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Thomas M. RETTIG, et al., Plaintiffs-Appellants, Cross-Appellees, v. KENT CITY SCHOOL DISTRICT, Defendant-Appellee, Cross-Appellant, and Kenneth Cardinal, et al., Defendants-Appellees. Nos. 81-3586, 81-3595. United States Court of Appeals, Sixth Circuit. Argued June 30, 1983. Decided Nov. 8, 1983. Rehearing Denied Jan. 3, 1984. Edward G. Kramer, Floyd J. Miller, Cleveland, Ohio, for plaintiffs-appellants, cross-appellees. Eva Rettig, pro se. Dennis M. Whalen (argued), G. Frederick Compton, Jr., Dennis M. Whalen Co., L.P.A., Cuyahoga Falls, Ohio, Gary E. Brown (argued), Asst. Atty. Gen., Columbus, Ohio, for defendant-appellee, cross-appellant. Edward G. Kramer, Floyd J. Miller, Kramer and Associates Co., L.P.A., Cleveland, Ohio, amicus curiae on behalf of appellants. Before LIVELY, Chief Judge, KRUPANSKY, Circuit Judge, and FEIKENS, District Judge . The Hon. John Feikens, United States District Judge for the Eastern District of Michigan, sitting by designation. KRUPANSKY, Circuit Judge. This is an appeal and cross-appeal from the final order of the District Court for the Northern District of Ohio in this action involving the education of a handicapped child. The district court entered extensive findings of fact below and reference is made to that opinion for a full exposition of the background of this controversy. See, Ret-tig v. Kent City School District, 539 F.Supp. 768 (N.D.Ohio 1981). It is sufficient to restate here that Thomas M. Rettig (Thomas) is a severely handicapped teen-age child. Thomas displays symptoms of autism and is also believed to be mentally retarded. In February of 1978 Thomas’ parents requested a due process hearing pursuant to the Education for All Handicapped Children Act of 1975 (EHCA or Act) 20 U.S.C. § 1401 et seq., questioning the quality of the education their son was receiving. A hearing was conducted before a Hearing Officer in accordance with § 1415(b)(2) of the Act. The Hearing Officer decided in favor of the Kent City School District and issued a comprehensive opinion on April 30, 1979. It was affirmed by the State Board of Education. The initial complaint in this matter was filed in the District Court for the Northern District of Ohio on November 30, 1979. The complaint joined Thomas and his mother as parties plaintiff and named the Kent City School District as defendant. Plaintiffs, in the initial complaint, essentially petitioned for review of the state decision pursuant to 20 U.S.C. § 1415(e)(2), and also asserted violations of the Rehabilitation Act of 1973,29 U.S.C. § 794. An amended complaint incorporated additional allegations of constitutional infringements under 42 U.S.C. § 1983 and joined, as defendants, the superintendent of the Kent City School District, the director of special education for the district, the State Board of Education of Ohio ánd the state superintendent of education. The lower court, subsequent to duly conducted hearings in August of 1980, denied plaintiffs’ request for a preliminary injunction. The trial court issued its final order in May of 1981, subsequent to a trial of the case on its merits. The trial court upheld the administrative Hearing Officer’s decision, concluding that: (a) the defendants had provided adequate inservice training for faculty and staff; (b) the defendants had devised and implemented a reasonable educational program for Thomas which would not be modified; (c) a twelve month educational program for Thomas was not required under the Act; and (d) continuous occupational therapy for Thomas was not a requirement of the Act. The lower court did, however, direct the Kent City School District to provide Thomas with one hour of extracurricular activities each week and further decreed that the State Board of Education amend its rules to conform with federal regulations. The lower court concluded, as a matter of fact, that plaintiffs had failed to prove their constitutional infringements. It also characterized the plaintiffs’ claims arising under the Rehabilitation Act as merely restatements of EHCA charges and disposed of those charges by incorporating them into its resolution of the latter. Finally, the lower court declined to award attorney fees. The plaintiffs appealed the trial court’s decision insisting that Thomas was being denied a free appropriate education. The Kent City School District cross-appealed from the lower court’s order mandating the district to provide Thomas with one hour of extracurricular activities each week. The State revised its regulations in accordance with the lower court’s order and did not appeal. See O.A.C. § 3301-51-02(6)(12)(f). Initially, we conclude that the lower court’s findings with respect to the constitutional claims are not clearly erroneous and we affirm the court’s ruling as to those claims. This Court also agrees that, in this case, the plaintiffs’ complaints purportedly arising under the Rehabilitation Act, with one exception, are resolved by the disposition of the EHCA claims. See 34 C.F.R. §§ 104.33, 104.36 (1982). Accordingly, this Court is confronted with only those issues joined under the EHCA. In considering the asserted violations of the EHCA the Court is directed to the Supreme Court’s recent explication of the Act. In Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court reviewed the policies, procedures and objectives of the Act. It also specifically identified and delimited a court’s obligation in actions instituted pursuant to § 1415(e)(2). The Court stated: [A] court’s inquiry in suits brought under § 1415(e)(2) is two-fold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. Id. at 206, 102 S.Ct. at 3051 (footnotes omitted). Plaintiffs urge that both inquiries should be answered in the negative. In addressing the procedural requirements of the Act the plaintiffs assert that the State failed to develop adequate programs for inservice training of teachers and support personnel as directed by the EHCA. The EHCA specifically requires a State participating under the Act to submit a plan incorporating, inter alia: a description of programs and procedures for (A) the development and implementation of a comprehensive system of personnel development which shall include the inservice training of general and special educational instructional and support personnel, -. .. The district court found that the defendants had developed and implemented a wide range of inservice training programs which satisfied the requirements of the EHCA. That conclusion is supported by the record. Plaintiffs have argued, however, that parents should be included within the meaning of “support personnel”. and therefore the Kent City School District was obliged to provide inservice training to the parents of Thomas. The legislative history, however, discloses that Congress intended the term “support personnel” to denote professional staff employed by the school system. The Senate Report, in discussing the Act’s provision regarding inservice training, stated, in pertinent part: High quality educational services for all handicapped children will require a greater number of support personnel, as well as teachers. The supportive services should be provided by trained occupational therapists, speech therapists, psychologists, social workers and other appropriately trained personnel. S.Rep. No. 94-168, 94th Cong., 1st Sess. 34, reprinted in [1975] U.S.Code Cong. & Ad. News, 1425, 1457. Accordingly, plaintiffs’ contention that “support personnel” should include parents is unfounded and this Court concludes that defendants provided adequate inservice training under the terms of the EHCA. The plaintiffs have challenged the quality of the educational program developed for Thomas in several respects. In sum, however, the plaintiffs’ arguments merely reflect a difference of opinion as to the most effective teaching methods available to advance Thomas’ education. Various experts testified as to an appropriate educational program for Thomas. The courts, however, are not free to choose between competing educational theories and impose that selection upon the school system. As the Supreme Court admonished in Rowley, supra at 207, 102 S.Ct. at 3051-52: In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.. The Act expressly charges States with the responsibility of “acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials.” § 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State’s choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2). We previously have cautioned that courts lack the “specialized knowledge and experience” necessary to resolve “persistent and difficult questions of educational policy.” San Antonio School District v. Rodriguez, 411 U.S. 1, 42 [93 S.Ct. 1278, 1301, 36 L.Ed.2d 16] (1973). We think that Congress shared that view when it passed the Act. As already demonstrated, Congress’ intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of method-olog are for resolution by the States, (footnotes omitted). This Court is of the opinion, therefore, that the lower court was correct in refusing to interfere with the State’s implementation of its educational program as it related to Thomas. To the extent the plaintiffs’ requested the trial court to order the school district to include specific programs within Thomas’ curriculum — for example, summer classes and continuous occupational therapy — this Court affirms the district court’s denial of such relief inasmuch as the programs were not necessary to permit Thomas to benefit from his instruction. The trial court ruled in favor of the plaintiffs in addressing the issue of Thomas’ extracurricular activities. In granting this relief, the trial court relied on the following administrative regulation promulgated under the Act: § 300.306 Non-academic services. (a) Each public agency shall take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped children an equal opportunity for participation in those services and activities. 34 C.F.R. § 300.306 (1982). The regulation apparently adopts a standard designed to ensure that handicapped children are exposed to extracurricular activities on an equal basis with non-handicapped children. In Rowley, however, the Supreme Court specifically rejected a construction of the EHCA which required “that States maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’ ” Rowley, supra at 189, 102 S.Ct. at 3042, quoting, 483 F.Supp. 528 at 534. The regulation and the lower court’s opinion antedated the Supreme Court’s opinion in Rowley. This Court therefore deems it appropriate to remand this issue to the district court for further consideration in light of the pronouncements in Rowley. In accordance with this opinion, the judgment below is AFFIRMED in all respects except that portion requiring the school district to provide extracurricular activities to Thomas which is VACATED and REMANDED for further consideration. Each party shall pay its own costs. . 20 U.S.C. § 1415(e)(2) provides that any party aggrieved by the resolution of an administrative hearing under the Act: shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. . Federal regulations mandate a final disposition of all appeals from decisions of Hearing Officers within 30 days of issuance thereof. 34 C.F.R. § 300.512 (1982). The State rules permitted a 60-day interval. . The lower court also ordered the School District to conduct a multi-factored evaluation of Thomas. The School District, in fact, had attempted to perform such an evaluation but his parents objected, charging that the basis of norm-referenced or standardized testing was inappropriate for autistic children. The evidence disclosed however that such testing was an. important component of an overall evaluation. It was, therefore, reasonable to require the parents of Thomas, as a condition to receiving benefits under the Act, to permit the school district to perform an evaluation of Thomas. See, Vander Malle v. Ambach, 673 F.2d 49 (2nd Cir.1982). . The regulation was initially promulgated by the Secretary of Health, Education and Welfare and appeared at 45 C.F.R. § 1210.306. However, the functions of the Secretary of Health, Education and Welfare with respect to the Act were transferred to the Secretary of Education. Pub.L. No. 96-88 § 601, 93 Stat. 696. The regulation in issue, along with scores of others, was thereafter transferred to Title 34 and re-designated. 45 Fed.Reg. 77368 (1980). . This last issue is the exception previously alluded to wherein application of the Rehabilitation Act could provide a resolution different from that achieved by application of the EHCA. See 34 C.F.R. § 104.37 (1982). The lower court is free to address this issue on remand. . Amicus curiae has briefed the issue of attorney fees. In light of the remand, the attorney fee issue is not ripe for final resolution.

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

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

UNITED STATES of America v. Adrian V. PRICE, Appellant. No. 91-3335. United States Court of Appeals, District of Columbia Circuit. Argued March 8, 1993. Decided April 23, 1993. Beth S. Brinkmann, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, and Penny Marshall, Asst. Federal Public Defender, were on the brief, for appellant. Barbara A. Grewe, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher, Elizabeth Trosman, George J. Lane, and Mary-Patrice Brown, Asst. U.S. Attys., were on the brief, for appellee. Before: SILBERMAN, WILLIAMS and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS. STEPHEN F. WILLIAMS, Circuit Judge: Appellant Adrian Price pleaded guilty to conspiring to commit an offense against the United States in violation of 18 U.S.C. § 371. Both the object of the conspiracy and the overt act consisted of possession with intent to distribute phencyclidine— PCP — in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The district court sentenced Price, as a career offender under § 4B1.1 of the U.S. Sentencing Guidelines. Price clearly qualified as such under the definitions supplied by § 4BL2 of the Guidelines and its Application Notes. However, because the Sentencing Commission adopted §§ 4B1.1 & 4B1.2 solely in an effort to fulfill the mandate of 28 U.S.C. § 994(h), and § 994(h) plainly fails to reach conspiracies to commit controlled substance crimes, we vacate the sentence and remand the case to the district court for resentencing. Section 4B1.1 provides that a defendant is a career offender if he is over eighteen and “[1] the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and ... [2] the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Section 4B1.2(2) defines “controlled substance offense” to include offenses under “federal or state law[s] prohibiting the manufacture, import, export, distribution, or. dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.” Application Note 1 to § 4B1.2 further provides that controlled substance offenses include “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” There is no dispute that Price had previously been convicted of two qualifying felonies. Following the directive of Application Note 1, the district court treated Price’s conspiracy conviction as a controlled substance conviction. This made Price a “career offender” under § 4B1.1, so that his criminal history category was automatically VI. The court sentenced him to 57 months, the low end of the resulting applicable Guideline range of 57 to 71 months. Price argues that in defining controlled substance offenses to include conspiracies to commit such offenses, the Sentencing Commission exceeded its mandate under 28 U.S.C. § 994(h). So far as we can tell, no other court has addressed this issue, though some have accepted without comment the Guidelines’ inclusion of conspiracy as a controlled substance offense. See, e.g., United States v. Whitaker, 938 F.2d 1551 (2d Cir.1991) (conviction for conspiracy to distribute and import cocaine in violation of 21 U.S.C. § 846 held to be a controlled substance offense); United States v. Jones, 898 F.2d 1461 (10th Cir.1990) (same). Section 994(h) provides that the Commission “shall assure” that the Guidelines specify a sentence “at or near the maximum term authorized” for a defendant who is at least 18 years old and (1) has been convicted of a felony that is (A) a crime of violence; or (B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15,1980 (21 U.S.C. 955a); and (2) has previously been convicted of two or more prior felonies, each of which is— (A) a crime of violence; or (B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15,1980 (21 U.S.C. 955a). 28 U.S.C. § 994(h). Our concern here is only with § 994(h)(1)(B), although § 994(h)(2)(B) poses the same problem. While we owe the Commission deference in the “discharge of its delegated authority”, United States v. Doe, 934 F.2d 353, 359 (D.C.Cir.1991), that deference does not extend to interpretations in conflict with a clear determination of Congress. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). The government argues that because subsection (1)(B) embraces offenses “described in” the specified statutes, it reaches any offense (say, under state law) involving the same elements as those offenses. Thus, in its view, the phrase “described in” is not synonymous with “under”. We need not pass on that theory. A conspiracy to commit a crime involves quite different elements from whatever substantive crime the defendants conspire to commit; it requires only the meeting of the conspirators’ minds, plus an overt act that need not itself be in any way criminal. See Charles E. Torcia, 4 Wharton’s Criminal Law §§ 726-28 (14th Ed.1981). Thus, conspiracy to violate the sections specified in § 994(h) cannot be said to be one of the offenses “described in” those sections. Application Note 1 is beyond the Commission’s authority under § 994(h). The Commission’s enabling legislation grants it a broad mandate to promulgate guidelines for the determination of sentences. See generally 28 U.S.C. § 994(a). See also Mistretta v. United States, 488 U.S. 361, 377, 109 S.Ct. 647, 657, 102 L.Ed.2d 714 (1989) (“the Commission enjoys significant discretion in formulating guidelines”). Because § 994(h) is framed in terms of setting a floor under sentences— where its criteria are met the Commission is to “assure that the guidelines specify a sentence to a term ... at or near the maximum” for the offense charged — the Commission may well be free under § 994(a) to specify equally long terms for defendants not covered by § 994(h). It is clear, however, that in enacting Ch. 4, part B the Commission did not purport to rely on § 994(a). Instead, the Commission explained that “§ 994(h) mandates that the Commission assure that certain ‘career’ offenders, as defined in the statute, receive a sentence of imprisonment ‘at or near the maximum term authorized’ ”, and stated that § 4B1.1 “implements this mandate.” “Background” to Ch. 4, part B (emphasis added). Moreover, elsewhere in the Guidelines the Commission dealt in depth with the issue of criminal history, explicitly invoking the general purposes of sentencing set forth by Congress in 18 U.S.C. § 3553(a)(2) and applicable by the Commission under § 994(a). See U.S.S.G. Ch. 4, part A and Introductory Commentary thereto; see also Mistretta, 488 U.S. at 374, 109 S.Ct. at 655 (noting guiding effect of purposes stated in § 3553(a)(2)). If the Commission intended Ch. 4, part B to rest as well on its discretionary authority under § 994(a), it certainly did not say so. We must conclude that the Commission fashioned Ch. 4, part B solely as an implementation of § 994(h). If the Commission were before us, as in the normal agency review case, we might find the possibility that it rested Ch. 4, part B on its general authority plausible enough to warrant a remand to the Commission for it to explain its reasoning. Cf. SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943). But the Commission is absent from these proceedings, affecting them only through the Guidelines that it has prepared to govern the sentencing decisions of federal judges. Thus we are faced with a criminal defendant asserting that he has been sentenced illegally; on the record before us, we cannot disagree. The government calls our attention to United States v. Lopez, 938 F.2d 1293 (D.C.Cir.1991), but we do not read that decision to justify our affirming a sentence based on legal error. There we held that we did not have authority to review Commission decisions for failure to supply reasons. Id. at 1296-97. The mere fact that the Commission need not provide any reason for its actions, however, does not mean it is free to act for legally invalid reasons. As in other contexts, a broad power does not necessarily imply every theoretically lesser power. The National Labor Relations Act leaves an employer free to fire an employee for no reason or for an absurd reason, but that discretion does not comprise the freedom to dismiss for a forbidden reason such as anti-union bias. See, e.g., MECO Corp. v. NLRB, 986 F.2d 1434, 1437-38 (D.C.Cir.1993). So here, the Commission’s entitlement to be silent by virtue of Lopez does not validate a sentence based on its affirmative invocation of an erroneous statutory ground. It is true that courts will normally sustain an act of Congress so long as it is within the bounds of congressional authority, even though Congress may not have even hinted at the supporting rationale, see, e.g., Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960), and perhaps will do so even if Congress has invoked an improper one. But whatever the exact deference owed Congress on constitutional matters, the Sentencing Commission cannot be said to occupy a parallel position vis-a-vis its legislative mandate. It is simply an independent agency. See Mistretta, 488 U.S. at 374, 393, 109 S.Ct. at 665. Like other independent agencies, it exercises a much narrower delegation of power than Congress’s under the Constitution, see McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 4 L.Ed. 579 (1819), and its agenda is far less crowded than Congress’s. There seems no reason to except it from Chenery’s principle that “if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law.” 318 U.S. at 94, 63 S.Ct. at 462. Here, the Commission has acted explicitly upon grounds that do not sustain its action. Because we find its stated basis— § 994(h)—inadequate for Application Note l’s inclusion of conspiracies, Note 1 cannot support Price’s sentence as a career offender. Thus, without passing on the Commission’s authority to re-adopt Application Note 1 to § 4B1.2 (or some variation of Note 1) on alternative grounds, we vacate the sentence and remand the case to the district court for resentencing. So ordered.

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

Guyton L. GRAHAM, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee. No. 85-8200. United States Court of Appeals, Eleventh Circuit. June 11, 1986. Bruce Billman, Macon, Ga., for plaintiff-appellant. Henry L. Whisenhunt, Jr., Asst. U.S. Atty., Augusta, Ga., Marie T. Ransley, Dept, of Health & Human Services, Office of Gen. Counsel, Atlanta, Ga., for defendant-appellee. Before HILL and FAY, Circuit Judges, and TUTTLE, Senior Circuit Judge. TUTTLE, Senior Circuit Judge: I. BACKGROUND Appellant was born on January 19, 1922. He testified that he completed the sixth grade in school and studied seventh and eighth grade course materials at home. The Appeals Council determined that appellant had an eighth grade education. From 1963 to 1979, appellant worked at Reeves Brothers Textile Mill in Eastman, Georgia as a machinist in plant maintenance. Appellant stated in a vocational report that he used machines and tools such as lathes, gear hogs, milling machines, key-way machines, and hydraulic presses to perform such general maintenance tasks as plumbing, electrical work, welding, gear-making, parts repair, rewiring, changing and repairing electrical motors and all kinds of engines. According to vocational expert Dr. Murdock, appellant’s occupation allowed him to acquire knowledge of a mechanical nature which would include shop mathematics and properties of metal. On September 14, 1979, appellant was placed on leave of absence from his job due to complaints of chronic breathing problems and lower back pains. One year later, September 14, 1980, appellant was released from his employment, ostensibly because the company’s policy stated that the maximum time one could be on medical leave status was one year. Appellant filed the claim now at issue on August 28, 1981. The claim was initially denied by Administrative Law Judge Robert L. Smith on December 28, 1982. Judge Smith held that res judicata barred reevaluation of appellant’s disability through May 18, 1981 because of denial of an earlier claim. Further, the judge held that appellant had not become disabled since May 18, 1981. After the Appeals Council denied review, appellant filed suit in federal court. In connection with appellant’s suit in federal court, the Secretary filed a series of motions for extension of time. On January 30, 1984, the Secretary notified the court that the tape of the administrative hearing had been lost. At this point, the Secretary requested that the case be remanded for de novo proceedings. The district court granted the motion. On April 11,1984, an Administrative Law Judge conducted a de novo hearing. On May 31, 1984, the judge recommended that appellant’s claim be denied on the grounds that his impairments were not severe. The Appeals Council, however, modified the administrative law judge’s decision, concluding that appellant was limited to light work, but was not under a disability, and thus was not entitled to disability benefits pursuant to Rule 202.03 of the Medical-Vocational Guidelines (Grids). In August of 1984, the case was reopened on the district court docket. The magistrate’s report concluded that substantial evidence did not support the Secretary’s determination that appellant could perform light work. The magistrate concluded that appellant could perform only sedentary work. In making this determination, the magistrate gave “great weight” to the opinion of Dr. Conner, appellant’s treating physician since 1980. Dr. Conner stated in his deposition that appellant was unable to stand or walk for six out of eight hours a day, occasionally lift 20 pounds, or continuously push or pull arm and leg controls due to his back and shortness of breath. The magistrate also relied on a letter from Dr. Conner dated February 15, 1983, in which Dr. Conner stated that X-rays of appellant’s lumbosacral spine revealed degenerative arthritis and that the GI series revealed a hiatal hernia. The magistrate similarly gave great weight to the diagnosis of appellant’s treating physicians, Dr. Sayeed and Dr. Conner, in concluding that appellant’s “breathing difficulty is a severe impairment that significantly limits basic work activities and thus the grids are inapplicable.” The magistrate credited these doctors’ opinions over that of Dr. Patel, who examined appellant for medical evaluation on January 3, 1984. According to Dr. Patel, his examination revealed chronic bronchitis, but the examination, the spirometry, and chest X-ray revealed no evidence of respiratory insufficiency, emphysema, or chronic sequelae. Dr. Conner, on the other hand, stated that appellant’s chest X-rays revealed chronic obstruction pulmonary disease and stated that appellant had dyspnea with short walks and mild exertion and asthma. Dr. Conner further stated in a deposition on March 21, 1984, that appellant had chronic emphysema and asthma. Dr. Sayeed who has been treating appellant since 1979 diagnosed him as having emphysema with chronic obstructive disease. The magistrate relied on the testimony of Dr. Murdock, a psychologist and vocational expert, in finding that there was sedentary work in sufficient numbers in the national economy which the appellant could perform, and thus denied appellant’s claim. The district court adopted the Magistrate’s Report and Recommendation as the opinion of the court. From this adverse determination, appellant filed a timely notice of appeal. II. ISSUES The proper formulation of the issue before this Court is a serious bone of contention between the parties. Appellant states the issue as, “Whether substantial evidence supports a finding that Mr. Graham has transferable skills which would allow the Secretary to apply Rule 202.03 of the Medical-Vocational Guidelines.” Appellee, however, states the issue as, “Whether substantial evidence supports the Secretary’s finding that claimant can perform light jobs and therefore is not disabled.” However the question is posed it is clear that this Court must determine whether substantial evidence supports the Secretary’s conclusion that appellant has transferable skills at the light exertional level. III. STANDARD OF REVIEW The findings of the Secretary, acting through the Appeals Council must be affirmed if supported by substantial evidence. IV. DISCUSSION In this three-tier approach to determining Graham’s disability vel non we have findings by the Administrative Law Judge (AU), which were upset or overruled by the Appeals Council (AC), which in turn were rejected by the district court judge through the magistrate’s findings and conclusions. We must, therefore, make plain which factfinder is entitled to the statutorily mandated deference owed by this Court. The procedure for the Health and Human Resources Department of Services’ determination of disability is set out in 42 U.S.C. § 405(b) and the applicable regulations issued thereunder. It provides a hearing before an AU, a review by the AC, followed by a right of “review” in the United States district court. Review by the AC is de novo. That before the district court is not. This of itself, would seem to require us to conclude that the AC becomes the factfinder for the Secretary. The statute provides: “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. 405(b). This Court has stated it this way: The findings of fact and decision of the Secretary are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). The reviewing court thus has a very limited role, and may not decide the facts anew or substitute its judgment for that of the Secretary. Allen v. Schweiker, 642 F.2d 799, 800 (5th Cir.1981). Arnold v. Heckler, 732 F.2d 881, 883. Our function is the same as that of the district court. We examine the record to determine whether the AC made any legally erroneous determination and whether there was a want of substantial evidence. Boyd v. Heckler, 704 F.2d 1207 (11th Cir.1983). In Boyd we said: Our review of the factual findings in disability cases is quite limited. If there is substantial evidence in the record to support the Secretary’s findings, they must be upheld. 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835 (11th Cir.1982). The “substantial evidence” test is met if a reasonable person would accept the evidence in the record as adequate to support the challenged conclusion. Nevertheless, this “does not relieve the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding.” Walden, 672 F.2d at 838. A determination that is supported by substantial evidence may be meaningless, however, if it is coupled with or derived from faulty legal principles. Hence, we must also examine the legal premises upon which the Secretary’s decision is based. See Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.1982). 704 F.2d at 1207 (footnotes omitted). In this case, the ALJ found that there was no severe impairment to the claimant and thus denied the claim. The AC then found as follows: “The AC does not agree with the AU’s finding that the claimant has no severe impairment.” The AC went further then and stated: “That the claimant’s impairments restrict his ability to perform work-related functions that he could perform no more than light work activity.” The following two findings are of particular significance here: 6. Considering the claimant’s exertional limitations only, the claimant has the residual functional capacity for light work. 7. The level of work the claimant can do is not significantly affected by his nonexertional limitations. The AC found that Graham was “in the category of a person of advanced age” and was a person of “limited education.” It also found that the claimant “has acquired work skills as demonstrated in past work which are transferable to other work (Section 404.1568 of the Regulations). Finally, the AC determined: Considering both the exertional and non-exertional limitations, Regulations 404.1520(f) and the framework of Rule 202.03, Table No. 2 of Appendix 2, sub-part (p) of Regulations No. 4 would lead to a conclusion that claimant is “not disabled.” Thus, the final finding of the AC was to the effect that, considering exertional and non-exertional limitations together, the claimant was fit for light work and that he had transferable skills in that category. In the district court “review” of the Secretary’s decision the magistrate stated that the AC should not have used the Grid 202.-03 because “the Grids may not be relied on where the claimant has a severe non-exertional impairment which significantly limits basic work activities or where the claimant cannot perform a full range of work at a given residual functional level,” citing Francis v. Heckler, 749 F.2d 1562 (11th Cir.1985); Murray v. Heckler, 737 F.2d 934 (11th Cir.1984); Rambo v. Heckler, 728 F.2d 1583 (11th Cir.1984). The magistrate then proceeded to weigh the evidence given by Drs. Conner and Sayeed as against that given by Dr. Patel. The magistrate then stated: The opinions of Dr. Conner and Dr. Sayeed, his treating physicians, are to be given greater weight than the opinion of Dr. Patel____ Thus substantial evidence supports a finding that the claimant’s breathing difficulty is a severe impairment that significantly limits basic work activities and thus the Grids are inapplicable. The weighing of evidence is a function of the factfinder, not of the district court. The question is not whether substantial evidence supports a finding made by the district court but whether substantial evidence supports a finding made by the Secretary. Here, it is clear that there was substantial evidence to support the finding by the AC that considering the combination of the exertional and non-exertional impairments, Graham still had the capacity to perform light work. This finding must, therefore, be accepted on this appeal. Appellant contends principally that the Secretary should have applied Grid Rule 202.02 which directs a finding of disability rather than Grid Rule 202.03 which directs a finding of nondisability. According to appellant, the principal difference between the two rules is that Rule 202.03 assumes that the claimant’s work skills at the light exertional level are transferable, whereas Rule 202.02 assumes that the skills are nontransferable. The vocational expert testified that skilled jobs existed at the light and sedentary exertional levels and that Graham’s skills were transferable. Appellant argues, however, that the vocational expert’s testimony was given without reference to appellant’s advanced age and limited education. This is incorrect, because Rule 202.03 contemplates a worker of “advanced age” and “limited or less” education. Appellant also argues that the hypothetical question posed by the administrative law judge which led the vocational expert to testify that appellant’s past work as a machinist would yield skills transferable to jobs such as supervisor of machine shop or tool and die company, inspector in such shops, a tool grinder and a hand tool lapper, was insufficient in that it did not give account to appellant's chronic emphysema or lung disease. It is true that when the expert was asked to consider this factor, he concluded that if this condition was present, there would be no jobs at the light level to which appellant could transfer his skills. The difficulty with this argüment, however, is that the AC found that: “The level of work the claimant can do is not significantly affected by his non-exertional limitations.” Thus, there was a failure of proof by the claimant of this element of the hypothetical question. Thus, this answer as to the nonavailability of jobs became irrelevant. Since, as we have noted above, the AC was the factfinder for the Secretary and since there was disputed evidence which the district court improperly undertook to weigh, we consider it unnecessary to pass on the court’s basis for denying claimant a disability finding, since we conclude that the court was bound by the AC’s finding with respect to this matter. Being constrained as we are by findings of fact that are substantially supported, we affirm the judgment of the trial court, not for the reasons articulated in the court’s opinion, but rather for the reason that we are bound by the findings of fact by the Secretary, which we find to have been supported by substantial evidence. The judgment is AFFIRMED. . We have withheld the decision in this case pending the decision of the Court en banc in Parker v. Bowen and Hand v. Bowen, 788 F.2d 1512 (11th Cir.1986). . This is also consistent with Parker and Hand, supra. There we held: Accordingly, we hold that in cases where the Appeals Council reverses an ALJ's decision on its own motion, judicial review is limited to determining whether the Appeals Council’s decision is supported by substantial evidence. Id. at 1519 (emphasis, added.) While those cases dealt with appeals to the AC on the Council’s own motion, we perceive no reason not to reach the same conclusion here, although the appeal was initiated by the applicant. In this case, there was no rejection by the AC of a credibility finding of the A.L.J. . The relevant parts of Grids 202.01, 202.02 and 202.03 are as follows:

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

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, Appellee, v. BURGER KING CORPORATION, Defendant, Appellant. No. 81-1502. United States Court of Appeals, First Circuit. Argued Dec. 11, 1981. Decided Feb. 22, 1982. Martin D. Heyert, New York City, with whom Paul L. Bressan and Kelley, Drye & Warren, New York City, were on brief, for appellant. Gregory O’Duden, Atty., Washington, D. C., with whom T. Timothy Ryan, Jr., Sol. of Labor, Albert H. Ross, Regional Sol., Beate Bloch, Associate Sol., and Mary-Helen Mautner, Atty., Washington, D. C., were on brief, for appellee. Before CAMPBELL and BOWNES, Circuit Judges, and WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. Burger King appeals from a judgment of the district court enjoining it from violating provisions of the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. §§ 201 et seq., and from withholding back pay for overtime due certain of its assistant managers. After a bench trial, the district court concluded that the assistant managers were covered by the Act, and therefore entitled to be paid at one and one-half times their regular rate for overtime hours. See FLSA § 7(a), 29 U.S.C. § 207(a). Burger King argued that its assistant managers were “employed in a bona fide executive ... capacity,” and therefore exempt from the pay requirements of the Act. See FLSA § 13(a)(1), 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.1. On appeal, it repeats this argument, and also urges that the district court improperly limited the number of witnesses called at trial, and that the court’s injunction was excessive in its geographic scope. I. Burger King fast-food restaurants are operated nationwide. Some of the restaurants are company-owned, others are franchises. At issue in this case are 44 company-owned restaurants in Massachusetts and Connecticut. The restaurants are each staffed by a salaried manager, two salaried assistant managers, and a large crew of hourly employees. Except for brief periods of overlap and Fridays and Saturdays, only one of the three salaried persons is on duty at any one time. The manager usually works day shifts, while the assistant managers normally work swing and night shifts. The manager or assistant manager on duty supervises the hourly employees, up to 25 of whom may be working at any one time. While on duty, the assistant manager enjoys decision-making authority roughly commensurate with that of the manager. He schedules employees, assigns work, oversees product quality, and speaks with customers. Assistant managers also train employees, determine the quantity of food to be produced at any given time, and perform various recordkeeping, inventory, and cash reconciliation duties. Many of these tasks are governed by highly detailed, step-by-step instructions contained in Burger King’s “Manual of Operating Data,” and admit of little or no variation. Assistant managers also spend a portion of their time performing many of the same tasks as hourly employees, such as taking orders, preparing food, and “expediting” orders, that is, filling the orders and handing them to the customers. These tasks are also spelled out in great detail in the Manual of Operating Data. The crux of Burger King’s case was its affirmative defense that the assistant managers were employed in a “bona fide executive . . . capacity” as that term is used in section 13(a)(1), and thus exempt from the Act. Regulations promulgated by the Secretary of Labor under authority of section 13(a)(1) specify the requirements for this exemption. In the case of employees earning at least $250 per week, two requirements only must be met: the employees’ “primary duty” must be management, and they must regularly direct the work of at least two other employees. 29 C.F.R. § 541.1(f). This is known as the “short test.” In the case of employees earning more than $155, but less than $250, per week, there is a “long test.” This includes three requirements in addition to the two contained in the short test: the employees must have authority to hire or fire, or at least their recommendations must be given “particular weight"; they must “customarily and regularly exercise[] discretionary powers”; and they must not devote more than 40 percent of their time to activities not “closely related” to their management duties. 29 C.F.R. § 541.1(a)-(f). The district court found that the assistant managers here failed to meet the “primary duty” requirement common to both tests. And in the case of assistant managers whose pay scale made them subject to the “long test,” it found they lacked, in addition, the authority to hire and fire and the necessary discretionary powers, and also that they devoted more than 40 percent of their time to non-managerial duties. It therefore ruled that neither those assistant managers to whom the short test applied, nor those to whom the long test applied, were exempt from the Act. The court ordered Burger King to pay back wages to 246 assistant managers in Massachusetts and Connecticut for past overtime hours, and also enjoined Burger King from violating the Act in its company-owned restaurants without limitation as to their location. II. Burger King argues first that the district court improperly restricted the evidence it could introduce at trial, in two ways. First, it contends that the court erroneously limited testimony to that concerning only six specific restaurants, out of a total of 44 whose practices were in issue. This was done in order to limit the number of witnesses to manageable proportions (the government had initially stated that it might have to call as many as 2,000 witnesses if full testimony about each restaurant were required). The district court thought the limitation on the number of restaurants a proper approach in light of the basic similarities between the individual restaurants. Counsel for Burger King appears to have agreed to this. During the course of a pretrial conference requested by counsel for Burger King for the purpose, in his words, of “narrowing down the number of witnesses the government intends to call,” the court stated, I will not listen to witnesses from more than five [later six] stores. I don’t care what five stores they are. The five stores should be enough to give me a feeling for what is going on in these places. Counsel for Burger King replied, “I agree.” Especially in light of this concession, we do not accept Burger King’s present complaint that the restaurants are so different that it should have been allowed to present testimony concerning more of them. The court later chose three restaurants each from lists prepared by the government and Burger King. While testimony tended to show that one of the stores chosen by the government was unrepresentative due to labor problems, the court’s method of deciding on the particular restaurants — in the absence of agreement among the parties — seems fair and equitable. Second, Burger King argues that during the trial, the court improperly limited the number of witnesses it could call with respect to the six particular restaurants. Burger King attempted to call 26 witnesses, but after hearing six, the court concluded that further witnesses would not be helpful to it. Burger King and the government then stipulated that 20 named individuals “would give substantially the same testimony regarding the work they did or do as Assistant Managers” as was given by three of Burger King’s earlier witnesses. The court has broad discretion under Fed.R.Evid. 403 to prevent the “needless presentation of cumulative evidence.” See 10 Moore’s Federal Practice § 403.13 (1981). We see no abuse of discretion here. The court found that all of the testimony thus far had been “substantially the same,” and counsel for Burger King agreed with this both at trial and in the stipulation. The evidence was thus admittedly cumulative, and it was within the province of the district court to exclude it. III. We turn next to the question of whether the short test assistant managers (i.e., those earning at least $250 per week) were properly held by the district court to be non-exempt and hence within the coverage of the Act. This turns on whether they have management as their “primary duty.” 29 C.F.R. § 541.1(f). We hold that the district court erred in concluding that the assistant managers did not meet this requirement. The district court found that in the absence of the manager, the assistant manager on duty was “de facto in charge of the store.” Burger King contends vigorously that this finding should be sufficient to demonstrate that the assistant managers satisfy the primary duty requirement. Under the regulations, A determination of whether an employee has management as his primary duty must be based on all the facts of a particular case.... Time alone ... is not the sole test .... [Other] pertinent factors are the relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, his relative freedom from supervision, and the wages paid other employees for the kind of nonexempt work performed by the supervisor. 29 C.F.R. § 541.103. Some of these factors quite clearly cut in favor of Burger King’s contention, especially those related to freedom from supervision and a comparison of wages with other employees. The district court gave no explicit reason for its conclusion that the assistant managers did not have management as their primary duty, but in light of this regulation, two main explanations are possible. One is that it concluded that they do not exercise sufficient discretionary powers to be “managing”; the other is that they spend too much time on non-management tasks. Each of these is unpersuasive. The supervision of other employees is clearly a management duty. See 29 C.F.R. § 541.102(b). The fact that Burger King has well-defined policies, and that tasks are spelled out in great detail, is insufficient to negate this conclusion. Ensuring that company policies are carried out constitutes the “very essence of supervisory work." Anderson v. Federal Cartridge Corp., 62 F.Supp. 775, 781 (D.Minn.1945), aff’d, 156 F.2d 681 (8th Cir. 1946); see also Wells v. Radio Corp. of America, 77 F.Supp. 964 (S.D.N.Y.1948). While it may be that the assistant managers do not exercise sufficient discretionary powers to satisfy the long test requirement, 29 C.F.R. § 541.1(d), that requirement is not part of the short test. It cannot be denied that the supervisory work of the assistant managers qualifies as management under the regulations. The more difficult question is whether such work is their “primary duty." The regulation states that “[i]n the ordinary case it may be taken as a good rule of thumb that primary duty means the major part, or over 50 percent, of the employee’s time.” 29 C.F.R. § 541.103. There are two problems with this guideline. First, the more natural reading of “primary” is “principal” or “chief,” not “over one-half.” Marshall v. Burger King Corp., 504 F.Supp. 404 (E.D.N.Y.1980), cross-appeals pending. Second, a strict time division is somewhat misleading here: one can still be “managing” if one is in charge, even while physically doing something else. The 50 percent rule seems better directed at situations where the employee’s management and non-management functions are more clearly severable than they are here. Indeed, the regulations recognize that the 50 percent rule is not conclusive. See 29 C.F.R. § 541.103, quoted supra. One of the examples given in section 541.103 corresponds quite closely to the picture we see of the Burger King assistant managers: For example, in some departments, or subdivisions of an establishment, an employee has broad responsibilities similar to those of the owner or manager of the establishment, but generally spends more than 50 percent of his time in production or sales work. While engaged in such work he supervises other employees, directs the work of warehouse and delivery men, approves advertising, orders merchandise, handles customer complaints, authorizes payment of bills, or performs other management duties as the day-today operations require. He will be considered to have management as his primary duty. This example makes it quite clear that an employee can manage while performing other work, and that this other work does not negate the conclusion that his primary duty is management. If an employee is spending too great a portion of his time performing non-exempt tasks, then the 40 percent limitation of the long test, if applicable, may come into play. See 29 C.F.R. § 541.1(e). But as with the discretionary powers requirement, this is not an element of the short test. Finally, the case law strongly supports the conclusion that the Burger King assistant managers have management as their primary duty. In Rau v. Darling’s Drug Store, Inc., 388 F.Supp. 877 (W.D.Pa.1975), for example, the court held that an employee who was “in charge” of a drug store (excepting the prescription department) had management as her primary duty. Id., at 881. This was so in spite of the fact that she was also the sole sales clerk in two departments, and did a considerable amount of routine, non-exempt work (“more than fifty percent of her time was taken up with sales clerk work”). Id., at 879. Moreover, she was unable to make any significant or substantial decisions on her own: the owner of the store made them all, including setting prices and wages. This case is well-reasoned support for the proposition that the person “in charge” of a store has management as his primary duty, even though he spends the majority of his time on non-exempt work and makes few significant decisions. In light of the district court’s finding here that the assistant managers were “in charge” of the restaurant during their shifts, its conclusion that they do not have management as their primary duty cannot stand. See also Wirtz v. Arcata Plywood Corp., 18 WH Cases 720 (E.D.Cal.1969) (manager of data processing department); Marshall v. Hendersonville Bowling Center, Inc., 483 F.Supp. 510 (M.D.Tenn.1980) (bowling alley employees); Walling v. General Industries Co., 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088 (1947) (boiler room supervisors); Kelly v. Adroit, Inc., 480 F.Supp. 392 (E.D.Tenn.1979), aff’d without opinion, 657 F.2d 267 (6th Cir. 1981) (foreman); McReynolds v. Pocahontas Corp., 192 F.2d 301 (4th Cir. 1951) (unsupervised foreman). Our conclusion that the assistant managers do have management as their primary duty is in accord with a similar case concerning Burger King restaurants in New York. See Marshall v. Burger King Corp., 504 F.Supp. 404 (E.D.N.Y.1980), cross-appeals pending. IV. We turn next to those assistant managers earning under $250 who must meet the additional requirements of the long test if Burger King’s exemption claim is to be upheld. We affirm the district court’s conclusion that these employees were not shown to have met all the requirements of the long test, and hence are nonexempt. The elements of the test are stated in the conjunctive, and therefore each element must be met to qualify for the exemption. See, e.g., Wirtz v. Patelos Door Corp., 280 F.Supp. 212, 215-16 (E.D.N.C.1968). We conclude that the district court was not clearly erroneous in finding that assistant managers spent more than 40 percent of their time on activities not “closely related” to management, 29 C.F.R. § 541.1(e), and therefore uphold the district court on this basis, without reaching its other grounds of decision. Burger King argues only briefly that the court was clearly erroneous in its factual conclusion. We think the courts’ conclusion is supportable. There was considerable testimony from assistant managers that the great majority of their time was spent on menial tasks. See footnote 5, supra. Burger King’s primary argument is that the court erred in including certain tasks in the non-exempt (not closely related to management) category. This argument in turn is broken into two branches: first, that certain tasks not performed by the hourly crew, such as cash reconciliation, were improperly classified as non-exempt, and second, that tasks performed by the crew as well as by the assistant managers, such as taking orders, were similarly improperly classified. The first contention may be dealt with briefly. Even if it is true that those tasks performed only by the assistant managers are properly classified as exempt — a question we do not decide — it is clear from the court’s opinion that it did not include time spent on these tasks in concluding that the 40 percent limit was surpassed: I find, despite testimony to the contrary, which I do not believe, that assistant managers do in fact in most of the Burger King Stores spend more than 40% of their working time in routine production tasks which are not of a managerial nature or caliber. I find those tasks are mundane and exactly the same as those performed by concededly hourly employees. (Emphasis added.) The court thus found the 40 percent limit was broken even when considering only the time spent by the assistant managers on the same tasks as performed by the hourly crew. We thus turn to the question of whether that work was properly classified as non-exempt. Burger King argues that this work cannot count as non-exempt because the assistant managers are still managing the restaurant and supervising the crew, even while performing those tasks. This line of reasoning has merit for purposes of deciding whether they meet the primary duty requirement, see Part III, supra, but misses the point as to the different, 40 percent limitation requirement. The latter measures the amount of time which one who may otherwise have management as his primary duty devotes to non-management tasks. Someone whose primary duty is management may still fail to qualify under the long test if his managerial status coexists with the performance of a significant amount of menial work, as in the case of a working supervisor or “strawboss.” The Secretary’s regulations make this plain. They provide that the “primary purpose” of the time percentage limitation (applicable, it will be remembered, to lower paid, long test personnel only) is to distinguish between bona fide executives and those working foremen and supervisors “who regularly perform[] ‘production’ work or other work which is unrelated or only remotely related to [their] supervisory activities.” 29 C.F.R. § 541.115(a). The regulation continues, (b) One type of working foreman or working supervisor most commonly found in industry works alongside his subordinates. Such employees, sometimes known as strawbosses, or gang or group leaders perform the same kind of work as that performed by their subordinates, and also carry on supervisory functions. Clearly, the work of the same nature as that performed by the employees’ subordinates must be counted as nonexempt work and if the amount of such work performed is substantial the exemption does not apply. (“Substantial,” as used In this section, means more than 20 percent. See discussion of the 20-percent limitation on non-exempt work in § 541.112.) A foreman in a dress shop, for example, who operates a sewing machine to produce the product is performing clearly non-exempt work. However, this should not be confused with the operation of a sewing machine by a foreman to instruct his subordinates in the making of a new product, such as a garment, before it goes into production. (Emphasis added.) The regulation thus recognizes that some supervisors work alongside their crews, doing the same work as the crews, while supervising them as well. It nonetheless counts the time spent on non-exempt work toward the 40 percent limitation. This seems to describe the position of the Burger King assistant managers as found by the district court, although, of course, the concept is relevant only in those individual cases where because of weekly earnings under $250, the long rather than short test must be applied. It needs to be emphasized that the primary duty and 40 percent requirements satisfy entirely separate if complementary concerns. The former requirement is aimed at distinguishing those whose principal responsibility is management from others. The latter requirement, which under the long test must independently be satisfied, see note 3, supra, ensures that even those who pass the primary duty test are subject to the protections of the Act if more than a certain portion of their time is devoted to performing the same tasks as those performed by non-exempt subordinates. The interpretation proposed by Burger King would eviscerate this distinction, and in effect merge the time limitation into the primary duty requirement, making it surplus-age. In the face of the clear language to the contrary, we decline to adopt such a reading of the regulation, and therefore uphold the district court with respect to those assistant managers covered by the long test. V. Although the district court noted in its memorandum that “[t]his case concerns 44 retail restaurants owned by Burger King ... in either Massachusetts or Connecticut,” it enjoined Burger King from violating the FLSA with respect to assistant managers without geographic limitation, that is, nationwide. This was an abuse of discretion. During discovery, the government admitted that it sought relief only with respect to the Massachusetts and Connecticut stores. The case was tried on that basis. There was no evidence presented on the issue of whether Burger King was violating the Act at other restaurants. The injunction must therefore be narrowed to apply only to the Massachusetts and Connecticut restaurants. See, e.g., Hodgson v. Corning Glass Works, 474 F.2d 226, 236-37 (2d Cir. 1973), aff’d, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). The injunction is accordingly vacated insofar as it applies to assistant managers earning at least $250 per week, and insofar as it applies to restaurants outside Massachusetts and Connecticut. In all other respects, the judgment of the district court is affirmed. So ordered. . See note 3, infra. . The limitation for certain other types of establishments is 20 percent. 29 C.F.R. §541.1(e). See note 3, infra. . The regulation in its entirety reads as follows: The term “employee employed in a bona fide executive * * * capacity” in section 13(a)(1) of the act shall mean any employee: (a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and (d) Who customarily and regularly exercises discretionary powers; and (e) Who does not devote more than 20 percent, or in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (d) of this section: Provided, That this paragraph shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20-percent interest in the enterprise in which he is employed; and (f) Who is compensated for his services on a salary basis at a rate of not less than $155 per week (or $130 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities: Provided, That an employee who is compensated on a salary basis at a rate of not less than $250 per week (or $200 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands or American Samoa), exclusive of board, lodging, or other facilities, and whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all the requirements of this section. . Burger King has not claimed that the three restaurants selected from its list by the district court failed to present its strongest case. . Burger King also argues that in light of the stipulation, it was error for the court to refuse to credit the testimony of its witnesses (including those not called but listed in the stipulation) that they spent less than 40 percent of their time on activities unrelated to management. The stipulation, however, was not to the truth of the testimony, but merely to the fact that it would be given as stipulated. The court retained the right to choose between conflicting versions, and here there was credible testimony contrary to that of the Burger King witnesses. . Assistant managers earning under $250, so-called long test assistant managers, have the same duties but, as previously stated, must meet three additional requirements for exemption. Long test personnel are discussed infra. In so far as long test personnel must also have management as a primary duty, our ruling here that that requirement was met applies equally to them. . Indeed, the court concluded that she was not an exempt executive because she did not meet the time requirement under the long test, 29 C.F.R. § 541.1(e). . The cases cited by Burger King do not establish the correctness of its position. In most of them, such as Paddy v. Smith, 20 WH Cases 1176 (W.D.La.1973), the courts based their conelusions on the fact that the time limitation was not exceeded, not that time spent on non-exempt tasks could not be counted if the employee was still supervising at the same time. Other cases, such as Anderson v. Federal Cartridge Corp., 19 Labor Cases ¶ 66,093 (D.Minn.1950), where the supervisors’ non-exempt work was performed at irregular or sporadic intervals for brief periods of time, are clearly inapposite. Finally, in light of the district court’s finding that training involved very little time, cases relying on the time spent training while performing the same tasks as hourly employees, such as Brown v. Consolidated Vultee Aircraft Corp., 80 F.Supp. 257 (W.D.Ky.1948), are similarly unavailing. . The Manual of Operating Data, applicable chainwide, instructs assistant managers to comply with the 40 percent time limitation. No witness testified that the company’s actual policy was to violate this requirement throughout its chain.

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

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

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

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

DISTRICT NO. 1, PACIFIC COAST DISTRICT, M.E.B.A., Plaintiffs-Appellees, v. STATE OF ALASKA, Defendant-Appellant. No. 81-3082. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 10, 1981. Decided July 27, 1982. Jack McGee, Asst. Atty. Gen., Juneau, Alaska, for defendant-appellant. J. Markham Marshall, Seattle, Wash., for Dist. L. P. C. D. A. Richard Dykstra, Seattle, Wash., for Grammer et al. Before GOODWIN, KENNEDY and SKOPIL, Circuit Judges. SKOPIL, Circuit Judge: The State of Alaska appeals from the district court’s summary judgment holding Alaska’s “Change Port” statute unconstitutional under the commerce clause and the privileges and immunities clause of the United States Constitution. We vacate the summary judgment and remand with instructions to transfer the action to the District of Alaska. FACTS The Alaska Marine Highway System, which is owned and operated by the State of Alaska, operates ferries between Seattle, Washington and Alaska, as well as between Alaskan ports. Many of the System’s employees live in Washington, the System has a terminal in Seattle, and much of the System’s maintenance is performed in Seattle. In 1977 Alaska enacted a statute providing, in part, that “[n]o employee of the Alaska Marine Highway System may be relieved at a duty station or port which is outside the state.” Alaska Stat. § 19.65.-010. The National Marine Engineers Beneficial Association, a union representing System employees, sued the state and state officials (“defendants”) in the Western District of Washington, contending that the statute was unconstitutional and seeking a permanent injunction against its enforcement. A similar suit was brought by 29 deck officers and pilots licensed by the Coast Guard. The two suits were consolidated. The district court granted plaintiffs’ motion for summary judgment, holding that the statute violated both the commerce and the privileges and immunities clauses. On appeal, defendants raise five issues. They argue that the district court erred: (1) in denying defendants’ motion to dismiss for improper venue; (2) in denying defendants’ motion to transfer the suit to the District of Alaska; (3) in permitting plaintiffs to amend their complaint to add the individual defendants; (4) in declining to abstain; and (5) in finding the statute unconstitutional. Because we vacate the summary judgment on the first of these grounds, we do not address the other issues. DISCUSSION The venue statute applicable in this case provides that: “A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.” 28 U.S.C. § 1391(b). The magistrate found that the claim in this case arose in the Western District of Washington under either a “substantial contacts” standard, see Commercial Lighting Products, Inc. v. United States District Court, 537 F.2d 1078 (9th Cir. 1976), or a more lenient standard applicable to cases involving challenges to statutes. The magistrate did not reach plaintiffs’ argument that the defendants “reside” in Washington. The district court adopted the magistrate’s findings and denied defendants’ motion to dismiss. The place where “the claim arose” for purposes of venue is governed by federal law. Leroy v. Great Western United Corp., 443 U.S. 173, 183 n. 15, 99 S.Ct. 2710, 2716 n. 15, 61 L.Ed.2d 464 (1979); Sutain v. Shapiro & Lieberman, 678 F.2d 115, 117 (9th Cir. 1982). In Leroy, a would-be tender offeror with headquarters in Texas sued, in the district court in Texas, Idaho state officials responsible for enforcing the Idaho Corporate Takeover Act, alleging that the Act was unconstitutional. The Supreme Court acknowledged that, under the broadest plausible reading of section 1391(b), a claim may arise in two or more districts only in the unusual case in which the districts may, with approximately equal plausibility in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff), be called the locus of the claim. In such a case, the plaintiff may select the forum from among those districts. The Court held, however, that Leroy was not the unusual case and that the claim in that case arose in Idaho, not Texas. First, the Court noted that all of the defendants’ acts were, and their enforcement of the statute would be, in Idaho. For that reason, most of the relevant evidence and witnesses, besides employees of the plaintiff and securities experts, were in Idaho. Second, in deciding the constitutionality of an Idaho statute, federal judges in Idaho are better qualified to construe the statute and to assess the character of Idaho’s enforcement than judges elsewhere. The Court rejected the argument that venue lay in Texas because that was where the tender offeror suffered harm, noting those contacts with Texas fell “far short” of the contacts with Idaho and that such reasoning would subject the Idaho officials to suit in many different districts. 443 U.S. at 186, 99 S.Ct. at 2718. The analysis in Leroy indicates that venue in this case lies only in Alaska. First, because the enactment of the “Change Port” statute was, and any enforcement will be, in Alaska, most of the evidence and witnesses are there. Second, it would be preferable for a federal judge in Alaska to decide these claims rather than for one in Washington to do so. Although the statute in this case does not seem on its face susceptible of narrowing interpretations, we cannot say that the Alaska courts, or a district judge in Alaska, could not read the statute narrowly so as to save it from possible constitutional infirmity. Thus, even though Alaska appears to have been able to defend the statute’s constitutionality in Seattle, the State of Washington cannot be called the locus of these claims as plausibly as Alaska. Since Leroy, several courts have held, in cases involving challenges to the constitutionality or application of state statutes, that venue was proper where the effects of the statutes were felt as well as where they were enacted and administered. See Florida Nursing Home Ass’n v. Page, 616 F.2d 1355 (5th Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980), reversed on other grounds sub nom. Florida Department of Health and Rehabilitation Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Sanchez v. Pingree, 494 F.Supp. 68 (S.D.Fla.1980); Cheeseman v. Carey, 485 F.Supp. 203 (S.D.N.Y.), remanded with instructions to dismiss on other grounds, 623 F.2d 1387 (2d Cir. 1980); Glendale Federal Savings and Loan Ass’n v. Fox, 481 F.Supp. 616 (C.D.Cal.1979); see also Sheffield v. State of Texas, 411 F.Supp. 709 (N.D.Tex.1976). Each of these cases, however, involved districts in only one state. Thus, the concern in Leroy that federal judges in a state are better suited to rule on that state’s statutes than are judges elsewhere was inapplicable. Moreover, some of the cases failed to discuss Leroy. See Florida Nursing Home, 616 F.2d at 1360-61; Glendale Federal Savings and Loan, 481 F.Supp. at 623-24. To the extent that these cases are inconsistent with Leroy, we decline to follow them. This court has stated that a claim arises “in any district in which a substantial part of the act, events, or omissions occurred that gave rise to the claim for relief.” Su-tain, at 117 (quoting Commercial Lighting Products, 537 F.2d at 1080). This “substantial contacts” test suggests that a claim may sometimes arise in more than one district. Leroy did not indicate what constitutes the unusual case in which a claim may do so. See 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 3806 at 7 (1981 Supp.); Pfeiffer v. International Academy of Biomagnetic Medicine, 521 F.Supp. 1331, 1343 (W.D.Mo.1981); Cheeseman, 485 F.Supp. at 212-13. Thus, it is unclear what effect Leroy had on the “substantial contacts” test. However, we need not decide that question in this case. We merely hold that, under the analysis of Leroy, venue in this case, involving a constitutional challenge to an Alaska statute, lies only in Alaska. Because the district court erred in concluding that this case arose in Washington, the judgment is vacated and the action remanded with instructions to transfer the action to the District of Alaska. . Alaska has voluntarily suspended enforcement of the statute pending the resolution of its constitutionality. . We note that the Supreme Court’s concern that state officials not face suits in many different districts does not seem applicable in this case. The only non-Alaskan plaintiffs here appear to be Washington residents. However, the inapplicability of that factor does not make venue proper in Washington. The other factors discussed in the text still make Alaska a more plausible locus of these claims. . A case in which venue is improper may be transferred, rather than dismissed, if transfer is “in the interest of justice.” 28 U.S.C. § 1406(a). Although this court can transfer a case itself, see Dr. John T. MacDonald Foundation, Inc. v. Calif ano, 571 F.2d 328 (5th Cir.) (en banc), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978), in this case we merely remand with instructions to transfer. We conclude that transfer is warranted to expedite the consideration in the District of Alaska of the constitutional challenges to Alaska’s 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. 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?

Stephen M. SHAPIRO, et al., Petitioners v. David J. McMANUS, Jr., Chairman, Maryland State Board of Elections, et al. No. 14-990. Supreme Court of the United States Argued Nov. 4, 2015. Decided Dec. 8, 2015. Michael B. Kimberly, Washington, DC, for Petitioners. Steven M. Sullivan, Baltimore, MD, for Respondents. Michael B. Kimberly, Counsel of Record, Paul W. Hughes, Jeffrey H. Redfern, Mayer Brown LLP, Washington, DC, for Petitioners. Jennifer L. Katz, Patrick B. Hughes, Assistant Attorneys General, Brian E. Frosh, Attorney General of Maryland, Steven M. Sullivan, Chief of Litigation, Julia Doyle Bernhardt, Deputy Chief of Litigation, Baltimore, MD, for Respondents. Michael B. Kimberly, Paul W. Hughes, Jeffrey H. Redfern, Mayer Brown LLP, Washington, DC, for Petitioners. Justice SCALIA delivered the opinion of the Court. We consider under what circumstances, if any, a district judge is free to "determin[e] that three judges are not required" for an action "challenging the constitutionality of the apportionment of congressional districts." 28 U.S.C. §§ 2284(a), (b)(1). I A Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an "interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute ... upon the ground of the unconstitutionality of such statute." 28 U.S.C. § 2281 (1970 ed.), repealed, Pub. L. 94-381, § 1, 90 Stat. 1119. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3-12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U.S.C. § 1253. In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94-381, § 1, 90 Stat. 1119 (repealing 28 U.S.C. § 2281 ), but was mandated for "an action ... challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." Id., § 3, now codified at 28 U.S.C. § 2284(a). Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: "The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges" to serve. 28 U.S.C. § 2284(1) (1970 ed.). The amended statute provides: "Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges" to serve. 28 U.S.C. § 2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text. B In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing-or, more pejoratively, gerrymandering-the districts for the State's eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland's redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case. The District Judge, however, thought the claim "not one for which relief can be granted." Benisek v. Mack, 11 F.Supp.3d 516, 526 (D.Md.2014). "[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners'] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional representatives." Ibid. (brackets, ellipsis, and internal quotation marks omitted). For that reason, instead of notifying the Chief Judge of the Circuit of the need for a three-judge court, the District Judge dismissed the action. The Fourth Circuit summarily affirmed in an unpublished disposition. Benisek v. Mack, 584 Fed.Appx. 140 (C.A.4 2014). Seeking review in this Court, petitioners pointed out that at least two other Circuits consider it reversible error for a district judge to dismiss a case under § 2284 for failure to state a claim for relief rather than refer it for transfer to a three-judge court. See LaRouche v. Fowler, 152 F.3d 974, 981-983 (C.A.D.C.1998) ; LULAC v. Texas, 113 F.3d 53, 55-56 (C.A.5 1997) (per curiam ). We granted certiorari. Shapiro v. Mack, 576 U.S. ----, 135 S.Ct. 2805, 192 L.Ed.2d 846 (2015). II Petitioners' sole contention is that the District Judge had no authority to dismiss the case rather than initiate the procedures to convene a three-judge court. Not so, argue respondents; the 1976 addition to § 2284(b)(1) of the clause "unless he determines that three judges are not required" is precisely such a grant of authority. Moreover, say respondents, Congress declined to specify a standard to constrain the exercise of this authority. Choosing, as the District Judge did, the familiar standard for dismissal under Federal Rule of Civil Procedure 12(b)(6) best serves the purposes of a three-judge court, which (in respondents' view) is to protect States from "hasty, imprudent invalidation" of their statutes by rogue district judges acting alone. Brief for Respondents 27. Whatever the purposes of a three-judge court may be, respondents' argument needlessly produces a contradiction in the statutory text. That text's initial prescription could not be clearer: "A district court of three judges shall be convened ... when an action is filed challenging the constitutionality of the apportionment of congressional districts...." 28 U.S.C. § 2284(a) (emphasis added). Nobody disputes that the present suit is "an action ... challenging the constitutionality of the apportionment of congressional districts." It follows that the district judge was required to refer the case to a three-judge court, for § 2284(a) admits of no exception, and "the mandatory 'shall' ... normally creates an obligation impervious to judicial discretion." Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) ; see also National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661-662, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (same). The subsequent provision of § 2284(b)(1), that the district judge shall commence the process for appointment of a three-judge panel "unless he determines that three judges are not required," need not and therefore should not be read as a grant of discretion to the district judge to ignore § 2284(a). It is not even framed as a proviso, or an exception from that provision, but rather as an administrative detail that is entirely compatible with § 2284(a). The old § 2284(1) triggered the district judge's duty to refer the matter for the convening of a three-judge court "[o]n the filing of the application" to enjoin an unconstitutional state law. By contrast, the current § 2284(b)(1) triggers the district judge's duty "[u]pon the filing of a request for three judges" (emphasis added). But of course a party may-whether in good faith or bad, through ignorance or hope or malice-file a request for a three-judge court even if the case does not merit one under § 2284(a). Section 2284(b)(1) merely clarifies that a district judge need not unthinkingly initiate the procedures to convene a three-judge court without first examining the allegations in the complaint. In short, all the district judge must "determin[e]" is whether the "request for three judges" is made in a case covered by § 2284(a) -no more, no less. That conclusion is bolstered by § 2284(b)(3)'s explicit command that "[a] single judge shall not ... enter judgment on the merits." It would be an odd interpretation that allowed a district judge to do under § 2284(b)(1) what he is forbidden to do under § 2284(b)(3). More likely that Congress intended a three-judge court, and not a single district judge, to enter all final judgments in cases satisfying the criteria of § 2284(a). III Respondents argue in the alternative that a district judge is not required to refer a case for the convening of a three-judge court if the constitutional claim is (as they assert petitioners' claim to be) "insubstantial." In Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), we stated that the filing of a "constitutionally insubstantial" claim did not trigger the three-judge-court requirement under the pre-1976 statutory regime. Id ., at 518, 93 S.Ct. 854. Goosby rested not on an interpretation of statutory text, but on the familiar proposition that "[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented." Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 78 L.Ed. 152 (1933) (per curiam ) (emphasis added). Absent a substantial federal question, even a single-judge district court lacks jurisdiction, and "[a] three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts." Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 100, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974). In the present case, however, the District Judge dismissed petitioners' complaint not because he thought he lacked jurisdiction, but because he concluded that the allegations failed to state a claim for relief on the merits, citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See 11 F.Supp.3d, at 520. That was in accord with Fourth Circuit precedent, which holds that where the "pleadings do not state a claim, then by definition they are insubstantial and so properly are subject to dismissal by the district court without convening a three-judge court." Duckworth v. State Admin. Bd. of Election Laws, 332 F.3d 769, 772-773 (C.A.4 2003) (emphasis added). We think this standard both too demanding and inconsistent with our precedents. "[C]onstitutional claims will not lightly be found insubstantial for purposes of" the three-judge-court statute. Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 147-148, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). We have long distinguished between failing to raise a substantial federal question for jurisdictional purposes-which is what Goosby addressed-and failing to state a claim for relief on the merits; only "wholly insubstantial and frivolous" claims implicate the former. Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ; see also Hannis Distilling Co. v. Mayor and City Council of Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 54 L.Ed. 482 (1910) ("obviously frivolous or plainly insubstantial"); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962) (per curiam ) ("wholly insubstantial," "legally speaking non-existent," "essentially fictitious"); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("frivolous or immaterial"). Absent such frivolity, "the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell, supra, at 682, 66 S.Ct. 773. Consistent with this principle, Goosby clarified that " '[c]onstitutional insubstantiality' for this purpose has been equated with such concepts as 'essentially fictitious,' 'wholly insubstantial,' 'obviously frivolous,' and 'obviously without merit.' " 409 U.S., at 518, 93 S.Ct. 854 (citations omitted). And the adverbs were no mere throwaways; "[t]he limiting words 'wholly' and 'obviously' have cogent legal significance." Ibid. Without expressing any view on the merits of petitioners' claim, we believe it easily clears Goosby 's low bar; after all, the amended complaint specifically challenges Maryland's apportionment "along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) ]." App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, Justice KENNEDY, concurring in the judgment, surmised that if "a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest.... Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause." Vieth v. Jubelirer, 541 U.S. 267, 315, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004). Whatever "wholly insubstantial," "obviously frivolous," etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as "constitutionally insubstantial" under Goosby . Perhaps petitioners will ultimately fail on the merits of their suit, but § 2284 entitles them to make their case before a three-judge district court. * * * The judgment of the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

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

What is the issue of the decision?

Dock GREEN, Libelant, Appellant, v. SKIBS A/S MANDEVILLE and A. S. Klaveness & Company, A/S Managers and THE S/S KINGSVILLE, Respondents, and Palmetto Stevedoring Co., Inc., Respondent-Impleaded, Appellees. No. 8319. United States Court of Appeals Fourth Circuit. Argued June 15, 1961. Decided June 19, 1961. Robert Klonsky, Brooklyn, N. Y., and I. H. Jacobson, Charleston, S. C. (Jacobson, Rosenblum & Spar, Charleston, S. C., and Di Costanzo, Klonsky & Sergi, Brooklyn, N. Y., on brief), for appellant. D. A. Brockinton, Jr., Charleston, S. C. (Waring & Brockinton, Charleston, S. C., on brief), for appellees Skibs A/S Mandeville and A. S. Klaveness & Company, et al. Harold A. Mouzon, Charleston, S. C. (Moore & Mouzon, Charleston, S. C., on brief), for appellee Palmetto Stevedoring Company, Inc. Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges. HAYNSWORTH, Circuit Judge. The libelant, a longshoreman, injured his knee when he fell or was knocked from the masthouse of the ship to her main deck. He sought damages from the ship, which impleaded the stevedore-employer of the libelant. The District Court’s decree exonerated the ship, and the libelant has appealed. The injury was sustained as the libel-ant and other longshoremen were undertaking to place one of the ship’s cargo booms in position preparatory to unloading operations. The ship, a Norwegian, was on her maiden voyage. She was provided with gear for placing the booms somewhat unlike the usual system found upon American vessels. However, the testimony shows that it is the system found upon most of the foreign vessels,, particularly the newer, more modem ones. Most of the work of the stevedore was on foreign vessels, and these longshoremen were familiar with the system. Under this system, the topping-lift cable runs, and is permanently secured, to a drum having no power of its own. This drum is divided by a flange into two sections. From the section other than the one carrying the topping-lift cable, may be run a bull cable to the gypsy-head of the cargo winch. Through the use of the bull cable, the turns of the topping-lift drum may be controlled by the cargo winch in the same manner as if the topping-lift cable was run directly to the gypsy-head of that winch, as is generally done on American ships. There was testimony that the longshoremen placed the hook at the bitter end of the bull line in the flange of the gypsy-head, took up the slack in the bull line, and were engaged in lowering the boom, when the bull line cable parted at the splice near its hook. As the boom fell, the fast running bull line struck the libelant, knocking him off the masthouse platform to the main deck. In a pretrial deposition, however, the libelant had testified repeatedly that the hook at the bitter end of the bull line had not been secured to the flange of the gypsy-head, but that, instead, he had taken six turns of the bull cable around the gypsy-head and was holding the free end of the bull line to maintain tension on the turns. Momentarily, he relaxed the tension; the loosened turns began to run out, and the libelant jumped clear to escape the running cable. There is no doubt that the steel bull cable parted near the hook. Whether this occurred as a result of the relatively minor tension, which would have been upon it if the hook had been secured to the flange behind several turns of the bull line around the gypsy-head, or whether it parted as a result of the flying hook being caught in something on the ship as the racing and snapping bull line paid out behind the falling boom, was a question of fact which was settled by the findings of the District Court. The District Judge believed the libel-ant’s version of the occurrence as detailed in his pretrial deposition, supported and corroborated to some extent by other evidence, and disbelieved the libelant’s trial version. It was for the District Judge to determine which version of the occurrence to accept. His detailed findings on this aspect of the case are supported by the record. We accept them, as we must. It, also, was claimed that the equipment was unseaworthy because the topping-lift drum was not provided with a brake which could be operated to stop the drum when revolving at high speed. It was equipped with a raehet and a latch bar, which, when engaged, would prevent the turning of the drum, but there was, also, testimony that this could not be engaged when the drum was turning at very high speed. In the American system, however, there would be no such intervening braking device between the gypsy-head and the topping-lift cable, and there was affirmative testimony that this system was not only modern, but adequate and safe when used as it was intended to be used. After the accident, all of the equipment was tested and found to be operating normally and properly, except, of course, for the break in the bull line near its bitter end. Finally, the libelant contends that he was not provided a safe place to work. He says there was no room to stand behind the gypsy-head, but that he was required to stand between the gypsy-head and the topping-lift drum, near where that part of the bull line not in use was piled. There was some opinion evidence to support this contention, but it was contradicted by other opinion evidence. All of the detailed findings of fact are adequately supported in the record and they fully justify the conclusion of the District Court that the injury was solely the result of the libelant’s failure to maintain the necessary tension on the free end of the bull line which he was attempting to pay out, after having looped it around the gypsy-head. The appeal presents only factual questions, which the findings of the District Judge, supported by the record, have foreclosed. Affirmed. . This equipment and its operation are described in greater detail in the opinion of the District Court, 188 F.Supp. 65. . To this extent, this contention is inconsistent with his contention that the hook of the bull line was secured to the flange of the gypsy-head, in which event no part of the bull line would have been on the deck.

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

PAN AMERICAN PETROLEUM CORPORATION, a corporation, Appellant, v. Ed PIERSON, individually and as Supervisor for the State of Wyoming, Bureau of Land Management, Department of the Interior; Cecil L. Hase, individually and as Manager of Cheyenne Land Office, Bureau of Land Management, Department of the Interior; R. P. Rigtrup, individually and as Acting Manager of Cheyenne Land Office, Bureau of Land Management, Department of the Interior; John Doe I, individually and as the Examiner appointed or to be appointed by Manager or Acting Manager, Cheyenne Land Office; and John Doe II and John Doe III, individually and in any capacity they may hold as representatives of the Cheyenne Land Office, Bureau of Land Management, Department of the Interior, Appellees. No. 6372. United States Court of Appeals Tenth Circuit. Oct. 28, 1960. Rehearing Denied Dec. 20, 1960. A. G. McClintock, Cheyenne, Wyo. (T. J. Files, Casper, Wyo., Virgil C. Mc-Clintock and Frank H. Houck, Casper, Wyo., were with him on the brief), for appellant. A. Donald Mileur, Atty., Dept, of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., John F. Raper, Jr., U. S. Atty., District of Wyoming, Cheyenne, Wyo., and Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., were with him on the brief), for appellees. Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges. BREITENSTEIN, Circuit Judge. The question presented is whether appellant, Pan American Petroleum Corporation, may maintain an action to enjoin the appellees, officers of the Bureau of Land Management, Department of the Interior, stationed in the State of Wyoming, from proceeding with an administrative action for the cancellation of oil and gas leases held by Pan American. This appeal is from a judgment of the trial court sustaining a motion to dismiss the complaint. Pursuant to the Mineral Leasing Act of 1920, as amended, the Secretary of the Interior issued to Walter G. Davis and others oil and gas leases covering portions of the public domain lying in Wyoming. By assignment Pan American became the owner of certain of these leases and the owner of interests 'in other of such leases. Some of these leases so held in whole or in part by Pan American are presently producing oil or gas, others cover lands known to contain oil or gas, and still others are not producing and not known to contain oil or gas. The Wyoming State Supervisor of the Bureau of Land Management brought a proceeding, styled a “Contest,” in the Wyoming office of that Bureau. Therein it is alleged that Davis and others willfully, falsely and fraudulently procured the issuance and assignment of federal oil and gas leases: (1) for the purpose of enabling Davis and others to obtain leases covering acreage in excess of that permitted by statute and regulations; (2) without disclosing that an agent was involved and without the interest and qualifications of Davis or others being disclosed; and (3) at a time when Davis was not qualified to hold such leases. The complaint prays for the cancellation of the leases. An appropriate notice was served on Pan American, as a party interested in certain of the leases, which required the filing of an answer within 30 days. Before the expiration of that period Pan American brought the instant action in the United States District Court for the District of Wyoming. Jurisdiction exists under 28 U.S.C. § 1331 as the action arises under the laws of the United States and the controversy involves more than the required jurisdictional amount. Pan American alleges that federal oil and gas leases may not be cancelled by administrative action, that the unauthorized administrative action will cause it great and irreparable damage and will result in the taking of its property without due process of law, and that it has no remedy other than injunctive relief. The complaint asks that the defendant officers be restrained from taking any action to cancel the leases except through a proceeding instituted by the Attorney General of the United States in the United States District Court for the District of Wyoming. The defendant officers moved to dismiss on the grounds that the complaint fails to state a claim as the leases may be cancelled in an administrative action, that the Secretary of the Interior is an indispensable party, and that Pan American has not exhausted its administrative remedies. The trial court held that the leases could not be cancelled by administrative action but dismissed the complaint on the ground that the Secretary of the Interior was an indispensable party. At the outset it should be noted that the government lawyers who appear for the defendant officers of the Bureau of Land Management do not assert the defense of sovereign immunity. Instead they rely upon the doctrine of the indispensable superior officer and say that the action may not be maintained in the absence of the Secretary of the Interior who may be sued only in the jurisdiction of his official residence, that is, the District of Columbia. Sovereign immunity does not prevent a suit against a federal officer who is acting in excess of his authority. The instant action raises the sole question of whether the defendant officers are so acting. Since the decision in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, the traditional remedy of a person aggrieved by governmental action, and precluded from a suit against the sovereign by the doctrine of immunity, has been a suit against the government officer responsible for that action and such suits have been permitted when the officers have exceeded their statutory powers. The situation here presented is not one of asserted erroneous action within the ambit of statutory authority. The practical operation of the doctrines of sovereign immunity and indispensable superior officer has presented many difficulties and has evoked much comment among the law writers. The application of the doctrine of the indispensable superior presents practical and legal difficulties. The rejection of the unavailability of the defense of sovereign immunity in a suit against a government officer because of his official conduct should carry with it a realization of the practicality of venue and geography. Recognition of this principle is established by the decision in Shaughnessy, District Director of Immigration and Naturalization v. Pedreiro, 349 U.S. 48, 54, 75 S.Ct. 591, 595, 99 L.Ed. 868, wherein the Court said that its decisions “have established a policy under which indispensability of parties is determined on practical considerations.” If concern is to be given to such practical considerations, and we think they should be given concern, then this action to restrain proceedings in Wyoming for the cancellation of federal oil and gas leases involving land in Wyoming should be maintained in the United States District Court for the District of Wyoming and should not be defeated by the inability of the plaintiff to sue the Secretary of the Interior in that court. Doubt has been cast upon the simplicity of this approach by a complex of decisions by the United States Supreme Court and the lower federal courts in cases involving the question of the indispensable superior. In five decisions the Supreme Court has permitted the action without joinder of the superior and in four other cases has held that a superior was an indispensable party. Williams v. Fanning is often taken as the leading case and is relied upon by Pan American. It will not be helpful to review the many decisions of the lower federal courts which have applied Williams v. Fanning, but it is fair comment that they have achieved no substantial uniformity of application. As we read Williams v. Fanning, it notes three inquiries which are pertinent in determining the indispensability of a superior officer. These are: (1) Does the relief sought require the superior “to take action, either by exercising directly a power lodged in him or by having a subordinate exercise it for him”?; (2) Are the subordinates acting in excess of their authority?; and (3) Will the relief sought “expend itself on the public treasury or domain, or interfere with the public administration” ? As to the first, the relief sought by Pan American requires no action by the ■Secretary or any subordinate. The purpose is to enjoin the cancellation of the leases by administrative action. There is no effort to compel the exercise of any power or authority. Instead, the purpose is to prevent the allegedly wrongful ■exercise of claimed power and authority. This is not a case like Richman v. Beck, 10 Cir., 257 F.2d 575. The relief there .sought would have required the issuance ■of permits by the Secretary of the Interior for the trailing and grazing of sheep. Related to the problem of the impact •of the decree upon the non-joined superior is the query as to whether effec-five relief may be obtained by a decree acting upon the subordinate. The administrative proceeding here sought to be enjoined is denominated a “Contest” and is brought under 43 C.F.R. 221 (1954 Supp.). It was instituted by the Wyoming State Supervisor of the Bureau of Land Management, Department of the Interior, and, by the applicable regulations, had to be instituted in Wyoming. The decree thus will affect land within the jurisdiction of the court and will operate against the officers who either instituted or will conduct the proceeding and who are within the jurisdiction of the court. Control over the actions of the local officers will suffice to stop the administrative proceeding. The argument that such subordinates may be left under the command of their superior to do what the court has forbidden was rejected in Williams v. Fanning as being immaterial if the decree will “effectively grant the relief desired by expending itself on the subordinate official who is before the court.” Such is the situation here. The next query is whether the subordinates are acting in excess of their authority. This involves a consideration of the statutes relating to the disposition of the federally-owned oil and gas resources. The method of disposing of these resources of the public domain was changed by the Mineral Leasing Act of 1920 from the location and patent method provided in the Placer Mining Act to a plan whereby permits were granted for exploration and leases for production. Amendments made in 1935 changed the plan by providing for leases instead of prospecting permits for unproven oil and gas lands. The Mineral Leasing Act was “the expression of a new policy for the disposition of public lands open to exploration or entry, by lease, instead of by complete alienation.” Section 27 of the Mineral Leasing Act, as amended, provides, among other things, that if any person holds any interest in any lease in violation of, the provisions relating to maximum holdings he may be compelled to dispose of such holding in an appropriate proceeding instituted by the Attorney General in the United States district court for the district in which the leased .property is located. Section 31, as amended, provides that, except as otherwise provided, a lease is subject to cancellation in an appropriate proceeding in the United States district court for the district wherein the land is located “whenever the lessee fails to comply with any of the provisions of said sections, of the lease, or of the general regulations promulgated under said sections and in force at the date of the lease.” That section further provides that any lease issued after August 21, 1935, shall be subject to cancellation by the Secretary for non-compliance with lease terms “unless or until the land covered by any such lease is known to contain valuable deposits of oil or gas.” A Department of the Interior regulation, provides that “[1] eases known to contain valuable deposits of oil or gas may be cancelled only by judicial proceedings in the manner provided in sections 27 and 31 of the act.” The contention of the officers is that sections 27 and 31 have no application to leases procured through fraud and that the Secretary has full authority to cancel a lease which was fraudulently obtained. This authority is said to exist under 5 U.S.C.A. § 485, which charges the Secretary of the Interior “with the supervision of public business relating to * * Public lands, including mines.” It is not necessary to explore the extent of the powers of the Secretary over the public lands. Suffice it to say that prior to the establishment of the lease system for mineral lands, those lands, like other public lands, were subject to disposition by patent and, upon the issuance of patent, administrative control ceased and the patent could be set aside or cancelled only by judicial proceedings in the courts. This rule is said not to be applicable in the instant case because upon the issuance of a patent title passes from the United States to the patentee whereas under the Mineral Leasing Act the United States retains legal title. We deem it unnecessary to delve into the legal complexities as to whether an oil and gas lease grants a profit a prendre or creates an estate in land. Under the first theory the lessee gains title to the oil and gas after its severance and under the second the lessee has an ownership, of the hydrocarbons in place. Under each theory the government, by the issuance of the lease, has performed the last act required of it to vest in the lessee the right to explore for, produce, market and sell the oil and gas underlying the leased premises. Similarly the issuance, of a patent is the last act of the government in disposing of the non-mineral lands of the public domain. Upon the performance of this last act, administrative power to annul or cancel ends and judicial power begins. The difference between a patent and an oil and gas lease is no reason for the denial of the power of administrative cancellation of a patent and for the recognition of such power to cancel a lease, unless Congress in the exercise of its authority over the public lands has provided for such administrative cancellation of leases after issuance. The only provision of this nature in the Mineral Leasing Act and its amendments, of which we are aware, relates to administrative cancellation of non-producing oil and gas leases issued after 1935 for breach of lease provisions, and that has no application here because cancellation is sought for fraud in procurement, not for breach of any lease provisions. If there may be administrative cancellation of an oil and gas lease for fraud in procurement, the practical operation of the Mineral Leasing Act is seriously impaired. It is common knowledge that exploration for oil and gas is costly. The drilling of wells requires substantial financial risks and the expense of putting those wells on production and of marketing the product is burdensome. If the continued existence of the granted leasehold estate is dependent upon the fluctuating policies of governmental departments uninhibited by any limitations upon time of action, the value of federal oil and gas leases as a title basis for oil and gas development is greatly diminished if not practically destroyed. No prudent operator would be willing to accept the financial risks if he were subject to ouster because of some administrative decision based upon improper conduct of an assignor occurring at some distant time in the past. The Secretary of the Interior has no powers except those granted or those necessarily implied from granted powers. As “the guardian of the people of the United States over the public lands” it is his obligation to see that neither patents nor leases are procured by fraud. The courts have repeatedly held that he is without power to annul a patent once it has issued. That power is reserved to the courts. In the absence of some statutory provision giving him power to annul leases under the Mineral Leasing Act, that power also is reserved to the courts. Otherwise the new system created by the Mineral Leasing Act for the disposition of the mineral reserves found on the public lands fails of its purpose. Certainty of title is an elementary prerequisite for the sound development of any mineral resource. We find it unnecessary to explore the legislative history of the Mineral Leasing Act or of the amendments thereto, either proposed or enacted. Such of that history as has been called to our attention is without persuasive effect. Most significant is the fact that the 1960 amendments make no change in the pertinent provisions even though the question of administrative cancellation was presented and considered. As we conclude that the defendant officers and their superior, the Secretary of the Interior, are without statutory authority, either express or implied, to cancel or annul federal oil and gas leases by administrative proceedings taken after the issuance of such leases and because of any conduct of a lessee which preceded such issuance, we are not concerned with the contention that Pan American has failed to exhaust its administrative remedies. It cannot exhaust something which it does not have. Government counsel for the local federal officers further urge that the Secretary is indispensable because the action seeks to interfere with the obligation of the Secretary to protect the public domain against the encumbrance of fraudulently obtained oil and gas leases and, hence, will expend itself on the public domain and interfere with public administration in violation of one of the criteria established by Williams v. Fanning. The decree sought will not, and cannot, establish any right in Pan American to any interest in any public lands. It will not interfere with any administrative proceeding that is authorized by statute. It leaves the Secretary free to protect the public domain from the encumbrance of fraudulently procured leases by the institution of proper judicial proceedings in which ancillary relief pending determination may be obtained if warranted. The judicial remedy is adequate and available. The defendant officers contend that the complaint is without merit because there has been no enjoinable interference with any property right of Pan American and, until that occurs, Pan American has sustained no injury justifying injunctive relief. The answer is that the administrative proceeding for cancellation clouds Pan American’s title and, thus, has an adverse effect on the exploration for and the development of the oil and gas resources and on the marketability, not only of the leases but also of the production therefrom. There exists an actual controversy cognizable in a court of equity and injunction is an appropriate remedy. The defendant officers threaten by action which we hold to be in excess of their authority to cancel Pan American’s leases. If the threats are carried out the injury will be great. In such a situation the officers cannot claim immunity from the injunctive process. This is not a case involving administrative proceedings specifically provided by statute, nor is it a case involving supervisory powers of the Secretary-prior to the issuance of patent or lease. The decisions in McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 226 F.2d 35, and Seaton v. Texas Co., 103 U.S.App.D.C. 163, 256 F.2d 718, are not helpful. In the first, the authority of the Secretary-to cancel a lease in an administrative proceeding was not involved and the court ordered cancellation. In the second, the court avoided the question of the general power of the Secretary to cancel a lease after issuance and held that in the situation presented the cancellation “was not valid administrative action.” In a later decision, McKenna v. Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780, 784, certiorari denied 358 U.S. 835, 79 S.Ct. 57, 3 L.Ed.2d 71, the same circuit held that “a fair common denominator * * * of the conditions which will cause judicial repudiation of administrative action by the Secretary, is at least that he is plainly wrong.” As we see the case at bar, his subordinates were plainly wrong as they were acting in excess of their lawful authority. There is a suggestion in the brief presented by government counsel that the issuance of an injunction in this case will interfere with the power of the Secretary to conduct an investigation. No such result is intended. The Secretary has the unquestioned power to investigate. If the results of that investigation justify action for cancellation, that action must be brought in court and not before the agency which makes the investigation. If Congress desires administrative cancellation of federal oil and gas leases, it may, in the exercise of its constitutional authority over the public domain, so provide in appropriate legislation, but we have no such legislation before us. The judgment sustaining the motion to dismiss and dismissing the case is reversed and the cause is remanded for further proceedings consistent with this opinion. . 30 U.S.C.A. § 181 et seq. . The opinion of the trial court is reported at 181 F.Supp. 557. . West Coast Exploration Co. v. McKay, 93 U.S.App.D.C. 307, 213 F.2d 582, 596, certiorari denied 347 U.S. 989, 74 S.Ct. 850, 98 L.Ed. 1123. See also Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52 L.Ed. 899; Atchison, Topeka & Santa Fe R. Co. v. O’Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436; Philadelphia Co. v. Stimson, Secretary of War, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Waite et al. v. Macy et al., 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892; Santa Fe Pacific R. Co. v. Fall, Secretary of the Interior, 259 U.S. 197, 42 S.Ct. 406, 66 L.Ed. 896; and Work, Secretary of the Interior v. State of Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259. . Cf. Larson, War Assets Administrator and Surplus Property Administrator v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 703, 69 S.Ct. 1457, 93 L.Ed. 1628, rehearing denied 338 U.S. 840, 70 S.Ct. 31, 94 L.Ed. 514. . E. g. 3 Davis, Administrative Law Treatise, §§ 27.01-27.10 (1958); Hart and Wechsler, The Federal Courts and the Federal System, pp. 1177, 1189 (1953); 48 Calif.Law Rev. 98; and The Doctrine of Indispensable Parties as Applied in Review of Administrative Action, 103 U.Pa.Law Rev. 238. . Cf. Gart v. Cole, 2 Cir., 263 F.2d 244, 250, certiorari denied 359 U.S. 978, 79 S.Ct. 898, 3 L.Ed.2d 929. See also Homestake Mining Co. v. Mid-Continent Exploration Co., 10 Cir., 282 F.2d 787. . State of Colorado v. Toll, Superintendent of the Rocky Mountain National Park, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; Williams v. Fanning, Postmaster of Los Angeles, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95; Hynes, Regional Director, Fish and Wildlife Service v. Grimes Packing Co., 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; Shaughnessy, District Director of Immigration and Naturalization v. Pedreiro, supra. See Ceballos (y Arboleda) v. Shaughnessy, District Director, Immigration and Naturalization Service, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed.2d 583. . Warner Valley Stock Co. v. Smith, 165 U.S. 28, 17 S.Ct. 225, 41 L.Ed. 621; Gnerich et al. v. Rutter, Prohibition Director, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed. 1068; Webster v. Fall, Secretary of the Interior, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411; and Blackmar v. Guerre, Regional Manager, Veterans’ Administration, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. . See Williams v. Fanning Revisited, 54 Columbia Law Review 1128. . 332 U.S. 493, 68 S.Ct. 189, 92 L.Ed. 95. . The decisions in Ogden River Water Users’ Ass’n v. Weber Basin Water Conservancy, 10 Cir., 238 F.2d 936, and State of New Mexico v. Backer, 10 Cir., 199 F.2d 426, are not pertinent as they involved the doctrine of sovereign immunity. May v. Maurer, 10 Cir., 185 F.2d 475, was a case where the principal relief sought was an adjudication that •certain leased premises were not subT ject to rent control and the decision was that such relief could not be obtained without joining the superior and that the plaintiff had not exhausted the available ■administrative remedies. . The availability of Part 221 to obtain the cancellation of a federal oil and gas lease is questionable. Section 221.67 provides that the government may initiate contests for “any cause affecting the legality or validity of any entry or settlement or mining claim.” . Section 221.68 provides that government contests shall be governed by the rules regulating private contests, with exceptions not here pertinent. Section 221.53, relating to private contests, provides that the complaint must be filed in the land office which has jurisdiction over the land involved. . 332 U.S. 494, 68 S.Ct. 189, 92 L.Ed. 95. . 30 U.S.C.A. §§ 35-37, 16 Stat. 217, 17 Stat. 94. . See 4 Summers, Oil and Gas, § 869, p. 295. . 30 U.S.C.A. §§ 221, 223, 223a, 226 and 185, 49 Stat. 674. . West v. Work, 56 App.D.C. 191, 11 F.2d 828, 831, certiorari denied 271 U.S. 689, 46 S.Ct. 639, 70 L.Ed. 1153. . 30 U.S.C.A. § 184. . 30 U.S.C.A. § 188. . All leases involved in this litigation wore issued after that date. . 43 C.F.R. 192.161(c) (1954 Supp.). . Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 593, 18 S.Ct. 208, 42 L.Ed. 591; Moore v. Robbins, 90 U.S. 530, 533, 24 L.Ed. 848. . U.S.Const. Art. 4, § 3; Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791. . 30 U.S.C.A. § 188. . Suits to annul patents must be brought within six years from issuance. 43 U.S.C.A. § 1166. . Cf. Moore v. Robbins, supra, 96 U.S. at page 534. . Knight v. United States Land Ass’n, 142 U.S. 161, 181, 12 S.Ct. 258, 264, 35 L.Ed. 974. . Act of Sept. 2, 1960, P.L. 86-705, 30 U.S.C.A. §§ 181 et seq., 182, 184, 187a, 226, 226-1, 226-2, 226d, 226e, 241. . H.Rept. No. 1401, 86th Cong., 2d Sess., covering proposed amendments to the Mineral Leasing Act, contains the following: “A major committee amendment strikes out all of paragraphs (1) and (2) of subsection (h) of section 27, as amended by H.R. 10455, dealing with the cancellation, forfeiture, and compelled disposition of interests held in violation of the act, and related matters, and substitutes the present language of the law for that which was proposed in the bill. The committee recognizes that the meaning of this language is under current dispute. The plaintiffs in certain cases pending or recently pending in the U. S. District Court for the District of Wyoming have questioned the asserted authority of the Secretary of the Interior to cancel or forfeit oil and gas leases in an administrative proceeding. The committee believes that any legislation further fixing jurisdictional boundaries in this field between the judiciary and the executive should await the outcome of, and be based upon the experience gained through, the pending actions.” . See also Land, Chairman, United States Maritime Commission v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209. . Cf. Florida Lime & Avocado Growers, Inc. v. Jacobsen, Director of the Department of Agriculture, 362 U.S. 73, 85, 80 S.Ct. 568, 4 L.Ed.2d 568. . The brief for the officers does not dispute that the lands covered by the leases contain valuable oil and gas deposits and that some are presently producing oil and gas. . Philadelphia Co. v. Stimson, Secretary of War, supra, 223 U.S. at page 620, 32 S.Ct. at page 344. . Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. . Cf. United States ex rel. Roughton v. Ickes, 69 App.D.C. 324, 101 F.2d 248. . 256 F.2d 721.

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

TRIPLETT et al. v. LINE MATERIAL CO. No. 8105. Circuit Court of Appeals, Seventh Circuit. Feb. 8, 1943. Rehearing Denied March 22, 1943. John A. Dienner, Robert R. Lockwood, and Edward C. Grelle, all of Chicago, 111., for appellants. Charles W. Hills, Jr. and Charles F. Meroni, both of Chicago, 111., for appellee. Before MAJOR, MINTON, Circuit Judges, and LINDLEY, District Judge. LINDLEY, District Judge. Plaintiff corporation, owner of application of Triplett 758,372, filed December 30, 1934 and of that of Lindell 70,280, filed March 23, 1936, each for improvements in electrical fuses, and the applicants therein, appeal from a judgment entered in a proceeding under Section 4915, R.S., 35 U.S.C.A. § 63, adjudging each application void for want of patentability and dismissing the complaint for want of equity. They contend that the court unjustifiably exceeded its authority in redetermining the question of patentability and found the applications void; that the evidence supplied a rational basis for a finding only that the claims are patentable and that the court improperly found Lindell’s claims void on the premise that products made in accord with its teachings were on sale more than two years prior to his filing date. The Commissioner, as the result of an interference proceeding, refused patents upon both applications, awarding priority of invention to one Steinmayer, whose application was owned by defendant, and to whom the patent issued. The Commissioner held the claims patentable over the prior art but found that Steinmayer was the first inventor. Thereupon plaintiffs filed this suit, seeking judgment that they were entitled to receive patents for the inventions, as provided in the statute. That Act provides that where application for patent is denied, the applicant may have a remedy in equity wherein the court may adjudge that he is entitled to receive a patent. In its amended answer defendant not only pleaded priority of invention by Steinmayer but also asserted that the claims do not cover patentable subject matter. Plaintiffs contend that it was the duty of the court, under the language of Radtke Patents Corporation v. Coe, 74 App.D.C. 251, 122 F.2d 937, to determine only whether a “rational basis” existed for the Commissioner’s decision. Defendant contends, and the District Court held, that it was the province of the court, under Hill v. Wooster, 132 U.S. 693, 10 S.Ct. 228, 230, 33 L.Ed. 502, to determine first of all whether the applications disclose patentable inventions. This, we think, is correct. In Hill v. Wooster, supra, the court announced that, under the pertinent section of the Act of Congress, “no adjudication can be made in favor of the applicant, unless the alleged invention for which a patent is sought is a patentable invention. * * * A determination of that issue alone, in favor of the applicant, carrying with it, as it does, authority to the commissioner to issue a patent to him for the claims in interference, would necessarily give the sanction of the court to the patentability of the invention involved. * * * Neither the circuit court nor this court can overlook the question of patentability.” In other words, applicants, seeking relief under the statute, must present to the court evidence showing that they are entitled to receive a patent before they can have a judgment awarding such relief. If their claim and the evidence submitted disclose no patentable invention, obviously they are entitled to no relief. It is the proper function of the District Court and its duty to inquire into and determine whether the complaint is endowed with equity in this respect. Inasmuch as the District Court, properly following this rule, found that the applications disclosed no patentable invention, our duty is to look to the evidence to determine whether the conclusion is justified. The parties having agreed that the claim of Triplett known as Count I and that of Lindell known as Count 4 are typical of the several claims, they are reproduced in the footnote. Each applicant petitioned' for a patent for a replaceable fuse link, comprised of (1) a fuse tube (a container); (2) a relatively infusible terminal at one end of the tube for connection to one line terminal; (3) another line terminal at the other end; (4) fusible means connecting the two terminals; (5) a coil spring inside the tube, anchored at the lower end and arranged to “bias the terminals apart”; (6) a flexible conductor. Lindell added a washer near the bottom of the tube to be utilized as an anchor for the spring. Such fuse links are utilized in effectuating cut-out or arresting means to protect distribution transformers supplying residential lighting loads from overloads and short circuits. These transformers usually reduce the voltage of incoming current from 2300 volts to 110 volts for domestic purposes. The fuse link is interposed in the circuit to melt or blow out and thus break the circuit, in case of overload or short circuit. By the fusing of the “fusible means” connecting the two terminals of the link, the circuit is broken and further damage from the short circuit or overload avoided. The fuse should be built so as not to blow out except when necessary; otherwise it will interrupt the steady flow of current. And equally obviously, to prevent spreading damage, it should be so constructed as to blow out immediately in case of overload or short circuiting. Fuse links are old. They have been essential in efficient distribution and reduction of electric current ever since the latter became a household convenience. Those utilized have long embraced substantially every element included in the devices of the applications. Thus in all fuses there are terminals connected by a fusible substance. This elemental construction is of the essence of the utility of the fuse. When one considers the purpose of the device, the reasons for its efficiency, namely, the presence of a fusible element connecting the two terminals, it is obvious that utility and efficiency require that the terminals shall be of substantially relatively more nearly infusible material than the connecting fusible means, which the user contemplates will be destroyed by a blow-out. Equally within his contemplation, terminals and other parts will not, must not, be fused or destroyed. Hence they must be relatively less fusible. Plaintiffs claim that Triplett achieved invention in contribution of “a universal fuse link which was self-contained and had precision of operation built into it irrespective of the tube in which it was placed and without regard to the kind of mounting.” But in his claims no new elements are found. The terminals, the fusible means connecting them, bringing in and passing out the normal current, were all old in the art. And we think, too, the District Court properly concluded that the use of a spring inside the fuse tube was old. Triplett provided such a spring, anchoring it so as to place the terminal under tension, the purpose being to have it function so as to separate quickly the terminals of the link in case of fusing and thus prevent extension of damages from the overload or short circuit beyond the fused material. But the prior Kearney link included such a spring, serving the same purpose, in substantially the same manner. His spring was anchored, not by a washer, as Lindell prescribed, but by being hooked to the wall of the tube. Triplett himself described no special means of anchoring but Lindell suggested a washer to serve as an anchor, located near the bottom of the tube, supporting the entire base of the spring. Kearney employed no such base but fixed the end of the spring near the bottom of the tube by hooking it into a hole in the wall of the tube. Thus the spring was anchored at one point of its circumference instead of on its entire periphery. But this did not constitute invention. The change from hook to washer was the obvious expedient of a skilled mechanic and.effectuated no new function or utility. That applicants were familiar with Kearney’s teachings is apparent from a letter written by Lindell on October 6, 1938, in which, speaking of the interference then pending, he said that on September 19, 1933, he and Triplett knew about the Kearney device, “having a tension spring anchored at the other end of the tube” and he and Triplett, in their testimony, admitted knowledge of the construction prior to filing their applications. Apparently all that Triplett and Lindell did in this respect was to redesign the link disclosed in Ramsey 2,144,707, anchoring Kearney’s spring inside the tube as he did. No invention lay in what they specified. Plaintiffs contend that the applicants were the first to prescribe relatively infusible terminals but we think that if, in order to negative patentability it was necessary to have such prior disclosure, Ramsey supplied it. We are rather of the opinion that it is perfectly obvious to an electrical worker that, to prevent damage spreading when the fusible means fuses, it is essential that the terminals which the fusible means connects be of relative infusible character so that the force destroying the fusible means will not also destroy the terminals and that it was not invention to specify relatively less fusible material for the terminals. But if the suggestion was essentially inventive it had been taught by the prior art. Lindell in his application added nothing except the washer' or anchoring means of which we have spoken. He abandoned the anchoring hook and adopted an anchoring washer; this, we think, was not invention. We think both applicants did nothing more than utilize the construction of Ramsey, putting inside the tube the spring as taught by Kearney and substituting for Kearney’s hook Lindell’s washer. This improvement may have proved practical, desirable and popular, but, it seems to us, is clearly the» expedient of a skilled mechanic in the art. Plaintiffs contend that Lindell’s washer contributes a so-termed “non-cumulative feature”; but we find no such teaching in his claims. If it is any where connoted, or necessarily results from Lindell’s construction, we think the feature is disclosed in Steinmayer 1,952,635. In view of the facts mentioned and further evidence in the record which we do not deem it essential to refer to, the District Court properly held the claims embraced in the two applications not patentable. In view of our conclusions, it is unnecessary to discuss the issue of priority or that of invalidating sales. The judgment is affirmed. Triplett Count I. A replaceable fuse link for interconnecting a pair of line terminals comprising, a fuse tube, a first relatively infusible terminal at one end of said fuse tube for connection to one line terminal, a conductor including a second relatively infusible terminal and a flexible lead extending out of the other end of said fuse tube for connection to the other line terminal, fusible means interconnecting said terminals, said conductor being freely movable out of said fuse tube on blowing of said fusible means, and a coil spring inside said fuse tube and anchored at the other end thereof and arranged to bias said terminals apart. Lindell Count 4. A replaceable fuse link comprising a fuse tube, a terminal at one end of said tube, a conductor extending out of said fuse tube including a terminal and a flexible lead connected thereto, a fusible section interconnecting said terminals, a coil spring inside said fuse tube tensioning said fusible section and compressing said fuse tube, and means substantially uniformly distributing the stress of said spring as applied in compressing said fuse tube.

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

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

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

George NATKIN and Tillie Natkin, Plaintiffs-Appellants, v. The EXCHANGE NATIONAL BANK OF CHICAGO, Defendant-Appellee. No. 14801. United States Court of Appeals Seventh Circuit. March 2, 1965. Nathan T. Notkin, Chicago, 111., for appellants. Jack Joseph, Chicago, 111., for appellee. Before CASTLE, Acting Chief Judge, and KILEY and SWYGERT, Circuit Judges. CASTLE, Acting Chief Judge. Ben Notkin, George Natkin and Tillie Natkin 2**commenced this action in the District Court against the defendantappellee, the Exchange National Bank of Chicago. Jurisdiction is predicated on Section 27 of the Securities Exchange Act of 1934 (15 U.S.C.A. § 78aa) and 28 U.S.C.A. § 1331. The complaint alleges the bank made loans to Ben Notkin in violation of Regulation U issued by the Federal Reserve Board pursuant to Section 7 of the Securities Exchange Act (15 U.S.C.A. § 78g); that the loans were void under the provisions of Section 29(b) of the Act (15 U.S.C.A. § 78cc(b)); and that the bank sold all of the stocks pledged with it as collateral in connection with the loans. Plaintiff, Ben Notkin, sought recovery of $30,000, alleged to represent the value of certain of the stocks pledged as collateral. He also sought an order to restrain the bank from attempting to enforce collection of any deficiency on the loans. Plaintiffs, George and Tillie Nat-kin, seek the return of certain stocks Ben Notkin obtained from them and deposited as additional collateral, which also were sold by the bank, or $10,000, the alleged value of such stocks. The bank filed an answer which admits the existence of the loans but denies their invalidity and denies knowledge that the borrower intended to use the proceeds for the purchase of securities. Subsequent to the filing of the complaint Ben Notkin filed a voluntary petition in bankruptcy. His claim against the bank was settled by the trustee in bankruptcy. Releases were executed by both the bankrupt and the trustee with respect to the claim, without prejudice to the rights of the bank in the District Court action and without admission of any liability on the part of the bank. An order was entered dismissing the action as to the claim of Ben Notkin and his successor in interest, the trustee in bankruptcy. The bank then filed a motion for summary judgment with respect to the claim of George and Tillie Natkin, the remaining plaintiffs. The motion was heard on the pleadings, a stipulation as to certain facts, and deposition testimony. The District Court found that no material issue of fact existed with respect to the issues presented by the motion and concluded, among other things, that the plaintiffs are not within the class of persons afforded protection by Section 29(b) of the Act and that no cause of action was state4 with respect to their claim. The court granted the defendant’s motion for summary judgment and entered judgment dismissing the action at plaintiffs’ costs. The plaintiffs appealed. The record discloses that the stocks which plaintiffs delivered to Ben Notkin in order that he might deposit them as additional collateral to secure his loans from the bank were endorsed in blank by the plaintiffs to make them readily negotiable in the event the bank chose to sell such collateral. There is nothing to indicate the bank in any manner participated in the arrangement between the plaintiffs and Ben Notkin by which the latter secured the stocks from the plaintiffs. George Natkin testified by deposition that the plaintiffs’ stock was loaned to Ben Notkin. It is conceded there is no contractual relationship between the bank and the plaintiffs and that the plaintiffs are strangers to the loan transactions between Ben Notkin and the bank. No privity of contract exists between the plaintiffs and the bank. But plaintiffs predicate their claim of “wrongful conversion” of their stocks— by the bank’s sale of such collateral — on the provisions of Section 29(b) of the Act. That section (15 U.S.C.A. § 78cc) insofar as it is here pertinent, reads as follows: “(b) Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, and every contract * * * the performance of which involves the violation of, * * * any provision of this chapter or any rule or regulation thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract, * * Although a violation Such as here alleged operates to void the contract rights of the party in violation (Cf. Bankers Life and Casualty Company v. Bellanca Corporation, 7 Cir., 288 F.2d 784, 787) there is nothing in the section which ,pp-erates to create any right or cause of action against the party in violation in favor of a stranger to the contract. We agree with the District Court that on the admitted facts the statute, as a matter of law, does not entitle plaintiffs to any recovery from the bank. The judgment order appealed from is affirmed. Affirmed. . George and Tillie Natkin are husband and wife, and George is a brother to Ben Notkin. . Regulation U (12 CFR 221) prescribed the respective limitations, during the period involved, (10%, and later 30%, of eurrent market value of stock pledged as collateral) in excess of which banks were prohibited from making a loan for the purpose of purchasing or carrying stock on a national securities exchange. . Hereinafter referred to as the “Act”. . Hereinafter referred to as “plaintiffs”.

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

NORTHERN PAC. RY. CO. v. STANDARD COAL CO. Circuit Court of Appeals, Eighth Circuit. December 5, 1927. No. 7689. Appeal and error <®=»850(1) — In case tried to court, appellate court cannot re-examine any question of fact entering into general judgment (28 USCA §§ 773, 875). On review of judgment in a case tried to the court by stipulation, pursuant to Rev. St. §§ 649, 700 (28 USCA §§ 773, 875; Comp. St. §§ 1587, 1668), where there were no requests for or findings of facts or declarations of law, the appellate court cannot re-examine any question of fact entering into the general judgment. In Error to the District Court of tbe United States for’tbe District of Utab; Tillman D. Johnson, Judge. Action at law by tbe Northern Pacific Railway Company against the Standard Coal Company. Judgment for defendant, and plaintiff brings error. Affirmed. D. R. Frost, of St. Paul, Minn. (B. W. Seandrett, of St, Paul, Minn., and Bagley, Judd & Ray, of Salt Lake City, Utab, on the brief), for plaintiff in error. M. E. Wilson, of Salt Lake City, Utab (A. R. Barnes, of Salt Lake City, Utab, on tbe brief), for defendant in error. Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges. SCOTT, District Judge. Plaintiff, in error, tbe Northern Pacific Railway Company, brought this action against the Standard Coal Company, defendant in error, to recover a difference in freight on ten carloads of coal from Standardville, Utab, to Irvin, Wash. Briefly stated, the facts alleged were that the defendant in error over a period from May 4 to May 9, 1921, shipped ten cars of coal to the International Portland Cement Company, by mistake billing them to Irwin, Wash., intending, however, to bill to Irvin, Wash. Standardville maintains no station, and billing of cars was effected at Helper, one station beyond, on tbe Denver & -Rio Grande Railway. Shipments to Irvin, Wash., would in due course move-Denver & Rio Grande north to Ogden, via Oregon Short Line beyond to Huntington, via Oregon & Washington Railroad & Navigation Company beyond to Spokane, and via Northern Pacific to Irvin. In due course shipments would move from Standardville to Irwin, Wash., Denver & Rio Grande Railway, Standardville to Ogden, via Oregon Short Line beyond to Huntington, via Oregon & Washington Railroad & Navigation Company through Wallula Junction to Yakima, and Yakima to Irwin via Yakima Valley & Texas, a short electric line. The Northern Pacific Railway Company has a line physically connected with the Oregon & Washington Railroad & Navigation Compaq ny’s line at Yakima, running direct to Irvin through Spokane. Cars billed from Standardville either to Irwin or Irvin would pass through Wallula Junction. Before the mistake in the billing was discovered, nine of the ten cars had moved to Yakima; the tenthnar had reached Wallula Junction. Notice was then given to the Denver & Rio Grande Railway Company and an order to divert the nine ears to Irvin. Apparently the Denver & Rio Grande Railway Company ordered the nine cars back-hauled to Yakima, through Wallula Junction, and on over the Oregon & Washington Railroad & Navigation Company’s line to Spokane, and Northern'Pacific beyond to Irvin. On arriving at destination the Northern Pacific Company collected the freight, and in so doing collected the usual rate, Standardville to Irvin, ignoring the back-haul to Yakima to Wallula Junction. The agreed facts show the legal rate, Standardville to Irvin, Wash., per ton on a car of coal, is $5.62%; Standardville to Yakima, $5.75; Yakima to Irvin, $7.60; there- was a rate then in force, via the Northern Pacific, Yakima to Irvin, of $3.50 per ton. The cause of action alleged is based upon the rate from Standardville to Yakima and from Yakima to Irvin. The evidence shows that the market value of the coal laid down at. Irvin, Wash., was $7.47% per ton. It will therefore be observed that diverting the shipments on a back-haul to Wallula Junction and thence to Irvin resulted in an entire absorption of the value of the coal, whereas it could have been sent forward over the Northern Pacific on the $3.50 rate. The District Court held that the diverting line was not justified in selecting the route via Wallula Junction and entered a judgment of dismissal. We are asked to review the case upon the following assignments: (1) The court erred in sustaining the defendant’s motion to dismiss. (2) The court erred in entering judgment of dismissal of plaintiff’s complaint. (3) The said judgment is against the law. (4) The said judgment is against the evidence. Were we at liberty to dispose of the case on its merits, it would be difficult to see wherein the trial court committed any error in the ruling and decision complained of. However, we are mot with an obstacle which prevents our passing upon the assignment presented. The case was tried to the court; a jury having been waived by stipulation in writing, duly filed. Much of the record in the case was made up by stipulated evidential facts, and the balance by the testimony of witnesses. At the close of the plaintiff’s evidence, and after the plaintiff had rested, defendant’s counsel announced that he had certain motions to present, and thereupon he presented six motions : (1) A motion to dismiss for want of jurisdiction in the court, for that, inasmuch as the coal could have been shipped from Yakima to Irvin at $3.50 per ton, that charge should have been adopted, and therefore the cause of action roso out of intrastate shipment. (2) A motion to strike all of the evidence introduced to show authority of one Powers to give directions, instructions, etc. (3) A motion to strike out all the testimony of the witness Good. (4) A motion to1 strike out all of the testimony of witness Taylor. (5) A motion that the court make a certain declaration of law, not material to state here. (6) That the court make a certain declaration of law, not material to be stated. These motions were argued, and at the conclusion of the argument the court made an extended statement, concluding with the announcement that “I am therefore constrained to grant the motion of the defendant at this time to dismiss the action.” Plaintiff in error then requested an exception, and counsel for the defendant in error made a request, and thereafter on the same day a general judgment of dismissal was entered. Plaintiff in error 'made no requests for findings of fact or declarations of law, and none were made by the court. The finding and judgment of the court was general. Under the rule that has long been well settled by the decisions construing sections 649 and 700 of the Revised Statutes of the United States, being United States Code Annotated, title 28, § 773, and United States Code Annotated, title 28, § 875 (Comp. St. §§ 1587, 1668), we cannot re-examine any question of fact entered into a general finding and judgment of the trial court, where a jury is waived. It is urged that this case falls within an exception apparently recognized by this court. Myer & Chapman State Bank v. First National Bank of Cody, 248 F. 679. In that ease it was said: I “The ease was suddenly terminated on the court’s own motion, without any reason, so far as the record shows, for either party to anticipate such a termination, and without any opportunity to counsel to present requests, and judgment was immediately entered upon the same day,” etc. In the present case both counsel and presiding judge were exceedingly deliberate in making up the record, and the record indicates that the trial judge was markedly solicitous in his endeavors to have the record made up satisfactorily to counsel. There would be no ground whatever for the conclusion that counsel for plaintiff in error had been deprived of opportunity to make any requests which he desired. In these circumstances, the record in this caso discloses nothing which this court can review. The cause is therefore 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.

UNITED STATES of America, Plaintiff-Appellant, v. STATE OF MISSOURI et al., Defendants-Appellees, Berkeley School District et al., Defendants-Appellees, Kinloch School District et al., Defendants-Appellees, Ferguson Reorganized School District R II, et al., Defendants-Appellees. No. 75-1434. United States Court of Appeals, Eighth Circuit. Submitted Sept. 12, 1975. Decided Oct. 2, 1975. John C. Hoyle, Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellant. Norman C. Parker, St. Louis, Mo., and Marvin S. Wood, Clayton, Mo., for Kin-loch School District. Before MATTHES, Senior Circuit Judge, HEANEY and STEPHENSON, Circuit Judges. PER CURIAM. The sole issue in this appeal is whether the district court on our remand (515 F.2d 1365) erred in directing that “[s]tudent and faculty desegregation required by the judgment of this Court of January 9, 1975 [388 F.Supp. 1058] shall be delayed until the commencement of the 1976-1977 school year, on or about September 1, 1976.” We remand with instructions. This litigation originated in September 1971 with the filing of a complaint by the United States of America pursuant to Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c-6, and the Four-_ teenth Amendment charging that defendants had created and maintained the Kinloch School District as an all-black district, denying equal educational opportunity to its students and thereby denying them equal protection of the law. In August 1973 the district court, in a decision reported at 363 F.Supp. 739, found that “the cumulative effect of the actions of the state and local defendants has been the creation, operation, support, and general supervision by the State of Missouri of a small school district which is unconstitutionally segregated and whose students are denied an equal educational opportunity.” 363 F.Supp. at 749. The court ordered “the state and other defendants to develop and implement a plan which will ‘achieve the greatest possible degree of actual desegregation, taking into account the practicalities of that situation.’ ” 363 F.Supp. at 750 (citations omitted). After considering proposed desegregation plans submitted by the parties, the court found that a three-district plan submitted by the State and St. Louis County Boards of Education “is the least disruptive alternative which is educationally sound, administratively feasible, and which promises to achieve at least the minimum amount of desegregation that is constitutionally required.” 388 F.Supp. at 1058—59. The district court’s judgment provided, among other things, that the Kinloch and Berkeley school districts be annexed to the Ferguson reorganized school district as of February 1, 1975, and ordered that student and faculty desegregation be implemented at the beginning of the 1975— 76 school year. 388 F.Supp. at 1061. On May 14, 1975, this court en banc, in an opinion reported at 515 F.2d 1365, affirmed the district court’s decision “except with respect to the maximum tax rate which shall be no higher than that of the annexing district, which is $5.38 per hundred. Upon remand, the court is empowered to fix new dates for accomplishment of the annexation and make other adjustments in accordance therewith.” 515 F.2d at 1373. On remand the district court, in an order dated June 7, 1975, directed that student and faculty desegregation required by its previous judgment be delayed until the commencement of the 1976— 77 school year. On June 13, 1975, the United States filed notice of appeal and moved for summary reversal of the district court insofar as that order delayed student and faculty desegregation from the beginning of the 1975 — 76 school year until the beginning of the 1976-77 school year. We denied the government’s motion for summary reversal but established an expedited briefing schedule and directed the parties to include in their briefs a discussion of the following: “Justification (or lack thereof) for (1) the delay in integration of students, (2) thé delay in integration of faculty, and (3) the immediate increase in the tax rate in the district without significant integration of students and faculty and other benefits related thereto.” The United States contends that no extraordinary circumstances that could justify delay in implementing desegregation have been shown in this case and that further delay is no longer constitutionally permissible. Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969); Dowell v. Board of Education, 396 U.S. 269, 90 S.Ct. 415, 24 L.Ed.2d 414 (1969); Christian v. Board of Education, 440 F.2d 608 (8th Cir. 1971). The government urges that we reverse that part of the order which delays implementation of effective desegregation until the beginning of the 1976 — 77 school year and that we direct that implementation of the desegregation plan be required no later than the beginning of the second semester of the 1975 — 76 school year. Appellees, Ferguson Reorganized School District R II and Berkeley School District, urge that we affirm the district court’s order of June 7, 1975. They contend that (1) the order is in full compliance with our opinion and mandate; (2) there is no delay in carrying out the district court’s order of annexation as speedily as the circumstances permit; and (3) the Equal Educational Opportunity Act of 1974 prohibits transportation of students during the academic year 1975 — 76 and then only after all appeals have been exhausted. We are persuaded that the representations made by appellees with respect to the steps that have been taken and that are being taken to implement fully the desegregation plan should govern our present action herein. Appellees point out that this is not a single-district case; there are many more complications involved in the amalgamation of three separate heretofore autonomous districts. Further, the district court acted promptly upon receipt of our mandate: (1) By ordering the immediate annexation of Berkeley School District and Kinloch School District by the Ferguson Reorganized School District R II; (2) Berkeley and Kinloch were directed to deliver all property, records, books and papers and transfer all funds to the reorganized district by June 30, 1975; (3) Berkeley and Kinloch were prohibited from hiring any new employees or entering into any new contracts or obligations (except with respect to further appeals they might elect to take); (4) Designation of new school board members was to be reported to the court on or before June 30, 1975; (5) The 1975 school tax levy was set at a rate no higher than $5.38; (6) Administration of the reorganized district in 1975 — 76 was directed to include the present superintendent of Ferguson, with the superintendents of Berkeley and Kinloch serving as assistant superintendents; (7) Defendants were ordered to commence immediately all actions necessary to plan for successful student and faculty desegregation, including the establishment of a biracial committee pursuant to the provisions of the Revised Plan; the establishment of in-service training programs to prepare administrators, teachers, board members, students and the community for desegregation; the implementation of the community education requirements of the revised plan; the development of non-discriminatory regulations and procedures concerning student discipline; and the development of nonracial objective faculty evaluation criteria, required by Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970); further, that the biracial advisory committee shall actively participate in these efforts and shall be assigned such other duties by the school board as may be necessary to prepare for effective desegregation; (8) The Court retained jurisdiction to insure effective implementation of desegregation and to enter such further orders from time to time as it deemed necessary. During the course of oral argument, counsel for the Ferguson Reorganized School District R II advised us that since entry of the district court’s order of June 7, 1975, the following has been accomplished: (1) The annexation has been completed as directed — the new boundaries were fixed; (2) As of July 1, 1975, the new school board was organized as directed, with one member each from Kinloch and Berkeley, and it is functioning; (3) Additional buses required (17) have been ordered; (4) The biracial committee has been appointed, confirmed and ratified by the district' judge; (5) The administrative staff has already been completely merged; (6) Various programs formerly not available to Kinloch are open to them now; i. e., audio-visual presentations, swimming classes, and preschool courses; (7) Teacher orientation programs are in the process of being carried out; (8) Student orientation programs are planned for next semester; (9) Four new teachers have been assigned to Kinloch commencing with the present 1975-76 term, and the services of some 20 curriculum consultants have been made available; (10) Every reasonable effort is being made to bring the educational program in Kinloch up to the level in Berkeley and Ferguson — the money being spent in Kinloch this year will be several hundred thousand dollars more than Kinloch had in its budget last year; (11) The school board and other officials concerned recognize they must plan now in order to make desegregation completely effective by the beginning of the 1976-77 school year; (12) The order of January 9, 1975, required the school authorities to make a progress report on or before October 15, 1975, with respect to the accomplishment of desegregation. This report, although formerly geared to desegregation of students and teachers beginning with the 1975— 76 school year, will now cover the steps that have been taken to raise immediately the level of the educational program at Kinloch as well as accomplish the complete desegregation of the reorganized district commencing with the beginning of the school year 1976-77. It will include, among other things, the matters mentioned above. We conclude that this court should refrain from taking any further action in this case pending the filing of the October 15, 1975, progress report by the reorganized school district. The district court shall grant all parties a reasonable length of time in which to respond to the report, hold hearings if necessary, and make such further orders deemed appropriate to equalizing the level of the educational program at Kin-loch and accomplishing complete student and faculty desegregation commencing with the beginning of the school year 1976— 77. The district court, in order to insure that there is no delay in the full and timely implementation of the desegregation plan, is directed to require additional periodic reports prior to June 1, 1976. Remanded for further action consistent with this opinion. . The government also points out that it is difficult for it to respond to this court’s inquiries concerning the justification for delay in integration of students and faculty and the immediate increase in the tax rate because the district court without explanation delayed desegregation for one year. No hearings were held or evidence taken regarding the need for delay in implementing the desegregation ordered in January 1975. Appellees respond that although no formal hearings were held, extensive conferences were held, attended by government counsel and all other parties; further, that the only conduct on the part of the government indicating a negative attitude toward the order was at the time it was signed when counsel for the government indicated he could not bind the Department of Justice and may have added, “We may appeal.” Government counsel maintains that he made known the government’s view that the plan ought to be implemented with the beginning of the fall (1975-76) term. . Under explicit holdings of the Supreme Court, it is the obligation of every school district to terminate dual school systems at once. Delays pending appeals, absent extraordinary circumstances, will not be tolerated. Alexander v. Holmes County Board of Education, 390 U.S. 19, 96 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 496, 24 L.Ed.2d 461 (1969). Nothing in the Equal Educational Opportunity Act of 1974, 20 U.S.C. § 1701 et seq., prohibits full and complete implementation of the desegregation plan by the beginning of the academic year 1976-77. See Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Drummond v. Acree, 409 U.S. 1228, 93 S.Ct. 18, 34 L.Ed.2d 33 (1972) (Powell, J., in chambers).

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

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

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

Cocheyse J. GRIFFIN et al., Appellants and Cross-Appellees, v. BOARD OF SUPERVISORS OF PRINCE EDWARD COUNTY and J. W. Wilson, Jr., Treasurer of Prince Edward County, State Board of Education of the Commonwealth of Virginia and Woodrow W. Wilkerson, Superintendent of Public Instruction of the Commonwealth of Virginia and County School Board of Prince Edward County, Virginia, and T. J. McIlwaine, Division Superintendent of Schools of said County, Appellees and Cross-Appellants. No. 8837. United States Court of Appeals Fourth Circuit. Argued Jan. 9, 1963. Decided Aug. 12, 1963. J. Spencer Bell, Circuit Judge, dissented. Robert L. Carter, New York City (S. W. Tucker, Henry L. Marsh, III, Richmond, Va., Barbara A. Morris, New York City, Frank D. Reeves, Washington, D.C., Otto L. Tucker, Alexandria, Va., on brief), for appellants and cross-appellees. Burke Marshall, Asst. Atty. Gen. (St. John Barrett, Harold H. Greene and Alan G. Marer, Attys., Dept. of Justice, on brief), for the United States, as amicus curiae. Collins Denny, Jr., Richmond, Va. (John F. Kay, Jr., Richmond, Va., C. F. Hicks, Gloucester, Va., Denny, Valentine & Davenport, Richmond, Va., and DeHardit, Martin & Hicks, Gloucester, Va., on brief), for appellees and cross-appellants County School Board of Prince Edward County and T. J. McIlwaine, Division Superintendent of Schools of said County. J. Segar Gravatt, Blackstone, Va., Sp. Counsel for Board of Supervisors of Prince Edward County (Frank Nat Watkins, Commonwealth’s Atty. of Prince Edward County, on brief), for appellee and cross-appellant Board of Supervisors of Prince Edward County. R. D. McIlwaine, III, Asst. Atty. Gen. of Virginia, and Frederick T. Gray, Sp. Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellees and cross-appellants State Board of Education and Superintendent of Public Instruction of Commonwealth of Virginia. Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges. HAYNSWORTH, Circuit Judge. Transmuted, this old case, in its new flesh and pregnant with questions, comes again before us. As Davis et al. v. County School Board of Prince Edward et al., D.C., 103 F.Supp. 337, it began in 1951 as a suit to effect the desegregation of the public schools maintained by Prince Edward County, Virginia. It was one of the four school cases decided by the Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. As Allen et al. v. County School Board of Prince Edward County, Virginia et al., the case was again before this Court in 1957 and, still again, in 1959 In our opinion filed in May 1959, when this case was last here, we directed the entry of an injunction requiring the then defendants to receive and consider, on a nondiscriminatory basis, applications by Negro pupils for enrollment in high school for the school term beginning in September 1959. We also directed the entry of an order requiring the School Board to make plans for the elimination of discrimination in the admission of pupils to the elementary schools at the earliest practicable date. On remand to the District Court, no order was entered until April 22, 1960, when the District Court entered a formal order requiring the immediate elimination of discrimination in the admission of Negro applicants to high schools and the formulation of plans for the elimination of discrimination in the admission of applicants to elementary schools. Meanwhile, however, all public schools in Prince Edward County had been closed. During the summer of 1959, the Board of Supervisors of Prince Edward County, though it had received from the School Board budgets and estimates of the cost of operating the schools for the 1959-1960 school year, did not levy taxes or appropriate funds for the operation of the schools during that year. Though certain funds have come into the hands of the School Board, out of which it has been able to meet certain maintenance and insurance expenses and debt curtailment, it has received no funds with which it could operate the schools, for, annually, the Board of Supervisors has failed, or declined, to levy taxes or appropriate funds for the operation of the schools. In September 1960, the present plaintiffs obtained leave to file a supplemental complaint, which was supplanted by an amended supplemental complaint filed in April 1961. By these supplemental pleadings, the County Board of Supervisors, the State Board of Education and the State Superintendent of Education were brought in as additional defendants. By the amended supplemental complaint, the plaintiffs sought an order requiring the defendants to operate an efficient system of free public schools in Prince Edward County, forbidding tuition grants to pupils attending private schools practicing segregation, forbidding tax credits to taxpayers for contributions to private schools practicing segregation, and forbidding a conveyance or lease of any property of the School Board of Prince Edward County to any private organization. The District Court entered an injunction against payment of tuition grants to pupils attending the schools operated by the Prince Edward School Foundation and against the allowance of tax credits by Prince Edward County on account of contributions to that Foundation. Initially, it abstained from deciding the questions of state law upon which the reopening of the free public schools depended, but, after the plaintiffs had aborted the effort to have the relevant questions decided by the state courts, the District Court undertook to decide them itself. It ordered the schools reopened, but postponed the effectiveness of that order pending this appeal. There was no evidence that anyone had any idea the school buildings and property owned by the School Board would be sold or leased, and no order was entered affecting their disposition. For the District Court to get to the merits, it had to bypass a number of preliminary questions, including the very troublesome question arising under the Eleventh Amendment, all of which are brought up before us. On the merits of each of the three main issues, the parties advanced innumerable alternate offenses and defenses, but it is obvious that the answer on the merits, in one instance exclusively and in other instances largely, rests upon interpretations of state law. It is also apparent that a proceeding in the state courts will avoid most of the technical procedural difficulties which must be disposed of before the merits can be determined in this action. Under these circumstances, we think the District Court properly decided, in the first instance, that it should abstain from deciding the merits of the principal issue until the relevant questions of state law had been decided by the state courts. We think it should have adhered to its abstention when resolution of the state questions by state courts was delayed because the plaintiffs, themselves, chose to withdraw them from state court consideration. We think too that abstention on the other two issues, where the answers are so closely related to the principal issue, was the proper course. Insofar as there are federal questions present which are independent of state law, as will presently appear, we conclude that the plaintiffs have shown no ground for relief, so that abstention is not inappropriate. In 1959, after the Board of Supervisors of Prince Edward County failed to levy taxes for the operation of the schools during the school year 1959-1960, a corporation known as Prince Edward School Foundation was organized for the purpose of operating private schools in the county. It was launched by private contributions of $334,712.22. With the receipt of tuition charges and continuing private contributions, it has successfully operated primary and secondary schools in Prince Edward County which are attended solely by white pupils. It has used none of the facilities of the School Board. Until the District Judge enjoined their payment, pupils attending schools of the Prince Edward School Foundation, generally, received tuition grants paid jointly by Virginia and Prince Edward County, which approached but did not equal the tuition charges they had to pay. Negro citizens of Prince Edward County at first made no effort to provide schools for their children. They declined proffered assistance in such an undertaking. Some of their children obtained admission to public schools in other counties of Virginia and, since 1960, obtained, or were eligible for, tuition grants when they did so. The great majority of Negro children, however, for a time, went with no schooling whatever. Later, certain “training schools” were established and a substantial number of Negro pupils, but far from all, have attended those training schools. On the principal issue, the question whether the plaintiffs have a judicially enforceable right to have free public schools operated in Prince Edward County, the plaintiffs contend that the closure of the schools, taken either alone or in conjunction with the subsequent formation of the Prince Edward School Foundation and its operation of private schools for white pupils only, was the kind of “evasive scheme” for the perpetuation of segregation in publicly operated schools which was condemned in Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5. The United States, as amicus curiae advances a different principle, contending that there is a denial of the Fourteenth Amendment’s guarantee of equal protection of the laws when the Commonwealth of Virginia suffers the schools of Prince Edward County to re-, main closed, while schools elsewhere in the state are operated. As to the plaintiffs’ contention, it may be summarily dismissed insofar as it is viewed as a contention that the Fourteenth Amendment requires every state and every school district in every state to operate free public schools in which pupils of all races shall receive instruction. The negative application of the Fourteenth Amendment is too. well settled for argument. It prohibits discrimination by a state, or one of its subdivisions, against a pupil because of his race, but there is nothing in the Fourteenth Amendment which requires a state, or any of its political subdivisions with freedom to decide for itself, to provide schooling for any of its citizens. Schools that are operated must be made available to all citizens without regard to race, but what public schools a state provides is not the subject of constitutional command. The plaintiffs’ theory may also be summarily dismissed insofar as it is viewed as a contention that the closure of the schools was a violation of the order of the District Court entered in compliance with the direction of this Court. The injunctive order, entered when the School Board and its Division Superintendent were the only defendants, required them to abandon their racially discriminatory practices. Without funds, they have been powerless to operate schools, but, even if they had procured the closure of the schools, they would not have violated the order for they abandoned discriminatory admission practices when they closed all schools as fully as if they had continued to operate schools, but without discrimination. The impact of abandonment of a system of public schools falls more heavily upon the poor than upon the rich. Even with the assistance of tuition grants, private education of children requires expenditure of some money and effort by their parents. One may suggest repetition of the often repeated statement of Anatole France, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” That the poor are more likely to steal bread than the rich or the banker more likely to emr bezzle than the poor man, who is not entrusted with the safekeeping of the moneys of others, does not mean that the laws proscribing thefts and embezzlements are in conflict with the equal protection provision of the Fourteenth Amendment. Similarly, when there is a total cessation of operation of an independent school system, there is no denial of equal protection of the laws, though the resort of the poor man to an adequate substitute may be more difficult and though the result may be the absence of integrated classrooms in the locality. This we held in a different context in Tonkins v. City of Greensboro, 4 Cir., 276 F.2d 890, affirming D.C., 162 F.Supp. 549. Faced with the necessity of desegregating the swimming pools it owned, the City of Greensboro, North Carolina, chose instead to sell them. Upon findings that the sale of the pool, which the City had theretofore reserved for use by white people only, was bona fide, it was held that there had been no denial of the constitutional rights of the Negro plaintiffs, though the pool was thereafter operated on a segregated basis by its private owners. Similarly, when a state park was closed dui'ing pendency of an action to compel the state to permit its use by Negroes on a nondiseriminatory basis, we held that closure of the park mooted the case requiring its dismissal. Other courts have clearly held that a municipality which had been ordered to desegregate facilities which it had operated, may abandon the facilities without violating the injunctive order or the rights of the Negro plaintiffs. The only limitation of the principle is that a municipality may not escape its obligations to see that the public facilities it owns and operates are open to everyone on a nondiseriminatory basis by an incomplete or limited withdrawal from the operation of them. If the municipality reserves rights to itself in disposing of facilities it formerly owned and operated, subsequent operation of those facilities may still be “state action.” Nothing to the contrary is to be found in James v. Almond. There, the Court had ordered the admission of seventeen Negro pupils into six of Norfolk’s schools theretofore attended only by white pupils. Under Virginia’s “Massive Resistance Laws,” the Governor of Virginia thereupon seized the six schools, removed them from Norfolk’s school system and closed them. All other schools in Norfolk and elsewhere in Virginia remained open. It was held, of course, that the statutes under which the Governor acted were unconstitutional, for Virginia’s requirement that all desegregated schools be closed while segregated schools remained open was a denial of equal protection of the laws. There was no suggestion that Virginia might not withdraw completely from the operation of schools or that any autonomous subdivision operating an independent school system might not do so. The decision in Hall v. St. Helena Parish School Board is not a departure from the principle. There, it appeared that, confronted with court orders to desegregate schools in certain parishes in Louisiana, the Governor of that State called an extraordinary session of the Legislature, which enacted a number of statutes designed to frustrate enforcement of the court’s orders. One of the statutes provided for the closure of all schools of a parish upon a majority vote of the parishioners. It was accompanied by other statutes providing for the transfer of closed schools to private persons or groups, providing for educational co-operatives and regulating their operations, providing tuition grants payable directly to the school and not solely to the pupils and their parents, providing for general supervision of the “private schools” by the official state and local school boards, and providing, at state expense, school lunches and transportation for pupils attending the “private schools.” Construing all these statutes together, as it was required to do, the Court, with abundant reason, concluded that the statutes did not contemplate an abandonment of state operation of the schools but merely a formal conversion of them with the expectation that the schools would continue to be operated at the expense of the state and subject to its controls. Desegregation orders may not be avoided by such schemes, but there is nothing in the Hall case which suggests that Louisiana might not have withdrawn completely from the school business. It was only because it had not withdrawn that the statutes which composed its evasive scheme of avoidance were struck down. The plaintiffs largely content themselves with assertions that closure of the schools was motivated by the filing of our opinion in May 1959, from which it was apparent that the District Court would be required to enter a desegregation order. They emphasize a resolution adopted in 1956 by a predecessor Board of Supervisors expressing an intention to levy no tax and appropriate no funds for the operation of desegregated schools. More broadly, they contend that closure of the schools, with the effect of avoiding the operation of integrated schools, is a violation of the Fourteenth Amendment or of the injunctive order. Facially, what we have said will dispose of the plaintiffs’ contention, but the matter does not necessarily end there. As we have seen, if Virginia or Prince Edward County can be said to be still operating schools through the Prince Edward School Foundation, then the principles of Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, would require a remedial order. If Prince Edward County has not completely withdrawn from the school business, then it cannot close some schools while it continues to operate others on a segregated basis. The plaintiffs do not contend that Prince Edward County or Virginia had a hand in the formation of the Prince Edward School Foundation. There is no suggestion that any agency, or official, of Virginia, or of Prince Edward County, has any authority to supervise the operation of the schools of the Prince Edward School Foundation, except insofar as Virginia exercises a general police supervision over all private schools and except that Virginia accredited the schools of the Foundation when they met the requirements applicable to all private schools. Indeed, during the first year of operation, the schools of the Foundation appear to have been as independent of governmental authority as any sectarian or nonsectarian private school in Virginia. Beginning with the school year 1960-1961, pupils attending schools of the Foundation did receive tuition grants. One of Virginia’s statutes providing for the tuition grants authorized participation by the counties. If a particular county does not participate in the tuition grant program, the state will pay the maximum allowable grant but will deduct a portion of its payment from other state funds distributed for purposes unrelated to schools to the nonparticipating county. It was apparently for that reason that in 1960 the Board of Supervisors of Prince Edward County provided for tuition grants which would take the place of a portion of the state grant but would not supplement the funds otherwise available to the pupil. In its effect upon Prince Edward County, its participation in the state-wide program of tuition grants amounted to no more than taking dollars from one of its pockets and putting them into another. As for pupils who were residents of Prince Edward County attending schools of Prince Edward Foundation, or any private school, or a public school outside of the county, they got no more by reason of the county’s participation in the program. In 1960, the Board of Supervisors of Prince Edward County also adopted an ordinance providing for credits to taxpayers, not exceeding twenty-five per cent of the total tax otherwise due, for contributions to non sectarian schools not operated for profit located in Prince Edward County, or to be established and operated in that county during the ensuing year. During the school year 1960-1961, credits aggregating $56,866.22 were allowed by Prince Edward County on account of contributions made to the Foundation. The allowance of such tax credits appears to be an indirect method of channeling public funds to the Foundation. They are very unlike Virginia’s program of tuition grants to pupils which has a lengthy history. The allowance of such tax credits makes uncertain the completeness of the County’s withdrawal from the school business. It might lead to a contention that exclusion of Negroes by schools of the Foundation is county action. Their allowance, however, during the second of the four years that the Foundation has operated its schools does not require a present finding on this record that the County is still in the school business, and that the acts of the Foundation are its acts. Bearing in mind the fact that the Foundation established and operated its schools without utilization of public facilities and, during the first year, without any direct or indirect assistance of public funds, and the clear showing of the independence of the Foundation from the direction and control of the defendants, the allowance of the tax credits is at least equivocal. Inferences of power to influence, if not to control, may follow such encouragement of contributions, though the allowance of income tax deductions by the State and United States for contributions to religious and charitable organizations is not thought to make state or nation a participant in the affairs and operations of the beneficiaries of the contributions. Indeed, their allowance has come in recognition of public interest in encouragement of private contributions to religious, educational and charitable institutions and organizations. Here, however, the allowance of the tax credit comes in a more particularized context, and that context is not complete without consideration of Virginia’s tuition grants. As indicated above, Virginia’s tuition grants had a considerable history. That program has not been attacked in this case. Its constitutionality has not been questioned. Elsewhere, apparently, it has not been utilized to circumvent the segregation of public schools. In the school year just closed, thirty-one school districts in Virginia were desegregated to some degree. The basic program of tuition grants, however, its antecedents and its operation and effect were not examined by the court below. Moreover, the effect of tax credits and tuition grants ought to be determined only in the light of the correlative duties and responsibilities of the Commonwealth and the County in connection with the operation of schools in the County. What they are and how they are distributed turn entirely upon the proper construction of a number of constitutional and statutory provisions of the Commonwealth. If, as the District Court found, Virginia’s Constitution requires the Commonwealth as such to open and operate schools in Prince Edward County, what Prince Edward County does in the allowance of tax credits for contributions to otherwise independent educational institutions may be of little moment. On the other hand, if Prince Edward County should be held to have a duty under state law to operate free public schools, then its allowance of tax credits might be a basis for a conclusion, in light of the tuition grant program, that it was undertaking to discharge its duty by indirection and, in effect, was operating the schools of the Foundation. Such a determination can be made only when the underlying questions of state law have been settled. The two branches of the principal issue are closely interrelated. As appears above, the question of whether or not Prince Edward County, or Virginia, has such a hand in the operation of the schools of the Foundation as to result in a Fourteenth Amendment requirement that they operate free, public schools on a nondiscriminatory basis for all pupils in the county is dependent, in large measure, upon a determination of Virginia’s distribution of authority, duty and responsibility in connection with the schools and their control and operation. Applicability of the principle advanced by the United States as amicus curiae depends entirely upon the answers to those questions of state law, for no one questions the principle that if Virginia is operating a state-wide, centralized system of schools, she may not close her schools in Prince Edward County in the face of a desegregation order while she continues to operate schools in other counties and cities of the Commonwealth. Application of the constitutional principle turns solely upon a determination, under state law, of Virginia’s role in the operation of public schools in Virginia. The answers to these questions are unresolved and unclear. On the one hand, the United States points to Section 129 of Virginia’s Constitution, which provides, “The General Assembly shall establish and maintain an efficient system of public free schools throughout the State,” and to those constitutional and statutory provisions providing for a State Board of Education and a Superintendent of Public Instruction, and defining their duties and responsibilities. On the other hand, the defendants point to Section 133 of Virginia’s Constitution which provides that supervision of schools in each county and city shall be vested in a school board and to other constitutional and statutory provisions which, unquestionably, vest large discretionary power in local school boards and in the governing bodies of the counties and cities in which they function. By Section 130 of the Constitution, the.State Board of Education has “general supervision of the school system.” It has the power to divide the state into school divisions, though no school division may be smaller than one county or one city. When a Division Superintendent of Schools is to be appointed, the State Board of Education certifies to the local board a list of qualified persons, and the local board may appoint anyone so certified. It selects and approves textbooks for use in the schools. It is required to manage and invest certain school funds of the state, and the General Assembly is empowered to authorize the State Board to promulgate rules and regulations governing the management of the schools. Section 135 of Virginia’s Constitution requires the application of receipts from certain sources to schools of the primary and grammar grades. These “constitutional funds” are apportioned among the-counties and cities according to school population. In addition, the General Assembly is authorized to appropriate other funds for school purposes, and those funds are apportioned as the General Assembly determines. Section 136 of the Constitution authorizes the counties and towns to levy taxes and appropriate funds for use “in establishing and maintaining such schools as in their judgment the public welfare may require.” The General Assembly of Virginia has adopted the consistent practice of appropriating funds, other than the “constitutional funds,” for distribution to the counties and cities for school purposes. Such appropriations are conditioned upon local appropriations. Thus, before the schools in Prince Edward County were closed, the local school board received its proportion of the constitutional funds, and, in addition, it received whatever funds were appropriated by Prince Edward’s Board of Supervisors, plus matching funds from the state which became payable because of the local appropriation. Since the schools were closed, the Prince Edward County School Board received no funds from the state during the school year 1959-1960. It has received its proportionate part of the constitutional funds, but those only, in subsequent years, and these are the funds it has used to keep its physical properties in repair and insured, but they have been insufficient to enable it to do anything else. This arrangement, the defendants say, is a local option system under which each county is authorized to determine for itself whether or not it will operate any schools and, if so, what schools and what grades. They emphasize the provision of Section 136 of the Constitution which gives the local authorities the right to appropriate funds “in establishing and maintaining such schools as in their judgment the public welfare may require,” which is limited by a provision that, until primary schools are operating for at least four months per year, schools of higher grades may not be established. This, they say, clearly.authorizes and requires what is done in practice. The local school board, it is said, determines what schools and facilities are required. It budgets the estimated costs of their maintenance and operation, and submits its estimates to the local Board of Supervisors. The Board of Supervisors may not overturn particular determinations of the school board, but it, say the defendants, has an unfettered discretion in levying taxes and appropriating funds. It may appropriate funds equal to the school board’s budgetary estimate, but it also may appropriate less or nothing at all. If the Board of Supervisors appropriates nothing for use by the school board, then the matching state funds are unavailable and the schools cannot be operated. Among Virginia’s statutes may be found clear provisions for local option. Under Sections 16.1-201, 16.1-202 of the Virginia Code, a county may elect to establish juvenile detention facilities. If it does so, the state will contribute funds to meet, in part, the cost of construction and. operation. Under Section 32-292 et seq., a county may elect to participate in a program of state-local hospitalization. If a county elects to do so, the state, with certain limitations, will contribute one-half the cost of such hospitalization. The defendants suggest that there is no unconstitutional geographic discrimination in such local option programs, though one or more counties may not elect to participate in them. Federal analogies readily come to mind. The United States malees available to participating states which enact prescribed legislation, grants for unemployment compensation administration. Under the National Defense Education Act, federal funds are made available to localities conducting in their schools approved programs of science, mathematics and foreign languages. It is suggested that there is no geographic discrimination in the provision for such optional grants, though a state or locality may exercise its option not to participate. Such local option provisions as those the defendants think analogous are constitutionally unassailable. When a state undertakes to encourage local conduct of educational or social programs by making matching funds available to participating localities, there is no discrimination against nonparticipating localities. Since every locality may participate if it wishes to do so, and the state funds are available to each upon the same conditions, the state is even-handed. The question here, however, is whether Virginia’s school laws establish an arrangement within the local option principle the defendants advance. If Section 129 of Virginia’s Constitution imposes upon the General Assembly the duty to provide operating, free, public schools in every county, as the United States contends, its election to establish a system having features of a local option arrangement may be permissible under state law only so long as schools are operated in every county. On the other hand, if Section 129 of Virginia’s Constitution, construed in the light of other constitutional provisions, requires of the General Assembly only that it provide for a system of education under which counties and cities are authorized to establish and maintain schools of their own with state assistance, then the principle which the defendants assert may be applicable. The answer is unclear. It requires interpretation and harmonization of Virginia’s-Constitution and statutes. The question is unresolved. Virginia’s Supreme Court of Appeals has considered her school laws in a number of cases, but none of them settle the question here. In School Board of Carroll County v. Shockley, 160 Va. 405, 168 S.E. 419, the Court held unconstitutional an act of the General Assembly requiring the imposition of local taxes and the use of the proceeds in the construction of a particular school. In Board of Supervisors of Chesterfield County v. School Board of Chesterfield County, 182 Va. 266, 28 S.E.2d 698, the Court said that the local school board is “to run the schools,” and it alone has the power to determine how locally appropriated funds are to be spent. In Griffin v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S.E.2d 227, the Court held that in levying taxes and appropriating funds for school purposes, the Board of Supervisors exercised a legislative and discretionary function, and that it was not subject to mandamus. In Scott County School Board v. Scott County Board of Supervisors, 169 Va. 213, 193 S.E. 52, it had been held that mandamus was not available to a school board to compel the supervisors of its county to appropriate funds sufficient to cover the school board’s estimates of the cost of school operation. In none of those cases, however, has Virginia’s Supreme Court of Appeals considered the requirements of Section 129 of the Constitution when schools cease to operate because the local Board of Supervisors levies no taxes and appropriates no funds for the purpose. That Court may conclude that, in light of the closure of the schools in Prince Edward County, Section 129 of the Constitution requires something more of the General Assembly or of the State Board of Education. That conclusion, however, is not forecast by Harrison v. Day, 200 Va. 439, 106 S.E.2d 636, in which Virginia’s Supreme Court of Appeals struck down Virginia’s massive resistance laws. Nor is there anything in the Three-Judge Court decision of James v. Almond, E.D.Va., 170 F.Supp. 331, which approaches federal determination of this state question. There, the Governor seized and removed from the school system six of Norfolk’s schools subject to desegregation orders. He acted under color of a state statute which required him to do so. In holding the statute unconstitutional the Court did not decide that all schools in Virginia were administered by the state on a statewide, centralized basis. The seizure was clearly that of the Governor and the discrimination was inherent in the statute whether the schools were otherwise operated upon a local option basis or directly by the state. When the state acts to seize and close every school subject to a desegregation order, its sufferance of continued operation of other schools within its borders is as discriminatory as its direct operation of them. These controlling questions of state law, uncertain and unsettled as they are, ought to be determined by the Supreme Court of Appeals of Virginia, which alone has the power to give an authoritative interpretation of the relevant sections of Virginia’s Constitution and of her statutes. As it was so forcefully said in Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, this Court cannot settle the state questions; it can do no more than predict what Virginia’s Supreme Court of Appeals will do when the questions come before it. If we should hazard a forecast and it should be proven wrong, any present judgment based upon it will appear both gratuitously premature and empty when the state questions are authoritatively resolved in the state courts. Particularly is this true when, with so little to guide us, we cannot predict with any semblance of confidence how the several state questions will be ultimately resolved in the state courts. In such circumstances, abstention until the state questions are determined is the proper course. Abstention, under the circumstances, is all the more appropriate because the case of County School Board of Prince Edward County, Virginia et al. v. Griffin et al., is already pending on the docket of the Supreme Court of Appeals of Virginia and will be heard by that Court in October. From a reading of the opinion of the Circuit Court of the City of Richmond in that case, it appears that the essential questions of state law upon which decision here turns are presented in that case and will be determined by that Court as it considers and adjudicates the same primary question tendered in this case, the existence of judicially enforceable rights in the plaintiffs to have the schools reopened. That state court proceeding had not been commenced when the District Judge acted on the primary question in this case. In abandoning his earlier decision to abstain, he referred to the fact that no such proceeding was pending or then contemplated. Had it been then pending, he probably would have awaited its outcome. The fact that a case, apparently ripe for decision, is now pending on the docket of Virginia’s Supreme Court of Appeals, makes easier our conclusion that the controlling questions of state law, which govern the application of unquestioned constitutional principles, ought to be determined by the state courts, and that, when they may be so determined, the federal courts ought to abstain from constitutional adjudication premised upon their notions of state law which may or may not turn out to be accurate forecasts. Accordingly, the judgments below will be vacated and the case remanded to the District Court, with instructions to abstain from conducting further proceedings until the Supreme Court of Appeals of Virginia shall have decided the case now pending on its docket entitled County School Board of Prince Edward County, Virginia et al. v. Leslie Francis Griffin, Sr. et al., and that decision has become final, with leave to the District Court thereafter to entertain such further proceedings and to enter such orders as may then appear appropriate in light of the determinations of state law by the Supreme Court of Appeals of Virginia. Vacated and remanded. . 4 Cir., 249 F.2d 462. . 4 Cir., 266 F.2d 507. . The plaintiffs applied to The Supreme Court of Appeals of Virginia for a writ of mandamus to compel the Board of Supervisors to levy taxes and appropriate funds for the operation of public schools. The District Judge saw copies of the pleadings and, apparently, was of the opinion they put in issue all relevant questions. In their printed brief, however, the plaintiffs disclaimed the presence of any federal question, with the result that the court decided only one narrow issue. It held mandamus unavailable because, it concluded, the Board of Supervisors’ function was legislative and discretionary, not ministerial, Griffin et al. v. Board of Supervisors of Prince Edward County, 203 Va. 321, 124 S.E.2d 227. It did not consider whether or not Virginia or any of its agencies has an affirmative duty to operate free public schools in Prince Edward or whether it can operate public schools elsewhere while those in Prince Edward remain closed. It did not consider many of the questions of state law which underlie those two ultimate questions. Later the defendants, or some of them, brought an action for a declaratory judgment in the Circuit Court of the City of Richmond. The plaintiffs here were named defendants there, and one of their attorneys was appointed guardian ad litem for the infants. On March 21, 1963 Judge Knowles filed an opinion in which the major questions are resolved in the favor of the agencies and officials of the Commonwealth and county. An

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

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 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?

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

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

Albert B. BENSON and Viktor E. Benson, Petitioners, Appellants, v. SUPERIOR COURT DEPARTMENT OF the TRIAL COURT OF MASSACHUSETTS and Francis X. Bellotti, as he is Attorney General of the Commonwealth of Massachusetts, Respondents, Appellees. No. 81-1162. United States Court of Appeals, First Circuit. Argued Sept. 15, 1981. Decided Nov. 9, 1981. John C. Martland, and Murray P. Reiser, Boston, Mass., with whom Jordan L. Ring, Ring & Rudnick, and Reiser & Rosenberg, Boston, Mass., were on brief, for appellants. John J. Bonistalli, Sp. Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., and Stephen R. Delinsky, Asst. Atty. Gen. Needham, Mass., Chief, Criminal Bureau, were on brief, for appellees. Before COFFIN, Chief Judge, VAN DU-SEN, Senior Circuit Judge, BOWNES, Circuit Judge. Of the Third Circuit, sitting by designation. COFFIN, Chief Judge. Appellants, previously acquitted of the charges of arson and breaking and entering with intent to commit arson, now face trial on the charge of conspiring to commit arson. They come before us claiming that the double jeopardy clause bars their prosecution for the crime of conspiracy, or, alternatively, that collateral estoppel, as embodied in the double jeopardy clause, limits the facts and issues that can be litigated during the trial on the conspiracy charge. They seek relief under 42 U.S.C. § 1983 and our habeas corpus jurisdiction. I. On the evening of December 20, 1978, Massachusetts state police observed appellants, Albert and Viktor Benson, entering and exiting from an office building that erupted into fire shortly after their departure. The Bensons were arrested and, indicted with identical charges of arson, breaking and entering with intent to commit arson, and conspiracy to commit arson. Because Massachusetts law at that time prevented the Commonwealth from trying them for the substantive crimes at the same time it tried them for conspiracy to commit the same substantive crimes, Mass.Gen. Laws ch. 278, § 2A (repealed 1979), the Commonwealth chose to prosecute first for the substantive crimes. Appellants were acquitted. The state subsequently undertook to start proceedings on the conspiracy count. Although the state .admits that it has no direct evidence of a conspiracy, it seeks to prove conspiracy by use of inferential and circumstantial evidence. Appellants have argued that, given the wording of the instructions to the jury, the acquittal on the charges of the substantive crimes included an acquittal on the conspiracy charge. Their primary contention, however, has been that the state does not have any substantial proof of conspiracy and that it will in fact try to prove conspiracy by trying to show that appellants actually set the fire and therefore must have participated in an agreement between themselves sufficient to constitute a conspiracy. Appellants raised these objections before the state trial court by filing a pre-trial motion to dismiss, alleging that double jeopardy requires that the entire proceeding be barred because the facts the government will try to prove have already been found in their favor, and by filing a motion in limine requesting the court to issue an order to prevent the government from reintroducing facts and theories of facts that were rejected at the first trial. The Massachusetts Superior Court denied both motions. Appellants appealed these decisions to the extent of filing with one member of the Massachusetts Supreme Judicial Court an application for leave to take an interlocutory appeal. Apparently because the Massachusetts Rules of Criminal Procedure specifically allow a defendant to raise on interlocutory appeal issues spurred by a ruling on a motion to suppress, appellants characterized the trial court’s rulings as refusals to suppress evidence. See Mass.R.Crim.P. 15(b)(2). The Justice to whom they appealed denied their application without prejudice to their right to renew the objections in the course of the trial proceedings. Thereupon, appellants filed suit in the federal district court, seeking a writ of habeas corpus barring the prosecution or a writ barring the relitigation of all issues and facts necessarily determined in their favor at the previous trial. They also alleged that under § 1983 they were entitled to a declaratory order dismissing the indictment or both declaratory and injunctive relief preventing the Commonwealth from relitigating issues previously determined. Finding that it had jurisdiction to address these claims, the district court, 507 F.Supp. 975, concluded that the double jeopardy clause does not require that the prosecution be barred. It did, however, issue an order stating that the Commonwealth is foreclosed from claiming or arguing that appellants set the fire or aided, counseled or procurred the burning of the building. II. We address first the question whether the double jeopardy clause requires that the prosecution on the conspiracy charge be barred by the acquittal on the substantive crimes. This question is framed by appellants both as a petition for a writ of habeas corpus under 28 U.S.C. §§ 2241 and 2254 and as a prayer for a declaratory order under 42 U.S.C. § 1983. With respect to the petition for a writ of habeas corpus, our primary concern is whether appellants have properly exhausted their claim. Exhaustion presents a peculiar question in the context of a petition for a writ of habeas corpus brought before the state proceeding has even begun. Section 2254, which requires exhaustion, applies only to petitions filed after the state has rendered a judgment and hence affords neither a source of power nor a definition of exhaustion applicable to this case. Section 2241, which empowers courts to issue writs and makes no mention of exhaustion, has been interpreted to allow a court to grant a writ before a defendant has exhausted his claim at trial, but only in unusual circumstances. See Ex Parte Royall, 117 U.S. 241, 251-53, 6 S.Ct. 734, 740-41, 29 L.Ed. 868 (1886). The Supreme Court has reasoned that federal courts, despite their power to issue writs, must respect the authority and ability of state courts to protect constitutional rights in the first instance. See Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, 489-90, 93 S.Ct. 1123, 1126-27, 35 L.Ed.2d 443 (1973); Ex Parte Royall, supra, 117 U.S. at 251-53, 6 S.Ct. at 740 — 41. Thus, while it may be possible for a court to consider issuing a writ before the trial has taken place and before the state court has had a chance to decide the constitutional issue, the circumstances under which this should be allowed must be very carefully examined. See generally Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975). We have in the past implicitly recognized that a threat to a defendant’s right to be protected from double jeopardy can be a sufficiently extraordinary circumstance to allow a federal court to review a petition for a writ of habeas corpus without awaiting exhaustion of the claim by completion of the state trial. See Reinstein v. Superior Court Dept. of the Trial Court of Massachusetts, 661 F.2d 255 (1st Cir. 1981). This recognition is well-founded. Because the double jeopardy clause is designed to protect a defendant not only from double conviction but also from being subjected twice to the trial process itself, Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed. 199 (1957), a federal court is in the extraordinary position of having no way to protect a defendant’s constitutional right other than to consider a petition before trial. See generally Drayton v. Hayes, 589 F.2d 117, 120-21 (2d Cir. 1979); United States ex rel. Triano v. Superior Court of New Jersey, 393 F.Supp. 1061, 1067 (D.N.J. 1975), aff’d without opinion, 523 F.2d 1052 (3d Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 787, 46 L.Ed. 645 (1976); Grizzle v. Turner, 387 F.Supp. 1, 4-5 (W.D.Okla.1975). Recognition of the general principle that a petition based on a double jeopardy claim may be considered before trial does not mean, however, that a defendant is relieved of all responsibility to exhaust what pre-trial opportunities he may have to raise the claim before the state court. It is with a sense of cautiousness in keeping with the comity concerns underlying the exhaustion doctrine that we examine the measures appellants have taken to exhaust their claim that the prosecution should be barred. Appellants did present the allegation that the double jeopardy clause requires dismissal of the conspiracy indictment to the trial court by filing a motion to dismiss. When their motion was denied, however, they sought interlocutory appeal from one member of the Supreme Judicial Court only to the extent of arguing that the double jeopardy clause required granting of their motion for “suppression of the evidence”, not as here, that the prosecution should be barred. The Supreme Court clearly has required that the claim exhausted in the state court be the same claim presented in federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed. 438 (1971). There can be no question here that the application for leave to file a petition for interlocutory appeal did not raise precisely the same issue presented in this petition for a writ of habeas corpus. Despite the wording of the Massachusetts Rules of Criminal Procedure which explicitly recognize interlocutory appeal only for decisions on suppression motions, appellants could— and still can — appeal to the Massachusetts Supreme Judicial Court under its supervisory power. See Mass.Gen.Laws ch. 211 § 3; Fadden v. Commonwealth, 376 Mass. 604, 382 N.E.2d 1054, 1056 (1978). We therefore find that the unusual circumstances justifying jurisdiction over a pretrial petition for a writ of habeas corpus do not exist in this instance. Appellants also seek to bar the prosecution by arguing that prosecution would violate § 1983 and that § 1983 entitles them to a declaratory order dismissing the trial. Although this request for relief would raise significant questions under the abstention doctrine as set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and as applied to declaratory relief in Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), we need not reach the question whether interference with the state judicial process would be fitting in these circumstances. Appellants’ argument that their constitutional rights will be violated if the trial on the conspiracy charge proceeds does not withstand analysis. We do not question the rule that the doctrine of collateral estoppel can bar a subsequent prosecution. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Applying that principle, we do not view the jury’s verdict in the first case as precluding prosecution of the second case. We accept the trial court’s finding that the verdict did not acquit appellants of conspiring to set the fire, despite the fact that "they were acquitted of a charge that they did “aid, counsel and procure” the burning of the building. Beyond arguing that collateral estoppel bars prosecution on the conspiracy charge because an element of the crime has already been found in their favor — the argument we have just rejected — appellants argue that collateral estoppel bars the trial because the government does not have sufficient evidence to prove an illegal agreement if it cannot relitigate the substantive crimes to the extent of creating the inference that appellants committed arson and therefore must have conspired. Certainly, collateral estoppel prevents the government from relitigating the previous acquittals, see section III, infra, but beyond this point, appellants’ argument raises nothing more than an issue of the sufficiency of the evidence. This is a question that must be presented to the trial court in the form of a motion for acquittal; it is not to be put before the federal courts in the guise of a constitutional issue. We therefore conclude that collateral estoppel, as applied through the double jeopardy clause, does not bar appellants’ prosecution on the charge of conspiracy. III. Alternatively, appellants seek a writ barring the relitigation of all facts and issues necessarily determined in their favor at the previous trial as well as declaratory and injunctive relief to the same effect under § 1983. The prayer for relief under our habeas corpus jurisdiction is inappropriate, for the only relief we can give is to release the supplicant from custody. As to the prayer for relief under § 1983, we hold that the case is not ripe for our consideration. The doctrine of collateral estoppel as incorporated into the double jeopardy clause can not only bar a prosecution but it can also prevent the relitigation of specific facts and issues necessarily found in a defendant’s favor at a previous trial. See United States v. Lee, 622 F.2d 787, 790 (5th Cir. 1980); United States v. Cioffi, 487 F.2d 492, 498 (2d Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2410, 40 L.Ed.2d 774 (1974). Appellants fear that the Commonwealth will try to relitigate the issue whether appellants set the fire and hence they seek our protection. At this juncture, however, there is no way of knowing how the state will try to marshal its evidence and what points it will try to prove. Until it becomes evident, that the government is attempting to encroach on appellants’ right to be free from double jeopardy, there is no case or controversy that can be brought before this court. We are not about to set ourselves up as Friday afternoon quarterbacks. In reaching this result, we note that it is not necessary for us to consider whether intervention would ever be áppropriate should a defendant dispute a trial court’s ruling during trial that the collateral estoppel principles had not been violated. In conclusion, we find that the habeas corpus claim that the prosecution be barred is not properly before the court and that appellants’ prayer for the same relief under § 1983 is without merit. The claim that the double jeopardy clause requires this court to impose orders or injunctions regulating what evidence may be admitted at trial is found not to be justiciable. Accordingly, in order to prevent possible misunderstanding by the state trial court, we vacate that part of the district court’s February 26, 1981, Memorandum of Decision, as amended on March 6, 1981, foreclosing the Commonwealth from offering specific evidence at the trial on the conspiracy charge, and affirm the judgment of March 13, 1981, directing “that the petition for writ of habeas corpus and for declaratory injunctive relief be, and it is hereby, denied”. . In ruling on appellants’ pre-trial motion to dismiss, the Superior Court found that the charge to the jury and the language of the indictment meant that appellants were being charged with a joint criminal enterprise, not conspiracy. Proof of the former required proof that appellants participated in the commission of the crimes, while proof of the latter requires an element not common to the former — proof of an unlawful agreement. Thus, the trial court concluded that appellants had not been acquitted of the charge of making an illegal agreement. We accept this interpretation and application of Massachusetts law. . We note that when the trial court denied appellants’ pre-trial motion in limine that requested an order stating that certain issues could not be litigated, it denied the motion without prejudice to appellants’ opportunity to file another motion when the state presented its case. It would seem that the trial court had similarly recognized that the issue was not ready for resolution. This approach does not leave appellants without a way to protect their constitutional rights.

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

PRUDENTIAL INSURANCE COMPANY OF AMERICA and Eastern Airlines, Inc., Plaintiffs, v. Bettie BOYD, Defendant-Appellant, Clarice D. Boyd as the Natural Mother and Guardian of Danita Boyd and Daniel Boyd, III, as minors, Defendants-Appellees. PRUDENTIAL INSURANCE COMPANY OF AMERICA and Eastern Airlines, Inc., Plaintiffs-Appellees, v. Bettie BOYD, Defendant-Appellant, Clarice D. Boyd as the Natural Mother and Guardian of Danita Boyd and Daniel Boyd, III, as minors, Defendants. Nos. 84-5973, 85-5251. United States Court of Appeals, Eleventh Circuit. Feb. 10, 1986. Rehearing and Rehearing En Banc Denied April 7, 1986. J.T. Hollin, Atlanta, Ga., for Bettie Boyd. Leon Sharpe, Miami, Fla., for Clarice D. Boyd. Before JOHNSON and ANDERSON, Circuit Judges, and DYER, Senior Circuit Judge. JOHNSON, Circuit Judge: Daniel Boyd, Jr., was married to appellee Clarice Boyd until 1975. Two children were born of this marriage. The marriage ended in divorce by decree issued by a state court on June 4, 1975. Paragraph five of the divorce decree provided as follows: Respondent-Counter-Petitioner shall arrange with the carrier of his existing life insurance protection for designation of the aforesaid minor children as irrevocable beneficiaries of such policy evidencing said protection; and he shall also be liable for, and pay, unusual medical, dental or orthodontal expenses of said minor children. On the date of his divorce from Clarice Boyd, Daniel Boyd was employed by plaintiff Eastern Airlines (“Eastern”) and was covered by a group term life insurance policy issued by plaintiff Prudential Insurance Company (“Prudential”). On the date of the divorce, the maximum recovery under this policy would have been approximately $32,000. After his divorce, on September 6, 1975, Daniel Boyd married appellant Bettie Boyd. Contrary to the terms of the divorce decree, Daniel Boyd failed to designate his children by his first marriage as irrevocable beneficiaries of his life insurance policy. Two weeks after the second marriage, Daniel Boyd named his new wife as the beneficiary of the policy. Continuing until his death, Daniel Boyd made contributory payments, i.e., voluntary premium payments from his own salary, which effectively doubled the minimum amount of term life insurance available to the named beneficiary. Daniel Boyd, Jr., died on April 26, 1983. At the time of Daniel Boyd’s death, the beneficiary of his term life insurance policy was eligible to receive the sum of $63,-261.60. On May 18, 1983, on behalf of her minor children, Clarice Boyd as the natural mother and guardian of the children sought to claim the insurance benefits from Prudential. On June 7, 1983, Bettie Boyd sought to claim those same benefits. Faced with these conflicting claims, plaintiffs Prudential and Eastern filed a Bill for Interpleader in the United States District Court for the Southern District of Florida pursuant to 28 U.S.C.A. § 1335, seeking a declaratory judgment stating who was entitled to the proceeds from Daniel Boyd’s insurance policy. The plaintiffs paid into the registry of the court the sum of $63,261.60, which was the value of the policy. The defendants m this action were appellant and ap-pellees. Bettie Boyd filed a motion for partial summary judgment on July 17, 1984, and a motion for expedited ruling on July 26, 1984. Clarice Boyd filed a motion for partial summary judgment on July 27, 1984, and a motion for expedited ruling on August 20, 1984. The district judge granted both motions for expedited ruling, granted the motion of Clarice Boyd for partial summary judgment, and denied the motion of Bettie Boyd for the same. Bettie Boyd filed a motion for reconsideration and a motion for clarification of the order granting partial summary judgment. These motions were denied. Bettie Boyd filed a first notice of appeal, which appeal was dismissed for lack of jurisdiction. Subsequently, Clarice Boyd filed a motion for entry of final summary judgment and for disbursement of funds; Bettie Boyd filed motions for supersedeas and for stay of execution of judgment. By order of October 19, 1984, the district judge granted final summary judgment for Clarice Boyd. On November 16, 1984, the judge issued an order entering final judgment for Clarice Boyd, denying Bettie Boyd’s motions for supersedeas and for stay of execution, and granting Clarice Boyd’s motion for disbursement of funds. Bettie Boyd filed a second notice of appeal and renewed her motions for stay and supersedeas. On January 14, 1985, the district judge ordered the disbursement of $63,261.60 plus interest and declared that Bettie Boyd’s motions for stay and supersedeas were moot. Plaintiffs moved to tax costs and attorneys’ fees against the defendants. By order of February 28,1985, the court directed that Prudential and Eastern recover a total of $971.25 in attorneys’ fees, and $69.74 in costs, from Bettie Boyd. She then filed a third notice of appeal, appealing the order awarding attorneys’ fees and costs against her. All appeals were consolidated into this action. I. Summary Judgment Was Appropriate Appellant contends that paragraph 5 of the divorce decree (quoted above) was ambiguous, primarily because the paragraph did not state the specific life insurance policy, or the amount of coverage, that was to be subject to the order. Appellant also argues that the requirement that Daniel Boyd name his children “irrevocable beneficiaries” of his “existing life insurance protection” was vague. Appellant claims that the intent of the divorce court judge and of the parties to the divorce was not clear, and that the intent is a matter that should be determined by the trier of fact. The divorce decree required Daniel Boyd to name his children as irrevocable beneficiaries of his “existing life insurance protection.” No evidence was introduced to controvert the fact that Daniel Boyd was legally bound by this requirement. Florida courts have consistently construed provisions similar to this one to require the insured to name the person so designated by the divorce decree to be the beneficiary of the life insurance policy, and to nullify attempts to name another person as beneficiary. See, e.g., Pensyl v. Moore, 415 So.2d 771 (Fla. 3rd DCA 1982); Dixon v. Dixon, 184 So.2d 478 (Fla. 2d DCA 1966), cert. discharged, 194 So.2d 897 (Fla.1967). Appellant argues that, because Daniel Boyd might have had life insurance coverage other than the Prudential policy, the Prudential policy is not necessarily covered by the divorce decree. This argument is completely meritless. The existence of other life insurance is irrelevant to whether the Prudential policy was subject to the divorce decree. If other life insurance coverage existed at the time of the divorce, then that insurance as well as the Prudential policy was subject to the requirement that Daniel Boyd’s children by his first marriage be named as beneficiaries. The district court correctly ruled that Daniel Boyd was legally bound to name the children by his first marriage to be the beneficiaries of the Prudential life insurance policy that existed at the time of his divorce. The only possible ambiguity about the requirement of the divorce decree is whether the “existing life insurance protection” at the time of the divorce includes the increased value of the policy after the divorce, taking into account the fact that Daniel Boyd continued to make contributory payments after the divorce. Appellant contends that, even if the children (or Clarice Boyd on their behalf) are entitled to the approximately $32,000 that the policy was worth at the time of the divorce, they are not entitled to the full $63,261.60 that the policy was worth at the time of Daniel Boyd’s death. Appellant cites several cases from states other than Florida in support of the proposition that Clarice Boyd is entitled only to the insurance policy’s value as it existed at the time of the divorce. In deciding whether to award the increased value of the policy to Bettie Boyd or Clarice Boyd, we are bound by the Florida case of Dixon v. Dixon, supra, 184 So.2d at 478. In Dixon, the terms of a divorce decree required the decedent to maintain and keep current with his employment all of his life insurance policies, and to name his minor child as the beneficiary of those policies. The court held that the divorce decree divested the decedent of his ownership interest in the life insurance policy he maintained at the time of his divorce. The court further held that tne divorce decree gave the minor child an indefeasible interest in the proceeds from that policy and from a life insurance policy that was later substituted for the original policy. This Court is required by Dixon to hold that, by the terms of his divorce decree, Daniel Boyd was divested of his ownership of the proceeds of his life insurance policy with Prudential. The decree created an indefeasible interest in the proceeds of this policy in the two minor children by Daniel Boyd’s first marriage. The fact that Daniel Boyd continued to increase the value of the insurance policy after his divorce is of no legal significance in this case. The proceeds of that policy did not belong to Daniel Boyd, and his contributory payments must be treated as a gift to the minor children by the first marriage. Consequently, Clarice Boyd, in her capacity as guardian of these minor children, is entitled to the full value of the Prudential policy at the time of Daniel Boyd’s death. II. The Award of Attorneys’ Fees The district court awarded costs and attorneys’ fees in favor of Prudential and Eastern and against appellant. In an inter-pleader action, costs and attorneys’ fees are generally awarded, in the discretion of the court, to the plaintiff who initiates the interpleader as a mere disinterested stake holder. Perkins State Bank v. Connolly, 632 F.2d 1306, 1311 (5th Cir.1980). Appellant contends, however, that in awarding costs and attorneys’ fees against her, and not against the interpleader fund, the district court abused its discretion. The award of costs and attorneys’ fees in an interpleader action is generally to be imposed against the party who has benefited from the interpleader action. Prudential-Bache Securities, Inc. v. Tranakos, 593 F.Supp. 783, 785 (D.Georgia 1984). The usual practice is to tax the costs and fees against the interpleader fund, although the court may tax the losing claimant directly when her conduct justifies doing so. Id. In taxing costs and attorneys’ fees directly against appellant, the district court found that “the purported change in beneficiary may have constituted a fraud upon the rights of the minor children.” This finding of bad faith is wholly unsubstantiated by the record and, as a clearly erroneous finding, will not be accepted by this Court. Fed.R.Civ.P. 52(a). We hold that the district court abused its discretion in taxing costs and attorneys’ fees against appellant, and we remand with instructions to tax costs and attorneys’ fees against the interpleader fund. Finally, we note that appellant also appeals the district court’s denial of super-sedeas. The purpose of a supersedeas bond is to preserve the status quo while protecting the non-appealing party’s rights pending appeal. Poplar Grove, Etc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91 (5th Cir.1979). It is within the court’s discretion to fashion a security arrangement that protects the rights of both the judgment creditor and the judgment debtor. See id. at 1191. If the district court had retained custody of the insurance proceeds during this appeal, the court would have preserved the status quo and prevented the risk that appellant, had she prevailed, would have been unable to collect her award. However, because the district court correctly, with the exception of the costs and attorneys’ fees, awarded the proceeds of the Prudential policy to Clarice Boyd, that court’s denial of supersedeas and disbursal of the funds are of no consequence in the present case, and we do not decide whether that court abused its discretion. The order of the district court awarding the proceeds of the Prudential policy, in the amount of $63,261.60 plus accrued interest, to Clarice Boyd is, with the exception of the costs and attorneys’ fees, AFFIRMED. The district court’s award against appellant of plaintiffs’ costs and attorneys' fees, in the amounts of $69.74 and $971.25, respectively, is REVERSED. This case is REMANDED to the district court with directions to award plaintiffs their costs and attorneys’ fees from the proceeds of the interpleader fund. . However, the costs and attorneys’ fees incurred by the filing and prosecuting of this interpleader action will be taxed against this recovery. See infra, pp. 1497-98.

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

De BUONO, NEW YORK COMMISSIONER OF HEALTH, et al. v. NYSA-ILA MEDICAL AND CLINICAL SERVICES FUND, by its trustees, BOWERS, et al. No. 95-1594. Argued February 24, 1997 Decided June 2, 1997 M. Patricia Smith, Assistant Attorney General of New York, argued the cause for petitioners. With her on the briefs were Dennis C. Vacco, Attorney General, Barbara G. Billet, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and Daniel F. De Vita, Assistant Attorney General. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, James A. Feldman, J. Davitt McAteer, Allen H. Feldman, Nathaniel I. Spiller, and Judith D. Heimlich. Donato Caruso argued the cause for respondents. With him on the brief were C. Peter Lambos, Thomas W. Gleason, and Ernest L. Mathews, Jr. Briefs of amici curiae urging reversal were filed by Richard Blumen-thal, Attorney General of Connecticut, and Phyllis E. Hyman, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Winston Bryant of Arkansas, Robert A. Butterworth of Florida, Margery S. Bronster of Hawaii, Pamela Carter of Indiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Peter Verniero of New Jersey, W. A Drew Edmondson of Oklahoma, Theodore R. Kulongoski of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Dan Morales of Texas, Jeffrey L. Ame-stoy of Vermont, James S. Gilmore III of Virginia, Christine 0. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American Federation of State County and .Municipal Employees, AFL-CIO, by Larry Weinberg, John C. Dempsey, Andrew D. Roth, and Nancy E. Hoffman; for the Healthcare Association of New York State et al. by Jeffrey J. Sherrin and Mark Thomas; for the National Employment Lawyers Association by Mary Ellen Signorille and Jeffrey Lewis; and for the National Governors’ Association et al. by Richard Ruda. Ronald S. Longhofer and John H. Eggertsen filed a brief for the Self-Insurance Institute of America, Inc., as amicus curiae urging affirmance. Justice Stevens delivered the opinion of the Court. This is another Employee Retirement Income Security Act of 1974 (ERISA) pre-emption case. Broadly stated, the question presented is whether hospitals operated by ERISA plans are subject to the same laws as other hospitals. More precisely, the question is whether the opaque language in ERISA’s § 514(a) precludes New York from imposing a gross receipts tax on the income of medical centers operated by ERISA funds. We hold that New York may collect its tax. I In 1990, faced with the choice of either curtailing its Medicaid program or generating additional revenue to reduce the program deficit, the New York General Assembly enacted the Health Facility Assessment (HFA). The HFA imposes a tax on gross receipts for patient services at hospitals, residential health care facilities, and diagnostic and treatment centers. The assessments become a part of the State’s general revenues. Respondents are the trustees of the NYSA-ILA Medical and Clinical Services Fund (Fund), which administers a self-insured, multiemployer welfare benefit plan. The Fund owns and operates three medical centers — two in New York and one in New Jersey — that provide medical, dental, and other health care benefits primarily to longshore workers, retirees, and their dependents. The New York centers are licensed by the State as “diagnostic and treatment centers,” App. 80, and are thus subject to a 0.6 percent tax on gross receipts under the HFA. N. Y. Pub. Health Law §2807-d(2)(c) (McKinney 1993). During the period from January through November of 1991, respondents paid HFA assessments totaling $7,066 based on the two New York hospitals’ patient care income of $1,177,670. At that time, they discontinued the payments and brought this action against appropriate state officials (petitioners) to enjoin future assessments and to obtain a refund of the tax paid in 1991. The complaint alleged that the HFA is a state law that “relates to” the Fund within the meaning of § 514(a) of ERISA, and is therefore pre-empted as applied to hospitals run by ERISA plans. The District Court denied relief. It concluded that HFA was not pre-empted because it was a “tax of general application” that did not “interfere with the calculation of benefits or the determination of an employee’s eligibility for benefits” and thus had only an incidental impact on benefit plans. App. to Pet. for Cert. 21a. The Court of Appeals for the Second Circuit reversed. It distinguished eases in which we had found that certain “laws of general application” were not pre-empted by ERISA, explaining that the HFA “targets only the health care industry,” which is, “by definition, the realm where ERISA 'welfare plans must operate,” NYSA-ILA Medical and Clinical Services Fund v. Axelrod, M. D., 27 F. 3d 823, 827 (1994). The court reasoned that because the HFA “operates as an immediate tax on payments and contributions which were intended to pay for participants’ medical benefits,” it directly affects “the very operations and functions that make the Fund what it is, a provider of medical, surgical, and hospital care to its participants and their beneficiaries.” Ibid. The HFA, concluded the court, thus “related to” the Fund because it reduced the amount of Fund assets that would otherwise be available to provide plan members with benefits, and could cause the plan to limit its benefits, or to charge plan members higher fees. The first petition for certiorari in this case was filed before we handed down our opinion in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 (1995). In that case we held that ERISA did not pre-empt a New York statute that required hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan. Id., at 649-651. After deciding Travelers, we vacated the judgment of the Court of Appeals in this case and remanded for further consideration in light of that opinion. 514 U. S. 1094 (1995). On remand the Court of Appeals reinstated its original judgment. The court distinguished the statute involved in Travelers on the ground that — by imposing a tax on the health insurance carriers who provided coverage to plans and their beneficiaries — it had only an indirect economic influence on the decisions of ERISA plan administrators, whereas the HFA “depletes the Fund’s assets directly, and thus has an immediate impact on the operations of an ERISA plan,” NYSA-ILA Medical and Clinical Services Fund v. Axelrod, M. D., 74 F. 3d 28, 30 (1996). We granted the New York officials’ second petition for certiorari, 519 U. S. 926 (1996), and now reverse. II When the Second Circuit initially found the HFA preempted as applied to Fund-operated hospitals, that court relied substantially on an expansive and literal interpretation of the words “relate to” in § 514(a) of ERISA. 27 F. 3d, at 826. In reconsidering the case on remand, the court appears to have adhered to that approach, failing to give proper weight to Travelers' rejection of a strictly literal reading of § 514(a). In Travelers, as in our earlier cases, we noted that the literal text of § 514(a) is “clearly expansive.” 514 U. S., at 655. But we were quite clear in that case that the text could not be read to “extend to the furthest stretch of its indeterminacy, [or] for all practical purposes pre-emption would never run its course, for ‘[rjeally, universally, relations stop nowhere,’ H. James, Roderick Hudson xli (New York ed., World’s Classics 1980).” Ibid. In óur earlier ERISA pre-emption cases, it had not been necessary to rely on the expansive character of ERISA’s literal language in order to find pre-emption because the state laws at issue in those cases had a clear “connection with or reference to,” Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 96-97 (1983), ERISA benefit plans. But in Travelers we confronted directly the question whether ERISA’s “relates to” language was intended to modify “the starting presumption that Congress does not intend to supplant state law.” 514 U. S., at 654. We unequivocally concluded that it did not, and we acknowledged “that our prior attempts] to construe the phrase ‘relate to’ d[o] not give us much help drawing the line here.” Id., at 655. In order to evaluate whether the normal presumption against pre-emption has been overcome in a particular case, we concluded that we “must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objec-ti ves of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” Id., at 656. We endorsed that approach once again earlier this Term in concluding that California’s prevailing wage law was not pre-empted by ERISA. California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997). Following that approach here, we begin by noting that the historic police powers of the State include the regulation of matters of health and safety. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 715 (1985). While the HFA is a revenue raising measure, rather than a regulation of hospitals, it clearly operates in a field that “ ‘has been traditionally occupied by the States.’” Ibid. (quoting Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977)). Respondents therefore bear the considerable burden of overcoming “the starting presumption that Congress does not intend to supplant state law.” Travelers, 514 U. S., at 654. There is nothing in the operation of the HFA that convinces us it is the type of state law that Congress intended ERISA to supersede. This is not a case in which New York has forbidden a method of calculating pension benefits that federal law permits, or required employers to provide certain benefits. Nor is it a case in which the existence of a pension plan is a critical element of a state-law cause of action, or one in which the state statute contains provisions that expressly refer to ERISA or ERISA plans. A consideration of the actual operation of the state statute leads us to the conclusion that the HFA is one of “myriad state laws” of general applicability that impose some burdens on the administration of ERISA plans but nevertheless do not “relate to” them within the meaning of the governing statute. See Travelers, 514 U. S., at 668; Dillingham Constr., 519 U. S., at 333-334. The HFA is a tax on hospitals. Most hospitals are not owned or operated by ERISA' funds. This particular ERISA fund has arranged to provide medical benefits for its plan beneficiaries by running hospitals directly, rather than by purchasing the same services at independently run hospitals. If the Fund had made the other choice, and had purchased health care services from a hospital, that facility would have passed the expense of the HFA onto the Fund and its plan beneficiaries through the rates it set for the services provided. The Fund would then have had to decide whether to cover a more limited range of services for its beneficiaries, or perhaps to charge plan members higher rates. Although the tax in such a circumstance would be “indirect,” its impact on the Fund’s decisions would be in all relevant respects identical to the “direct” impact felt here. Thus, the supposed difference between direct and indirect impact — upon which the Court of Appeals relied in distinguishing this case from Travelers — cannot withstand scrutiny. Any state tax, or other law, that increases the cost of providing benefits to covered employees will have some effect on the administration of ERISA plans, but that simply cannot mean that every state law with such an effect is preempted by the federal statute. The judgment of the Court of Appeals is reversed. It is so ordered. The boundaries of ERISA’s pre-emptive reach have been the focus of considerable attention from this Court. This case is one of three addressing the issue this Term. See Boggs v. Boggs, post, p. 833; California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 (1997). And in the 16 years since we first took up the question, we have decided no fewer than 13 cases. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 (1995); John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86 (1993); District of Columbia v. Greater Washington Bd. of Trade, 506 U. S. 125 (1992); Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 (1990); FMC Corp. v. Holliday, 498 U. S. 52 (1990); Massachusetts v. Morash, 490 U. S. 107 (1989); Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 (1988); Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987); Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985); Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983); and Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 (1981). The issue has also generated an avalanche of litigation in the lower courts. See Greater Washington Bd. of Trade, 506 U. S., at 135, and n. 3 (Stevens, J., dissenting) (observing that in 1992, a LEXIS search uncovered more than 2,800 opinions on ERISA pre-emption). Section 514(a) of ERISA informs us that “[ejxcept as provided in subsection (b) of this section, the provisions of this [statute] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by the statute. 88 Stat. 897, 29 U. S. C. § 1144(a). None of the exceptions in subsection (b) is directly at issue in this case. N. Y. Pub. Health Law § 2807-d (McKinney Supp. 1992). In addition to taxing the income derived from patient services at these facilities, the HFA taxes investment income and certain operating income. N. Y. Pub. Health Law §§ 2807 — d(3)(c), 2807 — d(S)(d) (McKinney 1993). The taxation of these activities is not challenged here. In response to the complaint filed in 1992, petitioners objected to federal jurisdiction, relying on the Tax Injunction Act, 28 U. S. C. §1341, which provides that federal 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.” Respondents contended that the statute did not apply because the New York courts do not provide the “plain” remedy required to bar federal jurisdiction. The District Court appears to have agreed with respondents, see App. to Pet. for Cert. 19a, but when it ultimately granted summary judgment and dismissed the complaint, it did not squarely decide the question, id,., at 19a, 22a-23a. The Court of Appeals did not address the Tax Injunction Act in either of its two opinions in this case and there is no suggestion anywhere in the papers that the State raised the issue before that court. The Second Circuit had previously held, however, that the Tax Injunction Act is not a bar to actions such as this. See Travelers Ins. Co. v. Cuomo, 14 F. 3d 708, 713-714 (1993), rev’d on other grounds, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 (1995). In Travelers, we noted, but did not reexamine, that conclusion. See id., at 652-653, n. 4. In the case at bar, the Court of Appeals presumably was satisfied that its jurisdiction was secure for the reasons given in Travelers. Before this Court, no party in either Travelers or the current ease has mentioned the Tax Injunction Act or questioned the Court of Appeals’ conclusion that a “plain” remedy is unavailable in the New York courts. Given our settled practice of according respect to the courts of appeals’ greater familiarity with issues of state law, cf. Bishop v. Wood, 426 U. S. 341, 346-347, and n. 10 (1976), and the State’s active participation in nearly four years of federal litigation with no complaint about federal jurisdiction, it is appropriate for us to presume that the Court of Appeals correctly determined that, under these circumstances, New York courts did not provide a “plain” remedy barring federal consideration of the state tax. See, e. g., Mackey, 486 U. S., at 838 (generally applicable garnishment law not pre-empted); Fort Halifax Packing Co., 482 U. S., at 19 (state law requiring one-time severance payment not pre-empted). See also Dillingham Constr., 519 U. S., at 335 (Scalia, J., concurring) (“[Ajpplying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else”). Where “federal law is said to bar state action in fields of traditional state regulation ... we have worked on the ‘assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Travelers, 514 U. S., at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). See also Dillingham Constr., 519 U. S., at 325. “The prevailing wage statute alters the incentives, but does not dictate the choices, facing ERISA plans. In this regard, it is ‘no different from myriad state laws in areas traditionally subject to local regulation, which Congress could not possibly have intended to eliminate.’ Travelers, 514 U. S., at 668. We could not hold pre-empted a state law in an area of traditional state regulation based on so tenuous a relation without doing grave violence to our presumption that Congress intended nothing of the sort. We thus conclude that California’s prevailing wage laws and apprenticeship standards do not have a ‘connection with,’ and therefore do not ‘relate to,’ ERISA plans.” Dillingham Constr., 519 U. S., at 334. Indeed, the Court of Appeals rested its conclusion in no small part on the fact that the HFA “targets only the health care industry.” NYSA-ILA Medical and Clinical Services Fund v. Axelrod, M. D., 27 F. 3d 823, 827 (CA2 1994). Rather than warranting pre-emption, this point supports the application of the “starting presumption” against pre-emption. The respondents place great weight on the fact that in 1983 Congress added a specific provision to ERISA to save Hawaii’s Prepaid Health Care Act from pre-emption, and that in so doing, the Legislature noted that ERISA generally does pre-empt “any State tax law relating to employee benefit plans.” 29 U. S. C. § 1144(b)(5)(B)(i). See Brief for Respondents 17-28. But there is no significant difference between the language in this provision and the pre-emption provision in § 514(a), and we are unconvinced that a stricter standard of pre-emption should apply to state tax provisions than to other state laws. See, e. g., Alessi v. Raybestos-Manhattan, Inc., 451 U. S., at 524-525 (“Whatever the purpose or purposes of the New Jersey statute, we conclude that it ‘relate[s] to pension plans’ governed by ERISA because it eliminates one method for calculating pension benefits — integration—that is permitted by federal law”). See, e.g., Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983) (ERISA pre-empted state law requiring the provision of pregnancy benefits); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985) (law that required benefit plans to include minimum mental health benefits “related to” ERISA plans). See, e. g., Ingersoll-Rand Co., 498 U. S., at 139-140 (“We are not dealing here with a generally applicable statute that makes no reference to, or indeed functions irrespective of, the existence of an ERISA plan. . . . Here, the existence of a pension plan is a critical factor in establishing liability under the State’s wrongful discharge law. As a result, this cause of action relates not merely to pension benefits, but to the essence of the pension plan itself”). See Mackey, 486 U. S., at 828-830 (a provision that explicitly refers to ERISA in defining the scope of the state law’s application is pre-empted); Greater Washington Bd. of Trade, 506 U. S., at 130-131 (“Section 2(e)(2) of the District’s Equity Amendment Act specifically refers to welfare benefit plans regulated by ERISA and on that basis alone is pre-empted”). As we acknowledged in Travelers, there might be a state law whose economic effects, intentionally or otherwise, were so acute “as to force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers” and such a state law “might indeed be pre-empted under § 614,” 514 U. S., at 668. That is not the ease here.

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ENVIRONMENTAL PROTECTION AGENCY et al. v. CALIFORNIA ex rel. STATE WATER RESOURCES CONTROL BOARD et al. No. 74-1435. Argued January 13, 1976 Decided June 7, 1976 White, J., delivered the opinion of the Court in which Burger, C. J., and BreNNAN, Marshall, BlackmuN, Powell, and SteveNs, JJ., joined. Stewart and RghNquist, JJ., filed a dissenting statement, post, p. 228. Deputy Solicitor General Friedman argued the cause for petitioners. On the brief were Solicitor General Bork, Assistant Attorney General Johnson, Deputy Solicitor General Randolph, Edmund B. Clark, Raymond N. Zagone, and Robert V. Zener. Roderick Walston, Deputy Attorney General, argued the cause for respondent State of California. With him on the brief were Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, and Richard C. Jacobs, Deputy Attorney General. Slade Gorton, Attorney General, argued the cause for respondents State of Washington et al. With him on the brief were Charles B. Roe, Jr., Senior Assistant Attorney General, and Charles W. Lean, Assistant Attorney General. Briefs of amici curiae urging affirmance were filed by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg and Richard G. Berger, Assistant Attorneys General, for the State of New York, joined by Robert L. Shevin, Attorney General of Florida, Warren Spannaus, Attorney General of Minnesota, Peter W. Sipkins, Solicitor General, and Eldon G. Kaul, Assistant Attorney General, for the States of Florida and Minnesota; by Ed W. Hancock, Attorney General of Kentucky, and David C. Short and David D. Beals, Assistant Attorneys General, Arthur K. Bolton, Attorney General of Georgia, Ronald Y. Amemiya, Attorney General of Hawaii, and William J. Brown, Attorney General of Ohio, for the Commonwealths of Kentucky and Pennsylvania and the States of Georgia, Hawaii, and Ohio; by Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Stewart H. Freeman and Charles Alpert, Assistant Attorneys General, for the State of Michigan; by V. Frank Mendicino, Attorney General, Charles J. Carroll, Deputy Attorney General, and Marilyn S. Kite, Special Assistant Attorney General, for the State of Wyoming; by Francis B. Burch, Attorney General, Henry R. Lord, Deputy Attorney General, and Warren K. Rich, Assistant Attorney General, for the State of Maryland; and by John L. Hill, Attorney General of Texas, David M. Kendall, First Assistant Attorney General, Douglas G. Caroom, Assistant Attorney General, and Bronson C. LaFollette, Attorney General of Wisconsin, for the States of Texas and Wisconsin. Mr. Justice White delivered the opinion of the Court. The issue in this case which arises under the Federal Water Pollution Control Act Amendments of 1972 (Amendments), 86 Stat. 816, 33 U. S. C. § 1251 et seq. (1970 ed., Supp. IV), is whether federal installations discharging water pollutants in a State with a federally approved permit program are to secure their permits from the State, or from the Environmental Protection Agency (EPA). As with the related Clean Air Act issue decided this day in Hancock v. Train, ante, p. 167, decision of the specific statutory question- — whether obtaining a state permit is among those “requirements respecting control and abatement of pollution” with which federal facilities must comply under § 313 of the Amendments — • is informed by constitutional principles governing submission of federal installations to state regulatory authority. I Before it was amended in 1972, the Federal Water Pollution Control Act employed ambient water quality standards specifying the acceptable levels of pollution in a State's interstate navigable waters as the primary mechanism in its program for the control of water pollution. This program based on water quality standards, which were to serve both to guide performance by polluters and to trigger legal action to abate pollution, proved ineffective. The problems stemmed from the character of the standards themselves, which focused on the tolerable effects rather than the preventable causes of water pollution, from the awkwardly shared federal and state responsibility for promulgating such standards, and from the cumbrous enforcement procedures. These combined to make it very difficult to develop and enforce standards to govern the conduct of individual polluters. Some States developed water quality standards and plans to implement and enforce them, and some relied on discharge permit systems for enforcement. Others did not, and to strengthen the abatement system federal officials revived the Refuse Act of 1899, § 13, 30 Stat. 1152, 33 U. S. C. § 407, which prohibits the discharge of any matter into the Nation’s navigable waters except with a federal permit. Although this direct approach to water pollution abatement proved helpful, it also was deficient in several respects: The goal of the discharge permit conditions was to achieve water quality standards rather than to require individual polluters to minimize effluent discharge, the permit program was applied only to industrial polluters, some dischargers were required to obtain both federal and state permits, and federal permit authority was shared by two federal agencies. In 1972, prompted by the conclusion of the Senate Committee on Public Works that “the Federal water pollution control program... has been inadequate in every vital aspect,” Congress enacted the Amendments, declaring “the national goal that the discharge of pollutants into the navagible waters be eliminated by 1985.” For present purposes the Amendments introduced two major changes in the methods to set and enforce standards to abate and control water pollution. First, the Amendments are aimed at achieving maximum “effluent limitations” on “point sources,” as well as achieving acceptable water quality standards. A point source is “any discernible, confined and discrete conveyance... from which pollutants are or may be discharged.” An “effluent limitation” in turn is “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources... including schedules of compliance.” Such direct restrictions on discharges facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated. In addition, a discharger’s performance is now measured against strict technology-based effluent limitations— specified levels of treatment — to which it must conform, rather than against limitations derived from water quality standards to which it and other polluters must collectively conform. Second, the Amendments establish the National Pollutant Discharge Elimination System (NPDES) as a means of achieving and enforcing the effluent limitations. Under the NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms. An NPDES permit serves to transform generally applicable effluent limitations and other standards — including those based on water quality — into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits. §§ 309 and 505, 33 U. S. C. §§ 1319 and 1365 (1970 ed., Supp. IV). With few exceptions, for enforcement purposes a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. §402 (k), 33 U. S. C. § 1342 (k) (1970 ed., Supp. IY). In short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the Amendments. NPDES permits are secured, in the first instance, from the EPA, which issues permits under the authority of §402 (a)(1), 33 U. S. C. § 1342 (a)(1) (1970 ed., Supp. IV). Section 402 (a)(3) requires the EPA permit program and permits to conform to the “terms, conditions, and requirements” of § 402 (b). Consonant with its policy “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution,” Congress also provided that a State may issue NPDES permits “for discharges into navigable waters within its jurisdiction,” but only upon EPA approval of the State's proposal to administer its own program. The EPA may require modification or revision of a submitted program but when a plan is in compliance with the EPA's guidelines under § 304 (h)(2), 33 U. S. C. § 1314 (h)(2) (1970 ed., Supp. IV), and is supported by adequate authority to achieve the ends of §§ 402 (b) (1) — (9), n. 15, supra, and to administer the described program, the EPA shall approve the program and “suspend the issuance of permits under [§402 (a)] as to those navigable waters subject to such program.” The EPA retains authority to review operation of a State's permit program. Unless the EPA waives review for particular classes of point sources or for a particular permit application, §§402 (d)(3), (e), 33 U. S. C. §§ 1342 (d)(3), (e) (1970 ed., Supp. IV), a State is to forward a copy of each permit application to the EPA for review, and no permit may issue if the EPA objects that issuance of the permit would be “outside the guidelines and requirements” of the Amendments. §§ 402 (d) (1), (2), 33 U. S. C. §§ 1342(d)(1), (2) (1970 ed., Supp. IV). In addition to this review authority, after notice and opportunity to take action, the EPA may withdraw approval of a state permit program which is not being administered in compliance with §402. §402 (c)(3), 33 U. S. C. § 1342 (c)(3) (1970 ed., Supp, IY). The Amendments also sought to enlist “every Federal agency... to provide national leadership in the control of water pollution in [its] operations." To do so, 33 U. S. C. § 1171 (a), which required federal agencies, “consistent with the paramount interest of the United States as determined by the President [to] insure compliance with applicable water quality standards," was amended by adding § 313, providing that federal installations must “comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements." 33 U. S. C. § 1323 (1970 ed., Supp. IV). II On May 14, 1973, the Acting EPA Administrator approved the State of California’s request to administer its own NPDES permit program and, effective that date, suspended EPA issuance of all permits for “all discharges in the State of California, other than those from agencies and instrumentalities of the Federal government.” App. 18. Soon after this first approval of a state program and after correspondence exchanging views on a State’s authority to issue permits to federal installations, the EPA informed the State of Washington that it “does not have the prerogative to delegate permit issuance for Federal facilities to any state.” Id., at 6. Shortly thereafter the State of Washington’s permit program was rejected as "missing important components,” id., at 7, the EPA reaffirming its position that it had “sole authority to issue permits to federal facilities.” Id., at 25. California and Washington filed petitions for review under §509 (b)(1), which authorizes a court of appeals to review "the Administrator’s action... (D) in making any determination as to a State permit program submitted under section 402(b).” The two States argued that § 313 authorized States with approved NPDES permit programs to require federal dischargers to obtain state permits. The States also argued that § 402 gave the EPA no authority to suspend operation of its permit program in a State only for nonfederal dis-chargers. The Court of Appeals agreed. Mindful of “strong structural and terminological similarities between the Clean Air Act and the 1972 Water Pollution Control Act Amendments” and of the division in the Courts of Appeals as to the meaning of § 118 of the Clean Air Act, the court found in the Amendments several measures, which it thought had no counterpart in the Clean Air Act and which in its view indicated that federal dischargers were subject to state permit requirements. However the Clean Air Act issue might be resolved, the court concluded that those other indications in the Amendments were sufficiently clear to satisfy the appropriate constitutional conditions for subjecting federal installations to state regulation, and held that federal installations were required to secure state NPDES permits. 511 F. 2d 963, 973 (CA9 1975). We granted the EPA’s petition for certiorari, 422 U. S. 1041 (1975), and now reverse the judgment of the Court of Appeals. rH 1 — 1 1 — 1 Our decision in this case is governed by the same fundamental principles applied today in Hancock v. Train, ante, at 179: Federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous. As in Hancock v. Train, we must determine whether Congress has subjected federal installations to the degree of state control urged by the States. The only section of the Amendments expressly obliging federal installations to comply with general measures to abate water pollution is § 313, which provides in part: “Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which, may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges.” 86 Stat. 875, 33 U. S. C. § 1323 (1970 ed., Supp. IY). Except for the reference to service charges, § 313 is virtually identical to § 118 of the Clean Air Act, 42 U. S. C. § 1857f. Taken alone, § 313, like § 118 of the Clean Air Act, states only to what extent — the same as any person- — -federal installations must comply with applicable state requirements. Section 313 does not expressly provide that federal dischargers must obtain state NPDES permits. Nor does § 313 or any other section of the Amendments expressly state that obtaining a state NPDES permit is a “requirement respecting control and abatement of pollution.” The EPA’s position is that the Amendments make clear “only that facilities of the executive, legislative and judicial branches operating within the states must comply with the applicable effluent limitations and compliance schedules promulgated by the particular state pursuant to its E. P. A.-approved implementation plan,” as incorporated in EPA-issued permits, not that they comply with “state regulations demanding that sources of discharges — including federal facilities — obtain discharge permits.” The States claim that this distinction “between permits and effluent ‘limitations’... ignores the fact that the mechanism by which such ‘limitations’ are formulated and applied to individual dischargers is by the permit system established in section 402.” From this the States, recognizing that § 313 itself does not subject federal dischargers to their permit programs, derive their principal argument that a State’s authority to subject federal installations to its EPA-approved permit program must be implied from the practical needs of administering an NPDES permit program, and that this implication is sufficiently clear to satisfy the governing constitutional standard. In their view, the EPA’s agreement that the States have authority to develop and set the substantive content of permits issued to federal dis-chargers is an empty concession; without being able to subject federal installations to its own NPDES program a State is without effective means to formulate and apply the conditions which the EPA must make part of the permit for each individual source. Congress used virtually the same language in § 313 as in § 118 of the Clean Air Act; and our conclusion in Hancock v. Train, ante, p. 167, that the Clean Air Act is without clear indication that Congress intended federal installations emitting air pollutants to be subject to the permit program of a State’s implementation plan makes it difficult for the States to establish that for similar purposes the same language becomes sufficiently clear in § 313 of the Amendments. There are, of course, significant differences between the Clean Air Act and the Amendments. Only the Amendments expressly provide for a permit program to aid in abating pollution. In comparison with the Clean Air Act, the Amendments give the EPA a more prominent role in relation to the States; a State is not required to develop an NPDES permit program, and until a State does develop a permit program all dischargers in the State are subject to a permit program developed and carried out by the EPA. In addition, under the Amendments the EPA’s role in developing the effluent limitations that serve as the basis for a State’s NPDES permit conditions is more prominent than in developing the ambient air quality standards which are the foundation of the emission standards in a State’s Clean Air Act implementation plan. In the aggregate, these differences tend to support the EPA’s position and in any event they hardly require a conclusion contrary to Hancock v. Train, particularly since, in the Court of Appeals’ words, “certain parts of the legislative history would seem to indicate that the'requirements’ language of Section 313 refers simply and solely to substantive” standards, to effluent limitations and standards and schedules of compliance. 511 E. 2d, at 969. With these obstacles to the States' position in mind, we examine the reasons which collectively led the Court of Appeals to conclude and the States to contend that the Amendments clearly require federal installations to secure state NPDES permits. The Court of Appeals first concluded that such an implication appears in the final phrase of the first sentence of § 313 — “including the payment of reasonable service charges.” This language, it is argued, must refer to charges incident to a state permit program: If payment of such charges is a “requirement,” it must be that Congress intended federal installations to secure state NPDES permits, for there would be no reason to order federal installations to pay fees for a permit which they are not required to obtain. However, the legislative history of § 313 casts no light on the meaning of this clause, and it is not immediately clear from the face of § 313 that the phrase does refer to application and service charges associated with an NPDES permit program. Indeed, the term “service charges” might as well be taken to refer to recurring charges for performing a service such as treating sewage, as to fees for accepting and processing a permit application. The EPA so reads the statute and it is not an unreasonable construction. At the very least, the “service charges” language hardly satisfies the rule that federal agencies are subject to state regulation only when and to the extent Congress has clearly expressed such a purpose. The Court of Appeals also found textual support for its conclusion in § 510 of the Amendments. This section, which is patterned after § 116 of the Clean Air Act, provides that the States may set more restrictive standards, limitations, and requirements than those imposed under the Amendments. Section 510 quite plainly was intended to strengthen state authority. It may also have been intended to permit the States to impose stricter standards and effluent limitations on federal installations than would have been imposed under an EPA permit in the absence of an approved state NPDES program. But this hardly answers the question before us, which is whether these higher standards are to be enforced through a state rather than an EPA permit system. It is nevertheless argued that the meaning of the phrase “requirements respecting control and abatement of pollution” used in § 313 is informed by its use in § 510, an argument akin to one made and rejected in Hancock v. Train, ante, at 186-187, n. 47. We reject it here for much the same reasons: The phrase cannot have the same meaning in both sections, and there is scant reason to credit the States’ position that treating “standards” and “requirements” disjunctively in § 510 somehow dictates that “requirements” in § 313 shall embrace more than “standards.” Another contention drawing upon § 510 is that a State’s authority to impose stricter substantive standards on federal installations is meaningless if a State cannot subject federal dischargers to its permit system. This is simply an adjunct to the States’ primary argument that no state NPDES permit system can function effectively unless federal dischargers are required to obtain state permits and that federal installations are therefore impliedly, but clearly subject to state permit programs. We cannot agree. Before a State has its NPDES program approved, it is the EPA which issues permits for all dischargers, federal and nonfederal. Since the Amendments do not require the States to develop NPDES programs, we must assume that the Congress was satisfied that the EPA could administer the program, not only by promulgating the nationwide effluent limitations and other standards required by the Amendments, but also by translating those limitations into the conditions of individual permits for individual federal and nonfederal dischargers. We must also assume that the Congress contemplated that there may be some States, which would elect not to develop an NPDES program but would nonetheless determine — as § 510 permits — to adopt water quality standards or other limitations stricter than those the EPA itself had promulgated and would otherwise apply. This being the case, Congress must have contemplated that the EPA was capable of issuing permits in that State — to both federal and nonfederal dischargers — and of enforcing those stricter standards. Some of those standards — in fact all but those pegged to the quality of the receiving waters — could be translated into permit conditions for each discharger without coordinating the conditions in other permits, because the effluent limitations in the Amendments are technology based and the timetable by which compliance is to be achieved is not made to depend on the performance of other dischargers. Other standards, primarily those involving water quality standards, would require coordination among the permit conditions of numerous polluters — federal and nonfed-eral, and it is evident that Congress contemplated that the EPA was capable of carrying out this function as well. The presence of the EPA as a permit-issuing authority means that although federal dischargers are not securing state NPDES permits they are nevertheless being subjected to the administrative authority of a federal agency which is required to make a State’s “more stringent limitation [s], including those necessary to meet water quality standards, treatment standards, or schedules of compliance” part of the conditions of the permits it must issue. We recognize that there may be some problems of coordination between the EPA and the state pollution control agency in the implementation of state water quality standards. State officials may view the EPA implementation of a State’s — or its own-water quality standards as placing a disproportionate share of the additional abatement effort on the nonfederal dis-chargers in the State, thereby obligating the State to impose undesirably restrictive effluent limitations on those nonfederal — predominantly private — dischargers. At the same time, Congress might have been apprehensive that state regulatory officials, if in the position to do so, would impose a disproportionate share of the burden on federal dischargers. However that may be, we believe that these possible problems of coordination in the administration of water quality standards fail to provide an adequate basis for finding a clear congressional intention to subject federal dischargers to the degree of control inherent in adhering to state permit requirements respecting water quality standards. The States make several other arguments in support of their position that Congress intended federal dis-chargers to be subject to state NPDES permit programs, that “requirements” in § 313 include securing a state NPDES permit. We find none of them persuasive. They assert that since the EPA’s authority to issue permits to federal dischargers stems at least in part from § 313, it is “capricious” to conclude that the word “requirements” in § 313 refers to permits issued by the EPA under §402 (a), but not to permits issued by a State under §402 (b). The answer to this argument is that the EPA’s authority to issue permits to federal as well as nonfederal dischargers is granted by §402 (a), not § 313. Nor does the “requirement” that a federal dis-charger secure a permit stem from § 313; that also arises from § 402 (a) alone. The States, like the Court of Appeals, 511 F. 2d, at 973, also find support for their position in § 505 of the Amendments, 33 U. S. C. § 1365 (1970 ed., Supp. IY), which provides that a citizen may commence civil actions in district court “against any person (including... the United States...) who is alleged to be in violation of... an effluent standard or limitation under this Act....” § 505 (a)(1), 33 U. S. C. § 1365 (a)(1) (1970 ed., Supp. IV). One of the definitions of “effluent standard or limitation” for purposes of § 505 is “a permit or condition thereof issued under section 402 of this Act, which is in effect under this Act (including a requirement applicable by reason of section 313 of this Act).” §505 (f)(6), 33 TJ. S. C. § 1365 (f)(6) (1970 ed., Supp. IV). California reads § 505 (f) to equate a “requirement” under § 313 with a permit issued under § 402, as if § 505 (f) (6) were phrased: “any permit or condition thereof issued under Section 402 of this Act, which is in effect under this Act (including one issued to a federal discharger).” In a similar vein, Washington asserts that “[cjitizens may bring suit to enforce permits issued under Section 402,” including “permits and conditions thereof applicable because of Section 313.” Brief 18. It is more reasonable, however, to interpret “requirement” in the parenthetical expression in § 505 (f) (6) as referring principally to a “condition,” not to a “permit.” This is because of the Amendments’ primary reliance on the NPDES as a means to abate and control water pollution. See supra, at 205. For enforcement purposes § 402 (k) deems a permit holder who is in compliance with the terms of its permit to be in compliance “with sections 301, 302, 306, 307, and 403, except any standard imposed under section 307 for a toxic pollutant injurious to human health.” 33 U. S. C. § 1342 (k) (1970 ed., Supp. IV). Thus, the principal means of enforcing the pollution control and abatement provisions of the Amendments is to enforce compliance with a permit. Of the six subdivisions of § 505 (f) defining “effluent standard or limitation,” only § 505 (f) (6) refers to any of the standards or limitations as translated into the conditions of an NPDES permit. Thus, while §§ 505 (f) (2)-(4) permit suits for violation of effluent standards or limitations promulgated under §§ 301, 302, 306, and 307, a suit against a permit holder will necessarily be brought under the definition in § 505 (f)(6); unless the plaintiff can show violation of the permit condition, violation of the Amendments cannot be established. This is true both for conditions imposed in accordance with EPA-promulgated effluent limitations and standards and for those imposed in accordance with more stringent standards and limitations established by a State pursuant to § 510. The reference in § 505 (f) (6) to requirements applicable by reason of § 313 is to be read as making clear that all dischargers (including federal dischargers) may be sued to enforce permit conditions, whether those conditions arise from standards and limitations promulgated by the Administrator or from stricter standards established by the State. In short, we cannot accept the States’ position that the meaning of “requirements” in § 313 they urge is supported by its use in § 505 (f) (6). Finally, it is argued that when a State submits a plan in conformity with § 402, the EPA must approve it and must then suspend the issuance of all EPA permits with respect to the waters covered by the plan, including permits to federal agencies. Because it is inconceivable that Congress would have intended federal instrumen-talities to operate without permits, it is contended that Congress anticipated the state permit system to apply. The difficulty with this position is that under § 402, the EPA obviously need not, and may not, approve a state plan which the State has no authority to issue because it conflicts with federal law. If § 313 expressly said that federal instrumentalities must comply with state discharge standards but need not secure state permits, it would be untenable to urge that a state plan which nevertheless attempts to subject federal agencies to state permit requirements would have to be approved simply because it was otherwise in compliance with § 402. As we construe § 313, this is the situation before us. By the same token, we do not think that EPA permit authority with respect to federal agencies terminates wheb. the EPA purports to approve a state plan except for that portion of it which seeks to subject federal instrumen-talities to the state permit regime. From the outset of the EPA’s administration of the NPDES and in its first regulations establishing the § 304 (h) (2) guidelines for state NPDES permit programs, see 37 Fed. Reg. 28391 (1972), the EPA has taken the position that authority to suspend issuance of EPA permits extends only “to those point sources subject to such approved program.” 40 CFR § 124.2 (b) (1975). The implications that the state program would only embrace nonfederal dischargers on those navigable waters subject to the program and that the EPA was authorized to and would continue to issue permits to federal dischargers were soon made explicit in 40 CFR §§ 125.2 (a) (2), (b) (1975), which provide that federal dischargers are to comply with the EPA permit program' and that state NPDES permit programs do not cover federal agencies and instrumentalities. This construction by the agency charged with enforcement of the Amendments is reasonable and in the absence of any cogent argument that it is contrary to congressional intentions we sustain the EPA’s understanding that the States are without authority to require federal dis-chargers to secure their NPDES permits. IV Our conclusion is that the Federal Water Pollution Control Act Amendments of 1972 do not subject federal facilities to state NPDES permit requirements with the requisite degree of clarity. Should it be the intent of Congress to have the EPA approve a state NPDES program regulating federal as well as nonfederal point sources and suspend issuance of NPDES permits as to all point sources discharging into the navigable waters subject to the State’s program; it may legislate to make that intention manifest. The judgment of the Court of Appeals is Reversed. Mr. Justice Stewart and Mr. Justice Rehnquist dissent. They agree substantially with the reasoning of the Court of Appeals for the Ninth Circuit in this case, 511 F. 2d 963, and they would, accordingly, affirm its judgment. 33 U. S. C. § 1323 (1970 ed., Supp. IV). The Act was first passed in 1948, Act of June 30, 1948, 62 Stat. 1155, and has been frequently revised. See annotation following 33 U. S. C. §1251 (1970 ed., Supp. IV). Before the 1972 Amendments the Act was codified at 33 U. S. C. § 1151 et seq. 79 Stat. 907, as amended, 33 U. S. C. § 1160 (c). The States were to promulgate water quality standards and an implementation plan meeting certain criteria. 33 U. S. C. §§ 1160 (c) (1), (3). If a State did not establish such standards and a plan, the Administrator was charged to promulgate water quality standards — but not a plan — in cooperation with state officials. 33 U. S. C. §§ 1160 (c) (2), (4). See Exee. Order No. 11574, 3 CFR 986 (1966-1970 Comp.). See also 84 Stat. 108, 33 U. S. C. § 1171 (b). S. Rep. No. 92-414, p. 5 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1423 (1973) (hereafter Leg. Hist.). S. Rep. No. 92-414, supra, at 7, 2 Leg. Hist. 1425. §101 (a)(1), 33 U. S. C. §1251 (a)(1) (1970 ed., Supp. IV) (emphasis added). Previously the purpose of the Act had been “to enhance the quality and value of our water resources and to establish a national policy for the prevention, control, and abatement of water pollution.” 33 U. S. C. § 1151 (a). § 502 (14), 33 U. S. C. § 1362 (14) (1970 ed., Supp. IV). The terms “pollutant” and “discharge of pollutant” are defined in §§ 502 (6), (12), 33 U. S. C. §§ 1362 (6), (12) (1970 ed., Supp. IV). § 502 (11), 33 U. S. C. § 1362 (11) (1970 ed., Supp. IV). Section 502 (17) defines a “schedule of compliance” to be “a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard.” 33 U. S. C. § 1362 (17) (1970 ed., Supp. IV). Point sources other than publicly owned treatment works must achieve effluent limitations requiring application of the “best practicable control technology currently available” by July 1, 1977, and application of the “best available technology economically achievable” by July 1, 1983. §§ 301 (b) (1) (A), (2) (A), 33 U. S. C. §§ 1311 (b) (1) (A), (2) (A) (1970 ed., Supp. IV). Water quality standards are retained as a supplementary basis for effluent limitations, however, so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels. See §§ 301 (e), 302, 303, 33 U. S. C. §§ 1311 (e), 1312, 1313 (1970 ed., Supp. IY). § 402, 33 U. S. C. § 1342 (1970 ed., Supp. IV). Section 301 (a), 33 U. S. C. §1311 (a) (1970 ed., Supp. IV), makes unlawful “the discharge of any pollutant by any person” except in compliance with numerous provisions of the Amendments, including § 402 which establishes the NPDES. In effect, the NPDES terminates operation of the Refuse Act permit program. §§402 (a)(4), (5), 402 (

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LAWRENCE WAREHOUSE COMPANY, a corporation, Appellant, v. Hugh J. TWOHIG, Louis McLaughlin, William S. Brown and Harold C. Torkel-son, d/b/a Wagner, Garrison & Abbott, Appellees. Hugh J. TWOHIG, Louis McLaughlin, William S. Brown and Harold C. Torkel-son, d/b/a Wagner, Garrison & Abbott, Appellants, v. LAWRENCE WAREHOUSE COMPANY, a corporation, Appellee. Nos. 15028, 15029. United States Court of Appeals Eighth Circuit. July 14, 1955. Rehearing Denied Aug. 8, 1955. Charles 0. Butler, Chicago, Ill. (Maynard Garrison, Wallace, Garrison, Norton & Ray, San Francisco, Cal., Harry H. Miller, Sifford & Wadden, Sioux City, Iowa, with him on the brief), for Lawrence Warehouse Co. Kenneth T. Wilson and Charles F. Stil-will, Sioux City, Iowa (Charles M. Stil-will, Sioux City, Iowa, with them on the brief), for Hugh J. Twohig and others. Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges. JOHNSEN, Circuit Judge. A livestock commission firm sued a warehouse company for restitution, on the alternative theories (a) that plaintiff was the owner of 100 beef carcasses, which had been placed in defendant’s refrigerated warehouse and which defendant had allegedly converted to its own use, or (b) that plaintiff had such a beneficial interest in the carcasses, with defendant having knowledge of plaintiff’s equitable rights, as to make defendant’s appropriation or use of the carcasses, to take the place of other carcasses on which defendant had issued warehouse receipts, and to effect a discharge thereby of defendant’s liability to the holders of those receipts for such other carcasses, an unjust enrichment in defendant’s favor as against plaintiff. On a non-jury trial, the court held that plaintiff did not have legal title or possessory right to the carcasses and so was without any basis to sue for a conversion, but that on the circumstances of the situation plaintiff equitably had such a beneficial interest in the carcasses as would entitle it to restitution from defendant, on the basis of unjust enriehment occurring against it, for any pecuniary advantage or benefit which defendant could be shown to have received from a utilization of the carcasses to satisfy its obligation or liability for other carcasses under previously issued warehouse receipts. The court further declared, however, that the evidence did not establish the existence of any such enrichment in defendant’s favor, from the utilization or disposition which had been made of the carcasses, except as to 62 out of the 100 carcasses. It accordingly gave plaintiff judgment for only part of the amount sought to be recovered. Both defendant and plaintiff have taken an appeal. The facts of the situation have been carefully set out in the trial court’s reported opinion, D.C., 118 F.Supp. 322. Only those immediately necessary to the questions on appeal will be repeated here. Plaintiff, a livestock commission firm at Sioux City, Iowa, had agreed to make purchases of cattle on that market for Mid States Packing Co., Inc., a small meat packer of Milan, Illinois. Under the arrangement between them, plaintiff was to pay for all such cattle with its own funds, take out transit insurance on them in Mid States’ favor as owner, and arrange for the shipment of them immediately by truck to Mid States’ plant at Milan, Illinois. A draft was then to be drawn by plaintiff on Mid States, covering the advances made for. purchase price and insurance premium, and the amount of its commission-man’s fees, with the draft to be sent through regular banking channels for payment at a bank in Rock Island, Illinois. Mid States promised plaintiff that all such drafts would be paid promptly upon their arrival at the Rock Island bank, and it further supplied plaintiff with a copy of a statement filed by it with the bank that it would accept and pay “any and all drafts” drawn by plaintiff “fof payment of cattle.” The operations of Mid States throughout this period were being conducted on a shoe-string basis financially, but this fact was neither disclosed to nor known by plaintiff. The plan of having plaintiff pay for the cattle, ship them immediately to Milan, Illinois, and allow the commercial paper therefor to clear through a bank at Rock Island (which would be via Chicago channels) afforded Mid States a margin of several days time in which to receive the cattle, slaughter them, place the carcasses in defendant’s warehouse, have defendant issue warehouse receipts on them, make use of the warehouse receipts to procure a loan from the Rock Island bank, and thereby get itself into a position to be able to make payment of plaintiff’s draft when it arrived. This was the only way that it was possible for Mid States regularly as principal to reimburse plaintiff for the advances which it thus was making as agent. Defendant’s warehouse manager at Milan, Illinois, knew of the agency relationship which existed in plaintiff’s purchasing of cattle for Mid States; of plaintiff’s advancing of the purchase price for such cattle as an incident of that relationship; of the arrangement for having plaintiff draw drafts in reimbursement and having Mid States make payment of them as soon as they arrived at the Rock Island bank; of the need and the plan of Mid States in its financial situation to get each of such shipments slaughtered, have warehouse receipts issued on the carcasses, and hurry the warehouse receipts to the Rock Island bank for a loan, before the draft of plaintiff covering the shipment should arrive for payment; and of the fact that only the use and results of this system had made it possible for Mid States to fulfill its obligation as principal of reimbursing plaintiff; had enabled Mid States to preserve the existence of the agency relationship on the part of plaintiff; and had been responsible for plaintiff having made purchase and shipment to Mid States of the 100 cattle, whose carcasses are here involved. All of the foregoing facts were in substance or effect found by the trial court, and they all have a sufficient evi-dentiary basis in the record. The findings go further than this and — also on a proper evidentiary basis — constitute the situation as one where defendant’s manager had had a direct part in assisting Mid States to carry on the financial game and race in which it was engaged, as a means of preserving plaintiff’s agency relationship and the continuing of cattle-buying by it in Mid States’ behalf. Defendant’s warehouse was located at and run adjunctively to the meat-packing plant. Defendant had given its consent to its warehouse manager engaging in performing duties and functions for Mid States. What the manager thereafter principally did for Mid States was to keep records for it and handle many of the details of its financial transactions, such as having assignments of the warehouse receipts issued by him on carcasses of the cattle received from plaintiff duly executed by Mid States in favor of the Rock Island bank, and taking such assigned receipts to the Rock Island bank for loans, as such action became necessary on his part, in the process of making certain that the funds would be available at the bank to meet plaintiff’s incoming draft. The court still further found — again upon a proper evidentiary basis — that the acts of defendant’s manager began, as time went on, to become fused even more than this into Mid States pillar-to-post operations. He commenced to make releases, on Mid States’ request, of carcasses on which warehouse receipts had been issued, without obtaining authority therefor from the bank as as-signee and holder of the receipt. An examiner of defendant (which operated a chain of warehouses throughout the country),, on making a routine check of the operations of the Milan warehouse about a month before the events that are immediately here involved, discovered that such unauthorized releases of carcasses had been made and reported this fact to defendant. Three additional checkings of the warehouse’s operations were thereupon made within a ten-day period, and these showed that the unauthorized releasing of carcasses by the manager had been repeated. Specific cautioning was then given the manager not to make any further releases of carcasses without prior authorization from the holder of the warehouse receipts covering them. Two weeks later, however, defendant’s manager, on Mid States’ request, released 62 more carcasses, without authority from the bank as assignee and holder of the warehouse receipts issued on them, which carcasses Mid States desired to ship to a buyer in Chicago. These carcasses became the subject of “hijacking”, after they reached Chicago but before they had been delivered. During the time that the releasing and hijacking of these carcasses were occurring, plaintiff had made purchase for and shipment to Mid States of 100 cattle, whose carcasses are the ones that are involved in this suit. Mid States took over the 100 cattle upon their arrival at the Milan plant and slaughtered them. The carcasses were duly put in defendant’s warehouse, but Mid States and defendant’s manager, who were then aware of the shortage problem confronting them from the carcasses which had been released and hijacked, did not undertake to subject the 100 carcasses to warehouse receipts, in accordance with the routine and practice of both of them in the past. Instead, they chose to protect themselves and leave plaintiff holding the sack, by using 62 of the carcasses to take the place of those hijacked, through fraudulently subjecting such carcasses to the operation of the warehouse receipts issued on the hijacked carcasses. In similar fashion, they further used the remaining 38 of the 100 carcasses to take the place of that number of carcasses under other previous warehouse receipts held by the bank. All of the 100 carcasses were thereafter sold, with the proceeds going to the bank, under authorization of shipment and sale given by the bank in relation to the previous warehouse receipts ; under a releasing by defendant’s manager of the carcasses as being applicable to those receipts; and with satisfaction being by this means effected of the warehouseman’s liability existing on the receipts. Thus, what defendant’s manager accomplished, and what defendant gained in pecuniary benefit or advantage, from having the 100 carcasses so used, was to effect a discharge or satisfaction of defendant’s legal accountability to the bank for the carcasses on which the receipts had been issued, and an escaping thereby of the need to produce or pay for those carcasses, as it otherwise would apparently have been required to do. Making substituted security applicable to its receipts and palming off that security against the receipt holder as being the property on which the receipts had been issued constituted, of course, a general legal fraud on the part of the warehouseman. It was, however, not the holder of the receipts, but plaintiff, whom this improper legal conduct was designed to affect, through the intentional sacrificing of plaintiff’s right and expectation of reimbursement to the gaining of personal exoneration for defendant and Mid States from the misdeeds which they had jointly committed as to the warehouse receipts. And this collusive scheme, so far as defendant was concerned, was carried out, as the trial court found, in the inequitable shadows of its manager’s express knowledge that the 100 carcasses represented cattle which plaintiff had purchased, shipped and was expecting reimbursement for in the channel of normal agency relationship; that plaintiff’s drafts for the cattle were then in process of regular arrival at the bank and payment of them, as well as any chance that plaintiff could possibly have of obtaining reimbursement, was dependent upon the carcasses being made to serve that purpose, as had been the practice in the past; that any attempt by defendant to have the carcasses diverted to its previous warehouse receipts, or any request by Mid States upon it to have the carcasses applied in replacement of those for which defendant owed a legal accountability under its receipts — whichever basis may have been the source of the collusive scheme involved — would necessarily have the effect of producing a violation of Mid States’ obligation and promise of reimbursement to plaintiff as its agent; and that this breach of fiduciary duty by Mid States, in intentionally depriving plaintiff of reimbursement and the only possible source for plaintiff to obtain it, was being participated in by defendant, not merely knowingly, but with a gaining of the direct benefit or advantage for itself of having the deprivation against plaintiff cover up and save defendant whole from its liability to its receipt holder for its misdeeds as warehouseman. On all of this, it seems to us that it clearly would be entitled to be held that Mid States stood in a fiduciary relation, as principal, to plaintiff, as its cattle-purchasing agent, and so owed fiduciary duties and obligations appropriate generally to the trust and confidence inherent in the circumstances of the particular relationship; that Mid States’ failure to reveal to plaintiff its need to get the money out of the very cattle purchased by plaintiff, if plaintiff was to receive or be able to effect reimbursement from it, and its use of the cattle in these circumstances to apply as substituted security under defendant’s previous warehouse receipts, when only the wrongful conduct of itself and defendant in having diverted or released the security legally applicable to such receipts was responsible for the need and desire to make this use, and when the use was being made to cover up or insulate against the misdeeds of defendant and itself in making the security releases, constituted a breach of such fiducial faith and conduct as plaintiff had a right to assume would characterize their agency dealings and relationship; that the breach of fiducial faith and conduct involved in the use so made of the carcasses was one that was and only could be the product of participation and collusion on the part of defendant, through its having made improper shiftings or releases at Mid States’ request of security legally covered by its receipts, through its having permitted the 100 carcasses to be substituted or used in replacement of security under its receipts, and through its having utilized the carcasses to satisfy or discharge the obligation of its receipts, while at the same time knowing and being willing that these improper warehouseman’s acts and the saving of itself harmless from their consequences would operate to deprive plaintiff of the only possible source of reimbursement for its purchase-price outlay as Mid States’ agent; and that the effecting of a discharge or satisfaction in this shadowy manner of the liability existing upon the warehouse receipts had resulted in defendant receiving a direct benefit or advantage from the carcasses, which was an inequitable one against plaintiff in the circumstances, and which constituted an unfair or unjust enrichment as between them. Some of the general principles, in relation to which the situation is entitled to be viewed and evaluated, may be briefly stated. A principal has the obligation of exercising good faith toward his agent in the incidents of their relationship. He is subject to the responsibility in favor of the agent of using care “to prevent harm coming to the agent in the prosecution of the enterprise,” and this extends in general to his “disclosing facts which, if unknown, would be likely to subject the agent to pecuniary loss.” Restatement, Agency, § 435, Comment a. He has a duty to reimburse the agent for all authorized payments made in his behalf. Id. § 439. Any direct attempt on his part to impede or make impossible the obtaining of such reimbursement by the agent is a breach of fiducial faith and duty. “A third person who has colluded with a fiduciary in committing a breach of duty, and who obtained a benefit therefrom, is under a duty of restitution to the beneficiary.” Restatement, Restitution, § 138(2). Or, as Professor Scott puts it — “Where a person in a fiduciary relation to another violates his duty as fiduciary, a third party who participates in the violation of duty is liable to the beneficiary. If the third person makes a profit through such participation, he is chargeable as constructive trustee of the profit so made.” 3 Scott on Trusts § 506. The term “benefit”, for purposes of restitution, denotes any form of advantage received, which is capable of having its value measured, and it accordingly includes the advantage of being saved from an expense or loss. Restatement, Restitution, § 1, Comment b. Any benefit received by one person as against another is entitled to be regarded as an unjust enrichment, “if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for him to retain it.” Id. § 1, Comment c. We are persuaded, as was the trial court, that Illinois law, by which the case is admitted to be governed, accepts and would apply all of these general principles in an appropriate situation. In attempting to make reasonable application of them here to the facts that are involved, on the basis of sound equitable conscience and remedial concept, it is our view and holding, as a matter of law, that defendant’s use of the 100 carcasses, to cover up and save itself harmless from its improper warehouseman’s acts in making releases of security from the application of its warehouse receipts — particularly when, as here, its own participation or collusion with Mid States, in permitting such releases to be made, was responsible for the need to effect a substitution or replacement; when the result was, and it was known to defendant that it would be, to prevent Mid States from fulfilling its fiduciary duty to plaintiff of making reimbursement, and to cause Mid States in the circumstances to breach the trust and confidence of plaintiff’s relationship to it; and when defendant was itself by this means enabled to escape liability upon its warehouse receipts and to have its obligation to the holder discharged for the carcasses improperly allowed to be taken out of the application of its warehouse receipts — amounted in the situation to an unjust enrichment, in that, as between the knowledge, conduct and position of plaintiff and defendant, and in relation to the consequences involved, it constituted a benefit (capable of value admeasurement), which, on the basis of equitable conscience, it was unfair for defendant to have received, and which it would be unfair to allow defendant to retain. As we have previously indicated, however, the trial court did not feel that the situation warranted the granting of restitution, except as to the 62 carcasses which had been used in substitution or replacement for the carcasses which defendant had allowed to be released and which had become hijacked. The court said: “The plaintiff has clearly and satisfactorily established its right to restitution as to the 62 carcasses. The plaintiff has not so established its right to restitution as to the 38 carcasses. As to the 38 carcasses there is no clear and satisfactory showing that the defendant was a ‘subsequent transferee’ or that the defendant was enriched by its connection with them. So far as the record shows, the defendant may have been no more than a conduit.” 118 F.Supp. at page 330. But the evidence undisputably established, and the trial court’s findings, so recognized, that all of these 38 carcasses, just the same as the 62 carcasses for which restitution was granted, were made to have application to previous warehouse receipts in place of other carcasses which defendant was supposed to be holding as the security or property covered by the receipts, and that they, similarly as the 62, were used to effect a discharge or satisfaction of the obligation of defendant to account for those other carcasses under its receipts. The only way in which the situation as to the 38 carcasses differs from that as to the 62 is that the record does not show what became of the 38 carcasses covered by the receipts, for which those here involved were used in substitution or replacement. We do not, however, see how that fact can have any materiality on the question of whether defendant received a benefit from its use of the 38 carcasses here involved, unless, of course, the carcasses covered by the receipts happened to have been turned over to plaintiff or used to help pay plaintiff’s claim, of which there is here neither contention nor proof. Whatever became of the carcasses covered by the receipts — whether they were permitted by defendant to enure to the benefit of Mid States or somebody else— the controlling circumstance here is that the 38 carcasses in suit were in fact used by defendant as substituted security for its receipts and enabled it to escape having to produce or account for those which its receipts covered. Hence, just as much as in the case of the 62 carcasses used to replace those hijacked, defendant’s use of the 38 carcasses in substitution or replacement of that number of other carcasses under its receipts caused it to receive the benefit of not having to produce or account for those carcasses and of obtaining a discharge of its liability for them under its receipts. Substitution or replacement of security under its receipts was capable of being accomplished only by defendant’s own release of the carcasses covered by the receipts, since it had the control of the warehouse. It had a liability to account for those carcasses on its receipts, and when it improperly used the 38 carcasses here involved as substitutions or replacements for making that accounting and for effecting the discharge of its own liability to the receipt holder, it no less received a benefit, and no more had a basis for being regarded as a mere conduit, than in its use of the 62 carcasses to replace those hijacked. Plaintiff is accordingly entitled to a judgment for the full amount for which it sued. To enable this to be conveniently accomplished, the judgment of partial recovery allowed by the trial court will be vacated, and the case will be remanded for the entry of a new judgment. The costs on appeal, including the supplemental record printed by plaintiff, will be taxed to defendant. Judgment vacated and case remanded for entry of another judgment. . The livestock commission firm was a partnership, and the suit was brought by its members jointly. They will be referred to collectively in this opinion as plaintiff. . The commission-man’s fees included in the drafts represented only a trivial portion of their amounts. Thus, on the 100 cattle which are her® involved, the drafts totalled $30,089.94, of which only $103.-50 was for commission-man’s fees, with the rest constituting money which plaintiff had advanced.

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

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

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

Matthew J. CONNELLY and T. Lamar Caudle, Appellants, v. UNITED STATES of America, Appellee. No. 15746. United States Court of Appeals Eighth Circuit. Nov. 15, 1957. Rehearing Denied Dec. 13, 1957. John H. Lashly and Jacob. M. Lashly, St. Louis, Mo. (Paul B. Rava, Lashly, Lashly & Miller, St. Louis, Mo., and Alan Y. Cole, Washington, D. C., were with them on the brief), for appellant Matthew J. Connelly. John J. Hooker, Nashville, Tenn. (Walter M. Haynes, Winchester, Tenn., and C. Arthur Anderson, St. Louis, Mo., were with him on the brief), for appellant T. Lamar Caudle. Warren Olney, III, Asst. Atty. Gen. (Harry Richards, U. S. Atty., St. Louis, Mo., and Carl H. Imlay, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellee. Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges. GARDNER, Chief Judge. Appellants with one Harry I. Schwimmer were indicted under an indictment which charged them with conspiring to defraud the United States government in violation of Section 371, Title 18, U.S.C. The single count indictment alleged that the purpose of the conspiracy was to defraud the United States of the proper administration of the Internal Revenue laws and regulations, of the proper and faithful service of appellants Connelly and Caudle and to commit the offenses of bribery, perjury and knowingly making false statements and.entries.. The indictment named as co-conspirators but not as defendants Irving Sachs, Ellis N. Slack, Shu-Stiles, Inc., and divers other persons to the grand jury unknown. At all times pertinent to the issues here involved appellant Matthew J. Connelly was Appointment Secretary to President Truman; appellant T. Lamar Caudle was an Assistant Attorney General in charge of the Tax Division of the Department of Justice; Harry I. Schwimmer was a Kansas City, Missouri, lawyer; Ellis N. Slack was an attorney in the Department of Justice; Irving Sachs was a St. Louis, Missouri, shoe broker, and Shu-Stiles, Inc. was a Missouri corporation of which Sachs was president. The indictment further charged that the purpose of the conspiracy was to protect Irving Sachs from criminal prosecution for Internal Revenue law violations. After considerable testimony had been introduced by the government in support of the indictment Harry I. Schwimmer, named as a defendant, suffered a heart attack making it impossible for him to be present at the trial and thereupon a five day continuance was had. On proof that defendant Schwimmer could not, because of his heart condition, continue to be present at the trial or to participate therein the court declared a mistrial as to him whereupon appellants Connelly and Caudle moved for a mistrial as to themselves, which motions the court denied. At the close of the government’s evidence in chief, appellants moved for judgments of acquittal which motions were denied. The appellants then offered evidence in their defense and at the close of all the evidence they renewed their motions for judgments of acquittal. The court announced that it would reserve ruling on these motions. At the close of all the evidence the court withdrew from the consideration of the jury the allegations of the indictment regarding the substantive offenses of bribery, perjury and knowingly making false statements and entries and then submitted the case to the jury on instructions to which no exceptions are here urged. The jury returned verdict of guilty as charged in the indictment and thereafter appellants interposed motions for judgment of acquittal notwithstanding the verdict, or, in the alternative, for a new trial. They also renewed their motions for mistrial which had been denied at the time a mistrial was declared as to defendant Schwimmer. The court set these motions down for hearing thirty days from the date of filing. Twelve days before the date set for hearing Judge Hulen, who had heard the case, departed this life and thereafter and in due course Judge Gunnar H. Nordbye, United States District Judge for the District of Minnesota, was appointed as successor judge under Rule 25, Federal Rules of Criminal Procedure, 18 U.S.C.A. Subsequent to the appointment of Judge Nordbye as successor judge appellants filed a supplemental motion for new trial on the ground of newly intervening facts, namely, the death of Judge Hulen, whereby appellants alleged they were deprived of the determination of pending motions by the trial judge, and on the ground of newly discovered evidence regarding the failure of some jurors to answer material questions propounded by the trial court upon voir dire examination. A hearing was had before Judge Nordbye on all pending motions December 18, 1956, and thereafter on February 11, 1957, all pending motions were overruled by him. Subsequent to the denial of these pending motions and on or about March 4, 1957, appellants filed a third supplemental motion for new trial on the ground of alleged newly discovered evidence. This too was denied by Judge Nordbye, following which the court pronounced sentence and entered judgment pursuant to the jury’s verdict. It is the contention of appellants that they were deprived of a fair trial by virtue of Judge Hulen’s death after verdict was rendered and by the fact that a successor judge heard and denied their post-trial motions for judgment of acquittal and for a new trial. It is urged that the successor judge was not qualified to pass upon the pending motions, particularly their motions for judgment of acquittal notwithstanding the verdict or in the alternative for a new trial, because not having presided at the trial of the case he did not have the “feel of the case”. Rule 25, Federal Rules of Criminal Procedure provides as follows: “If by reason of absence from the district, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.” Judge Nordbye was assigned as successor judge in this case in strict compliance with this rule. Federal criminal law and procedure are dependent upon Federal statutes. Under this rule it was the duty of the successor judge, in the first instance at least in the exercise of a sound judicial discretion, to determine whether he could satisfactorily perform the duties of the judge who presided at the trial and whom he succeeded. It is to be observed that in the instant case while Judge Nordbye was assigned to perform the unfinished trial of this case on June 16, 1956, he did not hear the pending motions until some six months later and it is quite apparent from this record that in that time he thoroughly familiarized himself with the facts and satisfied himself that he could perform the duties to be performed by the presiding judge. Referring to this contention Judge Nordbye in the course of his opinion says: “ * * * This Court is not unmindful that the observation made by the defendants as to the assigned Judge’s being unable to have the ‘feel of the case’ is a matter that deserves careful consideration, and undoubtedly there is substance to defendants’ position in this regard. On the other hand, this Court cannot escape the fact that this case has.taken a long time to try, the defendants were represented by experienced and skillful counsel, and the Judge who presided at the trial was •recognized by all parties to have been not only an able and experienced trial judge, but one who presided with impeccable fairness and impartiality. Consequently, it would seem that, under these circumstances and after consideration of the entire record, I should not evade the responsibility which rests upon me by summarily granting a new trial, but rather to the best of my ability attempt to render definitive rulings on the various aspects of the motions presented.” There might well be a criminal case in which the testimony would be of such a character that a successor judge could not fairly pass upon the questions here presented. If the evidence of the government were denied and the question of the credibility of the government witnesses was a serious issue the conflict in the evidence and the question of the credibility of witnesses might bé a matter of very serious consideration. However, in the instant case the evidence of the government was not of that character. As has been observed, the defendants here were charged with attempting to thwart the criminal prosecution of Irving Sachs for Internal Revenue law violations. The Internal Revenue agents on investigation reported that Sachs as president of Shu-Stiles, Inc. had fraudulently evaded taxes due the government by the company to the extent of $188,-378.32. Criminal prosecution had been recommended by the agents of the Bureau of Internal Revenue and attorney Schwimmer was then employed to thwart this threatened criminal prosecution. The government’s testimony tended to prove certain business transactions between Schwimmer and appellants by which the appellants profited, the payment of large sums of money by Sachs to Schwimmer,. entries in - books of Schwimmer indieating disbursement of sums of money on behalf-of appellants, evidence that Schwimmer had purchased for appellant Connelly two suits of clothes, and evidence of visits by Schwimmer to and consultations with the appellants at various times. This general characterization of this testimony indicates that it was in the nature of circumstantial evidence by the government furnishing the basis for inferences by the jury and it was not disputed by appellants but their testimony went to either their lack of knowledge of other explanations of the transactions proven by the government. In these circumstances there was not much to be gained by hearing the testimony of the witnesses and observing their demeanor that could not be gained by reading the testimony and we think Judge Nordbye did not abuse his judicial discretion when he determined, as he manifestly did, that he could perform the duties to be performed by the presiding judge after verdict. The law governing the situation here presented was strictly complied, with and we think that law provided due process within the requirements of the Fifth Amendment. Meldrum v. United States, 9 Cir., 151 F. 177; Chin Wah v. United States, 2 Cir., 13 F.2d 530; King v. United States, 6 Cir., 25 F.2d 242; Owens v. Hunter, 10 Cir., 169 F.2d 971; McIntyre v. Modern Woodmen of America, 6 Cir., 200 F. 1; Pessagno v. Euclid Inv. Co., D.C.D.C., 35 F.Supp. 743; United States v. Green, D.C.S.D.Ill., 143 F.Supp. 442. In Meldrum v. United States, supra, the authority of a succeeding judge to pass upon a motion for a new trial in a federal criminal case tried before another judge who died while the motion was pending was expressly sustained. In the course of the opinion in that case it is said [151 F. 182]: “Did the judge of the court below have authority to pass upon the motion for a new trial and impose the sentence? The plaintiff in error contends that he did not, that he had not participated in the trial, and that the right of the plaintiff in error to have the judge who presided at his trial take part with the jury at every step in the determination of his guilt or innocence was a fundamental right which could not be taken away by an act of Congress, * * *. “ * * * Section 953 of the Revised Statutes as amended by Act June 5, 1900, c. 717, § 1, 31 Stat. 270 (U.S.Comp.St.1901, p. 696 [Fed.Rules Civ.Proc. rules 46, 63, 75, 28 U.S.C.A.]), provides that in case of the death of the judge before whom a cause has been tried the judge who succeeds him ‘or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such case has been or is taken in stenographic notes * * * shall pass upon said motion and sign such bill of exceptions’; and it further provides that if said judge is satisfied that, owing to the fact that he did not preside at the trial or for any other cause, he cannot fairly pass upon said motion and allow and sign said bill of exceptions, he may in his discretion grant a new trial. If the succeeding judge can, as undoubtedly he may under this statute, deny a motion for a new trial, there can be no question of his power to further proceed in the case and render judgment upon the verdict.” We conclude that the contention that Judge Nordbye was disqualified to perform the duties to be performed by the presiding judge after verdict is without merit. Appellants were subpoenaed as witnesses to testify before the grand jury and each of them did so testify. After the return of the indictment they moved to dismiss the indictment and suppress the testimony which they had given before the grand jury on the ground that they had not been advised that the prosecutor had decided at the time they testified to seek an indictment against them. Appellant Caudle was a lawyer with wide experience in criminal prosecutions on behalf of the government. Appellant Connelly was a man experienced in the investigating of fraud and criminal matters. He had been the chief investigator for a Senate committee investigating many fraudulent and criminal situations. The record definitely shows that each of the defendants was apprised of his constitutional rights. There was some doubt as to when the prosecutor had definitely decided to seek an indictment against them. After hearing testimony on the motion Judge Hulen decided when the prosecutor had decided to seek indictments against them and he suppressed all testimony given by them before the grand jury after that date, but denied the motion to suppress testimony given by them before that date and also denied their motions to dismiss the indictment. The ruling of the court, we think, was eminently fair to appellants. We shall not encumber this opinion with a long recital of the warnings given and the circumstances thereof. It abundantly appears that they were advised and were at all times aware of their constitutional rights. We think the contention of appellants in this regard wholly without merit. The trial of this case began May 7, 1956, and the jury returned a verdict June 14, 1956. After the case had been on trial for some sixteen days the defendant Schwimmer suffered a heart attack and as hereinbefore noted a mistrial was declared as to him. Thereupon appellants moved for a mistrial as tp themselves on the ground that certain evidence admitted as to Schwimmer alone was of such a prejudicial nature that its effects could not be eradicated from the jury’s mind by the court’s instructions. Their motion was denied and the court instructed the jury that the testimony which the court identified, admitted as to Schwimmer alone, was withdrawn from the jury’s consideration. In the course of its instruction on this question the court said: “Now, as to the testimony given by these two witnesses as I have referred to them as to these conversations with Schwimmer, I withdraw that testimony from your consideration. I have not gone into it in detail, but you will recall it. You are not to consider such testimony as evidence in this case of any character. Just forget that that testimony relating to the subject and at the times I have referred to was given in this case. Strike it from your minds entirely. It now has no bearing on the issues in this case and you will not consider it in any manner in arriving at your decision as to the guilt or innocence of either of the defendants in this case. “Does that cover the subject?” The instruction was not excepted to. The testimony in no way implicated either of the other defendants on trial and we think the court’s instruction proper, and we cannot presume that the jury disregarded it. Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154; Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.E.2d 278. In Blumenthal v. United States, supra, two of the defendants had made admissions which the trial court admitted as to them only and in its instructions specifically limited such evidence as to them and told the jury to disregard such evidence in considering the guilt or innocence of the other three defendants. In the course of the opinion it is among other things said [332 U.S. 539, 68 S.Ct. 253] : “But the trial court’s rulings, both upon admissibility and in the instructions, leave no room for doubt that the admissions were adequately excluded, insofar as this could be done in a joint trial, from consideration on the question of their guilt. The rulings told the jury plainly to disregard the admissions entirely, in every phase of the case, in determining that question. The direction was a total exclusion, not simply a partial one as the Government’s argument seems to imply. The court might have been more emphatic. But we cannot say its unambiguous direction was inadequate. Nor can we assume that the jury misunderstood or disobeyed it.” In the very recent case of Delli Paoli v. United States, supra, the Supreme Court, reaffirming the doctrine of its prior decisions, said [352 U.S. 232, 77 S.Ct. 300]: “It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court’s instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.” The declaration of a mistrial as to the defendant Schwimmer removed him from the case and it is to be noted that prior to the trial appellants sought to remove him from the case by a motion for severance. This declaration of a mistrial as to Schwimmer as effectively removed him from the case as would the granting of appellants’ motions for severance. But it seems to be argued that appellants were prejudiced, both by having Schwimmer tried jointly with them and by removing him by process of declaring a mistrial as to him. It is suggested that when Schwimmer was removed as a defendant they were deprived of his possible testimony on the assumption that he would have taken the stand in his own defense. This he might or might not have done and in this connection it is observed that he invoked the Fifth Amendment when he was called before the grand jury. Neither is there any assurance that had he taken the witness stand his testimony would have any tendency to exonerate appellants. Appellants’ position after the severance of Schwimmer by the court’s declaration of a mistrial as to him was no different than it would have been had he been named only as a co-conspirator. Even had Schwimmer been named as a co-conspirator only, his acts and declarations during the time of and in furtherance of the conspiracy would have been admissible against appellants. We think the removal of Schwimmer from the case was not prejudicial to appellants. Carrado v. United States, 93 U.S.App.D.C. 183, 210 F.2d 712; Poliafico v. United States, 6 Cir., 237 F.2d 97; United States v. Beck, 7 Cir., 118 F.2d 178; United States v. Karavias, 7 Cir., 170 F.2d 968. The motion for mistrial as to the appellants because of the severance of Sehwimmer by the court’s declaration of mistrial as to him was under the circumstances here disclosed addressed to the sound judicial discretion of the trial judge and we think this discretion was wisely exercised in denying appellants’ motions. The court on its own motion entered an order directing that in selecting jurors for this case residents of the city and county of St. Louis be excluded from the list of prospective jurors, and the prospective jurors were accordingly selected from other parts of the district. Prior to the entry of this order the defendants had moved for a change of venue on the ground, among others, that they could not have a fair and impartial trial in the district because of the prejudicial publicity, editorial and otherwise, largely contained in the daily newspapers published in St. Louis and widely circulated and read, concerning alleged corruption of public officials in the Bureau of Internal Revenue and in the Department of Justice, and specifically relating to the method of handling income tax evasion cases in the Eastern District of Missouri, and the alleged corruption of public officials both in the District of Columbia and the Eastern District of Missouri. These motions were denied but the court then entered the above order, geographically excluding residents of the city and county of St. Louis. Section 1865(a), Title 28, U.S.C. provides: “Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service. * * * ” The order was in strict conformity with the statute and it did not eliminate any particular class but the jury as drawn represented a cross section of the geographic unit designated and was manifestly selected from that part of the district which the judge thought to be most favorable to an impartial trial. The contention that the order resulted in a “rural” jury is without foundation in fact. As disclosed by their examination on voir dire for instance, six of the panel had lived in St. Louis or other large cities for some time. Many of the other jurors lived in large towns. Neither were the prospective jurors exclusively engaged in agricultural pursuits but included a wide range of professions, trades and occupations. The action of the trial judge followed a practice warranted by this statute. Myers v. United States, 8 Cir., 15 F.2d 977; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187. In Myers v. United States, supra [15 F.2d 978], it is said: “Plaintiff in error, defendant below, filed a motion to quash the jury panel because of the exclusion, in the drawing, of jurors from Douglas county, in which Omaha is situated; it being urged that the population of Douglas county formed a large percentage of that of the division of the district in which the offense was committed and tried. The order excluding these jurors was made pursuant to a long-standing practice of the court that, in drawing jurors, the county in which the crime was committed should be excluded. * * * * * * “The motion to quash the panel was properly overruled. The law authorizes the court to draw the jury as was done in this case, and it is not required to assign a reason for so doing. The presumption is that it acted in the exercise of a sound discretion. If requested to assign a reason for the purpose of making a record for review, we think proper practice would require this to be done; but, in the absence of such request, we do not think the discretion can be challenged on that ground. The burden is upon the party who seeks to challenge the alleged arbitrary action, and in this case that burden has not been successfully carried. Spencer v. United States, 8 Cir., 169 F. 562, 95 C.C.A. 60.” We must presume that it was the purpose of the trial judge to have the jury selected from such parts of the district as to be most favorable to an impartial trial. After the trial had closed and the jury had returned a verdict finding appellants guilty, and a successor judge had been assigned to finish the trial of the case, appellants filed a motion for new trial on the ground of newly discovered evidence. In this motion it was alleged that two of the women jurors had concealed important facts relevant to their personal qualifications thereby impairing Appellants’ rights to intelligently exercise their challenges and depriving them of a fair and impartial trial. These two jurors were women. On voir dire the judge propounded among others the following questions: “Have any of you or the immediate members of your family, mother, father, brother, sister or husband or wife, or children, other than the gentleman who was sheriff, have you or any immediate members taken part in behalf of either political parties in political affairs such as a candidate for office or committee worker? “Do either of you or are any members of your family affiliated or hold membership or office — we have covered- county committees, but sometimes there are Democratic or Republican organizations separate from the committee, and sometimes Democratic clubs or Republican clubs. To your knowledge, are you or any member of your family any members of such club or organizations? if so, raise your hand.” Neither of these women jurors answered either of these inquiries in the affirmative. In referring to this incident Judge Nordbye in his opinion says: “The evidence at the hearing on the motions for a new trial, which supplanted the affidavits previously obtained, indicate that these two jurors, to wit, Goldie Brown and Grace Hoffman, were members of the Montgomery Township Republican Club in the years 1953, 1954 and 1955, but evidently from the testimony it would appear that they were not in 1956. Robert Hoffman, however, the son of Grace Hoffman, was treasurer of the committee or club in 1956. There is no showing here that Mrs. Hoffman knew that her son was treasurer of the local Republican Central Committee in 1956, and moreover, there is no showing that either of these jurors wilfully failed to answer truthfully the questions to which reference has been made. Furthermore, there is no showing that the defendants were prejudiced in any way by reason of any Republican affiliation or activities of either of these two jurors. This Court has no right to assume that in this trial jurors of Republican political affiliation would be prejudicial to these defendants and that jurors of Democratic affiliation would be prejudicial to the Government. And finally, the record is bereft of any showing that there was fraudulent conduct on the part of these juror’s.” We are in entire accord with this ruling. It is contended that the court erred in denying a change of venue or a continuance. The motions were addressed to the discretion of the court, Finnegan v. United States, 8 Cir., 204 F.2d 105; Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 108, and on careful review of the record we are convinced that there was no abuse of that discretion. It is next contended that appellants’ motion for judgment of acquittal or a new trial should have been granted because the evidence is as consistent with innocence as with guilt. In considering the question of the sufficiency of the evidence to go to the jury and to sustain the verdict we must view the evidence in a light most favorable to the prevailing party, in this case the government, and the prevailing party is entitled to all such favorable inferences as may reasonably be drawn from the facts and circumstances proven. If when so viewed, reasonable minds might reach different conclusions then the issue is one of fact to be submitted to the jury and not one of law to be determined by the court. Brennan v. United States, 8 Cir., 240 F.2d 253; Peters v. United States, 8 Cir., 160 F.2d 319. It appears without dispute that Irving Sachs was guilty of a wilfull and flagrant tax fraud to which there was apparently no defense. As heretofore noted the agents of the Bureau of Internal Revenue had recommended prosecution. In this situation Harry I. Schwimmer, a lawyer of Kansas City, Missouri, was employed for the express purpose of thwarting this threatened criminal prosecution. His first ground for seeking relief was that Sachs had made voluntary disclosure. When it was shown that the so-called disclosure was not full and complete but was itself fraudulent Schwimmer abandoned that theory and sought to protect his client from criminal prosecution on the ground of ill health, claiming that his prosecution would probably result in his death. While it was shown that Sachs was an epileptic, the fact was not known to his own counsel, Shifrin, who had represented him for some twenty years, and even during the time the Department of Justice was considering the gravity of his malady he was able to look after his business in substantially his usual and normal manner. He was chief executive of Shu-Stiles, Inc., a substantial concern. At the government’s request he was examined by Dr. Robert M. Bell, a consultant for the United States Public Health Service in neuropsychiatry. Dr. Bell reported that in his opinion any fatal outcome in the case of prosecution and trial of Sachs was “remote indeed”. Schwimmer employed a number of doctors, none of whom made an examination of Sachs, but on the basis of reports and data submitted to them gave as their opinion that criminal prosecution of Sachs would constitute a clear and present danger to his health. Caudle disregarded the report of Dr. Bell; he also disregarded the recommendation of the Bureau of Internal Revenue and ordered that Sachs be not criminally prosecuted but that the case be treated on the basis of civil liability. His action in disregarding the recommendation of the Bureau of Internal Revenue and in disregarding the report of a government doctor was unprecedented and did violence to the accepted practice of the Department. It appears from the evidence that Schwimmer made frequent calls on Caudle and Connelly. There is evidence of their frequent conversations and there is evidence of Caudle’s and Connelly’s continued activity and interest on behalf of Schwimmer’s client. Schwimmer received in payment as compensation for his services in seeking to’ thwart the criminal prosecution of Sachs some $46,000, from which apparently he paid to each of the appellants or on their behalf substantial sums of money. There is also undisputed evidence that Schwimmer presented to Connelly two suits of clothes made to order. As has heretofore been noted, the appellants, through Schwimmer, had certain business transactions in which they made substantial profits. The jury may well have inferred that these so-called business transactions were a mere coverup for the fact that Schwimmer was compensating them for assisting him in thwarting the prosecution of a man confessedly guilty of defrauding the government. It is strenuously urged that the evidence was insufficient to prove that Connelly knowingly participated as a co-conspirator. It appears from the evidence that Connelly first called Charles Oliphant, Chief Counsel of the Bureau of Internal Revenue, in August of 1948, when Schwimmer had scheduled a conference with Oliphant, saying that Schwimmer had asked that “we call you and let you know we know him”. The case was referred to the Department of Justice August 12, 1949, after pending about four years in the Bureau of Internal Revenue where Schwimmer, with the assistance of Connelly, had secured its delay. Subsequent to the transfer of the case to the Department of Justice Schwimmer obtained a further delay of one month. In September of 1949 Connelly then called Caudle and requested further postponement for his “friend” Harry I. Schwimmer. In response to this request Caudle relayed a message through Connelly to Schwimmer that Schwimmer could come in whenever he wanted but as soon as possible and that a postponement would be all right because the statute of limitations was not involved. A few days subsequent to this contact between Connelly and Caudle, Sachs paid $2,500 from ShuStiles, Inc. money to Schwimmer and on October 12, 1949, gave Schwimmer a check for $10,000, from which Schwimmer purchased an oil royalty for Connelly. The jury was warranted in believing that these expenditures by Schwimmer on behalf of Connelly were to rewaxd him for his services in assisting to thwart the criminal prosecution of his client Sachs and there are other attending circumstances corroborating this conclusion. As pointed out by Judge Nordbye: “That Connelly knew and understood that Schwimmer’s business with Caudle was an attempt to obtain.a commitment from the Department of Justice that there would be no criminal prosecution in the Sachs case, seems evident from the conversation which Connelly had with Oliphant over the telephone on January 16,1951. At that time Schwimmer already had obtained a letter from Caudle stating that there would be no criminal prosecution in the Sachs case, but notwithstanding he was attempting to obtain a similar letter of no-prosecution from the Bureau of Internal Revenue. In a conversation with Connelly over the telephone, Oliphant stated, ‘You know Schwimmer on Sachs — does he just want to look good?’ And Connelly replied, ‘Wants to make sure not going to reverse justice again.’ Certainly, this conversation would indicate that Connelly was aware of Schwimmer’s plans to have both Departments committed on the Sachs case so that he need have no fear that the Bureau would render a ruling adverse to that which he obtained from the Justice Department. Moreover, it must be apparent that Connelly knew that Schwimmer had obtained a no-prosecution letter from Caudle at that time. The friendly relations between Connelly and Schwimmer and the six or seven or more telephone calls to government officials made by Connelly with reference to the Sachs case fully warranted the jury in determining that Connelly’s relation with the case that was pending in the Bureau of Internal Revenue and then in the Department of Justice was something more than mere routine telephone calls for the arranging of appointments.” The inferences to be drawn from all the surrounding circumstances connecting Connelly with the activity of Schwimmer warranted the jury in returning its verdict of guilty as to both appellants. There was in evidence a document in Schwimmer’s handwriting indicating that in connection with Schwimmer’s attempt to thwart the criminal prosecution of his client, Schwimmer paid substantial sums to or on behalf of appellants. These circumstances, we think, warranted the jury in inferring that Schwimmer paid the appellants substantial sums of money for their assistance in attempting to thwart the criminal prosecution of his client. We conclude that the evidence, with the inferences that might reasonably be drawn therefrom by the jury, was substantial and that there was no error in denying appellants’ motion for judgment of acquittal or for a new trial. It is however contended that the court erred in admitting in evidence a document referred to in the evidence as Exhibit 100(j) which we have heretofore adverted to as a document in Schwimmer’s own handwriting taken by the government from one of his account books. There was ample evidence to warrant the jury in finding, as it manifestly did, that the defendants Schwimmer, Connelly and Caudle had entered into a conspiracy as charged in the indictment. Any act or admission by either of the participants in the conspiracy occurring during its existence and in furtherance of its purposes was admissible as to all defendants. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593; Wiborg v. United States, 163 U.S. 632, 16 S.Ct. 1127, 1197, 41 L.Ed. 289; C

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

HAYDEN STONE, INC., Plaintiff-Appellant, v. George BRODE and Carl Jeppson Company, Defendants-Appellees. Nos. 73-1732, 73-1733. United States Court of Appeals, Seventh Circuit. Argued Nov. 19, 1974. Decided Dec. 13, 1974. George Brode, Samuel Morgan, Chicago, 111., for defendants-appellees. Michael B. Roche and Richard T. Zwir-ner, Chicago, 111., for Hayden Stone, Inc. Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WY-ZANSKI, Senior District Judge. . Senior District Judge Charles Edward Wyzanski, Jr. of the District of Massachusetts is sitting by designation. PER CURIAM. Hayden Stone, Inc., plaintiff below, appeals from the order of the district court denying recovery against defendants Brode and Carl Jeppson Company for conversion of a six percent convertible subordinated debenture of the McCulloch Oil Company. Brode and Jeppson cross-appeal from that portion of the district court’s order which awards costs of $3,949.70 in favor of Hayden Stone and against Brode and Jeppson pursuant to two sanction orders issued under Fed.R.Civ.P. 37(a)(4) during the discovery proceedings in this case. For the reasons which follow, we affirm the order below. I In Illinois, the elements of a cause of action for conversion are not in substantial dispute: To constitute conversion of a chattel there must be an unauthorized assumption of the right to possession or ownership. The essence of conversion is not the acquisition of the property by the wrongdoer, but a wrongful deprivation of the owner thereof;. and one claiming a conversion must show a tor-tious conversion of the chattel, a right of property in it, and a right to immediate possession, absolute and unconditional and not dependent upon some act to be performed. Hobson’s Truck Sales, Inc. v. Carroll Trucking, Inc., 2 Ill.App.3d 978, 276 N.E.2d 89, 91 (3d Dist. 1971). Although the record is by no means clear on the point, the district judge determined that the McCulloch Oil debenture in question was delivered by Hayden Stone, Inc., a brokerage firm, to defendant Brode, a regular customer, pursuant to an order placed by Brode. Since this determination depended in large part on the credibility of two trial witnesses, it cannot be set aside by this court unless it is clearly erroneous. Aunt Mid Inc. v. Fjell-Oranje Lines, 458 F.2d 712, 715-716 (7th Cir. 1972). We do not believe that the clearly erroneous test requires this finding to be set aside, and we therefore proceed to analyze plaintiff’s claim on the premise that the debenture was purchased for and transferred to Brode in the normal course of Hayden Stone’s business. Since this transaction was a purchase by Brode on his account, Brode became the owner of the bond upon its delivery to him by Hayden Stone. Ill. Rev.Stat. Ch. 26, §§ 8-301(1), 8-313(1). From that point forward Hayden Stone had its remedy in an action for the price. Ill.Rev.Stat. Ch. 26, § 8 — 107. The facts as found will not support a cause of action in conversion for the simple reason that there was no “unauthorized assumption of the right to possession or ownership” as required by Illinois law. Hob-son’s Truck Sales, Inc. v. Carroll Trucking, Inc., supra. The original transfer and delivery to Brode was voluntary and made in the normal course of business. There was no fraud involved in this transfer and subsequent events cannot be relied upon since ownership had clearly passed to Brode when these events occurred. Hayden Stone’s claim for damages on the theory of conversion was therefore properly denied, and its contractual claims properly held to be satisfied by the return of the appreciated bond and accumulated dividends. II During the pre-trial proceedings in this suit, the parties engaged in a rather discouraging and protracted pattern of bickering and non-cooperation. As Judge Perry observed, this suit “was from the beginning fought with a maximum of personal bitterness and recrimination by the parties and their counsel.” Two sanction orders resulted from these unhappy circumstances, both directed against defendants Brode and Carl Jepp-son Company. In each case, the orders were issued by judges other than the ultimate trial judge, and in each case determination of the amount of the award was held for a later hearing. Judge Perry conducted a hearing on January 23, 1973 to determine the proper amounts to be assessed, and based on that hearing and the evidence there produced, a total award of $3,949.70 was made. Examination of the record reveals that each sanction order was clearly justified. The first order, issued by Judge Decker, concerned Mr. Brode’s evasive and uncooperative response to requests for documents specifically described in a notice of deposition filed by Hayden Stone. Brode’s refusal either to produce the requested documents or to verify their existence or nonexistence led to a useless and expensive resort to the courts by Hayden Stone. The second order, issued by Judge Bauer, concerned Brode’s clear misuse of the discovery process in the deposition of John K. Eggars, again necessitating a resort to the courts by Hayden Stone, this time to seek a protective order. In both cases the record clearly and convincingly supports the imposition of costs against Brode under the revised provisions of Rule 37(a)(4) of the Federal Rules of Civil Procedure. The district judges therefore acted well within the proper limits of their discretion. Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1126 (5th Cir. 1970). Finally, defendants have been provided an “opportunity for hearing” within the meaning of Rule 37(a)(4). In each instance the imposition of sanctions was made on the basis of transcripts of the depositions involved and memoranda from Brode setting out the alleged justifications for his activities. Moreover, had Brode desired further hearing after the imposition of sanctions to present additional justification, he could have moved for such hearings. He did not do so, however, and we do not find error in Judge Perry’s decision not to go into these matters a full year after the sanction orders were issued. The order of the district court is therefore in all respects Affirmed.

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Walter SHAW, Defendant-Appellant. No. 76-2699. United States Court of Appeals, Fifth Circuit. July 18, 1977. Rehearing Denied Aug. 24, 1977. Ronald K. Smith, Coral Gables, Fla., for defendant-appellant. Robert W. Rust, U. S. Atty., David F. Geneson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee. Before GEWIN, RONEY and HILL, Circuit Judges. JAMES C. HILL, Circuit Judge: On June 5, 1975, an eight count indictment was returned by a grand jury for the Southern District of Florida against defendant, Walter Shaw. Defendant was charged with knowingly and intentionally devising a scheme and artifice to defraud the Southern Bell Telephone Company (Southern Bell) by depriving it of the money due for long-distance telephone calls in violation of 18 U.S.C.A. § 1343 and 47 U.S.C.A. § 220. The eight counts concerned four specific telephone calls made between January 25 and 29, 1973. On April 8, 1976, a jury returned a verdict of guilty on all counts and defendant was sentenced to three years imprisonment. We affirm. The issues on this appeal relate to the trial court’s denial of several motions made by defendant prior to and during the trial. First, defendant moved to dismiss the indictment on the basis' that he had been denied a speedy trial in violation of the Sixth Amendment and the due process clause of the Fifth Amendment. Second, defendant moved to disallow the use of a voice exemplar obtained from him while he was a grand jury witness. Third, at the close of the government’s case, defendant moved for judgment of acquittal due to the fact that the prosecution had failed to identify defendant as the individual charged in the indictment and referred to by the government witnesses. Finally, defendant moved for judgment of acquittal on the basis that the government had totally failed to prove the specific intent required for conviction. A general overview of the trial proceedings is necessary to an understanding of the issues raised. The government showed that in late 1972 and early 1973 Southern Bell randomly monitored some telephones as part of a program to detect fraudulent users. In sum, Southern Bell could detect the extraordinary use of toll-free numbers, more commonly referred to as “800” numbers. Southern Bell suspected that this overuse of “800” numbers could signify the presence of a “blue box.” A “blue box” is a device which permits long-distance telephone calls to be made by “bouncing off” normal “800” lines. Monitoring of defendant’s telephone revealed a disproportionate use of “800” numbers. Southern Bell knew that, if defendant was in fact employing a “blue box” on his telephone, then he must be employing a certain tone in order to “bounce off” the normal “800” lines. Thus, Southern Bell installed a device which would automatically record the conversation on defendant’s telephone for sixty seconds whenever the requisite tone was emitted. Shortly thereafter, Southern Bell realized that a sixty second interval was insufficient time in some instances, particularly on overseas calls, to determine the nature of the calls being made. Thus, Southern Bell installed a manual device whereby an investigator could record any conversations made on calls preceded by the requisite tone. In all, defendant made 108 attempts to place telephone calls by using the proper tone to “bounce off” normal “800” lines. Twelve calls were successfully completed and four of these were made the subject matter of the grand jury indictment. Defendant denied that he intended to defraud the telephone company by placing long distance calls which bypassed the normal billing system. Defendant did not deny placing the telephone calls but he did deny that he placed the calls by using a “blue box.” Instead, defendant testified that he was an inventor in the telecommunications field and that he was testing equipment at the time these telephone calls were made. Defendant asserted that he had no intention of defrauding the telephone company out of any money, although he admitted that he knew that his telephone calls were bypassing the normal billing system. Defendant further stated that he felt that Southern Bell was harassing him because, as a former employee, he was now in competition with Southern Bell in the telecommunications field. Defendant moved to dismiss the indictment on the ground that he had been denied his Fifth and Sixth Amendment rights by the unnecessary and unreasonable delay in the government’s procurement of his indictment. The record reveals that Southern Bell’s investigation of defendant terminated in early 1973. In April, 1973, Southern Bell turned over the fruits of its investigation to a grand jury. This grand jury accepted the evidence compiled by Southern Bell but issued no indictment. Then, in June, 1975, defendant was called before another grand jury in the Southern District of Florida and directed to provide the Federal Bureau of Investigation (FBI) with a voice exemplar. On the basis of this voice exemplar and the evidence compiled by Southern Bell, defendant was indicted. Defendant claims that this was an unnecessary and unreasonable delay by the government. Furthermore, defendant asserts that he was extremely prejudiced by this twenty-eight month delay. Defendant testified that if he had been indicted in 1973, he could have produced two research assistants who worked with him on testing his equipment. At the time of trial, however, defendant was unable to locate either of his potential witnesses. Likewise, defendant stated that he could have produced his test equipment in 1973, but at the time of trial in April, 1976, the equipment was inaccessible to him. Defendant stated that the records and logs which he had maintained in connection with his tests were also unavailable. Defendant also testified that his financial condition had deteriorated substantially since 1973. Thus, in 1975-76 he was unable to employ an investigator who possibly could have located his potential witnesses, test equipment and business records. Finally, defendant’s heart condition had materially worsened and, not only was he unable to remember specific facts to support his defense, but he was also unable to adequately assist his counsel in preparing a defense. The government takes issue with the assertion that the delay was unnecessary and unreasonable and asserts that defendant has failed to show any actual prejudice resulting from the delay. The government generally concedes that the only additional evidence presented to the grand jury in 1975 was the voice exemplar of defendant. The government notes, however, that the material which Southern Bell gave the grand jury in 1973 was in raw form and unverified. Thus, it was necessary for the FBI to verify the accuracy of the evidence submitted by Southern Bell in 1973. Once this was done, the government asserts that it proceeded to the grand jury and obtained a voice exemplar and defendant’s indictment. Furthermore, the government explains the delay on the basis that in the process of allocating prosecutorial resources this case was not given a high priority. Thus, the prosecution waited for some similar cases to arise and then appointed a special attorney to handle all of them. We are, of course, concerned in this case with a delay of some twenty-eight months between the commission of the alleged offense and the initiation of the prosecution in the form of an indictment. Since we are considering pre-arrest, pre-indictment delay, the speedy trial clause of the Sixth Amendment is irrelevant to our analysis. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Under these circumstances the statute of limitations normally provides the primary guarantee against bringing overly stale criminal charges. Yet, the due process clause of the Fifth Amendment also protects against oppressive delay. Id. Our due process analysis must focus on factors such as the length of the delay, the reason for the delay, and the prejudice which the delay may have caused the accused. The United States Supreme Court has very recently emphasized that actual prejudice to the accused does not result in automatic dismissal. The Supreme Court noted that Marion established “only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid.” United States v. Lovasco,-U.S. -, -, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). Thus, “[a]ctual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.” United States v. Marion, supra, 404 U.S. at 324-325, 92 S.Ct. at 465 (footnote omitted). “Thus, Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due. process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” United States v. Lovasco, supra. Rejecting the notion that judges may impose their personal and private notions of fairness, the court defined our task to be “to determine only whether the actions complained of violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community’s sense of fair play and decency.’ ” Id. (citations omitted). Upon application of this test the Supreme Court in Lovasco reversed the trial court’s dismissal of the indictment concluding “that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” Id., at -, 97 S.Ct. at 2052. Upon consideration of the evidence in this case, the trial court was of the opinion that this was “perhaps the strongest case of prejudice” that he had ever seen. Nevertheless, he did not believe that defendant had demonstrated such extreme prejudice as to require dismissal of the indictment. Thus, since we accept the finding that defendant was somewhat prejudiced by the delay, our inquiry must turn to the reasons for the delay and determine whether the prosecution’s actions violated “fundamental conceptions of justice” or “the community’s sense of fair play and decency.” Lovasco itself establishes that prosecutors may defer seeking indictments until they have probable cause to believe an accused is guilty. Furthermore, prosecutors may delay until they are satisfied that they will be able to establish the suspect’s guilt beyond a reasonable doubt. Id., at -, 97 S.Ct. 2044, see also United States v. Avalos, 541 F.2d 1100,1107-1108 (5th Cir. 1976). In the instant case we have a twenty-eight month delay resulting from a need to verify the incriminating evidence and the allocation of manpower and assignment of priorities among investigations. We are persuaded that on this record the combination of the need to investigate and the necessity of allocating prosecutorial resources resulting in a twenty-eight month delay between the commission of the offenses and indictment is not such a deviation from elementary standards of fair play and decency or so inimical to our fundamental conceptions of justice as to deprive defendant of due process of law in violation of the Fifth Amendment. Defendant was called before the grand jury in 1975 and directed to provide a voice exemplar. After consultation with his attorney, defendant voluntarily complied with the order. Of course, defendant was subsequently indicted and his voice exemplar was a crucial piece of evidence in the government’s case. Defendant asserts that in this process the grand jury was reduced to nothing more than an arm of the prosecution and that to allow this practice will undermine the integrity of the grand jury system. In addition, defendant argues that he was not made aware of the fact that he was the focal point of a criminal investigation and of the possible consequences of his compliance. Finally, defendant contends that if he had been made aware of his precarious position, he would have insisted upon some judicial scrutiny to insure that no abuses or excesses were occurring. Defendant’s arguments are unsound. The historic task of the grand jury is to inquire into the existence of possible criminal conduct and to return only well-founded indictments. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). [The grand jury] is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s labors, not at the beginning. Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). It is also the historic obligation of every person to appear and give his evidence before the grand jury. United States v. Dion-isio, 410 U.S. 1, 10-11, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). The mere fact that the prosecution in this case may have suggested that defendant be called for the purpose of giving a voice exemplar in no way impugns the integrity of the grand jury’s investigation. Defendant’s assertions that he should have been told that he was the subject of a criminal investigation and that he had the right to refuse to give a voice exemplar and suffer the pains of contempt are specious. First, defendant in fact discussed his situation with an attorney. More importantly, the taking of a voice exemplar impinges upon no right protected by either the Fourth, Fifth or Sixth Amendments to the Constitution. United States v. Dionisio, supra; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). In effect, defendant contends that if he had known that he was the target of a grand jury investigation, he might have chosen the risk of confinement for the refusal to provide a voice exemplar rather than give the voice exemplar and risk the possibility of indictment and conviction on substantive criminal charges. The short answer to this contention is that we can conceive of no constitutional basis upon which such a requirement might plausibly be premised. See United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Defendant contends that the evidence presented at trial was insufficient as a matter of law to establish the necessary element of specific intent. Of course the matter of defendant’s guilt is for the jury to decide unless we conclude that the jury must necessarily have had a reasonable doubt as to his guilt. The test is whether, taking the view most favorable to the government, a reasonably minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of defendant’s guilt beyond a reasonable doubt. United States v. Reynolds, 511 F.2d 603, 606 (5th Cir. 1975); United States v. James, 510 F.2d 546 (5th Cir.), cert, denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975); United States v. Warner, 441 F.2d 821 (5th Cir.), cert, denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Viewed most favorably to the government, the evidence revealed that defendant made approximately 108 attempts to complete telephone calls which would by-pass Southern Bell’s normal billing system; approximately 12 telephone calls were completed and 4 specific telephone calls were made the subject of the indictment; defendant made use of a “blue box” to transmit these calls; defendant knew that these phone calls would by-pass Southern Bell’s normal billing system; defendant did not have permission to place these telephone calls; and on at least three occasions defendant communicated with more than mere “test words” with specific persons that he knew. On this evidence we are persuaded that the issue of specific intent was properly submitted to the jury. Finally, defendant urges that it was error for the district court to allow the government to reopen to prove identity. As noted earlier, the government failed to identify defendant as the person made the subject matter of the grand jury’s indictment and the evidence at trial. While the government had rested its case-in-chief, defendant had presented no evidence and the jury had not been charged. In these circumstances the decision to allow the government to reopen to present evidence inadvertently omitted is within the sound discretion of the trial court. United States v, Ard, 544 F.2d 225, 227 (5th Cir. 1976); United States v. Batie, 457 F.2d 927 (5th Cir. 1972); Hale v. United States, 410 F.2d 147 (5th Cir.), cert, denied, 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). We find no abuse in this case, particularly where defendant does not even allege prejudice. On the basis of the foregoing, defendant’s conviction is hereby AFFIRMED. . 18 U.S.C.A. § 1343 provides: Whoever, having devised or'intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted my means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. . 47 U.S.C.A. § 220(e) provides in part: Any person who shall willfully make any false entry in the accounts of any book of accounts or in any record or memoranda kept by any such carrier, or who shall willfully destroy, mutilate, alter, or by any other means or device falsify any such account, record, or memoranda, or who shall willfully neglect or fail to make full, true, and correct entries in such accounts, records, or memo-randa of all facts and transactions appertaining to the business of the carrier, shall be deemed guilty of a misdemeanor, and shall be subject, upon conviction, to a fine of not less than $1,000 nor more than $5,000 or imprisonment for a term of not less than one year nor more than three years, or both such fine and imprisonment: . . This residence telephone was actually listed in the name of defendant’s stepfather.

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?

GRANT et al. v. RICHARDSON, Superintendent of State Penitentiary of South Carolina, et al. No. 4965. Circuit Court of Appeals, Fourth Circuit. June 30,1942. Harold R. Boulware, of Columbus, S. C., for appellants. Robert McC. Figg, Jr., of Charleston, S. C. (John M. Daniel, Atty. Gen. of South Carolina, on the brief), for appellees. Before PARKER, SOPER, and DOBIE, Circuit Judges. PER CURIAM. This is an appeal from an order denying a writ of habeas corpus. No certificate of probable cause as required by 28 U.S.C.A. § 466 was issued by the judge below; but the appeal was heard along with an application for such certificate addressed to the judges of this court. We are of opinion that both the appeal and the application are without merit. Appellants were convicted and sentenced to death, for the crime of assault with intent to commit rape, by the Circuit Court of Berkeley County, South Carolina. After their conviction, questions with relation to the constitution of the grand jury which found the indictment and the petit jury which found the appellants guilty of the crime charged, as well as questions relating to the opportunity given the prisoners to secure counsel and the opportunity given counsel to prepare the case for trial, were fully considered on a motion for new trial. The motion for new trial was denied; and these questions were considered by the Supreme Court of South Carolina, together with questions raised on the trial, on an appeal in which the judgment of the lower court was affirmed. State v. Grant, 199 S. C. 412, 19 S.E.2d 638. Application for certiorari was made to the Supreme Court of the United States by a petition in which these questions were presented, and the application was denied by that court. Grant et al., Petitioners, v. State of South Carolina, 62 S.Ct. 942, 86 L.Ed.-. The petition for habeas corpus attempts to raise the same questions again and thus review the decision of the state court as to questions which the Supreme Court of the United States declined to review on application for certiorari. It is well settled that the writ of habeas corpus cannot be thus used as a writ of error. Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. It is alleged in the petition that there is reason to believe that appellant Grant is insane and has been in that condition for some time. No such defense was asserted upon the trial or upon the motion for new trial, and the allegation furnishes no ground for issuing the writ of habeas corpus. If he is now insane, this is a matter which should be called to the attention of the Governor of the State in an application for executive clemency or made the subject of an application to the courts of South Carolina for stay of sentence pursuant to rule 28 of the Supreme Court of that state. Certainly the State of South Carolina will not permit a death sentence to be executed upon an insane person; but this is a matter to be dealt with by the Governor or the state courts. It does not furnish ground for release by a federal court under a writ of habeas corpus. For the reasons stated, the order denying the writ of habeas corpus will be affirmed. Affirmed.

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

Wallace COTTERALL, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Brice PAUL, individually and as Sheriff of Coffee County, Alabama; et al., Defendants-Appellees. No. 84-7041. United States Court of Appeals, Eleventh Circuit. March 19, 1985. Robert L. Wiggins, Jr., C. Michael Quinn, Birmingham, Ala., for plaintiffs-appellants. Joe C. Cassady, Enterprise, Ala., for defendant-appellee Brice Paul. Warren Rowe, J.E. Sawyer, Jr., Enterprise, Ala., for all defendants-appellees except B. Paul. Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and THORNBER-RY , Senior Circuit Judge. Honorable Homer Thornberry, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. GODBOLD, Chief Judge: Cotterall brought this action individually and on behalf of a class alleging unconstitutional conditions in the Coffee County, Alabama, jail. The district court dismissed without certifying the class. We affirm in part and reverse in part. I. Background Cotterall sued Brice Paul, individually and as Sheriff of Coffee County, as well as the Chairman and members of the Coffee County Commission (the “county defendants”) on behalf of himself and others who “are or have been incarcerated in the Coffee County jail.” Cotterall was a state prisoner who had been temporarily incarcerated in Coffee County jail. The complaint, as amended, alleges violations of the First, Fifth, Eighth, and Fourteenth Amendments and seeks damages as well as declaratory and injunctive relief. The district court, M.D. Alabama, granted defendants’ motion to join as third-party defendants the Commissioner of the Alabama Department of Corrections and the Governor of the State of Alabama (the “state defendants”). When these state defendants moved for summary judgment, the court granted the motion and dismissed the case. It stated that Cotterall was an inadequate class representative “in that all convicted felons in county jails are already members of a class of plaintiffs” in Newman v. Alabama, 349 F.Supp. 278 (M.D. Ala.1972), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975), Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), modified 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978), and James v. Wallace, 382 F.Supp. 1177 (M.D.Ala.1974). The court added that there was no showing that the attorneys in these other cases were not providing adequate representation. 2 Rec. 220. On appeal this court found that the trial court was without power to enter summary judgment sua sponte in favor of the county defendants and reversed the order as to them. Because the county defendants had not appealed the entry of summary judgment in favor of the state defendants, that portion of the order was not disturbed. In determining whether the appeal had been timely filed, the court of appeals observed that the entry of summary judgment had been “based on an erroneous interpretation of Pugh v. Locke." Cotterall v. Paul, No. 83-7063, slip op. at 4 (11th Gir. Nov. 16, 1983). On remand the county defendants moved for summary judgment, relying in part on an affidavit of John E. Nagle, Director of Classification of the Alabama Department of Corrections. The affidavit states that Cotterall had been confined in a minimum security facility in Coffee County, was transferred to the county jail on June 23, 1981 after being charged with a disciplinary infraction, and found guilty of the charges and transferred to a major prison on July 22, 1981. In addition there were two motions to intervene, one by “county or state inmates” of Coffee County jail, including Willie J. Simmons, 2 Rec. 246, the other by only “county inmates” of Coffee County jail. 2 Rec. 265. On December 23, 1983 the district court granted the motion for summary judgment, denied the motions for intervention as moot, denied a motion for class certification as moot and dismissed the cause without prejudice. 2 Rec. 298. The court stated: The affidavits, interrogatories, and pleadings filed in this cause establish that Wallace Cotterall, its only named Plaintiff, was a State prisoner housed only temporarily in the Coffee County jail. As a convicted State felon housed, albeit briefly, in a county facility, Cotte-rall’s interests are represented by the plaintiff class in Newman v. Alabama, ... a cause which is presently pending before this Court. Since Mr. Cotterall’s interests are currently represented in extensive and current litigation, this Court is of the opinion that he would not adequately represent the interests of those inmates who are detained in Coffee County on charges filed by the City or County and who are, thus, not parties to the Newman litigation. Additionally, the interests of these “county inmates” are presently represented by the plaintiffs in Simmons v. Paul, Civil Action No. 83-V-665-S, a § 1983 action filed after this Court’s dismissal of Cotterall. (footnotes omitted). 2 Rec. 296. Simmons, a second action before the same district judge, was commenced in June 1983 by the same individuals who had filed the first motion to intervene in the Cotterall case. It was brought on behalf of the identical class specified in Cotterall’s complaint: individuals who “are or have been incarcerated in the Coffee County Jail.” On December 27, 1983 the district court entered an order granting the defendants’ motion to dismiss all plaintiffs incarcerated on state charges. Jeremiah Haynes is now the named plaintiff in what was formerly the Simmons action. In a March 19, 1984 order the district court certified the following class in Haynes: all “past, present, and future non-state inmates of the Coffee County jail, whether serving a county or city jail sentence or being held for purposes other than serving a city or county sentence.” Cotterall raises three issues on appeal. He asserts that his individual claims are not moot, that the district court erred “in holding that Pugh v. Locke precludes challenging the conditions of confinement in the Coffee County Jail,” and that the denial of the motions to intervene was error. II. Cotterall’s individual claims The trial court erred by granting the defendants’ motion for summary judgment with respect to Cotterall’s individual damage claim. His interests are not represented by the plaintiff classes in Newman, Pugh or Haynes. Nor is Cotterall’s claim for damages moot. His claim for injunc-tive relief is, however. A. Newman, Pugh and Haynes Newman was a class action brought by and on behalf of “prisoners within the Alabama Penal System.” The plaintiffs alleged inadequate medical treatment and sought declaratory and injunctive relief against the Attorney General of the State of Alabama, members of the Alabama Board of Corrections, and the Warden, Administrator and staff of the Medical and Diagnostic Center, Mt. Meigs, Alabama, the general hospital for the Alabama Prison System. Pugh was a class action on behalf of “all persons presently confined by the Alabama Board of Corrections” and against the Governor of Alabama, the Commissioner, Deputy Commissioner and members of the Alabama Board of Corrections, and the Wardens of Kilby Corrections Facility and G.K. Fountain Correctional Center. Pugh expanded the relief granted in Newman and established comprehensive minimum constitutional standards for “inmates of [the] Alabama Penal System.”. In November 1984 a consent order of dismissal was entered in Newman, Pugh, and James. The court relinquished jurisdiction in these cases, finding existing conditions in the “Alabama Prison System” in sufficient compliance with the requirements of the Constitution of the United States. Cotterall’s interests are not represented by the plaintiff classes in Newman and Pugh for two reasons. First, these suits did not seek to establish the liability of county officials. Rather they sought to establish the liability of state defendants. Second, these suits did not seek to establish liability with respect to the conditions of county jails. Instead they litigated conditions in the “Alabama Penal System.” Although the Alabama Department of Corrections, (the successor of the Alabama Board of Corrections), see Alabama Code § 14-1-1.1 (Supp.1984), has extensive responsibility for the conditions in county jails, see e.g. Alabama Code § 14-1-8 (1982), the “Alabama Penal System” does not include Alabama’s county jails. See e.g. Washington v. Lee, 263 F.Supp. 327, 332 (MD.Ala.1966) (differentiating between “state penal facilities” and county jails). Our holding that Cotterall’s interests are not represented in Newman and Pugh is confirmed by this court’s conclusion, adverted to above, that the original entry of summary judgment had been “based on an erroneous interpretation of Pugh v. Locke.” Cotterall, supra, slip op. at 4. Nor are Cotterall’s interests represented in the Haynes litigation. Cotterall is not a member of the class certified there because he is not a “non-state inmate of the Coffee County jail.” B. Mootness Cotterall’s individual damage claim could not have properly been dismissed as moot. Although, as the district court observed, Cotterall was “housed only temporarily in the Coffee County jail”, the “[t]ransfer of a prisoner does not moot a claim for money damages.” McKinnon v. Talladega County, 745 F.2d 1360, 1362 (11th Cir.1984); Cruz v. Estelle, 497 F.2d 496, 499 (5th Cir.1974). Cotterall’s individual claim for injunctive relief, however, was moot and properly dismissed. “Past exposure to illegal conduct does not in itself show a pending case or controversy regarding injunctive relief if unaccompanied by any continuing, present injury or real and immediate threat of repeated injury.” Dudley v. Stewart, 724 F.2d 1493, 1494 (11th Cir. 1984); Holland v. Purdy, 457 F.2d 802 (5th Cir.1972). The most that can be said is that if Cotterall is again incarcerated in a minimum security facility and again charged with a disciplinary infraction, he might again be transferred to Coffee County jail. This is too speculative. See Dudley, 724 F.2d at 1494. Contrast Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir.1975) (where defendants unable to advise prisoner that he would not be returned to particular prison, case not moot because conduct complained of may recur). III. Pugh and Newman and the motions to intervene The final two issues are bound together. It was improper to deny class certification because of Newman or Pugh. As we have already determined, Cotterall’s interests were not represented in Newman or Pugh. Therefore members of the purported class who, like Cotterall, were also state inmates did not have their interests so represented. The only remaining reason the trial court gave for refusing to certify the class was that Cotterall was not an adequate representative. At the same time, the trial court denied two motions to intervene because the refusal to certify a class had rendered the motions moot. In short, the trial court refused to certify a class because there was not an adequate representative but refused to permit potentially adequate representatives to intervene because a class had not been certified. This was error. In White v. I.T.T., 718 F.2d 994 (11th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1914, 80 L.Ed.2d 462 (1984), the court faced a familiar procedural posture: a plaintiff brings both an individual and class action; the class action is dismissed pretrial; the plaintiff loses his individual claim at trial and then appeals the dismissal of the class action. The court stated that in every such case it had remanded to determine whether there was a live controversy involving the proposed class, the action was appropriate for class certification, and the appellant was an appropriate class representative “or if not, whether there exists an appropriate class representative who can be substituted for appellant.” Id. at 998. Likewise in Ford v. U.S. Steel Corp., 638 F.2d 753, 760-62 (5th Cir.1981), the Fifth Circuit considered the trial court’s decertifi-cation of a class the court had sua sponte certified over four years earlier. The fatal defect with the proposed class was that Ford was an inappropriate class representative, although motions to intervene had been denied. Under the “unusual procedural history” of the case the court ruled that if on remand the district court determined that there was a live controversy involving the class, it “has the responsibility of determining who is an appropriate representative.” See also Armour v. City of Anniston, 622 F.2d 1226 (5th Cir.1980). Cf. United States Parole Commission v. Geraghty, 445 U.S. 388, 407, 100 S.Ct. 1202, 1214, 63 L.Ed.2d 479 (1980); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1044-45 (5th Cir.1981) (Unit A). We do not decide whether or not the denial of the motions to intervene was error under the standards normally observed by this court. See, e.g., Athens Lumber Co., Inc. v. Federal Election Commission, 690 F.2d 1364 (11th Cir.1982); U.S. v. Marion County School District, 590 F.2d 146 (5th Cir.1979). Nor do we decide whether the denial of class certification was necessarily error. It may be that there was not a live controversy involving the class or that neither Cotterall nor the intervenors were adequate class representatives. We do rule that it was error to deny the motion for class certification on the ground that the named plaintiff was an inadequate class representative without first making a specific finding that the would-be intervenors would be inadequate representatives as well. REVERSED in part, AFFIRMED in part, and REMANDED. . Cotterall does not contend that the dismissal of his claim for declaratory relief was error. . Cotterall does not contest this on appeal. . In view of the sua sponte certification and decertification some four years later, the court emphasized, "the task of the district court on remand is not one which courts must always undertake when confronted with potential class actions.” Ford, 638 F.2d at 762.

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

Paul VERSARGE, Appellant, v. The TOWNSHIP OF CLINTON NEW JERSEY; Annandale Hose Company No. 1, a New Jersey Corporation; William Faust, III. No. 91-6040. United States Court of Appeals, Third Circuit. Argued July 7, 1992. Decided Feb. 2, 1993. Arthur H. Miller and Lynn F. Miller (argued), Miller & Littman, New Brunswick, NJ, for appellant. Marc A. Vaida, Vaida & Manfreda, Flem-ington, NJ for appellee, Township of Clinton. Cynthia M. Jacob, Patricia S. Robinson (argued), Collier, Jacob & Mills, Somerset, NJ, for appellees, Annandale Hose Co. No. 1 and William Faust, III. Before: SLOVITER, Chief Judge, STAPLETON and SEITZ, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. Paul Versarge (“plaintiff”) brought this action after his expulsion as a member of a volunteer fire company. He appeals from the order of the district court granting summary judgment in favor of the Township of Clinton; Annandale Hose Company No. 1; and William Faust, III (collectively “defendants”) and denying his cross-motion for summary judgment. Plaintiff pled violations of the First and Fourteenth Amendments and sought relief under 42 U.S.C. § 1983 (1988). He also pled related claims under the New Jersey Constitution and state law. The district court had jurisdiction over this action to redress an alleged violation of plaintiff’s federal constitutional rights pursuant to 28 U.S.C. § 1331 (1988) and 28 U.S.C. § 1343(a)(3) (1988). It had supplemental jurisdiction over the state law claims under 28 U.S.C.A. § 1367(a) (West Supp.1992). We have jurisdiction over this appeal from a final order of the district court pursuant to 28 U.S.C. § 1291 (1988). On this appeal from a grant of summary, judgment, “[t]he non-movant’s allegations must be taken as true and, when these assertions conflict with those of the mov-ant, the former must receive the benefit of the doubt.” 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). In addition, “[inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion.” Id. Our review is plenary. Id. We turn to the unchallenged facts underlying plaintiff’s claims. We also identify material facts that are in dispute. I. FACTUAL BACKGROUND The defendant Annandale Hose Company No. 1 (“Hose Company”) is a volunteer fire department organized as a not-for-profit corporation serving residents of the defendant Township of Clinton. Plaintiff became a member of the. Hose Company in March of 1978 and continued his membership until his expulsion. From 1984 through 1988, plaintiff also served as Director of Community Issues for the Deer Meadow Homeowners Association (“Homeowners Association”). In 1988, in his capacity as a director of the Homeowners Association, plaintiff petitioned the Mayor and Township Council of Clinton to close a street, Moebus Place, to traffic. In April of 1988, the Mayor and Council requested that defendant Faust, who was then Fire Chief, advise them of the Hose Company’s official position on the street-closure issue. In response, Faust wrote a letter on behalf of the Hose Company opposing the closure of Moebus Place. Faust’s letter asserted that closing Moebus Place to traffic would create an unsafe condition by making it more difficult for emergency vehicles to respond to emergencies in Deer Meadow. On the morning of April 28, 1988, pláin-tiff telephoned Faust at his place of business to express plaintiff’s strong disagreement with the position on the street-closure issue taken in Faust’s letter. Faust declined to discuss the matter at that time. Approximately one hour later, plaintiff telephoned Faust at work a second time to discuss the matter. When making that second telephone call plaintiff realized, based upon Faust’s telephone exchange, that Faust did not work within the Township of Clinton. Plaintiff, who knew that Faust drove a Township-owned vehicle to work, then told Faust that he should not be driving a vehicle assigned to the Hose Company to a work site outside the area served by the Hose Company. When Faust disagreed with plaintiff’s position on the use of the vehicle, plaintiff told Faust that he would notify Township officials about Faust’s use of the vehicle. Plaintiff and Faust disagree about what else, if anything, was said during the second phone call. Specifically, Faust claims that plaintiff threatened to “get” him. Plaintiff denies ever having threatened Faust. It is not disputed, however, that at 9:30 a.m. that morning Faust telephoned the Clinton Township Police Department to report that plaintiff had threatened him during a phone conversation. That same day, plaintiff wrote a letter to the Mayor and Council of the Township of Clinton protesting Faust’s use of the Township-owned vehicle assigned to the Hose Company. A few days later, plaintiff wrote a second letter to the Mayor and Council to inform them that remodeling and electrical work had been performed at the firehouse without first obtaining proper building or electrical permits. On that same date, plaintiff also contacted Faust’s supervisor at the Continental Insurance Company and informed him that furniture bearing the insurance company’s name was being used at the firehouse. Plaintiff also telephoned the police and inspectors for the United States Postal Service to report that a canvas mail bag was being used to store the Hose Company’s baseball equipment. Faust also asserts that, on that same day, plaintiff came to the firehouse and threatened him saying: “You won’t always be with your friends, some day you’ll be alone.” One week later, plaintiff reported to the police that “he had been confidentially informed that there [was] the distinct probability” that furniture at the firehouse had been stolen from the Continental Insurance Company. The next day, plaintiff wrote a third letter to the Mayor and Council detailing his disagreement with the Hose Company’s position on the street-closure issue. Plaintiff asserted that Faust’s letter on behalf of the Hose Company was “riddled with supposition & error” and expressed his “hope for the sake of all of Clinton Twp. that... Faust’s ‘letter of cheap excuses ’ [did] not exemplify the leadership & quality of the [Hose Company].” In early May, plaintiff was informally advised by persons employed, at Clinton Town Hall that the other members of the Hose Company were about to expel him. Plaintiff contacted several Hose Company members and attempted, unsuccessfully, to find out the reasons for ■ his anticipated expulsion. During that same time frame, twenty-one members of the Hose Company signed an “Application for Removal or Expulsion” of plaintiff. The application stated: “This charge is brought against you for conduct' unbecoming a member, by threating [sic] the Chief of the Fire Department and also devulging [sic] transactions of the Company to the Mayor and Council.” Plaintiff was not sent a copy of this Application. On May 25,.1988, plaintiff received a letter from the Hose Company stating that an application for his expulsion had been signed by members of the company pursuant to Article X of the Hose Company’s constitution. The letter also stated that the application for expulsion would be discussed and voted upon at the regular monthly membership meeting on June' 1, 1988. The letter did not state the charges against plaintiff. When he arrived at the June 1st meeting, plaintiff was orally informed that his expulsion was sought for two reasons. First, that he had threatened Chief Faust during an April 28, 1988 phone conversation. Second, that he had disclosed company business by reporting to the Mayor and Council that renovations were made to the firehouse without the required permits. Plaintiff was permitted to read the application for his expulsion which set forth these same two reasons. However, plaintiff was not given a copy of the Application. Plaintiff was then given the opportunity to address these charges. Plaintiff flatly denied having threatened Faust. He admitted notifying the Mayor and Council that renovations had been made without permits. Nevertheless, he argued that, because the Township owned the firehouse, such matters were not simply the Hose Company’s private business. After plaintiff addressed the charges, a vote was taken. By a vote of twenty-four to four, plaintiff was expelled from the Hose Company. Plaintiff sought to appeal his expulsion to the Mayor and Township Council. The Mayor and Council initially agreed to provide a forum for plaintiff’s appeal. Subsequently, however, the Mayor and Council concluded that, under the constitution and bylaws of the Hose Company that were in effect at the time plaintiff was expelled, they had no authority to hear the appeal. On January 22, 1990, plaintiff filed the present lawsuit alleging that Faust, the Hose Company and the Township of Clinton had violated his rights under the federal constitution and under the state constitution and state law. In his complaint, plaintiff sought, inter alia, reinstatement, a declaratory judgment that the provision under which he was expelled was overbroad and monetary damages. Prior to the filing of cross-motions for summary judgment, plaintiff abandoned all monetary claims. II. DISCUSSION A.Qualified Immunity of Faust Defendant Faust argues that he “is entitled to judgment dismissing all claims against him individually based on the defense of qualified immunity.” The district court’s opinion did not address this issue. However, if a defendant asserts the affirmative defense of qualified immunity the court must determine as a threshold matter whether the defendant is entitled to that defense. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity “protects officials from unexpected liability by shielding them from monetary damages if their conduct conforms to that of the reasonable actor.” Hicks v. Feeney, 770 F.2d 375, 379 (3d Cir.1985) (emphasis added); see Guercio v. Brody, 911 F.2d 1179, 1189 (6th Cir.1990) (“[T]he defense of qualified immunity protects officials only from suit for monetary damages. ’), cert. denied, — U.S. -, 111 S.Ct. 1681, 114 L.Ed.2d 76 (1991). Because plaintiff seeks no monetary damages, Faust’s qualified immunity defense is moot. B.State Action Plaintiff’s primary arguments are based upon his assertion that his expulsion from the Hose Company violated his rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff also argues that he is entitled to a remedy under 42 U.S.C. § 1983. As a threshold matter, these arguments would fail unless plaintiff established that his expulsion involved state action. See New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 718, 11 L.Ed.2d 686 (1964) (recognizing that state action is required to trigger First Amendment); Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982) (recognizing that Fourteenth Amendment and section 1983 have “identical” requirements of state action). Plaintiff argues, and the district court concluded, that the Hose Company is a state actor. For purposes of our analysis we assume, without deciding, that the actions of the Hose Company constitute the requisite state action. C.First Amendment Plaintiff raises two First Amendment challenges to his expulsion. First, he alleges that he was expelled in retaliation for exercising his right to free expression. Second, he alleges that a provision in the Hose Company Constitution under which he was expelled is overbroad. We address these arguments in turn. 1. Retaliatory Expulsion For Engaging In Protected Speech We must first determine whether plaintiffs interest in his membership in the Hose Company was sufficient to warrant First Amendment scrutiny. The Supreme Court has stated: “[E]ven though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). At this juncture, we need not, and do not, conclude that plaintiff was an “employee” of the Hose Company or the Township. Rather, we assume, without deciding, that “the opportunity to serve as a volunteer constitutes the type of governmental benefit or privilege the deprivation of which can trigger First Amendment scrutiny.” Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir.1992). Next, we must determine whether plaintiffs speech that formed the basis for his expulsion was protected by the First Amendment. If not, this claim must fail. For this purpose we again employ an analysis typically used in a government employment context — the Pickering balancing test. See Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering, the Supreme Court stated that government employees “may [not] constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest....” Id. at 568, 88 S.Ct. at 1734. We believe that similar First Amendment concerns would apply in a volunteer context. The determination of whether speech is protected pursuant to the Pickering balancing test is one of law. Johnson v. Lincoln Univ. of Commw. Sys. of Higher Educ., 776 F.2d 443, 453 (3d Cir.1985). Application of Pickering involves a two-part analysis. See, e.g., O’Donnell v. Yanchulis, 875 F.2d 1059, 1061-62 (3d Cir.1989); Czurlanis v. Albanese, 721 F.2d 98, 103-107 (3d Cir.1983). First, we must determine whether the speech involves a matter of public concern. Second, we must balance the speaker’s interests in engaging in the speech and the public’s interests in hearing the speech against the organization’s interests in promoting the efficiency of services it performs through its employees or, in this case, volunteers. Defendants contend that the decision to expel plaintiff was based on two items of speech: (1) plaintiff’s letter to the Mayor and Township Council asserting that remodeling work was done on the firehouse without proper permits; and (2) plaintiff’s alleged threat to “get” Faust during the second telephone conversation on April 28, 1988. We note that plaintiff denies ever threatening Faust. This disputed issue of material fact cannot be resolved against plaintiff on this appeal from a grant of summary judgment. Thus, we will assume no threat in the remainder of our analysis. a. Public Concern Analysis Speech may involve public concern if it can “be fairly considered as relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). In determining whether speech is on a matter of public concern, we must consider “the content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-48, 103 S.Ct. at 1689-90; O’Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d Cir.1989) (quoting Connick). In addition, the speaker’s motivation is relevant to the extent that it indicates whether the speaker is speaking as “a citizen upon matters of public concern” or as a volunteer “upon matters only of personal interest.” Connick, 461 U.S. at 147, 103 S.Ct. at 1689; see also Zamboni v. Stamler, 847 F.2d 73, 77-78 (3d Cir.) (recognizing that speaker’s motivation is relevant to, but not determinative of, whether speech is on matter of public concern), cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Czurlanis, 721 F.2d at 103-04, 104 n. 5 (same). We turn to the content, form and context of plaintiffs speech. On its face, the content of plaintiffs speech — whether the Hose Company remodeled the firehouse without obtaining proper permits — implicates public concern. The public might be concerned that the remodeling, if not done properly, could result in damage to the municipal building where the firehouse was located. The public might also be concerned that members of the Hose Company could have violated Township ordinances. We note, however, that the content of plaintiffs speech is not determinative of whether the speech involves public concern. See Connick, 461 U.S. at 148, n. 8, 103 S.Ct. at 1691 n. 8 (recognizing that speech “does not attain th[e] status [of public concern] because its subject matter could, in different circumstances, have been the topic of communication to the public that might have been of general interest”). We turn to the context of plaintiffs speech. The context of plaintiffs speech includes a consideration of “the whole record.” Id. at 148, 103 S.Ct. at 1691. As the district court recognized, “[p]laintiff knew about the remodeling and electrical work for sometime, but chose not to inform the Township council about the lack of permits until after plaintiffs dispute arose with Chief Faust.” Versarge v. Township of Clinton, Civ. No. 90-257(CSF), 1991 WL 247611, at *7 (D.N.J. Nov. 18, 1991). In his deposition, plaintiff offered no reason for his delay in reporting the alleged infractions. Thus, the fact that plaintiff waited to write the letter until shortly after his argument suggests that the speech was of less significant public concern under Pickering. See Connick, 461 U.S. at 154, 103 S.Ct. at 1693 (recognizing as significant that speech “emerged after a... dispute” between plaintiff and defendant). We turn to a consideration of plaintiffs motivation. The law in this circuit is that “motivation is ‘merely one factor to be considered, but [is] not necessarily controlling, in assessing the character of [the employee’s] speech.’ ” Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir.) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d Cir.1988)), cert. denied, 488 U.S. 899, 109-S.Ct. 245, 102 L.Ed.2d 233 (1988). The district court concluded that plaintiff was motivated by a “personal grudge” against Faust and the Hose Company. Versarge, 1991 WL 247611, at *7. The context of plaintiff’s speech supports this conclusion. In addition, the record contains affidavits from other volunteer firefighters attesting that, shortly before writing his letter1 on the remodeling, plaintiff told them that he was going to make trouble for the Hose Company because he was angry about the Hose Company’s position on the street-closure issue. In his letter on the remodeling, plaintiff asserted that he was motivated by concerns about whether the renovations might affect insurance coverage. See supra note 2. Later, during his deposition, plaintiff claimed that he was motivated by a desire “to ensure the safety of the firemen and the township employees.” Despite plaintiff’s claims to the contrary, we agree with the district court’s conclusion that plaintiff was motivated by a “personal grudge.” Plaintiff’s mere assertion that his speech was motivated by insurance or safety concerns is insufficient to create a genuine issue of material fact as to plaintiff’s motivation in view of the overwhelming evidence to the contrary. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 106 S.Ct. 2505, 2509-12, 91 L.Ed.2d 202 (1986). In view of the foregoing factors, we conclude that plaintiffs speech involved, at most, limited public concern under Pickering. Having answered this threshold inquiry, we turn to the balancing requirement. b. Balancing of Interests Analysis We have already concluded, as did the district court, that “[pjlaintiff was more interested with ‘getting back’ and giving his fellow firefighters ‘a hard time’ than he was with, the proper operation of the [Hose] Company.” Versarge, 1991 WL 247611, at *7. We accord little weight to such an interest. On plaintiff’s side of the balance, we must also consider the interests of the public.in plaintiff’s speech. See O’Donnell v. Yanchulis,, 875 F.2d 1059, 1061 (3d Cir.1989) (“With regard to the employee’s interest, we must also take into account the public’s interest.”). The public has an interest in “[f]ree and unhindered debate on matters of public importance.” Pickering v. Board of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968). “The public [also] has a significant interest in encouraging legitimate whistle-blowing so that it may receive and evaluate information concerning the alleged abuses of... public officials.” O’Donnell, 875 F.2d at 1062. On the other side of the balance, we must weigh the Hose Company’s interests. Those interests include whether the speech: (1) “impair[ed] discipline by superiors”; (2) “impair[ed]... harmony among co-workers”; (3) “ha[d] a detrimental impact on close working relationships for which personal loyalty and confidence are necessary”; (4) “impede[d] the performance of the speaker’s duties”; or (5) “interferefd] with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987). These interests are referred to collectively as “disruption.” It is certainly true that the mere existence of some disruption would not end our inquiry. Some disruption may be expected in any case where a government employee or volunteer has broken rank. See Czurlanis, 721 F.2d at 105. Disruption is simply a weight on the scales which must be balanced against the interests of plaintiff and the public in plaintiff’s speech. See, e.g., O’Donnell, 875 F.2d at 1062 (“We say only that [disruption] may be overbalanced by first amendment interests.”); Sprague v. Fitzpatrick, 546 F.2d 560, 566 (3d Cir.1976) (Seitz, J., concurring) (concurring separately to note his understanding that “the majority is not holding, in effect, that the disruptive factor tips the scales in all such cases”), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977). We note, however, that the context in which the disruption occurs is an important consideration “in determining whether speech that actually touches upon a matter of public concern is, in fact, protected activity.” Johnson v. Lincoln Univ. of Commw. Sys. of Higher Educ., 776 F.2d 443, 453 (3d Cir.1985). In addition, where close working relationships are essential and where the speech does not involve matters of significant public concern, the organization need not wait for the full disruptive impact before taking action. Compare Connick, 461 U.S. at 152, 103 S.Ct. at 1692 (“[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”) with Zamboni, 847 F.2d at 78 (recognizing that actual disruption must be shown where speech involves significant public concern). Undisputed evidence in the record reveals that plaintiff’s speech created major disruption at the Hose Company. Although, at his deposition, plaintiff stated that he was not concerned that his speech would have negative repercussions, he conceded that, “depending on the people” involved, his letter on the remodeling could have had a negative effect on his relationships with other Hose Company members. In a police report filed the day after plaintiff wrote his letter, the police investigator noted: “[T]here is extreme malcontent between Paul Versarge and various members of Annandale Hose Company.” Subsequently, twenty-one members of the Hose Company signed an application for plaintiffs expulsion. Later, twenty-four members of the Hose Company voted to expel plaintiff. In contrast, only four members of the Hose Company did not vote to expel plaintiff. In contrast, only four members of the Hose Company did not vote to expel plaintiff. In addition, plaintiff asserts that, at a later date, twenty-five to thirty Hose Company members attended a Town Council meeting to voice their opposition to his reinstatement. Further, several volunteer firefighters have submitted affidavits attesting to their personal distrust of plaintiff and asserting that their feelings are representative of the Hose Company membership as a whole. Plaintiff does not offer any evidence that would suffice to create a genuine issue of material fact as to the existence of major disruption. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 106 S.Ct. 2505, 2509-12, 91 L.Ed.2d 202 (1986). In fact, plaintiffs admitted concern that he might be unable to receive an impartial hearing before the Hose Company membership is consistent with a conclusion of disruption at the summary judgment stage. We note that the context of this disruption is a volunteer fire department. As the district court recognized, “[w]hen lives may be at stake in a fire, an esprit de corps is essential to the success of the joint endeav- or. Carping criticism and abrasive conduct have no place in a small organization that depends upon common loyalty — ‘harmony among coworkers.’ ” Versarge, 1991 WL 247611, at *6 (quoting Janusaitis v. Middlebury Volunteer Fire Dep't 607 F.2d 17, 26 (2d Cir.1979) (quoting Pickering, 391 U.S. at 570, 88 S.Ct. at 1735)); see also Bickel v. Burkhart, 632 F.2d 1251, 1257 (5th Cir.1980) (“Because of the nature of fire fighting, and its high stakes, operational efficiency and harmony among co-workers are critical.”). The undisputed record clearly supports the inference that plaintiff’s speech impaired harmony among the volunteer firefighters and impacted detrimentally on close working relationships where, as here, personal loyalty and confidence are necessary. We recognize that some portion of this major disruption was undoubtedly caused by items of plaintiff’s speech that were not given as grounds for his expulsion. Nevertheless, we conclude that sufficient disruption is directly attributable to the letter concerning the remodeling to outweigh the limited interests of plaintiff and the public in that speech. In so concluding, we do not wish to denigrate the value of “speech” driven by more significant public concerns. See Connick, 461 U.S. at 152, 103 S.Ct. at 1692 (“We caution that a stronger showing [of disruption] may be necessary if the employee’s speech more substantially involved matters of public concern.”). We recognize that Pickering mandates “a particularized examination of each activity for which the protection of the First Amendment is claimed.” Lincoln University, 776 F.2d at 451. Therefore, assuming we were to read plaintiff’s complaint as alleging that the stated grounds for his expulsion were pretextual, we would not simply confine our inquiry to the speech the Hose Company claims motivated plaintiff’s expulsion. See id. at 453. Instead, we would also consider other speech that plaintiff ciaims led to his expulsion. See supra note 5. Nevertheless, given the major disruption caused by the speech taken in to to, our result would be unchanged. Therefore, on the basis of undisputed evidence, we conclude, as did the district court, that the interests of the Hose Company outweigh the limited interests of plaintiff and the public in plaintiffs speech; Accordingly, plaintiffs speech is not protected by the First Amendment. 2. Overbreadth We have concluded that plaintiffs speech was not protected by the First Amendment. Accordingly, plaintiff is not in a position to argue that the provision in the Hose Company constitution under which he was expelled is unconstitutionally overbroad as applied to his speech. Nevertheless, plaintiff seeks to challenge that provision as overbroad on its face. A facial overbreadth challenge allows a plaintiff “to benefit from the [provision’s] unlawful application to someone else.” Board of Trustees v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 3036, 106 L.Ed.2d 388 (1989). The remedies sought by plaintiff for this alleged constitutional violation are reinstatement and a declaratory judgment that the provision is overbroad. Plaintiff seeks no monetary relief. See supra, note 1. Reinstatement is an equitable remedy under 42 U.S.C. § 1983. See Skehan v. Board of Trustees of Bloomsburg State College, 436 F.Supp. 657, 664 (M.D.Pa.1977) (“Prospective reinstatement is an equitable remedy. The requirements of the law of equitable remedies clearly applies [sic] to § 1983.), affd in part, rev’d in part on other grounds, 590 F.2d 470 (3d Cir.1978). Nevertheless, reinstatement is not available in all cases. “[A] court may deny reinstatement ‘when, for example, animosity between the parties makes such a remedy impracticable.’ ” Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 899 (3d Cir.1993) (quoting Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987)). If plaintiff’s speech has caused such animosity and disruption that' reinstatement is no longer a practical remedy, then plaintiff has not “suffered [an] actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374, 78 L.Ed.2d 58 (1983) (per curiam). If such is the case, we would lack jurisdiction over these claims because there would be no “actual case[ ] or controversy].” Id. “The requirement of ‘actual injury redress-able by the court’.... tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conductive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976)). Furthermore, the fact “[t]hat the dispute between the parties was very much alive when suit was filed... cannot substitute for the actual case or controversy that an exercise of this [c]ourt’s jurisdiction requires.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 600, 98 L.Ed.2d 686 (1988). We turn to the issue of whether reinstatement is an available remedy because the resolution of this issue against plaintiff would moot plaintiffs claim to the extent that plaintiff seeks reinstatement. In the preceding section we concluded that plaintiffs pre-expulsion speech, considered in toto, caused major disruption. We also noted that the context of plaintiffs speech was a volunteer fire department where “operational efficiency and harmony among co-workers are critical.” Bickel v. Burkhart, 632 F.2d 1251, 1257 (5th Cir.1980). We conclude that the previously discussed evidence establishes that such animosity presently exists between plaintiff and the members of the Hose Company that reinstatement is not an available remedy. If additional evidence were deemed necessary, the undisputed record also indicates that, after his expulsion, plaintiff engaged in numerous additional' items of speech which could reasonably have been expected to further disrupt his relationships with other volunteer firefighters. For example, after his expulsion, plaintiff wrote to the Mayor and Council enclosing a photocopy of a newspaper article and accompanying photograph concerning a car accident to which the Hose Company responded. Plaintiff alleged that the volunteer firemen shown in the photograph were not wearing proper safety equipment. Subsequently, plaintiff wrote to the Mayor and Council to advise that two Hose Company vehicles had been involved in a minor accident one year earlier. Plaintiff alleged that the accident had never been reported to Mayor and Council or to the Hose Company’s insurance carrier. Later, plaintiff wrote to the Mayor and Council alleging that the telephones at the firehouse were being used for personal calls and that members of the Hose Company- were using Hose Company tools and equipment to repair personal vehicles. Still later, plaintiff wrote to the Mayor and Council to question the advisability of permitting the Hose Company to install and use exercise equipment in its office on municipal property. We conclude that, because of the great animosity between plaintiff and the other volunteer firefighters, reinstatement is not a remedy available to plaintiff. Plaintiffs alleged injury could not be redressed by reinstatement even if we were to conclude that the Hose Company’s actions violated the First Amendment. Thus, we lack jurisdiction to consider this claim because “no resolution of the [claim] can redress [plaintiff’s] asserted grievance.” Iron Arrow, 464 U.S. at 70, 104 S.Ct. at 374; see Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895) (recognizing that when “an event occurs which renders it impossible for th[e] court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal”). In addition to the remedy of reinstatement, plaintiff also seeks a declaratory judgment that the provision under which he was expelled is overbroad. It is highly unlikely, however, that plaintiff will ever again be a member of the Hose Company and, therefore, it is even less likely that the challenged provision could ever be applied against him in the future. The Supreme Court instructs us that such cases lack a controversy of “sufficient immediacy and reality” to permit the issuance of a declaratory judgment under 28 U.S.C. § 2201. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969) (quoting Maryland Casualty Co. v.

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.

GEORG JENSEN HANDMADE SILVER, Inc., v. GEORG JENSENS SØLVSMEDIE A/S et al. No. 6392. United States Court of Appeals for the District of Columbia. Argued April 9, 1935. Decided June 24, 1935. Rehearing Denied July 25, 1935. Axel V. Beeken, of Washington, D. C., for appellant. Walter C. Clephane, of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. PER CURIAM. Appeal from a decree in the Supreme Court of the District quashing service of a subpcena and the .return thereon, and dismissing the bill for want of jurisdiction. A brief statement showing the relation'ship of the parties will be helpful. The defendant Georg Jensens S{!>lvsmedie A/S (which we shall refer to as the Silver-smithy) is a Danish corporation engaged in Denmark in the manufacture of gold and silverware and jewelry. The defendant Pedersen is a Danish subject, a resident of Denmark, and an officer of the Silver-smithy. The defendant Georg Jensen & Wendel A/S (the Jensen & Wendel corporation) is also a Danish corporation located in that country and engaged in the sale of the products manufactured by the Silversmithy. The defendant Miller is also a subject and resident of Denmark and an officer of the Jensen & Wendel corporation. In August, 1923, a contract (an exhibit to plaintiff’s bill) was entered into between the Silversmithy, Pedersen, Miller, Georg Jensen (designer of Silversmithy’s products), and Frederik Lunning. Lunning thereby secured for a definite term of years for himself and his assigns the exclusive right to sell in the United States articles manufactured by the Silversmithy. from designs made by the artist, Jensen. Lunning was to make a specified minimum volume of sales yearly, and he was to be allowed the use of all patents, trade-names, and trade-marks in connection with the business. As protection to Lunning the other parties undertook for a period of twenty years to refrain from selling the same wares in the United States, Lunning’s exclusive territory. Lunning was to sell only the products of the Silversmithy. In January, 1925, and April, 1926, supplementary agreements were entered into whereby the 20-year term was extended and Lunning’s obligation was modified as to the volume of sales required of him. The 1926 supplementary contract also modified Lunning’s prior obligation to purchase solely from the Silversmithy. The Jensen & Wendel corporation was not a party to any of these contracts. In June, 1928, Lunning assigned his entire business in the United States, including his contract rights, to Georg Jensen Handmade Silver, Inc., a New York corporation, and plaintiff below (appellant here), which is engaged in the sale in the United States of the Silversmithy’s products. Thereafter, in 1934, the present suit was initiated, the object of which, broadly-stated, is to establish the validity of the contracts above referred to as well as the assignment by Lunning to appellant, and to secure equitable relief against their alleged violation. Since all the defendants were, as above stated, subjects and residents of Denmark and not doing business within the District, jurisdiction was sought to be obtained by, service of subpcena upon Herbert R. Kerslake (a resident of the District of Columbia), who had been designated in three trade-mark registrations as a special process agent of the Silversmithy and the Jensen & Wendel corporation under the provisions of section 3 of the Trade-Mark Act of 1905 (15 U. S. C. § 83, 15 USCA § 83). That section provides that every applicant for the registration of a trade-mark, or its renewal, who is not domiciled within the United States, “'shall, before the issuance of the certificate of registration * * * designate, by a notice in writing, filed in the Patent Office, some person residing within the United States on whom process or notice of proceedings affecting the right of ownership of the trade-mark of zvhich such applicant may claim to be the ozrner, brought under the provisions of this act or under other laws of the United States, may be served, with the same force and effect as if served upon the applicant or registrant in person.” (Italics ours.) The court below, after stating that neither of the defendants, Pedersen and Miller, was designated as process agent under the Trade-Mark Act, and that while the bill claims that the corporate defendants represent the individual defendants, being as the bill expresses it each an “alter ego” of the individual defendants, held that a suit against an agent is- not a suit against , the principal; that the service provided by statute brings before the court the person who appoints the process agent, and not any third person whose agent the appointing party may be; that an agent cannot be sued upon a cause of action arising from the acts of the principal; and that it is not necessary to determine whether the “proceedings” referred to in the Trade-Mark Act were limited to proceedings in the Patent Office, because the court was without jurisdiction in the case even if the provisions of the statute were not so limited; that the agency of Kerslake is limited in its scope to proceedings “affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner”; that the only matters in the bill which could be considered as coming within this provision is that part of the bill which seeks to cancel the .Silversmithy Registration No. 148928, “and the bill on its face shows that the trade-mark is no longer in force”; and that under this pretext the defendants cannot be brought before the court for purposes not within the statute. Section 3 of the Trade-Mark Act 1905 is of limited application. Maya Corporation v. Smith (D. C. Del.) 32 F.(2d) 350; Erickson v. Macy, 231 N. Y. 86, 90, 131 N. E. 744, 16 A. L. R. 1322. The provision requiring a nonresident applicant to designate some person residing within the United States on whom process may be served is restricted to “proceedings affecting the right of ownership of the trade-mark of which such applicant may claim to be the owner.” In the present case an examination of the bill and exhibits fails to disclose that any one of the defendants claims to be the owner of any registered mark claimed by appellant, or which so nearly resembles such mark as to be likely to be mistaken therefor by the public. Section 7, Trade-Mark Act 1905, 15 U. S. C. § 87, 15 USCA § 87. There is, therefore, no basis for the contention that the defendants had submitted to the jurisdiction of the court below. Appellant further contends that the attempted special appearance was in fact a general appearance by which the defendants submitted themselves to the jurisdictions of the court. There is no merit in this contention. In Jones v. Gould (C. C. A. 6) 149 F. 153, 156, the claim was that the defendants invoked the exercise of jurisdiction upon the merits by requiring the court to pass upon the facts of the case in order to determine the nature of the relief prayed. The court answered the contention as follows: “But we think this is a forced construction of the language employed. It was indeed necessary for the court to look into the bill and ascertain from its allegations and the prayer for relief whether the nature of the case was such as to authorize it under the provisions of section 738, Rev. St., and of section 8, Act March 3, 1875, c. 137, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513 [see 28 USCA § 118]), to obtain jurisdiction of the defendants by publication of notice or service of process outside of its territory, for service could not be had within it. * * * The defendants, therefore, properly referred to the nature of the relief sought by the bill as a reason for denying the jurisdiction of the court over their persons, for as they were neither citizens of the state nor residents therein, personal service could not be had, and the question for the court would then be whether the nature of the case was such that the substituted service- authorized by the statute could be resorted to.” In Gage v. Riverside Trust Co. (C. C.)' 156 F. 1002, 1003, the court said: “There is no question but that, on a motion ■to vacate an -order for ■ substituted service .made under said section [section 8, act of March' 3, 1875, IS Stat. 472], the court must examine the bill in order to ascertain whether or not the case is within the statute. ' * * * Facts, which would otherwise be heard only on the merits, must necessarily ■ be considered in determining the legality of the service.” The decree was right, and is affirmed. Affirmed.

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

Eddie Charles BROWN, etc., Plaintiff-Appellant, v. A. J. GERRARD MANUFACTURING CO., Defendant-Appellee. No. 78-3188. United States Court of Appeals, Fifth Circuit. April 20, 1981. Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant. W. Sherman Rogers, Washington, D. C., amicus curiae. Whitmire, Morton & Coleman, Bryant A. Whitmire, Birmingham, Ala., for defendant-appellee. Before GODBOLD, Chief Judge, and SIMPSON and THOMAS A. CLARK, Circuit Judges. THOMAS A. CLARK, Circuit Judge: This is an appeal from an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The lower court found that plaintiff Brown had failed to rebut the showing by the employer, Gerrard Manufacturing Co., of a legitimate nondiscriminatory basis for his discharge. Because we believe that the lower court erred both in the allocation of the burden of proof and in its evaluation of the evidence in light of the proper allocation of the burden of proof, we reverse. The facts may be summarized. Brown was hired by the Gerrard Manufacturing Co. on April 26, 1972. About seven weeks later, on June 12, 1972, Brown was injured on the job when a part of the machine he was operating swung loose and hit him on the head. He was taken to a doctor, who certified that Brown might return to work the next day. Evidently not content with this first diagnosis, Brown returned the next day, not to work, but to the first doctor’s partner, under whose care Brown remained for the rest of the time in question. Brown still complained of dizziness and pain, and this second doctor found evidence of a concussion. This doctor excused Brown from work until June 20. He returned to work early, however, working all day on June 19 and part of the next before leaving work again complaining of recurring symptoms. Brown was later admitted to the hospital, where he stayed from June 27 until July 7, 1972. When he returned to work on August 14, Brown was told by the plant foreman, John Ward, that he had been “terminated.” The termination notice in Brown’s personnel file gives as the reason for his discharge his failure to keep the company advised of his status. The effective date of the discharge is given as June 20, the date Brown left work for the second time, and before his admission to the hospital. With the exception of June 20, by which time his doctor had earlier certified that Brown could return to work (and before which time he had already returned to work), at all times from the accident on June 12 until he returned to work on August 14, Brown was under his doctor’s certification that he was not yet able to return to work. Most of the testimony at trial concerned the dispute between Brown and the plant manager, Michael Burdyk, over whether Brown had effectively communicated to the company his continuing disability, as well as his intention to return to work. Some matters, however, were not in dispute. There was no dispute, for instance, that at the time of his discharge the company as yet had no formal policy in the matter of unexcused or unreported absences. Burdyk conceded, however, that the company’s invariable practice had been to counsel absentees, advising them that absences had to be reported in advance. In no event would an employee be discharged for the first such unexcused absence, nor would he be terminated without warning. Moreover, plaintiff corroborated the company’s own testimony concerning its discharge policy by introducing extensive portions of personnel records of white employees. Most of these incidents postdated Brown’s discharge, but they show a consistent pattern of counseling and warning before termination. On at least one occasion, when the company’s records showed that telephone calls were not being answered, the personnel file contained a certified mail letter to that effect, together with a warning to respond. Brown insisted that he had received no warnings that his prolonged disability leave was endangering his job. The company, for its part, presented no evidence suggesting that he had. The company nonetheless insisted that Brown’s failure to keep the company advised of his status and of his intentions was sufficient good cause for his discharge. The lower court viewed the case as a straightforward dispute whether Brown, a black employee, received the benefit of the same company policy regarding unreported absences as did white employees. As the lower court saw it, however, the key issue of fact was not whether Brown had been warned that his absences were endangering his job, but whether Brown had reported his absences to the company. In effect the lower court concluded that Brown was not entitled to any warning, as a matter of company policy, if he did not first prove that he reported his absences in advance. Therefore, although the lower court appears to have assumed that Brown made out a prima facie case of employment discrimination, actually it concluded that Brown's case did not get that far. Thus viewing the case, the district court had to determine whether or not Brown ever reported in. Brown testified that he called in many times from the date of the accident until he reported for work on August 14, and that each time he spoke with his superior, John Ward. Ward had moved since the events in question, and did not testify either in person or by deposition. Burdyk in effect was able to testify to no more than that he was unaware of whether Brown had been in touch with Ward or not. Thus, Brown’s testimony that he called in about his illness was uncontradicted. Aside from several documents in Brown’s personnel file, consisting of letters from lawyers concerning Brown’s workmen’s compensation claims, medical bills, and management notes concerning visits and calls by Brown, this was all the evidence on the matter. Although the evidence strongly supported inferences both that Brown contacted the company and that the company knew how to contact Brown if it wanted to, the district court found the evidence inconclusive, wished it had more evidence, and then found for the company on the question of whether Brown reported in. We think the lower court erred first of all in its evaluation of what was sufficient to make out a prima facie case. As we have noted, the lower court concluded that Brown never really made out a prima facie case because he failed to carry his burden of proving that he reported in. It was undisputed, however, that absences without prior warning by the employee were precisely the sort of violations of company rules that would not be met by discharge, absent counseling by management and warning of future disciplinary action. Much of plaintiff’s evidence was to this effect, and the company never challenged this construction of its own policy. Uncontroverted evidence showed numerous instances in which white employees were given extensive warnings for precisely that: failing to show up for work, for extended periods, without prior notice by the employee. Brown should not, therefore, have been required to prove that he reported his absences on a continuing basis if he were to receive, on a nondiscriminatory basis, the benefit of the company’s policy regarding unexcused absences. Under the facts of this case, therefore, Brown made out a prima facie case under Title VII when he offered proof sufficient to find the following: (1) he was a member of a protected group; (2) company policy was not to discharge employees for unexcused absences or absences without prior notice unless the employee had first been counseled and warned; (3) white employees had received the benefit of this lenient company policy; and (4) Brown had been discharged for allegedly unexcused absences without prior warning by the company that his allegedly unexcused absences were endangering his job. Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980) (“With respect to discharge for violation of work rules, the plaintiff must first demonstrate by a preponderance of the evidence either that he did not violate the rule or that, if he did, white employees who engaged in similar acts were not punished similarly.”). Cf. Harris v. Plastics Manufacturing Co., 617 F.2d 438, 440 (5th Cir. 1980) (claims of unequal enforcement of disciplinary rules “refuted by evidence of specific instances in which white employees were disciplined in precisely the same manner as appellants had been.”). Apart from any other showing of a legitimate, nondiscriminatory basis for the discharge, none of which was at issue, the company might then have rebutted Brown’s prima facie case by proving either that its policy was not to discharge only after warning that unexcused absences were endangering one’s job, or that Brown was so warned and yet he persisted in not reporting his status and intentions. The company’s burden on rebuttal would then have been to produce “admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Texas Dept. of Community Affairs v. Burdine,-U.S.-,-, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981). Even were the employer’s burden, however small, not so great, we would still have to reverse the lower court: The employer virtually conceded its first line of rebuttal and offered no evidence along its second. REVERSED and REMANDED for entry of judgment for plaintiff, after hearing such further evidence as may be necessary to determine damages and attorney fees, if any. . Plaintiffs Exhibit 44. . Brown testified that he obtained an early certification of fitness, so that he could return to work by June 20, because he was feeling better and because he needed the money. Trial Transcript, 19-20. . Defendant’s Exhibit 11. . Plaintiffs Exhibit 47. . Plaintiffs Exhibits 44, 45, and 46. . Dep. of Joseph McMahan (Plant Engineer), 75-76. Burdyk’s deposition was to the same effect, Dep. of Burdyk, 107. McMahan’s deposition testimony was received into evidence. R., vol. Ill, 133. The district court did not receive into evidence Burdyk’s earlier deposition testimony, basing its decision on F.R.E. 801(d)(2). Since Buydyk’s deposition, as his testimony at trial, was taken after his retirement, the court apparently concluded that it failed to qualify as an exception to the hearsay rule as a statement “within the scope of his agency ... made during the existence of the relationship ...” Id. But since Burdyk’s testimony, both in deposition and at trial, did not consist of statements “other than” those of the declarant, Burdyk, offered to prove the truth of the matter asserted, but instead concerned matters within Burdyk’s own knowledge, the testimony was not, as a whole, hearsay in the first place. F.R.E. 801(c) (emphasis added). In any event, Burdyk’s trial testimony did not contradict that of his own deposition nor that of McMahan. The company’s first formal policy on unreported leave carried forward this practice, at least in part. On February 16, 1973, the company gave written notice that “anyone not reporting off in the future will be subject to a layoff of one day for the first offense and two days for the second. Further disciplinary action would be taken for not reporting off the third time.” Plaintiffs Exhibit 57. . See, e. g.. Plaintiffs Exhibits 7, 8, 9, 11, 18, 20 and 27. . Plaintiffs Exhibit 9. . R., vol. III, 246-47. . R., vol. III, 241-42. . R., vol. III, 250-51: [THE COURT:] I am not totally satisfied with the evidence. I wish I had heard more evidence to help me in making this choice. I am, however, required to make the choice based on the evidence that has been presented to me. I am not reasonably persuaded or satisfied that Mr. Brown made the various calls that he said he made during that period from June 20th into August 14th. And for lack of being persuaded, must side with the company's version that there were few, if any, contacts made by Mr. Brown during that period of time. For that reason I am unable to find that the absenteeism standard was applied in a discriminatory manner, and I therefore rule in favor of the defendant ... . The only automatic terminations were for stealing, fighting on the job, and bringing alcohol into the plant. Dep. of Burdyk, 108.

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

BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM v. NEW LEFT EDUCATION PROJECT et al. No. 70-55. Argued December 6, 1971 Decided January 24, 1972 W. 0. Shultz II, Assistant Attorney General of Texas, argued the cause for appellant. With him on the brief were Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant Attorney General, and J. C. Davis, Pat Bailey, and James C. McCoy, Assistant Attorneys General. David R. Richards argued the cause for appellees. With him on the brief was Melvin L. Wulf. Mr. Justice White delivered the opinion of the Court. This case comes here on direct appeal from the ruling of a three-judge court declaring unconstitutional and enjoining enforcement of two sections of the Rules and Regulations of appellant Board of Regents of the University of Texas System. 326 F. Supp. 158 (1970). We postponed consideration of our jurisdiction to a hearing on the merits. 401 U. S. 935 (1971). For reasons explained below, we have concluded that we lack jurisdiction of this appeal. This litigation began when the Board of Regents sued the New Left Education Project and certain individuals in a Texas court. In that suit, the Regents sought to restrain defendants from distributing a newspaper and making either commercial or noncommercial solicitations on the Austin campus of the University of Texas except in compliance with appellant's rules. Defendants countered by bringing this federal suit to enjoin further state court proceedings on the ground that the rules that the Regents sought to enforce abridged defendants’ First Amendment rights. A three-judge court met and determined that it was properly convened pursuant to 28 U. S. C. § 2281. It then permitted certain other organizations and individuals, including appellees here, to join the suit as plaintiffs and dismissed the action as to those involved in the state court adjudication. Thereafter, the court granted summary judgment in favor of appellees, declaring unconstitutional and permanently enjoining enforcement of two rules, Regents’ Rules & Regs., c. VI, pt. 1, §§ 6.11, 6.12 (App. 173), governing the campus distribution of certain kinds of literature and the solicitation of dues from members of political organizations. We have jurisdiction to review directly the lower court’s order granting an injunction only if the case was one required to be heard and determined by a three-judge court. 28 U. S. C. § 1253. Such a court is required where the challenged statute or regulation, albeit created or authorized by a state legislature, has statewide application or effectuates a statewide policy. But a single judge, not a three-judge court, must hear the case where the statute or regulation is of only local import. Moody v. Flowers, 387 U. S. 97 (1967); Rorick v. Board of Commissioners, 307 U. S. 208 (1939); Ex parte Public National Bank, 278 U. S. 101 (1928); Ex parte Collins, 277 U. S. 565 (1928). This rule achieves the congressional purpose of saving statewide regulatory legislation from invalidation through ordinary federal court equity suits, minimizes the burden that the three-judge court places upon the federal judiciary, and avoids unduly expanding the Court’s carefully limited appellate jurisdiction. Phillips v. United States, 312 U. S. 246, 250 (1941). Thus, the "term `statute’ in § 2281 does not encompass local ordinances or resolutions," Moody v. Flowers, supra, at 101, nor does it include a state statute having only a local impact, even if administered by a state official. Rorick v. Board of Commissioners, supra. Appellant Board of Regents was created by the Texas Legislature and is charged with governing those educational institutions in the University of Texas System. Texas Rev. Civ. Stat. Ann., Art. 2585 (1965). This governance, which specifically includes a rulemaking power, ibid., extends to but three of the 23 four-year state colleges and universities listed in the Higher Education Coordinating Act of 1965, id., Art. 2919e-2, § 2 (Supp. 1970-1971): the University of Texas at Austin, El Paso, and Arlington. In addition to the 20 senior colleges and universities for which appellant bears no responsibility, Texas has at least 31 public junior colleges that are not within the University of Texas System. Ibid. It is true that the Board of Regents governs numerous medical and other specialized schools and branches, id., Arts. 2603e to 2603i, 2606b to 2606d, but these are only some of the specialized institutions that Texas denominates as agencies of higher education. Id., Art. 2919e-2, §§ 2 (e)-(g) (Supp. 1970-1971). It is therefore apparent that the Regents’ rulemaking power and the rules at issue in this litigation extend to but a fraction of the campuses in the Texas system of higher public education. These rules can scarcely be described as matters of statewide concern or expressions of a statewide policy when a large percentage of Texas colleges and universities are unaffected by them and could not be affected by any pronouncement that a federal court might make on their constitutionality. There is no suggestion or indication of any kind that the Regents’ rules are similar to those for other schools or are required by or express statewide policy. The situation here is comparable to that in Moody v. Flowers, supra, where we held that three-judge courts were improperly convened to consider challenges to a state statute applying to a particular country and to a county charter based upon a state statute. The fact that several campuses over which the Board of Regents has jurisdiction are located in different parts of the State does not in our view make their rules of general applicability for the purpose of 28 U. S. C. § 2281. These rules, applying only to some of the higher educational institutions of the State, are of limited significance and do not partake of the quality and dignity of those state statutes or policies that three-judge courts were designed to consider. We are persuaded that a contrary view of this case would be inconsistent with our oft-repeated admonition that the three-judge court statute is to be strictly construed. E. g., Allen v. State Board of Elections, 393 U. S. 544 (1969); Phillips v. United States, 312 U. S., at 251. Since the three-judge court was improperly convened, appeal lies not here but to the Court of Appeals for the Fifth Circuit. So that appellant may be able, if it desires, to perfect a timely appeal, we vacate the judgment below and remand the case with instruction that the court enter a fresh decree. Phillips v. United States, supra, at 254. Judgment vacated and remanded. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Appellant also mentions the University of Texas at San Antonio and of the Permian Basin but does not take issue with appellees’ contention that these schools are merely in the planning stage (Brief for Appellees 2 n. 1). It has long been settled that a three-judge court is proper even in a suit against a local official, although localized in his geographic activities and mode of his selection, when he is engaged in enforcing a policy of statewide application whose constitutionality is challenged. Spielman Motor Sales Co. v. Dodge, 295 U. S. 89 (1935); Rorick v. Board of Commissioners, 307 U. S. 208, 212 (1939). The thrust of our more recent decision in Alabama State Teachers Assn. v. Alabama Public School and College Authority, 393 U. S. 400 (1969), is to the same effect. The issue there was a legislative direction to the Alabama Public School and Housing Authority to issue bonds for the construction of a public university in Montgomery, Alabama. Appellants challenged that action, although having a local impact, as expressive of an official, statewide policy to maintain a racially identifiable, dual system of education, and the District Court denied relief. The dissent on the merits from summary affirmance, disagreeing with Mr. Justice Harlan’s dissent on jurisdictional grounds, agreed that a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court and the direct appeal here. Board of Visitors v. Norris, post, p. 907, aff’g 327 F. Supp. 1368 (ED Va. 1971), rests upon the same basis. In McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950), the Court entertained an appeal from the judgment of a three-judge District Court upholding an Oklahoma statute providing that Negroes, though admissible to white graduate schools, must get that education on a segregated basis. Nothing in the record before us in this case indicates that the regulations challenged here represent general state policy, reflect a statutory command, or apply to more than a fraction of the Texas higher educational institutions. It is thus difficult to understand the dissent’s reliance on the Alabama, Norris, and McLaurin cases.

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?

COHEN v. COMMISSIONER OF INTERNAL REVENUE. CARNAHAN v. COMMISSIONER OF INTERNAL REVENUE. COMEAUX v. COMMISSIONER OF INTERNAL REVENUE. CLEMONS v. COMMISSIONER OF INTERNAL REVENUE. POLK v. COMMISSIONER OF INTERNAL REVENUE. Nos. 3816-3822. United States Court of Appeals Tenth Circuit. July 26, 1949. William H. Quealy, Washington, D. C. (Harry C. Castor, Wichita, Kan., on the brief), for petitioners. Harry Marselli, Washington, D. C. (Theron Lamar Caudle, Ellis N. Slack and Lee A. Jackson, Washington, D. C., on the brief), for respondent. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. MURRAPI, Circuit Judge. These several appeals, here on a consolidated record from the United States Tax Court, involve assessed deficiencies and fraud penalties against each of the petitioners for different years, between 1936 and 1944, for income allegedly derived from the illegal traffic in liquor, gambling and betting on horse races, outside the city limits of Wichita, in Sedgwick County, Kansas. The assessments and penalties against each of the petitioners for the specified years were based upon the hypothesis that petitioners Comeaux, Clemons, Polk and others owned and operated establishments in Sedgwick County, Kansas, where liquor was sold, gambling conducted, and betting on horse races booked; that petitioners ; Cohen and Carnahan, acting in concert, afforded them protection against raids and arrests by state and county law enforcement officers for a percentage of the profits derived from the operation of the illicit businesses; and that each of the petitioners fraudulently failed to report accurately or truthfully all of the income' derived from such illegal activities for the years in question to the extent of the assessed deficiencies. On review, the Tax Court consolidated ' Cohen and Carnahan’s cases for purposes of trial, over the objection of the parties. All of the cases were tried consecutively, and it was agreed that the records in the other' cases, insofar as material and pertinent, might be considered as evidence in the consolidated cases. With immaterial modifications and adjustments, the Tax Court affirmed the Commissioner’s determination in each case. See Cohen v. Commissioner, 9 T.C. 1156; Carnahan v. Commissioner, 9 T.C. 1206; Comeaux v. Commissioner, 10 T.C. 201. On appeal here, the petitioners Cohen and Carnahan complain of the consolidation of their cases, contending in effect that their tax liability being separate, and not governed by the same facts, it was prejudicial to each of them to have their cases tried and considered together. But the record shows that Cohen and Carnahan were associated together in the activities which gave rise to the deficiency assessments, and that much of the evidence introduced, both on behalf of the Commissioner and the petitioners, was competent in both cases. The question of consolidation therefore rested in the sound discretion of the Tax Court. See Skirvin v. Mesta, 10 Cir., 141 F.2d 668; United States v. Hauck, 2 Cir., 155 F.2d 141. All of the petitioners seek to annul the respective decisions of the Tax Court on the grounds that the opinions do not sufficiently set forth a complete statement of the “findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law * * * ” as required by Section 8(b) of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.A. § 1007(b). Without deciding whether the Tax Court of the United States is a “court” within the exclusionary meaning of Section 2(a) of the Act, 5 U.S.C.A. § 1001(a), we are convinced that Section 8(b) has no application to the procedure of theTax Court in a proceedings of this kind. Kennedy Name Plate Co. v. Commissioner, 9 Cir., 170 F.2d 196. It may be said, however, that the decision of the Tax Court in each case is based upon extensive and detailed findings of fact and well reksoned conclusions. Its accompanying opinions are full and comprehensive treatments of the facts and every question presented for decision there and here. Numbers 3816 and 3817 Max Cohen For the years 1936 to 1943, inclusive, the Commissioner determined deficiencies and penalties against Max Cohen in the aggregate sum of $148,080.11. The deficiencies were determined by resort to what the internal revenue agent chose to call the “excess cash expenditure” method, under which the agent assumed that Cohen was “broke” on January 1, 1936, and that all expenditures as reflected by the available books and records in excess of the amount the taxpayer is shown to have had available to spend from reported sources, constituted additional and unreported taxable income. In other words, the deficiencies were based upon the premise that the taxpayer was shown to have spent more money in each of the taxable years than his returns showed was available to him as income. Thus, for each succeeding year the Commissioner started with the cash carry-over, if any on hand, and added to that the ascertainable cash receipts. He then aggregated all cash expenditures, from which he deducted the sum of the cash on hand, and ascertained cash receipts to arrive at the additional mnreported income for each of the years in question. While conceding that the methods employed by the Commissioner are justified in cases where the income is from illegal sources and no records are kept, on which taxable income can be ascertained with accuracy, see Kenney v. Commissioner, S Cir., 111 F.2d 374, and cases cited, Cohen earnestly argues that adequate records were maintained by him for the taxable years in question, from which competent accountants computed his taxable income and prepared proper returns, on which he paid the tax; that since the Commissioner concedes that his returns for the years in question are in agreement with his available records, resort to the so-called excess cash expenditure method does not provide a proper basis for determination of deficiencies, and is unwarranted. The Tax Court found, and the record shows, that in the year 1936, Cohen was engaged in the oil business, and that upon the advice of an attorney, an accountant set up double entry ledgers to record all of his oil transactions, and that these books were kept by the accountant, and his income and disbursements accurately recorded and reflected in his income tax returns. The record also shows that before and after 1936, Cohen received large sums of money from the operation of establishments in Sedgwick County, where liquor was sold, gambling conducted, and bets on horse races were booked. For these activities, he maintained no books or records, except daily work , sheets, reflecting the total amount of the “take”, with directions to his accountant concerning its apportionment to the joint adventurers, whose returns the same accountant also prepared. The income from these activities was reported on the tax returns as derived from “outside activities”. No other books or records or explanation has ever been made available. As the Tax Court observed in respect to the deficiencies assessed for the years 1936 to 1939, inclusive, there was credible evidence that during these years, Cohen received large sums of money from night club operators and from various illegal enterprises, in addition to the sums reported from “outside activities” in his return for those years, and that since Cohen elected not to take the witness stand to refute or explain the testimony and evidence on which the Commissioner’s determinations were based, the court must indulge in their presumptive correctness. Cohen further contends that the Commissioner erroneously assumed that he was broke on January 1, 1936, as a basis for determining his taxable income for that year and succeeding years. He says in that connection that the Commissioner’s determination and the Tax Court’s approval flies in the face of uncontradicted testimony that he had substantial funds in the Fall of 1936. There was testimony to the effect that in November 1936, he had in his possession $37,500.00, and other testimony tending to show that he possessed large sums of money in cash at that time. The taxpayer’s returns for the years preceding 1936 did not reflect any income. In fact, he filed no returns for the years 1931 through 1935. The taxpayer did not choose to enlighten the court in that regard; the court was not convinced by the testimony, and we cannot say that its conclusion in that respect is clearly erroneous. For the taxable year 1940, the Commissioner determined no excess cash expenditures, but Cohen complains of the disallowance of an item of $2,552.27, claimed as' net loss carry-over. In its treatment of this item, the Tax Court stated that at the outset of the hearing, counsel for the petitioner abandoned any contention of error in the determinations for the taxable year 1940, except fraud, and observed that no proof was introduced specifically referring to that item; and that since the record was barren of proof in respect, to the deficiency, it was presumptively correct and must therefore stand. The court accordingly approved the deficiency, and disapproved the. fraud penalty for that year. We accept the Tax Court’s version of the matter, and agree with its conclusions. In respect to the deficiency for the year 1941, Cohen complains of the failure of the court to find that he borrowed the sum of $35,000.00 in cash from his mother-in-law, Mrs. Myrtle Hale, on or about September 1, 1941, and its" consequent treatment of that sum as taxable income to him for that year. In rejecting as false, testimony tending to show that the loan was made to him for the purpose of purchasing oil properties, the Tax Court took into consideration the fact that although Cohen had a complete set of books and records for his oil business, there was no record on these books of the loan, or any other evidence of the debt; that it was not shown to have come into his bank account, and no mention of it had been made during the investigation of his income tax liability until the hearing before the Tax Court. The court also treated as significant the fact that the $35,000.00 claimed loan was almost exactly the amount of the excess cash expenditures of $36,-916.26, determined for the year 1941, and observed that Cohen, who “should know most about the matter” remained silent. Again we cannot say that the Tax Court, as the trier of the facts and judge of the credibility of the witnesses, arrived at an unwarranted conclusion. During the taxable years 1941, 1942 and 1943, Cohen and Carnahan financed one Ray Watson in -the operation of a “slot machine route”, under an agreement that Watson would receive 25% of the profits accruing to the owners of the machines, and Cohen and Carnahan 75% until the capital investment was returned, after which the profits would be divided 50% to Watson and 50% jointly to Cohen and Carnahan. ' In his income tax returns for the years 1941, -1942 and 1943, Cohen reported 25% of the proceeds. The Commissioner increased it to 37%%, on the basis that Cohen and Carnahan received for the taxable years in question 75% of the income. It is admitted-that Cohen and Carnahan received 75% of the income during all of these years, ‘but Cohen contends that he is indebted to Watson for the difference and intends to pay him; that since Watson’s testimony supports this contention and reported the 50% in his returns for these years, the Commissioner could not repudiate the arrangement and arbitrarily increase his income by that amount. The Tax Court sustained Cohen’s contention for the year 1941, on the theory that he was entitled to a return of his investment, and sustained the Commissioner for the years 1942 and 1943, on the grounds that Cohen admittedly retained the money. It refused to give credence to the testimony that it was a debt to be repaid. We do not think the court’s appraisal of the facts was clearly erroneous. Cohen also attacks the determination of the Commissioner, approved by the Tax Court, of deficiencies based upon excess cash expenditures for the years 1941, 1942 and 1943, and particularly complains that the court failed to give consideration to an analysis of his income tax liability for these years prepared by an accounting firm from the same records and data used by the revenue agent in arriving at the excess cash expenditures. A summary of this analysis, purporting to show that cash available to Cohen during the years was understated by the revenue agent in his report, was offered and received in evidence, and the accountant who prepared it was also interrogated in court concerning the adjustments forming the basis for the discrepancy. The record shows that the Tax Court gave consideration to this summary and the testimony of the accountant. There is nothing in the record to suggest that the Tax Court did not give full consideration to the proffered testimony. It chose to accept the Commissioner’s determinations, and its decision, resting as it does upon competent proof, is controlling here. Cohen complains that the Tax Court erroneously refused to allow the accountant who prepared the analysis of his income tax for the years 1941, 1942 and 19-13, to substantiate his summary in detail, and also urges as reversible error the refusal of the Tax Court to grant a rehearing after findings and opinion for the same purpose. The record does not indicate that the Tax Court limited in any respect evidence offered on behalf of the petitioner. Instead, it afforded the parties every opportunity to offer any proof bearing upon the issue. The question whether the court should grant a rehearing for the purpose of hearing substantiating testimony was entirely within its discretion in these circumstances. In sum, the evidence shows, without dispute, that Cohen and Carnahan derived large stuns of money from establishments located in Sedgwick County, Kansas, openly engaged in selling liquor, conducting gambling games and slot machines, and accepting bets on horse racing. In his income tax return for 1941, Cohen reported from “outside activities” the sum of $58,-002.56; for 1942 he reported $158,630.46, and for 1943 he reported $95,179.78, all directly attributable to the illicit enterprises conducted by petitioners Comeaux, Clemons, Polk and others. No books or records were available to substantiate these returns, except the daily work sheets handed to the accountant showing cash received, with directions for apportionment among the participants according to their syndicated shares. There was also evidence that during these years in question, Cohen received other substantial sums of money from other illicit sources, which he did not report in his income tax returns. From this and other evidence of excess cash expenditures, the Commissioner determined the deficiencies for each of the years and assessed the penalties. After a full hearing, the Tax Court has, with modifications and adjustments, approved its assessments. Cohen elected to remain silent in the proceedings, and has pleaded nolo contendere to criminal charges for tax evasion for some of the years in question. While his failure to testify in his own behalf, and his plea of nolo contendere are no evidence tending to support the Commissioner’s determinations and the Tax Court’s approval thereof, they do tend to account for approximations where details might otherwise be filled in. It is sufficient to say that the Tax Court’s decision rests upon the best available evidence, and we think it is sufficient. Stinnett v. United States, 4 Cir., 173 F.2d 129; Harris v. Commissioner, 4 Cir., 174 F.2d 70; Greenfield v. Commissioner, 4 Cir., 165 F.2d 318. See also Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 62 S.Ct. 925, 86 L.Ed. 1266, 139 A.L.R. 1513; Cohan v. Commissioner, 2 Cir., 39 F.2d 540, 543. Numbers 3818 and 3819 Robert L. Carnahan For the taxable years 1937 to 1944, inclusive, the Commissioner determined deficiencies and penalties against Carnahan in the aggregate amount of $146,410.52. Carnahan kept no books or records reflecting his income, except the work papers delivered to his accountant showing gross receipts from joint enterprises with Cohen. The Commissioner’s determinations are based upon the theory that since, with noted exceptions, Carnahan was an equal partner with Cohen in the outside activities, their income from common sources was the same. The Commissioner accordingly set up the deficiencies as “income not reported” corresponding to “excess cash expenditures” in Cohen’s case. Carnahan challenges this method of determination, but the evidence which supports the deficiencies in the Cohen case is equally applicable to him. His principal attack upon the deficiencies arises from the refusal of the Commissioner to allow as deductions personal gambling losses to ■the extent of partnership gains. Although Carnahan did not testify in his own behalf, he offered the testimony of others to the effect that during the taxable years in question, he sustained large gambling losses at different places over the country, and contended that these losses were deductible to the extent of his gains from the various gambling enterprises, from which he derived his unreported income. See Jennings v. Commissioner, 5 Cir., 110 F.2d 945. The Tax Court sustained the Commissioner’s disallowance of these deductions, first, because it was of the opinion that neither Carnahan nor Cohen owned any interest in the gambling enterprises from which they derived the unreported gains. Rather, it was of the opinion that the income was for protection afforded the various gambling establishments against raid and arrest by county and state officers. In that respect, the court stated that “all inferences from the situation tend to support the testimony that no ‘place’ could operate in Sedgwick County without paying Cohen. ‘To pay Cohen was to pay Carnahan.” According to the undisputed testimony, Cohen bank-rolled and collected the percentages from some of the gambling establishments, while Carnahan bank-rolled and collected from others, but they regularly balanced accounts by payments to each other in cash. As against the contention of the taxpayer that the percentage paid to them from the gambling operations was for “bank-rolling” the games and standing all losses, the Tax Court observed that it was not likely that anyone. operating a gambling establishment would pay as high as 75% of the lucrative earnings for the risk involved. Of course if Carnahan owned no interest in the gambling - establishments, he could not deduct his personal gambling losses, to the extent of his gains from those sources. ' And finally, the court refused to believe part of the testimony supporting the claimed losses. In so doing, it pointed out with respect to a claimed $25,000.00 gambling loss in 1942, that Carnahan merely called his auditor, advising him that he had just lost $25,000.00 gambling. The only supporting evidence of this loss was a letter from Carnahan to his accountant— Carnahan did not testify concerning it, or any other claimed losses. For any or all of the reasons assigned, we think the Tax Court correctly disallowed the claimed deductions. No. 3820 G. A. Comeaux The deficiencies and fraud penalties determined and assessed against Comeaux were based upon income from the operation of the Lawrence Commission Company, where wagers were taken on horse racing and other sporting events. In his returns for the years in question, Comeaux treated the amounts admittedly paid to Cohen and Carnahan as partnership income, and therefore not includable in his gross income. In his returns, however, Comeaux designated himself as sole owner. The Commissioner allocated the entire income from the establishment to Comeaux on the theory that the percentages admittedly paid to Cohen and Carnahan were for protection, and not for any proprietary interest in the business. The amounts are not in dispute, and it is agreed that while legitimate expenses incurred in an illegitimate business are deductible, amounts paid for protection are not legitimate business expenses. The Tax Court allowed certain claimed expenses incurred in the operation of the business, but sustained the Commission’s disallowance of the amounts paid to Cohen and Carnahan, based upon its findings fully set forth in the Carnahan case, to the effect that Cohen and Carnahan set themselves up as overlords of the illegal gambling business in Sedgwick County, Kansas, and exacted tribute from all those who wished to engage in it. The evidence shows, without dispute, that during the years in question, the outlying districts; surrounding Wichita were infested. with so-called night-clubs, where liquor was sold and gambling conducted, with only nominal interference from law enforcement officers. It is certainly permissible to infer from this record that Cohen and Carnahan actually furnished the protection they offered, and that the income they received from the illicit businesses was in payment therefor. Number 3821 Fred D. Clemons Beginning in 1940, through 1944, petitioner Clemons owned and operated what was known as the Overflow Club outside the city limits of Wichita. He sold liquor by the drink in the front end, and conducted gambling in the rear. The bank roll for the gambling was furnished by Carnahan, and he, on behalf of himself and Cohen, received a stipulated percentage of the winnings. In his income tax returns for the years 1940 -to 1944, inclusive, Clemons did not include in his gross income amounts paid to Carnahan, on the theory that the gambling winnings represented partnership income. The Commissioner assessed deficiencies, claiming that all of the income accrued to Clemons as the owner of the establishment, and the amounts paid to Carnahan were nondeductible payments for protection. The Tax Court allowed the legitimate expenses for the operation of the business, but approved the deficiencies for the amounts paid to Carnahan and Cohen for the reason stated in the Carnahan and Comeaux cases, and its decision thereon is affirmed for the same reason. Number 3822 Ralph Leonard Polk During the year 1940 through 1944, Ralph Leonard Polk operated what was known as the Canyon Supper Club in the outskirts of Wichita, where liquor was sold in the front end, and gambling conducted in the rear. Cohen furnished the bank roll for the gambling, and was paid a percentage of the winnings. The issues here are the same as those in the Comeaux and Clemons cases, and the Tax Court’s decision approving the Commissioner’s determinations, is based upon the same reason,., and its decision is affirmed. All of the deficiency assessments against all of the petitioners for the years 1936 through 1939, (and also 1940 for petitioner Comeaux) are admittedly barred by the statute of limitations, unless the returns for those years were false and fraudulent, with the intent to evade taxes. If so, they are not barred. Each of the petitioners earnestly contend that the Commissioner has not sustained the burden of showing fraud. While the determinations of the Commissioner are presumptively correct, and the burden is on the taxpayer to disprove them, the burden is upon the Commissioner to show fraud, and such burden is not sustained by merely establishing a deficiency. See Greenfield v. Commissioner, 4 Cir., 165 F.2d 318; Harris v. Commissioner, 4 Cir., 174 F.2d 70; Snell Isle, Inc. v. Commissioner, 5 Cir., 90 F.2d 481. In accordance with this rule, and after a careful analysis of the facts in each case, the court concluded that with the exception of certain noted years, the returns had been fraudulently filed, with an intent to evade tax. Without recounting the facts and circumstances, we are convinced that the Tax Court’s findings in that respect are not clearly erroneous, and they must be sustained. The several decisions are affirmed. The memorandum findings of fact and opinion of the Tax Oourt in the case of Fred D. Clemons and Ralph Leonard Polk are included in the record, but apparently were not officially reported.

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

LOCAL NO. 380 INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Flambeau Plastics Corporation, Intervenor. No. 17104. United States Court of Appeals Seventh Circuit. June 9, 1969. Kenneth R. Loebel, Goldberg, Previant & Uelmen, Milwaukee, Wis., for petitioner. Walter S. Davis, Russ R. Mueller, Davis, Kuelthau, Vergeront & Stover, Milwaukee, Wis., for intervenor. Marcel Mallet-Prevost, Asst. Gen. Counsel, Charles N. Steele, Atty., N.L. R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., for respondent. Before KNOCH, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges. KNOCH, Senior Circuit Judge. Petitioner, Local 380, International Union, Allied Industrial Workers of America, AFL-CIO, seeks review and revocation of an Order of the National Labor Relations Board issued June 27, 1968, reported at 172 NLRB No. 33, dismissing an unfair labor practice complaint against the intervenor, Flambeau Plasties Corporation. This Court has jurisdiction under § 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq. The alleged unfair labor practice occurred in Bara-boo, Wisconsin, at the intervenor’s plant there. The facts are largely stipulated. The petitioner was certified as the collective bargaining representative of the production and maintenance workers at inter-venor’s plant in March, 1963. In May, 1965, after a number of unfair labor practices by intervenor, it entered into a one-year contract with the petitioner. Prior to and during negotiations for a successor agreement, intervenor committed further unfair labor practices. On September 15, 1966, the intervenor withdrew recognition from petitioner asserting a good faith doubt as to the petitioner’s continued majority. Meanwhile a strike had begun on June 15, 1966. On May 25, 1967, the Trial Examiner found that the intervenor had violated § 8(a) (5). The Board’s Order adopting the Examiner’s decision was entered October 13, 1967. In its opinion, filed August 2, 1968, in Flambeau Plastics Corporation, petitioner, v. NLRB, respondent, and Local 380, International Union, Allied Industrial Workers of America, AFL-CIO, intervenor, 7 Cir., 401 F.2d 128, cert. den. January 13, 1969, 393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563, this Court ordered enforcement of the Board’s direction that intervenor bargain with petitioner, and on application offer reinstatement to their former or substantially equivalent positions to all strikers, dismissing, if necessary, persons hired after the strike began. Prior to the filing of the Board’s Order of October 12, 1967, on July 18, 1967, petitioner wrote intervenor that the strike would be “terminated” on July 20, 1967, and demanded resumption of bargaining on the basis of the decision made two months before by the trial examiner whose recommendation was adopted in the Board Order described above. On July 20, 1967, sixty-one of the strikers sent individual but identical applications for reinstatement to the in-tervenor. These included the following statement: Further, I make this application for reinstatement with the understanding that Flambeau Plastics will continue to recognize and commence bargaining with my duly designated bargaining representative * * * in regard to my wages, hours and other terms and conditions of employment. * * * I am no longer striking, but on the contrary I am willing and available to return to work, but not if it means that I must subsidize an employer who imposes unlawful conditions upon my reinstatement. On July 24, 1967, intervenor replied to the petitioner that it continued to doubt its majority and to the applicants for reinstatement that it was “prepared to consider an unconditional offer * * * to return to regular, full-time employment * * * ” and setting a time for such application at the personnel office. July 26, 1967, fifty-eight of the applicants wrote again stating: [Y]ou are conditioning any consideration of my reinstatement on my foregoing my right to presently engage in collective bargaining, which right the National Labor Relations Act affords to me. * * * I am willing to return to work with all the rights that the law affords to me including the right to bargain collectively * * * I have not insisted on any conditions * * * other than those * * * conditions imposed by virtue of law. As to the conditions imposed by law, I believe I have the right to insist on their present enforcement. On July 31, 1967, intervenor answered that: You should understand clearly that Flambeau asks you to waive no rights guaranteed to you under Federal or State law as a condition to your returning to work. By the same token, you cannot demand Flambeau to waive any rights guaranteed to it by Federal or State law as a condition to your returning to work. We fully intend to comply with the processes which you invoked to assert what you believed to be your rights. The majority of the Board found that these requests for reinstatement conditioned return to work on agreement to resume bargaining with the union, and no unconditional application having been made, the intervenor had not committed a violation of § 8(a) (3) and (1) of the Act in rejecting these applications. We agree. A request for reinstatement demanding that the employer remedy the unfair labor practice which the strike protests is a conditional request and the employer is not required to reinstate the applicant. Golay & Co., Inc. v. NLRB, 7 Cir., 1966, 371 F.2d 259, cert. den. 387 U.S. 944, 87 S.Ct. 2079, 18 L.Ed.2d 1332. Whatever may be said of the numerous unfair labor practices in its history, the intervenor did assert its willingness • to leave the determination of the validity of its conduct to the processes of the Act and announced its intention to comply with the decision ultimately reached through these processes, an event which occurred after all the briefs had been filed in this appeal. The intervenor did not ask returning employees to forego their right of representation. We have studied the cases on which the petitioner relies and find them distinguished on their facts. For example, it was the employer who imposed conditions to reinstatement in Phelps Dodge Corporation v. NLRB, 1941, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 and Portage Plastics Co., 1967, 163 NLRB No. 102. We find reasonable the Board’s refusal to distinguish between employees’ continuing to strike in protest against a refusal to bargain which occurs during an unfair labor practice strike and a new strike to protest the new unfair labor practice. We agree with the Board that it did not reach the issue in NLRB v. Fleet-wood Trailer Co., 1967, 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 which petitioner cites as setting down guidelines. The offers to return in Fleetwood were evidently conceded to be unconditional. The Court there held that the rejection of such offers could be supported by legitimate and substantial business justifications but that the burden of such a defense was on the employer and that he did not sustain it by a mere showing that jobs were unavailable on the precise date of the applications. The intervenor here based his rejection of the offers on the nature of the offers themselves. We do not agree with the petitioner that the Board was unduly technical in its view of the offers to return to work. The exchange of correspondence made it clear that the employer would reinstate on an unconditional application leaving the ultimate decision to the “processes of the Act.” The petition for review is denied. 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 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?

Agnes Dale CROSBY, Appellant, v. The LOUDOUN NATIONAL BANK OF LEESBURG, and The National Bank of Fairfax, Appellees. Agnes Dale CROSBY, Appellant, v. The LOUDOUN NATIONAL BANK OF LEESBURG, Appellee. Agnes Dale CROSBY, Appellant, v. The PEOPLES NATIONAL BANK OF LEESBURG, Appellee. Agnes Dale CROSBY, Appellant, v. The PEOPLES NATIONAL BANK OF LEESBURG, and J. S. Buck, and Edward Beans and Henry Thompson, d/b/a Beans & Thompson, Appellees. Nos. 7197-7200. United States Court of Appeals Fourth Circuit. Argued June 18, 1956. Decided July 13, 1956. John H. Dorsey, Washington, D. C. (F. Sheild MeCandlish, Fairfax, Va., and Blum, Lindsey & Powell, Washington, D. C., on brief), for appellant. Armistead L. Boothe, Alexandria, Va., and J. Sloan Kuykendall, Winchester, Va. (Stilson H. Hall, Wilbur C. Hall, Lees-burg, Va., and H. Wise Kelly, Jr., Fair-fax, Va., on brief), for appellees. Before SOPER and PRETTYMÁN, Circuit Judges, and TIMMERMAN, District Judge. PRETTYMAN, Circuit Judge. In 1939 Mrs. Agnes Dale Crosby entered upon a cattle-raising venture on a farm she had acquired in Fairfax County, Virginia. Being inexperienced in the matter she employed a manager, one James M. King. On Fehruary 1, 1941, she gave King a written power of attorney, which constituted him her attorney and agent and empowered him: “(1) To manage and operate my farms in Broad Run District in Lou-doun County, Virginia, lying on the Potomac River, near Sterling, Va., containing about 1600 acres of land. “(2) To buy any live stock to be fed and grazed or worked on the said farms, and sell same in my name. “(3) To issue notes or contracts for the purchase of live stock, cattle, cows, hogs etc. to be fed and/or grazed on said farm. “(4) To do all lawful acts requisite for effecting these premises, hereby ratifying and confirming all that the said attorney or agent shall do therein by virtue of these presents.” The farm was operated under the foregoing power for ten years. Then, in March, 1951, Mrs. Crosby gave King another power of attorney, identical with the earlier one except for paragraph (3), which in the new document read: “(3) To execute notes, contracts or deeds of trust securing said notes for the purchase of live stock, cattle, cows, hogs etc. to be fed and/or grazed on said farm.” The main operation of the farm was the pasturing and feeding of cattle. Generally speaking, cattle were bought in the spring and sold in the fall, but sometimes they were kept over to the next spring or even the next fall. Mrs. Crosby had no funds with which to begin this operation and undertook it upon the basis of cattle loans. The process was to borrow money for the purchases and re-' pay the loans when the cattle were sold. Mr. King was in complete charge of these financial dealings for Mrs. Crosby, conducting them under his powers of attorney. For the first ten years or more, or until about 1952, he dealt with the Peoples National Bank of Leesburg, Virginia, and thereafter he had some dealings with the Loudoun National Bank of the same place. In these transactions he, borrowed money, gave notes and deeds of trust securing the notes, renewed notes, and paid off notes, being authorized to sign her name in such matters and in fact doing so. When cattle were sold. King customarily sent Mrs. Crosby the sales sheet from the stockyards, the can-celled note from the bank, the deed of trust, if any, and the difference in money. Mrs. Crosby from time to time gave financial statements to the banks, including therein notations concerning the cattle operations. King terminated his employment with Mrs. Crosby in September, 1953. On January 21, 1954, Mrs. Crosby was notified by the Peoples Bank by letter that three notes signed by King as her agent, and secured by cattle, were past due. She thanked them for the notice and said she still had the cattle but was expecting to sell them and was getting in touch with Mr. King to that end. She asked if it would be possible to secure an extension on the loans. The Bank replied that it would renew the notes and that no doubt King would look after them. Then in March, May, June and July followed other notices to her of notes past due. These notes were thereafter renewed by King. In August, 1954, it developed that for some period of time King had not been buying cattle with the money he borrowed and had not been devoting the proceeds of sales to the payment of the bank loans. King died suddenly on August 9th. Conferences between Mrs. Crosby and officials of the two banks resulted in the payment by her of the very considerable totals of the notes due, the funds being obtained by a mortgage on the farm. Thereafter Mrs. Crosby brought the four civil actions which are now before us upon appeal. In the action which is No. 7197 in this court she sued the Lou-doun Bank, the subject matter being two loans made by King on February 26 and March 25, 1954, for $8,800 and $6,000, respectively. She alleged that King had exceeded his authority when he made the loans, representing that they were to pay for cattle whereas he was converting the proceeds to his own use, and that the Bank was negligent. By amendment she alleged that King was without authority to endorse the checks given him by the Bank when the money was borrowed. She prayed for declaratory judgment that the notes were not valid. In another action against the Loudoun Bank Mrs. Crosby alleged that King made a certain loan ($3,834 on December 23, 1952) secured by a deed of trust on cattle; that the note was twice renewed, once in July, 1954, when in fact there were no cattle on the farm; and that the Bank was negligent in renewing the note and was negligent in drafting the deed of trust by being so vague in the description of the cattle that this security could not be identified. She prayed judgment for recovery of the amount of the note she had been required to pay. The third action, against the Peoples Bank and some individuals whose interest is not here material, was substantially the same in principle, with different notes, amounts, etc., as the action last-above described. The fourth action was also against Peoples Bank and was based upon a personal note of King upon which Mrs. Crosby was an accommodation endorser. She alleged that King’s note was purportedly secured by a deed of trust on cattle but that the description of the security in the deed was so vague that the property could not be identified, and thus she was deprived of recourse to that security for her protection. She claimed damages in the amount of the payment she was required to make. The cases were tried together. At the close of the plaintiff’s case the trial court dismissed the complaints, entering judgment for the defendant in its cross-claim in the action which is No. 7197 on appeal. We agree with the views which the trial judge took of the issues in the controversy. In the first place we think the power of attorney was broad enough to support and justify all the transactions which the banks had with King. Not only does the text of the 1951 document, which is the one in effect during the defalcations, support that view, but the course of conduct of the parties over the whole period of twelve or thirteen years supports it. Appellant argues that the bank had a duty to make certain that whenever a note was accepted or renewed the cattle were on hand as security. But we think no such duty existed. The power ran to the borrowing of money with which to purchase cattle, and thus cattle were not necessarily on hand when the money was secured. The power of attorney cannot be read, we think, as requiring that money be loaned only when cattle had already been bought. In other words we think the power of attorney did not require that every note be secured by a deed of trust; it authorized deeds of trust, it did not require them. In the second place, even if the banks had made certain that cattle were on hand when notes were made, Mrs. Crosby’s position would not necessarily be aided materially, because admittedly part of King’s dereliction occurred when he sold cattle and failed to apply the proceeds to the notes. It is not urged that the banks had a duty to insure that the proceeds of sales be paid to them. Such a requirement would obviously be impractical. It seems probable from this record that most of the appropriations of money by King were of funds received from sales rather than from the original loans; most of these notes were renewed after there were no cattle on the farm. As we have indicated, the meaning of the plain texts of the powers of attorney to King is made more certain by the course of conduct of the parties over the years. To relate the evidence in detail would prolong this opinion unduly. Suffice it to say that the evidence was ample to support the District Court’s conclusion in this respect. The legal principle applicable to the foregoing part of the case is that under broad powers of attorney such as these a third party is not obliged to go behind the power; the agent becomes trustee for his principal, and a lender is not obligated to insure the proper application of the loaned funds. Appellant Crosby urges with special emphasis her contention that King had no power to endorse the checks which the banks gave him when they loaned him the money. But we agree with the District Court on the point. King had power of attorney to buy livestock, to execute notes for the purchase of such cattle, and to do all lawful acts “requisite for effecting these premises”. Mrs. Crosby knew, and the banks knew she knew, that the method of operation was for the banks to loan King funds upon a note in her name and to give him checks for the amount of the loan and for him to endorse the checks. For example, Loudoun checks of December 23, 1952, March 16, 1951, and December 20,, 1951, were endorsed by him. She testified she intended King to receive money from the banks. There was nothing illegal in his endorsement of the checks in her name, so long as he had her authority to do so. He plainly had such authority. Mrs. Crosby urges that when the banks drew deeds of trust upon the cattle they were so vague in their descriptions that the security could not be identified. The deeds described the cattle by number, breed, color and weight. She says the banks should have insisted upon branding or tagging. She says the failure to do this deprived her of the opportunity of recovering the security. But she testified it was customary for King to send her the cancelled deeds of trust when he sent her the cancelled notes and that she examined those deeds. So she knew the-nature and terms of the deeds. If she thought them insufficient for her protection she should have said so long before the unhappy events here involved occurred. The trusts were primarily for protection of the lender of the money. If she wanted a secondary protection she should have claimed it. Further in this, respect it was shown by evidence that the terms of these deeds were those customary in the trade in Loudoun County in making cattle loans. We think it is of some significance that many of these notes were executed or renewed with Mrs. Crosby’s knowledge after King ceased to be her farm manager; she had not then cancelled his power of attorney. Had she been diligent in this respect so much harm might not have resulted. The District Court placed some reliance upon Mrs. Crosby's ratification of King’s transactions with the banks. She paid the notes after she learned the full facts, and theretofore she had substituted new notes for the King notes. We agree that the ratification occurred, but we think it unnecessary to rest the decision in any part upon that fact. Affirmed. . See Warren-Scharf Asphalt Pav. Co. v. Commercial Nat. Bank, 6 Cir., 1899, 97 F. 181; Brookfield Trust Co. v. Foster, 1922, 212 Mo.App. 347, 246 S.W. 617; 4 Bogert, Trusts and Trustees, § 767 (1948 ed.). . See Corbett v. Kleinsmith, 6 Cir., 1940, 112 F.2d 511.

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

SMITH v. EVENING NEWS ASSOCIATION. No. 13. Argued October 10, 1962. — Decided December 10, 1962. Thomas E. Harris argued the cause and filed briefs for petitioner. Philip T. Van Zile II argued the cause for respondent. With him on the briefs was Clifford W. Van Blarcom. Mr. Justice White delivered the opinion of the Court. Petitioner is a building maintenance employee of respondent Evening News Association, a newspaper publisher engaged in interstate commerce, and is a member of the Newspaper Guild of Detroit, a labor organization having a collective bargaining contract with respondent. Petitioner, individually and as assignee of 49 other similar employees who were also Guild members, sued respondent for breach of contract in the Circuit Court of Wayne County, Michigan. The complaint stated that in December 1955 and January 1956 other employees of respondent, belonging to another union, were on strike and respondent did not permit petitioner and his assignors to report to their regular shifts, although they were ready, able and available for work. During the same period, however, employees of the editorial, advertising and business departments, not covered by collective bargaining agreements, were permitted to report for work and were paid full wages even though there was no work available. Respondent’s refusal to pay full wages to petitioner and his assignors while paying the nonunion employees, the complaint asserted, violated a clause in the contract providing that “there shall be no discrimination against any employee because of his membership or activity in the Guild.” The trial court sustained respondent’s motion to dismiss for want of jurisdiction on the ground that the allegations, if true, would make out an unfair labor practice under the National Labor Relations Act and hence the subject matter was within the exclusive jurisdiction of the National Labor Relations Board. The Michigan Supreme Court affirmed, 362 Mich. 350, 106 N. W. 2d 785, relying upon San Diego Trades Council v. Garmon, 359 U. S. 236, and like pre-emption cases. Certiorari was granted, 369 U. S. 827, after the decisions of this Court in Local 174, Teamsters v. Lucas Flour Co., 369 U. S. 95, and Dowd Box Co. v. Courtney, 368 U. S. 502. Lucas Flour and Dowd Box, as well as the later Atkinson v. Sinclair Refining Co., 370 U. S. 238, were suits upon collective bargaining contracts brought or held to arise under § 301 of the Labor Management Relations Act and in these cases the jurisdiction of the courts was sustained although it was seriously urged that the conduct involved was arguably protected or prohibited by the National Labor Relations Act and therefore within the exclusive jurisdiction of the National Labor Relations Board. In Lucas Flour as well as in Atkinson the Court expressly refused to apply the pre-emption doctrine of the Garmon case; and we likewise reject that doctrine here where the alleged conduct of the employer, not only arguably, but concededly, is an unfair labor practice within the jurisdiction of the National Labor Relations Board. The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. If, as respondent strongly- urges, there are situations in which serious problems will arise from both the courts and the Board having jurisdiction over acts which amount to an unfair labor practice, we shall face those cases when they arise. This is not one of them, in our view, and the National Labor Relations Board is in accord. We are left with respondent’s claim that the predicate for escaping the Garmon rule is not present here because this action by an employee to collect wages in the form of damages is not among those “suits for violation of contracts between an employer and a labor organization . . . ,” as provided in § 301. There is support for respondent’s position in decisions of the Courts of Appeals, and in Association of Westinghouse Salaried Employees v. Westinghouse Corp., 348 U. S. 437, a majority of the Court in three separate opinions concluded that § 301 did not give the federal courts jurisdiction over a suit brought by a union to enforce employee rights which were variously characterized as “peculiar in the individual benefit which is their subject matter,” “uniquely personal” and arising “from separate hiring contracts between the employer and each employee.” Id., at 460, 461, 464. However, subsequent decisions here have removed the underpinnings of Westinghouse and its holding is no longer authoritative as a precedent. Three of the Justices in that case were driven to their conclusion because in their view § 301 was procedural only, not substantive, and therefore grave constitutional questions would be raised if § 301 was held to extend to the controversy there involved. However, the same three Justices observed that if, contrary to their belief, “Congress has itself defined the law or authorized the federal courts to fashion the judicial rules governing this question, it would be self-defeating to limit the scope of the power of the federal courts to less than is necessary to accomplish this congressional aim.” Id., at 442. Textile Workers v. Lincoln Mills, 353 U. S. 448, of course, has long since settled that § 301 has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts. There is no constitutional difficulty and § 301 is not to be given a narrow reading. Id., at 456, 457. Section 301 has been applied to suits to compel arbitration of such individual grievances as rates of pay, hours of work and wrongful discharge, Textile Workers v. Lincoln Mills, supra; General Electric Co. v. Local 205, UEW, 353 U. S. 547; to obtain specific enforcement .of an arbitrator’s award ordering reinstatement and back pay to individual employees, United Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593; to recover wage increases in a contest over the validity of the collective bargaining contract, Dowd Box Co. v. Courtney, supra; and to suits against individual union members for violation of a no-strike clause contained in a collective bargaining agreement. Atkinson v. Sinclair Refining Co., supra. The concept that all suits to vindicate individual employee rights arising from a collective bargaining contract should be excluded from the coverage of § 301 has thus not survived. The rights of individual employees concerning rates of pay and conditions of employment are a major focus of the negotiation and administration of collective bargaining contracts. Individual claims lie at the heart of the grievance and arbitration machinery, are to a large degree inevitably intertwined with union interests and many times precipitate grave questions concerning the interpretation and enforceability of the collective bargaining contract on which they are based. To exclude these claims from the ambit of § 301 would stultify the congressional policy of having the administration of collective bargaining contracts accomplished under a uniform body of federal substantive law. This we are unwilling to do. The same considerations foreclose respondent’s reading of § 301 to exclude all suits brought by employees instead of unions. The word “between,” it suggests, refers to “suits,” not “contracts,” and therefore only suits between unions and employers are within the purview of § 301. According to this view, suits by employees for breach of a collective bargaining contract would not arise under § 301 and would be governed by state law, if not preempted by Garmon, as this one would be, whereas a suit by a union for the same breach of the same contract would be a § 301 suit ruled by federal law. Neither the language and structure of § 301 nor its legislative history requires or persuasively supports this restrictive interpretation, which would frustrate rather than serve the congressional policy expressed in that section. “The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.” Local 174, Teamsters v. Lucas Flour Co., supra, at 103. We conclude that petitioner’s action arises under § 301 and is not pre-empted under the Garmon rule. The judgment of the Supreme Court of Michigan is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. There was no grievance arbitration procedure in this contract which had to be exhausted before recourse could be had to the courts. Compare Atkinson v. Sinclair Refining Co., 370 U. S. 238; Drake Bakeries Inc. v. Local 50, American Bakery Workers, 370 U. S. 254. A small number of these employees were permitted to do some work during the strike, Garner v. Teamsters Union, 346 U. S. 485; Weber v. Anheuser-Busch, 348 U. S. 468. “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” Labor Management Relations Act, §301 (a), 29 U. S. C. § 185 (a). “It shall be an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .” National Labor Relations Act, § 8 (a) (3), 29 U. S. C. § 158 (a) (3). An unfair labor practice charge could have been filed under § 10, but that remedy was not pursued and the. present proceeding was commenced after the six-month limitation period prescribed in § 10 (b) had expired. The view of the National Labor Relations Board, made known to this Court in an amicus curiae brief filed by the Solicitor General, is that ousting the courts of jurisdiction under § 301 in this case would not only fail to promote, but would actually obstruct, the purposes of the Labor Management Relations Act. The Board has, on prior occasions, declined to exercise its jurisdiction to deal with unfair labor practices in circumstances where, in its judgment, federal labor policy would best be served by leaving the parties to other processes of the law. See, e. g., Consolidated Aircraft Corp., 47 N. L. R. B. 694; Spielberg Mfg. Co., 112 N. L. R. B. 1080. E. g., Local Lodge 2040, I. A. M., v. Servel, Inc., 268 F. 2d 692 (C. A. 7th Cir.); Copra v. Suro, 236 F. 2d 107 (C. A. 1st Cir.); United Protective Workers v. Ford Motor Co., 194 F. 2d 997 (C. A. 7th Cir.). See also Dimeco v. Fisher, 185 F. Supp. 213 (D. N. J.) and cases cited therein. Two other Justices, in a separate opinion, concluded that under § 301 a union as a party plaintiff may not enforce the wage claims of individual employees. The only part of the collective bargaining contract set out in this record is the no-discrimination clause. Respondent does not argue here and we need not consider the question of federal law of whether petitioner, under this contract, has standing to sue for breach of the no-discrimination clause nor do we deal with the standing of other employees to sue upon other clauses in other contracts.

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

What is the issue of the decision?

UNITED STATES of America v. Louis BERTUCCI, also known as “Toots”, Glenn Doherty, Morris Abrams, William McCabe, also known as William G. Smith, and John Zoroiwchak, also known as John Zuroick, Appellants in Nos. 14351, 14345, 14352, 14353, 14354, respectively. Nos. 14345, 14351-14354. United States Court of Appeals Third Circuit. Argued March 17, 1964. Decided June 16, 1964. Certiorari Denied Oct. 12, 1964. See 85 S.Ct. 75. Raymond W. Bergan, Washington, D. C. (Edward Davis, Philadelphia, Pa., Williams & Stein, Washington, D. C., on the brief), for appellants. Harry T. Alexander, Dept. of Justice, Crim. Div., Washington, D. C. (Drew J. T. O’Keefe, U. S. Atty., Edmund E. DePaul, Asst. U. S. Atty., Philadelphia, Pa., Shellie F. Bowers, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee. Before McLAUGHLIN, GANEY. and SMITH, Circuit Judges. McLAUGHLIN, Circuit Judge. Appellants, with Jerry Barsuglia, were indicted and tried for conspiracy to commit offenses in violation of Sections 101 (a) (1), 101(a) (2), 101(a) (5) and 610 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. §§ 411(a) (1), 411(a) (2), 411(a) (5) and 530 and of sixteen related substantive offenses in violation of Section 530. Rita Maneini was named in the indictment as an unindicted co-conspirator. At the conclusion of the trial, on motion of the Government, the indictment against Barsuglia was dismissed. All of the appellants were found guilty on Count One, the conspiracy count. On the substantive counts Bertucci was found guilty on Counts Two and Six, involving Flounders and Axler; not guilty on Counts Seven and Eight, involving Mrs. McKay and Mrs. Corr Doherty was found guilty on Counts Twelve, involving Graf-figna; not guilty on Counts Eleven and Thirteen, involving Campbell and Kropp. Abrams guilty on Count Three, involving Flounders. McCabe guilty on Counts Four, Fourteen, Fifteen and Sixteen, involving Flounders, Kay, Corr, Campbell and Quirk. Zoroiwchak guilty on Count Five, involving Flounders. The offenses of which appellants were convicted involved infringement of the civil rights of the persons noted under Sections 101(a) (1), 101(a) (2) and 101(a) (5) of the said Act and in violation of Section 610 thereof in that they conspired to and did prevent by the use of force and violence those persons from exercising their right to attend and participate in a membership meeting of Transportation, Checkers, Receivers and Clerical Workers Union, Local 161, on February 22, 1962 at 105 Spring Garden Street, Philadelphia, Pennsylvania, and to express their views, etc. upon matters properly before the meeting and of conspiring to so prevent them. Local 161, consisting principally of employees of the Philadelphia Transportation Company (PTC), was organized in 1955 and is affiliated with the Teamsters Union. It has always been tightly controlled by Lawrence J. Mullen as Business Manager and Secretary-Treasurer. Until 1960, he and the Executive Board appointed the Local’s officers and trustees. In 1960 there was an election of officers at which Mullen and his group were unopposed. Mullen alone has always possessed the power to name the union’s shop stewards. Sometime prior to August 1961 some of the members, including a majority of those whose rights were found to have been infringed by appellants, sought to obtain changes in the union which would give the membership generally a voice in its affairs. Those efforts were unsuccessful in August and September of that year. In October they helped in inducing Mullen to call the first meeting of the membership to be held in a year. The proposal to have the stewards elected rather than appointed got nowhere at that meeting. The President of the Local as chairman and Mullen who took over as chairman, refused to listen to it; the latter peremptorily adjourned the meeting. The minority, by then called Sweep, went into the district court seeking protection of the members’ rights, inter alia, that regular meetings be held and that the court designate a meeting at which the supposedly proposed PTC contract could be passed upon. Prior to any action by the court, Mullen negotiated a collective bargaining agreement with PTC on January 23, 1962 which the latter considered “a bona fide contract. * * * As of February 1st.” Mullen then sent out a letter calling for a vote by mail on a proposed collective bargaining agreement with PTC with the ballots to be counted February 2, 1962. The letter fixed February 22, 1962 for a membership meeting; it stated “All explanations concerning the procedures will be made. All questions will be answered.” The district court on February 1, 1962, by agreement of the parties, fixed general membership meetings to be held February 22 and 24, 1962 with ballots cast by mail to be received not later than February 28, 1962. All of the above brings us to the meeting of February 22, 1962. The five appellants were present in and about the meeting hall. Bertucci and Doherty were employees of the Local. Six days before the meeting Bertucci’s salary had been raised from $95 a week to $140 and Do-herty’s from $60 to $100 a week. Mc-Cabe, Abrams and Zoroiwchak were shown to be members of the Teamsters Local 107, the first two were salaried employees of same at $150 per week apiece. There was trial testimony by Edmund Flounders, a member of the Local and of Sweep, that on February 22, 1962, the date of the meeting his dues were paid up and that he sought admission to the meeting from appellant Bertucci who was at a table just inside the entrance door of the hall. He said that he showed his union card to Bertucci “ * * * and he [Bertucci] said ‘Uh-uh’ ”. As the witness admitted later, Bertucci would not allow him to enter the hall. The witness stated that he said, “I don’t understand why * * * ”, continuing, he testified that “ * * * I don’t know whether I was shoved into Toots [Bertucci] or whether I took the first punch at Toots or not but a melee followed.” At that point the Government pleaded surprise to the testimony “because it is at variance with prior statements given to the Government by the witness.” The motion to cross-examine Flounders was granted. The witness was asked, “ * * '* did you ever mention taking the first punch to Mr. Mahlon Price of the F.B.I.?” A. “No, I did not.” Q. “Did you ever mention it at any time during the testimony under oath before Judge Luongo?” A. “I don’t remember.” The witness was shown his testimony before Judge Lu-ongo where he had testified that Bertucci had said to him, “Look, God damn it, if you are looking for trouble you are going to get it.” Regarding this he stated “If it is in the record I did.” He was also shown the Grand Jury notes where he had made the same statement and said, “I said that.” He testified that he was knocked down and slugged, that “somebody hit me with a pipe on this shoulder and somebody hit me with a baseball bat over here * * * I was unconscious”. He identified appellants McCabe and Abrams as two of the men who hit him. There was testimony by Andrew J. Quirk that Bertucci, McCabe and another had refused Flounders admission; that Flounders came out of the door backwards ; that a punch missed him and hit someone else; that Flounders started to run towards the street and that McCabe “a big man in a sweater was chasing him”; that McCabe hit Flounders and knocked him down; that Flounders was picked up, his nose and mouth all bloody, put into a car and taken to the hospital. Mr. Quirk said he did not see Flounders punch anyone at the door. Daniel W. Haag testified he saw Flounders while the latter was trying to obtain admission. He thought he was talking to Barsuglia, “ * * * after that I heard the commotion and I saw him coming back toward me.” He did not see Flounders do anything. Mrs. McKay testified that prior to the meeting Bertucci was behind a desk and gave Mrs. McKay and the people with her, including Mrs. Corr, attendance slips to fill in with names, addresses and telephone numbers; that Doherty and another man later advised them that they had to go “ * * * he had orders * * * they had to leave”; that McCabe came up to them and told a Mr. Campbell who was in the group that it was none of his business [why Mrs. McKay and Mrs. Corr had to leave] and for Campbell to mind his business “or he’d leave too”. Mrs. McKay said she left because she “was afraid to stay longer”. Mrs. Corr, as a witness, told how Rita Mancini a member of the Local who sits with the Board had pointed out Mrs. McKay and herself to appellants Doherty and McCabe who advised those people they had to leave the hall. Mrs. Corr left because she was afraid. Mr. Campbell corroborated the two women to a large extent. He was stopped by Doherty who told him he would have to leave because he had been expelled or suspended. He heard Doherty say the same thing to Mrs. McKay and Mrs. Corr. _ _ ., . , T . , Nathan Axler, a Local member, on „ , i x- ^ xt tu. oo j the day and time of the February 22nd ,. , . ,. , ,, x meeting observed the hall entrance ., , , , „ . . „ ,. , blocked by Bertucci, Barsuglia and Rita Mancmi seated at a table. He saw and heard Bertucci holler at him, Messrs. Donnelly and Braubitz that they had been suspended and weren t allowed to attend the meeting He saw Haag whom he had brought to the hall reeling back holding his mouth * * - he was bleeding from the mouth * * * he has a heart condition, * * I grabbed him, pushed him against the wall of the building and stood over him to prevent him being hit again.” He said Mr. Barsuglia said to me that I ought to leave before somebody got hurt and Mr. Bertucci was hollering at me and he said, 111 get you, you s.o.b. * * *’ He used the full words He saw Flounders on the ground, bleeding from the face and head. He was being helped to his feet by Mr. Donnelly and somebody else, I don’t remember who. Doímelly, a Local member, on the 22nd went to the hall doorway where Bertucci was standing. The latter told him, “You are not allowed in * * * you were expelled.” Donnelly told Bertucci he had not been expelled. Bertucci replied, “Well, you were told you are not getting in.” Donnelly saw Flounders come out of the hall backwards with his hands extended over his head. He saw men following Flounders “ * * * and Flounders went down against this parked car. * * * A member of the Labor Squad came down and this one fellow was leaning over a car like hitting — to hit Flounders •• * The officer pushed this man back. He said, That s enough, Bill. ’ There was most substantial further testimony by witnesses Martone, Coughlin, Kropp, Maier, Braubitz along the same general lines. Police Officer Gordon said that he and other officers were patrolling the meeting area. Some 15-20 feet from the entrance door they saw Abrams, McCabe, Zoroiwchak and Joseph McCreel standing on the northeast corner of Hope and Spring Garden Streets in a group of fifteen to twenty men “what we thought were Teamster members * * A group of about . , , _ „ x xi. ™ ■, six to eight men came over to them and -j j . sai(i they had been denied admission to ,, , ,. „ ... ... , , the hall. The officer believed they had Md Mm ftey were Loca] m members. Then officers «heard some type of ^ * * * somebody yelling or ghouti or whatever it was that caused ug ^ Jook aroun(L„ The location of ^ noige wag cloger to the other entrance to the hal]. Th then gaw ,<a of people aU ^ Qr gom6 them waMng) a lot of them runnin towards ^ gcene or ^ ^ of attention. , * * Some of the people running were the game people j had seen on the corner_ * * * William McCabe, Morrig Abrams> John Zoroiwchak and others * * * j believe : saw Bertucci.” Gor(jon went to the scene, saw a man lying on the ground. He observed McCabe and Abrams c¡ose him and pushed ^bem hack. After that Gordon requested rad;0 beip an(j “probably at least six to eight police vehicles of various types” responded. Gordon and his partner saw a group of Teamsters including McCabe, Abrams and Zoroiwchak walking toward Second and Spring Garden and ordered them to walk back towards Hope Street and Spring Garden. Gordon put in another call for assistance. The group of Teamsters reached their parking lot at Hope and Spring Garden. “ * * * they all hollered nobody can go on their parking lot because it was theirs.” The police ordered the Teamsters group from the parking lot and they went into the union ban. Gordon recalled that just about 8 ;00 P,M, the evening of the meet¿ng 0f February 22nd, he saw Bertucci -n tbe doorway 0f the union auditorium. Appellants’ main point, argued at considerable length, is that the district court erred in refusing to review the Grand Jury testimony of Government witnesses and to make such testimony available if inconsistencies appeared. It will be remembered that the Government pleaded surprise to the trial evidence of the witness Flounders as inconsistent with his statements to the Grand Jury. All of Flounders Grand Jury testimony was at that time given the defense. What the defense then did was make a motion for the trial court “ * * * to examine in camera the Grand Jury testimony of all persons who testified for the Government and if inconsistencies are found to turn them over to the defense to utilize in cross-examination.” The trial judge ruled the all inclusive request was improper and denied it. He expressly stated that, as with the Flounders’ testimony, he would have turned over to the defense the Grand Jury testimony of any other trial witness where the Government pleaded surprise. Appellants cite United States v. Giampa, 290 F.2d 83, 85 (2 Cir.1961) as the legal basis for their request. With all respect, we think that decision misconceives the problem and fails in its attempted resolution thereof. The Supreme Court in this kind of a situation tells us in unmistakable language that “The burden * * * is on the defense to show that .‘a particularized need’ exists for the minutes which outweighs the policy of secrecy.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 403-404, 79 S.Ct. 1237, 1241, 3 L.Ed.2d 1323 (1959). This court in United States v. Boyance, et als, 329 F.2d 372 (1964) faced the exact question which here confronts us and in an opinion by Judge Staley, held: “We think that the rule of the Second Circuit as expressed in United States v. Giampa, supra, equates the right of the defense to an examination of Grand Jury testimony to the right to the production of a Jencks Act statement. The only distinction is that the trial judge must first examine the Grand Jury transcript. But the Supreme Court has expressly held that the rationale of Jencks is not to be applied to Grand Jury testimony, and that the defendant has the burden of establishing a particularized need for such testimony. Pittsburgh Plate Glass Co. v. United States, supra. The question then is whether such a need has been shown in the ease at bar.” As we have seen, the need for supplying the defense with Flounders’ Grand Jury testimony was immediately recognized and taken care of. Appellants would have it that, even assuming their above general request was properly refused, they should have been allowed access to the testimony of Officer Kaczur. The complete answer to this is that in the judgment of the trial court the particularized need of it was not shown. Without question, this was a matter for the discretion of the judge. Our own examination of the trial record gives no indication that the court abused its discretion. St. Clair v. United States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936 (1894). United States v. Socony-Vacuum Oil Co., Inc., et al., 310 U.S. 150, 233, 60 S.Ct. 811, 84 L.Ed. 1421 (1940). Berry v. United States, 295 F.2d 192, 195 (8 Cir.1961). Appellants argue that the convictions are not supported by sufficient evidence; that judgments of acquittal should have been granted. We have briefly stated a general outline of the Government evidence. While this is by no means all inclusive, the raw material from the record without inference or comment does reveal that the Government presented a case both on the conspiracy and substantive counts against all of the appellants that fully justified its submission to the jury. It was specially stressed on oral argument that the convictions of Abrams and Zoroiwchak are unsupported by evidence. This is not in accord with the record. Flounders testified that he remembered Abrams hitting him at the time, as he said, “When I was knocked out of the Union Hall? * * * Physically knocked out * * * And the only thing I remember before I became unconscious was these men hitting me.” He identified the men who hit him as being present in the court room. He was asked, “Will you point them out by number?” He answered “I remember Bill McCabe hitting me.” He was next asked “Which other?” A. “I remember Abrams.” Q. “Which one is Abrams ?” A. “Next to Toots Bertucei.” Flounders was also asked “With reference to your testimony before the Grand Jury you refer to a person called John Zoroiwchak. Is he in the courtroom?” A. “Yes, he is.” Q. “Will you point him out sir?” A. “The third man from the end.” Officer Kaczur who was outside the union hall at the time of the meeting identified Zoroiwchak as one of a group of men wearing Teamster 107 jackets standing on the corner of Spring Garden and Hope Streets adjacent to the hall. He said there was a big commotion and the men with the 107 insignia ran in the direction of the commotion. He identified McCabe, Abrams and Zoroiwchak as in that group. Kac-zur and his partner Gordon followed and “By the time we broke this what you call mob, got in the center of the circle, there was a man lying on the highway.” That man was Flounders. A half hour later he saw the same group heading for Second and Spring Garden Street. He said “That crowd was going to 2nd and Spring Garden St. and they were going after four men and got out of a car at 2nd and Spring Garden * * Kaczur testified that he and Gordon told the extra police who had come on the scene “on the assist call” to disperse that crowd. The crowd dispersed and stood on the union parking lot. Kaczur and Gordon told the other police to disperse, the crowd out of the area or have them go into the union hall. The crowd “Approximately the crowd that was hanging on the corner, about 15, 20 men. * * * They all went — started going to their cars and they were taking baseball bats out of their cars and they were taking the baseball bats into the union hall.” He specifically saw McCabe, Abrams and Zoroiwchak in that crowd and had seen them prior to that, running between the parked cars. He stated that he saw them enter the union hall with baseball bats. Officer Gordon, who testified even more carefully than Kaczur, substantially corroborated the latter’s evidence. Gordon was the one whom the witness Don-nelly said he saw, pushing a man back who was “ * * * like hitting — to hit Flounders.” Donnelly stated that Gordon said to the man “That’s enough, Bill.” It seems to us, as we have above noted, that with reference to Abrams and Zoroi-wchak, as with the other appellants, the evidence and the fair inferences therefrom called for submission to the jury of the charges remaining against them.' The 17th count of the indictment, a substantive charge against Zoroiwchak involving Mrs. McKay, had been dismissed by the court at the conclusion of the testimony. Appellants would have it that Bertucei and McCabe struck Flounders in self-defense and not with the specific intent of enjoining him from attending the meeting. In addition to Flounders’ trial testimony, the other evidence above noted concerning the episode was before the jury for its consideration. The evidence as a whole, to say the least, was quite sufficient for that body to decide as it did that the expressed purpose of Bertucei and the others involved in the Flounders incident was to attempt to bar him from the meeting and the exercise of his membership rights, which attempt was entirely successful. The effort to suggest that what Bertucei and McCabe did to Flounders was in self-defense was before the jury in connection with all the other evidence as to the episode. Appellants’ requests to charge their requests 20, 21 and 22, dealing with that situation did not accurately present the actual legal and evidential picture. They were rightly denied. 23 and 27 are broader in scope; they suffer from the same basic defects. Request 25 was substantially covered in the enarge. There was no specific objection to the refusal to charge it or 27. Neither one of them is legitimately before us. Appellants contend that their requests for instructions 10 and 24 were erroneously refused. These dealt with advice of counsel to the Local. The trial record does not support those requests. There was no error in refusing request 26 that neither the union nor Mullen was on trial. The charge made it very clear just who was on trial. Request 19, with reference to testimony previously given by Flounders, was erroneous as presented. We find no material error in the court’s handling of the reading of Flounders’ Grand Jury testimony. There was no objection by the defense to the use of the testimony, it participated in that use. The judge specifically told the jury: “Ladies and gentlemen of the jury, by agreement of counsel and you are ordered by the Court that the reading of the testimony of this witness before the Grand Jury is not evidence but is purely for the purpose of refreshing this witness’ recollection of his testimony at that time as to what he said, as to his testimony before the Grand Jury.” There was no objection to this by the defense or suggestion of additional language, etc. United States v. 5 Cases, etc., 179 F.2d 519 (2 Cir.1950). Appellants assert that the conclusion of Judge Luongo in Axler v. Transportation Checkers, etc. (C.A. 30762 E.D.Pa.) should have precluded prosecution. The theory of this seems to be that any concept of wilfulness was eliminated from the case by Judge Luongo, therefore the judgment in Axler bars this action. No real support is produced for that view. What is offered is an involved speculative theory which cannot be accepted as authority for holding that Axler controls this prosecution. The Government was not a party to that civil litigation. The judgment there cannot be res judicata or estoppel of the prosecution in this case “ * * -x- because the parties plaintiff in the two suits are neither the same nor in privity * * * and the nature of the actions are entirely different.” Dranow v. United States, 307 F.2d 545, 557 (3 Cir.1962). And see Sam Fox Publishing Co., Inc. v. United States, 366 U.S. 683, 689-690, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). United States v. Leven-thal, 114 U.S.App.D.C. 340, 316 F.2d 341, 346 (D.C.Cir.1963). The plaintiffs in the Axler suit were concerned with equitable remedies as related to their private rights. Here the Government sought to punish appellants for their public offenses. Even the immediate issues before the court in Axler did not touch the criminal violations of the Local’s members rights under the Labor Management Act upon which this prosecution is based. And the court there specifically stated in the very order upon which appellants rely that it was not passing upon “ * * * whether the individual rights of those persons were violated such as to give them individual causes of action under the Act.” Appellants assert that the statute, 29 U.S.C.A. § 530, under which appellants were convicted, does not govern their conduct as revealed by the record. The further claim is made that if it does, it is unconstitutional. It is said that Section 530 which makes it unlawful for any person through threats or the use of force and violence to attempt to or to in fact interfere with or prevent the exercise of any or all rights that a union member may have under any of the titles of the Act, must be read in some sort of restrictive fashion which would eliminate Bertucci and Doherty as paid employees of the Local and McCabe, Abrams and Zoroiwchak as nonmembers. We have held expressly to the contrary in Tomko v. Hilbert, 3 Cir., 288 F.2d 625, 627 (1961). There we distinguish sharply between the civil enforcement provisions of the bill of rights under Title I of the Act, Section 102, 29 U.S.C.A. § 412 and Title II of the Act which is what governs this appeal. We say 288 F.2d pp. 626-627: “In contrast, Title II, 73 Stat. 524, 29 U.S.C.A. § 431 et seq., which imposes a duty on labor organizations, their officers and employees, and employers to prepare and file certain enumerated reports, can be enforced by a civil action under section 210, 29 U.S.C.A. § 440, against any person. Also, criminal sanctions are contained in section 610, 29 U.S.C.A. § 530, which makes it unlawful for any person through threats or the use of force or violence to attempt to or to in fact interfere with or prevent the exercise of any or all rights that a union member may have under any of the titles of the LMRDA.” We say further 288 F.2d pp. 628-629: “To sum up, the LMRDA gives to the individual union members certain rights which when interfered with by a union, its officials or its agents, can be redressed civilly against them. In addition, there are criminal sanctions imposed against any person who interferes with those rights.” Our above view was followed in United States v. Roganovich, 318 F.2d 167 (7 Cir.1963), cert. den. 375 U.S. 911, 84 S.Ct. 206, 11 L.Ed.2d 150 (1963). There a member at a meeting of his local commented adversely on a report from the Business Representative. One of the defendants, a member of the local, and the other, a member of another local, attacked the speaker. The first one hit him with his fist and staggered him, the other one jumped on his back, brought him to the floor and then kicked him. Neither of the defendants was charged as being in any way connected with any officer or agent of the union. Both were charged merely as individuals. They were indicted, as here, under 29 U.S.C.A. §§ 411(a) (2) and 530, and thereafter convicted. The court held 318 F.2d p. 170: “We cannot agree with defendants’ construction of § 530 as merely the criminal counterpart of, and no broader than, the civil enforcement section, § 412. Section 412 refers to infringement of rights by ariy violation of the subchapter. Section 530 deals only with use or threat ‘of force or violence, to restrain’ etc. “As urged by both parties, we have studied the legislative history of the Act. We conclude that Congress was seeking to preserve for union members the right of free expression secure from interference by force or threat of force from any person, not merely from union agents or those acting on behalf of, or in concert with, them. Thus we must also conclude that § 530 as construed by the Trial Court, contrary to defendants’ assertions, does bear a reasonable relationship to the ends sought to be achieved by Congress.” Appellants idea of the unconstitutionality of the statute is based upon their unwarranted hypothesis that in this appeal criminal sanctions were imposed as a result of “a brawl among members”. The so-called “brawl” was found by the jury to have arisen out of appellants’ conspiracy to prevent and actually preventing persons named in the indictment from exercising their right to attend and participate in the membership meeting of Local 161 and to express their views upon matters properly before the meeting. Similar circumstances were present in Roganovich. Both indictments and trials were directly under Title II of the Act and in accord with its letter and spirit. This appeal has been presented and argued most competently and thoroughly on behalf of appellants. The latter were given a meticulously fair trial in the district court by Judge Bohanon and the jury. There were no trial errors of any substance. The evidence adequately sustains the jury verdicts in all instances. The judgment of the district court will be affirmed. . “§ 411. Bill of rights ; constitution and bylaws of labor organizations “(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.” * * * # “§ 530. Deprivation of rights by violence ; penalty “It shall be unlawful for any person through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercise of any right to which he is entitled under the provisions of this chapter. Any person who willfully violates this section shall be fined not more than $1,000 or imprisoned for not more than one year, or both.”

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

Alvin H. FRANKEL, Administrator C. T. A. of the Estate of George Burgoyne, Deceased, Appellant, v. Walter R. STYER, Trading as Styer Refrigerator Body Co. No. 16333. United States Court of Appeals Third Circuit. Argued Sept. 26, 1967. Decided Nov. 22,1967. See also D.C., 209 F.Supp. 509. James A. Burgess, Jr., Katz, Kozay, Burgess & Black, Philadelphia, Pa., for appellant. Jame J. McEldrew, Cole, McEldrew, Hanamirian & McWilliams, Philadelphia, Pa., for appellee. Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges. OPINION OF THE COURT HASTIE, Circuit Judge. This is a diversity case under the Pennsylvania Wrongful Death and Survival Acts. Judgment below was for the defendant on a jury verdict. On this appeal, the administrator of the decedent’s estate contends that alleged trial errors necessitate a new trial. The decedent, George Burgoyne, died while accidentally locked in the body of his truck which had been remodeled for him by the defendant, a contractor, to provide an insulated environment for refrigerated meats. All relevant events occurred in Pennsylvania. One of the trial issues was whether the defendant was negligent in failing to install a safety release on the inside of the door of the remodeled body so that the accidental closing of the door would not deprive a person inside of a means of egress. As a part of his proof on this issue, the appellant sought to show that it was the custom and practice of the body construction trade to install safety releases on the inside of doors of insulated truck bodies. Such evidence is admissible when offered by a competent witness. Jemison v. Pfeifer, 1959, 397 Pa. 81, 152 A.2d 697. However, the trial judge ruled that the witness who sought to testify to the relevant custom and usage was not competent to do so. The witness in question, Albert Golds-man, testified that he had been in the business of building commercial truck bodies for thirty-five years; that his company built about 100 such bodies a year, 15 per cent of them being of the insulated type, and that he had studied the literature concerning the construction of insulated bodies. However, Goldsman also testified that he had no more than a high school education and personally had never drafted any plans for body construction. Apparently because of this lack of formal training and professional or technical competence and experience, the trial judge found Goldsman incompetent to testify to the custom and usage in question. This was error. Neither technical training nor personal competency as an engineer or an industrial draftsman was necessary to make such a long time operator of a body building business as Goldsman knowledgeable of and competent to inform the jury of any custom and usage that prevailed in the body building trade with reference to the incorporation of simple and obvious structures in truck doors. Cf. Churbuck v. Union R. Co., 1955, 380 Pa. 181, 110 A.2d 210; Hughes v. John Hanna & Sons, 1958, 187 Pa.Super. 466, 144 A.2d 617. Error is also alleged in the failure of the court to permit Dr. M. E. Aaronson, an assistant medical examiner for the City of Philadelphia who had pronounced Burgoyne dead at the scene of his demise, to testify as a rebuttal witness. Because a blizzard had delayed Dr. Aar-onson’s arrival at the trial, the court permitted the plaintiff to introduce into evidence Dr. Aaronson’s official report stating that death was caused by suffocation. Subsequently, a physician called by the defendant testified that death was due to severe arteriosclerotic heart disease. In these circumstances, the appellant sought in rebuttal to call .Dr. Aaronson, who was a pathologist and in this case had performed an autopsy, to rebut the defense medical opinion and to rehabilitate his own opinion by more detailed explanation than appeared in his report. However, the court expressed the view that since the defense had agreed to let Dr. Aaronson’s report be admitted without cross-examination, to “call him back as an expert to refute these other witnesses * * * doesn’t seem quite cricket to me”. We think the agreed use of Dr. Aaronson’s report in the plaintiff’s case in chief did not constitute a waiver of the privilege of calling him in rebuttal after an apparently contradictory opinion had been introduced by the defense. Moreover, the need to explain, if possible, the consistency of Dr. Aaronson’s opinion with the existence of an arteriosclerotic heart condition was created by the defendant’s medical testimony. In these circumstances, we think Dr. Aaronson was a proper and competent rebuttal witness and that he should have been allowed to testify. Cf. Schoen v. Elsasser, 1934, 315 Pa. 65, 172 A. 301. For these reasons, the judgment will be reversed and the cause remanded for a new trial.

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

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

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

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

John D. GRAY and Elizabeth N. Gray, John R. Gray, First National Bank of Oregon, Guardian, Joan E. Gray, First National Bank of Oregon, Guardian, Janet L. Gray, First National Bank of Oregon, Guardian, Laurie J. Gray, First National Bank of Oregon, Guardian, Anne L. Gray, First National Bank of Oregon, Guardian, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Nos. 75-1041 to 75-1046. United States Court of Appeals, Ninth Circuit. Sept. 21, 1977. Michael Waris, Jr., Washington, D. C., argued, for petitioners-appellants. Stephen M. Gelber, Atty., Tax Div., U. S. Dept. of Justice, Washington, D. C., argued, for respondent-appellee. Before GOODWIN and SNEED, Circuit Judges, and BLUMENFELD, District Judge: Hon. M. Joseph Blumenfeld, Senior United States District Judge, for the District of Connecticut, sitting by designation. SNEED, Circuit Judge: Taxpayers appeal from a decision of the Tax Court holding that what in form was a sale of taxpayers’ stock in a wholly owned corporation was in substance a liquidation of the corporation. John D. Gray, 56 T.C. 1032 (1971). The case demonstrates anew the need to elevate substance over form in interpreting a sophisticated code of tax laws where slight differences in a transaction’s design can lead to widely divergent tax results. It also demonstrates, however, the difficulties in determining the substance of a transaction when dealing with complex business arrangements in which the items of commerce frequently are legal abstractions such as corporate entities and shares. The present transaction has at least five plausible characterizations, all with substantially different tax results. According to their theory, taxpayers sold their shares in a wholly owned corporation, containing only cash and preferred stock in another of taxpayers’ corporations, to an unrelated party in an arm’s-length transaction; the preferred stock was then redeemed from the corporation after the sale was completed and, thus, after taxpayers’ control over the redeeming corporation could no longer be attributed to the sold corporation through section 318 of the Internal Revenue Code (hereinafter Code). The Tax Court, however, focusing on the purported sale, held that taxpayers had in substance liquidated the corporation following which the preferred stock was redeemed directly from the hands of the taxpayers. We take a third position. We accept the sale format in which taxpayers chose to cast their transaction. At the same time, however, we believe that the redemption of the preferred occurred before rather than after the sale was effectuated. I. THE FACTS. In 1960, taxpayers John D. Gray and family were the principal shareholders of two corporations profitably engaged in the manufacture and sale of saw chains both here and abroad. Domestic operations were centered in Omark Industries Inc. (hereinafter Omark), of whose stock all but about 10 percent was held by taxpayers. Foreign sales were handled by Omark Industries (1959) , Ltd. (hereinafter Omark 1959), a Canadian corporation owned entirely by taxpayers. In an effort both to prepare Omark for an eventual public offering and to avoid disputes with the minority shareholders of Omark, taxpayers in late 1960 decided to realign the Omark-Omark 1959 relationship into that of parent-subsidiary. This was accomplished by Omark forming a Canadian subsidiary, Omark Industries (1960) Ltd. (hereinafter Omark 1960), and having the subsidiary acquire the assets of Omark 1959 and assume its liabilities. Omark 1959 in exchange received $10,000 in cash, a $82,604 line of credit, and 15,000 shares of Omark 1960 $100-par, noncumulative preferred. The name of Omark 1959 was then changed to Yarg, Ltd. (hereinafter Yarg). Following the acquisition of Yarg’s assets by Omark 1960, taxpayers attempted to convert Yarg into a real estate investment corporation. Gray actively investigated a variety of real estate investments during 1961 and 1962. Gray’s efforts to find suitable investments, however, were unsuccessful. While Yarg did make a series of investments in Oregon corporations, no real estate was ever purchased. By 1962, several factors had convinced taxpayers to terminate their ownership of Yarg as expeditiously as possible. Because of the failure to find satisfactory real estate investments for Yarg, the IRS was likely to classify Yarg as a foreign personal holding company subject to sections 551 et seq. of the Code. Under the foreign personal holding company provisions, taxpayers would be taxed at ordinary income rates on any undistributed investment earnings of Yarg. To make matters worse, legislation had been introduced into Congress which, if passed, would tax as dividend income- any gain recognized on the liquidation of a controlled foreign corporation such as Yarg. Taxpayers considered a variety of means for terminating their interest in Yarg — including transferring their stock in Yarg to Omark in exchange for Omark stock in a nontaxable section 351 transaction, contributing the Yarg stock to a capital exchange fund, and liquidating Yarg. Each of those alternatives, however, had distinct disadvantages and taxpayers ultimately decided to sell their stock in Yarg to an outside buyer. Although two investment banking firms were commissioned to find a buyer, it was Gray’s attorney who ultimately located a purchaser. Frank H. Cameron (hereinafter Cameron), a Canadian businessman, offered to purchase the Yarg stock for “net book value less 4VÍ2 percent of undistributed income”; he insisted, however, that prior to purchase, all of Yarg’s assets be reduced to cash and Yarg’s liabilities be reduced to only capital and surplus. At this point, Yarg’s assets consisted of a small amount of cash, minor investments in three Oregon corporations, and the 15,000 shares of Omark 1960 preferred. In line with the all-cash requirement in Cameron’s offer, Gray purchased Yarg’s Oregon investments at book value in cash. However, taxpayers balked at reducing the Omark 1960 preferred to cash prior to the sale. Cameron’s insistence on cash was understandable. There was no guarantee that the Omark 1960 preferred would be redeemed in the near future. And, while the book value and redemption price of the Omark 1960 preferred was $1,500,000, its fair market value was considerably less, taxpayers once in the course of this litigation having stipulated a value of only $1,000,000. From taxpayers’ standpoint, however, a redemption of the Omark 1960 preferred prior to the sale of the Yarg stock would lead to foreign personal holding company income, taxable to Gray and his family as ordinary income. Ultimately, it was agreed between the parties that Cameron would purchase the Yarg stock while Yarg still held the Omark 1960 preferred, but that the purchase would be subject to a condition subsequent negating the transaction if the Omark 1960 preferred was not redeemed within six days after the purchase. Cameron would be free to waive the condition subsequent if he wished. To ensure that Omark 1960 would be able to redeem the preferred shares, Gray arranged for Omark and another Omark subsidiary to lend approximately $1.3 million to Omark 1960 four days prior to the planned sale. On September 21, 1962, Cameron, acting through two wholly owned Canadian corporations, gave two certified checks totalling $1,681,400 to personal representatives of taxpayers in exchange for all the outstanding Yarg stock. The checks, the Yarg stock, the Yarg corporate records and the Omark 1960 preferred stock,' all properly endorsed, were then placed in escrow with the Bank of Montreal. By the terms of the escrow, the Bank was to return the checks to Cameron and the other excrow items to taxpayers if the Omark 1960 preferred had not been redeemed by September 26, 1962 and Cameron had not waived the condition. On September 22, with Cameron and two associates purportedly installed as Yarg’s new directors, Yarg requested that Omark 1960 redeem its preferred stock; the request was made by means of a letter previously drafted by Gray’s Canadian attorney. The stock was redeemed on September 25, 1962, and the escrow was closed. Taxpayers treated the 1962 transaction as a sale of the Yarg stock, reporting their profit on the transaction as capital gains. The Commissioner assessed deficiencies against taxpayers contending that the transaction was in reality a constructive dividend to taxpayers of the assets of Yarg followed by a second constructive dividend on the redemption of the Omark 1960 preferred; both dividends would be taxable at ordinary income rates. The Tax Court held that both characterizations were wrong. According to the Tax Court, the 1962 dealings constituted a constructive liquidation of Yarg on September 21 followed by a redemption of the Omark 1960 stock from the hands of taxpayers on September 25. II. ANALYSIS. We agree with the Tax Court that the taxpayers’ characterization of the transaction must be rejected. We believe that the controlling issues are when and from whom the redemption was made, however, and not whether the taxpayers liquidated or sold their stock. Assuming that taxpayers are correct in characterizing their transaction as a sale rather than a liquidation, the facts indicate that the substance of the sale followed rather than preceded the redemption of the 1960 preferred. The fact that the agreement was cast in the form of a sale subject to condition subsequent, which may be considered a completed sale under Canadian law, is irrelevant for purposes of federal taxation. We must look to the relevant concepts of federal tax law to determine when the sale occurred. Commissioner v. Tower, 327 U.S. 280, 287-88, 66 S.Ct. 532, 90 L.Ed. 670 (1946); Hudspeth v. United States, 471 F.2d 275, 277 (8th Cir. 1972); Estate of Starr v. Commissioner, 274 F.2d 294, 294-95 (9th Cir. 1959). For tax purposes, sale is essentially an economic rather than a formal concept. Our task is to examine all of the factors to determine the point at which the burdens and benefits of ownership were transferred. It is settled that when a person agrees to sell property subject to certain conditions, and the property is placed in escrow until those conditions are fulfilled, no sale occurs until those conditions have been fulfilled. Dyke v. Commissioner, 6 T.C. 1134 (1946); see Texon Oil & Land Co. v. United States, 115 F.2d 647 (5th Cir. 1940); Big Lake Oil Co. v. Commissioner, 95 F.2d 573 (3d Cir. 1938). Here, the Yarg stock was placed in escrow, subject to the condition that the “sale” would be undone if the redemption did not occur. Completion of the transaction was subject to real contingencies; the seller was not free to demand his proceeds until the redemption occurred, Carpenter v. Commissioner, 34 T.C. 408, 409, 414 (1960). Buttressing our conclusion that the sale was not completed until the redemption occurred is the fact that the condition imposed was not insignificant or remote; rather, the redemption supplied the economic substance needed to complete the sale. The purchase price of the Yarg stock was computed by adding to Yarg’s cash assets a sum of $1.5 million attributable to the Omark 1960 preferred. But the preferred would be worth that amount only upon redemption. Its value in the absence of redemption was considerably less. If the Omark 1960 preferred were redeemed, the escrow would be closed and the sale completed. If the preferred were not redeemed, Cameron would be free to abandon the sale, and would have no economic incentive to do otherwise. See generally Estate of Franklin v. Commissioner, 544 F.2d 1045 (9th Cir. 1976). The stubborn fact is that without the redemption there would have been no sale. The facts also demonstrate that it was Gray, through Yarg, who initiated and received the benefits from the redemption of the Omark 1960 preferred. The only reason suggested in the record why Omark 1960 chose to redeem its preferred on September 25, 1962 was that it was necessary to effectuate taxpayers’ sale of the Yarg stock. Gray was in complete constructive control of Omark 1960. It was Gray who arranged the financing for the redemption. It was even Gray’s attorney who drafted the letter requesting the redemption. As for the proceeds of the redemption, the sales price of the Yarg stock reflected these proceeds. Taxpayers received the redemption value of the preferred rather than its fair market value. Thus, it was taxpayers, not Cameron, who received the economic benefit from the redemption of the Omark 1960 preferred. To hold that the preferred was only redeemed after the Yarg stock was sold and taxpayers’ relationship with the corporation ended would ignore how and why the redemption was made. Such a holding would also defeat Congress’ purpose in passing sections 301, 302, 316 and 318 of the Code, taxing as ordinary income redemptions that are essentially equivalent to a dividend, even when they are only indirectly made to a shareholder through a related entity. Cf. B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 1110.07, at 10-13 to 10-14 (1971). The Tax Court’s characterization of the 1962 transaction as in substance a liquidation followed by a redemption suffers from the same defect as does the taxpayers’ theory. Under the Tax Court’s theory, the September 21, 1962 “sale” was a “liquidation.” But this “liquidation,” like the “sale,” was contingent on the redemption of the Omark 1960 preferred. If the redemption had not occurred, Yarg’s cash assets and the Omark 1960 preferred would have remained in corporate solution. Thus, what the Tax Court viewed as the liquidation was contingent on the redemption. Such a contingency is inconsistent with the premise that a liquidation was then and there completed. Until the assets of a corporation have been irrevocably removed from their corporate solution, a complete liquidation has not occurred. Turning to the issue of who received the redemption, the Tax Court’s theory holds that the Omark 1960 preferred was redeemed from the hands of taxpayers rather than Yarg. The facts indicate to the contrary. The redemption was from Yarg. The preferred was at all times registered to Yarg prior to the preferred’s redemption on September 25; the usual powers of ownership were vested entirely in Yarg; taxpayers would not have been free to sell or pledge the preferred. Furthermore, the re-demption proceeds were paid directly to Yarg. While the proceeds ultimately flowed to taxpayers, they took the form of sale proceeds from the transaction with Cameron. Of course, the Tax Court would have been free to reject the form of the redemption if tax substance so dictated. But it does not. Under sections 302 and 318 of the Code, if a redemption that would be essentially equivalent to a dividend in the hands of the taxpayers is received instead by a wholly owned corporation, the redemption is still taxed as a dividend but to the corporation. Congress was free in drafting these provisions to tax the redemption directly to the taxpayers, but it purposefully did not. The tax court was not free, under the instant circumstances, to reject corporate separateness when Congress has chosen to preserve it. It matters not whether the Tax Court’s conclusion that the taxpayers received the redemption be regarded as a mistake of law or an erroneous finding of fact. If it is the former, which we believe it to be, it is our duty to correct it; if it is the latter, we hold it not only erroneous but clearly so. Therefore, there was a redemption of the Omark 1960 preferred from the hands of Yarg followed by what appears in form to have been a sale of the Yarg stock to Cameron. There is no reason to reject the sale form in favor of a liquidation theory. By selling their stock to Cameron, taxpayers have incurred a higher tax than if, following the redemption of the Omark 1960 preferred, they had liquidated Yarg. Having cast the transaction in the form of a sale, however, taxpayers cannot now be heard to complain. See Commissioner v. National Alfalfa Dehydrating, 417 U.S. 134, 149, 94 S.Ct. 2129, 40 L.Ed.2d 717 (1974); Higgins v. Smith, 308 U.S. 473, 60 S.Ct. 355, 84 L.Ed. 406 (1940). We, therefore, remand to the Tax Court for further proceedings in line with this court’s determination that there was a redemption of the Omark 1960 preferred followed by a sale of the Yarg stock. REVERSED AND REMANDED. . Under I.R.C. § 302, if a corporation redeems stock from a shareholder who owns 50 percent or more of the voting power in the corporation both before and after the redemption, the redemption proceeds will typically be treated as a dividend and taxed at ordinary income rates to the shareholder. Under I.R.C. § 318(a)(3)(C), similar treatment will be accorded to the redemption of stock from a corporation whose majority shareholder owns 50 percent or more of the voting power in the redeeming corporation both before and after the redemption. The redemption will be treated as a dividend and taxed as ordinary income to the corporation. In essence, the shareholder and the corporation are treated as the same entity for purposes of deciding whether the redemption should be viewed as equivalent to a dividend. . At trial, the Commissioner argued that Omark 1959 had received less than the fair market value of its assets upon their transfer to Omark 1960, thus resulting in a constructive dividend of the difference to taxpayers. The Tax Court disagreed and the Commissioner has not appealed. . A foreign corporation is defined by I.R.C. § 552(a) as a foreign personal holding company if more than 60 percent of its gross income is “foreign personal holding company income” as defined by I.R.C. § 553. Section 553, in turn, defines foreign personal holding company income as most forms of passive investment income, including rents except when the rents constitute 50 percent or more of the gross income. If Yarg, therefore, had located satisfactory real estate investments and received more than 60 percent of its gross income in the form of rents from those investments, foreign personal holding company status could have been avoided. However, in 1962, Yarg was receiving all of its income from passive investments in Oregon corporations and, therefore, was apparently by definition a foreign personal holding company. . Such investment earnings would include any returns on Yarg’s investments in Oregon corporations and any proceeds from the redemption of the Omark 1960 preferred if viewed as equivalent to a dividend. I.R.C. § 553. . The legislation was ultimately enacted in amended form as I.R.C. § 1248. . Under I.R.C. §§ 302 & 318, discussed supra note 1, if the preferred were redeemed from Yarg prior to the sale, the redemption proceeds would be treated as equivalent to a dividend. Dividends, in turn, are included in foreign personal holding company income under I.R.C. § 553(a)(1). See note 4 supra. Finally, under I.R.C. § 551(a), any undistributed foreign personal holding company income must be included in the gross income of the corporation’s United States shareholders. . The Commissioner no longer urges the adoption of his characterization of the 1962 transaction but instead supports the Tax Court’s interpretation of the events. . Cases in which a sale is completed with buyer receiving proceeds unconditionally, subject to an agreement to repurchase part or all of the property if certain conditions occur later, e. g., William Davey v. Commissioner, 30 B.T.A. 837 (1934), are distinguishable from cases in which proceeds are placed in escrow and never disbursed until the conditions occur. Seller in the former case never has the right to demand the proceeds, Carpenter v. Commissioner, 34 T.C. 408, 409, 414 (1960). “It is the fixation of the rights of the parties which is controlling”, Commissioner v. Cleveland Trinidad Paving Co., 62 F.2d 85 (6th Cir. 1932). . Prior to trial, the parties stipulated that the Omark 1960 preferred had a fair market value of $1,000,000. Taxpayers argue on appeal that the stipulation was only for purposes of resolving an independent issue not on review. The stipulation is absolute on its face. We, therefore, accept it for purposes of this appeal. . See note 1 supra. . E. Keith Owens, 64 T.C. 1 (1975), and Estate of Edwin C. Weiskopf, 64 T.C. 78 (1975), aff’d per curiam, 37 A.F.T.R.2d 1427 (1976), cited by the Commissioner in support of the Tax Court’s theory, are inapposite. In both those cases the central and only issue was whether there had been a sale or liquidation of taxpayers’ corporation. As developed above, the central issue in this case is whether the taxpayers’ transaction with Cameron, whether viewed as a sale or liquidation, was completed before or after the redemption of the Omark 1960 preferred. Furthermore, the facts in both of the cited cases fully support the Tax Court’s theory that there was a liquidation. In both cases, the corporation was liquidated immediately after the purported sale. In Estate of Weiskopf, the “sales agreement” even provided that the “sale” was contingent on the purchaser obtaining a favorable tax ruling “before the date on which liquidation . . commences.” 64 T.C. at 87-88. In this case, the facts conflict in important respects with the Tax Court’s theory. Finally, there were strong policy reasons in both Owens and Estate of Weiskopf for holding that a liquidation, rather than a sale, had occurred. In Owens, taxpayers were attempting to assign the corporate profits to individuals with large unused tax losses. In Estate of Weiskopf, to have held the transaction a sale rather than a liquidation would have been “in complete derogation of section 1248 and its legislative history," providing for the full imposition of United States tax when income earned abroad is repatriated. 64 T.C. at 101. As noted in the text, there is no comparable reason for rejecting the taxpayers’ formulation of the instant transaction as a sale. . The issue is whether the taxpayers have recast merely in form what in substance Congress segregated for special treatment. The taxpayers’ transaction may meet the dictionary definition of one tax provision but squarely come within the substance of a different provision; under such circumstances, the substance must win out over the form. See generally Commissioner v. P. G. Lake, Inc., 356 U.S. 260, 266-67, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958); Helvering v. F. R. Lazarus Co., 308 U.S. 252, 255, 60 S.Ct. 209, 84 L.Ed. 226 (1939); Helver-ing v. Gregory, 69 F.2d 809, 811 (2d Cir. 1934), affd, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596 (1935). . This court has recognized that when erroneous legal conclusions have been attached to undisputed facts by trial courts it may draw different and correct ones on its own. Wener v. Commissioner, 242 F.2d 938 (9th Cir. 1957). The facts here are not in dispute; it is the legal characterization of those facts which has been the subject of this long dispute. The reverse is true when tax consequences turn on a state of mind. The determination of that state of mind is a question of fact to be overturned on appeal only if clearly erroneous. This is the true teaching of Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1959). See Estate of Franklin v. Commissioner, 544 F.2d 1045, (9th Cir. 1976) n.3; Olk v. United States, 536 F.2d 876 (9th Cir. 1976). . The “clearly erroneous” standard is not a wall that cannot be breached. It is so breached when, to quote Duberstein, supra, n. 13, “the -reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” 363 U.S. at 291, 80 S.Ct. at 1200. In this instance, if we must assume that the Tax Court made a finding of fact, we possess the requisite conviction. . As developed earlier, the redemption proceeds received by Yarg would be treated as equivalent to a dividend and included in Yarg’s foreign personal holding company income. If undistributed, the amount of the proceeds would be included in the gross income of taxpayers. See note 6 supra. Since taxpayers sold their Yarg stock, the redemption proceeds remained “undistributed” for purposes of the code provisions and taxpayers must be taxed thereon. However, in 1962, section 562(b) of the Code provided that a liquidation was a distribution of the corporation’s income. Thus, following a liquidation, there would have been no undistributed foreign personal holding company income and taxpayers would therefore only have been taxed on the liquidation at capital gains rates. See J. Sitrick, Foreign Personal Holding Companies, Tax Management Foreign Income Portfolio No. 103, at A-44 (1965).

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?

TORRES et al. v. AMERICAN R. CO. OF PORTO RICO. No. 4122. Circuit Court of Appeals, First Circuit. July 24, 1946. Writ of Certiorari Denied Nov. 18, 1946. See 67 S.Ct. 204. V. Gutierrez Franqui, of San Juan, P. R. (L. E. Dubon and E. Ramos Antonini, both of San Juan, P. R., on the brief), for appellants. Henri Brown, of San Juan, P. R. (Enrique Cordova Diaz, of San Juan, P. R„ on the brief), for appellee. Before EDGERTON (by special assignment), MAHONEY and WOODBURY, Circuit Judges. EDGERTON, Circuit Judge. Appellee railroad paid its employees wages which were less than they were entitled to under the Fair Labor Standards Act of 1938, §§ 6, 7, 29 U.S.C.A. §§ 206, 207. Appellee afterwards paid them somewhat less than half of the balance due and, on the theory that appellee could pay no-more, the employees executed releases in full. A large number of employees, the present appellants, afterwards brought this suit to recover the amounts which still remained unpaid. The court found that ap-pellee had paid all it could pay “and thereafter continue operations or avoid insolvency”. The court concluded that the release agreements were valid and that the appellants were not entitled to recover. We think the court erred. Whether enforcement of the statutory rights of appellants will benefit or injure them, their employer, or the community is legally immaterial. The case is governed by Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 and D. A. Schulte, Inc., v. Salvatore Gangi, 66 S.Ct. 925. The Brooklyn case decides that, in the absence of a bona fide dispute between the parties, an agreement to accept less than the full amount due under the Act, including liquidated damages, is invalid. It does not appear that there was any dispute between the parties to the present suit when the releases were executed. The Schulte case decides that even the existence of a dispute regarding coverage does not validate an agreement to accept less than the full statutory amount. The existence in the present case of a question of policy cannot have a greater e/fect. The Act does not exempt employes who are in financial difficulties. “ ‘While in individual cases, hardship may result, the restriction will enure to the benefit of the general class of employees in whose interest the law is passed, and so to that of the community at large.’ ” Brooklyn Savings Bank v. O’Neil, supra, 324 U.S. at page 713, 65 S.Ct. 905, 89 L.Ed. 1296. Fort Smith & Western Railroad Co. v. Mills, 253 U.S. 206, 40 S.Ct. 526, 64 L. Ed. 862, on which appellee relies, is not in point. In that case, which arose under the Adamson Law, 39 Stat. 721, 45 U.S. C.A. §§ 65, 66, the question was no. whether employees could require their employer to comply with the law but whether the District Attorney could requ' ,-e the receiver of a railroad to comply with the law when the receiver and the employees were agreed in wishing to disregard it. The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.

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

Paul F. RIDGLEY, Respondent, v. CERES, INC., Great Lakes Storage and Contracting Company, and Liberty Mutual Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. No. 78-1149. United States Court of Appeals, Eighth Circuit. Submitted Jan. 8, 1979. Decided Feb. 26, 1979. Arnold W. Larson of Donovan & Harper, Duluth, Minn., filed brief, for petitioners. James J. Courtney, III of Courtney, Gruesen & Petersen, Duluth, Minn., filed brief, for respondent, Ridgley. Mary A. Sheehan, Atty., U.S. Dept, of Labor, Washington, D.C., Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Washington, D.C., on brief, for respondent, Director, Office of Workers’ Comp. Before LAY, BRIGHT and ROSS, Circuit Judges. LAY, Circuit Judge. This is a petition to review an order of the Benefits Review Board, United States Department of Labor, affirming a decision of an administrative law judge ordering Great Lakes Storage and Contracting Co. (Great Lakes) to pay Paul F. Ridgley compensation benefits for permanent disability pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 — 950. The AU initially denied Ridgley’s claim against Great Lakes on the ground that Ridgley had failed to establish a connection between his July 1970 employment accident and the injury to his left knee. The Board reversed the denial of the claim, holding that the burden was on Great Lakes to overcome the presumption of a causal connection between Ridgley’s employment accident and his disability and that Great Lakes had failed to meet its burden of proof. Upon remand, the ALJ ordered Great Lakes to pay Ridgley compensation for permanent total disability for his knee injury. The Board affirmed the ALJ’s order and this petition followed. In its petition for review Great Lakes makes three contentions. First it contends the ALJ’s initial decision denying Ridgley’s claim was supported by substantial evidence and the Board erred in reversing that decision. Second, Great Lakes contends that the evidence does not support the ALJ’s conclusion that Ridgley is permanently totally disabled. Finally, and alternatively, Great Lakes contends that if Ridgley’s injury is compensable, the liability limitation in 33 U.S.C. § 908(f)(1) applies, since Ridgley had a previous disability. We affirm the decision of the Board. Great Lakes’ first two contentions merit little comment. Ridgley was injured on July 10, 1970, in the course of his employment as a longshoreman with Great Lakes in Duluth, Minnesota. He was loading equipment aboard a vessel when the boom swung out of control and threw him down, injuring his back, left hip, and left knee. Following his July 1970 injury Ridgley was treated by Dr. William Atmore, an orthopedic surgeon. Dr. Atmore periodically treated Ridgley for his knee from October 1970 through April 1973, during which time the possibility of surgery to replace the knee was contemplated. Ridgley continued working, however, until June 27, 1973, when he sustained an injury to his left hand. While Ridgley was hospitalized for this hand injury, surgery was also performed for the previously contemplated knee replacement. More than a year later, when the knee surgery had completely healed, Dr. Atmore concluded that Ridgley could not perform heavy manual labor involving climbing, squatting or heavy lifting. He has not returned to work since the June 1973 injury to his hand. The Board reversed the ALJ’s initial decision denying Ridgley’s claim on the grounds that Great Lakes had not overcome the presumption of a causal connection between Ridgley’s employment accident and his disability. Section 20 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 920, establishes a presumption that a claim for compensation comes within the provisions of the Act. The presumption controls unless sufficient proof is offered to rebut it. Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 80 L.Ed. 229 (1935); In re District of Columbia Workmen’s Compensation Act, 180 U.S.App.D.C. 216, 222, 554 F.2d 1075, 1081, cert. denied sub nom. J. Frank Kelly, Inc. v. Swinton, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); St. Louis Shipbuilding Co. v. Director of the Office of Workers’ Compensation Programs, 551 F.2d 1119, 1124 (8th Cir. 1977). Great. Lakes contends that it overcame the presumption with proof that in 1944 Ridgley had sustained a knee injury which caused an arthritic condition present at the time of the 1970 injury and it was this arthritic condition which ultimately led to the total knee replacement surgety, rather than the July 1970 injury. After carefully reviewing the record, we agree with the Board that Great Lakes did not offer sufficient proof to rebut the presumption that Ridgley’s claim came within the provisions of the Act. Dr. Atmore, Ridgley’s treating physician, opined that the July 1970 injury was the proximate cause of the surgery resulting in a knee replacement. Great Lakes offered no testimony to the contrary. Dr. Atmore did testify that had Ridgley not suffered the 1944 injury he would not have required the knee replacement. That does not detract, however, from the compensability of Ridgley’s present knee condition. A work related aggravation of a preexisting condition is compensable. Wheatley v. Adler, 132 U.S.App.D.C. 177, 182, 407 F.2d 307, 312 (1968). Great Lakes next contends that Ridgley was not permanently totally disabled as a result of his 1970 injury. This contention also lacks merit. The ALJ found that Ridgley was unable to be gainfully employed as a result of the July 1970 injury, citing the employer’s failure to show that Ridgley had an actual opportunity to obtain light work. We find substantial evidence to support the ALJ’s finding. Ridgley testified that he was unable to work. Dr. Atmore testified that Ridgley could no longer perform the strenuous work required by his employment as a longshoreman. Furthermore, the record contains no evidence that Ridgley could perform other work. See American Stevedores, Inc. v. Salzano, 538 F.2d 933, 935-36 (2d Cir. 1976). Finally, Great Lakes contends that its liability for compensation should be limited by § 8(f)(1) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 908(f)(1). That section, often referred to as the “second injury” or “special fund” provision, limits an employer’s liability for an employee’s injury which of itself would cause only a permanent partial disability but which, because of a preexisting disability, causes a permanent total disability. In order to trigger application of the statute an employee must have a “previous disability.” Initially we maintain serious doubt whether Ridgley’s arthritis is a “previous disability” within the meaning of the statute. The phrase “previous disability” is to be given a normal meaning, Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949), and ordinarily a pathological or traumatic condition which has not become manifest until a subsequent accident is not viewed as a prior disability. National Homeopathic Hospital Association v. Britton, 79 U.S.App.D.C. 309, 314, 147 F.2d 561, 566, cert. denied, 325 U.S. 857, 65 S.Ct. 1185, 89 L.Ed. 1977 (1945) (Groner, C. J., dissenting). This view is consistent with the statute’s obvious purpose, which is to encourage the hiring of handicapped workmen and protect employers who do so. Duluth, Missabe & Iron Range Railway Co. v. United States Department of Labor, 553 F.2d 1144, 1151 (8th Cir. 1977). We need not determine whether Ridgley’s arthritic condition is a “previous disability,” however, because the record contains no evidence indicating that Ridgley’s arthritic knee was manifest. In Duluth, Missabe & Iron Range Railway Co., supra, we adopted the “latent-manifest” test for determining whether an employer will receive the benefit of the special fund provision. Since Great Lakes offered no evidence, and we find none in the record, indicating that Ridgley’s arthritic condition was manifest, Great Lakes does not qualify for the limited liability provision of 33 U.S.C. § 908(f)(1). The Board’s order is affirmed. . The ALJ concluded that Ridgley’s knee replacement resulted from degenerative arthritis which had developed subsequent to a leg fracture Ridgley suffered in 1944. . At this time he was employed by Ceres, Inc. . 33 U.S.C. § 920 provides in pertinent part: ■ In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary— (a) That the claim comes within the provisions of this chapter. . At the time of Ridgley’s injury Section 8(f)(1) read: (f) Injury increasing disability: (1) If an employee receive an injury which of itself would only cause permanent partial disability but which combined with a previous disability, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury: Provided, however, That in addition to compensation for such permanent partial disability, and after the cessation of the payments for the prescribed period of weeks, the employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such additional compensation shall be paid out of the special fund established in section 944 of this title. 33 U.S.C. § 908(f)(1) (amended 1972). . Varying interpretations of the phrase “previous disability” have been adopted. Compare American Mutual Insurance Co. v. Jones, 138 U.S.App.D.C. 269, 272, 426 F.2d 1263, 1266 (1970) with Equitable Equipment Co. v. Hardy, 558 F.2d 1192, 1197-98 (5th Cir. 1977) and Atlantic & Gulf Stevedores, Inc. v. Director, Office of Workers’ Compensation Programs, 542 F.2d 602, 608-09 (3d Cir. 1976).

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

BROTHERHOOD OF RAILROAD TRAINMEN et al., Appellants, v. CENTRAL OF GEORGIA RAILWAY COMPANY, Appellee. No. 25738. United States Court of Appeals Fifth Circuit. July 22, 1969. E. S. Sell, Jr., Macon, Ga., Harold A. Ross, Cleveland, Ohio, for appellants. Julian C. Sipple, Savannah, Ga., Charles A. Horsky, E. Edward Bruce, Washington, D. C., for appellee. Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge. WISDOM, Circuit Judge: The Brotherhood of Railroad Trainmen and the Brotherhood of Locomotive Engineers appeal from the district court’s decision not to enforce part of a National Railroad Adjustment Board award against Central of Georgia. The unions contend that the court erred: first, in exceeding the scope of review permitted by the Railway Labor Act; second, in holding that the award had “no foundation in reason or fact” for requiring the carrier to make penalty payments to the plaintiff-employee; and third, in holding that the Board failed to comply with the Act when it denied Central’s request for an oral hearing on the award. We hold that the district court properly defined the narrow standard for review under the Act, but erred in applying the standard. For this and other reasons, we reverse. * * * As the district court well put it, “If anyone doubts that the law is a living, moving, changing, growing, viable organism and institution, let him note the history of this litigation”. May 14, 1953, Central changed the home terminal of the Americus Switching Local from Americus, Georgia, to Albany, Georgia, without first negotiating the change with the unions. (In the context of this case a “local” is a train, rather than a labor organization.) The unions protested that the change contradicted the applicable contract or “schedule” of February 1, 1939, which provided, “No change in assignment of switch local service will be made except through negotiations with the engine and train service local committees.” The railroad refused to rescind the change, and on February 6, 1954, the unions brought the dispute before the National Railroad Adjustment Board. They filed four separate claims. Claims 1, 2, and 4 were small, involving payment for work done by employees of the local on May 13, 1953, the day that the change in home terminals actually occurred. The carrier does not contest those claims. In Claim 3, however, the unions requested a full day’s pay for each of three railroad employees, Avera, Short, and Nunn, for every day that the change in home terminals remained in effect. Pending a decision on the merits, the railroad persisted in the change, so that the claim grew larger with the passage of time. Central defended its action on the ground that the 1939 schedule had set only the working limits of each switch local, and not its home terminal. The railroad also maintained that in 1952 the unions had acquiesced in the change even of the working limits. Central did not ask for a hearing before the Board. After nearly five years and with the help of a neutral referee, the First Division of the NRAB, which had jurisdiction of the dispute, upheld the unions in all major respects. On January 24, 1959, four days after the announcement of the decision, Central moved the Americus local’s home terminal back to Americus in accordance with the Board’s interpretation of the 1939 schedule. The carrier did not, however, comply with the money awards. Instead, on February 17, 1959, it requested an interpretation of the money awards, particularly as to whether Central could subtract from the sums due the employees the amount each had earned elsewhere while the switching local had been improperly relocated. Central asked for a hearing on its request. The Board denied oral argument, explaining that an interpretation of an award “is merely a clarification * * * a matter upon which the parties to the case cannot cast any additional light”. On June 22, 1959, the Board issued its interpretation. It allowed $38,875.79 to Avera, $15,566.17 to Short, and $13,396 to Nunn’s estate. These sums are the nub of the present appeal. When Central refused to comply with the decision, the unions threatened to strike. The railroad sought a declaratory judgment that strikes to enforce orders of the NRAB are illegal, and alleged that it had offered to settle with Short for $15,566.17 and with Nunn’s estate for $2,627.59. The district court dismissed the suit, on the finding that there was not a sufficiently substantial strike threat to justify a declaratory judgment. The unions filed the present suit in the district court on January 18, 1961, seeking, under § 3 of the Railway Labor Act, 45 U.S.C. § 153, to enforce the awards made by the First Division to Avera, Nunn, and Short. Section 153 First (m) then read: “the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award. * * *” Central timely answered and prayed for a de novo trial. The carrier contended that the court should go into the merits of the Board’s money award. This was an unsettled question at the time. On December 8, 1965, the Supreme Court decided Gunther v. San Diego and Arizona E. R. Co., 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308, holding that a determination on the merits of a grievance is not reviewable in the courts merely because a part of the award is a money award. Gunther recognized the court’s jurisdiction to determine the amount of the money award. Because of rapidly developing changes in the law that might affect the case, the parties did not press for an early trial. The trial did not begin until June 1967. The principal effect of these changes was to limit the courts’ power to review awards by the NRAB. Controversy at the trial concerned Claim 3 and, specifically, whether it. was customary, given a contract violation, for the affected employees to receive full pay for the time they had been improperly displaced, or whether, the amounts they earned in the meantime should be subtracted in mitigation of damages. The union did not assert that such undiminished pay appeared as a remedy on the face of the collective bargaining agreement. The railroad introduced testimony that it had never paid such amounts for labor contract breaches. The unions maintained a continuing objection to evidence about penalty pay customs, saying that the whole matter lay beyond the scope of judicial review. Nevertheless they introduced expert testimony of their own to show that the First Division had frequently awarded compensation for time lost, undiminished by other earnings. The district court found that “there was, and is, no uniform custom and practice among carriers generally, or with this carrier in particular, to pay a day’s pay for every contract violation or for every instance where it may be said that in some respect an employee was ‘malassigned’ ”. On this finding and the failure of the contract to provide specifically for a double pay remedy the court concluded that “the awards under Claim 3 are * * * 'actually and undisput-edly without foundation in reason or fact’, and that for that reason this Court must ‘have the power to decline to enforce’ it”. In addition, the court ruled that the First Division had failed to comply with § 3 First (j) of the Act by its refusal to grant the railroad’s request for an oral argument on the Board’s interpretation of the award. The order of the court enforced the awards by the First Division on Claims 1, 2, and 4, but set aside the award on Claim 3. It also denied the unions’ request for attorneys’ fees. This appeal followed. I. This slow-moving litigation, generated by acts that took place in May 1953, has become bound up with the continuing statutory and decisional development of judicial review of awards under the Railway Labor Act of 1926. It is necessary, therefore, to trace this development. The prime purpose of the Act, as stated in § 2(1) is “To avoid any interruption to commerce or to the operation of any carrier engaged therein”. The Act originally provided that if a carrier and its employees could not agree upon the interpretation of an existing collective bargaining agreement (as opposed to the formation of a new agreement) the dispute should be solved by a board of adjustment composed equally of representatives of each side. These boards proved inadequate to their task because of the frequency with which they became deadlocked. The Act did not provide any method of breaking the deadlocks, and strikes frequently occurred. In 1934 Congress amended the Act, replacing the ad hoc adjustment boards with a single agency, the National Railroad Adjustment Board. The amendment vested jurisdiction in the Board over all “disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions”, provided that company grievance procedures had been exhausted previously. The Board consists of four divisions, each empowered to adjudicate disputes in certain specific trades. Each division consists equally of members designated by the railroads and members designated ~by the national unions. Once grievance mechanisms have been exhausted, any party governed by the • contract has a right to bring the dispute before the Board; its jurisdiction does not depend upon the mutual consent of the employees and the railroad. Each party also has a right to argue orally before the division handling the dispute. The distinguishing mark of the NRAB, however, as contrasted with the original adjustment boards, is that a deadlocked division must choose a “neutral person” as a referee to decide the case. That feature, of course, puts the dispute beyond the direct control of the representative of either side; it creates statutory, compulsory arbitration with a bite. Having created this body of railroad men to solve disputes within their own field of expertise, Congress then indicated that it did not want the work of the Board to be readily undone by the courts. The Act as amended in 1934 provided that the NRAB’s awards were to be “final and binding upon both parties to the dispute, except insofar as they shall contain a money award”. A separate amending section, however, provided for suits by employees to enforce awards in their favor handed down by the Board: “on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated.” The apparent conflict between the “final and binding” provision and the “pri-ma facie evidence” provision was resolved — temporarily—by the Supreme Court in Elgin, Joliet & Eastern R. Co. v. Burley, 1944, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886. “In some instances judicial review and enforcement of awards are expressly provided or are contemplated. Section 3 First (p); cf. § 3 First (m). When this is not done, the Act purports to make the Board’s decisions ‘final and binding’. Section 3 First (m).” 325 U.S. at 727, 65 S.Ct. at 1292. Some of the lower courts construed this case as authorizing trials de novo in suits to enforce Board awards. These courts treated the money award as just another form of expert testimony which they were free to reject in the face of more substantial evidence on the other side. See Russ v. Southern R. Co., 6 Cir. 1964, 334 F.2d 224, 227. That was the law as it stood when the unions filed their complaints in the district court to enforce the awards made to Nunn, Short, and Avera by the First Division. In December 1965 the Supreme Court decided Gunther v. San Diego & Arizona E. R. Co., 1965, 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308. This decision substantially restricts the power of the courts to review findings and orders made by the Board despite the practice of de novo trials in lower courts and the express provision in § 3 First (p) of the Act that findings and orders of the Board were merely “prima facie evidence of the facts stated therein”. The railroad had discharged Gunther because of an alleged physical disability reported by one of its examining physicians. Gunther sought reinstatement and back pay from the Railroad Adjustment Board. The Board appointed a medical committee to examine Gunther, and the committee concluded that his health was adequate to qualify him for his job. The Board thereupon awarded reinstatement and back pay. The railroad refused, however, to comply, maintaining that since the collective bargaining agreement provided full managerial discretion upon the choice of examining physicians, the Board had erred in submitting the controversy to its own group of doctors. Gunther sued for enforcement in the district court, but the court agreed with the railroad’s position and declined to enforce the award. The Supreme Court held that this refusal constituted error: ‘Certainly it cannot be said that the Board’s interpretation was wholly baseless and completely without reason. We hold that the District Court and the Court of Appeals as well went beyond their province in rejecting the Adjustment Board’s interpretation of this railroad collective bargaining agreement.’ 382 U.S. at 261, 86 S.Ct. 371 (Emphasis added.) Under Gunther, even in this suit to enforce a money award, it is an incontrovertible fact that the carrier breached the 1939 agreement. In June 1966 Congress adopted several amendments to the Railway Labor Act. First, § 3 First (m) was changed to provide that “awards shall be final and binding upon both parties to the dispute”, with no exception for money awards. Second, § 3 First (p) was changed to provide that the Board’s findings and order shall be “conclusive” rather than “prima facie evidence” in suits for enforcement. The apparent effect of these two provisions is to eliminate review even in the limited area of money awards set apart by the Court in Gunther. A third change has caused trouble, for it seems to reopen awards to judicial scrutiny with respect not only to money awards but to the merits of the Board’s order as well. This amendment provides: [S]uch order may not be set aside except for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order. (Emphasis added.) These grounds for reversal pertain to suits both to enforce the Board’s orders and to set them aside. Thus the 1966 amendments delete the merits-money award distinction recognized in Gunther, and close all provision for judicial review by substituting “conclusive” for “prima facie” in describing the weight due to Board awards; at the same time the amendments reopen review on three specific grounds: (1) failure of the NRAB to comply with the Railway Labor Act, (2) fraud or corruption, or (3) failure of the order to conform, or to confine itself to matters within the jurisdiction of the NRAB. The report on the amendments by the Senate Labor and Public Welfare Committee explains that the thrust of the new legislation is to bring the review of NRAB awards into line with the existing standard of review applicable to labor arbitration awards: Also, because the National Railroad Adjustment Board has been characterized as an arbitration tribunal by the courts, the grounds for review should be limited to those grounds commonly provided for review of arbitration awards. H.R. 706 provides an equal opportunity for judicial review and limits that review “for failure of the division to comply with the requirements of this Act, for failure of the order to conform, or confine itself to matters within the scope of the division’s jurisdiction or for fraud or corruption by a member of the division making the order”. The committee gave consideration to a proposal that the bill be amended to include as a ground for setting aside an award “arbitrariness or capriciousness” on the part of the Board. The committee declined to adopt such an amendment out of concern that such a provision might be regarded as an invitation to the courts to treat any award with which the court disagreed as being arbitrary or capricious. This was done on the assumption that a Federal court would have the power to decline to enforce an award which was actually and indisputedly without foundation in reason or fact, and the committee intends that, under this bill, the courts will have that power. The limited grounds for judicial review provided in H.R. 706 are the same grounds that are provided in section 9 of the Railway Labor Act and also Public Law 88-108, which provided arbitration for the so-called work rules dispute. 1966 U.S.Code Cong. & Admin.News, p. 2287. The “assumption” of the Committee that utterly unfounded awards will not be enforced by the courts seems to be at war with the rejection of “arbitrariness and capriciousness” as adequate grounds for reversal. It also seems to contradict the explicit statutory statement that only three grounds — “unstatutoriness”, corruption, or lack of jurisdiction — will suffice to overturn an award, and with statements that all awards are “final and binding”, regardless of whether they pertain to money, and “conclusive” as well. The intimation that Congress meant to incorporate the standard of review employed in Public Law 88-108 further obscures the issue since that statute has been interpreted to forbid a court’s inquiring into the merits of decisions made by a special arbitrating body established by the law to resolve the national “work-rules” dispute. Furthermore, since the report fails to mention Gunther directly and since the amendments wiped out the money-award exception, there is at least an implication that the authors considered that the rule in Gunther, which forecloses even a glimpse at the merits, now applies to all awards, with or without money provisions. That implication, again, does not square with the “assumption” about baseless awards. The unions contend that the amendments make all NRAB awards conclusive except for the three stated grounds of “unstatutoriness”, corruption, and lack of jurisdiction. The railroad argues that we should distinguish between grounds such as those in the statute itself for “setting aside” an award, and grounds such as those in the Senate report for “declining to enforce” an award. Central explains that while the three stated grounds may exclude all other justifications for “setting aside” an award, they do not affect the court’s inherent power to withhold its positive approval of another body’s decision by “declining to enforce” it. The railroad’s suggestion, however, would render meaningless the statutory exceptions by allowing the courts to decline to enforce for different reasons. Central suggests that setting aside an award is more severe than merely declining to enforce, since, unlike declining to enforce, it involves rejection of the entire award. That interpretation does not bear up in the face of the statute itself: Section 3 First (g) of the amended Act refers to setting awards aside “in whole or in part”. The report is somewhat less than crystal-clear because of the inherent difficulty of explaining when a “final and binding” order is not final and binding. It is evident, however, that the scope of review is much narrower than the “substantial evidence” test affords. Moreover the report does supply content to the statutory exceptions by characterizing the Board as an “arbitration tribunal”. In the arbitration context, an award “without foundation in reason or fact” is equated with an award that exceeds the authority or jurisdiction on the arbitrating body. To merit judicial enforcement, an award must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the collective bargaining agreement..The arbitrator’s role is to carry out the aims of the agreement, and his role defines the scope of his authority. When he is no longer carrying out the agreement or when his position cannot be considered in any way rational, he has exceeded his jurisdiction. The requirement that the result of arbitration have “foundation in reason or fact” means that the award must, in some logical way, be derived from the wording or purpose of the contract. This Court in Safeway Stores v. American Bakery Workers Local 111, 5 Cir. 1968, 390 F.2d 79, 81, 82, has recently announced the standard for review of an arbitrator’s reward: “‘[I]f the award is arbitrary, capricious or not adequately grounded in the basic collective bargaining contract, it will not be enforced by the courts.’ * * * On its face the award should ordinarily reveal that it finds its source in the contract and those circumstances out of which comes the ‘common law of the shop.’ ” The broad leeway that courts must afford to arbitrators’ decisions stems from the fact that “[i]t is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel and Car Corp., 1960, 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424, 1429. Here, Congress has sought to incorporate that standard into a compulsory, rather than voluntary, scheme of arbitration. The Supreme Court elaborated on the arbitrator’s role in Enterprise Wheel, the last of the “Steelworker Trilogy” on arbitration : ‘When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.’ 363 U.S. at 597, 80 S.Ct. at 1361. The specific reference to remedies imposed by arbitrators makes it all the more applicable to the case before us. While logic would suggest that the arbitrator has more leeway in formulating the remedy for a breach than he does in reading the explicit terms of the contract, it is clear that he is not an utterly free agent, even in that respect. His decision still must be drawn from the “essence” of the contract. If there is no rational way to explain the remedy handed down by the arbitrator as a logical means of furthering the aims of the contract, that is, if an award is “without foundation in reason or fact”, the award lies beyond the arbitrator’s jurisdiction. There is nothing unusual in whittling finality language down to size, whether a Senate Committee does it or a court does it. “Finality” is a mirage if relied upon to preclude any judicial review of an arbitration award or administrative agency’s decision. See, for example, Oestereich v. Selective Service Board No. 11, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402. There a theological student had been reclassified in violation of the Selective Service Act. The Act provides that “no judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * Oestereich sued to restrain his induction. The Supreme Court held that the statutory limitation upon review could not be read literally. “Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements * * * or with an Act taken as an organic whole”. 393 U.S. at 238, 89 S.Ct. at 417, 21 L.Ed.2d at 406. Oestereich is but the latest in a long line of similar cases. We conclude therefore that the district court properly inquired into whether the awards are, in the language of the Senate Committee Report, “actually and undisputedly without foundation in reason or fact”. This standard is similar to the Gunther standard: the question is whether “the Board’s interpretation was wholly baseless and without reason”. 382 U.S. at 261, 86 S.Ct. at 371. As the district court fairly stated: ‘Whether we regard the Board as primarily an administrative tribunal, or as primarily a board of arbitration (it partakes of the nature of both), it must act responsibly, and if it, as an administrative tribunal, is construing and interpreting an agreement its interpretation must find some basis in the language of the written agreement, or in the conduct of parties under that language, or in some uniform custom and practice concurred in by the parties.’ The conclusion we reach is consistent with our recent decisions in Hodges v. Atlantic Coastline Railroad Co., 5 Cir. 1966, 363 F.2d 534, and Sweeney v. Florida East Coast Railway Co., 5 Cir.1968, 389 F.2d 113. In Hodges an employee had successfully recovered for permanent disability from the railroad under the FELA; he later reapplied for his old job and the railroad refused to reinstate him. When the case came before the NRAB it held that Hodges’s previous recovery for permanent disability did not prevent him from reclaiming his old job, and that the railroad’s refusal to rehire him constituted a breach of the collective bargaining agreement. The Board rejected the railroad’s claim that Hodges was estopped by his earlier recovery to deny his permanent disability. This Court held that Gunther “necessarily precludes our determination of the disability issue by the Railroad, which, in turn, precludes the analogous estoppel argument”. 363 F.2d at 538. “The award of the NRAB must stand as the result of ‘compulsory arbitration in this limited field,’ and it must be enforced.” 363 F.2d at 540. The Court did not mention the 1966 amendments which had been enacted less than a month before the announcement of the decision. In Sweeney the Board had awarded “time lost” to an engineer who had been improperly dismissed but had not indicated whether that was to be diminished by the amount of time he spent during the year working for another railroad. The district court refused to interpret the award, holding that to do so would go beyond its jurisdiction under the 1966 amendments. Judge Tuttle, speaking for this Court reversed: “In other words, the money award was subject to litigation de novo prior to the adoption of the amendment. It is no longer subject to such litigation. That is all that was accomplished by the adoption of the 1966 amendment referred to above.” 389 F.2d at 115. Judge Tuttle went on to interpret the award in light of the frequent practice of the Board to calculate recovery without regard to the employee’s interim mitigating damages, and concluded that if the Board had meant to subtract mitigating damages from the award it would have said so. Sweeney thus dealt with the courts’ power to interpret awards, not with their power to examine their correctness. Beside the passage quoted above the Court did say that the parties “now are bound by the decision of the Adjustment Board”, but no one contended that the award could be challenged on any of the three statutory grounds or that it was “without foundation in reason or fact”. The whole dispute concerned an interpretation. Sweeney, therefore, like Hodges, does not tell us how to reconcile the various standards of judicial review suggested by the statute and its legislative history. II. We turn then to decide whether the award in this case was so unfounded in reason and fact, so unconnected with the wording and purpose of the collective bargaining agreement as to “manifest an infidelity to the obligation of the arbitrator”. The railroad contends, and sought to prove at trial, that penalty pay of the sort granted here is unprecedented. The trial court agreed: The evidence fails to show and this Court finds that there was, and is, no uniform custom and practice among carriers generally, or with this carrier in particular, to pay a day’s pay for every contract violation or for every instance where it may be said that in some respect an employee was “malas-signed”. Arbitrators, all parties concede, need not confine themselves to common-law remedies. Here it is undisputed that the Board in the past has frequently awarded pay undiminished by the employee’s mitigating earnings. In both Hodges and Sweeney this Court upheld the award of the same sort of double-pay windfall sought by the unions for the employees here. See also Brotherhood of Railroad Trainmen v. Denver & R. G. Co., 10 Cir.1967, 370 F.2d 833, cert. denied, 386 U.S. 1018, 87 S.Ct. 1375, 18 L.Ed.2d 456. At most, the carrier argues that none of the cases resembled the facts of the present case closely enough to deserve controlling force. Two precedents are distinguished on the ground that they differed greatly in size from the penalty pay awarded by the First Division here. Distinctions of this sort are simply too nice for the statutory standard of judicial review. The Board’s failure to make such distinctions is not so great a mistake as to rob the award of rationality, and therefore put it beyond the Board’s jurisdiction. The Division’s precedents provided the foundation in fact and in law that is all an award of the Board requires to put it beyond the reach of the court. In light of this basis the Board surely did not act so irrationally as to exceed its jurisdiction in awarding penalty pay. The Board’s wide latitude to make awards can rationally be explained in terms of the collective bargaining agreement. Custom and practice, the parties agree, are valid bases for fashioning remedies where the contract does not explicitly exclude them. When, therefore, bases in custom and practice are shown that support the particular principle of penalty pay applied in this case, the Act forecloses further judicial scrutiny of the principle. The railroad maintains that one element of unreasonableness present in the recovery granted here is that the First Division pegged the size of the award to the duration of the illegal transfer. The duration in turn depended upon the Board’s own deliberations. So long as the home terminal of the switching local remained in Albany, a condition that the Board later found illegal, the penalty pay continued to mount. Central argues that it therefore had to pay for the virtually imperceptable pace at which the First Division proceeded. The carrier points out that the practice of penalizing parties because of the Board’s own backlog will discourage parties from seeking to enforce their legal rights. There is some merit in the railroad’s contention, but the conclusion drawn from it is overblown. Central did not have to undergo the risks it took here; it could have moved the Americus terminal to Albany for one day to create a test case, moved it back, and then awaited the results. If it could not accept that course because of lessened efficiency and profits, then it had to demonstrate, as it did, the courage of its convictions by leaving the change in effect pending the outcome. Litigants frequently challenge statutes and interpretations by violating the letter of the law to raise the illegality or unconstitutionality of the law as a defense. The most obvious examples are defendants who have been able to challenge their Selective Service classification only by refusing induction and thereby breaking the law. To be sure, Central was here contesting not an official interpretation of its legal responsibilities, but an interpretation offered by private parties, the unions. The point is that the sort of situation that the Board forced Central into is not so unknown to the law as to make the award irrational or worse. Furthermore, the undesirable “chilling” effect on the parties is merely a prospective incident of the rule: since Central itself did not know that it would be taxed for the long deliberation of the First Division, it was not deterred from opposing the unions’ claims. But those who would be chilled, i. e., future litigants, will find, a different statutory situation. The 1966 amendments addressed themselves specifically to the tremendous backlog that had built up on the Board’s dockets, especially in the First Division. The new law allows the parties to take their cases to ad hoc “special boards” rather than to the NRAB. A party in Central’s position would not have to fear the piling on of penalties caused by the size of the NRAB backlog. The mere fact that time-lost pay, undiminished by the employee’s other earnings was an acceptable award here does not settle the matter. We must also consider whether the particular amounts awarded by the First Division as penalty pay had some logical source or foundation. The Board awarded $38,875.79 to Engineer Avera, a sum equal to the amount he would have made had the contract not been breached. That accords with the principle of undiminished pay as a penalty. Brakeman Nunn’s widow received $13,-396.56, despite the fact that he would have earned $17,059.59 had he continued to work until his death out of the Americus terminal as the contract entitled him to. The smaller award has a rational explanation: the claiming unions did not ask for more than $13,396.56 in the proceedings before the First Division. Thus, while the Division might have been prepared to grant the larger sum, it may have felt bound by the amount claimed in the grievance. That again would be a rational award. The third recovery Claim 3, however, seems utterly indefensible. The recipient, Flagman Short, would have earned $32,411.36 if he had remained on the Americus switch local during the time it was improperly removed. Instead he earned $16,845.19 working elsewhere. Those smaller earnings, however, reflect the fact that Short took a leave of absence from November 20, 1953, to March 1, 1956. The railroad, in its attempts to compromise the suit, offered Short $15,566.17. That sum represented the amount of his hypothetical earnings, absent the breach, minus the amount that he actually made; his difference in damages disregarding the fact that some of the difference reflected his leave of absence. In other words, Central offered to make up to Short what he would have earned if he had worked full time on the Americus switch local. The First Division, in interpreting its own award, explicitly declared that he should not recover for the time that he had spent on leave. That was a different formula from Central’s. To apply it, the Board should have subtracted from Short’s hypothetical earnings on the Americus local the amount that was attributable to the period that he spent on leave. Central computed its sum by refusing to give Short credit for the earnings he had actually made elsewhere. The Board purported to compute its sum by refusing to give Short credit for the amount of time he spent while on leave. The Board nonetheless awarded the dollar amount offered to Short by the railroad, and clearly not the amount recoverable under its own stated formula. As the appellee says in its brief “[The Board] could only

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

FENTRON INDUSTRIES, INC., et al., Plaintiffs-Appellees, v. The NATIONAL SHOPMEN PENSION FUND, et al., Defendants-Appellants. Nos. 81-3110, 81-3330. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 7, 1982. Decided April 21, 1982. Richard H. Robblee, Hafer, Cassidy & Price, Michael A. Patterson, Lee, Smart, Cook, Biehl & Martin, Seattle, Wash., for defendants-appellants. Gerald M. Feder, Gerald M. Feder Law Offices, Washington, D. C., for amicus curiae. Alan S. Levins, Littler, Mendelson, Fa-sitff & Tichy, San Francisco, Cal., John E. Iverson, Seattle, Wash., argued, for plaintiffs-appellees; George J. Tichy, II, San Francisco, Cal., on brief. Before ANDERSON and ALARCON, Circuit Judges, and CRAIG, District Judge. The Honorable Walter E. Craig, Senior United States District Judge for the District of Arizona, sitting by designation. . Article II, § 2.09 of the 1976 Plan provides: (a) If an Employer participation in the Fund with respect to a bargaining unit or group terminates, the trustees are empowered to cancel any obligation of the Trust Fund that is maintained under the Trust Agreement with respect to that part of any pension for which a person was made eligible on the basis of employment in such a bargaining unit or group prior to the contribution period with respect to that unit or group. Fentron and its employees argue that section 2.09 does not authorize cancellation of Past Service Credits for those employees not yet receiving pensions. Because we conclude that the trustees’ action cancelling the Past Service Credits of employees vested under the 1969 Plan violates ERISA, we do not reach this issue. J. BLAINE ANDERSON, Circuit Judge: The National Shopmen Pension Fund (Fund) and its trustees appeal from summary judgment in favor of Fentron Industries, Inc. (Fentron) and a class of its employees. The district court found that the actions of the Fund and its trustees, cancelling certain pension credits of the employees, violated various provisions of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1381. We affirm in part, reverse in part, and remand for further proceedings. 1. BACKGROUND Fentron and Shopmen’s Local Union No. 506 (Union) entered into three successive collective bargaining agreements effective from April 1, 1968 through April 1, 1977. Pursuant to the second and third agreements, Fentron contributed to the Fund on behalf of its employees from April 1, 1971 until April. 1, 1977. Thereafter, the Fund refused to accept Fentron’s contributions because Fentron was no longer party to a collective bargaining agreement. At the time Fentron began contributing to the Fund, the Fund Plan (1969 Plan) provided that an employee’s pension benefits become nonforfeitable (vested) upon the employee reaching age 50 and accumulating at least ten years of “Pension Credit,” at least five of which are “Future Service Credits.” Pension Credits earned for employment while the employer contributed to the fund were denominated “Future Service Credits,” and those earned for employment before the employer began contributing were denominated “Past Service Credits.” In September 1976, after Congress enacted ERISA, the trustees amended the 1969 Plan. This amendment (1976 Plan) included new section 2.09 of Article II. Section 2.09 empowered the trustees to cancel certain obligations of the Fund to employees whose employer withdrew from the plan. In September 1978, more than a year after the expiration of Fentron’s last collective bargaining agreement, the trustees cancelled the Past Service Credits of all Fentron Employees. No notice was given to Fentron or to its employees of the amendment or of the cancellation until October 1978. In January 1979 Fentron filed a claim against the Fund and its trustees for in-junctive and declaratory relief, alleging violations of ERISA and the Labor Management Relations Act, 29 U.S.C. §§ 185-186. Subsequently, a class of Fentron employees also sued, making the same allegations as Fentron and also seeking reimbursement of improperly withheld pension benefits. The class consists of all Fentron employees who have applied for pension benefits or who have been employed by Fentron for at least ten years, five of which were during the period Fentron contributed to the Plan. It is undisputed that all members of the class were vested under the 1969 Plan. The district court certified the class and the actions were consolidated. The district court entered partial summary judgment for the plaintiffs on January 22, 1981. The court permanently enjoined the trustees from administering the fund unlawfully, restored improperly withheld pension credits, held the trustees personally liable, and awarded attorney’s fees. The court did not, however, decide the claims of two Fentron employees, the amount of the monetary award (restored benefits), or the amount of attorney’s fees. The Fund alone filed a notice of appeal from this judgment on February 18, 1981 (No. 81-3110). Two days before the Fund filed its notice of appeal in 81-3110, the trustees timely moved for reconsideration under Fed.R. Civ.P. 59. They contested Fentron’s standing to sue and their own personal liability. The district court denied the motion and granted summary judgment for the two remaining employees on May 22, 1981. No determination of the amount of the monetary award or of the attorney’s fees was made. The Plan and the trustees filed a timely notice of appeal (No. 81-3330). II. ISSUES ON APPEAL We address the following issues on this appeal: (1) whether we have jurisdiction to decide these cases; (2) whether Fentron has standing to sue the Fund for violations of ERISA; (3) whether the employee class was properly certified; (4) whether the Fund’s cancellation of Past Service Credits improperly amended the Plan’s vesting schedule under ERISA § 203(c)(1)(B), 29 U.S.C. § 1053(c)(1)(B); and (5) whether ERISA § 404, 29 U.S.C. § 1104(a)(1)(D) imposes per se personal fiduciary liability on trustees for violations of ERISA. III. DISCUSSION A. Jurisdiction The district court entered two judgments, one in January and one in June. The trustees’ February motion for reconsideration, however, suspended the time for filing a notice of appeal for all parties until after that motion was denied in the June judgment. Fed.R.App.P. 4(a)(4). The June notice was therefore timely as to both the January and June orders. The district court’s January order included an injunction against the Fund and the trustees. This injunction is an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). In addition to the injunction, all of the substantive ERISA claims raised by these appeals are properly before us. 28 U.S.C. § 1292(a)(1) extends jurisdiction not only to the injunction itself, but to all the issues that underlie the order. 9 J. Moore, Federal Practice ¶ 110.25[1], at 270-71 (2d ed. 1980); Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1317 (9th Cir. 1981). The district court’s injunction orders the trustees to “properly process all pension claims of Fentron employees affected by this decree;” and enjoins the trustees from “administering the National Shopmen’s Pension Fund in a manner inconsistent with this decree, ERISA, and the terms of the Plan.” The order also declares section 2.09 invalid under ERISA, orders a reimbursement of pension benefits and holds the trustees personally liable. The substantive ERISA issues implicated by the district court’s rulings on section 2.09, reimbursement and personal trustee liability, underlie its decision to enjoin. Review of the injunction, therefore, necessarily involves deciding the ERISA claims, and we have jurisdiction to do so. We also exercise our discretion to review the class certification and standing issues. See Yamamoto v. Omiya. 564 F.2d 1319, 1325 n.11 (9th Cir. 1977). Inasmuch as we consider matters related to these issues in reviewing the injunction, the interests of judicial economy are best served by broaching them now. We decline, however, to review the district court’s attorney’s fees award. The district court has not yet determined the amount of the fees. Moreover, the challenge to the award centers on the failure of the district court to provide reasons for its decision. See Hummed v. S. E. Rycoff & Co., 634 F.2d 446, 452 (9th Cir. 1980). By declining to reach this issue until the amount of the award is determined, we give the district court an opportunity to explain its ruling. B. Fentron’s Standing The district court held that Fentron had alleged sufficient injury to sue under ERI-SA. Specifically, the court found that the alleged interference with Fentron’s collective bargaining agreement and disruption of employer-employee relations posed by the trustees action was adequate to pass constitutional muster. The court also found that Fentron’s injuries fell within the “zone of interests” protected by ERISA under the test of Data Processing Service Organization v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). We agree. In order to have standing to sue for violations of a federal statute, a plaintiff must: (1) suffer an injury in fact; (2) fall arguably within the zone of interests protected by the statute allegedly violated; and (3) show that the statute itself does not preclude the suit. Data Processing, 397 U.S. at 153, 90 S.Ct. at 829; Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Hood River County v. United States Department of Labor, 532 F.2d 1236, 1238 (9th Cir. 1976). Fentron’s alleged injuries are specific and personal. The failure of the Fund to pay pension benefits will impair Fentron’s relationship with the Union. Moreover, the trustees offered to restore cancelled Past Service Credits to employees who would quit Fentron and work at least one year for a contributing employer. This provision threatens direct injury to Fentron. These are neither the general allegations of adverse impact condemned in Natural Resources Defense Council Inc. v. EPA, 507 F.2d 905, 908-11 (9th Cir. 1974), nor the assertion of third party rights condemned in Fisher v. Tucson School District, 625 F.2d 834, 837 (9th Cir. 1980). Fentron’s alleged injuries also fall within the zone of interests that Congress intended to protect when it enacted ERISA. Section 2(a) of ERISA, 29 U.S.C. § 1001(a), recognizes that pension plans “have become an important factor affecting the stability of employment and the successful development of industrial relations,” and that therefore it was desirable to enact ERISA. The threat to Fentron’s relationship with the Union, and to the continued employment by Fentron of its employees, falls within this range of concerns. See Data Processing, 397 U.S. at 153, 90 S.Ct. at 829. Finally, we do not believe that Congress, in enacting ERISA, intended to prohibit employers from suing to enforce its provisions. The omission of employers from 29 U.S.C. § 1132 is not significant in this regard. There is nothing in the legislative history to suggest either that the list of parties empowered to sue under this section is exclusive or that Congress intentionally omitted employers. See, e.g., H.R.Rep.No. 1280, 93d Cong., 2d Sess. 326-328 (1974), reprinted in Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 94th Cong., 2d Sess., Legislative History of the Employee Retirement Income Security Act of 1974, at 4593-95 (1976). In view of the intent of Congress to protect employer-employee relations, we hold that the statute does not prohibit employers from suing to enforce its provisions. C. Class Certification The district court certified the employees’ suit as a class action. We review this order for abuse of discretion. James v. Ball, 613 F.2d 180 (9th Cir. 1979), rev’d on other grounds, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). The Fund and its trustees claim that the employees’ law suit was solicited by Fentron. They therefore urge us to reverse the certification order on public policy grounds. We decline to do so. Although there is a general policy against the solicitation of law suits, the cases ordinarily refer to solicitation by attorneys, not by parties. See, e.g., Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 44 (1978); In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). More important, we believe that decerti-fication here would impair the associational rights of employers and employees, see In re Primus, 436 U.S. at 426, 98 S.Ct. at 1901, and meaningful access to the courts. See United Transportation Union v. State Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971). Thus, on balance, the district court did not abuse its discretion by certifying the employee class. D. ERISA Violations — 1976 Plan Section 2.09 The district court held that the trustees cancellation of the Past Service Credits of Fentron employees who were vested under the 1969 Plan violated ERISA §§ 203(c)(1)(B), 203(c)(1)(A), 204(g), and 302(c)(8), 29 U.S.C. §§ 1053(c)(1)(B), 1053(c)(1)(A), 1054(g), and 1082(c)(8). The court also found that, under these provisions of ERISA, section 2.09 was invalid on its face. The court concluded that section 2.09 was so susceptible of unlawful use that it was void for all purposes. For the reasons given below, we affirm this determination in part, and reverse it in part. (1) Validity of section 2.09 on its face. A pension plan may cancel benefits not required by ERISA’s minimum vesting standards. Hummel v. S. E. Rycoff, 634 F.2d at 449-50 (9th Cir. 1980); Fremont v. McGraw-Edison Co., 606 F.2d 752 (7th Cir. 1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1599, 63 L.Ed.2d 786 (1980). Thus, to the extent that ERISA does not require Past Service Credits for employees not vested under the plan, section 2.09 is valid. ERISA § 203(b)(1)(C), 29 U.S.C. § 1053(b)(1)(C) details what years of service must be credited by pension plans in determining the non-forfeitable percentage of benefits under ERISA’s minimum vesting standards. That section explicitly permits the exclusion of years of service “with an employer during any period for which the employer did not maintain the plan or a predecessor plan.” 29 U.S.C. § 1053(b) (D(C). Section 2.09, falls within ERISA § 203(b)(1)(C) to the extent that it permits the cancellation of credits of nonvested employees for employment before an employer’s participation in the plan. Unlike the credits of vested employees, ERISA does not prohibit the cancellation of Past Service Credits of employees not yet vested under a pension plan. Accordingly, Section 2.09 is not invalid on its face. (2) Cancellation of Past Service Credits of the employee class. The district court held that the cancellation of Past Service Credits of employees vested under the 1969 Plan violated ERISA § 203(c)(1)(B), 29 U.S.C. § 1053(c)(1)(B). That section provides that a plan will not meet ERISA’s minimum vesting requirements if its “vesting schedule” is amended, unless each participant having not less than 5 years of service is permitted to elect, within a reasonable period after adoption of such amendment, to have his nonforfeitable percentage computed under the plan without regard to such amendment. It is undisputed that the class was vested under the 1969 Plan and that no § 203(c)(1)(B) option was offered. The Fund and its trustees argue that the cancellation of Past Service Credits is not a “vesting schedule” amendment within the meaning of section 203(c)(1)(B). They contend that this section should not be read to prohibit the cancellation of credits not otherwise required by ERISA. We disagree. The trustees’ decision to use section 2.09 changed class members’ vested benefit rights. Before the cancellation of Past Service Credits, the benefits of all members of the class were vested under the 1969 Plan. The effect of cancelling Past Service Credits was to diminish the pension credits of all members, each of whom at that time had to have Past Service Credits to qualify for pension vesting under the 1969 Plan. The cancellation thus divested previously vested employees, who then would only be eligible for vesting in the future, if at all. The trustees’ use of section 2.09 was therefore a vesting schedule amendment and, in the absence of the option to compute benefits under the 1969 Plan, is prohibited by ERI-SA § 203(c)(1)(B). It is of no consequence, in this regard, that the trustees’ cancellation does not directly change the 1969 Plan vesting schedule. Admittedly, the 1976 amendments did not, by themselves, change the portion of the Plan that relates to the credits necessary for vesting. However, the trustees’ action under section 2.09 did change class members’ vested rights. The Fund and its trustees cannot be permitted to do indirectly what would be prohibited if done directly by changing the vesting schedule without changing the vesting provisions of the plan. E. Per Se Personal Trustee Liability The district court found the trustees liable under ERISA § 409, 29 U.S.C. § 1109(a), for violation of their fiduciary duty under ERISA § 404, 29 U.S.C. § 1104(a)(1)(D). The court held that, insofar as the trustees had administered the plan in violation of ERISA (by cancelling the class’s Past Service Credits), they had per se violated the fiduciary standards of ERISA § 404. The trustees, contend that § 404 does not establish a per se rule of fiduciary conduct, and that Congress never intended it to do so. We agree. The fiduciary standards enacted by ERISA conform to the standard of care found in the Labor Management Relations Act, 29 U.S.C. §§ 185-186. Gordon v. ILWU—PMA Benefit Funds, 616 F.2d 433, 438 (9th Cir. 1980). Under that standard, the trustees’ decision will not be overturned unless it is arbitrary and capricious. Id. Far from imposing per se liability, a trustee may be found to have violated his fidiciary duty only when his or her action was “made in bad faith, or upon lack of a factual foundation, or when unsupported by substantial evidence.” Tomlin v. Board of Trustees, 586 F.2d 148, 150 (9th Cir. 1978). Congress designed ERISA to promote pension plans and to protect their beneficiance. Gordon, 616 F.2d at 437. The potential burden of per se personal liability for any violation of this very complex statute might deter capable persons from serving as trustees for these plans. The continued vitality of the private pension system thus depends on the application of the traditional fiduciary standards of the Labor Management Relations Act. CONCLUSION Fentron was entitled to sue for violations of ERISA, and the employee class was properly certified. Although 1976 Plan section 2.09 is not invalid on its face, the trustees’ cancellation of Past Service Credits of class employees is prohibited by ERI-SA. Finally, ERISA does not impose a per se rule of fiduciary liability for violating its provisions. Accordingly, the district court’s judgment is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. . Article IV, § 7, of the 1969 Plan provided: Vested Pension. Once an employee has accumulated 10 or more years of Pension Credit, at least 5 of which are Future Service credits, and that time [sic] is age 50 or over, he will remain entitled, following any break in service, to all benefits provided by this Pension Plan. . Article IV, § 2, of the 1969 Plan provided: (b) an employee who qualifies for Past Service Credit by having met the requirement of the “two year test rule” shall be given one year of Past Service Credit for each year of covered Employment prior to the Contribution Date .... . The trustees also cancelled 1.6 years of Past Service Credit for pensioners. These were subsequently restored. . 29 U.S.C. § 1132 empowers four classes of persons to bring civil actions to enforce ERISA: (1) The Secretary of Labor; (2) "participants” in ERISA trusts; (3) “beneficiaries” of ERISA trusts; and (4) “fiduciaries” of ERISA trusts. . Fentron argues that, in any event, employers like it are not omitted from § 1132 because it is a “fiduciary.” Because we decide that employers may sue notwithstanding § 1132, we do not reach this issue. . The class included: every individual who, in or after 1969, has been an employee of Fentron Industries, Inc. , . . and a participant under the National Shopmen Pension Plan and Fund, and who has applied for benefits under said Plan or who has been employed by Fentron ... for at least ten years, five of which were during the period for which Fentron . . . made contributions under said Pension Plan. . Because we find the trustee cancellation of Past Service Credits unlawful under ERISA § 203(c)(1)(B), we do not reach the question whether this cancellation is also prohibited by other ERISA provisions. . 29 U.S.C. § 1109(a) provides: Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate .... . 29 U.S.C. § 1104(a)(1) provides: Subject to sections 1103(c) and (d), 1342 and 1344 of this title, a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan; (B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; (C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchap-ter.

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

MOUNT v. NORFOLK SAVINGS & LOAN CORP. No. 6264. United States Court of Appeals Fourth Circuit. Argued Oct. 2, 1951. Decided Nov. 5, 1951. Israel Steingold, Richmond, Va. (Samuel A. Steingold and Steingold & Steingold, all of Norfolk, Va., on the brief), for appellant. Henry J. Lankford, Norfolk, Va., for ap-pellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. The trustee in bankruptcy of Legum Furniture Corporation brought this suit against Norfolk Savings and Loan Corporation, hereinafter called the bank, to set aside and avoid the assignment of certain conditional sales contracts pledged by Legum with the bank as collateral security for loans, and to recover, as voidable preferences under Section 60 of the Bankruptcy Act, 11 U.S.C.A. § 96, certain moneys collected by the bank on assigned contracts. The District Judge gave judgment for the bank and dismissed both claims of the trustee. Legum was engaged in the retail sale of furniture in Norfolk, Virginia, under conditional sales contracts whereby the purchaser, having made an initial payment, was given possession of the goods, and agreed to pay the balance of the purchase price in monthly installments, and the seller retained title to the goods pending full payment with the right in case of default to repossess them. The contracts were valid and were duly docketed under the Virginia statutes. See Section 55-88 of the Virginia Code of 1950. A petition in involuntary bankruptcy was filed in the District Court against Legum on May 3, 1950 and was followed by an adjudication on May 16, 1950. The bankruptcy schedule showed assets of $42,638.02 and liabilities of $125,115.63. The trustee collected accounts receivable in the amount of $1600.95 and sold the remaining assets for $11,300. At the time of bankruptcy the bank held assigned accounts in the sum of $17,992.06. At the time of the hearing in the District Court it had collected $6206.95 on the accounts assigned to it and held assigned accounts of the face value of $11,785.11. Its claim at the time of bankruptcy amounted to $15,416. For six or seven years prior to bankruptcy Legum had been borrowing money from the bank on promissory notes payable in monthly or weekly installments, and had assigned, as collateral security, conditional sales contracts of its customers. The con» tracts were docketed as required by the state statute, and were then assigned by endorsement and delivered to the bank. Assignments were also stamped on the customers’ accounts on the Legum ledger. There was no other written agreement between the parties defining the procedure for the collection, control and distribution of the proceeds of the accounts; and the agreement in these respects can be ascertained only from the oral testimony of the officers of the participating corporations as to their understanding, and particularly from what was actually done in carrying on the business. The procedure may be described as follows : When Legum borrowed money from the bank it gave a promissory note for the amount of the loan payable in installments and assigned and delivered sales contracts to the bank in such an amount that the average weekly payments due on the contracts approximated the amount of the installment payments due on the note. The purchasers were not notified of the assignment of the accounts but the understanding was that Legum was to make the collections and to remit to the bank the amount of the installments due on its promissory note. If the amount collected was more than the installments due on the note Le-gum kept the balance and used it in its business; and if the amount was less Le-gum was expected to make up the deficiency. There was no specific agreement that Legum should make the collections and remit the proceeds to the bank; and in fact the moneys collected were not remitted to the bank; but the executive officers of both lender and borrower in charge of the transactions testified that Legum' collected the accounts as agent of the bank. There was no attempt by Legum to segregate its collections on the assigned accounts, which constituted about 25 per cent of all of its accounts, from its collections on other accounts. All collections were deposited by Legum in a national bank of deposit and used in Legum’s business. The bank exercised no control over the collections and required no accounting thereof. The judge found that it “was interested in these collections, and showed interest in the collections, only so far as it was necessary to obtain from the bankrupt the money sufficient to meet its obligations at the bank.” Legum did not report to the bank the collections on assigned accounts as they were made, or assign new accounts to the bank to take the place of those which were paid at the' time that they were closed out. Usually Legum’s representative brought new accounts to the bank, especially when Legum desired to renew a note, and on these occasions the bank’s agent would go to Legum and check the accounts on the ledger to ascertain whether the open accounts were sufficient in amount to secure the loans. There was no regularity about the procedure and no attempt on Le-gum’s part to segregate or hold the collections for the bank until such time as new accounts of equal amount were assigned. Legum repossessed purchased goods from delinquent customers and resold the goods whenever it saw fit to do so without notice to the bank. There is no evidence that it ever became necessary to bring suit against a defaulting customer on an assigned contract in the hands of the bank or to make use of the document to repossess the goods which it covered. Legum was supposed to substitute a new contract for repossessed goods but the substitutions for such accounts were made at irregular intervals in the same manner as substitutions for accounts closed by payment. The course of events during the year preceding bankruptcy gives evidence of the control and use of the moneys collected on the assigned accounts which Legum exercised with the bank’s consent. During this period Legum was continuously in default in its payments to the 'bank and continuously used the proceeds of the accounts in its business. For example, on September 16, 1948 Legum gave its collateral note to the bank for $3000 payable in installments of $300 per month; but the payments were not made as agreed, and on January 6, 1950 the note was renewed for $1050. On January 8, 1949 Legum gave its collateral note for $2500 payable in monthly installments of $500; but the only payment was $1000 on April 20, 1949 and thereafter nothing was paid but interest in the sum of $100 on September 15, 1949 and $31.75 on January 21, 1950. On April 8, 1949 Legum gave a collateral renewal note for $11,263 payable in weekly installments of $225, but paid thereon only $450 on June 29, 1949 and $216 as interest on September 3, 1949. On December 12, 1949 the last mentioned note wa» renewed for $11,663, payable in like manner, but only $450 was paid thereon on February 10, 1950 with interest in the sum of $83 on March 6, 1950. When this note was given Legum owed the bank $16,123, which was secured by assigned accounts in the sum of $13,679.26. A condition of the renewal was the promise of Legum to assign additional accounts as collateral, and accordingly accounts in the sum of $4312.50 for goods sold in January, 1950 were assigned to the bank in February, 1950. The District Judge found that there was no evidence to show that in February, 1950, within four months of bankruptcy, the bank had reasonable cause to believe that Legum was insolvent. It is, however, established by the evidence that in the latter part of March or the early part of April, 1950 Legum was called to account by the bank for his delinquencies on the notes, and informed the bank that it was unable to meet its obligations, and agreed with the bank that it should notify the purchasers to make their payments direct to it. The notice was given on April 10, 1950 and' thereby the bank for the first time assumed control of the collection and disposition of the proceeds of the accounts. Whatever may have been the knowledge of the bank in February, 1950, there is no doubt that it had positive knowledge of Legum’s insolvency before it received any part of the collections which it subsequently. made. From this recital it is obvious that the transactions between the parties may be summed up in the statement that the bank obtained and held in its possession assignments of contracts in an amount usually but not always sufficient to cover Legum’s indebtedness, and in form adequate to convey legal title to the accounts; that Le-gum collected and retained the proceeds of the accounts and used them at will in the course of its business with the knowledge of the bank; but that new accounts were not substituted for old when the latter were closed by payment or repossession, but from time to time the bank inspected the assigned accounts and obtained new accounts in place of those which were in default or had been paid off. The question for decision is whether the bank acquired good title to the assigned accounts in these circumstances under the law of Virginia because the rights of the parties depend primarily upon the law of that state. It is a principle of law in effect in Virginia and in certain other jurisdictions that a transfer of property as security which reserves to the transferor the right to dispose of the same or to apply the proceeds thereof for his own uses is fraudulent in law and void 'as to creditors. The rule “rests not upon seeming ownership because of possession retained, but upon a lack of ownership because of dominion reserved. It does not raise a presumption of fraud. It imputes fraud conclusively because of the reservation of dominion inconsistent with the effective disposition of title 'and creation‘of a lien.” Benedict v. Ratner, 268 U.S. 353, 363, 45 S.Ct. 566, 569, 69 L. Ed. 991. See also Mathews v. Bond, 146 Va. 158, 135 S.E. 689; Didier v. Patterson, 93 Va. 534, 25 S.E. 661; In re Spanish-American Cork Products Co., 4 Cir., 2 F.2d 203. In Mathews v. Bond, 146 Va. 158, 163-164, 135 S.E. 689, 691, the court said: “This court, in a long line of cases, has consistently held that a deed of trust executed by a debt or for the purpose of indemnifying certain named creditors, which reserves to the grantor a power of control and disposition inconsistent with the avowed purposes of the trust and adequate to defeat such purposes, is, by reason of such reservation, per se fraudulent and void as to creditors thereby postponed.” Valid transfers of open accounts as collateral security may nevertheless be made even in the 'absence of statute. In Virginia they are expressly authorized by Section 11-5 of the Virginia Code of 1950 which provides: “Assignment of <accounts receivable, etc., without notice to debtor.— All written assignments made in good faith, whether in the nature of a sale, pledge or otherwise, of 'accounts receivable and amounts due or to become due on open accounts or contracts shall be valid, legal and complete, and shall be deemed to have been fully perfected, without notice to the debtor of such assignment. Such assignments shall take effect according to their terms and be valid and enforceable, as of the respective dates thereof, against all persons whomsoever and in any event.” It does not follow, however, that an assignment of accounts is good and enforceable in the hands of the assignee because it is cast in a form recognized as sufficient to convey title by statute or by the decisions of the courts; for the rights of the parties are to be determined by what they actually do rather than by the provisions of a contract which they disregard in giving effect to the transaction. See Grimes v. Clark, 4 Cir., 234 F. 604, 607; In re Almond-Jones Co., D.C.Md., 13 F.2d 152, affirmed Union Trust Co. v. Peck, 4 Cir., 16 F.2d 986. Thus in the first case a provision in a chattel mortgage that the assignor might sell the mortgaged property as agent of the assignee and account to the assignee for the money received was held insufficient to save the assignment, because the obligation to account was disregarded with the consent of the assignee; and in the second case an assignment of open accounts was declared invalid as against the trustee in bankruptcy, although under the agreement the customers’ checks were deposited in the lending bank with the right on its part to apply the proceeds in reduction of the loan because the bank never exercised the right but permitted the assignee to use the money in its business. The opposite conclusion was reached in Chapman v. Emerson, 4 Cir., 8 F.2d 353, described by the court as a Aose case, where the proceeds of the accounts were under the control of an individual who was •an executive officer of both the lenders and the bankrupt corporation. It is, however, urged that the decisions show that assignments of open accounts are deemed valid even though the assignor collects the money and repossesses goods from defaulting customers, if the parties agree that new accounts shall be substituted for those that are closed, and this agreement is carried into effect. It will be found, however, that the determination as to whether a case falls on one or the other side of the line depends upon the extent to which the parties intended that the borrower should keep or relinquish control of the proceeds of the accounts and the extent to which the right of the assignee to control the collateral has been enforced or abandoned. See Lindsay v. Rickenbacker, 5 Cir., 116 F.2d 29; In re Pusey, Maynes, Breish Co., 3 Cir., 122 F.2d 606; In re Bernard & Katz, 2 Cir., 38 F.2d 40; Lee v. State Bank & Trust Co., 2 Cir., 38 F.2d 45; Parker v. Meyer, 4 Cir., 37 F.2d.556, 557. In the pending case it is clear that Legum’s control of the accounts assigned as collateral was substantially unrestricted and free. The occasional inspection of its ledgers and the occasional substitution of new accounts for old ones did not materially affect the situation, since each substitution merely replaced one invalid assignment by another equally defective without interfering with the free use by Legum of the moneys collected and the goods returned. Nor was the situation altered by the physical retention 'by the bank of the assigned contracts, for that circumstance could not interfere with Legum’s control over collections or repossession except in case of suit, and actually did not interfere at all with Legum’s operations. The judgment of the District Court is •reversed with directions to enter judgment setting aside the assignments of the uncollected accounts to the bank in favor of the trustee in bankruptcy and directing the bank to pay to the trustee the moneys collected on the assigned accounts since April 10, 19S0. Reversed and remanded. . The deed of trust or mortgage is void whether reservation of control in the grantor is contained on the face of the instrument, Gray v. Atlantic Trust & Deposit Co., 113 Va. 580, 75 S.E. 226; or is subsequently acquiesced or consented to in the actual performance of the arrangement, Boice v. Finance & Guaranty Corp., 127 Ya. 563, 102 S.E. 591, 10 A.L.R. 654; accord, United States v. Lankford, D.C.E.D.Va., 3 F.2d 52. “A conveyance under which any pecuniary benefit is reserved by the debtor” is fraudulent and void. Didier v. Patterson, 93 Va. 534, 538, 25 S.E. 661, 662. . Thus In re Bernard & Katz, 2 Cir., 38 F.2d 40, 44, it was held that a lender to whom accounts had been assigned as collateral was entitled to assert his lien against repossessed goods in the hands of the borrower because the evidence showed that the borrower was permitted to use the returned goods upon the condition, which was performed, that he substitute new accounts therefor, and hold the returned merchandise in trust until the substitution was made; but in Lee v. State Bank & Trust Co., 2 Cir., 38 F.2d 45, where the collateral agreement also provided that in the event of the return of merchandise it should be held by the borrower in trust for the lender, the lien was lost because in practice the returned goods were taken back without consultation with the lender and freely sold as the property of the borrower without the substitution of new accounts therefor. Similarly, assignments of accounts, where substitutions were allowed, were held valid in Lindsay v. Rickenbacker, 5 Cir., 116 F.2d 29, and In re Pusey, Maynes, Breish Co., 3 Cir., 122 F.2d 606, because the collections were held until the substitutions were made; but in Re Almond-Jones Co., D.C.Md., 13 F.2d 152, the assignments were held invalid because the assignee allowed the assignor to use the collections at will. In Mathews v. Bond, 146 Va. 158, 135 S.B. 689, upon which the bank in the instant case relies, the validity of a mortgage on personal property was upheld by sustaining a demurrer to a complaint which showed that the borrower was permitted to sell the goods pledged as security but was obliged to account each month for the proceeds of the sale and the proceeds were carefully guarded by a provision that a specific portion of the proceeds was to be paid monthly to the lender and applied to the liquidation of the debt. There was nothing to show breach of this provision.

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

Jack CORTNER and Jon Silberman, Plaintiffs-Appellants, v. Robert ISRAEL, Score Productions, Inc., American Broadcasting Music, Inc., and ABC Sports, Inc., Defendants-Appellees. No. 598, Docket 83-7789. United States Court of Appeals, Second Circuit. Argued Jan. 25, 1984. Decided April 5, 1984. Robert C. Osterberg, New York City (Abeles, Clark & Osterberg, New York City, of counsel), for plaintiffs-appellants. Michael J. Calvey, New York City (Peter M. Nelson, Coudert Bros., New York City, of counsel), for defendants-appellees American Broadcasting Music, Inc. and ABC Sports, Inc. Zissu, Stein & Mosher, New York City (James Mosher, New York City, of counsel), for defendants-appellees Robert Israel and Score Productions, Inc. Before MANSFIELD, PIERCE and WINTER, Circuit Judges. MANSFIELD, Circuit Judge: This appeal illustrates the confusion that can occur when lawyers indiscriminately use multiple contracts (some on standard forms) in the transfer of copyright interests without giving careful consideration to the consequences of their action. Plaintiffs-appellants, authors of an original musical work used as a broadcast theme by defendant ABC Sports, Inc. (ABC), appeal from an order of the Southern District of New York, Gerard L. Goettel, J., granting summary judgment dismissing their claim for copyright infringement. We affirm on the ground that plaintiffs assert only a claim for breach of contract over which, absent diversity of citizenship, we have no jurisdiction. In 1976 plaintiffs and Joe Sicurella composed an original musical piece, later called “ABC’s Monday Night Football Theme,” which they assigned to a company called “The SST Group, Inc.” (SST), apparently their own corporate vehicle. On September 1, 1976, SST simultaneously entered into three written agreements: one typewritten agreement with ABC Sports, Inc., consented to in writing by the three composers (Ex. A), a second printed agreement with the three composers, signed by American Broadcasting Music, Inc. (hereinafter referred to collectively with ABC Sports, Inc. as “ABC”) (Ex. B), and a third (also on a printed form entitled “Uniform Popular Songwriters Contract”) with the three composers, witnessed by Ron Schubert, ABC’s Director of Music and Music Publishing (Ex. C). By the third contract (Ex. C) the composers assigned to SST their rights, including copyrights, in the theme (described as a “heretofore unpublished original musical composition”) in exchange for its agreement to pay them specified royalties for the various rights granted, including small performing rights through the music rights organizations of which they were members (e.g., ASCAP or BMI), sheet music publishing rights, orchestrations, licenses for mechanical reproduction, and television broadcasting. The rights were granted to SST subject to certain specified conditions. For instance SST obligated itself to render periodic royalty statements to the composers together with remittances of royalties due. The composers reserved the right to examine SST’s books and, upon its failure to make them available, to terminate the contract. SST was granted the right to assign or transfer to another the rights assigned to it only upon the composers’ written consent and upon the assignee’s agreement to be bound by all of the obligations assumed by SST. The second of the contracts (Ex. B) purported to be an agreement between the composers and SST, also signed by ABC, in which the composers represented that they had written and composed the original musical composition “ABC’S Monday Night Football Theme” and agreed to assign all rights in it to SST. In return SST agreed to pay the composers specified royalties for piano-forte and other copies that might be published and a percentage of revenues received from the licensing of the mechanical, electrical, motion picture and TV rights to the theme. The composers were also to receive from their performing rights societies such payments as might be due them for performance rights. The composers consented to the assignment of the contract, the composition, or any copyright therein, to a third party, “subject, however, to the payment of the royalties herein specified.” The agreement was signed by the three composers, SST and ABC. Under the first contract (Ex. A) SST agreed to furnish to ABC for its Monday Night Football television program music materials composed by the three individuals in exchange for payment by ABC to SST of $9,000 for costs, expenses and services incurred by SST in composing and delivering the materials plus such payments as might be required to be made by ABC to the three composers under the attached songwriter’s contract (Ex. B above). It was further agreed that in consideration of these express obligations, ABC was granted all publishing and mechanical rights in the musical materials as its sole and exclusive property, with no obligation to broadcast them. Payments under the attached songwriter’s contract were to be made by ABC to SST for the three composers. The composers expressly consented to such a payment plan. On November 8,1976, ABC filed with the U.S. Copyright Office a claim to the copyright in the theme composed by appellants, listing them and Sicurella as the authors. From 1976 to 1980 ABC used the theme as part of its Monday Night 'Football broadcasts. In 1980 it commissioned the defendants Robert Israel (Israel) and Score Productions, Inc. (Score) to write a new, similar derivative theme for future use on the same program, which it subsequently registered with the Copyright Office in its own name, listing Israel and Score as employees for hire. Since that time ABC has broadcast the new theme on its Monday night program, discontinuing use of the theme composed by appellants. On December 1, 1982, appellants instituted the present action for infringement of their alleged interest in the 1976 copyright, claiming that the defendants Israel and Score had infringed plaintiffs’ copyright interest by copying plaintiffs’ theme and by recording and performing the replacement. The appellants joined ABC, the legal owner of the copyright in plaintiffs’ theme, as a party-defendant because it refused to join in the action as a plaintiff. The complaint seeks injunctive relief and an accounting for royalties due. The defendants filed answers denying the alleged infringement and asserting among their affirmative defenses that the court lacked jurisdiction over the subject matter. On March 3, 1983, the defendants moved for summary judgment on the ground that they had not infringed the 1976 copyright because ABC is the sole and exclusive owner of all right, title, and interest in the copyright of the musical composition created by the plaintiffs and that as such it properly employed Israel and Score as “writers for hire” to create the 1980 derivative work, of which it is also the sole owner. On August 19, 1983, Judge Goettel handed down an opinion granting summary judgment dismissing the complaint on the ground that under the contracts entered into by the parties the plaintiffs transferred their entire copyright interest to SST and ABC and the plaintiffs did not retain any beneficial or equitable interest in the copyright entitling them to sue for infringement. DISCUSSION The initial question is whether ABC acquired from appellants the entire copyright interest in the musical theme composed by them or whether they retained some beneficial interest in the copyright. If they retained no interest in the work the dismissal of their infringement claim must, of course, be affirmed. If, on the other hand, they retained some beneficial interest we must determine whether that interest is enforceable against the defendants. Appellants argue that they have a sufficient beneficial interest in the original copyright to give them standing to sue infringers and that the district court erred in ruling to the contrary. We agree. It is true that Exhibit A, the agreement between ABC and The SST Group, Inc., which was consented to in writing by the three composers, provides that the music composed by them and all rights therein shall be ABC’s “sole and exclusive property to do with as we [ABC] wish, free of any obligation other than as set forth expressly herein” (Par. 2), and expressly relieves ABC of any obligation to use or broadcast the materials composed by appellants (Par. 8). However, ABC, as assignee, simultaneously assumed SST’s obligation as publisher in the other two contracts to pay the appellants such royalties as might be earned from the exploitation of the theme. Although ABC had the right not to exploit the property, the parties clearly contemplated that it would do so, as indeed it did, resulting in the payment of royalties to the composers by the performing rights society of which they were members. Otherwise there would have been no point in negotiating lengthy contracts dealing with the royalties they might realize from the publication and performance of their work. Under these circumstances we are satisfied that their right to royalties, although contingent on ABC’s exploitation of the theme, gave them a sufficient beneficial interest in the copyright to give them standing to seek judicial relief under the copyright law against infringement, both under the 1909 Copyright Act, see Manning v. Miller Music Corp., 174 F.Supp. 192 (S.D.N.Y.1959), and under the 1976 Act, 17 U.S.C. § 501(b). When a composer assigns copyright title to a publisher in exchange for the payment of royalties, an equitable trust relationship is established between the two parties which gives the composer standing to sue for infringement of that copyright. Manning v. Miller Music Corp., supra, 174 F.Supp. at 195-97; Alexander v. Irving Trust Co., 132 F.Supp. 364, 369 (S.D.N.Y.), aff'd, 228 F.2d 221 (2d Cir.1955), cert. denied, 350 U.S. 996, 76 S.Ct. 545, 100 L.Ed. 860 (1956); Hoffman v. Santly-Joy, Inc., 51 F.Supp. 778, 778-79 (S.D.N.Y.1943). Otherwise the beneficial owner’s interest in the copyright could be diluted or lessened by a wrongdoer’s infringement. As the Supreme Court of New York, Appellate Division, First Department, noted in Nelson v. Mills Music, 278 App.Div. 311, 104 N.Y.S.2d 605 (1951), concerning the duties of the publisher towards the songwriter: “While defendant was not obligated to promote the sale of plaintiffs’ song, it was certainly obligated to exercise good faith towards plaintiffs and not use plaintiffs’ composition for the purpose of fashioning a competing song to be sold in place of plaintiffs’ song.” Id. at 607. Prior to the adoption of the 1976 Copyright Act, 17 U.S.C. §§ 101, 501(b), the beneficial owner, in order to have standing to sue the infringer, was required to join the owner of the copyright as a defendant, alleging that the latter had refused after demand to sue. See, e.g., Kriger v. MacFadden Publications, Inc., 43 F.Supp. 170 (S.D.N.Y.1941); Schellberg v. Empringham, 36 F.2d 991 (S.D.N.Y.1929). The 1976 Copyright Act merely codified the case law that had developed under the 1909 Act with respect to the beneficial owner’s standing to sue. Section 501(b) of the 1976 Act provides that “[tjhe legal or beneficial owner of an exclusive right under a copyright” is entitled to sue for infringement. 17 U.S.C. § 501(b). The legislative history accompanying the Act notes: “A ‘beneficial owner’ for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 159, reprinted in 1976 U.S. Code Cong. & Ad.News 5659, 5775. Nimmer notes that the 1976 codification of the standing of beneficial owners “follows the law established by the courts under the 1909 Act.” 3 Nimmer on Copyright § 12.02. We therefore conclude that appellants have standing to sue for infringement of their beneficial interest in the copyright, regardless whether the case is governed by the 1909 Copyright Act or the 1976 Copyright Act. It thus becomes unnecessary for us to resolve the issue of which Act applies. A more troublesome question is whether ABC and those commissioned by it to compose the replacement theme (Israel and Score) can be charged with infringement of appellants’ beneficial interest in the original copyrighted theme. Infringement is the violation of an owner’s copyright interest by a non-owner. 17 U.S.C. § 501(a). The purpose of an infringement suit is to protect the owner’s property interest. It is elementary that the lawful owner of a copyright is incapable of infringing a copyright interest that is owned by him; nor can a joint owner of a copyright sue his co-owner for infringement. Richmond v. Weiner, 353 F.2d 41, 46 (9th Cir.1965), cert. denied, 384 U.S. 928, 86 S.Ct. 1447, 16 L.Ed.2d 531 (1966); Donna v. Dodd, Mead & Co., 374 F.Supp. 429, 430 (S.D.N.Y.1974); Picture Music, Inc. v. Bourne, Inc., 314 F.Supp. 640, 646 (S.D.N.Y.1970), aff'd, 457 F.2d 1213 (2d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). The copyright owner possesses the rights to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, 17 U.S.C. § 106, and he may employ others to produce derivative works for hire, in which event, the owner, in the absence of a contrary agreement, acquires the copyright to the new material in the derivative work, 17 U.S.C. §§ 103(b), 201(b); Russell v. Price, 612 F.2d 1123, 1128 (2d Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2919, 64 L.Ed.2d 809 (1980). Moreover, when a derivative work, whether or not it falls within the types that may be the subject of a “work made for hire,” see 17 U.S.C. § 101, is commissioned by the copyright owner of the work from which it is derived and produced with that owner’s consent, the derivative composition does not infringe the preexisting composition. 1 Nimmer on Copyright § 3.06 (1983) (“the consent of the copyright owner of the pre-existing work is necessary in order to render the derivative or collective work non-infringing”). Applying these principles here, it is clear that ABC, being the owner of legal title to the underlying copyrighted theme, cannot be held liable for infringement under the Copyright Act and that defendants Israel and Score, being either employees for hire in the production of ABC’s replacement theme or persons commissioned by ABC as owner of the legal title to create a work derived from the pre-existing theme, cannot be liable for infringement. It may well be, as Judge Goettel suggested, that ABC might be liable to appellants in a state court action at common law for breach of an implied obligation not to use the musical theme in a way that would deprive appellants of their right to royalties. See, e.g., Nelson v. Mills Music, 278 App.Div. 311, 104 N.Y.S.2d 605 (1951). But we lack diversity jurisdiction over such a contract action since the plaintiffs are all New York citizens and the defendant companies are incorporated under New York law. The order and judgment of the district court are affirmed. . Although ABC mildly suggests that appellants created the 1976 theme as employees for hire, 17 U.S.C. §§ 101, 201(b), and that it is therefore presumed to be the author, see Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567 (2d Cir.1966), 1 Nimmer on Copyright § 5.03[D] (1983), we are satisfied from its copyright registration naming appellants as the authors, from its own references to them in its brief as the authors, and from its negotiation of royalty terms with them, that they are legally the authors of the theme.

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

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

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

JACKSON et al. v. McINTOSH, Comptroller of the Currency, et al. (Circuit Court of Appeals, Fifth Circuit. April 7, 1926.) No. 4770. 1. Banks and hanking @=287(4) — Receiver of national bank may be enjoined by creditors or stockholders from making disposition of assets not authorized by statute (Rev. St. § 5234 [Comp. St. § 9821]). As an application to the court by the receiver of a national bank, under Rev. St. § 5234 (Comp. St. § 9821), for an order authorizing sale of assets, is an ex parte proceeding, and the order made therein is not appealable by a creditor, a creditor or stockholder may maintain a suit for injunction to retain an illegal sale or disposition of assets by the receiver. 2. Banks and banking @=287(3) — Receiver of national bank not authorized by statute to make disposition of assets otherwise than by sale (Rev. St. § 5234 [Comp. St. § 9821]). The provision of Rev. St. § 5234 (Comp. St. § 9821), that on order of the court the receiver of a national bank “may sell all the real and personal property of the association,” does 'not authorize a disposition of such property which is not a sale. 3. Sales @=l(l) — Essentials of sale stated. A change in the beneficial ownership of the thing dealt with, and a price paid or promised, and certain or capable of being ascertained, are essential ingredients of a sale. 4. Banks and banking @=287(3) — Proposed transfer of assets of national bank by its receiver held illegal (Rev. St. § 5234 [Comp. St. §-9821]). A proposed transfer of all the assets of a national bank, with certain reservations, by its receiver to a corporation organized for the purpose, in consideration of the delivery of its debentures to the receiver for the amount due each creditor, payable, with interest, on or before five years, and secured by the assets conveyed, to be placed under control of trustees, and the agreement of the corporation to apply the proceeds of such assets, above expense of their liquidation to payment of the debentures until fully paid, but without liability of the corporation or its stockholders, is not a sale of the assets, within Rev. St. § 5234 (Oomp. St. § 9821), but is a delegation to the corporation of the receiver’s statutory duty to .collect what is owing to' the bank, and the receiver is without authority, with or without the court’s approval, to make such transfer. Appeal from the District Court of the. United States for the Northern District of Georgia; William I. Grubb, Judge. Sujt in equity by Ruth M. Jackson and ■ Anna M. Scott against J. W. McIntosh, Comptroller of the Currency, E. E. Anderson, receiver of the Georgia National Bank, of Athens, Ga., and others. Erom an order denying a preliminary injunction, complainants appeal. Reversed and remanded. C. N. Davie and Chas. S. Reid, both of Gainesville, Ga., for appellants. Howell C. Erwin, Thos. E. Green, and Thos. J. Shackelford, all of Athens, Ga., and M. C. Elliott, of Washington, D. C. (Green & Michael, Shackelford & Shackelford, and Erwin, Erwin & Nix, all of Athens, Ga., and W. S. Poage, of Washington, D. C., on the brief), for appellees. Before WALKER, BRYAN, and POSTER, Circuit Judges. WALKER, Circuit Judge. This is an appeal from a decree denying a temporary injunction, prayed for in a bill filed by the appellants, one of them being a stockholder of the Georgia National Bank, of Athens, Ga., and both of them being creditors of that bank, against the appellees, the Comptroller of the Currency and the receiver of that hank appointed by such Comptroller, who took charge of the assets of said bank for the purpose of liquidation as provided by law. The injunction prayed for was one restraining and enjoining the appellees from consummating or further attempting to consummate an alleged proposed disposition of assets of said.bank. The allegations of the bill showed the following: Prior to the filing of the bill said receiver filed in the court below an application for the approval by that court of a pretended sale to the Georgia Securities Company, a corporation organized under the laws of G'eorgia, with a capital stock of $10,000 (herein called the'corporation), of the assets of said bank, except cash on hand, stockholders’ liability, liability of- officers and directors for misfeasance or malfeasance in office, and described real estate, and the, court made an order that any and all parties in interest show cause, if any there be, at a- time and place stated, why said application should not he granted, and that notice of that order be given by publication in a named newspaper. That application showed as follows: The application has been approved by the Comptroller of the Currency. The corporation will deliver to the receiver, for the bank’s creditors, its debentures, dated November 3, 1925, for the amount due each creditor at the date of the bank’s suspension, payable on or before five years from date, with interest thereon at the rate of 4 per cent, per annum, interest payable annually. Said debentures to .be secured by deed of trust of the transferred assets, made by ’the receiver to named trustees as security for the payment of said debentures. Any available cash in the hands of the receiver at the time of the proposed sale, after reserving such sums as may be deemed necessary to pay expenses of the receivership, shall be distributed by the receiver to the bank’s creditors, the sums so paid to be credited upon the debentures upon presentation for that purpose, “and where debentures are not presented to be so credited, or where any creditor of said bank should fail or refuse to accept said debenture, then the amounts that would be payable to such creditor under said distribution shall be held by said receiver to the credit of such creditors, and paid to them upon application, and the debentures issued to such creditors shall thereupon be credited accordingly.” Said trustees in their discretion may require any action with respect to the property conveyed to them, “including the sale, transfer, assignment, or conveyance of any or all of said property or assets.” “If any question should arise with respect to the rights or liabilities of either the debenture holders, or any of them, or the company under this indenture, then the decision made by the trustees, or a majority of them, concurred in by said company, acting through its directors, or a majority of them, shall be final and conclusive. Should any such question arise, and the decision of the trustees, or a majority of them, not be concurred in by said company, then the question shall be referred by them to the judge of the judicial circuit in which is located the city of Athens, Ga., and his decision thereon shall be final and conclusive. * 3 “ The trustees shall be deemed the representatives of all debenture holders in said proceedings, in so far as necessary parties are concerned. * B 9 ” If “at any time during the administration of the assets of said Georgia Securities Company the trustees, or a majority of them, should be of the opinion that the officials in charge of said company are not pressing with due and proper diligence the collection of any or all of its assets, then said trustees may call upon said officials to proceed with greater dispatch in the collection of the same, and should said officials thereafter omit to press said collections, or convert said assets into cash for the benefit of debenture holders with due and proper diligence, in the judgment of said trustees, or a majority of them, then said trustees may demand and receive of said officials all of the assets of said company, and by themselves, or through such agents as they may employ, administer said assets for the benefit of said debenture holders in the same manner as said officials are required to do. In such an event said trustees have the right to incur and pay from said assets in their hands all lawful and proper expenses of administration, according to their best judgment and discretion.” The corporation shall receive no compensation for performance of its duties in the administration of the assets acquired from the receiver. All salaries of its officers and clerical force to be approved by said trustees. The Federal Reserve Bank of Atlanta shall have a prior lien on the transferred assets to secure a described debt owing to it by the bank, in consideration whereof it is to cancel a stated amount of the debt to it. Each debenture contained the following: “If this debenture is not presented for final payment within 12 months from the maturity of the same, then said company shall have the right to liquidate its affairs and distribute among the remaining debenture holders, or the stockholders of said company, after all other debentures are paid in full, the amount that would be otherwise held for the redemption of the same, without further liability thereon. Certain persons have subscribed the sum of ten thousand dollars for the capital stock of this company, in order to perfect a legal organization of the same. The holder of this debenture agrees that, when the assets acquired from the receiver of the Georgia National Bank are exhausted, the capital stock of said Securities Company shall be distributed ratably among those who contributed the same, and all elaims upon said capital stock are hereby waived. This debenture is accepted and held subject to all of the terms hereof, as well as the terms, provisions, and stipulations contained in said trust agreement, to the same extent as if the same had been incorporated herein.” Under section 5234 of the United States Revised Statutes (Comp. St. § 9821), a national bank receiver, “upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct.” This provision does not authorize a disposition of assets which is not a sale. -The above-mentioned application made no mention of bad or doubtful debts, but invoked the exercise of the court’s power to order a sale of real and personal property of the bank. The proposed disposition of property of the bank was challenged on the ground that it was not a sale, within the meaning of the above-quoted statute, and was not consistent with other statutory provisions with reference to the administration óf a national bank’s assets placed in the hands of a receiver. U. S. Comp. St. § 9827. In behalf of the appellees it was contended that the application for or the making of-such an administrative order as was sought could not be interfered with by injunction. It has been held that such a proceeding by a receiver is an ex parte one, and that an order made therein is not subject to be appealed from by a creditor of the bank. Fifer v. Williams (C. C. A.) 5 F.(2d) 286. The following was said in the opinion in that ease: “For an attempt to make an illegal or fraudulent sale, doubtless, a remedy by suit would lie, and from a decision in such a suit appeal could be taken to this court.” The appellants have such an interest in the bank’s assets as to be entitled to resist an illegal disposition of them. In the circumstances disclosed, no adequate legal remedy was available, and a court of equity properly could be applied to for relief; and, if a temporary injunction was improperly denied, the decree to that effect is subject to be appealed from. The effect of the proposed disposition of assets of the bank would be to transfer them to the corporation for administration, or for the sale or other disposition of them when approved by the trustees under the deed of trust. The corporation was to incur no obligation or liability to pay anything to the ■bank’s .creditors or stockholders, except that it was to pay t<? debenture holders pro rata shares of the amount realized from the transferred assets, after deducting the costs and expenses of administration. That the bank’s creditors and stockholders were not to get anything, except from the transferred assets, is clearly shown by the following provision: “The holder of this debenture agrees that, when the assets acquired from the receiver of the Georgia National Bank are exhausted, the capital stock of said Securities Company shall be distributed ratably among those who contributed the same, and all claims upon said capital stock are hereby waived.” The creation of an agency for the handling and administration of assets, and the payment of the proceeds, less costs and expenses, to those who are entitled to such assets, is not a sale of them. A change in the beneficial ownership of the thing dealt with, and a price, paid or promised, and certain or capable of being ascertained, are essential ingredients of a sale. Butler v. Thompson, 92 U. S. 412, 23 L. Ed. 684; Gockstetter v. Williams (C. C. A.) 9 F.(2d) 354. Under the proposed transaction the bank’s creditors and stockholders were to .get nothing for the transferred assets, unless what,the corporation realized from them exceeded the expenses of handling them, and the corporation was to get nothing but reimbursement for such expenses, though more 'than the amount of such expenses should be realized from those assets. The corporation was not to acquire the beneficial ownership of the transferred assets, and existing rights of such ownership were to be retained, except so far as those rights were to be destroyed or impaired by the exercise of the powers or privileges conferred on the corporation, the trustees under the deed of trust, and the debenture holders. Without a real sale of them, assets of the bank were to be surrendered by the receiver and made subject to be sold by the corporation with the approval of the trustees under the deed of trust, instead of by the receiver with the approval of a court. An above-cited statute (Comp. St. § 9827) provides for the contingency of the bank’s debts being paid without exhausting its assets. In that event the bank’s stockholders are entitled to have the remaining assets administered by an agent of their own selection. The plan in question is not consistent with due effect being given to that provision. The statutes provide a complete scheme for the winding up of the affairs of a failed national bank. A 'court cannot properly approve a violation by a receiver of statutory requirements. By Rev. St. § 5234, the “receiver, under the direction of the Comptroller, shall take possession of the books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to it, and,” etc. The effect of the proposed transaction would be a delegation to the corporation of the receiver’s duty and authority to collect what was owing to the bank, and a surrender of assets of the bank by the receiver to the corporation, which was not the buyer of such assets. The receiver was not authorized, with or without a court’s approval, so to delegate his duties or powers, or to make such a surrender of assets. We are of opinion that the injunction sought was an appropriate means of preventing an illegal disposition of assets of the bank, and that the court erred in refusing to grant that relief. As the challenged transaction was illegal, for the reasons above indicated, it is not necessary to pass on the question as to the validity of the feature of it relating to the bank’s debt to the Federal Reserve Bank of Atlanta. The decree is reversed, and the cause is remanded, for further proceedings not inconsistent with this opinion. 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 "other". Your task is to determine which of the following specific subcategories best describes the litigant.

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

PORTO RICO RY., LIGHT & POWER CO. v. COLOM, Com’r of Interior of Puerto Rico, et al. No. 3404. Circuit Court of Appeals, First Circuit. Aug. 2, 1939. Writ of Certiorari Denied Dec. 4, 1939. See 60 S.Ct. 263, 84 L.Ed.-. Carroll G. Walter, of New York City, and Henri Brown, of San Juan, P. R., for appellant. William Cattron Rigby and Robert E. Sher, both of Washington, D. C., and A. Cecil Snyder, of San Juan, P. R. (Nathan R. Margold, of Washington, D. C., and B. Fernandez Garcia, of San Juan, P. R., on the brief), for appellees. Before WILSON, Circuit Judge, and PETERS and MAHONEY, District Judges. MAHONEY, District Judge. This is an appeal from a decree of the District Court of the United States for Puerto Rico dismissing a bill of complaint brought by the Porto Rico Railway, Light and Power Company against certain officials of the Insular Government of Puerto Rico, and certain officials of the federal government. The purpose in bringing the bill of complaint was to enjoin the insular government from the construction of certain proposed or contemplated plants and lines for the distribution of electric power in the franchise territory of the appellant, and to enjoin the use of federal funds in such construction. The appellant is a Puerto Rican corporation, was organized on March IS, 1911, and under its articles of incorporation is authorized to conduct business as a public utility. The corporation is also empowered by its articles to take assignments of and operate under franchises held by certain other companies. After incorporation, the appellant acquired the properties of the Porto Rico Power and Light Company, and the San Juan Light and Transit Company. Included in the property acquired from said two companies was a franchise granted to the Porto Rico Power and Light Company by the Executive Council of Puerto Rico in 1906; a franchise granted to the Porto Rico Power and Light Company by the Executive Council of Puerto Rico in 1909; and a franchise granted to the San Juan Light and Transit Company in 1909. In addition to the three franchises acquired by assignment, the appellant has two other franchises, namely one granted to it by the Executive Council of Puerto Rico in 1911, and one granted to it by the Public Service Commission of Puerto Rico in 1927. In the record in this case, the franchise granted to the Porto Rico Power and Light Company in 1906 is designated as the 1906 franchise; the franchise granted to the Porto Rico Power and Light Company in 1909 is designated as the 1909 franchise; the franchise granted to the San Juan Light and Transit Company in 1909 is designated as the San Juan franchise; the franchise granted to the appellant in 1911 is designated as the 1911 franchise; and the franchise granted to the appellant in 1927 is designated as the Rio Blanco franchise. Under the 1906 franchise the grantee, and its successors and assigns, were granted the right to build a dam across La Plata River at Comerio Falls and to do all things necessary and proper for developing the water power of La Plata River, and generating and distributing electric energy for profit in the' City of San Juan and in certain other municipalities, including Manatí and Santa Isabel and “all municipalities to the east thereof”. Under the 1906 franchise there was reserved to Puerto Rico the right to take 260 cubic feet of water per minute from La Plata River and the grantee agreed to furnish current at reduced rates, and also undertook to keep in reserve a steam plant, with capacity sufficient at all times to properly light the streets of the municipality of San Juan. The 1909 franchise amends the 1906 franchise by authorizing the building of additional dams and power stations on La Plata River, by excluding from the franchise territory certain areas granted by the 1906 franchise, and by adding a section containing a provision similar to one contained in the “Carite Agreement”, so called, and which will be dealt with more fully later herein. The San Juan franchise gives the right to maintain and operate an electric power plant for the furnishing of electric power, light and heat to the public for profit, and to extend poles, wires, and transmission lines for that purpose. The 1911 franchise approves the acquisition by assignment of the 1906, 1909 and San Juan franchises, and reenacts and regrants the same to the appellant. Under the terms of the 1911 franchise the appellant agreed to furnish free of charge electric current to the executive mansion of Puerto Rico. Under the Rio Blanco franchise, the appellant acquired the right to construct a plant at Rio Blanco Falls on the Rio Blanco River, and to generate and distribute electricity. This franchise also required the appellant to connect'the new plant with the plants operated under the earlier franchises so that they would be interconnected. At this time the appellant released to Puerto Rico an additional amount of water from La Plata River, agreed to reduce its rates, and to relieve Puerto Rico of the obligation to deliver to appellant certain power by the Carite Agreement. The appellant also agreed to pay to Puerto Rico a royalty on power generated at the plant authorized under the Rio Blanco franchise. Under the 1906 franchise the appellant’s predecessor built a dam across La Plata River at Comerio Falls, a canal, a pipe line and power station. Under the 1909 franchise, the appellant built another dam and canal, pipe line and power station. These plants are now known as Comerio No. 1 and Comerio No. 2. These two plants are also interconnected and a transmission line runs from them to San Juan. A steam plant, as required by the 1906 franchise, has been and is maintained, with sufficient capacity to light the streets of San Juan, and the steam plant is.electrically interconnected with the Comerio plants. In accordance with the Rio Blanco franchise, the appellant has constructed below a site known as Rio Blanco Falls, dams, pipelines, pen-stock and power house, and a transmission line to San Juan. The Rio Blanco plant is electrically interconnected with other plants operated by the appellant, with the result that all the plants of the appellant constitute one system. The appellant also has 136 miles of transmission lines and 500 miles of distribution lines which extend into thirty-five different municipalities, and service is rendered to the municipalities and the inhabitants thereof. Included in the places served are San Juan, Rio Piedras and Guaynabo, and in these places the appellant serves both the municipalities themselves, and the inhabitants thereof. In these places the appellant supplies lighting for streets, and for public buildings, and power for the water works. Appellant also serves numerous buildings and dependencies of the insular government located in San Juan, Rio Piedras and Guaynabo. Large sums of money have been invested by the appellant and its predecessor in the San Juan steam plant, and in equipment for the supplying to the water works, street lights and electric service to the insular and municipal dependencies in San Juan, Rio Piedras and Guaynabo. About two years after the granting of the 1906 franchise, it became evident that the insular government intended to engage-in irrigation projects, and in the production and distribution of electric power. By legislation approved September 18, 1908, provision was made for the construction by the insular government of an irrigation system for the territory situated approximately between the River Patillas on the east and the River Portugués on the west. To effect this end, the insular government proposed to divert some of the waters of La Plata River through a tunnel in the mountains into a water shed on the south side of the island. Controversy arose as to the right of the insular government to divert water as proposed, in view of the existence of the 1906 franchise held by the appellant’s predecessor, and the right to make such diversion was challenged by the appellant’s predecessor. For the purpose of adjusting this difference, an agreement was entered into on May 28, 1909, between the appellant’s predecessor and the People of Puerto Rico, said agreement being dated nine days after the granting of the 1909 franchise. This-agreement, which has become known as the “Carite Agreement”, recites that the People of Puerto Rico proposes to create electrical energy by the use of water to be taken from the headwaters of the La Plata River, and to supply light, heat and power to places within a reasonable distance from the point known as “Carite”, and whereas differences have arisen between the parties concerning the right of the People of Puerto Rico to use the waters of said La Plata River for the purposes contemplated, and that it is to the advantage of all that the differences be settled without litigation, the agreement is entered into. Under the terms of the agreement it is provided that the People of Puerto Rico are permitted to take all the waters of the tributary of La Plata River flowing through the ward of Carite at and above the site of a proposed dam, and to divert the same through a tunnel in the mountain divide; that Porto Rico Power and Light Company renounces its rights under the 1906 franchise to supply light, heat and power to the inhabitants of certain towns and territory therein set out; that the People of Puerto Rico will exercise its right to utilize the 260 cubic feet of water per minute from the Carite branch of La Plata River above the dam to be constructed; that to compensate the Porto Rico Power and Light Company for loss resulting from taking more than 260 cubic feet of water per minute, the People of Puerto Rico agreed to deliver to Porto Rico Power and Light Company a specified amount of electrical energy and the right of the Porto Rico Power and Light Company to such power was to be preferential over other consumers of electrical energy furnished by the People of Puerto Rico; that the People of Puerto Rico would obtain the necessary easement for a right of way for a transmission line for the delivery of the power agreed to be delivered to Porto Rico Power and Light Company, and would also pay $10,000 toward the construction of such a transmission line for the delivery of such power. The agreement then contains the following paragraph: “Seventh: The People of Porto Rico will not, with the electrical power to be created at the Carite power plant, neither itself, nor through, nor by the agency of any other person, corporation, grantee or municipality, compete, within the territory of the ‘Porto Rico Power and Light Company’, as defined herein, nor with the said Caguas Electric Company; provided, always, that if when said Carite power house shall be completed and the People of Porto Rico is ready to supply light, heat and power to the inhabitants of any of the cities, towns or territory not hereby reserved to the People of Porto Rico, the said people of Porto Rico may notify the Porto Rico Power and Light Company of its intention to supply said cities, towns, or territory, and unless the Porto Rico Power and Light Company or the Caguas Electric Company, shall within three months thereafter place itself in a position to supply said cities, towns or territory, the People of Porto Rico shall have the right to do so.” After entering into the Carite Agreement, Puerto Rico constructed two diversion tunnels within the franchise territory granted by the 1906 franchise and excluded by the 1909 franchise; and in 1915 completed a power plant at the southerly end of one of said diversion tunnels, this plant being now designated as Carite Plant No. 1. This plant was enlarged by building another plant in 1922, which is designated as Carite Plant No. 2. Each of these plants utilizes and depends upon the water power created by means of one of the diversion tunnels. Since the establishment of the Carite project the government of Puerto Rico has supplied water for irrigation, as well as hydro-electric power, to customers in the southern and central part of the island outside the territory served • by the appellant. The area served by the insular government by the Carite plants is practically identical with the franchise territory granted by the 1906 franchise and excluded by the 1909 franchise. In furtherance of the insular government’s power policy, the Puerto Rico Legislature in April, 1927, passed, and the Governor approved a resolution which established an agency designated as “Utilization of the Water Resources”, and now popularly called “U. W.'R.”. The resolution declares that the adoption and execution of a plant for the development and operation by the People of Puerto Rico of such water resources as are susceptible of economic development is a matter of public necessity and convenience. It imposes a tax to provide funds for such development and makes provision for the disposition of such income as may be derived from the sale of electric power to be produced by plants to be constructed under its provisions. The resolution also provides that after the approval of projects, in the manner set out in the resolution, the Commissioner of the Interior is authorized and directed to attend to all matters connected with the construction of the works and shall appoint the personnel including the Engineer-Director of the Insular Hydroelectric Service. Under the direction of the Engineer-Director of the Insular Hydroelectric Service, a hydroelectric plant now known as Toro Negro Plant No. 1 was constructed in 1928 and 1929. This plant is also located within the franchise territory granted by the 1906 franchise and excluded by the 1909 franchise. This plant was interconnected with the Carite plant. The insular government also acquired by purchase the privately owned electric system at Ponce, this purchase having been made by the Utilization of Water Resources in April, 1937. After entering into the Carite agreement in 1909, and up to 1934, it appears that no effort was made or intention evidenced on the part of the insular government, to enter the franchise territory of the appellant until about 1934. In that year (1934) official reports of certain insular officers indicate that thought was being given to extend the government’s hydroelectric system into territory served by the appellant. This intention became apparent in 1935, for in March of that year the Legislature of Puerto Rico adopted, and the Governor approved, a joint resolution which gave plain notice of such an intent. Said joint resolution declares, among other things, that the insular government would be greatly benefited by the extension of the service and the furnishing of electric power from the plants which form the system of Utilization of Water Resources, and by utilizing this service only for public purposes of said government, as well as for its buildings within the territorial limits of the capital and of neighboring towns; that The Government of the Capital is at present obliged to spend large sums of money for lighting its streets, plazas, and avenues, and for the use of electric energy for the operation of its water works; and ■ that the extension of transmission lines and the construction of lighting lines and systems for the use of such buildings of the insular government as are within the capital or in neighboring towns, and for their utilization by the Government of the Capital are considered advisable and highly beneficial to public interests. The resolution then provides in substance: that the Commissioner of the Interior of Puerto Rico and the Engineer-Director of the Insular Hydroelectric Service in charge of the Utilization of Water Resources of Puerto Rico are authorized and directed to make connections from the transmission lines provided for, extending from the plants which form the system for the utilization of the'water resources, to the different buildings and dependencies of the insular government mentioned in the whereases of the resolution, and to all dependencies of the insular government within the limits of the Capital, Rio Piedras, and Guaynabo, as, in the opinion of the Commissioner of the Interior, must be furnished with said services ; that the Commissioner of the Interi- or of Puerto Rico and the Engineer-Director of the Insular Hydroelectric Service in charge of the Utilization of Water Resources are authorized and directed to construct immediately within the territorial limits of the Government of the Capital transmission lines with the object of supplying electric current to the Government of the Capital for the lighting of streets, avenues, plazas, and its public buildings; that the Commissioner of the Interior and the Engineer-Director in charge of the Utilization of Water Resources are authorized and directed to construct and extend the transmission and distribution lines provided for in the resolution, as well as the apparatus; and provision for payment for such extensions is made. Practically coincident with these activities on the part of the insular government, the attention of the federal government was being directed toward the island with respect to its power policy. On May 28, 1935, there was established within the federal Department of the Interior an agency designated as “Puerto Rico Reconstruction Administration”, this agency being charged with the duty of administering the expenditure in Puerto Rico of federal funds allocated under the Emergency Relief Appropriation Act of April 8, 1935. In September of the same year, allocations were made out of federal funds for certain hydro-electric projects in Puerto Rico, including funds for the construction of an additional hydro-electric plant at Carite, an additional hydro-electric plant át Toro Negro, the extension of the existing hydroelectric plant at Toro Negro, and the construction of new hydro-electric projects at Garzas and Dos Bocas. The allocations also provided for construction of transmission and distribution lines to dispose of the energy produced at the new plants. It appears that at the present time the new construction at Carite and Toro Negro has been completed and turned over to the insular government; and that the plants at Garzas and Dos Bocas are approximately half completed. The new construction at Carite and Toro Negro has been tied into the insular system. It is planned to tie into the insular system, the plants at Garzas and Dos Bocas when they are completed. At the present time there are in existence and operation under the insular government, Carite Plants Nos. 1, 2 and 3, and Toro Negro Plants 1 and 2, and No. 1 Extension, and the Ponce plant, which was purchased from the previous owner, and all are interconnected. Following the adoption of the joint resolution in March, 1935, above referred to, survey was made to determine upon a route for the transmission line into San Juan, for the purpose of complying with the terms of said joint resolution. It was determined to run the line from the Toro Negro Plant No. 1 northeasterly past Barranquitas, through Aguas Buenas, past the Insular Sanatorium at Rio Piedras and thence into San Juan. One part of this proposed line, namely that part from Toro Negro to Pala Hincado (a part of Barranquitas) has been completed and the substantial part of its costs was paid for out of allocated federal funds. Work on other parts of the route has been partly done. To prevent the completion of this proposed transmission line into San Juan and the production of electric energy for the purposes contemplated in the Joint Resolution of March, 1935, these proceedings were brought. The court below dismissed the bill, after a trial, and this appeal is from its decree of dismissal. It made certain findings of fact and certain conclusions of law. The appellant maintains that the acts complained of should be enjoined because they constitute a violation and invasion of appellant’s rights under its franchises, and under a contract between it and Puerto Rico, and that insofar as orders and enactments authorize these acts, they are in conflict with the Constitution of the United States, U.S.CA.Const. art. 1, § 10, and of the Organic Act of Puerto Rico, 48 U.S.C.A. § 737, in that they impair the obligation of appellant’s franchises and contract, deprive it of its property without due process of law, and take its property without just compensation. In support of this general proposition, the appellant first argues that one of the obligations of its franchises is that it shall not be prevented from performing them, and that as the enactments under which the appellees attempt to justify their actions prevent such performance in substantial parts, they impair the obligations of the appellant’s franchises and take the appellant’s property without due process of law and without just compensation. It is now well settled that franchises, which by their terms are not exclusive or do not grant a monopoly in the franchise territory, do not entitle the holders of such franchises to be free from competition. “The franchise to exist as a corporation, and to function as a public utility, in the absence of a specific charter contract on the subject, creates no right to be free of competition, and affords the corporation no legal cause of complaint by reason of the state’s subsequently authorizing another to enter and operate in the same field. The local franchises, while having elements of property, confer no contractual or property right to be free of competition either from individuals, other public utility corporations or the state or municipality granting the franchise.” Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 370, 83 L.Ed. 543. And in Turnpike Company v. State, 3 Wall. 210, 213, 18 L.Ed. 180, the following very clear statement is found: “The difficulty [of the argument in behalf of the turnpike company], however, which lies at the foundation of this defense is, that there is no contract in the charter of the turnpike company that prohibited the legislature from authorizing the construction of this rival railroad. No exclusive privileges had been conferred upon it, either in express terms or by necessary implication; and hence, whatever may have been the general injurious effects and consequences to the company, from the construction and operation of the rival road, they are simply misfortunes which may excite our sympathies, but are not the subject of legal redress.” And in Knoxville Water Co. v. Knoxville, 200 U.S. 22, 26 S.Ct. 224, 50 L.Ed. 353, the court held that even where a city had granted a franchise to a water company and had agreed not to grant a similar privilege to any other person or corporation, the city was not within the prohibitive clause, and was not prohibited itself from constructing a competing water works system. The doctrine of this case was affirmed by Mr. Justice Holmes in Madera Water Works v. Madera, 228 U.S. 454, 33 S.Ct. 571, 572, 57 L.Ed. 915, where he said: “So strictly are private persons confined to the letter of their express grant that a contract by a city not to grant to any person or corporation the same privileges that it had given to the plaintiff was held not to preclude the city itself from building waterworks of its own.” None of the franchises held by the appellant are exclusive by their terms, except insofar as the clause of the 1909 franchise and the Carite agreement may restrict the insular government. In fact, this court has found in the case of Gallardo v. Porto Rico Ry., Light & Power Co., 1927, 1 Cir., 18 F.2d 918, 921, as follows: “None of the plaintiff’s franchises are, in terms, exclusive; all are ‘subject to amendment, alteration or repeal’ under the Act of April 12, 1900 (31 Stat. 77). Cf. Sec. 37 of the Organic Act (39 Stat. 951 [48 U.S.C.A. § 821].” The position of the -appellant is therefore practically tantamount to saying that a government which grants it a franchise and which at the time of the granting of such franchise requires that provision must be made for the furnishing to the government of certain services, impliedly contracts that it will remain a customer of the company throughout the lifetime of the franchise. Appellant contends that the requirement made at the time of the granting of the 1906 franchise, of keeping in reserve a steam plant with capacity sufficient at all times to properly light the streets of the municipality of San Juan, implies the correlative right to light the streets of San Juan. Such a conclusion is not logically justified. In the first place, lighting public buildings and public places by electricity is at most a matter of public policy. It is perfectly conceivable that for reasons of public policy the government might determine to discontinue lighting by electricity. Science might produce some method of lighting more advantageous, or economic factors might require a curtailment of lighting, or safety requirements in certain times of stress might require elimination of lighting of public buildings and places. Appellant’s position amounts to saying that the government must continue to buy from it. Conditions might make it feasible to discontinue lighting by electricity as a public policy. If the contention of the appellant is correct, that it has a property right to light the streets of San Juan, then such a property right would continue to exist despite the fact that public necessity required that such lighting Be discontinued. If such a right was to be created by any of the franchises held by the appellant, it should have been clearly stated, and not left to inference.' In fact, it is firmly established that rights of this character cannot be left to inference. In Coosaw Mining Co. v. South Carolina, 144 U.S. 550, 562, 12 S.Ct. 689, 691, 36 L.Ed. 537, the following language is found: “The doctrine is firmly established that only that which is granted in clear and explicit terms passes by a grant of property, franchises, or privileges in which the government or the public has an interest.” Cases cited. “Statutory grants of that character are to be construed strictly in favor of the public, and whatever is not unequivocally granted is withheld. Nothing passes by mere implication.” Cases cited. “This principle, it has been said, ‘is a wise one, as it serves to defeat any purpose concealed by the skillful use of terms to accomplish something not apparent on the face of the act, and thus sanctions only open dealing with legislative bodies.’ ” And this view is again stated in Knoxville Water Co. v. Knoxville, 200 U.S. 22, 37, 26 S.Ct. 224, 229, 50 L.Ed. 353, in the following words: “It is, we think, important that the courts should adhere firmly to the salutary doctrine underlying the whole law of municipal corporations and the doctrines of the adjudged cases, that grants of special privileges affecting the general interests are to be liberally construed in favor of the public, and that no public body, charged with public duties, be held, upon mere implication or presumption, to have devested itself of its powers.” Also in Helena Water Works Co. v. Helena, 195 U.S. 383, 392, 25 S.Ct. 40, 43, 49 L.Ed. 245, this doctrine is again set out in the following words: “It is doubtless true that the erection of such a plant by the city will render the property of the water company less valuable, and perhaps, unprofitable; but if it was intended to prevent such competition, a right to do so should not have been left to argument or implication, but made certain by the terms of the contract.” Also in St. Clair County Turnpike Co. v. Illinois, 96 U.S. 63, 68, 24 L.Ed. 651, this doctrine is again set out as follows: “Grants of franchises and special privileges are always to be construed most strongly against the donee, and in favor of the public.” If it was the expectation of- the holder of the franchises involved in this case that there be a continual right to furnish services in San Juan, this should have been insisted upon at the time of receiving the franchises and should not have been left to implication. The franchises do not grant any right which precludes the insular government from withdrawing its own patronage from the appellant and serving itself. In fact, it seems that the appellant virtually admits the right of the insular government to furnish itself with power, as it states in the footnote of its brief on page 41 as follows: “If the Court meant that to sustain our proposition would deny to Puerto Rico the right to set up a dynamo in the basement of its buildings and generate and deliver electric power therein, of course that is not so. Puerto Rico can do that as freely as it can light candles in its buildings.” If the insular government has the right to light each of its buildings by power produced in the cellar of each building, or has the right to light its buildings by candles, and in using either of these methods of lighting it violates no rights of the appellant, it is difficult to see in what way it can be urged that the introduction of electricity into insular buildings from a power plant operated by the government does constitute a violation of appellant’s rights. The method may be different, but the same rule of law is applicable. Appellant, however, seeks to draw a distinction in this case by alleging that by attempting to furnish municipal power for operation of water works, and the lighting of streets, avenues and plazas, the insular government deprives the appellant of its right to furnish these services. Appellant stresses particularly its alleged rights in relation to San Juan, and says that it is a separate legal entity, a separate body politic, a juristic person, with powers of local self government, including particularly the right to light its own streets and operate its own water works from the source and in the manner in which its local governing board prescribes. It is true, no doubt, that all municipal corporations are legal entities, separate and distinct from the government creating them, but on the other hand they are subdivisions of the general government from which they derive their existence, and by which they are entrusted with certain governmental functions of a local nature. They are in a certain sense agents of the general government, created for the purpose of performing delegated functions. An examination of the pertinent parts of the Organic Act reveals that municipalities in Puerto Rico are not unlike municipal corporations under the states, and that the Legislature of Puerto Rico has the power to create, consolidate, and reorganize the municipalities so far as may be necessary, and to provide and repeal laws and ordinances therefor. Under these provisions, it seems clear that municipalities are in reality nothing more than subdivisions of the insular government. That San Juan, for instance, is not such a distinct entity in the sense now contended for by the appellant is evident when it is realized that the rights which the appellant contends it has in San Juan, it maintains, came through action of the insular government. In the exercise of governmental functions, the municipalities are in reality acting as a branch of the insular government, and the furnishing to the municipalities of the services contemplated by the March 1935 Joint Resolution is, in fact, furnishing electricity to itself, or a part of itself. The appellant further insists that the introduction of electric power into the appellant’s territory, as proposed and threatened, would constitute a breach of the noncompeting agreement embodied in the 1909 franchise and in the Carite agreement. Furnishing services to oneself does not constitute competition, as that term is generally accepted, and furnishing power as contemplated for the insular government and the municipal purposes, is in effect a case of the insular government supplying itself. But if the case were to be judged on the basis of this agreement alone, it does not appear that the acts proposed or contemplated are in violation of the noncompeting clause of the 1909 franchise, or the terms of the Carite agreement. Both the clause relied on in the 1909 franchise, and the terms of the Carite agreement, are practically identical. Clause 16 of the 1909 franchise contains the following: “Section 16. The government shall not either itself or through any person, corporation, grantee, or municipality, compete with the electric power to be created at the Carite power plant, with either the grantee of this franchise or the Caguas Electric Company. * * * ” And the Carite agreement contains the following: “Seventh: The People of Porto Rico will not, with the electrical power to be created at the Carite power plant, neither itself, nor through, nor by the agency of any other person, corporation, grantee or municipality, compete within the territory of the Porto Rico Power and Light Company as defined herein. * * * ” The said noncompeting clause of the 1909 franchise and the terms of the Carite agreement are to be construed with the same liberality in favor of the government, as is cited in the cases supra. A plain reading of these clauses leaves no doubt that the only competition prohibited is competition with the electrical power to be created at the Carite power plant. If competition by electrical power to be produced at any other plant was contemplated, it should have been so stipulated and not left to implication. In this case, it is a matter of fact that the proposed line into San Juan is to be run from the Toro Negro plant, and not from the Carite plant. While the plants are interconnected, it is clear that the flow of any power from the Carite plant into the line running into San Juan can be prevented by the adjustment of the power factor by the operation of a synchronous condenser at some point between the two plants. The Superintendent in charge of the Hydro-Electric System of Puerto Rico testified that the flow of power from the Ca-rite plant into the Toro Negro line running from the Toro Negro plant to San Juan can be prevented at any time by the operation of a synchronous condenser installed between the Carite plant and the Toro Negro line, and the District Judge so found. Since it was not shown that at present there was such a flow of power from the Carite plant to the Toro Negro system and there transmitted to San Juan in commercial quantities in violation of the Carite agreement the plaintiff has shown no ground for injunctive relief. If, at any time, it is made to appear that there is such a flow of power into San Juan over the Toro Negro line from the Carite plant in commercial quantities to the injury of the plaintiff, it may be entitled to injunctive relief. It cannot be assumed that public officials will do wrong and transmit a flow of power from the Carite plant to San Juan. Appellant also raises the point that the enactments of the Puerto Rico Legislature do not constitute authority for the contemplated acts, and that such authority can only come from the Public Service Commission of Puerto Rico. Under the rule of Tennessee Electric Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed.-, it does not seem that the appellant is now in a position to raise this question. Aside from the principle of law enumerated in that case, however, it does not seem that the position of the appellant on this point is sound. Present organic law of Puerto Rico provides that “all grants of franchises, rights, privileges, and concessions of a public or quasi-public nature shall be made by a public service commission”. Similar provisions have existed for some time past. It is pertinent to note, however, that this provision relates to the “grants” of franchises. To grant means to confer upon some one other than the person or entity which makes the grant. For a government to exercise a function itself does not constitute a grant. The right of the insular government to engage in the power business has been recognized in the case of Gallardo v. Porto Rico Railway, Light & Power Company, 1 Cir., 18 F.2d 918. Furthermore, the history of the government’s power activities indicates that at no time has the government sought consent of the Public Service Commission in connection with its operations. The Carite plants, the two Toro Negro plants and the government’s entire system have been operated without consent of the Public Service Commission. The appellant has recognized the right of the insular government to engage inasmuch as the record discloses that certain commitments to deliver power and render other services have at times been accepted from the insular government. The requirement to receive a franchise from the Public Service Commission does not apply to the insular government. Other points raised by the appellant refer to the alleged lack of authority under the federal legislation to advance funds to the insular government for the contemplated purposes, and if the federal legislation does authorize the advancement, the act, insofar as it does authorize such advancement, is unconstitutional. In view of the findings of the court on the other points raised by the appellant, this court is of the opinion that the appellant is not in a position to raise these other points. In view of the doctrines of law set out by the Supreme Court in the cases of Alabama Power Company v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374, and Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543, the appellant is not now in a position to question the legality of the acts of the federal officials, or to question the constitutionality of the legislation under which they act. The Joint Resolution of March, 1935, which has been approved and ratified by an Act of the Legislature since the commencement of these proceedings, authorizes the carrying out of the contemplated action. Carrying out the proposed or contemplated acts do not violate any rights possessed by the appellant either under the Federal Constitution or the Organic Law of Puerto Rico. Before the commencement of the trial in the District Court, counsel for appellant suggested the applicability of Section 3 of the Act of Congress of August 24, 1937, 50 Stat. 752, 28 U.S.Code, § 380a,

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?

GOODMAN v. SCHOOL DIST. NO. 1, CITY AND COUNTY OF DENVER, et al. Circuit Court of Appeals, Eighth Circuit. April 17, 1929. No. 8204. Victor Arthur Miller and Mandell Levy, both of Denver, Colo., for appellant. Cass E. Herrington, Herbert M. Munroe, and Cass M. Herrington, all of Denver, Colo., for appellees. Before VAN VALKENBURGH and COTTERAL, Circuit Judges, and SCOTT, District Judge. VAN VALKENBURGH, Circuit Judge. School district No. 1, in the city and county of Denver, state of Colorado, has inaugurated and conducts in certain of the school buildings of said school district cafeterias wherein luncheons are provided for the pupils and teachers of said schools at noontime of each school, day. Employees of the schools also are served, and parents and other occasional visitors are permitted to patronize these cafeterias. Concerning the service to pupils, the testimony is to this effect: “It is not compulsory, but a large proportion are served in proportion varying in the different schools. Some bring their lunches to school and facilities are afforded them for eating those lunches with others in the lunch room. Some bring part of their lunch and buy the rest, particularly in the districts where the poorer classes of children attend.” Classes are in session constantly throughout the school day — approximately from 9 in the forenoon until 3 in the afternoon. There is a luncheon intermission of thirty minutes at noon for the individual pupils. The districts served by these schools are large, having diameters of from two to four miles. Except in individual eases, where they go to their homes for luncheon, pupils are not permitted to leave the school buildings during the noon intermission. This rule is established for the maintenance of school discipline, necessary supervision by teacher’s, for promotion of the best social and democratic spirit among the pupils, and in the interest of their health and welfare. The food at the cafeterias is sold at moderate prices, sufficient, however, to discharge operating expenses and to provide for replacement of worn-out equipment. Profit over and above these requirements is negligible, and is not sought. No return is made in the way of interest upon the capital originally invested in the. establishment of the cafeterias, nor by way of rental for the space occupied by them in the school buildings. All of the lunchrooms are used in some degree for instruction purposes when not in use for lunches. Appellant, a citizen of California, brings her bill against the school district and members of its school board, charging that they have inaugurated a restaurant business for the purpose of buying, cooking, and vending foodstuffs, etc., for money considerations, to the pupils and teachers of the schools within the aforesaid district at noontime of each school day; that large sums of money were expended for the purchase and installation of kitchens, apparatus, and other property; that this business has been and is being conducted in buildings owned for public school purposes, and that foodstuffs have been sold to parties other than students and teachers; that expenditures have been made in various ways out of moneys derived partly from proceeds of bond issues, partly from direct taxation and partly, gs to operating expenses only, from the current proceeds of operation; that all this augments school taxation and amounts to a misuse of public property. It is charged that such conduct deprives the appellant of her property as a taxpayer without due process of law and in violation of the Fourteenth Amendment to the Constitution of the United States; further, that the institution and operation of the alleged business is beyond the scope and power of the school district as defined by the Constitution and laws of the state of Colorado. The jurisdiction of the federal court is based upon diversity of citizenship and the question raised under the Federal Constitution. The prayer was for an injunction to restrain the school district and the members of the school board from continuing the operations complained of. Upon hearing, the finding was for appellees, defendants below, and the bill was dismissed at appellant’s costs. The two grounds for the relief sought are: (1) Unconstitutionality — appellant urges that the operation of these cafeterias is a private enterprise and invokes the principle that taxation used to subserve a private mercantile purpose is violative of the true principle of democratic government, and in tins case deprives appellant, and those similarly situated, of their property without due process of law, and denies to them the equal protection of the laws guaranteed by the Fourteenth Amendment. (2) Ultra vires, to wit, lack of legal power of the school board to conduct such cafeterias under the Constitution and laws of the state of Colorado. 1. That the business does not subserve a private mercantile purpose, but is conducted for the public welfare, that is, for the benefit of the student body, is apparent from the record before us. Parents visiting the schools, for purposes of inspection, are served, if present at the noon hour; likewise employees, in the interest of economy. Occasionally a citizen of the neighborhood has not been denied admission to the lunchroom; but this practice is carefully guarded and its abuse prevented. Altogether outside patronage is so negligible that it may be disregarded. In no event can this operation of the cafeterias be viewed as a mercantile enterprise for private gain. In Laughlin v. City of Portland, 111 Me. 486, 90 A. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734, the challenge was to the establishment and maintenance of a public yard for the sale of wood, coal, and other fuel, without financial profit, to the inhabitants of a municipality. The Supremo Court of the state of Maine, in the course of its analysis, while upholding the principle that municipalities should neither invade private liberty nor encroach upon the field of private enterprise, found that, in the case before it, the element of commercial enterprise was entirely lacking; that the purpose was neither to embark in business for the sake of direct profits nor for the sake of indirect gains to purchasers through reduction of price by governmental competition. In a case involving the same subject-matter, the Supreme Court of the United States quoted approvingly from Laughlin v. City of Portland, and held that the act establishing such a public yard for the sale of fuel was “a public purpose for which taxes may be levied without violating the Fourteenth Amendment.” Jones et al. v. City of Portland, 245 U. S. 217, 38 S. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660. See also, Green et al. v. Frazier et al., 253 U. S. 233, 40 S. Ct. 499, 64 L. Ed. 878. State legislation permitting a city owning an electric plant to sell electricity to private consumers, while subjecting a competing private corporation to regulation of its rates, does not deny to that private corporation the equal protection of the laws. Springfield Gas & Electric Co. v. City of Springfield, 257 U. S. 66, 42 S. Ct. 24, 66 L. Ed. 131. “The fact that a city engaging in a commercial line of activity competes with and damages one of its inhabitants in his trade or business does not entitle him to relief against municipal action for the city owes him no immunity from competition.” Andrews v. City of South Haven, 187 Mich. 294, 153 N. W. 827, L. R. A. 1916A, 908, Ann. Cas. 1918B, 100. We think these eases decisive of the constitutional question presented. The school board does not conduct these cafeterias for profit, and in commercial competition with private restaurants and eating houses. The students are kept in during the lunch hour for reasons which intimately concern their welfare as students. In conjunction with this administrative rule, the cafeterias are necessary conveniences. Opportunity is thus afforded to the students to enjoy well-selected, well-prepared, and nourishing food, adapted to their needs. The amount charged is only for the purpose of maintaining1 these facilities and not for, commercial profit. In •many cases it is impracticable for the students to reach home and return within time for a proper enjoyment of food. The practice has for its object the physical welfare of the students, which is an important factor in their educational development. It is therefore not obnoxious to constitutional inhibitions. 2. Appellees rely for their authority in establishing these cafeterias, under facts and circumstances shown in evidence, upon section 15, art. 9, of the Colorado Constitution, which provides that the directors of boards of education “shall have control of instruction in the public schools of their respective districts.” Under such a grant, which is, in substance, common throughout the states of the Union, much latitude is indulged, provided the object of the power sought to be exercised is reasonably germane to the purposes of the grant. The question for decision in such eases is thus formulated by the Supreme Court of Indiana: “Is the rule or regulation, for the government of the pupils * * * a valid and reasonable exercise of the discretionary power conferred by law upon the governing authorities of such school corporation?” State ex rel. Andrew v. Webber et al., 108 Ind. 31-35, 8 N. E. 708, 711 (58 Am. Rep. 30). “A board of education has power to adopt such rules and by-laws for the discipline and control of the school as it deems proper, and courts will- not interfere unless there is a clear abuse of the power and discretion vested in the board.” Wilson v. Board of Education of Chicago, 233 Ill. 464, 84 N. E. 697, 15 L. R. A. (N. S.) 1136, 13 Ann. Cas. 330. The presumption is in favor of the proper exercise of power, and “to enjoin such exercise it must appear that the corporation is abusing its discretion.” Waldschmit et al. v. City of New Braunfels et al. (Tex. Civ. App.) 193 S. W. 1077. This statement respecting municipalities generally applies equally to this municipal subdivision. “A rule adopted by a school board for the government of the school will not be interfered with by the courts unless it is so unreasonable as to amount to an abuse of power.” Kinzer v. Directors of Independent School District of Marion, 129 Iowa, 441, 105 N. W. 686, 3 L. R. A. (N. S.) 496, 6 Ann. Cas. 996. Education of a child means much more than communicating to it the contents of textbooks. State ex rel. Stoltenberg v. Brown, 112 Minn. 370-372, 128 N. W. 294. “The board of education is under the duty of establishing and maintaining for the city of Dallas an efficient school system., This is the mandate of the Constitution of the state of Texas, and of the charter of the city of Dallas. In order to effectuate this high purpose, said board has the discretion to exercise any power relating to the school system of said city, not prohibited by law, which it believes will accomplish this result.” City of Dallas et al. v. Mosely et al. (Tex. Civ. App.) 286 S. W. 497, 499, 500. Coming now to the Colorado decisions, we find the following with respect to the implied powers of sueh boards: “Boards of county commissioners possess such powers as are expressly conferred upon them by the Constitution and statutes and such implied powers as are reasonably necessary to the efficient execution of • their express powers and duties.” Board of Commissioners et al. v. Davis, 27 Colo. App. 502, 150 P. 324. And the Supreme Court of Colorado in Hallett et al. v. Post Printing & Publishing Co., 68 Colo. 573, 192 P. 658, 12 A. L. R. 919, has’ said that it is undoubted that the board may provide for the physical as well as the mental education of the pupils, and may, within reasonable limits as to expense, provide means and instrumentalities to that end. The fears that this may lead to unnecessary extravagance are pronounced groundless, and it is suggested that “the people of the district can always control the whole matter by changing the board.” The question in each case is whether the implied powers sought to be exercised are reasonably necessary to the express powers and duties. Appellant cites Speyer et al. v. School District No. 1, City and County of Denver et al., 82 Colo. 534, 261 P. 859, 57 A. L. R. 203, in which it was held that: “Complaint alleging that school authorities maliciously, unlawfully, and without just cause and intending to destroy businesses of plaintiff storekeepers conspired to promulgate and enforce rule requiring pupils to eat noon lunches in school buildings, and forbid students from dealing or trading with plaintiffs, hold to state cause of action.” In this case a demurrer had been sustained in the trial court. This ruling was reversed because of the allegation of malice and absence of just cause. But the court added this significant language: “It may he conceded, so far as this demurrer is concerned, that the mere fact that a public officer bates a person and may be glad to see him suffer as a consequence of that officer’s official act is not enough to justify interference by the courts, and that if the rule is a reasonable one and is made in good faith for the good of the schools and pupils it is of no consequence that it injures plaintiffs’ enterprises or that defendants are glad that it does so; but when, as is here alleged, the officer acts in bad faith, with malice, and from no purpose or motive except to injure another, the case is different.” There is no allegation of malice nor design to injure others in this ease. On the contrary, good faith and honesty of purpose are abundantly shown. Upon both of her points, appellant relies largely upon the language in Detroit Citizens’ St. Railway v. Detroit Railway, 171 U. S. 48-54, 18 S. Ct. 732, 734 (43 L. Ed. 67), quoting from an opinion by Mr. Justice Jackson in Grand Rapids, etc., Power Co. v. Grand Rapids, etc., Co. (C. C.) 33 F. 659, as follows: “Municipal corporations possess and can exercise only snob powers as are ‘granted in express words, or those necessarily or fairly implied, in or incident to the powers expressly conferred, or those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.’ ” From this it is argued that the cafeterias are not indispensable to the express powers conferred upon the board, and their establishment is therefore not within its implied powers. The real proposition involved in Detroit Citizens’ Street Railway v. Detroit Railway, supra, was the authority of the Detroit common council to grant an exclusive franchise or privilege. The Supreme Court held that it had no power either inherent or derived from the Legislature so to do. This ease was decided in 1898, and the opinion of Mr. Justice Jackson was written in 1888. It is doubtful if the implied powers of these administrative boards would be held to be so strictly limited in view of the advances that have been made in the methods employed in our public schools to-day. The rule announced by the Supreme Court of Colorado we think more nearly applies to the situation before us. The Supreme Court of Michigan (Attorney General ex rel. Sheehan v. Board of Education of City of Detroit, 175 Mich. 438-441, 141 N. W. 574, 575 [45 L. R. A. (N. S.) 972]) has this to say: “Boards of education, supported by public sentiment and interest, now commit school districts to various measures and activities which our fathers would have regarded as revolutionary and intolerable. Measures which were once discarded, if they were ever considered in educational affairs, are demonstrably efficient in advancing the interests of education generally. Manual training schools and domestic science schools are examples of comparatively new approved departures in methods of public school training.” The Supreme Court of the United States (Village of Euclid et al. v. Ambler Realty Co., 272 U. S. 365-387, 47 S. Ct. 114, 118 [71 L. Ed. 303, 54 A. L. R. 1016]), quite recently has voiced the same sentiment: “Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a eentury ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.” It is conceded that the practice of operating cafeterias and lunchrooms in connection with public schools has been a matter of growth within the last twenty-five years, and is now almost universal, not only in Colorado, hut in the larger cities of the entire country. While it is conceivable that it may be abused and carried beyond reasonable demands, there is no evidence that this has been done in the instant case. In onr opinion, appellees have acted in good faith in their effprt to establish and maintain an efficient school system; that they have neither offended against the Constitution of the United States nor exceeded the powers conferred upon them by the laws of Colorado. It results that the decree below should be and is affirmed.

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?

Pearl BANCE, for herself and as Special Administrator of the Estate of Carl Bance, Plaintiff-Appellee, v. Trustees of the ALASKA CARPENTERS RETIREMENT PLAN, Defendant-Appellant. No. 86-4372. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 3, 1987. Decided Oct. 2,1987. As Amended on Denial of Rehearing and Rehearing En Banc Nov. 30,1987. Randall G. Simpson, Anchorage, Alaska, for defendant-appellant. William B. Schendel, Anchorage, Alaska, for plaintiff-appellee. Before GOODWIN, ANDERSON and BRUNETTI, Circuit Judges. OPINION J. BLAINE ANDERSON, Circuit Judge: Pearl Bance, widow of Carl Bance, a participant in the Alaska Carpenters Retirement Fund (Fund) brought this action in the United States District Court for the District of Alaska to obtain pension benefits and death benefits allegedly owed her husband for work performed by him under collective bargaining agreements with contributing employers to the Fund. Upon cross motions for summary judgment, the district court entered an order and judgment finding that Carl Bance was entitled to a vested pension benefit payable to Carl Bance and his widow, Pearl Bance, according to the rules and the schedule of benefits of the Carpenters Pension Fund. This timely appeal by the Fund’s trustees followed. Because we find the trustees’ interpretation of the Fund plan (plan and Fund are used interchangeably) was neither arbitrary, capricious, nor contrary to law, we reverse and remand to the district court for entry of summary judgment in favor of the Fund. I. FACTS The facts are not in dispute. Carl Bance was born November 6, 1907. He began work as a carpenter in 1946 and joined the Fairbanks Carpenters Local 1243 in 1953. Mr. Bance’s employment history with employers signatory to labor agreements with the Carpenters Local in Alaska was erratic for the years between 1953 and 1977. The Alaska Carpenters Pension Fund was adopted in 1965 prior to the passage of Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (1976) (ERISA). Mr. Bance participated in the Fund a total of four years: 1965, 1975, 1976, and 1977. In 1976, the Fund was amended and restated to conform with ERISA. In February 1984, at the age of 77, Mr. Bance applied for retirement benefits with the Fund. On April 6, 1984, the Fund denied his application for benefits for insufficient years of service and a nonnested benefit under plan language. On January 7, 1985, Mr. Bance died and Pearl Bance, his widow and Special Administrator, filed a complaint against the Fund for denial of his pension benefit. While she concedes he did not qualify for a pension under the pre-ERISA plan adopted in 1965, she argues his benefit vested pursuant to the provisions of ERISA and the 1976 plan. II. ISSUES The trustees contend that the district court erred in determining that three years of future service credit earned by Carl Bance in 1975, 1976 and 1977 was sufficient to create a vested retirement benefit under the plan rules for vesting. Akin to a determination of this issue is the further contention by the trustees that the district court erred in determining that Carl Bance reached Normal Retirement Age in 1975. III. STANDARD OF REVIEW We review a district court’s grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Where there is no genuine issue of material fact, the reviewing court must determine whether the substantive law was correctly applied. Hernandez v. Southern Nevada Culinary & Bartenders, 662 F.2d 617, 618-19 (9th Cir.1981). Here, since the facts are not in dispute, the questions on appeal are purely legal. Id. at 619. While we review de novo the district court’s grant of summary judgment, our well-established rule is that the decisions of those empowered with the administration of an employee pension trust are to be sustained unless it is arbitrary or capricious or contrary to law. Smith v. CMTA-IAM Pension Trust, 654 F.2d 650, 654 (9th Cir.1981). ERISA trustees have “wide discretion ‘short of plainly unjust measures’ to decide questions of eligibility.” Ponce v. Construction Laborers Pension Trust, 628 F.2d 537, 542 (9th Cir.1980) (quoting Sailer v. Retirement Fund Trust, 599 F.2d 913, 914 (9th Cir.1979)). Any “reasonable” interpretation of the plan terms should be upheld. Id. IV. DISCUSSION A. Plan Interpretation The district court reviewed the plan language of the Fund as amended in 1976 to determine the normal retirement date of Carl Bance. The pertinent language appears in Section 4.01: Article IV, Section 4.01, Normal Retirement Date The Normal Retirement Date for a Participant shall be the first day of the month coinciding with or immediately following his attainment of age 62 and the date he has fulfilled one of the following requirements: (a) completion of ten or more years of service, or (b) attainment of the tenth (10th) anniversary of his Participation Date provided he is an Active Participant or an Inactive Participant earning Uncovered Hours of Employment on or after his 62nd birthday. As the district court acknowledged and recognized under the plan, Mr. Bance could only obtain a normal retirement date, if at all, pursuant to (b) above. Mr. Bance attained the age of 62 on November 6, 1969. He, of course, did not complete ten or more years of service in any combination of years at any time during his participation in the Fund. Therefore, Mr. Bance could only obtain a benefit, if at all, upon his tenth anniversary of his participation date in the Fund, provided he is or was an active participant or inactive participant at or after his 62nd birthday. It is undisputed that Mr. Bance failed to work under a collective bargaining agreement with a contributing employer from 1965 to 1975. As the district court correctly noted, prior service of Mr. Bance in 1965 was forfeited due to his break in service from 1965 until 1975. Under the terms of either the pre-ERISA or ERISA plan of the Fund, those hours in 1965 were forfeited. The pertinent plan language is found in Section 8.01: Article VIII, Section 8.01, Terminations. Section 8.01 — Termination of Participation in the Plan. For purposes of Plan Years prior to January 1, 1978, a participant who is not retired or is not vested in accordance with Section 8.03 shall be deemed a terminated non-vested participant at the end of any two consecutive Plan Years in which he does not have a total of 500 Hours of Service, unless he earns 435 or more Hours of Service in the last year of such two-year period or is on a leave of absence in accordance with Section 8.02. Therefore, when Mr. Bance returned to active participation with the Fund in 1975, he returned as a “terminated, non-vested participant.” The Fund provides that upon the return of a “terminated, non-vested participant” to covered employment where his consecutive breaks in service exceed the years of service prior to the termination, he acquires a new participation date. This plan language is found in Section 2.19: Article II, Section 2.19 — Participation Date. The term “Participation Date” for an Employee or an Associate Employee, who had Contributions made on their behalf prior to January 1, 1976 shall mean the first day of the month in which he first had Contributions made on his behalf and did not subsequently suffer a termination of service prior to January 1, 1976.... If a Terminated Non-vested Participant returns to Covered Employment before his consecutive one-year Breaks in Service equal or exceed his years of Service prior to his termination, he shall be reinstated as an Active Participant, and upon the subsequent completion of a Year of Service, his “Participation Date” shall be his most recent “Participation Date” pri- or to his Break in Service. If a Terminated Non-vested Participant returns to Covered Employment after his consecutive one-year Breaks in Service equal or exceed his Years of Service pri- or to his termination, he shall be treated as a new Participant and his “Participation Date” shall be the first day of the month following his consecutive one-year Breaks in Service in which he has an Employer Contribution made or owed to the Fund on his behalf. Therefore, under the terms of the plan, Mr. Bance had acquired a new participation date of 1975 which replaced the 1965 participation date erroneously determined by the district court. Mr. Bance did not qualify for a normal retirement date at the attainment of his tenth anniversary of his participation date in 1975, but, in fact, had only just begun his participation. Since he had only three years into the Fund — the three years of service in 1975, 1976, and 1977— he would not have qualified for a vested pension benefit until he attained his tenth anniversary in 1985 as an active or inactive participant. Under the unambiguous terms of the plan, Mr. Bance did not qualify for vested benefits. Thus, we find the trustees’ interpretation of the plan to be neither arbitrary nor capricious. B. Plan Compliance to Applicable Law 1. ERISA Minimum Vesting Standards Because the trustees of the Fund cannot be shown to have acted arbitrarily or capriciously, their decision denying vested benefits to Mr. Bance must be sustained unless the plan language is found to be contrary to law. Smith v. CMTA-IAM Pension Trust, 654 F.2d at 654. ERISA, a federal regulatory scheme governing private pension plans, provides certain minimum vesting requirements that all plans must meet. The United States Supreme Court, in Alessi v. RaybestosManhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981), noted that ERISA set forth mandatory minimums by way of alternative formulas under which a qualifying plan must provide for vesting to occur. The Court stated as follows: ... ERISA specifies that this right could be hinged on a minimum length of service, but an employee reaching the minimum should not lose that right, even if he does not continue working for that particular employer until reaching retirement age. That minimum period of service can be calculated under three different formulas, two of which permit gradual vesting of percentages of the accrued benefits over time. Compare 29 U.S.C. § 1053(a)(2)(A) ... with § 1053(a)(2)(B)(C). Alessi, 451 U.S. at 513 n. 10, 101 S.Ct. at 1901 n. 10. The Fund, with 100% vesting at ten years, meets these minimum requirements set by ERISA, 29 U.S.C. § 1053(a)(2). See § 1053(a)(2)(A). However, Pearl Bance cites Duchow v. New York State Teamsters Conference Pension Retirement Fund, 691 F.2d 74 (2d Cir.1982), cert, denied, 461 U.S. 918, 103 S.Ct. 1902, 77 L.Ed.2d 289 (1983), and contends that ERISA § 1053(a) imposes an additional minimum vesting requirement. The court in Duchow determined that the language of § 1053(a) imposes “two distinct types of minimum vesting requirements, one of which [e.g., attainment of normal retirement age] is independent of the employee’s years of service.” Id. at 77. In order to resolve whether the Fund language is contrary to law, this court must construe the ERISA definition of “normal retirement age” found in 29 U.S.C. § 1002(24). ERISA defines “normal retirement age” as the earlier of— (A) The time a plan participant attains normal retirement age under the plan, or (B) The later of— (i) The time a plan participant attains age 65, or (ii) The tenth anniversary of the time a plan participant commences participation in the plan. 29 U.S.C. § 1002(24). Under the Duchow court’s interpretation of this statute, vesting cannot be delayed longer than a sixty-fifth birthday or the tenth anniversary of joining a plan, whichever occurs later, unless the plan itself provides for an earlier vesting time. Duchow, 691 F.2d at 80. The Fund in fact provides a vesting schedule earlier than the minimum requirement set by ERISA. Section 4.01 allows for normal retirement to occur either on the 62nd birthday after ten years of service or after the underlying 62nd birthday when the participant attains his tenth anniversary with active participation in the Fund. Under Section 2.19, the only restriction or condition that the Fund has placed on the tenth anniversary date is that it must occur without breaks in service which are equal to or greater than the periods of service in the Fund. In other words, if a participant cannot remain active in the Fund at least as much as he is out of the Fund and suffers a break in service in excess of time in the Fund, the participant obtains a new participation date and is treated as a new participant. As a result, the tenth anniversary date is similarly moved or delayed. Duchow would not require all pension participants to obtain vested benefits merely by participating in a pension plan once in any ten-year period. The court in Duchow, interpreting § 1002(24) to require an additional condition to be met by a plan, stated: Congress intended that an employee’s pension rights would vest, irrespective of the length of service, either on his 65th birthday or on the tenth anniversary of his joining the plan, whichever occurs later, unless the plan itself allows earlier vesting. Id. at 80. The district court misconstrued the language quoted from Duchow to require vesting of Mr. Bance’s benefits in 1975 as the tenth anniversary of Mr. Bance’s original participation in the Alaska Carpenters Pension Fund. We find that neither ERISA, 29 U.S.C. § 1002(24), § 1053(a), nor the decision in Duchow require such an incongruous result. Under the district court’s analysis, all participants who ever participated for just one year in the Fund could eventually obtain a vested benefit merely by working after age 65. We share the trustees’ concern that such an assessment, i.e., to allow vested benefits to every participant who participated at some point in the Fund in some prior decade, would create an actuarial and funding nightmare for the Fund’s administrators. It would also provide an unintended and impermissible windfall. This cannot be the result envisioned by Congress in passing minimum vesting standards for ERISA plans. We find it significant to note that the court in Duchow recognized that a claimant must continue to be a participant until the later of age 65 or until the 10th anniversary of participation and not have a significant break in service which leads to non-participation status. In Duchow, the claimant began participation in the plan on February 1, 1969. He had 8.9 years of future service in consecutive years from February 1969 to February 1977. In February 1977, at the age of 69, Duchow applied for pension benefits, but was denied. Duchow subsequently terminated his employment on May 31, 1977, only to be reemployed for two months in January and February of 1979. He then reapplied for pension benefits and was denied. The court held that Duchow had reached his tenth anniversary as a plan participant on February 2, 1979 and was entitled to the eight years of accrued benefits and did not have to obtain ten years of service. At all times from his initial participation in 1969 until application for benefits, Mr. Duchow, at normal retirement age, was a plan participant and did not have a break in service which would have resulted in his termination from the plan and a new participation date. Unlike Mr. Bance, Mr. Du-chow had consecutive years of participation with no break in service such that his participation date would have remained unchanged. The court recognized that any break in service by Mr. Duchow would have been critical in determining whether normal retirement age had been attained. 2. Applicability of Internal Revenue Code The tax code requirement for pension plans was enacted in Title II of ERISA. The authority to promulgate regulations relating to minimum participation and vesting requirements of 29 U.S.C. § 1052 and 1053 has been given to the Secretary of the Treasury. 29 U.S.C. § 1202(c). That statute prohibits the Secretary of Labor, who administers the substantive aspects of ERISA, from prescribing other regulations in respect of the participation and vesting requirements, or from applying the Treasury regulations inconsistently with the way they apply under the Internal Revenue Code. In addition, the Treasury regulations have been adopted by the Secretary of Labor for use in interpreting the minimum participation and vesting requirements. 29 C.F.R. § 2530.200a-2 (1985). “Break in Service” is defined by 26 U.S.C. § 410(a)(5)(D) which provides in pertinent part: (5) Breaks in Service.— * * * * * * (D) Nonvested Participants. In the case of a participant who does not have any nonforfeitable right to an accrued benefit derived from employer contributions, years of service with the employer or employers maintaining the plan before a break in service shall not be required to be taken into account in computing the period of service for purposes of paragraph (1) if the number of consecutive 1-year breaks in service equals or exceeds the aggregate number of such years of service before such break. Such aggregate number of years of service before such break shall be , deemed not to include any years of service not required to be taken into account under this subparagraph by reason of any prior break in service. (Emphasis added). After experiencing a break in service, the plan years prior to the break in service may be disregarded in determining commencement of participation. The effect that a break in service has on determining the participation date is set forth in 26 C.F.R. § 1.411(a) — (7)(b)(l)(ii), which provides that: For purposes of paragraph (b)(l)(ii)(B) of this section, participation commences on the first day of the first year in which the participant commenced his participation in the plan, except that years which may be disregarded under section 410(a)(5)(D) may be disregarded in determining when participation commenced. (Emphasis added). Because Mr. Bance had a break in service which exceeded the aggregate number of years of service before the break, his participation status had terminated. Thus, the district court erred in holding that he had reached normal retirement age in 1975 according to 29 U.S.C. § 1002(24) and 26 U.S.C. § 411(a)(8). Had Mr. Bance worked from 1965 through 1971, he would have remained a plan participant in 1975, because, like the claimant in Duchow, 691 F.2d at 80, he would have suffered no break in service from the plan (i.e., years of service are not outnumbered by years of consecutive breaks in service). He would have then met the requirements of “normal retirement age” according to 26 U.S.C. § 411(a)(8)(B)(ii). Unfortunately, these are not the facts of this case. Pearl Bance argues that the regulation’s use of the break in service rule to limit the attainment of normal retirement age violates the intent of Congress and the explicit language as contained in 29 U.S.C. § 1053(a). Great deference is given to the interpretation of the agency charged with administering a statute. Kwan v. Donovan, 111 F.2d 479, 480 (9th Cir.1985). Likewise, statutory provisions and regulations, whenever possible, should be construed so as to be consistent with each other. Citizens to Save Spencer County v. U.S. E.P.A., 600 F.2d 844, 870-71 (D.C. Cir.1979). We conclude that in this instance, the language of Regulation 1.411(a) —7(b)(l)(ii) is not in fact inconsistent, nor does it violate 29 U.S.C. § 1053(a). The regulation simply goes on to state that in order to qualify for a benefit at the later of age 65 or the tenth anniversary of participation in a plan, the employee at a minimum must have more years of service as compared to years of consecutive breaks in service. Plan section 2.19 would violate ERISA if it stated that an employee will be treated as a new participant with a new participation date if he returns to work at some point earlier than the time at which his breakin-service years equal or exceed his prior years of service. Of the many purposes animating those who voted for ERISA, one was clear. Congress intended to set certain standards for pension plans, but not at the expense of employees as a whole. Congress repeatedly made known its concern that a regulatory scheme that was administratively burdensome would not achieve the goal of protecting the pension rights of employees as a group. Mr. Bance simply got caught between two congressional purposes. Congress wanted to protect employees such as Bance from losing their pension benefits, but it did not want to accomplish that purpose at the expense of overburdening or bankrupting pension funds. We recognize that our conclusion is disappointing under the circumstances. However, we are bound by the terms of § 1053(a) and § 1002(24) and the regulations interpreting the ERISA statutes. V. CONCLUSION Because the language of the Carpenters Pension Fund is not contrary to law, it was error for the district court to order a vested benefit given to Mr. Bance for his three years of participation in 1975, 1976, and 1977. This court accordingly REVERSES and REMANDS to the district court for entry of summary judgment in favor of the Fund. . This employment history is reflected in the following table: 1956 - 1707 hrs. 1961 - 1741 hrs. 1966 - 0 hrs. 1957- 1011 hrs. 1962 - 624 hrs. 1967 - 0 hrs. 1958 - 1037 hrs. 1963 - 26 hrs. 1968 - 0 hrs. 1959 - 1697 hrs. 1964 - 295 hrs. 1969 - 0 hrs. 1960 - 1019 hrs. 1965 - 1071 hrs. 1970 - 0 hrs. 1971 - 0 hrs. 1976 - 1104 hrs. 1981 - 0 hrs. 1972 - 0 hrs. 1977 - 256 hrs. 1982 - 0 hrs. 1973 - 0 hrs. 1978 - 0 hrs. 1983 - 0 hrs. 1974 - 0 hrs. 1979 - 0 hrs. 1984 - 0 hrs. 1975 - 1422 hrs. 1980 - 0 hrs. . As the Duchow court stated: First, the elaborately conjunctive language of § 203(a) [29 U.S.C. § 1053(a) ], requiring that a plan ‘shall provide ... nonforfeitability] upon the attainment of normal retirement age and in addition shall satisfy the requirements of paragraph [ ] ... (2) of this subsection,’ suggests strongly that two sets of requirements are imposed. Duchow, 691 F.2d at 77. (Emphasis in original). . The court stated: Under the Plan’s definition, Duchow’s absence from Southland did not constitute a break in service, and hence all of his years of participation in the Plan should be taken into account. Id. at 80-81. Although the court, here, was adjudging the amount of pension benefits that Duchow was entitled to, we find such language indicative of the result the court would have reached had they been confronted with the issue of determining commencement of participation, along with the pertinent Treasury regulations that pertain thereto. We treat this further discussion below. . 29 U.S.C. § 1202(c) provides: (c) Extended application of regulations prescribed by Secretary of Treasury relating to minimum participation standards, minimum vesting standards, and minimum funding standards Regulations prescribed by the Secretary of the Treasury under sections 410(a), 411, and 412 of Title 26 (relating to minimum participation standards, minimum vesting standards, and minimum funding standards, respectively) shall also apply to the minimum participation, vesting, and funding standards set forth in parts 2 and 3 of subtitle B of subchapter 1 of this chapter. Except as otherwise expressly provided in this chapter, the Secretary of Labor shall not prescribe other regulations under such parts, or apply the regulations prescribed by the Secretary of the Treasury under sections 410(a), 411, 412 of Title 26 and applicable to the minimum participation, vesting, and funding standards under such parts in a manner inconsistent with the way such regulations apply under sections 410(a), 411, and 412 of Title 26. . 26 U.S.C. § 410(a)(5)(D) was amended in 1984. Even as amended, Bance would lose the participation date of January 1965. The amended statute need not, however, be considered since Bance returned to work in 1975 through 1977 when the pre-amended version was still in effect. . The Alaska Carpenters Retirement Plan parallels 26 U.S.C. § 410(a)(5)(D). The Plan provides: If a terminated Non-Vested Participant is reinstated as an Active Participant when the number of his consecutive one-year Breaks in Service equals or exceeds his Years of Service prior to his termination of participation, such Participant’s Years of Service and Credited Service prior to such Break in Service shall not be counted and he shall be treated as a new Participant. . Provisions of this paragraph are illustrated by examples. Example (3) sets forth: Example (3). [The facts are the same as in example (2).] Employee X first became a participant in Plan B on January 1, 1980 at age 53. His participation continued until December 31, 1980, when he separated from the service with no vested benefits. After incurring 5 consecutive 1 year breaks in service, Employee X again becomes an employee and a plan participant on January 1, 1986, at age 59. For purposes of section 411, Employee X’s normal retirement age under Plan B is age 69, the 10th anniversary of the date on which his year of plan participation commenced. His participation in 1980 may be disregarded under the last sentence of paragraph (b)(1) of this section. (Emphasis added). . Normal retirement age pursuant to 29 U.S.C. § 1002(24) and 26 U.S.C. § 411(a)(8) is defined as: The term “normal retirement age" means the earlier of (A) the time a plan participant attains normal retirement age under the plan, or (B) the later of— (i) the time a plan participant attains age 65, or (ii) the 10th anniversary of the time a plan participant commenced participation in the plan. (Emphasis added). . Although confronted with a different issue, the Duchow opinion, in regard to the two vesting requirements imposed under § 203(a) [29 U.S.C. § 1053(a)], expansively stated that 'the first [is] linked to age without regard to length of service and the second [is linked to length of service] without regard to age.’ Duchow, supra, 691 F.2d at 77. We, however, find that the Treasury regulations, which the Duchow court, incidently, did not confront, mandate a finding to the contrary, at least insofar as the effect a "break in service” has on determining the date participation is deemed to commence for purposes of achieving the 10th anniversary date.” . See Dennard v. Richards Group, Inc, 681 F.2d 306, 315 (5th Cir.1982) (statutory interpretation of the IRS, as the agency charged to enforce and administer portions of ERISA, is entitled to some deference). . Congress’ specific concern was that the minimum standards established by ERISA would discourage the growth of pension plans. See H.R.Rep. No. 93-533, 93d Cong., 1st Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4639; S.Rep. No. 93-127, 93d Cong., 1st Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 4838, 4844; see also 120 Cong.Rec. 29.198 (1974) (remarks of Rep. Ullman: overly burdensome requirements would be “self-defeating”), reprinted in 1974 U.S.Code Cong. & Admin.News 5167. . See, e.g., 120 Cong.Rec. at 29,210-11 (1974) (remarks of Rep. Rostenkowski); id. at 29,942 (remarks of Sen. Javits); see also ERISA § 3004(a), 29 U.S.C. § 1204(a) (mandating that agencies administering ERISA issue rules "designed to reduce duplication of effort ... and the burden of compliance____” (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 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?

NATIONAL LABOR RELATIONS BOARD v. CARPET, LINOLEUM AND RESILIENT TILE LAYERS LOCAL UNION NO. 419. No. 4744. United States Court of Appeals Tenth Circuit. May 21, 1954. Harry Irwig, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers, Frederick U. Reel, and James A. Ryan, Washington, D. C., were with him on the brief), for petitioner. Philip Hornbein, Jr., Denver, Colo. (Philip Hornbein and Roy O. Goldin, Denver, Colo., were with him on the brief), for respondent. Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges. BRATTON, Circuit Judge. This proceeding is here on petition to enforce an order of the National Labor Relations Board requiring Carpet, Linoleum, and Resilient Tile Layers, Local Union No. 419, affiliated with Brotherhood of Painters, Decorators, and Paper Hangers of America, American Federation of Labor, hereinafter referred to as the Union, to cease and desist from causing or attempting to cause Lauren Burt, Inc., of Colorado, to discharge William F. Coopersmith because he was not a member in good standing of the Union, in violation of Section 8(a)(3) of the Labor Management Relations Act, 61 Stat. 136, 29 U.S.C.A. § 141 et seq.; to cease and desist from restraining or coercing Coopersmith in the exercise of the right guaranteed by section 7 of the Act, except to the extent that such right may be affected by a valid agreement; to notify Lauren Burt, Inc., and Cooper-smith, that it had no objection to the former employing the latter; to make Coopersmith whole for any loss of pay he may have suffered as the result of the discrimination against him; to post notices; to mail a copy of such notices to the Regional Director of the Board; and to notify such Regional Director of the steps taken to comply with the order. Enforcement of the order of the Board is resisted on the ground that the Board was without jurisdiction of the proceeding because the alleged unfair labor practice did not affect commerce within the meaning of section 10(a) of the Act, supra. By way of amplification of the contention, it is argued that at the time of the alleged unfair labor practice Coopersmith was not an employee of Lauren Burt, Inc., hereinafter referred to as the Burt Company; that the work which Coopersmith was doing at the time of the alleged unfair labor practice was being done for Earl A. Dixon, Inc., hereinafter referred to as the Dixon Company; that the Dixon Company was not engaged in commerce within the intent and meaning of the Act; and that therefore the unfair labor practice charged in the complaint did not affect commerce. Evidence was adduced at the hearing before the trial examiner which tended to establish these facts. The Burt Company was engaged at Denver, Colorado, in the building material specialties and floor covering business. And due to the volume of its purchases of materials and sales of products outside of Colorado, it was engaged in commerce, within the intent and meaning of the Act. Lauren Burt, president of the Burt Company, owned a retail floor covering business in Denver. For several years, Earl A. Dixon had been employed as manager or superintendent of the floor covering division of the Burt Company. Burt sold the retail floor covering business to Dixon. For some time after the sale, operation of the retail floor covering business was continued under the trade name of Lauren Burt. Later, it was incorporated under the name of Earl A. Dixon, Inc. That corporation was not engaged in commerce. The contract under which Dixon purchased the retail floor covering business provided among other things that Dixon would oversee the completion of certain contracts which the Burt Company then had, valued at $200,000. While such contracts were being completed, Dixon remained an employee of the Burt Company and divided his time between the business of that company and that of the retail business purchased from Burt. In his capacity as superintendent of the Burt Company, Samuel A. Kaufmann hired employees, assigned employees to jobs, discharged employees, and inspected jobs. He did not hire employees for the Dixon Company. But at the request of Dixon, Kaufmann from time to time, assigned persons in the employ of the Burt Company to work on jobs of the Dixon Company. The Dixon Company paid such persons for work done on its jobs, and usually when they finished working on jobs for it they returned to work for the Burt Company. For some time, the Burt Company and the Union were parties to collective bargaining contracts. Later, the two conducted collective bargaining negotiations for wages and also for car allowances. By letter, the Union kept the Burt Company advised of wage rates for floor covering mechanics and the Burt Company put such rates into effect. The Burt Company secured its floor covering mechanics through the Union and employed only mechanics who were members of the Union. The Dixon Company had no collective bargaining contract with the Union but it did adhere to the same labor policy followed by the Burt Company. For more than two years prior to the date of the alleged unfair labor practice, Coopersmith was an employee of the Burt Company and worked with the usual regularity. He became involved in a controversy respect-ting a certain policy or certain policies of the Union and was directed by George Cooney, business agent for the Union, to appear at a meeting and apologize. Coopersmith appeared, difficulties ensued, and he was physically ejected from the meeting. At the time of these difficulties, Coopersmith was working pursuant to assignment by Kaufmann on a job for the Dixon Company. In the belief that because of the difficulties he would not be permitted to work, Cooper-smith did not report for work on the two days immediately following such difficulties; and he did not again do any work for the Burt Company. About four days after the difficulties, he reported at the office of the Burt Company and was assigned by Kaufmann to a job of the Dixon Company; and he then worked on jobs of that company for approximately ten days. On the day in question, he was working on a job almost across the street from the office of the Union. During the morning of that day, Kaufmann received a telephone call from Cooney; and talking on the telephone, Cooney told Kaufmann that Coopersmith was in bad standing with the Union and was supposed to come down and answer charges. Kaufmann went immediately to the place where Coopersmith was working and told him of the telephone message. Kaufmann further told Coop-ersmith that he could finish out the day but that he would be moved immediately to another job. And he was moved. Coopersmith did no subsequent work for the Dixon Company. On different occasions, he went to the office of the Burt Company and sought work but none was given him. While on the day of the alleged unfair labor practice Coopersmith was working on a job of the Dixon Company, he was a regular employee of the Burt Company. He had been employed by that company for a long time on a day to day basis when work was available. When he and other employees of that company were assigned to jobs of the Dixon Company and finished their work on such jobs, they returned to the Burt Company and resumed their regular work for it when work was available. We are of the view that in a sense, Coopersmith was on loan to the Dixon Company. And it is a fair inference that except for the statements which were made to Kaufmann on the telephone, he would have returned to work for the Burt Company at the conclusion of the work then being done for the Dixon Company. Since the Burt Company was engaged in commerce, within the intent and meaning of the Act, the Board had jurisdiction to entertain the proceeding and determine whether the act of the agent for the Union in making the statements to Kaufmann on the telephone constituted an unfair labor practice for which appropriate redress should be granted under the terms of the Act. Enforcement of the order of the Board is resisted on the further ground that testimony was improperly admitted concerning the telephone conversation to which reference has been made. Kaufmann testified to the substance of the conversation, including statements made by Cooney. It is urged that the identity of Cooney as one of the parties to the conversation was not established, and that in the absence of such identity there was no showing that any representative of the Union participated in the conversation. Where a face to face conversation between a witness and another person would be admissible in evidence, a like conversation between such persons over the telephone is admissible, provided the identity of the person with whom the witness spoke is satisfactorily established. Andrews v. United States, 10 Cir., 78 F.2d 274, 105 A.L.R. 322. And when substantial evidence of authentication is present, identity becomes a question of fact for the court, jury, or board, as the case may be. United States v. Bucur, 7 Cir., 194 F.2d 297. Kaufmann testified that he had been a member of the Union; that he was then presently a member of it on a withdrawal basis, meaning that he was still a member in good standing but since his job was supervising he was not allowed to work with tools; that he knew Cooney; that on a number of occasions he had talked with Cooney face to face; that he had talked with Cooney on the telephone several times prior to the crucial conversation; that in his best judgment the person with whom he had the telephone conversation in question was Cooney; and that he based such belief on the voice. That was sufficient identity of Cooney as a participant in the conversation to render competent the testimony of the witness in respect to the conversation, including the detailing of the statements made by Cooney. United States v. Easterday, 2 Cir., 57 F.2d 165, certiorari denied, 286 U.S. 564, 52 S.Ct. 646, 76 L.Ed. 1297; United States v. Bucur, supra. The order is challenged on the further ground that prejudicial error was committed by the trial examiner in admitting and considering the testimony of Coopersmith respecting certain statements made to him by Dixon. Cooper-smith testified that Dixon said Cooper-smith knew Kaufmann received a call from Cooney to take Coopersmith off the job, and that under the circumstances Dixon could not put Coopersmith to work. It is argued that the testimony was secondary hearsay. But it is unnecessary to explore that question. In the findings made by the trial examiner and later adopted by the Board, no reference was made to such testimony, and there is nothing in the record which indicates that it was taken into consideration in the making of the findings. The rule is well established that where a cause was tried before the court without a jury, it will be presumed on appeal that testimony improperly admitted was disregarded. In other words, it will be presumed on appeal that the court considered only competent evidence and disregarded that which was incompetent. Jonah v. Armstrong, 10 Cir., 52 F.2d 343; Elliott v. Gordon, 10 Cir., 70 F.2d 9; Wall v. United States, 10 Cir., 97 F.2d 672, certiorari denied, 305 U.S. 632, 59 S.Ct. 104, 83 L.Ed. 405; Hedrick v. Perry, 10 Cir., 102 F.2d 802. And that salutary rule has appropriate application in a proceeding before the National Labor Relations Board. Finally, the Union seeks to obviate enforcement of the order of the Board on the ground that the decision is not supported by substantial evidence on the record, considered as a whole. As an administrative agency clothed with power after hearing to determine whether violations of the commands of the Act have occurred, the Board may appraise the credibility of witnesses, weigh testimony, draw reasonable inferences within the limits of the inquiry from the proven facts, and determine the ultimate facts. And while it is the province and duty of this court on review to determine the substantiality of the evidence supporting a decision of the Board, ordinarily a finding will not be disturbed if it is supported by substantial evidence and is not plainly erroneous. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. No good purpose would be served by reviewing in detail the testimony given by the several witnesses, respectively. It is enough to say that a careful examination of the record leads to the conclusion that the findings of the Board are adequately sustained by substantial evidence and that they are not clearly erroneous. The order of the Board will be enforced.

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?

GELINAS v. BUFFUM. In re BARCELOUX. No. 6401. Circuit Court of Appeals, Ninth Circuit. Oct 30, 1933. Huston, Huston & Huston, of Woodland, Cal,, W. T. Belieu, of Willows, Cal., and Percy Napton, of Woodland, Cal., for appellant. Devlin & Devlin & Diepenbrock, Robt. T. Devlin, Wm. H. Devlin, A. I. Diepenbrock, and Horace B. Wulff, all of Sacramento, Cal., George R. Freeman, of Willows, Cal. (George F. Longsdorf, of Oakland, Cal., of counsel), for appellee. Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges. Rehearing denied December 11, 1933. GARRE CHT, Circuit Judge. This appeal is again before ns for consideration and determination. In a previous opinion, 52 F.(2d) 598, we reversed with'instructions'the decree of the District Court, sitting in equity, 51 F.(2d) 89. Thereafter we granted appellee’s petition for rehearing upon the authority of Twist v. Prairie Oil & Gas Co., 274 U. S. 684, 47 S. Ct. 755, 71 L. Ed. 1297. The case was reargued and submitted for determination. The instant case is companion to, and was consolidated for trial and tried with, the case of Buffum, as Trustee in Bankruptcy of Henry Joseph Bareeloux, a Bankrupt, v. Peter Barceloux Co., recently determined by the Supreme Court, 289 U. S. 237, 53 S. Ct. 539, 77 L. Ed. 1140. This proceeding was brought under paragraph 70e of the National Bankruptcy Act. . Omitting the formal parts of the complaint, it is alleged in substance that Henry Bareeloux filed a petition in voluntary bankruptcy and was adjudicated a bankrupt in February, 1927; that the complainant was appointed trustee on March 14,1927; that on August 24, 1926, Henry Bareeloux “purported to sell to the defendant,” for $2,000, 35 shares in the United Bank & Trust Company and 138 shares in the Glenn County Bank, subject to mortgages aggregating $13,800; that said shares were of the “reasonable value” of $25,772.50, and that the bankrupt’s equity therein was about $11,972.50'; that at the time of "the purported sale the bankrupt was insolvent, and contemplating the filing of a petition in bankruptcy; that said purported sale and “transfers were respectively made by said Henry Joseph Bareeloux with intent to defeat, delay, and defraud the creditors of the bankrupt and to eoncea.1 his assets from said creditors, and that defendant * * • was aware” of such intent. As a second cause of action, the complaint states further that on July 8, 1926, Henry purported to sell to the defendant a share of stock in the Peter Bareeloux Corporation; that at the time Henry was insolvent, etc.; that the purported sale was made with intent to defeat, etc., his creditors and to conceal his assets. The prayer of the complaint, as taken from the record, is as follows: “Wherefore complainant prays that he may have judgment against defendant in a sum equal to the value on said 24th day of August, 1926, of the shares of stoek mentioned in paragraph 4 of the first cause of action, less the amounts due on the mortgages to winch such shares of stock were then subject, together with interest on the amount of said difference from said 24th day of August, 1926, at the rate of 7% per annum, and also that defendant deliver to the plaintiff the certificate of title to the share of stock mentioned in the second paragraph of the second cause of action duly endorsed by defendant into the name of the plaintiff, or, if such delivery cannot be made, the plaintiff have judgment for the value of such share of stock on the date of the purported sale thereof as aforesaid, together with interest thereon from such date at the rate of seven per cent; and also for his costs of suit.” By the stipulation for consolidation, all evidence adduced at the consolidated trial of said causes was considered for every purpose as evidence in each cause, in so far as the same may be applicable or pertinent thereto. The District Court rendered judgment for the plaintiff, appellee here, and issued an interlocutory decree appointing a master to ascertain the highest aggregate value of the claimed shares in the three corporations during the period commencing August 16, 192,6, and ending at the date of filing and- approval of the order or report. The sum of $49,391.42, after the deduction of an incumbrance of $13,800, was reported by the master as being the highest value of the property involved between the dates of August 21, 1926, and May 29', 1939, the date of the master’s report. This value was arrived at through the effort of the master to follow the property after it had been transferred by the appellant and exchanged for other stocks and by placing the value of the acquired stock at the highest market value between the dates stated. On September 19,1930, the District Court entered an order confirming the master’s report, awarding judgment for the plaintiff in the sum of $49,391.42, with costs and master’s fees, and postponing any claim that Mrs. Gelinas might have against the bankrupt to those of all other creditors of the estate in so far as the money collected by the trustee in pursuance of the present judgment was concerned. The opinion and decision of the Supreme Court in the Bareeloux Case, supra, settles the following issues on this appeal: That appellee is entitled to recover for the value of the property transferred, and that appellant may participate on the same basis with other creditors in the distribution of the assets. The Supreme Court also held that the transfer to Mrs. Gelinas was part of a general scheme to hinder and delay the creditors of the bankrupt. While this is a decision upon a question of fact, we feel constrained to follow it, for the reason that it is based upon the same record now before us. The ruling of the Supreme Court, however, is not decisive as to the measure of recovery to be awarded to appellee herein. It will be noticed that in both the ease at bar and the Bareeloux Case the District Court allowed a recovery based upon the highest value of the property between the date of its acquisition by defendants and the date of the master’s report. In the Bareeloux Case the Supreme Court did not determine whether or not this method was proper or justified, but waived the point with the remark that such a ruling was not harmful, in view of the fact that the amount thus arrived at was less than the amount which would have been awarded, if complainant had been granted the relief prayed for, viz.: the value of the property on the date of the transfer, with interest at the rate of 7 per cent. . Whether this case be properly one at law or in equity, the trial court admittedly has jurisdiction of the subject-matter, and, the parties having treated it as a suit in equity, the appellate court on appeal therefrom may dispose of the ease upon its merits. Twist v. Prairie Oil & Gas Co., 274 U. S. 684, 47 S. Ct. 755, 71 L. Ed. 1297, Fidelity-Phenix Fire Insurance Companv v. Benedict Coal Corporation (C. C. A.) 64 F.(2d) 347. As to the first cause of action set forth in the complaint, plaintiff prayed to be awarded, and thus elected to limit his recovery to, the value of the property described on the 24th day of August, 19-26, being the date of the transfer of said property to the appellant, less any amounts due as incumbrances thereon, together with legal interest. Cal. Civil Code, § 3336. As to the second cause of action, the prayer of the complaint is that defendant deliver to the plaintiff the certificate of title to one share of stock in the Peter Bareeloux Company, a corporation,' duly indorsed by defendant into the name of the plaintiff, or, if sueh delivery cannot be made, that plaintiff have judgment for the value of said share of stock on the date of the purported sale thereof. As to this share of Peter Bareeloux Company stock, the evidence and reports of the master show that on the date of the alleged transfer the value of said share was $37.99; and we so find. And, if delivery thereof cannot be made, plaintiff is awarded judgment for said sum of $37.99, with interest thereon from the 24th day of August, 192-6, at legal rate. From the evidence and the reports of the master in the Bareeloux Case and in this ease, we find that the property described in the first cause of action, and acquired from the bankrupt by the appellant on the date of sale, was as follows: Value of 158 shares of Glenn County Bank stock at $70' per share, amounting to $11,060. Value of 26:¡4 shares of United Bank & Trust Company stock at $166 per share, amounting to $4,357.30. Value of 6.-5625 of rights to buy United Bank & Trust Company stock; each unit of said rights being valued at $78.50, amounting to $515.15. From the aggregate sum of $15,932.65 is to be deducted the incumbrances against the property, amounting at the time to $13,800, which leaves a balance due on plaintiff’s first cause of action of $2,132.65, for which amount and interest at the legal rate from the 24th day of August, 1926, judgment be awarded plaintiff. In accordance with the Supreme Court’s decision in the Barceloux Case, the appellant may participate on the same basis with other creditors in the distribution of the assets of the bankrupt. Accordingly the decree of the District Court, in so far as it directs the postponement of the payment of any claim which the appellant herein may have against the bankrupt’s estate, is reversed, and the District Court is directed to modify its judgment and decree in other respects to conform to this opinion. Judgment modified, and cause remanded to District Court, with instructions. "(e) The trustee may avoid any transfer by tbe bankrupt of bis property which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from tbe person to whom it was transferred, unless he was a bona fide bolder for value prior to the date of the adjudication. * * *" 30 Stat. 565, 11 USCA 5 110 (e).

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

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

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

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

PENEDO CIA NAVIERA S.A., claimant-respondent, Appellant, v. Nicholas MANIATIS, libellant, Appellee. No. 7716. United States Court of Appeals Fourth Circuit. Argued Oct. 21, 1958. Decided Jan. 5, 1959. John W. Winston, Norfolk, Va. (Seawell, Johnston, McCoy & Winston, Norfolk, Va., on brief), for appellant. Sidney H. Kelsey, Norfolk, Va. (L. David Lindauer and Babalas & Breit, Norfolk, Va., on brief), for appellee. Before SOPER, Circuit Judge, and BARKSDALE and BRYAN, District Judges. SOPER, Circuit Judge. Nicholas Maniatis, a Greek citizen employed as a seaman by Penedo Cia Na-viera S.A., on the Liberian Steamship Archipelago, filed a libel against the ship and the owner for injuries received in the course of his employment, which resulted in the loss of the tip of his right ring finger. He alleged that the injury was caused by the negligence of the officers and members of the crew of the vessel and the unseaworthiness of the vessel, and claimed damages as well as maintenance and cure. After a hearing the District Judge entered a decree in his favor for $3,857, which included $3,-500 for damages for his injury and wages, $337 for maintenance and cure, and $20 for medicine. On this appeal it is contended that the judgment was wrong on the ground that the libellant was not entitled to any recovery for damages and that even if damages were properly awarded, he could not recover both wages and maintenance for the same period of time. The pertinent facts may be summarized as follows: While the vessel was enroute from Rotterdam to Hampton Roads at Norfolk, Virginia, the crew had painted various cargo booms as they lay in cradles in horizontal positions. That part of the booms which rested in the cradles could not be reached for painting without raising the booms and this could not be done until the vessel reached port. At that time the remaining portions of the booms 'were painted by lifting them up a short distance out of the cradles, holding them suspended long enough for the painting and then raising them up all the way in preparation for the loading of cargo. The accident happened when the libel-lant was endeavoring to paint the underside of the starboard boom at No. 2 hatch. In order to raise the boom a wire, called a topping lift fall, is shackled to the far end of the boom. This wire extends to the top of the mast to which the boom is secured and passes through blocks on the mast to a cargo winch on the deck below. On the end of the winch is a round steel drum which turns when the winch is operated and is used in raising and lowering booms. The center of the drum is lower than the edges and is so built as to force the turns of the rope on the drum to slide away from the edges toward the middle thereof. In this way the turns of the wire loop are prevented from going off the edge of the drum as they build up on the sides. When it is desired to lift the boom, several turns of the wire around the drum are made by a seaman, who then holds the wire taut, while another seaman operates the winch. As the winch turns the wire falls off the drum and is coiled on the deck by the seaman holding it. When the boom is raised to its full height a chain stopper is used to take the weight off the winch and the wire fall is then secured to a cleat on the mast. On the morning of the accident the libellant and other seamen were engaged in the work of raising the cargo booms so that the hatches might be opened and the loading of the cargo begun. When the crew reached the starboard boom of the No. 2 hatch the libellant went on the bridge deck to paint the underside of the boom. One sailor operated the winch and another handled the wire fall. The latter took three or four turns of the wire around the drum and then held it tight as it began to take the strain of the weight off the boom. Shortly thereafter the accident happened in the following manner, quoting from the opinion of the District Judge [159 F.Supp. 248] : “ * * * The starboard winch at the No. 2 hatch raised the boom a matter of eight to.ten inches where it was stopped and, just as libellant was beginning his work, the boom gave way catching libellant’s finger in the cradle. In explanation of the cause of the accident it is said that, as the winch operates, a wire passes around a drum (sometimes referred to as a ‘niggerhead’) which is so constructed that the wire will build up on the sides of the drum and then drop or slide to the middle of said drum. A marine surveyor testified that there existed an approximate 25 per cent slope from the outside of the drum end to the middle thereof, and that the drum is constructed in that manner to enable the wire to slide readily toward the center of same. As the line comes off the drum it is held by a fellow crew member in a tight manner to prevent the wire from slipping on the drum, but the holder of this line may permit sufficient slack to enable the wire to slide to the center of the drum. “In this case the crew member holding the wire insists that it was held properly and tightly, but the wire slipped on the drum nevertheless. The marine surveyor concedes that the wire on the drum would not slip if properly held, unless the drum had been recently painted or rust was present on the wire or drum which could cause a slipping. In short, if properly operated and properly maintained, the wire would not slip on the drum and the accident would not have occurred. This is either ‘unseaworthiness’ as known prior to Mahnich, or ‘operating negligence’ equivalent to ‘unseaworthiness’ as stated in Machnich, or both.” It is obvious that the District Judge did not decide whether the boom fell because the ship’s equipment was defective or because the seaman in charge of the wire held it too loose as it was uncoiled from the drum. The District Judge took into consideration the consensus of counsel that the case is not governed by the statutory law of the United States but by the general maritime law which prevails in Liberia, since the vessel flew the flag of that country, but he was of the opinion that in the present state of that law as it is now understood in the United States the ship is liable whether the accident was due to unseaworthiness of the vessel or the operative negligence of a member of the crew. He relied on the decision of the Supreme Court in Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, where recovery was allowed to a seaman who was injured through the collapse of a staging caused by the parting of a piece of defective rope, which had been carelessly selected by an officer of the ship although there was sound rope on board available for the job. This decision is viewed in some quarters as showing that the doctrine of unseaworthiness has come to include not only defects in the structure of the ship and its appliances but also the negligent operation of seaworthy equipment. See Gilmore and Black, The Law of Admiralty, § 6-39. The established rule in the United States prior to legislative changes was that a seaman could recover damages for unseaworthiness but could not recover damages for the negligence of a ship’s officer or member of a crew, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Mahnich v. Southern S.S. Co., 321 U.S. 96, 99, 64 S.Ct. 455; and the courts have not as yet generally accepted the view that the obligation of seaworthiness has been so extended that a seaman may now recover damages for negligence contemporaneous with use of seaworthy appliances. See Freitas v. Pacific-Atlantic Steamship Company, 9 Cir., 218 F.2d 562; Imperial Oil Ltd. v. Drlik, 6 Cir., 234 F.2d 4; Crumady v. The Joachim Hendrik Fisser, 3 Cir., 249 F.2d 818, certiorari granted, 357 U.S. 903, 78 S.Ct. 1150, 2 L.Ed.2d 1154; cf. Grillea v. United States, 2 Cir., 232 F.2d 919; Titus v. The Santorini, 9 Cir., 258 F.2d 352, 355; Petterson v. Alaska S.S. Co., 9 Cir., 205 F.2d 475, affirmed, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. We therefore remand the case to the District Judge for definite findings of fact as to the cause of the accident. See McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. If it is found by the District Judge that the accident was caused by deficient equipment, the judgment should be reaffirmed, but if it is found that the accident was due to the negligence of a fellow member of the crew, the case should be dismissed. There was no error in the inclusion in the judgment of an allowance for wages as well as for maintenance. See Buch v. United States, D.C.S.D.N.Y., 122 F.Supp. 25; Kurtz v. United States, D.C.S.D.Texas, 121 F.Supp. 856; Deitz v. United States, D.C.E.D.Pa., 1955 A.M.C. 1132; Castro v. California Tanker Co., City Ct., 151 N.Y.S.2d 998, 1956 A.M.C. 262; Vitco v. Joncich, D.C.S.D.Cal., 130 F.Supp. 945; affirmed, 9 Cir., 234 F.2d 161; Lukmanis v. United States, 2 Cir., 208 F.2d 260; Gilmore and Black, The Law of Admiralty, § 6-9, p. 261; § 6-12, p. 268; cf. McCarthy v. American Eastern Corp., 3 Cir., 175 F.2d 727; Evans v. Schneider Transp. Co., 2 Cir., 250 F.2d 710. Reversed and remanded for further proceedings.

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

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

Daniel H. TUTTLE, Appellee, v. AMERICAN OIL COMPANY, Appellant. No. 8241. United States Court of Appeals Fourth Circuit. Argued April 17, 1961. Decided June 21, 1961. Harold A. Mouzon, Charleston, S. C. (B. Allston Moore, and Moore & Mouzon, Charleston, S. C., on brief), for appellant. Benny R. Greer and James P. Mozingo, III, Darlington, S. C. (Archie L. Chandler, Darlington, S. C., on brief), for appellee. Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges. BOREMAN, Circuit Judge. This is an appeal from a judgment in favor of the plaintiff, Daniel H. Tuttle, a seaman, against the defendant, The American Oil Company, for maintenance and cure in the amount of $16,360. It is urged that the evidence was insufficient to support a finding of Tuttle’s entitlement to maintenance and cure subsequent to June 5, 1956. While working as a member of the crew of the defendant’s ship at the Port of Aruba on July 4, 1955, Tuttle sustained injuries including broken ribs, bruises and injury to his back. He was assisting in making fast a gangway when it fell to the wharf carrying him with it. This action was commenced on March 22, 1957. Tuttle claimed the accident was due to defendant’s negligence and asked damages under the Jones Act, 46 U. S.C.A. § 688, and also for maintenance and cure. By agreement of court and counsel, the question of maintenance and cure was reserved for decision by the court on the basis of testimony to be presented at the jury trial of the claim under the Jones Act. On January 29, 1960, the jury found negligence on the part of the defendant and that plaintiff’s damages amounted to $28,333.34 but, because the accident was fifty per cent due to Tuttle’s contributory negligence, the verdict should be for only $14,166.67. The plaintiff moved for a new trial on the ground of inadequacy of the verdict, which motion was denied and he appealed to this court but the appeal was later abandoned. On December 8, 1960, the court awarded maintenance and cure computed as follows: There was evidence to show that, following the accident, Tuttle received treatment in Aruba and, upon his vessel’s return to the United States, he was a patient in the Marine Hospital in Baltimore for a short while and then in the Marine Hospital at Savannah, Georgia. The broken ribs healed without difficulty but the plaintiff was troubled by pain in his back which improved under treatment until he was discharged on September 20, 1955, as fit for duty. However, since he still complained of his back he was readmitted to the hospital on November 22, 1955, and was treated until January 5, 1956, when he was again discharged as fit for duty. The plaintiff offered the testimony of two of the doctors on the staff of the Savannah Marine Hospital, Dr. Cameron, a surgeon, and Dr. .Amburgey, an orthopedist to whom the plaintiff was referred for examination. Dr. Cameron said that Tuttle had a lumbo-sacral strain which was treated by physiotherapy and rest on a hard mattress. X-rays were made. Dr. Cameron found no indication of a disc injury nor did Dr. Amburgey. Dr. Amburgey used the term, “lumbar fasciatis,” rather than “lumbo-sacral strain.” On June 5, 1956, Tuttle was examined by Dr. Siegling, a leading orthopedist of Charleston, South Carolina. This was at the instance of the defendant shipowner acting through counsel. Dr. Siegling testified that Tuttle’s only complaint at that time appeared to be stiffness and discomfort in his back and difficulty in lifting more than fifty pounds and that, “careful physical orthopedic examination revealed no evidence of physical trouble.” There was no muscle spasm, no limp, no> atrophy and reflexes were normal. The X-rays showed an entirely normal back and spine. There was no indication of disc injury. Dr. Siegling thought Tuttle to be thoroughly fit to resume work as a seaman. In June 1957, some three months after the institution of this action and about a year after Dr. Siegling’s examination, Tuttle, still complaining of his back and legs, was sent by his own counsel to Dr. Manganiello, a neurosurgeon of Augusta, Georgia. This doctor found spasm of muscles of the low back, slight interlineal tenderness over the base of the spine, weakness in the left foot and bilateral numbness from the knee down. Dr. Manganiello determined that there must be a herniated disc, that Tuttle should have a myelogram done and that he probably needed an operation. The myelogram was not performed until October 31,1957. Dr. Manganiello concluded that it disclosed a herniated disc and recommended “that the patient have an excision of his disc with a hemilaminectomy and a fusion” which, in his opinion, would greatly reduce the existing disability. At the time of the trial and the entry of judgment for maintenance and cure, no operation had been performed. Dr. Manganiello did not see Tuttle again until January 1960, a few days before the jury trial. Except for an alleged mental degeneration, the doctor observed no further change of condition other than some slight diminution of ankle reflexes. On motion of the defendant, Tuttle was examined on January 18, 1960, by Dr. Smith, also a neurosurgeon of Augusta, Georgia. Dr. Smith found Tuttle limping, rotating his left leg out and using a cane, and complaining of pain in the back and pain and numbness in the left leg but found no symptoms indicating a herniated disc and testified that Tuttle’s behavior during the examination was “the usual pattern for an individual that is not completely acquainted with the anatomy to simulate sensory findings or numbness. It is the usual pattern for a simulation.” The plaintiff himself was not produced as a witness. There was testimony to the effect that he was mentally disturbed although it does not affirmatively appear from the record that his failure to testify was due to mental incapacity. Dr. Johnson, a psychiatrist to whom Tuttle had been referred by Dr. Manganiello for mental examination, testified that Tuttle was suffering from delusions, that he had severe paranoid reactions which condition would progress and “deteriorate into the condition that is commonly called paranoid schizophrenic.” He further testified that the plaintiff had a persecution complex, that he was mentally disturbed to the-extent that he was then totally and permanently disabled and unfit to work as a seaman. There was testimony to the effect that his mental disturbance could have resulted from his injury. Dr. Ackerman testified that he had been the Tuttle family physician for years and that he had known the plaintiff since childhood; that he knew of the back injury and had prescribed medicine to afford the plaintiff relief from pain in his back and legs since the accident. Dr. Ackerman observed a change in plaintiff’s personality and mental condition, stating “for the last few months he is gradually getting worse.” The brief of the defendant shipowner contains the following: “There appears to be no dispute between the parties as to the applicable law in this case. Tuttle, having been injured in the service of the ship, became entitled under the ancient admiralty law to maintenance and cure and wages to the end of the voyage. There is no claim that wages were not duly paid. While it does not appear in the record, it was agreed between counsel that maintenance was payable at the rate of eight dollars per day. Tuttle was entitled to such maintenance and to necessary medical and hospital treatment until he was cured of his injuries or, if a cure was not possible, until he reached maximum improvement.” We find no fault with this statement of the principles to be applied. But the defendant contends that there is a sharp disagreement as to the facts and that certain findings of the District Court are not supported by the evidence. Particularly is our attention directed to the following excerpts from the District Court’s opinion and order: “Although there is some difference of opinion as to what extent the disability now suffered by the plaintiff was due to the accident, there is an unbroken chain of evidence showing that the plaintiff injured his back and has had serious trouble with his back since the date of the accident. There is direct and positive evidence to the effect that the injury caused the trouble that plaintiff has had with his back since the time of the ' injury. * * * ****** “The record in this case is clear that the plaintiff sustained a back injury while serving as a member of the crew of the defendant’s ship in July of 1955. The record shows that he has suffered continuously from .this injury up to the present date. Competent medical authority states unequivocally that this man needs surgery to his back to correct the disability suffered as a result of this accident, and that a minimum of six months’ recuperation will be required before the plaintiff reaches maximum improvement.” The District Court’s findings of fact are not to be set aside unless clearly erroneous, and due regard is to be given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a) Federal Rules of Civil Procedure, 28 U.S.C.A. No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20. We are not convinced that the findings of the court below are clearly erroneous. True, there were conflicts in the evidence but the principal conflicts are to be found in the testimony of the witnesses who testified in person before the court and jury. There was conflicting opinion evidence as to the cause, nature and extent of Tuttle’s injuries. But it is clear that the trial judge accorded great weight to Dr. Manganiello’s testimony which the defendant chooses virtually to ignore in its attack upon the sufficiency of the evidence. In the transcript of Dr. Manganiello’s testimony we find the following: “Well, I saw him in June. And then I had him admitted in the hospital in October of ’57, at which time I did this myelogram. And when I saw this myelogram I recommended that the patient have an excision of his disc with a hemilaminectomy and a fusion.” ****** “From his history and his symptoms it was my impression that his difficulty in his back was due to the fall he had off the ship when he hurt his back at that time.” ****** “Yes, that was based on the history that he never had any back trouble before and never had any trouble with his back until after that injury. And he had been having trouble on and off ever since then with his’ back and legs.” This doctor testified that at the time of the trial and because of the condition in the plaintiff’s back, he was 100% disabled to do the work of a seaman and, further, after surgery is performed, “Well, at the end of that time he should be able to, as far as his back is concerned, if the fusion is a success and there is good union, he should be able to perform his duties of heavy work as a seaman perfectly well.” The defendant seems to contend that because Dr. Siegling, the physician to whom plaintiff was sent by the defendant for examination, did not diagnose a herniated disc on June 5, 1956, the court should disregard all the other evidence in the case and find in favor of the defendant, but Dr. Cameron testified: “That’s right. I mean he didn’t have the typical symptoms of a disc injury. He didn’t have the typical findings, physical findings of a disc injury. Discs may produce a typical symptom, but you can never say that a person has no disc, but he did not have the symptoms on physical findings.” Referring generally to herniated discs, Dr. Manganiello said: “ * * * if you resf Up for a while, for two or three weeks, they may slip back in place and you may be free of pain. And you may be able to walk around a little bit without too much difficulty. But the minute you start bending, lifting, or twisting it herniates again and then you start having trouble all over again. So, if he was to be examined during a remission when he was free of the pain and the thing had slipped back in he might pass the physical if he didn’t give a history of back trouble. But the minute he started doing any heavy work or lifting he would experience trouble again.” Dr. Manganiello explained in detail the procedure involved in performing the myelogram upon which he based his diagnosis of a herniated disc. There was no dispute in the testimony that if the plaintiff were to undergo surgery, he would be further disabled for a period of at least six months and that such surgery would cost approximately $1,000. The District Court’s judgment for maintenance and cure included a six months’ period of disability in the future and the cost of the hospitalization and surgery. The court concluded that at the end of the recuperative period the plaintiff would reach maximum improvement. Defendant shipowner further contends that there is nothing in the record concerning plaintiff’s physical condition, his ability to work or his need of maintenance and particularly during the period between October 1957 and January 1960. Dr. Ackerman, the family physician, testified that he had been prescribing medicine to relieve pain in the plaintiff’s back since the accident. In Dr. Johnson’s testimony he recited the substance of his conversation with the plaintiff wherein the plaintiff told him of the accident, the injury to his back and his condition since that time. This testimony was in part as follows: “ * * * Following this he returned to the Marine Hospital about November of ’55, was given more physiotherapy for approximately forty-six days, was discharged, said that he was told to ship out; said he didn’t feel that he was in shape to. He tried to do some interior decorating but said he was unable to do this. He didn’t feel that he was able to lift more than about fifty pounds at that time. After being discharged from the Marine Hospital in Savannah he was told to report back to that hospital in 90 days, and was told at that time that his physical examination was negative; that he should forget these aches, complaints that he had and go on back to work. However, he didn’t feel that he was able to return to work. And about this time, or three years ago or a little longer, he wasn’t sure of the exact date, he started developing severe pain in his legs where he said his legs would feel like they were getting paralyzed, would draw up. And he would have to call his wife or someone to come and straighten his legs out. This would be followed by severe swelling, nausea, and various other anxiety type complaints, such as some shortness of breath, palpitations, and some difficulty in sleeping at night and other anxiety type symptoms.” The evidence disclosed plaintiff’s hospitalization on two occasions following the accident of which the defendant had notice. In June of 1956 defendant sent plaintiff to Dr. Siegling for examination, which fact supports the inference that the defendant knew of plaintiff’s continued complaints concerning his injury. In addition, in March 1957 defendant was served with a complaint wherein plaintiff alleged that he had been injured and demanded payment for his injuries as well as maintenance and cure. The pending proceedings constituted notice of plaintiff’s continuing need for maintenance and cure. Complaint is further made that, in connection with the computation of the award for maintenance and cure, the court referred to a deposition of the plaintiff and found therefrom that Tuttle had “received no maintenance since January 1956,” that he had “received income for a maximum of eleven days since 1956,” that he “has done no other work since the accident and has received no other income.” It is contended that this deposition was not a part of the record and was not properly before the court. We are completely unenlightened concerning the alleged improper reference by the court to the deposition of Tuttle. We find no such deposition in the record before us nor is it specifically mentioned in the designation of the record on appeal. However, there is no suggestion that the entire record below was brought here. Plaintiff’s counsel assert that this deposition was presented “to the court as evidence.” Earlier mention has been made of the fact that the plaintiff took an appeal to this court based upon inadequacy of the verdict and judgment resulting from the jury trial, which appeal was abandoned. In the designation by the defendant of the record in this present appeal, the following appears as the first item: “The record in the first of the pending appeals now before the Circuit Court of Appeals.” Included among the designations on the first appeal is a “Statement of Relevant Docket Entries” whereon, as item 10, appears the following entry: “Deposition of Daniel H. Tuttle, filed July 22, 1959.” In the same list of docket entries there are references to depositions of Lurie P. Poston, Jr., Dr. Waldon M. Sennott, Miss Layóla Voelker, Mrs. Margaret E. Walker, Dr. D. S. Cameron and Dr. T. A. Amburgey, “filed” on various dates. The designation of the record on the first appeal refers to the depositions of Dr. Cameron and Dr. Amfcurgey and these depositions are before us. But, before us is also the deposition of Margaret E. Walker which was not included in the designation. The depositions of no other persons appearing in the statement of relevant docket entries are here nor is any explanation offered concerning their absence. In this confused state of the record we are not prepared to hold that the judge acted improperly in referring to plaintiff’s deposition which is shown to have been filed in the case. It has been suggested that the $1,000 included in the court’s award as the approximate cost of the recommended surgical operation might properly be deducted because it may have been considered and included by the jury as an element of damage in the trial under the Jones Act. This, however, was a necessary item of expense if the plaintiff was to be cured and attain maximum improvement in his condition. An examination of the judge’s charge to the jury reveals that the jury was not instructed or authorized to consider this item in arriving at its verdict. The judge told the jury to consider as elements of damage only the following: Loss of wages from the time of injury to the time of trial, and any such loss reasonably to be anticipated in the future; pain and suffering; disfigurement as a result of the injury explained by the judge to mean “any limp or any other thing which would change the appearance of the plaintiff to the public.” Each of the parties directs our attention to the cases of Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993, and Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850. In Calmar the Court denied recovery of a lump sum awarded by the lower court as maintenance and cure for life to a seaman who fell ill of an incurable disease which was not directly connected with but which developed while in the employment of the shipowner, and at 303 U.S. 531, 532, 58 S.Ct. 655, stated: “The seaman’s recovery must therefore be measured in each case by the reasonable cost of that maintenance and cure to which he is entitled at the time of trial, including, in the discretion of the court, such amounts as may be needful in the immediate future for the maintenance and cure of a kind and for a period which can be definitely ascertained.” In Farrell the Court held that the liability for maintenance and cure extends only to the time when the maximum cure possible has been effected. There the seaman had overstayed his leave and, in rain and darkness while attempting to make his way to the ship, became lost and fell into a drydock about a mile from where his ship was moored. At 336 U.S. 515, 516, 69 S.Ct. 707, 709, the Court said: “ * * * In Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 932, 87 L.Ed. 1107, the Court pointed out that logically and historically the duty of maintenance and cure derives from a seaman’s dependence on his ship, not from his individual desserts, and arises from his disability, not from anyone’s fault. * * * Aside from gross misconduct or insubordination, what the seaman is doing and why and how he sustains injury does not affect his right to maintenance and cure, however decisive it may be as to claims for indemnity or for damages for negligence.” The Calmar and Farrell cases are cited and their principles applied in Brown v. Dravo Corporation, 3 Cir., 1958, 258 F.2d 704, 708-709, certiorari denied 1959, 359 U.S. 960, 79 S.Ct. 800, 3 L.Ed.2d 767. There the court stated: “The respondent contends further that a shipowner fulfills his obligation of maintenance and cure by supplying the seaman with a hospital ticket, which the respondent did in October 1947, and therefore, it cannot be chargeable for maintenance and cure because of the continuing leg condition. Furthermore, says the respondent, it is unconscionable to charge it with more than nine years’ maintenance for a condition which was never reported by the seaman and which it did not know existed during that time. And its final argument is that the obligation to provide maintenance and cure exists only for the duration of the voyage and a reasonable time thereafter, relying for this proposition on Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993, and Farrell v. United States, 1949, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850. The answer to these arguments is that the district court found that respondent was sufficiently apprised of libellant’s condition when the suits were filed on March 15, 1948 and that the pending proceedings constituted notice of libellant’s continuing need for maintenance and cure. The duty to provide maintenance and cure did not stop with the libellant’s severance from employment, Murphy v. American Barge Line Co., 3 Cir. 1948, 169 F.2d 61, 64, certiorari denied 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406, for it is the duty of the ship to maintain and care for the seaman after the end of the voyage until he is so far cured as possible. Farrell v. United States, 1949, 336 U.S. 511, 518, 69 S.Ct. 707, 93 L.Ed. 850. The duty to provide maintenance and cure thus continues until the time when the maximum cure possible has been effected, and the district court did not award the libellant more than this. We, therefore, find no error in its judgment in this regard.” The interesting case of Scott v. Lykes Bros. S. S. Co., D.C.E.D.La.1957, 152 F.Supp. 104, applies the principle that the seaman is entitled to maintenance during the period of rehabilitation and until maximum cure is effected. Being of the opinion that the evidence is sufficient to sustain the award for maintenance and cure, we affirm. Affirmed. . Brown v. Dravo Corporation, 3 Cir., 1958, 258 F.2d 704, 709, certiorari denied 1959, 359 U.S. 960, 79 S.Ct. 800, 3 L.Ed.2d 767.

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

THE FLORINDA, and three other cases. Circuit Court of Appeals, Second Circuit. March 4, 1929. No. 187. Karlin, Woolsey, Campbell, Hiekox & Keating, of New York City (L. De Grove Potter, of New. York City, of counsel), for appellant. Joffe & Joffe, of New York City (Joseph Joffe, of New York City, of counsel), for appellees. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. Certiorarl denied 49 S. Ct. 514, 73 L. Ed. —. MANTON, Circuit Judge. Upon a finding of unseaworthiness of the ocean carrier’s vessel and negligence in the stowage of a cargo of onions, the appellees recovered damages below. The vessel Florinda had a net tonnage of 1,300 tons and was classed 100 A-l in Lloyds, was about 290 feet long, 42 feet wide, and 20 feet 7 inches deep, having two decks, three cargo holds, and five hatches. The onions were packed in crates and placed in No. 2 lower hold over bags of almonds. An air spaee of about one foot was left between the ’tween-decks and the top of the stow, and three air shafts of about one foot in width running athwartships and spaced about equidistant fore and aft were left in the stow. Cases of onions were stowed in the No. 2 ’tween-decks in the after part over barrels of grapes, stowed two or three tiers high in the forward part of the hold. There were vacant spaces left in the square of the hatch and the forward part of the hold, and a spaee of about one foot above the stow. Two air shafts were left in the stow, running athwartships at about the forward and after end of the hatch opening. No. 3 ’tween-decks was loaded in the same manner, with vacant spaee in the square of the hatch and similar air shafts at the forward and after ends of the two hatches in this compartment. No onions were loaded in. the forward part of the hold. In No 3, the onions were loaded in approximately two-thirds of the compartment- over tins of canned goods, and some almonds stowed above them, with an. air shaft running from the bottom of the stow to the after end of the hatch. There were also air spaces between the stow-and the sides of the ship, provided by permanent battens, and free spaee of about one foot left between the stow of the onions and the bulkheads in the various compartments. The cases were piled up pyramid fashion to prevent falling out of the stow. The No. 2 hold extends from the bulkhead to the engine room bulkhead, and has two hatches, equipped with four telescopic ventilators; No. 3 extends from the machinery space to the after end of the vessel, with two 'hatches equipped with six ventilators. The ventilators were on the main deck and were from 16 to 18 inches in diameter; ’tween-decks they were 9 inches in diameter. There was no finding below that the vessel or the equipment was in any way structurally defective or that she was not well supplied with ventilators. Before the onions were loaded in the vessel, the.holds were swept clean; sawdust and dunnage were laid. The vessel had permanent side battens, which prevented the cargo from coming in contact with the sides of the ship, and also provided air spaee for the ventilation between the side of the ship and the stow. She was not fully loaded, having a freeboard of 6 feet, 9% inches; her assigned freeboard was 3 feet, 9% inches. Leaving Valencia on October 25, 1923, she arrived in New York November 13, 1923. During the voyage she experienced heavy weather, and as a result it was necessary to keep the hatches battened down and covered with tarpaulins much of the time. During part of seven days, the weather permitting, the officers opened some of the hatches. During the entire voyage, the ventilators were left open and kept properly trimmed. There were no leaks in the vessel. When she arrived in port, in discharging the cases of onions, it was observed that some were stained with grape juice, and a part were found to be diseased and condemned by the inspector of the Board of Health. The bills of lading contained a provision exempting the vessel from leakage, breakage, heat, decay and deterioration of the onions, but the appellees base their right to recover upon the claim of unseaworthiness of the vessel and negligence in stowage. The theory of unseaworthiness of the vessel seems to be that she was not equipped with sufficient ventilators and that she did not have enough freeboard, so that the hatches might be opened during the voyage. There is ample testimony in the record that, dining the North Atlantic voyage at this season of the year, even a larger vessel would expect to have her decks awash and be unable to open her hatches at times. The freeboard of the vessel was in excess of Lloyds’ requirements for a winter voyage on the North Atlantic. It would increase during the voyage as coal, water, and supplies were consumed. The credible testimony clearly establishes that she was seaworthy and fit for the carriage of the cargo as undertaken. Nor did she suffer undue delay in making the voyage. The distance from Valencia to New York on the southern route is approximately 4,021 miles. Her average speed was from 9 to 10 knots, and she occupied 18 days and 15 hours with adverse weather conditions. It is now well recognized that, where a loss occurs from an excepted peril, the ship is prima facie excused, and can only he held liable on affirmative proof of some negligence on the ship’s part, which is an efficient cause of the loss, such as'unseaworthiness. The Isla de Panay (C. C. A.) 292 F. 723; The Timor (C. C. A.) 67 F. 356; The St. Quentin (C. C. A.) 162 F. 883. There is some evidence that during the voyage it was found that the cargo had shifted in No. 2 ’tween-decks. Some 20 to 40 cases fell down. When this condition was discovered, a carpenter was sent for, who re-coopered the broken eases and put them back in the pile. These may have shifted in the pitching of the vessel. But the testimony is that she did not pitch as much as she rolled. There is no proof that any of the air channels placed in the stow were filled with cargo or destroyed as such. At the end of the voyage, the air shafts were found to be in place in the stow. There is no evidence of their being blocked by the shifting of the cargo. The damage to the onions seems to have been due to decay. They were soft at the ends. There was little breakage of the cargo. The master, chief officer, assistant superintendent of the pier, together with disinterested witnesses, all testified with convincing frankness as to the ventilating spaces. One of the appellees said he looked out through one of the hatchways, and there was not sufficient space. But the weight of the testimony on this issue is strongly with the appellant. That the ventilators were sufficient is amply proved by the word of capable expert engineers and surveyors. The vessel is shown to have carried at least ten other cargoes of onions from Spain to the United States, and that, while there is the normal loss, due to decay, of from 3 to 10 per cent., still, on the last trip of the vessel, there was but 1 per cent, damage. Since the bills of lading were silent as to the condition of the onions when shipped, it was incumbent upon the appellees to show they were in good condition when shipped. The Isla de Panay, 267 U. S. 260, 45 S. Ct. 269, 69 L. Ed. 603; The Goyaz (C. C. A.) 3 F.(2d) 553. The vessel’s officers said they merely saw the onions in cases as they were placed aboard. Appellees’ representative inspected only the Schnell shipment, and such inspection consisted of looking at the crates as they were piled ready for shipment. To be sure, he said, by looking at them he could say they were in good condition. A bacteriologist, who had made experiments and studies in connection with the disease of onions and fruits, testified that he examined samples of the decayed and also the apparently sound onions, finding that they were both affected with soft slimy rot and neck rot, and the only cause of such disease was bacterial or fungi infection. Onions so affected do not show any external evidence of that condition in the earlier stages of the disease.- Others who had experience with onions said they» found oftentimes diseased or decayed onions without any visible or external signs of such conditions. The decay here and the neck rot found is a sufficient explanation of the cause of the damage, rather than the' exaggerated claims of insufficient ventilation. Heat and lack of ventilation would not have caused the disease found in the tests made. The appellees have not met the burden of establishing negligence in stowage and the care of the cargo. Grape juice from barrels stowed two or three tiers high in the after part of No.- 2 hold leaked through the hatchway into the lower hold, staining some of the cases of onions. If this was. due to fermentation, resulting in the bursting of the barrels, as we think was shown, the ship would not be responsible for the resulting damage. No negligence was shown in connection with the receipt or stowage of these barrels. The bills of lading contained an exception from liability from “leakage, breakage, damage due to contact with * * * other goods.” The burden of proving negligence was on the appellees, and such unusual breakage or leakage does not raise any presumption. The Arpillao (C. C. A.) 270 F. 426; The Solveig (D. C.) 217 F. 805. The explanation of the way the grapejuiee came in contact with the onions, as suggested by the appellant, is that during heavy weather it was spilled on the ’tween-deck hatch, thus leaking down over the onions below, which, to us, seems more plausible than the claim that it leaked through the deck. The decree below is reversed, with directions to the District Court to dismiss the libel.

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

C. W. and Mattie STILWELL and S. W. and Rosie Stilwell, Appellants, v. UNITED STATES of America, Appellee. No. 7499. United States Court of Appeals Fourth Circuit. Argued Nov. 12, 1957. Decided Dec. 27, 1957. John Y. Merrell, Washington, D. C. (Francis W. Flannagan and Homer A. Jones, Jr., Bristol, Va., on brief), for appellants. Marvin W. Weinstein, Attorney, Department of Justice, Washington, D. C. (John N. Stull, Acting Asst. Atty. Gen., Lee A. Jackson and Harry Baum, Attorneys, Department of Justice, Washington, D. C., John Strickler, U. S. Atty., and H. Clyde Pearson, Asst. U. S. Atty., Roanoke, Va., on brief), for appellee. Richard L. Hirshberg, Washington, D. C., on brief for National Coal Ass’n, amicus curiae. Before SOBELOFF and HAYNS-WORTH, Circuit Judges, and THOM-SEN, District Judge. THOMSEN, District Judge. The only question presented by this appeal is whether taxpayers are entitled, under secs. 23 (m) and 114(b) (4) (A) (ii) of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 23(m), 114(b) (4) (A) (ii), to deductions for percentage depletion from their gross income from certain coal mining operations conducted by them under an oral contract with Paragon Jewel Coal Company, Inc. Paragon leased from the owners all of the coal land involved in this case and obligated itself to pay an annual minimum royalty, tonnage royalty, wheelage, land taxes and extraction taxes. It made substantial improvements necessary for transporting, processing and marketing the coal, including roads, railroad side-trackage and a tipple with processing equipment. Paragon elected not to mine the coal underlying its leased boundaries, but entered into oral contracts with several mine operators to conduct the mining operations at their own risk and expense. Taxpayers C. W. Stilwell and S. W. Stilwell, who, with their respective wives, filed joint income tax returns for the year 1952, have been engaged for many years in the mining of coal in Buchanan County, Virginia, as partners, under the trade name Bear Ridge Coal Company. They first discussed a contract with Paragon’s superintendent in the summer of 1951. He showed them a boundary of coal and offered them a choice of three operations. After examining the property, taxpayers selected one of the operations and entered into an oral contract to produce coal. The superintendent advised taxpayers how far back and how far to the right and left they were entitled to mine. The provisions of the contract were not explicitly stated, but must be determined from the course of conduct of the parties as well as from the fragmentary evidence of their conversations. Taxpayers were obliged to extract all mineable coal in the area allocated to them and to deliver the coal at their expense to Paragon’s tipple. Taxpayers could not sell the coal to anyone else without the permission of Paragon. Paragon agreed to receive and to pay taxpayers a specified price per ton for all coal so mined and delivered. It was understood, however, that this price might be modified prospectively from time to time. The contract was for no specific term. Taxpayers assumed the full responsibility and expense of opening and operating the mine in accordance with state and federal mining laws, including all engineering services required. Paragon was to build and maintain a road from its tipple to a point approximately two hundred feet from taxpayers’ mine head; taxpayers were to build and maintain a road for the remaining two hundred feet. It was agreed that at the conclusion of the operation taxpayers might remove their mining equipment but might not remove any buildings or items necessary for the safety of the mine. At the time the contract was made depletion was not discussed. Pursuant to the contract, taxpayers built the two hundred foot road, faced up the mine, constructed a tipple at the mine entry, a powder house, a repair and equipment shop and a weighing house with scales, installed a power plant and fans, laid track, and cut back under the roof in preparation for mining coal. Over a period of four years taxpayers trebled their, investment in cutting machines, diesels, compressors, mine cars, steel rails, motors and trucks. Taxpayers have continued their mining operations from 1951 up to the present time, with an interruption of two weeks due to a proposed change in the price of coal and labor costs. The price per ton paid by Paragon to taxpayers has been raised and lowered from time to time, sometimes as the result of'an increase in labor costs, sometimes as a result of an increase or decrease in the market price of coal. Two neighboring contractors have ceased operations, and Paragon has given taxpayers the right to mine their areas. The question of the right to terminate has never arisen between taxpayers and Paragon. The district judge noted that under the applicable authorities a number of criteria must be considered in determining whether a taxpayer has such an economic interest in the mineral as to be' entitled to a percentage depletion deduction. He found that, although some of the criteria favored the conclusion that taxpayers did acquire such an economic interest, the more important criteria required the conclusion that taxpayers acquired only an economic advantage. He, therefore, held that taxpayers were not entitled to a depletion deduction. D.C., 152 F.Supp. 111. The basic principles underlying the allowance of a deduction for depletion were first stated in Lynch v. Alworth-Stephens Co., 267 U.S. 364, 365, 45 S.Ct. 274, 69 L.Ed. 660, and were restated by Mr. Justice Brandeis in United States v. Ludey, 274 U.S. 295, 47 S.Ct. 608, 71 L.Ed. 1054: “The depletion charge permitted as a deduction from the gross .income in determining the taxable income of mines for any year represents the reduction in the mineral contents of the reserves from which the product is taken. The reserves are recognized as wasting assets. The depletion effected by operation is likened to the using up of raw material in making the product of a manufacturing establishment.” 274 U.S. at page 302, 47 S.Ct. at page 610. At finest the depletion deduction was a certain percentage of cost. It was discovered, however, that cost was frequently so low that it did not adequately reflect the value of the assets, and the law was amended to permit the deduction to be based on the value of the property at the time the mineral was discovered. It was then found that it was very difficult to determine the extent of the mineral deposits and the consequent value of the asset, and since 1926 Congress has permitted an alternative depletion deduction, namely, a fixed percentage of the annual receipts from sale of the minerals. Despite these changes in the method of calculating the depreciation deduction, the basic purpose of its allowance has not changed. United States v. Dakota-Montana Oil Co., 288 U.S. 459, 467, 53 S.Ct. 435, 77 L.Ed. 893; Helvering v. Bankline Oil Co., 303 U.S. 362, 363, 366-367, 58 S.Ct. 616, 82 L.Ed. 897; Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 100 L.Ed. 347. The depletion deduction is not to be construed as a reward to those who actually mine the coal for the risks inherent in its extraction. Usibelli v. Commissioner, 9 Cir., 229 F.2d 539; Untermyer v. Commissioner, 2 Cir., 59 F.2d 1004. A number of cases have considered the problem of the person or persons to whom the deduction should be allowed. See particularly Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489, in which the doctrine of “economic interest” in the mineral in place was developed. The present state of the law was summarized by Judge Soper in Commissioner v. Hamill Coal Corp., 4 Cir., 239 F.2d 347, 349, as follows: “It is agreed that the right to a depletion allowance is dependent upon the ownership of an economic interest in the mineral deposit and that when more than one person has such an interest the allowance must be equitably apportioned between them. It is also agreed that title to or ownership of the deposit is not essential to the creation of an economic interest therein. It is enough if the taxpayer has acquired by investment any interest in the mineral in place and secures by any form of legal relationship income derived from the severance and sale of the mineral to which he must look for the return of his investment. However, a taxpayer who has no capital investment in the deposit does not possess an economic interest merely because by contract with the owner he possesses an economic advantage derived from production. See § 29-23 (m-1) of Treasury Regulations 111.” See also Weirton Ice and Coal Supply Co. v. Commissioner, 4 Cir., 231 F.2d 531, and Commissioner of Internal Revenue v. Gregory Run Coal Co., 4 Cir., 212 F.2d 52. Various factors enter into the question whether a taxpayer has acquired by investment such an interest in the mineral in place as amounts to an economic interest. Usibelli v. Commissioner, 9 Cir., 229 F.2d 539. A most important factor is the terminability of the taxpayer’s rights. Although the agreement in the instant case was for no specific term, the conduct of the parties under the agreement indicates that they intended it to continue, with modifications from time to time, so long as taxpayers’ operations were properly conducted and the coal could be profitably mined and sold. Taxpayers spent appreciable sums to face up the mine and to build a powder house, a tipple and a short connecting road; they nearly tripled their investment in equipment. These expenditures do not of themselves amount to an investment in the coal in place, but they do indicate that the parties did not intend the contract to be terminable at any time at the will of Paragon. The contract was not terminable by Paragon so long as taxpayers’ operations were satisfactory and the coal could be profitably marketed. Moreover, as we have seen, the price per ton paid by Paragon was changed from time to time as a result of an increase or decrease in the market price of coal, as well as because of a change in labor costs. This is not a case where the contract is clearly terminable at the will of either party and where the contractor’s income is dependent upon the personal covenant of those with whom he has contracted without regard to the price at which the coal is sold. We conclude that taxpayers did acquire an economic interest in the coal, and are entitled to a share of the depletion allowance. The judgment of the district court is reversed and the case remanded for the entry of a proper judgment in favor of plaintiffs. Reversed and remanded.

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

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

UNITED STATES v. McFARLAND et al. (Circuit Court of Appeals, Fourth Circuit. October 19, 1926.) No. 2429. 1. War <§=>14. President, as Commander-in-Chief of the Army and Navy, has constitutional power in war time to appropriate private property for public use; government being bound to make just compensation therefor. 2. War <§=>14. Statutes empowering executive agents to fix prices held not to authorize final determination as to what any one must take for property wanted by the government. 3. Eminent domain <§=>69. Constitutional requirement that government must pay just compensation for what it takes is not suspended by war. 4. War <§=>14. In absence of agreement between owner and government, just compensation is judicial question to be decided by the courts. • 5. War <§=>4. Regulations of War Industries Board, organized by Council of National Defense created under Act Aug. 29, 1916, § 2 (Comp. St. § 3115a), forbidding more than 4 per cent, profit by wool dealers, held- unauthorized under Constitution or statutes; Lever Act, § 5 (Comp. St. § 3115%g), being inapplicable. 6. War <§=>4. Agriculture Appropriation Bill for 1920 and subsequent appropriation acts, authorizing appropriation for Bureau of Markets to collect and distribute excess profits made by wool dealers, held not ratification of regulations of War Industries Board limiting profit. 7. Evidence <©=>34. Judicial notice will be taken of legislative history of provisions claimed to have ratified and legalized regulations of War Industries Board. 8. United States <©=>68. Promise to return to government excess profits, not forbidden by some rule ■ of public policy, is binding, whether or not government had right to require such promise. 9. War <©=>4., Wool dealer, who received copy of regulations of War Industries Board and proceeded thereunder, held not to have agreed by such conduct to return to government excess profits in accordance with regulations. 10. Estoppel <©=>63. That wool dealer, after close of season’s business, made report as required by regulations of War Iudustries Board, held not to es-top him from disputing other provisions in regulations. 11. War <©=>14. Wool dealer, continuing in business after regulation of industries by War Industries Board, properly defended action against them for excess profits, and need not have sought injunctive relief when regulations issued. 12. War <©=>4. Requirement in regulations of War Industries Board that wool dealers surrender excess profits to government, being in nature of penalty, is invalid, as being beyond power of board. 13. Damages <©=>85. One cannot by agreement subject himself to payment of penalty for something he may hereafter do. 14. Constitutional law <©=>197. Congress may not ratify imposition of penalty after the act to be penalized has been committed. In Error to the District Court of the United States for the District of Maryland, at Baltimore; Morris A. Soper, Judge. Suit by the United States against W. A. McEarland and another, copartners trading as Henry Marcus & Son. Judgment for defendants, and the United States brings error. Affirmed. J. S. Bohannan, Asst, to the Sol. of U. S. Department of Agriculture, of Washington, D. C. (A. W. W. Woodcock, U. S. Atty., of Baltimore, Md., and H. H. Clarke, Asst, to the Sol. of U. S. Department of Agriculture, of Washington, D. C., on the brief), for the United States. William H. Hudgins, of Baltimore, Md., and Lothrop Withington, of Boston, Mass. (Alexander Lincoln and Claude B. Cross, both of Boston, Mass., on the brief), for defendants in error. Before WADDILL, ROSE, and PARKER, Circuit Judges. ROSE, Circuit Judge. This is one of many suits which have been brought by the United States, hereinafter called the government, to recover from dealers in wool profits which the plaintiff says the defendants, during the year 1918, made in excess of the maximum permitted by the “regulations” promulgated by the Wool Division of the War Industries Board for the handling of the wool clip of that year. Among the reported eases dealing with some of the questions raised are United States v. Powers (D. C.) 274 E. 131; United States v. Smith (D. C.) 285 E. 751; United States v. Gordin (D. C.) 287 F. 565, and the same case on writ of error (C. C. A.) 9 F.(2d) 394; United States v. Traugott Schmidt & Sons (D. C.) 2 F.(2d) 290. The opinions in some of them review in more or less detail the conditions which led up to the issuance of the regulations in question, but it has seemed expedient to us to make from the record before us our own rather full statement of what we understand them to have been. Legal Status of the War Industries Board. qr^g On August 29, 1916 (39 Stat. 619, 649), more than seven months before we entered the World War, Congress, in anticipation of the possibilities of the future, created a Council of National Defense. It was to be made up of six Cabinet ministers; that is to say of the Secretaries of War, of the Navy, of the Interior, of Agriculture, of Commerce, and of Labor. Its purpose was the “co-ordination of industries and resources for the national security and welfare.” Comp. St. § 3115a. Its duties, among other things not here material, were “to supervise and direct investigations and to make recommendations to the President and heads of executive departments as to * * * data as to the amounts, location, method and means of production and availability of military supplies, the giving of information to producers and manufacturers-as to the class of supplies needed in the military and other services of the government, the requirements relating thereto and the creation of relations which will render possible in time of need the immediate concentration and utilization of the resources of the nation.” Comp. St. § 3115c. In short, it was to inquire, to consider and to recommend. It was empowered to “adopt rules and regulations for its work?’ and “to organize subordinate bodies for its assistance in special investigations either by the employment of experts or the creation of committees.” Comp. St. § ■3115d. The italics are ours. On the 6th of April, 1917, we declared war ■on Germany. Nearly four months later — that is, on July 28th — the Council of National Defense, with the approval of the President, doubtless under the grant of power to create committees, organized what it called “a small body, to be known as the War Industries Board,” “to furnish needed assistance to the departments engaged in making war purchases.” Something over seven months afterwards — that is, on March 4, 1918 — the President by letter of that date reconstituted this board. He undertook to remove it from its subordination to the Council of National Defense, and he made it an administrative agency directly responsible to himself. He said that, among, other duties, it was to give “advice to the several purchasing agencies of the government with regard to the prices to be paid.”' He charged it with “the determination whenever necessary of priorities of production and of delivery, and of the proportion of any given article to be made immediately accessible to the several purchasing agencies when the supply of that article is insufficient, either temporarily or permanently.” The board was to have in most respects the constitution it then had, and was to retain its existing advisory agencies so far as was necessary and consistent with the character and purposes of the reorganization; but the ultimate decision of all questions, except the determination of prices, was to rest always with its chairman, the other members acting in a co-operative and advisory capacity. In determining prices, the chairman was to be governed by the advice of a committee consisting, in addition to himself, of the members of the board immediately charged with the study of raw materials and of manufactured products, of the labor member of the board, of the chairman of the Federal Trade Commission, of the chairman of the Tariff Commission, and of the Fuel Administrator. The President said that the duties of the chairman were to act for the joint and several benefit of all the supply departments of the government; to let alone what is being successfully done, and to interfere as little as possible with the present normal processes of purchase and delivery in the several departments; to guide and assist wherever the need for guidance or assistance may be revealed, for example, in the allocation of contracts, in obtaining access to materials in any way pre-empted, or in the disclosure of sources of supply; to determine what is to be done when there is any competitive or other conflict of interest between departments in the matter of supplies; to anticipate the prospective needs of the several supply departments of the government and their feasible adjustment to the industry of the country as far in advance as possible, in order that as definite an outlook and opportunity for planning as possible may be afforded the business men of the country; and in brief to “act as the general eye of all supply departments in the field of industry.” Again the italics are furnished by us. The government in its brief suggests that if, at the time the President reorganized the board, there was any doubt as to his legal power to do so, it was removed by the Over-man Act of May 20, 1918 (40 Stat. 556 [Comp. St. §§ 283a-283f]), which empowered him “to make such redistribution of functions among the executive agencies as he may deem necessary,” and by his subsequently issued executive order of May 29, establishing the War Industries Board as a separate administrative agency, to act for him and under his direction, with the functions, duties, and powers outlined in the letter of March 4, already summarized. At some date not stated in the record, but apparently prior to April 19, the board had created certain “commodity sections,” among them the “Wool Division,” whose members, or some of them, were experts taken from that industry. The Demand for Wool in 1918. At least as early as the beginning of April, 1918, it became evident to the Quartermaster General of the Army that before December 31 of that year the government, in order to elothe its armed men, would need about 125,000,000 pounds of scoured wool. There were 56,000,000 immediately available, leaving 69,000,000 to be supplied from the domestic clip of the then current year, which it was estimated would yield about 120,000,-000 pounds of the scoured article. If from this total 69,000,000 pounds were taken for the use of the military forces, on land and sea, there would be left for the civilian population but 51,000,000 pounds, or less than one-quarter of the quantity ordinarily required in peace times. If the laws of supply and demand were allowed unchecked operation, prices might go to unheard-of heights; they were already two or three times as high as they had been in the years immediately preceding August 1,1914. Faced by such conditions, the Quartermaster General sought the advice and assistance of the War Industries Board. On the 15th of April, his office put, in the form of a letter to it, the substance of some conversations held some days earlier with some of its members, In this communication it was suggested, among' other things, that the wool growers, wool dealers, and wool manufacturers be called together to discuss the situation, and under the direction of the War Industries Board to arrange to meet the needs of the occasion, It was desirable that action should be taken before the movement of wool began, and in some sections shearing was already under way. Powers of the Executive to Procure Supplies and to Regulate Prices. By section 120 of the Act of June 3, 1916 (39 Stat. 166, 213 [Comp. St. §§ 3115f-3115h]), the President was authorized to place an order with anybody for any needed material of the sort usually produced by such person. Such an order was to be given preferenee over all private engagements, whether they were prior in date or not. Failure to comply with it entailed serious penalties, and moreover authorized the President to take over the plant of the recalcitrant and operate it, just compensation being, of course, ma(jei The President, as Commander-in-Chief of the Army and the Navy, doubtless had the constitutional power in war time, in eases of immediate and pressing exigency, to appropriate private property to public uses; the government being bound to make just compensation therefor. Mitchell v. Harmony, 13 How. 115, 133, 14 L. Ed. 75; United States v. Russell, 13 Wall. 623, 20 L. Ed. 474; Roxford Knitting Mills v. Moore & Tierney, 265 F. 177, 179, 11 A. L. R. 1415. The first of the above cases shows how careful the courts are to restrict the exercise of this power within narrow bounds. Various statutes, passed during or in anticipation of our entry into the World War, expressly authorized the President to requisition sundry classes of property of which the government had need, Quotation and analysis of these various acts of Congress is not necessary to any matter now in hand. It is sufficient that in the spring of 1918 almost everybody believed that under them he could take over all or any portion of the wool in the country, if he thought that it was required for war purposes. The government, of coursé, was bound to pay just compensation for whatever private property it appropriated. Under most of the statutes, if the President and the owner could not agree as to what amount would be just, the United States paid him 75 per cent, of what it thought was right, and authorized him to sue it for whatever balance he claimed was still due him. The President was given certain powers to fix prices of various commodities, of which it does not appear that in the spring of 1918 wool was one. Whether this could be constitutionally done we need not now stop to inquire. The Supreme Court has expressly reserved the question whether Congress may lawfully authorize the President, even in war time, to fix conclusively the maximum prices at which one individual may sell to another. Matthew Addy Co. v. United states, 264 U. S. 239, 44 S. Ct. 300, 68 L. Ed. 658. It would, however, now seem clear that none of the statutes empowering the President or other executive agencies to fix prices authorized him or them finally to say what any one must take for any property of his wanted.by the government for its own use. Monongahela Navigation Co. v. United States, 148 U. S. 312, 13 S. Ct. 622, 37 L. Ed 463 5 National City Bank v. United States (D. C.) 275 F. 855. The constitutional refimrement that the government must pay just compensation for what it takes is one which war does not suspend. National City Bank v. United States (supra); United States v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L, Ed. 516, 14 A. L. R. 1045. In the absence of agreement between the owner and the government, what is just compensation ts a judicial question, to be decided by the courts and not by the executive. Monongahela Navigation Co. v. United States, supra; United States v. New River Collieries (C. C. 276 F. 690. The Conferences Between the War Industries Board and the Wool Growers and Dealers, As has been seen, the government was legaily able to commandeer the'wool it needed, There were grave objections to obtaining the fleeces in that way — some administrative; others economic and political. The wool clip was in the hands of hundreds of thousands of individual owners, whose flocks numbered anywhere from three or four sheep to many thousands. It was almost impossible separately to deal with every one of them, no matter how summary were the methods of requisition. To get the wool in that way would have required the organization of a staff of hundreds of men, whose services in that hour of stress were sorely needed for other tasks. Differences of opinion as to what was just compensation would have been frequent, and litigation would have followed. Much money would have been wasted and much irritation excited. For these and perhaps other reasons the War Industries Board, as well as the Army authorities, were reluctant to resort to commandeering, although for obvious reasons they did not allow either owners or dealers to forget that they could commandeer if they chose. Their real wish was to come to some understanding as to prices with the representatives of the large and influential wool growers’ associations. The spokesmen of the organizations could not legally bind their own members, to say nothing of those growers who were not on their rolls. Nevertheless it was highly probable that general and perhaps universal acquiescence would be given to any scale of prices which the delegates of these societies, without undue pressure, could be induced to accept. The gentlemen who undertook to speak for the growers made it plain, that they did not welcome any fixing of prices at that time, either by government edict or voluntary agreement. They preferred to leave the matter to the unhampered interplay of supply and demand, so that the government and all'other purchasers should pay, whenever they bought, whatever figure then prevailed in the market. Nevertheless the overwhelming majority of the wool growers and' of those who undertook to voice their wishes were patriotic citizens and reasonable men. They wanted to help the government in its hour of difficulty, provided that they were not called upon to do more than they thought was their share. They were given full opportunity to express their views, and in the end there was little difficulty in getting them to agree that for the various grades of scoured wool at the seaboard the scale of prices prevailing at the end of the preceding July would be satisfactory. That was, however, but one of the problems to be solved. How was the government, or the manufacturers, who for the government were to turn the wool into cloth, to get it from the farms and the ranges to the mills, and how was the sum of money which each grower should receive for his fleeces to be ascertained. Wool is of many grades, and the prices to be paid were for the scoured article of each of these several kinds. When a fleece comes off the back of a sheep, an always large but widely varying proportion of its weight is represented by worthless moisture, grease, and dirt. Their past experience had made the large majority of the growers unwilling to let the wool leave their physical possession until they knew precisely what they were to get for it in dollars and cents. As one of their spokesmen said, they were “constitutionally opposed to consigning their wool.” If they would not, it was necessary that some one should inspect their unwashed fleeces and agree with every individual of them as to the grade, and as to the probable amount of scoured wool which could be obtained from those he had to sell. For much the same reasons as had made a general commandeer impractical, the government wisely shrank from an attempt to organize an independent service of its own to make these thousands of separate examinations and to strike these equally numerous bargains. Was it necessary to do so? The wool trade was perhaps one of our oldest forms of commerce. In the much more than a century of its existence it had built up an organization which stretched from the woolen mills to every hillside upon which there was a sheep. In 1918, as in scores upon scores of years which had preceded, the wool dealers, large and small, in person or by their agents, were ready and willing to meet each individual grower and to dicker with him as to how his fleeces would grade, and how much scoured wool could be gotten out of them. With everything else the government had to do in that spring, was it worth while to scrap this smoothly operating machine, and to substitute for it something else which could not, at first, at least, work anything like so swiftly or so efficiently? Why should not the dealers collect the wool in their warehouses as they had been in the habit of doing? The government could buy it from them at the prices which, with the assent of the representatives of the growers, it had determined to be just, plus such addition as would reasonably compensate them for their trouble. The dealers were willing to do the work. They naturally wished to keep their business organizations intact and to have them actively employed, so that, when the war came to an end, they would be ready to go on as they had in the past always done. They knew what the government would pay them at the seaboard for each grade of scoured wool, and in their purchases from the growers they could govern themselves accordingly. This solution of the problem was simple. It satisfied the dealers, and it fully protected the interests of the government as a mere purchaser of the wool. It was, however, naturally enough, not altogether to the liking of the growers. Their comment on it to the War Industries Board was in substance: “You have asked us to agree to an arbitrary limitation of what at the seaboard you will pay or permit to be paid to the dealers for scoured wool. If we do, we will not get the figures we are persuaded an open market would give us. But you are doing nothing to make sure that we will receive all that should be coming to us, even under the prices you wish to fix. You leave each of us, however limited his knowledge of business, or of what is going on in the world, is, how unfitted he may be to cope successfully in a contest of trading wits, or how severely he may be pressed for ready money, to make his own bargain with a dealer, who is thoroughly posted and who will usually have access to ample cash. The fairest of the latter will naturally feel compelled to protect himself against the possibility of paying any of us for more scoured wool than he is sure the fleeces will yield. It is a matter in which exact certainty is not possible, so that perforce each dealer will allow himself a margin of safety, for which we will necessarily pay. The more unscrupulous of the dealers, or of their traveling men, will make use of the difficulties of the situation to drive still harder bargains with us.” The War Industries Board felt the force of these objections. They endeavored to meet them by pointing out that a grower who did not sell his wool to a dealer, but simply consigned it to him for sale, would be safe. In the absence of actual fraud, he would receive for his fleeces the exact price paid by the government or the manufacturer, less interest and freight, for the purchaser, whoever he was, would be required to pay the dealer’s commission, which was fixed at 4 per cent. It was, however, evident that the great majority of the growers were not prepared to surrender their deeply rooted objections to consigning their wool. The record in the instant ease shows that only one-sixth of the wool received by the defendants was consigned to them; the other five-sixths they bought outright. The board felt that something should be done to protect those growers who preferred to sell, and it hit upon the device which has led to this litigation. It said to the growers in effect: “It is true that each one of you who insists on selling his wool to' a cross-roads storekeeper near his farm, or to the agent of a wool dealer located in some more remote city or town, will have to make with the purchaser just such a bargain as he has always made in the past. You will be in a better position to do so than you have ever been before, for you will not have to take any chance of fluctuating markets. Even so, the dealer may allow you less for your wool than we wish you to have. We cannot give you complete protection against that possibility, but we can reduce almost to the vanishing point his temptation to take undue advantage of you. We will limit the profit he may retain for himself. We'cannot do this as to each individual transaction, for our supervision cannot go so far; but we can and will fix the maximum he may retain upon his business as a whole.” “To accomplish this purpose, we will divide the purchasers of wool into two classes. One of these will be the country merchants, who drive their bargains directly with the growers, and the other will be the wool dealers in the great distributing centers, who will ordinarily buy from the rural storekeepers. We will require every purchaser of wool, no matter to which class he may belong, to make at the end of the year a detailed report of all the wool business he has done, and of his receipts and disbursements therein. If it appears that he has made, if a country merchant, a gross profit in excess of V/2 cents a pound, or if a dealer in a distributing center one greater than 5 per cent, on his season’s business, we will take the overplus from him.” “To make sure that these rules shall be obeyed, we will not let any one deal in wool without a permit from us.” It may be said that the board had already secured from the representative dealers, with which it conferred, an assent to the essential fairness of this plan. Of course, neither growers nor the board used the precise words we have assumed to put in their mouths; but we think the story as we have told it accurately reproduces the general effect of the stenographic report of the conferences among the members of the War Industries Board and of the discussions they had with representative growers and dealers. The general understanding then reached does not appear to have been at the time reduced to precise and detailed written form. That task was left to the draftsmen of the “regulations,” which were not issued, until May 21, or more than three weeks after the conferences had come to an end. Incidentally it may be noted that they purported to be promulgated by the Wool Division of the War Industries Board, over the signature of the chairman of that division, and not by the board as a whole. The Eegulations. They began with the statement that the War Industries Board had fixed the prices of the 1918 wool clip on the scoured basis at Atlantic seaboard markets at those established by valuation committees and approved by the government on July 30, 1917. A table of them was annexed. The regulations declared that the government should have a prior right to acquire at those prices all or any portion of the 1918 wool clip which it might require. The remainder was under the direction of the War Industries Board, to be subject to allocation for civilian purposes. There followed a statement of the practical reasons why all the wool clip of the year must be so collected that it could be distributed through approved dealers in selected centers. Approved dealers were defined to be those authorized by the War Industries Board to handle wool, and who were at the distributing centers and bought from growers direct through agents or from country merchants, or who were located in wool-growing districts, and bought direct from growers for resale or consignment to the dealers in the distributing centers. It was stated that in a general way the clip might be divided into what were known as “fleece wool” and “territory wool.” These differed as to trade conditions and practices, and in the opinion of the board it was expedient that there should be a variance in the regulations applied to them. We are here concerned only with such regulations as had to do with the handling of the so-called “fleece wool.” Under the heading of “Compensation of Growers and Dealers” the regulations provided that “approved dealers,” not located at distributing centers, should be entitled to a gross profit in no case to exceed 1% cents per pound on their total season’s business. This profit, it was stated, was to “eover all expenses from grower to loading wool on cars.” For reasons already stated, it was impossible with like precision to specify what a grower was to get. All that could be said on that subject was that he should receive “fair prices for his wool, based on the Atlantic seaboard price as established on July 30, 1917, less the profit to the dealer as stated above, and less freight to seaboard, moisture shrinkage, and interest.” For further precaution it was said: “In no case shall this be construed to mean that there shall be more than 1% cents per pound” gross profits made from time wool leaves growers’ hands until it arrives at the distributing center.” On consignments forwarded to distributing centers, the prices to be paid to the approved dealers were to be the Atlantic seaboard values of July 30,1917, to which it was declared there should “be added a commission of 4 per cent., to be paid by the government” if the wool was bought by the government, or “by the manufacturer to whom the wool is allotted for other than government purposes.” It was said' that the commission “was to include grading and other expenses of handling.” It was provided that the consignee should be charged with the freight on his shipment and interest on all advances made for his account to the date of the arrival of his wool at a distributing center.” In order to encourage consignments, small growers were advised to pool their clips in quantities of not less than 16,-000 pounds, so that they might ship at the lower carload rates of freight. Under the caption “Government Price” it was provided that “approved dealers in approved distributing centers will be required to open and grade all their purchases on consignments as rapidly as possible after the arrival of wool at a point of distribution. Prices on all wools, as soon as graded, will be fixed by a government valuation committee appointed for that purpose in the different distributing centers.” Those prices were of course to be those established on the 30th of the preceding July for Atlantic seaboard markets. The government was to pay in addition a further sum equal to 4 per cent, of the selling price “to eover compensation or commission to approved dealers for their services in collecting and distributing vfool.” For such wool as was not taken by the government, the dealer was to receive the same price and the same commission, both of which were, however, in that case to be paid by the manufacturer to whom the wool had been allocated. Then followed the paragraphs which are the basis of this suit and of all similar actions. They are headed “Profiteering Prohibited.” It will be well to quote from them with some fullness. They read: “As a guard against profiteering, the books of all approved dealers in distributing centers shall be at all times open to government inspection, and if it be found that their gross profits, including the aforesaid commission of 4 per cent., are in excess of 5 per cent, on the season’s business, then those gross profits shall be disposed of as the government decides.” The books of the-country dealers were also to be open to government inspection. If it appeared that their gross profit from the season’s business was in excess of iy2 cents per pound, then such excess “shall be disposed of as the government may decide.” The italics in each case are ours. Baltimore was one of the nine places designated as distributing centers. All dealers, whether at approved distributing centers or in the country districts, desiring a permit to operate, were to apply to the Wool Division of the War Industries Board. The dealers in distributing centers were to state their capacity for storing and grading; those ih the wool-growing neighborhoods had merely to give their names and addresses. It was, however, provided that, in order to expedite movement of wool, a dealer of either class was authorized to operate immediately in accordance with the regulations, pending application for and granting of permit. The Special Facts of the Instant Case. The defendants were wool dealers in Baltimore. They received a copy of the regulations and they applied for a permit as dealers at a distributing center. Doubtless as a result of some clerical mistake they were sent one as country dealers, and they never received any other. They are sued as dealers at a distributing center, in which capacity it is admitted the bulk of their business was done, although they also operated as country dealers. By the construction which the government subsequently put upon the regulations, the defendants are entitled to retain for themselves, in addition to the gross profit of 5 per cent., an additional gross profit of 1 y2 cents a pound upon such wool as they bought direct from growers, and upon which no other dealer had made profit or commission. •. After the issue of the regulations and until the close of 1918, the defendants notified the government whenever they had on hand a quantity of wool which they had graded and which was ready for government inspection and valuation. The latter thereupon sent a committee to the defendants’ place of business. This committee inspected the wool and put a value upon it. The government then made a written proposal to buy the number of pounds in the parcel at a named price, and the defendants signed and returned a written acceptance. The. wool was delivered to the government, and the defendants were paid the price named in the proposal and acceptance-and a commission of 4 per cent, thereon. In compliance with the government’s requirement, the defendants at the end of the year made a detailed report of all their purchases of wool. Among other things it showed that they had bought from several hundreds of separate sources, in amounts varying from less than 5 pounds to upwards of 60,000, and had paid therefor sums ranging from less than $3 to upwards of $43,000. In accordance with its usual practice, the government 'had an.inspection made of the defendants’ books. It. is agreed that they showed that the defendants, as sellers of their own wool, had received either from the government or from manufacturers authorised to buy: An aggregate of.................$802,312.32 And as commissions at 4 per cent, thereon.................. 32,092.49 The total being..................$834,404.81 For this wool they had themselves paid..... $760,295.15 For interest on such payments from time • • made until purchase and payment by government or manufacturers......... 3,801.48 For freight.......... 6,480.17 A total of...................... 770,576.80 The government’s contention is that the difference between defendants’ receipts and expenditures as above Stated or..................... $ 63,828.10 was the defendants’ “gross profits on the season’s business,” in the sense of that phrase as used in the regulations. The government’s view is that the “season’s business, upon which the maximum gross profit of 5 per cent, was to be calculated, included nothing other than the defendants’ receipts from the sale of their own wool of the clip of 1918 and from the 4 per cent, commission thereon. Their receipts from the sales of wool which had been consigned but not sold to them, or from sales of their own wool of the clip of 1917, and the commissions collected by them on such consignments and sales, were not from this standpoint a part of their season’s business, and they were not entitled to any profits thereon, other than such commissions. The 5 per cent., calculated as the government says it should be on the $834,404.81 above set forth, amounts to $40,-125.61. This action was accordingly brought to recover the difference between the defendants’ gross profits as the government figured them and the maximum which the government says was permissible; that is to say, the suit is for $23,712.49. A jury was waived in writing and the trial was to the court

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

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

Vittorio MINEO, on behalf of himself and all others similarly situated v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Appellant. No. 83-5588. United States Court of Appeals, Third Circuit. Argued May 16, 1985. Decided Dec. 27, 1985. Rehearing and Rehearing En Banc Denied Feb. 6, 1986. Hugh H. Welsh (Argued), Arthur P. Berg, Anne M. Tannenbaum, Jersey City, N.J., for appellant. Seymour Margulies, Jack Jay Wind, (Argued), Margulies, Margulies and Wind, Jersey City, N.J., for appellees. Before ADAMS, BECKER and VAN DU-SEN, Circuit Judges. OPINION OF THE COURT VAN DUSEN, Senior Circuit Judge. This case, before the court on the district court’s certification pursuant to 28 U.S.C. § 1292(b) (1982), presents the question whether appellees (hereinafter “Detectives”), who are police detectives employed by appellant, The Port Authority of New York and New Jersey (hereinafter “Port Authority”), are covered by the wage and hour provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (1982) (hereinafter “FLSA”). In Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), which was decided after this court granted the Port Authority’s petition for leave to appeal, the Supreme Court overruled its earlier decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and held that all state and municipal employees are covered by FLSA. For the reasons set forth in this opinion, we hold that Garcia should not be accorded retroactive application on the facts presented by this case and therefore that the Detectives do not fall within the coverage of FLSA. We will reverse the district court’s denial of.the Port Authority’s motion to dismiss and will remand the case to the district court accordingly, with directions to dismiss this civil action. I. The Detectives are persons employed by the Port Authority as police detectives assigned to the Authority’s Investigating Unit. They are authorized by the laws of New York and New Jersey to act as police officers, N.Y.Crim.Proc.L. § 1.20, subdivision 34(k) (McKinney 1981); NJ.Stat.Ann. § 32.2-25 (West 1963), and have the same powers as police directly employed by the two states. See State v. Cohen, 73 N.J. 331, 337, 375 A.2d 259, 264 (1977). The Port Authority is a municipal instrumentality of New York and New Jersey created by a compact between these two states with the consent of Congress (hereinafter “Compact”). See 1921 N.Y.Laws Ch. 154; 1921 NJ.Laws Ch. 151, pp. 412-22; S.J. Res. 88, 42 Stat. 174 (1921). This case had its origins in a collective bargaining dispute between the Detectives and the Port Authority over the latter’s alleged refusal to pay the Detectives one and one-half times their regular hourly rate for hours worked in excess of forty hours a week. On October 10,1980, in the midst of contract negotiations, the Detectives filed a complaint in the district court alleging that the refusal to pay this overtime rate violated Port Authority regulations. They later amended the complaint to allege that the Port Authority’s refusal to pay overtime constituted a violation of FLSA. On December 2, 1980, the Detectives and the Port Authority signed a collective bargaining agreement that took retroactive effect as of July 9, 1978. This agreement provided that the Detectives would be paid time and one-half for hours worked on a regular day off or vacation day, but not if they simply worked more than a certain number of hours in a given week. Under the agreement, the Detectives were paid 25% more an hour than regular police officers employed by the Port Authority. During the course of the contract negotiations between the two parties, the Port Authority had contended that this 25% premium wage was being paid to the Detectives because they were often required to work overtime for which they received no increased hourly wage. The Detectives asserted, however, that they were entitled to the 25% premium because they performed duties in addition to those performed by regular Port Authority police officers and that the 25% premium therefore did not represent payment in lieu of time and one-half for overtime. The contract settlement thus did not end the overtime dispute, and the agreement contained no provision for the termination of the present lawsuit. Following a period of limited discovery, the Port Authority moved to dismiss the complaint, contending that the Supreme Court’s decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), exempted state employees such as the Detectives from FLSA because they performed a “traditional governmental function.” The Detectives responded by moving for partial summary judgment. The district court held a hearing on both motions. On September 29, 1982, the district court filed an opinion and order denying the Port Authority’s motion to dismiss. The court based its ruling on this court’s earlier decision in Kramer v. New Castle Area Transit Authority, 677 F.2d 308 (3d Cir.1982), cert. denied, 459 U.S. 1146, 103 S.Ct. 786, 74 L.Ed.2d 993 (1983), which held that a mass transit authority was not an integral operation in an area of a state’s “traditional governmental functions” and, therefore, that its bus drivers were not exempted from coverage under FLSA. Id. at 310. Reasoning that the Port Authority is engaged in the business of mass transit, the district court concluded that its employees, including the Detectives, are not exempt from FLSA coverage under National League of Cities. Because the case revolved around a potentially dispositive legal question, viz., whether the Detectives are covered by FLSA, the Port Authority requested that the district court amend its September 29 order to certify the question for interlocutory appeal under 28 U.S.C. § 1292(b) (1982). The court agreed, and on May 23, 1983, it amended its September 29 order accordingly. Shortly thereafter this court granted the Port Authority’s petition for leave to file an interlocutory appeal pursuant to Fed.R.App.P. 5(a). Prior to the date on which the case was to be heard in this court, the Supreme Court heard argument in consolidated appeals of Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016, and Donovan v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016, which presented the question whether the minimum-wage and overtime provisions of FLSA may be constitutionally applied to employees of publicly owned and operated mass transit systems. Because of the similarity between the question presented to the Supreme Court and the one presented here, we decided to hold this case under advisement pending the Court’s decision. On February 20, 1985, the Supreme Court decided the Garcia and Donovan cases by overruling National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and holding that no state employees should be exempted from coverage under FLSA. See Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985). We then requested the parties to submit supplemental briefs addressing the question whether Garcia controlled this case. The parties disagreed as to the propriety of applying Garcia retroactively to serve as the governing law in this suit. This is the principal question we must now decide. II. Before determining whether to apply Garcia retroactively so as to govern this case, we will review the state of the law prior to Garcia to explain how and why Garcia changed such law. In 1974, Congress amended FLSA to subject almost all persons employed by the states and their political subdivisions to its wage and hour provisions. Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, 88 Stat. 55, 59. The National League of Cities and the National Governors’ Conference challenged the amendments, contending that they unconstitutionally infringed upon states’ sovereignty. The Supreme Court agreed that the determination of state employees’ wages is an attribute of state sovereignty, National League of Cities v. Usery, 426 U.S. at 845, 96 S.Ct. at 2471, and held that Congress may not use the Commerce power to impose upon the states its choices regarding essential decisions in areas of traditional governmental functions. Id. at 855, 96 S.Ct. at 2476. The Court thus declared FLSA unconstitutional to the extent that it purported to apply to state employees performing such functions. Id. at 852, 96 S.Ct. at 2474. The National League of Cities principle was clarified in a later decision, Hodel v. Virginia Surface Mining & Recl. Assoc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), which set out a three-part test for determining when congressional regulation of state conduct exceeded its Commerce Clause power: “First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute^] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’ ” Id. at 287-88, 101 S.Ct. at 2366 (citations omitted). The question presented to the Court in Garcia concerned an application of the third part of the Hodel test. The Court was asked to determine whether applying FLSA to employees of the San Antonio Metropolitan Transit Authority would constitute an impairment of San Antonio’s ability to operate in an area of traditional governmental functions. Garcia, 105 S.Ct. at 1007. Although the Court in National League of Cities had identified certain types of state operations, such as police protection and fire prevention, as “traditional governmental functions,” 426 U.S. at 851, 96 S.Ct. at 2474, the Court left to the lower courts the task of determining whether other state operations were traditional. In Garcia, rather than deciding whether a state’s mass transit operations are traditional and thus exempt from FLSA, the Court overruled National League of Cities. Garcia, 105 S.Ct. at 1021. Writing for the majority, Justice Blackmun stated that, contrary to the Court’s determination in National League of Cities, nothing in FLSA is destructive of state sovereignty or violative of the Constitution. Id. at 1020. Because the states participate in the federal system, he wrote, they can sufficiently protect themselves from federal laws that unduly infringe upon their sovereignty. Id. We now turn to an analysis whether the law of Garcia or that of National League of Cities should be applied to the Detectives’ claim. III. It is a time-honored principle that courts will apply the law in effect at the time they decide a case. See United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801). As a result, a recent decision is generally applied even to a dispute that arose prior to the court’s holding. This approach reinforces the rubric advanced by Blackstone “that judges do not make but mérely ‘discover’ law.” Marino v. Bowers, 657 F.2d 1363, 1365 (3d Cir.1981) (in banc) (citing Linkletter v. Walker, 381 U.S. 618, 622-29, 85 S.Ct. 1731, 1733-38, 14 L.Ed.2d 601 (1965)). However, at times application of this retroactivity precept produces inequitable results, penalizing parties who ordered their affairs in reasonable reliance on a rule of law that was later invalidated. Such inequity is undesirable, not only because of the harm to the party involved, but also because it discourages adherence to contemporary laws. Consequently, it has been held that courts in certain circumstances appropriately may determine not to apply a decision retroactively. The Supreme Court, in its decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), adopted the following three-part analysis for determining the retroactive effect of new law in civil cases: “In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants have relied, see e.g., Hanover Shoe v. United Shoe Machinery Corp., [392 U.S. 481, 496, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968)], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, [393 U.S. 544, 572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969) ]. Second, it has been stressed that ‘we must... weigh the merits and demerits in each ease by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ Linkletter v. Walker, [381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ Cipriano v. City of Houma, [395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969) ].” Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355. We therefore analyze this case under each of Chevron’s three factors to determine whether Garcia should be given retroactive effect. In this case, the defendant reasonably relied on the law in force at the time it conducted labor negotiations, and it is unfair to make it suffer because of an unforeseen change in that law. For this reason, we conclude that the decision in Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), should not be applied retroactively to this case. A. The first part of the Chevron analysis counsels against retroactive application of a judicial decision if that decision establishes a new principle of law, either by overruling clear past precedent on which parties may have relied or by deciding an issue of first impression, the resolution of which had not been foreshadowed. Chevron, 404 U.S. at 106, 92 S.Ct. at 355. The Port Authority claims that the Garcia case clearly overturned the prior law governing this case, and that applying Garcia now would be inequitable because it relied on the prior law in taking the position during collective bargaining that the Detectives were not entitled to time and one-half for overtime. As the Port Authority structured its contract with the Detectives, it was not in compliance with certain aspects of FLSA. The Port Authority’s conclusion that the terms of this contract were exempt from FLSA was based on the Port Authority’s assessment of two questions of law. First, the Port Authority, an entity created by bi-state compact, is a state for the purposes of the Tenth Amendment and the National League of Cities case. Second, the Detectives were performing a traditional state function because they were engaged in the activity of police protection. In order for the 1980 contract between the Port Authority and the Detectives to be exempt from FLSA under the National League of Cities doctrine, the Port Authority must be regarded as a state and the work of the Detectives must be a police protection activity. When Garcia overruled National League of Cities, these two issues became moot because all state activities became subject to FLSA. We observe initially that the mere fact that the Supreme Court renders a decision overruling prior law is insufficient to satisfy the first part of the Chevron test. The party seeking nonretroactive application of the new decision must have relied on the prior law. Moreover, such reliance must have been reasonable. Bronze Shields, Inc. v. N.J. Dept. of Civil Serv., 667 F.2d 1074, 1085 (3d Cir.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 2510, 73 L.Ed.2d 1384 (1982); Singer v. Flying Tiger Line Inc., 652 F.2d 1349, 1353 (9th Cir.1981). We have concluded that the Port Authority reasonably relied on the law pri- or to Garcia in determining that the instant contract would not be subject to FLSA. Neither party has cited case law holding that an authority created by a bi-state compact was not a state for the purposes of the Tenth Amendment. Moreover, as discussed in part IV(A) below, there are analogous cases under the Eleventh Amendment treating similar entities as states. It was reasonable for the Port Authority to rely on the statement in National League of Cities that police protection is a traditional state function and to conclude that the Detectives are involved in police protection activity. The dissent insists that because the Port Authority operates mass transit systems, and the status of such functions under National League of Cities has been unclear, the Authority was at risk in relying on the protection of that decision. However, the fact that the Authority includes mass transit among its many activities does not mean that the status of all its employees was in doubt. Even states and municipalities control entrepreneurial and other nontraditional public entities, but this does not affect the status of their traditional functions such as police protection. Indeed, the command of National League of Cities is to distinguish among those employees who perform traditional functions and those who do not. We conclude that the Garcia decision, by overturning National League of Cities, overruled clear past precedent on which the Port Authority may have relied. Thus, the first prong of the Chevron test weighs against retroactive application of the Garcia decision. B. The second Chevron factor (404 U.S. at 106-07, 92 S.Ct. at 355-56) requires us to consider the prior history of the new rule in question, and its purpose and effect, to determine if retroactive application will further or retard its operation. The Port Authority contends that retroactive application of the Garcia decision is not necessary to insure future adherence to the decision. Now that the Supreme Court has ruled explicitly that no state employees are exempt from FLSA coverage, the Port Authority maintains, there is no reason to believe that states and municipalities will not comply in the future. We agree. The Garcia decision makes the law clear that, in the future, states must comply with FLSA. Regardless of how we decide this case, there is no reason to suspect that states would refuse to be bound by FLSA. This situation leaves us free to decide the instant case on its facts and equitable principles without concern for furthering or retarding the operation of Garcia. This second Chevron factor neither favors nor opposes the retroactive application of the Garcia decision. C. The third prong of the Chevron test requires us to consider any inequities that would result from retroactively applying the new law (404 U.S. at 107, 92 S.Ct. at 355). If retroactive application of Garcia would be inequitable, then this prong of the Chevron test would counsel against its retroactive application. As discussed above, the Port Authority apparently structured the contract with the Detectives based on the assumptions that it was a state for the purposes of National League of Cities, and that the Detectives were engaged in traditional state functions. In Part IV of this opinion, we decide that these assumptions are consistent with our interpretation of the law. In this section of the opinion, we analyze the Port Authority’s actions when the employment agreement was entered into in 1980 to determine whether it would be inequitable to retroactively apply the Garcia opinion. We decided in Part 111(A) above that the two assumptions made by the Port Authority were reasonable. The Port Authority was faced with a situation where it had to, predict what the law was on two different issues. It made a decision and based its contract thereon. As discussed below, we think that not only was the Port Authority’s assessment of the law reasonable, it was also correct. Over four years later, the Garcia decision overruled the entire relevant body of case law. Applying Garcia retroactively would punish the Port Authority for having made a decision which we agree is based on an accurate assessment of the law at the time such decision was made. In the normal business setting, a party must take action and cannot wait indefinitely for precise judicial resolutions; courts should recognize this fact and not punish unfairly those who engage in reasonable business decision-making. Any public or private organization must manage its revenues to most efficiently provide services at the lowest cost. When involved in labor negotiations, the organization possesses estimates of how many hours it thinks the employees will work and how much money it has to compenfsate them. Within those parameters, the organization may opt for various pay structures. For example, some employees may be paid more than others; some compensation may be deferred; or employees may get a higher base pay in return for reduced overtime pay. It appears that the last situation was present in the instant case. Reasonably believing itself to be unshackled from the restrictions of FLSA, the Port Authority offered an attractive base pay that was balanced by lower overtime compensation. The Detectives agreed to this arrangement. The retroactive application of Garcia to this situation would give the Detectives increased overtime pay without any reduction in base pay. To allow the Detectives to get a pay raise premised on retroactive application of an unforeseen decision that was made almost two years after the end of the contract period would be inequitable to the Port Authority and would constitute a windfall to the Detectives. See Morrison, Inc. v. Donovan, 700 F.2d 1374, 1376 (11th Cir.1983). Inasmuch as the Port Authority encountered an unresolved issue of law, on which it took a reasonable position, retroactive application of Garcia to foreclose its reliance on National League of Cities is not equitable. Employing the rule of Garcia in this case is thus contrary to both the first and third prongs of the Chevron test. See Smith v. City of Pittsburgh, 764 F.2d 188, 196 (3d Cir.1985); see also Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (plurality opinion); id. at 92, 102 S.Ct. at 2882 (Rehnquist, J., concurring). IV. We now turn to the National League of Cities case and its progeny to see if the Port Authority is exempt from FLSA with respect to overtime payments to the Detectives for the period from July 9,1978, until July 3, 1983. As discussed above, the National League of Cities principle was clarified in Hodel v. West Virginia Surface Mining & Recl. Assoc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), where the Court said: “First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute[s] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’ ” Id. at 287-88, 101 S.Ct. at 2366 (citations omitted). We examine each of these three requirements and conclude that the Detectives in the instant case are not covered by FLSA for the above period. A. The first requirement of the Hodel test is that the challenged regulation must regulate “States as States.” We must decide whether the Port Authority, an entity created by a bi-state compact, is a state for the purposes of the Tenth Amendment. This determination requires analysis because the Port Authority possesses certain federal incidents that a typical state agency lacks. However, after considering its federal traits and comparing them with its state traits, we conclude that the Port Authority is a “state” for the purposes of the first requirement of the Hodel test. Article I, section 10, of the United States Constitution provides in relevant part: “No State shall, without the Consent of Congress,... enter into any Agreement or Compact with another State_” U.S. Const, art. I, § 10. When the Port Authority was created in 1921, Congress consented to it. 42 Stat. 174 (1921). Similarly, when the Port Authority produced its Comprehensive Plan, it too was consented to by Congress. 42 Stat. 822 (1922). While Congress has not been involved in the structure or management of the Port Authority since 1922, there is language in both the Compact and the Comprehensive Plan that could be interpreted to provide for continuing control by Congress. Arguably, this language could justify congressional control of the Port Authority through FLSA. A similar issue was before the District of Columbia Circuit in Tobin v. United States, 306 F.2d 270 (D.C.Cir.), cert. denied, 371 U.S. 902, 83 S.Ct. 206, 9 L.Ed.2d 165 (1962). In that case, the District of Columbia Circuit reversed the conviction of the Executive Director of the Port Authority for contempt of Congress for failure to fully comply with a subpoena. The appellant argued that Congress lacked the power under the Compact Clause of the Constitution to “alter, amend or repeal” its consent to the Compact which was the stated purpose of the investigating subcommittee. The court reversed the conviction, finding that the appellant had adequately complied with the subpoena. The court admitted its reluctance to resolve the issue of whether Congress could “alter, amend or repeal” the Compact. We recognize the District of Columbia Circuit’s reluctance and believe that this issue need not be resolved in this opinion. Our research has revealed no case holding that Congress possesses such a power. We note.today only that the power of Congress to “alter, amend or repeal” is not currently part of the federal tradition. Since we are basing our conclusion that the Port Authority is a state for the purpose of thé Hodel test on a balancing of its state and federal attributes, we feel it is not inappropriate to leave the resolution of Congress’ power to “alter, amend or repeal” in this situation to another day. One minor federal attribute of an interstate compact is that the compact itself becomes federal law. Texas v. New Mexico, 462 U.S. 554, 564, 103 S.Ct. 2558, 2565, 77 L.Ed.2d 1 (1983). But see Petty v. Tennessee-Missouri Comm’n, 359 U.S. 275, 285, 79 S.Ct. 785, 791, 3 L.Ed.2d 804 (1959) (Frankfurter, J., dissenting). This characterization serves not to allow Congress to sidestep the Tenth Amendment but rather to give the federal courts federal question jurisdiction (see Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 706, 66 L.Ed.2d 641 (1981)) and makes available the doctrine of preemption to prevent states from avoiding their compact obligations by citing contrary state law (see West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951). These few federal attributes notwithstanding, we have concluded that the Port Authority possesses sufficient state attributes to qualify as a state entity for the purposes of the first prong of the Hodel test. From its inception sixty-five years ago, the Port Authority has been an entity of the two compacting states. New York and New Jersey each appointed commissioners to investigate the possibility of an agreement. 1917 N.Y.Laws Ch. 426, p. 1325; 1917 N.J.Laws Ch. 130, p. 288. A joint report of the commissioners was submitted to the respective governors in 1920. The following year the states appointed commissioners to negotiate a compact. 1921 N.Y.Laws Ch. 203, p. 841; 1921 N.J. Laws Ch. 151, p. 412. The Compact was ratified by the states before being sent to Congress for consent. 1921 N.Y. Laws Ch. 154, p. 492; 1921 NJ.Laws Ch. 151, p. 412. The Comprehensive Plan was also drafted and ratified by the states before consent was given by Congress. 1922. N.Y.Laws Ch. 43, p. 61; 1922 N.J.Laws Ch. 9, p. 25. The history of the Port Authority reveals little federal involvement beyond its mere consent to the Compact and the Comprehensive Plan. Moreover, the Port Authority is administered as a state agency. Each state appoints six commissioners who are to be residents of the respective states. N.J. Rev.Stat. § 32:1-5 (1963); N.Y.Unconsol. Laws § 6405 (McKinney 1979). There is no provision for the federal government to appoint commissioners. Since 1922, Congress has not consented to any state legislation regarding the Port Authority’s structure and functions. We view the Port Authority as an entity run as an independent state agency with little or no supervision by the federal government. Although the issue we face today has not been resolved in the context of the Tenth Amendment and the National League of Cities case, there are cases involving the Eleventh Amendment that we find instructive. Courts have held that entities created by compact qualify as a state for the purpose of enjoying the immunity of the Eleventh Amendment. For example, in Howell v. Port of New York Authority, 34 F.Supp. 797 (D.N.J.1940), the court was faced with the argument that the Port Authority was a municipal corporation and not a state agency. The court discussed the composition of the Port Authority and its role of serving primary governmental functions of the states before concluding: “The Port Authority, a bi-state corporation,... is a joint or common agency of the states of New York and New Jersey. It performs governmental functions which project beyond state lines, and it is immune from suit without its consent. 34 F.Supp. at 801. More recently, the Second Circuit was faced with the same issue involving the Palisades Interstate Park Commission, an entity formed by compact between New York and New Jersey. The court noted that any judgment would have to be paid from the state treasuries and stated: “We fail to perceive any reason why a bi-state commission cannot, when sued in the federal court, enjoy the Eleventh Amendment immunity of its signatory states.” Trotman v. Palisades Interstate Park Com’n, 557 F.2d 35, 38 (2d Cir.1977). The Supreme Court had opportunity to address the issue in Petty v. Tennessee- Missouri Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), but instead assumed, arguendo, that the suit be treated one as against a state. The Court then found that the commission had waived any immunity it might have had. In the Eighth Circuit, in the same case, the court had reached the issue and found “the defendant Commission was the agency or instrument of the two States and not an entity separate and apart from the States.” Petty v. Tennessee-Missouri Bridge Commission, 254 F.2d 857 (8th Cir.1958), rev’d on other grounds, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). These Eleventh Amendment cases demonstrate that the courts are willing to treat entities created by interstate compacts as states. We agree that in the analogous situation presented in this case that the Port Authority, an entity created by an interstate compact, should be treated as a state for the purposes of the National League of Cities doctrine. B. The second requirement of the Hodel test is that the federal regulation must address matters that are indisputably attributes of state sovereignty. 452 U.S. at 287-88, 101 S.Ct. at 2365-66. The attribute in question in the instant case is overtime wages paid to employees. The National League of Cities case makes clear that overtime wages are an attribute of state sovereignty. The Court concluded: “Our examination of the effect of [applying FLSA] to the States and their political subdivisions, satisfies us that both the minimum wage and the maximum hour [] provisions will impermissibly interfere with the integral governmental functions of these bodies.” 426 U.S. at 851, 96 S.Ct. at 2474. We conclude that the second requirement of the Hodel test is met. C. The third requirement of the Hodel test is that it must be apparent that the states’ compliance with the federal law would directly impair their ability to structure integral operations in areas of traditional governmental functions. 452 U.S. at 288, 101 S.Ct. at 2366. We conclude that the Detectives are engaged in a traditional governmental function. In National League of Cities, the Court stated: “[The application of FLSA to the States will] significantly alter or displace the States’ abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services. Indeed, it is functions such as these which govern-mente are created to provide, services such as these which the States have traditionally afforded their citizens.” 426 U.S. at 851, 96 S.Ct. at 2474 (emphasis added) (footnote omitted). Thus, we are instructed that police protection is a traditional governmental function. If the Detectives are performing a police function, then the third requirement of the Hodel test (452 U.S. at 288, 101 S.Ct. at 2366) is satisfied. Notwithstanding the fact that the Detectives are not uniformed patrolmen, we believe that they are clearly involved in the activity of police protection. The detective who appears at the scene of the crime, interviews witnesses, and pursues suspects is at the very heart of our system of police protection. Webster’s New Collegiate Dictionary (p. 882,1979 ed.) defines “police” to include “the department of government charged with prevention, detection and prosecution of public nuisance and crimes.” This

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"?

Kal W. LINES, Appellant, v. STATE OF CALIFORNIA, DEPARTMENT OF EMPLOYMENT, Appellee. No. 15484. United States Court of Appeals Ninth Circuit. March 28, 1957. Max H. Margolis, San Francisco, Cal., for appellant. Edmund G. Brown, Atty. Gen., James E. Sabine, Asst. Atty. Gen., and Eugene B. Jacobs, Deputy Atty. Gen., for appellee. Before STEPHENS, POPE and HAM-LEY, Circuit Judges. STEPHENS, Circuit Judge. This is an appeal from a decision of the District Court in bankruptcy proceedings entitled Matter of Blackwood, 147 F.Supp. 93. Appellant is the trustee in bankruptcy. We are here asked to determine whether a trustee in bankruptcy is required to pay to the State of California the tax imposed upon employers by the California Unemployment Insurance Code on wages which had been earned by employees of the bankrupt within the three month period preceding the filing of the bankruptcy petition, when to do so would in effect reduce the dividend paid to the employees out of the bankrupt estate after other expenses .of administration had been paid. Prior to demand by the state for the tax imposed on employers, it was determined that the value of the estate was only sufficient to pay the expenses of administration and a 52% dividend toward the wage claims. The trustee paid the wage dividend after first deducting state and federal taxes of the employees. There were no remaining assets in the estate from which the employer’s tax on the wages could be paid. The referee in bankruptcy held that the trustee was not obligated to pay the employer taxes, but this holding was reversed by the District Court in a well-reasoned opinion. In re Blackwood, 147 F.Supp. 93. As was pointed out by both the referee in bankruptcy and the District Court, a trustee in bankruptcy did not come within the exact statutory definition of “employer” or “employing unit,” since the trustee had not employed the persons to whom the wage dividend was paid. But the District Court, on the basis of United States v. Fogarty, 8 Cir., 164 F.2d 26, 174 A.L.R. 1284 and United States v. Curtis, 6 Cir., 178 F.2d 268, held that with respect to the wages claimed, the trustee was in effect an “employer” and liable for the employer’s contribution based on the payments made to the wage claimants. We agree with this holding by the District Court, but think it appropriate to further expand the reasons for reaching this result. United States v. Fogarty, supra, involved a claim against a trustee in bankruptcy for federal unemployment taxes as well as income withholding taxes. As to the federal unemployment taxes, it was held that the trustee was liable for such taxes based on wages earned by the bankrupt’s former employees prior to bankruptcy. It was therein pointed out that social security legislation was enacted as a broad program for the assistance of the aged and needy and that the function of the courts is to apply it in a manner to effectuate the declared purposes. It was shown that the basis for the administration of federal old age benefits is “wages” and that the character of the payments as wages rather than the relationship of the payor to the payee was the particular concern of the taxing provisions. The Court also pointed out in Fogarty, supra, the federal statute failed to define employers and employees specifically. A Treasury regulation was cited which defined what the phrase “remuneration for employment” includes. In the instant ease the California Act defines “employer,” and there is no state regulation or state statute which is similar to the Treasury regulation defining “remuneration for employment.” But the difference is not controlling. We note that § 926 of the California Unemployment Insurance Code defines “wages as “all remuneration payable for personal services, whether by private agreement or consent or by force of statute, including commissions and bonuses, and the reasonable cash value of all remuneration payable in any medium other than cash.” (Emphasis supplied.) It is apparent that when a dividend is paid out of the bankrupt estate on a wage claim, it is being done “by force of statute.” Thus the sums paid as dividends are “wage” payments within the meaning of the California Act. But we are of the opinion that even without Section 926 of the California Act defining wages, the dividend payments made would still properly be considered as wages. The mere fact that the sums were actually paid to the employees by the trustee does not deprive the payments of their primary identification as wages. tt We think the following quotation in United States v. Fogarty, supra, 164 F.2d at page 29, is applicable to the instant case. “The fact that at the time payments were made those receiving them might no longer have been in the employ of the company would not be material. And certainly in many relations a trustee in bankruptcy stands in the shoes of a bankrupt and the property in his hands, unless otherwise provided in the Bankruptcy Act, is subject to all of the equities impressed upon it in the hands of the bankrupt.” The District Court was correct in holding that the reasons for enacting social security laws were practically the same for both the federal Social Security Act, 42 U.S.C.A. § 301 et seq. and the California Unemployment Insurance Code, and therefore well-reasoned construction regarding the scope of the federal act should have great weight in applying the California Code. Gillum v. Johnson, 7 Cal.2d 744, 62 P.2d 1037, 63 P.2d 810, 108 A.L.R. 595. We also agree with the District Court’s analysis of § 976 of the California Unemployment Insurance Code, which, it was argued, precluded the payment of the taxes as an expense of administration. The cited section provides in part: “ * * * The contributions [employer’s tax] are due and shall be paid to the department for the Unemployment Fund by each employer in accordance with this division and shall not be deducted in whole or in part from the wages of individuals in his employ.” The District Court correctly determined that the California unemployment tax in the instant case was an expense of administration (it having accrued subsequent to the filing of the petition in bankruptcy) and that the payment of such tax is not a deduction from the wages paid to employees. The fund out of which the wage payments are made does not become definite in amount until all expenses of administration have been paid. It would seem that Section 976 of the California Act was enacted to cover the usual and normal situation of a going business. In all respects the judgment of the District Court is affirmed. . The allowance of this appeal was granted pursuant to the provisions of Rule 33 of this Court, 28 U.S.C.A. The amount involved is only $28.88, but the appeal was granted because of its importance to the administration of bankruptcy proceedings in the federal courts of California. . West’s Ann.Cal. Unemployment Insurance Code, § 675. “Employer. ‘Employer’ means any employing unit, which for some portion of a day, has within the current calendar year or had within the preceding calendar year in employment one or more individuals and pays wages for employment in excess of one hundred dollars ($100) during any calendar quarter.” . West’s Ann.Cal. Unemployment Insurance Code, § 135. “Employing Unit. ‘Employing unit,’ means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, corporation whether domestic or foreign, and the receiver, trustee in bankruptcy, trustee or successor thereof, and the legal representative of a deceased person, which has, or subsequent to January 1, 1936, had, in its employ one or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains two or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this division.”

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

EARLE v. COMMISSIONER OF INTERNAL REVENUE, and two other cases. Nos. 2402-2404. Circuit Court of Appeals, First Circuit. March 5, 1930. Philip Nichols, of Boston, Mass. (Arthur P. Teele and Joseph A. Boyer, both of Boston, Mass., on the brief), for petitioners. Morton P. Fisher, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and John MaeC. Hudson and Sewall Key, Sp. Attys., Bureau of Internal Revenue, all of Washington, D. C., on the brief), for Commissioner. • Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge. MORRIS, District Judge. These are three appeals from a decision of the Board of Tax Appeals denying the petitioners a redetermiu ation of an alleged deficiency in their income taxes foir the year 1923. The amounts involved are respectively $717.23 in the ease of Arthur H. Earle; $736.41 in the case of Foster B. Earle; and $4,045.47 in the case of Arthur H. Earle, executor. The three cases depend upon the same state of facts, and were heard together. The individual petitioners and the decedent were members of a partnership formed January 1, 1923, and dissolved by death! of Eugene Y. Earle, one of the partners, on July 1, 1923. Prior to January 1, 1923, Eugene Y. Earle was a real estate operator engaged in the business of purchasing land, erecting business blocks thereon, and selling the completed buildings. On January 1, 1923, he took into partnership his two sons, Foster B. Earle and Arthur H. Earle. Each of the sons was to have a one-quarter interest in the profits and Eugene V. Earle one-half interest. The father, Eugene Y. Earle, contributed capital in the business to the amount of $151,219.74, representing his investment at that time in his individual business. He had under construction a building on Clarendon street in Boston, the construction of which was taken over by the partnership and completed shortly before June 14, 1923. The building was sold on the last-mentioned date at a profit to the partnership of $70,793.37. Prior to June 30, 1923, the partnership acquired a tract of land on Columbus avenue, Boston, at a cost of between $110,000 and $120,000. The partnership intended to erect on this lot an eight-story building. At the time of the death of Eugene Y. Earle the lot had been excavated and the contract let for putting in the foundation. There was a mortgage of $30,000 on the land. In addition to the Columbus avenue property, the partnership owned mortgages of about $15,000, and also had cash which it was using in the Columbus avenue project. The surviving partners could not sell the lot in the condition in which it stood at the date of their father’s death. They finally determined to proceed with the project, limiting the building to three stories. It was completed July, 1924. The building as erected never earned expenses. In 1928 an additional mortgage was placed upon the property and five stories added. All of the partnership funds were invested in this enterprise. In 1923, prior to the death of Eugene Y. Earle, the partners had caused a corporation to be formed under the name of Eugene Y. Earle & Sons, Inc. Its stoek had not been issued on July 1, 1923. On September 14, 1923, the stock was issued and divided between the estate of the decedent, Foster B. Earle and Arthur H. Earle, in the amounts of $5,000, $2,500, and $2,500 respectively. All of the partnership assets were transferred to the corporation, which assumed all of the liabilities of the partnership. There h'as been no sale of the stoek, and the corporation continues to own the Columbus avenue property. The sole question presented is whether or not the petitioners must include in their individual income tax return their respective distributive shares of the partnership income under the provisions of section 218 (a) of the Revenue Act of 1921 (42 Stat. 245), which provides as follows: “That individuals carrying on business in partnership shall be liable for income tax only in their individual capacity. There shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year, or, if his net income for such taxable year is computed upon the basis of a period different from thatupon the basis of which the net income of the partnership is computed, then his distributive share of the net income of the partnership for any accounting period of the partnership ending within the fiscal or calendar year upon the basis of which the partner’s net income is computed. * * * “(e) The net income of the partnership shall be computed, in the same manner and on the same basis as provided in section 212. * *■ * Section 212 (42 Stat. 237) provides for the computation of the net income of individuals by including therein gross income as defined in section 213 and deducting therefrom the items allowed by section 214. Section 213 (a) provides that gross income shall include among other things profits and incomes derived from sales or dealings in property whether real or personal, growing out of the ownership or use of, or interest in, such' property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. The amount of such items shall be included in the gross income for the taxable year in which received by the taxpayer, except when a different method of accounting is authorized under other provisions of the law not important to be considered in this ease. In computing net income; the deductions allowed under section 214 (a) are the ordinary and necessary expenses paid during the taxable year in carrying on any trade or business; interest paid or accrued within the taxable year on indebtedness except on indebtedness incurred or continued to purchase or carry on obligations or securities; taxes paid or accrued within the taxable year; losses sustained during the taxable year if incurred in trade or business; debts ascertained to be worthless, etc. The claim of the petitioner is that the partnership ceased to exist upon the death of Eugene V. Earle on July 1, 19-23, and that, in accordance with chapter 486, Massachusetts Acts of 1922, the surviving partners had no right to possess the partnership property for any but partnership purposes; that they had the right to wind up the partnership affairs, and, on settling the accounts between partners after dissolution, the following statutory rules must be observed. “Massachusetts Acts of 1922, e. 486, see. 40. “In settling accounts between the partners after dissolution, the following rules shall be observed, subject to any agreement to the contrary: “(a) The assets of the partnership are— “I. The partnership property. “II. The contributions of the partners necessary for the payment of all the liabilities specified in clause (b) of this section.. “(b) The liabilities of the partnership shall rank in order of payment, as follows: “I. Those owing to- creditors other than partners. “II. Those owing to partners other than for capital and profits. “III. Those owing to partners in respect of capital. “IV. Those owing to partners in respect of profits.” It is urged by petitioners that, the partnership having been dissolved during the taxable period, the surviving partners and the estate of the deceased partner had no individual rights in the partnership assets until the partnership was wound up and the assets distributed in accordance with the Uniform Partnership Law which has been adopted by the Massachusetts Legislature. Citing Blodgett v. Silberman, 277 U. S. 1, 12, 48 S. Ct. 410, 72 L. Ed. 749. It is further urged that under the provisions of section 218 of the Revenue Act, supra, the petitioners could not be taxed for the reason that the proper tax must be measured by the “distributive share” of each partner, and that no share of the profits was “distributive” until the balance of the assets over return of capital was ascertained. Section 218 (a) provides that there shall be included in computing the net income of each partner his distributive share, whether distributed or not, of the net income of the partnership for the taxable year. There is no suggestion in this language that the word “distributive” was used in a narrow, technical sense. The context appears to preclude such a narrow construction. If the word “distributive” were to be limited to the share each partner receives from actual distribution of profits, either from a going concern or upon dissolution of the partnership, the words of the statute “whether distributed or not” become meaningless. Each partner has a potential right to his share of undivided profits. Plainly, the word “distributive” is used in the sense of “proportionate.” It is the partner’s proportionate share of the net income of the partnership gained during the taxing period that is taxable whether distributed or not. Losses suffered during the same period are allowed as deductions -from partnership gross income in arriving at net profits. Holmes, Fed. Taxes 1923. Ed. 207. It appears from the record that the partnership was wound up on the 14th day of September, 1923, when the interests of the several partners were conveyed to a corporation and stock received in exchange therefor. The partnership ceased to exist after September 14,1923. It had no assets and no liabilities. Each partner took his share of partnership property including net income in corporate stock. The petitioners contend that the partners had no distributive share of partnership profits because there was a decrease in the value of the capital assets, and that the capital loss was sufficient in the exchange of the assets for the capital stock of the corporation to wipe out the profits previously made. As we understand the facts, the partnership had made a net profit of $70,703.37 prior to July 1, 1923. Its assets were being used in another enterprise which was not completed until July, 1924. Whether this second enterprise would result in a gain or loss could not be ascertained within the taxing period. Any contention that net income for the taxable year 1923 would be wiped out by losses expected in future years is untenable. Income taxes are levied upon the net income for an annual accounting period. Gains in one period may not be offset by losses in another ; therefore there was no deductible loss in 1923 unless it was sustained when partnership assets were exchanged for corporate stock. Whatever may have been the par value of the stock received by the partners, it represented their entire interests in the partnership assets, including any net income. There was no sale of the stock during the taxing period. The fact that only $10,000 par value of stock was issued is not controlling. They may as well have issued shares of stock of no par value. Under section 202, Revenue Act of 1921 (42 Stat. 229), no loss is deductible in such a transaction. This court so held in the case of Tsivoglou v. United States, 31 F.(2d) 706, 708. In each ease: The order of the Board of Tax Appeals is affirmed.

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

William C. WEST and Virginia B. West, Appellees, v. UNITED STATES of America, Appellant. No. 13180. United States Court of Appeals Fourth Circuit. Argued June 12, 1969. Decided July 24, 1969. Jonathan S. Cohen, Attorney, Department of Justice (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson and C. Guy Tadlock, Attorneys, Department of Justice, on the brief), for appellant. Peter W. Martone, Norfolk, Va. (Leroy T. Cañóles, Jr., Vincent J. Mastracco, Jr., and Candes & Mastracco, Norfolk, Va., on the brief), for appellees. Before BOREMAN, BRYAN and BUTZNER, Circuit Judges. ALBERT V. BRYAN, Circuit Judge: The Commissioner of Internal Revenue appeals a decision of the United States District Court for the Eastern District of Virginia, at Norfolk, holding that no portion of the payments made by William West to his former wife Annie was clearly designated as child support, and thus the payments were wholly alimony and not includable in William’s income. Int.Rev.Code of 1954 § 71, 26 U.S.C. § 71. William and Annie entered into a separation agreement April 10, 1950, which was later incorporated in a divorce decree a mensa et thoro of September 1, 1950, and carried into a decree a vinculo matrimonii of April 10, 1952. The agreement provided for the payment of $35 per week as alimony for Annie and for support of the three children born of the marriage. When any child reached 21 or became self-supporting, the weekly sum was to be reduced by $10, and if the wife remarried, the sum was to be reduced by $5 per week. Another clause, crucial here, provided that Annie “un dertakes to expend at least Thirty ($30.-00) Dollars per week of the amounts paid her by [William] for the use and benefit of their infant children.” (Accent added.) Section 71 of the Internal Revenue Code of 1954, supra, provides: “(a) General rule.— (1) Decree of divorce or separate maintenance. — If a wife is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, the wife’s gross income includes periodic payments * * * received after such decree in discharge of * * * a legal obligation which, because of the marital or family relationship, is imposed on or incurred by the husband under the decree or under a written instrument incident to such divorce or separation. * * * * * * “(b) Payments to support minor children. — Subsection (a) shall not apply to that part of any payment which the terms of the decree, instrument, or agreement fix, in terms of an amount of money or a part of the payment, as a sum which is payable for support of minor children of the husband.” (Accent added.) Thus whether periodic payments are in whole or in part alimony and so assessable as income to the wife, or are child support and thus assessable as income to the husband, turns on whether the decree or separation agreement “fixes” an amount as child support. If an agreement providing a sum for both alimony and child support contains stated reductions in the amount upon remarriage of the wife, or a child’s marriage, achievement of self-sufficiency, or attainment of the age of 21, seemingly it can be inferred just how much of the payment is child support and how much is alimony. Such an inferential determination does not, however, provide the specificity required by 71(b). Commissioner of Internal Revenue v. Lester, 366 U.S. 299, 81 S.Ct. 1343, 6 L.Ed.2d 306 (1961). Thus in the instant situation, the separation agreement “fixes” $30 per week as child support only if the “undertakes” clause, just quoted from the agreement, does so. In making this determination, we are guided by Lester, where it is said pertinently: “The agreement must expressly specify or ‘fix’ a sum certain or percentage of the payment for child support before any of the payment is excluded from the wife’s income. The statutory requirement is strict and carefully worded. It does not say that ‘a sufficiently clear purpose’ on the part of the parties is sufficient to shift the tax. It says that the ‘written instrument’ must ‘fix’ that ‘portion of the payment’ which is to go to the support of the children. Otherwise, the wife must pay the tax on the whole payment.” Id. at 303, 81 S.Ct. at 1346. Applying Lester, the District Court found that “ ‘undertakes to spend at least Thirty ($30.00) Dollars per week * * * for the use and benefit of their infant children’ * * * does not so meet the test of specificity as to ‘fix’ the obligation. The word ‘undertakes’ in the opinion of this Court, in this connotation, means something less than ‘shall’ * * * ” West v. United States, 292 F.Supp. 845, 847 (E.D.Va.1968). We find the District Court’s reading of Lester too exacting. The Court in Lester pointed out that the design of 71(b) is to permit divorced parents to place the income tax burden, on moneys used as child support, upon either husband or wife. However, to avoid uncertain tax consequences and ease revenue collection, the statutory scheme taxes the wife, unless the spouses clearly impress a child support character upon the payments. 366 U.S. at 302-303, 81 S.Ct. 1343. Nevertheless Lester requires only words of designation, not words of obligation. No talismanic rubric is demanded; only specification of a certain amount, as here, for child support is needed. Support for our conclusion is found in Commissioner of Internal Revenue v. Gotthelf, 407 F.2d 491 (2 Cir. 1969). There a separation agreement called for a husband to pay $12,000 per year to his divorced wife and two minor children. If she remarried the total was to be reduced by $5,000, and if a child married or reached 21 in age, a $3,500 reduction followed. A final clause bound the estate of the husband in the amount of $7,000 per year “for the benefit of the two children, as in this agreement provided for.” The Tax Court, 48 T.C. 690, held, and the Second Circuit affirmed, that the final clause provided the specificity to fix $7,000 as child support. The judgment on review must be vacated, and the District Judge requested to enter an order sustaining the Commissioner’s assessment. Vacated 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 "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?

The HOBART MANUFACTURING COMPANY, Plaintiff-Appellant, v. The FIDELITY & DEPOSIT COMPANY OF MARYLAND, Defendant-Appellee. No. 16303. United States Court of Appeals Sixth Circuit. May 13, 1966. William D. Ginn, Cleveland, Ohio, for appellant, Robert A. Bergquist, Thompson, Hiñe & Flory, Cleveland, Ohio, on the brief. Walter A. Bates, Cleveland, Ohio, for appellee, Peter Reed, Arter, Hadden, Wykoff & Van Duzer, Cleveland, Ohio, on the brief. Before O’SULLIVAN, EDWARDS and CELEBREZZE, Circuit Judges. CELEBREZZE, Circuit Judge. Plaintiff-Appellant, The Hobart Manufacturing Company, appeals from a final judgment for Defendant-Appellee, The Fidelity & Deposit Company of Maryland, entered on a motion for a directed verdict at the close of the Plaintiff’s evidence. The parties will be hereinafter referred to as Plaintiff and Defendant. D. Omer Tobias, an employee of Plaintiff, swindled from the Plaintiff approximately $400,000., therefore this appeal necessitates a determination of the extent of coverage of Clauses 1 and 1(a) of Defendant’s depositor’s forgery bond. Plaintiff is one of the world’s largest manufacturers of food preparation equipment. In addition to its domestic sales, Plaintiff exported its products to many foreign countries. Tobias worked in the export department and maintained all the records relevant to the export accounts. He was authorized to determine company creditors, to calculate amounts due them, and to requisition checks in payment of those creditors. When Tobias determined the amount due to an export agent, or creditor, he would prepare a requisition form, sign his name, and send the form to the General Accounting Department. The General Accounting Department would prepare a two-part voucher check. The voucher check, together with the requisition form, was then sent to the Treasurer’s Department for signature, after signature, the voucher check was returned to the General Accounting Department. The General Accounting Department retained the carbon copies for internal purposes, and the original voucher check was returned to Tobias in the Export Department. Tobias would then transmit the check, with its two halves intact, to the named payee. The top half of the two-part voucher check was a negotiable check, containing the name of the Plaintiff as drawer, the First Troy National Bank and Trust Company, as drawee, the authorized signature of the drawer, S. T. Kunkel, the date, the amount, the words “Pay to the order of”, and the check number. The check portion was attached to the voucher portion by a perforated line. Just below the perforated line were the words “Please detach before depositing”. The voucher contained six columns. In the following order they were labeled: “Invoice No.”, “Date”, “Am’t. of Invoice”, “Deductions”, “Discount”, and “Net Amount”. In some instances rather than forwarding the check directly to the export agent, Plaintiff was instructed by the export agent to forward the check to a collecting agent. The check would then be made payable to the collecting agent, and Plaintiff would then charge the account of the export agent. The eighty-nine checks involved in this suit were requisitioned by Tobias in the manner just described. However, the ostensibly legitimate debts to the export agents were in fact fictitious. The purported collection agents were in fact real persons, or an existing bank. In requisitioning these checks, Tobias did not request that they be payable directly to the export agent, but rather to a collecting agent. Tobias requisitioned twenty-six checks totaling $39,328.00 to Maude Feld as the named payee. He requisitioned thirty-one checks, totaling $176,-202.44, to Thelma Harding as the named payee. Tobias represented to the Plaintiff that Peld and Harding were authorized to receive the funds on behalf of the designated export agent. The voucher part named the export agent whose account was charged by Plaintiff. Feld and Harding were in fact antique dealers from whom Tobias had purchased large quantities of antiques. Tobias would detach the voucher portion and send the checks to the named payees. By detaching the voucher, Tobias concealed from Peld and Harding the purpose for which the checks were drawn. Each of the checks payable to Peld and Harding were endorsed by them, deposited for collection, and paid by the drawee bank. The account of the Plaintiff was then charged by the bank. These checks were thus used to discharge Tobias’ personal obligations to Feld and Harding. Tobias also requisitioned thirty-two checks, totaling $145,362.54 to the Guaranty Trust Company of New York, as the named payee. The voucher part stated the name of the export agent or individual whom Tobias represented as being authorized to receive the funds on behalf of the designated creditor. It was intended by the Plaintiff that the Guaranty Trust Company would deposit the funds to the account of the export agent named in the voucher. Again, only Tobias knew that the ostensibly legitimate debts were in fact fictitious. Tobias would either physically alter the voucher by crossing out the name of the export agent and inserting his own name, or he would detach the voucher and instruct the bank to deposit the funds to his own account. Each check was endorsed by the Guaranty Trust Company, and sent to the Troy Bank which paid the check and charged Plaintiff’s account. Guaranty Trust Company, in turn credited the amount of the check to Tobias’ account, and Tobias later withdrew the money. By altering or detaching the vouchers, Tobias succeeded in concealing from the Guaranty Trust Company the intended purpose of the Plaintiff in issuing the cheeks. It is upon these facts that Plaintiff asserts its claim against the Defendant under the Defendant’s depositor’s forgery bond. The pertinent parts of this bond are as follows: “In consideration of an agreed premium, Fidelity and Deposit Company of Maryland, a corporation of the-State of Maryland, with its Home Office in the City of Baltimore, hereinafter referred to as Underwriter, hereby undertakes and agrees to idemnify [The Hobart Manufacturing Company] designated as Insured in Section 10 of this bond to the amount specified therein for losses sustained and discovered as hereinafter set forth through: “Insuring Clauses “1. FORGERY or ALTERATION of, on, or in any check, draft, promissory note, bill of exchange, or similar written promise, order or direction to pay a sum certain in money, made or drawn by, or drawn upon the Insured, or made or drawn by one acting as agent of the Insured, or purporting to have been made or drawn as hereinbefore set forth, including “(a) any check or draft made or drawn in the name of the Insured, payable to a fictitious payee and endorsed in the name of such fictitious payee whether or not such endorsement be a forgery within the law of the place controlling the construction thereof: * * *» Plaintiff advances two theories under either of which it would be entitled to recover from the Defendant under the depositor’s forgery bond. The Plaintiff first maintains that the unauthorized alteration of the voucher or the unauthorized detachment of the top half from the bottom half of the two-part voucher check before transmittal of the top half to the named payee constituted a “forgery or alteration” within the meaning of the Defendant’s forgery bond. Plaintiff also maintains that the payees named were “fictitious” payees, within the meaning of Defendant’s forgery bond. There is no question that Tobias defrauded his employer. However, we are not dealing here with a fidelity bond, but with a depositor’s forgery bond. The bond issued by Defendant requires a forgery or alteration "of, on, or in any check, draft, promissory note, bill of exchange or similar written promise, order or direction to pay a sum certain in money”. The instrument used by the Plaintiff was a two-part voucher check commonly used by many companies. The Plaintiff intended and instructed the payee to detach the voucher before depositing the check. The voucher served as a receipt, and also indicated the goods, services, or debts owed. This was the usual and intended purpose of the Plaintiff’s two-part voucher checks. However, in the eighty-nine checks here in evidence, the purported collection agent was named as the payee on the check portion, and the purported account to be credited was named on the voucher portion. Tobias’ scheme was perfected by naming as the payee a real person or an existing bank intended by Tobias to receive the check, endorse it, and deposit it for collection. This was done in each case by the named payee. There was no forged endorsement, and there was no need to forge or alter the check. Because of the alteration or detachment of the vouchers, neither the payees, the bank, nor the Plaintiff discovered the fraud. A check has been defined as an unconditional order in writing drawn on a bank, requiring the bank to pay on demand a sum certain in money to order or bearer. Former Ohio Revised Code Sections 1307.03 and 1305.02; State v. DeNicola, 163 Ohio St. 140, 126 N.E.2d 62 (1955). A check has also been referred to as a complete negotiable instrument. Royal Jewelers, Inc. v. Tanner, 95 Ohio App. 339, 108 N.E.2d 291 (1952). We think this common and accepted definition of a check is the definition intended in the insuring clauses here in issue. We do not construe forgery or alteration of a check to include forgery or alteration of a voucher. The Plaintiff intended only that the top half, or the check half, would be negotiated. The voucher was attached by a perforation with- the instruction to detach before depositing. It is the negotiable check which determines the rights and obligations of the parties to the instrument. We have considered Plaintiff’s contention that there is no issue of negotiability or of banking practices; that the only issue is what constitutes an alteration of the instrument within the meaning of Defendant’s bond. In effect, Plaintiff’s contention is that a different rule of construction than that generally accepted must be applied to language in a recovery bond. We disagree with this contention. We must give to the language contained in the bond the same meaning and effect that the language conveys in the general application of the rule of negotiability as to what constitutes a check. We cannot apply one rule of construction as to what constitutes a check in the channels of commerce and another rule of construction because the language is contained in a bond. The same fundamental principles of construction are involved in either case, and unless specific language to the contrary is contained in the bond instrument the same rule of construction that is applicable to the rules of negotiability must be applied. To hold that an alteration or unauthorized detachment of a voucher constitutes a forgery or altera.tion of a check would be to raise a serious question as to whether a check which initially had a perforated voucher attached thereto with instructions to detach before depositing would be accepted. The check travels as a “courier without luggage”. The essence of this clever scheme was fraudulently obtaining firm funds for an unauthorized purpose, not in falsifying .negotiable paper. We can only conclude that forging or altering a voucher is beyond the risk intended to be covered by Defendant’s bond, and consequently was not a forgery or alteration of a check. Plaintiff next contends that the checks here in issue were made payable to fictitious payees. These checks were drawn prior to the adoption of the Uniform Commercial Code in Ohio, In Ohio, prior to the adoption of the Commercial Code, an instrument made payable to the order of a fictitious or non-existent person, or a real person not intended to have an interest therein, and such fact was known to the person making it so payable, was deemed payable to bearer. Hartford Accident & Indemnity Co. v. Fifth-Third Union Trust Company, 111 F.2d 762 (C.A. 6, 1940); Former Ohio Revised Code Section 1301.11; 40 O.Jur. 2d, Negotiable Instruments, Section 49.' Under this rule, the drawee bank would not sustain a loss in handling checks so payable, since the drawer’s order would be complied with in making payment to the bearer, thus eliminating the possibility of forgery. A check drawn to a fictitious payee is not payable to bearer where the non-existence of the payee was not known to the drawer. 10 Am.Jur.2d, Banks, Section 640; Callaway v. Hamilton National Bank of Washington, 90 U.S.App. D.C. 228, 195 F.2d 556 (1951). Prior to the Uniform Commercial Code, a check was not payable to bearer where an employee without authority to draw negotiable paper had his employer sign a check payable to a fictitious employee, and forged the employee’s name. American Sash and Door Co. v. Commerce Trust Co., 332 Mo. 98, 56 S.W.2d 1034 (1932). The test then, is not whether the payee is a fictitious creditor, as urged by the Plaintiff, but whether the drawer of the cheek intended the payee to have an interest in the check. In this case, Tobias authorized the issuance of the checks, and S. T. Kunkel, authorized to do so, signed the checks. If Kunkel’s intent controls, the checks were not payable to a fictitious payee since Kunkel did not know the payees were in fact fictitious, for he intended the payees to have an interest in the checks. In Ohio, Tobias’ intent would control, both before and after the adoption of the Uniform Commercial Code. Jones v. People’s Bank Co., 95 Ohio St. 253, 116 N.E. 34 (1917) held the person authorized to request checks was the person making the checks payable to a fictitious payee. This was the minority rule. Beutel’s Brannan Negotiable Instruments Law, Section 9(3), p. 317. Under the Uniform Commerical Code, Section 3-405, Ohio Revised Code Section 1303.41, an “in-dorsement by any person in the name of a named payee is effective if * * * (c) an agent or employee of the maker or drawer has supplied him with the name of the payee intending the latter to have no such interest.” Tobias intended the named payees to receive possession of the checks. The named payees endorsed the checks, and obtained the proceeds. The proceeds were subsequently either deposited to Tobias’ account, or used to discharge Tobias’ personal obligations to the named payees. Under these circumstances, we cannot say the checks were payable to fictitious payees. 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. 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?

GAUNT v. VANCE LUMBER CO. Circuit Court of Appeals, Ninth Circuit. March 18, 1929. • Rehearing Denied April 22, 1929. No. 5636. B. S. Grosseup, W. C. Morrow, and Chas. A. Wallace, all of Seattle, Wash., for appellant. W. H. Abel, of Montesano, Wash., and Poe, Falknor, Falknor & Emory, of Seattle, Wash., for appellee. ' Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge. DIETRICH, Circuit Judge. Appellant is executrix of the estate of R. M. Gaunt (hereinafter referred to as the broker), who brought this suit for the purpose of obtaining a decree for the reformation of a written contract between her, the decedent, and the appellee, Vance Lumber Company (hereinafter referred to as the company), and for the enforcement of the reformed contract by the entry of a money judgment. It appears that in 1923 the company was the owner of large tracts of timber land, cut-over land, a sawmill, a planing mill, shingle mills, a logging railroad, a store, hotel, and numerous cottages for its employees, and complete equipment for logging and lumbering, all near Malone, in the state of Washington. Owing in part to the frail health of the head of the concern, it was decided to sell at least the major portion of the property, if a satisfactory purchaser could be found. Prior to the execution of the writing in question there had been some discussion of this desire, between officers of the company and the broker, who represented that she had a prospective purchaser, but it was of an indefinite, inconclusive character, and not highly material here. The writing which the court is asked to reform consists of a letter written on July 5, 1923, by the company, through its secretary, from its office in Malone to the broker at Tacoma, together with a plat referred to therein and inclosed therewith. The letter is as follows: “Dear Madam: Referring to our-former correspondence regarding a description and price of our holdings we beg to submit the following: “The property consists of sawmill with a capacity of 140,000 feet per eight-hour day, blacksmith and machine shops. Planing mill with necessary dry kilns and dry lumber sheds. Two shingle mills with dry kilns. We have just recently completed the installation of a 1,000 K. W. General Electric Company turbine with neeessary motors for supplying power for the above properties. Office and store buildings with stock of merchandise, hotel with accommodations for 100 people, 65 cottages for the accommodation of employees with families, pool hall and picture show house. “The logging equipment consists of one 100-ton Baldwin rod engine (new), two Heisler geared locomotives, 17 Donkey engines, with necessary lines, blocks, etc., 2 steam shovels, 11 flat ears, 1 steel moving car, 3 oil tank cars, 42 connected logging trucks, 6 ballast cars, camp ears for two camp units, and about 14 miles of standard gauge railroad. Standing timber that will cut 400 million, about 75 to 80 per cent, fir, balance hemlock, spruce and cedar. There is also about 500 million feet of standing timber available, but not owned by the company. “We are holding this property for $3,-250,000.00 with commission to you of 2% and will sell on terms of one-third cash' and $7.50 per thousand feet for all timber cut from our lands and $2.50 per thousand feet for all timber cut from other lands, with a minimum payment of $500,000.00 per year, interest on deferred payments at 5%. “We are inclosing herewith plat showing our holdings, together with holdings of other companies in this vicinity. Trusting that this will supply you with the desired information, we are, “Yours very truly, “Vance Lumber Company, “By H. B. Dollar.” Upon the plat, which was a common form, delineating sections, townships, and ranges, were exhibited in colors the timber lands of the company, and adjacent timber lands belonging to other companies, with appropriate marginal legend explanatory thereof; also lines locating in a general way the logging railroad and its connection with the Northern Pacific at the town of Malone. Upon no one of the tracts so exhibited as belonging to the company were located any of its structures referred to in the letter, or any unit of the lumbering plant, but, as we understand from an ambiguous record, as explained in appellee’s brief, there was with the plat an unsigned writing, dated July 5, on what was apparently a letterhead of the company, in which was set forth the same general descriptive matter as that of the letter, followed by a particular description of the tracts shown on the plat in color, and ending with this language: “Also: Lands in sections 10, 16, 17, Township 17 North, Range 5 West, where the mill, office buildings, hotel, cottages and other buildings in the town of Malone, Washington, are situated. All the above property situated in Grays Harbor and Thurston comities, state of Washington.” Neither upon the plat nor in this writing was there any description of the cut-over lands, and there is no contention that the company owned all, or even the maijor portion, of sections 10, 16, 17, in township 17. On August 15, 1923, the company wrote to the broker: “As we are giving an option upon the property that we offered for sale, please do not do anything further with this until you hear from us again.” It turns out that the option thus referred to was given to the Mason County Logging Company, and that pursuant thereto, on January 9, 1924, Vance Lumber Company and the Mason County Logging Company entered into a binding contract under the terms of which the former agreed to sell and the latter agreed to buy for a sum named all the holdings of the former, including not only the timber lands shown on the plat, but all the structures referred to in the letter of July 5, and certain lands in sections 10, 16, and 17 of township 17 north, range 5 west, described by metes and bounds, but also the cut-over lands of the company, aggregating between 1,000 and 2,000 acres. Thereafter, on May 2,1925, the broker, contending that she had procured this purchaser for the company pursuant-to the terms of the letter of July 5, 1923, brought a suit in one of the superior courts of Washington for the recovery of the amount of her commission, computed upon the sale price at the rate provided in the letter. At the trial, after a jury was impaneled, the court held in that ease that the alleged contract was insufficient and void under the statutes of Washington, and thereafter, upon motion of the company, granted a nonsuit. It is to be inferred that this action was taken by the state court because of the defective description, or want of description, of the lands owned by the company upon which its structures and plant were located, and of its eutover lands; and inasmuch as appellant impliedly concedes the correctness of that ruling, and the nonenforeeability of the contract without reformation, it is needless for us to discuss that branch of the case, it being sufficient to say that the ruling rests upon a provision of section 5825 of Remington’s Compiled Statutes of Washington, declaring that “an agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or a commission” “shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the .party to be charged therewith, or by some person thereunto by him lawfully authorized.” Eor cases in which, the Supreme Court of the state has directly or indirectly construed the provision, see Thompson v. English, 76 Wash. 23, 135 P. 664; Cushing v. Monarch Timber Co., 75 Wash. 678, 135 P. 660, Ann. Cas. 1914C, 1239; Rogers v. Lippy, 99 Wash. 312, 169 P. 858, L. R. A. 1918C, 583; Big Four Land Co. v. Daracunas, 111 Wash. 224, 190 P. 229; Goodrich v. Rogers, 75 Wash. 212,134 P. 947; Baylor v. Tolliver, 81 Wash. 257, 142 P. 678; White v. Panama Lumber Co., 129 Wash. 189, 224 P. 563; Nance v. Valentine, 99 Wash. 323, 169 P. 862; Engleson v. Port Crescent Shingle Co., 74 Wash. 424, 133 P. 1030; Black v. Milliken, 143 Wash. 204, 255 P. 101; Farley v. Fair, 144 Wash. 101, 256 P. 1031; Campbell v. Weston, 87 Wash. 73, 151 P. 103; Coleman v. St. Paul, 110 Wash. 259, 188 P. 532. By the statute, so construed, admittedly we are' bound. In her complaint herein the broker alleged that it was the intention of the company to employ her to sell all of its property described in the contract with the Mason County Logging Company, and that it was understood and agreed that such would be the scope of the contract, but that in entering into the agreement, as evidenced by the letter of July 5th, through mutual mistake and inadvertence of both parties, “or the mistake and inadvertence of the complainant and the fraud of the defendant,” the description was left inadequate and incomplete, and that therefore “the complainant cannot enforce said contract of employment and recover the full amount of her commission now due and owing her in an action at law.” The broker died prior to the trial, and little evidence was offered by the plaintiff. Indeed, the testimony adduced adds little, if anything, to what is expressed in the letter of July 5th and the inclosures, or to what may be fairly inferred therefrom, and after hearing it the court below held that the showing did not warrant reformation. Said the court: “The most that can be said, the letter, with the plat, is the conclusion of the minds of the parties, and basis on which the minds met, if they did meet. There was no mutual mistake. If the minds of the parties did not meet upon the letter and the map, there was no meeting of the minds. From the bill of complaint, the minds of the parties never met as to the identity of the property to be sold.” With this view we are in-accord. Not only is there an absence of reference in the writing to the cut-over lands, but the evidence leaves no room for doubt that such lands were intentionally excluded from the coverage of the so-called contract, and the omission of their description was a result of neither mutual mistake nor fraud. The mills and eottagés and other structures were doubtless intended by both parties to be within the terms of the contract, but the failure of the writing to measure up to the requirements of the state statute of frauds in point of description was not due to fraud. It is to be inferred that both parties in good faith believed it to be sufficient, and the mistake was a mistake in judgment as to its legal sufficiency. But if it be conceded that, in exceptional eases, a mistaken view of the law may afford a basis for reformation, this cannot be held to be such, a ease without in effect rendering the statute of frauds nugatory. In all cases of attempted agreements in writing, presumably both parties intended to enter into a valid, binding contract, and if such intention is the only requisite basis to warrant the reception of oral testimony touching the nature and scope and terms of the intended agreement, “reformation” would be possible in any ease. Parties might in good faith believe that a written memorandum given by one to the other is sufficient in law, even though unsigned by either, and they both might fully intend that such a memorandum should constitute a binding agreement; but, in such a case, for a court of equity to require a party to attach his signature would operate to abrogate the statute. In case of performance by the plaintiff, reformation has sometimes been decreed where apparently the relief would have been denied, had the agreement been wholly executory. But, assuming such a consideration to have validity, it is not here presented. There is no element of estoppel. Plaintiff offered no evidence of performance by the broker, and in so far as the record discloses she not only had nothing to do with the sale to the logging company, but all she did looking to a sale to any one was trivial. Indeed, the record does not show that she ever answered the letter of July 5th, or bound herself to any obligation. True, with the approbation of the court, plaintiff refrained from adducing evidence touching performance as a basis for recovery of a money judgment, in the event the preliminary relief of reformation was granted; but the question of reformation was being tried, and plaintiff was therefore bound to adduce such evidence as she relied upon for the determination of that issue. 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?

MARION COUNTY COURT, W. VA., v. RIDGE et al. (Circuit Court of Appeals, Fourth Circuit. June 8, 1926.) No. 2477. 1. Courts @=>354 — In federal court, motion to • set aside judgment made during term, and held open, may be aoted on thereafter. While a federal court has no power to set aside judgments after the term at which they are rendered, it has complete control over them during the term, and, where motion to set aside is made during the term, and held open for further consideration, it may be acted on after the term has expired. 2. Courts @=>354. On a motion* to set asido a judgment, federal courts are governed by the practice prescribed by the state statutes. 3. Judgment @=>145(1) — Motion to set aside default judgment held to show “good cause” (Code W. Va. o. 125, § 47). Motion to set aside default judgment against a county court of West Virginia, entered more than 4 years after the action was commenced, held to show “good cause,” within Code W. Va. e. 125, § 47, where summons was served on a chairman of the court, who soon went out of office, as did the county attorney, and his successor had no knowledge that the county was in default for want of answer, and relied on a rule of court requiring notice before trial, and especially in view of the long inaction of plaintiff. 4. Counties @=>222 — Declaration, not showing presentation and disallowance of claim against county, as required by state statute, held insufficient (Code W. Va. o. 39, § 41). Declaration in an action on contract against a county court of West Virginia does not state a cause of action which will sustain a judgment by default, where it does not allege prior presentation of the claim to the county court and its disallowance, as required by Code W. Ya. e. 39, § 41. 5. Courts @=>374. Limitations on suits against counties imposed by state statute, requiring presentation of claims, will be enforced in federal courts. In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Jndge. Action by Patrick Ridge and another, partners doing business as the Ridge Bros. Company, against the County Court of Marion County, W. Va. From an order denying a motion to set aside judgment for plaintiffs, defendant brings error. Reversed and remanded, with directions. M. W. Ogden, M. E. Morgan, and John W. Mason, Jr., all of Fairmont, W. Va., for plaintiff in error. John J. Coniff, of Wheeling, W. Va., for defendants in error. Before WADDILL and PARKER, Circuit Judges, and COCHRAN, District Judge. PARKER, Circuit Judge. Patrick Ridge and Mike Ridge, partners doing business as Ridge Bros., plaintiffs in the court below, obtained a default judgment for the sum of $20,090.11 against the defendant, county court of Marion county, W. Va., at the October term of the United States District Court at Wheeling, W. Va. The defendant, at the same term, made a motion to set aside the judgment and the verdict on which it was rendered; and from an order denying the motion this writ of error is prosecuted. The parties will be referred to in accordance with their respective positions in the court below. This action was one of trespass on the case, in assumpsit, in which plaintiffs sought to recover $50,000 for losses alleged to have been sustained as a result of breach of contract by defendant, $50,000 for the value of machinery of plaintiffs, alleged to have been appropriated by defendant to its own nse, and for $8,000 as balance due plaintiffs for road work performed under contract. Summons was issued October 8, and served October 15, 1920. The declaration was filed January 5, 1921. Thereafter no action whatever was taken in the cause until October 21,1924, 3 years and 9 months later, when, upon the calling of the docket on the first day of the regular term at Wheeling, the defendant was ealled in open court, and the ease was set for trial November 10th. On that date, November 10, 1924, the ease was ealled for trial, and, the" defendant being ealled and not appearing, a jury was impaneled, and found for plaintiff's, and assessed their damages at $20,-090.11. Three days later, but during the same term, defendant appeared and moved that the verdict be set aside, and for a new trial, and an order was thereupon entered allowing defendant 20 days in which to file grounds in support of its motion. These grounds were duly set forth in an affidavit, which was filed within the time allowed, whereupon the court took the matter under advisement, and on August 28, 1925, signed the order denying the motion. ' The affidavit filed shows that defendant had a meritorious defense to the action, and that the judgment was taken as the result of surprise, mistake, and excusable neglect on the part of defendant and its counsel, and is irregular, in that the declaration does not contain an averment, in accordance with the statute of West Virginia, that demand for the claim in suit had been presented to the defendant county court, and disallowed in whole or in part. As to the defense, the affidavit avers that plaintiffs abandoned their contracts to construct roads for defendant; that defendant was obliged to take over the road work and complete the roads at considerable loss; and that the dispute between plaintiffs and defendant as to the loss sustained, as a result of the breach, had been compromised' by the payment to defendant of the sum of $15,000 by the surety on the bonds accompanying the road contracts involved in the case. With respect to surprise, mistake, and excusable neglect, on the part of defendant and its counsel, the affidavit alleges that the summons was served upon one Shaffer, who was president of the county court in 1920, but who went out of office in January, 1921; that the county attorney is the person having charge of litigation of this character against the defendant, and that- a new county attorney was chosen on January 1, 1921, who had no knowledge of the fact that this action had been instituted until the latter part of that year; that, upon being informed that an action of some sort was pending against defendant in the federal court, the county attorney addressed a letter to the deputy clerk, making inquiry as to whether any such action were pending; and that he received a letter in reply, under date of December 14, 1921, from the clerk of the court at Wheeling, advising that the action was pending there, and giving the nature of the action, the amount demanded, and the date of the issuance of summons, but not advising that the declaration had been filed, that the answer had not been filed, or that defendant was in default. The position of defendant with respect to this is that the letter of the county attorney was notice that he was appearing in the case; that he was not apprised by the letter of the clerk that defendant was in default; that section 11 of the rules of practice of the District Court for the Northern District of West Virginia provides that any party desiring trial of a civil action shall give notice in writing to the adverse party or his counsel, and shall file same, together with proof or acknowledgment of service, in the clerk’s office, at least 20 days before the term; and that he was justified in assuming that the case was at issue; and that he would be duly notified, according to rule, in advance of trial. Defendant also takes the position that section 13 of the rules of the court provides that eases which have been pending in court for more than a year without proceedings may be dismissed at the call of the docket, for want of prosecution, either at the request of a party or by the court of its own motion; and that, nearly 4 years having elapsed, defendant was justified in assuming that the case had been dismissed, or, at least, that the court would allow no action to be taken without notice against a public corporation upon which notice could be served without difficulty. With respect to the sufficiency of the declaration, it appears that there is no allegation whatever that the claims sued on were ever presented to the defendant county court, as required by statute, and the only allegation which plaintiffs contend to be a compliance with the statute is a general averment that plaintiffs suffered damage to the amount of $150,000 (which is not the total of the claims in suit), coupled with the formal allegations of a declaration in assumpsit of demand and refusal to pay this amount. While a federal court has no power under state statutes to set aside judgments after the term at which they are rendered, it has complete control over them, and may set them aside during the term. Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. And, where a motion to set aside is made during the term, and held open for further consideration, the court has power to act upon it after the term has expired. Walker v. Moser (C. C. A. 8th) 117 F. 230; Goddard v. Ordway, 101 U. S. 745, 751, 25 L. Ed. 1040. As the motion here was made during the term and.held for further consideration, there is no doubt of the power of the court to act upon it just as though final disposition had been made during the term. The power of the court to act upon the motion being established, the practice to be followed is that prescribed by the statute of the state where the court is held. B,. S. 914 (Comp. St. § 1537); Wylie Permanent Camping Co. v. Lynch (C. C. A. 4th) 195 F. 386, 115 C. C. A. 288; Virginia, T. & C. Steel & Iron Co. v. Harris (C. C. A. 4th) 151 F. 428, 80 C. C. A. 658; Howie Mining Co. v. McGary (D. C.) 256 F. 38. The statute of West Virginia applicable here is section 47, c. 125, of the Code, which provides that, where judgment by default “has been entered up in court, * * * it shall not be set aside ■without good cause be shown therefor.” And “good cause” authorizing the setting aside of a default judgment, where the judgment has been entered up or the order for an inquiry of damages has been executed, is “fraud, acci* dent, surprise, mistake, or some adventitious circumstance preventing the party from making defense, excusing his absence.” Post v. Carr, 42 W. Va. 72, 24 S. E. 583; Jennings v. Wiles, 82 W. Va. 573, 96 S. E. 1009. In this case we think that the defendant showed “good cause,” within the meaning of the statute, for setting aside and vacating the judgment, and that the learned district judge erred in holding, as a matter of law, that the circumstances upon which defendant relies were not sufficient to constitute good cause. In the first place, we think that the judgment was obtained by surprise, and as the result of mistake and excusable neglect on the part of defendant and its attorney. Defendant is the governing body of a county. The president of the court upon whom process was served had gone out of office. The attorneys for the county had been changed. More than a year after the action had been instituted the county attorney, being .advised that a suit of some sort was pending against the county, made inquiry of the proper court official, and was informed as to the nature of the action, without being told that defendant was in default. The rule of court required at least 20 days’ notice before trial, and the attorney might reasonably assume that this notice would be given him. It is true that the attorney should have investigated to see whether answer had been filed, but it may well be that he was thrown off! his guard by reason of the fact that no default judgment had been taken, although the action had been pending more than a year. Almost 3 years after this, and after the declaration had been on file for 3 years and 9 months, during 2 years and 9 months of which the action might have been dismissed by the court of its own motion, the plaintiffs, without any notice whatever, proceeded to have the defendant called out and the case tried in the absence of defendant’s counsel. If the defendant was negligent in failing to take action during the 3 year and 9 months’ period, what shall be said of the plaintiffs? The fact that plaintiffs liad allowed their ease to lie dormant for so long a time did not, of course, justify the defendant in ignoring it; but such delay on the part of plaintiffs was calculated to cause the case to be forgotten in the change of county administrations, and, after so long a period of inaction, judgment should not have been entered against the people of a county, without giving to their representatives reasonable notice and opportunity to defend. The fact that immediately upon learning of the judgment, and within 3 days after it was entered, defendant’s counsel were in Wheeling, moving to set it aside, is a circumstance which strongly corroborates their contention that they were taken by surprise and had been acting under mistake. Their diligence in moving so promptly to set aside the judgment stands out in strong contrast with the action of plaintiffs in delaying for more than 3y2 years to apply for it. We think that the neglect shown by defendant and its counsel was excusable, under the peculiar circumstances of the case, and that the surprise, mistake, and excusable neglect under which the judgment was obtained constituted “good cause,” within the meaning,of the statute, for setting it aside. Jennings v. Wiles, supra; Willson v. Ice, 78 W. Va. 672, 90 S. E. 272; Varney & Evans v. Lumber & Mfg. Co., 64 W. Va. 417, 63 S. E. 203. There was yet another “good cause” shown for vacating the judgment on the motion of defendant, viz. that the declaration, did not state a cause of action. “A default admits only what is well pleaded, and therefore, in order to sustain a judgment by default, plaintiff’s declaration, complaint, petition or statement of claim, must allege with clearness and certainty sufficient facts to constitute a good cause of action or show a right to recover.” 34 C. J. 153; U. S. v. Bell (C. C. A. 3d) 135 F. 336, 68 C. C. A. 144. The Code of West Virginia provides: “No suits shall be brought against a county court for any demand for a specified sum of money founded on contract, except an order on the county treasury, until such demand has been presented to such court and been disallowed by them in whole or in part. But if the court neglect or refuse to act on such demand by the close of the first session after that at which it is so presented, or of the second session after it is filed with the clerk pursuant to the preceding section, for presentation, it shall be deemed to have been duly presented and disallowed.” Code of W. Va. Ch. 39, § 41. As said by the Supreme Court of West Virginia, in State v. Smith, 92 W. Va. 12, 16, 114 S. E. 375, 376, “the procedure required by the statute is a condition precedent to the claimant’s right to sue the county court for money founded on a contract, except an order for payment out of the county treasury, and must be followed or his suit will abate. The reason for such procedure is plainly apparent. It was designed to protect the comity court against useless costs and litigation. The fiscal affairs of the county coming-under the jurisdiction of the county court are numerous, and its obligations in the conduct of the public business are necessarily complex and varied, and to permit the owners of claims founded on contract to sue as and when their whims or spite might dictate before presentation for audit and payment in an orderly way, would subject the court to vexatious suits and unnecessary costs.” It is expressly held that no suit may be instituted or maintained against a county court for a specified sum of money founded, on contract, without compliance with this statute, and that a declaration in such suit is insufficient, unless it contains an averment to the effect that tlje provisions of the statute have been complied with. Barbor v. County Court, 85 W. Va. 359, 101 S. E. 721; Yates v. County Court, 47 W. Va. 376, 35 S. E. 24. And it is settled that limitations on suits against'counties of the character of that imposed by this statute will be enforced by the federal courts, and that a pleading which fails to aver compliance with the statute will be held insufficient. May v. Buchanan County (opinion by Judge Shiras) (C. C.) 29 F. 469; Covington County v. Stevens (C. C. A. 5th) 256 F. 328, 167 C. C. A. 498; Holmes County v. Burton Const. Co. (C. C. A. 5th) 267 F. 769. For the reasons stated, we think that the learned district judge erred in refusing to set aside the default judgment. The order denying the motion is accordingly reversed, and the cause is remanded, with directions that the verdict and judgment be set aside, and that other proceedings be had not inconsistent with this opinion. Reversed.

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

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

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

Thomas M. RETTIG, et al., Plaintiffs-Appellants, Cross-Appellees, v. KENT CITY SCHOOL DISTRICT, Defendant-Appellee, Cross-Appellant, and Kenneth Cardinal, et al., Defendants-Appellees. Nos. 81-3586, 81-3595. United States Court of Appeals, Sixth Circuit. Argued June 30, 1983. Decided Nov. 8, 1983. Rehearing Denied Jan. 3, 1984. Edward G. Kramer, Floyd J. Miller, Cleveland, Ohio, for plaintiffs-appellants, cross-appellees. Eva Rettig, pro se. Dennis M. Whalen (argued), G. Frederick Compton, Jr., Dennis M. Whalen Co., L.P.A., Cuyahoga Falls, Ohio, Gary E. Brown (argued), Asst. Atty. Gen., Columbus, Ohio, for defendant-appellee, cross-appellant. Edward G. Kramer, Floyd J. Miller, Kramer and Associates Co., L.P.A., Cleveland, Ohio, amicus curiae on behalf of appellants. Before LIVELY, Chief Judge, KRUPANSKY, Circuit Judge, and FEIKENS, District Judge . The Hon. John Feikens, United States District Judge for the Eastern District of Michigan, sitting by designation. KRUPANSKY, Circuit Judge. This is an appeal and cross-appeal from the final order of the District Court for the Northern District of Ohio in this action involving the education of a handicapped child. The district court entered extensive findings of fact below and reference is made to that opinion for a full exposition of the background of this controversy. See, Ret-tig v. Kent City School District, 539 F.Supp. 768 (N.D.Ohio 1981). It is sufficient to restate here that Thomas M. Rettig (Thomas) is a severely handicapped teen-age child. Thomas displays symptoms of autism and is also believed to be mentally retarded. In February of 1978 Thomas’ parents requested a due process hearing pursuant to the Education for All Handicapped Children Act of 1975 (EHCA or Act) 20 U.S.C. § 1401 et seq., questioning the quality of the education their son was receiving. A hearing was conducted before a Hearing Officer in accordance with § 1415(b)(2) of the Act. The Hearing Officer decided in favor of the Kent City School District and issued a comprehensive opinion on April 30, 1979. It was affirmed by the State Board of Education. The initial complaint in this matter was filed in the District Court for the Northern District of Ohio on November 30, 1979. The complaint joined Thomas and his mother as parties plaintiff and named the Kent City School District as defendant. Plaintiffs, in the initial complaint, essentially petitioned for review of the state decision pursuant to 20 U.S.C. § 1415(e)(2), and also asserted violations of the Rehabilitation Act of 1973,29 U.S.C. § 794. An amended complaint incorporated additional allegations of constitutional infringements under 42 U.S.C. § 1983 and joined, as defendants, the superintendent of the Kent City School District, the director of special education for the district, the State Board of Education of Ohio ánd the state superintendent of education. The lower court, subsequent to duly conducted hearings in August of 1980, denied plaintiffs’ request for a preliminary injunction. The trial court issued its final order in May of 1981, subsequent to a trial of the case on its merits. The trial court upheld the administrative Hearing Officer’s decision, concluding that: (a) the defendants had provided adequate inservice training for faculty and staff; (b) the defendants had devised and implemented a reasonable educational program for Thomas which would not be modified; (c) a twelve month educational program for Thomas was not required under the Act; and (d) continuous occupational therapy for Thomas was not a requirement of the Act. The lower court did, however, direct the Kent City School District to provide Thomas with one hour of extracurricular activities each week and further decreed that the State Board of Education amend its rules to conform with federal regulations. The lower court concluded, as a matter of fact, that plaintiffs had failed to prove their constitutional infringements. It also characterized the plaintiffs’ claims arising under the Rehabilitation Act as merely restatements of EHCA charges and disposed of those charges by incorporating them into its resolution of the latter. Finally, the lower court declined to award attorney fees. The plaintiffs appealed the trial court’s decision insisting that Thomas was being denied a free appropriate education. The Kent City School District cross-appealed from the lower court’s order mandating the district to provide Thomas with one hour of extracurricular activities each week. The State revised its regulations in accordance with the lower court’s order and did not appeal. See O.A.C. § 3301-51-02(6)(12)(f). Initially, we conclude that the lower court’s findings with respect to the constitutional claims are not clearly erroneous and we affirm the court’s ruling as to those claims. This Court also agrees that, in this case, the plaintiffs’ complaints purportedly arising under the Rehabilitation Act, with one exception, are resolved by the disposition of the EHCA claims. See 34 C.F.R. §§ 104.33, 104.36 (1982). Accordingly, this Court is confronted with only those issues joined under the EHCA. In considering the asserted violations of the EHCA the Court is directed to the Supreme Court’s recent explication of the Act. In Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Supreme Court reviewed the policies, procedures and objectives of the Act. It also specifically identified and delimited a court’s obligation in actions instituted pursuant to § 1415(e)(2). The Court stated: [A] court’s inquiry in suits brought under § 1415(e)(2) is two-fold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. Id. at 206, 102 S.Ct. at 3051 (footnotes omitted). Plaintiffs urge that both inquiries should be answered in the negative. In addressing the procedural requirements of the Act the plaintiffs assert that the State failed to develop adequate programs for inservice training of teachers and support personnel as directed by the EHCA. The EHCA specifically requires a State participating under the Act to submit a plan incorporating, inter alia: a description of programs and procedures for (A) the development and implementation of a comprehensive system of personnel development which shall include the inservice training of general and special educational instructional and support personnel, -. .. The district court found that the defendants had developed and implemented a wide range of inservice training programs which satisfied the requirements of the EHCA. That conclusion is supported by the record. Plaintiffs have argued, however, that parents should be included within the meaning of “support personnel”. and therefore the Kent City School District was obliged to provide inservice training to the parents of Thomas. The legislative history, however, discloses that Congress intended the term “support personnel” to denote professional staff employed by the school system. The Senate Report, in discussing the Act’s provision regarding inservice training, stated, in pertinent part: High quality educational services for all handicapped children will require a greater number of support personnel, as well as teachers. The supportive services should be provided by trained occupational therapists, speech therapists, psychologists, social workers and other appropriately trained personnel. S.Rep. No. 94-168, 94th Cong., 1st Sess. 34, reprinted in [1975] U.S.Code Cong. & Ad. News, 1425, 1457. Accordingly, plaintiffs’ contention that “support personnel” should include parents is unfounded and this Court concludes that defendants provided adequate inservice training under the terms of the EHCA. The plaintiffs have challenged the quality of the educational program developed for Thomas in several respects. In sum, however, the plaintiffs’ arguments merely reflect a difference of opinion as to the most effective teaching methods available to advance Thomas’ education. Various experts testified as to an appropriate educational program for Thomas. The courts, however, are not free to choose between competing educational theories and impose that selection upon the school system. As the Supreme Court admonished in Rowley, supra at 207, 102 S.Ct. at 3051-52: In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.. The Act expressly charges States with the responsibility of “acquiring and disseminating to teachers and administrators of programs for handicapped children significant information derived from educational research, demonstration, and similar projects, and [of] adopting, where appropriate, promising educational practices and materials.” § 1413(a)(3). In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State’s choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2). We previously have cautioned that courts lack the “specialized knowledge and experience” necessary to resolve “persistent and difficult questions of educational policy.” San Antonio School District v. Rodriguez, 411 U.S. 1, 42 [93 S.Ct. 1278, 1301, 36 L.Ed.2d 16] (1973). We think that Congress shared that view when it passed the Act. As already demonstrated, Congress’ intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of method-olog are for resolution by the States, (footnotes omitted). This Court is of the opinion, therefore, that the lower court was correct in refusing to interfere with the State’s implementation of its educational program as it related to Thomas. To the extent the plaintiffs’ requested the trial court to order the school district to include specific programs within Thomas’ curriculum — for example, summer classes and continuous occupational therapy — this Court affirms the district court’s denial of such relief inasmuch as the programs were not necessary to permit Thomas to benefit from his instruction. The trial court ruled in favor of the plaintiffs in addressing the issue of Thomas’ extracurricular activities. In granting this relief, the trial court relied on the following administrative regulation promulgated under the Act: § 300.306 Non-academic services. (a) Each public agency shall take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped children an equal opportunity for participation in those services and activities. 34 C.F.R. § 300.306 (1982). The regulation apparently adopts a standard designed to ensure that handicapped children are exposed to extracurricular activities on an equal basis with non-handicapped children. In Rowley, however, the Supreme Court specifically rejected a construction of the EHCA which required “that States maximize the potential of handicapped children ‘commensurate with the opportunity provided to other children.’ ” Rowley, supra at 189, 102 S.Ct. at 3042, quoting, 483 F.Supp. 528 at 534. The regulation and the lower court’s opinion antedated the Supreme Court’s opinion in Rowley. This Court therefore deems it appropriate to remand this issue to the district court for further consideration in light of the pronouncements in Rowley. In accordance with this opinion, the judgment below is AFFIRMED in all respects except that portion requiring the school district to provide extracurricular activities to Thomas which is VACATED and REMANDED for further consideration. Each party shall pay its own costs. . 20 U.S.C. § 1415(e)(2) provides that any party aggrieved by the resolution of an administrative hearing under the Act: shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. . Federal regulations mandate a final disposition of all appeals from decisions of Hearing Officers within 30 days of issuance thereof. 34 C.F.R. § 300.512 (1982). The State rules permitted a 60-day interval. . The lower court also ordered the School District to conduct a multi-factored evaluation of Thomas. The School District, in fact, had attempted to perform such an evaluation but his parents objected, charging that the basis of norm-referenced or standardized testing was inappropriate for autistic children. The evidence disclosed however that such testing was an. important component of an overall evaluation. It was, therefore, reasonable to require the parents of Thomas, as a condition to receiving benefits under the Act, to permit the school district to perform an evaluation of Thomas. See, Vander Malle v. Ambach, 673 F.2d 49 (2nd Cir.1982). . The regulation was initially promulgated by the Secretary of Health, Education and Welfare and appeared at 45 C.F.R. § 1210.306. However, the functions of the Secretary of Health, Education and Welfare with respect to the Act were transferred to the Secretary of Education. Pub.L. No. 96-88 § 601, 93 Stat. 696. The regulation in issue, along with scores of others, was thereafter transferred to Title 34 and re-designated. 45 Fed.Reg. 77368 (1980). . This last issue is the exception previously alluded to wherein application of the Rehabilitation Act could provide a resolution different from that achieved by application of the EHCA. See 34 C.F.R. § 104.37 (1982). The lower court is free to address this issue on remand. . Amicus curiae has briefed the issue of attorney fees. In light of the remand, the attorney fee issue is not ripe for final resolution.

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

TAX ANALYSTS AND ADVOCATES and Thomas F. Field et al. v. INTERNAL REVENUE SERVICE et al., Appellants. No. 73-1978. United States Court of Appeals, District of Columbia Circuit. Argued April 5, 1974. Decided Aug. 19, 1974. Rehearing Denied Sept. 12, 1974. Ernest J. Brown, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen. and Bennett N. Hollander, Atty., Tax Div., were on the brief, for appellants. William A. Dobrovir, Washington, D. C., with whom Thomas F. Field, Washington, D. C., was on the brief, for ap-pellees. Before WRIGHT and MacKINNON, Circuit Judges and DAVIES, Senior District Judge for the District of North Dakota. Sitting by designation pursuant to 28 U.S.C. § 294(d). RONALD N. DAVIES, Senior District Judge: In an action commenced pursuant to the Freedom of Information Act, 5 U.S.C. § 552, Tax Analysts and Advocates and its Executive Director sought to compel the Internal Revenue Service, its Commissioner and its Assistant Commissioner (Technical) to disclose letter rulings and technical advice memoranda, together with communications and in-dices relating thereto, issued to producers of minerals other than oil and gas between July 26, 1968, and October 1, 1971, in which determinations were made of the processes to be treated as “mining” under Section 613(c) of the Internal Revenue Code, 26 U.S.C. § 613(c), when computing gross income from property for percentage depletion purposes. The District Court rejected the defendants’ (appellants’) contentions that the Freedom of Information Act (Act) did not apply to letter rulings or technical advice memoranda or that, if it did, specific exemptions precluded disclosure of the material sought. The District Court also refused appellants’ request that it exercise the discretion inherent in its equitable powers and refuse to order disclosure. The Court ordered all materials sought, consisting of two unpublished letter rulings, eight technical advice memoranda, communications to and from the taxpayer or his representative relating thereto, and six index-digest cards, be made available: “ * * * intact and without deletion, except for those items which, within said thirty (30) days period, Defendants submit to the Court, sealed and intact, without deletion but with any proposed deletions indicated, for in camera review as to whether proposed deletion of information is justified under the Freedom of Information Act, together with a detailed written explanation of the justification for each deletion, * * * ” and also: -x * within thirty (30) days of date all items in the Internal Revenue Service’s index-digest reference card file sought by Plaintiffs herein, and all memoranda of conferences and telephone calls relating to the letter rulings and technical advice memoranda involved herein, unless within said thirty (30) day period those items are submitted to the Court for in camera review as to whether they may be properly withheld as internal memoranda within the meaning of exemption 5, 5 U.S.C. § 552(b)(5), of the Freedom of Information Act.” Tax Analysts and Advocates v. Internal Revenue Serv., 362 F.Supp. 1298 (D.D.C.1973). A stay was granted pending appeal in which appellants present only two issues: (1) whether the materials sought were, under § 552(b)(3) of the Act, “specifically exempted from disclosure by statute” ; and (2) whether the District Court erred in holding that it did not have, under the Act, equitable powers to refuse to order disclosure. As described by the District Court: “A letter ruling is a written statement issued to a taxpayer by the Office of Assistant Commissioner (Technical) in which interpretations of the tax laws are made and applied to a specific set of facts. The function of a letter ruling, usually sought by the taxpayer in advance of contemplated transaction, is to advise the taxpayer regarding the tax treatment that he can expect from IRS in the circumstances specified in the ruling. The letter rulings are not publicly disclosed by the IRS and it is clearly specified that no taxpayer is entitled to rely upon an unpublished private ruling not issued specifically to him. The taxpayer who does receive such a ruling is advised to file it along with his tax return. “A technical device (sic) memoranda (T.A. memo) is comparable to a letter ruling, except that it is not issued directly to a taxpayer, but to a District Director of the IRS in response to the director’s request for instructions as to the treatment of a specific set of facts relating to a named taxpayer. The director’s question may relate to audit examination of a taxpayer’s return or consideration of a taxpayer’s claim for refund or credit. The substantive portion of the memorandum if (sic) given to the taxpayer. “All letter rulings and technical advice memoranda are divided into two categories by the IRS for filing purposes. Many rulings and memos are considered of no significant ‘reference’ value. These are placed in a historical file, alphabetically by taxpayer’s name, and maintained for a period of four years. No separate index is prepared for materials in the historical file. The other letter rulings and t.a. memos are deemed to have a continuing ‘reference’ value for internal IRS purposes, and these are placed in the IRS’ permanent reference file, along with Court decisions, published Revenue Rulings, and other materials deemed to have a continuing reference value. The reference file is organized by code section and an ‘index-digest’ card file is maintained, giving citations to the main ‘reference’ file and usually summarizing the contents of the reference file.” (Footnotes omitted.) Tax Analysts and Advocates v. Internal Revenue Serv., supra, at 1301-1302. First, it is to be noted that appellants do not contest the District Court’s holding that letter rulings and technical advice memoranda are “statements of policy and interpretations which have been adopted by the agency and not published in the Federal Register”, Section (a) (2) (B), and must be made available for public inspection and copying if not exempt under subsection (b) (3) of the Act. “It is well established that information which either creates or provides a way of determining the extent of substantive rights and liabilities constitutes a form of law that cannot be withheld from the public. See Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971); American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1968). The FOIA by its explicit terms condemns ‘secret law’ and requires that it be made public: (2) Each agency, in accordance with published rules, shall make available for public inspection and copying— (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register )> Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086, footnote 13 at p. 1091 (1973). Relying on 26 U.S.C. § 6103(a)(1), which provides “Returns made with respect to taxes . upon which the tax has been determined by the Secretary or his delegate shall constitute public records; but, except as hereinafter provided . . . they shall be open to inspection only upon order of the President and under rules and regulations prescribed by the Secretary or his delegate and approved by the President” and on 26 U.S.C. § 7213(a)(1) which makes it unlawful “. . .to divulge or to make known . to any person the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return; >> appellants contend that letter rulings and technical advice memoranda are “specifically exempted from disclosure by statute.” It was appellants’ burden to sustain their claim that the materials sought came within the meaning of the statutes. Mere labeling of the letter rulings and tax advice memoranda as returns is not sufficient. It is the District Court’s function to determine whether appellants’ classification was proper. “This court has continued to adhere to the position that exemptions of the Information Act are to be narrowly-construed. Vaughn v. Rosen [157 U.S.App.D.C. 340], 484 F.2d 820 (1973), cert. denied, 415 U.S. 977 [94 S.Ct. 1564, 39 L.Ed.2d 873] (1974); Cuneo v. Schlesinger [157 U.S.App.D.C. 368] 484 F.2d 1086 (1973), cert. denied 415 U.S. 977 [94 S.Ct. 1564, 39 L.Ed.2d 873] (1974). The ordinary meaning of the language of Exemption (3) is that the statute therein referred to must itself specify the documents or categories of documents it authorizes to be withheld from public scrutiny. * * * “In EPA v. Mink, 410 U.S. 73, [93 S.Ct. 827, 35 L.Ed.2d 119] (1973), the Supreme Court considered a specific exemption by statute, Exemption (1) of the Information Act itself, which exempts matters ‘specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy.’ 5 U.S.C. § 552(b) (1). The documents sought to be disclosed had been classified as secret pursuant to Executive Order 10501. Exemption (1) was construed to be a specific reference by Congress itself to a definite class of documents which were not to be disclosed. 410 U.S. at 83, [93 S.Ct. 827]. Their disclosure accordingly was not required.” (Footnote omitted.) Robertson v. Butterfield, 162 U.S.App.D.C. 298, 498 F.2d 1031 (1974). The two statutes relied upon by appellants provide for protection of the privacy of taxpayers filing tax returns and are designed to prevent disclosure of information contained either in the returns or in documents filed in conjunction therewith which enable the Secretary or his delegate to determine tax due the United States. It is not difficult, therefore, to conclude that letter rulings are not encompassed in either statute. Letter rulings are issued at the request of taxpayers seeking advice as to the tax consequences of specific transactions. This information provides guidance in planning and conducting their business affairs and, if the transaction is consummated, aids in preparation of their tax returns. The fact that taxpayers may elect to follow the Internal Revenue Service’s recommendations that letter rulings be attached to returns containing information about the transactions referred to in the letter rulings does not deprive a letter ruling of its separate status as a “final opinion" and “interpretation" nor does it make the attachment part of a return. Attachment is to alert the District Director of the Internal Revenue Service that a letter ruling had been issued. The appropriate District Director is always sent a copy at the time a letter ruling is issued to any taxpayer required to file a return in his district. Conversely, technical advice memoranda are prepared in response to an inquiry by a District Director as to the treatment of a specific set of facts relating to a tax return filed by a named taxpayer involving either an audit or in connection with the taxpayer’s claim for refund or credit of taxes. Technical advice memoranda deal directly with information contained in “returns made with respect to taxes” and are a part of the process by which tax determinations are made and, thus, “specifically exempted from disclosure by statute.” We emphasize that there is still available to appellants, through in ca/mera production of all documents other than the technical advice memoranda and material relating thereto, exemption under § 552(b)(4) to prevent disclosure of “commercial or financial information obtained from a person and privileged or confidential.” Lastly, appellants ask us to reconsider our previous holding that a District Court has no jurisdiction under the Act to deny disclosure, apart from the exemptions contained in the Act, on equitable grounds. Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971); accord, Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971); Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973); Tennessean Newspapers, Inc. v. Federal Housing Admin., 464 F.2d 657 (6th Cir. 1972); Hawkes v. Internal Revenue Service, 467 F.2d 787, n. 6 at p. 792 (6th Cir. 1972). See also Bannercraft Clothing Co. v. Renegotiation Board, 151 U.S.App.D.C. 174, 466 F.2d 345, 353 (1972) (discussing equitable principles) reversed on other grounds, 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123. However, there is nothing in the “factors present in this case which were absent in the other Freedom of Information Act cases considered by the Court” which would compel us to change our previous opinion. Modified in part and remanded to the District Court for further proceedings not inconsistent with this opinion. . The IRS also urges that Treas.Reg. § 301.6103(a)-l(a) (3) (Feb. 8, 1972), specifically exempts letter rulings from disclosure under the Act: (3) Terms -used — (i) Return. For purposes of section 6103(a), the term “return” includes— (a) Information returns, schedules, lists, and other written statements filed by or on behalf of the taxpayer with the Internal Revenue Service which are designed to be supplemental to or become a part of the return, and (b) Other records, reports, information received orally or in writing, factual data, documents, papers, abstracts, memoranda, or evidence taken, or any portion thereof, relating to the items included under (a) of this subdivision. Clearly, letter rulings are not encompassed by (a) since they are issued at the request of the taxpayer anti their attachment as a matter of convenience to the return does not make them “supplemental to or . .a part of the return.” Where the transaction proposed in the letter ruling is not executed, the letter ruling would not be comprehended by (b) since it would not “relate” to a filed return. However, letter rulings involving proposed transactions subsequently executed would fall within the literal terms of (b). Nonetheless, we think that letter rulings generated by the voluntary request of a taxpayer for tax advice from the IRS are beyond the scope of that which the Congress sought to protect under section 6103, that is, “returns” filed under compulsion of law which contain information necessary to determine federal tax liability. Accordingly, the regulation cannot immunize letter rulings from disclosure under the Freedom of Information Act. . Our recent decision in National Parks and Conservation Assoc. v. Rogers C. B. Morton, Secretary, Department of the Interior et al., 162 U.S.App.D.C. 223, 498 F.2d 765 (1974), may be of aid to tlie District Court in this respect.

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

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

UNITED STATES v. BURMEISTER et al. No. 3705. United States Court of Appeals Tenth Circuit. Feb. 2, 1949. Elizabeth Dudley, Atty., Dept, of Justice, of Washington, D. C. (A. Devitt Vanech, Asst. Atty. Gen., Paul Aylward, Sp. Atty., Dept, of Justice, of Ellsworth, Kan., and John F. Cotter, Atty., .Dept, of Justice, of Washington, D. C., on the brief), for the United States. Willard N. Van Slyck, Jr., and Robert E. Russell, both of Topeka, Kan. (R. C. Russell, of Great Bend, Kan., on the brief), for appellees.. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. PHILLIPS, Chief Judge. This is an appeal from a supplemental award in a condemnation proceeding. On May 4, 1943, the United States filed a petition in condemnation to acquire, for a term ending June 30, 1944, with the right to extend the term for additional yearly periods “during the existing national emergency,” 218,880 acres of land in Kansas, for use as a aerial gunnery range and for such other purposes as might be authorized by Congress or Executive Order. On May 4, 1943, the court entered an order that the United States, from and after June 1, 1943, was entitled to occupy and use the land for the purposes and for the term stated in the petition. The court appointed appraisers and qn July 9, 1943, gave them written instructions in which it stated that in determining just compensation for the temporary use and occupancy of such land, they should determine the fair value of the temporary occupancy, “with proper regard being paid to the nature of the occupancy.” On December 4, 1943, the Secretary of War filed a declaration of talcing. Such declaration described the lands to be taken, including a tract of land, designated as tract ,No. 972, belonging to- Ferdinand F. Burmeister. It stated the estimated compensation for that tract for the term ending June 30, 1944, was $321. On December 4, 1943, a judgment was entered on the declaration of taking, which described the lands, including tract No. 972, and adjudged that there was vested in the United States “a term for years ending June 30, 1944,” in such lands, together with right to extend such term for yearly periods during the existence of the national emergency. It expressly retained jurisdiction in the court to enter such further orders and judgments as might be necessary. On May 30, 1944-, the trial court entered an order extending the term for years from July 1, 1944, to June 30, 1945. The appraisers awarded as just compensation for tract No. 972, $360 for the term ending June 30, 1944, and $393 for each yearly extension thereof. On March 30, 1945, the trial court entered a preliminary judgment confirming the awards of the appraisers. It again reserved jurisdiction as in the previous judgment of December 4, 1943. On May 29, 1945, the trial court entered an order extending the term for years from July 1, 1945, to June 30, 1946. Title to tract No. 972 passed to Magdalene D. Burmeister and Katherine W. Burmeister on January 1, 1945, and, in accordance with orders entered by the trial court, an aggregate of $786 was paid to them for the two extensions of the original term. The United States, acting by the contract officer of the Corps of Engineers of the Army, entered into so-called negotiated concurrent leases with certain of the landowners. Each of such leases provided that the United States was given the right to use the land described therein as an “aerial gunnery range and for military purposes,” and that the owner might use the land for other purposes. In the spring of 1944, C. E. West contacted the contract officer and inquired if he could farm tract No. 972. The contract officer directed West to take the matter up with Ferdinand F. Burmeister. The contract officer told West he might go ahead and summer fallow the tract and if West worked out a deal with Burmeister it would be all right for him to go ahead and farm it. West arranged to rent the tract from Burmeister for one-fourth of the crop. West summer fallowed the land and drilled it to wheat in the fall of 1944. The next year, shortly before time to harvest the wheat, the contract officer advised West that he had no right to work the land,since Burmeister had not signed1 a concurrent lease, and unless West paid him immediately $3,000 for one-fourth of the crop, he would have to sell the wheat crop to the highest bidder. West then paid the contract officer $3,000. For the crop that matured in 1946, the contract officer required West to pay him $540. On September 30, 1946-, the United States filed a motion for final judgment. On such motion, the court entered an order, which had been approved by Paul L. Aylward, Special Attorney for the Department of Justice, which directed that notice be given to each defendant directing him on or before 30 days from the date of the notice to file in the cause in writing such claim or claims as he might have arising out of such condemnation “including specifically any damage to the fee or reversionary interest.” Notice was given Magdalene D. and Katherine W. Burmeister pursuant to such notice. They filed a claim for the $3,540 received by the Army representative from West for one-fourth of the wheat as additional damages suffered from the taking. They set up as a basis of their claim that the taking did not authorize the United States to use the land for agricultural purposes. The trial court found that the taking under the condemnation proceedings was not for farming purposes; that it was limited to an aerial gunnery range or other military purposes;- that the United States did not have the right to utilize the lands for growing crops; and that in raising a wheat crop, substance was taken out of the soil, which, to some extent, depleted the soil, and damaged the reversionary interest. The court deducted from the $3,540 the $786 thereto' fore paid to the Burmeisters and awarded the Burmeisters additional damages in the sum of $2,754. The United States has appealed. The United States did not condemn the fee. It remained in Burmeister and his successors in title. When the fee remains in the former owner, he may make any use of the property which is not inconsistent with its use for the purpose for whi-ch it was taken or does not interfere with the dominant use for which it was appropriated. Where less than a fee is condemned, the use of the property taken must be for and in accordance with the purposes which justified its taking and which was the basis for assessing damages. Here, the land was taken for use as an aerial gunnery range and the appraisers awarded damages on the basis of the taking for that limited purpose under the express instructions of the court. No other use was authorized by Congress or Executive Order. The United States did not have the right to devote the land to a use of an entirely different character fi;om that for which it was taken.’ It is clear, therefore, that the United States did not have the right either to use the land for agricultural purposes or to lease it to others to use for such purposes. When the United States exercised the right to use tract No. 972 for a use entirely different from, and in addition to, the use for which it was taken in the condemnation proceedings, to-wit, for agricultural purposes, such new use amounted to the imposition of a new and additional servitude upon the land and constituted taking in the constitutional sense. The court had retained jurisdiction to make such further orders or judgments as might 'be necessary and proper in the premises, and the award made by the court of additional damages was based on the fair rental value of the interest taken by the additional use made by the United States. The effect of the concurrent leases was to permit the United States to use the land for an aerial gunnery range for a nominal consideration" and to permit the owner to use the land for growing wheat or other crops. That was the ultimate effect of the supplemental award in the instant matter, since the trial court deducted from the estimated value of one-fourth of the crops the amounts that had been paid to Magdalene D. and Katherine W. Burmeister for -the two yearly extensions of the term. The net result was that the United States received the use of tract No. 972 for an aerial gunnery range, without paying anything therefor, and Magdálene D. and Katherine W. Burmeister received one-fourth of the crops grown on their land by West. Hence, the additional award was not only lawful but was wholly fair and just. The judgment is affirmed. Board of Com’rs of Kingman County v. Hufford, 126 Kan. 106, 266 P. 932; Harvey v. Mo. Pac. R. Co., 111 Kan. 371, 207 P. 761, 762, 50 A.L.R. 300; 30 C.J.S., Eminent Domain, § 451b, p. 207. Ponca City v. Drummond, 94 Okl. 138, 221 P. 466, 467; Thomas v. Morris, 190 N.C. 244, 129 S.E. 623, 626; Inhabitants of the Town of Lexington v. Suburban Land, Co., 235 Mass. 108, 126 N.E. 360, 361; 18 Am.Jur., § 180, p. 811. Robinson v. Kent Mfg. Co., 282 Pa. 539, 128 A. 501, 502, 503. Ponca City v. Drummond, 94 Okl. 138, 221 P. 466, 467; 18 Am.Jur., § 180, p. 811;, Cases cited in Notes 2 and 3, ante. Ponca City v. Drummond, 94 Okl. 138, 221 P. 466, 467; 18 Am.Jur., § 180, p. 812.

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

ROGAN v. MERTENS et al. No. 10933. Circuit Court of Appeals, Ninth Circuit. Feb. 13, 1946. Samuel O. Clark, Jr., Asst. Atty. Gen., .Sewall Key, A. F. Prescott, Rigmor O. Carlsen, and Maryhelen Wigle, Sp. Assts. to Atty. Gen., and Charles H. Carr, U. S. Atty., and E. H. Mitchell, Asst. U. S. Atty., both of Los Angeles, Cal., for appellant. Milton H. Schwartz and Frank M. Kees-ling, both of Los Angeles, Cal., for appel-lees. • Before DENMAN, STEPHENS, and BONE, Circuit Judges. DENMAN, Circuit Judge. ' This is an appeal by Ethel Strickland Rogan, as Executrix of the Last Will and Testament of Nat Rogan, Deceased, substituted for Nat Rogan, Collector of Internal Revenue for the Sixth Collection District, California, hereinafter called the Collector. The Collector claims error in the judgments' below of $8,802.40 and interest to each appellee, being a refund to that extent of a tax payment in the sum of $20,-669.80 by each appellee taxpayer, respectively, for a tax period fixed by the Commissioner of Internal Revenue as between January 1 and September 1, 1938. In this court the parties agreed that the appellees, Fernand Mertens, hereinafter called Mertens, and Victorine Catherine .Renourd Mertens, hereinafter called Mrs. Mertens, were husband and wife, citizens of France; that both were in the United States with the status of resident aliens ■ and that on their departure therefrom they left with the intent to return to the United States in that status; that their income was community property and that the income of each was kept on a cash basis for the separate tax liability of each to the United States, under the .principles established in Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239. Mrs. Mertens’ Tax. The Colléctor’s brief states that, “desiring to go to France [Mrs. Mertens] went to the office of Collector of Internal Revenue, Nat Rogan, at Los Angeles, for the purpose of obtaining a certificate of compliance with the internal revenue laws. She was required to file on that date [June 21, 1938,] as a resident alien, a departing alien income tax return on Treasury Department Form 10W-C, for the period beginning January 1, 1938, and ending June 30, 1938, and reported thereon one-half of the then assumed earnings of the husband received during such period to June 30, 1938. The tentative tax computed thereon was the sum of $3,245.92 which Mrs. Mertens paid to the Collector, after which, on June 30, 1938, she departed from the United States for Paris, France.” Her departing alien income tax dated June 21, 1938, stated New York as her place of departure, the Nor-mandie as the steamer on which she was to travel, and the date of departure June 29, 1938. The record contains a copy of the Collector’s certificate of compliance necessary for her departure, as required by Section 146 (e) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, page 1078. The Collector’s answer admits the tax was demanded of Mrs. Mertens by the Commissioner for a tax period terminated on May 31, 1938, before a certificate of compliance was issued to enable her to depart. The question with which we here are concerned is whether the Commissioner legally demanded of her on September 6, 1938, a second income tax based upon her husband’s income earned, in large part, after May 31, 1938, and after her departure to France, but prior to September 1, 1938, on which date the Commissioner again declared her tax period terminated. The Collector claims that though Mrs. Mertens had departed to France, the Commissioner nevertheless was authorized to demand a payment from her of a tax liability for such income of her husband for the period from January 1 to September 1, 1938, that is for a short year, under the provision of Section 146 (a) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, page 1077, for the assessment of a taxpayer of whom the Commissioner “finds” that he "designs quickly to depart from the United States or to remove his property therefrom.” (Emphasis ours.) We do not agree. The wording of the statute shows that the Commissioner’s extraordinary jurisdiction to assess for less than a year period does not exist except as to persons still in the United States who are found to have such “designs” as to a future departure therefrom or having departed had design to remove their property there-, from. There is no evidence and no contention made here that Mertens or Mrs. Mertens, intending to return to the United States, designed to remove any of the property of either from the United States, much less any finding of the Commissioner or Collector of such a design. The certificate of compliance attached to Mrs. Mertens’ departing alien tax return shows it was given for departure. It was not for a tax in view of the removal of property from the United States. The evidence is uncontradicted that Mrs. Mertens, in France, was not seeking any action concerning her departure from the United States when Mertens, prior to September 1, advised the office of the Collector that he intended to depart from the United States for France on or about September 14, 1938, and desired to obtain the necessary-certificate of compliance with the Internal Revenue Laws of the United States. Mer-tens was then advised by Deputy Collector Ogden, after consultation with the Collector’s legal advisor, that he could not secure his certificate of compliance unless not only his but also Mrs. Mertens’ taxes were paid. A sum was computed by the Collector for which Mrs. Mertens’ agent prepared and filed a return which stated on its face her prior departure to France on the Nor-mandie on the previous 29th of June. It is our opinion that the Commissioner was not authorized to make a demand upon Mrs. Mertens for an income tax for the period from January 1 to September 1, 1938, and that she is entitled, at least, to the refund awarded her by the district court. There is no evidence that Mrs. Mertens has not since returned to the United States as she expected or that she is seeking any tax avoidance. On the contrary, there appears an unwarranted demand upon her for payment of her taxes to secure the return of her husband to her in France. However, even assuming the Commissioner’s power so to demand from her a tax for the period ending September 1, 1938, the refund was properly adjudged below. The disputed items concern moneys claimed to be her income because, as alleged, it was paid to her by Loew’s Incorporated, under a contract with Mertens to pay certain of his income taxes. The appeal was submitted to us by the Collector upon a statement of that contract in his brief, as follows: “By the terms of this agreement, -Loew’s agreed to pay ‘all taxes which may lawfully be assessed against me [Mertens] in the United States,’ but only to the extent that they were based upon sums derived by him from services connected with the pho-toplay The Great Waltz.’ ” Here is no agreement of Loew’s with Mrs. Mertens and none with Mertens to pay taxes assessed against Mrs. Mertens. The court found that Loew’s loaned her the money to pay the tax assessed against her, undoubtedly made to aid Mertens in his departure to France, but whether loan or gift to her or to him it was not income to her upon which the Commissioner could assess her. There is no merit in the Collector’s contention that the moneys received by her from Loew’s constituted such income within Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 729, 49 S.Ct. 499, 73 L.Ed. 918, and other cases upon which he relies. The judgment in favor of Mrs. Mertens is affirmed. Mertens’ Tax. Mertens, designing to depart from the United States for France, notified the Collector on or about August 30, 1938, of that design and. submitted to him data concerning his income within Section 146 (a) of the Revenue Act of 1938 to obtain the departure certificate of compliance of Section 146 (e). The Commissioner, as provided in that section, on September 6, 1938, gave notice to Mertens of the termination of his taxable period as of September 1, 1938, that is, “immediately” after learning of Mertens’ design to depart, and demanded payment of the tax claimed as due for that taxable period. It is not questioned that the period began on January 1, 1938. Such notice of termination and such demand of the Commissioner for the tax for such period are admittesl in the Collector’s answer. Though Mertens’ income is agreed to be on a cash basis, in computing the tax for the income to the declared end of the period, September 1, 1938, there were included as income in the period the estimated liabilities of Loew’s to pay Mertens’ income taxes when legally assessed against him. What the Commissioner sought to do was to pyramid Loew’s future payments into the upper tax brackets of a high income period, in which Mertens, a French actor, with the stage name of Gravet, earned in twenty weeks — at the extraordinary salary of $6,000 per week — the sum of $120,000. The sum demanded on September 6, 1938, was paid on September 7, 1938, and the Collector then gave Mertens his certificate of compliance. Mertens departed for France on or about September IS, 1938, intending to return to his status as an alien resident of the United States. Mertens later duly filed his demand for a refund of that portion of the demand for the tax upon his income to September 1, 1938, which consisted of the amounts which were estimated would become due thereafter from Loew’s promise to pay the taxes lawfully assessed against him. The demanded refunds were refused and this suit filed for their recovery. The case was tried and judgment for Mertens refunding the tax on the portions of the income so claimed to be illegally included. The first question before us is as to whether the Commissioner could include in his demand of September 6, 1938, for a tax on income up to September 1, 1938, estimated payments to be made to Mertens on the Loew’s promises of its agreement with him. The Collector’s brief submits the case to us with his statement of that agreement. Loew’s had been assigned a prior agreement of Mertens with one Mervyn LeRoy. The Collector states that “The contract between Mertens and LeRoy, dated May 6, 1936, provided that ‘Employer * * agrees to pay all taxes which Artist [Mertens] may be assessed in the United States, but not his taxes in France, and only for such sums which Artist derives from his employment through Employer.’ This contract was assigned by LeRoy to Loew’s Incorporated on July 29, 1938, by two contracts of that date, the terms of the first of which provided that ‘We [Loew’s] have accepted the same with the restriction that by our acceptance of the same we are assuming no liability under said contract except such liability thereunder as has arisen subsequent to April 15, 1938 in connection with the photoplay now entitled ‘The Great Waltz,’; and the terms of the second of which provided that ‘You [Loew’s] agree to pay all taxes which may lawfully be assessed against me [Mertens] in the United States, but only to the extent that such taxes are based upon sums derived by me from my services in connection with said photoplay now entitled ‘The Great Waltz.’ This second contract likewise contained the provision that both Mertens and Loew’s were to ‘use every effort to the end that said taxes will be paid by September 10, 1938 and to the end that I [Mertens] shall be free to leave the United States on that date * * * These two contracts of July, 1938, will hereafter be referred to as one contract.” (Emphasis ours.) What the Commissioner was entitled to demand upon learning of Mertens’ design to depart, was the tax upon the income of the shortened period of the year allowed by Section 146 (a) of the Revenue Act. The language of the Act requires the demand of the Commissioner for the “immediate payment of the tax for the taxable period so declared terminated” and upon such demand “such taxes shall become immediately due and payable.” It is thus obvious that Loew’s contract was to pay, after the demand, the tax on income for the period ending on September 1, 1938, that is six days before the demand. Loew’s payment, if made at all, under its contract with Mertens would necessarily fall in a tax period after the one terminated on September 1, 1938, and after the Commissioner’s demand. Upon the terms of Section 146 (a) and the admitted facts, we are required to affirm the judgment for Mertens. There is no merit in appellant’s contention that Loew’s promises to pay taxes legally assessed is a constructive receipt of the money on or before September 1, 1938, or on the day of the demand made on September 6, 1938, even if the demand of that date be deemed an assessment. Since it is stipulated that Mertens’ income is on a cash basis, a mere promise to pay, that is a mere chose in action, is not cash received. The promisor may not perform his promise. We are not required to consider what the situation would be if Mertens’ income were upon an accrual basis, as in the cases of United States v. Anderson, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347; Uncasville Mfg. Co. v. Commissioner, 2 Cir., 55 F.2d 893, and Commissioner v. Terre Haute Electric Co., 7 Cir., 67 F.2d 697, relied upon by the Collector. In all these accrual cases “the obligation represented income” to the taxpayer. Here there is no income until after the cash is paid to Mertens in discharge of a tax legally assessed. It may be pertinent to point out, in view of the suggestions at the hearing of tax evasion by Mertens, that the Collector’s pyramidal grasping at Loew’s possible future payments to bring them into the high tax brackets of Mertens’ large earning pel riod/ is by an algebraic formula, unwarranted even if his income had been on an iccrual basis. An accrual future .tax payment is a reducing to a present valuation of the promises of future performance. Such present worth of future tax payments could be subject to an algebraic formula only if, on looking forward, it is assumed that each successive annual tax on the Loew’s tax payment of the taxes of the previous year was on the same successive incomes in the same income brackets in each year. Undoubtedly when Loew’s would make the payment in the succeeding tax period Loew’s would again be liable to pay a tax thereon, but only if and insofar as it contributed to net income in that succeeding period. However, no one could tell whether there would be a net income in the succeeding tax period. Mertens in that period may have losses overcoming his gain of the first tax payment by Loew’s in which event Loew’s would be obligated to pay nothing then or thereafter. If there were a net gain for this first succeeding period no one could tell how much the net gain would be or in what income bracket it would fall and hence what amount of it Loew’s would pay. If any were paid by Loew’s it would create a' diminished liability payable in a succeeding tax period. True, the process would continue in successive years or period, as long as net income would continue, until Loew’s obligation became de minimis, but when that would be or how much the total payments, no one looking forward could compute on an algebraic formula or otherwise. Nor was there any attempt at tax evasion in Mertens’ accepting a loan from Loew’s to meet such uncertain future tax liabilities of a sum much larger than necessary to cover them, — here large enough to cover the demand of tax from Mrs. Mertens which, as seen, Loew’s had not contracted to pay. Mertens at first strongly objected to such a loan transaction. He wanted to be paid . the money to hold as his own. However, the testimony of a witness before Judge Yankwich shows that shortly before Mer-tens departed he agreed to accept the money from Loew’s as a loan and the court so found and also that the moneys paid to the Collector were from moneys so loaned. Since the district court heard the testimony of this witness and, having the opportunity to judge of his credibility, accepted his testimony as true, we cannot say that the findings as to the loan and the payment to the Collector from it are clearly erroneous. Federal Rules of Civil Procedure, rule 52, 28 U.S.C.A. following section 723c. On the testimony the findings are clearly supported. It follows that there is no merit in the Collector’s contention that the payment by Mertens on September 7, 1938, of the money demanded by the Commissioner on September 6, 1938, for the income up to September 1, 1938, was a tax payment by Loew’s, even if not legally demanded. It was a loan properly made in view of the uncertainties of Loew’s future liabilities, solely for the taxes legally assessed. . The judgments in favor of Mertens and Mrs. Mertens are affirmed. “Sec. .láf). Closing by commissioner of taxable year. “(a) Tax in jeopardy. “(1) Departure of taxpayer or removal of property from United States. — If tbe Commissioner finds that a taxpayer designs quickly to depart from tbe United States or to remove his property therefrom, or to conceal himself or Ms property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the tax for the taxable year then last past or the taxable year then current unless such proceedings bo brought without delay, the Commissioner shall declare the taxable period for such taxpayer immediately terminated and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired ; and such taxes shall thereupon become immediately due and payable. In any proceeding in court brought to enforce payment of taxes made due and payable by virtue of the provisions of this section the finding of the Commissioner, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of the taxpayer’s design.” Footnote 1, supra. Note that Mrs. Mertens’ freedom to leave is not mentioned. She had left in June. Footnote 1, supra. Appellant in brief and argument based no contention here npon the fact disclosed by the record that the Collector assessed the tax as of September 7, 1938, the day after the demand. Like all assessments, it was on the income of a prior tax period, here one ending September 1, 1938. Since the demand was illegally made to include Loew’s liabilities, this assessment is illegal to that extent.

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

Are there two issues in the case?

UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company, et al. (Four Cases) Appeal of BELL ATLANTIC. Appeal of U.S. WEST, INC. Appeal of PACIFIC TELESIS GROUP. Appeal of SOUTHWESTERN BELL TELEPHONE COMPANY. Appeal of BELLSOUTH CORPORATION. Nos. 89-5034, 89-5075 to 89-5078. United States Court of Appeals, District of Columbia Circuit. Argued May 3, 1990. Decided June 12, 1990. Rehearing and Rehearing En Banc Denied Aug. 28, 1990. John Thorne, with whom Robert A. Leve-town and Michael D. Lowe, Washington, D.C., for Bell Atlantic Corp., R. Frost Bra-non, Jr., Atlanta, Ga., for BellSouth Corp., Raymond F. Burke, Saul Fisher, Bedmin-ster, N.J., for NYNEX Corp., Richard W. Odgers, Margaret DeB. Brown, San Francisco, Cal., and Stanley J. Moore, San Francisco, Cal., for Pacific Telesis Group, and James D. Ellis, Liam S. Coonan, St. Louis, Mo., and Paul G. Lane, Jefferson City, Mo., for Southwestern Bell Corp., were on the joint brief, for appellants in 89-5034, 89-5076, 89-5077 and 89-5078. James R. Young and John M. Goodman, Washington, D.C., for Bell Atlantic, Martin J. Silverman, New York City, for NYNEX Corp., Sarah J.Diehl, San Francisco, Cal., for Pacific Telesis Group, William C. Sullivan and Linda S. Legg, Washington, D.C., for Southwestern Bell, and Abbott B. Lipsky, Jr., Washington, D.C., for BellSouth Corp., also entered appearances, for appellants. Jeffrey S. Bork, Washington, D.C., was on the brief, for appellant U.S. West, Inc. in 89-5075. Andrea Limmer, Atty., Dept, of Justice, with whom James F. Rill, Asst. Atty. Gen., Washington, D.C., Alison L. Smith, Deputy Asst. Atty. Gen., Houston, Tex., Catherine G. O’Sullivan and Barry Grossman, Attys., Dept, of Justice, Washington, D.C., were on the brief, for appellees in all cases. David W. Carpenter, Chicago, Ill., Mark C. Rosenblum, New York City, and Howard J. Trienens, Chicago, Ill., were on the brief, for appellee AT & T in 89-5034, 89-5075, 89-5076, 89-5077 and 89-5078. Jonathan S. Hoak, Springfield, Ill., also entered an appearance, for appellee. Chester T. Kamin, Chicago, Ill., Thomas S. Martin, Michael H. Salsbury, Anthony C. Epstein and Carl S. Nadler, Washington, D.C., for MCI Communications Corp., Stephen R. Bell and David Alan Nall, Washington, D.C., for BT Tymnet, Inc., were on the joint brief, for appellees in 89-5034, 89-5075, 89-5076, 89-5077 and 89-5078. Martin T. McCue, Roselle, Ill., entered an appearance, for appellee U.S. Telephone Ass’n in all cases. Samuel A. Simon, Washington, D.C., was on the brief, for intervenor U.S. Yideotel, Inc. in all cases. Before EDWARDS, SILBERMAN and WILLIAMS, Circuit Judges. Opinion for the Court filed by Circuit Judge SILBERMAN. SILBERMAN, Circuit Judge: This appeal is yet another in a stream of disputes arising from the consent decree that purported to settle the Justice Department’s antitrust suit against AT & T. See United States v. AT & T, 552 F.Supp. 131 (D.D.C.1982), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). Bell Atlantic, joined by several other Regional Bell Operating Companies (BOCs), challenges the district court’s declaratory ruling that the system by which Bell Atlantic proposed to provide so-called “gateway services” to its customers seeking information about and connection to information services providers would violate the consent decree’s line of business restrictions. See United States v. Western Elec. Co., 1989-1 Trade Cas. (CCH) § 68,400, 1989 WL 21992 (D.D.C.1989). We affirm. I. Under the consent decree, AT & T divested itself of its local exchange monopoly,, transferring those operations to the BOCs. In turn, the decree barred the BOCs from participating in the markets for interex-change (long distance) services, equipment manufacturing, information services, and all other non-telecommunications businesses. See AT & T, 552 F.Supp. at 227-28. In 1987, in the first so-called “Triennial Review” of the continuing need for those line of business restrictions, the BOCs sought removal of all of the prohibitions. The district court granted their motions with respect to non-telecommunications businesses, denied the motions seeking removal of the interexchange and manufacturing restrictions, and partially lifted the information services restriction in order to allow the BOCs to transmit information generated by others and to provide gateway services — a variety of functions designed to foster interconnection between consumers and information providers. See United States v. Western Elec. Co., 714 F.Supp. 1, 23 (D.D.C.1988); United States v. Western Elec. Co., 673 F.Supp. 525, 592-94 (D.D.C.1987). On appeal, while affirming all of the district court’s other rulings, we remanded the BOCs’ information services motion to the district court for reconsideration under a legal standard more favorable to the BOCs. See United States v. Western Elec. Co., 900 F.2d 283 (D.C.Cir.1990) (per curiam). The BOCs, therefore, are permitted to provide gateway information services so long as they do not run afoul of the decree’s still-extant interexchange restriction. The contours of that restriction are established by three sections of the consent decree. Section 11(D)(1) of the decree provides that, “no BOC shall ... provide inter-exchange telecommunications servic-es_” 552 F.Supp. at 227. “Interex-change telecommunications,” according to section IV(K), are “telecommunications between a point or points located in one exchange telecommunications area and a point or points located in one or more other exchange areas or a point outside an exchange area.” Id. at 229. Finally, “telecommunications service” is defined by section IV(P) of the decree as “the offering for hire of telecommunications facilities, or of telecommunications by means of such facilities.” Id. After the district court issued its opinions in the Triennial Review, Bell Atlantic announced its plans to deploy a gateway system in Pennsylvania designed as follows. A customer in any of Pennsylvania’s five local exchange areas (sometimes called “LATAs”) wanting to connect his computer to information services providers (ISPs) would dial a local telephone number to reach Bell Atlantic’s facility (referred to as its “PAP”) in that local exchange area. Bell Atlantic would then connect the call to a central processor located in Philadelphia, utilizing interexchange lines leased from an interexchange carrier. The central processor would then perform the primary gateway functions. It would transmit to the caller an introductory welcoming screen and a “White Pages-style” listing of information services providers. The customer would also be able to search through the central processor’s files to obtain listings of providers of specific services, descriptions of provider services, and prices. If the customer ultimately decided to patronize an ISP, the central processor would transfer the call back to Bell Atlantic’s PAP within the customer’s LATA, and the PAP would connect the customer to the ISP, thus ending the involvement of Bell Atlantic’s gateway. If the ISP were located in a different LATA from the customer, the call would be routed by the PAP to the ISP through an interexchange carrier of the ISP’s choosing. The customer would be charged one “bundled” price for these gateway services—that is, he would not be charged separately for any interexchange service used to transmit his call across LATA boundaries to reach the central processor in Philadelphia. After appellee MCI, among others, objected to Bell Atlantic’s proposed gateway architecture, Bell Atlantic asked the district court for a declaratory ruling that the gateway would not violate the decree’s interexchange restriction. The district court ruled against Bell Atlantic, and this appeal followed. II. Appellees AT & T, MCI, and BT Tymnet argue that we lack jurisdiction over this appeal because Bell Atlantic did not seek a waiver, pursuant to section VIII(C) of the decree, that would allow it to provide the proposed gateway services. Under their view, the district court’s opinion was not an appealable final order since Bell Atlantic may still obtain the very same practical relief, by applying for and being granted a waiver, that it sought in its motion for a declaratory ruling. We believe that the district court’s decision is a final order under 28 U.S.C. § 1291 and that the BOCs need not use the waiver procedure in order to get appellate review of the district court’s ruling. If, as appellants contend, Bell Atlantic’s proposed gateway does not contravene the decree’s restrictions, then the district court’s ruling obliges Bell Atlantic either to abandon a lawful activity or to seek a waiver when one should not be required. According to the procedure established by the district court in 1984, waiver requests under this consent decree must first be submitted to the Justice Department, and if the Department is convinced that the BOC request satisfies the section VIII(C) standard, it requests an appropriate order from the court. See United States v. Western Elec. Co., 592 F.Supp. 846, 873 (D.D.C.1984), appeal dismissed, 777 F.2d 23 (D.C.Cir.1985). But the availability of a waiver procedure cannot oblige the BOCs to invoke it before they appeal a district court ruling forbidding behavior that they believe the decree authorizes without the approval of the Justice Department, the district court, or anyone else. Cf. WAIT Radio v. FCC, 418 F.2d 1153, 1158 (D.C.Cir.1969) (“The very essence of waiver is the assumed validity of the general rule_”). The BOCs may choose not to go through the waiver process — either as a matter of strategy or because the process can be time-consuming and onerous — and simply assert their perceived rights under the decree. We therefore conclude that this appeal is properly before us. III. The merits of this dispute turn on the interrelationship of the definition of interexchange telecommunications — ‘ ‘telecommunications between a point or points located in one exchange ... and a point or points located in one or more other exchange areas or a point outside an exchange area” — and the definition of telecommunications service — “the offering for hire of telecommunications facilities, or of telecommunications by means of such facilities.” Because the decree provides that “no BOC shall ... provide interexchange telecommunications services,” Bell Atlantic’s proposed gateway service is prohibited only if it satisfies both definitions. Appellants argue that the interexchange portion of the gateway service is not offered for hire and therefore the proposal is not covered by the decree. In other words, it is claimed that so long as the interex-change portion of the service is not separately identified to the customers and not separately charged to the customer, it is not offered for hire even though it is bundled in the overall gateway service, which is clearly offered for hire. We think appellants urge a rather strained interpretation of the language of the decree. Under their view, interex-change service, no matter how extensive, could be provided by the BOCs by simply packaging that service with some other noninterexchange telecommunications or even nontelecommunications service. That interpretation, it seems rather obvious, would create an enormous loophole in the core restriction of the decree. To be sure, information services, of which the gateway proposal appears to be a variant, may well shortly be removed from the decree’s coverage, United States v. Western Elec. Co., 900 F.2d 283, 304-309 (D.C.Cir.1990) (per curiam). Nevertheless, when information services are, as here, bundled with leased interexchange lines, the activity is covered by the decree. We do not agree with appellants that a distinction should be drawn between leasing lines, on the one hand, and acquiring or constructing them, on the other. A taxi company, for instance, offers taxi service for hire whether or not it owns or leases its cabs. The critical distinction under the decree is not whether the BOC owns the interexchange capacity, but whether it “provide[s]” inter-exchange service to its customers. Appellants rely heavily on a 1983 ruling of the district court, United States v. Western Elec. Co., 569 F.Supp. 1057, 1097-1101 (D.D.C.), aff'd mem. sub nom. California v. United States, 464 U.S. 1013, 104 S.Ct. 542, 78 L.Ed.2d 719 (1983), that permitted BOCs to provide directory assistance service to customers even though that service entails transmission of certain calls across LATA boundaries. It is argued that no principled distinction can be drawn between that service and the gateway service. The 1983 decision followed the district court’s review, pursuant to the consent decree, of AT & T’s plan of reorganization under which the pre-divestiture assets and functions of AT & T were divided among the BOCs and AT & T. In that context, the district court discussed so-called “official services”—those communications that occur within a BOC, as well as those between a BOC and its customers, that are regarded as necessary to run the telephone system. Included among those communications was the traditional directory assistance service offered to customers. See id. at 1097 n. 175. Not surprisingly, the facilities utilized by the pre-divestiture Bell System for official services were designed to achieve operational efficiencies and without regard to the LATA boundaries subsequently imposed by the decree. Therefore, if those facilities were still to be used for official services after divestiture, many communications, including directory assistance calls between customers and the BOCs, would cross LATA boundaries. The district court rejected as “illogical” and “unwise” AT & T’s proposal that the relevant facilities should be allocated to AT & T in the breakup thereby requiring the separated BOCs either to create a self-contained operating company within each LATA or to hire from AT & T (or another interexchange carrier) facilities that it needed to operate the local telephone companies. See id. at 1097-1100. Instead, the district court held that, consistent with the decree, the BOCs could own and operate inter-LATA facilities “which are used solely or predominantly for the performance of its own Official Services functions.” Id. at 1101. In the course of explaining why the decree’s terms did not bar its decision, the district court stated that, “[o]bviously, the Official Services are not ‘for hire.’ ” Id. at 1100. Appellants, in making this argument, rely on a false premise: that we are somehow bound by the reasoning of the district court. That is not so—even for district court opinions that are summarily affirmed by the Supreme Court. See Anderson v. Celebrezze, 460 U.S. 780, 785 n. 5, 103 S.Ct. 1564, 1568 n. 5, 75 L.Ed.2d 547 (1983). Indeed, as we have repeatedly stated, the district court’s interpretation of the consent decree is subject to de novo appellate review. See, e.g., United States v. Western Elec. Co., 900 F.2d 283, 293 (D.C.Cir.1990) (per curiam). Therefore, assuming arguendo that the district court meant in 1983 to refer to directory assistance as well as other official services when it summarily stated without elaboration that such services were not “for hire,” we are certainly not obliged to accept that interpretation. In 1983 the district court was faced with a one-time daunting task, the allocating of existing facilities to either AT & T or the BOCs—and the court and the parties may well have preferred a measure of pragmatism to logic. Appellants have picked a rather attractive vehicle to test their interpretation of the decree. We are told that if the gateway service were to be duplicated in every LATA, it would be prohibitively expensive and therefore if Bell Atlantic may not offer it throughout Pennsylvania it might not be available anywhere. That is a powerful argument for a waiver from the terms of the decree, but that is a route appellants chose to bypass. For the foregoing reasons, the judgment of the district court is affirmed. . There is thus no reason to doubt that the BOCs will continue, at minimum, to be able to provide gateway services. . Of course, if the call originated in the Philadelphia LATA, such inter-LATA transmission would not be necessary. . Section VIII(C) provides: "The restrictions imposed upon the separated BOCs by virtue of section 11(D) shall be removed upon a showing by the petitioning BOC that there is no substantial possibility that it could use its monopoly power to impede competition in the market it seeks to enter.” AT & T, 552 F.Supp. at 231. . We do not address the decree’s coverage of interexchange service (such as "800" service) that a BOC might offer, incidental to some permissible business and "provided” to the BOC by others (i.e., interexchange carriers). Appellants have not argued that the BOCs are not "providers" here. . In the paragraph immediately preceding the "for hire” statement, the district court notes that the decree’s interexchange restriction "is wholly inapplicable to the provision of inter-LATA service by each Operating Company for its own internal, official purposes.” Id. at 1100 (emphasis added) (footnote, omitted). . We do not think much of the entirely different argument presented by intervenor U.S. West: that Bell Atlantic's proposed gateway is permitted by the decree since it constitutes "information access" as that term is used in section IV(I), rather than an "information service." We are not sure why that distinction should make any difference since the decree expressly states that information access services may be provided by the BOCs "in an exchange area.” Be that as it may, the service at issue here is clearly not “information access" since the decree states that information access is provided “to or from the facilities of an information provider.” The connection between a customer and Bell Atlantic's central processor obviously does not fit that description. The gateway services that we are focused on in this appeal would be completed before the customer is connected to an information provider.

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?

D & L CONSTRUCTION COMPANY et al., Appellants, v. TRIANGLE ELECTRIC SUPPLY COMPANY, Inc., Appellee. No. 17493. United States Court of Appeals Eighth Circuit. June 22, 1964. John A. Biersmith, of Rafter, Bier-smith, Miller & Walsh, Kansas City, Mo., for appellant. Robert D. Youle, of Lathrop, Righter, Gordon & Parker, and Daniel M. Dibble, of Lathrop, Righter, Gordon & Parker, Kansas City, Mo., for appellee. Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. The issue presented by this appeal taken by defendants D & L Construction Company and its associates and Continental Casualty Company, its performance bond surety, is whether the trial court properly allowed plaintiff Triangle Electric Supply Company, Inc., interest and attorneys’ fees upon its claim for materials furnished Mojave Electric Company, Inc., a subcontractor upon a Cape-hart Housing Project upon which D & L was prime contractor. Through pleadings, discovery proceedings, stipulations and pretrial conferences, the parties ultimately agreed that the reasonable value of electrical equipment furnished by Triangle to the subcontractor and used on the project is $14,592.12. Triangle’s right to judgment for such amount is not questioned. The parties stipulated in regard to their respective claims and the questions for decision as follows: “(a) If plaintiff Triangle is entitled to interest, said interest shall run from date of plaintiff’s demand letter of March 28, 1960 to the defendants D & L and Continental, and such interest shall be calculated at the rate of six per cent per annum. * * * Defendants deny that interest is allowable on an award on such bond. This is an issue of law to be determined by the Court. “(b) Plaintiff claims that if a recovery is allowed it for the principal amount of its claim under the payment bond in question, it is also entitled to an allowance for attorneys’ fees. Defendants deny that any attorneys’ fees can be awarded in connection with a recovery on the bonds in question. This is an issue of law to be determined by the Court.” The court sustained Triangle’s motion for summary judgment and entered judgment for Triangle against D & L and its surety for $14,592.12 principal, $2,924.07 interest and $6,000 attorneys’ fees. This appeal is from such judgment. Defendants’ statement of points relied upon for reversal reads: “The Court below erred in including in its summary judgment as a matter of ‘Federal Law’ under ‘Rules of Decision Developed under the Heard and Miller Act Decisions’ sums representing awards to this plaintiff of pre-judgment interest and attorneys’ fees in that: “a. The rules of decision developed under the Miller and Heard Acts are not applicable to Capehart bond suits. “b. Even under the decisions interpreting the Miller and Heard Acts, there is no ‘Federal Law’ entitling a claimant to pre-judgment interest or attorneys’ fees.” Plaintiff’s answer to point “a” is that, for the purpose of solving the issues here presented, it is immaterial whether the Capehart Housing Project provisions are sui generis and that all provisions of the Miller Act may not apply to Capehart Housing. We agree. Continental Cas. Co. v. United States for the Use and Benefit of Robertson Lumber Co., 8 Cir., 305 F.2d 794, relied upon by defendants, has no direct bearing upon the problem we are here considering. There we held that 42 U.S.C.A. § 1594a gave the Secretary of Defense the right to prescribe the form of bond to be furnished on Capehart Projects and that when the bond prescribed and given contained more stringent provisions as to notice to be given than the Miller Act, the procedural provisions of the Capehart bond must be followed. We said nothing about the Miller Act decisions lacking persuasiveness in instances where the Miller Act bond and Capehart bond contained substantially similar provisions. We recognized that the Capehart bond is a bond required by federal law and stated that Congress intended that Capehart should have substantive bond protection essentially similar to that of Miller Act suppliers. Plaintiff’s position is that, to the extent here material, the Capehart bond as prescribed by the Secretary of Defense pursuant to 42 U.S.C.A. § 1594a and given by the prime contractor is in substance the same as that required on Miller Act projects by 40 U.S.C.A. § 270b. The pertinent provisions of the bond here in suit are: “ * * * every claimant * * * who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant’s work or labor was done or performed or materials furnished by such claimant * * * may sue on this bond * * in the name of the claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon * * The Miller Act, as shown by 40 U.S. C.A. § 270b (a) similarly provides bond coverage for persons furnishing labor or materials “for the sum or sums justly due him.” It reasonably appears that the drafters of the Capehart bond adopted the Miller Act phraseology in the respects here material. Miller Act bonds and Capehart bonds are bonds required by federal law. Each of such bonds are designed to serve substantially the same purpose, that is, to protect parties furnishing labor and material used on federally sponsored projects. Upon the record before us, we believe that the trial court properly determined that “the rules of decision that will be applied to the factual situations involved in the various cases will be the rules of decision developed under the Heard and Miller Act decisions.” 217 F.Supp. 913, 914. Defendants urge that in any event there are no decisions under the Heard and Miller Act which allow for recovery of pre-judgment interest or attorneys’ fees. The bond here in suit clearly permits Triangle to recover sums justly due for material and labor furnished on the project. What is included in the term “justly due” may vary with the facts and circumstances of individual cases. If labor and material is furnished under express contract, the contract will ordinarily measure the sum justly due. Here the court, upon the basis of undisputed evidence, found : “All of the invoices of plaintiff Triangle to Mojave for materials here involved contain the following provision: “ ‘All past due invoices bear interest at the rate of 6% per annum. Should it become necessary to place this or any subsequent invoice in the hands of an attorney for collection, reasonable attorneys’ fees shall be added.’ “Said provision expresses Triangle’s usual and normal terms of sale and constitute a part of the contract of purchase and sale between plaintiff Triangle and Mojave Electric Company.” 217 F.Supp. 913, 914. The validity of the court’s determination that the contract between Triangle and the subcontractor provided for 6% interest on past due invoices and a reasonable attorneys’ fee in event of suit is in no way challenged. With respect to interest, the parties have agreed as to the amount of interest due in the event interest is allowable. The judgment for interest is based upon such agreement. We agree with the trial court that the contract under which Triangle furnished materials to the subcontractor for use on the project measures the amount that is justly due Triangle. United States for Benefit and on Behalf of Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776, a Miller Act case, is direct authority supporting allowance of attorneys’ fees and interest. There the Supreme Court held that an additional percentage of wages plus attorneys’ fees and liquidated damages provided for by a welfare trust agreement established pursuant to the governing union contract were recoverable within the statutory language “sums justly due him”: “The trustees’ claim for liquidated damages, attorneys’ fees, court costs and other related expenses of this litigation has equal merit. The contractor’s obligation to pay these items is set forth in the trust agreement. It is stipulated that they form a part of the consideration which Carter agreed to pay for services performed by his employees. If the employees are to be ‘paid in full’ the ‘sums justly due’ to them, these items must be included.. Their amount, however, remains to be determined. * “We hold that the Miller Act makes the surety liable on its payment bond for the delinquent contributions to the fund, together with the additional items above described.” 853 U.S. 210, 220-221, 77 S.Ct. 799, 1 L.Ed.2d 776. The opinion interprets the contractual and statutory obligation on the basis of federal law. There is no discussion of state law. In Continental Cas. Co. v. United States for Use and Benefit of Conroe Creosoting Co., 5 Cir., 308 F.2d 846, attorneys’ fees were allowed claimant under a Capehart Act bond. There, as here, the bond provided that the surety shall be liable for such sums as may be justly due. The court in allowing attorneys’ fees states: “The decision of the District Court as to the right of these appellees to recover attorney’s fees was based upon this provision of the bond and we agree with the decision of the District Judge that appellant is liable to each appellee for a reasonable attorney’s fee.” 308 F.2d 846, 849. The award is based upon the provisions of the bond similar to the bond provisions in this case. There is no discussion of state law. It is quite true that in some instances federal courts have looked to state law to determine liability of a surety on a Miller Act bond for attorneys’ fees and interest. The liability of the surety is measured by that of the prime contractor covered by the bond. The liability of the prime contractor to a project supplier of a subcontractor is governed by the subcontractor’s obligation. Where there is no express contract for interest or attorneys’ fees, it is necessary to look to state law to measure the extent of the subcontractor’s obligation In such a situation, state law will determine when interest is allowable and the rate of interest. Such a condition does not exist where, as here, interest and attorneys’ fees are covered by express contract. In our present case, the subcontractor by express contract with his supplier, Triangle, agreed to pay 6% interest per annum on past due invoices and a reasonable attorneys’ fee. Such interest and attorneys’ fees are by such contract made part of the purchase price of the materials and are sums justly due to Triangle. The defendants are liable upon their bond for such sums justly due. Like the trial court, we limit our holding to the facts of this case and express no view upon what a claimant’s right might be to collect interest or attorneys’ fees in the absence of an express contractual provision covering such items. With respect to the attorneys’ fee allowance, we observe that defendants have limited their attack to the issue of the right of Triangle to recover any attorneys’ fees and there is no contention made that the $6,000 fee allowed is excessive. Plaintiff has filed a motion for allowance of additional attorneys’ fees upon appeal. We do not question the extent and value of the services of plaintiff’s counsel. However, it would appear that this litigation has covered a far wider field than could have reasonably been contemplated by the contracting parties. We believe that the $6,000 attorneys’ fees allowed adequately covers all attorneys’ fees reasonably contemplated by the contract for the purchase of materials. Hence, in the exercise of our judicial discretion, we decline to allow any additional attorneys’ fees for services upon this appeal. See Annot. 52 ALR2d 863. The j'udgment appealed from is affirmed. . The trial court’s opinion is reported at 217 F.Supp. 913. See also United States for Use and Benefit of Fine v. Travelers Ind. Co., W.D.Mo., 215 F.Supp. 455, for an extensive discussion of legal questions common to this and other related litigation. . There remained pending cross claims by the defendants and the surety upon the subcontractor’s bond which are reserved for subsequent trial. Such issues are not here directly involved. The trial court made the Rule 54(b) order making the judgment here appealed from final. . The trial court sets out in some detail the basis for such determination in United States for Use and Benefit of Fine v. Travelers Ind. Co., W.D.Mo., 215 F.Supp. 455. . In Illinois Sur. Co. v. John Davis Co., 244 U.S. 376, 37 S.Ct. 614, 61 L.Ed. 1206, there is nothing in the opinion to indicate a specific contractual obligation to pay interest. Under such circumstances, the court turned to state law to determine interest liability and allowed interest on the basis of Illinois law. For other cases allowing interest or attorneys’ fees upon the basis of state law in situations where no express contract relating thereto existed, see Sam Maori & Sons, Inc. v. United States, for Use of Oaks Construction Company, 9 Cir., 313 F.2d 119; J. F. White Engineering Corp. v. United States, for Use of Pittsburgh Plate Glass Co., 10 Cir., 311 F.2d 410; United States for Use of Weston & Brooker Company v. Continental Cas. Co., 4 Cir., 303 F.2d 91.

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 40. 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 40? Answer with a number.

RADICH et al. v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. June 13, 1927. No. 5004. 1. Criminal law @=692 — Defendant, not questioning validity of arrest before trial, could not question admissibility of evidence on ground of irregularity of arrest (Pen. Code Ariz. 1913, § 858). In prosecution for violation of National Prohibition Act (Comp. St. § 1013814 et seq.), defendant, who before trial took no step by motion or otherwise to vacate order of arrest, 'held not in a position to urge that evidence seized at time of arrest was inadmissible because arrest was made during nighttime on a misdemeanor warrant, and hence illegal under Pen. Code Ariz. 1913, § 858. 2. Intoxicating liquors @=236(9)— Proof of sales of liquor separately to two persons at same time and place will sustain conviction on charge of several sales. Proof of sales of intoxicating liquor, made separately to two persons, each of whom pays for the liquor, about the same time and place, wiE sustain conviction on a charge of several sales. In Error to the District Court of the United States for the District of Arizona; William H. Sawtelle, Judge. Jack Radieh and C. P. Drapieh were convicted of violating the National Prohibition Act, and they bring error. Judgment affirmed. Jay Good, of Globe, Ariz., for plaintiffs in error. John B. Wright, U. S. Atty., of Tuseon, Ariz., and George R. Hill, Asst. U. S. Atty., of Phoenix, Ariz. Before GILBERT, HUNT, and RUD-KIN, Circuit Judges. ' ' HUNT, Circuit Judge. Radieh and Drapieh were jointly charged with violation of the National Prohibition Act (Comp. St. § 1013814 et seq.). General demurrers to the information were overruled. Pleas of not guilty were entered, and after trial both were convicted under counts charging sales and possession of intoxicating liquor at Globe, Ariz. Drapieh was also convicted un-. der an information charging him and Radieh with maintaining a common nuisance. Radich was acquitted of that charge. The two informations were consolidated for trial. In due course defendants sued out writs of error. Since submission of the ease, Drapieh has died, so we shall consider only the assignments affecting Radieh. The evidence wds that the Bankers’ Garden in Globe, Ariz., was a resort kept by Drapieh for the sale of soda water, beer, cigars, etc.; that Radieh worked in the place and sometimes paid the rent; that each sold whisky at various times, as charged in the counts under which they were convicted; that on March 20, 1926, about 9 o’clock in the evening, a deputy United States marshal went to the Bankers’ Garden to serve a bench warrant issued for the arrest of the two men by the United States District Court for the District of Arizona; that at the time of the arrest Drapieh was in the saloon behind the bar; that Radieh, who was then in the rear of the room, immediately came to the front and was arrested; that the marshal had no search warrant; that just as Drapieh was arrested he stooped over, whereupon a prohibition agent, who was with the marshal, stepped up to the bar, saw a pint bottle of whisky, reached over, picked it up, and handed it to the marshal. In presenting the evidence for the prosecution, counsel offered the bottle of liquor in evidence. Defendants objected on the grounds that the evidence obtained was not sufficient to justify “a night search warrant, and that the officers were not legally on the premises in their service of a warrant for a misdemeanor in the nighttime.” The court overruled the objection and admitted the liquor. Defendants excepted. Counsel for the government then stated that he placed no reliance upon seizure by search warrant, whereupon the case was proceeded with. ~ Radieh assigns as error the admission in evidence of the liquor obtaified while arresting defendants during the nighttime on a misdemeanor warrant. We are cited to section 858 of the Arizona statute, which provides that, if’the offense charged is a misdemeanor, an arrest cannot be made at night, “unless upon the direction of the magistrate, indorsed upon the warrant, except when the 'offense is committed in the presence of the arresting officer.” At the outset it seems perfectly clear that the officers had a right to go into the place, whjch was a resort open to all who chose to enter. The bench warrant served was regular on its face, although it had no indorsement or direction of the judge of the District Court specially authorizing arrest at night. However, Radieh is not in a position to urge that such indorsement was essential to the legality of his arrest, for ho took no step, by motion or otherwise, to vacate the order of arrest until after his plea of not guilty was entered and the trial on the merits was being proceeded with. His position is more unsound than that of a defendant who goes to trial on an information which lacks verification, but who, failing to object before trial on the merits, waives his right to challenge tho sufficiency of the information for lack of verification. Albrecht et al. v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed.-; Erie R. Co. v. Reigherd (C. C. A.) 166 F. 247, 20 L. R. A. (N. S.) 295, 16 Ann. Cas. 459; Simpson v. United States (C. C. A.) 241 F. 842; Jordan v. United States (C. C. A.) 299 F. 298; Merrill v. United States (C. C. A.) 6 F.(2d) 120; Farinelli v. United States (C. C. A.) 297 F. 198. There was no error in holding that sales of intoxicating liquor, made separately to two persons, each of whom pays .money for the liquor, about the same time and place, will authorize conviction of a charge of several sales. 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 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.

CHICAGO & NORTH WESTERN RAILWAY CO. v. UNITED TRANSPORTATION UNION No. 189. Argued January 18, 1971 Decided June 1, 1971 Harlan, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Marshall, and BlackmuN, JJ., joined. Brennan, J., filed a dissenting opinion, in which Black, Douglas, and White, JJ., joined, post, p. 584. William H. Dempsey, Jr., argued the cause for petitioner. With him on the briefs were David Booth Beers and Richard M. Freeman. John H. Haley, Jr., argued the cause for respondent. With him on the brief was John J. Naughton. J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance. Mr. Justice Harlan delivered the opinion of the Court. The Chicago and North Western Railway Co., petitioner in this action, brought suit in the United States District Court for the Northern District of Illinois to enjoin a threatened strike by the respondent, the United Transportation Union. The substance of the complaint was that in the negotiations between the parties over work rules, the Union had failed to perform its obligation under § 2 First of the Railway Labor Act, as amended, 44 Stat. 577, 45 U. S. C. § 152 First, “to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions.” Jurisdiction was said to rest on 28 U. S. C. §§ 1331 and 1337. The Union in its answer contended that §§ 4, 7, and 8 of the Norris-LaGuardia Act, 47 Stat. 70, 71, 72, 29 U. S. C. §§ 104, 107, 108, deprived the District Court of jurisdiction to issue a strike injunction and that in any event the complaint failed to state a claim upon which relief could be granted. The District Judge, having heard evidence and argument, declined to pass on whether either party had violated § 2 First. In an unreported opinion, he concluded that the question was a matter for administrative determination by the National Mediation Board and was nonjusticiable; he further ruled that §§ 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to issue an injunction against the Union's threatened strike. The Court of Appeals for the Seventh Circuit affirmed, 422 F. 2d 979, construing § 2 First as a statement of the purpose and policy of the subsequent provisions of the Act, and not as a specific requirement anticipating judicial enforcement. Rather, in that court's view, the enforcement of § 2 First was solely a matter for the National Mediation Board. Id., at 985-988. We granted certiorari to consider this important question under the Railway Labor Act, on which the lower courts had expressed divergent views. For reasons that follow we reverse. I For at least the past decade, the Nation’s railroads and the respondent Union or its predecessors have been engaged in an off-and-on struggle over the number of brakemen to be employed on each train. We find it unnecessary to describe this history in any great detail, either generally or with particular reference to petitioner. Accounts at earlier stages may be found in Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U. S. 284, 285-288 (1963); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Burlington & Quincy R. Co., 225 F. Supp. 11, 14-17 (DC), aff’d, 118 U. S. App. D. C. 100, 331 F. 2d 1020 (1964); Brotherhood of Railroad Trainmen v. Akron Barberton Belt R. Co., 128 U. S. App. D. C. 59, 66-70, 385 F. 2d 581, 588-592 (1967); Brotherhood of Railroad Trainmen v. Atlantic Coast Line R. Co., 127 U. S. App. D. C. 298, 383 F. 2d 225 (1967); and see the opinion of the court below, 422 F. 2d, at 980-982, and n. 4. For present purposes it is sufficient to observe that the parties have exhausted the formal procedures of the Railway Labor Act: notices, conferences, unsuccessful mediation, refusal by the Union to accept the National Mediation Board’s proffer of arbitration, termination of mediation, and expiration of the 30-day cooling-off period of § 5 First, 45 U. S. C. § 155 First. The Railroad’s charge that the Union had violated § 2 First was based principally on its contention that the Union had consistently refused to handle the dispute on a nationwide basis while maintaining an adamant determination that no agreement should be reached with the Chicago & North Western more favorable to the carrier than agreements which the Union had already reached with other railroads. The complaint also alleged that the Union had refused to bargain on the proposals in the Railroad’s counternotices. The narrow questions presented to us are whether § 2 First imposes a legal obligation on carriers and employees or is a mere exhortation; whether the obligation is enforceable by the judiciary; and whether the Norris-LaGuardia Act strips the federal courts of jurisdiction to enforce the obligation by a strike injunction. The parties have not requested us to decide whether the allegations of the complaint or the evidence presented at the hearing was sufficient to show a violation of § 2 First, and the lower courts, by their resolution of the threshold questions, did not reach the issue. Accordingly, we intimate no view on this matter. II This Court has previously observed that “[t]he heart of the Railway Labor Act is the duty, imposed by § 2 First upon management and labor, 'to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.’ ” Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 377-378 (1969). It is not surprising that such is the case. As one leading commentator has said, in connection with the duty under the National Labor Relations Act to bargain in good faith, “[i]t was not enough for the law to compel the parties to meet and treat without passing judgment upon the quality of the negotiations. The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition.” Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401,1412-1413 (1958). We recognized this to be true when we said in NLRB v. Insurance Agents’ International, 361 U. S. 477, 484-485 (1960), that “the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union.” Virginian R. Co. v. System Federation No. 40, 300 U. S. 515 (1937), furnishes an early illustration of this principle in connection with the duty to “exert every reasonable effort” under the Railway Labor Act. In that case, the railroad refused to recognize a union certified by the National Mediation Board as the duly authorized representative of its shop workers, and instead sought to coerce these employees to join a company union. The employees sought and obtained an injunction requiring the railroad to perform its duty under § 2 Ninth to “treat with” their certified representative; the injunction also compelled the railroad “to exert every reasonable effort” to make and maintain agreements with the union. This Court affirmed that decree, explicitly rejecting the argument that the duty to exert every reasonable effort was only a moral obligation. This conclusion has been repeatedly referred to without criticism in subsequent decisions. The conclusion that § 2 First is more than merely hortatory finds support in the legislative history of the Railway Labor Act as well. As this Court has often noted, the Railway Labor Act of 1926 was, and was acknowledged to be, an agreement worked out between management and labor, and ratified by the Congress and the President. Accordingly, the statements of the spokesmen for the two parties made in the hearings on the proposed Act are entitled to great weight in the construction of the Act. In the House hearings, Donald R. Richberg, counsel for the organized railway employees supporting the bill, was unequivocal on whether § 2 First imposed a legal obligation on the parties. He stated, “it is [the parties’] duty to exert every reasonable effort ... to settle all disputes, whether arising out of the abrogation of agreements or otherwise, in order to avoid any interruption to commerce. In other words, the legal obligation is imposed, and as I have previously stated, and I want to emphasize it, I believe that the deliberate violation of that legal obligation could be prevented by court compulsion.” Mr. Richberg went on to describe why the bill had been drafted in general language applicable equally to both parties, rather than in terms of specific requirements or prohibitions accompanied by explicit sanctions: “We believe, and this law has been written upon the theory, that in the development of the obligations in industrial relations and the law in regard thereto, there is more danger in attempting to write specific provisions and penalties into the law than there is in writing the general duties and obligations into the law and letting the enforcement of those duties and obligations develop through the courts in the way in which the common law has developed in England and America.” Accordingly, we 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. The Court of Appeals, in seemingly coming to the contrary conclusion, relied on this Court’s decision in General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., 320 U. S. 323 (1943). In that case, the Court held that jurisdictional disputes between unions were not justi-ciable, but were left by the Act either to resolution by the National Mediation Board under § 2 Ninth or to the economic muscle of the parties. Reliance had been placed on § 2 Second, which requires that all disputes should be considered and if possible decided in conference of the authorized representatives of the parties. The Court held that this reliance was misplaced: “Nor does § 2, Second make justiciable what otherwise is not. . . . § 2, Second, like § 2, First, merely states the policy which those other provisions buttress with more particularized commands.” Id., at 334 (footnote omitted). In light of the place of § 2 First in the scheme of the Railway Labor Act, the legislative history of that section, and the decisions interpreting it, the passing reference to it in the M-K-T case cannot bear the weight which the Court of Appeals sought to place upon it. Ill Given that § 2 First imposes a legal obligation on the parties, the question remains whether it is an obligation enforceable by the judiciary. We have often been confronted with similar questions in connection with other duties under the Railway Labor Act. Our cases reveal that where the statutory language and legislative history are unclear, the propriety of judicial enforcement turns on the importance of the duty in the scheme of the Act, the capacity of the courts to enforce it effectively, and the necessity for judicial enforcement if the right of the aggrieved party is not to prove illusory. We have already observed that the obligation under § 2 First is central to the effective working of the Railway Labor Act. The strictest compliance with the formal procedures of the Act is meaningless if one party goes through the motions with “a desire not to reach an agreement.” NLRB v. Reed Prince Mfg. Co., 205 F. 2d 131, 134 (CA1 1953). While cases in which the union is the party with this attitude are perhaps rare, they are not unknown. See Chicago Typographical Union No. 16, 86 N. L. R. B. 1041 (1949), enforced sub nom. American Newspaper Publishers Assn. v. NLRB, 193 F. 2d 782 (CA7 1951), aff’d as to another issue, 345 U. S. 100 (1953). We think that at least to this extent the duty to exert every reasonable effort is of the essence. The capacity of the courts to enforce this duty was considered and affirmed in the Virginian case. Mr. Justice Stone, speaking for the Court, noted that “whether action taken or omitted is in good faith or reasonable, are everyday subjects of inquiry by courts in framing and enforcing their decrees.” 300 IT. S., at 550. Section 8 of the Norris-LaGuardia Act explicitly requires district courts to determine whether plaintiffs have “failed to make every reasonable effort” to settle the dispute out of which the request for the injunction grows. We have no reason to believe that the district courts are less capable of making the inquiry in the one situation than in the other. Finally, we must consider the Court of Appeals’ position that the question whether a party had exerted every reasonable effort was committed by the Railway Labor Act to the National Mediation Board rather than to the courts. We believe that the legislative history of the Railway Labor Act rather plainly disproves this contention. It is commonplace that the 1926 Railway Labor Act was enacted because of dissatisfaction with the 1920 Transportation Act, and particularly with the performance of the Railroad Labor Board. While there were many causes of this dissatisfaction, one of the most prominent was that because of its adjudicatory functions, the Board effectively lost any influence in attempting to settle disputes. Throughout the hearings on the bill which became the 1926 Act there are repeated expressions of concern that the National Mediation Board should retain no adjudicatory function, so that it might maintain the confidence of both parties. And as the Court noted in Switchmen’s Union v. National Mediation Board, 320 U. S. 297, 303 (1943), when Congress in 1934 gave the Board power to resolve certain jurisdictional disputes, it authorized the Board to appoint a committee of neutrals to decide the dispute “so that the Board's ‘own usefulness of settling disputes that might arise thereafter might not be impaired.’ S. Rep. No. 1065, 73d Cong., 2d Sess., p. 3.” Only last Term we referred to the fact that “the Mediation Board has no adjudicatory authority with regard to major disputes.” Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U. S. 142, 158 (1969). In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of § 2 First to be overseen by appropriate judicial means rather than by the Mediation Board’s retaining jurisdiction over the dispute or prematurely releasing the parties for resort to self-help if it feels such action called for. IV We turn finally to the question whether § 4 of the Norris-LaGuardia Act prohibits the use of a strike injunction in all cases of violation of § 2 First. The fundamental principles in this area were epitomized in International Association of Machinists v. Street, 367 U. S. 740, 772-773 (1961): “The Norris-LaGuardia Act, 47 Stat. 70, 29 U. S. C. §§ 101-115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, 300 U. S. 515; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232. However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff’s right.” Similar statements may be found in many of our opinions. We consider that these statements properly accommodate the conflicting policies of our labor laws, and we adhere to them. We find it quite impossible to say that no set of circumstances could arise where a strike injunction is the only practical, effective means of enforcing the command of § 2 First. Accordingly, our prior decisions lead us to hold that the Norris-LaGuardia Act did not forbid the District Court from even considering whether this is such a case. If we have misinterpreted the congressional purpose, Congress can remedy the situation by speaking more clearly. In the meantime we have no choice but to trace out as best we may the uncertain line of appropriate accommodation of two statutes with purposes that lead in opposing directions. We recognize, of course, that our holding that strike injunctions may issue when such a remedy is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements falls far short of that definiteness and clarity which businessmen and labor leaders undoubtedly desire. It creates a not insignificant danger that parties will structure their negotiating positions and tactics with an eye on the courts, rather than restricting their attention to the business at hand. Moreover, the party seeking to maintain the status quo may be less willing to compromise during the determinate processes of the Railway Labor Act if he believes that there is a chance of indefinitely postponing the other party’s resort to self-help after those procedures have been exhausted. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S., at 380-381; cf. Hearings, supra, n. 8, at 17, 50, 100 (Mr. Richberg); id., at 190 (Mr. Robertson). Finally, the vagueness of the obligation under § 2 First could provide a cover for freewheeling judicial interference in labor relations of the sort that called forth the Norris-LaGuardia Act in the first place. These weighty considerations indeed counsel restraint in the issuance of strike injunctions based on violations of § 2 First. See n. 11, supra. Nevertheless, the result reached today is unavoidable if we are to give effect to all our labor laws — enacted as they were by Congresses of differing political makeup and differing views on labor relations — rather than restrict our examination to those pieces of legislation which are in accord with our personal views of sound labor policy. See Boys Markets v. Retail Clerks Local 770, 398 U. S. 235, 250 (1970). Y As we noted at the outset, we have not been requested to rule on whether the record shows a violation of § 2 First in circumstances justifying a strike injunction, and we do not do so. Such a question should be examined by this Court, if at all, only after the facts have been marshaled and the issues clarified through the decisions of lower courts. In view of the uncertainty heretofore existing on what constituted a violation of § 2 First and what showing was necessary to make out a case for a strike injunction, we believe the appropriate course is to remand the case to the Court of Appeals with instructions to return the case to the District Court for the taking of such further evidence as the parties may deem necessary and that court may find helpful in passing on the issues which the case presents in light of our opinion today. Reversed and remanded. The subsection provides: “It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” Section 4 reads in relevant part: “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts: “(a) Ceasing or refusing to perform any work or to remain in any relation of employment 29 U. S. C. § 104. Section 7 imposes strict procedural requirements on the issuance of injunctions in labor disputes. Section 8 is set out in n. 12, infra. The Union also averred that it had complied with the command of § 2 First and that the Railroad had been derelict in its duty under that section. See, besides the opinion below, Piedmont Aviation, Inc. v. Air Line Pilots Assn., 416 F. 2d 633 (CA4 1969); Brotherhood of Railroad Trainmen v. Akron & Barberton Belt R. Co., 128 U. S. App. D. C. 59, 385 F. 2d 581 (1967), aff’g 253 F. Supp. 538 (1966); Seaboard World Airlines, Inc. v. Transport Workers, 425 F. 2d 1086 (CA2 1970); United Industrial Workers v. Galveston Wharves, 400 F. 2d 320 (CA5 1968). E. g., Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 721-722, n. 12 (1945), adhered to on rehearing, 327 U. S. 661 (1946); Stark v. Wickard, 321 U. S. 288, 306-307 (1944); Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S. 330, 339 (1960); International Association of Machinists v. Street, 367 U. S. 740, 758 (1961); Brotherhood of Railway Clerks v. Association for the Benefit of Non-Contract Employees, 380 U. S. 650, 658 (1965); Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U. S. 142, 149, 151 (1969). E. g., International Association of Machinists v. Street, 367 U. S. 740, 758 (1961). See, e. g., Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U. S. 142, 151 n. 18, 152 n. 10, 153 n. 20 (1969). Hearings on Railroad Labor Disputes (H. R. 7180) before the House Committee on Interstate and Foreign Commerce, 69th Cong., 1st Sess., 91 (1926). See also id., at 40-41, 66, 84-85. Id., at 91. See also id., at 66. See, e. g., Texas & N. O. R. Co. v. Brotherhood of Railway Clerks, 281 U. S. 548 (1930); Virginian R. Co. v. System Federation No. 40, 300 U. S. 515 (1937); Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768 (1952). While we have no occasion to determine whether § 2 First requires more of the parties than avoidance of “bad faith” as defined by Judge Magruder in Reed & Prince, supra, we note two caveats. First, parallels between the duty to bargain in good faith and the duty to exert every reasonable effort, like all parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care and with full awareness of the differences between the statutory schemes. Cf. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 383 (1969). Second, great circumspection should be used in going beyond cases involving “desire not to reach an agreement,” for doing so risks infringement of the strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements. See n. 19, infra. The section provides in full: “No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” 29 U. S. C. § 108. E. g., Hearings, supra, n. 8, at 18 (Mr. Richberg): “The board of mediation, to preserve its ability to mediate year after year between the parties, must not be given any duties to make public reports condemning one party or the other, even though the board may think one party is wrong. That is the fundamental cause of failure of the [Railroad] Labor Board. That is the reason why the Labor Board machinery never would work, because a board was constituted to sit and deliver opinions which must be opinions for or against one party, and as soon as that board began delivering opinions publicly against a party, that party was sure the board was unfair to it. That is human nature. The board, in other words, was created in a manner to destroy any confidence in itself. “The board of mediators is not for that function. The board of mediators should never make any reports to the public condemning one party or the other. Their duty is that of remaining persuaders.” If such were the exclusive remedy for violations of § 2 First, not only would it endanger the effectiveness of the Board’s mediatory role and risk premature interruptions of transportation, but it would provide no remedy for cases where the violations of § 2 First occurred or first became apparent after the Board had certified that its mediatory efforts had failed. See n. 2, supra, for the text. See Virginian R. Co. v. System Federation No. 40, 300 U. S., at 562-563; Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U. S. 232, 237 (1949); Brotherhood of Railroad Trainmen v. Howard, 343 U. S. 768, 774 (1952); Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30, 41-42 (1957); cf. Order of Railroad Telegraphers v. Chicago & N. W. R. Co., 362 U. S., at 338-339; id., at 360-364 (dissenting opinion); Textile Workers Union v. Lincoln Mills, 353 U. S. 448, 458 (1957). The congressional debates over the Norris-LaGuardia Act support a construction of that Act permitting federal courts to enjoin strikes in violation of the Railway Labor Act in appropriate cases. See 75 Cong. Rec. 4937-4938 (Sen. Blaine); id., at 5499, 5504 (Rep. LaGuardia). Section 2 First was re-enacted in 1934, two years after the Norris-LaGuardia Act. Act of June 21, 1934, c. 691, 48 Stat. 1185. In the event of irreconcilable conflict between the policies of the earlier, general provisions of the Norris-LaGuardia Act and those of the subsequent, more specific provisions of § 2 First, the latter would prevail under familiar principles of statutory construction. Virginian R. Co. v. System Federation No. 40, 300 U. S., at 563. Section 8 (d) of the National Labor Relations Act, 29 U. S. C. § 158 (d), was added precisely because of congressional concern that the NLRB had intruded too deeply into the collective-bargaining process under the guise of enforcing the duty to bargain in good faith. See NLRB v. American National Insurance Co., 343 U. S. 395 (1952); NLRB v. Insurance Agents’ International, 361 U. S. 477 (1960).

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

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

Donald ROY, of Waterville, Kennebec County, State of Maine, Plaintiff, Appellant, v. The CITY OF AUGUSTA, MAINE, et al., Defendants, Appellees. No. 82-1942. United States Court of Appeals, First Circuit. Argued April 4, 1983. Decided July 28, 1983. Jed Davis, Augusta, Me., with whom Jim Mitchell and Jed Davis, P.A., Augusta, Me., was on brief, for plaintiff, appellant. Charles E. Moreshead, Augusta, Me., with whom Linda B. Gifford, and Sanborn, Moreshead, Schade & Dawson, Augusta, Me., were on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges. LEVIN H. CAMPBELL, Chief Judge. This is an appeal from the district court’s dismissal of a civil rights action for failure to state a claim upon which relief can be granted. We hold that the action is barred as against defendant City of Augusta by the operation of res judicata but that the complaint should not have been dismissed as against the individual defendants as it states a possible claim against them under 42 U.S.C. § 1982. Because this appeal is before us from a dismissal of the complaint, we construe the facts and pleadings in the light most favorable to the plaintiff. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam). On September 20, 1976 the city council of Augusta, Maine, granted plaintiff-appellant, Donald Roy, a license to operate a pool and billiard room at 79-81 Cony Street, Augusta, premises which he owned subject to a mortgage. On April 1, 1977 he applied for a renewal of the license. His application was denied following a hearing on April 11, 1977. Roy then commenced an action in the Kennebec County Superior Court seeking a declaratory judgment, injunctive relief, and reversal of the council’s actions. On June 3, 1977, the Superior Court determined that the council had failed to provide a transcript of the hearing as required by state law. 1 Me. Rev.Stat.Ann. § 407.1, and ordered the council to hold a new hearing. A second hearing was held on June 9, 1977, and the council again voted not to renew Roy’s license. The council based its decision upon a city ordinance requiring that licenses shall “be granted only if the location is in such a place that it will not disturb the peace and quiet of a family.” The council found that large numbers of young people had assembled outside Roy’s establishment and had disturbed the peace and quiet of the area. There was no evidence, however, that activities within the pool hall had disturbed the neighborhood. Roy once again brought suit in the Superior Court, and this time the court affirmed the council’s decision. Roy appealed from that judgment to the Maine Supreme Judicial Court. On June 2, 1978 that court ruled that the city’s ordinance violated the state’s licensing statutes, 8 Me.Rev.Stat. Ann. §§ 1 & 2, insofar as it enabled the city to deny Roy a license on account of activities that did not occur within his establishment. Roy v. Inhabitants of the City of Augusta, 387 A.2d 237 (Me.1978) (hereinafter “Roy I”). On June 14, 1978, in accordance with the Maine Supreme Judicial Court’s directions, the Superior Court ordered the city officers to renew Roy’s license. On June 21, 1978 the city clerk issued Roy the 1977-78 license he had originally sought which, however, had expired on May 1, 1978. Still unlicensed in spite of his victory in the Maine Supreme Court, Roy was advised by defendant Charles Moreshead, the city’s counsel, that he should apply for a current license. Roy did so, and a hearing was held on his new application on July 17, 1978. Roy alleges that he had been forced by then, however, to convey the premises to the mortgagees in lieu of foreclosure, as he had been unable to pay his bills because of his inability to run his business. In consideration for conveyance of the premises, Roy says he received an oral right of first refusal to the premises and assurances that he might be able to regain ownership of or obtain a lease to the premises upon receiving a valid license. Roy’s interest in the property was discussed at the July 17 hearing. According to Roy, defendant Moreshead stated at the hearing that a police officer, P. Thomas Baker, was interested in running a pool hall at 79-81 Cony Street. The council then voted to deny Roy a license, because he lacked a sufficient property interest in the premises and because of an intervening conviction for aiding in the illegal sale of liquor. On July 18, 1978 Roy once again brought an action in the Superior Court, and on August 11, 1978 the court ordered the city to issue a valid license that would not expire until May 1, 1979. Such a license was issued on August 11. According to the present complaint, the valid license came too late. It is alleged that on July 25, 1978, while the Superior Court action was pending, the new owner of 79-81 Cony Street told Roy that he was no longer willing to rent the premises to Roy because the city’s actions on July 17 “evidenced an intent to keep [Roy] from opening a billiard room at that location, regardless of what the Courts might order.” On August 15, 1978 Baker applied for a license to operate a billiard hall at 79-81 Cony Street. This license was granted on August 21, 1978, after a hearing at which Roy participated. Roy then filed yet another action in Superior Court seeking to have Baker’s license declared void. The Superior Court found against Roy. This judgment was affirmed on appeal by the Maine Supreme Judicial Court because of the fact that Roy lacked a property interest in the premises. Roy v. Inhabitants of the City of Augusta, 414 A.2d 215 (Me.1980) (hereinafter “Roy IP’). On June 6, 1980 Roy filed the instant action in district court charging that the City of Augusta and eight of its officers violated 42 U.S.C. § 1983 by depriving him of his property without due process of law. On June 27,1980 defendants filed a motion to dismiss arguing, inter alia, that the complaint failed to state a claim upon which relief could be granted and that the action was barred by res judicata. The district court, adopting the recommendations of a magistrate, dismissed the action for failure to state a claim. Roy appealed. I. RES JUDICATA The first issue we consider is whether the instant action is barred under principles of res judicata. We hold that it is as to the City of Augusta, but that it is not as to the individual defendants. It is well established that general principles of res judicata apply in civil rights actions. See, eg., Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (Title VII); Allen v. McCurry, 449 U.S. 90,101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (collateral estoppel applies in section 1983 actions); Isaac v. Schwartz, 706 F.2d 15 (1st Cir.1983). In determining the preclusive effect of a state court judgment, federal courts must look to the state’s law. Id. at 16. We therefore turn to the Maine law of res judicata in order to determine whether Roy’s Maine litigation bars the present action. For the doctrine of res judicata to be applied in Maine “the court must satisfy itself that 1) the same parties, or their privies are involved; 2) a valid final judgment was entered in the prior action; and 3) the matters presented for decision were, or might have been, litigated in the prior action.” Kradoska v. Kipp, 397 A.2d 562 (Me.1979). In the instant case there is no question that final judgments were entered in the various Maine court actions. Whether the other conditions were met, however, requires a closer look. In Kradoska, the court stated that whether the “matters presented for decision were, or might have been litigated in the prior action” depends upon whether the same cause of action was before the court in the prior cases. Id. at 568. Under Maine law, “the measure of a cause of action is the aggregate of connected operative facts that can be handled together conveniently for purposes of trial.” Id. quoting 1 R. Field, Y. McKusick & L. Worth, Maine Civil Rights Procedure § 41.5 (1970). See also Restatement (Second) of Judgments § 24, Comment A (1982). Here, all of the operative facts alleged in the present complaint, except one, were before the state court in Roy II. The court in Roy II considered the fact that Roy had initially been denied a license, had litigated that denial, had won a judgment, had been given an expired license, and had lost his hall prior to receiving a valid license. The only presently alleged “fact” which, for obvious reasons, was not then before the Roy II court was that Roy was to be denied relief in that very case. While that “fact,” insofar as it demonstrates that Roy was unable to regain his property is material to his current constitutional claim, it does not distinguish the two actions for purposes of res judicata. It often happens that claims do not achieve constitutional stature until a state court has rejected them. Yet as we stated in discussing a similar situation in Lovely v. Laliberte, 498 F.2d 1261, 1263 (1st Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974), “state courts, too, are guardians of. the federal constitution.” Where, a party should reasonably foresee that an adverse state court judgment will create a constitutional issue, that issue should be argued before the state court. Where it is not, the party is barred by principles of res judicata from later raising the constitutional claim against the same parties in a federal section 1983 action. Roy argues that even if the operative facts in Roy II are the same as those now before us, he should not be barred from bringing this action because the remedy he now seeks — damages—is different from the remedy he sought in the earlier case. This argument is without merit. Under modern principles of res judicata, a party cannot split his claim by first seeking one type of remedy in one action and later asking for another type of relief in a second action. See Restatement (Second) of Judgments §§ 24 & 25. The Maine Supreme Judicial Court has accepted that view. It has stated: A plaintiff will not be permitted to split his cause of action and pursue each aspect of it in separate lawsuits.... Judicial economy, fairness to litigants, and the strong public interest favoring finality in judicial proceedings demand that a plaintiff present all relevant aspects of his cause of action in a single lawsuit. Kradoska v. Kipp, 397 A.2d at 567 (citations omitted). Here, the transactions complained of were the same in both cases. Therefore, the fact that Roy sought a different remedy in the earlier action does not preclude the application of res judicata here. Res judicata, however, only bars actions against those parties who were involved in the earlier suit. Two of the parties in this case, the city’s attorney, Charles Moreshead, and councilman Richard Griffin were not defendants in the prior action. The action consequently is not res judicata as to them. See Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.1980). The other individual defendants did appear in the earlier action, but only in their official capacities. In the present action they are named in their individual capacities. Under well-established rules of res judicata, recognized in Maine, an action brought against an individual in one capacity does not bar a later action brought against the same individual in a different capacity. Lander v. Arno, 65 Me. 26 (1876). See also Restatement (Second) of Judgments § 36; IB Moore’s Federal Practice ¶ 0.411[3] (2d ed. 1982). We therefore hold that res judicata does not bar the present action as against the individual defendants but does bar it against the city. II. SECTION 1983 CLAIM The district court dismissed Roy’s complaint for failure to state a claim under section 1983. A complaint, however, “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Applying that admonition, we hold that the district court erred in dismissing the complaint against the individual defendants when and for the reasons it did. Roy’s complaint alleges a deprivation of his property without due process of law in violation of 42 U.S.C. § 1983. He .argues that the defendants’ grant of an expired, invalid license in response to the court order in Roy I, following their initial refusal to renew the license, deprived him of a property right, and ultimately his business, without due process. Mere violations of state law do not, of course, create constitutional claims. See Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied,-U.S.-, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982). For Roy’s claims to reach constitutional magnitude and be cognizable under section 1983, Roy must allege, and ultimately prove, that defendants acted under color of state law, that he was deprived of constitutionally protected property because of defendants’ actions, and that the deprivation occurred without due process of law. Parratt v. Taylor, 451 U.S. 527, 536-37,101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 420 (1981). There is no question that defendants acted under color of state law. And Roy’s interest in renewing the license may have been “property” within the meaning of the fourteenth amendment. Property rights, although protected by the Constitution, are created by state law. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). While the state licensing statute in question does not appear on its face to create a mandatory entitlement, see note 1, supra, the Maine Supreme Judicial Court in Roy I held that Roy had the right to a renewed license. 387 A.2d at 237. The judgment in Roy I would seem to have conferred upon Roy a property interest in the license. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 430,102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (“The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ”). The harder question is whether he was thereafter denied the license Without due process. After the city council initially voted to deny Roy’s application for a license renewal, Roy brought suit in the state court system. Although Roy won a judgment in his favor in Roy I, defendants did not give him a valid license. Instead, they gave him an expired license — presumably the one he had initially sought but which, a year later, had expired. Although Roy returned to the Superior Court and secured an order to issue a current license, the remedy came too late, as he had by then lost ownership and control of the pool hall premises due to his economic plight resulting from the shutdown of his business. In Roy II the Maine Supreme Judicial Court stated that there was “no legitimate reason” for the city’s giving Roy an expired license and that “the administrative procedures adopted by the city materially prolonged and unnecessarily complicated its dispute with Roy.” Roy II, 414 A.2d at 219. The Maine court could not, however, assist Roy in reacquiring his business since by then Roy lacked any interest in the premises and another party, Baker, had received the license. If all this case involved were a claim that the Augusta city officials had refused to renew a pool hall license in violation of Maine law, we could see no possible federal claim. We said in Creative Environments, Inc. v. Estabrook, 680 F.2d at 822, 833 (1st Cir.), cert. denied,-U.S.-, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982), that even the outright violation of state law by local officials “is a matter primarily of concern to the state and does not implicate the Constitution” — absent “fundamental procedural irregularity, racial animus, or the like.” In Creative Environments, as here, the dispute concerned locally issued permits and approvals, the denial of which were subject to review by the state judiciary. If by portraying such disputes as the taking of property without due process, every disgruntled applicant could move them into the federal courts, even when the state provided adequate procedures, any meaningful separation between federal and state jurisdiction would cease to hold and forum shopping would become the order of the day. Thus we re-emphasize that the mere fact the individual defendants may have refused to renew Roy’s permit for reasons untenable under Maine law gives rise to no federal right. Roy received minimal due process in the form of a hearing before the council; additionally the Maine courts were available to provide judicial review and redress. Nor, by itself, did the inability of the Maine courts to save Roy’s business demonstrate that Roy’s license was taken without due process. An unfortunate but unavoidable aspect of all litigation, federal as well as state, is that it takes time and money. To the extent Roy’s loss resulted simply from the fact that he ran out of the economic ability to hold on to the premises before a license was secured, we see no federal constitutional question. Roy does not assert, nor could he, that he was constitutionally entitled to full judicial review before his original license expired. The practice was apparently to issue licenses annually, and after Roy was denied renewal by the city council, the old license had expired. The burden was then on Roy to seek review and reversal of the council’s denial in the state courts. During this period he could not operate his pool hall, and of course could therefore earn nothing from it. But we know of no constitutional requirement rendering Maine’s procedures in this regard unconstitutional. Roy received a hearing before being denied renewal. He was constitutionally entitled to no more. Thus for reasons stated, we see no grounds for a due process claim on the theories just discussed. However, there remains one further aspect of Roy’s case which, we think, may give rise to a federal claim. In Roy I the Maine Supreme Judicial Court declared that Roy was entitled to a license under state law. He was nonetheless denied the fruits of his victory by what Roy alleges were the entirely arbitrary actions of the defendants, who took it on themselves to disregard and subvert the Maine court’s mandate. Ordered to give Roy a license, defendants gave him instead a useless, expired license. Arguably, this amounted to the taking of his property (the license) without due process, since — on the theory Roy presents — the defendants simply flouted the mandate of the state court, rendering the court’s ruling in Roy’s favor and the state’s process a nullity. Roy’s subsequent efforts to secure state court redress were technically successful — the state court agreed that he should be granted a current license — but by then Roy had lost the premises, having run out of funds, and the state court could afford no practical redress. This, at least, is the scenario Roy seeks to prove, and we think he must be afforded some chance to do so. This theory is to be distinguished from claims that local officials erred in not issuing licenses. Even when errors are extreme, they do not implicate the basic adequacy of the state’s process, especially when correction is available by the state’s judiciary. Here, however, defendants allegedly disregarded the judgment of the state’s highest court, thereby finally pushing Roy to the wall. They finally succeeded in “taking” his property in derogation of the process afforded by the state. If we accept this version as true, the taking was a taking without due process not because the Maine courts did not afford Roy due process, but because defendants frustrated that process. We emphasize as a crucial element of Roy’s due process claim that he must prove that defendants’ refusal to issue a license was totally without reasonable sanction under the Roy I judgment. If their issuance of an expired license should turn out to have been a reasonable, even if incorrect, response to Roy I, defendants would have official immunity, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and, apart from that, withholding of the license would not have been a subversion of the state’s procedures and the demands of due process. However, if defendants withheld the license in defiance of the Roy I judgment, the act was an act of lawlessness. Where its result was to leave Roy without the license the Maine court said he was entitled to, and ultimately to destroy his business, we think he might be able to recover damages under section 1983. We emphasize that we hold only that Roy has alleged sufficient facts to survive a motion to dismiss for failure to state a claim. It will be up to the district court to determine whether defendants’ actions were sufficiently egregious under the circumstances to rise to the level of a constitutional violation. In particular, defendants’ withholding of a current license must be shown to have been so plainly contrary to the Roy I judgment as to have been a subversion of the state’s process. But given the unique facts pleaded, including in particular the criticisms of defendants’ action by the Maine court itself, we think Roy has made a sufficient showing to be entitled to go forward against the individual defendants and attempt to prove that his injury was due not merely to the law’s delay and the councillors’ errors but to defendants’ deliberate disregard of the state’s fundamental process. See Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F.2d 281, 289 (1st Cir.1982). Affirmed in part, vacated in part, and remanded for further proceedings not inconsistent with this opinion. . 8 Me.Rev.Stat.Ann. § 1 states: Unlicensed alleys and billiard rooms Whoever keeps a bowling alley, shooting gallery, pool, bagatelle or billiard room without a license forfeits $10 for each day that such alley, gallery or room is so kept. 8 Me.Rev.Stat.Ann. § 2 states: Municipal officers may license suitable persons to keep bowling alleys, shooting galleries, pool, bagatelle and billiard rooms therein, in any place where it will not disturb the peace and quiet of a family. Such licenses expire on the first day of May after they are granted, unless sooner revoked. The municipal officers shall set a reasonable fee for the issuance of licenses required by this chapter. . Roy also alleged that he was denied equal protection of the laws and that defendant conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985. Roy’s counsel, however, agreed to dismiss the section 1985 claim during a hearing before the magistrate. . Although the district court did not base its decision on the doctrine of res judicata, we may affirm its dismissal of the complaint so long as that judgment is valid on any ground. Riley v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 97, 85 L.Ed. 36 (1940). . Because we find that the same cause of action was presented in Roy II as in the instant case, we need not consider the possible res judicata effect of the earlier Maine cases. . Roy argues that res judicata should not apply here because he was barred by the state law of sovereign immunity from seeking damages from defendants under state law, see 14 Me. Rev.Stat.Ann. §§ 8103 & 8111, and it was not clear at the time he filed Roy II that cities could be liable under section 1983 for money damages. We do not think that excuses Roy’s failure to raise his constitutional claims. For one thing, it had been clear since Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, was decided in 1978 that cities were parties within the meaning of section 1983. Therefore, Roy could have raised his constitutional claims under section 1983 as a reason for obtaining the equitable relief he sought in Roy II. Moreover, Roy could have sought section 1983 damages against the individual defendants, although there may have been some problems with his doing that since they appeared in Roy II in their official capacity, see infra. And in any event, even if Roy could not have made out a separate section 1983 claim, that still does not excuse his failure to notify the court of the constitutional implications of its state law holding. . In dismissing this case, the district court relied upon Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). We do not think that Parratt is directly controlling here. In Parratt the Supreme Court held that the negligent deprivation of property does not violate due process where the state provides an adequate post-deprivation remedy for the loss. In the instant case, Roy alleges that he was deprived of his property because the defendants intentionally disobeyed the state court’s order. Moreover, because of the state’s grant of absolute immunity to the defendants, 14 Me. Rev.Stat.Ann. § 8111; McNally v. Mokarzel, 386 A.2d 744 (Me. 1978), Roy appears Unable to receive a damage remedy under state law. . A further consideration in reaching this result is that Maine has granted absolute immunity to defendant officials for refusal to grant licenses. See note 6, supra; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S.Ct. 1148, 1157, 71 L.Ed.2d 265 (1982).

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

MARYLAND CASUALTY CO. v. WOOLLEY. Circuit Court of Appeals, Ninth Circuit. December 17, 1929. No. 5873. John Ralph Wilson and Carl E. Day, both of San Francisco, Cal., for appellant. Francis St. J. Fox, of San Francisco, Cal., for appellee. Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges. Rehearing denied January 28, 1530. RUDKIN, Circuit Judge. This is an appeal from a judgment in favor of the plaintiff in an action for false imprisonment. There is no controversy over the facts. February 18, 1914, the appellee was appointed administrator of the estate of Eusebia Woolley, deceased, by an order of the superior court of the state of California, in and for the city and county of San Francisco. March 28,1923, the appellant became surety on his bond as such administrator. July 14, 1927, the appellant, from its home office in Baltimore, addressed a letter to one of its representatives in the city of San Francisco, inclosing a petition for its release as surety on the above bond, with instructions to have the same acted upon as promptly as possible. August 6, 1927, the petition for release was filed in the proper court; on the same day an order was entered fixing August 22, 1927, as the time for hearing, and directing that notice in writing of the time and place of such hearing be served upon the administrator ten days- before. August 8, 1927, notice was served as directed, and the appellee not appearing at the time and place appointed the court inquired of representatives of the appellant then present whether they desired an attachment. They answered in the affirms tive, and an attachment accordingly issued, directed to the sheriff of Alameda county, commanding him to forthwith attach the body of the appellee and have him before the judge issuing the attachment on the following day at the hour of 10 o’clock a. m., then and there to show cause why he should not be punished for contempt in disobeying the mandate of the court. Pursuant to the attachment, the appellee was arrested and was confined in jail for a period of about 20 hours before he was released on his own recognizance. August 29, 1927, the court made an order releasing and discharging the appellant from any and all further liability on its bond. The process under which the appellee was arrested and imprisoned was manifestly issued without warrant or authority of law, so that the principal question in the case is the responsibility of the appellant for the part taken by its agents in the wrongful arrest and imprisonment. The rule is well settled that the liability of a principal for the act of his agent in instituting a malicious prosecution or causing a false arrest or imprisonment is dependent on whether the principal previously authorized the act or subsequently ratified it, or whether the act was within the scope of the agent’s employment. If previously authorized or subsequently ratified, or within the scope of the agent’s employment, the principal is liable; otherwise, he is not. Here, the unlawful arrest and imprisonment was not authorized by the appellant, and there was no subsequent ratification, so that the question comes down to this: Was the act of the agents within the scope of their employment, that is, in directing its agent to shave the petition for release acted upon as soon as possible, did the principal have any reason to anticipate that in so doing the appellee would be arrested or imprisoned ? The scope of the agents’ authority depended largely on what was required of them in obtaining the release of the surety on the bond and in carrying out the instructions of their principal. Sections 1403,1404, and 1405 of the Code of Civil Procedure of the state provide that, when a surety of any executor or administrator desires to be released from responsibility on account of future acts, he may make application to the superior court, or a judge thereof, for relief; that the court or judge must cause a citation to the exeeutor or administrator to be issued, and served personally, requiring him to appear at a time and place, to be therein specified, and to give other security; that, if new sureties he given to the satisfaction of the judge, he may thereupon make an order that the sureties who applied for relief shall not be liable on their bond for any subsequent act, default, or misconduct of the exeeutor or administrator, and that, if the exeeutor or administrator neglects or refuses to give new sureties, to the satisfaction of the judge, on the return of the citation, or within such reasonable time as the judge shall allow, unless the surety making the application shall consent to a longer extension of time, the court or judge must, by order, revoke his letters. It will thus be seen that the court is powerless to compel an executor or administrator to give new sureties or to compel his appearance before the court for that purpose by attachment. The utmost the court can. do is to fix a time within which new sureties shall he furnished, and, if the exeeutor or administrator fails to comply with the order, his letters shall be revoked. No other action on the part of the court is contemplated or authorized. It would seem quite manifest from what we have said that the arrest and imprisonment of the appellee was not within the scope of the authority of the agent who was simply instructed to file a prepared petition and procure the release of a surety on an administrator’s bond. Thus, in Moore v. Cohen, 128 N. C. 345, 38 S. E. 919, it was held that, where a creditor sent a claim to an attorney for collection, in the usual course of business, and the attorney, without the knowledge or consent of the creditor, illegally caused the arrest of the debtor in enforcing collection, the creditor was not responsible for the arrest, the same not being within the scope of the attorney’s duty. In West v. A. F. Messick Grocery Co., 138 N. C. 166, 50 S. E. 565, an attorney was employed by a, creditor for the purpose of attaching the property of another, and it was held that the creditor was not liable for the unauthorized act of the attorney in causing his arrest. In Russell v. Palentine Ins. Co., 106 Miss. 290, 63 So. 644, 51 L. R. A. (N. S.) 471, it was held that, while one employed by an insurance company to collect a balance due the company from a former agent was authorized to employ all appropriate means to collect the amount due, he was not authorized to institute a prosecution for embezzlement for that purpose, and that the insurance company would not be liable in an action for malicious prosecution ifl he did so. From these views, there seems to be no dissent. We are therefore of opinion that the agent, or agents, of the appellant were not authorized to cause the arrest or imprisonment of the appellee; that their act in so doing was not within the scope of their authority; that there has been no ratification, and consequently that there is no liability on the part of the appellant. The judgment is reversed, and the cause remanded for a new trial.

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, Appellee, v. James W. JOHNSON, Appellant. No. 74-1764. United States Court of Appeals, Eighth Circuit. Submitted March 11, 1975. Decided May 13, 1975. Certiorari Denied Oct. 6, 1975. See 96 S.Ct. 112. Ronald Meshbesher, Minneapolis, Minn., for appellant. Thorwald H. Anderson, Jr., Asst. U. S. Atty., Minneapolis, Minn., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, Senior District Judge. Talbot Smith, Senior District Judge, Eastern District Michigan, sitting by designation. VAN OOSTERHOUT, Senior Circuit Judge. James W. Johnson has taken a timely appeal from his conviction by a jury verdict on an indictment charging extortion in violation of 18 U.S.C. § 1951(a), the Hobbs Act. Defendant’s post-trial motions in arrest of judgment, judgment of acquittal or for a new trial were denied by the trial court in an Order reported as United States v. Johnson, 381 F.Supp. 210 (D.Minn.1974). We affirm. Defendant admits and the evidence shows that he and one Fritz Heiberg took part in the March 15, 1974, abduction of Mrs. Gunnar Kronholm, the wife of the president of the Drover State Bank of South St. Paul, Minnesota, and the subsequent extortion of $200,000 through demands made on Mr. Kronholm. Prior to the instant federal prosecution for extortion defendant was acquitted by a Minnesota State court jury on a kidnapping charge arising out of the same occurrences which resulted in this Hobbs Act prosecution. Defendant’s principal defense in the state court was the same as presented in the instant case, that of duress. Defendant’s story, which apparently was believed by the state court jury, was that a man named “Mike” contacted him in response to an ad defendant had placed in a local newspaper seeking financing for construction of a restaurant and bar. “Mike” allegedly coerced defendant into participating in the kidnapping and extortion plot by making threats of bodily injury to defendant and his family. “Mike” has never been identified. Other pertinent facts will be developed in connection with the discussion of the issues raised. Appellant presents the following issues for review: I. Is the federal government barred by collateral estoppel or double jeopardy from prosecuting defendant on an extortion charge where a state court jury has previously acquitted defendant on a factually related kidnapping charge? II. Did the trial court commit plain error in failing to instruct the jury that the Government had the burden to prove no duress beyond a reasonable doubt? III. Did the trial court commit prejudicial error in failing to instruct the jury on the weight to be given an accomplice’s testimony? IV. Did the trial court err in excluding certain testimony which was relevant to defendant’s defense of duress? V. Did the Government err in bringing charges under 18 U.S.C. § 1951(a) rather than the more specific federal kidnapping statute? VI. Is the evidence insufficient to establish that the defendant’s act of extortion was on the Drover State Bank rather than on Gunnar Kronholm, the individual? I. Defendant contends his acquittal by a jury in a June 1974 Minnesota state court trial of kidnapping constitutes a double jeopardy bar to the instant Hobbs Act prosecution. Defendant’s argument here is two-pronged. First, defendant argues that collateral estoppel operates to estop the Government from relitigating the issue of duress which was decided favorably to defendant in the state court acquittal. Second, even if collateral estoppel is not available, the doctrine of dual sovereignty, which allows successive prosecution by state and federal governments of crimes arising out of the same occurrence, is no longer viable in view of recent Supreme Court decisions. Defendant recognizes that application of collateral estoppel requires an identity of parties in the prior and subsequent litigation. Minnesota was the plaintiff in the state kidnapping case and the federal Government is the plaintiff in the instant case. Defendant attempts to leap this hurdle by claiming that the federal government was in reality the prosecutor in the Minnesota kidnapping case because of substantial federal participation by F.B.I. agents and the United States Attorney in the case. A federal prosecution following a state prosecution involves two different sovereigns and, thus, different parties. Ferina v. United States, 340 F.2d 837, 839 (8th Cir. 1965). “Mere use in the state proceedings of the fruits of the mutual investigations by [federal agents], without more, does not infect the separate sovereignty of that prosecution, nor bind the federal government in any manner to the issues so resolved by the state judgment.” Id. at 840. In the instant case evidence obtained by F.B.I. investigations was used to obtain state indictments and at trial. F.B.I. agents who investigated the case testified in the state trial. The United States Attorney’s office cooperated with the county attorney during the state prosecution but did not influence the management of the state’s case. We do not think that the level of cooperation shown in the record rises to the level of participation claimed by defendant. It certainly did not make the federal government a party to the ease to the extent that the identity of parties requirement for collateral estoppel is satisfied. The “dual sovereignty” theory is well established in American criminal jurisprudence. In 1922 the Supreme Court clearly stated in United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922) that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.” This principle has been since re-affirmed by the Supreme Court and followed in this circuit. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Ackerson, 502 F.2d 300, 302 (8th Cir. 1974); United States v. Delay, 500 F.2d 1360, 1362 (8th Cir. 1974). We think Ab-bate, supra, is controlling here. In Ab-bate the Supreme Court specifically held that the fifth amendment does not bar a federal conviction which follows a state conviction for the same act. The fact that defendant in the instant case was acquitted of the state charge does not distinguish Abbate. See United States v. Smaldone, 485 F.2d 1333, 1343 (10th Cir. 1973). Appellant argues that Lanza, Bartkus, and Abbate are of questionable validity in view of more recent Supreme Court decisions such as Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although the doctrine of dual sovereignty has been eroded somewhat in recent years, we do not read Ashe, Waller, Benton, or any other Supreme Court case as rejecting Abbate. See Martin v. Rose, 481 F.2d 658, 659-660 (6th Cir. 1973), cert. denied 414 U.S. 876, 94 S.Ct. 86, 38 L.Ed.2d 121 (1973). There is yet another reason defendant’s double jeopardy argument must be rejected. The state offense of kidnapping and the federal offense of extortion are separate crimes requiring proof of different elements by the prosecution. Double jeopardy does not attach where the offenses are separate. Brinlee v. United States, 496 F.2d 351, 353 (8th Cir. 1974); Ferina v. United States, supra, 340 F.2d at 839. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). II. Defendant complains that the trial court’s instructions on duress had the effect of shifting the burden of proof to defendant to prove the elements of this defense. The objected to instruction is set out in its entirety in the trial court’s reported Order. United States v. Johnson, supra, 381 F.Supp. at 211—212. Defense counsel objected on the ground that it went beyond the instruction requested, 1 Devitt and Blackmar, Federal Jury Practice and Instructions § 13.14 (2d ed. 1970), by giving examples. Counsel concluded by saying “the instruction was prejudicial and I object to it.” Nowhere does a burden of proof objection appear. In the absence of specific grounds for an objection which would call the trial court’s attention to the alleged error before the jury begins its deliberations, nothing is preserved for review. United States v. Sargis, 460 F.2d 1329, 1330 (8th Cir. 1972); Rule 30, Fed.R.Crim.P. Moreover, the instruction read as a whole does not constitute plain error under Rule 52(b), Fed.R.Crim.P. In concluding the objected to instruction and elsewhere in the instructions the court clearly placed the burden on the Government to prove all essential elements of the crime beyond a reasonable doubt. This would include the element of willfulness in carrying out the criminal acts. III. Defendant contends that the trial court committed prejudicial error by refusing to give certain requested instructions on accomplice testimony. Defendant argues that the jury could have found from the evidence that either one or both of the Kronholms were accomplices in the kidnapping and extortion plot. Accordingly, the defendant requested the court to define accomplices and instruct that if the jury found any witness to be an accomplice such testimony must be viewed with distrust and caution. Heiberg was named in an instruction as an admitted accomplice whose testimony should be viewed with caution but the following requested instruction was denied: If you find that either Mr. or Mrs. Kronholm were accomplices within the meaning of these instructions, you must view their testimony with distrust and receive it with caution and weigh it with great care. The standard cautionary instruction on accomplice testimony was given by the court. Included was a statement that testimony by Heiberg “and that of any other accomplice” should be viewed with caution. Where the evidence is unclear on the question of the status of witnesses as accomplices, it is not reversible error to refuse to name such witnesses as accomplices. United States v. Callis, 390 F.2d 606 (6th Cir. 1968); Gardner v. United States, 283 F.2d 580, 581-582 (10 Cir. 1960). The court gave a cautionary instruction on the testimony of “any other accomplice.” We think a cautionary instruction naming the Kronholms as possible accomplices was unwarranted. Evidence that they were accomplices is speculative at best. The instruction given adequately calls the jury’s attention to the weight that should be given to the testimony of any witness they found to be an accomplice. There was no error in denying the requested instruction. IV. Defendant argues that the trial court erred in not admitting into evidence testimony of Danny Caliendo and a police officer relating to Caliendo’s criminal entry into the Kronholm’s residence almost two months after the abduction of Mrs. Kronholm. The trial court excluded the proffered testimony on the ground it was irrelevant. Defendant contends the testimony was relevant to his defense of duress. The transcript of Caliendo’s testimony in the state trial was received by the court as an offer of proof of his expected testimony. Caliendo claimed he came to Minnesota from Chicago in early May 1974 to kidnap Mrs. Kronholm. He subsequently decided to commit a burglary at the Kronholm residence rather than kidnap Mrs. Kronholm. Caliendo was discovered in the basement of the Kronholm home May 8, 1974, but escaped after disarming two police officers. The next day F.B.I. officers shot and seriously wounded Caliendo as he walked along a highway near the Kronholm home. Caliendo, in an excited utterance shortly after being shot, told officers he did not come to Minnesota to commit a kidnapping, burglary or armed robbery. The offer of proof also shows that Caliendo did not know defendant or any of the other persons involved in the abduction of Mrs. Kronholm. He did admit knowledge of the abduction of Mrs. Kronholm but only what he had read in newspaper accounts. He did not know anyone named “Mike.” Defendant recognizes that a trial court has broad discretion in determining relevancy of proposed evidence, United States v. Mitchell, 463 F.2d 187, 191 (8th Cir. 1972), but argues that the court abused its discretion in excluding the offered testimony. Defendant’s theory is that Caliendo was one of “Mike’s” boys and was in Minnesota to enforce “Mike’s” threats against defendant after the defendant eventually admitted his participation in the kidnapping and extortion plot. We see no connection between defendant’s participation in the kidnapping and extortion plot and Caliendo’s criminal activity in the Kronholm home or even his presence in Minnesota. It is mere speculation to connect Caliendo with the alleged “Mike” and the kidnapping of Mrs. Kronholm or a shooting incident following the abduction in which defendant was severely injured. Under the circumstances the trial court’s action excluding the proffered testimony was well within its broad discretionary powers. See Cotton v. United States, 361 F.2d 673, 676 (8th Cir. 1966). V. Defendant asserts that his illegal activity, if any, was contrary to two federal statutes, 18 U.S.C. § 1951(a) (Hobbs Act) and 18 U.S.C. § 1201 (kidnapping). Citing Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), defendant argues that he should have been charged with violation of the more specific statute (kidnapping) rather than the general Hobbs Act statute forbidding extortion. Such contention is without merit in view of defendant’s own admission that federal kidnapping charges were not filed because there was no interstate transportation of the victim. VI. Defendant’s final argument is that prosecution under 18 U.S.C. § 1951(a) was improper because the evidence does not support a finding that the extortion was against the Drover State Bank. It is defendant’s contention that the evidence overwhelmingly establishes that the extortion was directed against Mr. Kronholm personally and not toward the bank. However, it is not for us to weigh the evidence. In the event the jury in a criminal case has made a finding of guilt, the verdict must be sustained on review if, taking the view most favorable to the Government, there is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Madden, 482 F.2d 850, 851 (8th Cir. 1973). When Gunnar Kronholm following the abduction of Mrs. Kronholm told the extorting caller that he did not have $400,000, the caller said “get it from the bank.” The money was in fact paid by the bank without a promissory note being signed by Kronholm. Heiberg testified that Johnson mentioned a bank president’s wife as an abduction victim because a bank president could get a lot of money from a bank. A Friday was chosen for execution of the plot because it was a payday and more cash would be on hand. There is substantial evidence to support a finding that the extortion was directed against the Drover State Bank. No error of law appears. The judgment of conviction is affirmed. Affirmed. . The Honorable Edward J. Devitt, Chief Judge, District of Minnesota. . Also assigned as participation by the Government in the trial is an alleged negotiated plea bargain arrangement between the State’s attorney and the United States Attorney whereby codefendant Heiberg would have all federal charges dismissed if he pleaded guilty in state court. Defendant also claims that the Government was instrumental in securing a plea bargain offer through the State’s attorney whereby he would receive a 15 year limitation of sentence and a dismissal of all federal charges if he would plead guilty to the state kidnapping charge. Defendant cites no authority holding such procedures to be “participation” by the federal government in state proceedings nor have we found any such authority. . See Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). . Caliendo is currently serving a five-year sentence as a result of his conviction on a plea of guilty to assault on an-F.B.I. agent in connection with this incident. . We do not reach the issue of whether the kidnapping statute should prevail over the extortion statute when the facts would support a conviction under each offense.

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

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

CALIFORNIA ASSOCIATION OF the PHYSICALLY HANDICAPPED, INC., et al., Appellants-Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, et al., Appellees-Respondents, CBS, Inc., et al., Intervenors. Nos. 80-6088, 80-7157 and 80-7482. United States Court of Appeals, Ninth Circuit. Submitted May 6, 1988. Decided Dec. 8, 1983. Stanley Fleishman, Los Angeles, Cal., for appellants-petitioners. Mark A. Chavez, Washington, D.C., for appellees-respondents. Petitions for Review of the Federal Communications Commission. Appeal from the United States District Court for the Central District of California. Before WRIGHT and SCHROEDER, Circuit Judges, and EAST, District Judge. Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation. EAST, Senior District Judge: This appeal consolidates an appeal from the District Court’s dismissal of an action seeking declaratory and injunctive relief requiring the Federal Communications Commission (FCC) to promulgate regulations in favor of the handicapped, and two petitions for review of FCC orders refusing to promulgate regulations implementing Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Appellants and petitioners argue on appeal that the FCC violated (1) Section 504 of the Rehabilitation Act, (2) the public interest standard of the Communications Act, 47 U.S.C. § 307(e) (1983 Supp.), and (3) the equal protection component of the due process clause of the Fifth Amendment. Appellants also argue that the District Court erred in dismissing their action for lack of subject matter jurisdiction and in denying their motion for attorneys’ fees. We find these arguments without merit. FACTS In September 1977, the California Association for the Physically Handicapped (CAPH) filed a petition with the FCC requesting the institution of rulemaking proceedings. CAPH petitioned the FCC to include the handicapped in its equal employment opportunity (EEO) rules and to give preference to handicapped individuals in ownership and management of broadcast facilities. In addition, CAPH requested that the FCC require its licensees to modify their facilities to accommodate the handicapped. The FCC filed its report and order on CAPH’s petition on March 6, 1980. The FCC declined to adopt the regulations sought by CAPH. Instead, the FCC promised to appoint a “coordinator for broadcasting and the handicapped” to advise the licensees on methods to increase employment of the handicapped. The FCC also stated that it would consider findings of illegal discrimination against the handicapped in reviewing applications for new licenses and license renewals. CAPH petitioned this court for review of the FCC’s report and order on March 26, 1980. At the same time, the California Paralyzed Veterans Association (CPVA) and two individual litigants filed a petition with the FCC for reconsideration of the report and order. On August 4, 1980, the FCC filed a memorandum opinion and order denying the petition for reconsideration and affirming its previous order. CPVA then filed a petition in this court for review of the memorandum opinion and order. The two petitions were consolidated. While CAPH’s rulemaking petition was pending before the FCC, CAPH filed suit in February 1979 against the FCC and CBS. CAPH requested that the District Court order the same relief which CAPH sought before the agency: the promulgation of rules under Section 504 regarding employment of the handicapped and the extension of the EEO rules applicable to women and minorities to the handicapped. After the filing of the FCC report and order on March 6, 1980, the District Court dismissed CAPH’s suit against the FCC and CBS. In a decision rendered March 10, 1980, the District Court found that it lacked subject matter jurisdiction in light of the FCC action taken on March 6. The District Court also denied CAPH’s motion for attorneys’ fees made under Section 505(b) of the Rehabilitation Act, 29 U.S.C. § 794a(b), 496 F.Supp. 125. CAPH then appealed the District Court’s decision, which was later consolidated with the petitions for review. DISCUSSION 1. Section 504 Section 504 of the Rehabilitation Act provides that no otherwise qualified handicapped individual, solely by reason of the handicap, shall be subjected to discrimination under any program or activity receiving federal financial assistance. CAPH contends that broadcast licenses are a form of federal financial assistance and that the FCC must therefore issue regulations implementing Section 504. Contrary to CAPH’s contention, however, it is now clear that broadcast licenses are not a form of federal financial assistance within the context of Section 504. In Community Television of Southern California v. Gottfried, — U.S. —, 103 S.Ct. 885, 892, 74 L.Ed.2d 705 (1983), the Supreme Court held that the FCC is not a funding agency and has no responsibility to enforce Section 504. Thus, Section 504 does not require the FCC to issue the regulations which CAPH requests. 2. Communications Act CAPH argues next that even if Section 504 does not require the FCC to issue the requested regulations, the Communications Act does impose such a requirement. CAPH contends that the FCC’s duty under the Communications Act to pursue the pub-lie interest requires the agency to establish regulations implementing the national policy in favor of the handicapped as reflected in Section 504 of the Rehabilitation Act. In particular, CAPH argues that the public interest standard requires the FCC to (1) forbid employment discrimination against the handicapped, (2) promote ownership and management of broadcasting facilities by the handicapped, and (3) demand a barrier-free environment for the handicapped in broadcasting facilities. The Supreme Court’s decision in Gott-fried, however, precludes this argument. The court ruled that Congress had not “intended the Rehabilitation Act of 1973 to impose any new enforcement obligation on the Federal Communications Commission,” and that the public interest standard of the Communications Act was insufficient to create any obligation to enforce Section 504 or incorporate that section’s standards into the Communications Act. Gottfried, 103 S.Ct. at 892 and n. 14. 3. Equal Protection CAPH contends that the FCC deprived handicapped persons of equal protection when the agency refused to include the handicapped in its EEO program designed to preclude discrimination against women and racial minorities. CAPH argues that the handicapped should be considered a suspect class, and that under the strict scrutiny standard applicable to a suspect class, the FCC’s action should be held unconstitutional. No appellate court, however, has held that the handicapped are a suspect class. Brown v. Sibley, 650 F.2d 760, 766 (5th Cir.1981). We decline to be the first. CAPH argues that even under that rational basis test applicable to distinctions involving non-suspect classifications, the FCC’s refusal to include the handicapped in the EEO program was still a violation of equal protection. This argument is without merit. Treating two groups differently does not necessarily violate the equal protection. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The FCC claimed that in light of problems unique to handicapped persons, setting up an EEO program to monitor employment of the handicapped by FCC licensees required more resources and expertise than was required for similar programs designed to prevent employment discrimination against women and minorities. Because the FCC’s justification of its refusal to include the handicapped in its EEO program was reasonable, the FCC did not violate equal protection under the rational basis test. See McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). 4. Subject Matter Jurisdiction in District Court CAPH’s action sought an order directing the FCC to (1) promulgate a Section 504 regulation, and (2) refrain from denying equal employment opportunities to qualified handicapped persons. Although the Court of Appeals has exclusive jurisdiction to review final orders of the FCC, see 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a) (1983 Supp.), CAPH argues that the District Court still erred in dismissing the complaint. According to CAPH, the District Court had jurisdiction under two different theories: (1) through application of 28 U.S.C. § 2347(b)(3); and (2) because CAPH asserted substantial violations of constitutional rights. Section 2347(b)(3) provides no help to CAPH. This section merely provides for a transfer from the Court of Appeals to the District Court when the appellate court has determined that an agency hearing is not required by law and that a genuine issue of material fact remains unresolved. CAPH offers no authority to support the proposition that § 2347(b)(3) provides the District Court with jurisdiction in the first instance. CAPH’s second argument also lacks merit. The presence of a constitutional issue is insufficient to grant the District Court jurisdiction where jurisdiction would otherwise exist only in the FCC and the Court of Appeals. In Writers Guild of America, West, Inc. v. American Broadcasting Co., 609 F.2d 355 (9th Cir.1979), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980), this court was presented with an argument similar to CAPH’s argument here. In Writers Guild, we stated: While we agree that the [action of] the FCC presents serious issues involving the Constitution, the Communications Act, and the APA, we nevertheless believe that the district court should not have thrust itself so hastily into the delicately balanced system of broadcast regulation. Id. at 365 (footnote omitted). Statutory and constitutional claims against the FCC are not initially cognizable in federal District Court. CAPH’s constitutional claim against the FCC, therefore, was insufficient to give the District Court subject matter jurisdiction. 5. Attorneys’ Fees CAPH’s final argument on appeal is that the District Court erred when it dismissed CAPH’s motion for attorneys’ fees on the ground that it did not have jurisdiction to grant the motion. While we hold that the District Court did not err in dismissing CAPH’s motion, the District Court did err by basing its holding on lack of jurisdiction. CAPH sought an award of attorneys’ fees under Section 505(b) of the Rehabilitation Act. This section provides that a court can award a prevailing party attorneys’ fees in “any action or proceeding to enforce or charge a violation of a provision” of 29 U.S.C. §§ 790, et seq., 29 U.S.C. § 794a(b). The Supreme Court, however, has held that Congress’ use of the phrase “any action or proceeding” demonstrates its intent to authorize civil suits in federal court solely to obtain an award of attorneys’ fees for legal work done in administrative proceedings. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 66, 100 S.Ct. 2024, 2032, 64 L.Ed.2d 723 (1980). Thus, the District Court erred when it held that it did not have jurisdiction to award attorneys’ fees. Although we would ordinarily remand the case to the District Court for a determination of the attorneys’ fees issue, we need not remand where resolution of factual issues is unnecessary. United States v. Ford, 650 F.2d 1141, 1144 (9th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1437, 71 L.Ed.2d 654 (1982). Here, remand is unnecessary. CAPH requested attorneys’ fees under Section 505(b) of the Rehabilitation Act. For the reason discussed below, CAPH cannot legally qualify as a prevailing party under Section 505(b). In Fitzharris v. Wolff, 702 F.2d 836 (9th Cir.1983), we discussed two possible elements of a test for determining whether a plaintiff is a prevailing party. The first element — required by our previous decisions — is a factual one: the District Court must determine what the lawsuit sought to accomplish and then determine whether it was accomplished by means of the suit. Id. at 838. The second possible element is a legal one: whether there was a legal basis for the plaintiff’s claim. The First Circuit requires such an element: “If it has been judicially determined that defendants’ conduct, however beneficial it may be to plaintiffs’ interests, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense.” Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir.1978). We noted in Fitzharris that we had not previously decided whether to adopt this second element, and we found it unnecessary to decide the question at that time since the plaintiff had met both elements. Fitzharris, 702 F.2d at 838. Here, however, the FCC’s appointment of a “coordinator for broadcasting and the handicapped” was not required by Section 504 of the Rehabilitation Act. FCC’s action, therefore, was gratuitous, at least with respect to the Section 505(b) attorneys’ fee provision upon which CAPH relies. Thus, we are now squarely presented with the issue we left open in Fitzharris. We now hold that a plaintiff cannot be a prevailing party where a defendant’s action is only gratuitous. Consequently, CAPH is not a prevailing party since it fails to meet the legal element of our definition of a prevailing party. The District Court did not err in dismissing the attorneys’ fee claim. The District Court’s dismissal of appellants’ action is affirmed, and the petitions for review are denied. AFFIRMED. . 29 U.S.C. § 794 provides, inter alia: No otherwise qualified handicapped individual in the United States, as defined in section 7(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . 47 U.S.C. § 307(c) (1983 Supp.) provides, inter alia, that the FCC is directed by statute to grant an application for renewal of a broadcast license if it finds that the “public interest, convenience, and necessity would be served thereby.” . In view of our decision on the issue of attorneys’ fees, we conclude that no party was prejudiced when the panel granted CAPH’s counsel’s motion to allow counsel to briefly argue the single issue of attorneys’ fees. Although CAPH’s counsel was the only party present at oral argument, all counsel were notified by phone that the court had granted the limited oral argument. The procedure adopted was merely to facilitate the hearing of this appeal. The suggestions coming after submission for further oral argument are denied. . In New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), the Supreme Court interpreted the attorneys’ fees provisions of Title VII, 42 U.S.C. § 2000e-5(k). The similar legislative histories and wording of the Title VII and the Rehabilitation Act attorneys’ fees sections compel the conclusion that the courts must interpret the “any action or proceeding” language of both statutes in the same manner. Compare 110 Cong.Rec. 12724 (1964) (remarks of Sen. Humphrey concerning Title VII) with 124 Cong.Rec. 18999-19000 (1978) (remarks of Sen. Stafford concerning the Rehabilitation Act). . The Supreme Court’s decision in Gottfried clearly states that the FCC is not a funding agency and therefore has no obligation to enforce Section 504. See discussion of Section 504 in text above. . Section 505(b) authorizes an award of attorneys’ fees only for actions to enforce Title V of the Rehabilitation Act, 29 U.S.C. §§ 790, et seq. Therefore, unless Section 504 forms the required legal basis for the FCC’s action, the action is gratuitous with respect to an award of fees under Section 505(b). Thus, it is irrelevant whether the FCC’s action was gratuitous with respect to the Communications Act. Even if the Communications Act required the FCC to take the action, CAPH could not collect.

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

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

Walter A. MARTIN, Appellee, v. UNITED STATES of America, Appellant. No. 85-1229. United States Court of Appeals, Fourth Circuit. Argued Nov. 7, 1985. Decided Jan. 9, 1986. Martha B. Brissette (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Robert A. Bernstein, J. Frederick Motz, United States Atty., on brief), for appellant. Albert J. Matricciani, Jr. (Clapp, Somer-ville, Honemann & Beach, Roy Dragone, on brief), for appellee. Before HALL, MURNAGHAN, and WILKINSON, Circuit Judges. MURNAGHAN, Circuit Judge: Here the question is purely one of construction of a testamentary interest, raised by cross-motions for summary judgment, one by a taxpayer, one by the Government. We make the construction to ascertain whether the estate of a decedent, who was a life beneficiary of a testamentary trust with power of appointment, should, for federal estate tax purposes, have included the value of the property subject to the power of appointment. The decedent’s estate paid an estate tax of $14,226.39, which was calculated on the basis that the trust property was includible. However, a claim for refund then was lodged on the grounds that the trust property should not have been included, in which case no federal estate tax would have been due. The district court granted summary judgment in favor of the taxpayer. The testamentary provision with which we are concerned reads as follows: I give and bequeath one hundred fifty thousand dollars ($150,000.00) to William S. Hart, as Trustee, IN TRUST to hold, invest and re-invest the same, to collect the income and to pay the net income in installments not less often than quarterly, to Theo N. Martin as long as she may live. In the event of the illness of Theo N. Martin, or other emergency, I authorize the Trustee, in his discretion, to invade the principal of the Trust for the benefit of Theo N. Martin. At the death of Theo N. Martin, the Trustee shall pay over and distribute the balance of the trust, principal and any accrued income, to such person or persons as Theo N. Martin may appoint by her Last Will and Testament, and if she shall not have exercised this power of appointment, the same shall be paid over and distributed to the Executor or Administrator of the Estate of Theo N. Martin as part of her personal estate. In the great majority of American jurisdictions and perhaps in every other state besides the State of Maryland, we would have nothing to decide. A direction to pay over and distribute the balance of a trust’s assets to such person or persons as the holder of the power may appoint would constitute a true general power (i.e., one exercisable in favor of creditors or in favor of the holder’s estate) and estate tax liability on the death of the holder of the power would be unquestioned. 26 U.S.C. § 2041(a)(2); Id. (b)(1) (a general power is one exercisable “in favor of the decedent, his estate, his creditors or the creditors of his estate.”). Just as clearly, however, in Maryland, there is a difference amounting to an anomaly. A power to appoint to such person or persons as the holder of the power may select is construed in Maryland to mean such person or persons other than persons meeting the description of the do-nee of the power, her estate or the creditors of her estate. Balls v. Dampman, 69 Md. 390, 16 A. 16 (1888). The trust property escapes estate taxation on the death of a holder of such a Maryland “general” power (a special power elsewhere). Leser v. Burnet, 46 F.2d 756 (4th Cir.1931). Concentrating solely on the language of the power of appointment itself, the district judge favored the taxpayer, ordering refund of the tax. Regrettably, however, in doing so the district judge gave insufficient consideration to language closely connected by the associative word “and” to the power itself: and if she shall not have exercised this power of appointment, the same shall be paid over and distributed to the Executor or Administrator of the Estate of Theo N. Martin as part of her personal estate. It is established law that, while, for federal estate tax purposes, the nature and extent of property interests are customarily, as here, ascertained by resort to the substantive law of the state, e.g., Guiney v. United States, 425 F.2d 145, 147 (4th Cir.1970), nevertheless, it is also equally determined that state law nomenclature at variance with the actuality of the situation, viewed as a whole, does not prevail where substantively the federal law, acting on a right ascertained by state law, prescribes a result contrary to a label attached for state law purposes. Morgan v. CIR, 309 U.S. 78, 80, 60 S.Ct. 424, 425, 84 L.Ed. 585 (1940); Pierpont v. CIR, 336 F.2d 277, 281 (4th Cir.1964), cert. denied, 380 U.S. 908, 85 S.Ct. 890, 13 L.Ed.2d 795 (1964); Keeter v. United States, 461 F.2d 714, 717 (5th Cir.1972). Here, had only the life estate and the Maryland “general” power been bequeathed to Theo Martin, no tax would have been due. However, she also received a power, which she could exercise by refraining from exercising the Maryland “general” power, in which case the property would pass to her personal estate. In other words, while the dispositive language was broken into two parts, when they were joined together they amounted to a true general power, namely, one which could be exercised in favor of the holder’s estate. It is incontestable, therefore, that there is no difference in substance between a true general power of appointment and a Maryland “general” power plus a default of appointment provision for the property to go to the estate of the holder of the power. It makes no difference for the purposes of the federal estate tax law. In the case of a true general power, the testator, to have her estate or creditors take, would have to do something in the way of designating the takers. In the case of a Maryland “general” power combined with a default provision in favor of the estate of the holder of the power, however, she need do nothing to obtain precisely the same result. It is well established that, in Maryland, someone desiring to do so may, by appropriate choice of language, create a true general power. Leser v. Burnett, supra, 46 F.2d at 761. As “not to decide” may frequently amount to the taking of a decision, so here the power was conferred upon Theo Martin to accomplish by non-exercise, bringing the default clause into play, exactly the same result as that available to a holder of a true general power. The district judge disposed of the Government’s arguments deriving from the default of appointment provision on the grounds that “in the event of default in exercising the power of appointment, the beneficiary of the proceeds of the trust would, therefore, receive such proceeds upon the direction of the settlor of the trust and not upon the direction of the decedent.” However, that is an exaltation of some proportions of form over substance. “[I]t is the right to designate the beneficiaries, and not the method provided for its execution which determines its nature.” Leser v. Burnett, supra, at 758. The all important Leser case recognized the taxability of a true general power of appointment notwithstanding “the logical difficulty that the power, when executed, took effect as an appointment, not of the testator’s own assets, but of the estate of the donor of the power.” Id. “There is no difference, of course, with respect to the source of the property; for whether the power be general or special, it is well settled that the existence of the power does not of itself vest an estate in the donee and that upon its exercise the appointee takes under the donor.” Id. 759. The taxpayer has made a bold and imaginative attempt to argue that the reference, in case of default in exercise of the power, to the estate of the holder of the power of appointment as the taker should be construed as extending only to those beneficiaries of her estate who were not creditors. The argument appears to be an attempted expansion of the Balls v. Damp-man anomaly. The taxpayer was forced to concede that no Maryland authority supports such a departure from plain language. “Her personal estate” is a term of no ambiguity in the instant circumstances and, as a matter of course, includes assets which may be devoted by the testator to the satisfaction of debts and, indeed, will be applied for that purpose even in the absence of such a direction. See Guiney, supra, 425 F.2d at 149, where, in expanding language from Leser v. Burnett, the court defined a true or broad general power as a “power of the donee to appoint to herself or her estate.” (Emphasis supplied). Accordingly, the case is reversed with direction to enter summary judgment in favor of the United States. REVERSED. . It is not necessary for the power to be exercisable with respect to all four. The power will be general if it can be exercised in favor of any one of them. Jenkins v. United States, 428 F.2d 538, 544 (5th Cir.1970), cert. denied, 400 U.S. 829, 91 S.Ct. 59, 27 L.Ed.2d 59 (1970). . See also Bryan v. United States, 286 Md. 176, 406 A.2d 423 (1979); Frank v. Frank, 253 Md. 413, 253 A.2d 377 (1969). . He was Theo Martin’s brother, in whose favor she exercised the power of appointment. He also was named and qualified as the personal representative under her will. . Cf. Keeter, supra, 461 F.2d at 719: In essence, we hold that there is no substantive difference between directly granting the power to dispose of property and placing that same property in such a position that the donee is able to dispose of it to her benefit by means of some power that existed prior to or separate from the settlor’s grant. . It is elementary, of course, that decision of cases of this kind turns on what the holder of the power was able to accomplish, not what, in fact, the holder did do. Hence, the fact that the power was indeed exercised for her brother and not for her estate (z'.e., any creditor thereof) is irrelevant. Jenkins, supra, 428 F.2d at 545. . The district judge was influenced by Second National Bank of Danville, Illinois v. Dallman, 209 F.2d 321 (7th Cir.1954). That case, however, has been appropriately questioned in such cases as Keeter, supra, 461 F.2d at 718. Those later cases are more persuasive. . The situation is basically different, however, for language granting a power restricted so as not to include creditors is a technically appropriate way of proceeding to carry out a testator’s or settlor’s intent. The same cannot be said for a gift in default of appointment to the donee’s executor or administrator. The resulting unnecessary generation of administrative fees and expenses through superfluous passing the trust property through Theo Martin’s estate rather than directly by provision in the donor’s will for the property to go to her beneficial (non-creditor) designees, named in her will, would be unprofessional legal draftsmanship. There is no basis for us to conclude that the scrivener, trained in the law, would (a) use the term "personal estate” in a manner necessitating considerable stretching and (b) subject his client’s assets to needless administrative fees and expenses. . Md. Annotated Code, Estates and Trusts Article, § 8-101 et seq. In addition, Theo Martin directed her personal representative to pay all her just debts. . The decision under 26 U.S.C. § 2041 makes consideration of the Government’s argument as to taxability under 26 U.S.C. § 2033 ("The value of the gross estate shall include the value of all property to the extent of the interest therein of the decedent at the time of his death") unnecessary. The argument sounds superficially convincing. The default of appointment language, it runs, creates an interest sufficient of itself to make the trust property taxable, quite independently of the Maryland "general," i.e., special power of appointment. However, without the special power in existence it is totally unrealistic to assume that there would be provision for default in its exercise. So the argument may be essentially unrealistic. Perhaps that is why the argument was not advanced in the district court. Normally we are not disposed to consider such late appearing arguments. United States v. One Mercedes Benz, 542 F.2d 912 (4th Cir.1976). See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976). . Not pertinent to the merits, there is one other aspect of the case which should not go unnoticed. The amount involved was relatively modest as such matters go, amounting to no more than $14,226.39. Throughout the course of the case in the district court, the United States pursued the contention that, in all events, the estate was includible for federal estate tax purposes because of the power in the trustee to invade the principal for the life tenant's benefit “[i]n the event of the illness of Theo N. Martin or other emergency." In filing its cross-motion for summary judgment on October 12, 1984, the Government persisted in that assertion. However, the law has long recognized that a power to consume, invade or appropriate property where the power is limited by an ascertainable standard relating to the health, education, support or maintenance of the beneficiary shall not be deemed a general power of appointment. 26 U.S.C. § 2041(b)(1)(A). Considering the language of the regulations, see 26 C.F.R. § 20-2041-l(c)(2), it was clear enough that the argument was a loser. Even if not frivolous before, it became utterly so when, on June 9, 1983, over a year prior to the filing by the Government of the cross-motion for summary judgment, Estate of Sowell v. CIR, 708 F.2d 1564 (10th Cir.1983), was handed down. There invasion “in cases of emergency or illness” was held to be limited to an ascertainable standard, so that the trust was not includible for estate tax purposes. The Government, while continuing to pursue the point at the district level in the face of that flatly contradictory authority, following rejection by the district judge of the altogether untenable argument wisely chose not to renew it on appeal.

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

COHEN v. COMMISSIONER OF INTERNAL REVENUE. CARNAHAN v. COMMISSIONER OF INTERNAL REVENUE. COMEAUX v. COMMISSIONER OF INTERNAL REVENUE. CLEMONS v. COMMISSIONER OF INTERNAL REVENUE. POLK v. COMMISSIONER OF INTERNAL REVENUE. Nos. 3816-3822. United States Court of Appeals Tenth Circuit. July 26, 1949. William H. Quealy, Washington, D. C. (Harry C. Castor, Wichita, Kan., on the brief), for petitioners. Harry Marselli, Washington, D. C. (Theron Lamar Caudle, Ellis N. Slack and Lee A. Jackson, Washington, D. C., on the brief), for respondent. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. MURRAPI, Circuit Judge. These several appeals, here on a consolidated record from the United States Tax Court, involve assessed deficiencies and fraud penalties against each of the petitioners for different years, between 1936 and 1944, for income allegedly derived from the illegal traffic in liquor, gambling and betting on horse races, outside the city limits of Wichita, in Sedgwick County, Kansas. The assessments and penalties against each of the petitioners for the specified years were based upon the hypothesis that petitioners Comeaux, Clemons, Polk and others owned and operated establishments in Sedgwick County, Kansas, where liquor was sold, gambling conducted, and betting on horse races booked; that petitioners ; Cohen and Carnahan, acting in concert, afforded them protection against raids and arrests by state and county law enforcement officers for a percentage of the profits derived from the operation of the illicit businesses; and that each of the petitioners fraudulently failed to report accurately or truthfully all of the income' derived from such illegal activities for the years in question to the extent of the assessed deficiencies. On review, the Tax Court consolidated ' Cohen and Carnahan’s cases for purposes of trial, over the objection of the parties. All of the cases were tried consecutively, and it was agreed that the records in the other' cases, insofar as material and pertinent, might be considered as evidence in the consolidated cases. With immaterial modifications and adjustments, the Tax Court affirmed the Commissioner’s determination in each case. See Cohen v. Commissioner, 9 T.C. 1156; Carnahan v. Commissioner, 9 T.C. 1206; Comeaux v. Commissioner, 10 T.C. 201. On appeal here, the petitioners Cohen and Carnahan complain of the consolidation of their cases, contending in effect that their tax liability being separate, and not governed by the same facts, it was prejudicial to each of them to have their cases tried and considered together. But the record shows that Cohen and Carnahan were associated together in the activities which gave rise to the deficiency assessments, and that much of the evidence introduced, both on behalf of the Commissioner and the petitioners, was competent in both cases. The question of consolidation therefore rested in the sound discretion of the Tax Court. See Skirvin v. Mesta, 10 Cir., 141 F.2d 668; United States v. Hauck, 2 Cir., 155 F.2d 141. All of the petitioners seek to annul the respective decisions of the Tax Court on the grounds that the opinions do not sufficiently set forth a complete statement of the “findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law * * * ” as required by Section 8(b) of the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C.A. § 1007(b). Without deciding whether the Tax Court of the United States is a “court” within the exclusionary meaning of Section 2(a) of the Act, 5 U.S.C.A. § 1001(a), we are convinced that Section 8(b) has no application to the procedure of theTax Court in a proceedings of this kind. Kennedy Name Plate Co. v. Commissioner, 9 Cir., 170 F.2d 196. It may be said, however, that the decision of the Tax Court in each case is based upon extensive and detailed findings of fact and well reksoned conclusions. Its accompanying opinions are full and comprehensive treatments of the facts and every question presented for decision there and here. Numbers 3816 and 3817 Max Cohen For the years 1936 to 1943, inclusive, the Commissioner determined deficiencies and penalties against Max Cohen in the aggregate sum of $148,080.11. The deficiencies were determined by resort to what the internal revenue agent chose to call the “excess cash expenditure” method, under which the agent assumed that Cohen was “broke” on January 1, 1936, and that all expenditures as reflected by the available books and records in excess of the amount the taxpayer is shown to have had available to spend from reported sources, constituted additional and unreported taxable income. In other words, the deficiencies were based upon the premise that the taxpayer was shown to have spent more money in each of the taxable years than his returns showed was available to him as income. Thus, for each succeeding year the Commissioner started with the cash carry-over, if any on hand, and added to that the ascertainable cash receipts. He then aggregated all cash expenditures, from which he deducted the sum of the cash on hand, and ascertained cash receipts to arrive at the additional mnreported income for each of the years in question. While conceding that the methods employed by the Commissioner are justified in cases where the income is from illegal sources and no records are kept, on which taxable income can be ascertained with accuracy, see Kenney v. Commissioner, S Cir., 111 F.2d 374, and cases cited, Cohen earnestly argues that adequate records were maintained by him for the taxable years in question, from which competent accountants computed his taxable income and prepared proper returns, on which he paid the tax; that since the Commissioner concedes that his returns for the years in question are in agreement with his available records, resort to the so-called excess cash expenditure method does not provide a proper basis for determination of deficiencies, and is unwarranted. The Tax Court found, and the record shows, that in the year 1936, Cohen was engaged in the oil business, and that upon the advice of an attorney, an accountant set up double entry ledgers to record all of his oil transactions, and that these books were kept by the accountant, and his income and disbursements accurately recorded and reflected in his income tax returns. The record also shows that before and after 1936, Cohen received large sums of money from the operation of establishments in Sedgwick County, where liquor was sold, gambling conducted, and bets on horse races were booked. For these activities, he maintained no books or records, except daily work , sheets, reflecting the total amount of the “take”, with directions to his accountant concerning its apportionment to the joint adventurers, whose returns the same accountant also prepared. The income from these activities was reported on the tax returns as derived from “outside activities”. No other books or records or explanation has ever been made available. As the Tax Court observed in respect to the deficiencies assessed for the years 1936 to 1939, inclusive, there was credible evidence that during these years, Cohen received large sums of money from night club operators and from various illegal enterprises, in addition to the sums reported from “outside activities” in his return for those years, and that since Cohen elected not to take the witness stand to refute or explain the testimony and evidence on which the Commissioner’s determinations were based, the court must indulge in their presumptive correctness. Cohen further contends that the Commissioner erroneously assumed that he was broke on January 1, 1936, as a basis for determining his taxable income for that year and succeeding years. He says in that connection that the Commissioner’s determination and the Tax Court’s approval flies in the face of uncontradicted testimony that he had substantial funds in the Fall of 1936. There was testimony to the effect that in November 1936, he had in his possession $37,500.00, and other testimony tending to show that he possessed large sums of money in cash at that time. The taxpayer’s returns for the years preceding 1936 did not reflect any income. In fact, he filed no returns for the years 1931 through 1935. The taxpayer did not choose to enlighten the court in that regard; the court was not convinced by the testimony, and we cannot say that its conclusion in that respect is clearly erroneous. For the taxable year 1940, the Commissioner determined no excess cash expenditures, but Cohen complains of the disallowance of an item of $2,552.27, claimed as' net loss carry-over. In its treatment of this item, the Tax Court stated that at the outset of the hearing, counsel for the petitioner abandoned any contention of error in the determinations for the taxable year 1940, except fraud, and observed that no proof was introduced specifically referring to that item; and that since the record was barren of proof in respect, to the deficiency, it was presumptively correct and must therefore stand. The court accordingly approved the deficiency, and disapproved the. fraud penalty for that year. We accept the Tax Court’s version of the matter, and agree with its conclusions. In respect to the deficiency for the year 1941, Cohen complains of the failure of the court to find that he borrowed the sum of $35,000.00 in cash from his mother-in-law, Mrs. Myrtle Hale, on or about September 1, 1941, and its" consequent treatment of that sum as taxable income to him for that year. In rejecting as false, testimony tending to show that the loan was made to him for the purpose of purchasing oil properties, the Tax Court took into consideration the fact that although Cohen had a complete set of books and records for his oil business, there was no record on these books of the loan, or any other evidence of the debt; that it was not shown to have come into his bank account, and no mention of it had been made during the investigation of his income tax liability until the hearing before the Tax Court. The court also treated as significant the fact that the $35,000.00 claimed loan was almost exactly the amount of the excess cash expenditures of $36,-916.26, determined for the year 1941, and observed that Cohen, who “should know most about the matter” remained silent. Again we cannot say that the Tax Court, as the trier of the facts and judge of the credibility of the witnesses, arrived at an unwarranted conclusion. During the taxable years 1941, 1942 and 1943, Cohen and Carnahan financed one Ray Watson in -the operation of a “slot machine route”, under an agreement that Watson would receive 25% of the profits accruing to the owners of the machines, and Cohen and Carnahan 75% until the capital investment was returned, after which the profits would be divided 50% to Watson and 50% jointly to Cohen and Carnahan. ' In his income tax returns for the years 1941, -1942 and 1943, Cohen reported 25% of the proceeds. The Commissioner increased it to 37%%, on the basis that Cohen and Carnahan received for the taxable years in question 75% of the income. It is admitted-that Cohen and Carnahan received 75% of the income during all of these years, ‘but Cohen contends that he is indebted to Watson for the difference and intends to pay him; that since Watson’s testimony supports this contention and reported the 50% in his returns for these years, the Commissioner could not repudiate the arrangement and arbitrarily increase his income by that amount. The Tax Court sustained Cohen’s contention for the year 1941, on the theory that he was entitled to a return of his investment, and sustained the Commissioner for the years 1942 and 1943, on the grounds that Cohen admittedly retained the money. It refused to give credence to the testimony that it was a debt to be repaid. We do not think the court’s appraisal of the facts was clearly erroneous. Cohen also attacks the determination of the Commissioner, approved by the Tax Court, of deficiencies based upon excess cash expenditures for the years 1941, 1942 and 1943, and particularly complains that the court failed to give consideration to an analysis of his income tax liability for these years prepared by an accounting firm from the same records and data used by the revenue agent in arriving at the excess cash expenditures. A summary of this analysis, purporting to show that cash available to Cohen during the years was understated by the revenue agent in his report, was offered and received in evidence, and the accountant who prepared it was also interrogated in court concerning the adjustments forming the basis for the discrepancy. The record shows that the Tax Court gave consideration to this summary and the testimony of the accountant. There is nothing in the record to suggest that the Tax Court did not give full consideration to the proffered testimony. It chose to accept the Commissioner’s determinations, and its decision, resting as it does upon competent proof, is controlling here. Cohen complains that the Tax Court erroneously refused to allow the accountant who prepared the analysis of his income tax for the years 1941, 1942 and 19-13, to substantiate his summary in detail, and also urges as reversible error the refusal of the Tax Court to grant a rehearing after findings and opinion for the same purpose. The record does not indicate that the Tax Court limited in any respect evidence offered on behalf of the petitioner. Instead, it afforded the parties every opportunity to offer any proof bearing upon the issue. The question whether the court should grant a rehearing for the purpose of hearing substantiating testimony was entirely within its discretion in these circumstances. In sum, the evidence shows, without dispute, that Cohen and Carnahan derived large stuns of money from establishments located in Sedgwick County, Kansas, openly engaged in selling liquor, conducting gambling games and slot machines, and accepting bets on horse racing. In his income tax return for 1941, Cohen reported from “outside activities” the sum of $58,-002.56; for 1942 he reported $158,630.46, and for 1943 he reported $95,179.78, all directly attributable to the illicit enterprises conducted by petitioners Comeaux, Clemons, Polk and others. No books or records were available to substantiate these returns, except the daily work sheets handed to the accountant showing cash received, with directions for apportionment among the participants according to their syndicated shares. There was also evidence that during these years in question, Cohen received other substantial sums of money from other illicit sources, which he did not report in his income tax returns. From this and other evidence of excess cash expenditures, the Commissioner determined the deficiencies for each of the years and assessed the penalties. After a full hearing, the Tax Court has, with modifications and adjustments, approved its assessments. Cohen elected to remain silent in the proceedings, and has pleaded nolo contendere to criminal charges for tax evasion for some of the years in question. While his failure to testify in his own behalf, and his plea of nolo contendere are no evidence tending to support the Commissioner’s determinations and the Tax Court’s approval thereof, they do tend to account for approximations where details might otherwise be filled in. It is sufficient to say that the Tax Court’s decision rests upon the best available evidence, and we think it is sufficient. Stinnett v. United States, 4 Cir., 173 F.2d 129; Harris v. Commissioner, 4 Cir., 174 F.2d 70; Greenfield v. Commissioner, 4 Cir., 165 F.2d 318. See also Helvering v. Safe Deposit & Trust Co., 316 U.S. 56, 62 S.Ct. 925, 86 L.Ed. 1266, 139 A.L.R. 1513; Cohan v. Commissioner, 2 Cir., 39 F.2d 540, 543. Numbers 3818 and 3819 Robert L. Carnahan For the taxable years 1937 to 1944, inclusive, the Commissioner determined deficiencies and penalties against Carnahan in the aggregate amount of $146,410.52. Carnahan kept no books or records reflecting his income, except the work papers delivered to his accountant showing gross receipts from joint enterprises with Cohen. The Commissioner’s determinations are based upon the theory that since, with noted exceptions, Carnahan was an equal partner with Cohen in the outside activities, their income from common sources was the same. The Commissioner accordingly set up the deficiencies as “income not reported” corresponding to “excess cash expenditures” in Cohen’s case. Carnahan challenges this method of determination, but the evidence which supports the deficiencies in the Cohen case is equally applicable to him. His principal attack upon the deficiencies arises from the refusal of the Commissioner to allow as deductions personal gambling losses to ■the extent of partnership gains. Although Carnahan did not testify in his own behalf, he offered the testimony of others to the effect that during the taxable years in question, he sustained large gambling losses at different places over the country, and contended that these losses were deductible to the extent of his gains from the various gambling enterprises, from which he derived his unreported income. See Jennings v. Commissioner, 5 Cir., 110 F.2d 945. The Tax Court sustained the Commissioner’s disallowance of these deductions, first, because it was of the opinion that neither Carnahan nor Cohen owned any interest in the gambling enterprises from which they derived the unreported gains. Rather, it was of the opinion that the income was for protection afforded the various gambling establishments against raid and arrest by county and state officers. In that respect, the court stated that “all inferences from the situation tend to support the testimony that no ‘place’ could operate in Sedgwick County without paying Cohen. ‘To pay Cohen was to pay Carnahan.” According to the undisputed testimony, Cohen bank-rolled and collected the percentages from some of the gambling establishments, while Carnahan bank-rolled and collected from others, but they regularly balanced accounts by payments to each other in cash. As against the contention of the taxpayer that the percentage paid to them from the gambling operations was for “bank-rolling” the games and standing all losses, the Tax Court observed that it was not likely that anyone. operating a gambling establishment would pay as high as 75% of the lucrative earnings for the risk involved. Of course if Carnahan owned no interest in the gambling - establishments, he could not deduct his personal gambling losses, to the extent of his gains from those sources. ' And finally, the court refused to believe part of the testimony supporting the claimed losses. In so doing, it pointed out with respect to a claimed $25,000.00 gambling loss in 1942, that Carnahan merely called his auditor, advising him that he had just lost $25,000.00 gambling. The only supporting evidence of this loss was a letter from Carnahan to his accountant— Carnahan did not testify concerning it, or any other claimed losses. For any or all of the reasons assigned, we think the Tax Court correctly disallowed the claimed deductions. No. 3820 G. A. Comeaux The deficiencies and fraud penalties determined and assessed against Comeaux were based upon income from the operation of the Lawrence Commission Company, where wagers were taken on horse racing and other sporting events. In his returns for the years in question, Comeaux treated the amounts admittedly paid to Cohen and Carnahan as partnership income, and therefore not includable in his gross income. In his returns, however, Comeaux designated himself as sole owner. The Commissioner allocated the entire income from the establishment to Comeaux on the theory that the percentages admittedly paid to Cohen and Carnahan were for protection, and not for any proprietary interest in the business. The amounts are not in dispute, and it is agreed that while legitimate expenses incurred in an illegitimate business are deductible, amounts paid for protection are not legitimate business expenses. The Tax Court allowed certain claimed expenses incurred in the operation of the business, but sustained the Commission’s disallowance of the amounts paid to Cohen and Carnahan, based upon its findings fully set forth in the Carnahan case, to the effect that Cohen and Carnahan set themselves up as overlords of the illegal gambling business in Sedgwick County, Kansas, and exacted tribute from all those who wished to engage in it. The evidence shows, without dispute, that during the years in question, the outlying districts; surrounding Wichita were infested. with so-called night-clubs, where liquor was sold and gambling conducted, with only nominal interference from law enforcement officers. It is certainly permissible to infer from this record that Cohen and Carnahan actually furnished the protection they offered, and that the income they received from the illicit businesses was in payment therefor. Number 3821 Fred D. Clemons Beginning in 1940, through 1944, petitioner Clemons owned and operated what was known as the Overflow Club outside the city limits of Wichita. He sold liquor by the drink in the front end, and conducted gambling in the rear. The bank roll for the gambling was furnished by Carnahan, and he, on behalf of himself and Cohen, received a stipulated percentage of the winnings. In his income tax returns for the years 1940 -to 1944, inclusive, Clemons did not include in his gross income amounts paid to Carnahan, on the theory that the gambling winnings represented partnership income. The Commissioner assessed deficiencies, claiming that all of the income accrued to Clemons as the owner of the establishment, and the amounts paid to Carnahan were nondeductible payments for protection. The Tax Court allowed the legitimate expenses for the operation of the business, but approved the deficiencies for the amounts paid to Carnahan and Cohen for the reason stated in the Carnahan and Comeaux cases, and its decision thereon is affirmed for the same reason. Number 3822 Ralph Leonard Polk During the year 1940 through 1944, Ralph Leonard Polk operated what was known as the Canyon Supper Club in the outskirts of Wichita, where liquor was sold in the front end, and gambling conducted in the rear. Cohen furnished the bank roll for the gambling, and was paid a percentage of the winnings. The issues here are the same as those in the Comeaux and Clemons cases, and the Tax Court’s decision approving the Commissioner’s determinations, is based upon the same reason,., and its decision is affirmed. All of the deficiency assessments against all of the petitioners for the years 1936 through 1939, (and also 1940 for petitioner Comeaux) are admittedly barred by the statute of limitations, unless the returns for those years were false and fraudulent, with the intent to evade taxes. If so, they are not barred. Each of the petitioners earnestly contend that the Commissioner has not sustained the burden of showing fraud. While the determinations of the Commissioner are presumptively correct, and the burden is on the taxpayer to disprove them, the burden is upon the Commissioner to show fraud, and such burden is not sustained by merely establishing a deficiency. See Greenfield v. Commissioner, 4 Cir., 165 F.2d 318; Harris v. Commissioner, 4 Cir., 174 F.2d 70; Snell Isle, Inc. v. Commissioner, 5 Cir., 90 F.2d 481. In accordance with this rule, and after a careful analysis of the facts in each case, the court concluded that with the exception of certain noted years, the returns had been fraudulently filed, with an intent to evade tax. Without recounting the facts and circumstances, we are convinced that the Tax Court’s findings in that respect are not clearly erroneous, and they must be sustained. The several decisions are affirmed. The memorandum findings of fact and opinion of the Tax Oourt in the case of Fred D. Clemons and Ralph Leonard Polk are included in the record, but apparently were not officially reported.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 5. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".

What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 5? Answer with a number.

MO-KAN TEAMSTERS PENSION FUND, a trust fund, and Mo-Kan Teamsters Health & Welfare Fund, a trust fund, Plaintiffs-Appellees, v. Robert J. CREASON, d/b/a Kansas Cartage Company, Defendant-Appellant. No. 81-1671. United States Court of Appeals, Tenth Circuit. Sept. 6, 1983. Certiorari Denied Jan. 9,1984. See 104 S.Ct. 716. Susan Ellmaker of Gates & Clyde, Overland Park, Kan., for defendant-appellant. Michael C. Arnold of Yonke, Shackelford & Arnold, P.C., Kansas City, Mo. (Albert J. Yonke, Kansas City, Mo., with him on brief; George A. Groneman, Kansas City, Kan., also on brief), for plaintiffs-appellees. Before BARRETT, McKAY and SEYMOUR, Circuit Judges. SEYMOUR, Circuit Judge. This is an action brought under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), and section 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (1976 & Supp. V 1981). Defendant Robert J. Creason appeals from the district court’s order awarding plaintiffs Mo-Kan Teamsters Pension Fund and Mo-Kan Teamsters Health and Welfare Fund (the Funds) delinquent fringe benefit contributions, with interest, audit costs, and attorney’s fees. He alleges that the trial court erred in (1) finding that he executed a contract stipulation; (2) failing to find the stipulation unenforceable as a prehire agreement; (3) finding that his obligation did not terminate; (4) rejecting certain parol evidence; and (5) basing the measure of damages on the results of an audit submitted by plaintiffs. We affirm. I. EXECUTION OF CONTRACT STIPULATION A. Factual Background Creason owns and operates Kansas Cartage Company, a trucking firm. The plaintiff trust funds were established in 1969 pursuant to a collective bargaining agreement between the Builders’ Association of Kansas City, Missouri (Builders’ Association) and Local Union No. 541 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (Union). Although Creason has never been a member of the Builders’ Association, the Union placed a picket on Creason’s business on March 14, 1971, to protest his refusal to make payments into the Funds. The next day Creason met with Karl Rogers, who is the president and a business representative of the Union and a trustee of both Funds. From this point the facts are hotly disputed. Plaintiffs’ witnesses testified that Creason executed the following contract stipulation: “TEAMSTERS LOCAL UNION 541 CONTRACT STIPULATION “The undersigned employer acknowledging receipt of a copy of the Collective Bargaining Agreement presently in effect between the Builders’ Association of Kansas City and Local Union 541, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, and after negotiation and a complete discussion of the facts and circumstances involved and desiring and intending to be bound by the prevailing wages and conditions in the area, hereby agrees with the Union to be bound by the terms of such collective bargaining agreement, subsequent collective bargaining agreements, all fringe benefit agreements, welfare and pension plan trusts, all rules and regulations adopted by the Trustees of the aforementioned Trusts, and all other legal agreements between the aforementioned parties and any renewals, modifications, or extensions thereof for the duration of all said agreements. This stipulation which expressly applies to each and every term of the above agreements, shall be valid and effective when approved by the union and the proper undersigned Board of Trustees and shall remain in effect until five years from this date and thereafter shall automatically renew itself for a three-year period and at regular three-year intervals thereafter, unless either the employer or the union gives written notice of desire to terminate to the other party and to the association, no more than 90 days and no less than 60 days prior to any such three-year anniversary date. Dated at 3-15-71. this_day of_19__” Rec., vol. Ill, at 413. The stipulation was signed and dated by Karl Rogers. Creason allegedly also signed the document. He disputed this at trial, however, testifying, “[i]t appears to be my signature but I did not sign this document.” Rec., vol. XI, at 322. He said that he did sign two copies of the Builders’ Association collective bargaining agreement with the words “under protest,” and took an unsigned copy back to his office. However, he failed to produce either of the allegedly signed copies of this agreement. The Funds introduced considerable evidence controverting Creason’s position. Rogers testified that there would have been no reason for Creason to sign the Builders’ Association contract. Additionally, the Funds produced several other documents purportedly signed by Creason. Creason conceded that all but one of the signatures appeared to be his, but he would neither deny nor affirm them as his. He did, however, acknowledge one signature as his own, a notarized signature on a document from other litigation. He conceded that this authenticated signature “appear[ed] to be the same” as the others, including the disputed one on the stipulation. Rec., vol. XI, at 343. The parties agree that Creason submitted monthly remittance reports and made payments to the Funds from March 1971 to December 1976. Their explanations differ, however. Creason’s position is that the payments were only for work done on the Crown Center project, in accordance with a purported oral agreement with Rogers. The Funds insist that he was bound by the contract stipulation to make payments for all covered workers, and they seek the delinquent amount. B. Discussion Creason contends the district court erred in finding that he executed the stipulation. Initially, we note that a district court’s findings of fact may be overturned on appeal only if they are clearly erroneous. Fed.R.Civ.P. 52(a). “ ‘When a ease is tried to the district court, the resolution of conflicting evidence and the determination of credibility are matters particularly within the province of the trial judge who heard and observed the demeanor of the witnesses.’ ” Equal Employment Opportunity Commission v. Central Kansas Medical Center, 705 F.2d 1270, 1274 (10th Cir.1983) (quoting Dowell v. United States, 553 F.2d 1233, 1235 (10th Cir.1977)). On appeal, Creason suggests that the trial court should not have considered the other signatures offered. He relies on a line of early Iowa cases discussed in Cousin v. Cousin, 192 F.2d 377 (8th Cir.1951). Cousin, however, is limited to Iowa law, and is neither controlling nor persuasive. Rule 901(b)(3) of the Federal Rules of Evidence allows triers of fact to authenticate writings by comparing them with authenticated specimens. The trial court’s use of plaintiffs’ exhibits was entirely proper. See generally 5 J. Weinstein & M. Berger, Weinstein’s Evidence ¶¶ 901(b)(3)[02]-[03] (1982). Despite Creason’s testimony to the contrary, there was sufficient evidence to conclude that he did in fact sign the stipulation. The court’s finding is not clearly erroneous. II. PREHIRE AGREEMENT Creason argues that the contract stipulation is unenforceable as a prehire agreement entered into without majority support for the Union. Such prehire agreements have been authorized only in the building and construction industry. National Labor Relations Act § 8(f), 29 U.S.C. § 158(f) (1976). “By authorizing so-called ‘prehire’ agreements ..., § 8(f) .. . exempts construction industry employers and unions from the general rule precluding a union and an employer from signing ‘a collective-bargaining agreement recognizing the union as the exclusive bargaining representative when in fact only a minority of the employees have authorized the union to represent their interests.’ ” Jim McNeff, Inc. v. Todd,-U.S.-, 103 S.Ct. 1753, 1756, 75 L.Ed.2d 830 (1983) (quoting NLRB v. Local Union No. 103, International Association of Bridge, Structural & Ornamental Iron Workers (Higdon), 434 U.S. 335, 344, 98 S.Ct. 651, 657, 54 L.Ed.2d 586 (1978)). The district court found that Creason was not an employer in the building and construction industry, but it also found that the stipulation was not a prehire agreement. Rather, it held the stipulation to be “a contract in which defendant voluntarily recognized the desire of a majority of his current employees to be represented by Teamsters Local No. 541.” Rec., vol. II, at 227. The district court’s finding that Creason voluntarily recognized the Union is not clearly erroneous. Consequently, “a presumption was created that a majority of the employees desired Union representation.” Arco Electric Co. v. NLRB, 618 F.2d 698, 700 (10th Cir.1980). If Creason believed that the Union did not represent a majority of his employees, his proper recourse was before the NLRB. Lack of majority status can only be challenged in an unfair labor practice proceeding, over which the NLRB has exclusive jurisdiction. New Mexico District Council of Carpenters v. Mayhew Co., 664 F.2d 215, 217 (10th Cir.1981). It is not a valid defense to a section 301 action for enforcement of accrued contractual obligations. Jim McNeff, 103 S.Ct. at 1758-59; Mayhew, 664 F.2d at 219-20. Creason argues that under certain circumstances an employer can assert the illegality of a promise as a defense to a section 301 action. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). However, Kaiser Steel is not controlling in this case. Unlike the asserted lack of majority status raised here, the hot cargo clause involved in that case was clearly an illegal promise as well as an unfair labor practice. See National Labor Relations Act § 8(e), 29 U.S.C. § 158(e) (1976). The Court did not disturb “the general rule [that] federal courts do not have jurisdiction over activity which ‘is arguably subject to § 7 or § 8 of the [NLRA],’ and they ‘must defer to the exclusive competence of the National Labor Relations Board.’ ” Kaiser Steel, 455 U.S. at 83, 102 S.Ct. at 859 (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779-780, 3 L.Ed.2d 775 (1959)). The Court’s unanimous decision in Jim McNeff makes clear that lack of majority status may not be asserted as a defense in a section 301 enforcement action. III. TERMINATION OF OBLIGATION Creason contends that his obligation under the stipulation terminated upon expiration of the Builders’ Association collective bargaining agreement in effect at the time of the stipulation. The stipulation by its terms binds Creason to “all other legal agreements between [the Union and the Builders’ Association] and any renewals, modifications, or extensions thereof for the duration of all said agreements.” Rec., vol. III, at 413. Creason argues that his obligation terminated March 31,1974, because the collective bargaining agreement expired at that time and a new one did not become effective until May 1, 1974. Creason also asserts that the trial court erred in holding that a letter sent by his attorneys to the Union and the Funds on January 24,1977, did not terminate his obligation. The letter stated: “[T]o the extent anyone believes that Robert J. Creason or Kansas Cartage Company is bound to the Joint Agreement between the Builders Association of Kansas City, Missouri, and Local Union No. 541, pursuant to Article XIV of the Joint Agreement presently in effect, please be advised that Mr. Creason and Kansas Cartage Company hereby give written notice of the Joint Agreement which is presently in effect until March 31, 1977.” Rec., supp. vol. I, at 5. The district court noted that the attempted termination would have been timely had Creason been a party to the agreement between the Builders’ Association and the Union. It was not timely under the terms of the contract stipulation, however, which required notice of termination no more than ninety days and no less than sixty days prior to the anniversary dates in March 1976 and March 1979. Consequently, the district court held that Creason continued to be bound by the contract stipulation. Creason argues that it is unfair to require him to decide over a year in advance of the expiration of the collective bargaining agreement whether to renew his participation, citing Seymour v. Coughlin Co., 609 F.2d 346, 350 (9th Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816 (1980). In Seymour, the employer had executed a “short form” contract which substantially incorporated the terms of an agreement between a multi-employer bargaining unit and a union. The short form stated that it was effective for the term of the master agreement “and for any renewals or extensions thereof,” but said nothing about modifications. See id. The trial court held that the employer was not bound by a subsequent, modified master agreement, even though the employer had continued to make payments. The Ninth Circuit declined to reverse the trial court’s interpretation and findings. The Ninth Circuit later made clear that no per se rule was announced in Seymour. See Construction Teamsters Health & Welfare Trust v. Con Form Construction Corp., 657 F.2d 1101, 1103 (9th Cir.1981). Con Form involved a short form contract which, like the contract stipulation here, bound the employer to a master agreement and modifications thereof. The court stated “[i]t is clear that a signatory to a Short Form Agreement can agree to be bound by future modifications, extensions and renewals of [a Master Labor Agreement].” Id. at 1103. In upholding the trial court’s determination that the employer continued to be bound, the Ninth Circuit noted that “[additionally, we find Con Form’s conduct in continuing to pay the pension trust through December of 1977 and in sending a letter of termination in April of 1978, further evidences the parties intent to be bound by subsequent MLAs unless written notice of termination was given.” Id. at 1104. We find Con Form persuasive in refuting both Creason’s claim that his obligation terminated when the collective bargaining agreement lapsed in March 1974 and his claim that holding him to the termination provision of the contract stipulation would be unfair. Because Creason continued to make payments until December 1976, thus ratifying the new agreement, we need not address whether the thirty-day lapse in 1974 prevented .the May 1 agreement from being a renewal, modification, or extension of the earlier agreement. We likewise decline to reverse the district court’s view of the contract stipulation’s termination clause. IV. PAROL EVIDENCE According to Creason, Rogers had assured him at the March 15 meeting that “he would not bother the rest of our operation if we would agree to pay into the health and welfare fund on the Ceco . .. work at the Crown Center [construction site].” Rec., vol. XI, at 318. Rogers denied making such a promise. Creason urges that the district court should not have rejected his evidence of oral representations by Rogers. He suggests the parol evidence should have been admitted to show that the contract was voidable due to mistake of fact. He argues that his testimony about Rogers assuring him he would only have to pay for employees involved with the Crown Center project is supported by the fact that “the only thing done pursuant to the master agreement was that money was paid into the funds on some of the employees.” Brief for Appellant at 30. A recent Ninth Circuit case is directly on point, and is dispositive of this contention. In Waggoner v. Dallaire, 649 F.2d 1362 (9th Cir.1981), the employer testified that a union business agent “promised not to enforce the terms of the agreement if [the employer] signed the ‘short form’ and agreed to adhere to the contract until he had finished the ‘Thibado job,’ a large construction project [the employer] was then undertaking.” Id. at 1365. The district court held that the agreement was null and void because of fraud in the inducement. Discussing “the elaborate protection section 302 [of the LMRA, 29 U.S.C. § 186 (1976)] provides trust beneficiaries,” id. at 1366, the Ninth Circuit reversed, holding “that an employer and a union may not orally modify the terms of employee trust provisions in a collective bargaining agreement.” Id. (citing Lewis v. Seanor Coal Co., 382 F.2d 437, 441-44 (3d Cir.1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968)); accord Maxwell v. Lucky Construction Co., 710 F.2d 1395 (9th Cir.1983). We agree with the reasoning in Waggoner. See also Manning v. Wiscombe, 498 F.2d 1311 (10th Cir.1974). V. MEASURE OF DAMAGES The district court based damages on the results of an audit performed by an accountant from the Greater Kansas City Joint Construction Fringe Benefit Audit Program. Creason argues that the audit contained several significant errors and that the court’s awards of damages were thus not supported by sufficient evidence. The collective bargaining agreement required employers to pay a certain amount to each Fund for each hour a covered employee worked. Because Creason’s business records had been stolen shortly before notice of the audit, records of hours worked were unavailable. The auditor therefore estimated hours worked by dividing gross wages (obtained from government records) by the hourly wage for pickup truck drivers. Creason argues that this method was inappropriate because his employees were paid on a percentage basis rather than an hourly wage. Additionally, he notes that the rate for pickup truck drivers was lower than other rates and that use of a lower rate would inflate hours. The trial court addressed these concerns reasonably, imposing awards in amounts five percent lower than those calculated by the auditor, rather than imposing the expense of a new audit on defendant. Creason next argues that two employees should not have been included in the audit because they were supervisors. Yet Creason himself testified that these employees also performed covered work (deliveries, mechanic work) as well as some supervision. The record contains substantial evidence to support the conclusion that they were covered. Creason also contends that his employees performed work outside the geographical jurisdiction of the agreement, but he presented no evidence from which that fact could be determined. Finally, he suggests that the audit included the work of employees who performed millwright work (installing equipment), which, is not covered by the agreement. However, the auditor testified that she did not include millwrights, office workers, yard maintenance workers, and ground maintenance workers, based on Creason’s answers to interrogatories about his employees’ duties. “When the cause and existence of damages have been established with the requisite certainty, recovery will not be denied because the amount of such damage is difficult of ascertainment. A reasonable basis for computation and the best evidence available under the circumstances is sufficient.’’ Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1388 (10th Cir.1981). The district court did not err in using the results of the audit to assess damages. We have considered Creason’s other contentions and find them unpersuasive. Accordingly, the judgment is affirmed.

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

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

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

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

UNITED STATES of America v. Anthony J. J. A. WILSON, Hedwig C. Wilson, Massachusetts Mutual Life Insurance Company, and Travelers Insurance Company, Travelers Insurance Company, Appellant. No. 13859. United States Court of Appeals Third Circuit. Argued April 5, 1963. Submitted Oct. 12, 1963. Decided April 10, 1964. See also 3 Cir., 304 F.2d 530. Stryker, Tams & Dill, Newark, N. J., Burtis W. Horner, Newark, N. J., of counsel, for appellant Travelers Ins. Co. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Michael A. Mulroney, Attys., Dept. of Justice, Washington, D. C., David M. Satz, Jr., U. S. Atty., for appellee. Before BIGGS, Chief Judge, and McLaughlin, kalodner, staley, HASTIE, GANEY and SMITH, Circuit Judges. PER CURIAM. This is the appeal of the Travelers Insurance Company (“Travelers”) in the Section 7403, Internal Revenue Code of 1954, action brought against delinquent taxpayer, Anthony Wilson, and involving foreclosure of a tax lien on his interest in certain unmatured insurance policies. The separate appeal of the Massachusetts Mutual Life Insurance Company in this same proceeding is filed concurrently herewith and is reported at 333 F.2d 137 (1964). The facts of the case at bar are set out in the opinions of the court below reported at 182 F.Supp. 567 (1960), at 191 F.Supp. 69 (1961), and at 195 F.Supp. 332 (1961), and in the “Tabulation of Information re Life Insurance Policies” appended to our opinion in United States v. Sullivan, 333 F.2d 100 (1964), filed concurrently herewith. The “Tabulation” is incorporated into this opinion by reference. It is unnecessary to recite the facts here. For present purposes it is sufficient to state that unlike the four other tax lien-insurance cases decided this day, no question was presented below as to Travelers respecting policy loans or automatic premium loans and the proper measure of the Government’s recovery. The company professed its willingness to turn over the cash surrender value of its policy to the Government pursuant to a proper order of the court. Travelers, however, made application for an allowance of a setoff for its costs in the proceeding, which consisted almost exclusively of attorney’s fees. The court below denied the company’s request and this determination forms the basis of the present appeal. Travelers asserts that its status in the case at bar has been that of a stakeholder of its policy’s cash surrender value and that by reason thereof, it is entitled to recover its costs out of the fund citing as authority a number of cases dealing with interpleader. Travelers’ claim in the circumstances of this case is ill-founded and does not require extended discussion. The company, of course, was in a fundamental sense a stakeholder in the proceeding below notwithstanding the fact that it occupied the nominal status of defendant rather than interpleader. But it is far from clear that Travelers acted the role of a disinterested party. The Government flatly asserts on this appeal without citing any record references in support of its claim, that Travelers “devoted substantial time and energy to developing and briefing an argument on the automatic premium loan question [which was posed with respect to its codefendant, the Massachusetts Mutual Life Insurance Company].” Brief for Appellee, p. 65. Some substance is given to this assertion by the fact that in its appeal brief filed with this court, Travelers devoted some twenty-three pages of argument to the automatic premium loan and related issues (because of their “fundamental importance to the insurance industry,” Brief for Appellant, p. 5) and only four pages to the cost question. Travelers apparently did not particularize its costs other than as indicated in note 3 supra. In private actions in the nature of interpleader in which the stakeholder asserts or maintains a substantial adversary position, courts properly exercise their discretion to disallow recovery of costs. See Groves v. Sentell, 153 U.S. 465, 485-486, 14 S.Ct. 898, 38 L.Ed. 785 (1894) ; Century Ins. Co. v. First Nat. Bank, 102 F.2d 726, 729 (5 Cir.), cert. denied, 308 U.S. 570, 60 S.Ct. 84, 84 L.Ed. 478 (1939); American Smelting & Refining Co. v. Naviera Andes Peruana, S.A., 208 F.Supp. 164, 171-172 (N.D.Cal. 1962). It would be superfluous, however, to pursue this line of inquiry further. What is more clearly of controlling importance here is the fact that the Government’s delinquency claim against Wilson far exceeded the total amount of its judgment. To allow Travelers to recover its costs, therefore, would be to impair the value of the tax lien. We are of the view that existing law precludes such a result. See United States v. R. F. Ball Const. Co., 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510 (1958) (per curiam); United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268 (1955); Seaboard Sur. Co. v. United States, 306 F.2d 855 (9 Cir. 1962); United States v. Chapman, 281 F.2d 862 (10 Cir. 1960); Narragansett Bay Gardens v. Grant Const. Co., 176 F.Supp. 451 (D.R.I.1959). No other issues being presented on this appeal, the judgment against Travelers Insurance Company will be affirmed. . Those facts set out in the “Tabulation” which are enclosed by parentheses are not in the record of the case. The “Tabulation” must be read with that in mind. . There apparently had been no applications for pay-outs of the policy’s cash surrender value at times pertinent to the Government’s claim and premiums on the policy had been prepaid through the time of judgment in the court below. . The “Affidavit in Support of Application for Counsel Fee” filed by counsel for Travelers stated that “a fair and reasonable charge [for counsel fees] would be $650.00, together with our out-of-pochet expenses in the amount of $7.88.”

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?

Vincent K. LEAKE, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee. No. 14227. United States Court of Appeals, Fourth Circuit. Argued July 24, 1970. Decided Oct. 8, 1970. R. Gordon Smith, Richmond, Va., and H. Lane Kneedler, Charlottesville, Va. (court-assigned), for appellant. Vann H. Lefcoe, Asst. Atty. Gen. of Va., (Andrew P. Miller, Atty. Gen., and Edward J. White, Asst. Atty. Gen., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges. WINTER, Circuit Judge: The petitioner, a state prisoner convicted of forging and uttering, sought a writ of habeas corpus on the ground that his constitutional rights were violated when at his trial evidence was adduced that after his a’rrest he refused to give handwriting exemplars or to make an oral statement, and the prosecutor argued to the jury that these refusals constituted evidence of guilt. The district judge accepted a state court determination that the prosecutor’s argument referred only to the refusal to give handwriting exemplars, and he denied the writ. We will assume, without deciding, that the challenged evidence was inadmissible on constitutional grounds. We are satisfied to affirm on the authority of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), irrespective of the interpretation given to the prosecutor’s argument. I Petitioner’s trial was held on March 29, 1967. ■ Petitioner’s complaint is that during its course, Detective Phillips, the arresting officer, testified as a prosecution witness with regard to post-arrest events; and in the course of narrative chronology of police involvement, he said: At the time that he. [petitioner] was arrested, he was advised of his rights. Mr. Lewis, the magistrate of the City of Richmond, advised him of his rights, at 1:05 p. m. while I was present and he said he did not want to make any statement after he had been advised of his rights. I asked him if he would like to give me some hardwriting that I might like to send away to the FBI Laboratory for handwriting analysis, and he said no. No objection was lodged to this particular testimony after it was given; nor was any motion made to strike any part, although objection was made and overruled with regard to other aspects of the detective’s narrative. In argument to the jury, the prosecutor made this statement; Gentlemen, you heard the testimony [of Detective Phillips], on the stand that this man refused to give his handwriting. It is true he did not have to give it. He did not have to give any statement, and he did not do it. But, on the contrary, what is the action of a man who finds himself in that position? You have to decide that. You have to decide that, and that is one of the features of this case. Objection was lodged to this argument on the ground that it was improper to comment on petitioner’s failure to agree to a handwriting test. The theory of the objection was that petitioner was not required to give his handwriting and there was no evidence that handwriting samples could not be obtained from other sources. The objection was overruled. A subsequent motion for mistrial based upon the same contention was also denied. The testimony and the argument occurred in the course of a one-day trial. The Commonwealth’s other evidence showed that a forgery ring had operated in the City of Richmond and at least twenty-seven forged cheeks had been drawn on State Planters Bank and paid. The scheme had been perpetrated by obtaining possession of a genuine check drawn by the High Constable of Richmond, countersigned by another authorized signer, to the order of Patricia Stanley, representing the proceeds from the sale of an automobile under judicial process in excess of the amount of the judgment the automobile was sold to satisfy. Having obtained possession of it, petitioner and others took the check to a printer and furnished him with paper and a photographic negative of the check. The printer printed similar blank checks with a plate prepared from the negative and delivered them to petitioner’s apartment. The printer was paid $150 by petitioner for his services. After the blank checks were delivered, petitioner and a certain Fred Powell took the blank checks and the Stanley check to the apartment of a certain Goldie Bennett. The three sat at the kitchen table and filled them out. Goldie Bennett inserted the names of fictitious payees and supplied the counter signature. Petitioner forged the signature of the High Constable on some of the checks. Petitioner gave Goldie Bennett a driver’s license and a charge plate in the name of one of the payees and directed her to cash the cheeks. Goldie Bennett then toured various branches of the State Planters Bank and cashed the checks. Over $4,000 in aggregate was obtained from between eight and fourteen bank branches. Of this sum, $2,500 went to pay an attorney’s fee for the defense of Powell on other charges. The identity of the group effecting the forging and uttering was apparently uncovered because the bank had photographs of Goldie Bennett cashing checks at its branches. Payment of his fee was corroborated by the attorney for Powell. The evidence we have summarized was adduced principally from Goldie Bennett and the printer. Both had been charged in connection with the episode. Both had previously committed other crimes, the printer as a juvenile, and Goldie Bennett had other cheek cashing charges pending against her. Petitioner, a previously convicted felon, testified in his own behalf. He offered no alibi, but he denied forging any of the twenty-seven checks in question. He testified to possible bias on the part of Goldie Bennett because of his interference with an illicit relationship between her and Powell. He denied ever meeting the printer and claimed that the printer had given false testimony to obtain leniency in the case pending against him. Petitioner was found guilty and sentenced to sixteen years in the Virginia State Penitentiary. He appealed to the Virginia Supreme Court of Appeals but his appeal was denied. Leake v. Commonwealth, 208 Va. xc (1967). Certiorari to the Supreme Court of the United States was also denied, Leake v. Virginia, 391 U.S. 953, 88 S.Ct. 1856, 20 L.Ed.2d 866 (1968). Petitioner has exhausted his available state remedies. He sought a writ of habeas corpus, which was denied after plenary hearing by the Hustings Court for the City of Richmond, Part II, and his petition for a writ of error to the Virginia Supreme Court of Appeals was also denied. Leake v. Peyton, 209 Va. lxix (1969). The Hustings Court ruled that the disputed testimony of Detective Phillips and the argument of the prosecutor referred only to “handwriting.” When petitioner sought a writ of habeas corpus from the district judge, he concluded that the state court proceedings were adequate under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). He accepted the finding of the Hustings Court that the prosecutor’s argument referred only to petitioner’s failure to furnish a handwriting exemplar and not to his decision to remain silent following his arrest. He ruled that, since exemplars were not protected by the fifth amendment guarantee against self-incrimination, there had been no error by the trial court in permitting the prosecutor to comment upon petitioner’s failure to furnish an exemplar. II We assume, without deciding, that admission of the evidence that petitioner declined to give an oral statement and that argument that his refusal was evidence of guilt (if, as petitioner contends, the prosecutor’s argument be so interpreted) constituted a violation of constitutional right under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We also assume, without deciding, that the same is true with regard to testimony concerning the refusal to give handwriting exemplars and the prosecutor’s argument (if it be interpreted as found by the state habeas judge and the district judge) that this was evidence of guilt. See Schmerber v. California, 384 U.S. 757, 765, n. 9, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nevertheless, we cannot read the record as permitting any reasonable doubt that, absent the tainted evidence and argument, fair-minded jurors could not have acquitted petitioner. Viewed as a whole, the incriminating evidentiary value of petitioner’s refusal to make an oral or written statement and his refusal to give handwriting exemplars was merely cumulative of the overwhelming evidence of his guilt. Argument based thereon was minimal. We are thus constrained to conclude that the tainted evidence and argument, if any, constituted harmless error. Chapman v. California, supra; Harrington v. California, supra; see also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Note, Harmless Constitutional Error; A Reappraisal, 83 Harv.L.Rev. 814 (1970). Affirmed.

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

Did the court declare any statute or administrative action unconstitutional?

INTERNATIONAL SHOE CO. v. KAHN. In re KAHN. Circuit Court of Appeals, Fourth Circuit. October 18, 1927. No. 2611. 1. Bankruptcy <@=407(6)— Discharge should be denied bankrupt, who, to obtain credit, makes false financial statement, providing that it shall be binding for continuing credit, unless changed. A false financial statement may have a continuing effect, so as to bind one who corruptly issues it to obtain credit, and so where a bankrupt, to obtain credit, makes a false financial statement, which provides that it shall be binding for continuing credit, unless changed, and a creditor extends credit on the strength of the statement, within the time in which bankrupt intended statement to be effective, discharge should be denied. 2. Bankruptcy <@=407(12) — Test whether false financial statement bars discharge is whether statement was binding on bankrupt when acted on. Test whether a false financial statement, given on one date and acted on at a later date, bars discharge of bankrupt, is whether at the time acted on the statement was still binding on bankrupt, which depends on whether the sale on credit was the proximate result of the statement, and whether its original falsity was the thing that worked the mischief. 3. Bankruptcy <@=407(12) — Mere lapse of three years from bankrupt’s issuanoe of financial statement held not alone to determine whether it was in force when credit was extended. Mere lapse of three years between time when bankrupt issued financial statement, and extension of credit thereon, held not alone to determine whether it was still in force and binding on bankrupt when credit was extended. 4. Bankruptcy <@=407(12) — Whether financial statement is to be given continuing effect for any given period depends on parties’ intent. Whether a financial statement is to be given a continuing effect for any period of time, so as to bind bankrupt, who issued it, depends m the first place on the intention of the parties. 5. Bankruptcy <@=407(12) — Bankrupt held justified in believing financial statement was accepted as representing his financial condition» for ensuing year only, notwithstanding provision making it binding until changed. Notwithstanding provision of financial statement, issued by bankrupt to obtain credit, that it should stand good for subsequent purchases unless there should be a material change in his financial condition, with promise to give notice of any such change, bankrupt held justified in believing that statement would be accepted as representing his financial situation for the ensuing year only, in view of recital that financial statements should be made at least once a year. 6. Bankruptcy <@=407(1) — Statutory grounds for denying discharge to bankrupt are not * to be extended by construction (Bankruptcy Act, § 14b, being 11 USCA § 32[b]). Grounds for denying discharge to bankrupt, specified in Bankruptcy Act, § 34b (11 USCA § 32), are not to be extended by construction. 7. Bankruptcy <@=407(6) — To prevent discharge, bankrupt must have obtained money or property on credit on false writing, and breach of contract, deliberate fraud, oral statements, or conduct are insufficient (Bankruptcy Act, § 14b, being 11 USCA § 32[b]). To prevent discharge in bankruptcy, under Bankruptcy Act, § 14b (11 USGA § 32) bankrupt must have obtained money or property on credit on materially false statement in writing, and breach of contract, or even deliberate fraud, or oral statements or conduct of bankrupt, no matter how false and fraudulent, are insufficient. 8. Bankruptcy <@=407(12) — Bankrupt’s failure to notify creditor of ohange in financial condition, shown by three year old financial statement, held not to defeat discharge; “false written statement” (Bankruptcy Act, § 14b, being 11 USCA § 32[b]). Bankrupt’s failure to notify creditor of material change in financial condition, in accordance with agreement on printed form of statement for obtaining credit, made three years before any material change occurred, held not to constitute the making of a materially “false written statement,” within Bankruptcy Act, § 14b (11 USCA § 32), defeating his discharge in bankruptcy. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, False Statement.] Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville, in Bankruptcy; Edwin Y. Webb, Judge. In the matter of T. L. Kahn, bankrupt. From an order (16 F.[2d] 501) discharging bankrupt over objections of the International Shoe Company, a creditor, said creditor appeals. Affirmed. Zeb F. Curtis, of Asheville, N. C. (J. D. Williamson, of St. Louis, Mo., on the brief), for appellant. . R. R. Williams, of Asheville, N. C., for appellee. Before NORTHCOTI, Circuit Judge, and SOPER and ERNEST F. COCHRAN, District Judges. SOPER, District Judge. T. L. Kahn, having been duly adjudicated a bankrupt in the District Court on January 5,1926, filed a petition for discharge from his debts under the Bankruptcy Act (11 USCA). The International Shoe Company, a creditor of the bankrupt, referred to herein as the company,' filed specifications in opposition to the discharge on the ground that the bankrupt had obtained certain goods, wares, and merchandise from it upon a materially false state-s ment in writing made by him for the purpose of obtaining credit from the company. The statement in question was made by him on April 19, 1922, upon a printed form furnished by the company. It showed that the bankrupt was then possessed of assets in the amount of $31,000, including Liberty Bonds in the amount of $4,000, and owed liabilities to the amount of $6,000, so that his net worth was $25,000. The form contained the following words in print, over the signature of the bankrupt: “The above statement is made for the purpose of obtaining credit from * * * International Shoe Company, now or hereafter, and the same shall stand good as to any subsequent purchases unless there should be a material change, in which ease I will notify them before making further purchases from them.” It also contained the following printed statement over the signature of the company: “Please fill out the following blank and return the same to us. This statement will be used by us only for our confidential information. It is a well-established business principle that financial statements should be made at least once a year. The largest and strongest finance companies do this, because they recognize that character, capital, and ability are the basis of all credits. * * * In business it is necessary to take careful inventory at least once a year; to keep an accurate set of books, showing all purchases and sales, both cash and credit.” When the statement was made, it was a correct account of the bankrupt’s financial condition. Thereafter from time to time the company sold goods to the bankrupt on credit. During 1922 there were sales on credit to the amount of $3,852; in 1923, $4,738.19; in 1924, $4,673.57. All. of these bills were paid when they matured. Between -May 15, 1925, and October 31,1925, the company sold to the bankrupt merchandise to-the amount of $2;635.30, of which $1,623.04 remained unpaid at the time of bankruptcy. Thus it appears, that the bankrupt paid for nearly 90 per cent., of the goods purchased by him in the four-year period, and greatly reduced the amount of his purchases during the last year, when, it is said, the fraud occurred. These facts, taken alone, do not tend to prove an intent to defraud on his part. But a material change had taken place in the financial condition of the bankrupt when purchases were made in the early part of 1925. He then owed the sum of $12,000, instead of $5,000, and his net worth was' not $25,000, as shown by the written statement. He had also disposed of the Liberty Bonds. But he did not notify the company, as he had agreed to do. The company, on its part, sold the goods during 1925, relying on the statement of April 19, 1922, and believing that the financial condition of the bankrupt remained unchanged. Had it known of the change, it would not have accepted the orders and extended the credit. The case was tried on an agreed statement of facts, and the bankrupt did not testify. On this statement of facts, the District Court decided that the discharge should be granted. The court was of the opinion that there was no evidence that the bankrupt de- . signedly, and with corrupt intent, undertook to deceive the company for the purpose of obtaining the goods in 1925. The company did not at any time in the three preceding years remind the bankrupt of his earlier financial statement, and the court thought that it was reasonable to assume that the bankrupt forgot (if he ever read the finely printed words) his promise to notify the company of a change in his financial condition. The court, moreover, held that a broken promise of the buyer, contained in a true statement of his resources, whereby he agreed to notify the seller of a change in financial condition, did not bring him within the terms of section 14b of the Bankruptcy Act (11 USCA § 32), so as to require the denial of the discharge. There can be no doubt that a false, financial staetment may have a continuing effect, so as to bind one who corruptly issues it with the intention of óbtaining credit. The Supreme Court in Gerdes v. Lustgarten, 266 U. S. 321, 45 S. Ct. 107, 69 L. Ed. 309, has expressly approved the rule laid down in Ragan v. Cotton (C. C. A. 5th Circuit) 200 F. 546, 550, and Haimowich v. Mandel (C. C. A. 3d Circuit) 243 F. 338, 342. Where a bankrupt, for the purpose of obtaining credit, has made a false financial statement, which provides that it shall be binding for continuing credit, unless changed, and a creditor has extended credit upon the strength of the statement, within the time in which the bankrupt intended the statement to serve that end, the discharge should be denied. The test whether a false statement, given upon one date and acted upon at a later date, operates as a bar to a discharge, is whether at that time the false statement was still in force and binding upon the bankrupt, to be determined according as it is found that the sale on credit was or was not the proximate result of the statement, and that its original falsity was or was not the thing that worked the mischief, It follows that the mere lapse of time between the statement in 1922, and the extension of credit in 1925, does not of itself determine the ease; but there are other circumstances present which persuade us that the decision of the District Court was correct. Whether or not a statement of financial condition is to be given a continuing effect for any given period of time depends in the first place upon the intention of the parties. We are of the opinion that the statement in this case indicates that it was not to be kept alive as a true account of the bankrupt’s condition for so long a period as three years, notwithstanding the express provision that it should stand good for subsequent purchases, unless there should be a material change, and the promise of the buyer to give notice of such change. Obviously there must be some limit to the vitality of such a promise, although none is expressed. Considering the exigencies of business affairs, and the general practice current in business circles, it would be unreasonable to construe a statement as continuing indefinitely, in the absence of a clear expression of intent in the instrument itself. In the case at bar there is the distinct announcement on the part of the company, coupled with its request for a statement, that financial statements should be made at least once a year. We believe, therefore, that the bankrupt was justified in concluding that the statement which he gave in April, 1922, would be accepted as representing his financial situation for the ensuing year, but that thereafter it would not be considered as a fair statement of his financial responsibility. The decision of the case nfeed not rest on* this ground alone. The more important consideration is that the written statement upon which the objector relies was a true statement when it was given. It must therefore have been remade or renewed after it became false, in order that it may be used as ground for the refusal of the discharge. This was done in effect, the objector argues when, under changed conditions, the bankrupt ordered goods in 1925 and failed to carry out his promise to give notice of the change. It is contended that thereby he renewed the original statement, and asserted that his condition! in 1925 was substantially the same as in 1922.. This argument would be more persuasive-if the company were merely attempting to-show that it had parted with property by reason of fraud practiced upon it by the-bankrupt, as in Howell v. Berger, 19 Misc. Rep. 315, 44 N. Y. S. 259, and Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 A. 390, 10 L. R. A. (N. S.) 245, which the company cites. But the burden upon the company is more exacting, and its object is more precise. The purpose of the suit is to withhold from the bankrupt his discharge, which may be done only if it is proved that the bankrupt has committed one or more of the acts specified in section 14b of the Bankruptcy Aet. It is well settled that the provisions of this section, wherein grounds in opposition are specified, are not to be extended by construction. Robinson v. Williston (C. C. A.) 266 F. 970, In re Kaufman (C. C. A.) 239 F. 305; In re Jacobs (C. C. A.) 241 F. 620; Peck v. Lowenbein (C. C. A.) 178 F. 178. The sole question is whether the bankrupt in 1925 made a materially false statement in writing to the company for the pur■pose of obtaining credit. The only written statement in the case was true when it was given. In what manner was it reissued, so as to become a false written statement in 1925"/ It was not mentioned in that year by either party. In faet, it was never referred to in any communication between the parties after it was made in 1922. Republication, if any there was, must be inferred solely from the bankrupt’s purchases in 1925, and his breach of the promise to communicate change of financial condition. Reprehensible as this course of dealing may have been, assuming that the promise was still effective, it did not amount to the issuance of a false statement in writing. It must be borne in mind that it is not enough to prove breach of contract, or even deliberate fraud. Oral statements or conduct of the bankrupt, no matter how false and fraudulent, are not within the terms of the statute. False writing must be proved if the discharge of the bankrupt is to be refused, under the clause of the act in question. We do not doubt that circumstances may arise in which a written statement, originally true, may be so reaffirmed as to constitute under changed conditions a false statement in writing, but'such circumstances, in our opinion, are not found in the present case. 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 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?

SELIGSON v. GOLDSMITH. No. 249. Circuit Court of Appeals, Second Circuit. June 26, 1942. Irwin Isaacs, of New York City, for appellant. Allan D. Emil, of New York City (George Kossoy, of New York City, of counsel), for appellee. : Before L. HAND, SWAN, and FRANK, circuit judges. L. HAND, Circuit Judge. This appeal is from an order of the District Court which confirmed a referee’s order, directing the respondent, Jack Goldsmith, to deliver to the trustee 145 “black kid plates,” the-property of the bankrupt, or in place thereof the value of the “plates” found to be $1,812.50. The bankrupt was a corporation dealing in furs in the City of New York; the respondent and one David Grossman were its only shareholders, directors and officers. In the course of its business it shipped to the Novelty Fur Company of Chicago 200 skins, known as “black kid plates,” invoiced at $2,500. About two weeks later the consignee returned these skins to another firm, the bankrupt having in the meantime been ousted from its place of business. Goldsmith immediately removed the returned skins from this firm to another firm in New York, and soon thereafter carried them to the home in Long Island of his brother-in-law, Fruitstone, where he put them in the cellar. He did not live with Fruitstone but with his parents in the Borough of Brooklyn, where he had no room to store the skins. His story was that about four or five months after he had left the skins with Fruitstone he was awakened from his sleep one Sunday morning and was told that the Fruitstone house had been robbed; he went there at once and found that most of the skins were gone. Fruitstone told him that he had noticed on that morning that the window leading to the basement had been broken. He did not inform the police or take any other action except to turn over to the trustee 55 skins which the thief had left in the cellar, and which the trustee later sold for $243.80. The referee believed the whole story to be a fabrication; he found that Goldsmith had retained in his custody or under his control all 200 of the skins except the 55 which he returned, and that their value was the same as that at which they had been consigned to the Novelty Fur Company, $12.50' a skin; and he directed Goldsmith to turn them over, or in the alternative to pay $1,812.50. This alternative can be sustained only on the theory that if he sold the skins, he sold them at the invoice price. Goldsmith appealed on the ground that the evidence does not support the finding that he stole the skins at all; and that even if it did, there was no basis for assuming that if he sold them, he sold them for $12.50, or that he had the proceeds still in his possession at the time of the hearings. The relevant dates are as follows: The skins were returned to the bankrupt not later than January, 1939; the adjudication in bankruptcy was on June 22, 1939; the order of the referee was entered on October 21, 1941. This story of a robbery followed a well-know pattern in such cases and no sane person would believe it; if courts allowed themselves to be fobbed off with such silly tales, there would be an end to the administration of justice. In re Abesbaum, 2 Cir., 70 F.2d 628. There can be no doubt that sometime during the spring of 1939 Goldsmith stole the skins, and if the question were merely of his liability to the trustee for their value, the price at which they were sold in the preceding November might be evidence enough. But a “turnover” order does not limit itself to finding the bankrupt liable for taking the goods; it must assume in addition to find that he still has control over them and to specify what and how many they are (In re Redbord, 2 Cir., 3 F.2d 793) — a finding essential to the commitment for contempt for which the order is a foundation; and since Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419, that finding is res judicata in the contempt proceeding itself. Yet the finding is in fact seldom, if ever, true in the case of salable goods, particularly when, as generally happens, the order is entered a year or more after the theft and at the end of a prolonged hearing. The bankrupt does not keep such goods "in kind for he has no real use for them in that form, often not even when he contemplates setting up in business once more. Like other stolen goods, they are reduced to cash as soon as possible, and then nearly always at a heavy sacrifice. Moreover, the bankrupt will not keep the proceeds intact for very long; he needs ready money, and if he has stolen from his creditors, like other thieves he will enjoy the loot while he can. Whatever may be thought of the force of these considerations as demonstrating that the finding is sure to be false at least in part, we cannot conceive how anyone can believe that it is “supported” by that “clear and convincing evidence” which must exist to satisfy the test laid down in Oriel v. Russell, supra, 278 U.S. 358, 362, 49 S.Ct. 173, 174, 73 L.Ed. 419. Courts have recognized this difficulty, and they have usually met it by the device of a presumption, more accurately perhaps by a shift in the burden of proof. They have said that, once the trustee has shown that the bankrupt took the goods, he is “presumed” to continue in possession of them until he shows how he disposed of them, and that if, as here for example, his explanation is patently false, he still has possession of them in fact — though that is not in the least the only reasonable alternative. We cite in the margin a number of such decisions, which are not, however, wholly unanimous. In Danish v. Sofranski, 2 Cir., 93 F.2d 424, we tried to prick a path — not it is true guided by seamless logic, as we observed at the time — in the hope of finding something which would harmonize the decisions; but by a divided court we later overruled this attempt in Re Pinsky-Lapin & Co., 2 Cir., 98 F.2d 776, and it was better that we did. The situation at first blush is indeed ideal for raising a presumption or for shifting the burden of proof; the bankrupt has all the information, the trustee has none, and every consideration of justice demands that a thief should be forced to declare what he has done with the stolen goods. Nevertheless, like all such procedural devices, this one can be justified, not for its own sake, but only so far as it leads to discovery of the truth, and if it is plain that it does not do so, it is indefensible. It does not in fact lead to the truth at all, for the bankrupt’s mouth is effectively closed to what would nine times out of ten be a good total, or at least a partial, defense; i. e., that he has made away with the goods. But this he cannot say, not because the law forbids, but because if he does, it leads him straight to the prison door. § 29, sub. b (1), Bankruptcy Act, 11 U.S.C.A. § 52, sub. b(l). However desirable that consummation may be, this fact makes the presumption unsuitable for its only proper purpose of eliciting the facts on whose existence the relief hangs; facts which in this situation the courts know and everyone else knows not to exist. For these reasons, were the matter now before us as res integra, we should reverse the order. It would not disturb us that without the presumption such proceedings would generally fail, except when they were directed against specific articles like books of account. We are not persuaded that after allowances and expenses are all paid, substantial sums often reach the creditors, or indeed that the real reason for the proceeding is to collect assets at all. Its justification in the minds of both bench and bar lies rather, either in forcing a retributive payment out of the bankrupt or his family, or in merely punishing him for his theft; either alternative being thought commendable. Even if the absence of any other relief were ever an excuse for perverting legal proceedings from their avowed purpose, or for basing relief upon facts which cannot be known, other relief is here in fact available, for these offenders are extremely vulnerable and can ordinarily be successfully prosecuted, as every judge of experience knows. And though that were not so, it would be at too high a cost that the law should proceed in the face of a basic ignorance which it dares not aver and must cover by a transparent fiction; such abuse of its processes discredits it generally and impairs its integrity, which in the end depends upon an unswerving allegiance to the truth, so far as truth is accessible. Nevertheless, we do not feel justified in overruling a body of authority so nearly uniform, to the building of which we have contributed so largely. The Supreme Court has never committed itself to the presumption, and perhaps at some time may think it desirable finally to determine the question. Furthermore, we shall attempt no nice distinctions, as between an order which unconditionally directs the respondent to surrender the goods, and one which gives him the alternative of turning over their putative proceeds, fixed at their fair value whdn they were stolen. We can see no reason to strain at the second, if we can swallow the first; if an order is valid which rests upon a presumption that all the goods remain in kind, it should be valid, though it contains some concession to reality, even if that be loaded with its own proper charge of baseless assumption. Order affirmed. In re D. Levy & Co., 2 Cir., 142 F. 442; In re Meier, 8 Cir., 182 P. 799; Kirsner v. Taliaferro, 4 Cir., 202 F. 51, 58; Good v. Kane, 8 Cir., 211 F. 956; In re Graning, 2 Cir., 229 F. 370, Ann. Cas.1917B, 1094; In re Chavkin, 2 Cir., 249 F. 342; In re H. Magen Co., 2 Cir., 10 F.2d 91; Reiss v. Reardon, 8 Cir., 18 F.2d 200; Sarkes v. Wells, 6 Cir., 37 F.2d 339; Clements v. Coppin, 9 Cir., 72 F.2d 796; Levin v. Coleman, 3 Cir., 72 F.2d 997; In re Steinreich Associates, Inc., 2 Cir., 83 F.2d 254, certiorari denied sub nom. Magurno v. O’Neil, 299 U.S. 571, 57 S.Ct. 35, 81 L.Ed. 421; In re Pinsky-Lapin Co., 2 Cir., 98 F.2d 776. Samel v. Dodd, 5 Cir., 142 F. 68, certiorari denied 201 U.S. 646, 26 S.Ct. 761, 50 L.Ed. 903; In re Goldman, 1 Cir., 62 F.2d 421; In re Schoenberg, 2 Cir., 70 F.2d 321; In re J. L. Marks & Co., 7 Cir., 85 F.2d 392; Danish v. Sofranski, 2 Cir., 93 F.2d 424, certiorari denied 303 U.S. 641, 58 S.Ct. 610, 82 L.Ed. 1101.

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

CONSUMERS UNION OF the UNITED STATES, INC. and Public Citizen’s Health Research Group, Appellants, v. CONSUMER PRODUCT SAFETY COMMISSION et al. No. 75-2059. United States Court of Appeals, District of Columbia Circuit. Dec. 22, 1978. Alan B. Morrison and Diane B. Cohn, Washington, D. C., for appellants Consumers Union of the U. S. and Public Citizens Health Research Group, filed a supplemental memorandum. Leonard Schaitman and Frederic D. Cohen, Attys., Dept. of Justice, Washington, D. C., for appellee Consumer Product Safety Commission, filed a supplemental memorandum. Harry L. Shniderman and James M. McHaney, Jr., Washington, D. C., for appellees Aeronutronic Ford Corp. and GTE Sylvania, Inc.; Robert W. Steele and Alan M. Grimaldi, Washington, D. C., for appellee General Elec. Co.; Bernard G. Segal, Charles C. Hileman, III, and Deena Jo Schneider, Philadelphia, Pa., for appellee RCA Corp.; J. Wallace Adair, Washington, D. C., for appellee Admiral Corp.; Stephen B. Clarkson, Washington, D. C., for appellees The Magnavox Co. and Zenith Radio Corp.; Nancy L. Buc, Washington, D. C., for appellee Matsushita Elec. Co.; James M. Johnstone, Washington, D. C., for appellee Motorola, Inc.; William L. Dickey, Washington, D. C., for appellee Sharp Electronics Corporation; Lawrence R. Walders, Washington, D. C., for appellee Toshiba-America, Inc.; William F. Patten and D. Clifford Crook, III, Washington, D. C., for appellee Warwick Electronics, Inc.; filed a supplemental memorandum. Before WRIGHT, Chief Judge, and BA-ZELON and ROBINSON, Circuit Judges. Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: At the core of this litigation is appellants’ challenge under the Freedom of Information Act (FOIA) to the Consumer Product Safety Commission’s failure to disclose data concerning accidents attributable to the operation of television sets. When their cause was first before us, we reversed the District Court’s ruling that no case or controversy was presented. That determination had been premised on the Commission’s acknowledged willingness to release the data save for a ban imposed thereon by a preliminary injunction awarded television manufacturers by the District Court for the District of Delaware in a reverse-FOIA suit involving the same information. We held that the Delaware action, to which appellants were not parties, was no obstacle to their effort in the District Court here. We reasoned that a preliminary injunction is designed merely to preserve the status quo ante pending final decision, and “ ‘is not an adjudication of rights in any proper sense of the term... Because the Delaware court had entered an order “closing out” the case before any final stage had been reached, we concluded that the Delaware proceeding was not “an insuperable barrier to the suit at bar.” We later were informed that the Delaware action had not really been terminated, but that the “closing out” order was apparently a means merely of placating the periodic call for statistics reflecting judicial efficiency in processing caseloads. In denying rehearing, we noted that appellants had still not been added as parties to the Delaware proceedings, and explained that “[sjince all necessary parties are before the District Court here, there appears no reason why the litigation should not proceed here, particularly since this is the venue authorized by the FOIA.” Our prior opinions spurred the manufacturers to renew vigorously their pursuit of a judgment on the merits in Delaware, and appellants made no effort to have the District Court here enjoin them from that course. And the Commission, at long last, moved in the Delaware court for a change of venue to the District of Columbia, but added no alternative motion to join the FOIA requesters in the Delaware case — in which, we are now told, their rights have been fully and finally adjudicated. The Delaware court denied transfer primarily on the ground that, though the Commission faced the possibility of inconsistent outcomes on the merits, “[t]he time for the Commission to have moved for a transfer of these cases was in the early stages of this litigation in 1975 before all the effort and work had been expended here.” While a petition to the Supreme Court for a writ of certiorari in this case was pending, the Delaware court issued a permanent injunction. The Supreme Court subsequently granted certiorari and remanded the case to us “for further consideration in light of the permanent injunction.” Thus we are now brought face-to-face with the issue we had earlier reserved: Does a judgment in favor of information-suppliers in a reverse-FOIA suit bar requesters not parties thereto from litigating their contention that the Freedom of Information Act mandates disclosure? The answer, we think, becomes clear once one investigates the interrelationship of the Act and reverse-FOIA suits in light of traditional principles governing preclusion of subsequent litigation. I. THE RATIONALES FOR FOIA AND REVERSE-FOIA SUITS Before the Freedom of Information Act was adopted, official dissemination of information was frequently marked by caprice, and suits to obtain information or to forestall its release met with “far from uniform” judicial treatment. The Act was intended to rationalize agency disclosure policies by providing a mechanism for balancing the public’s “right to know” against the agency’s interest in preserving confidentiality. If a court finds that the Act applies to material for which a request has been properly made, that is the end of the matter; the material must be disclosed for the Act effectuates a eongressional judgment that in those circumstances no public or private interest in secrecy outweighs the benefits attending public access. Moreover, in determining whether the Act is operative, the legislative command that disclosure be the rule and exemptions be narrowly construed must be sedulously observed. But Congress in the same breath specified classes of information to which the Act — and its policy of openness —“do[ ] not apply.” When a court finds that requested material falls into one of these categories, and resultantly that its divulgence is not compelled by the Act, the propriety of voluntary disclosure by the agency must hinge on reconciliation with such other law as is pertinent — whether statute, regulation, the administrative “common law” or general principles of equity. Some of these residual legal rules may endow private parties with legally cognizable interests in the confidentiality of exempted information; others may bestow on some a greater entitlement to information than the Act itself gives the general public. Since the agency’s purposes will only coincidentally correspond with those of nongovernmental parties, it would be folly to entrust these often-critical private interests to unreviewable bureaucratic discretion. This court has accordingly held that when an agency asserts its intention to comply with a demand for information, parties who would be aggrieved by compliance may sue for a declaration whether that release would be lawful. But such litigants must first pass through the needle’s eye of the Freedom of Information Act, for if the Act calls for disclosure they have, of course, no right whatsoever to confidentiality. Only if the Act does not govern need the court examine other sources of law — which may prohibit dissemination, give the agency judicially reviewable or unreviewable discretion to release or retain, or even mandate disclosure, depending on the circumstances. Reverse-FOIA suits therefore are no blight upon the landscape of the law, but the propriety of their role in any scenario must be carefully considered. Enforcement of such rights of confidentiality as federal law might otherwise recognize must not be allowed to choke the free flow of data contemplated by Congress in the Freedom of Information Act. Surely such an obstruction would in interposed if a judgment adverse to the agency in a reverse-FOIA action were permitted to bar later FOIA suits for the documents in question when no one interested in obtaining the material was a party to the earlier litigation. In our view, no such preemption is warranted, as this case tellingly exemplifies. II. THEORIES FOR PRECLUSION OF SUBSEQUENT FOIA SUITS Federal courts in different jurisdictions may sometimes reach conflicting conclusions on the duties of an administrative agency, but normally without placing it in an impossible dilemma or bringing on a direct clash of judicial power. A serious conundrum, however, arises when, as here, the subject matter is information and the dispute is over whether it should be disclosed to the public. Once released pursuant to judicial decree, the data cannot be bottled up within the court’s geographical area; with modern communications, information made public at any one point may soon be available throughout the country, often within moments. By the same token, when a court orders an agency to retain information, its edict is absolutely useless unless it stops agency action everywhere. Consequently, the first court to decide — in either a FOIA or a reverse-FOIA suit — will have pronounced a judgment that might reach across the Nation, or, on the other hand, might not have any practical effect even in its own jurisdictional domain. That is exactly the situation here: The Delaware proceeding began, and the Commission was temporarily enjoined, before the appellant-requesters filed their own action in the District of Columbia seeking disclosure. By the time appellants sued, the District Court, here knew that should the litigation before it continue, a decision contrary to that of the Delaware court might be reached, and that the Commission could not possibly comply with each of the conflicting orders. Thus focused, the issue is the proper response of the court chronologically second. We earlier rejected one solution — dismissal for absence of a case or controversy — and we adhere to that position for the reasons then stated. That still leaves other alternatives — dismissal on a theory of stare decisis, collateral estoppel or comity, or continuation of the suit in some manner. For more than ample reason, we have chosen the latter course. A. Stare Decisis We surely do not gainsay that “the doctrine of stare decisis is still a powerful force in our jurisprudence.” So, a court resolving a FOIA claim may choose to defer to a previous judicial decision that the Act does or does not apply to particular documents, whether the prior action sought disclosure or restraint. It has not, however, been our experience that federal judges are either careless or timorous. The notion that any would defer on stare decisis grounds to a decision by a co-ordinate court with which he disagreed is unworthy of comment. B. Collateral Estoppel Furthermore, the doctrine of collateral estoppel, which does bind parties to a previous suit to such determinations of material issues as are encompassed in the judgment, only rarely precludes nonparties from litigating the same issues afresh. If the FOIA applicant has neither been a party nor otherwise represented in a prior successful reverse-FOIA suit, he will not be blocked from taking his controversy to the courts. The only parties here who were litigants in Delaware are the Consumer Product Safety Commission and the manufacturers who sought to prevent disclosure of materials that the Commission was prepared to turn over to appellants. An agency’s interests in FOIA suits of either stripe diverge markedly from private interests, and raise serious doubt whether the agency could ever be deemed to represent members of the public. Indeed, congressional appreciation of that divergence underlies the Act. The institutional predilections that distinguish the agency’s position from the citizens argue against permitting the Commission to do via litigation what it may not do by agreement — to bar applicants from information to which the Act mandates access. Far less do they justify departure from the rule, articulated in the milieu of antitrust enforcement, that “just as the Government is not bound by litigation to which it is a stranger, so private parties, similarly situated, are not bound by government litigation.” Nor can the agency’s role in reverseFOIA litigation be likened to that of the named representative of a class in a defendant class action, and thus raise the spectre that a judgment against the agency would extend to bind all putative members of the hypothetical class it supposedly represents. At the outset, the clash of purposes would render the bureaucracy suspect as a representative of any class composed of FOIA requesters. Even passing that, when — as in the present circumstances — no class has been convened, no preclusive effect can possibly follow, and the public’s right to know remains secure. C. Comity That brings us lastly to comity, here reflected in the principle that “[o]rdinarily, the court first acquiring jurisdiction of a controversy should be allowed to proceed with it without interference from other courts under suits subsequently instituted.” Though we have not the smallest quarrel with that time-honored dogma, it should not be permitted to hold sway outside situations in which it was designed to apply. Created to assure judicial efficiency and to reflect abiding respect for other courts, the doctrine surely does not contemplate that fundamental rights of citizens will be adjudicated in forums from which they are absent. In fact, though perhaps subconsciously at times, the courts have not allowed comity to be debased in such a fashion. The decisions invoking the principle involve circumstances in which the plaintiff in the later federal suit was a party to the earlier action involving the same issues and subject matter. When everyone with an interest could have had his claim resolved in one court, it would be senseless to allow some of the parties to initiate concurrent litigation over the same dispute. But that is not this ease. Some — at least appellants — with a stake in the controversy were not before the Delaware court, and accordingly the principle of comity is inapplicable. Even if comity might be thought at all relevant, it would not outweigh the non-parties’ right, guaranteed by the Act and the Constitution to have their claims adjudicated. III. ACCOMMODATING FOIA AND REVERSE-FOIA SUITS The sum of the foregoing is that none of the familiar anti-relitigation doctrines operates to deprive nonparty requesters of their right to sue for enforcement of the Freedom of Information Act; rather, they remain unaffected by prior litigation solely between the submitters and the involved agency. One obvious consequence is that federal agencies that are prey to reverse-FOIA suits may by that token find themselves subject to the possibility of inconsistent judgments. Threats of that nature are not unprecedented, however, and there are procedural devices aplenty designed to avoid the hazard of conflicting obligations. Resort to them in the present context, moreover, would have brought about representation of all interests before the court that first addressed the merits, and thereby would have eliminated the problem completely. Another consequence is that reverseFOIA plaintiffs may find that, to prevent judgments in their favor from becoming nugatory, they must join in their lawsuits anyone whose request for information quickened the submitter’s controversy with the agency — or perhaps even, by way of a defendant class action, all those who likely may subsequently make such requests. That, too, can only be salutary, for it will assure that the public’s interest will be represented by at least one of its own. It will also relieve courts of the temptation — to which we earlier succumbed — to undertake a critique of the agency’s litigative strategy- The manufacturer-plaintiffs could have named appellant-requesters as defendants in the Delaware lawsuit, or they could have maintained it as a defendant class action against the Commission and all possible requesters. They did not. The Commission, with some creativity, could have filed an interpleader counterclaim and joined the requesters on the theory that otherwise the Commission might be exposed to multiple accountability and that, in a dispute over disclosure, information is an indivisible res over which the parties contest. It did not. At the very least, the Commission could have urged that the requesters were parties-whose joinder was required under Civil Rule 19. But no consideration was given to the mandates of that rule, though, as we now elucidate, its applicability could hardly have been questioned. If, as the manufacturers and the Commission assert, the Delaware reverseFOIA suit so affected appellants’ interest in disclosure of the information sought that they are now barred from litigating it in the District Court here, the Delaware action certainly could have been said, in the words of Rule 19, “as a practical matter [to] impede [their] ability to protect that interest or. [to] leave [the agency] subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [appellants’] claimed interest.” Indeed, the concept of joinder was created to resolve the problem of conflicting exercise of equity jurisdiction. Rule 19(b) states the considerations that must guide a determination whether one described by Rule 19(a) must be regarded as so. indispensable that the litigation must be dismissed. Those factors include first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. In our view, those factors, had anyone in the Delaware action paused to look at them, surely demanded dismissal of the manufacturers’ Delaware suit, or at least an injunction shaped to impact to the smallest possible extent upon the absent requesters’ interest. Joinder of the requesters would have been the better course, for it would have avoided the duplicative litigation in which we now are unfortunately entangled, but it was not the only solution. A well-crafted judgment in Delaware could have steered clear of any embarrassment to appellants’ claim. Indeed, the inherent tension between reverse-FOIA and FOIA suits could often be mitigated by a rule that, unless the party resisting disclosure joins in his reverse-FOIA suit those seeking release, any injunction therein must be drafted to halt only voluntary disclosure by the agency, and to leave unaffected the requesters’ right to seek a subsequent judicial determination that the Act mandates disclosure. IV. CONCLUSION Appellant requesters were not made parties to the Delaware action, and the effect of that omission on this litigation is, to us, indisputable. A judgment cannot bind those who were not before the court either in person or through some sort of representative. As the Supreme Court has declared, in dealing with situations where “a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties..., no Court can adjudicate directly upon a person’s right, without the party being either actually or constructively before the Court.” This basic tenet of due process can hardly be circumvented through the ritualistic invocation of “comity.” The manufacturers have no valid objection to relitigation of disclosure of this information, “for clearly the plaintiff [in the earlier suit], who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtained] against them.” Nor can the Commission legitimately bemoan the threat of inconsistent obligations since it never attempted to foreclose that possibility by seeking the joinder of appellants in Delaware. The only factor even remotely capable of preventing appellants from prosecuting their FOIA suit toward a result contrary to the broad Delaware reverse-FOIA injunction is their failure to intervene in the proceeding there. We believe, however, that appellants, and perhaps informationrequesters generally, should not suffer from bypasses of this sort. To decide otherwise would force them to accept the choice of, a forum possibly sympathetic to the submitter and surely inconvenient or impossible for the requester. Congress specified the sites proper for judicial consideration of FOIA claims; to allow submitters to force FOIA litigation to occur in other arenas would free the tail to wag the dog. This, in our opinion, is the type of “undue hardship” expressly discountenanced by the Advisory Committee when it discussed amended Rule 19 in 1966. The rule puts the burden on existing parties and the court to bring in those whose presence is necessary or desirable, and to work out a fair solution when joinder is jurisdictionally impossible. A generally applicable theory of waiver by one who declines to voluntarily step into the proceeding would abrogate the rule and its purpose completely. It is the party’s — not the nonparty’s — responsibility to make certain that the court has before it all those needed to enable it to serve the ends of justice. And if the essential nonparty cannot, for reasons of personal jurisdiction, be joined in the suit, then the litigation must proceed elsewhere, if at all. This case, therefore, must finally continue toward a decision on the merits in the District Court for the District of Columbia. Its first task is to analyze closely the Delaware court’s reasoning, for it may turn out that the court here will agree with the Delaware court. Should, however, the court decide that the failure to release the information was indeed improper, it will have to ascertain the relief appropriate in the circumstances. Since the manufacturers are party-defendants, it might consider enjoining them from enforcing their Delaware judgment against the Commission. In short, our decision is a narrow one — that this litigation is not prohibited by the earlier action — and we have not attempted to decide whether or not actual disclosure should be the final result. Remanded. . Our earlier decisions are cited infra notes 4 and 9. . Because of the grounds on which our previous decisions rested, it was unnecessary to deal with the problems that are squarely presented now. . Pub.L. No. 89-554, 80 Stat. 383 (1966), as amended, 5 U.S.C. § 552(a)(3)-(e) (1976). . Consumers Union v. Consumer Prod. Safety Comm’n, 182 U.S.App.D.C. 351, 561 F.2d 349 (1977). . See id. at 356, 561 F.2d 354. . Id. at 359, 561 F.2d at 357. . Id. at 358, 561 F.2d at 356, quoting United States Elec. Lighting Co. v. Metropolitan Club, 6 App.D.C. 536, 544 (1895). . 182 U.S.App.D.C. at 358, 561 F.2d at 356. . Consumers Union v. Consumer Prod. Safety Comm’n, 184 U.S.App.D.C. 146, 147, 565 F.2d 721, 722 (1977). . Id. . GTE Sylvania, Inc. v. Consumer Prod. Safety Comm’n, 438 F.Supp. 208, 212 (D.Del.1977). The court noted that “the Commission does not contend that the convenience of the parties and witnesses requires a transfer of these actions to the District of Columbia.” Id. at 211. . GTE Sylvania, Inc. v. Consumer Prod. Safety Comm’n, 443 F.Supp. 1152 (D.Del.1977), appeal pending, No. 78 1328 (3d Cir.). . GTE Sylvania, Inc. v. Consumers Union, 434 U.S. 1030, 98 S.Ct. 761, 54 L.Ed.2d 778 (1978). . See Consumers Union v. Consumer Prod. Safety Comm’n, supra note 4, 182 U.S.App.D.C. at 359, 561 F.2d at 357. After the remand, we called upon the parties for, and they submitted, supplemental memoranda setting forth their views as to the course the court should take, addressing particularly the question stated in text. . Section 3(c) of the original Administrative Procedure Act, Pub.L. No. 79-404, 60 Stat. 238 (1946), which the Freedom of Information Act replaced, provided that “[s]ave as otherwise required by statute, matters of official record shall in accordance with published rule be made available to persons properly and directly concerned except information held confidential for good cause found.” This section was perceived as “not intended to open up Government files for general inspection,” Attorney General’s Manual on Administrative Procedure Act 25 (1947), and agency responses to requests for information often evidenced an appreciation of secrecy for secrecy’s sake. See S.Rep. No. 813, 89th Cong., 2d Sess. 3-5 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 5-6 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418; EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 832, 35 L.Ed.2d 119, 127-128 (1973); Getman v. NLRB, 146 U.S.App.D.C. 209, 217-218, 450 F.2d 670, 678-679, stay denied, 404 U.S. 1204, 92 S.Ct. 7, 30 L.Ed.2d 8 (1971); Note, Comments on Proposed Amendments to Section 3 of the Administrative Procedure Act: The Freedom of Information Bill, 40 Notre Dame Law. 417, 435-437 (1965). The breadth of agency discretion under § 3(c) was in no way curtailed by the courts, see, e. g., FCC v. Schreiber, 381 U.S. 279, 293, 85 S.Ct. 1459, 1469, 14 L.Ed.2d 383, 393 (1965); cf. Appeal of SEC, 226 F.2d 501, 517-519 (6th Cir. 1955); but cf. Graber Mfg. Co. v. Dixon, 223 F.Supp. 1020 (D.D.C.1963), and that section had little practical effect on prior law. Cf. United States ex rel. Stowell v. Deming, 57 App.D.C. 223, 224, 19 F.2d 697, 698, cert. denied, 275 U.S. 531, 48 S.Ct. 28, 72 L.Ed. 410 (1927). . 1 K. Davis, Administrative Law Treatise § 3.13, at 227 (1958). . See cases cited supra note 15. See also the many cases dealing with the propriety of agency disclosure sua sponte or in the course of agency proceedings. E. g., FCC v. Schreiber, supra note 15; Utah Fuel Co. v. National Bituminous Coal Comm’n, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483 (1939); Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796 (1933); FTC v. Menzies, 145 F.Supp. 164 (D.Md.1956), aff’d on other grounds, 242 F.2d 81 (4th Cir.), cert. denied, 353 U.S. 957, 77 S.Ct. 863, 1 L.Ed.2d 908 (1957). See generally Appeal of SEC, supra note 15, 226 F.2d at 517-519 and cases there cited; J. Chamberlain, N. Dowling & P. Hays, The Judicial Function in Administrative Agencies 112-120 (1942); 1 K. Davis, Administrative Law Treatise § 3.13 (1958 & 1970 Supp.); Rourke, Law Enforcement Through Publicity, 24 U.Chi.L.Rev. 225, 242-247 (1957). . See, e. g., S.Rep. No. 813, supra note 15, at 3: It is the purpose of the present bill... to establish a general policy of full agency disclosure unless information is exempted.. It is essential that agency personnel, and the courts as well, be given definitive guidelines in setting informational policies. . Id. See also EPA v. Mink, supra note 15, 410 U.S. at 79-80, 93 S.Ct. at 832, 35 L.Ed.2d at 127-128. . When no “request for identifiable records” has been made, the statute is not activated. 5 U.S.C. § 552(a)(3) (1976); see S.Rep. No. 813, supra note 15, at 2; cf., e. g., Nader v. Volpe, 151 U.S.App.D.C. 90, 93 n.26, 466 F.2d 261, 264 n.26, 18 A.L.R.Fed. 595 (1972); FTC v. Cinderella Career & Finishing Schools, Inc., 131 U.S.App.D.C. 331, 341 n.15, 404 F.2d 1308, 1318 n.15 (1968) (concurring opinion). See also Westinghouse Elec. Corp. v. United States Nuclear Regulatory Comm’n, 555 F.2d 82, 93-94 (3d Cir. 1977). But see Pennzoil Co. v. FPC, 534 F.2d 627, 630 (5th Cir. 1976); Continental Oil Co. v. FPC, 519 F.2d 31, 36 (5th Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 794 (1976); Union Oil Co. v. FPC, 542 F.2d 1036, 1045 (9th Cir. 1976). . NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 147-148, 95 S.Ct. 1504, 1515, 44 L.Ed.2d 29, 45-46 (1975). . S.Rep. No. 813, supra note 15, at 5-6; see, e. g., Getman v. NLRB, supra note 15, 146 U.S.App.D.C. at 217-219, 450 F.2d at 678-680; Soucie v. David, 145 U.S.App.D.C. 144, 154, 448 F.2d 1067, 1077 (1971). See also Department of the Air Force v. Rose, 425 U.S. 352, 379 n.17, 96 S.Ct. 1592, 1607 n.17, 48 L.Ed.2d 11, 31 n.17 (1976). See generally K. Davis, Administrative Law of the Seventies § 3A.6, at 61 (1976). . See Department of the Air Force v. Rose, supra note 22, 425 U.S. at 361, 96 S.Ct. at 1599-1600, 48 L.Ed.2d at 21, citing EPA v. Mink, supra note 15, 410 U.S. at 79, 93 S.Ct. at 832, 35 L.Ed.2d at 127-128; Vaughn v. Rosen, 157 U.S.App.D.C. 340, 343, 484 F.2d 820, 823 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), aff’d after remand, 173 U.S.App.D.C. 187, 193, 523 F.2d 1136, 1142, 28 A.L.R.Fed. 623 (1975); Soucie v. David, supra note 22, 145 U.S.App.D.C. at 157, 448 F.2d at 1080. . 5 U.S.C. § 552(b) (1976); S.Rep. No. 813, supra note 15, at 3; see, e. g., Administrator v. Robertson, 422 U.S. 255, 261, 95 S.Ct. 2140, 2145, 45 L.Ed.2d 164, 170 (1975); NLRB v. Sears, Roebuck & Co., supra note 21, 421 U.S. at 137, 95 S.Ct. at 1510, 44 L.Ed.2d at 39; DPA v. Mink, supra note 15, 410 U.S. at 74, 93 S.Ct. at 830, 35 L.Ed.2d at 125. Since the Act is “not a withholding statute but a disclosure statute,” S.Rep. No. 813, supra note 15, at 5; see S.Rep. No. 584, 93d Cong., 2d Sess. 6 (1974); H.R.Rep. No. 1419, 92d Cong., 2d Sess. 7 (1972), the mere fact that information falls within one of its exemptions does not of itself outlaw disclosure. See Planning Research Corp. v. FPC, 181 U.S.App.D.C. 33, 36-37 n.4, 555 F.2d 970, 973-974 n.4 (1977), citing S.Rep. No. 584, supra, at 6 and Charles River Park “A”, Inc. v. HUD, 171 U.S.App.D.C. 286, 293, 519 F.2d 935, 942 (1974) and K. Davis, Administrative Law of the Seventies § 3A.5, at 58-61 (1976) and K. Davis, Administrative Law Treatise § 3A.5, at 122 (1970 Supp.); Chrysler Corp. v. Schlesinger, 565 F.2d 1172, 1185 (3d Cir. 1977), cert. granted, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978); Superior Oil Co. v. FERC, 563 F.2d 191, 204 (5th Cir. 1977); Clement, The Rights of Submitters to Prevent Agency Disclosure of Confidential Business Information: The Reverse Freedom of Information Lawsuit, 55 Texas L.Rev. 587, 598-600 (1977); cf. Drachsler, The Freedom of Information Act and the “Right” of Non-Disclosure, 28 Ad.L.Rev. 1, 5-6 (1976); Project, Government Information and the Rights of Citizens, 73 Mich.L.Rev. 971, 1158-1159 (1975); Comment, Reverse Freedom of Information Act Suits: Confidential Information in Search of Protection, 70 Nw.L.Rev. 995, 1010-1011 (1976). See also Associated Dry Goods Corp. v. EEOC, 419 F.Supp. 814, 821 (E.D.Va.1976). But cf. Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190, 1197 (4th Cir. 1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977); McCoy v. Weinberger, 386 F.Supp. 504, 508 (W.D.Ky.1974). . See, e. g., Planning Research Corp. v. FPC, supra note 24, 181 U.S.App.D.C. at 36-37 n.5, 555 F.2d at 973-974 n.5, quoting K. Davis, Administrative Law Treatise § 3A.5, at 122 (1970 Supp.); Charles River Park “A”, Inc. v. HUD, supra note 24, 171 U.S.App.D.C. at 140-141, 519 F.2d at 941-942; Chrysler Corp.

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

Alphonzo EDWARDS, Appellant, v. UNITED STATES of America, Appellee. Nos. 14172, 14175, 14176. United States Court of Appeals District of Columbia Circuit. Argued Dec. 16, 1957. Decided May 9, 1958. Mr. Al. Philip Kane, Washington, D. C. (appointed by this Court), for appellant. Mr. Nathan J. Paulson, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Before Wilbur K. Miller, Bazelon and Burger, Circuit Judges. BURGER, Circuit Judge. Appellant pled guilty to charges of robbery, and was sentenced to prison. Over a year later, he filed a motion for relief under 28 U.S.C. § 2255. A chronological statement of the facts helps to put this appeal in proper perspective: Dec. 11, 1955 — Arrested, confessed orally, later in writing, then hospitalized for narcotic withdrawal illness. Dec. 16, 1955 — After release from hospital Edwards appeared before U. S. Commissioner; waived preliminary hearing. Jan. 23, 1956 — Indicted in three separate indictments (with a co-defendant) for three separate robberies. Jan. 24, 1956 — On defendant’s request District Court appointed counsel. Jan. 27, 1956 — Not guilty plea entered. Feb. 13, 1956 — Not guilty plea withdrawn and guilty plea entered on advice and with assistance of counsel. Mar. 16, 1956 — Sentenced. May 1, 1957 — Moved to vacate sentence under § 2255. Later denied. The last described motion alleged (1) illegal arrest, (2) illegal questioning, (3) illegal search and seizure, and (4) ineffective assistance of counsel. The motion was denied without a hearing, on the grounds it appeared conclusively from the record appellant was entitled to no relief. We granted leave to appeal in forma pauperis. Of the four allegations, only the latter, that of ineffective assistance of counsel, is in itself available for review on a § 2255 motion, and the appeal burden is difficult. Mere improvident strategy, bad tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel, unless taken as a whole the trial was a “mockery of justice.” The specific allegations here are that counsel met with appellant only once, and at that time told him “there is nothing I can do for you,” which, appellant alleges, ‘ shows that counsel never considered weighting [sic] the facts in said case, nor due consideration for preparation for trial.” Also, counsel “deluded” appellant into believing there was nothing to do but plead guilty, and that if he did not, other charges would be brought against him and appellant “would never be free again.” But there was much counsel might have done, appellant now tells us. Counsel might have argued the illegality of the arrest and might have moved to suppress evidence obtained by illegal search and seizure, and illegal confessions. We agree that counsel might have done these things, and perhaps, guided by hindsight, other things; but we do not agree that failure to do so was such ineffective assistance of counsel as to warrant a new trial. But we need not rest our decision on this ground, for an even stronger ground is available. It must be realized that this is not a case in which proof of guilt depended upon a trial. In such cases, the accused usually relies to a great extent on counsel to conduct an effective defense, because the accused does not know enough of the law to do so himself. While the accused may have to take the consequences of a poor defense, he may at least say the fault was not his own. But this is not so when he pleads guilty. Here the deed is his own; here there are not the baffling complexities which require a lawyer for illumination; if voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown. And such is the law. A plea of guilty may not be withdrawn after sentence except to correct a “manifest injustice,” and we find it difficult to imagine how “manifest injustice” could be shown except by proof that the plea was not voluntarily or understandingly made, or a showing that defendant was ignorant of his right to counsel. Certainly ineffective assistance of counsel, as opposed to ignorance of the right to counsel, is immaterial in an attempt to impeach a plea of guilty, except perhaps to the extent that it bears on the issues of voluntariness and understanding. There seems to be little doubt that the plea of guilty was in the present case voluntary. There is no allegation that appellant was induced to plead guilty by any conduct of the police, prosecutor or court, but only that his own counsel’s “bad” advice induced him to plead guilty. This, however, does not itself make out involuntariness. It seems likewise clear that the plea was understandingly made. It may be argued that a plea of guilty is not understandingly made when defendant is unaware of certain technical defenses which might very well make the prosecutor’s job more difficult or even impossible were he put to his proof. However, we think “understandingly” refers merely to the meaning of the charge, and what acts amount to being guilty of the charge, and the consequences of pleading guilty thereto, rather than to dilatory or evidentiary defenses. A refusal years after sentencing to give effect to the latter could scarcely be deemed “manifest injustice” within the meaning of Rule 32(d). Appellant does not try to say he did not do the act charged. He pleads only that, unknown to him, he might have been able to suppress the truth as to certain evidence of his crime, and thus, perhaps defeat justice. He cannot be heard to this end after a voluntary, knowing plea of guilty. Affirmed. . If it be thought a man should not be questioned when ill, or drunk (see Mallory v. United States, 103 U.S.App.D.C. • — , — F.2d —, it should also be remembered that the condition of the subject is indeed determined by questioning. . Appellant’s motion also alleged that he was suffering from narcotics withdrawal symptoms at the time of arraignment, and was hence incompetent during that proceeding, and further alleged that the Commissioner knew this because he committed appellant to the hospital immediately following arraignment. The record shows that appellant was arrested and arraigned on December 16, 1955. However, appellant and the record appear to be in error. Present counsel discovered (after oral argument) that arrest took place on the 11th, and appellant was then hospitalized until the 16th, when he was arraigned and committed to jail. Thus we can assume there were no narcotics withdrawal symptoms at the time of arraignment, and we do not consider the matter further. . Taylor v. United States, 1955, 96 U.S.App.D.C. 379, 226 F.2d 337 (assistance of counsel); Smith v. United States, 1950, 88 U.S.App.D.C. 80, 187 F.2d 192, certiorari denied 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358 (illegal detention and coerced confession); White v. United States, 1956, 98 U.S.App.D.C. 274, 235 F.2d 221 (illegal search and seizure) ; cf. Newman v. United States, 1950, 87 U.S.App.D.C. 419, 184 F.2d 275, certiorari denied 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (illegal arrest). . Diggs v. Welch, 1945, 80 U.S.App.D.C. 5, 148 F.2d 607, certiorari denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002; see also Burton v. United States, 1945, 80 U.S.App.D.C. 208, 151 F.2d 17, certiorari denied 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479; Bishop v. United States, 1955, 96 U.S.App.D.C. 117, 223 F.2d 582, remanded on other grounds 1956, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835. . The motion said nothing of confessions, but the brief argued that any confessions obtained were illegal because obtained before arraignment. Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. After oral argument it was discovered that the confessions had been obtained during the period of claimed incompetence, see note 2 supra, and so it was at least arguable that the confessions were inadmissible for this reason. We do not know whether trial counsel knew this when he advised the plea of guilty. . Fed.R.Crim.P. 11, 18 U.S.C. requires that the court not accept a plea of guilty “without first determining that the plea is made voluntarily with understanding of the nature of the charge.” . Fed.R.Crim.P. 32(d). See Futterman v. United States, 1952, 91 U.S.App.D.C. 331, 202 F.2d 185; Carter v. United States, 5 Cir., 1955, 224 F.2d 563, vacated 350 U.S. 928, 76 S.Ct. 301, 100 L.Ed. 811. . See Fed.R.Crim.P. 11, note 6 supra; Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Waley v. Johnston, 1942, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Smith v. O’Grady, 1940, 312 U.S. 329, 01 S.Ct. 572, 85 L.Ed. 859; and compare Motley v. United States, 5 Cir., 1956, 230 F.2d 110, with Shelton v. United States, 5 Cir., 1957, 246 F.2d 571, reversed 1958, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579. . See Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Evans v. Rives, 1942, 75 U.S.App.D.C. 242, 126 F.2d 633; Parker v. Johnston, D.C.N.D.Cal.1939, 29 F.Supp. 829; cf. McNair v. United States, 1956, 98 U.S.App.D.C. 359, 235 F.2d 850, certiorari denied 352 U.S. 989, 77 S.Ct. 389, 1 L.Ed.2d 368. . See Parker v. Johnston, D.C.N.D.Cal. 1939, 29 F.Supp. 829; cf. Hurst v. United States, 10 Cir., 1950, 180 F.2d 835. . A transcript taken at the time appellant pled guilty discloses that appellant’s counsel stated in open court in the presence of appellant that he (counsel) had advised appellant of his right to a juz-y trial but that appellant desired to plead guilty to the charges; that the Clerk separately and formally asked appellant if he wished to withdraw his guilty plea, which appellant declined to do. Additionally, the Clerk asked appellant “Are you pleading guilty because you are guilty and for no other reason?” to which appellant replied “Yes, sir.” . Diggs v. Welch, 1945, 80 U.S.App.D.C. 5, 148 F.2d 667, certiorari denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002. . See Fed.R.Crim.P. 11, note 6, supra; Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Smith v. United States, 5 Cir., 1956, 238 F.2d 925. . See, e. g., United States v. Sturm, 7 Cir., 1950, 180 F.2d 413, certiorari denied 339 U.S. 986, 70 S.Ct. 100S, 94 L.Ed. 1388; and cf. Moore v. United States, 1957, 101 U.S.App.D.C. 412, 249 F.2d 504; United States v. O’Carter, D.C.S.D.Iowa 1949, 91 F.Supp. 544.

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?

Rebecca L. ROSA, as Personal Representative of Michael Rosa, Deceased, Plaintiff-Appellant/Cross-Appellee. v. Ed CANTRELL, Defendant-Appellee/Cross-Appellant and Matt BIDER, James Callas, and the City of Rock Springs, Defendants-Appellees. Nos. 81-1487, 81-1504. United States Court of Appeals, Tenth Circuit. Dec. 10, 1982. George A. Zunker, Urbigkit & Whitehead, Cheyenne, Wyo., for plaintiff-appellant/cross-appellee. Glenn Parker, Hirst & Applegate, Cliey- ■ enne, Wyo. (James L. Applegate and Harold Frederick Buck, Hirst & Applegate, Cheyenne, Wyo., with him on the brief), for defendant-appellee The City of Rock Springs. Eugene S. Hames, Wood, Ris & Hames, Denver, Colo. (William K. Ris, Wood, Ris & Hames, Denver, Colo., and James E. Fitzgerald, Cheyenne, Wyo., with him on the brief), for defendant-appellee/cross-appellant. Before SETH, Chief Judge, DOYLE, Circuit Judge, and BOHANON, Senior District Judge. Honorable Luther L. Bohanon, Senior District Judge, District of Oklahoma, sitting by designation. WILLIAM E. DOYLE, Circuit Judge. This is a homicide case brought by the wife of the victim of the homicide, one Michael Rosa who was shot and killed by the defendant Cantrell on July 15,1978. It was alleged that this was just two days before Rosa was to have appeared before a grand jury which had been empaneled by.the State to investigate alleged corruption in Rock Springs. At the time Cantrell was employed by the City of Rock Springs, Wyoming as the Public Safety Director. The victim was an undercover agent who worked for the City and was under the supervision of Cantrell. The plaintiff Rebecca Rosa brought the action on July 14, 1980 in the United States District Court for the District of Wyoming. Her status was that of personal representative of her deceased husband. Count One was based on Wyoming’s wrongful death statute, W.S. § 1-38-101, whereas Count Two alleged a cause of action arising under federal law, 42 U.S.C. § 1983. Named as defendants in this latter suit were Cantrell and the City of Rock Springs, Wyoming. The principle issue in the case is whether the trial court erred in dismissing the wrongful death action. The court’s conclusion was that the statute of limitations had run, a conclusion which was reached despite the fact that Cantrell had not been available for the service of summons during the period following the filing. From the date of the filing the sheriff’s office made an effort to locate Cantrell but he was not to be found. Finally on July 29, 1980, some two years following the incident, an alias summons was issued for Cantrell and service was attempted upon him in Douglas, Wyoming. This was unsuccessful. On August 14,1980 a second alias summons was issued for Cantrell and was delivered to the U.S. Marshal in Sweetwater County, Wyoming. This summons, along with the complaint, was left with Cantrell’s wife at their home in Rock Springs. The return of the Marshal stated that on September 4, 1980 he had served a copy of the summons and complaint with a person of suitable age residing in the defendant’s usual place of abode (in Rock Springs). Mrs. Cantrell held the complaint and summons for two weeks during which time she neither reported to the marshal nor did anything. After the two weeks had passed she notified Rosa’s counsel that Ed Cantrell had not been at that address and had not received the service. She further stated she did not know his whereabouts. However, personal service was ultimately made on Cantrell in Fall River County, South Dakota, on October 17, 1980. Cantrell’s counsel filed a motion to quash service and to dismiss the complaint against him on the ground that the statute of limitations had run. This contention was made notwithstanding the fact that he had not been present within the county in which the homicide occurred during the period following the filing of the complaint and the issuance of the summons. The trial court dismissed the wrongful death claim against Cantrell on February 26, 1981. The judge found that this Count was barred by the statute of limitations, § l-38-102(d) and Rule 3(b) of the Wyoming Rules of Civil Procedure. This latter Rule requires that the complaint be served within 60 days from the date of the filing of the complaint. If there is a failure to make this service within 60 days, then the action is deemed commenced on the date of service. The trial court also found that the attempted service on Cantrell on September 4, 1980 was void inasmuch as the place where the summons was left was not his usual place of abode. The trial court also granted the motion of the City of Rock Springs to dismiss the § 1983 claim based upon the fact that the cause of action was said to have arisen July 15, 1978, and therefore the doctrine of sovereign immunity was in effect then. The court relied on the Wyoming case of Oroz v. Board of County Commissioners of Carbon County, 575 P.2d 1155 (Wyo.1978). The court denied Cantrell’s motion to dismiss the civil rights claim against him. It found here that the claim raised a federal question which was controlled by the Federal Rules of Civil Procedure; that this complaint was properly filed within the two year statute of limitations as provided by Wyoming law on July 14,1980, just one day short of the two year period. A final judgment which was entered March 28, 1981 dismissed the wrongful death claim against him and also the civil rights claim as against the City of Rock Springs. The contentions on appeal are that: 1. The trial court erred in dismissing the wrongful death claim against Cantrell as being barred by the statute of limitations; 2. The court erred in refusing to apply the Wyoming Savings Clause § 1-3-118 of the Wyoming statutes. This, as we will presently see, will allow the plaintiff to refile the complaint; 3. The court erred in refusing to uphold the service based upon the tolling of the statute of limitations; 4. The court erred in ruling that the City of Rock Springs was immune from suit under § 1983; 5. That if the City is not immune, nevertheless the dismissal of the § 1983 claim ought to be affirmed because of the state law defenses of payment and/or failure to file notice of a claim with the City; 6. That the court erred in determining that the § 1983 claim against Cantrell should not be dismissed as being barred by the Wyoming statute of limitations; 7. That the personal representative of the decedent had standing to bring this § 1983 claim on her behalf or on behalf of the descendants of the decedent. I. THE CONTENTION THAT THE ACTION COMMENCED IN ACCORDANCE WITH RULE 3 OF THE APPLICABLE FEDERAL RULE OF PROCEDURE The argument of appellant is that the Supreme Court’s decision in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965), applies to this case. In Hanna the Supreme Court held that in a diversity case service is governed by the Federal Rules of Civil Procedure, rather than those of the state. But this conflict between the Hanna v. Plumer decision and that in Ragan v. Merchants Transfer and Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949) has been settled by the Supreme Court in Walker v. Armco Steel Corporation, 446 U.S. 740,100 S.Ct. 1978, 64 L.Ed.2d 659 (1980). There is no rationale which supports the contention that Hanna v. Piumer is applicable. The decision in Walker clearly dictates that the Wyoming Rules of Civil Procedure are to be applied in this diversity action. This conclusion does not, however, end the matter. Even accepting the fact that the doctrine of Walker v. Armco Steel Cor poration, 446 U.S. 740, 100 S.C.t. 1978, 64 L.Ed.2d 659 (1980) governs this issue, we nevertheless are of the opinion that under all of the facts and circumstances here that personal jurisdiction over the defendant has been established; and that the service made at the defendant’s home was effective; that the Wyoming Savings statute § 1-3-118 furnishes an alternative basis for obtaining jurisdiction over the defendant Cantrell. II. Do the facts and law establish the validity of the service of process based upon the delivery of the complaint and summons to Mrs. Cantrell on September 4, 1980? Was this his home in Rock Springs, Wyoming, or was the service valid by reason of the tolling of limitations statute W.S. Section 1-3-116? This nullifies the running of limitations during abscondence, absence or concealment. The alternative issue is whether, as a result of the absence, abscondence or concealment by the defendant, the statute was tolled. We further consider whether the Wyoming savings statute is applicable. The Wyoming Savings statute § 1-3-118 was also designed for situations like this where the plaintiff files the action in a timely manner and makes a diligent good faith effort to serve the defendant but is unable to complete service within the sixty day time period through no fault of his own. The various attempts at service dispel any notion of lack of good faith. This statute provides: If in an action commenced in due time, a. judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits and the time limited for the commencement of the action has expired at the date of the reversal or failure, the plaintiff, or his representatives if he dies'and if the cause of action survives, may commence a new action within one (1) year after the date of the failure or reversal. This provision also applies to any claim asserted in any pleading by a defendant. 1 DO THE FACTS AND LAW ESTABLISH THAT SERVICE WAS VALID; THAT THE ACTION HAD COMMENCED WITHIN THE PROVISIONS OF WYOMING LAW? We here address the issues as to whether the circumstances establish, first, the validity of the service on Sept. 4 as a result of delivery of the summons and complaint at his usual place of abode; or, in the alternative, as a result of absconding or leaving the state or concealment, does the Wyoming tolling statute § 1-3-116 apply so as to extend the period within which service could be made. A further alternative is whether the Wyoming saving statute is applicable. The law having to do with this is basically procedural and does not go to liability from the standpoint of the merits. It is because these two points are interrelated that we take them up together. There are several Wyoming statutes which come into play here and the first of these is the statute of limitations applicable to wrongful death. This is § l-38-102(d) of the Wyoming Code of Civil Procedure. It states in essence that every action shall be commenced within two years after the death of the deceased person. In order to apply the two year period it is necessary to consider a rule of civil procedure, Rule 3(b), which defines the phrase “commencement of action” which is mentioned in the limitations statute. It declares: For purposes of statutes of limitation, an action shall be deemed commenced on the date of filing the complaint as to each defendant, if service is made on him or on a co-defendant who is a joint contractor or otherwise united in interest with him, within sixty (60) days after the filing of the complaint. If such service is not made within sixty (60) days the action shall be deemed commenced on the date when service is made. The voluntary waiver, acceptance or acknowledgment of service, or appearance by a defendant shall be the same as personal service on the date when such wajver, acceptance, acknowledgment or appearance is made.... Also essential is Rule 4(d) of the Wyoming Civil Procedure which provides that service can be made by “... leaving copies at his dwelling house or usual place of abode with some member of his family.... ” The so-called savings provision § 1-3-118 is quoted above. It is in general effect an extension of the two year statute and offers a possible answer to the service of process challenge. It will be considered hereafter. It is a provision which offers relief in a situation in which the period of the statute of limitations has run. We address ourselves first to the question whether the delivery by James Brody, Deputy United States Marshal, of the summons and complaint upon Norma Cantrell, the wife of the defendant, was valid. Mr. Brody said “Mrs. Cantrell advised me that although she had not seen Mr. Cantrell for some time, he still called to talk to their son, Joe.” Brody further said: I advised her to advise Mr. Cantrell, when he called, that I had served a complaint and summons upon him. I, thereafter, completed the return of service and forwarded it to the Clerk of the United States District Court for the District of Wyoming in the good faith belief that Mrs. Cantrell knew the whereabouts of Mr. Cantrell, that she had contact with him, and that she could advise him that I had served him by leaving the copy of the complaint with her.” The circumstances here support the conclusion that Mr. Cantrell was indeed concealing himself during this period of time. He disappeared from Rock Springs very suddenly and thus was able to avoid the delivery of the complaint and summons to him personally. He was finally personally served on October 17,1980 in South Dakota but this was 30 days after the time had run. But meanwhile timely service had been made on Sept. 4, 1980 when the documents were delivered to his wife at his dwelling house or usual place of abode. The statute of limitations then does not apply. As we view it the service at his place of abode was valid. In law the residence in Rock Springs, Wyoming was his place of abode. Also as a result of the tolling statute the Oct. 17th, 1980 service just referred to which occurred in South Dakota was within the period. This was not a situation in which the one effort was made to serve the process and thereafter nothing happened. There was in truth a good faith effort on the part of the plaintiff and the people acting on her behalf to notify the defendant that the suit had been filed. We are aware that the burden is on the plaintiff to prove the absence of the defendant or to prove that he had absconded in order to conceal himself. But the record clearly shows that he departed at the critical time and was concealed, presumably in South Dakota. He was in communication with his family at this time by phone. According to the tolling statute the limitations statute is stayed while he is absent from the state, has absconded or was secreted. From all appearances he had absconded from Wyoming when it was considered that the sheriff made several efforts to find him and serve him. An attempt was first made to find and serve Cantrell in Converse County, Wyoming on August 8, 1980. The sheriff was unable to locate him there. An attempt was then made to serve Cantrell at 938 Truman in Rock Springs, his last known place of residence. This was unsuccessful. Service was completed on September 4, 1980 by leaving a copy With the defendant’s wife at 938 Truman. This service was later quashed by the district court. Finally personal service was made on the defendant successfully on October 17, 1980 in Fall River County, South Dakota. Two weeks after the summons and complaint had been left with her, Mrs. Cantrell returned them to Rosa’s attorney saying that she did not know the whereabouts of Mr. Cantrell. By that time, which was around September 18th, the sixty day period which was allowed for service had run out. At the time of this service Mrs. Cantrell had advised Mr. James Brody, the Deputy United States Marshal, that although she had not seen Mr. Cantrell for some time, he still called to talk to their son, Joe. Brody advised her to advise Mr. Cantrell when he called that service of the complaint and summons upon him had been carried out. He then completed the return believing that the service was completed. Mrs. Cantrell did not report the fact that she didn’t know where he was until two weeks later. It is our opinion that this did not render the service void or even voidable. At the time this was indeed his usual place of abode. The existence of another abode has not been brought to anybody’s attention in this case. This was service. What is the meaning of “usual place of abode”? In the Federal Procedure Lawyers’ Edition the abode service is discussed at some length. See § 65:68, and paragraph 65:69, Abode Service. This recognizes and authorizes the service of process on an individual by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion and residing therein. The text declares: Abode service is an alternative to personal service, and if this method of service is utilized, it is not necessary to show that the papers were served on a defendant personally or that the papers were delivered to the defendant by the person with whom they were left. However, under some circumstances a default judgment may be set aside for excusable neglect, mistake of fact, and inadvertence where the person served did not turn over the papers to the defendant. The meaning of abode is stated in § 65:70: Generally speaking a person’s usual place of abode is the place where he is actually living, except for temporary absences, at the time service is made. There is no hard and fast rule, and a determination of abode may require a practical inquiry as to where the defendant is actually living, and a review of the facts of the particular case. The inquiry is similar to that required in determining a person’s domicile, although it has been held that a person may be a citizen of one place and have his usual place of abode in another. Section 65:71 declares that: Generally speaking, a person only has one abode. Service may be made on a traveling defendant by leaving the papers at a place he has recognized as his legal residence, so long as he receives actual notice, even though his vocation takes him to other places on a regular basis and he only returns to the place where process was delivered when he has the opportunity It is further said: A person in the process of moving may be served at his former address, where members of his family still reside, until he establishes a new abode elsewhere, (emphasis supplied). An annotation in 32 A.L.R. 3rd takes up the meaning of “usual place of abode”. At page 119 of 32 A.L.R. 3rd the authors state: In general, if a person has an established home, particularly a place at which his family resides, a mere absence, even of considerable duration, does not destroy the established place as a usual place of abode, residence, or domicile, if the person has an intention of returning. If a person leaves an established place with his family, a more difficult question arises, (emphasis supplied) At page 140, 141 of 32 A.L.R. 3rd the authors consider the particular place from which the person was absent as being a family home where process was left. A number of cases are collected here which deal with the exact problem here, that is to say the contention that the place of dwelling or abode no longer exists due to absence or departure. The cases interpreting “dwelling house or place of abode” at the time of the attempted service within the meaning of the statutes or rules of court, have found that “service under such circumstances has been upheld at least where the person, if a married man, maintained his family at the place from which he was absent, or, if a young, unmarried person, maintained close relations with his parents at such place.” It is also stated: Thus,'the fact that a defendant left his home for an extended period and traveled a considerable distance has been held not to have destroyed his original home as his ‘usual place of abode’, if he did not intend to change his residence, as evidenced by his leaving his family behind, and his subsequent return. (emphasis supplied)... In Sñéphard v. Hopson, 191 Ark. 284, 86 S.W.2d 30 (1935), service was held properly made upon a wife remaining at home, notwithstanding testimony by the husband that he had left home, had separated from his wife, had moved to another state, and after securing a divorce, had continued to live elsewhere, where it appeared that a divorce had in fact not been obtained until a year after service was made, defendant had in fact been within the state conferring with attorneys at the time, and neither husband nor wife had indicated at the time of service that they had separated, the court thus finding that the intention of abandoning the former home had not developed at the time service was made on the wife. That Shephard ease is very similar in its facts to the case with which we are dealing. Other cases of a similar nature are Capitol Light & Supply Co. v. Gunning Electric Co., 24 Conn.Supp. 324, 190 A.2d 495 (1963): where the defendant, aged 28 and unmarried, lived with his parents in Connecticut for many years before taking employment elsewhere, and thereafter he continued to participate actively in the family business located in Connecticut, as an officer, stockholder and employee and made application for an operator’s license to the Connecticut Department of Motor Vehicles 2 days before service was made upon him by leaving a copy of the process at the parents’ dwelling. After reviewing all of the circumstances the Connecticut court held that: it was not unreasonable to believe that a young man 28 years of age, unmarried, would have, in view of the circumstances noted, a usual place of abode at the present home of his parents, there being ño showing that defendant had intended to abandon his former home. The court also stated that: A person could have two places of abode at the same time, each qualifying as a place at which substituted service of process could be effected. Where a defendant left his usual place of abode for a few months to take a regular summer vacation at a prescribed place the regular, established place continued as his ‘most notorious place of abode’ during the vacation interval. This was held in Venable v. Long Realty Co., 46 Ga.App. 803,169 S.E. 322 (1933). It was held that: Where a bachelor lived with his sister at her residence during 8 or 9 months of each year, and moved with her to her summer home in another part of the county, living with her at this place during 3 or 4 of the summer months of each year, the former place constituted the usual residence and general lodging place of the person, and process could be served by leaving a copy at such former place, under a statute providing for the leaving of such process at defendant’s ‘most notorious place of abode’. See also Bank of South Carolina v. Simpson, 27 SCL (2 McMull) 352 (1842) and Lovin v. Hicks, 116 Minn. 179, 133 N.W. 575 (1911), Where defendant owner of a furniture business, who had lived with his wife on the second floor of the business building, went to another town to conduct a furniture business of which he was also proprietor, the place at which his wife continued to reside was defendant’s ‘house or usual abode’ during the period of his absence (according to Lovin v. Hicks) where defendant voted there in elections taking place during his period of absence, the presumption that a married man’s usual place of abode was where his wife resided not having been rebutted. To similar effect are Missouri, K & T Trust Co. v. Norris, 61 Minn. 256, 63 N.W. 634 and Kueffner v. Gottfried, 154 Minn. 70, 191 N.W. 271 (1922). Similarly it has been held that where a husband left his family home without clear evidence of intention to establish a domicil elsewhere, other than an inference which might be drawn from the fact that he may have been seeking to avoid an action at law against him, the family home continued as the husband’s dwelling house. In Second National Bank v. Gardner, 171 Pa. 267, 33 A. 188 (1895), an action by a bank against defendant cashier to recover funds allegedly wrongfully taken by the defendant, it was held that service by leaving process with the defendant’s wife at his home was valid under a statute authorizing such service at defendant’s dwelling house, even though it appeared that the defendant left his house to avoid defending the action brought against him, the court stating that although defendant had gone away, leaving his family in his residence, there was no evidence of his intention to acquire a new domicil and no evidence that he had acquired one, the only negation of intention to return being an inference from the circumstances, drawn by his wife, who nevertheless expressly admitted that she had no information from him on the subject. This decision is also quite similar to the case at bar. Where a defendant left his home to go on an extended ocean voyage to South America, ostensibly because of ill health, leaving his wife behind, service by leaving a copy of process with the wife was held valid in Northwestern & P. Hypotheek Bank v. Ridpath, 29 Wash. 687, 70 P. 139 (1902). This was under a statute authorizing substituted service by leaving a copy of process at defendant’s house of usual abode, notwithstanding it appeared that defendant had entertained some thoughts of not returning, but the final decision to locate elsewhere was reached after the service of process had been made. There are cases in the annotation which hold that the place from which the defendant departed was not his place of residence based upon a finding that the person did not intend to return which was supported by the evidence, notwithstanding that the person left his family or parents at the original place. But in the present case it is important to note that the defendant had not been gone for a long period of time and there was no basis for inferring that he had established a place of residence at some other place. He merely said that this was no longer his abode and that is not enough. It must be shown that there has been the establishing of a new abode and he has the burden of establishing this, according to the cases. The presence of his family in Rock Springs certainly carries a good deal of weight in that it supports a conclusion that the Truman Street house was his usual place of abode, particularly in view of the fact that he had been gone for such a short time and was very likely seeking to avoid service of process. WAS THE STATUTE TOLLED? This case is factually similar to the Wyoming court’s decision in Tarter v. Insco, 550 P.2d 905 (Wyo.1976). However, there the defendant could have been served by leaving a copy of the summons and complaint with the Secretary of State. The court said that her absence from the state did not toll the statute of limitations. The court’s comments on the policy of the statute are pertinent: There can be no reason for a tolling statute except where service is impossible or unusually difficult. It would be inequitable to allow a defendant to escape service through trickery or concealment. The need and reason for a tolling statute fails where there is another readily available method of service. In the present case service was unusually difficult. It is a proper case for invoking the tolling statute. Section 1-3-116, Wyoming statutes, Absence from state or abscondence or concealment, states that the limitations provision does not begin to run until he comes back into the state and is tolled while he is absconded or concealed. The defendant was either absent from the state, absconded, concealed or all three. In any case the statute of limitations did not run while he was absent, absconded or concealed. The plaintiff has the burden of proof as to absence, but this fact has been proven. Unquestionably the defendant was missing during the time that the effort was being made to serve him. During that time the City of Rock Springs was served and the sheriff attempted to serve defendant on more than one occasion. The plaintiff’s effort to locate him was conscientious and extensive but it was to no avail. In sum we conclude that the Sept. 4,1980 service was valid. Wyoming Rules of Civil Procedure provide that service can be made by handing the summons and complaint to the defendant personally or by leaving copies at his dwelling house or usual place of abode with some member of his family. The summons and complaint was left at defendant’s usual place of abode with some member of his family. He says that he was separated. There was however no legal separation on record. This was not a lie but it was a temporary expedient. The cases construe the term “usual place of abode” broadly. Even after the individual has departed it continues to be his usual place of abode. This is especially true where, as here, his wife and children continue to live there and he communicates with them at that place. His wife acknowledged that he called and talked to his son. An implied abandonment would have to be proven by the defendant. No such evidence has been presented. From the evidence and law 938 Truman Street continued to be his “usual place of abode”. The consequence is that service was completed on September 4, 1980, well within the statutory time. Hence the service was good. The same result is reached when the tolling statute is applied. Here the question is whether Cantrell absconded, departed from the state or was secreted. We say that all three standards were satisfied. He was being sued for millions of dollars. A strong escape motive was present. Does the Wyoming saving'statute or clause apply? Section 1-3-118, Wyoming Statutes. The statute in question is designed to provide relief where an action has been commenced in due time but a judgment for the plaintiff is reversed or the plaintiff fails otherwise than upon the merits and the time limit for the commencement of the action has expired at the date of the reversal or failure, the plaintiff, or his representatives if he dies and if the cause of action survives, may commence a new action within one (1) year after the date of the failure or reversal. This provision also applies to any claim asserted in any pleading by a defendant. So, what it does is provide the party with a one year period in which to refile the case after the dismissal of the case or its reversal. The argument of the appellant is that even if service upon Cantrell was insufficient, dismissal of the claim with prejudice would not be appropriate. Her argument is that the Wyoming saving statute described above would allow refiling within one year. This type of statute is almost universally employed. Numerous states have adopted some species of this saving statute. Therefore there is a good deal of litigation which deals with it. This is not a new provision; it has been adopted by a good many states, including Wyoming, but also including New York. It is an equitable provision which seeks to give a litigant who has brought the suit in due time within the statute of limitations an opportunity to refile the case where he has failed through no particular fault of his own. The philosophy behind it is very well enunciated in Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594 (1915). The statute is very similar to that which is enforced in Wyoming. The opinion by Mr. Justice Cardozo gives a general description of the statute in 109 N.E. at 596 as follows: That the plaintiff’s case is within the letter of the statute is hardly doubtful. He brought an action against the defendant, and the action was terminated otherwise than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute, or a final judgment upon the merits. If the protection of the statute is to be denied to him, it ought to be clearly shown that his case, though within the letter of the statute, is not within its reason. We think that the defendant has been unable to sustain that burden. The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by a narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction stands on the same plane

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

AMERICAN AIRLINES, INC., et al., Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, Saturn Airways, Inc., World Airways, Inc., American Society of Travel Agents, Inc., Trans International Airlines, Inc., Modern Air Transport, Inc., American Flyers Airline Corporation, Johnson Flying Service, Inc., Purdue Aeronautics Corporation, Capitol Airways, Inc., and Overseas National Airways, Inc., Intervenors. No. 20159. United States Court of Appeals District of Columbia Circuit. Argued June 14, 1966. Decided July 19, 1966. Mr. James F. Bell, Washington, D. C., with whom Mr. Brian C. Elmer, Washington, D. C., was on the brief, for petitioners. Mr. George C. Neal, Washington, D. C., also entered an appearance for petitioners. Mr. Warren L. Sharfman, Associate Gen. Counsel, Litigation and Legislation, C. A. B., with whom Asst. Atty. Gen. Donald F. Turner, Messrs. Joseph B. Goldman, Gen. Counsel, O. D. Ozment, Deputy Gen. Counsel, Robert L. Toomey, Atty., C. A. B., and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief, for respondent. Mr. Raymond J. Rasenberger, Washington, D. C., Atty. for intervenor Purdue Aeronautics Corp., and Clayton L. Burwell, Washington, D. C., Atty. for intervenor Trans International Airlines, Inc., argued on behalf of all intervenors. Mr. Leonard Bebehick, Washington, D. C. , was on the brief for intervenor Saturn Airways Inc. Mr. Jerrold Scoutt, Jr., Washington, D. C., was on the brief for intervenor World Airways, Inc. Mr. Ramsay D. Potts, Washington, D. C., was on the brief for intervenor American Flyers Airline, Inc. Mr. Dayton M. Harrington, Washington, D. C., was on the brief for intervenor Capitol Airways, Inc. Mr. Warren E. Miller, Washington, D. C., was on the brief for intervenor Johnson Flying Service, Inc. Mr. Albert F. Beitel, Washington, D. C., was on the brief for intervenor Modern Air Transport, Inc. Mr. Howard S. Boros, Washington, D. C., was on the brief for intervenor Overseas National Airways, Inc. Mr. Charles A. Hobbs, Washington, D. C. , was on the brief for intervenor American Society of Travel Agents, Inc. Mr. Walter D. Hansen, Washington, D. C., also entered an appearance for intervenor Trans International Airlines, Inc. Mr. Stephen D. Potts, Washington, D. C., also entered an appearance for intervenor American Flyers Airlines Corp. Before Danaher, Circuit Judge, Bastían, Senior Circuit Judge, and Tamm, Circuit Judge. TAMM, Circuit Judge: This ease presents essentially a question of statutory construction. It grows out of the protracted and absorbing battle over the years between the regularly scheduled airlines and the so-called “supplemental” airlines. The petitioners here comprise all but one of the domestic “trunkline” air carriers, plus Pan American World Airways. Their traditional role in air transportation has, of course, been to provide regularly scheduled air transportation service. The intervenors are “supplemental air carriers” who have also been known variously as “nonseheduled” and “large irregular” airlines. Their traditional function has been limited to supplementing the scheduled airlines, principally through military and civilian charter service. In 1962, Congress enacted Public Law 87-528 as an amendment to the Federal Aviation Act oí 1958, 72 Stat. 731, as amended, 49 U.S.C. § 1301 et seq. These amendments authorized the Civil Aeronautics Boards (hereinafter the Board) to issue certificates of public convenience and necessity for “supplemental air transportation,” statutorily defined simply as “charter trips in air transportation.” Section 101(33) of the Federal Aviation Act of 1958, 72 Stat. 737, as amended, 75 Stat. 467, 76 Stat. 143, 49 U.S.C. § 1301. It is the uncertainty over the meaning of the term “charter trips” which prompts the necessity for interpretation of the statute, particularly as to whether such term embraces “inclusive tour charters.” These inclusive tour charters are charters by supplemental to tour operators who, in turn, sell individual space on the chartered aircraft to the general public as part of an “inclusive tour.” In order for us to proceed to the actual interpretation of the statute, it is first necessary to briefly delineate the legislative history of the Act and the administrative interpretation which has been placed on the statute by the Board. I Legislative History Early in the 87th Congress, bills which had been prepared by the Board were introduced in both the Senate (S. 1969) and the House (H.R. 7318). Hearings were held in June 1961 before the Aviation Subcommittee of the Senate Committee on Commerce and the Subcommittee of the House Committee on Interstate and Foreign Commerce. Representatives of the Board, the supplemental air carriers, and the certificated air carriers appeared at these hearings. On August 8, 1961, S. 1969 was reported out by the Senate Committee with committee amendments altering in part the original Board proposal. In its reported bill, the Senate Committee proposed that “charter service” should be defined to include authority for tour operators to charter planes from supplemental for the purpose of offering space to individual members of the general public as part of inclusive tours. Sen. Rep.No.688, 87th Cong., 1st Sess. 1 (1961), U.S.Code Cong. & Admin.News 1962, p. 1844. In its Report, the Committee specifically noted that “it is not the intention of the committee to permit individually ticketed service to be offered to the general public under the guise of charter. The proposed statutory definition, therefore, provides that charter shall not include such individually ticketed service whether offered by an air carrier directly or by a travel agent. This restriction is subject to one exception because there is one circumstance in which a carrier or travel agent may offer the services to individual members of the public and still conform to the traditional concept of charter. This is in connection with an all-expense-paid group tour. If a travel agent charters an aircraft for an all-expense-paid tour and then offers to individual members of the public the right to participate as a member of the group, this is a very different sort of service from individually ticketed transportation.” Sen.Rep.No. 688, 87th Cong., 1st Sess. 13-14 (1961). (Emphasis added.) The amended administration bill passed the Senate on August 28, 1961. Simultaneously with the Senate action, the House committee held hearings and reported out its bill. The House bill did not contain a definition of “charter service,” leaving the term undefined, as it was in the then-existing statute. In its Report, the House committee explained its reason for not including a definition of charter service thusly: “The supplementals recommended that a definition of charter be written into the bill and this was given consideration by your committee. The bill passed by the Senate has such a definition. “Your Committee, however, after considering the problem came to the conclusion that under the circumstances, authority to define charter services should be left, as at present, with the Board, subject to the limitations contained in the reported bill. This is a very difficult subject and any effort to freeze a definition of charter service into law could well lead into complications. H.Rep.No.1177, 87th Cong., 1st Sess. 5 (1961). (Emphasis added.) The House bill, as amended, was passed by the House on September 18, 1961. With the bills thus at least potentially in conflict, the Senate and House conferees met to resolve their differences. The bill reported out by the conferees did not contain a definition of charter. The conference report to accompany the agreed-upon bill indicated that the conferees had adopted the House version on the issue in question, eliminating the definition of “charter service” originally contained in the Senate bill. This conference report, however, did not discuss the reasons why the House version was adopted over that proposed by the Senate. Petitioners argue here that the Senate “receded” from its position on inclusive tours and that the bill as finally passed withheld from the Board any authority to authorize inclusive tours by supplementals through travel agents. Respondents and intervenor, on the other hand, argue that the “recession” by the Senate was only from the position that the Board should be required to grant inclusive tour charter authority to the supplementals (which would have been the effect of the original Senate formulation) to the position of the House, which, as explained in its Report, was that “authority to define charter services should be left, as at present, with the Board * * * ” In support of their argument, petitioners point to the statement of six members of the Congress in the legislative debates at the time of the passage of the final bill before both houses of the Congress. Representative of these statements, which will be considered in more detail, infra, is that of Senator Scott, a Senate manager of the bill. He stated, in pertinent part, that “the committee of conference wisely eliminated the Senate provision. The bill thus, in effect, confirms the established law as to a charter in air transportation. There should be no question about that. The Congress has considered, and rejected, a proposal to change the established meaning of charter so as to have permitted travel agent charters for all-expense tours. Such charters have no place in air transportation. This being the thrust of the congressional action, it would be clearly improper if the Civil Aeronautics Board were hereafter to undertake to rewrite the law and to authorize under guise of charter, all-expense-tour operations * * 108 Cong.Rec.12284-85 (1962). The question thus clearly proposed for our determination is whether the Federal Aviation Act of 1958, as amended, limits the Board’s power to authorize inclusive tour charters. Before resolving this question, some assistance in making our determination may be forthcoming from a consideration of the Board’s resolution of the issue. II Administrative Interpretation In analyzing this question, the Board framed the issue in the following language : “Under the definition of supplemental air transportation in section 101(33) of the Act, we may authorize supplemental air carriers to engage solely in ‘charter trips.’ The argument is made that the term ‘charter trip’ does not include charters to tour operators acting as indirect air carriers for the purpose of transporting inclusive tour groups whose members are gathered from the general public, and that charters would be mere subterfuges for individually ticketed transportation. The argument is based primarily on the claim that, while the statute does not spell out a prohibition against inclusive tour charters, its legislative history expresses such an intention. The examiner correctly rejected this argument.” In resolving the issue, the Board relied primarily upon two propositions: first, that the legislative history of the Amendment demonstrated that the definition of charter was to be left to the Board; and second, that this court’s decision in American Airlines, Inc., et al. v. C. A. B., 121 U.S.App.D.C. 120, 348 F.2d 349, 354 (1965) clearly demonstrates that the question of definition of charter was to be left to the Board. The Board found additional analogical support for its interpretation in precedent and practice in the field of surface transportation, where the legality of inclusive tour charters has long been settled “as against contentions that they are mere subterfuges for individually ticketed transportation.” The Board interpreted the previously delineated sequence of legislative events as clearly indicating that the definition of charter was to remain a function of the Board. It relied heavily upon the House committee report which specifically stated that “authority to define charter services should be left, as at present, with the Board, * * *” H.Rep.No. 1177, 87th Cong., 1st Sess. 11 (1961). Finding the meaning of the statute to be clear, especially as reinforced by the sequence of events in the Senate and the House and the authoritative committee reports explaining these events, the Board did not believe that there was any “sound reason for attempting to analyze the statements made at the time of the passage of the bill by certain of its floor managers.” In the 1965 American Airlines case cited by the Board (known as the Transatlantic case), this court also had occasion to interpret the meaning of the term “charter trips” as used in the 1962 amendments to the 1958 Federal Aviation Act. The specific question presented in that case was whether the Board had the power under the statute to authorize supplemental carriers to charter space to two groups on one aircraft, id est, “split charters.” The same petitioners in the present case attacked split-chartering there on the ground that the legislative history of the Act demonstrated the Congress intended that the Board should have no authority to authorize supplemental carriers to charter aircraft for “split charters.” This court rejected the argument of the scheduled airlines stating: “We are unable to conclude that the term charter trips has a fixed meaning * * *. We conclude Congress intended, although not without limits, that the Board should be free to evolve a definition in relation to such variable factors as changing needs * * * We agree with the Board that the legislative history reveals that a prime concern of Congress was to maintain the integrity of the charter concept — to preserve the distinction between group and individually ticketed travel; within these limits it is for the Board to evolve reasonable definitions.” 348 F.2d at 354. The Board summed up its analysis of the legislative history by concluding that: “Considering all of the foregoing, we are persuaded that we have the power to authorize inclusive tour charters as ‘charter trips’ under section 101(33) provided that we preserve the basic distinction between group and individual travel.” Board Order E-23350 (March 11, 1960). Judicial Interpretation The question which this Court must decide is brought into bold relief against the background heretofore sketched: Given the fact that the term charter trip is not defined in the Act itself, and the further fact that the Board had preexisting authority to determine the definition of charter, does the legislative history of the Amendments indicate that Congress intended the Board to continue to have this power (such intention being expressed principally in the House committee report), or does the legislative history demonstrate that Congress intended to withdraw such authority from the Board (such intention being expressed in the debates on the floors of the houses of Congress) ? Although the question could be more simply stated as whether a clearly demonstrated intention contained in a committee report takes precedence over a clearly demonstrated contrary intention in the floor debates, we do not believe the question to be quite so narrow. The overall policy and purpose of the Act and the demonstrated understanding of the Congressmen as to the meaning of the points in issue must also be taken into account in finally resolving the question. Based upon our analysis of the legislative history and overall policy and purpose of the legislation, we conclude that the Congress did not intend to withdraw this authority from the Board and that the Board’s decision in the instant case must therefore be affirmed. We look first to the Congressional declarations as to the purposes of the Act. Perhaps the most succinct statement concerning the purpose of the legislation was that made by Senator Monroney, who was chairman of the Senate Subcommittee which held hearings on the legislation, and the Senate floor manager of the bill. He stated: “Mr. President, this is a very complicated and difficult piece of legislation * * * It seeks to provide a permanent place in the aviation industry for supplemental air carriers without adverse effect upon scheduled carriers * * 107 Cong.Rec. 17162 (Aug. 28, 1961). An overall reading of the legislative history indicates that the three primary purposes of the 1962 legislation were: to eliminate irresponsible supplemental, especially those violating safety regulations; to stabilize the operating authority of the supplemental under certificates, including authority to authorize “charter trips” on a broad enough basis so that through performance of civilian and military charter operations the supplemental might remain viable economic organizations capable of meeting supplemental transportation needs and able to comply fully with safety requirements; to maintain the regulatory scheme of the Federal Aviation Act and the protection of the certificated carriers such as petitioners by eliminating unregulated individually ticketed point-to-point competition from the supplementals. Apparently the all-consuming question with respect to the authorization of inclusive tour charters was whether allowance of such would violate the third purpose of the Act, id est, the prevention of individually ticketed point-to-point competition to the scheduled airlines by the supplementals. This fear arose partly out" of the fact that supplementals had previously been allowed to perform scheduled individually ticketed travel not to exceed ten trips per month between any two points in the United States. Pooling operations between various supplementals caused abuses to grow up in the utilization of this authority. Groups of carriers would combine their operations and provide daily services claiming at least color of authority under the ten-flight per month authorization. The problem created by the pooling operations was highlighted in the Senate and House Committee Reports. For example, in the House Report it was noted that “the de facto pooling of operating authorizations followed by protracted judicial proceedings before the operations could be curtailed had created a serious regulatory problem which the supplemental carrier legislation was designed to eliminate.” H.Rep. No. 1177, 87th Cong., 1st Sess. 13 (1961). See also Senate Rep.No. 688, 87th Cong., 1st Sess. 16, et seq. (1961). The scheduled airlines were naturally alarmed that the supplementals were diverting passenger traffic. The ten-trip per month individually ticketed authority was withdrawn from the supplementals as a result of the 1962 legislation. The supplementals were relegated as a result of the legislation to the performance of civilian and military charter service. It is thus apparent that the concern over individually ticketed authority was essentially a product of the supplementals’ previous authority to perform individually ticketed travel not to exceed ten trips per month between any two points in the United States. This authority was completely independent of any charter definition. The question of inclusive tours was, however, a definite part of the question of charter definition. Analysis of ■ the statements of the floor managers in the debates indicates that they were fearful that the same abuses which had grown up through utilization of the individually-ticketed - travel - not - to - exceed - ten - trips - per-month authority would come about as a result of the inclusive tour authorization. For example, Senator Cotton stated that: “the elimination from the bill of the general Senate language defining charter service should not, however, in my view, be construed as giving the Board any kind of carte blanche with respect to long-established principles of law relating to charters. The Civil Aeronautics Board has, in the past, rejected proposals to water down the safeguards against the abuse of charter service, and I hope the Board will continue to be firm in this respect. The Board has a serious obligation to see that charter services do not become individually ticketed services through subterfuge or abuse.” 108 Cong.Ree. 12284 (June 29, 1962). (Emphasis added.) Senator Thurmond stated: “I am advised that the CAB Bureau of Economics has advocated that a so-called all-expense tour concept be grafted onto the existing charter definition. This would be intolerable,- and has been expressly rejected by the conferees. The Senate receded from its charter definition which included this all-expense tour provision. * * * * * “Air transportation has suffered from the abuses of individually ticketed operations. The law violations in this area have all too frequently extended to infractions of safety provisions as well. It is for this reason that I want to emphasize the insistence of Congress that supplemental charter operations shall be confined to full plane load charter operations exclusively.” Id. at 12285. Representatives Harris and Collier submitted identical statements to the effect that “the law is well established that, in air transportation, charter means essentially the lease of the entire capacity of an aircraft for a period of time or a particular trip, for the transportation of cargo or persons and baggage, on a basis which does not include solicitation of the general public or any device where individually ticketed services would be offered or performed under guise of charter.” Id. at 1232-24. (Emphasis added.) The primary fear of the legislators was that supplemental would divert traffic from the scheduled airlines through utilization of individual ticketed authority. However, this evil was known to the legislators only through the abuses which grew out of the ten-trip-per-month authority. Prior to 1962 the Board had never authorized inclusive tour authority for the supplemental. Thus it is apparent that the apprehensions of the legislators did not grow out of any experience with inclusive tour charters, but rather was a projected fear based upon the unhappy experience with the ten-trip-per-month authority. The question therefore arises as to whether authorization of inclusive tour charters will in fact bring about the individually ticketed abuses experienced under the ten-trip-per-month authority. The Board found that such abuses would not ensue. In order to insure that the supplementals were properly regulated in this respect, and to insure that the individual ticketing abuses would not occur, the Board issued stringent regulations at the time of its decision in the instant case to cover inclusive tour charters. The key to this case, we believe, is the fact that the Congress at the time it passed the legislation had no way of knowing specifically how the Board would regulate the actions of the supplementals with respect to inclusive tour charters. Based upon the then past experience, a reasonable fear of the legislators was that inclusive tour charters might be abused in the manner that the ten-trip-per-month authority had been abused so as to make incursions into the scheduled airlines’ passenger services. Lacking specific knowledge of the Board’s regulations, the legislators logically relied upon past experience. This analysis is supported by reference to the legislative history. For example, Senator Scott stated: “Another essential element is that the person who charters an airplane cannot resell the space to individuals or solicit the general public to buy space. This is necessary to prevent breakdown of the regulatory system, and most particularly the rate regulatory system. If this were not one of the rules, a travel agent could charter an airplane, and then offer the seats to the general public at less per head than the tariff fares the airplane must observe as to each passenger.” 103 Cong.Rec. 122284 (June 29, 1962). The fears of Senator Scott that the regulatory system will be disrupted and that the travel agents will be able to sell seats to the general public at less per head than the price charged by the scheduled airlines are met and answered by the Board’s regulation. The regulations specifically require that the tour price charged by the agent can be no lower than 110% of the lowest available fare (including stopover charges) offered by the scheduled route carriers “for individually ticketed service on the circle route beginning at the point of origin, to the various points where stopovers are made, and return to the point of origin.” It is apparent, therefore, that under the Board’s regulations the inclusive tour charge will always be at least 10% higher than the price of the lowest available fare offered by the competing scheduled airlines for comparable transportation. We believe that an analysis of the regulations will demonstrate even further that the Board has effectively precluded the possibility that the fears apprehended by the legislators will in fact be realized. In addition to the 110% of the lowest fare requirement already referenced, the regulations require: that each inclusive tour make a minimum of three stops (not including the point of origin), each stop to be not less than fifty air miles apart; that a “minimum of seven days must elapse between departure and return”; that every tour operation must be performed on a round-trip basis; that the tour price shall include, at a minimum, all hotel accommodations and necessary air or surface transportation between all places on the itinerary, including transportation to and from air and surface terminals utilized at such places other than the point of origin; that every tour must be operated by a regulated tour operator who charters aircraft for such tours from a certified supplemental air carrier. In addition to these stringent requirements, the Board’s regulations require: that prior approval of the tour proposal must be obtained from the Board by the tour operator and the supplemental air carrier; that the prospective tour operators file a statement containing a detailed picture of their experience, business structure, and financial condition. The tour operator’s application must include, among other data: a statement of the tour operator’s qualifications; the time and dates of the flights; the type of aircraft; a detailed statement of the tour itinerary, including such things as the name of the hotels, length of stay, etc.; the tour price; the number of persons expected to participate; the charter price of the aircraft; and samples of the solicitation material to be used to promote the tours. Each application must be verified by the supplemental carrier and tour operator and filed 90 days in advance of the operation. Each application must be served on each direct air carrier serving the points involved in the tour operation and such direct air carriers may object to such tours within ten days thereafter. The sale of tour charters by supplementals is restricted to tour operators granted indirect air carrier authority by the Board pursuant to the Board’s regulations, which authority may be suspended by the Board without a hearing. No supplemental air carrier may perform any tour charter trips unless it has on file with the Board a currently effective charter tariff showing all rates, fares and charges. All tour operators operating inclusive tour charters must furnish a surety bond in the amount of at least twice the charter price. The Board’s regulations contain certain requirements pertaining to the contract between the supplemental air carrier and the tour operator, and the contract between the tour operator and the tour participant. The supplemental carrier and the tour operator must make a post-tour report to the Board. In addition to these stringent restrictions on the supplemental and the tour operators, the Board limited its inclusive tour authorization to a test period of five years and indicated that it would then “review the tour program to determine if it fulfilled its promise.” In the interim, the Board noted that experience might show need for modification either “to prevent undue diversion” or to “relax restrictions that may prove too onerous,” and noted that its “rule-making powers” would permit it to deal with such situations as they arose. Finally, in summing up its reasons for adopting the inclusive tour charter operation the Board noted: “The use of the charter mechanism, combined with the restrictions which we are imposing by regulation, necessarily results in a service to the public which is different in significant respects from that available on scheduled services. In exchange for realizing the price savings accruing from the economies of plane-load charter operations, the charter tour passenger is subjected to the rigidities of a group itinerary, must be willing to travel and share facilities with strangers, and must agree to the necessary regimentation that is entailed in group travel. Nor will he have the freedom to select from the multiple daily schedules offered by route carriers, but will be confined to predetermined departure and arrival times selected by the tour operator. Moreover, it is clear that the specially tailored type of service to be provided is not one which could practicably be furnished by route carriers on their scheduled operations.” Board Order E-23350 (March 11, 1966). The foregoing analysis of the Board’s regulations and its reasons for adopting them provide, we believe, a reasonable basis for a conclusion that the individual-ticketing problems foreseen by the legislators will be precluded. We do not find in the Board’s action any arbitrary exercise of its powers, and we believe that its conclusions are supported by substantial evidence on the record as a whole. Moreover, the Board found, in the exercise of its administrative expertise, that a significant amount of the revenues of the supplemental carriers earned through inclusive tour charters would be newly generated traffic, rather than traffic diverted from existing services, and that in the long run this will tend to broaden the base for air transportation and ultimately inure to the benefit of the entire air transportation industry, including the scheduled airlines. The promotion by the Board of this salutary result is hardly assailable as an arbitrary exercise of its power. In addition, the Board found that the authorization of inclusive tour charters would give the supplemental a new lease on their economic life by helping them to generate more civilian traffic. The principal revenues of supplemental (over 70%) arise from military charters. The Department of Defense now requires that carriers receiving contracts secure “at least 30% of their air transportation revenues during 1966 from commercial sources.” The effect of this requirement is that increased civilian business is essential to the maintenance or increase of the vital military charter business. This increase in revenues is also critical to the financial well-being of the supplemental. We believe that, if the statements of the floor managers are considered in the light of the foregoing analysis, and sight is not lost of the fact that the legislators did not in fact have the Board’s regulations before them when the Act was passed, the Board’s interpretation of its statutory power comports with the overall statutory intention of Congress. Although specific conflict does exist to some degree between the statements on the floors of the houses, and the Act itself and the House committee report, much of that conflict is dissipated by the above analysis of the evil apprehended by the legislators and the measures adopted by the Board to prevent its occurrence. Any remaining conflict must give way to the generally accepted maxim of statutory construction that reports by the legislative committees responsible for formulating the legislation must take precedence in event of conflict over statements in the legislative debates on the floors of the houses of Congress. See United States v. International Union United Auto, etc., Workers, 352 U.S. 567, 585 (1950); Nicholas v. Denver & R. G. W. R. Co., 195 F.2d 428 (10th Cir. 1952); Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S.Ct. 172, 65 L.Ed. 349 (1920). Finally, our decision here is in conformity with Judge Burger’s well-reasoned opinion in the American Airlines case. We believe with Judge Burger that: “We are unable to conclude that the term charter trips .has a fixed meaning or that Congress intended to restrict the Board to a definition of one aircraft — one charter. We conclude that Congress intended, although not without limits, that the Board should be free to evolve a definition in relation to such variable factors as changing needs and changing aircraft; * * * We agree with the Board that the legislative history reveals that a prime concern of Congress was to maintain integrity of the charter concept- — -to preserve the distinction between group and individually ticketed travel; within these limits it is for the Board to evolve reasonable definitions.” 348 F.2d at 354. The order of the Board must therefore be Affirmed. . The American Society of Travel Agents has also intervened in these proceedings for reasons which will become apparent, infra. . The term “inclusive tour” is generally synonymous with an “all-expense tour.” The Board has adopted the term “inclusive tour” rather than “all-expense tour” because all expenses are not necessarily required to be included in the tour price. We will adopt the Board’s terminology in this ease. . “(13). ‘Charter service’means air transportation performed by an air carrier holding a certificate of public convenience and necessity where the entire capacity of one or more aircraft has been engaged for the movement of persons and their baggage or for the movement of property on a time, mileage, or trip basis, but shall not include transportation services offered by an air carrier under an arrangement with any person who provides or offers to provide transportation services to individual members of the general public, other than as a member of a group on an all-expense-paid tour.” (Emphasis added.) . Although we have primary jurisdiction to interpret the enabling and regulating statutes of administrative agencies, the interpretation placed upon its enabling or regulating statute by the agency itself is not without some weight in the final resolution of such interpretation questions. . Board Order E-23350 (March 11, 1966). . Board Order E-23350 (March 11, 1966). . Board Order E-23350 (March 11, 1966). . See, e. g., S.Rep. No. 688, 87th Cong., 1st Sess. 21 (1961) ; H.Rep. No. 1177, 87th Cong., 1st Sess. 6 (1961) ; 107 Cong.Ree. 20081 (Sept. 18, 1961 — statement of Rep. Harris) ; Hearings before Subcommittee of Commerce Committee on H.R. 7512, and H.R. 7675, 87th Cong., 1st Sess., 13, 29, 74, 91, 156, 218-19; Hearings before the Aviation Subcommittee of Commerce Committee on S. 1969, 87th Cong., 1st Sess., 268, 270, 281, 282-83. . Sen.Rep. No. 688, 87th Cong., 1st Sess. 11-15 (1961). . O.A.B. Special Regulations, Part 378. . The hearing examiner found (affirmed by the Board), that inclusive tour charters had been utilized in England and that the British experience has demonstrated that there is no serious diversion from the scheduled airlines. He Quoted an advisor to a scheduled airlines as follows: “Eor the most part these were passengers who would not have travelled by air on normal scheduled services. They were persuaded to fly by the attractive prices and great convenience of the packaged holidays offered. The real importance of inclusive tour services to British civil aviation lies in the fact that a very large number of people have been converted into air travellers through the promotional efforts of the organizers of air tours. In this way, the financial and social boundaries of the air travel market have been greatly extended.”

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined 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 W. JACKSON, Plaintiff-Appellant, v. SOUTHERN CALIFORNIA GAS COMPANY; Claudia Dodson; Lois Durfee; Mary Moore; Jean Bish; Betty Shattery; Pat Shattery, Defendants-Appellees. No. 87-6506. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 3, 1988. Decided July 28, 1989. As Amended on Denial of Rehearing and Rehearing En Banc Oct. 20,1989. Timothy L. Taggart & Associates, Timothy L. Taggart, Bloomington, Cal., for plaintiff-appellant. Michael A. Cartelli, Larry I. Stein, Los Angeles, Cal., for defendants-appellees. Before EUGENE A. WRIGHT, WILLIAM A. NORRIS and CHARLES WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: David W. Jackson appeals from the district court’s dismissal of his action against Southern California Gas Company (SCGC) and several employees of SCGC. Jackson, a black man, alleges that he was the victim of discriminatory employment practices causing him to be constructively discharged. Jackson filed his complaint in state court alleging a claim of discrimination under various sections of the California Fair Employment and Housing Act, as well as a contract and several tort claims. SCGC removed the ease to federal court. The district court dismissed Jackson’s complaint in its entirety. The court concluded that the claims were preempted under federal labor law, and found that Jackson failed to exhaust the grievance procedures contained in the collective bargaining agreement between SCGC and Jackson’s union, Local 132 of the Utilities Workers Union of America, AFL-CIO. We affirm the dismissal of Jackson’s claims for breach of contract, breach of an implied covenant of good faith and fair dealing, constructive wrongful/tortious discharge, and negligent and intentional infliction of emotional distress. We reverse and remand the dismissal of Jackson’s claims for discrimination, wrongful discharge in violation of public policy, and defamation. FACTS Jackson began working for SCGC as a Service Grade Clerk on February 14, 1983. Jackson alleges in his complaint that beginning in May, 1983, he was discriminated against because he was black. He lists several actions by defendants in support of his claim that he was not afforded equal employment opportunities and the same terms and conditions of employment as other employees. Jackson filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) on February 24, 1987. The DFEH rejected the complaint and issued a Notice of Verification of Attempt to File on March 18, 1987. Jackson filed his complaint in state court on April 21, 1987, alleging the following claims: (1) racial discrimination under Cal. Gov’t Code §§ 12920, 12921, 12926, 12940, 12965 (West 1980 & Supp.1989); (2) constructive wrongful/tortious discharge; (3) breach of the covenant of good faith and fair dealing; (4) breach of contract; (5) wrongful discharge in violation of public policy; (6) defamation/libel and slander; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress. SCGC removed the case to federal district court on August 7, 1987, on the ground that the third and fourth claims stated claims under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1982). SCGC filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) on August 12, 1987. As a basis for dismissal, SCGC argued that Jackson’s second, third, fourth, seventh, and eighth causes of action were preempted by section 301 and that they should be dismissed because Jackson failed to exhaust the grievance procedures contained in the collective bargaining agreement. SCGC also contended that Jackson’s first, second, third, fourth, fifth, and seventh causes of action should be dismissed because Jackson was not constructively discharged. Attached to SCGC’s motion were the affidavits of several supervisory employees, and copies of the collective bargaining agreement and pension and benefit agreements. A hearing was conducted by the district court on September 21, 1987. Convinced that the complaint had been artfully pled to avoid stating a federal breach of contract claim under section 301, the court summarily dismissed the entire action because Jackson had failed to exhaust the grievance procedures contained in the collective bargaining agreement. On January 7, 1988, Jackson entered into a “Compromise and Release” in which he settled his workers compensation claim for $30,000. Jackson contends that he was required to resign his employment as a condition of the settlement. Jackson appeals the court’s failure to remand the case to state court and the dismissal of his complaint. We have jurisdiction under 28 U.S.C. § 1291 (1982). ANALYSIS I. REMOVAL Jackson contends that his state court complaint was improperly removed to federal court and that the district court should have remanded it to state court. A. Standard of Review The propriety of removal of a state action to federal court is a question of federal jurisdiction that the court reviews de novo. See Bale v. General Tel. Co., 795 F.2d 775, 778 (9th Cir.1986). B. Removal Jurisdiction Based on § 301 A suit may be removed to federal district court only if it could have been brought there originally. See 28 U.S.C. § 1441(a) (1982); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); Hyles v. Mensing, 849 F.2d 1213, 1215 (9th Cir.1988). The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law. Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2429 (citation and footnote omitted). Accordingly “[A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemp-tion....” Id. at 393, 107 S.Ct. at 2430 (emphasis in original); see also Newberry v. Pacific Racing Ass’n, 854 F.2d 1142, 1146 (9th Cir.1988); Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 996 (9th Cir.1987). Under the “complete pre-emption” doctrine, however, the pre-emptive force of a statute [may be] so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987) (footnote omitted)); see also Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285 (9th Cir.1989); Newberry, 854 F.2d at 1146; Young, 830 F.2d at 996-97. The complete preemption corollary to the well-pleaded complaint rule is most often applied in cases raising claims preempted by section 301 of the LMRA. Section 301(a) provides federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a). [T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action “for violation of contracts between an employer and a labor organization.” Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983) (footnote omitted); accord Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968) (when “[t]he heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement,” the complaint arises under federal law); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881 & nn. 4, 5, 100 L.Ed.2d 410 (1988); International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 856-57, 107 S.Ct. 2161, 2165-66, 95 L.Ed.2d 791 (1987); Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985); Chmiel, 873 F.2d at 1285; Newberry, 854 F.2d at 1146; Young, 830 F.2d at 997; Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1048 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987). In short, “[a] suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301.” Newberry, 854 F.2d at 1146; Young, 830 F.2d at 997. Jackson’s fourth cause of action alleges breach of the collective bargaining agreement and quotes at length from section 12.03 of the agreement. Section 12.03 relates to causes for disciplinary action. This claim is therefore one to enforce the collective bargaining agreement and is controlled by section 301. The remainder of Jackson’s state law claims share with this federal claim “a common nucleus of operative fact” because the claims arise from the alleged discriminatory conduct that Jackson alleges caused him constructively to be discharged. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 618-19, 98 L.Ed.2d 720 (1988); United Mineworkers v. Gibbs, 383 U.S. 715, 725-27, 86 S.Ct. 1130, 1138-40, 16 L.Ed.2d 218 (1966). Jackson’s state law claims therefore fall within the scope of pendent jurisdiction. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. Because Jackson’s state law claims could have been brought originally in the district court as pendent claims, the district court had jurisdiction on removal to address the pendent state claims. See Bale, 795 F.2d at 778. In light of our conclusion that the district court had pendent jurisdiction on removal of each of Jackson’s state law claims, we need not consider whether the district court could also exercise removal jurisdiction on the alternative ground that the state law claims could be recharacterized as federal section 301 claims. See id. II. MOTION TO DISMISS A. Standard of Review A dismissal for failure to state a claim under Rule 12(b)(6) is a ruling on a question of law reviewed de novo. See Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984). Review is limited to the contents of the complaint. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.1983). A complaint should not be dismissed under the rule “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. North Star, 720 F.2d at 580. In reviewing decisions of the district court, we may affirm on any ground finding support in the record. See Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986); see also Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 555 (1985). If the decision below is correct, it must be affirmed, even if the district court relied on the wrong grounds or wrong reasoning. See Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985); Alcaraz v. Block, 746 F.2d 593, 602 (9th Cir.1984). B. Preemption 1. Contract Claim As we concluded above, Jackson’s fourth cause of action for breach of contract is clearly preempted. 2. Discrimination and Tort Claims Preemption under section 301 extends beyond claims for breach of contract. Caterpillar, 482 U.S. at 394, 107 S.Ct. at 2430 (“Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims ‘substantially dependent on analysis of a collective-bargaining agreement.’ ”). “Allis-Chalmers makes clear that ‘the pre-emp-tive effect of § 301 must extend beyond suits alleging contract violations’ to encompass suits under state tort law that ‘would frustrate the federal labor-contract scheme established in § 301.’ ” Bale, 795 F.2d at 780 (citations omitted; quoting Allis-Chalmers, 471 U.S. at 209-10, 105 S.Ct. at 1910-11). Although section 301 does not preempt every employment dispute tangentially involving a provision of a collective bargaining agreement, Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. at 1911; Newberry, 854 F.2d at 1147, state claims that require interpretation of a collective bargaining agreement, Lingle, 108 S.Ct. at 1885; DeLapp v. Continental Can Co., 868 F.2d 1073, 1075 (9th Cir.1989), or depend substantially upon analysis of a collective bargaining agreement’s terms, Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1915; Newberry, 854 F.2d at 1147, are preempted. Wrongful Discharge In Violation of Public Policy Jackson alleges a claim for wrongful termination in violation of public policy under Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980), in count five. Jackson claims his wrongful termination violates the state’s public policy against racial discrimination. A claim that a discharge violates public policy “is preempted ... if it is not based on any genuine state public policy, or if it is bound up with interpretation of the collective bargaining agreement and furthers no state policy independent of the employment relationship.” Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 1002 (9th Cir.1987) (citations omitted). “[A] claim is not preempted if it poses no significant threat to the collective bargaining process and furthers a state interest in protecting the public transcending the employment relationship.” Id. at 1001. There is little doubt that California has adopted a public policy against discrimination in the work place. Cal. Gov’t Code § 12920 (West 1980) provides in part: It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age. Id. Section 12940 makes it an unlawful employment practice for an employer to “discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment” on the basis of race. Cal. Gov’t Code § 12940(a) (West Supp.1989). Additionally, enforcement of the state discrimination statutes would not require interpretation of any of the provisions of the collective bargaining agreement. See, e.g., Mixon v. Fair Employment & Housing Comm’n, 192 Cal.App.3d 1306, 237 Cal.Rptr. 884 (1987) (applying federal Title VII analysis to discrimination claim under section 12940). The district court therefore erred in concluding that Jackson’s wrongful discharge in violation of public policy claim is preempted. In so holding we do not infer, nor need we, that a common law claim of discrimination may be pursued independent of the California Fair Employment and Housing Act. See Salgado v. Atlantic Richfield Co., 823 F.2d 1322, 1325 (9th Cir.1987) (“there is no common law cause of action for employment discrimination in California”); but see Rojo v. Kliger, 209 Cal.App.3d 10, 257 Cal.Rptr. 158 (FHEA does not displace any causes of action and remedies which are otherwise available), rev. granted, 260 Cal. Rptr. 266, 775 P.2d 1035 (1989). We merely hold that if a common law cause of action does exist, it would not be preempted. Discrimination Under Cal. Gov't Code § 129jO Jackson alleges in count one that the conduct of the other employees of SCGC towards him was racially motivated in violation of Cal. Gov’t Code § 12940. This claim is not preempted for the same reason his claim for wrongful discharge based on a violation of public policy was not preempted. See Ackerman v. Western Elec. Co., 860 F.2d 1514, 1517 (9th Cir.1988) (claim of handicap discrimination under section 12940 not preempted by section 301 because protection against handicap discrimination is defined and enforced under state law without reference to the terms of any collective bargaining agreement); see also Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1285, 1286-87 (9th Cir.1989) (age discrimination claim under section 12940 not preempted by section 301 because the right not to be discriminated against is defined under state law without reference to the terms of the collective bargaining agreement); cf. Miller v. AT & T Network Sys., 850 F.2d 543, 549 (9th Cir.1988) (claim brought under Oregon’s discrimination statute not preempted because Oregon’s antidiscrimination statute has been construed by the Oregon Supreme Court to involve standards independent of a collective bargaining agreement). Breach of Implied Covenant of Good Faith and Fair Dealing Jackson alleges in count three that SCGC breached an implied covenant of good faith and fair dealing owed to him under California common law. See Foley v. Interactive Data Corp., 47 Cal.3d 654, 765 P.2d 373, 254 Cal.Rptr. 211 (1988). A claim of breach of the implied covenant of good faith and fair dealing is preempted by section 301 when an employee has comparable job security under a collective bargaining agreement. Chmiel, 873 F.2d at 1286; Newberry, 854 F.2d at 1147; Young, 830 F.2d at 999-1000; Harper v. San Diego Transit Corp., 764 F.2d 663, 667-69 (9th Cir.1985). As Jackson himself recognizes, the collective bargaining agreement permits discharge for cause only, and sets forth in great detail in section 12.03 what conduct will give rise to dismissal. The collective bargaining agreement therefore provides comparable job security and the breach of the implied covenant is preempted. Constructive Wrongful/Tortious Discharge The second count alleging “constructive wrongful/tortious discharge” is also preempted by section 301. In this cause of action, Jackson alleges that he had a contract of employment with SCGC for an indefinite term, and that he could not be dismissed except for good cause. He again cites to section 12.03 of the collective bargaining agreement in support of his claim. Because this claim requires construction of the terms and conditions of employment set forth in the collective bargaining agreement, it is preempted. Defamation/Libel and Slander Jackson alleges that he was defamed by the statements made by several SCGC employees accusing him of embezzlement, sexual harassment, and poor work performance. Jackson alleges that these statements were made public, although he does not state exactly how. In Tellez v. Pacific Gas and Elec. Co., Inc., 817 F.2d 536 (9th Cir.), cert. denied, 484 U.S. 908, 108 S.Ct. 251, 98 L.Ed.2d 209 (1987), we held that a defamation claim under California state law was not preempted. Id. at 538. The employee in Tellez alleged that he had been defamed as a result of the distribution of copies of a letter falsely accusing him of buying cocaine on the job. Id. We stated that: This claim neither asserts rights deriving from the collective bargaining agreement, nor requires interpretation of the agreement’s terms. California’s defamation law establishes nonnegotiable rights and obligations independent of any labor contract. One can sue for defamation regardless of employment status or union membership. Id. As in Tellez, Jackson’s claim does not implicate the collective bargaining agreement. Although it is not clear exactly how the alleged accusations were disseminated, viewing the facts alleged in the light most favorable to Jackson, the accusations do not appear to have been made pursuant to any requirements of the disciplinary procedures. Cf. Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1063 (9th Cir.1989) (finding defamation claim preempted because alleged statements were, contained in notices of intent to discipline and discharge notices required under the collective bargaining agreement, and therefore involved interpretation of the collective bargaining agreement). Accordingly, Jackson’s defamation claim does not require interpretation of the agreement and is not preempted. Intentional and Negligent Infliction of Emotional Distress Jackson’s claims of negligent and intentional infliction of emotional distress are based on the same conduct alleged in support of his other claims. Several of the actions relied upon by Jackson require analysis of the collective bargaining agreement. For example, the claims that he was accused of unsatisfactory work, of being a trouble maker, harassing other employees, and of other dishonest acts all relate to matters of discipline governed by section 12 of the collective bargaining agreement. Because disputes concerning the employment relationship are governed by the collective bargaining agreement, they are preempted by federal labor law. See Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1350 (9th Cir.1985); see also Shane, 868 F.2d at 1063; Hyles v. Mensing, 849 F.2d 1213, 1216 (9th Cir.1988); Young, 830 F.2d at 1002; Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1049 (9th Cir.); cert. denied, 484 U.S. 986, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987). In contrast to the collective bargaining agreement in Tellez, the collective bargaining agreement here contains detailed provisions governing the types of activities alleged by Jackson in support of his intentional and negligent infliction of emotional distress claims. See Hyles, 849 F.2d at 1216 n. 3 (distinguishing Tellez); see also Shane, 868 F.2d at 1063 (finding of no preemption in Tellez “hinged upon the fact that Tellez’s CBA ‘is silent on work conditions, and vague on disciplining formalities’ ”). Jackson contends that his emotional distress claims escape preemption under Farmer v. United Bhd. of Carpenters & Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). The Farmer test, however, no longer applies in section 301 cases. See Hyles, 849 F.2d at 1216-17 (Farmer test inapplicable to section 301 cases after Allis-Chalmers). C. Preempted Claims Properly Dismissed We have concluded that Jackson’s claims alleging breach of contract, breach of an implied covenant of good faith and fair dealing, constructive/wrongful tortious discharge, and negligent and intentional infliction of emotional distress are preempted by section 301. These claims were properly dismissed by the district court because Jackson failed to exhaust his contractual grievance procedures under the collective bargaining agreement. Generally, a bargaining unit employee may not bring an action for breach of the collective bargaining agreement unless he has exhausted the contractual grievance procedures. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965); Truer, 784 F.2d at 1353. The employee, however, may obtain judicial review of his claim despite his failure to exhaust contractual remedies if he can show that the union breached its duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 914-15, 17 L.Ed.2d 842 (1967). Jackson does not allege a claim of breach of the duty of fair representation in his complaint. He also does not name the union as a defendant. Attached to Jackson’s brief filed on appeal is his affidavit in which he states that in June 1986 he attempted to file a grievance with the appropriate union officials but that they refused to accept it. Jackson’s belated contention that he attempted to file a grievance was not included in the complaint and was not considered by the district court. In any event, any claim Jackson might have that the union breached its duty of fair representation in 1984 is time-barred under the six-month time period under Del Costello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 169-70, 103 S.Ct. 2281, 2293-94, 76 L.Ed.2d 476 (1983). D. Claims Not Preempted Jackson’s claims of discrimination under Cal.Gov’t Code § 12940, wrongful termination in violation of public policy, and defamation are not preempted. We remand these claims to the district court with instructions to consider whether pendent jurisdiction should still be exercised over these claims, and if not, whether under the guidance of Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), the claims should be dismissed without prejudice or remanded to state court. CONCLUSION The case was properly removed to federal court because Jackson’s breach of contract claim is preempted by section 301 of the LMRA. The district court had jurisdiction over the remaining claims under the doctrine of pendent jurisdiction. We affirm the dismissal of Jackson’s claims for breach of contract, breach of an implied covenant of good faith and fair dealing, constructive wrongful/tortious discharge, and negligent and intentional infliction of emotional distress because these claims are preempted by section 301 and Jackson failed to exhaust the grievance procedures contained in the collective bargaining agreement. We reverse the dismissal of Jackson’s claims for discrimination, wrongful discharge in violation of public policy, and defamation, and remand them to the district court for consideration consistent with our instructions above. Each party shall bear their own costs on appeal. AFFIRMED in part, REVERSED in part, and REMANDED. . SCGC did not address count six in its motion to dismiss. At the time it filed its motion to dismiss, however, SCGC did file a motion for a more definite statement pursuant to Rule 12(e) alleging Jackson's complaint was vague and ambiguous. The motion requested further information concerning the alleged publications pertaining to count six. . Although Jackson failed to file a motion to remand, he did not waive his right to seek remand on appeal since he raised the issue in his response to SCGC’s motion to dismiss and again at oral argument. See Harper v. San Diego Transit Corp., 764 F.2d 663, 666 (9th Cir.1985). . In Chmiel, we opted for the latter approach in determining whether we had jurisdiction over the plaintiffs state claims removed to federal court. Jurisdiction over state claims may be established under either method of analysis. The end result is identical regardless of which analysis is employed. Under either analysis nonpreempted claims must be remanded to the district court. The court must then determine whether pendent jurisdiction over the claims should be exercised, and if not, whether under Camegie-Mellon the claims should be dismissed without prejudice or remanded to state court. . Although SCGC characterized its motion as one to dismiss under Fed.R.Civ.P. 12(b)(6), it attached several affidavits and copies of the collective bargaining agreement and pension agreement to its motion. Under Rule 12(b)(6), if "matters outside the pleading are presented to and not excluded by the court,” a motion to dismiss must be treated as one for summary judgment under Rule 56. The district court did not explicitly exclude the extraneous matter during oral argument or in its order. We have, however, held that a "motion to dismiss is not automatically converted into a motion for summary judgment whenever matters outside the pleadings happen to be filed with the court and not expressly rejected by the court.” Northern Star Int’l v. Ariz, Corp. Comm’n, 720 F.2d 578, 582 (9th Cir.1983). The proper inquiry is whether the court relied on the extraneous matter. See id. A close reading of the transcript indicates that the court did not rely on the additional papers filed by SCGC in dismissing the complaint. The court concluded that the complaint was a sham pleading and that the action should be dismissed because Jackson had failed to utilize the grievance process under the collective bargaining agreement. Although the dismissal order refers to the “papers on file herein," the order was drafted by counsel for SCGC and does not properly reflect the basis of the judge's decision to dismiss. Accordingly, SCGC's motion is properly characterized as one to dismiss under Rule 12(b)(6). . We leave for resolution by the district court or state court the question whether any of these claims should be dismissed because Jackson was not "constructively discharged" at the time his complaint was filed.

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

MADSEN IRON WORKS v. WOOD et al. No. 9906. Circuit Court of Appeals, Ninth Circuit. Jan. 29, 1943. Rehearing Denied March 15, 1943. R. Welton Whann and Robert M. Mc-Manigal, both of Los Angeles, Cal. (Kelly L. Taulbee, of Los Angeles, Cal., of counsel), for appellants. Hackley & Hursh, Roy C. Hackley, Jr., and Jack E. Hursh, all of San Francisco, Cal., for appellees. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. DENMAN, Circuit Judge. This is an appeal from a declaratory judgment which holds that the appellees have a valid patent, serial number 1,997,-957, for a feeding mechanism of a -road mixing machine which the judgment also holds appellant had infringed by manufacturing and selling a similar road mixing machine having a mechanically equivalent feeding mechanism. Since we hold that the appellees claimed patent of the feeding mechanism, whether considered alone or as attached to the mixer, has no, novelty over the prior art, it is unnecessary to consider the question of appellant’s infringement. Appellees’ patent purports to find invention in a feeding mechanism into a portable cylinder carried on wheels with its rounded side parallel to the road, which at its forward end receives from the feed loosened and partially pulverized earth of an existing road into the cylinder, where it is stirred and mixed with mineral oil, the earth being propelled rearward by a double worm which brings the material from its forward entrance to the rear end of the cylinder where it is redeposited. The machines manufactured under appellees’ claimed patent are of excellent mechanical structure and have had commercial success in thus improving the surfacing Of dirt roads. Great stress is laid on this commercial success. One of the questions we have to consider is whether this is due to inventive novelty in its feeding mechanism, alone or in its attachment to the mixer, or due to mere mechanical excellence of the entire mixing machine as a whole having in it the application of known and established facts and principles of the prior art of mixing pulverized materials. No novelty is claimed or could be made because the major material is road dirt or because the mixing machine is portable on a wheeled conveyance. Nor is there any novelty in the use of the rearward turning double worm in its moving along of the earth inside the cylinder while the other materials are being mixed with it; nor in the circular turning paddle blades in the mixer set at angles to give at some places a propelling forward and at others a retarding motion to aid in both mixing and moving the material to its rear exit. Nor is there novelty in the flanged scraper which gathered the earth at • the forward end of the cylinder. Nor is there urged here a claim of novelty in the combination of these factors. The only claim of novelty is in the device itself and in the addition of ,the mechanical feed to such a mixer. A similar road mixing cylinder also parallel to the road and transported on wheels, with road earth moved through it by revolving mechanical equivalents of the worm in the appellees’ machine, was patented to one Popkess in serial number 1,-062,113. In the Popkess patent the opening through which the earth enters is on the lower face of the forward vertical cylinder head. In front of the hole is a horizontal scraper with side flanges angled downward into the pulverized earth on the road which scrapes it upwards and backwards till it comes into contact with the conveying apparatus inside the cylinder, which then carries it backward through the mixer. Appellee Wood made a model like the Popkess machine with a similar entrance in the forward vertical end of the cylinder and concluded the earth would pile up and be pushed forward. He therefore cut the hole backward into the forward part of the under curved side of the cylinder so that the hole extended from the vertical face diagonally downward across the cylinder’s forward lower end. The flanged scraper was placed at the lower end of the diagonal cut. With the hole thus diagonally cut, the lower part of the two forward blades of the rear propelling worm came in contact with the earth on the scraper and assisted in moving it backwards towards the remaining blades of the worm where the mixing process began. Upon this device, appellees’ patent claims of novelty are Claim 4. “* * said rotatable conveying and mixing mechanism in the cylinder having an extension beyond the front end of the cylinder to engage with, and initially act upon, the scooped up material before it reaches the cylinder and to operate to assist in feeding said material into the cylinder as the machine progresses.” There is no novelty in having a conveying device move material into a mixing machine, whether it be a worm or some' mechanical equivalent such as a series of paddles. Such a device, successive paddles on a rotating belt, is shown to move road earth over a scraper like plow into a mixer for combination with mineral oil, the whole mechanism carried over the road on wheels, in the drawing of the Murray road mixing patent, serial number 884,893. It does not constitute novelty in appellees’ mechanism for feeding earth into the mixer that the mixing process to which the earth is fed is not identical with that of the appellees. In another patent, serial number 1,332,-987, issued to Julian and Hutchings, for a stationary machine for mixing road materials, the drawing shows a worm revolving outside the cylindrical mixer and moving the material into the cylinder where a propelling and mixing device carries the earth on in the cylinder, there mixing it with the oil, the mass finally emerging at the other end. So far as concerns mechanical equivalents, it is a matter of indifference whether the earth is moved into the worm on its upper side, as in the Julian and Hutchings patent, or on its lower side as in appellees’ device, or that in one case the worm feeds a stationary mixer and in the other the mixer is being moved over a road. Assuming that attaching appellees’ feed to the mixing cylinder was at one time a patentable novelty, it was old in the art when appellee Wood filed his application. In view of this prior state of the art we are unable to see any invention in the claims of appellees’ patent upon which they rely here. A long known mechanical process or device processing pulverized material does not warrant patenting because its use is commercially profitable when it is applied on similar material at a different place, even though that process or device is there to be used for the first time as a commercial success. The decree declaring appellees’ patent to be valid and that appellant has infringed is reversed. Other claims are Claim 5 “ * * * a scraper blade and a pair of gathering blades carried by the vertically adjustable frame and disposed in front of the cylinder, * * Claim 7 ■“* * tt. a COnveyor carried by the shaft and disposed forwardly of the cylinder and engageable with said material for delivering it into the front end of the cylinder.” Claim 17 “ * * “ conveying means in front of the cylinder to engage the material and to feed the same into the cylinder, * * *_)> Claim 20 “ * * * a scraper on the advance end of the cylinder to scoop up the material to be treated, a screw conveyor having its forward end projecting beyond the front end of the cylinder and over the scoop and adapted to engage the scooped-up material before the latter enters the cylinder, * * Claim 21 “ * * * a conveyor extending through a substantial portion of the cylinder and projecting beyond the front end thereof, constructed and arranged to engage the scooped-up material to deliver it initially into the cylinder, * * *.” Claim 22 “ * * s: a scraper for scooping up the material from the roadway preparatory to its delivery into the cylinder as the machine progresses over the roadway, a screw conveyor within the cylinder with its forward end projecting beyond the front end of the conveyor and extending over the scraper to engage the scooped up material, * *

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

Edward DUNN, a/k/a James Pardue, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, R.T. Mulcrone, Regional Commissioner, U.S. Parole Commission, K.C., Mo., Respondents-Appellees. No. 86-1435. United States Court of Appeals, Tenth Circuit. May 14, 1987. Rehearing Denied Aug. 6, 1987. Edward Dunn, pro se. Before McKAY and SEYMOUR, Circuit Judges, and SAM, District Judge. The Honorable David Sam, United States District Judge for the District of Utah, sitting by designation. PER CURIAM. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument. Edward Dunn (petitioner) appeals the district court’s decision denying his petition for writ of habeas corpus. Petitioner challenged a ruling by the United States Parole Commission setting petitioner’s presumptive parole date at December 28, 1989, 630 F.Supp. 795. The hearing panel which initially considered petitioner’s current application set petitioner’s presumptive parole at April 29, 1985. The Regional Commissioner, however, referred this recommendation to the National Commissioners for reconsideration. The National Commissioners reopened the case and retarded petitioner’s parole, relying on a murder charge for which petitioner was acquitted by reason of insanity. The National Commissioners explained, “After review of all relevant factors and information presented, a decision above the guidelines appears warranted because you are a more serious risk than indicated by your salient factor score in that you have a history of serious assaultive behavior, including murder for which you were found not guilty by reason of insanity.” The Appeals Board affirmed. We first consider whether the district court had subject-matter jurisdiction over the petition for writ of habeas corpus. The Second Circuit has held that while habeas corpus is the sole vehicle for challenging a parole decision, a district court does not have subject-matter jurisdiction over the Parole Commission under 28 U.S.C. § 2241 because the Commission is not the petitioner’s “custodian.” Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2d Cir.1976). Instead, under the Second Circuit’s reasoning, a prisoner challenging a parole decision must name his warden in his petition. The Supreme Court has made clear, however, that the person named as “custodian” in a habeas corpus petition and the place of a petitioner’s “custody” are not always subject to a literal interpretation. In Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an Alabama prisoner challenged Kentucky’s lodging of a detainer against him. While the precise issue before the court was the choice of forum for a prisoner challenging an interstate detainer by way of federal habeas corpus, the Court addressed the issue of petitioner’s “custodian” by implication in holding that the prisoner should proceed in Kentucky. “In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of prisoner’s attack on the detainer.” Id. at 498-99, 93 S.Ct. at 1131-32. Although the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released. Rather, just as Kentucky controlled the duration of confinement in Braden and Alabama merely acted as Kentucky’s agent, so does the Commission directly control whether Mr. Dunn remains in custody. “So long as the petitioner names as respondent a person or entity with power to release him, there is no reason to avoid reaching the mérits of his petition.” Lee v. United States, 501 F.2d 494, 502-03 (8th Cir.1974) (Webster, J. concurring) (citing Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1168 (1970)). We agree. Notwithstanding the Second Circuit’s view, this court holds that under the circumstances of this case the Parole Commission may be considered petitioner’s “custodian” for purposes of a challenge to a parole decision under 28 U.S.C. § 2241. On the merits, petitioner argues that the Commission cannot consider his insanity acquittal in setting his parole date. The Commission amended its regulations in 1984 specifically to permit consideration of an acquittal by reason of insanity. See 49 Fed.Reg. 34207 (August 29, 1984) (codified at 28 C.F.R. § 2.19(c)(2)). The current version of § 2.19(c) states that “the Commission shall not consider in any determination, charges upon which a prisoner was found not guilty after trial unless ... [t]he prisoner was found not guilty by reason of his mental condition.” (emphasis added). Petitioner argues that the Commission does not have the statutory authority to promulgate this amended regulation and that even if the Commission may currently consider such an acquittal as a factor in its decision, the change in its regulations in 1984, if given retroactive effect, violates the Constitution’s prohibition against ex post facto laws. “The standard of review of action by the Parole Commission is whether the decision is arbitrary and capricious or is an abuse of discretion.” Dye v. United States Parole Comm’n, 558 F.2d 1376, 1378 (10th Cir. 1977). Although the Commission’s guidelines are flexible and are not absolutely binding in any parole decision, the Commission must have “good cause” for setting parole eligibility beyond the guidelines. 18 U.S.C. § 4206(c). In establishing good cause, the Commission may not rely on reasons that are outside the scope of its authority to consider. Joost v. United States Parole Comm’n, 698 F.2d 418 (10th Cir.1983). Finally, if the Commission goes beyond the guidelines, the prisoner must be “furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.” 18 U.S.C. § 4206(c). In making a parole decision under 18 U.S.C. § 4206(a), the Commission considers whether a prisoner’s “release would ... depreciate the seriousness of [the prisoner’s] offense or promote disrespect for the law; and ... [whether] that release would ... jeopardize the public welfare.” This court substantially agrees with the district court that in deciding whether a prisoner’s release will jeopardize public welfare, the Commission may consider an insanity acquittal as evidence of mental instability giving rise to assaultive behavior. In such a context, the prisoner’s culpability is not an issue. See Steinberg v. Police Court, 610 F.2d 449 (6th Cir.1979); Knight v. Estelle, 501 F.2d 963 (5th Cir.1974), cert. denied, 421 U.S. 1000, 95 S.Ct. 2399, 44 L.Ed.2d 668 (1975). Where, however, the Commission considers the acquittal only in terms of whether the prisoner’s release would encourage disrespect for the law or depreciate the seriousness of his offense, the Commission exceeds its authority. In Missouri, where petitioner was tried, an insanity acquittal is equivalent to a finding that the defendant was “incapable of understanding that the particular act in question was a violation of the law of God and of society.” State v. Johnson, 485 S.W.2d 106, 113-14 (Mo. 1972). For the Commission to decide wholly on its own that a prisoner should remain incarcerated so that he may respect the law and appreciate the seriousness of an act he committed while insane goes behind the jury’s verdict to punish a prisoner for an act for which he was not culpable. See Little v. Hadden, 504 F.Supp. 558 (D.Colo. 1980). The Commission ostensibly based its decision on parole risk. The record before us and the reasons the Commission has provided for its decision, however, make clear that the use of the insanity acquittal in calculating petitioner’s presumptive parole date was based solely on punitive considerations. The record reflects no evidence to support a finding of parole risk based on current mental illness. Indeed, the record reflects a favorable initial recommendation by the hearing panel based on exemplary institutional adjustment and a conclusion by the prison staff psychologist that petitioner is not mentally ill. The Commission’s reliance on an insanity acquittal arising from events occurring approximately eighteen years ago to retard petitioner’s parole date was thus arbitrary and capricious and an abuse of discretion. See Dye, supra. We therefore reverse the district court’s decision and remand with instructions to remand to the Commission to hold a new parole hearing to consider only permissible factors with support in the record in setting petitioner’s parole date. The Commission must hold a new hearing for petitioner within thirty days of the date of this opinion or release him. We note that the Commission held an interim hearing during the pendency of this appeal at which the Commission continued petitioner to the expiration of his sentence. The Commission utilized identical reasoning in denying petitioner’s parole after the interim hearing. This parole determination thus has no effect on our decision in this case. Petitioner next argues that the insanity acquittal in his record cannot be considered by the Commission because the amendment promulgated explicitly to permit consideration of this factor violates the ex post facto clause of the Constitution if applied retroactively. Because we hold that in this case the Commission abused its discretion in relying on the insanity acquittal in petitioner’s record, we need not address whether the use of insanity acquittals would violate the ex post facto clause. The judgment of the United States District Court for the District of Kansas is REVERSED, and this case is REMANDED to the district court with instructions to remand to the United States Parole Commission for proceedings consistent herewith. The mandate shall issue forthwith.

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?

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

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Roy W. PILLING, Jimmy Lee Penix, Alan Russell Varley, and Richard Oliver Christensen, Defendants-Appellants. Nos. 81-1597, 81-1661, 81-1668 and 81-1687. United States Court of Appeals, Tenth Circuit Oct. 4, 1983. Teresa Black, Asst. U.S. Atty., Oklahoma City, Okl. (William S. Price, U.S. Atty., Oklahoma City, Okl., with her on brief), for plaintiff-appellee. Jack D. McCurdy, Oklahoma City, Okl. (Garland Bloodworth, Oklahoma City, Okl., with him on brief), Bloodworth & Associates, Oklahoma City, Okl., for defendant-appellant Roy Pilling. C. Merle Gile, Oklahoma City, Okl. (D.C. Thomas, Oklahoma City, Okl., with him on brief), for defendant-appellant Jimmy Lee Penix. James M. Gattey, San Diego, Cal., Barry R. Davis, Oklahoma City, Okl., for defendant-appellant Richard Oliver Christensen. Before BARRETT and SEYMOUR, Circuit Judges, and KERR, District Judge of the United States District Court for the District of Wyoming, sitting by designation. BARRETT, Circuit Judge. Richard Oliver Christensen (Christensen), Jimmy Lee Penix (Penix), Roy W. Pilling (Pilling) and Alan Russell Varley (Varley) each appeal verdicts of guilty following a three week jury trial to Count I of a five-count indictment. Count I charged that commencing April 1980, and continuing until about August 30, 1980, in Oklahoma City, Oklahoma, and Colorado, California, Texas, and Lima, Peru, the appellants “did combine, conspire, confederate and agree with Edward W. James, III (James), Ronald Anthony Kleist (Kleist), Barton Lane Richards (Richards), and with other persons unknown to the Grand Jury, to violate Title 21, United States Code, Section 952 in that they did conspire to import into the United States from Peru cocaine HCL, a Schedule II controlled substance.” In addition: (a) Christensen and Penix were found guilty of Count IV charging that on or about August 25, 1980, at Texas and at Norman, Oklahoma, they did unlawfully travel in interstate commerce from San Antonio, Texas, to Norman, Oklahoma, in violation of 21 U.S.C. § 841(a)(1), to take possession of a shipment of nine crates containing about 8.1 kilograms of cocaine concealed in 16 one-gallon cans of Glashol and that the defendants performed or attempted to perform acts to carry out the unlawful activity, all in violation of 18 U.S.C. § 1952; (b) Penix was found guilty of Count V of the indictment charging that on or about August 30, 1980, the defendant knowingly used a telephone communication facility at Texas and Oklahoma City to discuss with James and Kleist the delivery of nine crates containing 16 one-gallon cans of Glashol in which cocaine was concealed, all in violation of 21 U.S.C. §§ 843(b) and 963; (c) Pilling was found guilty of Count II of the indictment charging that on or about August 27, 1980, in New Mexico and Oklahoma he did use a telephone communication facility in facilitating the conspiracy to import cocaine by discussion with James relative to the arrangements for delivery of nine crates containing the cocaine, all in violation of 21 U.S.C. §§ 843(b) and 963. None of the appellants were charged with possession of cocaine or the actual distribution thereof, but the Grand Jury charged seven specific occurrences constituting the conspiracy, together with twelve specific overt acts in furtherance of the conspiracy designed to accomplish the objectives thereof. On appeal following jury convictions, we must view the entire record “in the light most favorable to the Government in order to determine whether the evidence, both direct and circumstantial, together with all reasonable inferences to be drawn therefrom, is substantial enough to establish guilt beyond a reasonable doubt.” United States v. Petersen, 611 F.2d 1313 (10th Cir. 1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980); Mares v. United States, 409 F.2d 1083 (10th Cir.1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969). “Evidence is not necessarily insufficient merely because the witness’ testimony has been contradictory and the explanations therefore difficult of belief.” United States v. Jackson, 579 F.2d 553 (10th Cir.1978) 439 U.S. 981, 99 S.Ct. 569, 58 L.Ed.2d 652 (1978), quoting from Batsell v. United States, 403 F.2d 395 (8th Cir.1968), cert. denied, 393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785 (1969). The evaluation of the credibility of witnesses is a matter for the jury and is not a function of an appellate court. United States v. McClain, 501 F.2d 1006 (10th Cir.1974). The court of appeals is bound by the rule that resolution of conflicting evidence is exclusively within the discretion of the jury, as the trier of fact, and its findings must be given added weight when the opportunity to hear and observe the witnesses is considered. United States v. Hubbard, 603 F.2d 137 (10th Cir.1979). These rules become particularly important in cases involving detailed transactions, meetings, etc., proof of which, in an evidentiary sense, is necessary in order to establish a conspiracy; and even more so when the Government’s case is primarily developed, as here, by testimony of two co-conspirators, Edward W. James, III, a/k/a “Dub” James, and Richards, who, together with Ronald Kleist, did the actual smuggling of cocaine from Peru to the United States. See United States v. Jackson, supra. The above rules are important in cases such as this because, by necessity, proof of an ongoing conspiracy involving the importation of and/or distribution of a controlled substance is, in an evidentiary sense, closely akin to a jigsaw puzzle. The Government must present the evidence in such a manner that the “parts” fit together to establish the charges advanced. The evidence in this case is both direct and circumstantial. The jury found the appellants guilty, thus determining that the Government had borne the burden of proof of guilt beyond a reasonable doubt. Some background facts, in summary fashion, are in order. The intricate scenario, as evidenced by the three-week trial record, makes it impossible to fully detail the facts reviewed. Thus, in “capsule” form we will endeavor to recite the relevant facts. The “actors” in this complicated case are all generally college educated, in their early or mid thirties, members of the high “middle class” with substantial “white collar” credentials. At the “hub” of the conspiracy were three individuals, each of whom, at the trial of this case, had been indicted and had entered guilty pleas to charges arising out of the cocaine smuggling conspiracy charged. The “ringleader” was probably James, age 36. He had obtained a Master’s Degree in Education and, following some years of teaching and service as principal of an elementary school in Norman, Oklahoma, he determined to retire from education in 1977. For a short time he pursued house painting and occasional drug dealings to meet his needs. He was no stranger to the drug dealing business. James moved to Eagle, Colorado, in February, 1980 where he resided in a home owned by his brother-in-law, Ronald Kleist, and his sister, Jennie Von Kleist, a/k/a Char or Charr Kleist. James testified that he moved to Colorado in order to enter into the “cocaine smuggling business” with Ron Kleist and Richards, of Vail, Colorado. James, Kleist, Jennie and Richards had pri- or drug dealing experience. [R., Vol. XVIII, p. 1335]. The record evidences that James, Kleist and Richards were the “hub” of the drug-smuggling conspiracy. At the time of trial of the case at bar, James, Kleist and Richards had been indicted and were serving sentences arising out of the drug smuggling activities involved in this ease. Each had pled guilty. James had entered into a plea agreement with the Government whereby, in consideration to acceptance of his plea to two counts of a six-count indictment, he agreed to testify as a Government witness against Kleist and Richards and to otherwise cooperate with the Government in other matters involving the drug smuggling activities. James testified at trial and gave full and comprehensive testimony about the entire scheme. At the time of James’ appearance as a witness herein, he was incarcerated at the Federal Prison Camp at Safford, Arizona, serving a concurrent term of three years to two counts. His testimony was most damaging to the theories and/or defenses advanced by the appellants. Kleist did not appear as a witness at this trial following his plea and incarceration. Richards, 32 years of age at the time of this trial, was serving a five-year sentence at Lompoc Prison Camp, California, following his plea to two counts, one involving a conspiracy to import cocaine and the other, use of a telephonic device to promote the conspiracy. Richards did not appear as a witness voluntarily. He appeared under order of the court whereby he was granted immunity, except for perjured testimony. He testified reluctantly; in fact, the Government was permitted to interrogate him as a hostile witness. His testimony in large measure corroborated that of James and Jennie Von Kleist. She, age 37 at the time of this trial, was divorced from Kleist. She had not been prosecuted. She appeared under Government subpoena and the grant of immunity in connection with all charges involved in this case with the exception of perjured testimony. In sum, the testimony of James, Richards and Jennie Von Kleist, together with other Government testimony and exhibits, if believed by the jury, as it was, was quite substantial and damaging. Kleist and Richards owned a business in Eagle, Colorado, known as Promethean Tile when James arrived on the scene from Oklahoma. The business was in bad financial straits and Kleist and Richards were in need of money for their business and personal needs. A scheme was devised between James, Kleist and Richards to import cocaine from Peru for resale and profit in the United States. Various means were employed to legitimize the first trip to Peru, basically using a honeymoon for recently married Ron and Char Kleist and the promotion of Promethean Tile in South America as “fronts”. Many details were worked out in this regard in order to deceive customs officials. Jennie Von Kleist contributed about $17,000.00, which she had recently inherited, in the Promothean Tile business and the scheme. Pilling, the owner of a business known as Five Star Chemical Company (Five Star) of Oklahoma City, Oklahoma, which was also in pressing financial straits, met with James, Kleist, Richards and Char at his place of business and “invested” $10,000.00 in the initial trip to Peru. Pilling was to double his investment from the profits. The plans worked to perfection. About April 10, 1980, Kleist and Jennie (Char) arrived in Lima, Peru, for their honeymoon. James and Richards “fronted” the promotion of Promethean Tile sales. A kilo of cocaine was purchased in Peru, inserted in or packed in the display tiles, flown from Peru to Brazil and from there to Eagle, Colorado. The cocaine was of high quality. It was thereafter bottled in 8-ounce bottles and taken to California by James and Kleist where contacts and meetings were had with Christensen, attended by James, Kleist, Richards and Jennie. Prior to leaving California, the cocaine was sold with the exception of some five ounces which were delivered to Varley by Kleist. The profit from the smuggling enterprise elated James, Kleist and Richards. A second trip to Peru to smuggle cocaine was quickly agreed upon by James, Kleist and Richards. They were in need of “investors” with substantial cash and additional or new fronting to attempt to legitimize the trip and to avoid detection. A complicated series of trips and meetings between James, Kleist, Richards and Jennie on the one hand and the appellants on the other followed. The “cover” for the second trip was initially to involve both Promethean Tile Company and Five Star. It was ultimately determined, following discussions between James, Kleist and Richards, as “hub” conspirators, and the appellants, as “investors” or “spoke” conspirators, that the second trip to Peru should involve the promotion of Five Star chemicals and equipment with business interests in Peru and South America. The use of a chemical solution whereby the cocaine would be dissolved and, following entry into the United States, reconstituted was discarded in favor óf a plan to bring the cocaine out of Peru in “flake” form in crates of Five Star. Pilling set up a variety of business identifications and lists of chemical products and machines to legitimize the venture. James and Kleist were adequately identified as representatives of Five Star prior to the trip. Prior to their departure for Peru, James and Kleist met in San Antonio, Texas, with Penix and Christensen, who “invested” $15,000.00 in the smuggling plan. James and Kleist arrived in Peru about June 20, 1980. The cocaine, placed in some nine crates of Glash-ol designed for shipment to James at Five Star, was detected in Peru prior to shipment. The United States Drug Enforcement Administration (DEA) was contacted. The shipment was then made under surveillance and when claimed in Oklahoma City, arrests of James, Kleist and Richards soon followed. The cocaine concealed in the crates, consisting of about 18 pounds, was purchased for about $140,000.00. Melvin B. Ashton, Agent in Charge, Oklahoma City Resident Office, DEA, Department of Justice, testified that he interviewed James on October 29,1980 (James was available to be called as a witness at trial) and James related meetings, trips, investments and transactions involving the cocaine smuggling scheme and the roles played by the appellants which closely parallel James’ trial testimony, substantially corroborated by Richards and Jennie Von Kleist. The appellants, as the “investors” in the cocaine smuggling scheme became the “spokes” of the conspiratorial wheel. Kleist and Richards borrowed $8,500.00 from Varley and he was partially repaid in cocaine. Christensen and Penix owned a business in San Antonio, Texas, known as Mineral Hunters, Inc., which dealt in the sale of decorative rocks and fossils. They had sold cocaine for Kleist in the past. In March 1980, Christensen and Penix visited in Colorado with Kleist and Richards, ostensibly out of interest in the tile business. They loaned Kleist and Richards $10,000.00 with the understanding that Christensen and Pe-nix would purchase some of the cocaine at a profit if the initial smuggling trip proved successful. James contacted Pilling at Five Star Chemical Company in Oklahoma City and solicited his investment in the scheme. Each of the appellants testified in his own behalf and presented other witnesses and exhibits. Without exception, each denied any knowledge of the cocaine smuggling scheme. All appellants contended, essentially, that they believed they were investing in legitimate business enterprises and that they had no knowledge of or intent to invest in a cocaine smuggling scheme. They did acknowledge acquaintanceship with one or more of the “hub” co-conspirators, James, Kleist and Richards, and also with Jennie Von Kleist. They also acknowledged that certain moneys were advanced to enhance business prospects of Five Star, Mineral Hunters, Incorporated, and Promethean Tile. For example, Pilling testified that James wanted to be factory representative of Five Star with an office in South America for exporting and importing, the latter involving Peruvian curios and rugs and other interior decorating materials. Pilling handed James cash in the amount of $10,000.00 on two occasions [R., Vol. XXI, pp. 2230, 2231, 2238]. Penix, a graduate of the University of Texas with a degree in geology, had become acquainted with Christensen. Penix organized a business known as Minerals Unlimited, located at Austin, Texas. It sold natural minerals, fossils and seashells for decorative purposes in homes and offices. Richard Christensen and his father, Oliver, invested in the business. They were interested in broadening out the business to include wall hangings of decorative rugs and tapestries and cut tile from agate to be imported from Brazil. Penix and Christensen became aware of the business known as Promethean Tile, of which Bart Richards was the “brains”. Pe-nix and Christensen met with James, Kleist and Richards in Colorado at which time some $10,000.00 was “loaned” to Kleist and Richards to help the company. James was present and inquired of Penix and Christensen about representing them in South America in buying products for importation. Contrary to the testimony of James and Richards that he “invested” $25,000.00 in the cocaine smuggling scheme, Varley testified that he gave them $25,500.00 for purchase of an extruding machine which, together with a prior loan, brought his total unpaid investment to about $30,000.00. He denied the testimony of James and Richards that the $30,000.00 “investment” was in the cocaine smuggling scheme which, if successful, would have realized a kilo of cocaine and, if cut to 10%, may have realized some $210,000.00. Varley testified that he tendered the $25,500.00 in cash and that there was no written agreement evidencing the loans. [R., Vol. XXII, pp. 2807-2811]. While there are separate or individual issues raised on appeal by one or more of the four appellants, we deem the following issues determinative of these appeals. They are whether (1) there was sufficient evidence to sustain the jury’s determination of guilt as to each defendant-appellant as found; (2) the evidence established the existence of a single conspiracy as charged or multiple conspiracies; (3) the trial court erred in admitting co-conspirators’ hearsay testimony; (4) the Government “connected-up” the improperly admitted hearsay testimony of co-conspirators with independent proof of the existence of the conspiracy; and (5) admitted evidence of uncharged drug transactions; i.e., prior bad acts, was prejudicial. I. Appellants contend, directly or indirectly, that the Government failed to present substantial evidence in support of the jury’s verdict of guilt of each defendant to those counts upon which guilt was found beyond a reasonable doubt. We will not rehash the detailed evidence. Our summary review does, we believe, establish that the testimony of the “hub” co-conspirators, James and Richards, bolstered by the corroborated testimony of Jennie Von Kleist and others, when considered with the circumstantial evidence presented, clearly evidences one “scheme”; i.e., importation of cocaine from Peru to the United States for profit. The evidence is substantial that each of the appellants did “invest” in the scheme for profit with full knowledge of the cover-up plans, and the dates of the trips. The delivery of large sums of cash to the “hub” co-conspirators, ostensibly for the purposes of loans or investments in legitimate business enterprises, was not evidenced by notes, security interests, or other written documents. These were not the practices of business entrepreneurs who are well educated and acquainted with the ways of the business world. The large amounts of moneys delivered by the defendants to the “hub” co-conspirators under the circumstances of this record were not explained to the satisfaction of the jury. When the entire evidence is considered, we hold that the evidence was strong and sufficient to sustain the jury’s verdicts. An unlawful agreement among conspirators is established if the jury finds, as here, that the acts, discussions, conduct and surrounding circumstances lead a reasonable mind to conclude beyond a reasonable doubt that the unlawful agreement did exist. United States v. Jackson, 482 F.2d 1167 (10th Cir.1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974). II. Appellants contend that the evidence established the existence of multiple conspiracies rather than a single conspiracy as charged, and thus the motions for dismissal, judgment of acquittal, mistrial and instruction on multiple conspiracies was required. We disagree. There was one conspiracy in this case— that of importing cocaine from Peru into the United States. It was born when James first arrived in Eagle, Colorado. He, Kleist and Richards, the “hub” of the conspiracy, soon agreed upon a scheme to effectuate the illicit drug transactions. There was nothing whatsoever indicating that one trip and one trip only to Peru was contemplated. The “scheme” was open-ended, designed to serve the intended purpose: that of realizing substantial sums of money from the sale of imported cocaine in the United States. The reason was simple. James, Kleist and Richards were hard pressed for funds. Bankruptcy loomed for Kleist and Richards. Each had extensive prior experience in illicit drug transactions and all were knowledgeable with regard to the extreme profits to be realized if the illegal scheme should succeed. Further, each of the original three co-conspirators was fully aware of the risks involved in the scheme. However, they were hard pressed financially and were eager to recruit “investors” to see the scheme through. In United States v. Andrews, 585 F.2d 961 (10th Cir.1978), we there observed that which we believe is applicable here in rejecting appellants’ contentions that the evidence established the existence of multiple conspiracies, rather than one as charged: The essence of the crime of conspiracy is an agreement to violate the law. United States v. Butler, 494 F.2d 1246 (10th Cir.1974); Carter v. United States, 333 F.2d 354 (10th Cir.1964). The evidence in a criminal conspiracy trial, such as the instant case, need only establish the existence of a conspiracy and that a defendant knowingly contributed his efforts in furtherance thereof. United States v. Jackson, 482 F.2d 1167 (10th Cir.1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974); Collins v. United States, 383 F.2d 296 (10th Cir.1967). The nature of the offense of conspiracy with its attendant aspects of secrecy, often requires that elements of the crime be established by circumstantial evidence. Thus, the common plan or purpose may be inferred from a combination of circumstances. Jordan v. United States, 370 F.2d 126 (10th Cir.1976), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595 (1967); Baker v. United States, 329 F.2d 786 (10th Cir.1964), cert. denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56 (1964). The Government’s evidence may establish an on-going course of conduct giving rise to one continuing conspiracy, covering an extended period of time. United States v. Bridwell, 583 F.2d 1135 (10th Cir.1978); United States v. Gunter, 546 F.2d 861 (10th Cir.1976), cert. denied, 431 U.S. 920, 97 S.Ct. 2189, 53 L.Ed.2d 232 (1977). Accordingly, a party may join an ongoing conspiracy during its progress and become criminally liable for all acts done in furtherance of the scheme. United States v. Gamble, 541 F.2d 873 (10th Cir. 1976); United States v. Thomas, 468 F.2d 422 (10th Cir.1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973). Once a conspiracy is established, only slight evidence is required to connect a co-conspirator. United States v. Turner, 528 F.2d 143 (9th Cir.1975), cert. denied, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976); United States v. Rodriquez, 498 F.2d 302 (5th Cir.1974); United States v. Marrapese, 486 F.2d 918 (2nd Cir.1973), cert. denied, 415 U.S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 891 (1974). 585 F.2d at p. 964. The evidence in this record established that there was one conspiracy, joined by various co-conspirators as the scheme progressed. The indictment charges a conspiracy to import cocaine into the United States from Peru from April 1980, until August 30,1980. The object was and at all times remained that of importing cocaine for profit upon distribution in the United States. It matters not how many trips were involved in fulfillment of the scheme. The plan, design and purpose was constant — the realization of great profit should the scheme succeed. It makes no difference that the “actors” or participants joined the conspiratorial scheme at different times under varying circumstances. This was a single scheme, a single conspiracy at all times. The “common objective” test has been used often to connect the many facets of drug importation and distribution schemes. United States v. Watson, 594 F.2d 1330 (10th Cir.1979), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979). III. and IV. Appellants contend that the trial court erred in not making a determination whether there was substantial, independent evidence of the alleged conspiracy at the close of all of the evidence before permitting the jury to consider hearsay testimony of co-conspirators. Further, appellants contend that the Government improperly “connected up” alleged improperly admitted hearsay testimony with independent proof of the existence of the conspiracy. Appellants point to the following language in United States v. Peterson, supra, quoting United States v. James, 590 F.2d 575, 582 (5th Cir.1979) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), and contend that the trial court did not make a finding that the existence of the alleged conspiracy was established by evidence independent of the hearsay testimony of co-conspirators: [RJegardless of whether the proof has been made in the preferred order, or the co-conspirator’s statement has been admitted subject to later connection, on appropriate motion at the conclusion of all the evidence the (district) court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed (2) that the co-conspirator and the defendant against whom the co-conspirator’s statement is offered were members of the conspiracy and (3) that the statement was made in the course and in the furtherance of the conspiracy. 611 F.2d at pp. 1330, 1331. The Government responds that appellants have not specified where, in the trial transcript, the hearsay is shown or whether proper objection was lodged or whether it was plain error. Further, the Government argues that it is well settled that hearsay, in itself, is not a proper ground for reversible error, nor is it always inadmissible, citing to Rule 803, Federal Rules of Evidence; United States v. Amon, 669 F.2d 1351, 1358 (10th Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 57, 74 L.Ed.2d 61; and United States v. Popejoy, 578 F.2d 1346, 1350 (10th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 257, 58 L.Ed.2d 243 (1978). Our review of the record substantiates the Government’s contentions. Even so, we will discuss the manner in which the trial court admitted that which the court arguably considered hearsay. In this regard, we repeat that two of the “hub” co-conspirators, James and Richards, testified as Government witnesses, as did Jennie Von Kleist. Each of the appellants, charged as co-conspirators, whom we have referred to as “spokes” of the conspiratorial wheel, voluntarily testified in their own defense. Of the charged co-conspirators, only Ronald Kleist did not testify at trial. The record reflects that, contrary to appellants’ contention, the trial court did, at the close of the Government’s case, find that the Government had established, by a preponderance of the evidence, that a conspiracy existed, the defendants were members of the conspiracy and that the hearsay statements of the co-conspirators were made in the course of and in furtherance of the conspiracy. After the Government rested, and out of the presence of the jury, the trial court stated: THE COURT: I think it comes now for the Court to complete the record with reference to what the Court said at the beginning of the trial of this case. The Court’s finding at the close of the Government’s evidence, co-conspirators hearsay statements: Pursuant to the 10th Circuit Court’s holding in the case of the United States v. Petersen, 611 F.2d 1313, (10th Cir.1979), the Court now makes the following finding: One, the Court reaffirms its finding that in this case it was not reasonably practical to require the following showings be made before admitting hearsay statements of co-conspirators, or statements of co-conspirators. Two, regarding those co-conspirators’ hearsay statements conditionally admitted by the Court subject to linking up or tying in, the Court finds these statements were properly admitted against other members of the conspiracy because the prosecution has shown by a preponderance of the evidence, independent of each statement itself that (a) a conspiracy existed, and (b) the conspiracy and the defendants against whom the co-conspirators’ statements were offered, were members of the conspiracy and (c) that the statement was made during the course and in furtherance of the conspiracy. [R., Vol. XX, pp. 1950, 1951], We observe that there was an abundance of evidence independent of the testimony of James, Richards and Jennie Von Kleist relative to their direct observations, contacts and conversations with the appellants (which was not hearsay) relative to the smuggling scheme, the investment and/or reinvestment of money in the scheme, letters, travel vouchers and other indicia of the existence of the conspiratorial scheme. Furthermore, this Court, in United States v. Petersen, supra, after reviewing our holding in United States v. Andrews, supra, pertinently observed: We have carefully reviewed the evidence as to each complaining appellant in regard to this issue. We observe that in the instant case the District Court employed the test previously adhered to in this Circuit. Following the presentation of the Government’s case in chief, the trial judge ruled that the Government had presented sufficient evidence, independent of the hearsay statements, to support a finding by the Jury as to each Defendant concerning the existence of the requisite elements. 611 F.2d at p. 1329 In this case, the trial court made a preliminary finding in camera that the “preferred order of proof” which this court addressed in Andrews, supra, and Petersen, supra, was not reasonably practical. Thus, any hearsay statements of co-conspirators were conditionally admitted subject to linking up or tying up. In United States v. DuFriend, 691 F.2d 948 (10th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 820, 74 L.Ed.2d 1017, we observed, inter-alia. In Petersen, we stated that the trial court’s determination regarding the admissibility of hearsay co-conspirators’ statements should normally be made during the government’s case in chief, and that a substantial independent evidence rule must be applied. We also recommend that, whenever possible, the prosecution first introduce its independent proof of the conspiracy and the defendants’ connection thereto before admitting hearsay declarations of co-conspirators. Id. at 1330. [Underlining supplied]. 691 F.2d at p. 951 In United States v. Stipe, 653 F.2d 446 (10th Cir.1981), we sustained a trial court’s refusal to grant the Government’s pre-trial motion that it be permitted to introduce hearsay testimony of a co-conspirator prior to independent evidence of the existence of the conspiracy, subject to tying up. We there again reviewed Andrews and Petersen. Unlike the case at bar, the trial judge in Stipe did not make a preliminary determination that the preferred order of proof should be complied with. To the contrary, in the case at bar the trial court determined preliminarily that it was not practical to require the Government to first introduce independent proof of the conspiracy and, subsequent thereto, to establish the connection of the defendants with the conspiracy before admitting hearsay declarations of co-conspirators. We have not established a per se rule in this regard. In each case, the court of appeals should carefully review the record in order to ascertain whether the trial court was justified in admitting the hearsay on the conditional basis; i.e., subject to “connecting it up” with independent evidence of the existence of the conspiracy. In the case at bar, the intricate, interwoven web of contacts, meetings, disguises and unusual “business” dealings and practices justified the action of the trial court. The defendants did not directly or specifically challenge the trial court’s admission of the hearsay testimony at the close of all of the evidence. Thus, it is questionable that the challenge posed here was properly preserved for review. If a party fails to object to the admission of evidence, we will not reverse unless plain error was committed. United States v. Amon, supra. Where objections are not clearly posited, we must look to the entire record to determine whether the defendants suffered prejudice sufficient to justify reversal. Thus, in United States v. Monaco, 700 F.2d 577 (10th Cir.1983), where no timely objections were lodged to the admission of a co-conspirators’ hearsay testimony, we observed, inter-alia: Nor does the admission of the testimony appear to have compromised the defendants’ ability to receive a fair trial in any way. See United States v. Chaney, 662 F.2d 1148, 1153-54 (5th Cir.1981). Other evidence in the case overwhelmingly supported the conspiracy convictions. 700 F.2d at p. 582. We hold that the trial court did not err in the conditional admission of co-conspirators’ hearsay testimony. We further hold that the record contains substantial independent proof of the existence of the conspiracy. V. Appellants object that error occurred when the trial court admitted evidence of uncharged drug transactions; i.e., prior bad acts. Appellant Pilling particularly complains of cross-examination conducted by the Government when he was asked whether he had smoked marijuana and whether he had “sniffed” cocaine, both of which he denied. No error occurred. Pilling testified that his sole interest was that of investing in the purchase of curios to be obtained in South America and that James was to go to South America both to invest in interior decorating items and to investigate the market for his business. James had previously described Pilling’s drug use. This Court has held that evidence of other crimes, wrongs or acts is admissible under Rule 404(b), Federal Rules of Evidence, to establish motive, opportunity, intent, knowledge, plan, or absence of mistake

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?

Augustus E. HARVIN, Appellant, v. UNITED STATES of America, Appellee. No. 22317. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 20, 1970. Reargued En Banc Jan. 21, 1971. Decided May 7, 1971. Opinions were filed by Fahy, Senior Circuit Judge, and MacKinnon and Tamm, Circuit-Judges. Part I of the opinion of Judge Fahy expressed the view of a majority of the court on the application of the Youth Corrections Act, and was concurred in by a majority of the court. Part II of the opinion of Judge Fahy, joined by Baze-lon, Chief Judge, and J. Skelly Wright and Spottswood W. Robinson, III, Circuit Judges, dissented from the determination that a jury trial was validly waived. Part I of the opinion of Judge Mac-Kinnon expressed the view of a majority of the court on the application of the Youth Correction Act. Part II of the opinion of Judge MacKinnon, joined by McGowan, Leventhal, Robb, and Wilkey, Circuit Judges, expressed the conclusion that a jury trial was validly waived. Judge Tamm, joined by Robb and Wilkey, Circuit Judges, agreed that a jury trial was validly waived. Judge Tamm, joined by J. Skelly Wright, Robb, and Wilkey, Circuit Judges, dissented from the majority’s determination as to the application of the Youth Corrections Act. Mr. David B. Lamb, Washington, D. C. (appointed by this court), for appellant. Mr. John D. Aldock, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc. ON REHEARING EN BANC PER CURIAM: Appellant was tried on an Information in the District of Columbia Court of General Sessions for petit larceny, in violation of D.C. Code § 22-2202, and for unlawful entry on property, in violation of D.C. Code § 22-3102. Both offenses are misdemeanors. He withdrew his demand for a jury, asked to be tried by the court, and was tried in that manner. He was acquitted of petit larceny and convicted of unlawful entry. The penalty for this offense, prescribed by Section 22-3102, is a fine not exceeding $100 or imprisonment in the jail for not more than six months, or both. He was sentenced, however, under the Youth Corrections Act, 18 U.S.C. § 5005, et seq., which provides that a youth sentenced under the Act shall be released conditionally under supervision on or before the expiration of four years from his conviction and shall be discharged unconditionally on or before six years from conviction. Appellant contends that his sentence under the Youth Corrections Act caused the Court of General Sessions to have been without jurisdiction to try him because to support such a sentence his prosecution should have been by indictment. He contends additionally that his waiver of trial by jury was invalid since he had not previously been advised by the court that he could be sentenced under the Youth Corrections Act, entailing a possibly longer deprivation of liberty than is authorized by Section 22-3102 for the violation of which he was convicted. The District of Columbia Court of Appeals affirmed. Harvin v. United States, 245 A.2d 307 (D.C.App.1968). We allowed an appeal to this court. Thereafter the court decided to hear the case en banc and the prior judgment of a division of the court was accordingly vacated. Following en banc hearing and consideration the court decided in favor of affirmance of the conviction. Judges Bazelon, McGowan, Leventhal, Spottswood W. Robinson, III and Mac-Kinnon join in Part I of Judge Fahy’s opinion. Judges Bazelon, J. Skelly Wright and Spottswood W. Robinson, III join in Part II of Judge Fahy’s opinion. Judges Bazelon, Fahy, McGowan, Leven-thal and Spottswood W. Robinson, III join in Part I of Judge MacKinnon’s opinion. Judges McGowan, Leventhal, Robb and Wilkey join in Part II of Judge MacKinnon’s opinion. Judges Robb and Wilkey join in Judge Tamm’s opinion and Judge J. Skelly Wright joins in Parts I-IV thereof. Affirmed. FAHY, Senior Circuit Judge, with whom Chief Judge BAZELON and Circuit Judges McGOWAN, LEVENTHAL, ROBINSON and MaeKINNON concur in Part I, and Chief Judge BAZELON, and Circuit Judges WRIGHT and ROBINSON concur in Part II. I. The Fifth Amendment provides in part as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *. U.S.Const, amend. V. The reference in the amendment to “or otherwise infamous crime” became the subject of several Supreme Court decisions, by which it was established that such a crime was one punishable by imprisonment for a term of years or at hard labor. Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89 (1885); Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886); In re Claasen, 140 U.S. 200, 11 S.Ct. 735, 35 L.Ed. 409 (1891); United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed. 700 (1922). The decisions make clear that imprisonment for a term of years was one served in a state prison or penitentiary, which, as early as 1865, 13 Stat. 500, see Ex parte Karstendick, 93 U.S. 396, 23 L.Ed. 889 (1876), Mackin v. United States, supra, was a place of confinement for those sentenced for an offense against the United States for a period longer than a year. By 18 U.S.C. § 4083, which traces its history to the Act of March 2, 1895, ch. 189, § 1, 28 Stat. 957, when Congress provided for a federal penitentiary, what the decisions made clear is now embodied in statute in the following form: Persons convicted of offenses against the United States * * * punishable by imprisonment for more than one year may be confined in any United States penitentiary. With the law in this situation Rule 7 (a) of the Federal Rules of Criminal Procedure, adopted in 1945, carried forward the indictment requirement of the Fifth Amendment into the Rules as follows: An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment * * * [unless waived]. The original Committee Note to the Rule explains: This rule gives effect to the following provision of the Fifth Amendment to the Constitution of the United States: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury -x- * -x- >>_ ^n infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 5 S.Ct. 935, 114 U.S. 417, 427, 29 L.Ed. 89; United States v. Moreland, 42 S.Ct. 368, 258 U.S. 433, 66 L.Ed. 700, 24 A.L.R. 992. Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. [former] 753f [now §§ 4082, 4083]. * * * Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime. The Rule does not enlarge the requirement of an indictment beyond the “capital, or otherwise infamous crime,” of the Fifth Amendment. It simply brings together in rule form the criteria which had been established by the Supreme Court for an “otherwise infamous crime,” namely, an offense punishable by imprisonment for a term exceeding one year or at hard labor. From the foregoing it is clear that the offense which led to Harvin’s sentence was not an infamous crime, for it carried a punishment by imprisonment not to exceed six months. Both adults and youths may be prosecuted for that offense on an information. The sentence imposed under the Youth Corrections Act does not alter the basis for the prosecution or transform the offense into an infamous one. A sentence under the Act it is true may result in the loss for more than a year of the liberty protected by the Due Process Clause of the Fifth Amendment, and it is also true that the sentence available for an offense determines whether it is infamous. The punishment, however, which determines the question of infamy is that which is related to the offense itself, in Harvin’s case not to exceed six months imprisonment. That is the punishment which reflects the prevailing views of the governing authorities, represented by the law, as to the seriousness of the offense —its infamous or non-infamous character. A sentence under the Youth Corrections Act, in this case following conviction of a misdemeanor, is not a reflection by the legislature of the seriousness of that offense. Resort by the sentencing judge to the Youth Corrections Act was not to punish Harvin for the misdemeanor; it was to carry out the congressional purpose represented by the Act — to serve the interests of society and of selected youth offenders in preference to the statutory sentence for the misdemeanor. A sentence under the Act is not related to the offense itself, and it is the punishment for the latter which determines whether the prosecution must be by indictment. Sentencing under the Act rests upon those factors which led to its enactment — the youth of the offender, an appraisal by the judge, with the aid of other officials, of the youth’s rehabilitative possibilities, the protection of society by the self-improvement of the youth through treatment and special care, with a goal of elimination of any criminal record due to the conviction, enabling the youth to go on with his life unimpaired by a criminal record. True, in pursuit of those aims a youth may be deprived of liberty for a longer period than an adult similarly entangled with the law, or for a longer period than another youth not sentenced under the Act. If this gives rise to questions of due process of law or of equal protection of the laws, those questions are quite apart from the Indictment Clause of the Fifth Amendment and Rule 7(a). The suggested questions are not answered either by an indictment or by an information. It would be totally inconsistent with the statutory plan to ascribe to a sentence under the Act a result which turned the misdemeanor into an infamous offense when committed by a youth offender. To carry over to such a sentence the ancient method of categorizing a crime as infamous or non-infamous according to the severity of the sentence, and as a consequence to hold that the sentence under the Act for possibly more than a year placed the misdemeanor in an infamous category, would be contrary to the reason which gave rise to the ancient usage, for a sentence under the Act simply does not denote that the misdemeanor was of so serious a character as to categorize it as infamous. I reach the same conclusion upon consideration of the Youth Corrections Act independently of the non-infamous penalty prescribed by Section 3102. For the Act does not permit a sentence under it to be served in a penitentiary. I note preliminarily that we have recognized the nonpunitive character of confinement under the Act. Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). We there upheld the application of the Act to a youth convicted of a crime for which an adult could not be imprisoned in excess of one year. We commented; [T]he basic theory of [the] Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison. 113 U.S.App.D.C. at 125, 306 F.2d at 285. It is true that in In re Gault, 387 U.S. 1, 27, 49-50, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court cautioned against a disregard of the substantive effect of juvenile detention when considering labels given to procedures leading to confinement, and, I might add, when considering the nature of the detention itself. The Court stated: [I]n over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult “criminals.” In those States juveniles may be placed in or transferred to adult penal institutions after having been found “delinquent” by a juvenile court. 387 U.S. at 50, 87 S.Ct. at 1455. But under the Federal Youth Corrections Act a youth offender cannot be placed in a penitentiary. The sentence must be served “under different conditions and terms than a defendant would undergo in the ordinary prison.” Carter v. United States, supra. The Act provides: § 5011. Treatment Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director [of the Bureau of Prisons] shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for payment. Added Sept. 30, 1950, c. 1115, § 2, 64 Stat. 1087. Under Section 5015(b) the Director “may transfer at any time a committed youth offender from one agency or institution to any other agency or institution,” but the agencies and institutions referred to are those mentioned in Section 5011. Moreover, under Section 5012 these must be certified as “proper and adequate treatment facilities.” Thus, the clause in Section 5011, “insofar as practical” prefacing the provision that “institutions and agencies shall be used only for treatment of committed youth offenders,” coupled with the immediately following provisions, “and such youth offenders shall be segregated from other offenders,” especially when read with Section 5012, precludes a penitentiary. It is hardly to be supposed that a penitentiary is an institution or agency which “insofar as practical” shall be used only for treatment of committed youth offenders and is certified by the Director of the Bureau of Prisons for that purpose. Any doubt about this construction of the Youth Corrections Act is resolved by considering the Act in conjunction with 18 U.S.C. § 4083, which, as here-inabove set forth, limits confinement in a penitentiary to a person convicted of an offense punishable by imprisonment for more than one year, and its corollary provision which reads: A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant. I agree with Judge MacKinnon’s conclusion that the imprisonment referred to in Section 4083 is the imprisonment which Congress specified as the punishment for the offense itself, independently of the Youth Corrections Act, here not to exceed the six months specified in D.C.Code § 22-3102. I also agree with his view that it would be quite unreasonable in light of the purposes of the Youth Corrections Act to construe it to permit imprisonment of a youth offender in a penitentiary while at the same time the Attorney General is prohibited by Section 4083 from confining in a penitentiary an adult sentenced to imprisonment for a year or less, unless by his consent such confinement is waived. Section 4083 and the Youth Corrections Act are related and should be construed in a manner to harmonize one with the other. Cf. Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 250, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). We construe the provisions of the Youth Corrections Act to limit the place in which a sentence under it may be served to an institution where the confinement is consistent with the purposes of the Act to afford treatment and rehabilitation. The loss of liberty may not be by confinement of a character which constitutes infamous punishment. It follows that in no event may it be in a penitentiary. We cannot attribute to Congress an intent to the contrary. It is true that at times an unintended result follows from the terms of an enactment, but we do not think Harvin’s case presents such an instance, for neither the character of the crime for which he was convicted, as evidenced by the sentence prescribed for it, nor the alternative sentence available in the discretion of the court under the Youth Corrections Act requires such a result. It is said that a sentence under the Act nevertheless may turn out to result in confinement comparable to confinement in a penitentiary, and for this reason an indictment must precede the prosecution. Indeed, if the Act authorized such confinement it could be urged with reason that consistently with the Fifth Amendment a sentence under the Act could be imposed only after prosecution by an indictment, regardless of the minor character of the offense which furnished the occasion for the judge to resort to the Act. On the other hand, if such confinement is prohibited by the Act, this argument for an indictment is not available. For the reasons above set forth I conclude it is prohibited. Even when the conviction which gives rise to resort to the Act is a felony, and, therefore, the prosecution is by indictment, still a sentence under the Act may not validly be served in a penitentiary. So it is when the prosecution is by information. In neither case is the sentence under the Act for a felony or an infamous crime. It is for the purposes envisaged by Congress, for which a penitentiary may not be utilized. We are not concerned in this case with whether Congress as a matter of policy should require prosecution by an indictment as a condition to a sentence under the Act, or with questions of due process of law and the equal protection of the laws. Nor are we concerned with the remedy available to a youth offender if his confinement is inconsistent with this.opinion, though we have no doubt that habeas corpus would be available in an appropriate case. The question simply is whether the Indictment Clause of the Fifth Amendment, applicable only to an infamous crime, precludes utilization of the Act following prosecution of a non-infamous offense by information. A majority of the court hold that Har-vin validity waived trial by jury and affirm the conviction. While for the reasons set forth in Part II of this opinion I disagree, I would not hold that because the prosecution was by information the sentence was invalid or that the trial court was without jurisdiction because of the sentence. II. There remains the question whether appellant validly waived trial by jury. He urges that he did not, since the record does not disclose he was advised by the judge that if convicted he might be sentenced under the Youth Corrections Act, rather than as prescribed by Section 3102. The question is whether a decision by an accused that the issue of his guilt should be submitted to a judge rather than to a jury may be significantly affected by the absence of advice by the judge, or a showing on the record of awareness by the accused, that a sentence under the Act might be imposed. In Dobkin v. District of Columbia, 194 A.2d 657 (D.C.App.1963), the District of Columbia Court of Appeals had before it a case in which the sentence had been increased as authorized by D.C.Code § 22-104 for a second offense. The trial had been by a judge of the Court of General Sessions without a jury. The Court of Appeals could not uphold the sentence because its enlargement brought the case within the class which conferred the right to trial by jury, and he had not been advised of this right. The court stated: If a defendant is to be subjected to the fifty percent greater penalty under § 22-104, he is entitled to notice of this prior to trial. * * * In this case the government gave no notice to appellant prior to trial that he might be subjected to the added penalties of § 22-104; consequently he could not have been subjected to them. 194 A.2d at 660. While the question we have is whether appellant competently and intelligently waived trial by jury, not whether he was entitled so to be tried, Dobkin and appellant’s case are on common ground in that neither the right to a jury in Dob-kin nor the waiver of a jury in appellant’s case are concerned with the issue of guilt but only with the sentence which might follow a conviction. In Lawrence v. United States, 224 A.2d 306 (D.C.App.1966), the District of Columbia Court of Appeals affirmed Dob-kin and went somewhat further in the direction of appellant’s case. As appears from the opinion, [A]ppellant was entitled to and had originally asked for a jury trial, but later voluntarily withdrew this demand and chose to be tried by the court. At that time he had no knowledge he was to be sentenced under § 22-104 [as a second offender]. 224 A.2d at 308. The absence of timely notice that Section 22-104 would be invoked was held to preclude a penalty in excess of the maximum for a first offender. This decision, because it assumes that notice of the nature of the sentence available affects the decision whether to exercise the right to be tried by a jury, whereas in Dobkin the nature of the sentence establishes the right itself, goes beyond that case and becomes more pertinent to ours. In its decision in appellant’s case, however, the District of Columbia Court of Appeals avoided, I think unpersuasively, the implications of its Dobkin opinion and its decision in Lawrence, by holding that appellant’s sentence under the Youth Corrections Act was not punishment, though of possibly longer duration than a sentence Section 3102 authorizes. A sentence under the Act not having the characteristics of punishment, its duration could be enlarged, the court held, notwithstanding appellant had not been so admonished when he waived his right to trial by jury. The court pointed out, however, that in fairness perhaps the better procedure would be for the court to inform a defendant he might be sentenced under the Youth Corrections Act, so that there could be no doubt he knowingly and intelligently waived his right to trial by jury. I cannot accept the distinction drawn by the court between punishment and a sentence under the Act insofar as waiver of trial by jury is concerned. While it is true, as I have said in Part I of this opinion, that the Act does not lead to the kind of punishment or imprisonment which requires the prosecution to be on grand jury action, the enlarged duration of loss of liberty, similarly to an enlarged punishment as a second offender, is a factor of which the accused must be advised in deciding how to be tried. The length of punishment in one situation, and the length of deprivation of liberty in the other, are of like relevance in determining the advice the accused is entitled to have prior to waiving jury trial, even though the deprivation of liberty is not punishment which makes the offense infamous. In reaching the above conclusion I have in mind the fundamental place trial by jury as guaranteed by the Sixth Amendment has in our administration of criminal law. Decisions of the Supreme Court have establishd strict standards by which to determine the validity of a waiver of the right. See Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), with its reference to the requirement that waiver of constitutional rights must be “intelligent and competent.” And see Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). It can hardly be so unless the accused knows the consequence of a finding of guilt. I am also fortified by the cases holding that a guilty plea does not meet the standards of Rule 11, supra, note 2, unless the accused is informed he might be sentenced under the Youth Corrections Act. See, e. g., Kotz v. United States, supra; Freeman v. United States, 350 F.2d 940 (9th Cir. 1965); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965); Pilking-ton v. United States, supra; and see our case of Carter v. United States, supra. In these cases the absence of such advice did not affect the issue of guilt to any greater degree than in appellant’s case. While the problem in the guilty plea cases was whether to plead guilty or to be tried, here it is how one chooses to be tried, also an important decision. If lack of knowledge of the availability of a sentence under the Youth Corrections Act invalidates the plea of guilty, it is difficult to see why it would not invalidate the waiver of trial by jury; for at the basis of the whole matter is the simple fact that the accused should be advised of those alternatives available to the sentencing judge which bear upon the decision the accused must make, whether it be to plead guilty or to waive the Sixth Amendment right to trial by jury. In United States v. Straite, 138 U.S. App.D.C. 163, 425 F.2d 594 (1970), this court recently reviewed the developing law toward greater participation by the judge when an accused undertakes to waive jury trial. The court refers to the tightening up of the applicable procedures in the Court of General Sessions, Jackson v. United States, 262 A.2d 106 (1970), to the views on the subject which have been expressed by the District of Columbia Court of Appeals, and to the recommendations of the American Bar Association Project on Minimum Standards for Criminal Justice (Trial by Jury, Part I, Section 1.2(b)), including the statement at p. 38 that “the better practice is for the court to advise the defendant of his right to jury trial before accepting a waiver,” even if the accused has been informed by his counsel and has complied with Rule 23(a), Fed.R.Crim. P. While in Straite we did not hold the waiver there “demonstrably involuntary,” the court’s discussion supports my conclusion that appellant’s waiver was invalid; for aside from the absence of the advice by the court of his right to a jury trial recommended by the Bar Association Project, we have in appellant’s case the absence also of advice by the court of the possibly extended sentence under the Youth Corrections Act. MacKINNON, Circuit Judge, with whom Chief Judge BAZELON, Senior Circuit Judge FAHY, and Circuit Judges McGOWAN, LEVENTHAL and SPOTTSWOOD W. ROBINSON, III, concur in Part I, and Circuit Judges Mc-GOWAN, LEVENTHAL, ROBB and WILKEY concur in Part II: When appellant appeared before the Court of General Sessions on June 21, 1967 for sentencing he was 19 years old and a drug addict with a substantial criminal record. In 1962 he had been placed on probation for a purse-snatching robbery. Next his probation was extended because of an assault upon a paper boy. Subsequently he was committed to Cedar Knolls because of another assault. In 1964 he was arrested for housebreaking but the disposition of this charge does not appear. In 1965 for housebreaking in Maryland he received three years' probation and in 1966 he was twice convicted in the District of Columbia for petit larceny. He was on probation at the time of the instant offense. Prior to appellant’s sentencing the trial court invoked section 5010(e) of the Youth Corrections Act and ordered him committed to the custody of the Attorney General for observation and study at a classification agency to obtain additional information concerning him, so as to determine whether he would derive benefit from the “treatment” authorized by the Youth Corrections Act. The agency made a report to the court, which it commented upon at the time of sentencing, as follows: “THE COURT: Mr. Harvin, I would like, for the purpose of the record, to make observations. * * * You have been sent, by the Court, to the Federal Youth Corrections Act, to determine whether there is any way at all that the Court can deter you from a life of permanent crime. “It is the opinion of the people in the Youth Correction Center, the Acting Supervisor, the Clinical Psychologist, that the only hope for you is that you receive individual psychotherapy under the Youth Center’s controlled environment. It is the unanimous opinion, apparently, of the staff that the only alternative for you is to be sent to jail, which will not straighten out your problems; to send you to Lexington, which will only strengthen and not diminish your addiction problems or youth correction. “As far as the Court is concerned, this is a classic case of what is in the best interest for you, or to be highly technical and say, ‘Sure you can be out in six months’, but to be released in six months is to be released on an inevitable life of crime. “So, the Court finds that the defendant was 19 years of age on the date of conviction, and is suitable for handling under the Federal Youth Corrections Act. The defendant is hereby committed to the custody of the Attorney General and those authorized representatives for treatment and supervision, pursuant to 18 United States Code 5010(b), until discharged by the Federal Youth Correction Division of the Board of Parole, as provided by 18 U.S.C.A. 5017(c). “I might also note that the members of the Youth Correction Division of the Board of Parole that examined your file also feel that without the institutional training, there is no — that is the only way to possibly make a law abiding citizen out of you.” (Emphasis added.) The court thus sentenced Harvin under the Youth Corrections Act. The issues resulting from Harvin’s sentencing are outlined in the opinion by Judge Fahy. These are twofold: First, whether Harvin’s prosecution for the misdemeanor of unlawful entry under D.C.Code § 22-3102 must be initiated by indictment when a sentence is adjudged under the Youth Corrections Act; and secondly, whether appellant’s conviction should be reversed because preceding his waiver of a jury trial he was not advised by the judge in open court that he could be sentenced as a youth offender under the Youth Corrections Act. My answer is to the negative on both questions which concurs with Judge Fahy on the first issue and with Judge Tamm on the second issue. I Judge Fahy in Part I of his opinion concludes that it is not a violation of the Fifth Amendment to prosecute a youth offender for a misdemeanor where he is sentenced “to the custody of the Attorney General and those authorized representatives for treatment and supervision, pursuant to” the Youth Corrections Act (hereafter YCA) notwithstanding that the period of “treatment and supervision” for such offense may run six years as a maximum in extreme cases. He bases this conclusion on an interpretation of the applicable statutes to the effect that a sentence under the YCA cannot be carried out by “infamous punishment.” Judge Tamm dissents from this conclusion, contending the YCA sentences for misdemeanors may be carried out by infamous punishment because (1) the Attorney General allegedly may confine a youth offender committed under the YCA to a penitentiary for a misdemeanor, and (2) this may be for a period in excess of one year. If either of these contentions is invalid “infamous punishment” would not result from a YCA sentence for a misdemeanor. It is my conclusion that the first contention is invalid and thus my views concur with the result reached by Judge Fahy in Part I and with the reasons he assigns therefor. In my view of the law neither the Attorney General nor any other United States official may cause any sentence for a misdemeanor adjudged with respect to any committed youth offender to be served in a penitentiary without the consent of the youth. This result seems obviously to be directed by the clear language of 18 U.S.C. § 4083 which provides : “Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary. “A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant.” (Emphasis supplied.) This statute classifies prisoners into two groups: (1) those convicted of statutory felonies (imprisonment for more than one year) and (2) those convicted of statutory misdemeanors (imprisonment of one year or less). It then provides that those in the first group (felons) “may be confined in a United States penitentiary,” and that those in the see-ond group may not be required to serve any portion of their sentence “in a penitentiary” without their consent. Under my interpretation of this statute, youth offenders convicted of misdemeanor violations are within the second group and since the requirement of consent assures that penitentiary confinement will not be enforced upon any offender so convicted, that is tantamount to determining that "infamous punishment” may not be imposed in any such case. My interpretation is based upon the legislative intent manifest in the relevant statute, as hereinafter outlined. Because of its legislative history it is my opinion that the “sentence” referred to in the second sentence of section 4083 is the sentence of imprisonment authorized by the criminal statute prescribing the offense and not the sentence of “supervision and treatment” authorized under the YCA. Section 4083 is the result of a number of prior enactments which began in 1895 (28 Stat. 957), and culminated in the present statute. The terminology of the early acts is not represented in the present statute, which began to acquire its present form in 1940. Section 7 of the Act of June 14, 1941, provided: “Sec. 7. Hereafter all persons convicted of an offense against the United States shall be committed, for such terms of

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

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, but not from funds derived directly or indirectly from taxation. The decree is reversed and the cause remanded with instructions to enter a decree directing the receiver to pay over to Fairbanks Morse from funds on hand or available to the receiver, the net earnings of the new power plant, computed as provided in the contract, that have accrued, during the receivership, and to continue to operate the electric utility and to pay to Fairbanks Morse the future net earnings of the new power plant so computed until the remaining notes with accumulated interest have been paid therefrom in full. The costs will be assessed against the City. Sections 26 and 27, art. 10 of the Oklahoma Constitution read as follows: “Sec. 26. No county, city, town, township, school district, or other political corporation, or subdivision of the State, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of three-fifths of the voters thereof, voting at an election, to be held for that purpose, nor in cases requiring such assent, shall any indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate exceeding five per centum of the valuation of the taxable property therein, to be ascertained from the last assessment for State and county purposes previous to the incurring of such indebtedness: Provided, That any county, city, town, township, school district, or other political corporation, -or subdivision of the State, incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide.for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty-five years from the time of contracting the same.” “Sec. 27’. Any incorporated city or town in this State may, by a majority' of the qualified property tax paying voters of such city or town, voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than that specified in section twenty-six, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city: 1)1 * $ » Section 31, article 6 of the Oity’s charter, reads as follows: “Neither the board of commissioners nor any officer or employee of the city shall have authority to make any contract involving the expenditure of public money, or impose upon the city any liability to. pay money unless and until a definite amount of money shall have been appropriated for the liquidation of all pecuniary liability of the city under ’ such contract or in consequence thereof to mature during the period covered by the appropriation. Such contract shall be null and void as to the city for any other and further liability * * Section 15, article 14, of such charter, reads as follows: “No contract shall be entered into by the board of commissioners until after the appropriation has been made therefor, nor in excess of the amount appropriated,' and

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