loan Association v. FSLIC, 643 F.Supp. 410, 416 (C.D.Cal.1986). 2. The Court grants plaintiff’s request for the imposition of Rule 11 sanctions. Ferm’s claim merits sanctions on the grounds that it is frivolous, legally unreasonable and without factual foundation. See Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir.1986). Accordingly, the law firm of Kurahara & Morrissey shall pay the sum of $5641.00 to plaintiff not later than May 16, 1988. The court thus made no underlying findings of fact as to the merits of Ferm’s claims. The basis articulated for dismissal of those claims was sovereign immunity. In addition, at the hearing the district court indicated that it considered Ferm’s claims of fraud and conspiracy against FSLIC to be without merit because FSLIC, in receiving the property in question, was acting pursuant to a court order stating that Moli-naro had no claim to the property and that it could therefore be turned over to FSLIC. These two purported justifications for sanctions involve fundamentally legal issues: sovereign immunity of FSLIC and the extent to which the earlier orders in FSLIC’s claims against Molinaro barred Ferm’s claims as well. We review the district court’s sanctions under Rule 11 for abuse of discretion. A district court necessarily abuses its discretion when it bases sanctions on an erroneous view of the law. See Cooper & Gell v. Hartmarx Corp., et al., — U.S. -, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). Sanctions are inappropriate where counsel has made a good faith argument for the “extension, modification or reversal of existing law” and where the legal arguments put forth are not frivolous. Fed.R. Civ.Pro. 11. See Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F.2d 1531, 1539 (9th Cir.1986); see also Advisory Committee Notes on 1983 Amendment to Rule 11 (“The Rule is not intended to chill enthusiasm or creativity in pursuing factual or legal theories.”). We consider first the district court’s conclusion that Ferm’s legal argument on sovereign immunity was frivolous. We conclude that Ferm’s position was not frivolous. Ferm at the very least plausibly argued that Congress had waived sovereign immunity for lawsuits against FSLIC pursuant to the “sue and be sued” provision of 12 U.S.C. § 1725(c)(4). In Woodbridge Plaza v. Bank of Irvine, 815 F.2d 538, 542-543 (9th Cir.1987), we held that the FTCA was not the only applicable waiver of sovereign immunity in suits against the Federal Deposit Insurance Corporation (FDIC); the “sue and be sued” language of 12 U.S.C. § 1819(a) acted as a general waiver. The same language is in section 1725(c)(4). The FDIC and FSLIC have served similar purposes. In fact, FSLIC has recently been succeeded in interest by the FDIC. See Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, § 215, 103 Stat. 183, 252; FSLIC v. Butler, 904 F.2d 505 (9th Cir.1990). Ferm, therefore, could reasonably argue that our holding in Wood-bridge Plaza should apply to FSLIC as well. Second, we consider FSLIC’s contention that it could not be liable to Ferm because the issue of its right to the funds had already been adjudicated. This argument misses the mark because none of the preceding orders in the litigation had ever adjudicated Ferm’s claims to the property. When the government moved to dismiss her claims on the ground of sovereign immunity, she had the first and only opportunity to have the district court look at the justiciability and the justice of her claims. Ferm’s principal claims, that FSLIC obtained funds that belonged to Ferm through conspiracy and abuse of process, are not patently without foundation. Since the court's order authorized FSLIC to take possession of funds belonging to Molinaro, not to Ferm, and since the court never expressly resolved the issue of Ferm’s interest in the $498,000.00 conveyed to FSLIC, Ferm could plausibly argue that the order did not give FSLIC the authority to take possession of that money. Since neither Ferm nor New Trend, the corporation from which the funds were paid out, received any consideration in return for the transfer, Ferm could argue that FSLIC’s receipt of that money constituted a fraudulent conveyance under California law. See Cal.Civ.Code § 3439.04(b) (transfer without consideration constitutes fraud upon creditors, irrespective of intent). Any agreement between FSLIC and New Trend in conjunction with this transfer would thus be a conspiracy to defraud Ferm. Similarly, it could constitute abuse of process for FSLIC to obtain a writ of execution to acquire property that it knew might belong to Ferm. See Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613, 625-26 (1957) (en banc). Ferm’s claims of conspiracy and abuse of process were not so groundless as to warrant the imposition of sanctions. The district court’s order imposing Rule 11 sanctions is REVERSED. . The order reads, in pertinent part: MOTION(S) PENDING: 1) Defendant Ferm’s Motion to Dismiss Plaintiff's First Amended Complaint as Supplemented for Failure to State a Claim 2) Plaintiffs Motion to Supplement the First Amended Complaint 3) Defendant Trapani’s Motion to Dismiss Count 35 of the First Amended Complaint 4) Plaintiff’s Motion for Summary Judgment against Defendant Trapani on Count 35 of the First Amended Complaint 5) Plaintiff’s Motion for Entry of Final Judgment against Defendant Trapani 6) Plaintiff’s Motion for a Charging Order 7) Plaintiff's Motion for an Order Directing Payment of Monies Held by Clerk to Plaintiff 8) Defendant Molinaro’s Motion for Leave to File a Third-Party Complaint 1. The Court denies Ferm’s motion to dismiss. Transfers of community property by way of a marriage settlement agreement are subject to the law of fraudulent conveyances. See Cal. Civ.Code § 5120.320; American Olean Tile Co. v. Schultze, 169 Cal.App.3d 359, 364, 215 Cal.Rptr. 184 (1985). Therefore, FLSIC has stated a valid claim for relief. The Court declines to treat defendant Ferm’s motion as one for summary judgment. ****** 7. The Court grants plaintiff's motion for an order directing that funds now deposited with the Clerk be paid to plaintiff. This Court has entered final judgments against Molinaro in the amount of $8.4 million plus interest. Without a supersedeas bond, Molinaro is not entitled to a stay of the judgments. Fed.R. Civ.P. 62(d); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir.1977). Molinaro's Sixth Amendment right to counsel of choice in his criminal action is a qualified right. Ability to pay is a valid qualification, and the possibility exists that a creditor may obtain a lien against a criminal defendant’s property, thus preventing him from hiring counsel of choice. In re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637 (4th Cir.1988) (en banc) (overruling United States v. Harvey, 814 F.2d 905 (4th Cir.1987)). FSLIC’s proposed order will be amended to provide for payment to plaintiff of the amount currently on deposit. . Although the court’s order was entered in the same form as the original tentative ruling and its first sentence states as one basis for dismissal of the counterclaims that they were procedurally defective, FSLIC agrees on appeal that the district court’s statements in the transcript as to the propriety of the time of the filing control, and there is no procedural impropriety supporting the sanction order.

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?

MARINE ONE, INC., Robert E. Schmidt, Plaintiffs-Appellants, Cross-Appellees, Marine Two, Inc., et al., Plaintiffs, v. MANATEE COUNTY, Manatee County Board of Commissioners, in their official capacity, Edward W. Chance, Vernon Vickers, Kent G. Chetlain, Westwood H. Fletcher, Jr., and Lloyd C. Hagaman, Defendants-Appellees, Cross-Appellants. No. 87-3656. United States Court of Appeals, Eleventh Circuit. July 19, 1989. David P. Ackerman, L. Louis Mrachek, and G. Joseph Curley, West Palm Beach, Fla., for plaintiffs-appellants cross-appel-lees. H. Hamilton Rice, County Atty., Bran-denton, Fla., Robert Pass, Tampa, Fla., for Manatee County, Manatee County Bd. of Com’rs, et al. Frances Makemie Toole and John R. Bush, Tampa, Fla., for Edward W. Chance, Vernon Vickers, et al. Before RONEY, Chief Judge, and HILL, Circuit Judge, and MARCUS , District Judge. Honorable Stanley Marcus, United States District Judge for the Southern District of Florida, sitting by designation. RONEY, Chief Judge: Plaintiffs Robert E. Schmidt and Marine One, Inc. brought an action against Manatee County, Florida and its board of commissioners, and the commissioners in their official capacities for damages under 42 U.S.C.A. § 1983, alleging that the County’s rescission of permits authorizing construction of a marina deprived plaintiffs of a property interest without compensation and violated plaintiffs’ substantive due process rights. The district court directed a verdict against Marine One, Inc. (Marine One) and entered a judgment for defendants notwithstanding a $1,010,000 compensatory and punitive damage jury verdict for Schmidt. Plaintiffs appeal. We affirm the district court’s holding that neither Schmidt nor Marine One had a protectable property interest in these permits. From 1982 until 1985, plaintiffs operated a marina known as “Marker 50” that was located in Manatee County from 1982 until 1985. Marine One was the “operating entity” which conducted the marina business. Marine Two leased equipment to Marine One. Schmidt was an investor in the operation and Edward Thornley and Richard Pearson ran the day-to-day operations. Marine One had to look for another site to run its operation because the owner of the current site was planning to convert it to condominiums. Plaintiffs planned to build a commercial marina in Cortez, a small village in Manatee County on an inlet from the Gulf of Mexico. Cortez relies on its commercial fish houses for its economic base. Manatee County ordinances required plaintiffs to obtain two permits. A special permit was required for all piers more than 80 feet in length. The planned marina would have three docks, the longest being 420 feet in length. No permit could be issued if a dock would come closer than 25 feet to the center line of any publicly used channel. A special use permit was required for any commercial development to ensure conformity with the County’s comprehensive land use plan. The plan prohibited docks that “hinder navigation” and that “interfere with the use of surrounding properties.” Based on representations by plaintiffs’ representatives that the docks would in no way impede the boat traffic into or out of the Cortez fishing area, the Manatee County Board of County Commissioners issued the permits authorizing the land to be developed for this marina and the construction of these particular docks. The permits were consolidated and are referred to collectively as “SP 84-17.” Plaintiffs obtained the other state and federal permits required, Schmidt took title to the property, and construction began on the marina in early March 1985. When construction began, the residents of Cortez complained that the pilings laid for placement of the docks crossed the channel used by fishing vessels to come and go from the Gulf of Mexico and the Cortez fish houses. In a public hearing on March 26, 1985, the Board issued a “Stop Work Order,” which halted construction of the docks and seawall. At the same time, the Board scheduled a meeting for April 12, 1985 to conduct a full public hearing to determine whether the permit should be rescinded. At the meeting, the Board heard arguments from both sides and voted unanimously to rescind the permit. Before that hearing was held, this action was filed, seeking, among other things, preliminary and permanent injunctive relief against enforcement of the Stop Work Order or other interference with the marina project. The district court scheduled a hearing on plaintiffs’ motion for a preliminary injunction for April 17, 1985, but plaintiffs cancelled on the day of the hearing. The motion was never renewed. Unable to find an alternative location for the marina, plaintiffs continued to operate Marine One at the Marker 50 location until approximately August 1985, when Marine One closed. At the three-week jury trial, the court directed a verdict against all plaintiffs but Schmidt. As to Schmidt, the court submitted special interrogatories to the jury, which required the jury to determine whether Schmidt had been denied all viable economic use of his “property.” When the jury inquired during the course of deliberations as to whether “property” meant Schmidt’s land or the permit, the court submitted a revised interrogatory form, over the County’s objection, that allowed the jury to find that Schmidt had been denied all viable economic use of either his land or his permit. The jury answered the special interrogatories by finding that Schmidt had been denied all viable economic use of his permit, but not his land, and that the County’s actions in rescinding the permit were arbitrary and capricious. The jury awarded Schmidt compensatory damages in the amount of $300,000 against the County and the individual commissioners, and awarded punitive damages against the individual commissioners. The district court then granted defendants’ motion for judgment notwithstanding the verdict. Edward Thornley, Richard Pearson and Marine Two, a separate corporation, were also plaintiffs in the original action, but only Schmidt and Marine One have appealed. To prevail under 42 U.S.C.A. § 1983, plaintiffs must show that the action by the governmental body or governmental representative constitutes a violation of a federally protected right. Schmidt and Marine One claim that the County’s action of revoking the building permit violated the Fifth Amendment prohibition against taking private property without just compensation and the Fourteenth Amendment requirement of substantive due process. The threshold determination, then, is whether plaintiffs have a property interest protected by the Constitution. State law creates and defines the parameters of a plaintiff’s property interest for section 1983 purposes. Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct. 1155-1164, 47 L.Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Whether state law has created a property interest is a legal question for the court to decide. Florida law is clear that there is no property right in possession of the permit. City of Hollywood v. Hollywood Beach Hotel Co., 283 So.2d 867 (Fla. 4th DCA 1973), aff'd in part, rev’d in part on other grounds, 329 So.2d 10 (Fla.1976); City of Boynton Beach v. Carroll, 272 So.2d 171 (Fla. 4th DCA), cert. denied, 279 So.2d 871 (Fla.1973). Schmidt argues here, as he did in district court, that since he has acted in reliance upon the permit, he has a vested property right because an equitable estop-pel action would lie against the revocation of the permit under Florida law. He relies on two Florida cases, Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15-16 (Fla.1976) and Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963), for the proposition that “a property owner obtains a vested property interest in the ability to develop his property in a manner previously allowed if the governmental entity is equitably estopped from changing that manner.” Contrary to Schmidt’s assertion, however, what state law provides is the right to pursue an action for injunctive relief, if the landowner has in good faith made some substantial change in position or has incurred extensive obligations in reliance on the permit so that it would be highly inequitable and unjust not to enforce the permit. Hollywood Beach Hotel Co., 329 So. 2d at 15-16 (Fla.1976) (citing Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963)). In Sakolsky, the holder of a permit authorizing construction of a 12-story apartment building brought an action against the City to enjoin rescission of his building permit, based upon the theory of equitable estoppel. The court determined that “the doctrine of equitable estoppel may prevent arbitrary rescission of a permit by a municipality,” Sakolsky, 151 So.2d at 435, and concluded that the plaintiff “should not be denied the benefit of the estoppel doctrine upon which his complaint is founded.” Id. at 436. In City of Boynton Beach, the court acknowledged that possession of a building permit does not create a vested right, and that “a permit may be revoked ... in the absence of circumstances which would give rise to equitable estoppel.” 272 So.2d at 173. The City appealed the grant of a peremptory writ of mandamus compelling the City to issue a building permit. The court held that “[N]o claim of equitable estoppel has been presented by the appel-lees. Therefore, no vested right was created by the appellees’ application for a building permit....” Id. The Fourth District Court of Appeal applied the same reasoning in a case dealing with rezoning as well as revocation of a building permit. In City of Hollywood, landowners were granted injunctive relief after the City rezoned property and revoked landowners’ building permit. The City appealed. The court made clear that possession of a building permit does not create a vested property right, but if circumstances exist to support an equitable estoppel action, the landowner has the right to that remedy. City of Hollywood, 283 So.2d at 869. These cases make clear that Florida law does not provide the ability to recover money damages for rescission of a permit. Cf. Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1517 (11th Cir.1987) (under Florida law, exclusive remedy available to property owner challenging zoning ordinance was suit to invalidate the zoning ordinance and enjoin its enforcement). The only right provided a permit holder under state law, then, is the right to retain the permit and invalidate any rescinding resolution once he has satisfied the requirements of equitable estoppel. Thus, the district court correctly stated that if Schmidt acquired any right at all as a result of his reliance, it was a right to pursue equitable estoppel under proper circumstances. Because Schmidt had this remedy available to him, if the facts would indeed support the claim, the State did not deprive him of any protectable property interest. Having failed to prove the existence of a cognizable property interest, the claims of both Schmidt and Marine One must fail as a matter of law. Because we affirm the district court’s decision, the issue raised in defendants’ cross-appeal — whether the district court erred in ruling that defendants’ motions for new trial would be denied if the JNOY were set aside — need not be reached. AFFIRMED.

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHAPIRO & WHITEHOUSE, INC., Respondent. No. 9906. United States Court of Appeals Fourth Circuit. Argued Oct. 4,1965. Decided Feb. 2, 1966. Nancy M. Sherman, Atty., N.L.R.B., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Wayne S. Bishop, Atty., N.L.R.B., on brief), for petitioner. Marvin C. Wahl, Baltimore, Md. (Blanche G. Wahl, and Wahl & Wahl, Baltimore, Md., on brief), for respondent. Before BOREMAN and BRYAN, Circuit Judges, and MARTIN, District Judge. ALBERT Y. BRYAN, Circuit Judge: Our first opinion in this case, NLRB v. Schapiro & Whitehouse, Inc., 353 F.2d 513 (4 Cir., 1965) related in detail the facts incident to the contest of the union’s election as the bargaining representative of Schapiro’s employees. Since our request the Board has opened the 3 sealed ballots and reports them as against the union. Thus the tally stands at 89 for and 88 against the union. In consequence we now decide Schapiro’s threefold attack upon the election. 1. The Finkelstein ballot, presumably still unopened and a “No” vote, was challenged by the union on the ground that he was a supervisor. The Regional Director deemed unnecessary a determination of whether Finkelstein was a supervisor, but recommended rejection of the ballot on the ground that “he did not have sufficient community of interest with the other employees to warrant his inclusion in the unit” previously designated for bargaining representation. The Board followed the Regional Director’s recommendation. It was a “consent election” upon a stipulation signed by the union and the employer, and approved by the Board’s agent and its Regional Director. “Eligible voters” and “The Appropriate Collective Bargaining Unit” were by agreement limited to: “All production and maintenance employees, including truckdrivers at the Employer’s Baltimore, Maryland, plant; but excluding office clerical employees, watchmen, guards and supervisors as defined in the Act.” Pursuant to the further provisions of the agreement “an accurate list of all the eligible voters, together with a list of the employees, if any, specifically excluded from eligibility” was furnished the Board by the parties. The list was approved by the union’s representative as evidenced by his signature thereon. ...Finkelstein was listed among the qualified voters. Aware before the election of his employment status, the union’s deliberate abstention from any question of his inclusion in the representation unit, we think, barred its challenge of him after the election. The point is trenchantly made by Judge Wisdom in Shoreline Enterprises of America, Inc. v. NLRB, 262 F.2d 933, 943 (5 Cir. 1959) in these words: “The basic policy — we endorse it— is that a company and a union must be held to their agreements, as any other party is held to an agreement. In cases involving a pre-election resolution of eligibility issues between a company and union it is especially important to hold the parties to their contract. To permit either to repudiate a pre-election agreement and redetermine the eligible members of a bargaining unit, after an election has been held, would enfeeble the consent election procedure.” Of course, the Board has the duty and power to supervise an election. The Board cannot delegate or abdicate this prerogative by or through an agreement between labor and management. Shoreline Enterprises of America, Inc. v. NLRB, supra, 262 F.2d 933, 943 (5 Cir. 1959). Nevertheless, this responsibility does not entitle the Board to abrogate an employer-union agreement unless, of course, the agreement impairs the opportunity of any eligible unit members to vote. In NLRB v. Joclin Manufacturing Company, 314 F.2d 627, 633 (2 Cir. 1963), the Regional Director allowed two employees to vote who were not within the bargaining unit as defined by an employer-union agreement. There was no specific list of eligibles. The stipulation was that “office, clerical and professional employees, guards and supervisors” should be disqualified to vote. Nevertheless the Regional Director permitted “plant clericals” to vote, on the basis that the agreement excluded only office cleri-cals. The Court overruled the Board in its approval of the Director’s ruling, and said: “There may, of course be situations where the agreement reached between company and union as to the appropriate bargaining unit should not be enforced by the Board because it improperly disenfranchises employees, see Shoreline Enterprises of America, Inc. v. N.L.R.B. supra, 262 F.2d at 944-946; but nothing would indicate this to be such a case, and in any event it is the agreement on which the Board is relying.” Our position finds reinforcement in NLRB v. J. J. Collins’ Sons, Inc., 332 F.2d 523, 525 (7 Cir. 1964), Judge Castle saying for the Court: “It is conceded that the Board’s exercise of ‘informed discretion’ in defining an appropriate bargaining unit is not to be upset unless the evidence compels a conclusion that it has acted arbitrarily, or from bias, or prejudice. But unlike in the cases cited, the bargaining unit here involved was defined and its limits circumscribed by stipulation of the company and the Union. And the Board’s exercise of discretion was restricted by the Board to its approval of the unit as submitted by the parties. The factor of ‘community of interest’ and other elements of To-porek’s duties might well have formed a rational basis for having included the job in the unit under some descriptive designation identifying it. But the Board did not do so. It did not so exercise the discretion it may have had in such connection. And, considerations applicable when the Board makes its own independent determination defining the appropriate bargaining unit do not control here where it is merely interpreting the language used by the parties to define and limit the unit in a stipulation for a consent election. The primary question here is what the parties intended. N.L.R.B. v. Joclin Manufacturing Company, 2 Cir., 314 F.2d 627, 633-634.” Not only was the disqualification of Finkelstein rested by the Board on a premise — lack of sufficient community of interest with the unit — -foreclosed by the agreement, but the union did not even challenge on that score. The idea was solely the Regional Director’s. The Board would dilute the stipulation with the argument that the “parties did not enter into a written and signed agreement which expressly provided that the resolution of eligibility issues therein should be final and binding”. The effort is futile. On a form prescribed by the Board, the stipulation didactically spells out who may vote, requires them to be named individually and exacts prior verification of the list by the opposing parties. A declaration of eligibility more conclusive is scarely conceivable. 2. The “erasure ballot” was rejected by the Board for ambiguity in its marking. We think it should have been polled as registering the balloter’s intention to say “No”. The pertinent part of the finding of the Examiner as to this ballot is as follows: “Examination of the original ballot reflects that the marking in the ‘no’ box is more distinct than the marking in the ‘yes’ box and there is an indication of a possible attempt at erasure of the marking in the ‘yes’ box. The Board Agent conducting the election first ruled this ballot ‘Void’, and after some discussion with the parties of the possible attempt at erasure, changed his rulings and declared it to be a ‘no’ vote. The Board Agent then challenged the ballot and recorded it as such in the Tally of Ballots. “The undersigned has carefully examined the ballot in question and, in his opinion, the intent of the voter is not clear; accordingly, it is recommended that the challenge to this ballot be sustained and that it be declared a ‘Void’ ballot.” (Accent added.) This description is helpfully amplified in the Board’s brief: “The voter did not place a mark in either the ‘yes’ or the ‘no’ square but rather, made his marks outside the squares of the two boxes. An ‘X’ was placed just outside the ‘yes’ square and a more distinct ‘X’ was placed outside the ‘no’ square.” We are as advantageously positioned as was the Board to read this ballot. 4 Davis, Administrative Law, at 241. It is not a question of the weight of evidence; the substantial-evidence rule of testing the acceptability of a Board finding does not prevail. We may and must without any such restriction construe the ballot. Celanese Corporation v. NLRB, 291 F.2d 224, 226 (7 Cir. 1961), cert. den. 368 U.S. 925, 82 S.Ct. 360, 7 L.Ed.2d 189. A strikingly similar situation in NLRB v. Whitinsville Spinning Ring Co., 199 F.2d 585, 589 (1 Cir. 1952) illustrates the courts’ untrammeled discretion in construing such a ballot. The erasure ballot has since been so covered with a strip of scotch tape as to obscure the markings. Specifically, the adhesive runs across the “No” and over the erasure of “Yes”, including any tell-tale traces of erasure. Removal of the tape would probably further efface these clues. Whether the tape was applied before or after the Board’s examination of the ballot is not clear. Thus we can never know its minute but significant features, so vital to its validity and to the election. This diminution in the record is enough to set aside the Board’s decision of the outcome at the polls. S. D. Warren Co. v. NLRB, 342 F.2d 814, 816 (1 Cir. 1965). With Finkelstein’s ballot unopened, the count is now tied, 89 to 89, which, as we noted in the first opinion, would mean that the union had lost for want of a majority. The count, however, cannot be final until Finkelstein’s ballot is opened. Should Finkelstein’s preference be anti-union, as is reasonably suspected, the defeat would be more pronounced, 90 to 89. If he voted pro, the union would win the count. However, rather than delay further final determination by awaiting the casting of Finkelstein’s ballot, we pass to the propriety of the pre-election literature. 3. Campaign literature distributed by the union on two occasions shortly before the election was so irrelevant and so highly inflammatory, employer Schapiro asserts, as to invalidate the election. We agree. The union’s appeal to the voters urged the employees to consider and act upon race as a factor in the election. In its brief the Board fairly and completely describes each incident and its background. Thus: “On August 2,1963, about 4 weeks before the election, the Union circulated a leaflet among the Company’s employees, practically all of whom are Negroes (J.A. 57). The leaflet, entitled ‘THEY CAN’T FIRE EVERYBODY’, listed the names of several employees who had recently been discharged (J.A. 57, 62). It stated: ‘IF YOU ARE GOING TO LET THIS SCARE YOU INTO GIVING UP, THEN YOU’VE LOST AND THE COMPANY HAS WON. REMEMBER THIS, THE PEOPLE AT CAMBRIDGE DIDN’T GET SCARED NOR DID THEY GIVE UP BECAUSE THEIR FRIENDS WERE ARRESTED. INSTEAD, THE DEMONSTRATIONS GREW BIGGER. THIS IS THE POSITION THAT YOU MUST TAKE. SHOW THIS COMPANY THAT YOU’RE NOT GOING TO BACKUP. OVER THE YEARS, YOU HAVE BEEN HELD DOWN. — LET US HELP YOU TO GET UP. NOTE: WE HAVE FILED AN UNFAIR LABOR PRACTICE AGAINST THE COMPANY FOR EACH AND EVERY PERSON THAT HAS BEEN DISCHARGED. STICK WITH THESE PEOPLE, - THEY - ARE - DEPENDING ON YOU.’ (Emphasis in original.) “On August 23, a week before the election, the Union circulated another leaflet. This leaflet reproduced a newspaper article, under the headline ‘Young Gives Top Priority to Negroes’ Job Security,’ which stated that Ernest D. Young, a Negro member of the Maryland House of Delegates, had criticized Negro leaders for demonstration for ‘social’ rights they wanted and overlooking ‘the real Negro problem of unfair employment practices’ (J.A. 57, 63). The leaflet contained the the following message: READ THIS! And thank God that we have such a man in office. Delegate Ernest D. Young knows the importance of jobs. Right now we are trying to help you on your job. You can help by voting, —‘YES’ on Aug. 30.” The second leaflet was headed with a picture of the Negro Delegate mentioned in the circular. Advertence to “Cambridge” was an allusion to recent racial strife there. This type of propaganda is deplorable. It cannot be ignored on the assumption that it had no effect upon the voters, most of whom are Negroes. Not long ago we set aside an election because of misrepresentations in campaign dodgers. NLRB v. Bonnie Enterprises, Inc., 341 F.2d 712 (4 Cir. 1965). Although quite different in nature, the instant throwaways equally offend the electoral process and likewise vitiate the result. As the Board itself noted in Sewell Manufacturing Co., 138 NLRB 66, 71: “What we have said indicates our belief that appeals to racial prejudice on matters unrelated to the election issues or to the union’s activities are not mere ‘prattle’ or puffing. They have no place in Board electoral campaigns. They inject an element which is destructive of the very purpose of an election. They create conditions which make impossible a sober, informed exercise of the franchise. The Board does not intend to tolerate as ‘electoral propaganda’ appeals or arguments which can have no purpose except to inflame the racial feelings of voters in the election.” (Accent added.) We approve these standards. Equality of race in privilege or economic opportunity was not presently an issue. That a majority of the employees were Negroes did not make it so. For the union to call upon racial pride or prejudice in the contest could “have no purpose except to inflame the racial feelings of voters in the election”. Besides their utter irrelevance, the leaflets appear to this court as highly inflammatory, especially the reference to the “Cambridge” incidents. The reliance upon race inhibited a “sober, informed exercise of the franchise” and was altogether out of place. As our canvass of the Finkelstein and erasure ballots apparently leads to a majority against unionization, the designation of the union as the representative of Schapiro’s employees cannot stand. The same result follows from our ruling on the campaign literature. Consequently, the employer was warranted in refusing to bargain with the union and the contrary finding and order of the National Labor Relations Board is without support. Enforcement of order denied.

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?