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B. E. SWEATT, Jr. v. UNITED STATES NAVY. Appeal of Sebastian K. D. GRABER. No. 81-2073. United States Court of Appeals, District of Columbia Circuit. Argued April 19, 1982. Decided May 28, 1982. Sebastian K. D. Graber, Alexandria, Va., pro se. Charles F. Flynn, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., at the time the brief was filed, and Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Before TAMM and GINSBURG, Circuit Judges, and EDMUND L. PALMIERI, United States Senior District Judge for the Southern District of New York. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1976). Opinion PER CURIAM. Dissenting opinion filed by Circuit Judge GINSBURG. PER CURIAM: The facts of the case before us present a sorry tale of the efforts of officials of the United States Navy to comply with the disclosure mandates of the Privacy Act, 5 U.S.C. § 552a (1976). In 1976 B. E. Sweatt, Jr., an enlisted sailor with the United States Naval Reserve, requested through an intermediary access to certain Naval records concerning him seen in the possession of a Dr. Julian Ho. Dr. Ho was in 1976 an examining physician at the National Naval Medical Center (NNMC) in Bethesda, Maryland, and in this capacity he had treated Sweatt during the latter’s involuntary hospitalization. While treating Sweatt, Dr. Ho compiled and used a file of information that has become known as the “Ho File.” Mr. Sweatt first demanded access to this file in 1976; four years and two trips to this court later, the Navy released the Ho File to Sweatt. This delay notwithstanding, the sole question that we must resolve in the instant case is whether, for the purposes of the attorneys’ fees provision of the Privacy Act, it can be said that Sweatt “substantially prevailed” in litigation that culminated in the release of the Ho File. Although we wish in no uncertain terms to condemn the Navy for the bureaucratic runaround it has given Sweatt, we conclude that he did not “substantially prevail” for Privacy Act purposes, and we therefore affirm the district court on its denial of attorneys’ fees to appellant Sebastian K. D. Graber, Sweatt’s court-appointed counsel. I. In January of 1976 Sweatt filed a pro se complaint in the district court alleging various violations of his rights by the Navy. Headed “Complaint of Libel,” this pleading contained no claim cognizable under the Privacy Act. While the pro se action was pending, Sweatt was hospitalized during April and May of 1976 at the NNMC, where he was treated by Dr. Ho. During his confinement at NNMC, Sweatt became aware through his sister, Linda Sweatt Cleveland, of the Ho File. Acting under Sweatt’s power of attorney, Ms. Cleveland in May of 1976 wrote to the Commanding Officer of the NNMC and requested access to various records, including the Ho File. In early June, a Navy attorney at NNMC advised Ms. Cleveland that the “correspondence file” she had requested had been returned to the Naval Air Reserve Unit (NARU), Naval Air Facility, Andrews Air Force Base; that attorney in turn recommended that Ms. Cleveland contact NARU regarding the Ho File. It is undisputed that at the time the initial request for access was made by Ms. Cleveland, the Ho File was held by officials at NNMC; indeed, the cover letter returning the file to NARU noted that Sweatt and his sister had made such a request. Neither Ms. Cleveland nor Sweatt subsequently sought the Ho File from NARU, however, notwithstanding the suggestion contained in the June letter. In early August of 1976, Sweatt himself filed a request with the Chief of Naval Personnel, Department of the Navy, for a copy of his personnel record, citing as his ground for the request “the terms of the Privacy Act.” The Navy responded with a statement professing inability to identify the requested records and asking Sweatt to complete a standard form that specified more precisely the character of the material sought. Again, however, Sweatt declined the proffered opportunity to pursue the course suggested by the Navy, and the Ho File remained in Navy hands. Meanwhile, back at the district court, the district judge dismissed Sweatt’s “Complaint of Libel” on September 30, 1976, for failure to state a claim on which relief could be granted. On direct appeal of that dismissal, this court in early 1978 reversed and remanded the case with directions that an answer be filed by the Navy. On March 13, 1978, Sweatt filed an amended pro se complaint that listed thirty-one “invasions” of his rights. Two of the claim headings included in the complaint were “Claim Five: Invasion of Privacy” and “Claim Nine: Violations of the Privacy Act.” Of the three counts of Sweatt’s Claim Five, only one is relevant here. Count Two of that Claim alleged that the Navy illegally collected information relating to Sweatt and later wrongly refused to grant him access to that information; specifically, the Count pointed to the “refusal to allow [Sweatt] or his sister ... to examine . . . [the] file witnessed in the hands of Lt. Ho . ...” As for the claims advertently based on the Privacy Act, neither of the two counts under Claim Nine involved the Ho File. Count One under Claim Nine alleged a wrongful Navy refusal to release raw data from psychological testing, while Count Two charged the Navy with wrongfully secreting a document that allegedly authorized Sweatt’s discharge from the armed forces. The Navy moved to dismiss the amended complaint in late 1978, and in January of the following year the district judge granted the motion, citing Sweatt’s failure to respond to the Navy’s papers. Sweatt again appealed the dismissal, and this court once again reversed and remanded, ordering that counsel be appointed to assist Sweatt in his action. Sebastian K. D. Graber, appellant in the instant case, entered his initial appearance on behalf of Sweatt on October 22, 1979. After the district judge vacated the order of dismissal, counsel for Sweatt was permitted to file a response to the Navy’s motion to dismiss of the prior year. On November 19, 1979, appellant filed on Sweatt’s behalf a Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Dismiss in which the grounds for relief arguably contained within the four corners of Sweatt’s amended complaint were parsed. In his Memorandum Sweatt contended that the Navy had wrongfully refused to release to him “medical documents and other information pertaining to plaintiff”; although the vast majority of pages and observations were devoted to other than Privacy Act matters, the Memorandum did conclude with the request that the district court “retain jurisdiction of the Privacy Act claims ....” The Memorandum did not, however, specify the precise nature of the Privacy Act claims asserted, and it noted that it might later be necessary to alter the amended complaint to encompass the contentions contained in the Memorandum. Such an alteration indeed proved necessary, and on February 12, 1980, the district judge granted Sweatt leave to amend further his complaint. Three days later, however, the Navy finally decided to release to Sweatt, through his appointed counsel, a copy of the now-celebrated Ho File. Sweatt continued to prosecute his claims, however, and on March 3, 1980, he filed a second amended complaint that included several Privacy Act claims. Under a Notice of Filing submitted on June 12, 1980, the Navy filed with the district court copies of Sweatt’s service and medical records and a copy of the Ho File, noting that all three sets of documents had previously been supplied to Sweatt. Pursuant to a motion for summary judgment filed by the Navy in October of 1980, the district court at long last disposed of Sweatt’s claims on the merits on November 20, 1980. On that date, the trial judge granted the Navy’s motion for summary judgment; in the Memorandum Opinion accompanying the summary judgment order, the district judge declined the opportunity to make any ruling on whether the Navy had violated the Privacy Act with its delayed release of the Ho File. Rather, as the only remedy for nondisclosure under that Act is an injunction ordering disclosure and as all non-exempt documents had already been released, the district judge correctly found it unnecessary to express a view on the interplay of the Ho File and the Privacy Act. Thus, there is no judicial finding that Sweatt has prevailed on any Privacy Act claims. In July of 1981, appellant Graber moved the district court for an award of attorneys’ fees and costs pursuant to 5 U.S.C. § 552a(g)(3)(B) (1976). The Navy resisted the motion, contending essentially that Sweatt could not be said to have “substantially prevailed” in litigation in light of the Navy’s voluntary, albeit tardy, release of the Ho File. The district judge agreed with the Navy and ruled, without explanation, that Sweatt had not “substantially prevailed.” This appeal ensued. II. The respective positions of the parties are relatively simply stated. Appellant argues that Sweatt must be held to have “substantially prevailed” in Privacy Act litigation given the post hoc, ergo propter hoc nature of the course of events; as Sweatt had filed in 1978 a complaint that included claims premised on the Privacy Act and as the Navy subsequently released certain of the requested documents, Sweatt “prevailed” for the purposes of the Act. Appellant contends that he is entitled to fees, notwithstanding his comparatively late entry into the fray, on the basis of the quick success he generated for Sweatt; although Sweatt had sought the Ho File for three years, appellant contends, it was only upon the entry of counsel and the accordant focusing of attention on the Privacy Act claims that Sweatt achieved any satisfaction from the Navy. The Navy, by contrast, contends that Sweatt cannot be said to have “substantially prevailed” since at the time the Ho File was released there was pending no Privacy Act claim that related to that file. Rather, the Navy submits that the complaint pending at the time of the surrender of the Ho File stated only a claim for damages and was not an action under the Privacy Act for access to records. Therefore, appellee argues, the causal nexus between the litigation and the release of the Ho File required for an award of attorneys’ fees is nonexistent. Although we are hesitant to place anything resembling a judicial imprimatur on the obdurate conduct of the Navy in its dealings with Mr. Sweatt, we cannot agree that Sweatt “substantially prevailed” for the purposes of the attorneys’ fees provision of the Privacy Act. Cases construing the identical attorneys’ fees provision in the Freedom of Information Act (FOIA), which we agree are apposite as well in the Privacy Act context, have established the doctrines that control the disposition of this case. Even a cursory examination of Sweatt’s circuitous path through the district court reveals that he was singularly unsuccessful in the prosecution of his claims. As appellant correctly notes, however, a judicial order directing the release of documents is not a prerequisite to an award of attorneys’ fees under either the FOIA or the Privacy Act; rather, we have read the “substantially prevailed” standard as not precluding the recovery of attorneys’ fees “where the government, after commencement of the litigation, [has] acted to moot the action by supplying the material sought.” Cuneo v. Rumsfeld, 553 F.2d 1360, 1365 (D.C.Cir.1977) (FOIA context). Accord, Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704, 708-10 (D.C.Cir.1977). Thus, appellant is not barred from the award of a fee simply because the Ho File was not produced as a result of a judicial order. On the other hand, we have made it clear that “an allegedly prevailing complainant must assert something more than post hoc, ergo propter hoc ...” to ground the award of attorneys’ fees. Cox v. United States Department of Justice, 601 F.2d 1, 6 (D.C.Cir.1979) (per curiam). Instead, in the FOIA context we have stated that the party seeking fees in the absence of a court order “must show that prosecution of the action could reasonably be regarded as necessary to obtain the information ... and that a causal nexus exists between that action and the agency’s surrender of the information ... . ” Id. (citation omitted). See Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976). The burden falls on the party seeking the fee award to persuade the court that both elements of this standard are satisfied where no court judgment ordering release exists. Id. The critical question is whether the court suit “actually provoked” the release of the documents. Cox, 601 F.2d at 7 (emphasis deleted). Finally, we note, as does the dissent, that the question whether the party seeking fees has demonstrated that the plaintiff “substantially prevailed” is an issue of fact that is subject to reversal only if clearly erroneous. Dissenting opinion at 421 n.3; Cox, 601 F.2d at 6-7; see Fed.R.Civ.P. 52(a). Applying this generous standard of review, we cannot find that the district judge acted in a clearly erroneous fashion in declining to award appellant fees for his efforts. Although in light of the Navy’s reluctance to surrender the Ho File the question facing the trial judge was likely a close one, it is apparent that the district judge was not grossly off base in finding that the litigation pending on February 15, 1980, did not “actually provoke” the release of the file. As appellees note, the pleadings filed by Sweatt in the district court by February of 1980 did not contain a claim demanding release of the Ho File pursuant to the Privacy Act. Although we are mindful that pro se complaints should be liberally construed, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), an admonition not too stringently to construe pro se pleadings is not a direction to construe them teleologically. Sweatt’s initial amended complaint was fundamentally a prayer for damages; release of the Ho File, to the extent “demanded” by Sweatt, was a matter auxiliary to this primary purpose of the litigation. Thus, although Sweatt did seek the Ho File in civil discovery conducted pursuant to his amended complaint, neither counsel for Sweatt nor this court is free to transmogrify a prayer for damages based only loosely, if at all, on the Privacy Act into a claim founded on that Act for access to the Ho File. The dispositive question, then, is whether a causal nexus existed between Sweatt’s lawsuit as of February 15, 1980, and the release of the Ho File. We cannot agree with the dissent’s suggestion that Sweatt “substantially prevailed” on the Privacy Act claims he purportedly attempted to state in his March 1978 amended complaint. Even upon the closest scrutiny of the 1978 pleading, only the best of hindsight permits the reader to discern a Privacy Act claim praying for release of the Ho File. As we stated above, it is true that the “Invasion of Privacy” claim contained an allegation concerning the denial of access to the Ho File, but the remedy requested was again damages for wrongful withholding. Indeed, even considering the Memorandum authored by counsel that valiantly attempted to spell out in detail the allegations made by Sweatt, the Privacy Act claims were laid out only in the barest of forms; moreover, it is not even clear that those claims relate to the Ho File. The Memorandum mentions “Privacy Act claims” without specifying to which of the three counts under Sweatt’s “Invasion of Privacy” heading or the two counts styled Privacy Act violations he was referring. Again, liberal construction is not synonymous with wishful thinking. In sum, unlike our dissenting colleague, we are unable to say that the district judge made a clear, reversible error in ruling that the complaint and papers pending in February of 1980 provoked release of the Ho File. Although we do not dismiss as mere coincidence appellant’s representation of Sweatt and the release of the Ho File, analysis of the relevant trial materials prompts us to conclude that the district judge acted within a permissible zone of discretion in discerning an inadequate causal connection between the lawsuit and the surrender of the Ho File. We accordingly affirm the finding of the trial judge that Sweatt did not substantially prevail for the purposes of the Privacy Act attorneys’ fees provision. III. Lest our decision be read as condoning the Navy’s recalcitrance in releasing the Ho File, we wish to express in no uncertain terms our disapproval of the conduct of appellee prior to the surrender of the file. Even a cursory examination of the record reveals the appallingly cavalier tone adopted by the Navy in its dealings with Sweatt. Sweatt asked the Navy to supply the Ho File to him on two occasions in 1976; he requested the file again in connection with his 1978 amended pro se complaint. As the dissent rightly notes, the Navy had plain notice of the information sought by Sweatt, yet four years passed before the Ho File was released. This sort of behavior is, quite simply, unacceptable. Mr. Sweatt’s sister made the initial request for the Ho File on May 24, 1976; on June 4, 1976, she was informed by the Navy that the file “has been returned” to NARU. Yet the file was returned to NARU only on that same day. It is thus apparent that Navy officials had in their possession both Ms. Cleveland’s request and the Ho File. As we have chronicled above, the file was not released for four more years. We could further express our disapproval of the Navy’s demonstration of the finest in bureaucratic mazes. We conclude with the observation that the FOIA and the Privacy Act do not exist so that government officials can construct new procedural hurdles and issue new regulations to complicate the process of information provision. Agencies, including the Navy, have a duty under the two statutes to release promptly nonexempt materials. The Navy’s “hide the file” game played so effectively in the instant case is manifestly at odds with that duty. Affirmed. . See Letter of May 24, 1976, from Linda S. Cleveland to Admiral D. Earl Brown, Jr., Commanding Officer, National Naval Medical Center (NNMC), Appendix (App.) at 1-2. . See Letter of 4 June 1976, from Walter J. Landen, Lieutenant Commander, Judge Advocate General’s Corps, to Linda S. Cleveland, App. at 3—4. . See Memorandum of 4 June 1976 from John J. Geer, Jr., Lieutenant Commander, Assistant Chief, Legal Service, NNMC, to Commanding Officer, Naval Air Reserve Unit, Naval Air Facility, App. at 9. As the dissenting opinion notes, dissenting opinion at 1 n.l, this Memorandum stated that “Petty Officer Sweatt and his sister ... requested access to [the returned materials].” . See Letter of August 3, 1976, from B. E. Sweatt, Jr., to Chief of Naval Personnel, Department of the Navy, App. at 5. . As the Navy .notes, Sweatt’s “Complaint of Libel” was filed months before his confinement at NNMC and thus beyond peradventure contained no claims under the Privacy Act that bear on nondisclosure of the Ho File. Brief for Appellee at 3 n.4. . Sweatt v. United States Navy, No. 76-2152 (Jan. 27, 1978) (per curiam). . Plaintiff’s Amended Complaint, Sweatt v. United States Navy, No. 76-0048 (D.D.C. filed Mar. 13, 1978), App. at 10-12. . Id. at 2, App. at 11. . Sweatt v. United States Navy, No. 79-1094 (June 7, 1979) (per curiam). . See Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Dismiss at 3, Sweatt v. United States Navy, No. 76-0048 (D.D.C. filed Mar. 13, 1978), App. at 22. . Id. at 18, App. at 23. . Id. at 2, App. at 21. . See Memorandum Opinion, Sweatt v. United States Navy, No. 76-0048 (D.D.C. Nov. 20, 1980), App. at 41-45. . See Order of July 31, 1981, Sweatt v. United States Navy, No. 76-0048 (D.D.C. Nov. 20, 1980), App. at 40. . We note with some discomfort the argument made by the Navy that, as neither Mr. Sweatt nor his sister complied with Navy regulations governing the release of documents, the Navy never became obligated under the Privacy Act to release the Ho File. Brief for Appellee at 18. Although it is true that the Privacy Act does authorize government agencies to make rules governing the release of information, we take a dim view of using those rules as a shield in Privacy Act litigation. Where a request for identifiable nonexempt information is made, it is the responsibility of the addressed agency to facilitate the release of the information — not to play “hide the file."

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?

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

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

OHIO CASUALTY INS. CO. v. MARR et al. No. 1657. Circuit Court of Appeals, Tenth Circuit. Sept. 15, 1938. Rehearing Denied Sept. 28, 1938. Raymond G. Brown, of Oklahoma City, Okl. (Hal Crouch, of Tulsa, Okl., on the brief), for appellant. Harry Campbell, . Jr-> of Tulsa, Okl. (Harry Campbell and Valjean Biddison, both of Tulsa, Okl., on the brief), for appellees Anna M. Marr and Shelby W. Marr. B. A. Hamilton of Tulsa, Okl. (S. J. Clendinning, of Tulsa, Okl., oil the brief), for appellee William H. Gaffney. Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges. BRATTON, Circuit Judge. This is an action which has for its purpose a declaratory judgment under section 274d of the Judicial Code, 28 U.S.C.A. § 400. The Ohio Casualty Insurance Company issued its policy of automobile liability insurance covering an automobile owned by Anna M. Marr. The contract required the company to investigate all accidents covered by the policy, to defend in the name and on behalf of the insured any suit brought to enforce a claim for damages suffered or alleged to have been suffered whether such claim be groundless or not, and to pay all sums which she should become obligated to pay as damages for death or personal injuries from accident arising out of the ownership, maintenance, or- use of the automobile, not to exceed $10,000- for death or injuries suffered by one person in a single accident; and the coverage was expressly extended to any person or persons, except a chauffeur or domestic servant, while legally operating the automobile with the consent of the owner. It was provided as a condition precedent to liability- that upon the occurrence of any loss or accident, irrespective of whether injury or damage be apparent at the time, immediate written notice thereof be given to the company with the fullest information obtainable at the time; that in the event claim be made on account of any accident the insured give like notice thereof with the fullest particulars immediately after such claim is made; and that if any suit be instituted against the assured to enforce such claim she immediately forward to the company each summons or other process as soon as it shall have' been served. The company instituted this suit against Anna M. Marr, Shelby W. Marr, and William H. Gaffney, administrator of the estate of William Orville Gaffney, deceased. Diversity of citizenship, the requisite amount involved to confer jurisdiction, thé existence of the policy, and its pertinent provisions were formally alleged. It was then averred that on January 26, 1936, while the policy was in effect, Shelby W. Marr left a night club near Tulsa, Oklahoma, at about 5:45 o’clock in the morning, driving the automobile with the consent of the owner; that it became involved in an alleged accident; that such alleged accident resulted in a suit being filed in the District Court of Tulsa County by William H. Gaffney, administrator of the estate of William Orville Gaffney, deceased, against Shelby W. Marr to recover damages in the sum of $50,000 for the alleged wrongful death of the deceased; that notwithstanding such alleged accident resulting in the immediate death of the deceased, no notice thereof was given to the company until on or about April 28, 1937; and that a controversy existed between the company and all of the defendants in that it was the contention of the company that the policy had been violated and was void as to all persons by reason of the failure of Anna M. Marr and Shelby W. Marr to notify the company of such accident immediately thereafter, and. for such breach the company was not bound or obligated to provide a defense in the name and on behalf of Shelby W. Marr in the action pending in the state court or to pay within the limits of liability specified in such policy any judgment or judgments which might be recovered against the Marrs, that it was the position 'of the Marrs that‘the policy was in force and 'that the company was bound and obligated'to provide a defense in the suit and to pay any judgment or judgments thereafter rendered against them, and that it was the position of the administrator that the policy was in effect and that upon recovery of judgment in the state court he would be entitled to proceed against the company to reach the proceeds of such policy. It was further alleged that Shelby W. Marr was financially unable to respond in damages for the alleged wrongful death of the deceased; that it was the plan of the administrator to pursue the company for the collection of any judgment or judgments he might recover; that the company was ready and willing to carry out the provisions of the contract should the court declare that it had not been violated but was still in effect; and that for the purpose of preventing a multiplicity of suits it was imperative that a declaratory judgment be entered defining and declaring the rights, legal relations, and status of the parties. A decree was prayed declaring that the contract was void in respect of the claim and suit arising out of the alleged accident, and that the company was not bound or obligated to provide a defense in the suit pending in the state court, or to pay a judgment, interest, or cost in such suit. The Marrs answered. They denied that the automobile had been involved in any accident; admitted that no notice was given on January 26, 1936, for the reason that there was no accident of which notice could be given, and further that notice was immediately given when they learned on April 28, 1937, that the administrator was asserting that there had been an accident resulting in the death of the deceased; and affirmatively alleged that the policy' was in force, and that the company was obligated to provide a defense in the suit pending in the state court and to pay within the limits provided in the policy any judgment or judgments which were entered in such suit. The administrator interposed one demurrer in the nature of a motion to dismiss challenging the sufficiency of the bill to state a cause of action, and another challenging the jurisdiction of the court as to him. The issues of fact were submitted to the court. The court found that the evidence concerning the accident was unsatisfactory; and determined that no rights of the company were involved, only obligations and liabilities, and that the right to be relieved from liability under the policy was not such a right as came within the contemplation of the Declaratory Judgment Act. D.C., 21 F.Supp. 217. The bill was dismissed and the company appealed. Section 274d of the Judicial Code provides that where an actual controversy exists, except with respect to Federal taxes, the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare the rights and other legal relations of any interested party. The act did not create any new substantive right. It is procedural in nature, designed to expedite and simplify the ascertainment of uncertain rights; and it should be liberally construed to attain that objective. But it is essential to the exertion of jurisdiction under its provisions that there be an actual and bona fide controversy as distinguished from hypothetical or abstract questions. The controversy must be present, real, definite, and substantial. There must be a justiciable question, and it must touch the relations of parties having adverse legal interests. Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Ohio Casualty Ins. Co. v. Gordon, 10 Cir., 95 F.2d 605; Central Surety & Ins. Corporation v. Caswell, 5 Cir., 91 F.2d 607; Associated Indemnity Corporation v. Manning, 9 Cir., 92 F.2d 168; Farm Bureau Mutual Automobile Ins. Co. v. Daniel, 4 Cir., 92 F.2d 838; Carpenter v. Edmonson, 5 Cir., 92 F.2d 895; Western Casualty & Surety Co. v. Beverforden, 8 Cir., 93 F.2d 166; United States Fidelity & Guaranty Co. v. Pierson, 8 Cir., 97 F.2d 560. The policy in suit exacts two written notices as a condition precedent to liability. The first must be given immediately after the occurrence of any loss or accident, irrespective of whether injury or damage be' apparent at the time; and the second must be given immediately after a claim is made on account of any accident. The word “accident” as used in the^ policy means an untoward and unforeseen occurrence in the operation of the automobile which results in injury to the person or property of another. U. S. Mutual Accident Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60; Chapin v. Ocean Accident & Guarantee Corp., 96 Neb. 213, 147 N.W. 465, 52 L.R.A.,N.S., 227; Midland Glass & Paint Co. v. Ocean Accident & Guarantee Corp., 102 Neb. 349, 167 N.W. 211, L.R.A. 1918D, 442; Hyer v. Inter-Insurance Exchange, 77 Cal.App. 343, 246 P. 1055; State v. Masters, 106 W.Va. 46, 144 S.E. 718. The only question advanced as a controversy appropriate for determination under the Declaratory Judgment Act is whether the policy was breached and voided in respect to liability for the death of William Orville Gaffney by the failure to give the first notice, and in consequence of such breach the company was relieved of its obligations and duties concerning the claim being advanced by the administrator. There is no contention that the contract was not in force, or that it was breached in any other manner. It is to be noted that the policy requires the giving of the first notice in the .event an accident takes place. The company did not charge in its bill that an accident occurred. Instead, it charged with apparent care and adroitness that the automobile became involved in an “alleged accident”; that such “alleged accident” resulted in the institution of the suit in the state court; and that the Marrs knew of such “alleged accident” and of the death of the deceased, but failed to notify the company thereof until April 28, 1937. Elsewhere throughout the bill reference was made to “said accident”, plainly meaning the “alleged accident” previously charged. It was then charged that a controversy existed between the parties for the reason that the company contended on one hand that the policy had been breached for failure to give the requisite notice while the defendants contended on the other that it had not been breached for such reason, but was still in force and effect. Not only did the company fail to charge that an accident actually took place, but it made no effort to prove the fact. Instead, it attempted to prove that the automobile did not strike or injure the deceased; that Shelby W. Marr.came upon the dead body lying in the highway; that he drove around it, backed the- car to a point where the lights shone upon it, and then went for help. That was precisely the contention of the Marrs. The company and the Marrs did not assume different, contrary, or adverse positions upon the vital question whether an accident actually took place which brought into play the provision requiring the giving of the notice. In the absence of an accident there could not be a breach of the policy for failure to give the notice; and unless there was an accident there could be no basis for the contention of the company'that it was free of liability for failure to give such notice. Failing to charge that an accident occurred, the bill did not set forth facts constituting a present, real, definite, and substantial controversy; it did not present a justiciable question touching the legal relations of the parties. The charge that such a controversy existed without averring facts constituting it was only a conclusion. The pleading failed to state a cause of action and called for dismissal on that ground; and furthermore there was an absence of proof of an accident which- necessitated the giving of the notice. The decree was predicated upon a different basis. But a just judgment or decree will not be overthrown on appeal regardless of the reason assigned by the trial court for its entry. Sanderson v. Postal Life Ins. Co., 10 Cir., 72 F.2d 894; Brace v. Gauger-Korsmo Construction Co., 8 Cir., 36 F.2d 661; City of St. Paul v. Certain Lands in City of St. Paul, 8 Cir., 48 F.2d 805; Spann v. Commercial Standard Ins. Co., 8 Cir., 82 F.2d 593; Crossett Lumber Co. v. United States, 8 Cir., 87 F.2d 930, 109 A.L.R. 1348. Affirmed. WILLIAMS, Circuit Judge, dissents.

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

Aldine ROCHESTER, Individually and on behalf of her minor child, Rose Gibson, Individually and on behalf of her seven minor children; Individually and on behalf of all others similarly situated, Appellants, v. Jack D. WHITE, Secretary of Health and Social Services, Individually and in his official capacity, and Miklos T. Lazar, Director of Social Services, Individually and in his official capacity, Defendants, Third-Party Plaintiffs, v. Caspar W. WEINBERGER, United States Secretary of Health, Education and Welfare and Francis D. DeGeorge, Administrator, Social and Rehabilitation Service, United States Department of Health, Education and Welfare, Third-Party Defendants. No. 73-2104. United States Court of Appeals, Third Circuit. Argued June 28, 1974. Decided Sept. 5, 1974. Peter M. Siegel, Community Legal Aid Society; Wilmington, Del., for appellants. Kent Walker, State Sol., Dept, of Justice, Wilmington, Del., for appellees. Before ADAMS, HUNTER and GARTH, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This case raises jurisdictional issues under 28 U.S.C. § 1343(3) (1970) and 42 U.S.C. § 1983 (1970) and the Eleventh Amendment. The district court granted defendant-appellee’s motion for summary judgment holding that a state official was not a “person” under Section 1983 and, that as such, there was no jurisdiction in the court to grant either declaratory or monetary relief. The judgment with respect to the absence of declaratory judgment jurisdiction must be reversed. I. There is no dispute as to the facts in this case. Plaintiff-appellants challenge the propriety of defendant-administrator’s 1971 reduction in Social Security benefits under Delaware’s Aid to Families with Dependent Children (AFDC) public assistance program. In this class action, plaintiffs alleged that failure to give proper notice of the reduction in benefits violated the due process clause of the Fourteenth Amendment and federal regulations. The notice issue was fully litigated both in the district court of Delaware and in this court at which time the absence of jurisdiction was never raised. Speaking to the merits of the case in May of 1973, Judge Gibbons for this court found non-compliance with federal notice requirements and remanded the case to the district court for a determination of proper remedies. On remand, plaintiffs requested prospective declaratory and injunctive relief and retroactive monetary damages. Alleging that the Eleventh Amendment barred any retroactive monetary relief, the defendant moved for partial summary judgment. The district judge sua sponte granted a complete summary judgment for the defendant upon finding that the court was without jurisdiction to grant either monetary or declaratory relief, 365 F.Supp. 179, 183. The court avoided difficult Eleventh Amendment issues raised in defendant’s motion, 365 F.Supp. 179, 185. Reliance was instead placed on the notion that the defendant, as a representative of the state, was not a “person” under Section 1983. The court rightly cited Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) for the proposition that a city or a state is not a person subject to suit under Section 1983. As a corollary of this rule, the trial judge concluded that when a state official represents the state, he stands in the shoes of the state, and that like the state he is not a person under Section 1983. This conclusion is erroneous. II. When a state is named as a defendant under Section 1983, there are two impediments to suit. First, a state is not a person as required under Section 1983, and second, the Eleventh Amendment bars suit against a state. As written, the Eleventh Amendment prohibits suits in federal courts by citizens of one state against another state; the amendment, however, was early interpreted as a bar to suits in federal court by a citizen against his own state, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). If the State of Delaware had been named as a party to the instant action, the reasoning of the trial judge, that jurisdiction to redress a violation under Section 1983 was absent, would have been correct. Different results must obtain, however, when a state official, rather than the state itself, has been named as a party-defendant. PROSPECTIVE RELIEF The district judge’s ruling that he is without jurisdiction to grant prospective relief must be reversed since the public officials named as defendants are “persons” within Section 1983. In conjunction with Section 1343(3), Section 1983 has served as the basis for many suits against public officials acting in their official capacities. In Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), Justice Harlan makes clear that when a complaint alleges the unconstitutionality of a state statute “the District Court sitting as a one-man tribunal .... [is] properly seised of jurisdiction over the case under §§ 1343(3) and (4) of Title 28. . . .” 397 U.S. 397, 403, 90 S.Ct. 1207, 1213 to redress grievances under 42 U.S.C. 1983. The defendant in Rosado was a New York State official who administered the same federally supported A.F.D.C. program as that in the present case. Although the opinion discusses jurisdiction in great detail, 397 U.S. 397, 402-407, 90 S.Ct. 1207, there is not the slightest implication that defendant’s status as a representative of the state is relevant under Sections 1343(3) and 1983. This use of Section 1983 as the means of suing state officials has gone unchallenged in both the Supreme Court and in this circuit court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), Ser-ritella v. Engelman, 462 F.2d 601 (3rd Cir., 1972), aff’g 339 F.Supp. 738 (D. New Jersey, 1972). If the trial judge’s interpretation of Section 1983 were correct, very few cases could ever have been successful under the statute. Section 1983 specifically requires that the “person” to be sued has acted under color of state law. When a person acts under color of state law he most often represents the state. Under the trial judge’s view, the state’s status as a non-“person” could be asserted by the state representative who is sued under Section 1983. 365 F.Supp. 179, 183. As the logical consequence of the trial judge’s view, Section 1983 would be used only where the state official had acted beyond the scope of his authority. At other times, a state official would represent the state whose status he could assert. Section 1983 clearly is not restricted to redressing abusive conduct beyond the scope of the authority of the person acting under color of state law. The district court’s jurisdictional analysis under Section 1983 is, in our view, incorrect. In addition, there is no Eleventh Amendment bar to granting prospective relief in the instant case. Following the reasoning of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not bar a suit against a state official acting under a state statute allegedly violative of the U.S. Constitution. The Eleventh Amendment does not prevent a “federal court from directing a state official to bring his conduct into conformity with federal law.” Rothstein v. Wyman, 467 F.2d 226, 236 (2nd Cir. 1972). This principle was most recently reaffirmed by the Supreme Court in Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edel-man, the Court does not question the view that Ex parte Young authorizes prospective relief. The court states: Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; [emphasis added] 415 U.S. 651, 663, 94 S.Ct. 1347, 1356. In light of these cases, the trial court’s denial of jurisdiction to grant prospective relief must be reversed. RETROACTIVE MONETARY RELIEF The trial judge was correct in granting summary judgment for defendant on plaintiff’s petition for retroactive monetary relief. In light of Edelman v. Jordan, decided subsequent to the district court’s opinion, the Eleventh Amendment bars an award of retroactive monetary relief against a state officiala unless the state has waived its Eleventh Amendment objection by consenting to suit. Since consent, according to Edelman, will not be inferred from state participation in a federal program, the Eleventh Amendment bars monetary relief. III. The judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion. . The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any proper person : (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States ; . Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . Under Title IV of the Social Security Act of 1935, 42 U.S.C. §§ 601-644 (1970) as amended, the Aid to Families with Dependent Children Program was adopted by Delaware. 31 Del.C. §§ 321-331. . The district court initially granted defendant’s motion of summary judgment in 337 F.Supp. 350 (D.Delaware, 1972), Judge Gibbons’ reversal for failure to comply with proper notice requirements is found in 479 F.2d 603 (3rd Cir., 1973). On remand the Delaware district court issued a summary judgment which is the subject of the present appeal. 365 F.Supp. 179 (D.Del., 1973). . Plaintiff no longer seeks injunctive relief. . Meyer v. New Jersey, 460 F.2d 1252, 1253, (3rd Cir., 1972); United States ex rel. Cittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3rd Cir. 1969) cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); Fear v. Commonwealth of Pa., 413 F.2d 88, 89 (3rd Cir., 1969), cert. denied 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969). . The Eleventh Amendment of the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. . Although Justice Harlan’s remark mentions only Section 1343(3), the action was brought under both 28 U.S.C. 1343(3) and 42 U.S.C. 1983. Rosado v. Wyman, 304 F.Supp. 1356, 1361 (E.D.N.Y.1969). . The kind of Section 1983 relief resulting in individual liability for abuse of official authority was analyzed by the Supreme Court in Monroe v. Pape, 365 U.S. 167, 171-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and in Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In the instant case the court ruled that defendants were not guilty of bad faith and therefore were not chargeable with any individual responsibility. Plaintiff-appellant has not challenged this holding. . The district court relied heavily on Westberry v. Fisher, 309 F.Supp. 12 (D.Maine, 1970) and Francis v. Davidson, 340 F.Supp. 351 (D.Md.1972) (Three Judge Court) aff’d 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). Its reliance, however, was based on a misconception of these opinions. Judge Gignoux in the Wesfberry opinion indicated that if monetary relief is sought in a suit against a state official as the named defendant, the judgment must be enforced against the state treasury, unless there is proof that the individual official acted in bad faith. Although a challenge purports to be against the “person” of the state official, it is really an action against the state which must pay any money awards. The state is not a person and the suit is therefore barred. The district court in the instant case miseon-strued this Wesfberry theory by applying it with respect to prospective declaratory relief. Judge Gignoux was careful to conclude in Wesfberry that the Eleventh Amendment was also a major bar to a monetary recovery against a state official. Nowhere does the Wesfberry opinion apply the same rule with respect to prospective relief. The court in Francis v. Davidson reiterated the Westberry rationale. . Defendant appellee’s brief raises additional arguments for the denial of prospective relief. They also lack merit. First, appel-lee rightly indicates that denial of declaratory relief is a discretionary act which should be overruled only upon a finding of abuse of discretion. This contention is inajjpropriate in the instant case since the trial judge did not deny declaratory relief as a matter of discretion but because he felt compelled to do so under his reading of Section 1983. Additionally, appellee asserts that there is no case or controversy, a fallacious argument in light of the fact that members of plaintiff’s class are still welfare recipients and subject to defendant’s future interpretation of notice requirements. Defendant-appellee finally asserts that since Judge Gibbons’ earlier opinion was fully dis-positive of the merits of this case, the issue of notice has been resolved. As such, appel-lee claims there is no reason on the merits to deal with the problem of jurisdiction. This argument is specious. If it had been rendered, without proper jurisdiction, Judge Gibbons’ opinion would have been a nullity. . Appellant’s brief alleges in support of a request for monetary relief the fact t at some prospective orders may cost the state more money than do retroactive claims. In light of Justice Rehnquist’s majority opinion in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) this view is meritless. The Court states : As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State’s revenues, since the state law which t' e Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. . . . But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court’s decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra. [Emphasis added.] 415 U.S. 651, 665, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662. a. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) the Supreme Court dealt with a related issue. When a state official has been sued for monetary relief under Section 1983, a district court may not dismiss for want of jurisdiction on the basis of the Eleventh Amendment where the complaint can also be read to state a cause of action against the official in his individual capacity. . According to the Edelman majority, consent will not be inferred. The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity. ... In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171 [29 S.Ct. 458, 464, 53 L.Ed. 742] (1909) 415 U.S. 651, 671, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662. . The district court’s denial of retroactive monetary relief was based on the Westberry v. Fisher, 309 F.Supp. 12 (D.Maine, 1970) theory that the state against whom a money judgment would be enforced is not a person under Section 1983. Unlike the district court in the instant case, Westberry then proceeded to ground its Section 1983 reasoning in the Eleventh Amendment (309 F. Supp. 12, 19). The Westberry interpretation of the Eleventh Amendment is reaffirmed in Edelman. There is no discussion of Section 1983 in Edelman.

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

Wilfred KEYES et al., Plaintiffs-Appellees-Cross-Appellants (Number 74-1350), v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, et al., Defendants-Appellants-Cross-Appellees (Number 74-1350), Appeal of CITIZENS ASSOCIATION FOR NEIGHBORHOOD SCHOOLS, an unincorporated association, Intervenor-Appellee (Number 74-1351). Congress of Hispanic Educators et al., Intervenors. Colorado Association of School Boards et al., Amici Curiae. Nos. 74-1349, 74-1350 and 74-1351. United States Court of Appeals, Tenth Circuit. Submitted Feb. 10, 1975. Decided Aug. 11, 1975. Rehearing Denied Sept. 16, 1975 Certiorari Denied Jan. 12, 1976. See 96 S.Ct. 806. Michael H. Jackson, Denver, Colo. (William K. Ris, Thomas E. Creighton and Benjamin L. Craig, Denver, Colo., with him on the brief), for School Dist. No. 1 and others. Gordon G. Greiner, Denver, Colo. (Robert T. Connery, Denver, Colo., and James M. Nabrit, III, New York City, with him on the brief), for Wilfred Keyes and others in Nos. 74-1349 and 74-1351. Sanford Jay Rosen, San Francisco, Cal. (Vilma S. Martinez, Joaquin G. Avila, Carlos Alcala and Drucilla S. Ramey, San Francisco, Cal., and R. Pete Reyes, Denver, Colo., with him on the brief), for intervenors. Reese Miller, Denver, Colo. (Jay W. Swearingen, Denver, Colo., with him on the brief), for amicus curiae Colorado Assn, of School Boards. Gerald A. Caplan and Richard E. Bump of Caplan & Earnest, Boulder, Colo., on brief for amicus curiae Colorado Assn, of School Executives. John P. Moore, Atty. Gen., John E. Bush, Deputy Atty., Gen., Jack E. Hanthorn, First Asst. Atty. Gen., Charles M. Elliott, Asst. Atty. Gen., Denver, Colo., on brief for amicus curiae State Board of Education, State of Colorado. Before LEWIS, Chief Judge, and SETH and BARRETT, Circuit Judges. LEWIS, Chief Judge. These combined cases reach this court by appeal following remand directly to the district court by the Supreme Court, Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. After extensive hearings the trial court entered its judgment, 368 F.Supp. 207. All parties appeal with typical inflexibility of position, understandably, perhaps, because of the great complexity of the problem and the inevitable intrusion of naked emotion and worrisome economic problems. Public objectivity is not to be even hoped for and judicial objectivity is difficult indeed. Although we do not affirm the judgment of the trial court in its entirety we do recognize that court’s objective and stern effort to follow the law and the complete necessity of the court’s rejection of the various plans advocated by the subjectively interested parties. And to place the orders of the district court in perspective, we will summarize the course of litigation in these cases from their inception in 1969, giving particular attention to the terms of the Supreme Court’s remand. We will then consider whether the district court properly concluded that segregative acts of the defendant School Board during the 1960s render the entire Denver school system an illegal dual system. Next we will take up challenges to those portions of the court’s remedial order concerning the reassignment and transportation of students. Finally, we will consider portions of the court’s order dealing with the institution of bilingual-bicultural education in Denver schools, combination of East and Manual High Schools on a campus basis, and faculty and staff desegregation. I. In 1969 the plaintiffs sought a preliminary injunction against the School Board’s implementation of its Resolution 1533, which would have effectively rescinded the Board’s previously formulated desegregation plan for schools in Denver’s Park Hill area. In granting the preliminary injunction, 303 F.Supp. 279, the trial court found that during the previous decade the School Board had willfully undertaken to maintain and intensify racial segregation in Park Hill schools. The trial court based this finding upon proof (1) that the Board established Barrett School in 1960 to contain the eastward movement of the black population in northeast Denver; (2) that the Board ignored official study committee proposals in 1962 and 1966 for the rezoning of attendance, areas in order to minimize the effects of de facto segregation; (3) that the Board employed 28 of the district’s 29 mobile classrooms in the Park Hill area to contain an overflow of black students; (4) that the Board added eight new classrooms at Hallett School also to contain an expanding black student body; (5) that in 1962 and 1964 the Board manipulated school boundaries in Park Hill and thereby further isolated black.school children; (6) that the Board staffed minority schools with disproportionately high numbers of probationary teachers, teachers with less than ten years’ experience, and minority teachers. In a supplemental opinion, 303 F.Supp. 289, the trial court held that the Board’s Resolution 1533 constituted a further act of de jure segregation. The trial court again enjoined implementation of Resolution 1533 and further ordered boundary changes in keeping with the Board’s previously formulated desegregation policy. At trial on the merits, plaintiffs alleged acts of de jure segregation both in Park Hill and in Denver’s central or core city area. In its memorandum opinion, 313 F.Supp. 61, the trial court reaffirmed its position that the Board willfully followed a policy of racial concentration and isolation in Park Hill in violation of the rights of minority school children. With respect to the core city schools, however, that court determined minority concentrations did not result from affirmative conduct on the part of the Board; rather, black and Hispano concentrations in these schools stemmed from long-established housing and population patterns and from the Board’s racially neutral “neighborhood school” policy. The court held, however, that irrespective of the causes of segregation in the core city, these schools unconstitutionally provided inferior education for their minority students. The trial court made final its preliminary injunction reinstating Resolutions 1520, 1524, and 1531, pursuant to which the Board was to eliminate segregation in Park Hill’s predominantly black schools and to stabilize the racial composition of schools in transition. In a subsequent opinion, 313 F.Supp. 90, the district court ordered the desegregation of core city schools and the institution of a program of compensatory education for minority students. On appeal, this court affirmed the trial court’s conclusion that the Board’s actions in Park Hill during the 1960s amounted to de jure segregation in violation of minority students’ rights to equal protection of the laws. 445 F.2d 990. We did, however, reverse the district court’s ruling that the Board’s maintenance of de facto segregated schools in the core city transgressed the fourteenth amendment. Absent proof of. affirmative Board action leading to segregated conditions, this court held, maintenance of educationally inferior segregated schools does not provide grounds for relief under the Constitution. In this connection, we stated that: [W]here no type of state imposed segregation •. has previously been established, the burden is on plaintiff to prove by a preponderance of the evidence that the racial imbalance exists and that it was caused by intentional state action. Once a prima facie case is made, the defendants have the burden of going forward with the evidence. 445 F.2d at 1006. However, we affirmed the trial court’s conclusion that plaintiffs failed to make a prima facie case as respects the core city schools. The Supreme Court granted plaintiffs’ petition for certiorari and ultimately overturned this court’s rulings relating to the existence of actionable segregation in core city schools. 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548. The High Court observed that where school authorities are proved to have “carried out a systematic program of segregation' affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system.” • 413 U.S. at 201, 93 S.Ct. at 2694. The Supreme Court reasoned that the purposeful concentration of minority students in certain schools has the reciprocal effect of keeping other schools predominantly Anglo. Certainly natural boundaries or peculiarities in the geographic structure.of a school district may prevent the district-wide impact of segregative acts directed at a portion of the- district; but, as the Supreme Court acknowledged, such cases must be rare. The Court then held that in the absence of a determination that the school district is naturally fractionalized into separate, identifiable and unrelated units, “proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system.” 413 U.S. at 203, 93 S.Ct. at 2695. The Supreme Court, then, established the presumption that the School Board’s segregative acts in a substantial portion of the school district renders the entire district a dual system. At this point we must observe that the compulsion of the Court’s opinion does not preclude the Board from rebutting this presumption with proof that the racial compositions of predominantly Anglo schools surrounding areas of minority concentration have been unaffected by the Board’s segregative acts. The presumption of system-wide impact, however, derives from the pervasive interrelationship between school policy and the community’s development; it is therefore not easily rebutted. The manipulation of attendance areas, the construction of new schools and classrooms, and the assignment of faculty and staff, all for racial effect, profoundly influence subsequent housing and population patterns throughout the district. In order to rebut the presumption of district-wide seg-regatory effect, the Board’s proofs must negate these presumed intangible influences. The Supreme Court directed the district court, on remand, first to afford the School Board opportunity to prove that the “Park Hill area is a separate, identifiable and unrelated section” of the district. In the event that the Board should fail in this proof, the district court was directed, second, to determine whether the Board’s conduct in deliberately segregating Park Hill schools “constitute[s] the entire school system a dual school system.” If the Denver school system is determined to be a dual system, the Court directed that the Board should assume the “affirmative duty to desegregate the entire system ‘root and branch’.” On remand from the Supreme Court, the parties initially presented evidence bearing on the existence of a dual school system in Denver. In its Memorandum Opinion and Order, 368 F.Supp. 207, the district court held, first, that the School failed to establish that Park Hill is geographically separate or isolated from the rest of the school district. Second, the court held that the segregative acts of the Board in Park Hill constitute the rest of the district a dual school system. In this respect, the court considered the absence of non-geographic factors isolating Park Hill schools from those in the rest of the district. The court also noted Park Hill’s similarity to adjacent areas in terms of available public services, social characteristics and spacial layout. Plaintiffs’ evidence established to the court’s satisfaction that the Board’s intentional segregation in Park Hill substantially affected schools outside the area. On December 17, 1973, the court ordered the parties to submit plans for the desegregation of the entire School District No. 1. After a trial at which the court considered'each of the tendered plans, the court determined' that each was inadequate and commenced its own independent study. The result was the court’s adoption of its own plan, 380 F.Supp. 673, which was contained in a Final Decree and Order dated April 17, 1974. II. We consider first whether the trial court properly concluded that the School Board’s proven segregative acts in Park Hill during the 1960s renders the entire Denver school system a dual system. The principal issue of dispute during trial concerned the types of evidence admissible to rebut the presumption that the Board’s acts resulted in system-wide violation of the fourteenth amendment. The School Board conceded that no geographical boundaries separated Park Hill from the rest of the district. Likewise, the Board did not challenge plaintiffs’ evidence that schools throughout the district, including Park Hill, were administered in the same way and that Park Hill is not distinguishable from surrounding neighborhoods by non-geographical factors. Dispute arose, however, when the School Board tendered evidence on the absence of any causal relation between its proven acts of segregation in Park Hill and current levels of racial and ethnic concentration throughout the district. Plaintiffs argue that proof of actionable system-wide segregation must be presumed from the Board’s segregative acts in a substantial portion of the school district, subject only to rebuttal in the form of proof of the isolation of the portion of the district to which the proven acts were directed. Plaintiffs argued both at trial and on appeal that the Board’s evidence of the absence of extraterritorial effect was irrelevant under the terms of the Supreme Court’s mandate. Although the trial court. admitted and considered the Board’s evidence, it was of the view that proof of extraterritorial effect was somewhat beside the point;.the court viewed the principal issue on remand as whether the Board’s segregative intent with respect to the entire district could be. inferred from its Park Hill actions. We believe, however, that the Board’s evidence concerning extraterritorial effect was relevant to the issues raised on remand. The Supreme Court explained the posture of the case as follows: [Cjommon sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions. This is not to say, of course, that there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare. In the absence of such a determination, proof of a state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of a dual system. 413 U.S. at 203, 93 S.Ct. at 2695. The Board’s evidence concerning extraterritorial effect bore importantly on the issue whether Park Hill is a “separate, identifiable, and unrelated unit” within the district and was properly received by the court below. We also believe that the court could properly conclude, as it did, that the Board’s evidence on the issue of extraterritorial effect was “merely conclusory and is lacking in substance.” 368 F.Supp. at 210. The Board’s evidence consisted entirely of the testimony of E. Bruce Slade, a statistician, who conducted a study of percentage variations in the racial compositions of Denver’s school student bodies between 1962 and 1968, and of percentage variations in the racial compositions of school-age population on a neighborhood basis between 1960 and 1970. From these statistics, Mr. Slade concluded that neither the School Board’s 1969 rescission of its own desegregation policy nor its construction of Barrett School in 1960 had any impact on racial concentrations in schools outside Park Hill. Regardless of the course taken by the School Board, he testified, independent, demographic trends would have resulted in the same levels of black, Hispanic and Anglo concentrations in Denver schools. Mr. Slade generally concluded that the Board’s acts in Park Hill had no impact on the racial composition of the schools outside Park Hill between 1960 and 1970. With the testimony of three of their own experts, plaintiffs attacked Mr. Slade’s conclusions on essentially three fronts. First, the defendants’ evidence of the absence of extraterritorial effect rested entirely upon statistical data and ignored the interplay, which the Supreme Court noted, between the Board’s policy designating certain schools as being for black or Anglo children and the movement of families into the neighborhoods of Denver. Second, Mr. Slade’s choice of s’chool-by-school racial percentages as an indication of concentration trends ignored the overall decrease, between 1969 and 1970, in Denver’s Anglo population and the increase, during the same period, of Denver’s black population. Thus, although black school children constituted a slightly increasing portion of school student bodies outside Park Hill, nevertheless black pupils attending schools outside Park Hill constituted a decreasing fraction of Denver’s total black school-age population. Third, in postulating the outcome of the Board’s alternatives to construction of Barrett School as a receptacle for a recently migrated black population in northeast Denver, Mr. Slade failed to consider alternatives available to the Board of a genuinely integrative nature. In this way, Mr. Slade’s calculations avoided measuring the segregative impact of Barrett’s construction. The trial court’s findings of fact will not be set aside on appeal unless they are clearly erroneous. Rule 52(a), Fed.R.Civ.P. On the basis of our review of the record, we cannot say that the trial court erred either in choosing to disbelieve the School Board’s evidence or in concluding that the Board failed to overcome plaintiffs’ prima facie case establishing the existence of a dual system in Denver. Although the trial court experienced difficulty in interpreting the Supreme Court’s opinion, the facts as found by the trial court nevertheless support a ruling favorable to the plaintiffs under a correct reading of the High Court’s opinion. An appellate court will affirm the rulings of the lower court on any ground that finds' support in the record, even where the lower court reached its conclusions from a different or even erroneous course of reasoning. Jaffke v. Dunham, 352 U.S. 280, 77 S.Ct. 307, 1 L.Ed.2d 314. The School Board next argues that because the trial court proceeded from an incorrect view of the issues on remand, it erroneously excluded certain of the Board’s tendered testimonial and documentary evidence. We disagree and will examine each of the challenged eviden-tiary rulings in turn. First, the School Board challenges the court’s rulings on Mr. Slade’s testimony concerning the construction of Barrett School. The Board claims that the court received this portion of Mr. Slade’s testimony only insofar as it reflected the Board’s motivation in portions of the city outside Park Hill; the court, it is argued, incorrectly refused to consider the evidence insofar as it proved the absence of any racial effect on pupil populations outside Park Hill. A close reading of the record indicates, however, that the court ultimately received the Board’s evidence for the precise purpose for which the Board offered it. Initially, the court stated that Mr. Slade’s testimony regarding Barrett School would. be received “only insofar as it might have some probative value in showing the motivation of the Board.” A discussion between defendants’ counsel and the court ensued, after which the court appears to have modified its ruling to exclude Mr. Slade’s testimony only insofar as it (1) proved the good faith of the Board with respect to the Park Hill schools and (2) went to issues already adjudicated in the case’s 1969 decision. Defendants’ counsel then stated that he had no objection to this ruling and Mr. Slade’s testimony resumed. At the close of direct examination, plaintiffs’ counsel moved to strike all of Mr. Slade’s testimony as irrelevant. The court replied that the testimony would be disregarded insofar as it bore upon issues resolved in earlier litigation, which we understand to mean (1) the Board’s good faith with respect to Park Hill schools and (2) the effect within Park Hill of the Board’s segregative acts. Again defendants’ counsel replied in substance that he had no objection to the court’s ruling. The court’s rulings on Mr. Slade’s testimony are concededly confusing. But the language of the court’s written memorandum convinces us that the court fully considered Mr. Slade’s testimony on the issue whether “segregated conditions. outside the Park Hill area are wholly the product of external factors such as demographic trends and housing patterns, and are in no way the product of any acts or omissions by defendants.” 368 F.Supp. at 210. The Board’s present challenge to these court rulings is therefore without foundation. The Board next challenges the court’s exclusion of testimony intended to show that certain of its proven segregative acts in 1964 had no effect on the racial compositions of schools within the Park Hill area and, by inference, could not have had a similar effect on school populations outside Park Hill. The Board conceded that this evidence would be inadmissible insofar as it went solely to the absence of segregative effect inside Park Hill, since that issue was resolved in earlier decisions of the court. The Board urged its relevance, however, to the probable effects of the Board’s actions on schools outside Park Hill. The court rejected the evidence, we believe properly, on grounds of its remoteness to the issues before the court. At any rate, the remoteness of evidence is a matter within the discretion of the trial judge, see, e. g., International Shoe Machinery Corp. v. United Shoe Machinery Corp., 1 Cir., 315 F.2d 449, cert. den., 375 U.S. 820, 84 S.Ct. 56, 11 L.Ed.2d 54, and we do not believe the court in the present case abused its discretion. Finally the Board contends that the trial court erroneously excluded the testimony of the superintendent of Denver’s schools, Dr. Kishkunas, concerning present conditions in the system. Dr. Kishkunas was to testify that at the time of the hearing Denver’s was not a “dual system” as the phrase is defined in cases given him to study. Specifically he was to evaluate the Denver system in light of what he considered to be classic indicators of duality, including state-enforced separation, of races, exclusion of students from schools solely on the basis of race, and designation of schools along racial lines by reference to faculty composition and differences in transportation services, extracurricular activities, buildings, and so on. The court refused this testimony because it bore upon current conditions rather than conditions in the school system as of the initial hearings of the case in 1969. We believe that under the terms of the Supreme Court’s remand the district court properly rejected Dr. Kishkunas’ testimony. In its Keyes opinion the Supreme Court considered for the first time the legality of segregation in schools that have never operated under constitutional of statutory provisions which either mandated or permitted racial or ethnic segregation of students. In pre-Keyes cases of de jure segregation, the existence of a dual system was directly inferred from state-enforced separation of races or ethnic groups. See, e. g., Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Alexander v. Holmes County Board of Educ., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19. In Keyes however, the Court confronted a different variety of intentional, system-wide segregation, to be inferred from segregative acts of school authorities and their expected repercussions on racial compositions of schools in the system; a search for the usual explicit indicators of the existence of a dual system cannot reveal, in a case like the present one, the state’s hand in causing racial or ethnic concentrations in schools. Rather courts must presume the existence of a dual system from school authorities’ segregative acts, the burden then shifting to those authorities to prove the absence of any causal relation between those acts and current levels of racial segregation. We note that the court below did not exclude all evidence of current conditions in the Denver schools. Indeed, most of the testimony before the court dealt with current similarities between schools and= community life in Park Hill and those outside Park Hill, or with current levels of racial concentration within and without Park Hill. Far from excluding relevant facts arising after 1969, the district court properly admitted evidence of the relationship between the Board’s seg-regative acts during the 1960s and current racial conditions. Under the terms of The Supreme Court’s remand, this was the sole issue for trial. Although Dr. Kishkunas’ testimony may have been probative of the proper remedy for segregated conditions in Denver, nonetheless it did not bear on the issue remanded to the trial court. The court therefore properly rejected it as irrelevant. III. In hearings conducted in February and March 1974, the district court considered one desegregation- plan submitted by the School District, two plans submitted by the plaintiffs, and a plan submitted by the court’s consultant, Dr. John A. Finger. In Appendix A and Appendix B, infra, we summarize the plans of the parties and the court’s objections to them. Before considering specific challenges to the court’s remedial orders, we briefly summarize the Finger Plan as adopted and modified by the court. The Court’s Plan The Finger Plan seeks to desegregate Denver’s elementary schools in three ways. First, 24 schools would be rezoned. Second, 23 other schools would be rezoned and would receive students from satellite attendance areas. Third, approximately 37 schools would be organized in pairs or clusters for purposes of part-time reassignment of students on a classroom basis. The part-time pairing component of the court’s program requires transportation of children, excluding kindergarten students, from their home schools to a receiving school for half-day plus the lunch period. These children would then be returned to their neighborhood schools for the remainder of the day. An individual child would be in a “receiving” class on some days and would be part of a “sending” class on other days. The court anticipated that details of pairing.could be worked out in one of several ways. For example, grades one, three, and five from a minority school might be transported to its paired counterpart, which would be predominantly Anglo. Upon arrival students would be taught in integrated classrooms. At the same time, grades two, four, and six from the predominantly Anglo school would be transported to the minority school. After lunch, students would travel back to their home schools. The court expressed its preference for another variant of the plan entailing transportation of approximately half the-minority students in a grade to the paired school on alternating days or on alternating weeks; an equal number of Anglo students would travel to the minority school on alternating days or weeks. In this way each paired school would retain grades one through six. Such grade-splitting, moreover, would enable school authorities to avoid the useless busing of Anglo students to predominantly Anglo schools and minority students to predominantly minority schools. Should its part-time pairing plan prove too burdensome or disruptive, the court observed, school authorities could easily convert to full-time pairing. The court’s principal justification for part-time pairing was the desirability of anchoring students and parents to a neighborhood school, which would continue to serve as the focus for student extracurricular and community functions. The court’s plan would rezone all junior and senior high schools in Denver. In addition, twelve junior high schools and eight senior high schools would receive students from satellite attendance areas. At the outset, the court adopted as its desegregation guideline a range of from 40% to 70% Anglo enrollment for each elementary school, and a “somewhat higher” minimum Anglo enrollment figure for secondary schools. Under the Finger Plan, eight elementary schools would have - Anglo enrollments below 40%; with respect to five- of these schools, the court justified departure from its guidelines on grounds of the schools’ inaccessibility and the desirability of continuing or instituting bilingual-bicultural programs at predominantly Hispano schools. Projected junior high school enrollments range from 43.1% to 75.7% Anglo. Projected high school enrollments range from 42.5% to 80.1% Anglo. Estimates of the total number of students transported to schools under the Finger Plan range from 15,870 to 24,103. It is likely under any estimate that a disproportionate number of minority students would be bused. DM the district court properly employ Anglo-minority enrollment percentages as guidelines in shaping its remedy? In Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069, the Supreme Court. reaffirmed the long-established proposition that the scope of any school desegregation remedy is necessarily determined by the nature and extent of the constitutional violation. See also 20 U.S.C. § 1712; Swann v. Charlotte-Meck-lenburg Board of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554. In the-present appeal, the School Board challenges the district court’s remedy on the ground that system-wide application of Anglo-minority enrollment percentages exceeded any proven constitutional violation. The Board argues that since the constitutional violation before the district court was premised-upon segrega-tive acts in a single corner of the school district, the remedy should be accordingly limited. We disagree. Whether, a school system is illegally segregated by reason of statutory separation of the races or by reason of past segregative acts of school authorities, the scope of the remedy must in either case be system-wide. Citing Green v. County School B’d of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 20 L.Ed.2d 716, a case involving statutory school segregation, the Supreme Court in Keyes directed: If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system “root and branch.” 413 U.S. at 213, 93 S.Ct. at 2700. Elsewhere the Court stated that where the district court concludes from the School Board’s conduct in significant portions of the district that a dual system exists, then, “as in cases involving statutory dual systems, the school authorities have an affirmative duty ‘to effectuate a transition to a racially nondiscriminatory school system.’ ” 413 U.S. at 203, 93 S.Ct. at 2695 (citing Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II)). (Emphasis added.) Despite these directions the School Board urges us to,adopt special remedial standards for cases of non-statutory de jure desegregation and to limit the remedy to direct results of the Board’s segregative acts in Park Hill. We believe the Board’s suggestion would saddle the plaintiffs, in.the remedy phase of their case, with the burden of proving de jure segregation as to each and every school in the system. The Court’s opinion in Keyes plainly forbids us from requiring as much. The district court therefore properly dealt with the entire Denver system in fashioning its remedy. We also believe the district court correctly avoided the narrow reliance upon district-wide racial and ethnic averages proscribed in Swann. In seeking an acceptable student desegregation plan, the court necessarily adhered to. broad percentage guidelines based on projected racial-ethnic compositions of school student bodies. In Swann the Supreme Court held that ethnic ratios and percentages may properly be used as a starting point in shaping a remedy. 402 U.S. at.24-25, 91 S.Ct. 1267. In the present case, the district court’s consideration of such factors as the desirability of “walk-in” integration and neighborhood contact with schools demonstrate the court’s disinclination to engage in a numbers game at the expense of legitimate community and educational needs.' The School Board also contends that the court’s plan arbitrarily and unnecessarily alters attendance areas of Denver schools already integrated. The court’s rezoning of some 46 schools that presently meet the court’s expressed guidelines for desegregation will undoubtedly disrupt the lives of families and cause school authorities inconvenience. Yet we are unable to say that the court acted arbitrarily or needlessly. Many of the court’s boundary changes are minor and appear to reflect adjustments of computer data, which located students by race and grade in geographical grids, to Denver streets. More substantial boundary changes are the inevitable result of the court’s attempt to maximize “walk-in” - integration or to make room for student transfers from satellite attendance areas. Such adjustments are unavoidable in developing a system-wide remedy; the complexity of the court’s task, we believe, argues for broad discretion in formulating the details of a satisfactory plan. See Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1, 15-16, 91 S.Ct. 1267. The School Board has not pointed to any ■specific instance in which the court’s rezoning plan fails rationally to relate to the court’s task of correcting, “by a balancing of the individual and collective interests, the condition that offends the Constitution.” Swann, supra, 402 U.S. at 16, 91 S.Ct. at 1276. In the absence of a more specific challenge to the court’s methods, we must conclude that the court acted within the limits of its remedial powers. Is the court’s part-time pairing plan constitutionally adequate? We hold that the part-time pairing component of the court’s remedy for desegregation of elementary schools is not constitutionally acceptable as a basic and permanent premise for desegregation but deem that practicality negates the necessity of invalidating in toto this aspect of the trial court’s judgment at this time. 'We read this innovation as recognized by the trial court as an adjunct to be tolerated only as such under the temporary conditions of the present and as a step toward total integration. Although the district court’s remedial discretion is broad, it is necessarily bounded by the constitutional requirement that the court make “every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” Davis v. B’d of School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577. In examining the record and the district court’s opinion, we find no insurmountable practical impediment to full-time desegregation. Indeed both the court and its consultant Dr. Finger were of the view that part-time classroom pairing would easily convert to a full-time program. The court’s part-time plan offers some of the most severely segregated schools in the district only part-time desegregation; of the eighteen predominantly minority schools in the part-time program, thirteen have projected enrollments of less than ten percent Anglo pupils. Under the circumstances a partial solution for these schools is not enough. The claimed advantage of the court’s part-time desegregation program over the same program- run full-time is continuous neighborhood contact with school facilities. Part-time pairing offers easier access to school inasmuch as each student would attend his neighborhood school for at least a portion of every day. The neighborhood school arguably would remain viable as an after-school playground and as the focus for extracurricular and parent activity. Although we acknowledge such neighborhood contact to be important, we cannot place it above the constitutional rights of children to attend desegregated schools. We perceive those rights to include full-time attendance in a desegregated setting. A part-time program of the precise kind adopted by the court has never before been tested against the constitutional standards of Swann or its predecessors. Referring to a line of cases involving somewhat different part-time desegregation schemes, the Fifth Circuit noted: “[TJhis court has... assiduously adhered to the proposition that part-time desegregation, while a salutary adjunct of desegregation plans, cannot be used as a substitute for the complete dismantling of a segregated school system.” Arvizu v. Waco Independent School District, 5 Cir., 495 F.2d 499, 503. In United States v. Texas Education Agency, 5 Cir., 467 F.2d 848, the Fifth Circuit rejected en banc an elementary school

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

DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, Appellant, v. 61 PARCELS OF LAND IN SQUARES 585, 586, 643 and E-643, IN The DISTRICT OF COLUMBIA, Thomas A. White, et al., and Unknown Owners, Appellees. DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY, Appellant, v. 47 PARCELS OF LAND IN SQUARES 538 and 583 IN The DISTRICT OF COLUMBIA, Angela Brosnan, et al., and Unknown Owners, Zion Baptist Church, Inc., et al., Appellees. Nos. 13144, 13198. United States Court of Appeals District of Columbia Circuit. Argued June 22, 1956. Decided July 26, 1956. Mr. Roger P. Marquis, Atty., Dept, of Justice, for appellant. Mr. Everett M. Raffel, Washington, D. C., for appellees, Harrington and Rollins. Mr. James C. Wilkes, Jr., Washington, D. C., for appellee, Staley and others. Mr. John L. Laskey, Washington, D. C., for appellees, Zion Baptist Church, Inc., and Trustees of said Church. Before BAZELON, FAHY and BAS-TIAN, Circuit Judges. FAHY, Circuit Judge. These appeals, which we have consolidated for purposes of our decision, are from judgments approving jury verdicts for money for certain parcels of land taken by eminent domain by the District of Columbia Redevelopment Land Agency, the appellant. The judgments are attacked by the Agency on the ground the District Court erred in excluding evidence offered by the Agency of sales of comparable parcels. The exclusion is defended by appellees upon the basis of Hannan v. United States, 76 U.S.App. D.C. 118, 131 F.2d 441, 442; that is, ap-pellees contend that the witnesses did not “qualify” the excluded testimony by showing preliminarily that the sales were made without “compulsion, coercion or compromise,” language taken from Hannan. In Hannan this court did not feel called upon to define the expressions “compulsion, coercion or compromise.” The case arose out of a condemnation proceeding by the United States. The rejected evidence had been tendered by appellants there to show prices the United States had paid, following negotiation and purchase, for parcels other than those of appellants, but which also constituted part of the site being obtained for public purposes. It may well be the court felt no need for elaboration of the meaning of the expressions referred to, for there was a second ground for the decision, namely, that the reception of evidence of other purchases or sales “calls for the exercise of discretion by the trial court”, and no abuse of discretion was found in rejecting the evidence. That there is such a discretion is well settled. In addition to Hannan and the authorities there cited see Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892, 894-895; Baetjer v. United States, 1 Cir., 143 F.2d 391, 397, certiorari denied, 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 618; United States v. 5139.5 Acres of Land, 4 Cir., 200 F.2d 659. In Baetjer this discretion is discussed in terms of nearness in time, similarity of lands, amount of lands involved and like aspects of remoteness or comparability. In view of the importance of the main contention in the present cases we now determine more specifically the type of compulsion, coercion, or compromise which must be rebutted by the one offering evidence of previous sales preliminarily to reception by the court of such evidence. A comparable sale was not under compulsion, coercion, or compromise in this sense if the witness testifies, or if it is otherwise shown, that the public records do not disclose that the sale was at foreclosure, under deed of trust securing an indebtedness, at execution or attachment, at auction, under pressure of the exercise of the power of eminent domain, or other coercion sui generis— types of legal compulsion generally disclosed by public records. There need be no showing of the non-existence of, or the nature of, the varied and variable economic reasons or motivations which might have moved the parties concerned to resort to the open market to dispose of property or to sell by private negotiation. Such considerations or pressures go to weight and not to admissibility, and may be developed, if desired, on cross examination or by independent evidence. As stated by the Court of Appeals for the First Circuit in Baetjer: “If the sales were not what they appear to have been, transactions at arm’s length, that is a matter for cross examination or rebuttal evidence. Only sales on foreclosure and similar forced transactions not on the open market are without probative force as a matter of law. The motivation behind other transactions can be shown, but only as affecting weight, not admissibility.” 143 F. 2d at page 397. To like effect, see, United States v. 5139.5 Acres of Land, supra; City of Chicago v. Vaccaro, 408 Ill. 587, 600, 97 N.E.2d 766, 773; Forest Preserve Dist. of Cook County v. Eckhoff, 372 Ill. 391, 394, 24 N.E.2d 52, 54. In further exposition of the problem we hold that an expert on values may explain to the jury, as a basis for his opinion of the value of the property being taken by eminent domain, information he has obtained about other sales, including prices, though he was not a personal participant in the transactions and did not have personal knowledge of the prices or other circumstances or details of them. The admission of such testimony will be subject to the discretion of the trial court, not only as to questions concerning comparability or remoteness, but also as to whether the expert’s sources of information are reliable enough to warrant a relaxation of the rule against hearsay evidence. We agree with the treatment of the problem by the Fourth Circuit in United States v. 5139.5 Acres of Land, in part as follows [200 F.2d 661] : “One of the witnesses for the government who had testified as an expert was asked as to sales of similar lands in the community near the time of the condemnation which he had taken into consideration in arriving at his estimate of value. He proposed to testify as to a number of sales which he had learned of in his investigation and which he had verified by examination of the land records in the county. This testimony was excluded because the records were not produced or the persons who had participated in the sales called as witnesses. This, we think, was error. While the admission of testimony of this sort was a matter very largely within the sound discretion of the trial judge, the exclusion here rested, not upon a sound exercise of that discretion, but upon an erroneous application of the hearsay and best evidence rules. The witness within reasonable bounds should have been allowed to give the jury the facts upon which his opinion as to value was based; and it would unduly hamper the production of such testimony and needlessly prolong the trial to require that the sales be proved with the particularity that would be necessary in suits to enforce the contracts relating thereto. The hearsay and best evidence rules are important, but they should not be applied to prevent an expert witness giving in a reasonable way the basis of his opinion. As said by this court in United States v. 25.406 Acres of Land, 4 Cir., 172 F.2d 990, 993, certiorari denied 337 U.S. 931, 69 S.Ct. 1496, 93 L.Ed. 1738, ‘Testimony as to value would be worth little or nothing, if witnesses were not allowed to explain to the jury their qualifications as experts and the reasoning by which they have arrived at the expert opinion to which they testify; and the rule is that they may thus give the grounds of their opinions. Wigmore on Evidence 2d Ed. sec. 562; Lewis, Eminent Domain 3d ed. Sec. 654.’ ” See, also, International Paper Co. v. United States, 5 Cir., 227 F.2d 201, 208-209. Applying the principles above discussed to the present appeals we find no reason for reversal. The testimony excluded did not preliminarily qualify under the Hannan decision as we now interpret it. A fortiori it did not qualify under any broader construction of that decision which might have been thought proper. Furthermore, the offers of evidence were incomplete in failing to disclose the prices involved in the other sales so as to enable a reviewing court to pass upon the importance of the excluded evidence in light of the evidence as a whole. We find no error in any respect which requires reversal and the judgments accordingly are Affirmed. . For early judicial history of the Agency itself, see Schneider v. District of Columbia, D.C.D.C., 117 F.Supp. 705, affirmed as modified sub nom. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L. Ed. 27. . Of course if the- witness has personal knowledge of compulsion, coercion or compromise as we define those terms in this opinion, he must disclose it, without regard to the state of the public records,

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

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

Pearl E. LANEY, Administratrix of the Estate of Wilbur R. Laney, deceased, Plaintiff-Appellee, v. AMERICAN AIRLINES, INC., A Delaware corporation, Defendant-Appellant. No. 14488. United States Court of Appeals Sixth Circuit. Nov. 20, 1961. Robert E. Rutt, Detroit, Mich. (Ward, Plunkett & Cooney, Detroit, Mich., on the brief), for appellant. Thomas L. Conklin, of Conklin & Maloney, Detroit, Mich. (Mack & Kelley, Alpena, Mich., on the brief), for appellee. Before MILLER, Chief Judge, and MAGRUDER and WEICK, Circuit Judges. PER CURIAM. Decedent, Wilbur R. Laney, who was 91 years of age, fell down an escalator at the Detroit Metropolitan Airport and received injuries which resulted in his death. His widow, as administratrix of his estate, brought an action in the District Court against American Airlines, Inc. to recover damages for the wrongful death of her husband, claiming Airlines was negligent in failing to furnish aid and assistance to him while he was at the airport. The case was tried before a jury resulting in a verdict in favor of the plaintiff in the amount of $7,500. The principal errors relied upon for reversal relate to instructions of the Trial Judge to the jury to the effect that defendant was negligent in failing to keep proper records to indicate to its ticket agent at the Metropolitan Airport that aid and assistance was to be furnished to the Laneys. Laney and his wife, who was 72 years old, lived in Alpena, Michigan. One of their sons, Richard Laney, resided in Phoenix, Arizona and had invited them to spend the winter with him. On January 17, 1959 Richard purchased and paid for two tickets for his parents at Airlines’ ticket office in Phoenix on Flight 621 leaving Detroit on January 22nd at 12:20 a. m. Richard advised the ticket agent that his parents were elderly and had never flown before; that his father was 91 years old and would need assistance in getting on and off the plane and around the airport. The agent told him that this assistance would be furnished. Code messages were sent from Phoenix to Airlines’ downtown office in Detroit advising of the purchase and payment of the tickets and that the Laneys were “first riders — elderly” which conveyed information that they would need assistance. On January 21st Mrs. Laney called Airlines in Detroit on the telephone from the home of another son at Flint and can-celled their reservations for the flight scheduled for January 22nd because of the icy conditions of the Michigan roads which made driving by automobile to the airport hazardous. The parties are in disagreement as to what happened thereafter. Airlines’ records indicate that reservations were made for the same flight on the 23rd and that a new card was made up and filed for this flight. A flight manifest was prepared for this flight on which the names of the Laneys appeared and were circled in red which meant that they did not show up. The manifest indicated that the Laneys were first riders, but did not reveal that they were elderly. When the Laneys did not appear on the 23rd their reservations were marked cancelled and the cards were placed in Airlines’ back files. The records also indicate that another reservation was made on the 23rd for the same flight on the 24th at 12:20 a. m. It was on the 23rd, close to midnight, that the accident occurred. Mrs. Laney’s version was that she called Airlines on the telephone on the 22nd and that a girl advised her that all of Airlines planes were grounded because of weather conditions; that the same girl called her on the 23rd and told her she could come to the airport that day and leave on the flight on the 24th at 12:20 a. m. Airlines records for the 22nd and 23rd did not show that any outgoing flights from Metropolitan Airport were cancelled on these dates. The Laneys were driven in an automobile by another son from Flint to the airport on the 23rd in the afternoon. The car was parked in the airport parking lot and they walked to the airport building. Mr. Laney used a cane and was .assisted by his son. They went to the .second floor by escalator to the ticket •counter where Mrs. Laney asked Mr. •Campau the ticket agent, for the tickets for herself and husband, which her son had paid for. He called the downtown •office on the telephone and learned that the tickets had been paid for and wrote them up and delivered them to Mrs. Laney. He instructed her to return at 11:45 p. m. Mrs. Laney testified that she related to Campau that her son had made arrangements for assistance to the •plane. Mrs. Laney testified that she and her husband returned to the ticket desk at 11:45 p. m.; that her son and his wife had left for home on account of the bad weather; that Mr. Campau told her to take the escalator and go out at gate 4. She said that she and her husband waited .•at the escalator for several minutes expecting assistance to come and when no .assistance arrived proceeded down the ■escalator. Mr. Campau testified that he had received no instructions from the Detroit ■office relative to providing assistance to the Laneys. He was uninformed about Mr. Laney’s age and did not remember ■ever seeing him and had no conversation with him. He did not recall having seen Mrs. Laney at 11:45 p. m. although he .admitted it was possible for him to have .seen her and instructed her to use the ■escalator to get to gate 4. It was the contention of Airlines that the information concerning the Laneys being elderly and first riders was no longer available to Detroit reservations and to ticket agent Campau since it had been back filed or placed in dead files when the Laneys failed to keep their reservations for the 23rd and that the only record kept was the Prepaid Ticket Authority Book showing that the transportation had been paid for in advance. The District Judge charged the jury that the flight of the 24th was, as a matter of law, a continuation of the flight of the 22nd. The reservations of the Laneys for the flight on the 22nd concerning which arrangements had been made for aid and assistance to them had admittedly been cancelled. The parties were in disagreement about what took place thereafter. Airlines’ records did not agree with the testimony of Mrs. Laney. Under the circumstances, we think that reasonable minds might have reached different conclusions on the issues whether the flight on the 24th was a continuation of the flight on the 22nd and whether the defendant was negligent. Both of these factual issues should have been submitted to the jury for determination under proper instructions. We think the District Court erred in determining these two issues as a matter of law. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed. 2d 953; Sandri v. Byram, 30 F.2d 784 (CA6); McKinney v. Yelavich, 352 Mich. 687, 90 N.W.2d 883. Airlines next complains about the conduct of the Trial Judge in inferring to the jury that it had corrected its records for purposes of trial; in inferring that Airlines had failed to produce material witnesses; in telling the jury there was no evidence that Mrs. Laney was not telling the truth; in inferring that defendant had produced a “phoney” stamped envelope as an exhibit; in .stating in the presence of the jury that the attorney for Airlines was confusing everyone and wasting time; in stating that Airlines had “slipped up” in handling plaintiff’s reservations and in making other derogatory remarks concerning Airlines during the course of the trial. Remarks made by the court in the presence of the jury have a great tendency to influence the jury verdict. This in itself is not forbidden in the federal system. It is a question of degree. But when the Trial Judge becomes in effect the lawyer for one of the litigants, he oversteps the bounds of judicial propriety. It is impossible for us to say that appellant was not prejudiced by the various untoward remarks of the judge in this case. If necessary we would reverse the Trial Judge on this ground alone, though we find it unnecessary to do so in the present case. There was no error in denying the motion for a directed verdict. Judgment reversed.

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?

Irving S. FEDERBUSH and Sylvia C. Federbush, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Sylvia C. FEDERBUSH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 58, 59, Dockets 28075, 28076. United States Court of Appeals Second Circuit. Argued Nov. 12, 1963, Decided Dec. 4, 1963. Bernard J. Mellman, St. Louis, Mo. (Morris A. Shenker, St. Louis, Mo., co-attorney, Edward K. Schwartz and Burnett Schwartz, St. Louis, Mo., co-attorneys for petitioner Irving S. Federbush, on the brief), for petitioner Sylvia C. Federbush. William A. Friedlander, Dept, of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, and Meyer Itothwacks, Washington, D. C., on the brief), for respondent. Before LUMBARD, Chief Judge, and KAUFMAN and HAYS, Circuit Judges. PER CURIAM. The determinations of the Tax Court in respect to which petitioners claim error are: ■ (1) Holding the returns for the years 1942 through 1946 and 1948 to be joint returns on which both husband and wife were liable for any deficiency. (2) Holding that funds diverted by petitioner Irving Federbush were not embezzled and were therefore taxable, and that petitioners were properly ruled to be subject to the fraud penalty under Section 293(b) of the Internal Revenue Code of 1939. (3) Holding that the amount of the unreported funds diverted by Irving Federbush was $66,657.40. Whether the returns were joint returns turns upon an issue of fact: the intention of the parties. We find no reason to interfere with the findings of the trier of the facts as to this issue. In the proceedings in the Tax Court petitioners claimed that the diverted funds were not subject to income tax under Commissioner v. Wilcox, 327 U.S. 404, 66 S.Ct. 546, 90 L.Ed. 752 (1946), because they were embezzled. The Tax Court found against them on this issue before the Supreme Court overruled Wilcox in James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). Petitioners argue that the ruling in James was only prospective in effect and inapplicable to funds embezzled before the decision. We hold that the Tax Court was correct in finding that the funds were not embezzled. The funds of a corporation were diverted by Irving Federbush and four of his brothers. Each of the five owned one-sixth of the corporate stock. By reason of their control of the corporation they could have voted themselves all but a very small proportion of the diverted funds (less than one-sixth, since the brothers made regular payments to the sixth stockholder). The sole controlling purpose of the diversion was evasion of income taxes. It would be ironic indeed if this petitioner could succeed in his scheme to avoid payment of income taxes by claiming that he embezzled the funds in question. See Kann v. Commissioner, 210 F.2d 247 (3d Cir. 1953), cert. denied, 347 U.S. 967, 74 S.Ct. 778, 98 L.Ed. 1109 (1954). As we hold that the funds were not embezzled, it is unnecessary to discuss the effect of the Wilcox and James decisions on the taxability of the diverted funds and the propriety of a fraud penalty. The record reveals that petitioners failed to sustain their burden of showing that the amount of the deficiency as found by the Commissioner was incorrect. We affirm the determination of the Tax Court.

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

Are there two issues in the case?

BOWLES, Adm’r, Office of Price Administration, v. QUON et al. No. 11105. Circuit Court of Appeals, Ninth Circuit. March 12, 1946. George Moncharsh, Deputy Adm’r for Enforcement, OPA, David London, Acting Director, Litigation Division, and Nathan Siegel, Sp. Appellate Atty., all of Washington, D. C., Herbert Bent, Regional Litigation Atty., of San Francisco, Cal., and Richard F. Gaines, Enforcement Atty., of San Diego, Cal., for appellant. Fred Quon, in pro. per. Before GARRECHT, DENMAN and HEALY, Circuit Judges. GARRECHT, Circuit Judge. An appeal as this one from a judgment denying an injunction ordinarily brings up nothing for review but the question of whether the trial court’s discretion was plainly abused. The lower court found that between July 3, 1944, and July 28, 1944, in violation of Section 2.8 of General Ration Order No. 8, of paragraphs (a) and (d) (1) and (3) of Section 10.5 of Ration Order No. 16 and paragraphs (a) and (c) (1) and (3) of Section 9.5 of Ration Order No. 13, appellees sold to R. D. Sikes, operator of the Nanking Cafe at El Centro, California, various rationed meats without obtaining the established point values therefor. At the time of trial a balance of 2397 points was still owed the appellees. The lower court also found that between the 1st and 15th day of August, 1944, appellees purchased butter from the Golden State Co., Ltd., and violated the provisions of Section 2.8 of General Ration Order No. 8 and paragraphs (1) and (3) of Section 10.5 of Ration Order No. 16 in that appellees failed to surrender the 2400 points due for the butter until August 25, 1944. Further, the lower court found appellees displayed and offered for sale on August 9, 1944, fourteen items of rationed meats. Only six were posted as to price, only two were posted as to grade and none were posted as to points. By paragraph 5 of the Findings of Fact the court found that there had been prior violations of similar character. However, the court found it would be inequitable and unjust to grant injunctive relief. The Administrator, Office of Price Administration, on this appeal claims the denial of the injunction in the face of the facts as found was manifest error requiring reversal. The granting or refusing of an injunction here was a matter resting within the discretion of the trial court, and the appellate court will not interfere with or control the action of the court below in such case unless the court has been found guilty of a clear abuse of discretion. An abuse of discretion is a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found. The test is not what this court would have done under the same circumstances — that is not enough. The court must feel that only one order could have been entered on the facts. The facts found by the lower court here admittedly support the application for an injunction. On the face of the record, this might be termed an abuse of discretion evidencing a disregard of the facts. Indeed, the facts found by the lower court confute any exercise of discretion. The wise procedure would have been to issue the injunction. The injunction imposes no punishment — it merely insures better compliance with the Act. The injunction works no hardship on one who intends to comply with the law. The judgment of the lower court is reversed in accordance with this opinion. Reversed. The Second War Powers Act, 50 U.S.C.A., Appendix, § 631 et seq. General Ration Order No. 8, 8 Federal Register, 3783; Ration Order No. 13, 8 Federal Register 3591 and Ration Order No. 16, 8 Federal Register 6731. Vogel v. Warsing, 9 Cir., 146 F. 949; Sommer v. Rotary Lift Co., 9 Cir., 66 F.2d 809; Wilson v. Byron Jackson Co., 9 Cir., 93 F.2d 572; Rogers v. Hill, 289 U.S. 582, 53 S.Ct. 731, 77 L.Ed. 1385, 88 A.L.R. 744; National Fire Insurance Co. v. Thompson, 281 U.S. 331, 50 S.Ct. 288, 74 L.Ed. 881; Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578; cf. Drilling & Exploration Corp. v. Webster, 9 Cir., 69 F.2d 416. Hale v. Hale, 6 Cal.App.2d 661, 45 P.2d 246, 247; Graves v. Mount Vernon Trust Co., 2 Cir., 69 F.2d 101; Federal Trade Comm. v. Thomsen-King & Co., 7 Cir., 109 F.2d 510. cf. Securities and Exchange Comm. v. Sunbeam Gold M. Co., 9 Cir., 95 F.2d 699.

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

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

NATIONAL LABOR RELATIONS BOARD v. TRANSPORTATION MANAGEMENT CORP. No. 82-168. Argued March 28, 1983 Decided June 15, 1983 White, J., delivered the opinion for a unanimous Court. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the brief were Solicitor General Lee, Carolyn F. Corwin, Norton J. Come, and Linda Sher. Martin Ames argued the cause and filed briefs for respondent. Briefs of amici curiae urging affirmance were filed by John W. Noble, Jr., and Stephen A. Bokat for the Chamber of Commerce of the United States; and by Joseph D. Alviani for the New England Legal Foundation et al. Briefs of amici curiae were filed by J. Albert Woll, Michael H. Gottes-man, Robert M. Weinberg, and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations; and by Gerard C. Smetana and Gary L. Starkman for the Council on Labor Law Equality. Justice White delivered the opinion of the Court. The National Labor Relations Act (NLRA or Act), 29 U. S. C. § 151 ei seq. (1976 ed. and Supp. V), makes unlawful the discharge of a worker because of union activity, §§ 8(a)(1), (3), as amended, 61 Stat. 140,29 U. S. C. §§ 158(a)(1), (3), but employers retain the right to discharge workers for any number of other reasons unrelated to the employee’s union activities. When the General Counsel of the National Labor Relations Board (Board) files a complaint alleging that an employee was discharged because of his union activities, the employer may assert legitimate motives for his decision. In Wright Line, 251 N. L. R. B. 1083 (1980), enf’d, 662 F. 2d 899 (CA1 1981), cert. denied, 455 U. S. 989 (1982), the Board reformulated the allocation of the burden of proof in such cases. It determined that the General Counsel carried the burden of persuading the Board that an antiunion animus contributed to the employer’s decision to discharge an employee, a burden that does not shift, but that the employer, even if it failed to meet or neutralize the General Counsel’s showing, could avoid the finding that it violated the statute by demonstrating by a preponderance of the evidence that the worker would have been fired even if he had not been involved with the union. The question presented in this case is whether the burden placed on the employer in Wright Line is consistent with §§ 8(a)(1) and 8(a)(3), as well as with § 10(c) of the NLRA, 29 U. S. C. § 160(c), which provides that the Board must find an unfair labor practice by a “preponderance of the testimony.” Prior to his discharge, Sam Santillo was a busdriver for respondent Transportation Management Corp. On March 19, 1979, Santillo talked to officials of the Teamster’s Union about organizing the drivers who worked with him. Over the next four days Santillo discussed with his fellow drivers the possibility of joining the Teamsters and distributed authorization cards. On the night of March 23, George Patterson, who supervised Santillo and the other drivers, told one of the drivers that he had heard of Santillo’s activities. Patterson referred to Santillo as two-faced, and promised to get even with him. Later that evening Patterson talked to Ed West, who was also a busdriver for respondent. Patterson asked, “What’s with Sam and the Union?” Patterson said that he took Santillo’s actions personally, recounted several favors he had done for Santillo, and added that he would remember San-tillo’s activities when Santillo again asked for a favor. On Monday, March 26, Santillo was discharged. Patterson told Santillo that he was being fired for leaving his keys in the bus and taking unauthorized breaks. Santillo filed a complaint with the Board alleging that he had been discharged because of his union activities, contrary to §§ 8(a)(1) and 8(a)(3) of the NLRA. The General Counsel issued a complaint. The Administrative Law Judge (ALJ) determined by a preponderance of the evidence that Patterson clearly had an antiunion animus and that Santillo’s discharge was motivated by a desire to discourage union activities. The ALJ also found that the asserted reasons for the discharge could not withstand scrutiny. Patterson’s disapproval of Santillo’s practice of leaving his keys in the bus was clearly a pretext, for Patterson had not known about Santillo’s practice until after he had decided to discharge San-tillo; moreover, the practice of leaving keys in buses was commonplace among respondent’s employees. Respondent identified two types of unauthorized breaks, coffeebreaks and stops at home. With respect to both coffeebreaks and stopping at home, the ALJ found that Santillo was never cautioned or admonished about such behavior, and that the employer had not followed its customary practice of issuing three written warnings before discharging a driver. The ALJ also found that the taking of coffeebreaks during working hours was normal practice, and that respondent tolerated the practice unless the breaks interfered with the driver’s performance of his duties. In any event, said the ALJ, respondent had never taken any adverse personnel action against an employee because of such behavior. While acknowledging that Santillo had engaged in some unsatisfactory conduct, the ALJ was not persuaded that Santillo would have been fired had it not been for his union activities. The Board affirmed, adopting with some clarification the ALJ’s findings and conclusions and expressly applying its Wright Line decision. It stated that respondent had failed to carry its burden of persuading the Board that the discharge would have taken place had Santillo not engaged in activity protected by the Act. The Court of Appeals for the First Circuit, relying on its previous decision rejecting the Board’s Wright Line test, NLRB v. Wright Line, 662 F. 2d 899 (1981), refused to enforce the Board’s order and remanded for consideration of whether the General Counsel had proved by a preponderance of the evidence that Santillo would not have been fired had it not been for his union activities. 674 F. 2d 130 (1982). We granted certiorari, 459 U. S. 1014 (1982), because of conflicts on the issue among the Courts of Appeals. We now reverse. Employees of an employer covered by the NLRA have the right to form, join, or assist labor organizations. NLRA § 7, 29 U. S. C. § 157. It is an unfair labor practice to interfere with, restrain, or coerce the exercise of those rights, NLRA § 8(a)(1), 29 U. S. C. § 158(a)(1), or by discrimination in hire or tenure “to encourage or discourage membership in any labor organization,” NLRA § 8(a)(3), 29 U. S. C. § 158(a)(3). Under these provisions it is undisputed that if the employer fires an employee for having engaged in union activities and has no other basis for the discharge, or if the reasons that he proffers are pretextual, the employer commits an unfair labor practice. He does not violate the NLRA, however, if any antiunion animus that he might have entertained did not contribute at all to an otherwise lawful discharge for good cause. Soon after the passage of the Act, the Board held that it was an unfair labor practice for an employer to discharge a worker where antiunion animus actually contributed to the discharge decision. Consumers Research, Inc., 2 N. L. R. B. 57, 73 (1936); Louisville Refining Co., 4 N. L. R. B. 844, 861 (1938), enf’d, 102 F. 2d 678 (CA6), cert. denied, 308 U. S. 568 (1939); Dow Chemical Co., 13 N. L. R. B. 993, 1023 (1939), enf’d in relevant part, 117 F. 2d 455 (CA6 1941); Republic Creosoting Co., 19 N. L. R. B. 267, 294 (1940). In Consumers Research, the Board rejected the position that “antecedent to a finding of violation of the Act, it must be found that the sole motive for discharge was the employee’s union activity.” It explained that “[s]uch an interpretation is repugnant to the purpose and meaning of the Act, and . . . may not be made.” 2 N. L. R. B., at 73. In its Third Annual Report, the Board stated: “Where the employer has discharged an employee for two or more reasons, and one of them is union affiliation or activity, the Board has found a violation [of § 8(a)(3)].” 3 NLRB Ann. Rep. 70 (1938). In the following year in Dow Chemical Co., supra, the Board stated that a violation could be found where the employer acted out of antiunion bias “whether or not the [employer] may have had some other motive . . . and without regard to whether or not the [employer’s] asserted motive was lawful.” 13 N. L. R. B., at 1023. This construction of the Act — that to establish an unfair labor practice the General Counsel need show by a preponderance of the evidence only that a discharge is in any way motivated by a desire to frustrate union activity — was plainly rational and acceptable. The Board has adhered to that construction of the Act since that time. At the same time, there were decisions indicating that the presence of an antiunion motivation in a discharge case was not the end of the matter. An employer could escape the consequences of a violation by proving that without regard to the impermissible motivation, the employer would have taken the same action for wholly permissible reasons. See, e. g., Eagle-Picher Mining & Smelting Co., 16 N. L. R. B. 727, 801 (1939), enf’d in relevant part, 119 F. 2d 903 (CA8 1941); Borden Mills, Inc., 13 N. L. R. B. 459, 474-475 (1939); Robbins Tire & Rubber Co., 69 N. L. R. B. 440, 454, n. 21 (1946), enf’d, 161 F. 2d 798 (CA5 1947). The Courts of Appeals were not entirely satisfied with the Board’s approach to dual-motive cases. The Board’s Wright Line decision in 1980 was an attempt to restate its analysis in a way more acceptable to the Courts of Appeals. The Board held that the General Counsel of course had the burden of proving that the employee’s conduct protected by § 7 was a substantial or a motivating factor in the discharge. Even if this was the case, and the employer failed to rebut it, the employer could avoid being held in violation of §§ 8(a)(1) and 8(a)(3) by proving by a preponderance of the evidence that the discharge rested on the employee’s unprotected conduct as well and that the employee would have lost his job in any event. It thus became clear, if it was not clear before, that proof that the discharge would have occurred in any event and for valid reasons amounted to an affirmative defense on which the employer carried the burden of proof by a preponderance of the evidence. “The shifting burden merely requires the employer to make out what is actually an affirmative defense . . . .” Wright Line, 251 N. L. R. B., at 1088, n. 11; see also id., at 1084, n. 5. The Court of Appeals for the First Circuit refused enforcement of the Wright Line decision because in its view it was error to place the burden on the employer to prove that the discharge would have occurred had the forbidden motive not been present. The General Counsel, the Court of Appeals held, had the burden of showing not only that a forbidden motivation contributed to the discharge but also that the discharge would not have taken place independently of the protected conduct of the employee. The Court of Appeals was quite correct, and the Board does not disagree, that throughout the proceedings, the General Counsel carries the burden of proving the elements of an unfair labor practice. Section 10(c) of the Act, 29 U. S. C. § 160(c), expressly directs that violations may be adjudicated only “upon the preponderance of the testimony” taken by the Board. The Board’s rules also state that “[t]he Board’s attorney has the burden of pro[ving] violations of Section 8.” 29 CFR § 101.10(b) (1982). We are quite sure, however, that the Court of Appeals erred in holding that § 10(c) forbids placing the burden on the employer to prove that absent the improper motivation he would have acted in the same manner for wholly legitimate reasons. As we understand the Board’s decisions, they have consistently held that the unfair labor practice consists of a discharge or other adverse action that is based in whole or in part on antiunion animus — or as the Board now puts it, that the employee’s protected conduct was a substantial or motivating factor in the adverse action. The General Counsel has the burden of proving these elements under § 10(c). But the Board’s construction of the statute permits an employer to avoid being adjudicated a violator by showing what his actions would have been regardless of his forbidden motivation. It extends to the employer what the Board considers to be an affirmative defense but does not change or add to the elements of the unfair labor practice that the General Counsel has the burden of proving under § 10(c). We assume that the Board could reasonably have construed the Act in the manner insisted on by the Court of Appeals. We also assume that the Board might have considered a showing by the employer that the adverse action would have occurred in any event as not obviating a violation adjudication but as going only to the permissible remedy, in which event the burden of proof could surely have been put on the employer. The Board has instead chosen to recognize, as it insists it has done for many years, what it designates as an affirmative defense that the employer has the burden of sustaining. We are unprepared to hold that this is an impermissible construction of the Act. “[T]he Board’s construction here, while it may not be required by the Act, is at least permissible under it. . . ,” and in these circumstances its position is entitled to deference. NLRB v. J. Weingarten, Inc., 420 U. S. 251, 266-267 (1975); NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963). The Board’s allocation of the burden of proof is clearly reasonable in this context, for the reason stated in NLRB v. Remington Rand, Inc., 94 F. 2d 862, 872 (CA2), cert. denied, 304 U. S. 576 (1938), a case on which the Board relied when it began taking the position that the burden of persuasion could be shifted. E. g., Eagle-Picker Mining & Smelting, 16 N. L. R. B., at 801. The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing. In Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274 (1977), we found it prudent, albeit in a case implicating the Constitution, to set up an allocation of the burden of proof which the Board heavily relied on and borrowed from in its Wright Line decision. There, we held that the plaintiff had to show that the employer’s disapproval of his First Amendment protected expression played a role in the employer’s decision to discharge him. If that burden of persuasion were carried, the burden would be on the defendant to show by a preponderance of the evidence that he would have reached the same decision even if, hypothetically, he had not been motivated by a desire to punish plaintiff for exercising his First Amendment rights. The analogy to Mt. Healthy drawn by the Board was a fair one. For these reasons, we conclude that the Court of Appeals erred in refusing to enforce the Board’s orders, which rested on the Board’s Wright Line decision. The Board was justified in this case in concluding that Santillo would not have been discharged had the employer not considered his efforts to establish a union. At least two of the transgressions that purportedly would have in any event prompted Santillo’s discharge were commonplace, and yet no transgressor had ever before received any kind of discipline. Moreover, the employer departed from its usual practice in dealing with rules infractions; indeed, not only did the employer not warn Santillo that his actions would result in being subjected to discipline, it also never even expressed its disapproval of his conduct. In addition, Patterson, the person who made the initial decision to discharge Santillo, was obviously upset with Santillo for engaging in such protected activity. It is thus clear that the Board’s finding that San-tillo would not have been fired if the employer had not had an antiunion animus was “supported by substantial evidence on the record considered as a whole,” 29 U. S. C. § 160(f). Accordingly, the judgment is Reversed. Section 8(a), as set forth in 29 U. S. C. § 158(a), provides, in relevant part: “It shall be an unfair labor practice for an employer— “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; “(3) 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 . . . .” Section 10(c) provides, in relevant part: “If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter .... If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” 29 U. S. C. § 160(c). The Board’s Wright Line decision has been rejected by the Second and Third Circuits, see NLRB v. New York University Medical Center, 702 F. 2d 284 (CA21983), cert. pending, No. 82-1705; Behring International, Inc. v. NLRB, 675 F. 2d 83 (CA3 1982), cert. pending, No. 82-438, as well as by the First. Several Circuits have expressly approved the Wright Line test. See NLRB v. Senftner Volkswagen Corp., 681 F. 2d 557, 560 (CA8 1982); NLRB v. Nevis Industries, Inc., 647 F. 2d 905, 909 (CA9 1981); Peavey Co. v. NLRB, 648 F. 2d 460 (CA7 1981). The Board argues that its approach to mixed-motive cases was known to Congress and ratified by the passage of the Labor Management Relations Act (LMRA), 61 Stat. 136, which reenacted §§ 8(a)(1) and 8(a)(3) almost without material change. We need not pass on this submission, since we find nothing in the legislative history of the LMRA that calls into question the decisions of the Board relevant to the issue before us now. The issue after, as well as before, the passage of the LMRA is whether the Board’s construction of § 8(a) is sufficiently rational to be acceptable in the courts. We do note that nowhere in the legislative history is reference made to any of the mixed-motive cases decided by the Board or by the courts, see, e. g., NLRB v. Remington Rand, Inc., 94 F. 2d 862, 872 (CA2) (L. Hand, J.) (“[S]ince the refusal [to negotiate] was at least one cause of the strike, and was a tort... it rested upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune”), cert. denied, 304 U. S. 576 (1938); NLRB v. Stackpole Carbon Co., 105 F. 2d 167, 176 (CA3), cert. denied, 308 U. S. 605 (1939); Borden Mills, Inc., 13 N. L. R. B., at 474-475 (dicta); Davis Precision Machine Co., 64 N. L. R. B. 529, 537 (1945); Wright-Hibbard Industrial Electric Truck Co., 67 N. L. R. B. 897, 908, n. 15 (1946); Robbins Tire and Rubber Co.. 69 N. L. R. B.. at 454. n. 21. The Board has not purported to shift the burden of persuasion on the question of whether the employer fired Santillo at least in part because he engaged in protected activities. The General Counsel satisfied his burden in this respect and no one disputes it. Thus, Texas Department of Community Affairs v. Burdine, 450 U. S. 248 (1981), is inapposite. In that case, which involved a claim of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. (1976 ed. and Supp. V), the question was who had “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff. . . 450 U. S-, at 253. The Court discussed only the situation in which the issue is whether either illegal or legal motives, but not both, were the “true” motives behind the decision. It thus addressed the pretext case. The language of the NLRA requiring that the Board act on a preponderance of the testimony taken was added by the LMRA, 61 Stat. 136, in 1947. A closely related provision directed that no order of the Board reinstate or compensate any employee who was fired for cause. Section 10(c) places the burden on the General Counsel only to prove the unfair labor practice, not to disprove an affirmative defense. Furthermore, it is clear from the legislative history of the LMRA that the drafters of § 10(c) were not thinking of the mixed-motive case. Their discussions reflected the assumption that discharges were either “for cause” or punishment for protected activity. Read fairly, the legislative history does not indicate whether, in mixed-motive eases, the employer or the General Counsel has the burden of proof on the issue of what would have happened if the employer had not been influenced by his unlawful motives; on that point the legislative history is silent. The “for cause” proviso was not meant to apply to cases in which both legitimate and illegitimate causes contributed to the discharge, see infra. The amendment was sparked by a concern over the Board’s perceived practice of inferring from the fact that someone was active in a union that he was fired because of antiunion animus even though the worker had been guilty of gross misconduct. The House Report explained the change in the following terms: “A third change forbids the Board to reinstate an individual unless the weight of the evidence shows that the individual was not suspended or discharged for cause. In the past, the Board, admitting that an employee was guilty of gross misconduct, nevertheless frequently reinstated him, ‘inferring’ that, because he was a member or an official of a union, this, not his misconduct, was the reason for his discharge.” H. R. Rep. No. 245, 80th Cong., 1st Sess., 42 (1947) (emphasis added). The proviso was thus a reaction to the Board’s readiness to infer antiunion animus from the fact that the discharged person was active in the union, and thus has little to do with the situation in which the Board has soundly concluded that the employer had an antiunion animus and that such feelings played a role in a worker’s discharge. Respondent also argues that placement of the burden of persuasion on the employer contravenes § 10(b) of the Act and § 7(c) of the Administrative Procedure Act, 5 U. S. C. § 556(d). Section 10(b) provides that the Federal Rules of Evidence apply to Board proceedings insofar as practicable. Respondent contends that Federal Rule of Evidence 301 requires that the burden of persuasion rest on the General Counsel. Rule 301 provides: “In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.” The Rule merely defines the term “presumption.” It in no way restricts the authority of a court or an agency to change the customary burdens of persuasion in a manner that otherwise would be permissible. Indeed, were respondent correct, we could not have assigned to the defendant the burden of persuasion on one issue in Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274 (1977). Section 7(c) of the Administrative Procedure Act, 5 U. S. C. § 556(d), provides that the proponent of an order has the burden of proof. Since the General Counsel is the proponent of the order, asserts respondent, the General Counsel must bear the burden of proof. Section 7(c), however, determines only the burden of going forward, not the burden of persuasion. Environmental Defense Fund, Inc. v. EPA, 179 U. S. App. D. C. 43, 49, 58-60, 548 F. 2d 998, 1004, 1013-1015 (1976), cert. denied sub nom. Velsicol Chemical Corp. v. EPA, 431 U. S. 925 (1977).

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Inez Humphreys DIXON et al., Appellants, v. UNITED STATES of America, Appellee. No. 16741. United States Court of Appeals Eighth Circuit. Dec. 7, 1961. Steele Hays, Little Rock, Ark., for appellant. James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., made argument for the appellee. Osro Cobb, U. S. Atty., Little Rock, Ark., Heiskell B. Kelley, Atty., U. S. Dept, of Agriculture, Little Rock, Ark., was with him on the brief. Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. This is an appeal from final judgment dismissing plaintiffs’ wrongful death action, brought under the Federal Tort Claims Act. Richard Humphreys was engaged by John Lancaster (his father-in-law), lookout dispatcher under the supervision of Ranger Mcllroy, to clean a 47 foot well located at the Cove Mountain Tower Station. A dispute exists as to whether Mr. Humphreys was to do the work as an employee or an independent contractor, which issue is hereinafter discussed. Mr. Humphreys on May 24, 1956, proceeded to carry out the well cleaning job. He entered the well by means of a rope with the aid of John Lancaster. After he reached the bottom of the well, he disengaged himself from the rope and filled several buckets with dirt, which were drawn up to the surface. He then stated he wished to be pulled up, but fell to the bottom before he could be raised to the surface. The well is located in a remote spot and more than fifteen minutes elapsed before aid, which had been promptly summoned, arrived. Upon removal from the well, Mr. Humphreys was pronounced dead. The examining doctor attributed death to gas poisoning. It is undisputed that the lookout station was operated by the United States Department of Agriculture through its Forest Service Department. This action is brought by plaintiff Inez Humphreys Dixon as surviving spouse on her behalf and as next friend of decedent’s minor children, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), which permits claims for injury or death “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Arkansas Statutes Annotated (1947), §§ 27-903 and 904 authorized the spouse and next of kin of a decedent to bring an action for wrongful death. The complaint alleges that Mr. Humphreys, at the time of his injury and death, was an employee of the Government Forest Service and that his death was caused by the negligent acts of omission and commission on the part of Government employees acting within the scope of their employment in failing to advise Mr. Humphreys of the danger of noxious gases within the well, the presence of which the Government employees knew, or by the exercise of reasonable care, should have known; in failing to provide a safe place to work; in failing to provide safe means of ingress and egress from the bottom of the well; in failing to provide for assistance in event of emergency, in failing to inspect the well for noxious gases; and undertaking a hazardous operation without taking precautions for the safe performance thereof. The Government denied that its employees were guilty of any negligence, denied that Humphreys was a Government employee, and alleged that Humphreys’ status at the time of his death was that of independent contractor, and that his injuries were proximately caused by his own negligence or that of those working under his control and direction, and that the Government owed no duty upon which to predicate the negligence alleged in the complaint. This ease was tried to the court without a jury. The court in a memorandum opinion (not reported) and findings of fact and conclusions of law, determined that plaintiffs’ decedent at the time of his death was an independent contractor, not an employee, and that the Government and its employees were guilty of no breach of any duty of care owed to the independent contractor. The court also found Humphreys was an invitee and further determined that under the circumstances of the case the Government employees had no knowledge of the dangerous condition of the well nor were they chargeable in the exercise of reasonable care with the knowledge of such condition. Final judgment was entered dismissing the complaint. This timely appeal followed. As a basis for reversal, plaintiffs make the following points: I. The trial court erred in concluding that Eichard Humphreys was an independent contractor rather than an employee. II. Having held that Richard Humphreys was an independent contractor, the trial court erred in not concluding that the defendant, through its employees, breached a duty to warn Richard Humphreys of the dangerous condition of the well, of which condition the employees were aware or in the exercise of reasonable care should have been aware.' I. Upon the issue of whether Humphreys was an employee or an independent contractor, the trial court thus states the applicable law: “The relationship between the parties is so casual as to make categorizing into legal definitions difficult. Arkansas law almost exclusively applies the ‘control’ test. The rule is that where the contract shows an intent that the employer retains control and direction of the means and method of producing the result, a master-servant relationship is created ; but where the contract shows an intent that the employer controls only the result, then the relationship of independent contractor exists. Wilson v. Davison, 122 S.W.2d 539, 197 Ark. 99; Arkansas Fuel Oil Co. v. Scaletta, 140 S.W.2d 684, 200 Ark. 645; Ozar Lumber Co. v. Tidwell, 198 S.W.2d 182, 210 Ark. 142; American Casualty Co. v. Harrison, D.C., 96 F.Supp. 537; Capitol City Lumber Co. v. Cash, 214 S.W.2d 363, 214 Ark. 35. The federal rule is essentially the same. Hopson v. U. S., D.C., 136 F.Supp. 804.” To like effect, see Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S.W.2d 959, 961; Hutcheson v. Clapp, 216 Ark. 517, 226 S.W.2d 546, 549; Wright v. McDaniel, 203 Ark. 992, 159 S.W.2d 737, 740; Humphries v. Kendall, 195 Ark. 45, 111 S.W.2d 492, 498; Chapman & Dewey Lumber Co. v. Andrews, 192 Ark. 291, 91 S.W.2d 1026. As we read plaintiffs’ brief, we do not understand that plaintiffs attack the court’s interpretation of the Arkansas law. Plaintiffs’ brief states: “The major factor, according the general rule, followed in Arkansas, is that of control. If the worker is under the control and direction of the employer, the relationship is that of master and servant. This has been called ‘the vital test’ by the Supreme Court of Arkansas.” It is quite true, as plaintiffs contend, that all the evidence must be considered. The fact-finder, in resolving the ultimate issue of the nature of the relationship, must consider all the evidence, such as that bearing upon the nature of the work undertaken, and whether it requires special skill, or is menial, the obligation to furnish tools and equipment, the method of payment, and the form of the contract. The Arkansas court has frequently stated that no rule of unvarying application can be formulated for determining whether a workman is a servant or independent contractor, and that the case must be determined upon its own peculiar facts. Massey v. Poteau Trucking Co., supra. Plaintiff urges that there is no substantial dispute as to the material facts and for that reason the clearly erroneous rule should be relaxed and in effect that we should try the case de novo and substitute inferences we might draw from the evidence for those drawn by the trial court. We have consistently held that we will not try de novo doubtful fact issues. It is the right and duty of the trial court to determine disputed fact issues and this includes drawing permissible inferences from undisputed facts. Miller v. Commissioner, 8 Cir., 295 F.2d 538 (decided October * * * 1961); Textron, Inc. v. Homes Beautiful, Inc., 8 Cir., 261 F.2d 646, 650; Crown Iron Works Co. v. Commissioner, 8 Cir., 245 F.2d 357, 360. See also Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218. In the Textron case, we state: “The rule that where opposing inferences reasonably may be drawn from undisputed facts it is for the trier of the facts to determine what inference shall be drawn, is too well established to call for the citation of authorities, but see Boehm v. Commissioner of Internal Revenue, 326 U.S. 287, 293, 66 S.Ct. 120, 90 L.Ed. 78, and Weiss v. Commissioner of Internal Revenue, 8 Cir., 221 F.2d 152, 156.” 261 F.2d 650. The Arkansas law is no different in this respect. In Hutcheson v. Clapp, supra, the court states: “We have repeatedly held that if the contract is oral, and if more than one inference can fairly be drawn from the evidence, the ■ question should go to the jury to determine whether the relationship is that of employer and independent contractor or that of master and servant. Wright v. McDaniel, 203 Ark. 992, 159 S.W.2d 737; Ozan Lumber Co. v. Tidwell, 210 Ark. 942, 198 S.W.2d 182. We .conclude that the trial court properly submitted the issue to the jury. There is substantial evidence to support the verdict when the conflicting testimony is viewed in the light most favorable to appellee, and this court cannot set the verdict aside even though it may be against what we might conceive to be the preponderance of the evidence.” 226 S.W.2d 549. The trial court, in support of its finding of an independent contractor relationship, states: “The contract in this case was oral and casual. Nevertheless, it appears from the evidence that Mcllroy and Lancaster, under Mcllroy’s direction, sought to engage someone outside the government employ, one whom they believed to have special qualifications and experience, and who was to be in complete charge of accomplishing the result of a clean well. The arrangement was that Humphreys would enlist any assistance he needed, and supply his own equipment except for the rope and pulley. The contract price was suggested by Humphreys. No control of method or manner was exercised by government employees, nor does the contract show any intent that government employees would have a right to control. Plaintiff points out that Mcllroy testified that he supposed he could have directed the procedure. Certainly, he might have engaged one to- do the work under his or another employee’s direction, but the arrangement here negates an intention to do so. Lancaster’s assistance was not supervisory and it was not offered as a government employee, but volunteered after hours upon seeing the difficulty of his son-in-law managing aloiie. “The evidence discloses more controlling elements of an independent contractor relationship than a master-servant relationship, and the court will accordingly find that Richard Humphreys was an independent contractor.” A careful examination of the record satisfies us that the trial court’s findings on the independent contractor issue are supported by substantial evidence, and that the inferences that the court has drawn from the evidence are reasonable and permissible. It has not been shown that the court’s findings were induced by an erroneous view of the law. Thus the court’s determination that Mr. Humphreys was an independent contractor must be sustained. The general rule is that an employer is not liable for injuries sustained by an independent contractor in the prosecution of the contracted work, in the absence of affirmative acts of negligence on the part of the employer which cause or contribute to the injury. Humphries v. Kendall, supra; Meyer v. Moore, 195 Ark. 1114, 115 S.W.2d 1087, 1091. The trial court found that the only affirmative act on the part of the Government was the furnishing of the tripod, pulley and rope, and that none of such equipment was defective in any way. The court on this record was entitled to find as it did, that the defendant and its employees were guilty of no affirmative acts of negligence, and except with respect to the duty owed to an invitee, which is next discussed, the court was justified in finding that neither the Government nor its employees were guilty of any of the acts of negligence charged by the plaintiffs. II. The court, having determined Mr. Humphreys was an independent contractor, found that he was an invitee on defendant’s premises and that as such he was entitled to be warned of a latent danger known, or which by the exercise of reasonable care should be known, to the defendant and its employees. Such appears to be ,a correct statement of Arkansas law. Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S.W. 712, 714. We find nothing in plaintiffs’ brief challenging the correctness of the court’s determination of the applicable law. It appears to be plaintiffs’ contention that the court misapplied the law to the facts. There is no substantial evidence to support a finding that any of the Government employees had actual knowledge of the dangerous condition in the well. Plaintiffs, in their brief, state: “We would concede at this point that undoubtedly no one of the three men involved (Mcllroy, Lancaster or Humphreys) could be charged with actual knowledge of the present existence of poisonous gas within the well.” Thus, the issue is narrowed to the question of whether there is substantial evidence to support the court’s finding that the Government employees were not guilty of any negligence in failing to exercise -reasonable care to determine the premises to be safe, particularly with respect to the presence of poisonous gas. The court states: “The question, then, applying the rule to this case is: ‘Should the government employees, in the exercise of reasonable care, have inspected the well for noxious gases, as well as for loose rock, safety of equipment furnished, etc. ?’ All of the witnesses on both sides who were questioned in this regard were aware that there was such a thing as ‘damp’ gas and realized that the danger existed in some wells. Humphreys knew of the danger of gases as evidenced by his conversation with Lancaster to' the effect that he had forgotten his carbide light. Lancaster offered him an oil lantern. Upon asking Lancaster if he had been in the well with no ill effects and receiving an assuring reply, Humphreys proceeded into the well. “The long experience with the well has been used by both sides to support their positions. At least four persons testified to having been in the well on different occasions, three of them for well over an hour. One of the persons suffered from a headache, another unconsciousness, and the third no ill effects. The ill effects were explained by the fact that dynamite had been used on the occasion when those persons were in the well. “Even if a rule could be stated that a reasonably prudent person would inspect a well for noxious gases, the long experience with this particular well would, I think, assure a reasonably prudent person of the absence of danger, at least for the time required to clean the well, rather than forewarn of a danger from noxious fumes. It would tend to relieve any burden of inspection, beyond what could be seen on visual inspection, which reasonably might be required on less familiar premises.” The evidence discloses that Lancaster himself had been in the well some thirty times without suffering any ill effects, and that the well had last been cleaned by Lamb in 1950. Lamb had spent an hour or more in the well and suffered no injury to his health. Flewellen and Talent had spent considerable time in the early 1930’s, in digging the well; had some trouble at times with smoke from dynamite blasting; Talent, a headache and some dizziness when he stayed in the pit an hour and fifty-five minutes in connection with a bet with his associate as to who could stay in the well the longer, and on one occasion Flewellen became unconscious as he was coming out of the well. There is evidence that such difficulties could have been caused by dynamite blasting. Lancaster was a Government employee, stationed at the lookout tower, whose principal duty was to keep a lookout for fire. We believe the fact-finder was justified in determining that Lancaster at the time of the accident was not working for the Government, but was working under the direction of his son-in-law. Lancaster had been advised by his superiors and had told Humphreys that Humphreys was to furnish all safety equipment except the tripod, rope and pulley, and that he was to furnish his own assistants, and to be responsible for all safety measures, and that he was to be paid an agreed fee. Lancaster was off government duty when Humphreys arrived and had no government authority to assist in the cleaning operation. Humphreys had made a tentative arrangement with Dixon to help him, but Dixon was not available when the work was performed. Lancaster only gave Humphreys truthful answers to questions as to his experience in the well. He did nothing to dissuade decedent from taking precautions deemed advisable. The responsibility for the manner of doing the work rested with the decedent as an independent contractor. Decedent, by calling attention to overlooking bringing his carbide lamp, and asking the questions as to Lancaster’s experience with the well, could be said to have at least impliedly recognized the possible danger of presence of gas, and his responsibility to take precautions to ascertain whether gas was present in the well. The accident here presented is a serious and tragic one. Plaintiffs’ right to recovery is governed by statute. Liability is based upon negligence. Substantial evidentiary support exists for the trial court’s determination that plaintiffs have failed to establish any negligence, breach of duty, or any other basis of liability on the part of the Government or its employees. The judgment is affirmed. . These statutes were repealed in 1957 and replaced by Arkansas Statutes 27-906 to 27-910. Such statutory change does not affect this litigation. . Plaintiffs in their brief challenge the statement that Humphreys suggested the contract price. The record indicates that Humphreys initially offered to do the work for $8 but that be adopted the $8 contract price when Ms father-in-law Lancaster indicated that he believed the Government would pay 88 for the work.

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

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

ATLANTIC COAST LINE R. CO. v. COMMISSIONER OF INTERNAL REVENUE. CAROLINA, C. & O. RY. v. SAME. Nos. 3895, 3896. Circuit Court of Appeals, Fourth Circuit. Jan. 6, 1936. PARKER, Circuit Judge, dissenting in part. Nathan L. Miller, of New York City (Carl H. Davis, of Wilmington, N. C, Edward C. Bailly, of New York City, and Robert R. Faulkner, of Washington, D. C., on the brief), for petitioners. Morton K. Rothschild, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to the Atty. Gen., on the brief), for respondent. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. Certiorari denied 56 S. Ct. 676, 80 L. Ed. SOPER, Circuit Judge. Two questions are presented by the petition for review in these cases: (1) Whether either the lessor or the lessee is entitled to a deduction for depreciation under section 23 (k) of the Revenue Act of 1928, 45 Stat. 791, 799, when one railroad company leases equipment from another for 999 years and agrees to maintain, repair, and renew the property during the term of the lease; and (2) whether a railroad company which acquires the common stock of another in exchange for a stated consideration, including a guaranty to pay dividends on the other’s preferred stock, and makes payments under its guaranty, is entitled to deduct the amounts paid as ordinary and necessary expenses or losses under section 23 (a) and (f) of the Revenue Act of 1928. Income taxes for the years 1928, 1929, and 1930 are involved. Under a lease of October 16, 1924, the Carolina, Clinchfield & Ohio Railway, hereinafter called the Carolina Company, and its subsidiaries, leased all their properties to the Atlantic Coast Line Railroad Company, hereinafter called the Coast Line, and the Louisville & Nashville Railroad Company, jointly, for a period of 999 years. The Coast Line owns 51 per cent, of the stock of the Louisville & Nashville. The lease provided for the payment by the lessees of money rental in stated amounts, certain corporate expenses of the lessors, interest on outstanding obligations of the lessors, and all taxes upon the lessors or the leased property, including federal income taxes. Ill addition thereto, the lessees agreed at their own expense to maintain, repair, renew, and replace the leased property so that the same should at all times be in substantial repair, working order, and condition, but with the right in their discretion to replace with other property of equal value; to make such additions and betterments as in their judgment should be advisable at their own expense and accept the bonds or other obligations of the lessors therefor; during the term of the lease, to assume all liability of the lessors in respect to maturing obligations as set out in the lease, with the right only to receive new bonds of the lessors payable in effect at the end of the lease and without interest; during the term of the lease to abide by, keep, and perform all agreements and covenants binding on the lessors under any of their mortgages, deeds of trust, and equipment trust agreements; and to return the leased property at the end of the term or upon earlier termination of the lease in good order and condition, ordinary wear and tear excepted. Since the effective date of the lease, the accounts of all the railroad companies involved have been kept in accordance with the uniform system of accounts prescribed by the Interstate Commerce Commission pursuant to the authority vested in it by the Interstate Commerce Act. In accordance with this system, no charge has been made on the books of the lessors on account of depreciation computed on the leased equipment, but depreciation has been computed thereon and currently accrued on the books of the lessees. The taxpayers concede that their tax liability is not controlled by the system of accounts established in accordance with the rules and regulations of the Interstate Commerce Commission; but the Coast Line, one of the taxpayers, seeks to deduct from its gross income an allowance for depreciation with respect to the property in which it had no capital investment, but which it held under the lease for 999 years. The Carolina Company, the other taxpayer, seeks in the alternative to deduct from its gross income an allowance for said depreciation on the same property which during the term of the lease, the Coast Line was obliged to retain, repair, and renew. In our opinion neither position is tenable. It has been uniformly held that where property is leased for a long term of years and the lessee covenants to maintain, repair, and renew the property, the lessee' is not entitled to an allowance for depreciation because it has invested no capital in the property. See Weiss v. Wiener, 279 U.S. 333, 49 S.Ct. 337, 73 L.Ed. 720; Belt Ry. Co. v. Lucas, Commissioner, 59 App.D.C. 137, 36 F.(2d) 541, certiorari denied, 281 U.S. 742, 50 S.Ct. 348, 74 L.Ed. 1155; Tunnel R. R. Co. v. Commissioner (C.C.A.) 61 F.(2d) 166, certiorari denied, 288 U.S. 604, 53 S.Ct. 396, 77 L.Ed. 979. In respect to the lessor under such a lease, the decisions are also unanimous to the effect that it is not entitled to an allowance for depreciation because it has sustained no loss, in view of the fact that the lessee has assumed an obligation to maintain, repair, and renew. Commissioner v. Terre Haute Elec. Co. (C.C.A.) 67 F.(2d) 697; Georgia Ry. & Electric Co. v. Commissioner (C.C.A.) 77 F.(2d) 897, certiorari denied October 14, 1935, 56 S.Ct. 117, 80 L.Ed. —. It is suggested by the taxpayers that in none of the cases in which these questions have been considered did the court have before it at the same time both the lessor and lessee railroad, and therefore did not meet the alternative propositions that the allowance for depreciation with respect to the property should be made either to one or the other. The contention that the allowance must be made to one or the other of the parties to such a lease was, however, considered and rejected in New York Central Railroad Co. v. Commissioner (C.C.A.) 79 F.(2d) 247, 250, certiorari denied (56 S.Ct. 370, 80 L.Ed. —) December 23, 1935, in the following language: “The petitioner argues that either the lessor or the lessee of property should have a right to deduct a reasonable amount for exhaustion and depreciation, that under the facts at bar the lessor sustains no loss of capital, since he will receive equivalent property upon the termination of the lease, and that therefore the loss falls upon the lessee who has the burden of restoring the property’s value. The Commissioner relies upon Weiss v. Wiener, 279 U.S. 333, 49 S.Ct. 337, 73 L.Ed. 720, as did the Board, as establishing that the claimed deductions should not be allowed. There the taxpayer was engaged in the business of taking 99-year leases, renewable forever, and subletting. He claimed a deduction for depreciation of the buildings, which, it was assumed for purposes of the decision, he undertook to keep up to their present condition. In disallowing the deduction, Mr. Justice Holmes pointed out that the lessee had not yet made any capital investment, and concluded that ‘it is not enough that he has made a contract that very possibly may not be carried out to replace that capital at some future time.’ 279 U.S. 333, at page 336, 49 S.Ct. 337, 338, 73 L.Ed. 720. Despite possible verbal differences in the leases, we think Weiss v. Wiener is controlling and requires affirmance of the Board on this issue. In the case at bar the lessee made no capital investment in the leased property.” The facts with regard to the second question raised by the Coast Line relate to an agreement of February 23, 1926, between the Coast Line and a committee representing the bondholders of the Atlantic, Birmingham & Coast Railroad Company which was placed in receivership in 1915, and .operated by the receiver up to and including the year 1926. During the taxable years involved, all of its stock was owned by the Coast Tine and its income tax returns were included in the consolidated returns filed by the latter. The agreement of February 23, 1926, provided that a new company should be organized to acquire the property of the company in receivership which should have a capitalization of $5,200,000 par value preferred stock entitled to 5 per cent, cumulative dividends, payable semiannually, and 150,000 shares of no par value common stock; that the preferred stock should have no power to vote except in case of a continuing default in the payment of two semiannual dividends, in which event the preferred stock should have exclusive voting power so long as the default continued; that the dividends of the preferred stock should be guaranteed by the Coast Line; that the Coast Line should provide cash for certain specified requirements in the total amount of approximately $3,600,000 and that the Coast Line should be entitled to receive the entire issue of common stock in exchange for the cash so provided. The agreement was performed and the stock of the company distributed as therein provided. During each of the years 1928, 1929, and 1930, the Coast Line, in compliance with its guaranty, paid the dividends on the preferred stock, including the sum of $257,059 to owners thereof other than the Coast Line itself. In its returns for these years, it claimed .the said sum as a deduction, but it was disallowed by the Commissioner. The taxpayer contends that the obvious purpose of this agreement was to place it in a position to maintain and exercise continuous control of the properties of the A. B. & C. Railroad Company and to operate these properties as a part of its railroad system. It is pointed out that the taxpayer acquired nothing new or in addition to what it already had by the payments, and that each payment preserved for the six months’ period the existing right to exclusive voting control over the affairs of the A. B. & C. Railroad and the management of its property. It is therefore contended that the payments were a regularly recurring expense necessary to preserve control over the physical operations of a part of the taxpayer’s railroad system, and should be regarded either as an ordinary and necessary expense of the business or as a loss sustained in the course'of its operation. The argument is not without persuasive force, but we are of opinion that the payments made by the Coast Line under its guaranty were part of the consideration paid by it for the common stock and were therefore capital expenditures rather than losses or ordinary and necessary business expenditures. In Newark Milk & Cream Co. v. Commissioner (C.C.A.) 34 F.(2d) 854, a dispute between two sets of stockholders of a corporation was settled by an agreement whereby one set acquired the stock formerly held by the other; and as part of the agreement, the corporation guaranteed a return of 8 per cent, upon the consideration so paid for its stock for a period of ten years. It was held that the amounts paid under this guaranty by the corporation were not deductible from income as an ordinary and necessary business expense, but constituted part of the price paid by the stockholders who acquired the business in order to get control of the company. The Coast Line contends that if a similar view is adopted in the present case, it will be impossible to determine the basic cost of the stock now or at any particular time in the future, and since the Coast Line would not be relieved from the obligation of its guaranty by a sale, the transaction could never be closed for tax purposes. This consideration, however, would not necessarily determine the character of the expenditures made under the guaranty, nor would any practical difficulty arise in the determination of the gain or loss by the taxpayer fpr purposes of taxation in case of a sale. If such a sale should take place, the cost of the stock would then be determined by reference to the cash outlay made under the agreement in 1926, including therein such amounts as would have been paid in the performance of the guaranty, and the profit or loss could be calculated accordingly. If additional payments under the guaranty should subsequently be required, they would be deductible as losses for the year in which they should occur. The decisions of the Board of Tax Appeals are affirmed.

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

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

UNITED STATES CATHOLIC CONFERENCE et al. v. ABORTION RIGHTS MOBILIZATION, INC., et al. No. 87-416. Argued April 18, 1988 Decided June 20, 1988 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Blackmun, Stevens, O’Connor, and Sc alia, JJ., joined. Marshall, J., filed a dissenting opinion, post, p. 80. Kevin T. Baine argued the cause for petitioners. With him on the briefs were Edward Bennett Williams, Charles H. Wilson, Richard S. Hoffman, Mark E. Chopko, and Phillip H. Harris. Alan I. Horowitz argued the cause for the federal respondents in support of petitioners pursuant to this Court’s Rule 19.6. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Wallace, Robert S. Pomerance, and Teresa E. McLaughlin. Marshall Beil argued the cause and filed a brief for respondents. Briefs of amici curiae urging reversal were filed for the Christian Legal Society by Michael J. Woodruff and Samuel E. Ericsson; and for the National Council of Churches of Christ in the U. S. A. et al. by Edward McGlynn Gaffney, Jr., and Douglas Lay cock. Briefs of amici curiae urging affirmance were filed for the National Abortion Rights Action League et al. by Ellyn R. Weiss; and for the National Association of Laity by Cletus P. Lyman. Briefs of amici curiae were filed for the American Civil Liberties Union Foundation et al. by Steven R. Shapiro, John A. Powell, Helen Hershkoff, C. Edwin Baker, and Arthur N. Eisenberg; and for the Rutherford Institute by William Bonner, John F. Southworth, Jr., Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, James J. Knicely, John W. Whitehead, and David E. Morris. Justice Kennedy delivered the opinion of the Court. The petitioners are the United States Catholic Conference and the National Conference of Catholic Bishops. Both organizations were held in civil contempt for failure to comply with subpoenas duces tecum issued by the United States District Court for the Southern District of New York. The Conferences objected to issuance of the process, arguing, inter alia, that the District Court lacked subject-matter jurisdiction in the underlying suit. The Court of Appeals for the Second Circuit rejected this argument, ruling that a nonparty witness’ jurisdictional challenge is limited to a claim that the District Court lacks even colorable jurisdiction, a standard not met here. We granted certiorari to resolve whether a nonparty witness may defend against a civil contempt adjudication by challenging the subject-matter jurisdiction of the district court. 484 U. S. 975 (1987). We hold the nonparty witness may raise such a claim, and now reverse. I In the underlying action, Abortion Rights Mobilization, Inc., and others (ARM) sued to revoke the tax-exempt status of the Roman Catholic Church in the United States. ARM alleged that the Conferences had violated the rules governing their tax-exempt status by participating in. political activities. Specifically, ARM claimed that “the .Roman Catholic Church in the United States , in violation of the clear language and intent of the anti-electioneering provision of 26 U. S. C. § 501(c)(3), has engaged in a persistent and regular pattern of intervening in elections nationwide in favor of candidates who support the Church’s position on abortion and in opposition to candidates with opposing views.” Brief for Respondents 7-8. The Conferences were originally named as parties to this suit, but were later dismissed, leaving the Secretary of the Treasury and the Commissioner of Internal Revenue as the sole defendants. ARM served subpoenas on the Conferences in 1983, seeking extensive documentary evidence to support its claims. A series of court orders to produce, intertwined with other procedural motions, were followed by objections and refusals. These matters were extensively reported by the District Court. See Abortion Rights Mobilization, Inc. v. Regan, 544 F. Supp. 471 (1982) (ARM I); Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364 (1982) (ARM II); Abortion Rights Mobilization, Inc. v. Regan, 603 F. Supp. 970 (1985) (ARM III); Abortion Rights Mobilization, Inc. v. Baker, 110 F. R. D. 337 (1986) (ARM IV). After the Conferences informed the court that they could not “in con-' science, comply with the subpoenas in question,” the court, which had made detailed orders including orders limiting discovery at the behest of the Conferences, found the Conferences in civil contempt. ARM TV, supra, at 337. The court assessed fines of $50,000 against each Conference for each day of further noncompliance. The Court of Appeals affirmed, stating that “the witnesses have standing to question only whether the District Court has a colorable basis for exercising subject matter jurisdiction . . . .” In re United States Catholic Conference, 824 F. 2d 156, 158 (1987). The order was stayed pending appeal, and the stay remains in effect. II. We hold that a nonparty witness can challenge the court’s lack of subject-matter jurisdiction in defense of a civil contempt citation, notwithstanding the absence of a final judgment in the underlying action. Federal Rule of Civil Procedure 45 grants a district court the power to issue subpoenas as to witnesses and documents, but the subpoena power of a court cannot be more extensive than its jurisdiction. It follows that if a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void and an order of civil contempt based on refusal to honor it must be reversed. As we observed in United States v. Morton Salt Co., 338 U. S. 632, 642 (1950), “[t]he judicial subpoena power not only is subject to specific constitutional limitations, . . . but also is subject to those limitations inherent in the body that issues them- because of the provisions of the Judiciary Article of the Constitution.” Therefore, a nonparty witness may attack a civil contempt citation by asserting that the issuing court lacks jurisdiction over the case. The right of a nonparty to appeal an adjudication of contempt cannot be questioned. The order finding a nonparty witness in contempt is appealable notwithstanding the absence of a final judgment in the underlying action. United States v. Ryan, 402 U. S. 530, 532 (1971); Cobbledick v. United States, 309 U. S. 323, 328 (1940). Once the right to appeal a civil contempt order is acknowledged, arguments in its legitimate support should not be so confined that the power of the issuing court remains untested. We are not confronted here with a nonparty witness attempting to challenge its civil contempt by raising matters in which it has no legitimate interest, for instance the District Court’s lack of personal jurisdiction over the parties or a limitations statute that would compel dismissal of the action. As to such matters, even if it were ultimately determined that the court should not have allowed the suit to proceed, the order or process it issued in the conduct of the litigation would still be valid. The challenge in this case goes to the subject-matter jurisdiction of the court and hence its power to issue the order. The distinction between subject-matter jurisdiction and waivable defenses is not a mere nicety of legal metaphysics. It rests instead on the central principle of a free society that courts have finite bounds of authority, some of constitutional origin, which exist to protect citizens from the very wrong asserted here, the excessive use of judicial power. The courts, no less than the political branches of the government, must respect the limits of their authority. The Court of Appeals found that our decision in Blair v. United States, 250 U. S. 273 (1919), controlled its decision, but we think not. Blair involved defiant witnesses in a grand jury investigation. The witnesses refused to testify, contending the grand jury lacked jurisdiction because the statute that prohibited the conduct under investigation was unconstitutional. Id., at 277-279. We affirmed the denial of habeas corpus relief to the witnesses and refused to consider their jurisdictional challenge. As this Court was careful to say, the jurisdiction of the grand jury did not depend upon the validity of the statutes attacked by the witnesses. The grand jury’s investigative powers included the authority to conduct a wide-ranging investigation of the subject matter and existed independently of the statutes challenged by the witnesses. Blair, in effect, addressed the jurisdiction of the grand jury and found it sufficient to support the order of contempt. See Morton Salt, supra, at 642-643. Blair does not hold that the limited subject-matter jurisdiction of an Article III court may not be raised by a nonparty witness whom the court seeks to hold in civil contempt. Additionally, the Court of Appeals was concerned that permitting the nonparty witness to challenge the jurisdiction of the court would invite .collusion, allowing parties to avoid restrictions on interlocutory appeals and to test jurisdiction by proxy. See Catlin v. United States, 324 U. S. 229, 236 (1946). We are not persuaded that such considerations should alter the rule we apply in this case. To begin with, the objection does not meet the fundamental premise that the nonparty should not be denied the right to object to the very jurisdictional exercise that causes the injury. Further, we conclude that there are ample protections against collusive appeals. If the Court of Appeals finds that the witness and a party acted in collusion to appeal in order to gain an interlocutory ruling on jurisdiction, it can decline to treat the witness as a nonparty for purposes of the question. Cf. Karcher v. May, 484 U. S. 72, 78 (1987) (applying “[t]he concept of ‘legal personage’ ” as a “practical means of identifying the real interests at stake in a lawsuit”); Bender v. Williamsport Area School District, 475 U. S. 634, 648, n. 9 (1986) (assessing the congruence of interests between the “parties” to the appeal). See generally In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 747 F. 2d 1303, 1305 (CA9 1984); Additionally, there remain the usual provisions for sanctioning frivolous appeals or the abuse of court processes. See Roadway Express, Inc. v. Piper, 447 U. S. 752, 762 (1980); Fed. Rule App. Proc. 38. The limitations of the rule we follow in this case should be well understood. First, we do not undertake to explore in detail the differences between civil and criminal contempt. It suffices to note that we have distinguished between the two before and have held that a civil contempt order may depend upon the jurisdiction of the court. In United States v. Mine Workers, 330 U. S. 258 (1947), we noted the different treatment criminal and civil contempt are accorded based on appellate review of the issuing court’s jurisdiction. “It does not follow, of course, that simply because a defendant may be punished for criminal contempt for disobedience of an order later set aside on appeal, that the plaintiff in the action may profit by way of a fine imposed in a simultaneous proceeding for civil contempt based upon a violation of the same order. The right to remedial relief falls with an injunction which events prove was erroneously issued, and a fortiori when the injunc- ■ tion or restraining order was beyond the jurisdiction of the court.” Id., at 294-295 (citations omitted; footnote omitted). Though it may seem at first that denying a defense in a criminal case and granting it in a civil one reverses our usual priorities, the distinction is sound; for it rests on the different purposes and necessities of the two types of orders. Ibid. If either of the two orders appears efficacious, the better practice is to enter civil contempt to persuade a party to comply, reserving the more drastic, punitive sanction only if disobedience continues. Yates v. United States, 355 U. S. 66, 74-75 (1957). That course of action is not always available to a court, which at times must assert its authority at once to preserve the status quo or to determine its jurisdiction. See 18 U. S. C. §§401, 402. It was available here, however, as the District Court correctly recognized. When a district court elects to apply civil contempt to enforce compliance, it is consistent with that approach to allow full consideration of the court’s subject-matter jurisdiction. The second point is closely related. Nothing we have said puts in question the inherent and legitimate authority of the court to issue process and other binding orders, including orders of discovery directed to nonparty witnesses, as necessary for the court to determine and rule upon its own jurisdiction, including jurisdiction over the subject matter. United States v. Shipp, 203 U. S. 563, 573 (1906). Though the concurring opinion in the Court of Appeals indicated that the order of the District Court in the case before us might be sustained as an inquiry in aid of the court’s jurisdiction over the subject matter, the record shows that the process was issued to obtain discovery on the merits of the litigation. It is a recognized and appropriate procedure for a court to limit discovery proceedings at the outset to a determination of jurisdictional matters, see 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3536, and n. 2 (1984 and Supp. 1987), but that was not the objective of this discovery order, even by implication. Before the contempt order, the District Court twice ruled that it had subject-matter jurisdiction of the case. Accordingly, on remand, the Court of Appeals must determine whether the District Court had subject-matter jurisdiction in the underlying action. If not, then the subpoenas duces tecum are void, and the civil contempt citation must be reversed “in its entirety.” Mine Workers, supra, at 295. III We hold that the Court of Appeals for thé Second Circuit erred in limiting the Conferences’ jurisdictional challenge to the argument that the District Court lacked even colorable jurisdiction to hear the suit. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The Internal Revenue Code, 26 U. S. C. § 501(c)(3) (1988 ed.), as amended by Pub. L. 100-203, § 10711(a)(2), 101 Stat. 1330-464, exempts organizations from the payment of income taxes if they meet certain criteria. In pertinent part, that section provides: “(c) List of exempt organizations. — The following organizations are referred to in subsection (a) [as exempt from taxation]: “(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

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?

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 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?

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 all contracts shall be made upon specifications. No contract shall be binding upon the city unless it has been signed by the mayor and countersigned by the city clerk, and the expenses thereof charged to the proper fund liable for the payment of the same, and whenever the contracts charged to any fund equal the appropriation made therefor

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

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

In the Miatter of J. C. CATLOW, Debtor. Lawrence J. MARKS, individually and on behalf of Wendy Kay Hall, Plaintiffs-Appellees, v. J. C. CATLOW, Defendant-Appellant. No. 79-3638. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 15, 1981. Decided Dec. 14, 1981. James B. Feeley, Rowe & Feeley, Phoenix, Ariz., for defendant-appellant. Barry Adler, Eskanos & Fertig, Oakland, Cal., argued, for plain tiff s-appellees; Lawrence J. Marks, Phoenix, Ariz., on brief. Before WALLACE and TANG, Circuit Judges and PALMIERI, District Judge. Honorable Edmund L. Palmieri, Senior United States District Judge for the Southern District of New York, sitting by designation. TANG, Circuit Judge: This appeal is from a district court judgment affirming a bankruptcy court judgment declaring an attorney’s fee award nondischargeable in bankruptcy. The issue is whether attorney’s fees awarded to a bankrupt’s former spouse in a post-divorce child custody proceeding in Arizona is nondischargeable under section 17(a)(7) of the former Bankruptcy Act, 11 U.S.C. § 35(a)(7) (1976). We conclude that the award is nondischargeable and therefore affirm. The appellant, J. C. Catlow, and his wife were divorced in 1975. The divorce decree awarded custody of the minor child to Cat-low’s wife. In 1977, Catlow sued in an Arizona state court to obtain custody over the child. After the custody proceeding, the court, pursuant to Ariz.Rev.Stat.Ann. § 25-324 (1976), ordered Catlow to pay his former wife’s attorney’s fees for the proceeding. Catlow subsequently filed a voluntary bankruptcy petition in the District of Arizona. The former wife’s attorney, the appellee here, filed a complaint with the bankruptcy court asking that the attorney’s fee award be declared nondischargeable and exempt from the stay of process by Cat-low’s creditors. The bankruptcy court held the fees nondischargeable and exempt from the stay under section 17(a)(7) of the former Bankruptcy Act, 11 U.S.C. § 35(a)(7) (1976), and the district court affirmed. Section 17(a)(7) of the former Bankruptcy Act provides that a discharge in bankruptcy does not release the bankrupt from debts “for alimony due or to become due, or for maintenance or support of wife or child . . . .” 11 U.S.C. § 35(a)(7) (1976). In the absence of specific conflict with federal law, we must look to state law to delineate the parties’ state-created support obligations. See Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 238-239, 91 L.Ed. 162 (1946). As this court has noted, “[f]ederal bankruptcy law is not the source of these obligations; it takes them as it finds them and, when necessary, characterizes the legal relations existing between the parties for its own purposes.” Albin v. Albin (In re Albin), 591 F.2d 94, 97 (9th Cir. 1979). Catlow argues that the district and bankruptcy courts below misapplied section 17(a)(7) in holding the attorney’s fee award nondischargeable. He acknowledges that this circuit has previously ruled that attorney’s fees awarded to a bankrupt’s former spouse in a California divorce action is in the nature of spousal support and is therefore not dischargeable. See Jones v. Tyson (In re Jones), 518 F.2d 678, 680-81 (9th Cir. 1975). He contends, however, that even if this rule applies to Arizona divorce proceedings, it does not extend to post-divorce proceedings that are unrelated to enforcing spousal support obligations. As the proceeding at issue here occurred two years after his divorce and dealt exclusively with child custody, he contends that the fee award may not be characterized as spousal support and is therefore dischargeable in bankruptcy. We disagree. The Arizona statute authorizing attorney’s fees, like the statute considered in Jones v. Tyson, permits a fee award upon a showing of financial necessity and requires a court to consider the respective needs and incomes of both spouses prior-to making an award. See Ariz.Rev.Stat.Ann. § 25-324 (1976). Arizona courts have ruled consistently that this statutory obligation is founded upon a spouse’s duty of support to his or her spouse. The courts have held that “attorney’s fees are as much for the wife’s support as payments made directly to her ... ”, Johnson v. Johnson, 22 Ariz.App. 69, 71, 523 P.2d 515, 517 (1974) quoting Bickel v. Bickel, 17 Ariz.App. 29, 30-31, 495 P.2d 154, 155-56 (1972), and a decision to grant fees “is an adjudication of her need of such support in order to litigate with her husband upon an equal basis,” id. 22 Ariz.App. at 71, 523 P.2d at 517 (same). Accord, Gubser v. Gubser (In re Gubser), 126 Ariz. 303, 305, 614 P.2d 845, 847 (1980); Kingsbery v. Kingsbery, 93 Ariz. 217, 227, 379 P.2d 893, 900 (1963); Olsztyn v. Olsztyn, 20 Ariz.App. 545, 549, 514 P.2d 498, 502 (1973); Bickel v. Bickel, 17 Ariz.App. 29, 30-31, 495 P.2d 154, 155-56 (1972); Reich v. Reich, 13 Ariz.App. 98, 99, 474 P.2d 457, 458 (1970). This purpose has been considered of such paramount importance that the Arizona Supreme court has ruled sua sponte that the standards in the attorney’s fees statute govern over any other contractual arrangements the parties have made for allocating attorney’s fees. See Gubser v. Gubser (In re Gubser), 126 Ariz. at 305, 614 P.2d at 847. Moreover, like alimony and child support, a spouse’s obligation to pay attorney’s fees is enforceable by contempt. Johnson v. Johnson, 22 Ariz.App. at 71, 523 P.2d at 517. The distinction Catlow attempts to draw between divorce proceedings and post-divorce child custody proceedings has no basis in Arizona law. Arizona law makes no distinction between fees awarded for legal services related to the actual dissolution of marriage and those related to child custody proceedings held subsequent to divorce. See Ariz.Rev.Stat.Ann. § 25-324 (1976) (statute’s provisions govern both divorce and child custody proceedings); see also Gubser v. Gubser (In re Gubser), 126 Ariz. at 304-05, 614 P.2d at 846-47 (statutory fee may be awarded in child custody proceeding held four years after divorce); Long v. Long, 39 Ariz. 271, 276-77, 5 P.2d 1047, 1049 (1931) (court has power to award attorney’s fee in child custody proceeding held nine months after divorce); Bradstreet v. Bradstreet, 34 Ariz. 340, 346-47, 271 P. 717, 719 (1928) (statutory fee awarded in child custody proceeding held subsequent to divorce action); Smith v. Smith, 117 Ariz. 249, 571 P.2d 1045 (Ariz.App.1977) (statutory fee awarded in child custody proceeding held two years after divorce). Arizona treats a post-divorce child custody proceeding as a continuation of the original divorce action. See Beard v. Greer, 116 Ariz. 536, 539, 570 P.2d 223, 226 (Ariz.App. 1977). The factors and bases delimiting a court’s power to award attorney’s fees in the original action are therefore identical in the later ancillary proceeding. See Bradstreet v. Bradstreet, 34 Ariz. at 346-47, 271 P. at 719. As Arizona law considers attorney’s fees to be spousal support if awarded in the original divorce action, this characterization must therefore also apply to fees awarded in post-divorce child custody proceedings. As Catlow’s debt for legal services is founded upon his state-created obligation to support his former wife, the debt is nondischargeable under section 17(a)(7) of the former Bankruptcy Act. See Wetmore v. Markoe, 196 U.S. 68, 76-77, 25 S.Ct. 172, 175, 49 L.Ed. 390 (1904); Jones v. Tyson (In re Jones), 518 F.2d at 680. AFFIRMED: . This proceeding is governed by the former Bankruptcy Act because Catlow’s petition was filed before October 1, 1979, the new Bankruptcy Act’s effective date. See Bankruptcy Reform Act of 1978, Pub.L. 95-598, §§ 402(a), 403(a), 92 Stat. 2549. We reserve the question whether attorney’s fees awarded to a bankrupt’s former spouse or the spouse’s attorney in a divorce or post-divorce action is dischargeable under section 523(a)(5) of the new Bankruptcy Act, 11 U.S.C. § 523(a)(5) (Supp.1979). Compare Spong v. Pauley (In re Spong), 661 F.2d 6 at 11 (2d Cir. 1981) (nondischargeable) (New York law); Leonhardt v. Whitehurst (In re Whitehurst), 10 B.R. 229, 230 (Bkrtcy.M.D.Fla.1981) (nondischargeable); Lineberry v. Lineberry (In re Lineberry), 9 B.R. 700, 709-10 (Bkrtcy.W.D.Mo. 1981) (nondischargeable) (Missouri law); French v. Prante (In re French), 9 B.R. 464, 467-69 (Bkrtcy.S.D.Cal.1981) (nondischargeable); Janashak v. Demkow (In re Demkow), 8 B.R. 554, 555 (Bkrtcy.N.D.Ohio 1981) (nondischargeable); A. A. Legal Clinic, Ltd. v. Wells (In re Wells), 8 B.R. 189, 193 (Bkrtcy.N.D.Ill. 1981) (nondischargeable) (Illinois law); Bennett v. Knabe (In re Knabe), 8 B.R. 53, 56-57 (Bkrtcy.S.D.Ind.1981) (nondischargeable) (Indiana law); Bell v. Bell (In re Bell), 5 B.R. 653, 655 (Bkrtcy.W.D.Okla.1980) (nondischargeable) (Oklahoma law); Pelikant v. Richter (In re Pelikant), 5 B.R. 404, 407-08 (Bkrtcy.N.D.Ill. 1980) (nondischargeable) (Illinois law); with In re Crawford, 8 B.R. 552 (Bkrtcy.D.Kan.1981) (dischargeable because fees owed to spouse’s attorney rather than to spouse); Asgeirson v. Delillo (In re Delillo), 5 B.R. 692, 694 (Bkrtcy.D. Mass. 1980) (same); Monday v. Allen (In re Allen), 4 B.R. 617, 620 (Bkrtcy.E.D.Tenn.1980) (same). . Federal courts have generally held a debt for attorney’s fees to be nondischargeable under section 17(a)(7) when the fees are awarded to a bankrupt’s spouse in a divorce action. See DuBroff v. Steingesser (In re Steingesser), 602 F.2d 36, 38 (2d Cir. 1979) (New York law); Brody & Brody v. Birdseye (In re Birdseye), 548 F.2d 321, 323-25 (10th Cir. 1977) (Connecticut law); Schiller v. Cornish (In re Cornish), 529 F.2d 1363, 1364-65 (7th Cir. 1976) (Illinois law); Nunnally v. Nunnaiiy (In re Nunnaliy), 506 F.2d 1024, 1026-27 (5th Cir. 1975) (Texas law); Damon v. Damon, 283 F.2d 571, 573-74 (1st Cir. 1960) (Maine law); In re Hargrove, 361 F.Supp. 851, 853-54 (W.D.Mo.1973) (Missouri law) (state post-divorce proceeding); Gagnon v. Gagnon (In re Gagnon), No. BK-79-52 (Bankr.D.Me. April 29, 1980) (Maine law); Mahoney v. Smith (In re Smith), 3 B.R. 224, 231-32 (Bkrtcy.E.D.Va.1980) (District of Columbia law). But see Krings v. Moyer, 13 B.R. 436 (Bkrtcy.W.D.Mo.1981) (Missouri law). . Catlow also argues that section 17(a)(7) is unconstitutional because, in failing to make alimony paid to a husband nondischargeable, it creates a gender-based distinction violative of the Due Process Clause of the Fifth Amendment. Catlow, however, did not raise this issue before either the bankruptcy court or the district court. We therefore refuse to consider the issue on appeal. See Albin v. Albin (In re Albin), 591 F.2d 94, 97 (9th Cir. 1979). . The statute provides; The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter. For the purpose of this section costs and expenses may include attorney’s fees, deposition costs, and such other reasonable expenses as the court finds necessary to the full and proper presentation of the action, including any appeal. The court may order all such amounts paid directly to the attorney, who may enforce the order in his name with the same force and effect, and in the same manner, as if the order had been made on behalf of any party to the action. Ariz.Rev.Stat.Ann. § 25-324 (1976). . We also reject Catlow’s contention that Congress narrowed the dischargeability exception’s scope when it recodified the section from section 17(a)(2) to section 17(a)(7) in Public Law 91-^67, § 5, 84 Stat. 990 (1970). Nothing in the amendments’ language or the legislative history suggests that Congress contemplated such a change in the dischargeability exception’s substantive content. See H.R.Rep.No.91-1502, 91st Cong., 2d Sess. 2, reprinted in [1970] U.S. Code Cong. & Ad.News 4156, 4157 (amendments designed not to change the policy of Congress in determining what debts are dis-chargeable).

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

ADAMS v. CHAMPION. No. 5076. Circuit Court of Appeals, Seventh Circuit. April 17, 1934. Rehearing Denied June 13, 1934. Franklin L. Yelde and Wm. S. Pretty-man, both of Pekin, 111., for appellant. Ira J. Covey and Edwin L. Covey, both of Peoria, 111., for appellee. Before ALSCHULER, EYANS, and SPARKS, Circuit Judges. SPARKS, Circuit Judge. On September 7, 1928, John Fitzgerald deposited with the hank certain farm mortgage notes, and certificates for thirty shares of the hank’s stock, as collateral security for his renewal note of that date in the amount of $26,000. On October 26, 1928, an involuntary proceeding in bankruptcy was filed against him, and,on November 16, 1928, he was adjudged a bankrupt. Or£ July 20, 1929, appellee filed a hill against the bank to recover preferences made within four months immediately preceding the filing of the petition in bankruptcy which included the collateral pledged as security for Fitzgerald’s note for $26,000. The answer filed by the bank is not in this record, but from the court’s memorandum opinion it is obvious that the issues were: (1) Did the bank at the time of the transfer have reasonable cause to believe that Fitzgerald was insolvent, and (2) did the bank still have in its possession any of the pledged collaterals or their proceeds. The matter was referred to a master who answered both questions in the affirmative, and found the issues for the trustee. The bank excepted to the findings, and the court sustained the master on June 17, 1932, and on June 24, entered a decree ordering the collaterals or their proceeds delivered to the trustee. In the meantime on January 7, 1932, the bank had closed its doors, and on January 26, 1932, the Comptroller of the Currency had appointed appellant as its receiver. As a part of the decree it was ordered that a certified copy of it be sent by registered mail to the Comptroller, in which he was ordered on behalf of the bank to comply-with the terms of the decree, and it is admitted that the letter was received by him. From this deeiee no appeal was prosecuted. Up to this time, so far as the record shows, neither the Comptroller nor the receiver had knowledge of this proceeding. This fact, however, would have no effect on the binding force of the decree upon him (Bereth v. Sparks (C. C. A.) 51 F.(2d) 441, 80 A. L. R. 909), and he complied with its terms except as to the four following items of collateral which form the basis of this controversy: Charles Graff mortgage note and interest .................... $3,183.78 W. C. Sommers mortgage note and interest................. 1,058.98 Ten shares of Farmers bank stock and dividend........... 3,030.00 Veesaert notes and interest...... 1,597.31 On August 30, 1932, appellee filed his petition for an order requiring appellant to pay petitioner in cash the four items above referred to, on the grounds that the first two items had been paid to the bank in the early part of 1929, the third converted into cash about the same time and the last item had been paid on December 13, 1930, and that the receiver now held the entire amounts for the appellee as trustee ex maleficio. The issues were joined by appellant’s answer in which he admitted the validity of appellee’s claim as an unpreferred claim but denied the existence of a trust ex maleficio, or that the bank’s assets, by any of these transactions had been augmented,, or that any part of ihe funds demanded had been traced into his hands. All the facts were stipulated and it was therein agreed that either the trustee or the receiver might apply to the court for a decision and decree as to any matter in dispute. Upon submission the court made findings of fact and rendered its conclusions of law favorable to appellee with respect to the four items in controversy. The court’s findings which are material to the questions here presented are substantially as follows: That the bank received the four items of collateral as an unlawful and recoverable preference and treated them as cash and shortly thereafter converted them into cash which was intermingled with the cash of the bank and treated by it as its own; that when the bank closed it had on hand in cash and cash items, $36,054.76, which afterwards went into the hands of the receiver; that the least amount in cash and cash items in the bank during the. period from February 5, 1929, to the close of the business on January 7, 1932, was $30,548.61; that the bank by collecting bankrupt’s notes and bonds and by sale of his bank stock without the knowledge or consent of the trustee, held the proceeds of such collections and sale amounting to $8,870.07 as a trustee ex maleficio; and that said funds were in the possession of the bank when it closed. When Fitzgerald’s securities were pledged to the bank, it can not be doubted that the bank knew that he was insolvent, or by the exercise of ordinary diligence ought to have known it, and it is not denied that the other elements necessary to constitute a preference were present. These facts were determined by the first decree and were supported by substantial evidence. There was neither exception nor appeal with respect to that decree, and we do not understand that appellant in this proceeding is denying that there was an unlawful preference. It is first contended by appellant that the court erred in finding that the bank was a trustee ex maleficio for the bankrupt. In, his brief it is stated, “We do not admit there was a trust relationship nor do we confidently deny it.” Counsel for appellee calls our attention to what he styles certain admissions ■with respect to the existence of a trust, made in appellant’s brief in the District Court. That brief is not in this record and constó-tutes no part of it, and counsel should know that it should not be referred to in argument. It is quite obvious from the facts found, however, that some form of trust relationship existed between Fitzgerald and the bank and that it was a constructive trust relationship, due to the fact that the bank had wrongfully taken possession and assumed control of Fitzgerald’s property. Baltimore & Ohio Telephone Co. v. Interstate Telephone Co. (C. C. A.) 54 F. 50; In re Maher (D. C.) 144 F. 503. We think the court properly held that it was a trust ex maleficio. Smith v. Mottley (C. C. A.) 150 F. 266; Brennan v. Tillinghast (C. C. A.) 201 F. 609. It is next contended by appellant that the bank’s assets were not augmented by the amounts received by it in payment of the obligations of the collateral. That is no doubt true, but the assets of the bank had been previously augmented when it wrongfully took possession of the collateral obligations. At that time the trust attached, and the fact that the collateral obligations were subsequently liquidated would not destroy the trust, and it would make no difference whether the collateral obligations were paid from money in the appellant’s bank or from any other source. It is further contended by appellant that the property in controversy has not been traced into his possession, which of course is necessary before appellee can recover. In Schumacher v. Harriett (C. C. A.) 52 F.(2d) 817, 818, 82 A. L. R. 1, it was disclosed that plaintiff had delivered life insurance cheeks to the bank to purchase bonds for plaintiff with the proceeds; that the checks were received by the bank as cash and treated by it as such, plaintiff receiving immediate credit therefor; that it forwarded the checks for credit to correspondent banks, in which on that day, and for several days thereafter, the sending bank had credit balances considerably in excess of the respective amounts so deposited. Those balances were gradually reduced until, at the time of the depositing bank’s failure, the account with one of the correspondent banks showed an overdraft, and the account with another bank showed a small balance which was credited upon a note which the correspondent bank held. It was there said that the plaintiff, under those circumstances, had traced the trust fund in the bank receiver’s hands. The court said, “ * * * Where a bank acting as trustee mingles a trust fund with its other funds, the common fund resulting is impressed with a trust to the amount of the trust fund which has been so commingled and lost its identity; and in such case the cestui que trust is entitled to have the trust declared and the trust fund separated from the other funds, even though the bank subsequently to the commingling may have added to and made payments from the common fund, as the presumption is that it respected the trust and did not make payment from the trust property. A limitation upon the rule is that the amount for which the trust is declared may not exceed the smallest amount which the common fund contained subsequent to the commingling of the trust funds. Knatchbull v. Hallett, 13 Ch. D. 696; Central National Bank v. Conn. Mut. Life Ins. Co., 104 U. S. 54, 26 L. Ed. 693; Poisson v. Williams (D. C.) 15 F.(2d) 582; Brennan v. Tillinghast (C. C. A. 6) 201 F. 609, 612; Empire State Surety Co. v. Carroll (C. C. A. 8) 194 F. 593, 605.” Quoting from the opinion of Judge Sanford in Brennan v. Tillinghast, the court said, “ ‘It is undisputed that the proceeds of the sale of Brennan’s stock, wrongfully converted by the Ironwood Bank to its own use, constituted a trust fund, which did not lose this character when min'gled with other moneys of the bank, and that Brennan was entitled to recover the amount thereof as a preferred claim, if, and to the extent that, he sustained the burden of proof of tracing this money, either in its original shape or in a substituted form, into the moneys which came into the hands of the receiver as part of the assets of the bank. (Citing eases.) And proof that the tort-feasor has mingled the trust funds with his own and made payments thereafter out of the common fund, is, nothing else appearing, a sufficient identification of the remainder of that fund coming into the hands of the receiver, not exceeding the smallest amount the fund contained subsequent to the commingling, as trust property, under the legal presumption that he regarded the law and neither paid out the trust fund nor invested it in other property, but kept it sacred.’ ” With respect to tracing the fund in the Schumacher case, the court said, “As the fund upon which the trust is asserted * * *' is the fund of cash and cash items which passed into the hands of the receiver, the question in the case is whether the $8,500 of plaintiff has been traced into that fund. * * * We think that this question must be answered in the affirmative. The life insurance checks were received by the bank as cash and were treated by it as such. They increased the cash and cash items in the tills of the bank at the time. When it placed them to its credit in the Richmond and New York banks, it was dealing with them as its own; and the presumption is that cash which was left in its tills was intended to be subject to the trust. While it had, of eourse, the right to collect the checks, it had no right to place their proceeds to its credit in other banks without holding an equivalent amount in cash in its own vaults to satisfy the trust which it had assumed towards plaintiff; and we must assume that it respected the trust, as ‘equity imputes an intention to fulfill an obligation.’ ” The facts in the Schumacher case are quite analogous to those found by the court in the instant case, and a perusal of the evidence leaves no doubt in our minds that the court’s findings here are supported by substantial evidence. We are convinced that the bank’s assets were augmented by, and to the extent of, the proceeds of the collateral, and that those proceeds have in law been traced into the receiver’s hands. It is no doubt true, as appellant insists, that the only preference expressly allowed by the Act of Congress (12 USCA § 137) in eases of insolvency of a national bank is the one to the United States for advances in redeeming notes of the bank, but that statute was never intended to, and does not, prevent a preference for trust funds. It is indeed doubtful if Congress could prevent such a preference if it so desired. 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 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?

James BRUNING, Plaintiff-Appellee, v. Reid C. PIXLER, Individually and in His Official Capacity as District Attorney for the Seventh Judicial District; Joseph S. Pacyga, Individually and in His Official Capacity as Deputy District Attorney for the Seventh Judicial District; District Attorney’s Office for the State of Colorado’s Seventh Judicial District, Floyd Johnson, Individually and in His Official Capacity as Chief of the Gunnison Police Department, City of Gunnison Police Department, James Robert Keehne, Russell Locke, Robert G. Ryan, Defendants, and Keith Robinson, J. Stewart Ferguson, Defendants-Appellants. No. 90-1296. United States Court of Appeals, Tenth Circuit. Nov. 15, 1991. Daniel M. Reilly and Larry Pozner, Denver, Colo., for plaintiff-appellee. Don D. Jacobson, Lohf, Shaiman & Ross, P.C., Denver, Colo., for defendants-appellants. Before McKAY, Chief Judge, EBEL, Circuit Judge, and SAFFELS, District Judge. Honorable Dale E. Saffels, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. EBEL, Circuit Judge. Defendants Keith Robinson and J. Stewart Ferguson appeal the district court’s order denying their Motion for Summary Judgment based on qualified immunity. Both Defendants are members of the Gunnison, Colorado Police Department (GPD), who contend that they are immune from liability for their alleged wrongful acts in obtaining an order for nontestimonial identification and an arrest warrant for Plaintiff. “We review the denial of immunity de novo as a final decision under 28 U.S.C. § 1291.” Snell v. Tunnell, 920 F.2d 673, 675 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). Upon review, we conclude the district court properly denied Defendants’ Motion for Summary Judgment. I. In the early hours of June 17, 1986, “Victim # 1,” who had just finished work at a grocery store in Gunnison, was sexually assaulted by a man who had hidden himself in the back of her car. Victim # 1 reported the assault to Officer Keehne of the GPD, who failed to make any written or oral record of his conversation with Victim # 1. On June 25, 1986, Victim # 1 saw Plaintiff, with whom she was acquainted, in the grocery store and was struck by his resemblance to her assailant. Victim # 1 became upset, left work, and went to the GPD. She spoke with Officer Locke and Detective Robinson, but neither officer made any written or oral record of the conversation with Victim # 1. On September 5, 1986, Victim #2 was sexually assaulted in her home in Gunni-son. She reported the assault to Officer Ryan of the GPD. Victim # 2 was blindfolded throughout the assault and never saw her assailant. On October 7, 1986, Durango Police Detective O’Connell, who was assisting with the investigation, interviewed Victim # 1. Detective O’Connell tape recorded the interview, and the recording was subsequently transcribed. During this interview Victim # 1 described the assault and what she was able to see of the assailant as follows. Victim # 1 got into her car, which was parked at the grocery store, and turned on the dome light to get her cigarettes out of her purse. She sensed something in the back of her car and turned to see a man she did not know crouched in the back seat. Because he was able to crouch down so far, Victim # 1 thought the man could not be very big: “Like five eight I think is pushin it.” R. Vol. I, Doc. 6, Ex. C at 5. The man had a white handkerchief over his nose and mouth, so Victim # 1 could not see his face below the bridge of his nose. She distinctly remembered that his eyes were icy blue, and described him as having a receding hairline, blondish hair, and a reddish complexion. When she looked at him, the man yelled at her to turn off the light, which she did. Victim # 1 did not have an opportunity to see the man thereafter. He stayed behind her in the car while she drove to a deserted parking lot, at his direction, and while she got out of the car. Victim # 1 was blindfolded during the assault and, at the assailant’s direction, kept her head averted while he fled the scene. During the interview with Detective O’Connell, Victim # 1 said that she had been having nightmares about the assault and in them she knew the assailant. When asked who the assailant was in her dreams, she replied that it was different people. She also said she dreamed the assailant was her store manager one time, and that he was a customer in the grocery store in another dream, but she knew it was not really either of these people. Victim # 1 did not identify Plaintiff as the assailant, though in response to Detective O’Connell’s statement: “It could well be that you will eventually recognize this guy,” following the discussion of Victim # l’s dreams, Victim # 1 said: [Victim # 1]: Well there is one person that gave, I’ve gave the name to the Police and stuff. It just freaked me out one day when he came in cause I know him, his girlfriend is one of the people I told I was working that night, you know, and. Det. O’Connell: Does he have receding blond hair? [Victim # 1]: Yep. Det. O’Connell: And the icy blue eyes? [Victim # 1]: Yep. And the build. And everything. And. Det. O’Connell: You could be right. [Victim # 1]: But it, I mean it bothers me but I can’t even talk to this person anymore. You know. Det. O’Connell: Yeah. Well that’s, even if it isn’t him I’m sure he’s gonna understand. He’s too close to ... [Victim # 1]: Yeah. Det. O’Connell: To the real thing, even if it isn’t him. Id. at 27. In response to Detective O’Con-nell’s statement near the end of the interview: “You’re still don’t know who he is.” Victim # 1 responded “No.” Id. at 30. On October 24, 1986, Detective Robinson and Denver Police Detective Wallis interviewed Victim # 1. They too failed to record the interview in writing or on tape. After the interview, Detective Robinson drafted an affidavit in support of an order for nontestimonial identification from Plaintiff in connection with the two assaults. Based on the affidavit, the court entered the order, which was carried out on October 27, 1986. Pursuant to the order, Plaintiff was required to give police samples of his fingerprints, blood, hair and saliva, to make a voice recording, and to be photographed. On October 28, 1986, although all the samples from Plaintiff had not yet been analyzed, Officer Ferguson drafted an affidavit in support of a warrant for Plaintiff’s arrest for the two sexual assaults. Plaintiff was arrested that day. After the preliminary hearing, held on December 11, 1986, and January 22, 1987, the judge dismissed the charges for lack of probable cause. Plaintiff then brought this suit against Defendants and others for violation of his civil rights in connection with his arrest and prosecution. II. Plaintiff admitted that on their faces, Defendants’ affidavits established probable cause. He contended, however, that the affidavits contained material false statements or omissions that Defendants made intentionally or with reckless disregard for the truth. Specifically, Plaintiff alleged that Detective Robinson falsely and recklessly represented in his affidavit that Victim # 1 had (1) positively identified Plaintiff as her assailant; (2) observed Plaintiff some days after the assault wearing grey sweatpants; (3) observed the color of Plaintiff’s eyes; and (4) stated that Plaintiff’s eyes were the same color as her assailant’s. R. Vol. I, Doc. 1 at 3-4. Plaintiff also alleged that Detective Robinson intentionally and maliciously failed to include in his affidavit the following information: (1) in the brief moment Victim # 1 saw the assailant, he wore a mask over his face; (2) Victim # 1 only saw the assailant’s face above the bridge of his nose; (3) Victim # 1 gave an extensive recorded statement to Detective O’Connell on October 7, 1986, for the purposes of identifying the assailant; (4) even though she knew Plaintiff before the assault, Victim # 1 did not identify Plaintiff as her assailant during this interview; (5) in the interview Victim # 1 said she did not know who assaulted her; (6) Victim # 1 told Detective O’Con-nell that the man who assaulted her was not more than 5' 8"; (7) Plaintiff is 5' 11"; (8) Victim # 1 described her assailant as being of slim to medium build; (9) Plaintiff weighs 190 pounds; (10) Victim # 1 told Detective O’Connell her assailant had icy blue eyes; (11) Plaintiff has hazel eyes; (12) Victim # 1 told Detective O’Connell she thought the man who assaulted her might be a person who worked at the Standard Gas Station in Gunnison; and (13) Victim # 2 was blindfolded throughout her assault and could not identify her assailant. Id. at 4-5. Plaintiff alleged that Officer Ferguson’s affidavit contained the same false statements and omissions. Plaintiff claimed that by their misrepresentations, Defendants violated his rights under the Fourth and Fifth Amendments. Defendants moved for summary judgment claiming qualified immunity under Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Court held in Malley that an officer is immune from liability for his actions in seeking a warrant unless “a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Id. at 345, 106 S.Ct. at 1098. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court adopted an objective standard for qualified immunity. Under the Harlow standard, government officials will not be liable for their conduct when performing discretionary functions unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. “Because of the important values protected by qualified immunity, the procedures to be followed when this particular affirmative defense is raised differ from those applicable to most other affirmative defenses.” Powell v. Mikulecky, 891 F.2d 1454, 1457 (10th Cir.1989). When a government official raises the defense of qualified immunity in a motion for summary judgment, the plaintiff must produce facts “sufficient to show both that the defendant’s alleged conduct violated the law and that that law was clearly established when the alleged violation occurred.” Pueblo Neighborhood Health Ctrs. Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir.1988). Only after the plaintiff has met this burden must the defendant bear the usual summary judgment movant’s “burden of showing that no material issues of fact remain that would defeat his or her claim of qualified immunity.” Id.; see also Powell, 891 F.2d at 1457. This procedure must be modified slightly, however, when the plaintiff’s claim contains a subjective element, such as the defendant’s purpose, motive, or intent. Prior to Harlow, the qualified immunity standard had both a subjective and an objective component. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975). The subjective component focused on the good faith of the official and relieved him from liability if he did not actually know his conduct was unconstitutional and did not act with malicious intent. Harlow eliminated any consideration of the defendant’s intent as it relates to his knowledge of the law, see Halperin v. Kissinger, 807 F.2d 180, 186 (D.C.Cir.1986), but did not preclude consideration of the defendant’s intent when his state of mind is an essential element of the plaintiff’s substantive claim, Pueblo Neighborhood Health Ctrs., 847 F.2d at 648. When a defendant moves for summary judgment asserting he is qualifiedly immune and his state of mind is an element of the plaintiff’s claim, he must do more than merely raise the immunity defense; he “must make a prima facie showing of the ‘objective reasonableness’ of the challenged conduct.” Lewis v. City of Ft. Collins, 903 F.2d 752, 755 (10th Cir.1990) (citing Pueblo Neighborhood Health Ctrs., 847 F.2d at 649; Martin v. D.C. Metro. Police Dep’t, 812 F.2d 1425, 1434 (D.C.Cir.1987)). If the defendant makes this prima facie showing, the plaintiff must then produce specific evidence of the defendant’s culpable state of mind to survive summary judgment. Pueblo Neighborhood Health Ctrs., 847 F.2d at 649. At the time Defendants drafted the affidavits at issue, the law was clearly established that an officer would violate a plaintiff’s Fourth and Fourteenth Amendment rights by knowingly or recklessly making a false statement in an affidavit in support of an arrest or search warrant, if the false statement were material to the finding of probable cause. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978); Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984) (applying Franks v. Delaware standard to civil rights case involving arrest warrant). The law also was clearly established that “to knowingly or recklessly omit from an arrest affidavit information which, if included, would have vitiated probable cause,” would violate a plaintiff’s Fourth and Fourteenth Amendment rights. Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir.1990). A reckless disregard for the truth in the context of an alleged Fourth Amendment violation under Franks v. Delaware is the same as that in the context of an alleged First Amendment violation. A plaintiff must prove that “the affiant ‘in fact entertained serious doubts as to the truth of his’ allegations.” United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968)), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); accord DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 65, 116 L.Ed.2d 41 (1991). “Recklessness may be inferred from omission of facts which are ‘clearly critical’ to a finding of probable cause.” DeLoach, 922 F.2d at 622 (quoting Hale v. Fish, 899 F.2d 390, 400 (5th Cir.1990); United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986)). Because the state of mind with which Defendants allegedly acted was an element of Plaintiff's claim, Defendants had to make a prima facie showing that their actions were objectively reasonable. Defendants, however, did not submit any materials in support of their Motion for Summary Judgment. They did not file any affidavits attesting to their good faith, Martin, 812 F.2d at 1434, or establishing the objective reasonableness of their conduct, Lewis, 903 F.2d at 755. Instead, Defendants merely argued that Plaintiff could not establish their culpable state of mind and that any alleged false statements or omissions were not material to a finding of probable cause. On this record, it does not appear that Defendants made a prima facie showing that their conduct was objectively reasonable. Moreover, Plaintiff came forward with specific evidence from which one could infer that Defendants recklessly made false statements in, and omitted material information from, their affidavits. As Plaintiff’s expert witness said in an affidavit attached to Plaintiff’s Brief in Opposition to Defendant-Police Officers’ Motion for Summary Judgment, “the only material evidence in [Officer Ferguson’s] affidavit linking [Plaintiff] to the offenses enumerated in the affidavit is the alleged identification of [Plaintiff] by one of the victims, [Victim # 1].” R. Vol. I, Doc. 6, Ex. G at 2. Plaintiff pointed to evidence within Defendants’ knowledge that clearly indicated Victim # 1 could not positively identify Plaintiff, or any one else, as her assailant. In denying Defendants’ Motion for Summary Judgment, the district court focused on the following statements or omissions that it concluded were actionable: (1) Detective Robinson’s statement that Victim # 1 said she “had an opportunity to observe the subject closely,” R. Vol. I, Doc. 6, Ex. B at 1; (2) Detective Robinson’s statement that Victim # 1 “ ‘knew it was him,’ ” when she saw Plaintiff in the grocery store on June 25, 1986, id.; (3) Detective Robinson’s failure to mention Detective O’Con-nell’s interview with Victim # 1; and (4) Officer Ferguson’s statement that he was “not aware of any other facts which would tend to exculpate [Plaintiff],” id. at Ex. D, p. 3. The district court also concluded that Officer Ferguson’s affidavit suffered from the same deficiencies as Detective Robinson’s affidavit. Defendants argue that Detective Robinson’s statement that Victim # 1 had an opportunity to observe her assailant closely is true, as evidenced by her ability to describe the assailant in some detail. The statement is clearly misleading, however, in light of the information Detective Robinson omitted from his affidavit: that the man was wearing a handkerchief that concealed his face from the bridge of his nose down, and Victim # 1 only saw him briefly by the light of her dome light while he was crouched down in her back seat. The omitted information casts substantial doubt on Victim # l’s ability to identify Plaintiff as her assailant and, therefore, is material to a finding of probable cause. Defendants also contend that Detective Robinson’s statement that Victim # 1 said she “knew it was him” when she saw Plaintiff on June 25, 1986, is true. In their interview with Victim # 1 after her encounter with Plaintiff on June 25th, however, neither Detective Robinson nor Officer Locke wrote down what Victim # 1 told them. Officer Locke testified in his deposition that if Victim # 1 had positively identified her assailant, he would have written it down. Furthermore, although Victim # 1 allegedly identified Plaintiff as her assailant in this interview, the record does not reflect that the GPD took any action on this information until October 24, 1986. Both of these pieces of circumstantial evidence are sufficient to create an issue of fact as to whether Victim # 1 actually made the statement Detective Robinson attributed to her in his affidavit. The statement is material, as it constituted a positive identification of Plaintiff as Victim # l’s assailant. Also, one could infer from the GPD’s failure to act on the information Victim # 1 provided in the interview that Detective Robinson did not believe the information was sufficient to link Plaintiff to the crime. Defendants contend that pursuant to Easton v. City of Boulder, 776 F.2d 1441 (10th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986), they were not required to discuss in their respective affidavits any of the statements Victim # 1 made in her interview with Detective O’Connell because even if those statements were inconsistent or contradictory to the statements she allegedly made in the June 25th and October 24th interviews, they would not nullify probable cause. Defendants’ interpretation of Ea-ston is too broad. Easton involved an alleged sexual assault on two young boys by a man who lived in their apartment complex. When the first detective interviewed the boys separately, each described going to the man’s apartment where a nonviolent sexual assault occurred and later going to the laundry room with the man where he made a tent out of a blanket and assaulted one of the boys again. Each boy identified the man’s apartment to the detective and together they took the police to the laundry room. There, the detective found a blanket, which the boys said was the one the man used to make a tent. The detective then contacted the building manager to determine who lived in the apartment the boys had identified. The manager said Daniel Easton lived in the apartment. Id. at 1443-44. A week later, a second detective, who was experienced with juveniles, interviewed one of the boys again. At that time, the boy recalled only the incident in the laundry room. Although he denied being in the man’s apartment, he identified the same apartment as the man’s residence. The boy’s description of what occurred in the laundry room remained consistent with his earlier account, however, and his description of the man was consistent with that given by the complex manager. At the end of the interview, the boy’s stepfather saw a man coming out of his apartment across the complex and asked the boy if that man was the assailant. The boy responded "yes.” Thereafter, police approached the man and asked him his name. He identified himself as Daniel Easton. Id. at 1444. Later that day, the detective interviewed the other boy again. His account of the laundry room incident was consistent with all other accounts. He again related that the boys were in the man’s apartment, but denied that any assault took place there. He described the man as having lighter hair than the other boy did. Id. After the interview, the detective who first interviewed the children drafted an affidavit for Easton’s arrest with the assistance of the second detective. The detective did not reveal in his affidavit that the first boy’s statements as to whether he had been in Easton’s apartment and whether he had been assaulted in Easton’s apartment were contradictory, or that the two boy’s descriptions of the assailant’s hair color varied slightly. Id. at 1449. We concluded that the omitted inconsistencies d[id] nothing to undermine the solid core of the children’s statements regarding the laundry room assault and the location of the perpetrator’s apartment. Nor d[id] they detract from the detectives’ impression, based on personal observation of [the first boy’s] demeanor and behavior, that his statements were spontaneous and revealed knowledge of things that a child his age could not possibly possess had an event of the kind described not occurred. Id. at 1450. We also noted that “[t]he detectives did not need [the first boy’s] statement about a further assault in the man’s apartment to establish probable cause and did not rely on it in the affidavit they submitted to [the judge].” Id. at 1450-51 (emphasis added). We therefore held that “because the evidence excluded in no way alter[ed] the fact that the evidence included state[d] probable cause, the warrant was valid, whatever the intent of the officers, and Easton suffered no harm.” Id. at 1451. In contrast, the omissions here directly undermine Victim # 1’s alleged identification of Plaintiff as her assailant. That identification was virtually the only evidence linking Plaintiff to either of the assaults, and without it, there would be no probable cause to believe Plaintiff was the assailant. Defendants’ interpretation of Easton as holding that an officer need never report an inconsistency in the statements of a victim or witness is completely unreasonable. See also Stewart, 915 F.2d at 583 (holding law was clearly established in December of 1985 that the victim’s alleged recantation of his accusation was highly material to a finding of probable cause). On appeal, Defendants argue that Officer Ferguson's statement that he was unaware of any evidence exculpating Plaintiff was true. They contend that exculpatory evidence is that which positively eliminates the defendant as the perpetrator, and none of the evidence Plaintiff claims Officer Ferguson omitted from his affidavit concerning Victim # l’s ability to identify Plaintiff and how well Plaintiff fit Victim # l’s description of the assailant tended to show Plaintiff could not be the assailant. Appellant’s Reply Brief at 8-13. Defendants did not raise this argument as to the meaning of “exculpatory” evidence in the district court, however, so we will not consider it on appeal. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989); see also Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882, 887 (10th Cir.1991) (“We are not obligated to address an argument which was not made in the district court, nor even in this court until the reply brief.”). Officer Ferguson knew Victim # 1 made statements to Detective O’Connell that undermined her ability to identify Plaintiff as her assailant and he knew that Plaintiff did not fit Victim # l’s description of the assailant in all respects, including that he had hazel rather than “icy blue eyes,” yet he not only failed to set forth this information in his affidavit, he positively stated he was unaware of any facts tending to exculpate Plaintiff. Officer Ferguson’s statement was not only false and misleading, but material to the finding of probable cause. In his affidavit, Plaintiff’s expert witness, a former police officer and chief investigator for a District Attorney’s Office, opined that under the circumstances, the information relied upon by [Officer Ferguson] in the preparation of the affidavit for issuance of an arrest warrant was so obviously contraindicated as to the positive identification of [Plaintiff] by [Victim # 1], that to include it in the affidavit without qualification or explanation constitutes a deviation from what an objective and reasonable police officer would consider appropriate in like circumstances. R. Vol. I, Doc. 6, Ex. G at 4. Detective Robinson’s affidavit suffered from the same deficiencies as Officer Ferguson’s affidavit. The statements Defendants made in their affidavits and the information they omitted from those affidavits concerned facts that were “clearly critical” to a finding of probable cause. A factfinder could infer that Defendants made the statements and omitted the information with reckless disregard for the truth. See DeLoach, 922 F.2d at 622. III. In conclusion, Defendants failed to make a prima facie showing that their conduct was objectively reasonable, while Plaintiff pointed to specific evidence that Defendants’ conduct violated clearly established rights of which a reasonable officer would have known. Therefore, the district court properly denied Defendants’ Motion for Summary Judgment. The ruling of the United States District Court for the District of Colorado is AFFIRMED, and the action is REMANDED for further proceedings. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. . The record does not reveal Officer Ferguson’s role in the investigation of either assault. . The only evidence linking the two assaults together appears to be that in each assault the assailant held a knife to the victim’s throat, blindfolded the victim, and wore what each victim thought was a nylon windbreaker. Also, the statements each victim reported the assailant made during the assault were similar. . This statement, of course, assumes that the affiant was aware of such omitted facts.

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, et al., Respondents. No. 6090. United States Court of Appeals First Circuit July 10, 1963. Melvin J. "Welles, Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Marioli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Arthur M. Goldberg, Washington, D. C., were on brief, for petitioner. Harold B. Roitman, Boston, Mass., for respondents. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is a petition of the National Labor Relations Board pursuant to^ Section 10 (e) of the National Labor Relations Act, as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.), for enforcement of its order issued against respondents on June 22, 1962. The Board found that respondents violated Section 8(b) (1) (A) and (2) of the Act by requesting John I. Paulding, Inc., a manufacturer of electrical fixtures and related products, located in New Bedford, Massachusetts, (hereinafter called the Company) to discharge ten employees because they had failed to pay dues to the Union. The facts giving rise to the alleged violations are as follows. On July 2, 1958, the Company and the Union entered into a collective bargaining agreement which provided, inter alia, for a limited form of union security. Under the agreement, non-members of the Union employed by the Company were not required to join the Union. However, Union members and employees who thereafter joined the Union were obligated to maintain their membership for the duration of the existing contract; new employees were required to join the Union after thirty days’' employment. This initial collective bargaining agreement expired June 30, 1959 and, following a strike of some six months duration, a new one year contract was executed on January 11, 1960. This contract was to continue from year to year unless either party gave sixty days written notice to terminate. Proper notice was given and the contract expired on January 11,1961. A new agreement was reached on January 23, 1961. Both the 1960 and the 1961 contracts, consonant with the initial agreement signed in 1958, contained clauses which provided that those employees of the Company who were not members of the Union at the time the contract was executed would not be required to join the Union. However, all employees who had joined the Union before the execution of the contract and employees hired subsequent to the execution of the contract would be required to be members of the Umon as a condition of continued employment. On various dates from December 23, 1960 to January 19, 1961, ten employees of the Company signed cards in which they sought to resign from membership in the Union and revoke their checkoff authorizations. These ten employees were members in good standing of respondents and their dues were paid through January 1961. Four of the resignations were served upon the president of respondent Local on January 17, 1961, and the remaining six were tendered on January 19, 1961. As noted previously, on January 23, 1961, respondents and the Company negotiated a new collective bargaining agreement and the strike ended. On February 28, 1961, respondents sent letters to each of the ten employees — who had tendered resignations during the hiatus between the contracts — informing them that they were a month in arrears in dues and, in addition, owed a reinstatement fee of $15.00. On the same day respondents sent a letter to the Company listing the ten employees who it claimed were delinquent in payment of dues. All of the letters warned that should the employees fail to pay the back dues, respondents would proceed to demand the employees’ discharge under the provisions of the Union security agreement. Qn io, 1961, respondents filed a grievance with the Company claiming it had violated the contract in that it had failed to require the ten employees to pay their dues or, alternatively, to have discharged them for default in payment. The Company took no action on the Union’s request indicating that it would defer action until the National Labor Relations Board had acted on the matter, The stipulation entered into by the parties indicates that the ten employees who sought to resign-in the interim between the contracts_failed to follow the procedures provided in their membership and checkoff agreements and in the Constitution and By-laws of respondents insofar as they pertain to resignation or cancellation of the checkoff and membership agreements. Under the Union’s Constitution a resignation is effective, rinter alia,, only if it is sent by registered mail to the financial secretary of the local union to which the member belonged “within the ten (10) day period prior to the end of the fiscal year of the Local Union.” In the instant case> the end of the fiseal year of the respondent Local corresponded with the end of the calendar year. Each of the attempted “resignations” at issue here, having been tendered after the close of the stipulated time period, failed to comport with the above-cited constitutional provision and, under the Union’s theory, were invalid, Thus, again, under the Union’s theory, as the purported resignations were invalid they were correspondingly ineffective to sever the members’ relations with the Union and these members, accordingly, remained members, subject to dues, at all pertinent, times. In sum, according to the Union, the ten were still “union members” at the time that the pertinent contract was signed and thus subject to the maintenance of membership provisions. The Board found that the ten employees did not fall within the purview of the maintenance of membership agreement as they had in fact resigned from the Union prior to the execution of the agreement and, accordingly, were not “present employees of the Company who on the date of this Agreement are members of the Union.” Consequently, under the Board’s view, as the Union was attempting to cause the Company to discharge employees for nonpayment of dues which were not required of them by the contract, the respondents violated Sections 8(b) (1) (A) and (2) of the Act. Further, according to the Board, as the respondents had no right to demand dues of the ten employees under the maintenance of membership clause, the letters of February 28 demanding payment of dues restrained and coerced employees in the exercise of their right, under Section 7 of the Act, to refrain from union activities. Accordingly, the Board found that this conduct was in violation of Section 8(b) (1) (A) of the Act. The basis of the Board’s conclusion that the ten subject employees had effectively resigned from the Union — notwithstanding their conceded failure to comport with the Union’s Constitution and By-laws — is found in Section 7. Section 7, after providing that “Employees shall have the right to self-organization, to form, join, or assist labor organizations,” further states that employees “also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment * * 29 U.S.C. § 157. (Emphasis supplied.) It is the Board’s broad position that since Section 7 of the Act allows an employee freedom to “refrain” from union membership when there is no collective bargaining agreement in force to the contrary, then nothing in the Union’s Constitution or By-laws may circumscribe this right. We believe that in adopting this view and in finding the instant violations, the Board has failed to accord due deference to Section 8(b) (1) of the Act. This Section, after stating that it shall be an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act — to participate in or to refrain from union activity — goes on to expressly provide: “That this paragraph shall not impair the right of a "labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; „* * 29 U.S.C. § 158(b) (1). (Emphasis supplied.) We believe that this language is clear and express and should assuredly be given effect unless it would do violence to the underlying purpose of the Act. Contrary to the Board’s view, we do not perceive a conflict between the provisions of Section 7 and those of Section 8(b) (1), but rather believe the two can be harmonized. Under Section 7, absent a collective bargaining agreement to the contrary, the employee has indeed the unfettered right to abstain from indulging in union activity. He need not “form,” “join” or “assist” a labor organization and, again, an agreement apart, this inactivity cannot be the source of recriminations. It is by now too clear for citation that this facet of Section 7 was designed to prevent forcing the unwilling worker into a union. However, we believe that it is quite another thing when the employee eschews his “reluctance” and voluntarily joins a labor organization. At this point, under our view, the employee takes off the protective mantle of Section 7’s “refraining” provision and renders himself amenable to the reasonable internal regulations of the organization with which he chooses to cast his lot. Needless to say, as we indicated in a prior opinion between these same parties: “it may be that * * * there is a limit of reasonableness beyond which a union may not go” in structuring its internal regulations. N. L. R. B. v. International Union, United Auto, Aircraft, Agr. Imp. Wkrs., 297 F.2d 272, 276 (1st Cir. 1961). Be that as it may, we find nothing in this record to indicate that the instant Union has transgressed these limits. It is the Union’s position that the requirement that resignations be filed with the Financial Secretary of the Local within the ten day period prior to the end of the year was aimed at insuring “uniform practices to preserve its financial standing by establishing reasonable times for resignations by those who were in good standing.” As such, this was assuredly a rational basis for the requirement. Moreover, there is no contention here j-that any of the subject employees were ^unaware of this provision. In short, we believe that the Union’s Constitution and By-laws — here relevant — were valid and viable provisions with which the employees had to comply if they desired to effectively sever their relationship with the Union. It is true that under Section 7 of the Act, and in the light of the limited security agreement which obtained between the Company and the Union in the instant case, the subject employees need not have joined the Union. However, once they voluntarily took that step, they embraced not only the benefits but also the burdens which flowed from their union membership. One of those “burdens” was the duty of comporting with the Union’s reasonable internal regulations; a requirement they failed to discharge here. • In sum, we disagree with the Board thát as between the members and the Union, the members were always free to resign contrary to the Constitution and By-laws of the Union. Therefore, the logical import of this is that vis-a-vis the Union, the ten employees were still members of the Union when the new contract was signed on January 23, 1961. Therefore, they were within the purview of and subject to the maintenance of membership provisions of the contract during the remainder of its term. Thus, as the ten employees were presently' members of the Union, the Union had the right, under the terms of the agreement, to collect their dues and, fail-jng this, to take the further action which was undertaken in this case and which serVes as the basis for the Board’s findings of violations of the Act. Accord-ingiy> we believe that there is no support jn this record for the Board’s find-jngs and; consequently, the Board’s order will not be enforced A decree wilI be entered setting aside the order of the Board, . This type of union-security provision is commonly referred to as a “Maintenance of Membership” provision. . So far as appears the reinstatement fee was an automatic penalty for failure to pay the February dues, and not an acknowledgment that there had been a resignation. . There is little basis for such a contention because each employee was given a [_ copy of the Union’s Constitution and Bylaws at the time that he joined the Union.

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"?

BROOKS v. NATIONAL LABOR RELATIONS BOARD. No. 21. Argued October 18, 1954. Decided December 6, 1954. Erwin Lerten argued the cause for petitioner. With him on the brief were Frederick A. Potruch and Henry S. Fraser. David P. Findling argued the cause for respondent. With him on the brief were Solicitor General Sobelofj, George J. Bott, Dominick L. Manoli, Fannie M. Boyls and William J. Avrutis. Henry S. Fraser filed a brief for the Genesee Foundry Co., Inc., as amicus curiae, urging reversal. A brief of amici curiae urging affirmance was filed by /. Albert Woll and Herbert S. Thatcher for the American Federation of Labor, and Arthur J. Goldberg and David E. Feller for the Congress of Industrial Organizations. Me. Justice Frankfurter delivered the opinion of the Court. The National Labor Relations Board conducted a representation election in petitioner’s Chrysler-Plymouth agency on April 12, 1951. District Lodge No. 727, International' Association of Machinists, won by a vote of eight to five, and the Labor Board certified it as the exclusive bargaining representative on April 20. A week after the election and the day before the certification, petitioner received a handwritten letter signed by nine of the 13 employees in the bargaining unit stating: “We, the undersigned majority of the employees ... are not in favor of being represented by Union Local No. 727 as a bargaining agent.” Relying on this letter and the decision of the Court of Appeals for the Sixth Circuit in Labor Board v. Vulcan Forging Co., 188 F. 2d 927, petitioner refused to bargain with the union. The Labor Board found, 98 N. L. R. B. 976, that petitioner had thereby committed an unfair labor practice in violation of §§ 8 (a)(1) and 8 (a)(5) of the amended National Labor Relations Act, 61 Stat. 140-141, 29 U. S. C. §§ 158 (a)(1), (a)(5), and the Court of Appeals for the Ninth Circuit enforced the Board’s order to bargain, 204 F. 2d 899. In view of the conflict between the Circuits, we granted certiorari, 347 U. S. 916. The issue before us is the duty of an employer toward a duly certified bargaining agent if, shortly after the election which resulted in the certification, the union has lost, without the employer’s fault, a majority of the employees from its membership. Under the original Wagner Act, the Labor Board was given the power to certify a union as the exclusive representative of the employees in a bargaining unit when it had determined, by election or “any other suitable method,” that the union commanded majority support. §9 (c), 49 Stat. 453. In exercising this authority the Board evolved a number of working rules, of which the following are relevant to our purpose: (a) A certification, if based on a Board-conducted election, must be honored for a “reasonable” period, ordinarily “one year,” in the absence of “unusual circumstances.” (b) “Unusual circumstances” were found in at least three situations: (1) the certified union dissolved or became defunct; (2) as a result of a schism, substantially all the members and officers of the certified union transferred their affiliation to a new local or international; (3) the size of the bargaining unit fluctuated radically within a short time. (c) Loss of majority support after the “reasonable” period could be questioned in two ways: (1) employer’s refusal to bargain, or (2) petition by a rival union for a new election. (d) If the initial election resulted in a majority for “no union,” the election — unlike a certification — did not bar a second election within a year. The Board uniformly found an unfair labor practice where, during the so-called “certification year,” an employer refused to bargain on the ground that the certified union no longer possessed a majority. While the courts in the main enforced the Board’s decisions, they did not commit themselves to one year as the determinate content of reasonableness. The Board and the courts proceeded along this line of reasoning: (a) In the political and business spheres, the choice of the voters in an election binds them for a fixed time. This promotes a sense of responsibility in the electorate and needed coherence in administration. These considerations are equally relevant to healthy labor relations. (b) Since an election is a solemn and costly occasion, conducted under safeguards to voluntary choice, revocation of authority should occur by a procedure no less solemn than that of the initial designation. A petition or a public meeting — in which those voting for and against unionism are disclosed to management, and in which the influences of mass psychology are present— is not comparable to the privacy and independence of the voting booth. (c) A union should be given ample time for carrying out its mandate on behalf of its members, and should not be under exigent pressure to produce hothouse results or be turned out. (d) It is scarcely conducive to bargaining in good faith for an employer to know that, if he dillydallies or subtly undermines, union strength may erode and thereby relieve him of his statutory duties at any time, while if he works conscientiously toward agreement, the rank and file may, at the last moment, repudiate their agent. (e) In situations, not wholly rare, where unions are competing, raiding and strife will be minimized if elections are not at the hazard of informal and short-term recall. Certain aspects of the Labor Board’s representation procedures came under scrutiny in the Congress that enacted the Taft-Hartley Act in 1947, 61 Stat. 136. Congress was mindful that, once employees had chosen a union, they could not vote to revoke its authority and refrain from union activities, while if they voted against having a union in the first place, the union could begin at once to agitate for a new election. The National Labor Relations Act was amended to provide that (a) employees could petition the Board for a decertification election, at which they would have an opportunity to choose no longer to be represented by a union, 61 Stat. 144, 29 U. S. C. § 159 (c) (1) (A) (ii); (b) an employer, if in doubt as to the majority claimed by a union without formal election or beset by the conflicting claims of rival unions, could likewise petition the Board for an election, 61 Stat. 144, 29 U. S. C. § 159 (c)(1)(B); (c) after a valid certification or decertification election had been conducted, the Board could not hold a second election in the same bargaining unit until a year had elapsed, 61 Stat. 144, 29 U. S. C. § 159 (c) (3); (d) Board certification could only be granted as the result of an election, 61 Stat. 144, 29 U. S. C. § 159 (c)(1), though an employer would presumably still be under a duty to bargain with an uncer-tified union that had a clear majority, see Labor Board v. Kobritz, 193 F. 2d 8 (C. A. 1st Cir.). The Board continued to apply its “one-year certification” rule after the Taft-Hartley Act came into force, except that even “unusual circumstances” no longer left the Board free to order an election where one had taken place within the preceding 12 months. Conflicting views became manifest in the Courts of Appeals when the Board sought to enforce orders based on refusal to bargain in violation of its rule. Some Circuits sanctioned the Board’s position. The Court of Appeals for the Sixth Circuit denied enforcement. The Court of Appeals for the Third Circuit held that a “reasonable” period depended on the facts of the particular case. The issue is open here. No case touching the problem has directly presented it. In Franks Bros. Co. v. Labor Board, 321 U. S. 702, we held that where a union’s majority was dissipated after an employer’s unfair labor practice in refusing to bargain, the Board could appropriately find that such conduct had undermined the prestige of the union and require the employer to bargain with it for a reasonable period despite the loss of majority. And in Labor Board v. Mexia Textile Mills, Inc., 339 U. S. 563, we held that a claim of an intervening loss of majority was no defense to a proceeding for enforcement of an order to cease and desist from certain unfair labor practices. Petitioner contends that whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain. In effect, he seeks to vindicate the rights of his employees to select their bargaining representative. If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Although the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board; they do not justify employer self-help or judicial intervention. The underlying purpose of this statute is industrial peace. To allow employers to rely on employees’ rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it. Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections, with a view of furthering industrial stability and with due regard to administrative prudence. We find wanting the arguments against these controlling considerations. In placing a nonconsenting minority under the bargaining responsibility of an agency selected by a majority of the workers, Congress has discarded common-law doctrines of agency. It is contended that since a bargaining agency may be ascertained by methods less formal than a supervised election, informal repudiation should also be sanctioned where decertification by another election is precluded. This is to make situations that are different appear the same. Finally, it is not within the power of this Court to require the Board, as is suggested, to relieve a small employer, like the one involved in this case, of the duty that may be exacted from an enterprise with many employees. To be sure, what we have said has special pertinence only to the period during which a second election is impossible. But the Board’s view that the one-year period should run from the date of certification rather than the date of election seems within the allowable area of the Board’s discretion in carrying out congressional policy. See Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 192-197; Labor Board v. Seven-Up Bottling Co., 344 U. S. 344. Otherwise, encouragement would be given to management or a rival union to delay certification by spurious objections to the conduct of an election and thereby diminish the duration of the duty to bargain. Furthermore, the Board has ruled that one year after certification the employer can ask for an election or, if he has fair doubts about the union’s continuing majority, he may refuse to bargain further with it. This, too, is a matter appropriately determined by the Board’s administrative authority. We conclude that the judgment of the Court of Appeals enforcing the Board’s order must be Affirmed E. g., Kimberly-Clark Corp., 61 N. L. R. B. 90. But see Trackson Co., 56 N. L. R. B. 917. The cases in which the Board found the “unusual circumstances” were all representation cases in which a rival union sought a new election less than a year after certification. Public Service Electric & Gas Co., 59 N. L. R. B. 325; cf. Nashville Bridge Co., 49 N. L. R. B. 629. Brightwater Paper Co., 54 N. L. R. B. 1102; Carson Pirie Scott & Co., 69 N. L. R. B. 935; cf. Great Lakes Carbon Corp., 44 N. L. R. B. 70. See Westinghouse Electric & Mfg. Co., 38 N. L. R. B. 404, 409. In Tabardrey Mfg. Co., 51 N. L. R. B. 246, the Board refused to conduct an election where there was no rival union and the employees were dissatisfied with their certified agent. E. g., Labor Board v. Century Oxford Mfg. Cory., 140 F. 2d 541 (C. A. 2d Cir.) (six weeks); Labor Board v. Botany Worsted Mills, 133 F. 2d 876 (C. A. 3d Cir.) (repudiation one week after election, refusal to bargain three months after certification). Contra: Labor Board v. Inter-City Advertising Co., 154 F. 2d 244 (C. A. 4th Cir.). Committee reports and controlling floor statements show an awareness of the Board’s prior practice but afford no guidance for solution of our problem. The Senate Report declared: “In order to impress upon employees the solemnity of their choice, when the Government goes to the expense of conducting a secret ballot, the bill also provides that elections in any given unit may not be held more frequently than once a year.” S. Rep. No. 105, 80th Cong., 1st Sess. 12. And further, “At present, if the union loses, it may on presentation of additional membership cards secure another election within a short time, but if it wins its majority cannot be challenged for a year.” Id., at 25. And Senator Taft, the authoritative expounder of his measure, does not give us much more help: “The bill also provides that elections shall be held only once a year, so that there shall not be a constant stirring up of excitement by continual elections. The men choose a bargaining agent for 1 year. He remains the bargaining agent until the end of that year.” 93 Cong. Ree. 3838. The House decided to reverse the practice under the Wagner Act by inserting a provision which would have limited representation elections to 12-month intervals but permitted decertification elections at any time. It did so as an expression of the prevailing congressional mood to assure to workers freedom from union affiliation as well as the right to join one. This provision was rejected in Conference. E. g., Globe Automatic Sprinkler Co., 95 N. L. R. B. 253; see Celanese Corp. of America, 95 N. L. R. B. 664, 672-674. Both before and after the Taft-Hartley Act, the Board and the courts did not apply the rule to a collective bargaining relationship established other than as the result of a certification election. E. g., Joe Hearin, 66 N. L. R. B. 1276 (card-check); Labor Board v. Mayer, 196 F. 2d 286 (C. A. 5th Cir.) (card-check); Squirrel Brand Co., 104 N. L. R. B. 289 (order to bargain). For example, in Swift & Co., 94 N. L. R. B. 917, the Board, while applying the exception to a schism that occurred within 7 months of certification, did not in fact direct an election until 17 months had passed. See also Fedders-Quigan Corp., 88 N. L. R. B. 512. E. g., Labor Board v. Brooks, 204 F. 2d 899 (C. A. 9th Cir.); cf. Labor Board v. Sanson Hosiery Mills, Inc., 195 F. 2d 350 (C. A. 5th Cir.); see Labor Board v. Geraldine Novelty Co., 173 F. 2d 14, 16-17 (C. A. 2d Cir.). Labor Board v. Vulcan Forging Co., 188 F. 2d 927 (five weeks); Mid-Continent Petroleum Corp. v. Labor Board, 204 F. 2d 613 (two months). Labor Board v. Globe Automatic Sprinkler Co., 199 F. 2d 64 (refusal to bargain after 49 weeks not an unfair labor practice). See Hughes Tool Co., 104 N. L. R. B. 318; cf. Labor Board v. Clarostat Mfg. Co., 216 F. 2d 525 (C. A. 1st Cir.). See Henry Heide, Inc., 107 N. L. R. B., No. 258 (claim of loss of majority but no actual evidence); cf. Borden Co., 108 N. L. R. B., No. 116; Telegraph Publishing Co., 102 N. L. R. B. 1173. In Wilson-Oldsmobile, 110 N. L. R. B., No. 74, the Board has applied new jurisdictional yardsticks which would place this case, if now brought, outside them. See Whitney’s, 81 N. L. R. B. 75; cf. Ny-Lint Tool & Mfg. Co., 77 N. L. R. B. 642. Celanese Corp. of America, 95 N. L. R. B. 664. The Board has on several occasions intimated that even after the certification year has passed, the better practice is for an employer with doubts to keep bargaining and petition the Board for a new election or other relief. Id., at 674; United States Gypsum Co., 90 N. L. R. B. 964, 966-968; see also J. P. O’Neil Lumber Co., 94 N. L. R..B. 1299.

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?

Arnold SNYDER, Plaintiff-Appellee, and Irene Snyder; Pennsylvania Association Manufacturing Group, Plaintiffs, v. Robert D. RIDENOUR, Defendant-Appellant, and Ivory, Inc., d/b/a Federal Systems, an Indiana corporation; Rose Marie Avery, Defendants. No. 88-2516. United States Court of Appeals, Fourth Circuit. Argued Feb. 8, 1989. Decided Nov. 24, 1989. David Warren Skeen (Wright, Constable & Skeen, Phillips L. Goldsborough, III, Raymond G. Mullady, Jr., Smith, Somer-ville & Case, on brief), for defendant-appellant. Robert Lee Hanley, Jr. (J. Earle Plum-hoff, Nolan, Plumhoff & Williams, Chtd., on brief), for plaintiff-appellee. Before RUSSELL, WIDENER and HALL, Circuit Judges. WIDENER, Circuit Judge: Appellant Robert Ridenour appeals from a $9,000,000 verdict awarded the appellee, Arnold Snyder, in a personal injury action stemming from a May 19, 1986 automobile accident in Indiana. We find no merit in Ridenour’s contentions, and we affirm. At the time of the accident, Snyder was a passenger in a car driven by Ridenour. Both Snyder and Ridenour were employees of Luskin’s, Inc., and were acting within the scope of their employment when Riden-our’s vehicle collided with a tractor-trailer owned by Ivory, Inc., and driven by Rose Marie Avery. Snyder was seriously injured in the accident and as a result is a paraplegic. Snyder, a Maryland resident and an employee of Luskin’s, a Maryland corporation, filed a claim under Maryland’s Workers’ Compensation Act. Ridenour, who was living in Indiana at the time of the accident, filed a claim under the Indiana Workers’ Compensation Act. On July 18, 1986, Snyder filed this action based on diversity of citizenship against Avery and Ivory in the U.S. District Court for the District of Maryland. Snyder later filed an amended complaint, naming Ridenour as an additional defendant. The parties filed various pretrial motions, which the district judge referred to a magistrate for a report and recommendations. Among these motions were two summary judgment motions filed by Ridenour. One of these motions sought summary judgment against Snyder’s claims against Ridenour on the grounds that Indiana’s Workers’ Compensation Act bars suits between co-employees for accidents arising out of and in the course of employment. Ridenour also moved for summary judgment on a cross-claim brought by defendants Avery and Ivory seeking indemnification and contribution for any damages. In this motion, Ridenour urged the court to find that Indiana continues to adhere to the doctrine of joint and several liability, despite adoption of a comparative negligence statute. The magistrate recommended that Riden-our’s summary judgment motion in defense against Snyder’s claims be denied because the paramount interests of the State of Maryland compelled the application of Maryland law, and Maryland workers’ compensation law does not bar suits among co-employees for injuries arising out of and in the course of employment. The magistrate recognized that since jurisdiction was based on diversity, the federal court must apply the conflict of laws rules of the forum state. In tort cases, Maryland follows the doctrine of lex loci delicti; in workers’ compensation cases, however, Maryland applies the law of the forum. Thus, the magistrate concluded that while Indiana law should apply in determining liability for the accident, it should not apply to bar Snyder’s suit against Ridenour. The magistrate also recommended that Ridenour’s motion for summary judgment as to Avery and Ivory’s cross-claim for contribution be granted, stating: “Although Indiana is a comparative negligence state, it continues to subscribe to the doctrine of joint and several liability.” The magistrate stated, however, that one of Ridenour’s cross-claims against Avery and Ivory, which contained similar claims for contribution and indemnification, should be denied on summary judgment, also. When the magistrate’s report and recommendations were filed with the court, a copy was mailed, via a letter from the magistrate and signed by the clerk, to counsel for each party along with this notice: A copy of the Report and Recommendation of the United States Magistrate is enclosed. Any objections you wish to make thereto must be made in accordance with Federal Rule of Civil Procedure 72 (a copy of which is enclosed). NOTE: Failure to file timely objections to the findings and recommendations set forth in this Report and Recommendation may result in waiver of your right to appeal from a judgment of this court based on such findings and recommendations. Said objections must be received no later than February 23, 1988. Attached to the letter from the clerk was a copy of Federal Rule of Civil Procedure 72, which states in pertinent part: Within ten (10) days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. Defendants Avery and Ivory filed timely objections to portions of the magistrate’s report; Ridenour did not file any objections. The district court subsequently affirmed the magistrate’s report and recommendations. The case proceeded to trial. The jury returned a special verdict, finding defendants Avery and Ivory sixty percent at fault and Ridenour forty percent at fault. The jury awarded its verdict on damages in the amount of $9,000,000, which was apportioned in another part of the verdict. Avery and Ivory did not appeal and have settled with Snyder. Ridenour filed a timely notice of appeal. Ridenour argues that the lower court committed four reversible errors in the case below. Ridenour contends that the court erred in failing to apply Indiana law barring a co-employee’s suit and in concluding that the doctrine of joint and several liability survived the adoption of the Indiana comparative negligence statute. He also contends that the court erred in giving the jury the “sudden emergency” instruction and that the verdict for non-economic damages in excess of $4,300,000 was excessive and not based on sufficient evidence. Although we believe the district court’s decision is correct on the merits of the case, we do not reach the merits of the first two issues because Ridenour waived any right of appeal on these issues by failing to file timely objections to the magistrate’s report with the district court. In United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed.2d 352 (1984), we held that a party who failed to file written objections to a magistrate’s report within the 10-day period allotted by the Magistrate’s Act and Rule 72 had waived his right to appellate review of his claims. Id. at 94. See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 466 (1985); United States v. Walters, 638 F.2d 947, 949 (6th Cir.1981); McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1700, 68 L.Ed.2d 197 (1981); Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982) (en banc) (Unit B), and Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980). Ridenour concedes that under the Supreme Court’s decision in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), a party’s failure to object to a magistrate’s report may result in waiver of his right to appeal, but only if clear notice is given of the mandatory nature of the filing and of the consequences of failing to file objections. The notice attached to the magistrate’s report in Thomas stated: ANY OBJECTIONS to the Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court’s order.... By comparison, Ridenour’s notice stated that failure to file objections within the 10-day period “may result in waiver of your rights.” Ridenour argues that this notice speaks in permissive terms and, therefore, does not comply with the standard of Thomas. We do not agree. The notice given Ri-denour states that any objections must be filed by a given date and that failure to do so may waive his right to appeal. We view the difference in the language used, “waives” and “may result in waiver,” as insignificant. Carr v. Hutto, 737 F.2d 433 (4th Cir.1984) (per curiam), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985), so held. Carr also held that the difference between “may serve” and “had 10 days to file” is of no legal consequence. Accord: Park Motor Mart, supra, at 604. Since Ridenour did not object to the magistrate’s recommendation, he has waived his right to appeal the merits of the court's order adopting the findings that Indiana’s workers’ compensation law should not apply or that joint and several liability survives in Indiana. Despite his failure to object to the magistrate’s report, Ridenour contends that this court should reach the merits of these issues under the “fundamental error doctrine.” Under this doctrine the court will consider issues raised for the first time on appeal “if the error is ‘plain’ and if our refusal to consider such would result in the denial of fundamental justice.” Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir.1985). However, such error must be so serious and flagrant that it goes to the very integrity of the trial. 770 F.2d at 1271. That is not the case here. Thus, we affirm the district court’s ruling on these issues. We also see no merit in Ridenour’s remaining two arguments. Ample evidence was presented at trial to support the giving of the sudden emergency instruction offered by the defendants Avery and Ivory. See Taylor v. Todd, 439 N.E.2d 190, 193 (Ind.App.1982). We also believe that the amount of non-economic damages awarded by the jury is supported by substantial evidence in the record. Accordingly, the judgment of the district court is AFFIRMED. . The district judge did not actually enter the order affirming the magistrate’s recommendations until February 29, 1989, three days after the jury rendered its verdict in the case, but before the court entered final judgment in this case. . As we observed earlier in this opinion, we do not see that the opinion of the district court in adopting the magistrate’s report is incorrect on the merits, for application of Maryland workers’ compensation law to a resident of Maryland who was injured while employed by a Maryland company, although the accident may have occurred in Indiana, is not a startling proposition. And not filing objections to the magistrate’s report was apparently not inadvertent. Riden-our, for example, in response to Ivory and Avery's objection to the magistrate’s report, filed a studious memorandum which, indeed, urged adoption of the magistrate’s holding that joint and several liability of tort feasors existed in Indiana, although Indiana had adopted the rule of comparative fault. It occurs to us that the objection now made to the magistrate’s report may well be an afterthought, at best, by new counsel.

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

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

William D. EVANS, Plaintiff-Appellee, v. James H. DETLEFSEN, Defendant-Appellant. Nos. 86-5754, 86-6024. United States Court of Appeals, Sixth Circuit. Argued Aug. 14, 1987. Decided Sept. 15, 1988. James L. Charles, William L. Parker, Jr., William L. Parker, Jr. (argued) Legal Ad-visor MPD, Nashville, Term., for defendant-appellant. Ronald McNutt (argued), Richard H. Din-kins, Richard Dinkins, Nashville, Tenn., for plaintiff-appellee. Before LIVELY, MILBURN and RYAN, Circuit Judges. RYAN, Circuit Judge. This is a case about making a federal case out of a traffic ticket. After the traffic court dismissed the ticket, the ticketed driver sued the ticketing police officer for violating the driver’s first, fourth, and fourteenth amendment federal constitutional rights, and for assault and battery, false arrest, malicious prosecution, outrageous conduct, and invasion of privacy. The ease is, among other things, an eloquent testimonial to one of the reasons the federal trial and appellate courts are unable to find sufficient hours in the day to consider the kind of litigation for which they were created. That reality was not lost on the jury in this case. After being instructed by the trial court at the close of all the proofs that it must find the defendant liable for violating the plaintiffs first, fourth, and fourteenth amendment rights, and for false arrest and malicious prosecution, the jurors returned a verdict in the aggregate sum of $15,002. The trial court then awarded the plaintiff attorney fees of $22,206.15. The central issue in the case is whether the district court erred in holding that, as a matter of law, the defendant police officer had no probable cause to arrest the plaintiff for a traffic violation. We hold that it did, and reverse. I. The Facts A detailed recitation of the facts is unavoidable if our resolution of the stated issue is to be fully understood. We take the facts from the testimony of the principals, indicating the differences in their respective versions where they are important. Just before plaintiff Evans and defendant Detlefsen first met, Officer Detlefsen, a member of the Nashville Police Department, had been working a radar post on Broadmoor Road in Nashville, Tennessee, and had just stopped a speeder in a pickup truck. The speeder did not pull off into a parking lot as drivers might ordinarily do under the circumstances, but stopped in his tracks, on the road, blocking traffic, and got out of his truck to talk to Detlefsen. Detlefsen, hatless, got out of his unmarked patrol car to meet the driver midway between their two vehicles. Detlefsen issued two tickets to the driver, one for speeding and one for not having a rear bumper on the truck. Meanwhile, plaintiff Evans, a retired commercial airline pilot, was caught in the slow moving traffic behind Detlefsen and the pickup truck. The heavy traffic was slowed significantly by the need to form one lane to pass the two vehicles parked in the right lane. Evans was in Nashville on his way to an apartment building he owned in Smyrna, Tennessee, where he kept an apartment. He testified that after a long delay in the sluggish traffic on Broadmoor Road, he pulled into the parking lot of the Third National Bank on the corner of Broadmoor and Dickerson for the purpose of going into the bank and opening an account. However, as soon as he pulled into the lot, he saw that the bank’s window shades were down and the bank was closed. Only then did he realize that it was 4:30 p.m., not 3:30 p.m., as he had supposed, because he had forgotten about the recent switch to daylight savings time. The bank’s drive-in windows on the opposite side of the building were open, but he gave no thought to using them because one does not go to a bank’s drive-in window to open an account. Evans told the court and jury that as he sat in his car in the parking lot, he looked over to Broadmoor Road and there saw the two vehicles that were causing the traffic jam on Broadmoor. Evans did not realize at this point that Detlefsen was a police officer issuing a ticket. All he saw was a white car behind a pickup truck, and a bald-headed man in a dark shirt talking to another man. Leaping to the conclusion that these were a couple of “good ole boys,” as Evans put it, and that the one “behind got out to say something ... and they got into one of these things,” he sternly informed them, in a commanding voice, that they were blocking traffic. He then pulled through the bank parking lot, exiting on Dickerson Road, turned right, drove a short distance, and then turned off into a restaurant parking lot. He parked, went inside, and ordered some soup. Detlefsen testified that he did not see Evans until he heard someone yell “son of a bitch.” He looked up and immediately saw Evans, directly across from him in the bank parking lot, in time to hear Evans reprimand him for blocking traffic. Angered by the insult, and quickly leaping to the conclusion that the man in the Cadillac was cutting through the parking lot to avoid the traffic light just ahead at the Dickerson intersection, he watched the Cadillac pull out of the parking lot and turn north on Dickerson. He had almost finished his business with the pickup driver, and resolved to catch up with the Cadillac and ticket the driver for driving across private property to avoid a traffic signal on Broadmoor and Dickerson. Accordingly, he quickly finished his business with the pickup driver, turned up Dickerson, found the Cadillac in the restaurant parking lot, and went inside. Spotting Evans, Detlefsen asked him if he were the driver of the Cadillac. Evans said he was. Detlefsen asked what Evans meant by calling him a son of a bitch. Evans denied having made any such remark. According to Detlefsen, he next asked Evans why he cut across the bank parking lot, and Evans said only that Det-lefsen had been blocking traffic so he had to go around. According to Evans, Detlef-sen immediately asked to see Evans’ driver’s license, and said he was going to take him downtown, but would not respond to Evans’ repeated requests to be told what the charges were. Despite disagreement about the sequence of the questions and answers, Evans and Detlefsen essentially agree about what was said and not said in the restaurant. Importantly, Evans said nothing about entering the bank parking lot for the purpose of going to the bank. There followed some pushing and shoving and hostility on both sides. The restaurant manager prevailed upon Detlefsen to wait outside while Evans finished his soup, but Detlefsen returned no more than twenty minutes later and became aggravated at the sight of Evans speaking to another restaurant patron, attempting to take down a name and address so the patron could be a witness to Detlefsen’s abusive behavior. Voices were raised. Detlefsen apparently unbuttoned his holster and rested a hand on his pistol in a way Evans found threatening. Evans called upon people in the restaurant to be witnesses for him, several of whom later were. Detlefsen prevented Evans from taking down any names or addresses, finally hustling Evans outside by holding his arm, pausing only long enough for Evans to pay his bill. Outside, Evans was instructed to produce his car registration which showed an address in Smyrna, Tennessee. His driver’s license showed an address in Colorado. Using the Colorado address, Detlefsen issued a ticket to Evans for crossing private property to avoid a traffic signal. He then decided that Evans’ real residence was Tennessee and, accordingly, issued him a second ticket for not having a valid Tennessee driver’s license. Evans sought to explain that he lived in both Colorado and Tennessee and could have only one driver’s license, but Detlefsen was not dissuaded by Evans’ argument. Next, having determined to his satisfaction that Evans was not a Nashville resident, Detlefsen concluded that Evans was eligible to be taken into custody under the Nashville Police Department policy then in effect. A county resident would simply have received tickets and been free to go. Evans, however, was searched, handcuffed, and driven to the police station. There, Evans refused to admit guilt and pay the $25 fine, and therefore had to wait several hours at the station until a lawyer arrived with exactly $70 in cash to post bail. Evans eventually appeared before a judge who dismissed both charges. Before the judge, Evans contended, for the first time, that he had gone into the bank parking lot to open an account, and he presented, in support of this explanation, a receipt from the bank dated May 6, three days after the arrest. He said he had returned three days later, when the bank was open, and then completed the errand that originally took him to the bank. Apparently the judge was also convinced by Evans’ argument that he should be considered a nonresident for purposes of Tennessee’s driver’s license law. Thereafter Evans filed this civil rights action pursuant to 42 U.S.C. § 1983, claiming alleged violations of the first, fourth, and fourteenth amendments, and state claims for false arrest, malicious prosecution, assault and battery, outrageous conduct, invasion of privacy, and related claims not here relevant. After all the evidence had been presented at trial, both sides sought directed verdicts. The district court partially granted plaintiff Evans’ motion, holding that because, as a matter of law, Detlefsen lacked probable cause for an arrest, liability had been established on all three constitutional theories and for false arrest and malicious prosecution, leaving for jury determination only the question of damages. The court also submitted to the jury plaintiff’s claims of assault and battery, outrageous conduct, and invasion of privacy. The jury concluded that liability for assault and battery, outrageous conduct, and invasion of privacy had also been established, and awarded a total of $15,002 in damages, as follows: $3,000 compensatory damages for the constitutional violations $3,000 compensatory damages for false arrest $3,000 compensatory damages for malicious prosecution $1 nominal damages for assault $1 nominal damages for battery $3,000 compensatory damages for outrageous conduct $3,000 compensatory damages for invasion of privacy The jury was polled and reaffirmed its verdict. The defendant’s motions for judgment notwithstanding the verdict and for a new trial were denied. Additionally, plaintiff, as a prevailing party, sought attorney’s fees under 42 U.S.C. § 1988. Defendant opposed the fees only to the extent that the plaintiff sought more than a reasonable hourly rate multiplied by the number of hours actually expended. The district court reduced the amount requested and awarded $22,206.15. Detlefsen now appeals the jury verdict and the attorney fee award as well. II. The Issues Appellant has raised a number of issues on appeal but, given our disposition of the first of them, they are reduced to three: 1. Whether the district court erred in holding that, as a matter of law, Det-lefsen had no probable cause for concluding that Evans had committed an offense and, in consequence thereof, granting a partial directed verdict on the first, fourth, and fourteenth amendment federal constitutional claims and on the false arrest and malicious prosecution state claims, and 2. Whether there was sufficient evidence of outrageous conduct and invasion of privacy to warrant submitting those claims to the jury, and 3. Whether the district court erred in the award of attorney fees. III. Probable Cause The district court directed a verdict for Evans on the central issue in the case: whether, at the time he arrested Evans, Detlefsen had probable cause to believe Evans had committed the offense of crossing private property to avoid obeying a traffic regulation, in violation of the Nashville traffic ordinance, § 27-1-118. The standard guiding a federal court in passing upon a motion for directed verdict on pendant Tennessee claims, in this case false arrest and malicious prosecution, has been described by this court as follows: Tennessee courts require that a trial court presented with a motion for a directed verdict must take the strongest legitimate view of the evidence in favor of the opponent of the motion, allow all reasonable inferences in his or her favor, discard all countervailing evidence, and deny the motion where there is any doubt as to the conclusions to be drawn from the whole evidence. A verdict should not be directed during, or after, trial except where a reasonable mind could draw but one conclusion. Holmes v. Wilson, 551 S.W.2d 682, 685 (Tenn.1977). See also Sauls v. Evans, 635 S.W.3d 377, 379 (Tenn.1982); Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn.1980). Arms v. State Farm Fire & Casualty Co., 731 F.2d 1245, 1248-49 (6th Cir.1984). The same “but one reasonable conclusion” standard applies likewise when passing upon a directed verdict on a federal claim, Brady v. Southern Railway Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). The standard binding upon this court in passing upon the correctness of the district court’s ruling on the directed verdict motion is the same as that which guides a trial court. In both the Tennessee and federal court systems, an appellate court reviewing a trial court’s action on a directed verdict motion applies the same standard as used in the trial court. See Holmes, 552 S.W. 2d at 685; Gootee, 712 F.2d at 1062. Arms, 731 F.2d at 1249. In the context of determining the constitutionality of an arrest, the Supreme Court has said: When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would “warrant a man of reasonable caution in the belief” that an offense has been committed. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964) (quoting Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The inferences and probabilities suggested by common sense and law enforcement experience are to be taken into account in assessing the facts known to the arresting officer, and: [T]he evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The actual motives of the arresting officer are irrelevant if the objective basis for probable cause is present: [T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). Detlefsen argued that he had probable cause to arrest Evans because the objective indicia of a violation of the Nashville ordinance forbidding cutting across private property to avoid a traffic regulation were present. The ordinance provides: Sec. 27-1-118. Cutting through private property. The driver or operator of any vehicle shall not drive upon or through any private property or upon or through any driveway not a part of the street or roadway for the purpose of avoiding obedience to any traffic regulation or ordinance of the metropolitan government. (Bill No. 72-211, 6-20-72). At argument on the directed verdict motion, the court suggested that there were a number of failings in the defendant’s proof with regard to the facts known to Officer Detlefsen that would support a lawful arrest under the ordinance. The court pointed out, sua sponte, that Detlefsen had not actually seen Evans pull off Broadmoor Road onto the private property, and had not seen him at all until Evans stopped his vehicle in the bank parking lot. The court also stressed that there was no evidence that Evans or Detlefsen looked at the traffic control signal, that the traffic light at the relevant time was actually red, that the light was lawfully erected, or that it was functioning. None of these failings, however, were explicitly relied upon by the district court in granting, in part, the plaintiffs motion for a directed verdict. Instead, the court stated: The Court finds in this case that the ordinance relied upon, upon which the citation issued, that is 27-1-118, does not in and of itself create an offense under the laws of Metropolitan Government Nashville Davidson County, Tennessee. The Court construes that applicable ordinance as requiring that there be a showing that driving through or upon any private property or through a driveway not a part of the street or roadway, must be shown to have occurred for the purpose of avoiding obedience to any traffic regulation or ordinance of the Metropolitan Government. In this record, there is just [an] absolute void of any evidence of any traffic regulation or ordinance of the Metropolitan Government under the circumstances required. And accordingly, the Court holds that given the facts and circumstances within the defendant’s knowledge as reflected in the evidence, the evidence being viewed in the light most favorable to the defendant as opponent of the motion, simply was not sufficient to warrant a prudent person, that is a reasonably competent police officer charged with enforcing the traffic laws of the Municipal Government, that is Nashville Davidson County Metropolitan Government in believing the plaintiff had committed an offense. To hold otherwise in the absence of any evidence of the underlying traffic regulation or ordinance of the municipal government, of which [t]here is no evidence in this record, would present an issue to the jury upon which they would simply have to speculate or guess. Thus, the district court’s decision to grant the plaintiff’s motion for a directed verdict on the probable cause issue turned not upon an assessment of the facts available to the officer at the time of the arrest and the reasonable interpretation an officer of ordinary caution might place upon them, but upon the conclusion that the defendant lacked probable cause to make the arrest because he failed to prove that there is a Nashville ordinance on the subject of traffic signal control devices, whose command Evans cut across private property to avoid. The district court’s reading of the cutting across private property ordinance as having a cross-reference that required proof that Nashville had an ordinance providing that a traffic control signal light is a regulation and that a red light requires traffic to stop and, apparently, authorizing the erection of a traffic control light signal at the corner of Broadmoor and Dickerson was, to say the least, a hypertechnical interpretation of the ordinance, and one that misdirected the court’s focus of inquiry. The district court read the ordinance as though the issue had been the sufficiency of proof that Evans had violated a Nashville traffic control signal ordinance. The issue, however, was simply whether Officer Detlefsen, at the time he arrested Evans, had probable cause to conclude that the Nashville ordinance relating to cutting across private property to avoid a traffic regulation had been violated. The crucial question was “whether the facts available to the officer [] at the moment of the arrest would warrant a man of reasonable caution in the belief that an offense had been committed.” Beck v. Ohio, 379 U.S. at 96, 85 S.Ct. at 228. There was no question in the case whether there was a traffic light at the corner of Broadmoor and Dickerson. (Although, during argument on the directed verdict motion, the court asked: “How do we know the traffic light is lawfully erected? What authority ... who decides where traffic lights are established?”). If Detlefsen had sought to prosecute Evans for a traffic violation, the court would have been correct in requiring proof of the terms of the charged ordinance. But here there was no ordinance violation being prosecuted, no question whether Evans drove across private property, and no question whether there was a traffic regulation device, a “red light,” at Broadmoor and Dickerson. There was ample evidence in the record on all of those points and no issue was made of any of them at the trial. The entire focus of the inquiry before the court on the directed verdict motion should have been whether there were sufficient facts available to Detlefsen to justify his conclusion that Evans had driven through the bank parking lot to avoid the traffic light. On this, the evidence was in conflict. Because Evans never mentioned to Detlef-sen, on May 3, the planned visit to the bank, the one issue for the jury would have been whether it was objectively reasonable for Detlefsen to conclude that Evans had gone through the bank parking lot to avoid the traffic light, particularly when Evans’ own words (“you’re blocking traffic”) suggested he had gone through the lot to avoid the traffic jam caused by Detlefsen’s patrol car, and not for the purpose of entering the bank as he later stated. Evans concededly could have circumvented the blockage by merging into the left lane on Broadmoor and going through the intersection and the traffic light. Consequently, whether Evans, who incontrovertibly drove across the private property, did so to avoid the traffic light, was a debatable point. Instead of letting the jury ponder this question, however, the district court decided that, as a matter of law, there was nothing for the jury to decide. It was the district court’s view that a “reasonably competent police officer,” with the “facts and circumstances within the defendant’s knowledge as reflected in the evidence,” could not have believed Evans had committed an offense. The reason for this, the court reasoned, is that even though Detlefsen knew it was illegal to cut through private property to avoid a traffic regulation, and even though there were facts from which Detlefsen could have surmised that Evans drove through the parking lot to avoid the traffic light, Detlefsen failed to prove that there is a traffic regulation or ordinance in Nashville requiring obedience to traffic signals. In the absence of any clue as to whether Officer Detlefsen knew that Nashville law requires obedience to traffic lights, the jury would, in the court’s words, “simply have to speculate or guess” about whether Detlefsen had probable cause to believe an offense had been committed. We think the district court erred in failing to limit its ruling to a determination whether the facts and circumstances known to the defendant at the moment of the arrest would reasonably have been “construed by those versed in the field of law enforcement” as pointing to the conclusion that the plaintiff had cut across the bank parking lot to avoid the traffic signal at Broadmoor and Dickerson. Since our disagreement with the district court’s ruling on the probable cause aspect of plaintiff’s directed verdict motion rests upon our conclusion that the court failed to consider the correct criteria, we could order the matter remanded to the district court for reconsideration of the issue. We think, however, that a wiser utilization of judicial resources and appropriate concern for the burdens upon the parties if the issue were remanded for redetermination suggest that we decide whether Evans was entitled to a directed verdict on the probable cause issue, particularly since we have the entire record of the lower court proceedings before us. Careful consideration of the record evidence of the facts available to Officer Det-lefsen at the time of the arrest, as we have detailed them, “weighed not in terms of library analysis by scholars but as understood by those versed in the field of law enforcement,” Cortez, 449 U.S. at 418, 101 S.Ct. at 695, and tested against the proper standard for deciding a directed verdict motion, does not warrant the conclusion that all reasonable minds must agree that Detlefsen was without probable cause to arrest Evans. There was, at the very least, sufficient evidence in conflict on the point to warrant submitting the issue to the jury. We must, therefore, set aside the jury’s damage award on the federal constitutional claims, and the pendant state false arrest and malicious prosecution claims, since the district court’s ruling directed verdicts of liability on those claims. IV. Outrageous Conduct and Invasion of Privacy Motions for directed verdicts were made by both sides at the close of the case on the outrageous conduct and invasion of privacy claims. The motions were denied and those claims were submitted to the jury. As we have indicated, verdicts of $3,000 on each of those claims were returned. Defendant now appeals the denial of his directed verdict and judgment notwithstanding the verdict motions, claiming that there was insufficient evidence of outrageous conduct to support the jury’s verdict, and that no invasion of privacy could have taken place since the asserted “invasion” occurred in a public place. We address those arguments seriatim. A. Outrageous Conduct Defendant argues that evidence of his conduct, even when assessed in the light most favorable to the plaintiff, was simply not outrageous enough to fit the definition of the tort of outrageous conduct under Tennessee law. That definition, as articulated by the Tennessee Supreme Court, is that the conduct must be [s]o outrageous in character, and so extreme in degree as to be beyond the pale of decency, and to be regarded as atrocious and utterly intolerable in a civilized society ... [and to be actionable] must result in serious mental injury. Swallows v. Western Electric Co., 543 S.W.2d 581, 582 (Tenn.1976). In Moorhead v. J.C. Penney Co., Inc., 555 S.W.2d 713, 718 (Tenn.1977), the court observed that whether conduct is sufficiently outrageous to be actionable in tort is ordinarily a question for the jury: The standards here applicable, i.e., “extreme and outrageous,” and “not tolerable in civilized society,” are, like negligence, and other variable standards which are based upon the common sense of the community, primarily for application by the jury. (Quoting Medlin v. Allied Investment Co., 398 S.W.2d 270 (Tenn.1966)). All of that notwithstanding, we test the correctness of the court’s denial of the defendant’s directed verdict and j.n.o.v. motions according to the standard defined by the Tennessee courts as discussed earlier with reference to the probable cause issue. To repeat, that standard is that “[a] verdict should not be directed during, or after, trial except where a reasonable mind could draw but one conclusion,” Arms, 731 F.2d at 1248. That single available reasonable conclusion, according to defendant, is that the conduct of Officer Detlefsen, as described by the plaintiff and his witnesses, is not, as a matter of law, sufficiently outrageous to be actionable under Tennessee law. We disagree. Evans’ testimony, and that of his witnesses, viewed in the light most favorable to the plaintiff, if believed, paint a picture of utterly intolerable conduct by Officer Detlefsen toward Evans that included personal vindictiveness, threats, intimidation, and verbal and physical abuse of the kind that no citizen in a civilized society charged with a minor traffic offense should have to suffer, particularly at the hands of a public servant. While we are neither prepared nor authorized to say whether the evidence of Officer Detlefsen’s conduct amounted to the tort of outrageous conduct, we are also unable to say that no reasonable juror would be justified in concluding that it was. Although we are troubled by the unintended but implicit message that may have been given the jury about the legal “outrageousness” of Officer Detlefsen’s conduct, when the trial court directed the jury to find him liable for violating the plaintiff’s federal constitutional rights and committing the torts of malicious prosecution and assault and battery, we cannot say, with any degree of reasonable certainty, that the court’s probable cause determination necessarily, or even probably, infected the jury’s outrageous conduct and invasion of privacy verdicts. After most careful consideration of the testimony and the law of outrageous conduct as recognized in Tennessee, we are satisfied that the evidence of Detlefsen’s abusive behavior towards Evans does not lead to the inescapable conclusion that no reasonable juror could find it tortiously outrageous within the meaning of that concept as defined by the Tennessee authorities cited. The issue was properly submitted to the jury. B. Invasion of Privacy Defendant claims to have been entitled to a directed verdict and judgment notwithstanding the verdict on the plaintiff’s invasion of privacy claim. It was pointed out in Beard v. Akzona, Inc., 517 F.Supp. 128 (E.D.Tenn.1981), that the tort of invasion of privacy has been recognized by the Tennessee courts, see Martin v. Senators, Inc., 220 Tenn. 465, 418 S.W.2d 660, 662-68 (1967); Langford v. Vanderbilt Univ., 199 Tenn. 389, 287 S.W.2d 32 (1956), and that “intrusion,” which is invading one’s physical solitude or seclusion, is one form of common law invasion of privacy. In the absence of Tennessee cases explicitly defining this form of invasion of privacy, we turn, as did the Beard Court, to the Restatement (Second) of Torts § 652B, for a definition. That section provides: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. See Martin, 418 S.W.2d at 663; Beard, 517 F.Supp. at 131. Defendant makes a brief and unelaborat-ed argument that because the asserted invasion occurred in a “public restaurant under the circumstances here,” there could have been no intrusion into Evans’ “solitude or seclusion,” as required under the facts of this case, for the tort of invasion of privacy. The short answer to the defendant’s argument is that the privacy which is invaded has to do with the type of interest involved and not the place where the invasion occurs. See Galella v. Onassis, 487 F.2d 986, 994-95 (2d Cir.1972), in which the defendant was found guilty of invasion of privacy although many of the intrusive acts took place in public places and on public streets. Although the place of the occurrence is relevant to a determination of the sufficiency of the evidence of intrusiveness, it is not determinative of whether an intrusion into one’s “solitude and seclusion” has occurred. Thus, the defendant’s “impossibility as a matter of law” argument is not well-taken. But, in all events, the jury’s $3,000 damage award for invasion of privacy must be vacated because we are required to set aside the district court’s determination that the defendant had no probable cause to arrest Evans. If the arrest was lawful in the sense that it was supported by probable cause, there can have been no invasion of privacy in effecting it. See Simons v. Montgomery County Police Officers, 762 F.2d 30, 33 (4th Cir.1985). In the event of a retrial, whether the arrest was lawful, that is, supported by probable cause, -will be a preliminary question of fact for the jury before it reaches, if it does, the invasion of privacy claim. V. Attorney Fees The defendant challenges on appeal the criteria considered by the district court in awarding attorney fees to the plaintiff. We decline to consider those arguments because we are required to set aside the award of attorney fees in light of our disposition of the probable cause issue and the verdicts flowing therefrom. The matter of appropriate attorney fees must be reconsidered by the district court if, after remand, the plaintiff prevails on the constitutional claims under § 1983. VI. The judgment for the plaintiff on the federal constitutional claims and the false arrest, malicious prosecution, and invasion of privacy pendant state claims is VACATED. The judgment on the jury verdict in favor of the plaintiff on the outrageous conduct claim is AFFIRMED. (No appeal has been taken from the assault and battery verdicts.) The case is REMANDED to the district court for disposition not inconsistent with this opinion, including a rede-termination of the attorney fee’s award.

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"?

ALLSTATE INSURANCE COMPANY, a foreign corporation, Plaintiff-Appellant, v. Keith HISELEY et al., Defendants-Appellees. No. 71-1721. United States Court of Appeals, Tenth Circuit. Sept. 8, 1972. James E. Poe, Tulsa, Okl. (Richard D. Gibbon, of Covington, Gibbon & Poe, Tulsa, Okl., on the brief), for plaintiff-appellant. Tom R. Mason, Muskogee, Okl. (Bonds, Matthews & Bonds, Joe R. Boatman, and Max D. Watkins, Muskogee, Okl., with him on the brief), for defendants-appellees. Before PHILLIPS, SETH and Mc-WILLIAMS, Circuit Judges. MCWILLIAMS, Circuit Judge. Allstate Insurance Company brought a declaratory judgment action seeking a declaration that neither of two automobile insurance policies issued by it were applicable to or afforded coverage for any of the named defendants with regard to the consequences of a two-car collision between a Chrysler and a Ford. The named defendants in the declaratory judgment proceeding were the several occupants of both the Chrysler and the Ford. Prior to the accident in question, Allstate had issued an automobile indemnity policy to Wanda Maher, the owner of the Chrysler. The other policy of insurance here involved had been issued by Allstate to one Tommie Hiseley, the father of Keith Hiseley, the latter being the driver of the Chrysler at the time when the Chrysler forced the Ford off the highway and into a ditch. Trial was to the court and resulted in a declaratory judgment that both policies of insurance were in force and effect at the time of the aforesaid collision and that no exclusionary provision of either policy had application. In thus holding, the trial court rejected the contention advanced by Allstate that neither policy of insurance was in force and effect because at the time of the collision Keith Hiseley, the driver of the Chrysler, did not have permission to drive from the named insured owner, Wanda Maher; and, alternatively, that coverage under both policies was expressly excluded under a clause in each that the policy did not apply to “bodily injury or property damage caused intentionally by or at the direction of the insured.” Allstate now appeals. In our disposition of the matter we shall accept as correct the trial court’s finding that Hiseley at the time of the collision was driving the Chrysler with the implied permission of Wanda Maher, the owner. In this regard our study of the record indicates that there is supporting evidence for such finding. However, in our view, the trial court’s further finding that “the evidence does not establish an intent to injure through the driving of the [Chrysler] automobile” is clearly erroneous and accordingly the judgment must be reversed. To demonstrate the correctness of our own conclusion, the operative facts must be fully developed. Wanda Maher, the owner of the Chrysler, gave her sixteen-year-old son, David, permission to drive the Chrysler from Warner, Oklahoma, to nearby Muskogee, the purpose of the trip being to enable David and a friend to see a drive-in movie. Instead, David and about five of his friends drove to Marvin’s Bar, located somewhere on the road to Muskogee, where all consumed some beer. Parked outside Marvin’s Bar was a Ford, which it later developed was driven by one Gary Alverson, one of the defendants in the declaratory judgment proceeding. As David Maher and his group were exiting Marvin’s Bar, one of their number, for no apparent reason other than his consumption of beer, proceeded to knock out a glass window of the unoccupied Ford. The Chrysler, with one Lester Leake, another defendant in the declaratory judgment action, at the wheel, was then driven eastward into Warner, stopping at the Gulf Cafe for coffee. In the meantime, Gary Alverson, and his friend, Finsel, exited Marvin’s Bar and noticed that the glass in their car had been broken. They then proceeded to drive eastward towards their home in Fort Smith, Arkansas. Alverson apparently also stopped at the Gulf Cafe in Warner to inquire about directions. In any event, he espied the parked Chrysler and, determining to his own satisfaction that it was an occupant of that car who had broken his window, he proceeded to throw a pop bottle through a window of the Chrysler. Alverson and his friend quickly departed the scene and continued their eastward trek towards Fort Smith. When David Maher and his group found that a window in the Chrysler had been broken, they for some reason suspected at once that the deed had been perpetrated by an occupant of the Ford and they determined to give pursuit. At this point, Lester Leake was driving, Keith Hiseley was in the middle of the front seat, and David Maher was in the front seat on the right-hand side. Driving at speeds over 100 miles per hour, the Leake-driven Chrysler soon overtook the Ford driven by Gary Alverson.' Then, over a distance of many miles, the Chrysler “bumped” or “rammed,” depending on the point of view of the particular witness, the rear end of the Ford. Leake testified that on several occasions Hiseley would “put his foot onto my foot, which was on the gas pedal, and then he stepped down on it to make me speed up, and then he took the steering wheel and ran me into their car.” The Ford eventually either slowed down, or stopped, to the end that the Chrysler went on ahead and came to a complete stop, with the occupants getting out of the Chrysler. The Ford then started up suddenly and passed the stopped Chrysler. Keith Hiseley then took the keys from Leake, by force, and assumed control of the Chrysler. With Hiseley driving, Leake now seated in the middle, and David Maher seated on he right-hand side of the front seat, the chase was resumed. The Hiseley-driven Chrysler soon overtook the Ford and Hiseley then rammed the Ford in the rear end seven or eight times. Just which particular incident forced the Ford off the road into the ditch is in some dispute, though in our view whichever version is accepted the end result, namely, the Ford winding up in the ditch, was the direct result of Hiseley’s operation of the Chrysler. David Maher testified in effect tliat the “Ford was finally knocked off the highway by contact between the Chrysler and the Ford.” A city marshal who had given chase gave a slightly different version. He testified that he saw the Chrysler get along side the Ford and it “came right into the side of the car.” However, according to the city marshal, the driver of the Ford did not lose control at that moment, and the Chrysler again fell in behind the Ford and started “bumping” the Ford once again. It was in this setting, according to this witness, that the driver of the Ford lost control. He described it thus: “* * * [A] 111 seen was the Ford, looks like it throwed it right straight up in the air * * *. I seen the Ford when it was airborne.” Gary Alverson, the driver of the Ford, testified that as he recalled it, he was forced off the road, stating that “they came up beside me and put their car against mine and pushed me off the road.” He further testified that he applied his brakes, trying to slow down and avoid going off the road. Some dispute arose as to whether the brakes were applied before or after the impact, or were applied both before and after. This we regard to be of minor significance. Both cars were proceeding at about 100 miles per hour and it is quite understandable that there were some differences of opinion as to the exact sequence of events. In this connection, a state highway patrolman testified as follows: “* * * [T]he Ford * * * skidded approximately 60 feet before impact and then traveled 130 feet going into a broad slide off the roadway and went airborne for approximately 111 feet. It rolled one half time in mid-air and came down on its top, and then rolled another one and one half times, landing back on its wheels through a distance of 100 feet.” As indicated, the trial court adopted the defendants’ theory of the case, namely, that Keith Hiseley in his driving of the Chrysler did not intend to cause bodily injury or property damage to anyone or anything. In this connection, it is asserted by counsel that the only intent of any occupant of the Chrysler was to stop the Ford, get its license number and report all to the police. The trial court’s findings in this connection were a bit different, the trial court finding in effect that “the intent was not to injure with the automobile by causing an accident, but to harass and frighten Alverson and Finsel, and perhaps stop them along the road — to what end can only be guessed at.” Concerning the matter of the subjective, mental intent of the parties, it is of interest to note that Keith Hiseley did not testify upon trial of the case, though he was present during trial. So, as concerns Keith Hiseley, at least, his intent can only be determined from his deeds. This is true, even though David Maher and Lester Leake did testify as to their subjective, mental intent. In this regard, David Maher testified that they “chased” the Ford only in order to obtain a license number, “getting them to stop, who they were, and why they did that to our car,” and that there was no discussion about “hurting the people in the other car, or causing them injury.” Lester Leake’s testimony on this point differed a bit. He agreed that initially it was their intent to simply get the license number of the Ford and that they had no intent “to run them off the road or harm them in any manner.” However, Leake went on to testify that after Keith Hiseley assumed control of the steering wheel, there was further discussion and this discussion was to the effect that the way to stop them was “to run them off the road.” In this same vein, Leake also testified that “objections” were made to the manner in which Hiseley was driving. Specifically, according to Leake, Hiseley was told to “quit,” because “he was going to get someone hurt, he was going to hurt the cars.” In response to the question as to whether it was “apparent” that something would happen, Leake responded: “If they kept on someone was going to get hurt.” We recognize that under Fed.R.Civ.P. 52(a) in an action tried to the court without a jury, its findings of fact may not, on review, be set aside unless “clearly erroneous.” In United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), it was stated that a finding was “clearly erroneous” when, though there be evidence to support it, the reviewing court on the record before it “is left with the definite and firm conviction that a mistake has been committed.” In Federal Security Insurance Company v. Smith, 259 F.2d 294 (10th Cir. 1958), we stated that “it is well established that appellate courts are required to accept findings of fact if supported by substantial evidence and not clearly erroneous.” And in that case “substantial evidence” was defined as “more than a mere scintilla, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Applying this test to the findings and conclusions of the trial court as such relate to the issue of an intent to injure on the part of Hise-ley, we conclude that there is not substantial evidence to support its findings in this regard. The particular findings of the trial court with which we take issue, which have been referred to briefly above, are, in their entirety, as follows: “With respect to the ‘intent to injure’ provisions of the policies, there is in fact sufficient evidence from which such intent could be inferred. There is direct testimony, however, that the intent was not to injure with the automobile by causing an accident, but to harass and frighten Alverson and Finsel, and perhaps to stop them along the road — to what end can only be guessed at. Certainly, Alverson in the handling of his automobile made every effort to get away from them and was worried about what would happen if he did not. Further, if the intent to injure by causing the Ford automobile to be wrecked had existed, there were numerous opportunities during the long, high speed chase for this to have been done. From the evidence, it appears that the accident only happened after Alverson undertook to stop, probably having in mind to seek the protection of the Roland City Marshal who was following them immediately prior to the accident with his red light flashing and therefore undoubtedly easily seen by Alverson. At any rate, this court cannot say that it was more probably true than not that an intent to injure existed within the meaning of the policies. “It is the conclusion of the court, therefore, * * * that the exclusionary provisions relied on by the plaintiff do not apply, and that the plaintiff is fully obligated under the terms and conditions of its policies of insurance.” Before considering the applicable law on the subject, we would first make brief comment regarding the findings of the trial court. Initially the trial court observed that there was sufficient evidence from which an intent to injure could be inferred. Then there is the statement that there is direct testimony that the intent was not to injure by causing an accident, but only to harass or frighten. As indicated, however, such testimony came from only Maher and Leake, not from Hiseley, and it is the latter’s conduct that is under scrutiny. Furthermore, Leake’s testimony in this regard would indicate that after Hiseley took control of the Chrysler it was decided “to run them off the road.” The trial court noted that the chase took place over a 40 to 50 mile distance and that there were numerous opportunities early in the chase to run the Ford off the road if that had been the intent. This ignores the fact that Leake was driving during the first phase of the chase, and Hiseley himself took control only during the latter stages of the chase. And, as previously commented on, the fact that Alverson may have applied his brakes at or about the time he was forced into the ditch does not in anywise absolve Hiseley. Let us now examine the law on this particular matter. In Pendergraft v. Commercial Standard Fire & Marine Co., 342 F.2d 427 (10th Cir. 1965), a case arising in Oklahoma, the insurer issued its insured a comprehensive liability insurance policy which contained an exclusion providing that the liability clause did not apply “to bodily injury or property damage caused intentionally by or at the direction of the insured.” The insured intentionally struck another in the face, knocking the latter to the street where he struck his head on a paved portion of the street, fracturing his skull. The insured testified that while he intentionally struck his victim, he did not intend to inflict the specific injuries sustained. On appeal, we affirmed the trial court’s finding that the policy in question afforded no coverage because of the clause excluding liability for intentional bodily injury, and that this was so even though the insured may not have intended the specific injuries sustained. In so holding, we added that “we would be most reluctant, had the [trial] court decided this case the other way, to put our stamp of approval upon a rule that would be based on subjective, rather than objective, intent.” Rankin v. Farmers Elevator Mutual Insurance Company, 393 F.2d 718 (10th Cir. 1968), a case arising in Kansas, presents a factual situation akin to the instant one. There, a motorist provoked by a motorcyclist drove alongside him at 50 miles per hour and deliberately turned his truck against the motorcycle and its rider. The motorist had a policy of family insurance which excluded any liability for “bodily injury or property damage caused intentionally by or at the direction of the insured.” In affirming the action of the trial court in granting summary judgment for the insurance company on the grounds that under the exclusionary clause it had no duty to defend or indemnify the motorist, we made the following pertinent comment: “It is not necessary in this case to make any subtle distinctions between an intentional act and an intentional injury resulting from an act. * * * This is not the kind of case where an actor causes a missile to be thrown without contemplating or having a design that it should strike the person thereby injured. Here the driver of a truck, while traveling at a speed of fifty miles an hour along side of a motorcycle going in the same direction at the same speed, deliberately and purposefully threw his truck against the motorcycle and its rider. Persons are presumed to intend the natural and probable consequences of their acts * * -X- ” We do not regard Lumbermen’s Mutual Insurance Company, Mansfield, Ohio v. Blackburn, 477 P.2d 62 (Okl. 1970), as dictating a different result. In the first place, the throwing of a rock on a junior high school playground is conduct far different from the driving of a motor' vehicle at speeds up to 120 miles per hour and then the ramming, bumping and pushing of another vehicle off the road and into the ditch. In Rankin, such type of driving was distinguished from the mere throwing of a missle without intent that it injure anyone. Additionally, in Blackburn it was stipulated that the acts of the insured “were without any intent to injure the plaintiffs.” In the instant case, there was no such stipulation and indeed the existence of an intent to injure was perhaps the main issue in the case. And the import of our holding is simply that the trial court’s findings in this regard do not find support in the record. In sum, then, on the record before it, the trial court could only find that Keith Hiseley did have an intent to commit bodily injury and property damage, and accordingly the trial court should have held that coverage was expressly excluded under the clauses in both of the pol-cies here involved to the effect that there was no liability on the part of Allstate for “bodily injury or property damage caused intentionally by or at the direction of the insured.” Judgment reversed and cause remanded with the direction that the trial court enter judgment in favor of Allstate in conformity with the views herein expressed.

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

Harry L. BREWER, Jr., Appellant, v. J.D. SWINSON, Superintendent, FPC, Duluth, MN, U.S. Parole Commission, et al., Appellees. No. 87-5228. United States Court of Appeals, Eighth Circuit. Submitted Jan. 21, 1988. Decided Jan. 25, 1988. Order of March 4, 1988. Order of March 15, 1988. Andrew Dunne, Minneapolis, Minn., for appellant. Franklin L. Noel, Minneapolis, Minn., for appellees. Before McMILLIAN, FAGG and BOWMAN, Circuit Judges. McMILLIAN, Circuit Judge. Harry L. Brewer, Jr., appeals pro se from a final order entered in the District Court for the District of Minnesota denying his 28 U.S.C. § 2241 petition for a writ of habeas corpus. For reversal, appellant argues that the district court erred in (1) concluding that because he is a sub-class representative in a pending class-action suit raising issues identical to those in his habe-as petition, the merits of his habeas claim should not be reached, and (2) denying his request to withdraw from the class action in order to proceed with his habeas petition. For the reasons discussed below, we reverse the district court’s denial of habeas relief and remand the case to the district court with instructions to permit appellant to withdraw from the Cosgrove 1 class action lawsuit, to grant the petition for writ of habeas corpus and to direct the United States Parole Commission (USPC) to conduct a parole hearing for appellant, applying the District of Columbia (D.C.) parole guidelines, within ten days of the date of this opinion. Appellant, an inmate at the Federal Prison Camp in Duluth, Minnesota, was convicted of forgery in violation of the D.C. Criminal Code, and on January 14, 1976, was sentenced by the D.C.Superior Court to serve two concurrent ten-year prison terms. Under D.C. law, offenders convicted of violating local laws may be assigned by the Attorney General to serve their sentences in either federal institutions or facilities maintained by the District. D.C.Code Ann. § 24-425 (1981). Appellant was assigned to a federal institution. Appellant was paroled on three separate occasions between 1978 and 1986. On each occasion he committed acts which led to his return to federal custody and revocation of parole. Following his last parole revocation, appellant was ordered to serve to the expiration of his sentence. Appellant appealed to the National Appeals Board of the USPC which affirmed the decision. On December 9, 1986, appellant filed this petition for a writ of habeas corpus challenging the legality of the USPC’s decision for the reason that the order was based upon federal parole criteria, rather than D.C. parole standards, thereby violating his right to equal protection and the prohibition against ex post facto laws. Appellant claimed that as a D.C.Code offender and pursuant to D.C.Code Ann. § 24-209 (1981), D.C. parole guidelines should have governed all parole decisions concerning him even though he was confined in a federal institution; he sought a new parole hearing under the D.C. parole scheme. At the time appellant filed his habe-as petition, there was pending in the United States District Court for the District of Columbia a certified class-action suit, Cos-grove v. Smith, No. 80-0516 (D.D.C. filed Feb. 25, 1980) (Cosgrove 7), in which appellant was a named representative of a designated sub-class. According to appel-lees, the issues raised in Cosgrove I are identical to those raised in appellant’s habe-as petition; therefore, appellees moved the district court to dismiss appellant’s habeas petition in order to avoid duplicative litigation. The United States magistrate to whom appellant’s habeas petition was referred, agreed and recommended denying appellant’s petition on that basis, inter alia. In addition, the magistrate recommended denying appellant’s request to withdraw from Cosgrove I in order to pursue his habeas petition. Appellant filed objections and the district court, after completing a de novo review, adopted the magistrate’s report and recommendation. Thereafter, appellant filed this appeal. Counsel was appointed to represent appellant on appeal, and the appeal was expedited. Oral argument was presented by counsel for both parties by telephone conference call on January 21, 1988. Although no precise rule has evolved with regard to the handling of instances where identical issues are raised in cases pending in different federal courts, the general principle is to avoid duplicative litigation. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The threshold question to be addressed is whether the issues raised in appellant’s habeas petition are, indeed, identical to those in the Cosgrove I class action. As we read appellant’s habeas petition, his claim constitutes a direct challenge to the authority of the USPC under D.C.Code Ann. § 24-209 to employ federal parole standards in making parole determinations for D.C.Code offenders assigned to federal institutions. This issue is presently pending in Cosgrove I. While the general principle is to avoid duplicative litigation, the determining factors should be equitable in nature, giving regard to wise judicial administration. Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). Under this principle, the district court in Walker v. Luther, 644 F.Supp. 76 (D.Conn.1986), aff'd, 830 F.2d 1208 (2d Cir.1987), exercised its concomitant jurisdiction and allowed Cosgrove I class members to proceed with their independent habeas claims. Here, appellant’s situation is one of urgency because his parole rehearing date under the D.C. parole guidelines may have already passed. In addition, the magistrate’s recommendation of February 17, 1987, was based upon the assumptions that Cosgrove I would be decided within a short time and that the issue at bar was one of disparate treatment which would require extensive development of facts. To date, almost eleven months later, the Cosgrove I litigation still continues. See Cosgrove I, No. 80-0516 (D.D.C.) (cross-motions for summary judgment pending and discovery reopened on October 8, 1987). We assume for the purposes of analysis in this case that the habeas court has the discretion to permit appellant to withdraw from the Cos-grove I class action lawsuit, even though appellant is a named, representative of a designated sub-class in Cosgrove I, in order to proceed with his independent habeas claims. Cf. Walker v. Luther, 644 F.Supp. at 79 n. 9 (government conceded during oral argument that habeas court has discretion to allow class members to withdraw from Cosgrove class action). Permitting appellant to withdraw from Cosgrove I need not prejudice the other members of that sub-class or otherwise interfere with the progress of that litigation. See 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1765, at 288-91 n. 43 (2d ed. 1986) (citing cases in which class actions continued because of the presence of other class representatives or were held open until another member of the class was granted leave to intervene). Accordingly, we deem the present case to be an appropriate one for the exercise of concomitant jurisdiction. As previously noted, the issue presented by appellant is a question of statutory interpretation of D.C.Code Ann. § 24-209 to be determined as a matter of law; as such, we need not remand the issue for resolution. Because the language of D.C.Code Ann. § 24-209 is at least arguably not free from doubt, we must analyze the statute’s plain language in light of its legislative history and consider other evidence of its import. Our interpretation of Congress’s reasons for adopting D.C.Code Ann. § 24-209 is the same as that reached by the majority in Cosgrove v. Smith, 225 U.S.App.D.C. 235, 697 F.2d 1125, 1134 (1983) (Cosgrove II), and Johnson v. Williford, 821 F.2d 1279 (7th Cir.1987). See Calvin v. United States Parole Comm’n, 672 F.Supp. 256, 257-58 (E.D.Va.1987). But see Cosgrove II, 697 F.2d at 1134-43 (Bork, J., concurring in part and dissenting in part). As Johnson v. Williford, 821 F.2d at 1283, makes clear, the 1932 Act establishing the Board of Indeterminate Sentence and Parole for the District of Columbia (the D.C.Parole Act) was intended to provide the District of Columbia with a modern parole system that would be a model for the states. However, after passage of the D.C.Parole Act, it became necessary to send some D.C.Code offenders to federal prisons because of a lack of funding for a planned expansion of the prison at Lorton, Virginia, to house D.C.Code offenders. Congress was concerned that D.C.Code offenders housed in federal prisons would be ineligible for parole because neither the D.C.Board of Parole nor the United States Board of Parole (now the USPC) had authority to parole them. Id. at 1284. On the one hand, the D.C.Board of Parole had no jurisdiction over prisoners in federal institutions; on the other hand, the United States Board of Parole’s authority extended only to those prisoners serving definite sentences, while all D.C.Code offenders served indeterminate sentences. Id. Accordingly, Congress amended the D.C.Parole Act by the Act of June 5, 1934, Ch. 391, 48 Stat. 880 (the 1934 Amendment), to include current D.C.Code Ann. § 24-209. Johnson v. Williford, 821 F.2d at 1284. The legislative history of the 1934 Amendment shows that Congress intended D.C.Code offenders housed in federal prisons to retain the benefits of the modern parole system created by the D.C.Parole Act. The letter of transmittal submitted by the D.C.Board of Commissioners to Congress with the proposed 1934 Amendment shows that the parole standards of the United States Board of Parole were deemed inapplicable to the D.C.Code offenders, because D.C.Code offenders served indeterminate sentences. H.R.Rep. No. 1446, 73d Cong., 2d Sess. (1934); Johnson v. Williford, 821 F.2d at 1284-85. Congress viewed the D.C.Parole Act as instituting a penal philosophy for the District of Columbia and intended the 1934 Amendment to extend this philosophy to D.C.Code offenders housed in federal prisons. Johnson v. Williford, 821 F.2d at 1285; Cosgrove II, 697 F.2d at 1130. Furthermore, as explained in Walker v. Luther, 830 F.2d at 1214-15, current and contemporaneous judicial construction of D.C.Code Ann. § 24-209 also supports our conclusion that the statute requires the USPC to apply D.C. parole guidelines. The statute’s plain language, judicial construction and Congressional intent, as evidenced by the legislative history of D.C. Code Ann. § 24-209, lead us to hold that D.C.Code Ann. § 24-209 requires the USPC to apply D.C. parole guidelines in making parole determinations for D.C.Code offenders. The court commends counsel for both parties for their cooperation in briefing and in presenting oral argument in this expedited appeal. The court also expresses its appreciation to Mr. Andrew Dunne for his assistance and able representation of appellant as appointed counsel. Accordingly, the judgment of the district court is reversed and the case is remanded to the district court with instructions to permit appellant to withdraw from the Cos-grove I class action lawsuit, to grant the petition for writ of habeas corpus and to direct the USPC to conduct a parole hearing for appellant, applying the D.C. parole guidelines, within ten days of the date of this opinion. ORDER March 4, 1988. The Parole Commission’s motion for recall of mandate and petition for rehearing are denied. . As of April 8, 1987, appellant’s projected mandatory release date is February 14, 1988. . Appellant concedes that with regard to his last parole revocation decision, the USPC did apply one D.C.Code parole provision, D.C.Code Ann. § 24-206(a) (1981), which states in pertinent part, ”[t]he time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced.” Previously, under USPC guidelines, appellant was credited for time spent on parole. . D.C.Code Ann. § 24-209 (1981) (emphasis added) provides: The [United States] Board of Parole created by § 723a of Title 18, United States Code, shall have and exercise the same power and authority over prisoners convicted in the District of Columbia of crimes against the United States or now or hereafter confined in any United States penitentiary or prison (other than the penal institutions of the District of Columbia) as is vested in the District Board of Parole over prisoners confined in the penal institutions of the District of Columbia. . In Cosgrove v. Smith, No. 80-0516 (D.D.C. filed Feb. 25, 1980) (Cosgrove I), male D.C.Code offenders assigned to federal prisons brought suit challenging the application of federal parole guidelines to decisions on their parole. The government filed a motion for summary judgment which was sustained. On appeal, the court reversed and remanded for, inter alia, a factual resolution of the claim of disparate impact between federal and local parole standards. See Cosgrove v. Smith, 225 U.S.App.D.C. 235, 697 F.2d 1125, 1134 (1983) (Cosgrove II). . On September 20, 1983, following remand to the district court, the Cosgrove / plaintiffs filed a second amended and consolidated complaint in which they specifically alleged that D.C.Code Ann. § 24-209 requires the application of D.C. parole guidelines to D.C.Code offenders housed in federal penal institutions. . Pursuant to D.C.Mun.Regs. tit. 28, § 103.4 (1984), rehearings for violators, such as appellant, with less than five years remaining to be served whose parole was revoked on the basis of technical violations shall ordinarily be held every six months. The USPC requires that subsequent hearings be held not less frequently than every twenty-four months for a prisoner with a sentence of seven years or longer. 18 U.S.C. § 4208(h)(2) (repealed effective Nov. 1, 1987). Appellant’s last parole hearing was on July 21, 1986, and thus, his parole rehearing date under D.C. parole guidelines would probably have been January 21, 1987. Applying USPC regulations, however, appellant will never have the opportunity to be reconsidered for parole, because his statutory release date is February 14, 1988, less than twenty-four months after his last parole hearing. . In Johnson v. Williford, 821 F.2d 1279 (7th Cir.1987), the appellant, a D.C.Code violator, confined in a federal prison outside the district, filed a petition for habeas corpus following a USPC decision denying him parole. Specifically, the appellant challenged the authority of the USPC, inter alia, to decide his suitability for release under federal parole criteria on the basis that the statutory authority of the USPC pursuant to D.C.Code Ann. § 24-209 is limited to "the same power and authority” as that of D.C. parole authorities and, therefore, the USPC must apply D.C. parole laws and regulations. Id. at 1280. Following a thorough examination of the legislative history of D.C.Code Ann. § 24-209, its application by federal agencies, and relevant case law, the court concluded that Congress statutorily mandated federal parole authorities to apply D.C. parole laws to all D.C.Code offenders. Id. at 1283-88. . The court expresses no opinion as to whether or not appellant should actually be released on parole in advance of his mandatory release date.

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Joseph G. COOPER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Elton E. LARKIN, Jr., Defendant-Appellant. Nos. 77-5212, 77-5213. United States Court of Appeals, Sixth Circuit. Argued Dec. 1, 1977. Decided June 8, 1978. Phillip E. Kuhn, Finley, Stein & Kuhn, Memphis, Tenn., for Joseph G. Cooper. Ronald D. Krelstein, Gerber, Bernstein, Gerber & Winestone, Memphis, Tenn., for Elton E. Larkin, Jr. W. J. Michael Cody, U. S. Atty., Arthur S. Kahn, John J. Mulrooney, Asst. U. S. Attys., Memphis, Tenn., for the U. S. Before ENGEL and KEITH, Circuit Judges and MARKEY, Chief Judge. Hon. Howard T. Markey, Chief Judge, United States Court of Customs and Patent Appeals, sitting by designation. ENGEL, Circuit Judge. Appellants Elton E. Larkin, Jr. and Joseph G. Cooper were convicted of conspiring to misapply the funds of the National Bank of Commerce in Memphis, Tennessee, in violation of 18 U.S.C. § 656 (1976). Larkin was lending officer for the bank and Cooper was the ultimately unsuccessful candidate for his party’s nomination.for election to Congress. The scheme alleged in the indictment involved means of circumventing both bank policy and the bank’s express directions in order to funnel money to Cooper, whose shaky financial condition had prompted other bank officers to cut him off from receiving any further loans and even to prevent his maintaining a checking account at the bank. The testimony at the trial showed that the bank had a written policy whereby all unsecured loans of $4,000 or more had to be supported by a current financial statement. In addition, any loans in excess of $10,000 had to be approved by a loan committee, and could not be made by a loan officer individually. The responsibility for referring loans to the committee rested with the loan officer. The limitation of $10,000 which a loan officer might extend, acting alone, applied to the aggregate debt of any individual. The evidence showed that while representing to the other officers that Cooper had no account at the bank, Larkin was at the same time approving substantial overdrafts on checking accounts which Cooper continued to maintain at the bank. It also showed that Larkin and Cooper took great pains to keep the outstanding balance at any time due on Cooper’s individual accounts below the $10,000 amount, presumably so that it would not be discovered. The most substantial misapplication of funds occurred, however, in a series of thirteen loans to persons other than Cooper but for the benefit of his individual account and of his account as a political candidate. In each instance third parties purportedly applied for loans and the checks issued by the bank were then endorsed to Cooper or the proceeds were given to him and deposited in his accounts. Each of these loans was approved by Larkin. Although several of the loans were in excess of $4,000, only one was supported by a financial statement which appeared in the named borrower’s loan file. With respect to one borrower, Paul Kelley, Larkin approved a loan of $6,144.66, although Kelley had never had previous dealings with the bank and had not submitted a financial statement. In fact, Kelley and Larkin never had any contact, and Cooper acted as an intermediary between Kelley and Larkin in arranging the loan. An additional loan of $3,793.32 was also made to Kelley and approved by Larkin under the same circumstances. The proofs also showed that Cooper advised Kelley at the time that he would repay the loans. On another occasion, a loan of $3,533.70 was made to Theresa Kaplan, Cooper’s nineteen-year-old baby sitter. Miss Kaplan testified that she was unaware that she was taking out the loan in her own name and simply thought that she was co-signing a note; Cooper reassured her at the time that he would repay the note himself. Miss Kaplan actually signed the note in Cooper’s apartment and was advanced the monies without filling out a loan application. She never, in fact, met with Larkin or provided the bank with information concerning her financial condition; her only act was to fill in and to sign the note. The proofs showed that the date of birth which she had written on the note had been altered to reflect an age of twenty-nine, rather than her actual age of nineteen. Finally, Cooper’s former wife, Barbara Ivy, borrowed $3,000 in her own name on Cooper’s instructions and then turned the proceeds over to Larkin. Mrs. Ivy testified that Larkin agreed personally to satisfy the debt, which he later did. THE INSTRUCTIONS The defendants raise several objections to the instructions to the jury, claiming that they presented an inaccurate version of the law of misapplication. Although the misapplication statute no longer explicitly requires an intent to injure or defraud the bank, cases consistently hold it to be an element of the crime. E. g., Logsdon v. United States, 253 F.2d 12 (6th Cir. 1958); United States v. Tidwell, 559 F.2d 262, 265-66 & n.2 (5th Cir. 1977), cert. denied,-U.S.-, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978). Because the term “misapplies” is not specifically defined in the statute and because in common understanding it has a somewhat different connotation from that of fraud generally, the courts have had difficulty agreeing upon an adequate jury instruction covering the offense, especially with respect to the nature of the culpability required for a violation. With respect to the intent, the defendants particularly object to the following instruction given by the district court: An intent to injure or defraud a bank exists if a person acts knowingly, and if the actual result of his conduct would be to injure or defraud the bank even though this may not have been his motive. (Emphasis added.) Both defendants claim that the above language allowed the government to satisfy its burden to prove intent by creating a presumption of intent which arises from proof of an act. A substantially similar instruction was approved by the First Circuit in Golden v. United States, 318 F.2d 357 (1st Cir. 1963). Another circuit, however, has rejected it. In United States v. Arthur, 544 F.2d 730, 736-37 (4th Cir. 1976), the Fourth Circuit disapproved a nearly identical charge. See also United States v. Caldwell, 544 F.2d 691, 696 (4th Cir. 1976). The difficulty, as pointed out both in Arthur and Caldwell, is that the challenged instruction would appear to require rather than merely to permit a jury inference of intent from a finding that the natural result of the conduct was to injure or defraud. In so doing, it is argued, the defense was effectively precluded from convincing the jury that the defendant, in fact, lacked the requisite intent even though the natural result of the conduct may have been to injure or defraud. While our circuit has not yet been required to pass upon the express language of the instruction given here, it has recognized that a jury may permissibly infer an intent to injure from the fact of injury, if such injury is a natural result of an act of the defendant. See Logsdon v. United States, supra, 253 F.2d at 15. In Galbreath v. United States, 257 F. 648 (6th Cir. 1918), our court, while holding that it was for the jury to determine whether the intent existed under the evidence, observed: An intent to injure or defraud, as contemplated by the statute, is not inconsistent with a desire for the ultimate success and welfare of the bank. It may, within the meaning of the law, result from an unlawful act voluntarily done, the natural tendency of which may have been to injure the bank. A wrongful misapplication of funds, even if made in the hope or belief that the bank’s welfare would ultimately be promoted, is none the less a violation of the statute, if the necessary effect is or may be to injure or defraud the bank. Id. at 656. In a recent Fifth Circuit decision, United States v. Tidwell, supra, the following instruction was expressly approved: It is reasonable to infer that a person ordinarily intends the natural and probable consequences of his knowing acts. The jury may but is not required to draw the inference and find that the accused intended all of the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any intentional act or conscious omission. Any such inference drawn is entitled to be considered by the jury in determining whether or not the Government has proved beyond a reasonable doubt that the defendant possessed the requisite criminal intent. 559 F.2d at 264. We find the foregoing instruction distinctly preferable to that given by the court in this case. At the same time, however, we do not find the trial judge’s instruction here, considered in the context of the evidence and with the other careful instructions given, to be so prejudicial as to affect the substantial rights of the defendant and require reversal. In addition to the instruction on intent, the trial court carefully instructed the jury on the burden of proof and presumption of innocence and explained with particularity the elements of the substantive offense. The court informed the jury that negligent banking practices themselves would not amount to misapplication under the statute and further instructed that misapplication was a specific intent crime: To act with intent to defraud means to act wilfully and with the specific intent to deceive or cheat, ordinarily for the purpose of either causing some financial loss to another, or bringing about some financial gain to ones (sic) self. However, the evidence in the case need not establish that the bank was actually defrauded, but only that the accused conspirator acted with intent to defraud. Cooper objects to that portion of the trial judge’s instructions which stated that “acts knowingly done with a reckless disregard for the interests of the bank may justify a finding of intent to defraud or injure the bank.” The instruction is consistent with our court’s express holding that a reckless disregard will support an inference of intent to injure. Logsdon v. United States, supra, 253 F.2d at 15. Appellants further claim that the trial court erred in giving the following example of what would constitute an intent to misapply within the meaning of the statute: An intent to misapply may occur from a number of different acts such as... an officer knowingly granting loans to persons who have been assured the loans will be repaid by others, that is, where the debtor allowed only his name to be used, enabling the bank officials to grant a loan to a party to whom the bank was unwilling for some reason to grant a loan in his own name; approving loans or overdrafts to a borrower contrary to the directions of his superior officers at the bank not to do so. The appellants urge that the above charge allowed the jury to find them guilty upon proof that Larkin authorized loans to persons whose credit was otherwise good and who intended to stand behind the loans, but who used the money so gained for the benefit of Cooper, who was himself unable to secure credit on his own behalf. Larkin in particular contends that the effect of the court’s example was to apprise the jury that it was a violation of the statute simply to co-sign or guarantee a loan. The instruction, they claim, is substantially similar to one which United States v. Gens, 493 F.2d 216 (1st Cir. 1974), held reversible. The appellants in Gens were convicted of wilfully misapplying funds of a bank upon proof that defendant Gens, with the knowledge and cooperation of other bank officials, succeeded in obtaining funds in excess of the bank’s self-imposed loan limit of $80,-000 by persuading other individuals to borrow in their own names and to turn the proceeds over to him, where he himself could not have borrowed the money directly. The First Circuit ruled that where the borrower is himself solvent and understands his obligation to repay, no violation of the statute is shown: [Wjhere the named debtor is both financially capable and fully understands that it is his responsibility to repay, a loan to him cannot — absent other circumstances — properly be characterized as sham or dummy, even if bank officials know he will turn over the proceeds to a third party. Instead, what we really have in such a situation are two loans: one from the bank to the named debtor, the other from the named debtor to the third party. The bank looks to the named debtor for repayment of its loan, while the named debtor looks to the third party for repayment of his loan. If for some reason the third party fails to make repayment to the named debtor, the latter nonetheless recognizes that this failure does not end his own obligation to repay the bank. In this situation, the bank official has simply granted a loan to a financially capable party, which is precisely what a bank official should do. There is no natural tendency to injure or defraud the bank, and the official can not be said to have willfully misapplied funds, in violation of § 656. 493 F.2d at 222 (footnote omitted). While we agree that the example cited in the district court’s instructions could have been more carefully drafted, we do not agree that it conveys the meaning urged by the appellants. Some of the borrowers whom Cooper induced to obtain loans were capable of making repayment and may, in fact, have understood that if Cooper defaulted on his promise to them to satisfy the loans, they would be personally responsible for repayment. At the same time there was proof in the record to support the example given and a finding that the person borrowing the money had been assured that he or she would not be responsible for its repayment. Cooper’s babysitter, Theresa Kaplan, testified that she could not repay the loan and' that Cooper misled her into believing that she was not obligated to pay even though she was the sole signer. The evidence also established that Paul Kelley had borrowed close to $10,000 from the bank for Cooper’s benefit, although he was financially incapable of making repayment. The proofs also fully support the view that Larkin acted recklessly and, by inference, intentionally in approving the loans without investigating the applicants’ abilities to repay and by disregarding the bank’s internal policy regarding financial statements. The evidence also supports the conclusion that Larkin intentionally and repeatedly approved overdrafts in Cooper’s individual and campaign accounts. According to bank policy, overdrafts are a form of unsecured loan, and Larkin had been notified that Cooper was forbidden to receive further credit. Considering the state of the record, we conclude that the jury was not misled in its application of the statute to the defendants’ prejudice. While what is precisely encompassed in the term “misapplication” may be subject to continuing judicial refinement, the jury had to understand from the instructions that at the least it meant deceitful and dishonest mishandling of bank funds, contrary to the express instructions and policy of the bank itself. Unlike the defendants in Gens, Cooper and Larkin were not charged with committing or aiding and abetting a substantive violation but with a conspiracy, and it was not necessary that any overt act charged in a conspiracy indictment constitute in and of itself a separate criminal offense. United States v. Scallion, 533 F.2d 903, 911 (5th Cir. 1976), cert. denied, 429 U.S. 1079, 97 S.Ct. 824, 50 L.Ed.2d 799 (1977); United States v. Sterkel, 430 F.2d 1262, 1263 (10th Cir. 1970); see United States v. Van Hee, 531 F.2d 352, 357 (6th Cir. 1976). Defendant Larkin complains that the district judge committed reversible error in failing to give the following proffered instruction: . in order to justify a verdict of guilty based upon circumstantial evidence you must find from the circumstantial evidence offered, that it is consistent with guilt and inconsistent with innocence and where the evidence as to the element of a crime is equally consistent with the theory of innocence as with the theory of guilt then that evidence necessarily fails to establish guilt beyond a reasonable doubt and you should find the defendant not guilty. Larkin claims that the requested charge is supported by our decision in United States v. Leon, 534 F.2d 667 (6th Cir. 1976). His reliance upon Leon is misplaced. Leon did not rule upon instructions to the jury but rather involved the sufficiency of the evidence itself to support the jury verdict, an issue for the court and not for the jury. We see no value in attempting to transform a test for sufficiency of the proof into an instruction to the jury. See 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 15.02 at 443 (3d ed. 1977). Such an instruction poses a likelihood of needless confusion and, as tendered by Lar-kin, closely resembles one expressly rejected by the Supreme Court and by our court to the effect that to convict the defendant, the evidence must exclude every reasonable hypothesis other than that of guilt. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954); see United States v. Van Hee, supra, 531 F.2d at 357-58, and cases cited therein. While appellants urge that the trial court erred in several other respects, both in the instructions it gave and in the instructions which it refused, we do not find sufficient merit in those claims to warrant discussion. PROSECUTORIAL MISCONDUCT During the course of closing arguments, the Assistant United States Attorney on rebuttal made the following comment: Mr. Kuhn [Cooper’s attorney] said I was dishonest in not calling all these other borrowers. In the first place, that’s not true. I guess in the second place I should just consider that Mr. Kuhn is a hired gun, hired to say things like that. Cooper’s attorney, toward whom the foregoing remark was directed, made no objection, perhaps because the comment was provoked by an equally intemperate remark of his own. The attorney for Larkin, however, objected on behalf of his client but was overruled. We have repeatedly emphasized our disapproval of the intemperate use of personally abusive language by counsel in the course of criminal trials. See, e. g., United States v. Leon, supra, 534 F.2d at 678-83. While there is appeal in Larkin’s argument that two wrongs do not make a right, but of. United States v. Hoffa, 349 F.2d 20, 50-51 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), at the same time not every departure from proper courtroom decorum commands reversal and a new trial. Here there was no factual misrepresentation in the statements, nor could the jury have concluded that the prosecutor intended anything more than a figure of speech. Moreover, the objectionable remark was directed not against Larkin himself but against his co-defendant’s counsel. We hold the misconduct to have been harmless. SELECTIVE PROSECUTION Prior to the trial, Cooper moved the court to dismiss the indictment on the basis that he was the victim of selective prosecution. The apparent basis for the claim was his argument that he was singled out for prosecution while the other participants, those persons who had actually made the nominee loans, escaped. As noted by the Eighth Circuit in United States v. Crow Dog, 532 F.2d 1182, 1195 (8th Cir.), cert. denied, 426 U.S. 917, 96 S.Ct. 2620, 49 L.Ed.2d 370 (1976), this issue is essentially an equal protection question: It is well established that a reasonable prosecutorial discretion is inherent in our judicial system,... and that such discretion does not amoimt to unconstitutional discrimination unless it is deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification.... (Citations omitted). Accord, United States v. Strutton, 494 F.2d 686, 688 (2d Cir. 1974); see Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The proofs and the offers of proof made by Cooper in support of his motion totally fail to show that the decision to prosecute him was made in bad faith and was based upon impermissible considerations. United States v. Crow Dog, supra, 532 F.2d at 1196; United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). As pointed out by Judge Lambros in United States v. Perkins, 383 F.Supp. 922, 928 (N.D.Ohio 1974): Government attorneys have great latitude in deciding which potentially criminal actions to prosecute. The discretion, if not exercised on a class basis which affects Constitutional guarantees or which is designed to punish the exercise of protected rights is not reviewable by the courts and does not furnish a basis for dismissal of prosecutions. COOPER’S OTHER DEALINGS At the outset of the trial, the government introduced a number of witnesses from other banking institutions in the Memphis area who testified to Cooper’s financial transactions with them. The purport of the testimony was to show that Cooper was a poor financial risk who defaulted on loans, wrote bad checks, and at least on one occasion executed a false financial statement for the purpose of securing a loan from the Beneficial Finance Company. Cooper claims that he was directly prejudiced by the evidence, while Larkin charges that the evidence tended to show that he was associating with a person of ill repute and of bad personal character. Rule 404(b) of the Federal Rules of Evidence states a flat prohibition against character evidence unless the proponent can demonstrate a basis of relevancy other than the inference that the person acts in conformity with his other bad acts: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We agree with the government’s position that the evidence was indeed relevant and admissible as proof both of Cooper’s motive for conspiring with Larkin and as showing fraudulent intent which necessarily had to be proved as part of the elements of the offense. He badly needed the money and had exhausted all the legitimate sources of credit. His willingness to falsify a financial statement to obtain money from the Beneficial Loan Company tends to prove his specific intent to defraud in conspiring with Larkin to obtain money from the National Bank of Commerce. See United States v. Miller, 573 F.2d 388 (7th Cir. 1978). It was also relevant proof showing that the alteration of the age of the babysitter from nineteen to twenty-nine in connection with her application was not the product of a mistake or accident. Contrary to the circumstances in United States v. Ring, 513 F.2d 1001 (6th Cir. 1975), Cooper’s specific intent was very much in issue, even though he himself did not testify. The real issue, as we see it, is not whether the evidence was relevant and admissible, which it was, but whether it was plain error for the trial judge to have failed to give a limiting instruction concerning the jury’s consideration of it. This, both counsel claim, requires reversal. In addition to making a general objection to the introduction of the evidence concerning Cooper’s other financial speculations, counsel specifically objected to the proof of the false financial statement which Cooper gave to obtain the loan from Beneficial. As counsel for Cooper stated: I have a standing objection as to this series of witnesses, but I would like for you to instruct the jury with respect to this witness that they cannot consider the fact of filing a false financial statement against the defendant in any way because it is a direct crime under the Act which governs false financial statements and this is the only relevancy of introducing the financial statement of Beneficial, is to introduce the possibility of another crime or grounds against another situation which is an additional crime and he has already voiced it and I would appreciate it if you would tell them not to consider that information as to the guilt or innocence of the defendant. The trial judge refused to instruct the jury as requested and likewise denied the motion, made by both defendants, for a mistrial because of it. As proposed, the instruction did not request the court to limit the jury’s consideration of the evidence to questions of motive or intent, but rather to disregard it altogether. Because the evidence was probative of motive and intent, the instruction was properly denied. The question, therefore, is whether the district judge was obliged to give a limiting instruction where none was requested and if so, whether his failure to do so was plain error demanding reversal. We conclude it was not. The application of Rule 404(b) is as varied as the cases in which it may be invoked. Contrary to the government’s suggestion here, we cannot agree that it is limited only to evidence of other crimes, for its own language also speaks of “wrongs or acts”. Conceivably within the broad language of the rule is any conduct of the defendant which may bear adversely on the jury’s judgment of his character. United States v. Miller, supra, 573 F.2d at 392. While the general bad character of a defendant may be relevant as tending to make more likely the fact that he would be guilty of the crime than would a person of good character, see Fed.R.Evid. 401, Rule 404(b) requires evidence of other conduct to have an independent basis of relevancy, such as proof of motive or intent. Relevancy and culpability, coupled with unjust prejudice, are matters of degree which necessarily have a bearing on whether to admit evidence of a defendant’s other wrongful acts. See Fed.R.Evid. 403. These varying considerations strongly suggest that the decision in each case should rest in the sound discretion of the trial judge and that on appeal that discretion should not be disturbed unless it has been abused. Defendants especially stress our decisions in United States v. Poston, 430 F.2d 706 (6th Cir. 1970), and United States v. Ailstock, 546 F.2d 1285 (6th Cir. 1976), as authority that it was plain and reversible error to fail to give a cautionary instruction limiting the jury’s consideration of the evidence, even if it was not error to deny a motion for a mistrial. In United States v. Poston we held that it was plain error for the district court to have failed to instruct the jury to disregard altogether the unsolicited testimony of an FBI agent to the effect that the defendant was on probation. Judge Peck commented: As in Tallo [v. United States, 344 F.2d 467 (1st Cir. 1964)], we do not here conclude that the motion for a mistrial in the present case need necessarily to have been sustained, nor do we hold that a corrective admonition could not have had curative effect. We recognize the salutatory (sic) rule that empowers the trial judge to exercise discretion in determining what curative instruction is required (subject, of course, to appellate approval of his exercise of discretion on review), and hold only that when during a jury trial evidence of the fact that at the time of the alleged offense for which the defendant is on trial he was on probation, and no corrective or cautionary instruction concerning that evidence given to the jury, prejudicial error has intervened. 430 F.2d at 709. In United States v. Ailstock, supra, Judge Weick, citing Poston, held that it was plain error for the district court to fail to give a cautionary instruction where the jury had been informed that the defendant had previously been in prison, adding . we do not find that the failure of appellants’ counsel to request a cautionary instruction excused the District Court from its duty to give such an instruction. 546 F.2d at 1291. The difference between the facts in Po-ston and Ailstock and those here is apparent. The evidence that the defendant had been on probation or had been previously in prison was not only more prejudicial in its impact; the evidence was not admissible for any purpose. Here, of course, the evidence was both relevant and admissible. From our examination of the rule in other circuits, only the District of Columbia Circuit appears to hold that it is plain and reversible error for the trial court to fail sua sponte to give a cautionary instruction regarding evidence of prior misconduct. In United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241 (1971), a divided panel determined it was plain error to fail to caution the jury where the proofs showed that the defendant had been guilty of a prior assault on his wife, at least “in the absence of manifest waiver” by defense counsel. Id. 142 U.S.App.D.C. at 218, 440 F.2d at 246. However, in United States v. Bobbitt, 146 U.S.App.D.C. 224, 450 F.2d 685 (1971), the same circuit held that it was not plain and reversible error where the district judge failed to limit a jury’s consideration of evidence of threats made by the defendant to the deceased twelve years before the homicide. The authorities in the other circuits uniformly hold that failure to give a cautionary instruction is not plain error. United States v. Pitman, 475 F.2d 1335, 1338 (9th Cir.), cert. denied, 414 U.S. 873, 94 S.Ct. 146, 38 L.Ed.2d 92 (1973); United States v. Baldivid, 465 F.2d 1277, 1281 (4th Cir.), cert. denied, 409 U.S. 1047, 93 S.Ct. 519, 34 L.Ed.2d 499 (1972); United States v. Van Poyck, 464 F.2d 575, 577 (5th Cir. 1972), aff’d without opinion, 488 F.2d 551 (5th Cir. 1973); United States v. DeLaMotte, 434 F.2d 289, 294 (2d Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971); United States v. Carter, 401 F.2d 748, 750 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1969). In accord with the prevailing view, our circuit held that it was not plain error to fail to give a cautionary instruction in a prosecution under the Hobbs Act where the government introduced proof of the defendant’s bad reputation for the limited purpose of showing that the victim of the threats acted out of fear and that his fear was reasonable. United States v. Faulkner, 538 F.2d 724, 728 (6th Cir. 1976). We acknowledge that it would have been the better part of discretion for the court sua sponte to have given a cautionary instruction limiting the jury’s consideration of the evidence. See generally Fed.R.Evid. 105. While it may well be that defense counsel concluded under the circumstances that a cautionary instruction would only serve to emphasize the admissible aspects of the evidence, we retain enough confidence in the intelligence of a jury to believe that its deliberations and even the court’s impartial role would be better served by giving the instruction, though not requested. Since the impact on a defendant’s substantial rights varies with the facts of each case, we do not go so far as to hold that plain error may never result from the failure to give a cautionary instruction where the conduct shown is more egregious and its particular relevance is less apparent. Cf. United States v. Garcia, 530 F.2d 650, 654-56 (5th Cir. 1976) (impeachment evidence). None of the other alleged errors has sufficient merit to warrant extensive discussion. The trial judge did not abuse his discretion in denying Larkin’s request for a bill of particulars, United States v. McGuire, 347 F.2d 99 (6th Cir.), cert. denied, 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965), especially since the defendant altogether failed to show any surprise and actual prejudice. Turner v. United States, 426 F.2d 480 (6th Cir. 1970), cert. denied, 402 U.S. 982, 91 S.Ct. 1646, 29 L.Ed.2d 148 (1971). Likewise it was not error for the trial judge to have permitted the jury to have a written copy of the indictment, especially where, as here, the jury was fully instructed that it could not consider the indictment as evidence of the crime itself. If it was error for the jury to have been furnished a copy of the subpoena duces tecum, it was harmless since the subpoena simply listed the documents already identified by a bank officer and in evidence. Affirmed. . Section 656 provides in part: Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the Board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the amount embezzled, abstracted, purloined or misapplied does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. . The secretive nature of this action was brought out by the former wife’s testimony: Q. Did you eventually sign a note borrowing money from the National Bank of Commerce Bank? A. Yes, sir, where I worked was right next door to the branch that Mr. Larkin worked at, and during my lunch hour I went over there, the papers were filled out, I just had to sign my name and he gave me a cashier’s check for the three thousand dollars and told me to go over to the cashier’s window and get it cashed. And, you know, I said I’m not going to walk around with three thousand dollars cash. And he said don’t worry about it, just drive your car over a couple of blocks away to the empty parking lot in the back and I will meet you up there and take the money off your hands. . Compare the current statute, note 1 supra, with the former version, Act of September 26, 1918, ch. 177, § 7, 40 Stat. 972. . The court’s instruction appears to have been lifted nearly verbatim from the opinion in United States v. Schmidt, 471 F.2d 385, 386 (3d Cir. 1972), quoted with approval, United States v. Beran, 546 F.2d 1316, 1321 (8th Cir

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

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

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

INTERSTATE COMMERCE COMMISSION, Appellant, v. ATLANTIC COAST LINE R. CO. et al., Appellees. No. 20485. United States Court of Appeals Fifth Circuit. July 8, 1964. Donald C. Lehman, Asst. U. S. Atty., Jacksonville, Fla., Leonard S. Goodman, Atty., I.C.C., Robert W. Ginnane, Gen. Counsel, I.C.C., Washington, D. C., for appellant. Phil C. Beverly, Jacksonville, Fla., J. Edgar McDonald, New York City, Urchie B. Ellis, Richmond, Va., for appellees. John F. Donolan, John M. Cleary, Washington, D. C., Harold E. Spencer, Chicago, Ill., amici curiae. Before TUTTLE, Chief Judge, and POPE and BROWN, Circuit Judges. Of the Ninth Circuit, sitting by designation. JOHN R. BROWN, Circuit Judge. The question in this case — arising for the first time in the 75-year operation of the Interstate Commerce Act — is whether a carrier may sue to set aside a reparation award of the Commission under § 16 (1) by a suit under § 17(9), 28 U.S.C.A. §§ 1336, 1398, 2321-2323, or must confine its challenge as a defense in the Shipper’s suit when, where and as brought under § 16(2). The District Court upheld the right. The ICC, joined by an array of shipper interest's, spiritedly challenges the holding. We think the attack is unavailing and affirm. The facts are very simple. In response to the complaint of the Shipper, the ICC awarded reparations in the amount of $8,889.76 with interest, for unjust and unreasonable rates collected for phosphate movements from Florida to Illinois during the period April 10, 1945, to December 31, 1950. The order called for payment on or before August 28, 1961, the effective date of compliance, Missouri Pacific R. Co. v. Austin, 5 Cir., 1961, 292 F.2d 415, 418-419. On September 6, 1961, the Carrier-appellees filed a suit in the Middle District of Florida, the venue district of Atlantic Coast Line to set aside the order. Long thereafter, on August 22, 1962, the Shipper filed suit against the Carrier and other railroads under § 16(2) in the Southern District of New York for the amount of the award with interest and, of considerable importance here, attorney’s fees. The Court below overruled the ICC’s motions to dismiss which asserted the exclusive method of review is under § 16(2). Thereafter, on the merits, it held the award and order invalid, primarily because of the statute of limitations. 213 F.Supp. 199. The ICC asserts that the sole review of an order granting reparations under § 16(1) is that provided in § 16(2). The Carrier, on the other hand, insists that § 17(9) expressly authorizes “a suit to enforce, enjoin, suspend, or set aside” an order, thus setting in train the jurisdictional-procedural provisions of 28 U.S. C.A. §§ 1336, 1398, 2321, 2322, and 2323. The ICC’s approach is a dual one. It contends, first, that construction of all of the statutes together manifests a congressional purpose to restrict review of a reparations award to the Shipper’s suit under § 16(2). Next, both as a part of that argument, and independent of it, the ICC further asserts that there is no reviewable final “order” as called for in §§ 17(9), 1336 or 1398. These arguments stress the non-self-executing aspects of a reparation award. Since they are “for the payment of money,” the Carrier is not bound to comply under the imminence of a mandatory injunction suit brought by the ICC or the United States. § 16(12), 49 U.S.C.A. § 16(12). Emphasizing that § 16 (2) provides only that “the findings and order of the commission shall be prima facie evidence of the facts therein stated,” the ICC urges isolated excerpts from early opinions of the Supreme Court to suggest that it is really not an order at all. Thus Mills v. Lehigh Valley R. R. Co., 1915, 238 U.S. 473, 482, 35 S.Ct. 888, 892, 59 L.Ed. 1414, had this to say of § 16 (2): “The statutory provision merely established a rule of evidence. It leaves every opportunity to the * * * [Carrier] to contest the claim.” But we have no doubt that this award has all of the characteristics of finality so far regarded as essential to court review under statutes comparable to those here involved. Rochester Tel. Corp. v. United States, 1939, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147; Columbia Broadcasting System v. United States, 1942, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563; Frozen Food Express v. United States, 1956, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910; United States v. Storer Broadcasting Co., 1956, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081; El Dorado Oil Works v. United States, 1946, 328 U.S. 12, 66 S.Ct. 843, 90 L.Ed. 1053. An award-order is, first, administratively final. Nothing further remains to be done by the ICC. It is not a declaration of consequences dependent on further, future action. Rather, it is positive and presently operative. It declares, first, the violation of the Act (unreasonable, unjust rates, and the like) and then finds the amount of the Shipper’s claim. On the two findings, it directs the payment of the award. And as United States v. I. C. C., 1949, 337 U.S. 426, 432-433, 69 S.Ct. 1410, 93 L.Ed. 1451, and Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 205, 80 S.Ct. 1131, 4 L.Ed.2d 1165, made clear, finality for the purposes of review is not to be determined solely by the terms of the order, but by whether such order “if upheld” forecloses a right or imposes an obligation. Assuming that a § 16(2) suit is necessary for the Shipper to coerce payment, the resulting court judgment is to “uphold” the award, to hold it valid. In that judicial result, the administrative proceedings have not in any sense been superseded. The critical finding of a violation of the Act as an essential ingredient to recovery rests wholly and entirely upon the administrative decision of the ICC, not independent court determination, since recovery by the Shipper assumes that the primary jurisdiction aspect has withstood the restricted review, see note 12, supra. Bearing in mind that the problem here is the determination of the statutory mechanism for review in reparation award order cases generally, not merely the machinery which would satisfy this particular case, we perceive additional factors giving final operative effect to the award-order no matter what happened in the Shipper’s § 16(2) suit. An award-order is in two parts, (1) the determination of violation of statutory policies, unjust, unreasonable rates, discriminatory practices, or the like, and (2) specific damage to the shipper-complainants. So long as element (1) is outstanding and not set aside, it affords the basis for a § 9 suit, 49 U.S. C.A. § 9, by a shipper similarly situated without his first going through a reparation proceeding. And in A. J. Phillips v. Grand Trunk W. Ry. Co., 1915, 236 U.S. 662, 35 S.Ct. 444, 445, 59 L.Ed. 774, and many others, the Court has held that a person not a party complainant to a proceeding before the ICC may, on the general finding that the rate was unjust and unreasonable, bring his-independent suit in court. Of the administrative finding that the rates were unjust and unreasonable, the Court said the “finding * * * was general in its operation, and inured to the benefit of every person that had been obliged to pay the unjust rate. Otherwise those who filed the complaint, or intervened during the [Commission] hearing, would have secured an advantage over the general body of the public, with the result that the order of the Commission would have created a preference in favor of the parties to the record, and would have destroyed the very uniformity which that body had been organized to secure.” 236 U.S. 662, at 665, 35 S.Ct. 444, at 445. In addition, there is a substantial indication that in the day-today operations of the ICC in the fabrication and building of its own formidable body of transportation law, reparation order-awards announcing principles are regarded as precedents. Thus the opinion reports of the ICC here, note 2, supra, until set aside by a direct proceeding, remain outstanding precedents on the question of the statute of limitation notwithstanding the possibility that in the § 16(2) suit in the Southern District of New York a jury might bring in a verdict for the Carrier. Even 100% success in the § 16(2) suit leaves the Carrier faced with unsatisfactory law for all to use and unsatisfactory fact findings for all shippers to use. Symmetry also suggests a congressional purpose to allow review of an award-order granting reparations under § 17(9). It is unquestioned that if the Commission denies the Shipper’s reparation complaint, review may properly be had under §§ 1336, 1398. Cf. United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. And in a § 9 suit, 49 U.S.C.A. § 9, the administrative determination of primary jurisdiction elements on a referral to the ICC by a Court is reviewable under §§ 17(9), 1336, 1398. Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165. Against this massive structure of injunctive reviewability, the Commission’s thesis comes down to the assertion that Congress meant to allow court review of the grant of an award-order granting reparation only in the shipper’s § 16(2) suit. In so doing, stress is laid on the procedural advantages given the shipper —(1) freedom from court costs, (2) attorney’s fees if successful, (3) choice of venue, and (4) relief from the burden of making out a prima facie case by introducing in evidence the administrative findings and order. Urged as a fitting, railroad analogy is the statutory mechanism for awards under the Railway Labor Act, 45 U.S.C.A. §§ 151, 153, First (p). Under this provision, an employee who has obtained an award of the National Railroad Adjustment Board may file suit in the District Court for enforcement if the carrier does not comply with the agency order. The order is prima facie evidence of the facts therein stated. In New Orleans Public Belt R. Commission v. Ward, 5 Cir., 1950, 182 F.2d 654, following Washington Terminal Co. v. Boswell, 1941, 75 U.S.App.D.C. 1, 124 F.2d 235, affirmed by an equally divided court, 1943, 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694, we held that a carrier could not circumvent this statutory right of the employee by resorting to a declaratory judgment suit. We think the resemblance is superficial. We would think also that to import into the highly specialized aspects of carrier regulation and the statutory scheme of determination and review especially contrived for it, the cumbersome and frequently difficult distinctions between major and minor, between court decision and Adjustment Board decision, between Adjustment Board and Mediation Board, between Court and Mediation Board will hinder, not' help, in achieving judicial review which is clearly guaranteed under the Administrative Procedure Act. 5 U.S.C.A. §§ 1009, 1001(d), (f), and (g). Many reasons may be briefly summarized. The actions of the Railway Adjustment Board are not subject to the Administrative Procedure Act. The provision of 45 U.S.C.A. § 153, First (p) expressly invests the Court with power to “enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the * * * Board.” At the same time there is no other statutory grant of review as in § 17(9). An Adjustment Board proceeding resulting in a money award carries forward no elements of primary jurisdiction with limited, restricted judicial review. Such an award is open for full review. Hodges v. Atlantic Coast Line R. R. Co., 5 Cir., 1962, 310 F.2d 438. Probably most important, that structure is hardly a model to be copied. The procedure invoked by the Carrier here is fair and efficient. Brought in the same single Judge District Court in which the Shipper’s complaint would be filed complaining of a denial of a § 16(1) reparation award or to review an unsatisfactory finding in a court referral proceeding upon which to base a § 9 suit, there may be a determination once and for all of the underlying validity of the Commission’s findings with respect' to violations of the Act (unjust, unreasonable rates, discriminatory practices, etc.). If the order vis-avis the ICC and the Carrier fails to pass muster and is therefore “not in accordance with law,” 5 U.S.C.A. § 1009(e), it may then be set aside. No one, whether Carrier or Shipper, will thereafter be subjected to the expense of useless litigation in numerous courts where separate § 16(2) shipper suits have been filed. More important, this assures some symmetry in the construction and maintenance of a national transportation policy. In the injunction suit, §§ 17(9), 1336, 1398, the United States and the ICC are parties. The Attorney General and the General Counsel of the Commission are directly and immediately responsible for the conduct of that litigation and the advoeative assertion of contentions deemed essential in the public interest. This is all the more essential where, as is quite frequent, there is an outright clash between the executive departments of the Government, the Attorney General, and the Commission. See United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. In contrast, of course, in the Shipper’s § 16(2) suit neither the Commission nor the Government is a party. Intervention, whether permissive or as a matter of right, is something less than satisfactory especially with the pendency of a number of shipper suits in a number of jurisdictions. Without intervention, the sole spokesman in behalf of the ICC’s order is the private party seeking partisan relief opposed by formidable, experienced, competent counsel for the Carrier. We cannot believe that these important' considerations were derailed by Congress out of its statutory desire to accord to a Shipper some procedural benefits. Indeed, with respect' to the element of shipper damage, it is entirely too soon to state that a Shipper may not under appropriate circumstances obtain the benefit of all, or a part, of these statutory advantages by intervening in the injunction proceeding. And considering the great flexibility open to an equity court, the conclusion reached here that an injunction suit' may be maintained by the Carrier does not force that Court to take on the adjudication of all of the damage element claims of numerous shippers. Wide latitude would be allowed to fashion appropriate, preliminary machinery by which shipper suits could be filed in appropriate venue districts and stayed pending ultimate determination of the injunction proceeding. A decree sustaining basic validity would likely leave for the individual § 16(2) suits only the limited issue of money damage, presumably a relatively simple matter for court or jury determination with the Shipper armed, as he is, with the working presumption from the prima facie case. The District Court was, therefore, correct in overruling the motion to dismiss, in sustaining the right of judicial review in that Court under §§ 1336, 1398, and in rejecting the contention that review had to be in the § 16 (2) suit pending in New York. Affirmed. . Thomson Phosphate Company. . Thomson Phosphate Co. v. Atlantic Coast Line R.R., 1953, 291 ICC 1, 1954, 293 ICC 369, 1958, 303 ICC 25. Not surprisingly, one of the Carrier’s defenses is that in this long span of years even an impersonal corporate person had expired. . By an agreed statement of the case on appeal, F.R.Civ.P. 76, the appeal presents only the question of jurisdiction. No attack is made on the District Court’s decision on the merits. . 49 U.S.C.A. § 16(1): “If, after hearing on a complaint made as provided in section 13 of this title, the commission shall determine that any party complainant is entitled to an award of damages under the provisions of this chapter for a violation thereof, the commission shall make an order directing the carrier to pay to the complainant the sum to which he is entitled on or before a day named.” . Section 16(2) of the Interstate Commerce Act, 49 U.S.C.A. § 16(2) provides: “If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any State court of general jurisdiction having jurisdiction of the parties, a complaint setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the plaintiff shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the plaintiff shall finally prevail he shall be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.” . 49 U.S.C.A. § 17(9): “(9) When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission or an appellate division, a suit to enforce, enjoin, suspend, or set aside such decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise.” . 28 U.S.C.A. § 1336: “Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission.” . 28 U.S.C.A. § 1398: “Except as otherwise provided by law, any civil action to enforce, suspend or set aside in whole or in part an order of the Interstate Commerce Commission shall be brought only in the judicial district wherein is the residence or principal office of any of the parties bringing such action.” . 28 U.S.C.A. § 2321: “The procedure in the district courts in actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures, shall be as provided in this chapter. “The orders, writs, and process of the district courts may, in the cases specified in this section and in the cases and proceedings under sections 20, 23, and 43 of Title 49, run, be served, and be returnable anywhere in the United States. . 28 U.S.C.A. § 2322: “All actions specified in section 2321 of this title shall bo brought by or against the United States.” . 28 U.S.C.A. § 2323: “The Attorney General shall represent the Government in the actions specified in section 2321 of this title * * * . “The Interstate Commerce Commission and any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party. * * * ” . At the same term the Court stated in Meeker & Co. v. Lehigh Valley R. R. Co., 1915, 236 U.S. 412, 430, 35 S.Ct. 328, 335, 59 L.Ed. 644: “This provision only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. At most, therefore, it is merely a rule of evidence. It does not abridge the right of trial by jury, or take away any of its incidents.” Its sweeping assurance of a jury trial and “contestation of all the issues, * * * of fact” must now be read with considerable reservation. All acknowledge that under the doctrine of primary jurisdiction the § 16(2) court may not independently determine the merits of the unjustness or unreasonableness of rates, discriminatory practices, and the like. We may assume, without deciding, that review of such “administrative” matters subject to the expertise of the ICC in a § 16(2) suit is no less than in one under §§ 1336, 1398. It is clear that it is not greater. New Process Gear Corp. v. New York Central R. R. Co., 2 Cir., 1957, 250 F.2d 569, 572, cert. denied, 1958, 356 U.S. 959, 78 S.Ct. 996, 2 L.Ed.2d 1066, citing United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Mitchell Coal & Coke Co. v. Pennsylvania R. R. Co., 1913, 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Glens Palls Portland Cement Co. v. Delaware & Hudson Co., 2 Cir., 1933, 66 F.2d 490, cert. denied, 1933, 290 U.S. 697, 54 S.Ct. 132, 78 L.Ed. 599. . The dissenting opinions in Pennsylvania R. R. Co. v. Day, 1959, 360 U.S. 548, 554, 79 S.Ct. 1322, 3 L.Ed.2d 1422; Union Pacific R. R. Co. v. Price, 1959, 360 U.S. 601, 617, 79 S.Ct. 1351, 3 L.Ed.2d 1460, pointing up serious constitutional questions emphasize what they describe as the one-sided nature of judicial review: the employee loses, he has no right of review whatsoever; the employee wins, the carrier loses, the carrier has unlimited review on facts and law. . United States v. I. C. C., 1949, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451; Pennsylvania R. R. Co. v. United States, 1960, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165. . The ICC’s contention that the trial court, having jurisdiction, should nevertheless have declined to exercise it for eauitable considerations is without merit.

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

AUER et al. v. ROBBINS et al. No. 95-897. Argued December 10, 1996 Decided February 19, 1997 Michael T Leibig argued the cause and filed briefs for petitioners. Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel I. Spiller, and Mark S. Flynn. John B. Renick argued the cause for respondents. With him on the brief were James N. Foster, Jr., and Judith Anne Ronzio. Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt; for the International Union of Police Associations AFL-CIO et al. by Richard Cobb; for the National Association of Police Organizations, Inc., by William J. Johnson; for the National Employment Law Project, Inc., by Kenneth E. Labowitz; and for Non-Union Employees in the Private and Public Sectors by Brenda J. Carter. for the State of the Private Briefs of amici curiae urging affirmance were filed for the State of Wisconsin et al. by James E. Doyle, Attorney General of Wisconsin, Richard Briles Moriarty, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A Norton of Colorado, Richard Blumentkal of Connecticut, Robert A Butterworth of Florida, Michael J. Bowers of Georgia, Alan G. Lance of Idaho, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Thomas W. Corbett, Jr., of Pennsylvania, James S. Gilmore III of Virginia, and Christine 0. Gre-goire of Washington; for the Chamber of Commerce of the United States of America et al. by William J. Kilberg, Mark Snyderman, Stephan A. Bokat, and Mona C. Zeiberg; for the New York City Transit Authority by Richard Schoolman; for the Department of Water and Power of the City of Los Angeles by James K. Hahn, Thomas C. Hokinson, and Olga Hernandez Garau; for the Labor Policy Association by Sandra J. Boyd and Daniel V. Yager; and for the National League of Cities et al. by Richard Ruda, James I. Crowley, and Ronald S. Cooper. Florida, by John Ruda, Briefs of amici curiae were filed for Broward County, Florida, by John J. Copelan, Jr., and Anthony C. Musto; for the City of New York by Paul A Crotty, Leonard J. Koerner, and Timothy J. O’Shaughnessy; for the League of California Cities et al. by Arthur A Hartinger, Louise H. Renne, and Jonathan V. Holtzman; and for the International Association of Chiefs of Police, Inc., by Jody M. Litchford, Wayne W. Schmidt, James P. Manak, and Roy Caldwell Kime. Justice Scalia delivered the opinion of the Court. The Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §§201 et seq., exempts “bona fide executive, administrative, or professional” employees from overtime pay requirements. This case presents the question whether the Secretary of Labor’s “salary-basis” test for determining an employee’s exempt status reflects a permissible reading of the statute as it applies to public-sector employees. We also consider whether the Secretary has reasonably interpreted the salary-basis test to deny an employee salaried status (and thus grant him overtime pay) when his compensation may “as a practical matter” be adjusted in ways inconsistent with the test. I Petitioners are sergeants and a lieutenant employed by the St. Louis Police Department. They brought suit in 1988 against respondents, members of the St. Louis Board of Police Commissioners, seeking payment of overtime pay that they claimed was owed under § 7(a)(1) of the FLSA, 29 U. S. C. § 207(a)(1). Respondents argued that petitioners were not entitled to such pay because they came within the exemption provided by § 213(a)(1) for “bona fide executive, administrative, or professional” employees. Under regulations promulgated by the Secretary, one requirement for exempt status under § 213(a)(1) is that the employee earn a specified minimum amount on a “salary basis.” 29 CFR §§ 541.1(f), 541.2(e), 541.3(e) (1996). According to the regulations, “[a]n employee will be considered to be paid 'on a salary basis’... if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” § 541.118(a). Petitioners contended that the salary-basis test was not met in their case because, under the terms of the St. Louis Metropolitan Police Department Manual, their compensation could be reduced for a variety of disciplinary infractions related to the “quality or quantity” of work performed. Petitioners also claimed that they did not meet the other requirement for exempt status under § 213(a)(1): that their duties be of an executive, administrative, or professional nature. See §§541.1(a)-(e), 541.2(a)-(d), 541.3(aMd). The District Court found that petitioners were paid on a salary basis and that most, though not all, also satisfied the duties criterion. The Court of Appeals affirmed in part and reversed in part, holding that both the salary-basis test and the duties test were satisfied as to all petitioners. 65 F. 3d 702 (CA8 1995). We granted certiorari. 518 U. S. 1016 (1996). II The FLSA grants the Secretary broad authority to “de-fin[e] and delimi[t]” the scope of the exemption for executive, administrative, and professional employees. § 213(a)(1). Under the Secretary’s chosen approach, exempt status requires that the employee be paid on a salary basis, which in turn requires that his compensation not be subject to reduction because of variations in the “quality or quantity of the work performed,” 29 CFR § 541.118(a) (1996). Because the regulation goes on to carve out an exception from this rule for “[penalties imposed ... for infractions of safety rules of major significance,” § 541.118(a)(5), it is clear that the rule embraces reductions in pay for disciplinary violations. The Secretary is of the view that employees whose pay is adjusted for disciplinary reasons do not deserve exempt status because as a general matter true “executive, administrative, or professional” employees are not “disciplined” by piecemeal deductions from their pay, but are terminated, demoted, or given restricted assignments. A The FLSA did not apply to state and local employees when the salary-basis test was adopted in 1940. See 29 U. S. C. § 203(d) (1940 ed.); 5 Fed. Reg. 4077 (1940) (salary-basis test). In 1974 Congress extended FLSA coverage to virtually all public-sector employees, Pub. L. 93-259, § 6, 88 Stat. 58-62, and in 1985 we held that this exercise of power was consistent with the Tenth Amendment, Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985) (overruling National League of Cities v. Usery, 426 U. S. 833 (1976)). The salary-basis test has existed largely in its present form since 1954, see 19 Fed. Reg. 4405 (1954), and is expressly applicable to public-sector employees, see 29 CFR §§ 553.2(b), 553.32(c) (1996). Respondents concede that the FLSA may validly be applied to the public sector, and they also do not raise any general challenge to the Secretary’s reliance on the salary-basis test. They contend, however, that the “no disciplinary deductions” element of the salary-basis test is invalid for public-sector employees because as applied to them it reflects an unreasonable interpretation of the statutory exemption. That is so, they say, because the ability to adjust public-sector employees’ pay — even executive, administrative or professional employees’ pay — as a means of enforcing compliance with work rules is a necessary component of effective government. In the public-sector context, they contend, fewer disciplinary alternatives to deductions in pay are available. Because Congress has not “directly spoken to the precise question at issue,” we must sustain the Secretary’s approach so long as it is “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). While respondents’ objections would perhaps support a different application of the salary-basis test for public employees, we cannot conclude that they compel it. The Secretary’s view that public employers are not so differently situated with regard to disciplining their employees as to require wholesale revision of his time-tested rule simply cannot be said to be unreasonable. We agree with the Seventh Circuit that no “principle of public administration that has been drawn to our attention . . . makes it imperative” that public-sector employers have the ability to impose disciplinary pay deductions on individuals employed in genuine executive, administrative, or professional capacities. Mueller v. Reich, 54 F. 3d 438, 442 (1995), cert. pending, No. 95-586. Respondents appeal to the “quasi military” nature of law enforcement agencies such as the St. Louis Police Department. The ability to use the full range of disciplinary tools against even relatively senior law enforcement personnel is essential, they say, to maintaining control and discipline in organizations in which human lives are on the line daily. It is far from clear, however, that only a pay deduction, and not some other form of discipline — for example, placing the offending officer on restricted duties — will have the necessary effect. Because the FLSA entrusts matters of judgment such as this to the Secretary, not the federal courts, we cannot say that the disciplinary-deduction rule is invalid as applied to law enforcement personnel. B The more fundamental objection respondents have to the disciplinary-deduction rule is a procedural one: The Secretary has failed to give adequate consideration to whether it really makes sense to apply the rule to the public sector. Respondents’ amici make the claim more specific: The Secretary’s failure to revisit the rule in the wake of our Garcia decision was “arbitrary” and “capricious” in violation of the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). It is certainly true that application of the disciplinary-deduction rule to public-sector employees raises distinct issues that may warrant the Secretary’s formal consideration; this much is suggested by the veritable flood of post-Garcia litigation against public employers in this area, see, e. g., Carpenter v. Denver, 82 F. 3d 353 (CA10 1996), cert. pending, No. 95-2088; Bankston v. Illinois, 60 F. 3d 1249 (CA7 1995); Shockley v. Newport News, 997 F. 2d 18 (CA4 1993); Atlanta Professional Firefighters Union, Local 134 v. Atlanta, 920 F. 2d 800 (CA11 1991). But respondents’ complaints about the failure to amend the disciplinary-deduction rule cannot be raised in the first instance in the present suit. A court may certainly be asked by parties in respondents’ position to disregard an agency regulation that is contrary to the substantive requirements of the law, or one that appears on the public record to have been issued in violation of procedural prerequisites, such as the “notice and comment” requirements of the APA, 5 U. S. C. § 553. But where, as here, the claim is not that the regulation is substantively unlawful, or even that it violates a clear procedural prerequisite, but rather that it was “arbitrary” and “capricious” not to conduct amendatory rulemaking (which might well have resulted in no change), there is no basis for the court to set aside the agency’s action prior to any application for relief addressed to the agency itself. The proper procedure for pursuit of respondents’ grievance is set forth explicitly in the APA: a petition to the agency for rulemaking, § 553(e), denial of which must be justified by a statement of reasons, § 555(e), and can be appealed to the courts, §§ 702, 706. III A primary issue in the litigation unleashed by application of the salary-basis test to public-sector employees has been whether, under that test, an employee’s pay is “subject to” disciplinary or other deductions whenever there exists a theoretical possibility of such deductions, or rather only when there is something more to suggest that the employee is actually vulnerable to having his pay reduced. Petitioners in effect argue for something close to the former view; they contend that because the police manual nominally subjects all department employees to a range of disciplinary sanctions that includes disciplinary deductions in pay, and because a single sergeant was actually subjected to a disciplinary deduction, they are “subject to” such deductions and hence nonexempt under the FLSA. The Court of Appeals rejected petitioners’ approach, saying that “[t]he mere possibility of an improper deduction in pay does not defeat an employee’s salaried status” if no practice of making deductions exists. 65 F. 3d, at 710-711. In the Court of Appeals’ view, a “one-time incident” in which a disciplinary deduction is taken under “unique circumstances” does not defeat the salaried status of employees. Id., at 711. (In this case the sergeant in question, who had violated a residency rule, agreed to a reduction in pay as an alternative to termination of his employment.) The requirement of actual deductions was also imposed in an earlier ruling by the Eighth Circuit, McDonnell v. Omaha, 999 F. 2d 293, 296-297 (1993), cert. denied, 510 U. S. 1163 (1994), and in an Eleventh Circuit case, Atlanta Professional Firefighters Union, Local 134 v. Atlanta, supra, at 805. Other Circuits have rejected the requirement, Yourman v. Dinkins, 84 F. 3d 655, 656 (CA2 1996), cert. pending, No. 96-152; Carpenter v. Denver, supra, at 359-360; Bankston v. Illinois, supra, at 1253; Kinney v. District of Columbia, 994 F. 2d 6, 10-11 (CADC 1993); Abshire v. County of Kern, 908 F. 2d 483, 486-488 (CA9 1990), cert. denied, 498 U. S. 1068 (1991); or else have imposed a requirement of actual deductions only in the face of vagueness or ambiguity in the governing policy, Michigan Assn. of Governmental Employees v. Michigan Dept. of Corrections, 992 F. 2d 82, 86 (CA6 1993). The Secretary of Labor, in an amicus brief filed at the request of the Court, interprets the salary-basis test to deny exempt status when employees are covered by a policy that permits disciplinary or other deductions in pay “as a practical matter.” That standard is met, the Secretary says, if there is either an actual practice of making such deductions or an employment policy that creates a “significant likelihood” of such deductions. The Secretary’s approach rejects a wooden requirement of actual deductions, but in their absence it requires a clear and particularized policy — one which “effectively communicates” that deductions will be made in specified circumstances. This avoids the imposition of massive and unanticipated overtime liability (including the possibility of substantial liquidated damages, see, e. g., Kinney v. District of Columbia, supra, at 12) in situations in which a vague or broadly worded policy is nominally applicable to a whole range of personnel but is not “significantly likely” to be invoked against salaried employees. Because the salary-basis test is a creature of the Secretary’s own regulations, his interpretation of it is, under our jurisprudence, controlling unless “ ‘plainly erroneous or inconsistent with the regulation.’” Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). That deferential standard is easily met here. The critical phrase “subject to” comfortably bears the meaning the Secretary assigns. See American Heritage Dictionary 1788 (3d ed. 1992) (def. 2: defining “subject to” to mean “prone; disposed”; giving as an example “a child who is subject to colds”); Webster’s New International Dictionary 2509 (2d ed. 1950) (def. 3: defining “subject to” to mean “[ejxposed; liable; prone; disposed”; giving as an example “a country subject to extreme heat”). The Secretary’s approach is usefully illustrated by reference to this ease. The policy on which petitioners rely is contained in a.section of the police manual that lists a total of 58 possible rule violations and specifies the range of penalties associated with each. All department employees are nominally covered by the manual, and some of the specified penalties involve disciplinary deductions in pay. Under the Secretary’s view, that is not enough to render petitioners’ pay “subject to” disciplinary deductions within the meaning of the salary-basis test. This is so because the manual does not “effectively communicate” that pay deductions are an anticipated form of punishment for employees in petitioners’ category, since it is perfectly possible to give full effect to every aspect of the manual without drawing any inference of that sort. If the statement of available penalties applied solely to petitioners, matters would be different; but since it applies both to petitioners and to employees who are unquestionably not paid on a salary basis, the expressed availability of disciplinary deductions may have reference only to the latter. No clear inference can be drawn as to the likelihood of a sanction’s being applied to employees such as petitioners. Nor, under the Secretary’s approach, is such a likelihood established by the one-time deduction in a sergeant’s pay, under unusual circumstances. Petitioners complain that the Secretary’s interpretation comes to us in the form of a legal brief; but that does not, in the circumstances of this ease, make it unworthy of deference. The Secretary’s position is in no sense a “post hoc rationalization]” advanced by an agency seeking to defend 'past agency action against attack, Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988). There is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question. Petitioners also suggest that the Secretary’s approach contravenes the rule that FLSA exemptions are to be “narrowly construed against... employers” and are to be withheld except as to persons “plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U. S. 388, 392 (1960). But that is a rule governing judicial interpretation of statutes and regulations, not a limitation on the Secretary’s power to resolve ambiguities in his own regulations. A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute. h-H < One small issue remains unresolved: the effect upon the exempt status of Sergeant Guzy, the officer who violated the residency requirement, of the one-time reduction in his pay. The Secretary’s regulations provide that if deductions which are inconsistent with the salary-basis test — such as the deduction from Guzy’s pay — are made in circumstances indicating that “there was no intention to pay the employee on a salary basis,” the exemption from the FLSA is “[not] applicable to him during the entire period when such deductions were being made.” 29 CFR § 541.118(a)(6) (1996). Conversely, “where a deduction not permitted by [the salary-basis test] is inadvertent, or is made for reasons other than lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future.” Ibid. Petitioners contend that the initial condition in the latter provision (which enables the employer to take corrective action) is not satisfied here because the deduction from Guzy’s pay was not inadvertent. That it was not inadvertent is true enough, but the plain language of the regulation sets out “inadvertence]” and “made for reasons other than lack of work” as alternative grounds permitting corrective action. Petitioners also contend that the corrective provision is unavailable to respondents because Guzy has yet to be reimbursed for the residency-based deduction; in petitioners’ view, reimbursement must be made immediately upon the discovery that an improper deduction was made. The language of the regulation, however, does not address the timing of reimbursement, and the Secretary’s amicus brief informs us that he does not interpret it to require immediate payment. Respondents are entitled to preserve Guzy’s exempt status by complying with the corrective provision in § 541.118(a)(6). * *■ * Petitioners have argued, finally, that respondents failed to carry their affirmative burden of establishing petitioners’ exempt status even under the Secretary’s interpretation of the salary-basis test. Since, however, that argument was inadequately preserved in the prior proceedings, we will not consider it here. See Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970). The judgment of the Court of Appeals is affirmed. It is so ordered. Respondents contend that the District Court lacked jurisdiction over petitioners’ suit by virtue of the Eleventh Amendment. The Board of Police Commissioners, however, does not share the immunity of the State of Missouri. While the Governor appoints four of the board’s five members, Mo. Rev. Stat. § 84.030 (1994), the city of St. Louis is responsible for the board’s financial liabilities, §84.210, and the board is not subject to the State’s direction or control in any other respect. It is therefore not an “arm of the State” for Eleventh Amendment purposes. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 47-51 (1994); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391, 401-402 (1979). Petitioners also contend that additional sergeants were actually subjected to disciplinary deductions, but that fact is not established by the portions of the record petitioners cite.

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?

Florence QUEEN, Appellant, v. UNITED STATES of America, Appellee. No. 18035. United States Court of Appeals District of Columbia Circuit. Argued Feb. 20, 1964. Decided June 29, 1964. Mr. William B. Bryant (appointed by this court), Washington, D. C., for appellant. Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee. Before Bajzelon, Chief Judge, and Fahy and Wright, Circuit Judges. PER CURIAM. In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (decided May 18, 1964) on review of a conviction of a federal offense, secured in part by the admission at trial of incriminating statements of the petitioner, the accused, the Court held that his right to the assistance of counsel guaranteed by the Sixth Amendment had been violated by the admission of the statements: “We hold that the petitioner was denied the basic protections of that guarantee when there was used j against him at his trial evidence of his own incrimininating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. at 1203. The opinion states that the most elemental concepts of due process of law contemplate that an indictment be followed by trial in a courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law. The Court contrasted these elemental concepts of due process with the use at trial of incriminating statements obtained after indictment and prior to trial in such extra-judicial proceedings as secret interrogation by the police. In the present case also the convictions were obtained by use at trial of self-incriminating statements of the accused elicited by extra-judicial secret police interrogation prior to trial. It is true appellant had not been indicted; but other circumstances present in this case compel the same result as in Mas-siah. See Escobedo v. Illinois, 84 S.Ct. 1758. These circumstances are as follows: Appellant had been arrested March 14 and taken the next day before a United States Commissioner. He admitted her to bail and continued the proceedings to allow her to obtain counsel, as she requested opportunity to do. On the continued date, March 28, she reappeared, as of course she was required to do, at the offices of the Commissioner, but without counsel. The police officer who had arrested her approached her in the witness room where she was awaiting appearance before the Commissioner. With two other officers he escorted her into another room, he says with her assent, to be questioned, alone with the officers. He also said he advised her of her right not to make a statement and that if she did so it might be used against her. He testified, however, that he knew she had asked for the continuance to obtain a lawyer, and he asked her if she had obtained counsel, to which she replied either that she had obtained a lawyer, was in the process of obtaining one, or was going to do so. He was not sure which of these answers she gave. He said he talked to her to try to get to the truth of the matters involved in the charge: “I didn’t feel that she had told me the truth on the 14th,” the date of the arrest, “so I wanted to talk to her on this occasion to find out the whole truth if I could.” In the course of this secret interrogation, in the absence of counsel, and during the continuance granted for the very purpose of enabling counsel to be obtained, the self-incriminating statements were elicited. The result of this intervention by the officers was to frustrate the right of the accused to have the assistance of counsel until by reason of these extra-judicial proceedings such assistance would be rendered fruitless if the statements thus obtained could be used to convict. For this reason, and notwithstanding the absence of an indictment, the case clearly comes within the reasoning which led to the exclusion of the evidence in Massiah and Escobedo. And see Ricks v. United States, 118 U.S. App.D.C.-, 334 F.2d 964. Reversed and remanded. . She had been so advised by the Commissioner on the 15th.

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

Oliver GRISSOM, Plaintiff-Appellant, v. Lewis SCOTT, Defendant-Appellee. No. 90-4754. United States Court of Appeals, Fifth Circuit. June 28, 1991. Oliver Grissom, pro se. Before REYNALDO G. GARZA, HIGGINBOTHAM and DAVIS, Circuit Judges. PER CURIAM: Appellant Oliver Grissom, an inmate at the Louisiana State Penitentiary, filed this § 1983 action against his former defense attorney, Lewis Scott. Grissom sought in forma pauperis status. The magistrate determined that Grissom had enough money to pay a partial filing fee of $55 and ordered that he do so to pursue his case. Grissom paid the partial fee. In his complaint, Grissom alleged that Scott conspired with the State to deny him due process by refusing to provide a copy of the trial record. The magistrate ruled that Grissom’s complaint was insufficient, but allowed him an opportunity to specify the nature of his claim. Grissom filed a statement in response. The magistrate then recommended dismissal under 28 U.S.C. § 1915(d). The district court accepted the recommendation and dismissed the complaint. This is Grissom’s appeal. He contends that the district court may not dismiss his suit under section 1915(d) after he has followed the court’s order and paid a partial filing fee. We agree. Federal Rule of Civil Procedure 4(a) requires that a summons issue when a complaint is filed. A complaint is considered filed when the filing fee (if one is required) is paid. Herrick v. Collins, 914 F.2d 228, 230 (11th Cir.1990); Bryan v. Johnson, 821 F.2d 455, 457 (7th Cir.1987). Section 1915(d)’s policy of curbing frivolous or malicious litigation requires no different result when a plaintiff proceeding in forma pauperis has paid a partial filing fee. That policy is adequately served if the district court, when it initially considers the plaintiff’s motion to proceed in forma pauperis, makes its determination that the complaint is frivolous and dismisses the complaint at that time. And if the district court permits the complaint to be filed upon payment ■of a partial fee, the litigant’s choice to pay that amount out of his limited assets indicates that, at the least, the litigant believes in his claim. Herrick, 914 F.2d at 230. We therefore adopt the rule that has been adopted by the Eleventh, Seventh, and Eighth Circuits: when a district court allows a litigant to proceed upon the payment of a partial filing fee, the court should treat the complaint in the same manner as a complaint that was not filed in forma pauperis: Id,.; In re Funkhouser, 873 F.2d 1076, 1077 (8th Cir.1989); Bryan, 821 F.2d at 458. Requiring the issuance of a summons when the court has granted an in forma pauperis motion and required payment of a partial filing fee avoids a conflict between section 1915 and Federal Rule of Civil Procedure 4(a) yet maintains section 1915(d)’s policy of curbing frivolous litigation by plaintiffs who proceed in forma pauperis. Herrick, 914 F.2d at 230. In this ease, following the amendment of Gris-som’s complaint under Federal Rule of Civil Procedure 15(a), the district court could have determined whether the suit was frivolous. If it found that the suit was frivolous, it should have dismissed it without requiring the filing of a partial fee. For the foregoing reasons, we vacate the district court’s order to dismiss and remand the matter to the district court so that it can reinstate the action and direct the issuance of a summons to the defendant. We express no opinion on the merits of the plaintiff’s claim. VACATED AND REMANDED. . The rule provides: “Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiffs attorney, who shall be responsible for prompt service of the summons and a copy of the complaint."

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

WARLICH v. MILLER et al. No. 8513. Circuit Court of Appeals, Third Circuit. Argued Jan. 7, 1944. Decided Feb. 29, 1944. John R. Bredin, of Pittsburgh, Pa. (Dalzell, McFall & Pringle, of Pittsburgh, Pa., on the brief), for appellant. John H. Sorg, of Pittsburgh, Pa., for appellees. Before BIGGS, JONES, and GOODRICH, Circuit Judges. GOODRICH, Circuit Judge. This is an action to recover for personal injuries and property damage resulting from a collision between plaintiff’s automobile and defendant’s truck. At the close of plaintiff’s case the trial court directed a verdict for defendants and subsequently refused to set aside the directed verdict or grant a new trial. The plaintiff appeals from the judgment against her. The only question before us is whether she made out a case for the jury. The collision occurred on the Pennsylvania Turnpike on December 28, 1941, at about 5:45 P. M. The Turnpike is a “super-highway”, having four lanes of traffic, two eastbound and two westbound, separated by a wide stripe. The portion of the highway with which we are concerned was straight and level. The plaintiff produced two witnesses: one was herself and the other an occupant, but not the driver, of defendant’s truck at the time of the collision. Plaintiff testified concerning the accident as follows: Both vehicles were proceeding on the eastbound lanes. Initially, the truck was ahead of her but later she passed it. She was then overtaken by the truck. Subsequently plaintiff decided to pass the truck again. Both vehicles were travelling about 50 m.p.h. Plaintiff increased her speed slightly and pulled out in the left lane to pass, blowing her horn several times to make sure the truck driver would hear her. As she came alongside, to about the middle of the truck, the driver of that vehicle increased its speed to about 61 m.p.h. Plaintiff increased her speed. She “had just passed” the cab of the truck, and was proceeding perfectly straight, without changing her direction in any way when she felt a crash at the right rear of her car, was knocked unconscious, revived to see herself heading for an embankment, felt another crash and awoke in a turned over car. On cross-examination plaintiff testified that the truck had not been going steady, but “a little bit to right and left and center” that the truck was “not zigzagging, but just changing off a little bit. * * * he did not keep a straight line.” The truck had been proceeding in this manner for some time before she attempted to pass it. Before she passed it the second time it was bearing slightly from the right side of the road to the left. Plaintiff’s other witness testified that when all but the right rear fender of plaintiff’s car had passed the front of the truck, her car began to swerve to the right to go into the right lane, and that contact then occurred between the truck and automobile. He 'also stated that when the automobile was passing the truck, the truck at no time turned left. At the close of the plaintiff’s evidence the court directed a verdict against her. The operative facts occurred in Pennsylvania. Suit having been brought in the federal court in that state, Pennsylvania tort law controls the rights and liabilities of the litigants. Furthermore, at this stage of the suit the evidence is to be considered in the light most favorable to the plaintiff and all reasonable inferences which may be deduced from the evidence in her favor aid her case. So considered, we believe that plaintiff’s evidence entitled her to go to the jury. The Pennsylvania legislature has defined the standard of care to be observed by a motorist on a highway when being overtaken by another motorist. By statute, a driver of a vehicle about to be overtaken and passed by another vehicle approaching from the rear, must give way to the right in favor of the overtaking vehicle on suitable and audible signal being given by that vehicle. Furthermore, the driver of the overtaken vehicle must not increase its speed until completely passed by the passing vehicle. It is apparent that one of the legislative purposes was to set up a standard of care to avoid collisions where one is passing another’s car. If a motorist being overtaken does not adhere to the standard specified and this breach of the statutory standard of care causes injury to an overtaking motorist, who is himself free from contributory negligence, then the former is liable to the injured party. Jinks v. Currie, 1936, 324 Pa. 532, 188 A. 356; Gaskill v. Melella, 1941, 144 Pa.Super. 78, 18 A.2d 455; 2 Restatement, Torts 1934, § 286. Here, the defendant’s driver, according to the evidence, and inferences therefrom favorable to the plaintiff, breached the statutory duty owed to the plaintiff by (1) increasing his speed and (2) not keeping his vehicle to the right side of the road, when the plaintiff sought to pass after having given the required signal. A jury could well find, if it believed the plaintiff’s testimony, that the failure to observe the statutory standard of care was the legal cause of the collision. Furthermore, even apart from the statute, there is sufficient evidence for a jury to find that the conduct of defendant’s driver was negligent with respect to the plaintiff. If the plaintiff’s story is accepted, the inference that the truck veered from the right to the left and struck the plaintiff’s car is entirely reasonable as is the conclusion that the driver was negligent in doing so. The defendants have argued that all the plaintiff showed was the mere occurrence of an accident, and point to the undisputed rule that this alone does not afford proof of negligence. Therefore, it is contended, the plaintiff is bound by the testimony of her other witness who testified that it was the plaintiff who turned from the left lane into the right and thus caused the collision. The plaintiff of course had the burden of proving negligence by the defendant. The Pennsylvania rule is that a plaintiff’s case is entitled to go to the jury if his testimony makes out a case sufficient to sustain a verdict in his favor, although the plaintiff introduces further evidence, through another witness, which is conflicting on the issue of defendant’s negligence. Lewis v. Pittsburgh Railways Company, 1938, 132 Pa.Super. 394, 200 A. 704; Todd v. Philadelphia & Reading Railway Company, 1902, 201 Pa. 558, 51 A. 332. There is uncontradicted evidence that defendant’s truck and plaintiff’s automobile collided and that the point of collision was the right rear of the automobile and the front left of the truck. If plaintiff’s testimony is believed, it shows much more than the happening of an accident. It “describes, pictures, or visualizes” quite clearly the events which took place and in the process affords ample basis for a finding of negligence on the part of the defendant’s driver. It was for the jury to decide whether it would accept plaintiff’s version of the events or that of her witness, the occupant of the truck. There remains the question of whether plaintiff was contributorily negligent and is therefore barred from recovery. The burden of proving contributory negligence was on the defendants. It is urged that plaintiff, in attempting to overtake a truck which she noticed was not being properly driven and which was bearing slightly to the left at the time she started overtaking, has herself shown that she was contributorily negligent. We do not think this conduct amounts to contributory negligence as a matter of law. Even though these facts appear from plaintiff’s own testimony, any question of her contributory negligence under the circumstances was for the jury. Cf. Kessler v. Philadelphia R. T. Co., 1932, 107 Pa.Super. 143, 163 A. 393. The judgment of the District Court is reversed and the case remanded for further proceedings not inconsistent with this opinion. 75 P.S. § 544. The defendants cite: Wenhold v. O’Dea, 1940, 338 Pa. 33, 12 A.2d 115; Martin v. Marateck, 1942, 345 Pa. 103, 27 A.2d 42. See the language used by the court in Martin v. Marateck, supra, 345 Pa. at page 106, 27 A.2d at page 44. See Felo v. Kroger Grocery & Baking Company, 1943, 347 Pa. 142, 31 A.2d 552, where conduct by a driver being overtaken, comparable to the conduct by defendant’s driver, in this case, supported recovery by an on-coming motorist injured by collision with the overtaking vehicle.

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?

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 appellant. 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 appellant. 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?

FIFTH AVENUE BANK OF NEW YORK v. HAMMOND REALTY CO. et al. No. 8023. Circuit Court of Appeals, Seventh Circuit. Oct. 30, 1942. Joseph H. Schwartz, Edward A. Cooper, and Norman H. Nachman, all of Chicago, 111. (Schwartz & Cooper and Harry Adelman, all of Chicago, 111., of counsel), for appellant. Jay E. Darlington and Frederick C. Crumpacker, both of Hammond, Ind., and Walter Myers, of Indianapolis, Ind., for appellees. Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge. MINTON, Circuit Judge. The plaintiff, a New York corporation, as executor of the last will and testament of Isabel D. McHie, brought suit in the Northern District of Indiana against the Hammond Realty Company on certain past-due bonds, and against the defendant Sidmon McHie as a guarantor of the paymefit of said bonds under a written guaranty of April 11, 1933. The District Court found for the plaintiff and against the defendant Hammond Realty Company in the sum of $10,365.47 and costs; and declined to give judgment against Sidmon McHie and entered judgment for him on his counterclaim, holding that McHie was the equitable owner of all the property of which the testatrix died seized. Neither the plaintiff nor the defendant Hammond Realty Company appealed from the judgment against that company. The time for appeal has long since expired, and this judgment has become final and conclusive. The plaintiff did appeal from that part of the final judgment “that plaintiff recover no judgment against Sidmon McHie,” and which found fov Sidmon McHie on his counterclaim that he was the equitable owner of the property. After notice of this appeal had been given, an execution was issued against the Hammond Realty Company. Under that execution there was a levy upon certain property of the company, and the marshal collected one thousand dollars from the company on said execution. The defendant-appellee Sidmon McHie has made a motion in this court that the appeal be dismissed on the ground that the plaintiff cannot appeal from a judgment under which it has received a benefit, citing an Indiana statute and numerous Indiana cases to that effect. We recognize the existence of such a rule, but there is a well-known exception thereto, and we think the plaintiff-appellant comes within that exception. The rule and the exception are clearly stated by Judge Shake of the Indiana Supreme Court in State ex rel. Jackson v. Middleton, 215 Ind. 219, 224, 19 N.E.2d 470, 472, 20 N.E.2d 509, as follows: “The statute (§ 2-3201, Burns’ 1933, Sec. 471, Baldwin’s 1934) is merely declaratory of the common law rule that a party cannot accept the benefit of an adjudication and yet allege it to be erroneous. 4 C.J.S., Appeal and Error, § 216, p. 416. But, like most general rules, this has its exceptions and it is accordingly recognized that an acceptance of an amount to which the acceptee is entitled in any event does not estop him from appealing from or bringing error to the judgment or decree ordering its payment. City of Indianapolis v. Stutz Motor Car Co., 1932, 94 Ind.App. 211, 180 N.E. 497. The facts upon which the court below rendered judgment against the appellees for $249.33 were stipulated by the parties and are undisputed. The appellant has not challenged the propriety of that part of the judgment by cross-errors and, so far as the motion to dismiss the appeal is concerned, the case comes clearly within the exception to the rule stated above. Appellees’ motion to dismiss is therefore denied.” See, also, City of Indianapolis v. Stutz Motor Car Co., 94 Ind.App. 211, 180 N.E. 497. The judgment against the Hammond Realty Company became final and conclusive and was not appealed from, and the plaintiff on facts stipulated was entitled to the judgment against it in any event. What the plaintiff collected from the Hammond Realty Company was the plaintiff’s just due and in no wise prejudiced Sidmon McHie. If the case was affirmed, Sidmon McHie could not be hurt because the plaintiff would be holding the proceeds for the benefit of Sidmon McHie as the equitable owner thereof. If the case was reversed and Sidmon McHie held liable as a guarantor and not to be entitled as equitable owner, then the amount collected on the judgment against the Hammond Realty Company would reduce by that much the amount Sidmon McHie would have to pay as guarantor. The motion to dismiss is overruled. This brings us to a consideration of the judgment in favor of Sidmon McHie on his counterclaim, and the judgment that plaintiff do not recover against him as guarantor. Sidmon McHie and the testatrix were married in 1909 and lived together as husband and wife until December, 1925, when they separated. On May 12, 1919 Mr. and Mrs. McHie had entered into a written contract for reciprocal wills, each providing that if the other survived he or she would provide by will that such survivor would get the property of the deceased person. After the parties had separated, to wit, on March 22, 1926, they entered into a contract for the disposition and division of their property, and the agreement of May 12, 1919 was expressly rescinded. The contract of March 22, 1926 is a document covering five pages .in the record and disposing of many hundreds of thousands of dollars worth of property between the parties. It also provides that in addition to the property given to and confirmed to Isabel D. McHie under said agreement, the defendant Sidmon McHie was to pay her one thousand dollars a month for her support as long as she lived. The Sixth Covenant of this contract provides as follows: “Sixth: It is agreed that the parties shall live apart and separate and shall not annoy or molest each other.” All the provisions of the contract were executed except the monthly payments and the continuing obligation of the Sixth Covenant. In May, 1932 Sidmon McHie defaulted in his payments of support under the contract, and continued in default. Sidmon McHie filed suit for divorce against Isabel D. McHie in the Lake Superior Court, and decree was entered in his favor, granting him a divorce July 3, 1936. This judgment was affirmed by the Appellate Court of Indiana. The divorce decree was granted on the grounds of cruel and inhuman treatment, which included, among other things, annoyance and molestation of Sidmon McHie by Isabel D. McHie in violation of the covenant of the contract of March 22, 1926. Sidmon McHie’s counterclaim in the matter now before this court declared upon the contract for reciprocal wills of May 12, 1919. The plaintiff answered that this contract had been rescinded by the contract of March 22, 1926. The District Court found that because Isabel D. McHie had flagrantly violated the Sixth Covenant of the contract of March 22, 1926, the consideration for this contract had failed and Sidmon McHie had a right to treat it as no longer in effect; and the contract of May 12, 1919 was thereby revived, and under this contract Sidmon McHie was the equitable owner of the property of which the testatrix died seized. The court found that Sidmon McHie did guarantee the payment of the bonds in suit. The court further found that for a valuable consideration Sidmon McHie did on February 1, 1939, in writing, guarantee the payment of these bonds. The court declined to enter judgment against Sidmon McHie as such guarantor for the reason that the court had found he was the equitable owner of the bonds and it would be equivalent to entering a judgment in favor •of himself. The court did not declare whether Sidmon McHie was a guarantor of the bonds in suit under the written guaranty of April 11, 1933 or that of February 1, 1939. We put to one side the effect the divorce decree had upon the property rights of the McHies, and we shall examine the covenants of the contract of March 22, 1926, which the District Court found Isabel D. McHie had flagrantly breached by annoying and molesting Sidmon McHie. Because she had breached this covenant, the District Court held consideration for the contract failed and Sidmon McHie was entitled to consider the contract of March 22, 1926 as at an end, and the contract of May 19, 1919 restored. The essence of the contract of March 22, 1926 was the settlement of the extensive property rights of the parties, and this contract, as we have pointed out before, had been executed in every respect except as to the mutual obligations under the Sixth Covenant not to molest each other, and the covenant of McHie to pay one thousand dollars a month support, which he breached. The Sixth Covenant was an independent covenant, and it contained the mutual promise of each of the parties not to annoy or molest the other. The defendant Sidmon McHie, as we have pointed out, had breached the contract as to the payments for support. He never paid on it after May, 1932. This undoubtedly annoyed Isabel D. McHie, and was doubtless the reason why she exhibited her annoyance to and molested the defendant Sidmon McHie. Because the Sixth Covenant was an independent covenant and not the essence of the contract, we do not think its breach constituted such failure of consideration as to entitle the defendant Sidmon McHie to treat the contract as ended. Hughes v. Burke, 167 Md. 472, 175 A. 335, 337; Sabbarese v. Sabbarese, 104 N.J.Eq. 600, 146 A. 592. As to the liability of Sidmon McHie on his guaranty, we again lay to one side the effect of the divorce decree upon the written agreement of April 11, 1933. The trial court found that Sidmon McHie was the guarantor of the bonds in suit, and found that he had for a valuable consideration on February 1, 1939 guaranteed in writing the payment of these bonds. The evidence of this later guaranty was admitted in the trial court without objection and was considered by the court on the motion for summary judgment. While it is true that the plaintiff had declared in its pleadings upon the written guaranty of April 11, 1933 and not the one of February 1, 1939, still since the evidence of the guaranty of February 1, 1939 was admitted without objection and approved by the court in a special finding, such finding is sufficient to support the court’s conclusion of law that Sidmon McHie was the guarantor of the bonds in suit, and the pleadings will be deemed amended to meet the proof. Federal Rules of Civil Procedure, rule 15 (b), 28 U.S.C.A. following section 723c. Low v. Davidson Mfg. Co., 7 Cir., 113 F.2d 364. The judgment is reversed with instructions to vacate the judgment in favor of Sidmon McHie on the counterclaim, and to enter judgment against him on his written agreement of February 1, 1939 as' guarantor of the payment of said bonds.

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

BADGER et al. v. HOIDALE et al. (two cases). Nos. 10722, 10723. Circuit Court of Appeals, Eighth Circuit. Feb. 18, 1937. Loring M. Staples, of Minneapolis, Minn. (Armin M. Johnson and Cobb, Hoke, Benson, Krause & Faegre, all of Minneapolis, Minn., on the brief), for appellants. Karl H. Covell, of Minneapolis, Minn. (Charles B. Carroll, of Minneapolis, Minn., on the brief), for appellees. Before GARDNER, THOMAS, and FARIS, Circuit Judges. GARDNER, Circuit Judge. These are two appeals from orders which adjudged a 100 per cent, stockholders’ liability assessment against the stockholders of two Minnesota corporations. The questions presented are stated by counsel for appellants as follows: First, were the stockholders of the Down Town Realty Company relieved of an additional liability as stockholders by the adoption of the constitutional amendment; and, second, did the mere adoption of the constitutional amendment prior to any legislation authorized thereby, prevent the stockholders of the corporation from becoming liable for the superadded liability when the corporation assumed all the liabilities of the company on December 19, 1930? The pertinent facts chronologically stated are as follows: On May 20, 1920, the Down Town Realty Company was incorporated under the laws of the State of Minnesota. At that time the Constitution of Minnesota provided for a so-called double liability or stockholders’ liability of such a corporation. On November 24, 1930, an amendment was adopted which, among other things, provided that “the Legislature shall have power from time to time to provide for, limit and otherwise regulate the liability of stockholders.” Const.Minn. art. 10, § 3. On April 18, 1931, the Legislature passed a statute which in effect provided that no stockholders of any corporation (of the kind here involved) should be liable for any debts of such corporation, but with a saving clause as to any existing liability. Laws Minn.1931, c. 210. On March 15, 1928, the Down Town Realty Company incurred indebtedness to certain creditors whose claims are yet unpaid. • On December 17, 1930, the Down Town Realty Corporation was incorporated under the laws of Minnesota, and two days thereafter it took over all the assets and assumed all the liabilities of the Down Town Realty Company, some of which liabilities have not yet been paid. To avoid confusion, we shall refer to the Down Town Realty Company as the old company, and the Down Town Realty Corporation as the new company. In June, 1935, creditors of the old company whose obligations were incurred in 1928, brought separate suits in the United States District Court against each company, asking for the appointment of a receiver on the ground that each defendant was insolvent, and asking that the receiver be directed to enforce the liability of the stockholders of each corporation. Each company defended on the ground that an amendment to the Minnesota Constitution had repealed the prior existing stockholders’ liability. The answers also challenged the authority and right of a receiver to enforce the liability. The new company alleged that it was organized after the amendment took effect, and hence was not liable. The court appointed a receiver with the usual powers of a receiver, to take over the property and collect and administer the assets, and in addition the order provided that, “said receiver is hereby authorized and empowered to enforce by appropriate action the constitutional liability of the holders of its capital stock and to administer and dispose of the proceeds and avails thereof, under the direction of this court for the benefit of the complainants and all others similarly situated, etc.” The receiver then instituted proceedings against the stockholders of each corporation to recover an assessment in the amount of 100 per cent, of the' par value of each share of stock of the corporation of which the stockholder was the record owner. Upon trial of these proceedings the court entered orders against the stockholders of each corporation, and the present appeals are from those orders. Section 3 of article 10 of the Constitution of Minnesota, prior to November 24, 1930," contained provision that: “Each stockholder in any corporation, excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business, ' shall be liable to the amount of stock held or owned by him.” At the 1930 election, the voters of Minnesota adopted a constitutional amendment that had been duly submitted for their approval or rejection. This submission was in the following language. “Section 1. Amendment proposed.— The following amendment to Section 3, of Article 10, of the Constitution of the State of Minnesota, as hereby proposed to the people of the State for their approval or rejection, which amendment, when so adopted, shall read as follows: “ ‘Sec. 3. The Legislature shall have power from time to time to provide for, limit and otherwise regulate the liability of stockholders or members of corporations and co-operative corporations or associations, however organized. Provided every stockholder in a banking or trust corporation or association shall be individually liable in an amount equal to the amount of stock owned by him for all debts of such corporation contracted prior to any transfer of such stock and such individual liability shall continue for one year after any transfer of such stock and the entry thereof on the books of the corporation or association.’ ” Laws Minn. 1929, c. 429: On November 24, 1930, the Governor of Minnesota by proclamation announced that the amendment had been approved and adopted. The new company was organized after the adoption of the amendment. The stockholders of each of the companies were by the order entered held liable to creditors on the theory that the Constitution as it existed prior to the date of the adoption of the amendment continued to provide for a stockholders’ liability until the Legislature by enactment abolished such liability, because the amendment was not self-executing and did not effect a repeal of the old section 3, article 10 of the Constitution. Appellants seek a reversal of these orders on the grounds that (1) the constitutional liability was abolished by the amendment of November 24, 1930; (2) such abolition violated no constitutional rights; and (3) the appellee as receiver cannot enforce the liability if it exists. It has been authoritatively determined that the constitutional provision for stockholders’ liability as it existed in the Constitution of Minnesota prior to the amendment of 1930 was self-executing. Way v. Barney, 116 Minn. 285, 133 N.W. 801, 38 L.R.A.(N.S.) 648, Ann.Cas.1913A, 719; Converse v. Hamilton, 224 U.S. 243, 32 S.Ct. 415, 56 L.Ed. 749, Ann.Cas.1913D, 1292. It seems quite clear that the 1930 amendment was not entirely self-executing. It empowered the Legislature to provide for, limit, and otherwise regulate the liability of stockholders or members of corporations or co-operative associations. That was an authorization to the Legislature, but the question with which we are confronted is not whether it is self-executing, but whether its adoption had the effect of repealing the provisions “of section 3, article 10, as they existed before the adoption of the amendment. In Saetre v. Chandler (C.C.A.8) 57 F.(2d) 951, 959 (decided April 25, 1932), in an opinion by Judge Van Valkenburgh, it is said: “The constitutional amendment relied upon does not purport to be self-enforcing, nor itself to alter the terms of existing constitutional provisions, in advance of action by the Legislature upon which it conferred power to provide for, limit, and otherwise regulate the liability of stockholders.” At that time the Supreme Court of Minnesota had had no occasion to speak upon this question, but in an opinion handed down August 11, 1933, in Sweet v. Richardson, 189 Minn. 489, 250 N.W. 46, 49, the Supreme Court of Minnesota, referring to the amendment, said: “The Legislature, having in mind that by the November, 1930, election the amendment of section 3 of article 10 of the Constitution was adopted, doing away with the so-called stockholders’ double liability in corporations organized under the laws of this state, except as to stockholders in banking or trust corporations, no doubt enacted chapter 205 for the commendable purpose of speeding up the settlement of the liability hanging over many stockholders in insolvent corporations.” (Italics supplied) This was probably dictum. But the interpretation and construction of the Constitution of a state is peculiarly within the province of the highest court of the state, and its construction will be followed by the national courts. Blue Valley Creamery Co. v. Consolidated Products Co. (C.C.A.8) 81 F.(2d) 182. Considered dictum of that court should not be ignored when a federal court is attempting to construe or ascertain the meaning of the local law, whether it be the state statute or the State Constitution. Blue Valley Creamery Co. v. Consolidated Products Co., supra; Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610. Rules applicable to the construction of a statute are equally applicable to the construction of a Constitution. Taylor v. Taylor, 10 Minn. 107 (Gil. 81). It may be conceded that as a general rule an amended Constitution must be read as a whole as if every part of it had been adopted at the same time and as one law. Still the question may remain whether the particular amendment was intended to supersede existing provisions in the Constitution before amendment. People v. Angle, 109 N.Y. 564, 17 N.E. 413. If the constitutional amendment covers the same subject as the original, indicating an intent to substitute it in lieu of the original, the doctrine of implied repeal, though not favored, will be applied, and the original enactment will be superseded. Popfinger v. Yutte, 102 N.Y. 38, 6 N.E. 259; Babb v. City of El Dorado, 170 Ark. 10, 278 S.W. 649; Vincent v. State (Tex. Com.App.) 235 S.W. 1084. While the Supreme Court of Minnesota has not authoritatively passed upon the question, it has held that rules governing the construction of statutes are applicable to the construction of the Constitution. It has also recognized the doctrine of implied repeal by substitution in statutory construction, having held that although not in express terms repugnant, and though the subsequent statute contained no repealing clause, yet if the subsequent statute was clearly intended to prescribe the only governing rule, it repealed by implication the original act. Nicol v. City of St. Paul, 80 Minn. 415, 83 N.W. 375; School Dist. v. Eckert, 84 Minn. 417, 87 N.W. 1019; Clark v. Baxter, 98 Minn. 256. 108 N.W. 838; Board of Education v. Borgen, 192 Minn. 367, 256 N.W. 894. It seems clear that the amendment was intended to be substituted in lieu of section 3 as it existed prior to the .adoption of the ¿mendment. A complete section 3 was submitted to the electors. There could properly be only one such section. If by this amendment it was intended to retain the provisions of the original with permission to the Legislature to enact different legislation, this could readily have been expressed by embodying the original provision in the proposed amendment. As a further indication of what was intended by this amendment, it is observed that the Attorney General of Minnesota, in an opinion to the Commissioner of Securities (Report of Attorney General of Minnesota, 1932, p. 239), concluded that the amendment superseded and therefore repealed the prior section 3 of article 10. This opinion is, of course, not binding on this court, but it is entitled to great respect and should not be departed from lightly. Standard Computing Scale Co. v. Farrell (D.C.) 242 F. 87. The procedure for the adoption of a constitutional amendment in Minnesota included the furnishing by the Attorney General of a statement of the purpose and effect of the amendment proposed, showing clearly the purpose and effect of the existing section as it would read if amended. The Secretary of State was required to give three weeks’ published notice of such statement prior to election in all legal newspapers of the state. Copies were also required to be furnished to county audn tors and town, village, and city clerks foi posting. Mason’s Minnesota Statutes 1927, § 46. Pursuant to the provisions of this statute, the Attorney General rendered an opinion to the Secretary of State. In this opinion he said: “The effect of the proposed amendment, if adopted, will be to abrogate the present fixed rule of stockholders’ liability prescribed by the constitution^ except in the case of stockholders in banks or trust companies * * This statement, furnished by the Attorney General in the performance of his public duty, is entitled to consideration. Yosemite Lumber Co. v. Industrial Acc. Comm., 187 Cal. 774, 204 P. 226, 20 A.L.R. 994; Beneficial Loan Society v. Haight, 215 Cal. 506, 11 P.(2d) 857; Bearden v. Collins, 220 Cal. 759, 32 P.(2d) 604. We conclude that with the adoption of this amendment, the original section 3 of article 10 was repealed. The liability of stockholders to creditors under section 3, article 10, before the 1930 amendment, was contractual. Hanson v. Davison, 73 Minn. 454, 76 N.W. 254; State ex rel. Hilton v. Mortgage Security Co., 154 Minn. 453, 192 N.W. 348; Crowley v. Goudy, 173 Minn. 603, 218 N.W. 121. The liability of stockholders in the old company antedated the repeal of section 3, article 10, and hence could not be impaired by the repeal. Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866; Converse v. Hamilton, 224 U.S. 243, 32 S.Ct. 415, 56 L.Ed. 749, Ann.Cas.1913D, 1292. It is finally urged that the receiver could not maintain the actions to recover assessments of stockholders’ liability. Sections 8025 to 8031, Mason’s Minnesota Statutes 1927, provides for proceedings by the receiver to recover the assessments, but it is contended that the corporations here involved were not subject to those statutes because they came under the provisions of Mason’s Minnesota Statutes Supp.1936, §§ 7492-61a and 7492-62. The propriety of the order of appointment is not otherwise assailed. The contention in effect is that the order of appointment included property not subject to the possession and control of the receiver. But the appeals' here are from the orders assessing the stockholders, not from the order appointing receiver. The court had jurisdiction of the corporations and the subject-matter, and that being true, it had jurisdiction to enter a right order or a wrong order; but whether the order so entered be right or wrong, it is not subject to collateral attack. Vallery v. Denver & R. G. R. Co. (C.C.A.8) 236 F. 176. The order, even if erroneous, was not void, and hence not subject to collateral attack. The personal presence of stockholders was not essential to the jurisdiction of the court in the original suit appointing a receiver. They were so far in privity with the corporation as to be represented by it. The order appointing a receiver has the attributes of a judgment of a court having jurisdiction of the subject-matter, and hence is not subject to collateral attack. Greenfield v. Hill City Land, Loan & Lumber Co., 141 Minn. 393, 170 N.W. 343; McCandless v. Furlaud, 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202. The record does not indicate that any contention was made in the lower court of the lack of authority of the receiver to sue, or that the order granting him power to collect from the stockholders was irregular or void. This contention is not tenable, and we are of the view that the receiver had the right to maintain these proceedings. The order levying assessments upon the stockholders of the new company is therefore reversed, and the order levying assessments upon the stockholders of the old .company is affirmed.

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

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

BENNETT COUNTY, SOUTH DAKOTA, a Public Corporation, Appellant, v. UNITED STATES of America, Appellee. No. 18935. United States Court of Appeals Eighth Circuit. April 24, 1968. Robert J. Parker, State’s Atty., Bennett County, Martin, S. D., for appellant; Frank L. Farrar, Atty. Gen. of State of South Dakota,, Pierre, S. D., on the brief. John G. Gill, Jr., Atty., Department of Justice, Washington, D. C., for appellee; Edwin L. Weisl, Jr., Asst. Atty. Gen., Department of Justice, Washington, D. C., Harold C. Doyle, U. S. Atty., Sioux Falls, S. D., and David V. Vrooman, Asst. U. S. Atty., Sioux Falls, S. D., on the brief. Before MATTHES, GIBSON and HEANEY, Circuit Judges. . 25 U.S.C.A. § 311 provides: “The Secretary of the Interior is authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways * * * through any Indian reservation or through any lands which have been allotted in severalty to any individual Indian under any laws or treaties but which have not been conveyed to the al-lottee with full power of alienation.” 25 U.S.C.A. § 357 provides: “Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.” MATTHES, Circuit Judge. Bennett County, South Dakota (hereinafter referred to as the County or appellant) appeals from the judgment of the district court permanently enjoining it from constructing, maintaining or using a road across certain land lying within its confines. United States v. Bennett County, South Dakota, 265 F.Supp. 249 (D.So.Dak.1967). Title to this land is in the United States, in trust, for the use and benefit of Newton and Doyle Cummings, enrolled members of the Oglala Sioux Tribe of Indians, of the Pine Ridge Reservation. The land in question is wholly within the Pine Ridge Reservation. Pursuant to the Act of June 14, 1862, c. 101, § 1, .12 Stat. 427, now codified in 25 U.S.C.A. § 185, the United States sought to enjoin appellant from entering upon the land for the purpose of making repairs to the road without (1) securing permission from the Secretary of Interior, pursuant to the provisions of 25 U.S.C.A. § 311, or (2) acquiring the land by condemnation under the provisions of 25 U.S.C.A. § 357. Since it was conceded that appellant had neither secured permission nor had condemned, the court concluded that an injunction should be granted against entry until such time as appellant received permission to repair the road, or alternatively, until an easement has been secured by condemnation. Appellant rests its claim for reversal on the premise that other Congressional legislation has secured its right to enter the land for highway purposes, and that it need not secure permission under Section 311, or condemn under Section 357. Specifically, it submits that its authority to act has been granted under Section 8 of the “Public Highway Act” of 1866, c. 262, § 8, 14 Stat. 251, 253, now codified in 43 U.S.C.A. § 932, or in the alternative, that a section line highway easement was created by Section 21 of the Act of March 2, 1889, 25 Stat. 888, which established the Pine Ridge Sioux Reservation. A brief historical outline of the transactions between the United States and the Oglala Sioux tribe will aid in properly understanding the positions of the parties and in resolving the question whether the County is entitled to a highway easement across allotted Indian lands within the Pine Ridge Reservation. The treaties and Congressional acts pertinent to this discussion are, (a) the “Treaty of Fort Laramie of 1851,” 11 Stat. 749, reported in full II Kappler, Laws and Treaties (2d Edition 1904) 594; (b) the “Treaty of 1868,” ratified 1869, 15 Stat. 635; (c) the Act of March 2, 1889, 25 Stat. 888 (“Act of 1889”) and (d) the Act of July 26, 1866, c. 262, § 8, 14 Stat. 251, 253 (hereafter referred to as the “Highway Act of 1866”). The Treaty of Fort Laramie constituted an agreement bewteen various Indian tribes to cease hostilities against one another and against the people of the United States. It set off tribal boundaries and made the tribes responsible for any depredations committed within their respective territories. The Treaty of 1868 created the “Great Reservation” for the Sioux. By its terms lands were set off “for the absolute and undisturbed use and occupation of the Indians.” The United States guaranteed that no persons would be allowed to pass over or settle upon the reserved lands. In return for government benefits the Sioux relinquished all claims or rights in lands outside the “Great Reservation.” In subsequent years the Sioux territory was diminished by other agreements. Ultimately, separate Indian reservations for various bands of Sioux were permanently fixed by the Act of 1889. This Act formally' established the Pine Ridge Reservation for the Oglala Sioux. As an introduction to the specific contentions of appellant we recognize general rules of law which guide us in determining the merits of its claims. With respect to land agreements between the Indians and the United States, it has frequently been stated that the fee to the lands is vested in the federal government, and that “Indian title” represents merely a right to occupancy of the land, until such right has been surrendered to the federal government. As a general rule, Indian lands are not included in the term “public lands” which are subject to sale or disposal under general laws. Cf. Missouri-Kansas-Texas Railway Co. v. United States, 235 U.S. 37, 35 S.Ct. 6, 59 L.Ed. 116 (1914); Nor. Pac. Ry. Co. v. United States, 227 U.S. 355, 33 S.Ct. 368, 57 L.Ed. 544 (1913); Putnam v. United States, 248 F.2d 292 (8th Cir. 1957); 27 Am.Jur. Indians § 24, p. 557. The federal government possesses the unquestioned power to convey the fee to lands occupied by Indian tribes, although the grantee takes only the naked fee and cannot disturb the occupancy of the Indians. Cf. United States v. Thomas, 151 U.S. 577, 14 S.Ct. 426, 38 L.Ed. 276 (1894); State of Wisconsin v. Hitchcock, 201 U.S. 202, 26 S.Ct. 498, 50 L.Ed. 727 (1906). The power of the United States to control the affairs of its Indian wards is subject to constitutional limitations and does not enable the United States, without paying just compensation, to appropriate lands of an Indian tribe. United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 123, 58 S.Ct. 799, 82 L.Ed. 1219 (1938); 27 Am.Jur. Indians § 37. A formal act of cession by a tribe, by treaty or otherwise, operates to determine the Indian title, and is the usual method in which such rights have been extinguished. 27 Am. Jur. Indians § 33. In determining whether or not an Indian tribe has a compensable interest in lands, two types of title interest have been recognized. They are: “recognized title” (by treaty, statute or otherwise), and Indian or “aboriginal title,” (continual occupancy and use to the exclusion of other tribes or persons.) For discussion of compensable Indian title, see Sac and Fox Tribes of Indians of Oklahoma v. United States (1963) 315 F.2d 896, 161 Ct.Cl. 189, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165; Minnesota Chippewa Tribe v. United States (1963) 315 F.2d 906, 161 Ct.Cl. 258. All questions with respect to rights of occupancy in land, the manner, time and conditions of extinguishment of Indian title are solely for consideration of the federal government. Cf. United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260, rehear. denied, 314 U.S. 716, 62 S.Ct. 476, 86 L.Ed. 570 (1941); 27 Am.Jur. Indians § 33. As a corollary to this proposition, it follows that third parties, and in particular states and municipalities, acquire only such rights and interests in Indian lands as may be specifically granted to them by the federal government. To assure the utmost fairness in transactions between the United States and its Indian wards, any intent to deprive Indian tribes of their rights in land, or otherwise bring about the ex-tinguishment of Indian title, either by grants in abrogation of existing treaties or through other Congressional legislation must be clearly and unequivocally stated and language appearing in such grants and statutes is not to be construed to the prejudice of the Indians. See United States v. Santa Fe Pacific R. Co., supra, 314 U.S. at 353-356, 62 S.Ct. 248; Nor. Pac. Ry. Co. v. United States, supra; Leavenworth, etc. R. R. Co. v. United States, 92 U.S. 733, 23 L.Ed. 634 (1875); United States v. Shoshone Tribe, etc., 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938). With the foregoing general principles in mind, we turn to appellant’s theory that Congress has specifically granted easements for highway purposes over the land in question, and that Indian occupancy is subservient to these easements. A. The “Highway Act of 1866.” Appellant asserts that prior to 1866, the land in question was a part of the public domain, and that the Sioux tribe had no title or reservation interest until the Treaty of 1868, creating the “Great Reservation.” In this argument, appellant relies upon Section 8 of the Act of July 26, 1866, supra, which provides in pertinent part: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” (Emphasis supplied.) 43 U.S.C.A. § 932. Appellant argues that this constituted an open offer for the taking of an easement by a public municipality, which was accepted by Bennett County upon construction of the road in question. In contrast the government asserts that the Treaty of Fort Laramie in 1851 constituted an inherent recognition of Indian title; that although the Treaty contains no technical language creating a formal “Reservation,” the land was nonetheless effectively reserved for the use of the tribes, and thus, when the “Highway Act” was passed, the lands were no longer “public lands, not reserved for public uses.” In short, the grant of an easement over public lands found in the Act would not be applicable to Sioux lands set apart in the Treaty of 1851. The circumstances surrounding the Treaty of 1851 have been fully delineated by the Court of Claims in Crow Tribe of Indians v. United States (Ct.Cl.1960) 284 F.2d 361, cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383. In determining that the Crows had a compensable interest in land described as their territory in the Fort Laramie Treaty, the Court concluded that this treaty was a recognition of Indian title by the United States, stating inter alia: “It is true that the language of the Treaty is not the technical language of recognition of title. Nevertheless, we think that the participation of the United States.in a treaty wherein the various Indian tribes describe and recognize each others’ territories is, under the circumstances surrounding this treaty, and in light of one of the overriding purposes to be served by the treaty, i. e., securing free passage for emigrants across the Indians’ lands by making particular tribes responsible for the maintenance of order in their particular areas, a recognition by the United States of the Indians’ title to the areas for which they are to be held responsible, and which are described as ‘their respective territories’.” 284 F.2d at 364. The Court distinguished United States v. Northern Pacific Ry. Co., 311 U.S. 317, 349, 61 S.Ct. 264, 85 L.Ed. 210 (1940), which had held that the Treaty of 1851 did not establish a reservation for the Indians. In concluding that Northern Pacific was not controlling, the Court of Claims reviewed Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 65 S.Ct. 690, 89 L.Ed. 985 (1945), which by implication approved prior decisions of the Court of Claims holding that the Treaty of Fort Laramie was a recognition of Indian title. See, e. g., Fort Berthold Indians v. United States, 71 Ct.Cl. 308 (1930); Assiniboine Indian Tribe v. United States, 77 Ct.Cl. 347 (1933), cert. denied, 292 U.S. 606, 54 S.Ct. 772, 78 L.Ed. 1467; Crow Nation v. United States, 81 Ct.Cl. 238 (1935). In the Shoshone Indians case the Supreme Court determined that the “Box Elder Treaty” of 1863 did not recognize Indian title. In so holding, it distinguished the 1851 Treaty of Fort Laramie in the following language: “* * * the circumstances surrounding the execution of the Fort Laramie treaty indicate a purpose to recognize the Indian title to the lands described in the Fort Laramie treaty, which may well have induced the Court of Claims to reach one conclusion in those cases (Fort Berthold, Assiniboine and Crow Nation) and another in this. * * * “Furthermore, the words of the Fort Laramie treaty are more apt to express recognition of Indian title than those of Box Elder.” 324 U.S. at 349-350, 65 S.Ct. at 697. Agreements between the United States and the Sioux subsequent to the Treaty of Fort Laramie reinforce the conclusion that the treaty of 1851 was a recognition of Indian title. Cf. Shoshone Indians, supra, 324 U.S. at 346, 65 S.Ct. 690. In the Treaty of 1868, supra, 15 Stat. 635, which created the formal “Great Reservation,” the Sioux agreed to “relinquish all claims or right in and to any portion of the United States * * * except such as is embraced within the (Reservation).” Article XVI of the Treaty provided explicitly: “The United States hereby agrees and stipulates that the country north of the North Platte river and east of the summits of the Big Horn mountains shall be held and considered to be unceded Indian territory, and also stipulates and agrees that no white person or persons shall be permitted to settle upon or occupy any portion of the same; or without the consent of the Indians, first had and obtained, to pass through the same, * * *.” 15 Stat. p. 640. (Emphasis supplied.) When the Black Hills territory was ceded in an agreement ratified in 1877, 19 Stat. Chap. 72, p. 254, the following language appeared: “ * * * the said Indians do hereby relinquish and cede to the United States all the territory lying outside the said reservation, as herein modified and described, including all privileges of hunting * * *.” Art. 1, p. 255. In view of the language of the Treaty of 1851, the circumstances surrounding its signing, as set forth in Crow Tribe of Indians v. United States, supra, 284 F.2d at 364-367, and the nature of subsequent agreements between the United States and the Sioux, as exemplified by the agreements of 1868, 1877 and 1889, we conclude that the land in question did not constitute a part of the public domain, subject to appropriation for highway purposes under the provisions of the “Highway Act” of 1866. Cf. Leavenworth, etc. R. R. Co. v. United States, supra, holding that a grant of public lands for railroad purposes does not apply to lands set aside for Indian occupancy pursuant to treaty. B. Act of 1889, 25 Stat. p. 888. Alternatively, the County insists that under the provisions of Section 21 of the Act of 1889 it has authority to construct a public highway along section lines of allotted Indian land, without permission from the Secretary of Interior under § 311 or acquisition by condemnation under § 357. This statute must be considered in light of the provisions of the Treaty of 1868, for the 1889 Act was designed to effect a further diminution of the Great Reservation created in 1868. By description, portions of the “Great Reservation” were set off as separate reservations for various bands of the Sioux, including the Pine Ridge Reservation for the Oglalas. Provision was made for future allotment of tracts to individual members of the tribe. Prior allotments under the 1868 Treaty were protected, even though made outside the confines of the new reservations. Section 19 continued in effect provisions of the Treaty of 1868 and the Agreement of 1877 which were not in conflict with the new Act. Section 21, of import here, provides: “That all the lands in the Great Sioux Reservation outside of the separate reservations herein described are hereby restored to the public domain, except American Island, Farm Island and Niobrara Island * * *.” (Emphasis supplied.) This section further declared that this land was to be available to homesteaders at certain specified rates per acre, and that the government would purchase all land not disposed of at the end of ten years at the rate of $0.50 per acre. Proceeds from sales of land were to become a part of a permanent tribal fund. Appellant premises its right to enter the land in question on the portion of Section 21 which then followed: “Provided, that there shall be reserved public highways four rods wide around every section of land allotted, or opened to settlement by this act, the section lines being the center of said highways; but no deduction shall be made in the amount to be paid for each quarter-section of land by reason of such reservation. * * By reason of this language, the County asserts that lands allotted severally to tribal members within the reservation are subject to the highway easement. We do not agree. In our view the phrase “around every section of land allotted” is somewhat ambiguous. Considered out of context, it would seem to refer to Indian tribal allotments. Construing Section 21 as a whole, however, the language relied upon by the County appears solely in a proviso modifying the dominant provisions of that section. Our analysis of Section 21 in its entirety leads us to conclude it is applicable only to those lands outside the separate reservations, that is, to those lands “restored to the public domain.” That section deals at length with these public lands and established the prices to be paid by homesteaders and the United States for the benefit of the tribes. Upon examining other sections of the Act of 1889, we are persuaded to believe that Congress intended not only that the Sioux be compensated for land ceded back to the public domain but also intended that they be compensated for any land appropriation within the new reservations. For instance, Section 18 provided that if any land within the newly created reservations was occupied by religious societies, these societies could continue to use the land, “with the approval of the Secretary,” and could purchase additional land upon agreement with the Secretary. Section 12 provided that the Secretary of Interior could purchase such unneeded land within the reservation as the Indians would consent to sell. Section 16 confirmed a grant of rights of way for railroad purposes, subject again to approval of the Secretary of Interior and payment of compensation. In Section 24 certain sections “of the lands open[ed] to settlement” (the ceded lands) were reserved for the benefit of public schools within the Territory, and were not subj'ect to entry under the homestead laws. The United States agreed to pay the Indians $1.25 per acre for all lands reserved for these school sites. Also of significance is the clause immediately following the imposition of the highway easement in the Section 21 proviso relied upon by the County. It provides that “no deduction shall be made in the amount to be paid for each quarter-section of land by reason of such reservation * - The effect of this clause is to impose a servitude upon the homestead tract for highway purposes, but to insure that payments due the Sioux for the ceded land, that is, land returned to public domain, would not be reduced. These sundry provisions of the Act of 1889 reinforce our conclusion that the easement proviso of Section 21 of that Act applies only to lands open to settlement (for which payment is to be made). It is inconceivable that Congress would thus carefully assure to the Sioux payment for an easement within the ceded territory, and at the same time impose a servitude for a highway easement upon lands within the new reservation without also providing compensation. Appellant’s construction, moreover, would appear to be contrary to the express language of Section 16 of the Act, which confirms in the Indians “to their separate and exclusive use and benefit, all the title and interest of every name and nature secured therein to the different bands of the Sioux Nation by said Treaty of [1868].” We have discussed the various provisions of the Act of 1889 for the purpose of indicating its scope and effect. It seems clear that the federal government was careful to protect Indian rights both within and without the new reservations, providing compensation for all lands ceded and returned to the public domain as well as compensation for any use or appropriation within the reservations. Without a more clearly expressed provision, we cannot believe that Congress intended to impose a servitude upon land within the reservations without requiring the consent of the tribe or Secretary, and without payment of compensation for the taking. We affirm the finding of the district court that Bennett County’s right to enter the land in question is contingent upon the permission of the Secretary under Section 311, or a right obtained through lawful condemnation proceedings under Section 357. These sections are a part of the definitive and extensive legislation which has been evolved by Congress over the years in discharge of its duties toward its Indian wards. The judgment is affirmed. . The original allotments of the land in question were made under the provisions of the Act of March 2, 1889, 25 Stat. 888. Under this Act, title was to be held in trust for a term of 25 years, but this term has been extended and restrictions upon Indian lands continue to date. 25 U.S.C.A. § 462 provides: “The existing periods of trust placed upon any Indian lands and any restriction on alienation thereof are hereby extended and continued until otherwise directed by Congress.” See also note following 25 U.S.C.A. § 348 and Poafpybitty v. Skelly Oil Company, 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238 (1968). . § 185 provides: “Whenever any Indian * * * has had a portion of the lands belonging to his tribe allotted to him in severalty * * * the agent and superintendent of such tribe shall take such measures, not inconsistent with law, as may be necessary to protect such Indian in the quiet enjoyment of the lands so allotted to him.” . In addition to the Sioux, other parties to the treaty were the Crows, Cheyennes, Arrapahoes, “Assinaboines,” Mandans, Gros Ventres and Arickarees. . Until 1871, Indian tribes were recognized as nations and treaties were made with them. By the Act of March 3, 1871 c. 120, § 1, 16 Stat. 566, Congress asserted legislative power over Indian affairs. The pertinent portion of the Act is now codified in 25 U.S.C.A. § 71 and provides : “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.” . By Act of February 22, 1889, North Dakota, South Dakota, Montana and Washington were admitted as states. 25 Stat. 676. Among other provisions the people of the new states agreed that: “ * * * they forever disclaim all right and title to the unappropriated public lands lying within the boundaries (of the new states), and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; * * *.” Sec. 4, 25 Stat. 676 at p. 677. . In Northern Pacific, supra, the issue before the Court concerned railroad grants, limited to lands to which the United States had full title, not reserved or otherwise appropriated. . See discussion of Act of 1889, infra. . The Act of 1889 was entitled “An act to divide a portion of the reservation of the Sioux Nation of Indians in Dakota into separate reservations and to secure the relinquishment of the Indian title to the remainder, and for other purposes.” . Section 12 provides : “That at any time after lands have been allotted to all the Indians of any tribe as herein provided * * * it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the purchase and release by said tribe * * * of such portions of its reservation not allotted as such tribe shall, from time to time, consent to sell, on such terms and conditions as shall be considered just and equitable between the United States and said tribe of Indians, which purchase shall not be complete until ratified by Congress.” . Congress has from time to time granted rights of way across Indian reservations to railroad companies, but has made these grants subject to the consent of the Indians and payment of compensation. An example may be found in the Act of February 23, 1889, Oh. 202, 25 Stat. 684, granting a right of way through the Yankton Indian Reservation in Dakota Territory. See also 25 U.S.O.A. § 341 (1887). . In the Treaty of 1868, supra, 15 Stat. at p. 639, the Sioux agreed not to object to future construction of railroads, wagon roads, or other works of public necessity, but in turn, the government agreed to pay damages and compensation should such work be authorized or permitted by the laws of the United States. . Other protective sections codified in Title 25 are the following: § 179- — -prohibiting the driving of stock over Indian lands without consent; § 180 — prohibiting surveying or settling upon Indian lands; §§ 312 and 314 — providing for rights of way for railway, telegraph and telephone lines, upon consent of the Secretary and upon payment of compensation ; § 319 — authorizing the Secretary to grant easements for telephone and telegraph lines over tribal and restricted Indian lands, upon payment of just compensation ; § 321 — authorizing the Secretary to grant pipeline easements through restricted Indian lands, upon payment of just compensation; §§ 323-325 — empowering the Secretary to grant rights of way for “all purposes” across Indian lands, but only with consent of the Indians and upon payment of just compensation ; § 341 — affirming the power of Congress to grant a right of way through Indian lands for railroads, highways and telegraph lines, or to condemn such lands for public uses, “upon making just compensation.”

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?

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

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

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

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

GARDEN HOMES, Inc., Plaintiff, Appellant, v. Norman P. MASON, Commissioner, Federal Housing Administration, Defendant, Appellee. No. 5110. United States Court of Appeals First Circuit. Dec. 3, 1956. Angus M. MacNeil, Somerville, Mass., for appellant. Maurice P. Bois, U. S. Atty., Concord, N. H., for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. According to its notice of appeal, Garden Homes, Inc., purports in this case to take an appeal from ten listed orders of the United States District Court for the District of New Hampshire entered March 13 and 14, 1956. Even a superficial reading of the jurisdictional statute, 28 U.S.C. §§ 1291, 1292, would have made it clear that nine of the ten enumerated orders are of an interlocutory character not presently appealable. As to the one remaining order, the question is whether it is appealable as an interlocutory order refusing an injunction, within the meaning of 28 U.S.C. § 1292 (1). We have concluded that it is not such an order, and consequently that this whole abortive appeal must be dismissed for lack of jurisdiction. On July 26, 1955, Garden Homes, Inc., instituted the action against Norman P. Mason “as Acting Commissioner of the Federal Housing Administration,” by filing in the Superior Court of Hills-borough County, State of New Hampshire, a writ sounding in the common counts. Defendant was not personally served with process, and the deputy sheriff filed a non est inventus return. However, there was endorsed on the writ a real estate attachment dated July 28, 1955, purporting to attach all the right, title and interest of the defendant in any lands and tenements located in Hillsborough County. An attested copy of such endorsement was left in the office of the Register of Deeds. On October 5, 1955, plaintiff filed a motion to amend the writ by annexing thereto a declaration based upon allegations of covenant broken, thus turning the case into one for breach of contract. On October 17, 1955, upon motion of the defendant, the case was removed to the federal court. Later, plaintiff’s motion to amend its declaration was allowed by the federal court without objection. In the removed case, the parties filed numerous motions on various matters. One of these was a motion by the defendant dated December 5, 1955, for an order by the district court vacating the aforesaid attachment. This motion was based upon 40 U.S.C.A. §§ 308 and 309. Section 308 provides that when any property in which the United States may have an interest shall in any judicial proceeding be attached as security for any claim made against such property, the Secretary of the Treasury may cause a stipulation to be entered by the proper district attorney for the discharge of such property from attachment upon an agreement by the government that upon such discharge the person asserting the claim against the attached property shall become entitled to all the benefits of §§ 308 and 309. The latter section provides the procedure for the payment of claims pursuant to a final judgment in such a proceeding. This motion for an order discharging the attachment was accompanied by a stipulation, filed upon instructions of the Acting Secretary of the Treasury, to the effect that upon discharge of said attachment Garden Homes, Inc., shall become entitled to all the benefits of 40 U.S.C.A. §§ 308 and 309. The district court held a hearing on December 30, 1955, on defendant’s motion for an order vacating the attachment, and the same was then taken under advisement. As a countermove to defendant’s motion to discharge the attachment, plaintiff filed in the district court, on January 3, 1956, a motion for immediate remand of the case to the state court, and a second motion entitled “Petition for Restraining Order and Injunction” praying (1) that the defendant, his agents and attorneys, “be restrained and enjoined from taking further action before the United States District Court for the District of New Hampshire to vacate the attachment upon the property of the defendant” until after, the court has acted on the plaintiff’s motion to remand, and (2) that the defendant “be restrained and enjoined from exercising any rights derived from the orders of this court for discharge of attachment until review is had by the Court of Appeals if such order is entered.” These motions by plaintiff came on for hearing on March 12, 1956. On the next day the district court denied plaintiff’s motion for remand and also denied his motion entitled “Petition for Restraining Order and Injunction.” On March 23, 1953, the district court granted defendant’s motion for an order vacating the attachment, D.C., 142 F.Supp. 744, and such order was actually entered on March 26 following. Referring first to the second request contained in plaintiff’s “Petition for Restraining Order and Injunction,” namely, that the defendant be restrained from exercising any rights derived from an order discharging the attachment until review is had in the Court of Appeals if such order is entered, we think it clear that this is not a motion for an injunction in any proper sense but is really a request for an anticipatory supersedeas pending review of an expected order of the district court discharging the attachment. The first prayer of plaintiff’s “Petition for Restraining Order and Injunction” asks the court to restrain the defendant “from taking further action before the United States District Court for the District of New Hampshire to vacate the attachment” until after the court has acted upon the plaintiff’s motion to remand the case: to the state court. This request would seem to have become moot in view of the fact that the district court has already entered an order vacating the attachment and also has acted upon the motion to remand by denying the same. Furthermore, if the request could be construed as a motion that the district court stay further action upon defendant’s motion to vacate the attachment, the district court’s order of denial would be no more than “a step in controlling the litigation before the trial court, not the refusal of an interlocutory injunction.” Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 185, 75 S.Ct. 249, 99 L.Ed. 233. Cf. City of Morgantown v. Royal Insurance Co., Ltd., 1949, 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347. An order will be entered dismissing the appeal for lack of jurisdiction.

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

Donald M. REAM and Marilla L. Ream, Plaintiffs-Appellants, v. Harold W. HANDLEY, John Peters, Harry E. Bodine, Charles M. Dawson, Matthew Welsh, David Cohen, Edward S. Furnish, J. Earl Wooding, Oral S. Craig, George E. Goodwin, and Indianapolis Newspapers, Inc., Defendants-Appellees. No. 15380. United States Court of Appeals Seventh Circuit. April 20, 1966. Rehearing Denied June 2, 1966. Donald M. Ream, Jr., Howard S. Young, Jr., Indianapolis, Ind., for appellant. Raymond W. Gray, Jr., John J. Dillon, Atty. Gen., Charles S. White, Asst. Atty. Gen., Anton Dimitroff, Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., for defendant-appellee Indianapolis Newspapers, Inc. Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges. SCHNACKENBERG, Circuit Judge. Plaintiffs, Donald M. Ream and Marilla L. Ream, citizens of the state of Indiana, appeal from a decision of the district court sustaining defendants’ respective motions to dismiss for want of jurisdiction of the subject matter. The district court found it unnecessary to consider defendants’ second basis for dismissal, failure to state a claim upon which relief can be granted. By their amended complaint in this nondiversity action, plaintiffs seek relief against various former public officials of the state of Indiana and against Indianapolis Newspapers, Inc., an Indiana corporation (herein called “Newspaper”), for damages and a declaratory judgment that two Indiana statutes, Acts of 1895, Ch. 45 and Acts of 1905, Ch. 48, § 1, are unconstitutional. In substance, plaintiffs’ amended complaint alleges the following. Plaintiffs are the owners in fee simple of certain real estate in Marion County, Indiana, which they caused to be platted for a residential subdivision in 1954, and since 1956 they have been unable to sell and dispose of their lots and otherwise use said property because defendants, other than Newspaper, have from time to time announced publicly that the state of Indiana had located a federal-aid public highway (known as Interstate 1-465 or Indiana State Road 100) over and across plaintiffs’ real estate or some portion thereof. Newspaper is alleged to have printed and published news stories in connection therewith and published for a consideration notices of a public hearing concerning the location of said highway. Furthermore, plaintiffs allege that defendant public officials threatened to and did enter upon plaintiffs’ land, without their permission, for the purpose of making a survey for said highway; and that plaintiffs have been discriminated against by said officials in that such officials have purchased or condemned rights of way across the lands of others in the vicinity, paying a valuable consideration therefor, but have not yet purchased or condemned any of plaintiffs’ land. In summary, the gravamen of plaintiffs’ amended complaint is that they have been deprived of constitutional property rights in that defendants, under color of state law and pursuant to a conspiracy, have libeled and slandered their title to said property, unlawfully searched and seized it, denied them the lawful and peaceful enjoyment of the property and the right to use, develop and dispose of it, discriminated against them, and caused them to suffer vexations. 1. Plaintiffs’ first contention is that the “scope and purpose of the fourteenth amendment to the constitution of the United States is to guarantee that no state shall deprive any citizen of life, liberty or property without due process of law,” and that a violation of said amendment gives the district court federal question jurisdiction under 28 U.S. C.A. § 1331. In support of this, plaintiffs cite Progress Development Corporation v. Mitchell, 7 Cir., 286 F.2d 222 (1961). However, in that case the individual defendants allegedly conspired to deprive plaintiffs of equal protection of the laws by inducing the park board to condemn plaintiffs’ land and inducing village trustees to abuse enforcement of the building code for the purpose of denying plaintiffs’ right to conduct corporate enterprises. Here, the fourteenth amendment is involved remotely, if at all. It is defendants' nonaction (refusal to purchase or condemn any of plaintiffs’ land), coupled with the statements of public officials and newspaper publicity, that is the crux of plaintiffs’ complaint. But plaintiffs do not allege that the highway in question will not in fact be built in the location mentioned, nor that any of the defendants has taken, or threatens to take, their land for such a use without just compensation therefor. We hold that no “genuine and present controversy” exists herein under the fourteenth amendment. “ * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * Gully v. First Nat. Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936). Moreover, to impose a time limit during which a state may purchase or condemn land for a public purpose or to restrict the advertising thereof, where plaintiffs might not in fact suffer any damage and where there is no allegation of a conspiracy to defraud, would unduly hamper a state in the pursuit of its traditional and legitimate functions. “ * * * To define broadly and in the abstract ‘a case arising under the Constitution or laws of the United States’ has hazards of a kindred order. What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation. One could carry the search for causes backward, almost without end. * * To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by.” Gully, pp. 117-118, 57 S.Ct. p. 100, supra. Cf. Howard v. Illinois Cent. R. Co., 7 Cir., 64 F.2d 267 (1933) and Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270 (1897). Plaintiffs also seek support from Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917) and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The former case involved the constitutionality of a city ordinance which prohibited negroes from occupying houses in blocks where the greater number of houses were occupied by white persons. The latter case was concerned with the conduct of police officers, who, among other things, without any warrant for search or arrest, broke into petitioners’ home, routed them from bed, made them stand naked in the living room, and ransacked every room. Clearly, neither case is in point. 2. Similarly, the district court did not acquire jurisdiction under § 1331 by virtue of any other alleged violation of the constitution. Plaintiffs’ amended complaint, insofar as it seeks damages for alleged slander of title and trespass, does not fall within the fourth, fifth or fourteenth amendments, but sounds in tort. Association for Preserv. of Freedom of Choice v. Simon, 2 Cir., 299 F.2d 212, 214 (1962). Slander of title is a common law action recognized by the laws of Indiana, May v. Anderson, 14 Ind.App. 251, 42 N.E. 946 (1896), and trespass is recognized by the courts of Indiana. 3. Plaintiffs also contend that jurisdiction exists under 28 U.S.C.A. §§ 1343(3) and (4), which provide: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: ****** (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. * * * These statutory sections are jurisdictional. But it is necessary for plaintiffs to find another law which authorizes the commencement of an action. In their search they point to the fourteenth amendment and 42 U.S.C.A. § 1983. Regarding the former, we already have held that no “genuine and present controversy” exists under that amendment. Section 1983 provides: Every person who, under color of any statute, ..ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. * * The controlling authority, however, seems to hold that the civil rights statutes, of which § 1983 is one, do not confer jurisdiction where a person seeks only to protect property or monetary rights. Holt v. Indiana Manufacturing Company, 176 U.S. 68, 72, 20 S.Ct. 272, 44 L.Ed. 374 (1900); Hague v. Committee for Industrial Organization, 307 U.S. 496, 531, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Abernathy v. Carpenter, W.D. Mo., 208 F.Supp. 793, 794 (1962), aff’d, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963). The only cited case which is authority for plaintiffs' view is Joe Louis Milk Company v. Hershey, 243 F.Supp. 351, 354 (1965). We are not prepared to ignore the foregoing cases antedating 1965. In any event, plaintiffs have no action under § 1983, because said section creates a cause of action for only the violation of federal rights. This court in Ortega v. Ragen, 216 F.2d 561, 562 (1954), has observed that: “A cause of action arises under this section only when a right created by the Federal Constitution or laws has been violated. Violation of a state law is not sufficient. * * * ” Thus, an action for slander of title or trepass is not a right created by the constitution or by any federal statute relied on by plaintiffs. 4. Plaintiffs’ final attempt to convince this court that the district court had jurisdiction over the subject matter is based on the Declaratory Judgment Act, 28 U.S.C.A. § 2201, which provides, in part: In a case of actual controversy within its jurisdiction, * * * any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * * Coupled with the foregoing statute, plaintiffs, pursuant to 28 U.S.C.A. § 2284, seek a three-judge court to declare that Indiana Acts of 1895, Ch. 45 and Acts of 1905, Ch. 48, § 1 are unconstitutional and void. But plaintiffs do not seek by their amended complaint an injunction against the enforcement of these Indiana acts, and therefore their prayer must fail. In Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962), the Supreme Court observed: “ * * * The three-judge requirement is a technical one to be narrowly construed, Phillips v. United States, 312 U.S. 246, 251 [61 S.Ct. 480, 85 L.Ed. 800]. The statute comes into play only when an injunction is sought ‘upon the ground of the unconstitutionality’ of a statute. * * * ” See also, Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Standing alone, § 2201 requires the presence of an “actual controversy within its jurisdiction”, and it does not create an independent ground of jurisdiction. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Chance v. County Bd. of Sch. Trustees of McHenry County, Ill., 332 F.2d 971, 974 (1964). Plaintiffs have cited no authority under the constitution or federal statutes that would give the district court jurisdiction. In view of all of the foregoing, the judgment of the district court sustaining defendants’ respective motions to dismiss for want of jurisdiction over the subject matter is affirmed. Judgment affirmed, . Two former governors and various former members of the Indian State Highway Commission.

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

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

Iberia HAMPTON, Administratrix, etc. Verlina Brewer, etc., and Deborah Johnson et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, COOK COUNTY, ILLINOIS and Edward V. Hanrahan et al., Defendants-Appellees. Fannie Mae CLARK, Administratrix of the Estate of Mark Clark, Deceased, Plaintiff-Appellant, v. The CITY OF CHICAGO, and Edward V. Hanrahan et al., Defendants-Appellees. No. 72-1277, 72-1300. United States Court of Appeals, Seventh Circuit. Argued April 6, 1973. Decided Aug. 24, 1973. Michael Deutsch, Jeffrey H. Haas, Chicago, 111., Arthur Kinoy, William J. Bender, Newark, N. J., David Scribner, New York City, Jonathan M. Hyman, Chicago, 111., for plaintiffs-appellants. Bernard Carey, State’s Atty., Michael J. Goldstein, Charles A. Powell, Asst. State’s Attys., Richard L. Curry, Corp. Counsel, Gayle F. Haglund, Asst. Corp. Counsel, Chicago, 111., for defendants-ap-pellees. ' Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges. STEVENS, Circuit Judge. Plaintiffs allege that 14 Chicago police officers raided an apartment at 2337 West Monroe Street at 4:15 A.M. on December 4, 1969, for the purpose of killing Mark Clark and Fred Hampton and punishing seven other residents of the apartment because they were black and had exercised their First Amendment rights as members of the Black Panther Party. They also allege that 15 other defendants conspired to imprison and prosecute seven surviving occupants without any legal basis whatsoever. In four separate complaints, containing a total of 49 counts, plaintiffs claim actual and punitive damages under the Federal Civil Rights Act and Illinois law. Accepting the allegations as true, as the law requires, the district court denied motions to dismiss filed by the fourteen participating officers, but entered a final judgment dismissing all claims against the remaining 15 defendants. Plaintiffs appeal from that judgment. The appellees include: (1) The State’s Attorney (Hanrahan) and three Assistant State’s Attorneys (Jalovec, So-rosky and Meltreger); (2) seven police officers who participated in certain investigations after the raid; (3) the Mayor of Chicago (Daley) and the Superintendent of Police (Conlisk); and (4) the City of Chicago and the County of Cook, municipal corporations. The district court held that the prosecutors were protected by quasi-judicial immunity, that the allegations against the ap-pellee police officers, Mayor Daley and Superintendent Conlisk were insufficient, and that the City and County were not “persons” within the meaning of the federal civil rights statutes and are immune from liability on a respondeat superior theory. In three of the cases jurisdiction stems from the federal questions which are raised; in the fourth, plaintiff Brewer is a citizen of Michigan and therefore diversity jurisdiction is also asserted. For the purposes of this appeal we must assume that all of plaintiffs’ allegations are true. The test of sufficiency is whether “. . .it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. Since different issues are raised with respect to different appellees, we consider the relevant allegations separately. In view of the large number of claims asserted, and the fact that the district court order requires all pleadings to be amended, we limit our review, with respect to each appellee, to the question whether any sufficient claim for relief has been alleged. Since reversal as to any appellee on any theory renders the district court’s other rulings respecting that appellee subject to revision at any time prior to the conclusion of the entire trial, see Rule 54(b) Fed.R.Civ.P., it would be inappropriate to discuss the sufficiency of claims which may be amended and which need not be passed upon in order to determine this appeal. 1. Hanrahan and Jalovec. The Hampton complaint alleges that “under color of state search warrant” 14 police officers illegally entered the residence of Fred Hampton and, without provocation, fired over 90 bullets from machine guns, pistols, shotguns and carbines into the general living quarters, critically wounding Fred Hampton, who was otherwise physically abused and ultimately died. In addition, the officers allegedly stole or damaged Hampton’s personal property and destroyed evidence of their illegal conduct. These alleged acts were “perpetrated upon Fred Hampton, Chairman of the Illinois Black Panther Party, because of his beliefs, thoughts, words and associations” (|f 21) in order “to create fear and terror in the Black Community” (ff 23). Hampton’s administratrix alleges that Hanrahan and Jalovec, with the 14 officers, planned the raid and agreed to use excessive and deadly force against Hampton and others in his residence. Their alleged purpose was to deprive him of his constitutional rights because of his race and his political beliefs. The Clark complaint tersely alleges that the officers shot and killed Mark Clark without any authority of law and thereby denied him due process of law by imposing summary punishment of death upon him. It alleges that defendant Hanrahan, or his Assistant State’s Attorney, did “with specific intent, plan and execute the acts as alleged herein” (|f 16); further, that these acts were the result of a tacit understanding “to treat the deceased as they did because he was Black.” The Johnson and Brewer complaints describe the raid in greater detail. They allege that four of the plaintiffs were wounded by gun fire and that all of them were physically and verbally abused and illegally arrested. Again the complaints allege that Hanrahan and Ja-lovec, as well as the 14 officers, “wilfully, maliciously, and with specific intent planned and executed the acts” recited in the complaints. These complaints also include a number of counts alleging state law claims of false imprisonment and malicious prosecution; these charges also involve defendants Hanra-han and Jalovec but will be discussed in Part 2 of this opinion. As the district court correctly held, the allegations are plainly sufficient to state claims against the participating officers under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3). It is equally clear that the allegations respecting the planning and execution of the raid by Hanrahan and Jalovec are sufficient unless their prosecutorial offices gave them immunity. The district court erroneously relied on the Illinois Tort Immunity Act. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law. The claim of immunity must not be confused with the defense of good faith. That defense is available to a person who, either because of his position or because of his conduct, is not immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L. Ed.2d 288. In those situations in which immunity is properly claimed, the action is defeated at the outset. An essential purpose of the doctrine is to give the officer freedom to exercise his discretion and to perform his official duties without fear that his conduct will be called into question at an evidentiary hearing or subject him to personal liability. The source of the immunity is found in common law doctrine recognized in federal judicial decisions. The Supreme Court has squarely held that the broad language of the Civil Rights Act of 1871 did not abolish this protection for legislators “acting in a field where legislators traditionally have power to act,” Tenney v. Brandhove, 341 U. S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019, or for judges for acts “within their judicial jurisdiction even when the judge is accused of acting maliciously and corruptly. . . . ” Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217, 1218, 18 L.Ed.2d 288. With respect to legislators and judges, it is clear that the doctrine may not be circumvented by allegations of improper motive; rather, the availability of immunity depends on the character of the conduct under attack. The scope of immunity enjoyed by a state prosecutor has not yet been defined by the Supreme Court. We are nevertheless confident that at least some of his traditional functions must be immune from suit under § 1983. See Littleton v. Berbling, 468 F.2d 389, and cases cited at page 409 (7th Cir. 1972). In view of the overriding importance of federal law, the area of his protection cannot be either limited or expanded by a state’s statutory definition of his authority or responsibility; we therefore do not pause to review the respective parties’ analyses of the relevant Illinois statute. Nor do we attach any weight in analyzing the immunity question to the numerous ways in which the pleadings characterize the motivation of the prosecutor as wrongful — ranging from “sadistic” or “racial” to the more familiar “malicious” or “discriminatory.” The immunity doctrine would be of little value if such characterization of his motive could force the prosecutor to stand trial. Prosecutorial conduct which traditionally has been treated as immune is often described as “quasi-judicial” as opposed to investigatory activities normally performed by laymen, such as police officers.- Judge Ely’s exposition of the distinction in Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) properly focuses on the character of the defendant’s conduct, rather than his alleged motivation: “We believe, however, that when a prosecuting attorney acts in some ea-pacity other than his quasi-judicial capacity, then the reason for his immunity — integral relationship between his acts and the judicial process— ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, supra, 365 U.S. 167, at 187, 81 S.Ct. 473, 5 L.Ed.2d 492; see also Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182, L.R.A.1916F, 399 (1916), cited in Yaselli [Yaselli v. Goff] 12 F.2d 396 at 405, 2 Cir. To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one, and not the other.” Id. at 536-537. The conduct of Hanrahan and Jalovec in planning the raid may be described in various ways. At one extreme the complaints may be read to charge that they deliberately planned to have the police officers kill Hampton and Clark. Even without the allegation of improper political or racial motivation, it is plain that no immunity would apply under that reading. Regardless of his motives, the prosecutor certainly may not order subordinates to kill or to punish a free citizen without trial. Notwithstanding the tone of these complaints, however, appellants have not urged this extreme reading on the court; we therefore do not so interpret the allegations. At the other extreme, defendants Hanrahan and Jalovec argue that they are charged with nothing more than the drafting of a search warrant which the raiding officers executed, an act which should be accepted as a traditional duty of the Attorney for the County. But we are persuaded that the “planning” allegations cannot fairly be read so narrowly. At the very least they charge that Hanrahan and Jalovec planned a raid in order to obtain evidence of criminal activity. Defendants argue that evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity. We find this argument unpersuasive. Even though defensible if conducted in good faith with probable cause, the State’s Attorney’s alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than activities of police officers allegedly acting under his direction. The district court erred in holding that the immunity doctrine requires dismissal, without trial, of plaintiffs’ charges against defendants Hanrahan and Jalovec. 2. Mulchrone, Ervanian, Meade, Ku-kowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger. The Johnson and Brewer complaints also allege that nine appellees, including seven police officers and two additional Assistant State’s Attorneys, joined with Hanrahan and Jalovec and the 14 participating officers in an extensive conspiracy to cause the false arrest and imprisonment of the surviving plaintiffs, the institution of an unfounded prosecution, and the concealment of the truth from the public. Several of the plaintiffs were arrested on December 4, 1969, charged with attempted murder and aggravated battery, and imprisoned until December 21, 1969; their prosecutions were continued until May 8, 1970. They allege that there was no legal basis for the arrests, the charges, or the imprisonment. Quite plainly, if the allegations are true, § 1983 authorizes relief against each person who, acting under color of state law, is responsible for these wrongs. Moreover, the conspiracy which they allege is also actionable under § 1985(3). We are satisfied that the post-raid charges against Hanrahan, Jalovec and the 14 police officers are sufficient under both § 1983 and § 1985(3). The sufficiency of the charges against the other defendants is less clear. The complaints charge that these defendants took certain action designed to conceal the fact that there was no basis for arresting, holding or prosecuting the plaintiffs, and that the continuing concealment aggravated plaintiffs’ injuries. Thus, Mulchrone and Ervanian, Supervising Officers of the Internal Inspections Division of the Chicago Police Department, allegedly limited the scope of their investigations in order to prevent information contradiciting the participating officers’ version of the raid from coming to light. Defendant Meade prepared a set of questions and answers for the officers that would avoid a fair test of their veracity. Defendants Sorosky and Meltreger helped to edit these questions and answers. Defendants Sadunas and Koludrovic gave false testimony at the coroner’s inquest. Sadunas allegedly gave testimony before the grand jury which he knew to be false. Defendants Purtell and Sadunas allegedly filed an incomplete and erroneous firearms report — again to corroborate the official, but false, version of the raid. The complaints allege that as a direct result of the conspiracy, the unfounded prosecution was continued until May 8, 1970, and plaintiffs incurred expenses in preparing their defense. The conspiracy charge is somewhat tenuous since it merely alleges that “some or all” of the defendants participated, and the causal connection between the conduct of several appellees and the alleged injury to plaintiffs is doubtful at best. Nevertheless, serious allegations of conspiracy have been made, and matters such as the extent of injury and causal connection raise questions for the trier of fact. Since we cannot say with certainty that there is no possibility that any set of facts which might be proved in support of the allegations would entitle one or more of the plaintiffs to some relief, it was error for the district court to enter judgment finally disposing of the claims against these defendants. If the alleged conspiracy did exist, as we must assume at this stage of the case, and if it did prolong a completely unfounded prosecution, plaintiffs are entitled to relief against each conspirator. The vague allegation that “some or all” of the defendants were participants does not justify requiring them all to stand trial. But if some are in fact liable, it would be unjust to permit a final judgment to exonerate all before trial, or even discovery, has commenced. We therefore conclude that even if the charges against certain of the defendants may have been properly dismissed because the allegations were deficient, it was error to enter final judgment in favor of Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger at this stage of the case. 3. Daley and Conlisk. In the Johnson and Brewer complaints, plaintiffs claim that Mayor Daley and Superintendent Conlisk are liable pursuant to 42 U.S.C. § 1986 for the consequences of the alleged conspiracy. The charge, in essence, is that they had the power and authority to prevent a violation of § 1985(3) by the other defendants and failed to do so. Liability under § 1986, however, is dependent on proof of actual knowledge by a defendant of the wrongful conduct of his subordinates. In their brief, plaintiffs summarize the critical charges against Daley and Conlisk by stating that the complaints allege “that due to their positions of authority and responsibility, [they] knew of the conspiracy against the plaintiffs.” Brief for Appellants at 43. We agree with the district court that those allegations are insufficient. 4. City of Chicago and County of Cook. The several claims against the City and the County under the Civil Rights Act were properly dismissed because these defendants are not “persons” within the meaning of the statute. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). That decision makes it clear, however, that the district court had jurisdiction over Brewer’s state law claims against the County and presumably the City as well, on the basis of diversity of citizenship. 411 U.S. at 714-722, 93 S.Ct. 1785. Those claims, asserted in Counts 13, 14 and 15 of the Brewer complaint, allege common law torts of assault and battery, false imprisonment, and malicious prosecution. The district court held that these claims against the County are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat. Ch. 85, § 1-101 et seq. The district court relied primarily on Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65 (2d Dist.1969). Subsequent to the decision of the district court, that case was overruled sub silentio by Arnolt v. Highland Park, 52 Ill.2d 27, 282 N.E.2d 144 (1972). See Krieger v. Carpentersville, 8 Ill.App.3d 243, 289 N.E.2d 481, 484 (2d Dist.1972). As we read those eases, it now seems quite clear that the Illinois statute does not immunize municipal corporations from liability if their agents are guilty of wilful and wanton misconduct. The allegations in the Brewer complaint against the City of Chicago and Cook County are therefore sufficient. The district court dismissed parallel state law claims in the Johnson complaint on the same grounds. However, there was no diversity of citizenship in that case, and this court ruled in Wojtas v. Village of Niles, 334 F.2d 797 (7th Cir. 1964), that the doctrine of pendent jurisdiction does not permit joinder of claims against a new party. Therefore, the dismissal of the state law claims in the Johnson complaint should be for want of jurisdiction, and the lower court’s order is appropriately modified. Insofar as the district court’s order of February 3, 1972, dismissed the charges against the City of Chicago and the County of Cook, it is reversed with respect to the Brewer complaint and affirmed as modified with respect to the Johnson complaint; insofar as it dismissed the charges against Mayor Daley and Superintendent Conlisk, it is affirmed ; insofar as it dismissed the charges against defendants Hanrahan, Jalovec, Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sa-dunas, Sorosky and Meltreger, it is reversed. The case is remanded to the district court for further proceedings consistent with this opinion. Reversed and remanded. . With respect to the motions to strike and dismiss of defendants James Davis, Daniel Groth, Edward Garmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes, the district court stated: “These police officers of the City of Chicago were detailed and/or on detached service with the Office of the Cook County State’s Attorney as State’s Attorney’s police or detail. This group of policemen is charged in all four of the consolidated complaints with actual on-tliescene participation in the raid on the Monroe Street apartment occupied by Fred A. Hampton, Mark Clark, Verlina Brewer, Deborah Johnson, Ronald Satchel, Harold Bell, Blair Anderson, Brenda Harris and Louis Truelock. Plaintiffs charge illegal and forced entry of the apartment and the unjustifiable use of excessive and deadly force by these officers acting under color of law. In the various complaints these policemen are charged with killing Fred Hampton in the presence of his fiance, Deborah Johnson, with killing Mark Clark, with wounding plaintiffs Satchel, Anderson and Harris, and with physically and verbally abusing and illegally arresting plaintiffs Brewer, Johnson, Satchel, Bell, Anderson, Harris and Truelock. They are also charged with conspiracy and conspiracy in connection with alleged and malicious prosecutions [sic]. These allegations and others are set forth in detail in the various complaints. As to certain of the allegations made in the complaints against these defendants, the court is of the opinion that there are questions of fact and of law that cannot be resolved except upon trial.” 339 F.Supp. 695, 700-701 (N.D.Ill.1972). . The district court consolidated the four cases. His order of dismissal directed the plaintiffs to file amended complaints against the 14 participating officers and expressly determined that there was no just reason for delay in entering final judgment in favor of the 15 appellees; the order is therefore appealable. The appeals have been consolidated in this court. . John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas. . Despite the City’s suggestion to the contrary, we must ignore what it describes as “several contradictory facts made a matter of public record” in the state criminal prosecution of defendant Hanrahan; cited at page four of the City’s brief as People v. Hanrahan, Circ. Ct. of Cook County No. 71 Cr. 1791. A finding in favor of defendants in that case is clearly no bar to this action since none of these plaintiffs is a party to that judgment. . Satchel, Anderson, Harris and Brewer. . Ill.Rev.Stat.1969, Ch. 85, § 1 — 101 et seq. . “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Fd. 646 (1872). This immunity applies even when the judge is accused, of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. I-Iis errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Id. at 553-554, 87 S.Ct. at 1217-1218. . See Ill.Rev.Stat. Ch. 14, § 5. . The purpose of their review was allegedly to make certain that the officers would not give testimony inconsistent with previous official statements about the incident. The alleged conduct of Assistant State’s Attorneys Sorosky and Meltreger clearly exceeded the scope of their quasi-judicial immunity. For, in substance, plaintiffs allege the deliberate preparation of perjured testimony. . Section 1986 provides : “Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.” . It also cited Fustin v. Board of Education of Community Unit District No. 2, 101 Ill. App.2d 113, 242 N.E.2d 308 (5th Dist.1968), and Woodman v. Litchfield Community School District, No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780 (5th Dist.1968).

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

STATE OF MAINE et al., Plaintiffs, Appellants, v. Juanita M. KREPS et al., Defendants, Appellees. No. 77-1337. United States Court of Appeals, First Circuit. Aug. 16, 1977. Edward F. Bradley, Jr., Asst. Atty. Gen., Augusta, Maine, for plaintiffs, appellants. William Brian Morrison, Atty., Dept. of Justice, with whom James W. Moorman, Acting Asst. Atty. Gen., Bruce C. Rashkow, and Michael W. Reed, Attys., Dept. of Justice, Washington, D. C., were on brief, for defendants, appellees. Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge. LEVIN H. CAMPBELL, Circuit Judge. This is an action brought by the State of Maine seeking a declaration that the quotas set by the United States Secretary of Commerce for foreign fishing of herring stock in certain offshore waters of Maine is in violation of the Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq., (the “Act”). The area, so called 5Z-SA6, includes the Georges Bank fishing grounds. The Secretary published regulations under the Act governing herring fishing on February 11, 1977, and the plaintiffs brought this challenge on February 28. At the plaintiffs’ request, the Department of Commerce reexamined its quotas, and the district court postponed taking action until the review could be completed. The administrative record was reopened and hearings were held on April 19 and 20. On May 13, the Department announced it would not change the limits set on the herring catch, although it did make one minor modification in the rules for tabulating the catch. On July 18, the district court held a hearing and then granted defendant’s motion for summary judgment and dismissed the complaint. Plaintiffs appealed, seeking expedited review of the dismissal in this court. The Fishery Conservation and Management Act, enacted on April 13, 1976, established a two hundred mile fishery conservation zone around the United States within which fishing by foreign vessels is prohibited, except to the extent authorized by the Act. To coordinate the various economic, ecological, and other interests in fish stock, § 1852 of the Act established eight Regional Fishery Management Councils, each with authority to prepare and submit to the Secretary of Commerce a fishery management plan for the species within its geographical area. Section 1821(g) provides that in the event the Secretary is notified that eligible foreign vessels have applied for permission to fish in protected waters and she determines that a management plan for the species sought to be fished will not be prepared by the appropriate regional council before March 1, 1977, she shall prepare a preliminary fishery management plan for those species. To the extent practicable, the Secretary is required to adhere to the same procedures of notice and hearing and same substantive standards that the regional council would have used had it promulgated a plan. 16 U.S.C. §§ 1821(g); 1851-61. Before enactment of the Fishery Conservation and Management Act, the Georges Bank fishery had been managed by the International Commission for the Northwest Atlantic Fisheries (ICNAF), an international organization from which the United States withdrew at the end of 1976. ICNAF had a spotty record as a conservator of fishing resources, and in particular had permitted the Georges Bank herring stock to sink below acceptable levels. In recent years, however, the member nations had begun to recognize the long term dangers of a depleted fishing stock and gradually reduced their catches. At a meeting of ICNAF delegates in June, 1976, the scientific advisory committee reported that 50,-000 metric tons (M.T.) could be taken from the Georges Bank herring stock in 1977 without further decreasing the school population. The Commission agreed to reduce this quota to 33,000 m.t. to permit some replenishment. The allocation of the agreed maximum catch among the member nations took place at a meeting in December, 1976, shortly before the American withdrawal. The United States originally had sought a quota of 18,000 m.t. for its own fishermen but agreed to a reduction to 12,000 m.t. in return for economic concessions from the Federal Republic of Germany and acceptance by all the members of a limited fishing season for foreign fishermen. Because the New England Regional Council would not be able to prepare a management plan for Georges Bank by the March 1 deadline, and in anticipation of applications to fish the area by foreign vessels, the Secretary prepared a draft preliminary management plan in September, 1976. Hearings were held, comments were received and responded to, and the final plan was published in February, 1977. The Secretary then determined the “optimum yield” of herring for the duration of the plan, a key factor which the Act requires to be ascertained. She also estimated that a portion of this quota would be harvested by United States fishermen and remitted the balance to be apportioned among foreign fishermen. Following the ICNAF guidelines, the Secretary determined that the optimum yield for Georges Bank herring in 1977 would be 33,000 m.t. and the United States share would be 12,000 m.t. The remainder was allocated according to the ICNAF quotas negotiated in December, The evidence before the Secretary indicated that present stocks in Georges Bank approximate 218,000 m.t., 7,000 m.t. below the level at which recruitment failure of herring is feared (225,000 m.t.). It was projected that an allowed yield of 33,000 m.t. in 1977 will permit the herring stocks to increase by some ten to thirteen percent by 1978, bringing the stock to a level of 247.000 m.t. Even so, that level will be substantially below the 350,000-500,000 m.t. level which experts regard as an appropriate, healthy stock for the area. Until the stock can be rebuilt to that level, it would obviously be imprudent to allow fishermen to catch herring at the rate of 100,000 to 150.000 m.t. per annum, the figures said by the Government’s expert to be the area’s “maximum sustainable yield”. The total allowable level of foreign fishing, if any, with respect to any fishery subject to the exclusive fishery management authority of the United States, shall be that portion of the optimum yield of such fishery which will not be harvested by vessels of the United States, as determined in accordance with the provisions of this chapter. Maine argues that since the stock has declined to well below the norm for a healthy stock, and is indeed below the 225,-000 m.t. “danger” level, the Act must be construed to ban foreign fishing altogether. The allowable level of foreign fishing under the statute “shall be that portion of the optimum yield . . which will not be harvested by vessels of the United States”. § 1821(d). Maine attacks the Secretary’s 33.000 m. t. optimum yield figure as too high, and the Secretary’s allocation of 12,-000 m.t. to U.S. vessels as too low. Maine’s second point is readily disposed of. The Secretary’s assessment of domestic fishing potential was supported by substantial evidence in the record. American fishermen have taken an average of 2.000 m.t. annually from Georges Bank since 1960 and have never exceeded an annual catch of 4,600 m.t. during that period. In 1976 domestic fishermen took 735 m.t. from the stock. Although evidence was presented to the agency indicating a growing desire on the part of American fishermen to increase their herring take from Georges Bank, the Secretary heard and credited evidence as to the economic infeasibility of greatly expanded fishing operations at this time. Contrary to Maine’s contention, the plaintiffs had sufficient notice that economic considerations would be a factor in weighing the potential domestic catch. The district court properly sustained the portion of the preliminary management plan that estimated the potential American catch for 1977. This figure, of course, is subject to further consideration for future years. Turning to Maine’s attack on the optimum yield estimate, it is to be noted that Maine does not quarrel with the basic data testified to by Dr. Anthony, the Government’s expert. Maine accepts his thesis that a yield of 33,000 m.t. will allow for at least a ten percent recoupment of the stock in 1977, although it points out that the stock is now dangerously depressed. The state’s chief contention is that where an area’s stock is so depressed as to be unable to maintain fishing at the level of the maximum sustainable yield, priority has to be given to cultivating a surplus so as to rebuild the stock as rapidly as possible, with only U.S. fishing to be allowed. So stated, we have to agree with the district court that the argument is without support in the Act. We find nothing in the Act which declares that all foreign fishing is to be disallowed whenever stocks are incapable of sustaining the MSY. The statute does, it is true, give first crack at the “optimum yield” to U.S. fishermen. Only such portion thereof “as will not be harvested by vessels of the United States” is available to foreign vessels. But we find nothing in the Act which prescribes a particular annual rate at which a below-par stock need be rebuilt. To be sure, the,strong conservation and management aims of the Act clearly preclude the setting of an optimum yield which permits overfishing, see 16 U.S.C. § 1801; but the Secretary’s present allotment is based on credible evidence that 33,000 m.t. will allow a ten percent increase in the stock. We cannot say this rate of increase is too slight to promote the purposes of the Act. Maine is on firmer ground, however, insofar as it questions the adequacy of the present record to show that the Secretary considered fully the Act’s definition of optimum yield in promulgating the 33,000 m.t. figure. The “optimum” yield, as defined in the Act, must be selected “on the basis of” the maximum sustainable yield as modified by “any relevant economic, social or ecological factor”. In addition, the optimum yield must be such as “will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities”. Arguably the Nation would be better benefitted by leaving in the sea the 21,000 m.t. allotted to foreign vessels, thus allowing a faster buildup of stock. Or, put another way, the optimum yield figure should perhaps be no higher than what is likely to be taken by United States vessels, thus leaving nothing for the foreigners. There is virtually nothing in the record to reflect a rational weighing of these considerations by the Secretary. To the contrary, there is some suggestion that the Secretary may have uncritically taken ICNAF’s total allowable catch figure on the assumption that optimum yield and total allowable catch were the same thing. However, optimum yield requires a finding, among others, that the figure selected reflects the greatest overall benefit to this nation. This is not to question that the “greatest overall benefit to the Nation” criterion, and the companion reference to “relevant economic, social or ecological” factors, both found in the 16 U.S.C. § 1802(18) definition of “optimum” yield, are broad enough to include such national benefits as are to be derived from permitting foreign fishing. While the Act, in its preamble, makes clear that it was enacted in reaction to the ineffectiveness of international fishery agreements to prevent overfishing, § 1801(a), it speaks of a purpose, among others, to encourage such international agreements in the future, and to encourage continued active United States efforts to obtain an internationally acceptable treaty at the upcoming Third United Nations Conference on the Law of the Sea. § 1801(c)(5). Congress plainly did not intend the cardinal aim of the Act — the development of a United States’ controlled fishing conservation and management program designed to prevent overfishing and to rebuild depleted stocks — to be subordinated to the interests of foreign nations. But within a framework of progress towards this goal, the Secretary is directed and empowered within specified limits to accommodate foreign fishing, §§ 1801(c)(4); 1821. We find no congressional purpose that she disregard the benefits to be derived from cooperating with other nations. American consumers depend not only on United States producers; they benefit from our trade with the rest of the world. United States fishermen as well as consumers benefit from international cooperation. Indeed, the continued existence of fish stocks throughout the oceans of the world may well be dependent on actions by foreign nations as well as ourselves. Management of the oceans’ fish resources cannot be accomplished solely within our own coastal areas. We think Congress did not require the Secretary to set optimum yield figures entirely without regard to the effects upon this country of allowing or denying foreign fishing. On the other hand, Congress has expressly directed the Secretary to consider the overall welfare of the United States in setting the optimum yield figure. Our nation’s welfare may be considered in terms of its foreign relations as well as its purely domestic needs, but the touchstone is the benefit of this nation, not that of some other. Moreover, by “particular reference to the food supply”, Congress underscored that priority was to be given to food requirements: the nation’s fisheries were not, for example, to be swapped for a world banking agreement. The international considerations that are given weight must ordinarily relate to fishing, fish and other activities and products pertaining to the food supply (apart from any recreational benefits). While we, therefore, conclude that the Secretary could consider the effect of international factors on this nation’s welfare in setting an optimum yield figure, we are troubled by the lack of information in the record indicating what factors the Secretary considered in the instant case. The figure of 33,000 m.t. adopted by the Secretary was taken unaltered from the quota determined by ICNAF. The final plan stated: Since the US withdrew from ICNAF, the decisions made in that forum are no longer binding. However, the scientific assessments made in ICNAF are the bases of the PMP. The record would indicate that more than the scientific assessments of ICNAF went into the plan. For example, the Secretary accepted the compromise figure for the United States catch set by the December ICNAF meeting, even though the bargaining over the figure had little to do with scientific judgment. Before the draft plan had become final, several persons criticized the allotment to foreign fishermen as not justified by corresponding benefits to the United States. The point was made most directly in a comment letter from the National Coalition for Maine Conservation, Inc.: It is inaccurate and misleading to characterize ICNAF’s determination of total allowable catch as a “determination of optimum yield”, because optimum yield is a defined term in the Act and the considerations taken into account by ICNAF bear no relation to the considerations required by the Act to be taken into account in determining optimum yield as defined therein. The Department of Commerce responded: The [ICNAF total allowable catch] figures are determined by USA scientists working in cooperation with qualified scientists from other nations as part of a long-range program to maximize productivity from the resource given a set of management goals or options agreed upon. As such, the TAC should provide the greatest “overall benefit to the nation” as long as USA requirements (which are based on socio-economic considerations) are first satisfied. After the plan was published in final form, representatives of Maine renewed the criticism. At the hearing held on April 19, Mr. William Gordon, the Regional Director for the National Marine Fisheries Service and a member of the American delegation to the December, 1976, ICNAF meeting, explained that the allocation to the Federal Republic of Germany was based on reciprocal economic benefits but that the balance of the foreign quota was intended only to accommodate those countries with historical fisheries in the area. None of this evidence indicates by itself that the Secretary ignored her statutory duty to weigh benefits to the United States in allocating a portion of the 1977 herring catch to foreign fishermen. In adopting the ICNAF quotas, the Secretary may very well have observed international considerations not immediately apparent to the United States delegation. The Secretary certainly is in a much better position to observe interrelationships among particular international economic concessions that would lead to significant advantages for the nation. At the same time, these considerations are not apparent from the record, with the exception of the advantages obtainable from the Federal Republic of Germany allocation. Where Congress has vested the authority to resolve technical questions of fact in a specialized administrative body with experience and expertise in that field, considerable deference is due its conclusions. Federal Power Commission v. Florida Power & Light, 404 U.S. 453, 463, 92 S.Ct. 637, 30 L.Ed.2d 600 (1971). At the same time, the record must provide some basis for a reviewing court to determine that the agency has exercised its discretion consistently with standards set by Congress. Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); First Bank and Trust Co. v. Smith, 509 F.2d 663 (1st Cir. 1975). Judicial review cannot take place in a vacuum. Cf. Camp v. Pitts, supra, 411 U.S. at 142-43, 93 S.Ct. 1241; Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 420, 91 S.Ct. 814. The foregoing leads us to this conclusion: while Maine has not at this time persuaded us that the Secretary’s optimum yield figure is necessarily “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”, 5 U.S.C. § 706(2)(A), it has persuaded us that, in order to obtain the judicial review to which Maine is entitled, the Secretary must provide some “additional explanation of the reasons for the agency decision.” Camp v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. at 1244 (1973). There is sufficient indication of possible misunderstanding on the Secretary’s part of the criteria applicable to the “optimum” yield figure to render it improper for a court merely to rely upon the presumptive correctness of the Secretary’s bottom line result. We think the Secretary should be asked to supplement the record to provide an explanation of the basis of her optimum yield determination insofar as it exceeds amounts needed by United States fishermen and provides for less than the optimum rebuilding of the stock. On the other hand, although the present record is inadequate, leading us to require the Secretary to address the deficiencies, it does not follow that Maine has as yet made a showing which will entitle it to receive equitable relief, in the form of an injunction against implementation of the preliminary management plan pending production of the Secretary’s supplemental explanation. Cf. Camp. v. Pitts, supra, 411 U.S. at 143, 93 S.Ct. 1241. Because the foreign fishing season is hard upon us and of limited duration, interference with implementation would come close to reversing the Secretary’s decision. Having in mind both plaintiff’s burden of proof and the broad implementation authority vested in the Secretary by Congress, we cannot at present say that it is unlikely that the Secretary can demonstrate a reasonable basis for the decision, or that it is likely that domestic fishermen will suffer irreversible harm from the plan. While the Act requires a determination reflecting substantive consideration, something not satisfied by resort to a conclusory verbal formula, the likelihood of the Secretary specifying relevant factors which would support a conclusion that setting the yield at this figure, which will allocate a portion of the Georges Bank herring catch to foreign fishermen, will serve “the greatest overall benefit to the Nation,” would seem substantial. And both parties conceded that the present quota would probably permit some rebuilding of the stock, thereby increasing the resource available to domestic fishermen in the future. In light of these considerations, we are constrained to let the present plan go forward at least until such time as the Secretary supplements the record and it can be ascertained whether or not the 33,-000 m.t. figure is rationally supported. However, Maine is entitled to speedy supplementation of the present record, and to further review thereof in the district court, with all reasonable dispatch. Accordingly, in remanding we direct the district court to order forthwith that the Secretary specify and file in court within ten days from the date of the present judgment the reasons which led her to conclude that an optimum yield figure of 33,000 m.t., which allows foreign fishermen to take herring from a depleted stock, provides the greatest overall benefit to the Nation, with particular reference to food supplies and recreation, and including relevant economic, social or ecological factors. Remanded for proceedings in accordance herewith. . The plaintiffs here are the State of Maine, its Governor, Commissioner of Marine Resources, and a representative to the New England Regional Fishery Management Council, who also is president of a canning business that will depend heavily on the herring catch. . According to Dr. Vaughn Anthony, the Deputy Chief of the Northeast Fisheries Center of the National Marine Fisheries Service and a member of the herring working group of IC-NAF, the Commission had achieved the following management record: Note 2 — Continued Scientists’ Recommended ICNAF Catch Quota Year Catch Potential New Stock Stock Size at End of Season 1972 50-90 150 174 96 146 1973 83-135 150 199 496 359 1974 150 150 146 85 285 1975 90-150 150 146 85 204 1976 60 60 42 85 234 1977 50 33 28* 85* 260* all figures in metric tons * predictions Scientists advising ICNAF had determined that a stock size below 225,000 m.t. might lead to “recruitment failure”, or irreversible depletion. Dr. Anthony testified that the catches in excess of quota for 1972 and 1973 were caused by ICNAF’s inability to control the fishing of the German Democratic Republic, not then a member of ICNAF. The estimated catch for 1977, which is lower than the quota, is based on an expectation that the United States fishermen will not consume their entire allocation. The variations in stock size that occurred in spite of fairly similar catches was caused by fluctuations in the number of fish joining the school each year. Dr. Anthony indicated that scientists were unable to anticipate the size of annual recruitment to the stock with great exactitude. The overall failure of ICNAF to manage the fishing resources under its control, particularly the haddock stock, was a factor in Congressional enactment of the Fishery Conservation and Management Act. See, e. g., 16 U.S.C. § 1801(a)(4); H.R.Rep.No.445, 94th Cong., 1st Sess. 48 (1975); Senate Commerce Comm., Memorandum on S. 961 to the Senate Foreign Relations Comm., 94th Cong., 1st Sess. 3-4 (Comm.Print 1975). . The 21,000 m.t. foreign allocation for 1977 was apportioned as follows: Poland 5100 m.t. German Democratic Republic 4825 Federal Republic of Germany 4725 Soviet Union 3400 Canada 1000 France 1000 Cuba 700 Bulgaria 100 Romania 100 Others 50 . 16 U.S.C. § 1802(18) provides: The term “optimum”, with respect to the yield from a fishery, means the amount of fish— (A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and (B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor. Maximum sustainable yield (MSY), a term not defined by the Act, refers to a scientific appraisal of “the safe upper limit of harvest which can be taken consistently year after year without diminishing the stock so that the stock is truly inexhaustible and perpetually renewable.” H.R.Rep.No.445, 94th Cong., 1st Sess. 48 (1975). Counsel for both sides informed this court at oral argument that, by its reference to a constant amount to be taken each year, maximum sustainable yield referred to a healthy, not a depleted stock. In the case of Georges Bank herring, Dr. Anthony testified during the April administrative hearing that MSY would be 100,000 to 150,000 m.t., if the presently depleted stock were to grow to its proper size, estimated to be 350,000 to 500,000 m.t. The legislative history of the Fishery Conservation and Management Act indicates both Congressional recognition of the precise scientific meaning of maximum sustainable yield and dissatisfaction with the manner ICNAF had employed the concept: The concept of maximum sustainable yield is well understood, not only by expert fisheries biologists, but by fishermen also. For this reason, there was considerable support before the Committee for adopting MSY as the basis for management. On the other hand, a responsible body of opinion supported the proposition that the Committee should not give statutory recognition to MSY since it was felt that the concept had been discredited as an effective management tool, largely as a result of the notable failures of the International Commission for the Northwest Atlantic Fisheries under the ICNAF Convention. The Committee believes that the failure of ICNAF has not discredited MSY as a management tool, but rather points up clearly the fact that MSY is only a tool and cannot be expected to accomplish anything in the absence of a sound, comprehensive management system. The Committee believes that MSY must be established for each managed species before intelligent decisions regarding optimization can be achieved. H.R.Rep.No. 445, 94th Cong., 1st Sess. 48 (1975). The legislative history then describes in detail the manner in which the optimum yield standard is to apply: Once the MSY of the fisheries or stock has been determined with reasonable scientific accuracy, and the same determination made with respect to the total biomass of an ocean area where many different, but inter-related fisheries occur, the developer of a management plan can begin to think in terms of the optimum sustainable yield (OSY). Thus while biologists in the past have tended to regard any unused surplus of a fishery as waste, the resource manager may well determine that a surplus harvest below MSY will ultimately enhance not only the specific stock under management, but also the entire biomass. Conversely, the fisheries manager may determine that the surplus harvest of the entire biomass must be reduced substantially below MSY, in order to restore a valuable depleted stock which is taken incidentally to the harvesting of other species in this biomass. An example of such a situation has occurred in the Northwest Atlantic where mindless overfishing for haddock has virtually wiped out the species. A zero quota for haddock will not permit that species to restore itself since other fisheries in the Northwest Atlantic cannot be conducted without taking haddock. . . The concept of optimum sustainable yield is, however, broader than the consideration of the fish stock and takes into account the economic well-being of the commercial fisherman, the interests of recreational fishermen, and the welfare of the nation and its consumers. The optimum sustainable yield of any given fishery or region will be a carefully defined deviation from MSY in order to respond to the unique problems of that fishery or region. Id. at 48-49. . 18 U.S.C. § 1821(d) provides: . The draft plan had set the American share at 18,000 m.t., reflecting the United States position going into the December ICNAF meeting. The figure subsequently was revised downward to match the compromise arrived at there. . These estimates of stock size, which were used in the preliminary management report published in February, were based on an assumption that the total 1976 catch would be 60.000 m.t. Subsequent developments produced a revision of the figures. Dr. Anthony testified in April that, while all reports were not yet in, the total catch for 1976 probably would be 42.000 m.t. Consequently he projected an initial size for the 1977 stock of 234,000 m.t. and a final size, assuming a 33,000 m.t. optimum yield, of 260,000 m.t. See note 2 supra. . See note 4 supra. The February preliminary management plan had projected an optimal size for the Georges Bank herring stock, at which a maximum sustainable yield of 150,000 m.t. would be attained, of 500,000 m.t. Dr. Anthony, relying on new data developed since the issuance of the plan, testified in April that the optimal size probably was less than 500,000 m.t. and could be as low as 350,000 m.t., resulting in a correspondingly lower MSY. . Under the restrictions laid down by the Secretary’s plan, foreign vessels can fish the Georges Bank herring stock only between August 15 and September 30. . Dr. Anthony testified that a substantial portion of the present herring stock is seven years old, the age at which herring mortality increases dramatically. If these fish are not harvested this year, they may be lost forever to the world food supply.

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

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

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. No. 361, Docket 86-4077. United States Court of Appeals, Second Circuit. Argued Dec. 5, 1986. Decided Feb. 10, 1987. See also, 2d Cir., 802 F.2d 47. Joe Goldberg, Washington, D.C., Staff Counsel, American Federation of Government Employees, AFL-CIO (Mark D. Roth, General Counsel, American Federation of Government Employees, AFL-CIO, of counsel), for petitioner. Robert J. Englehart, Atty., Washington, D.C., Federal Labor Relations Authority (Ruth E. Peters, Solicitor, Steven H. Svartz, Deputy Solicitor, Harold M. Sklar, Atty., Federal Labor Relations Authority, of counsel), for respondent. Before FEINBERG, Chief Judge, and NEWMAN and MINER, Circuit Judges. FEINBERG, Chief Judge: The American Federation of Government Employees, AFL-CIO (the union), petitions for review of a Decision and Order of the Federal Labor Relations Authority (the Authority), holding that the Department of Health and Human Services, Social Security Administration (the agency), did not commit an unfair labor practice under the Federal Service Labor-Management Relations Statute (the Labor Statute), 5 U.S.C. § 7116(a)(1), (5) and (8), when the agency refused to furnish information requested by the union pursuant to section 7114(b)(4) of that statute. The decision of the Authority is published at 21 F.L.R.A. No. 35 (Apr. 14, 1986). The union argues to us that the Authority should have employed the “presumptive relevance” doctrine, and required the agency to establish that the information requested by the union was not relevant to subjects within the scope of collective bargaining. Alternatively, the union argues that the Authority erred in holding that the union did not sufficiently communicate to the agency its need for the information. We reject the union’s first argument but agree with the second. Accordingly, we grant the union’s petition for review, reverse the decision of the Authority and remand this case to it. I. This petition involves four charges filed by the union against the agency that were consolidated and heard, on stipulated facts, by an administrative law judge (AU) in November 1984. The first charge involved the union’s request for unsanitized copies of official time and attendance records for all employees in the agency’s East New York branch office for the period of October 1, 1983 to March 13,1984. Unsanitized documents are unedited and contain the identity of the employee who is the subject of the record or report. At the time of the request, the union represented 36 of the 42 employees in the East New York office. The second charge concerned the union’s request for unsanitized copies of progress reviews and performance appraisals for all of the approximately 15 bargaining unit employees in the agency’s Murray Hill branch office for the period of January 1, 1983 to March 15, 1984. Underlying the third charge was the union’s request for unsanitized copies of progress reviews and performance appraisals for a group of claims representatives in the agency’s Jamaica district office for the period of January 1, 1983 to March 20, 1984. At the time of that request, the union represented 104 of 115 employees in that office, including 21 or 22 claims representatives. The fourth charge involved the union’s request for unsanitized copies of various documents bearing on work performance of claims representatives, including annual appraisals, desk and interview audits, quality review deficiency flags and weekly District Office Work Report (DOWR) statistics in the agency’s Downtown district office for the period of January 1, 1983 to February 29, 1984. At the time of that request, the union represented approximately 75 employees in that office, including 11 claims representatives. The communications between the union and agency officials were substantially the same in each case. Each request for information by the union was prompted by a complaint from a bargaining unit employee who felt that he or she had been treated unfairly by the agency. For example, at the East New York office the union’s request was prompted by a complaint from a bargaining unit employee who was told by her supervisor that restrictions on obtaining sick leave might be imposed upon her. The union wanted the records in order to discover sick leave patterns, determine how employees were treated concerning excessive use of sick leave and decide whether to file a grievance. In each of the four cases, the agency asked the union to supply more information concerning the issue underlying the request. In response, the union referred the agency to Article 24 of the collective bargaining agreement, which deals with the filing of grievances, section 7114 of the Labor Statute and section 7103(a)(9) of that statute, which defines the term grievance. There were no other relevant communications between the parties concerning the union’s requests for information, and the agency never provided the union with the requested information. In April and May 1984, the union filed charges against the agency, alleging that the agency had committed an unfair labor practice in each of the four cases when it refused to furnish information requested by the union under section 7114(b)(4) of the Labor Statute. The relevant portion of that section, see note 1 supra, requires a federal agency to furnish to the union, upon request, information that is "reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” In March 1985, the AU dismissed all four of the union’s complaints, concluding that the union had not conveyed to the agency its reasons for requesting the information and that the union’s need for the information was not otherwise apparent from the circumstances. The AU also found that even if the union had satisfied the requirements of section 7114(b)(4), it had not offered sufficient information to permit the agency to determine whether disclosure was allowed under the Privacy Act, 5 U.S.C. § 552a. In April 1986, the Authority adopted the ALJ’s findings and conclusions and affirmed his rulings that the union had not sufficiently justified its requests for information under section 7114(b)(4). Because of this holding, the Authority found it unnecessary to consider the AU’s resolution of the Privacy Act issues. This petition for review followed. II. The union argues that the Authority should have employed the “presumptive relevance” doctrine and required the agency to establish that the information requested by the union was not relevant to subjects within the scope of collective bargaining. The “presumptive relevance” doctrine was apparently first enunciated by Guy Farmer, then-Chairman of the National Labor Relations Board (the Board), in a concurring opinion in Whitin Machine Works, 108 N.L.R.B. 1537, enf’d, 217 F.2d 593 (4th Cir.1954), cert. denied, 349 U.S. 905, 75 S.Ct. 583, 99 L.Ed. 1242 (1955). In that case, the Board held that Whitin Machine Works had violated section 8(a)(5) of the National Labor Relations A.ct by failing to furnish the union with certain wage data concerning employees represented by the union. Chairman Farmer wrote: I would not require that the union show the precise relevancy of the requested information to particular current bargaining issues. It is enough for me that the information relate to the wages or fringe benefits of the employees. Such information is obviously related to the bargaining process, and the union is therefore entitled to ask and receive it. * * * * * * I am convinced, after careful consideration of the import of the problem on the collective-bargaining process, that this broad rule is necessary to avoid the disruptive effect of the endless bickering and jockeying which has theretofore been characteristic of union demands and employer reaction to requests by unions for wage and related information. 108 N.L.R.B. at 1541. The union argues that the Authority has applied this test in the past and that, in any event, it erred by refusing to give the union the benefit of the doctrine. We disagree. Notwithstanding the union’s assertions to the contrary, the Authority has consistently declined to adopt the approach suggested in Whitin Machine Works, opting instead for a case-by-case determination of whether the information requested by a union is, in the language of section 7114(b)(4)(B), “necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” See, e.g., Defense Mapping Agency, Aerospace Center, St. Louis, MO, 21 F.L.R.A. No. 77 (Apr. 30, 1986). None of the cases cited by the union support its contention that the Authority has applied the doctrine in the past and therefore should apply it now. In Farmers Home Administration Finance Office, St. Louis, MO, 23 F.L.R.A. No. 101 (Oct. 31, 1986), the Authority held that an agency’s failure to honor a union’s request for the names and home addresses of employees in the bargaining unit constituted an unfair labor practice. Although the Authority mentioned that its decision was consistent with Board decisions holding that names and addresses of bargaining unit employees are “presumptively relevant,” it explicitly stated that its conclusion was “consistent with previous decisions where we held that an agency’s duty to furnish other information under section 7114(b)(4) of the Statute turns on the nature of the request and the circumstances of each case.” Similarly, in National Weather Service, Silver Spring, MD, 21 F.L.R.A. No. 62 (Apr. 24, 1986), the Authority adopted an ALJ’s decision holding that the agency’s refusal to furnish the union with performance appraisal plans of certain named employees constituted an unfair labor practice. The AU’s citation to Whitin Machine Works, and his acknowledgement that the Board had discussed a “similar issue” in that case, did not constitute a change of Authority policy. There is no doubt that the National Labor Relations Board, construing the National Labor Relations Act, has relied on the “presumptive relevance” doctrine and that the courts have enforced Board orders based upon it. See, e.g., San Diego Newspaper Guild v. NLRB, 548 F.2d 863 (9th Cir.1977); Prudential Insurance Co. v. NLRB, 412 F.2d 77, 84 (2d Cir.), cert. denied, 396 U.S. 928, 90 S.Ct. 263, 24 L.Ed.2d 226 (1969). But the key issue before us is whether the Authority, created by Congress in 1978, is bound to follow the same pattern in construing a different statute. While private sector analogies are useful, it is obvious that public sector labor relations law may vary depending upon the statutory provisions and legal concepts involved. See Library of Congress v. FLRA, 699 F.2d 1280, 1287 (D.C.Cir.1983); compare Wellington and Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L.J. 1107 (1969), with Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich.L.Rev. 885 (1973). Thus, with respect to a union’s request for information, the employer’s obligation to comply springs from different sources in the private and public sectors. A private employer’s obligation to comply with a union’s request for relevant information is an extension of the general duty to bargain in good faith imposed by section 8(a)(5) of the NLRA. See NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152-53, 76 S.Ct. 753, 755, 100 L.Ed. 1027 (1956). In contrast, a federal agency’s obligation to furnish a union with information is specifically governed by section 7114(b)(4) of the Labor Statute, which requires the agency to furnish the union with information that is “reasonably available and necessary.” Similarly, the scope of federal collective bargaining is more restricted than its private counterpart. For example, federal employee unions cannot bargain with the government with respect to pay rates or hours of employment. See Library of Congress, 699 F.2d at 1287 n. 33. The union attempts to gloss over these differences by arguing that the duty to provide information set out in section 7114(b)(4) also evolved from a duty to bargain in good faith. It claims that section 7114(b)(4) merely codified the obligation of federal agencies under the statute’s predecessor, Executive Order No. 11491, 34 Fed. Reg. 17,605 (1969), “to provide the union information which was relevant and necessary to the performance of its representational functions____” See Director of Administration Headquarters, U.S. Air Force, 6 F.L.R.A. 110, 120-21 (1981). Based on this account of the common origin of the duty to provide information in the private and public sectors, the union claims that the Authority must also embrace the “presumptive relevance” doctrine. We are not persuaded that this claimed similarity in the origin of the duty to provide information in the private and public sectors requires the Authority to adopt the “presumptive relevance” doctrine. At a minimum, the union’s argument does not explain Congress’ failure to include the word “relevance,” or a provision providing for a relevance-based standard, in section 7114(b)(4). The presumption established in Whitin Machine Works, and its progeny, is the result of the National Labor Relations Board’s considerable experience with collective bargaining in the private sector and represents its judgment that such a rule will best insure that the duty to bargain in good faith is maintained. Although the Authority may at some point reach, for the public sector, a conclusion similar to that of the National Labor Relations Board, and decide that the obligation to supply information under section 7114(b)(4) would be best managed through a presumption similar to the one described by Chairman Farmer in Whitin Machine Works, we cannot say that the Authority is required to do so. The Authority is charged with administering and construing the Labor Statute, 5 U.S.C. § 7105(a), and its conclusions will only be set aside when found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), which is not the case here. Absent a clearer showing that the “presumptive relevance” doctrine is required to effectuate Congress’ policy in enacting the statute of improving federal labor relations, we decline to impose such a rule on the Authority. Cf. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 96-97, 104 S.Ct. 439, 443-44, 78 L.Ed.2d 195 (1983). III. The union also argues that, even without the benefit of a presumption, it adequately conveyed to the agency its need for the information sought. As already indicated, section 7114(b)(4)(B) requires the agency to furnish the union with information “reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” In the decision under review here, the Authority held that the union failed to meet its burden of establishing its need for the information. The Authority noted that a union's “bare assertion” that it needs information to process a grievance would not automatically require an agency to supply the data, and found that “[i]n the instant case, the record reveals that the necessity for the requested information was not apparent from the circumstances and that the Charging Party failed to divulge the reasons why it was seeking the information____” The Authority noted that the union had “failed even to state that it was seeking information in connection with a grievance or to determine whether to file a grievance.” It is true that the union may have been unnecessarily cautious in its dealings with the agency and that it might have been able to disclose the precise issues underlying its requests without compromising the identity of potential grievants, which was a justifiable consideration. We also agree with the Authority’s finding that much of the union’s conclusory representations to the agency — its claims that the information it sought was “relevant and necessary” for it to “fairly and adequately represent” bargaining unit employees and its quotation of language from section 7114(b)(4)(B) — added little force to its requests for information. However, after careful review of the communications between the union and the agency in the four cases involved here, we find that the Authority’s decision was based on too narrow an interpretation, on the record before it, of the agency’s duty to provide information under section 7114(b)(4). Thus, the Authority stated that the union “failed even to state that it was seeking the information in connection with a grievance or to determine whether to file a grievance.” This statement, while technically accurate, was too grudging a reading of the union’s communications. Under the circumstances of this case, the union’s reference in each request to Article 24 of the collective bargaining agreement and to section 7103(a)(9) of the Labor Statute put the agency on notice that the requests were related to an existing or a potential grievance. “It is well-settled that section 7114 creates a duty to provide information that would enable the Union to process a grievance or to determine whether or not to file a grievance.” American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C.Cir.1986) (footnote omitted). Furthermore, all of the requested documents contain information useful in evaluating job performance and may be the basis for promoting or disciplining employees. We believe that in this case it was reasonably clear that the information the union sought was needed to evaluate an existing or potential grievance relating to these subjects, and therefore was necessary for “full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.” In considering whether a union complied with the requirements of section 7114(b)(4), the Authority must consider the union’s request within “the context of the full range of union responsibilities in both the negotiations and the administration of a labor agreement.” Id. In view of the scope of the Labor Statute and the circumstances of this case, we hold that the union’s references to the grievance provisions of the contract and the statute, combined with the obvious pertinence of the requested information to subjects within the scope of collective bargaining, satisfied the union’s burden of showing the information was “necessary,” as required by section 7114(b)(4). The agency’s remaining concern, that the release of unsanitized documents will unduly invade the privacy of its employees, is a separate issue and should be considered by the Authority on remand. The petition for review is granted, the decision of the Authority is reversed and the case is remanded for a determination of whether the information is exempt from disclosure under the Privacy Act. . Section 7114(b)(4) provides, in relevant part: (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation— (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data— (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining____ . The Authority also found that in the case involving the Downtown office the agency did not refuse to furnish DOWR statistics, but that the union failed to follow through with its arrangement with the agency to copy documents. The union has not challenged that finding 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 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?

H. K. PORTER COMPANY, INC., CONNORS STEEL DIVISION, WEST VIRGINIA WORKS, Appellee, v. LOCAL 37, UNITED STEELWORKERS OF AMERICA, AFL-CIO, and United Steelworkers of America, AFL-CIO, Appellants. No. 11911. United States Court of Appeals Fourth Circuit. Argued March 5, 1968. Decided Sept. 5, 1968. Michael H. Gottesman, Washington, D. C. (Bernard Kleiman, Pittsburgh, Pa., Elliot Bredhoff and George H. Cohen, Washington, D. C., James P. Clowes, Wheeling, W. Va., and Carney M. Layne, Huntington, W. Va., on brief), for appellants. William C. Beatty, Huntington, W. Ya. (Huddleston & Bolen, Huntington, W. Va., on brief), for appellee. Before WINTER and BUTZNER, Circuit Judges, and MacKENZIE, District Judge. BUTZNER, Circuit Judge: Over the objection of the union, the district court ordered arbitration of the company’s claim for damages alleged to have been caused by violation of a no-strike clause contained in the parties’ collective bargaining agreement. The union contends arbitration is limited to employees’ grievances. The company asserts it embraces its claim against the union. We conclude the district court correctly interpreted the agreement and affirm its decision. We also hold the district judge did not abuse his discretion in prohibiting the union from deposing the company’s plant manager. I. The collective bargaining agreement provided: “The Union and its members agree: “(a) That there shall be no strikes, work stoppages or slow downs during the life of this agreement or any extension thereof except as otherwise provided. “(b) That any employee who is responsible for or who participates in a breach of this provision or any other provision of this Agreement may . be subject to disciplinary action including discharge. “(c) An employee subject to discharge or suspension for violation of this section shall be provided a hearing by the Works Manager, or his designated representative, in the presence of his shop steward and a member of the General Grievance Committee.” In 1966, while the agreement was in effect, employees, dissatisfied over company discipline of some of their number, struck the plant closing it for five days. The company promptly presented a grievance seeking damages and arbitration of its claim. Upon the union’s denial of these demands, the company brought suit under Section 301 of the Labor Management Relations Act [29 U.S.C. § 185] to compel arbitration. Under Section 301 of the Act, district courts, applying federal law fashioned from national labor policy, can order specific performance of an agreement to arbitrate. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). It is now well settled that an employer’s claim for breach of a no-strike clause is a proper subject for arbitration. Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474' (1962). Furthermore, in the case before us, the union, as well as its members, agreed to observe the prohibitions contained in the no-strike clause. It is therefore clear that the company’s charge that the union violated the no-strike clause presented an arbitrable grievance if pertinent provisions of the collective bargaining agreement are broad enough to encompass arbitration of the company’s claims against the union. We turn now to this inquiry. The obligation to arbitrate must be found in the collective bargaining agreement. It is a matter of contract, and in the absence of agreement, a party cannot be required to submit a dispute to arbitration. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). But in construing the contract,' doubts must be resolved in favor of arbitration. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 4 L. Ed.2d 1409 (1960). “[T]he courts have been instructed that the parties are bound to arbitrate all matters, not explicitly excluded, that reasonably fit within the language used.” United Textile Workers of America v. Newberry Mills, Inc., 315 F.2d 217, 219 (4th Cir. 1963). Here the collective bargaining agreement contains no clause excluding company claims against the union. On the contrary, the agreement indicates that the company and the union intended to settle their differences by arbitration. Section 12 of the agreement is called a “No-Sue Clause.” It provides: “It is understood and agreed that neither party will institute civil suits or legal proceedings against the other for alleged violation of any of the provisions of this labor contract; instead all disputes will be settled in the manner outlined in Section 10— Grievances.” Appended to the agreement as “Exhibit B” is a “Memorandum of Understanding,” which states: “In the event any grievance arising between the Parties under the terms of this Agreement is appealed to Arbitration and the Parties fail to agree upon the Arbitrator, it is agreed that the parties will petition the Federal Mediation and Conciliation Service for the appointment of an Arbitrator to hear the case as provided for in Section 10 — ADJUSTMENT OF GRIEVANCES” The parties to which these paragraphs refer are the company and the union. Employees are not parties to the collective bargaining agreement. Thus it is apparent that arbitration is not confined to employees’ grievances. The company and the union both recognized the possibility of disputes arising out of violation of the labor contract. They cove-nated not to sue, but agreed instead to settle their disputes by arbitration and, if necessary, to petition the Federal Mediation and Conciliation Service for the appointment of an arbitrator. Controlling precedent is found in Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962), where the Court held an employer’s action for damages for violation of a no-strike clause should be stayed pending arbitration. The parties had agreed to a grievance procedure that in-eluded arbitration of “all complaints, disputes or grievances arising between them involving questions of interpretation or application of any clause or matter covered by this contract, or act or conduct or relation between the parties hereto directly or indirectly.” No other provision of the contract excluded from arbitration the breach of a no-strike clause. Here as in Drake, broad provisions for the arbitration of any grievance arising between the parties, unrestricted by an exclusionary clause, are sufficient to impose upon the parties the duty to arbitrate the company’s claim for strike damages. The principal case upon which the union relies, Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), was decided the same day as Drake. The collective bargaining agreement considered there was not susceptible to a construction requiring arbitration of a claim for damages against a union for breach of a no-strike clause. The Court found a “critical limitation: ” the arbitrator could consider only employees’ grievances. Furthermore, the agreement expressly provided that arbitration could be invoked only at the option of the union. These provisions, not found in the agreement before us, distinguish Atkinson. Nor is Boeing Co. v. International Union, United Auto Workers, 370 F.2d 969, 970 (3d Cir. 1967), applicable. There in provisions for grievance procedure, which the court observed were employee oriented, an arbitrable grievance was defined as a difference between the company and any employee. The union argues that the no-sue clause merely provides that disputes are to be arbitrated in the manner provided for the adjustment of grievances (section 10, quoted in the margin, n. 4); and because this section does not outline a manner for settling employer grievances, the no-sue clause creates no independent right to arbitrate. Continuing, the union asserts that the disciplinary sanction against employees contained in the no-strike clause is the sole remedy available to the company. In sum, it is the union’s position that when the company breaches the agreement, the employees, through their agent, the union, have a grievance procedure; while on the other hand, when the company is aggrieved its sole remedy is to discipline its employees. The union’s argument can find no place in the interpretation of a collective bargaining agreement. The canons of construction require the courts not to deny arbitration “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute,” and caution “[i]n the absence of any express provision excluding a particular grievance from arbitration * * * only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail * * United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 584, 80 S.Ct. 1347, 1353, 1354, 4 L.Ed.2d 1409 (1960). The procedural devices of section 10 do not explicitly exclude arbitration of company grievances against the union. Exclusion by implication, and the consequent nullification of those provisions which indicate the parties’ intention to arbitrate, is contrary to our national labor policy. Furthermore, as the district judge pointed out, although the first three steps of the grievance procedure found in section 10 were inapplicable, step four provided an appropriate means for initiating arbitration. The district judge properly recognized that a collective bargaining agreement “is more than a contract; it is a generalized code to govern a myriad of cases which the draftsman cannot wholly anticipate.” United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409 (1960). Although the dispute between the parties over the company’s claim for strike damages raise factual issues, no genuine issue as to any material fact was presented touching upon the question of the propriety of arbitration. Summary judgment was proper. II. The union sought to depose the plant manager to gain information about the company’s claim that the union breached the collective bargaining agreement. The district judge, having determined that arbitration was appropriate, properly refrained from examining the merits of the case. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Winston-Salem Printing Pressmen & Assistants’ Union v. Piedmont Publishing Co., 393 F.2d 221, 228 (4th Cir. 1968); Local 24, Elec. Workers v. Hearst Corp., 352 F.2d 957, 959 (4th Cir. 1965). Consequently, his order quashing the notice to depose the manager for inquiry on the merits of the controversy was not an abuse of discretion. Lummus Co. v. Commonwealth Oil Refining Co., 273 F.2d 613 (1st Cir. 1959); Pennsylvania Greyhound Lines, Inc. v. Amalgamated Ass’n of St., Elec., & Motor Coach Employees, 98 F.Supp. 789 (W.D.Pa.1951), rev’d on other grounds, 193 F.2d 327 (3d Cir. 1952). See 4 Moore’s Federal Practice ¶ 26.14 (2d ed., 1967). Affirmed. . As an alternative to arbitration, the company sought a trial in the district court. In a thorough opinion that aided us in our disposition of this case, the district judge denied the union’s motion to dismiss the complaint. H. K. Porter Co. v. Local 37, United Steelworkers, 264 F.Supp. 203 (S.D.W.Va.1967). Later he granted summary judgment for the company directing arbitration. For that reason he did not consider the merits of the case. We also deem it unnecessary to consider the merits. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). Local 24, Elec. Workers v. Hearst Corp., 352 F.2d 957, 959 (4th Cir. 1965). . Section 10 — Adjustment of Grievances— provides in part: “Should any difference arise as to the meaning and application of the provisions of this agreement, the following procedure shall be observed and an earnest effort shall be made to settle such differences immediately in the following manner: “First Step — The employee and his shop steward shall discuss the grievance with the general foreman (or with the shift foreman if the general foreman is not available). If a written grievance is not presented to the Company within thirty (30) calendar days of the date of the occurrence causing the grievance it may not be presented later. “Second Step — Such written grievance shall be presented to the departmental superintendent by the area grievance committeeman, identified by number, and arrangements made for discussion of the case within five (5) calendar days with the aggrieved, general foreman or foreman, shop steward and committeeman. The superintendent’s written disposition shall be made within three (3) calendar days of the meeting and, if appealed to Third Step, a written notice of appeal must be presented to the Company within fifteen (15) calendar days of the date of his disposition. “Third Step — Such written notice of appeal shall be presented to the Director of Industrial Relations by the chairman of the grievance committee and arrangements made for a discussion of the case with the Grievance Committee and the International Union representative at the earliest convenience of the parties. A written disposition by the Director of Industrial Relations shall be made within seven (7) calendar days of the meeting and, if appealed to arbitration, written notice of appeal must be presented to the Company within thirty (30) calendar days of the date of his disposition. “Fourth Step — Such written notice of appeal shall be made to the Director of Industrial Relations by the International Union Staff Representative and, if within fifteen (15) calendar days the parties have not agreed on an arbitrator, the Federal Mediation and Conciliation Service shall be jointly petitioned (See Exhibit B) to submit a panel from which an arbitrator will be selected to hear the case. The decision of the arbitrator shall be final and binding and the costs of arbitration proceedings shall be equally borne by the parties.” . Atkinson v. Sinclair Refining Co., 370 U.S. 238, 243, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). . Section 203(d) of the Labor Management Relations Act [29 U.S.O. § 173 (d) ] provides in part: “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). . H. K. Porter Co. v. Local 37, United Steelworkers, 264 F.Supp. 203, 206 (S.D. W.Va.1967). Accord, Oneita Knitting Mills v. ILGWU, 249 F.Supp. 230 (D.S. G.1966) ; Local No. 463, United Paper-makers & Paperworkers v. Federal Paper Board Co., 239 F.Supp. 45 (D.Conn.1965). Examination of procedure may be pertinent in determining whether the parties contracted to arbitrate, but after a court has held arbitration proper, resolution of procedural questions rests with the arbitrator. Wiley & Sons v. Livingston, 376 U.S. 543, 555, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964).

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"?

BAETJER et al. v. UNITED STATES. No. 3933. Circuit Court of Appeals, First Circuit. June 26, 1944. E. T. Fiddler, of San Juan, P. R., for appellants. Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., Norman M. Littell, Asst. Atty. Gen., and Joseph F. McPherson, Sp. Asst, to the Atty. Gen., of San Juan, Puerto Rico, for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. WOODBURY, Circuit Judge. This is an appeal from a judgment of the District Court of the United States for Puerto Rico awarding the appellants, who are the trustees of Eastern Sugar Associates, a trust, $361,500 as compensation for two tracts of land on the island of Vieques condemned and taken possession of by the United States for war purposes under 40 U.S.C.A. § 258a. The land condemned consists of two non-contiguous parcels, denominated in the petition as “A” and “B”, aggregating 7,-936.6 acres. Parcel “B”, known as “Cabeza del Este”, consisting of about 1700 acres, constitutes the eastern tip of the island of Vieques and includes all lands owned by the appellants on that part of the island. Parcel “A”, consisting of about 6,300 acres, lies in the central part of the island and is five or six miles distant from parcel “B”. Parcel “A” in turn formed the eastern part of a larger tract, some 8,800 acres, owned by the appellants, so that, after the taking, there remained in the appellants’ ownership in the central part of the island approximately 2,500 acres. On this latter 2,500 acre tract are located the docks, buildings and railroad which the appellants had formerly used in operating their entire property on the island and still use in operating the part that remains. The appellants in their answer alleged that the lands condemned and taken constituted part of “a single integrated property” known as “Eastern Sugar Estates”; that this property consisted of approximately 30,000 acres of land, roughly two-thirds of which lay on the- island of Puerto Rico itself and the remainder on the island of Vieques; that upon it “are located four sugar mills, an extensive railway system, docks, warehouses and other dependencies”; that it is “devoted as an integrated whole” to the raising of sugar cane, pasture for raising and feeding livestock for use in the business of growing sugar cane and transporting it to the mills, and to the processing of cane into raw sugar; and that “the part of said Eastern Sugar Estates located in the island of Vieques including the area taken in these proceedings is devoted to the raising of sugar cane and the raising and maintaining of cattle for the needs of the enterprise as a whole”— the proportion of the lands devoted to sugar cane and to cattle, respectively, varying from year to year depending upon conditions and the requirements of the business. They then alleged that the amount deposited in court as estimated just compensation ($235,459) was wholly inadequate to compensate them for the land condemned and taken. As the answer just summarized indicates, the principal question raised on this appeal is the question of severance damages. At the trial below the appellants took the position that their entire holdings, including those on the island of Puerto Rico as well as those remaining in their ownership on the island of Vieques, had been depreciated in value by the severance of the property condemned and that they were entitled to compensation for this depreciation. Counsel for the United States, on the other hand, contended that no damages for severance can ever be allowed unless the property taken is physically contiguous to the property of the owner remaining after the taking, that is, that as a matter of law severance damages may be awarded only for the taking of the 6,300 acre tract from the larger 8,800 acre tract of which it had formed a part. After listening to arguments on the question whether the appellants were legally entitled to severance damages for properties not physically contiguous to those taken, the court below ruled that it would hear evidence tending to prove damages both to other properties on Vieques and to properties on the main island of Puerto Rico itself, but would later entertain a motion to strike. Such evidence was thereupon admitted and counsel for the United States, having reserved the right to cross examine thereon, moved at the close of the appellants’ evidence in chief that it be stricken. The court below granted this motion ruling “that the lands of the defendant located in Puerto Rico proper have not been severed in the legal sense from the lands taken by the United States in this case. Consequently, all the evidence adduced by the defendant purporting to show that the lands of the defendant located in Puerto Rico proper have been damaged by virtue of the taking in this case is stricken.” With respect to the lands of the defendant located in Vieques, the court ruled “that the taking of Cabeza del Este did not affect any of the remaining lands of the defendant in Vieques which were not taken.” The court then ruled that it was “still not in a position to determine” whether the lands remaining in the defendants’ ownership in the central part of the island had been “damaged in a compensable manner,” by the taking of the lands adjacent thereto and. consequently reserved its ruling on this question. The appellants admit that the evidence on this reserved question of damages is in conflict and that in consequence the court below could have decided it either way, but they say that it was error for the court below to have neglected to make specific findings and rulings in accordance with Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c and that its general finding on the subject of damages left the question unanswered. We do not agree. In the first place specific findings and rulings, although helpful to us on appeal, do not have to be made in cases of this nature. Rule 81 (a) (7) provides: “In proceedings for condemnation of property under the power of eminent domain, these rules govern appeals but are not otherwise applicable.” In the second place the finding made “That just compensation for said property condemned amounts to $361,500 which said amount includes all damages, past, present and future depreciation, if any there might be, to the remainder of the tract from which said parcel A of the lands condemned was taken” indicates that the court below had the question reserved in mind when awarding compensation. It, and the judgment which is worded in much the same terms, are unhappily phrased in that neither indicates whether any severance damages at all were given and if given how much was awarded therefor. This, however, is not a fatal defect. It is enough that it clearly appears that the point was not overlooked. We do not need to know how it was decided any more than we would need to know how a jury might have decided the question had the case been tried before such a tribunal under instructions permitting a general verdict. We come now to the appellants’ contention that the court below erred in striking their evidence which they say tended to show that their entire holdings on Vieques and Puerto Rico, although not contiguous, constituted a single unit made up of interdependent, related parts, and that the taking of the parts on Vieques reduced the value of the parts remaining to them on the main island of Puerto Rico. In United States v. Miller, 317 U.S. 369, 376, 63 S.Ct. 276, 281, 87 L.Ed. 336, 147 A.L.R. 55, the Supreme Court, citing cases, stated the basic rule with respect to severance damages as follows: “If only a portion of a single tract is taken, the owner’s compensation for that taking includes any element of value arising out of the relation of the part taken to the entire tract. Such damage is often, though somewhat loosely, spoken of as severance damage.” But “As respects other property of the owner consisting of separate traets adjoining that affected by the taking, the Constitution has never been construed as requiring payment of consequential damages.” The first question before us here, therefore, and the basic one in all severance damage cases, is what constitutes a “single” tract as distinguished from “separate” ones. The answer does not depend upon artificial things like boundaries between tracts as established in deeds in the owner’s chain of title, (see United States v. Powelson, 4 Cir., 118 F.2d 79, 86, 87, reversed on other grounds, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390), nor does it depend necessarily upon whether the owner acquired his land in one transaction or even at one time. Sharpe v. United States, 3 Cir., 112 F. 893, 57 L.R.A. 932. Neither does it wholly depend upon whether holdings are physically contiguous. Contiguous tracts may be “separate” ones if used separately (Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211) and tracts physically separated from one another may constitute a “single” tract if put to an integrated unitary use or even if the possibility of their being so combined in use irin the reasonably near future” (Powelson v. United States, 319 U.S. 266, 276, 63 S.Ct. 1047, 1053, 87 L.Ed. 1390) “is reasonably sufficient to affect market value.” Mc-Candless v. United States, 298 U.S. 342, 345, 56 S.Ct. 764, 765, 80 L.Ed. 1205. See also Stephenson Brick Co. v. United States, 5 Cir., 110 F.2d 360, 361; Grand River Dam Authority v. Thompson, 10 Cir., 118 F.2d 242, 244, 245; 18 Am.Jur., Eminent Domain, § 270. The Circuit Court of Appeals, Third Circuit, in the Sharpe case, (112 F. at page 896) in language approved by the Supreme Court on writ of error (191 U.S. 341, 354, 24 S.Ct. 114, 48 S.Ct. 211), stated the rule as follows: “It is not denied that in rendering the ‘just compensation’ secured by the constitution of the United States to the citizen whose property is taken for public uses it is right and proper to include the damages in the shape of deterioration in value which will result to the residue of the tract from the occupation of the part so taken. In applying this rule, however, regard is had to the integrity of the tract as a unitary holding by the owner. The holding from which a part is taken for public uses must be of such a character as that its integrity as an individual tract shall have been destroyed by the taking. Depreciation in the value of the residue of such a tract may properly be considered as allowable damages in adjusting the compensation to be given to the owner for the land taken. It is often difficult, when part of a tract is taken, to determine what is a distinct and independent tract; but the character of the holding, and the distinction between a residue of a tract whose integrity is destroyed by the taking and what are merely other parcels or holdings of the same owner, must be kept in mind in the practical application of the requirement to render just compensation for property taken for public uses. How it is applied must largely depend upon the facts of the particular case and the sound discretion of the court.” Integrated use, not physical contiguity, therefore, is the test. Physical contiguity is important, however, in that it frequently has great bearing on the question of unity of use. Tracts physically separated from one another frequently, but we cannot say always, are not and cannot be operated as a unit, and the greater the distance between them the less is the possibility of unitary operation, but separation still remains an evidentiary, not an operative fact, that is, a subsidiary fact bearing upon but not necessarily determinative of the ultimate fact upon the answer to which the question at issue hinges. The court below therefore erred in ruling that the appellants’ lands on Puerto Rico had not been severed in the legal sense from their lands on Vieques. Their evidence should have been considered in order to determine as a matter of fact whether, in spite of lack of physical contiguity, their holdings by reason of the uses to which they were being put, or would probably be put in the reasonably near future, constituted a single, integrated, unitary tract. But it does not follow that the appellants are necessarily entitled to severance damages if this question is answered in their favor. The “just compensation” guaranteed by the Fifth Amendment “is for the property, and not to the owner” (Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, 626, 37 L. Ed. 463), that is to say, “the sovereign must pay only for what it takes, not for opportunities which the owner may lose” (United States v. Powelson, 319 U.S. 266, 282, 63 S.Ct. 1047, 1056, 87 L.Ed. 1390), so that, as a result, “There are numerous business losses which result from condemnation of properties 'but which are not compensable under the Fifth Amendment.” Id. 319 U.S. at page 281, 63 S.Ct. at page 1055, 87 L.Ed. 1390; Mitchell v. United States, 267 U.S. 341, 345, 45 S.Ct. 293, 69 L.Ed. 644, and cases cited. Under the constitution a land-owner is entitled to just compensation only for land taken, or for land remaining in his ownership but damaged by a taking of other' lands, all of which together had formerly constituted a unitary holding, and the amount of his compensation is to be measured by “fair market value” — “what a willing buyer would pay in cash to a willing seller.” United States v. Miller, 317 U.S. 369, 374, 63 S..Ct. 276, 280, 87 L.Ed. 336, 147 A.L.R. 55. So, given a single tract under the test of unitary use and a taking of part of it, there may or there may not be severance damages depending upon whether the taking of the part operates to reduce the market value of what remains. The landowner’s compensation is the difference between the fair market value of the entire unitary tract before the taking and the fair market value of the part of the tract remaining thereafter. With these general considerations in mind we turn to the evidence on damages introduced by the appellants at the trial below, but stricken at the end of their evidence in chief. This evidence was to the effect that in the past the appellants had raised sugar cane on the lands on Vie-ques which the government has taken ; that they had transported this cane to their mills on the main island of Puerto Rico for processing into sugar; and that, there being no other lands economically available upon which they could raise cane to keep their mills running at full ’ capacity, they had suffered a loss to the extent of $270,000 “in value of excess" equipment.” The meaning of the phrase just quoted is not altogether clear. If it means that aft.er the taking the appellants’ mills had an uneconomic over-capacity so that they could mot be operated by the appellants as efficiently and therefore as profitably as before the taking, then the stricken evidence shows only a loss to business which resulted as an unintended incident of the taking and so a loss not compensable under the doctrine of Mitchell v. United States, supra. On the other hand, if it means, and there is other evidence tending to show that this is what the witness who used the phrase meant by it, that the over-capacity of the mills with respect to cane lands available to supply them has depreciated their value on the market to the extent of $270,000, then thé evidence would tend to show a compensable loss. In short the stricken evidence would indicate a compensable loss only if it means that after the taking the appellants’ mills had an uneconomic over-capacity so that they could not be operated by anyone as efficiently and therefore as profitably as before the taking, this being a matter which a hypothetical willing buyer would consider in determining what he would pay for the property. The case must be remanded for the court below to consider the appellants’ evidence, and the evidence which the government says it can introduce to contradict it, in order to determine whether or not the appellants have suffered a compensable loss, and, if they have, its extent. The appellants’ next contention is that the court below erred in refusing to value the lands condemned in the light of its special and higher value to the appellants by reason of its combination with their other holdings. That is, the appellants contend that the most valuable use of the land taken was in combination with the balance of their property and that they are entitled to have the land valued on the basis of its most valuable use. The rule is well established that market “value may reflect not only the use to which the property is presently devoted but also that use to which it may be readily converted.” United States v. Powelson, 319 U.S. 266, 275, 63 S.Ct 1047, 1053, 87 L.Ed. 1390; Boom Co. v. Patterson, 98 U.S. 403, 408, 25 L.Ed. 206. But it does not follow from this that its value to the condemnee, even if more valuable to him than to anyone else; is the criterion. The test of market value is objective. It is what a hypothetical willing seller would part with the land for and what an equally hypothetical buyer would give for it. Value due to the strategic location of land is important, but important only in so far as that factor would influence the hypothetical bargainers whose behavior provides the test of value, and this, we think, is all the Supreme Court meant when it followed the above quotation from the Powelson case with the statement that “value may be determined in light of the special or higher-use of the land when combined with other parcels; it need not be measured merely by the use to which the land is or can be put as a separate tract.” We see no conflict between this statement and the statement in the Miller case, (317 U.S. at page 375, 63 S. Ct. at page 280, 87 L.Ed. 336, 147 A.L.R. 55) to the effect that the fact that an owner “may not want to part with his land because of its special adaptability to his own use * * * must be disregarded by the fact finding body in arriving at ‘fair’ market value.” This latter quotation seems to us applicable to the situation presented by the facts in the case at bar and determinative of this contention of the appellants. See United States v. Honolulu Plantation Co., 9 Cir., 122 F. 581, 585. Next the appellants contend that the court below erred in admitting certain deeds into evidence on the issue of the value of the lands taken. Th^ appellants suggest but do not press here the question whether the recitations of consideration in the deeds are accurate. However, since they did not raise the point below when it could have been covered by evidence it is not before us. On their faces the deeds show transactions, apparently at arm’s length, in lands on Vie-ques in the vicinity of those taken at about the time of the taking. Clearly such transactions have a tendency to show fair market value. In fact, in the absence of recent transactions of a like nature involving the land taken itself, they are the best evidence of market value. What comparable land changes hands for on the market at about the time of taking is usually the best evidence of market value available. In the absence of such evidence a determination of value becomes at best only a guess by informed persons. United States v. Miller, 317 U.S. 369, 375, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. The questions of whether such transactions are near enough in time, or involve substantially similar lands, or significant amounts of land are all questions of the remoteness of the evidence offered and in consequence are for the trial court. Here we cannot say that the court below abused its discretion. If the sales were not what they appear to have been, transactions at arm’s length, that is a matter for cross examination or rebuttal evidence. Only sales on foreclosure and similar forced transactions not on the open market are without probative force as a matter of law. The motivation behind other transactions can be shown, but only as affecting weight, not admissibility. What has just been said goes far to dispose of the appellants’ objection to the ruling of the court permitting a naval officer to testify as an expert on value, the only basis for his standing as such being his familiarity with sales of land on Vieques at about the time of the taking. Having made a study of the question of the value of the lands taken it was for the court below to say whether he was qualified to assist it by expressions of opinion on the subject. Other questions raised by the appellants on this appeal have been considered but in so far as they are not covered by what has been said d-o not call for discussion since they are not likely to arise at another trial. The judgment of the District Court is set aside and the case remanded to that court for further proceedings not inconsistent with this opinion. This island lies about ten miles to the east of the south-easterly corner of the island of Puerto Rico. The appellants’ dock on Vieques is seventeen nautical miles distant from their docking facilities on Puerto Rico proper. The question in the Sharpe case was not the question before us here. The question there was not one of damages for the taking of land, but one of damages resulting from the use to be made of land after it had been taken. But this does not impair the value of the case as an authority for us because in both situations the question raised is whether the land is a “separate” tract or part of a “single” one. As the Supreme Court in its opinion in the Sharp case (191 U.S. 341, 354, 24 S.Ct. 114, 117, 48 L.Ed. 211) pointed out: “If the remaining land had been part of the same tract which the government seeks to condemn, then the damage to the remaining portion of the tract taken, arising from the probable use thereof by the government, would be a proper subject of award in these condemnation proceedings. But the government takes the whole of one tract. If the evidence were such as to leave it a matter of some doubt whether the land owned by the plaintiff in error were one tract or separated into three separate and distinct tracts, it would be proper to leave that question to the jury, with the instruction that if they found that it was one tract, then damages might be awarded, and refused if they were separate and independent tracts.” “Of course actual physical separation by an intervening space between two parcels belonging to the same owner is ordinarily ground for holding that the parcels are to be treated as independent of each other, but it is not necessarily a conclusive test. If the land is actually occupied or in use the unity of the use is the chief criterion. When two parcels are physically distinct there must be such a connection or relation of adaptation, convenience andt actual and permanent use as to make the enjoyment of one reasonably necessary to the enjoyment of the other in the most advantageous manner in the business for which it is used, to constitute a single parcel within the meaning of the rule.” (2 Nichols on Eminent Domain, (2d ed.) p. 740.)

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

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

Franklin Bruce STREETT, Appellant, v. UNITED STATES of America, Appellee. No. 17491. United States Court of Appeals Eighth Circuit. April 28, 1964. Curtis D. Forslund, Minneapolis, Minn., for appellant. Leigh J. Gard, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Miles W. Lord, U. S. Atty., Minneapolis, Minn., was with Leigh J. Gard, Minneapolis, Minn., on the brief. Before VAN OOSTERHOUT, RIDGE and MEHAFFY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. Defendant Streett appeals from his conviction and sentence on all of the eleven counts contained in two indictments against him which were consolidated and tried to a jury. Concurrent sentences of ten years imprisonment were imposed. Each count of each indictment charged a violation of 18 U.S.C.A. § 2314. Count I of case No. 4-63 Cr. 21, which is typical of all counts, reads: “That on or about the 27th day of September, 1962, at the City of Minneapolis, County of Hennepin, State and District of Minnesota, FRANKLIN BRUCE STREETT, aka FOREST WADE, aka WES STEVENS, did, with unlawful and fraudulent intent, cause to be transported in interstate commerce from Minneapolis, Minnesota, to New York, New York, a falsely made and forged security, to wit: ‘N.C.B. Traveler’s Check’ No. 025-776-005, dated September 27, 1962, in the amount of $100.00, payable to Dr. M. A. Van Etta, signed Forest Wade and countersigned Forest Wade, and drawn on The First National City Bank of New York, knowing the same to have been falsely made and forged; in violation of Section 2314, Title 18 United States Code.” The other counts each involve a separate traveler’s check varying in amount from $20 to $100. It is undisputed that each traveler’s cheek was a genuine traveler’s cheek drawn on The First National City Bank of New York; that such checks were purchased at a North Carolina bank by Forest Wade; that the traveler’s checks were issued and delivered to Wade and that his genuine signature was placed upon each check at the appropriate place at the top of such check prior to delivery. Based upon well-established principles that the .evidence must be viewed in the light most favorable to the Government since the Government prevailed in the trial court, the evidence clearly establishes that Streett stole the traveler’s cheeks from Wade at Rome, Georgia; that Streett took the cheeks with him to Minneapolis; that he forged the countersignature “Forest Wade” upon each of such traveler’s checks; that he received the full value of each check from the various persons who cashed said checks; that Streett knew such cheeks were stolen; that he knew the countersignature on each check was forged; that he knew the instrumentalities of interstate commerce would be used in transporting the checks from Minneapolis to New York for payment; and that all such acts were done with an unlawful and fraudulent intent. Title 18 U.S.C.A. § 2314 provides: “Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or “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, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or “Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited ; or “Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security, or tax stamps, or any part thereof — • “Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. “ * * *» This appeal is based upon defendant’s contention that the facts of this case show a forged endorsement of a genuine traveler’s check rather than a forged security and that such forged endorsement was not included in the prohibition of paragraph 3 of § 2314. Such contention was raised in the trial court by motion to dismiss indictment and by motion for acquittal, which motions were overruled. Except for the monetary requirement of $5,000 there appears to be no question concerning the applicability of the first paragraph of § 2314. However, such paragraph does not apply as the securities did not reach $5,000 in value. Hence, the Government must bring this case under paragraph 3 within the statutory language, “falsely made, forged, altered, or counterfeited securities.” The indictment narrows the field down to falsely made and forged securities. These terms have been defined and distinguished by the court in Pines v. United States, 8 Cir., 123 F.2d 825, 828, as follows: “Manifestly, the words ‘altering’ and ‘counterfeiting’ could refer only to a crime based upon a preexisting genuine instrument. Forgery, however, does not necessarily carry such presumption but indicates that there is a genuine or real obligor in existence whdse obligation has been simulated. To ‘falsely make’ is a crime not of changing or forming an instrument to resemble an existing genuine instrument or to represent that it is the act of a genuine and existing obligor, but rather to make an instrument which has no original as such and no genuine maker whose work is copied, although in form it may resemble a type of recognized security.” Thus it is apparent that the real issue is whether the traveler’s checks here involved are forged securities within the meaning of such term as it is used in § 2314. The Government contends that the acts of forgery committed by the defendant in placing the countersignature upon the traveler’s checks were the very acts necessary to make them negotiable, and since the countersignature was not that of the purchaser, the checks were therefore forged securities. On the other hand, defendant argues that only the endorsement was forged, not the security itself which was complete prior to the countersignature, and that forged endorsements are not included within the coverage of the statute. The distinction between a forged security and a forged endorsement was recognized by this court in Gesell v. United States, 8 Cir., 1 F.2d 283, and Lewis v. United States, 8 Cir., 8 F.2d 849, and later by the Supreme Court in Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610. In the Prussian case the defendant had been indicted under §§29 and 148 of the Criminal Code for forging the endorsement on a United States Treasury Draft. As evidenced by the following quotation, § 148, which is now 18 U.S.C.A. § 471, contained language very similar to the relevant phrase in § 2314, to wit, “falsely made, forged, altered, or counterfeited securities.” In interpreting such language, the court in Prussian states: “Under section 14§, ‘whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States,’ is guilty of a criminal offense. Section 147 provides: ‘The words “obligation or other security of the United States” shall be held to mean all * * * checks, or drafts for money, drawn by or upon authorized officers of the United States.’ It is apparent that the draft drawn on the Treasurer by an authorized officer is an ‘obligation * * * of the United States’ both in common parlance and by the express definition of section 147. But to extend the meaning of that phrase so as to embrace the indorsement on the government draft is to enlarge the statutory definition, and would be possible only by a strained construction of the language of sections 147 and 148, inadmissible in the interpretation of criminal statutes, which must be strictly construed. See Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 71 L.Ed. 443; United States v. Salen, 235 U.S. 237, 35 S.Ct. 51, 59 L.Ed. 210. “The writing described in the indictment, when issued by the drawer, was a check or a draft. The added indorsement was in itself neither a check nor a draft. We need not stop to consider the argument advanced that the obligation upon the draft does not become complete until it is indorsed, see Hamil v. United States, supra, p. 371 for it overlooks the circumstance that the meaning of ‘obligation’ in section 148 is narrowed by the definition in section 147 to specifically enumerated written instruments, including checks or drafts for money, which are complete, as such, within the statutory definition and in common understanding, at least when issued to the payee by an authorized officer of the government. The indorsement was at most the purported obligation of the indorser, not of the United States, and a purported transfer of the title of the draft to the indorsee. In neither aspect was ■the indorsement itself an obligation of the United States as defined by section 147, or such a part of the draft as to constitute the forging of the indorsement a forgery of the draft.” 282 U.S. 675, 677-678, 51 S.Ct. 223, 224, 225, 75 L.Ed. 610. After holding that the endorsement was not part of the security and therefore not within § 148, the Court upheld the conviction by construing the forged endorsement as falling within § 29’s (now § 495’s) catch-all phrase “other writing, for the purpose of obtaining or receiving * * * from the United States * * * any sum of money.” A comparable catch-all phrase does not exist for non-governmental transactions. The Government attempts to explain away the applicability of the Prussian case by asserting that the sole reason why the forgery was not covered under § 148 was because the endorsement was not an obligation of the United States which was intended to be protected, but rather was merely the obligation of the person whose signature was forged — an individual — who was not intended to be protected. However, this appears to be too restrictive an interpretation of the Court’s reasoning. The Court clearly held that the endorsement was not “such a part of the draft as to constitute the forging of the indorsement a forgery of' the draft.” 282 U.S. 675, 678, 51 S.Ct. 223, 224, 75 L.Ed. 610. The reasoning of the Prussian case has. been recognized in many subsequent cases. See Danielson v. United States, 9 Cir., 321 F.2d 441; Rogers v. United States, 5 Cir., 304 F.2d 520 (dissenting opinion) ; United States v. Henderson, 7 Cir., 298 F.2d 522; Carr v. United States, 6 Cir., 278 F.2d 702; Webster v. United States, 8 Cir., 59 F.2d 583. The government objects to the relevance of these cases in that they all are concerned with the protection of the United States’' securities. Nevertheless, the objective being sought here is to discover the scope-of § 2314, and authoritative court interpretations of a statute bearing strikingly similar language would appear to be pertinent here. The legislative history supports the interpretation of the statute urged by defendant. Section 2314 has its origin in the National Stolen Property Act of May 22, 1934, ch. 333, 48 Stat. 794. As originally enacted, the statute did not extend to interstate transportation of forged securities, but only to interstate transportation of, inter alia, stolen securities of the value of $5,000 or more, if 1 of § 2314. Paragraph 3 extending coverage to “falsely made, forged, altered, or counterfeited” securities, regardless of value, was added in the amendment of August 3, 1939, ch. 413, § 1, 53 Stat. 1178, eight years after the Supreme Court had held in Prussian that such language does not cover forged endorsements. The report on the amendment by the Senate Committee on the Judiciary, S. Rept.No.674, 76th Cong., 1st Sess. (1939), was a two page document incorporating and consisting mostly of two letters from the Attorney General. The second letter, dated May 5, 1939, stated: “The principal purposes of the pending bill are to extend the existing law to property that has been embezzled, and also to forged or counterfeited securities. “Studies of the desirability of extending this legislation to the transportation of forged or counterfeited securities in interstate or foreign commerce have led the Department to the conclusion that in respect to such eases the minimum amount of $5,000 serves no purpose, and that accordingly, it would be best to provide that such transportation be a criminal offense irrespective of the value of the forged, or counterfeited certificates. The reasons leading to this conclusion are that criminals who engage in forging or counterfeiting certificates do not ordinarily subject themselves to the hazards involved in such a nefarious undertaking, except for the purpose of multiplying the forged certificates on a large scale. For example, while a single act of transportation may perhaps involve a forged traveler’s check of a small denomination or a forged stock certificate for a few shares, the probability is that the person who manufactured the plate from which the traveler’s check or certificate was printed produced a large number of duplicates of the same fraudulent document. Otherwise, it would not have been worth while for him to go to the trouble and expense of purchasing the necessary tools and engraving the plate employed in accomplishing his criminal purpose. It would appear therefore, that the transportation of this type of contraband articles is entirely different from the transportation of stolen property.” (Emphasis added.) Such legislative history indicates an intention to extend the coverage of § 2314 in order to prohibit the actual false making or reproducing of the securities. The Government’s reliance upon United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359, is misplaced. While it is true Sheridan holds that paragraph 3 of § 2314 reaches small as well as large makers of forged instruments as is evidenced by the absence of the $5000 limitation, the securities there involved were checks and the Court found that the checks themselves (not just the endorsements) were forged and hence the forged checks clearly fell within the statutory description. Congress could unquestionably have broadened the statute to cover forged endorsements. Congress has not expressly covered forged endorsements of genuine securities in the statute. The language of paragraph 3 is practically identical with that interpreted in Prussian. The interpretation problem confronting us here so clearly resembles that present in Prussian and the numerous Courts of Appeal cases including our own reaching the same result, that we feel the reasoning of such eases controls the result here. If Congress had desired to cover forged endorsements, it could easily have said so. As stated in Prussian, “But to extend the meaning of that phrase so as to embrace the indorsement on the government draft is to enlarge the statutory definition, and would be possible only by a strained construction of the language * * *, inadmissible in the interpretation of criminal statutes, which must be strictly construed.” 282 U.S. 675, 677, 51 S.Ct. 223, 224, 75 L.Ed. 610. It cannot be seriously questioned that the traveler’s checks were complete as securities prior to the forged countersigning, as was the government draft in Prussian. It was established by this court in Pines v. United States, 8 Cir., 123 F.2d 825, that traveler’s checks are complete as securities prior to the countersigning. The defendant in that case was convicted under Title 18 U.S.C.A. § 415, the forerunner of § 2314, for transporting in interstate commerce traveler’s checks issued from a fictitious bank. This court stated at p. 828 of 123 F.2d: “As to the Travelers Cheques it is contended that they were not complete ; hence, could not be unlawfully transported. A Travelers Cheque has the characteristics of a cashier’s check of the issuing bank. As said by us in Mellon Nat. Bank v. Citizens Bank & Trust Co., 8 Cir., 88 F.2d 128, 132. “ ‘It is a bill of exchange drawn by the issuing bank upon itself and is accepted by the act of issuance, and the right of countei'mand as applied to ordinary cheques does not exist as to it.’ “The purported Travelers Cheques alleged to be fictitious were payable to order when countersigned by Joseph L. Lewis, whose signature purported to appear on them. As the obligation created by the issuance of a Travelers Cheque is complete as against the bank when issued, even though requiring the signature of the one to whom issued, it constituted a security within the purview of the statute because falsely made.” The Government argues that since Pines held that the traveler’s checks in that case were covered by § 415, that case cannot be used as authority for holding that the checks in the instant case are not securities within the statutory meaning. However, the clear holding of the Pines case is that the checks came within the purview of the statute not because of the lack of genuineness of the obligation or because of forgery, but because the obligation itself, although a completed security, was falsely made. This distinction between a “falsely made” security and a “forged” security was recently recognized in Stinson v. United States, 5 Cir., 316 F.2d 554. United States v. Petti, 2 Cir., 168 F.2d 221, supports defendant’s position that the traveler’s check is a complete security. The traveler’s checks there involved had been stolen from an American Express Company office and had not been signed by the purchaser. The court held such checks to be securities. The case for traveler’s checks in our present case to constitute securities is much stronger as we here have the additional factors that the checks were purchased and paid for and the first signature of the purchaser was properly affixed to the checks at time of delivery. Both defendant and the Government rely upon dictum in Rowley v. United States, 8 Cir., 191 F.2d 949, where the traveler’s cheeks which had been stolen from a bank to which they had been issued came into defendant’s possession without a signature or countersignature of a payee. The Government cites the case for stating that a federal offense under the pertinent paragraph of § 2314 was charged and for defining forgery as “The fraudulent making or alteration of a writing to the prejudice of another man’s rights.” 191 F.2d 949, 950. Defendant relies upon the following language to show there was here involved a completed instrument: “The obligation created by the issuance of the cheques as against the bank issuing them was complete when the checks were issued even though they required the signature of the one to whom issued and they constituted a security within the purview of the statute.” 191 F.2d 949, 950. The argument that it could not be a forged security if completed prior to the forgery was not presented before the court. But whatever import this case might have is negated by the fact that the defendant pleaded guilty and failed to appeal. This court affirmed the lower court’s denial of a motion to vacate sentence on the procedural ground that after conviction a sentence is not open to collateral attack based upon a defective information or indictment except for exceptional circumstances not here present. The Government also relies upon Berry v. United States, 5 Cir., 271 F.2d 775. The facts of this case are somewhat incomplete since neither the statute nor the amount of the traveler’s check is mentioned, although the indictment referred to “falsely made and forged security,” and evidently, the defendant had forged the countersignature. The court states on p. 777 of 271 F.2d; “[W]hat is in question here is not an ordinary check but a travelers check which, though it requires for negotiation the signature of the person- to whom it is issued, is, when issued and signed by the payee, complete against, and cannot be countermanded by, the issuer. Pines v. United States, 8 Cir., 123 F.2d 825. Such cheeks are cash, not upon the credit of the persons negotiating them but upon the credit of the issuer and the correspondence of the endorsement of the negotiator with the signature on the face of the instrument. In the case, therefore, of such instruments, the first negotiator, if not the person to whom the check was issued, is necessarily a forger.” Again the argument relied upon by the defendant in the instant case was not presented before the court. There is no dispute over the conclusion that the defendant is a forger within the meaning of common law — only that this was not a forged security under the paragraph in question of § 2314. To summarize, it is our view that the traveler’s checks involved were complete genuine securities at the time that they came into the hands of the defendant. While it is absolutely clear that defendant wrongfully forged the signature of Forest Wade upon each traveler’s check, § 2314 does not reach forged endorsements but only reaches forged securities. There is abundant evidence to support defendant’s guilt of many unlawful acts including larceny and forgery of endorsements. However, we conclude with considerable reluctance that the defendant’s guilt of transporting a forged security in violation of § 2314 is not established by the evidence. We express our appreciation to Mr. Forslund who served as court-appointed counsel for his competent representation of the defendant on this appeal and for his excellent written brief and oral argument made upon behalf of the defendant. Reversed and remanded.

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

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

PATHWAY BELLOWS, INC., Plaintiff-Appellee, v. Robert W. BLANCHETTE, Richard C. Bond and John H. McArthur, Trustees of the Penn Central Transportation Co., Defendants-Appellants. No. 882, Docket 79-7860. United States Court of Appeals, Second Circuit. Argued March 19, 1980. Decided Sept. 2, 1980. Kenneth R. Feit, David H. Deitsch, Gates, Singer & Deitsch, Rockville Centre, N. Y., for plaintiff-appellee. Hyman Hillenbrand, Bleakley, Platt, Schmidt & Fritz, New York City, for defendants-appellants. Before WATERMAN, MANSFIELD and TIMBERS, Circuit Judges. WATERMAN, Circuit Judge: Defendant-appellants, Trustees of the Penn Central Transportation Co. (Penn Central), appeal from a judgment entered in the United States District Court for the Southern District of New York (Sand, District Judge), which granted the motion of plaintiff-appellee Pathway Bellows for summary judgment. For the reasons stated below, we reverse the judgment of the district court. The parties agreed upon all the relevant facts, and the case was submitted to the court below on cross-motions for summary judgment. We briefly summarize those facts before our review of the reasoning and decision of the district court. On September 24, 1974 Pathway Bellows contracted with the receiving carrier, the San Diego & Arizona Eastern Railway Co. (SD & A) to transport a shipment of metal expansion joints from El Cajon, California to the Gouverneur Iron Works in Oswego, New York. The shipment arrived at its destination on October 22, 1974, where it was delivered by Penn Central, the delivering carrier, in a damaged condition. Pursuant to a telephone request, a Penn Central agent examined the shipment and prepared a Freight Inspection Report dated October 22, 1974, which noted damage, damage which the parties later stipulated totaled $40,000. One of the provisions of the bill of lading issued by SD & A for this shipment required Pathway Bellows to submit any damage claims in writing, and to file them with an appropriate carrier within 9 months of the date of delivery of the damaged property. The parties have agreed that this 9 month period began on October 22, 1974, and expired on July 22, 1975. On May 12, 1975, Pathway Bellows sent to Penn Central the following letter: Although we have contacted your company earlier, the purpose of this letter is to state, in writing, that we are in the process of filing a claim for freight damage of a shipment to Gouverneur Iron Works, Oswego, New York. This letter also made reference by caption to the Freight Inspection Report, the Way Bill covering the shipment and the railroad car in which the shipment was transported. On July 22, 1975, Pathway Bellows sent to SD & A a more detailed letter, which SD & A received the following day. This letter asserted the claim of Pathway Bellows for damages to the shipment of expansion joints, and advanced a specific dollar amount for the alleged liability. In the district court the sole question for resolution was whether Pathway Bellows had complied with the contractually imposed condition precedent to maintain an action to recover its damages, /. e., whether Pathway Bellows had timely filed with an appropriate carrier a proper written claim. With reference to Pathway Bellows’s letter of May 12, 1975, the court below held that, although timely filed, the letter was formally deficient in several important respects, and therefore could not qualify as a proper written claim. We shall defer further discussion of this ruling until we have addressed the district court’s treatment of the July 22, 1975 letter. Penn Central conceded that Pathway Bellows’s July 22, 1975 letter contained all elements necessary to classify it as a proper written claim, but maintained that the letter was not timely filed, because although mailed by Pathway Bellows on the final day of the 9 month claim period, it was not received by SD & A until the day after the claim period had expired. Because “filed” was not defined in the bill of lading or in the applicable statute and regulations, the court below regarded the term as somewhat ambiguous. Although recognizing that the word “filed” had a well-established technical meaning in other areas of the law, and that such meaning implicitly equated a filing with the date of receipt of the item to be filed, the court concluded that such a technical construction was inappropriate to a situation involving only private parties. The court noted that, as between private parties, papers are “served” rather than “filed,” and the date of service is equated with the date of mailing. Applying this construction of the term “filed” to the facts of this particular case, the court below held that, because Pathway Bellows had mailed a proper written claim on the final day of the .9 month claim period, the claim had been timely filed and the terms of the bill of lading had been timely complied with. Accordingly, the district court denied Penn Central’s motion for summary judgment and granted Pathway Bellows’s motion, from which grant the defendant-Trustees appeal. As an initial matter, we agree with the defendant-Trustees that the district court’s construction of the word “filed” finds neither support nor precedent in case law. Indeed, relevant authority is uniformly to the effect that a paper will not be considered “filed” until it has been delivered to and received by the party with whom it is to be filed. See United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916); Laser Grain Co. v. United States, 250 F. 826 (8th Cir. 1918); In re Imperial Sheet Metal, Inc., 352 F.Supp. 1149 (M.D.La.1973); President & Dirs. of Manhattan Co. v. Laimbeer, 108 N.Y. 578, 15 N.E. 712, 71 N.Y.S.App. 656 (1888); Schaffer v. Pennsylvania R.R., 127 N.Y.S.2d 466 (Mun.Ct.1950), aff’d, 127 N.Y.S.2d 468 (Sup.Ct. App. Term 1952). We do not believe the present case is sufficiently distinguishable from prior case law to warrant a different construction of the word “filed,” and we find that the court below erred in holding that the claim of Pathway Bellows was filed when the letter of July 22, 1975 was deposited in the mail. Instead, we hold that, because SD & A did not receive this letter until the day after the 9 month claim period had expired, the claim was not timely filed as required by the terms of the bill of lading. We now return to the district court’s treatment of the May 12, 1975 letter. In addressing this issue, the court below first determined that the requisite characteristics of a proper written claim had been codified in certain regulations issued by the Interstate Commerce Commission. The district court then examined the May 12, 1975 letter and found that it lacked two of the three minimum claim filing requirements established by the regulations, for it failed to assert that Penn Central was liable for any loss, and it failed to claim a specified or ascertainable amount of money as damages. Thus the court ruled that the Pathway Bellows letter of May 12,1975 was not a proper written claim within the meaning of the regulations. Although we do not agree with Pathway Bellows’s argument that the facts do not support the district court’s findings relative to the May 12, 1975 letter and that its ruling thereto should be reversed as clearly erroneous, a case recently decided by the U.S. Court of Appeals for the Seventh Circuit appears to suggest that the regulations relied on in the court below do not provide the proper standard for assessing the sufficiency of contested claims. In that case, Wisconsin Packing Co. v. Indiana Refrigerator Lines, 618 F.2d 441 (7th Cir. 1980) (en banc), cert., denied, U.S. -, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980), the court declared that the subject regulations were intended to apply to voluntary dispositions of claims by carriers so as to insure that the process of claims settlement by carriers would be more expeditious and less subject to discriminatory manipulation, Id. at 445. Where, however, the mechanisms of voluntary claims settlement were not employed, i. e., where a carrier disputed its liability and a judicial determination of the validity of the disputed claim was sought, the Wisconsin Packing court concluded that the subject regulations did not dictate the form a claim must take. Rather, the sufficiency of a claim in such a situation was to be assessed under the case law in existence prior to the regulations issued by the I.C.C. From our examination of the regulations and the relevant source material, we do not believe that the dual standards for assessing the sufficiency of claims, depending upon whether the carrier voluntarily decides to settle a claim or to contest its liability, were either intended or mandated. Although we agree with the Wisconsin Packing court that the ICC’s principal aim in promulgating these regulations was to encourage parties to settle claims instead of resorting to costly time-consuming litigation, and although we recognize that the ICC lacks the adjudicative authority to pass on the merits of claims, we point out that there is a vast difference between prescribing the form a properly constituted claim must take and that of determining the substantive merits of that claim. Furthermore, the regulations impose numerous obligations upon carriers, which are triggered by the receipt of a “claim.” Having thus required a carrier to take certain actions once a claim is received, we think it is neither inappropriate nor beyond the authority of the ICC at the same time to provide a carrier with some guidance as to what constitutes a claim, so that a carrier may know one when it sees one. Therefore, we agree with the court below that the regulations provide the appropriate standard for assessing the sufficiency of all claims irrespective of the way they may subsequently be resolved or adjudicated. In summary, we agree with the ruling of the district court that the Pathway Bellows letter of May 12, 1975 was inadequate in form to constitute a written claim. However, we conclude that the district court erred in finding that the Pathway Bellows letter of July 22, 1975 was timely filed when mailed, for we hold that, because this letter was received after the 9 month claim period had expired, it cannot qualify as a timely filed claim. We, therefore, hold that as Pathway Bellows failed to comply with the contractually imposed condition precedent to maintain an action to recover its damages, the defendant-Trustees were entitled to prevail on their motion for summary judgment. Although it may appear Draconian to require that Pathway Bellows lose a $40,000 recovery because its claim letter was received one day late, Pathway Bellows has identified no special circumstances that would entitle it to be relieved of the admittedly severe consequences of its own procrastination. The judgment of the district court is reversed, and the cause is remanded for entry of judgment in favor of the defendant-Trustees. . At the time this lawsuit arose, section 20(11) of the Interstate Commerce Act, 49 U.S.C. § 20(11), commonly known as the Carmack Amendment, provided in relevant part that “it shall be unlawful for any . . . carrier to provide ... a shorter period for the filing of claims than nine months . . .” On October 17, 1978, the Interstate Commerce Act was revised, codified, and enacted, without substantive change, as subtitle IV of Title 49 of the United States Code. The relevant portion of the Carmack Amendment currently appears, with minor changes in phraseology, as 49 U.S.C. § 11707(e) (Supp. II 1978). Carriers have implemented this statutory directive by including in the Uniform Bill of Lading the following provision, which has been approved and prescribed by the Interstate Commerce Commission: 2(b) As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier . . . within nine months after delivery of the property. . Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid. . Pathway Bellows subsequently sent letters to both Penn Central and SD & A, which amended the amount of damages claimed. . Although the court below stated that “were we required to resolve the question . whether in all cases a claim is ‘filed’ upon mailing or upon receipt by the carrier, we would be inclined to conclude that a claim is filed when it is mailed by the claimant,” it made every effort to appear not to rely explicitly on this approach but attempted to limit its holding to the factual situation presented in this case. Accordingly, the court framed its holding as follows: [A]t least where the shipper has furnished written notice within the period required by the bill of lading that it is in the process of filing a claim for damages, and identifies that claim with some specificity, such a claim when subsequently made and received by the carrier will be deemed to have been filed when it is deposited in the mail, not when it is received by the carrier. . These regulations appear at Part 1005 of Title 49 of the Code of Federal Regulations. The court below found the following sections to be controlling: § 1005.2 Filing of claims. (b) Minimum filing requirements. A communication in writing from a claimant, filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage or transportation and: (1)' Containing facts sufficient to identify the baggage or shipment (or shipments) of property involved, (2) asserting liability for alleged loss, damage, injury, or delay, and (3) making claim for the payment of a specified or determinable amount of money, shall be considered as sufficient compliance with the provisions for filing claims embraced in the bill of lading or other contract of carriage. (c) Documents not constituting claims. Bad order reports, appraisal reports of damage, notations of shortage or damage, or both, on freight bills, delivery receipts, or other documents, or inspection reports issued by carriers or their inspection agencies, whether the extent of loss or damage is indicated in dollars and cents or otherwise, shall, standing alone, not be considered by carriers as sufficient to comply with the minimum claim filing requirements specified in paragraph (b) of this section. . The governing standard initially was set forth by the Supreme Court in Georgia, Fla. & Ala. Ry. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948 (1916), where the Court made clear that satisfaction of the shipper’s obligation to submit to the carrier a written claim “does not require documents in a particular form. It is addressed to a practical exigency and it is to be construed in a practical way.” Id. at 198, 36 S.Ct. at 545. Through the years, courts occasionally have attempted to refine the very general Blish Milling standard. See, e. g., Insurance Co. of North America v. Newtowne Mfg. Co., 187 F.2d 675 (1st Cir. 1961) (written claim requirement will be satisfied by submission of “a written document, however informal in expression, indicating an intention on the shipper’s part to claim reimbursement from the carrier for a loss asserted to have occurred in the past, and sufficiently identifying the shipment in question . . . Id. at 681). However, because the case law has not brought the contours of a properly constituted claim into very sharp focus, and because of the well-recognized policy underlying the written claim requirement, i. e., not to permit the carrier to escape liability, but to insure that the carrier may make a prompt and thorough investigation of the claim, see Blish Milling, supra, 241 U.S. at 198, 36 S.Ct. at 545, courts applying the case law standard have been extremely reluctant to conclude that the written claim requirement has not been satisfied in any situation where a carrier has seen a written document noting damage to a particular shipment and implying the carrier’s responsibility therefor. See Wisconsin Packing Co., supra, 618 F.2d at 446 and cases there cited. We do not believe that the ICC, in promulgating the claim- filing regulations, intended a radical departure from the claim investigation policy underlying the written claim requirement. To the contrary, the applicable section of the regulations and the relevant source material indicate a clear intention to encourage the investigation of claims by carriers. See 49 C.F.R. § 1005.4; Ex Parte No. 263, supra, 340 I.C.C. at 559 -68. Neither do we believe that the ICC, by specifying minimum claim-filing requirements, intended to afford carriers an unfair opportunity to escape liability. The minimum filing requirements appear to call for no more information than one ordinarily would expect a claim for damages to contain, and compliance with these requirements is neither onerous nor unreasonable. To the extent that carriers may escape liability, such “windfalls” may be properly traced, not to the existence of the regulations, but to shippers’ unexcused failure to comply with a reasonable condition contained in bills of lading. However, we do agree with the implicit conclusion of the Wisconsin Packing court that the very fact that the regulations identify a properly constituted claim as one that contains certain minimum filing requirements distinguishes the standard established by the I.C.C. regulations from the standard established by the case law. . The regulations were formulated in a rather extensive rulemaking proceeding conducted by the ICC. Ex Parte No. 263: Rules, Regulations, and Practices of Regulated Carriers with Respect to the Processing of Loss and Damage Claims, 340 I.C.C. 515 (1972). In addition, certain prefatory material accompanied the publication of the regulations in the Federal Register. 37 Fed.Reg. 4257 (March 1, 1972). . Certainly, there is no explicit expression in the regulations themselves that their applicability is intended to be limited solely to those claims that carriers decide to settle voluntarily. To the contrary, 49 C.F.R. § 1005.1, the section dealing specifically with the applicability of the regulations, provides as follows: The regulations set forth in this part shall govern the processing of claims for loss, damage, injury, or delay to property transported or accepted for transportation, in interstate or foreign commerce, by each [carrier] . . subject to the Interstate Commerce Act .... Moreover, the ICC quite clearly stated that: We are persuaded by the record in this proceeding that our regulations should embrace the full range of matters relating to the filing of claims, including a prescription of minimum filing requirements and a consideration of documents that do not constitute claims, and claims for uncertain amounts. . Thus, the rules set forth in sections 1005.1 and 1005.2 first establish their overall applicability and then set out the manner and form in which loss and damage claims must be filed by claimants in order to accomplish the improvements shown to be required in the public interest in this area. Ex Parte No. 263, supra, 340 I.C.C. at 55-56. It appears, therefore, that the ICC intended to promulgate regulations that would apply generally to all claims and we can perceive no lack of statutory authority vested in the Commission which would frustrate it from fulfilling its intention. See discussion of statutory and case law basis for the Commission’s authority to promulgate these regulations in Ex Parte No. 263, supra. 340 I.C.C. at 542-46. . The ICC itself was well aware of the limits of its jurisdiction in this area: “This Commission has consistently held that it does not have jurisdiction to determine the merits or the measure of damages of particular loss and damage claims, those being cognizable only in the courts.” Ex Parte No. 263, supra, 340 I.C.C. at 539. In an attempt to remedy this lack of jurisdiction, the ICC proposed certain legislation that would have conferred on the Commission original jurisdiction to adjudicate the merits of loss and damage claims. See Ex Parte No. 263, supra, 340 I.C.C. at 588-97, 721-22. Congress, however, did not follow the Commission’s recommendation and declined to enact the necessary enabling legislation. . See, e. g., § 1005.3(b) (carrier must create individual file and assign file number to claim upon receipt of same); § 1005.3(a) (carrier shall acknowledge receipt of claim within 30 days of receiving same); § 1005.5 (carrier shall pay, decline, or make firm settlement offer in writing to claimant within 120 days after receipt of claim). . Had any conduct on the part of Penn Central misled Pathway Bellows into believing that there was no need to file a claim, or that the letter of May 12, 1975 was sufficient to constitute a claim, Penn Central might be held es-topped from insisting on Pathway Bellows’s compliance with the timely written claim requirement contained in the bill of lading. See, e. g., Perini-North River Associates v. Chesapeake & O. Ry., 562 F.2d 269, 272-73 (3d Cir. 1977). Similarly, if Pathway Bellows could not, in the exercise of reasonable diligence, have ascertained the extent of its loss within the 9 month claim filing period, untimely filing of a completed claim might be viewed as excusable. See ex Parte No. 263, supra, 340 I.C.C. at 554-55. Nothing in the present case, however, indicates that the reason for the untimely submission of Pathway Bellows’s claim was attributable to either of these factors or to any factors beyond Pathway Bellows’s control.

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

FARMERS GRAIN CO. et al. v. TOLEDO, P. & W. R. R. et al. No. 9114. Circuit Court of Appeals, Seventh Circuit Nov. 20, 1946. Writ of Certiorari Granted March 31, 1947. MAJOR, Circuit Judge, dissenting in part. Clarence W. Heyl, of Peoria, Ill., John E. MacLeish, Charles M. Price, and Leland K. Neeves, all of Chicago, Ill., for appellant. John E. Cassidy, John F. Sloan, Stanley Crutcher, Harry E. Witherell, George Z. Barnes, and Louis F. Knoblock, all of Peoria, Ill., for appellee. Before SPARKS, MAJOR, and KER-NER, Circuit Judges. SPARKS, Circuit Judge. This is an appeal by the Toledo, Peoria & Western Railroad Company from a judgment appointing a receiver to take possession of all its properties and to operate its railroad, and enjoining appellant and all others from interfering with his possession or operation. The controversy which gave rise to the present action arose out of labor difficulties between defendant-appellant, the railroad company, and the defendants-appel-lees. The latter are labor unions in which, it is alleged, 90% of appellant’s employees hold membership. These difficulties began prior to 1940 and they grew in intensity as time passed. On January 3, 1942, appellant filed a complaint, asking an injunction against the striking union, in the same district court from which this appeal is taken. After an extended hearing, the injunction was granted. Upon appeal, this court affirmed that decree on December 16, 1942. Toledo, Peoria & Western Railroad Co. v. Brotherhood of Railroad Trainmen, 7 Cir., 132 F.2d 265. In this opinion are set forth the District Court’s rulings and its reasons therefor. Upon appeal to the Supreme Court our decision was reversed on January 17, 1944. Brotherhood of Railroad Trainmen v. Toledo, Peoria & Western Railroad, 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810. That opinion held that a railroad company which refused to submit a labor dispute to arbitration in accordance with provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., although it had sought to settle the dispute by negotiation and by mediation, had not made every reasonable effort to settle the dispute, within the meaning of section 8 of the Norris-LaGuardia Act, 29 U.S.C.A. § 108, and was thereby barred by the Acts of Congress, from injunctive relief in the federal courts. In other words, it was held that the appellant was not entitled to an injunction until it had sought to settle the dispute by all three of the prescribed methods of conciliation, to wit: negotiation, mediation and arbitration; that it had not agreed to arbitrate the dispute, and while it was not required to do so, yet if it failed to make an offer to do so it deprived itself of the right to an injunction. In that case plaintiffs’ present counsel represented the labor unions, and the latter are now represented by other different counsel. This complaint, which was filed February 20, 1946, alleges that plaintiffs are shippers whose places of business are on appellant’s right of way; that the federal government had been in possession of the railroad from March 22, 1942 until October 1, 1945, at which time possession was relinquished to appellant; that on or about September 20, 1945, more than four-fifths of the employees who were in the service of the government in and during its operation of the railroad had voted to quit work; that the strike was effective as of 12:01 A.M. on October 1, 1945; that appellant and the Brotherhoods did not engage in collective bargaining prior to October 1, 1945; that on that date transportation of interstate commerce terminated; that since said date appellant’s facilities have been abandoned; that such abandonment will continue and plaintiffs and others similarly situated will be denied service until a working agreement is entered into between appellant and the Brotherhoods; that the president of appellant, who was in complete control of it, has refused to engage in collective bargaining in good faith; that cessation and abandonment of the railroad was also the result of failure of defendant Brotherhoods and unions since October 1, 1945, to exert efforts to persuade the president to meet with them and collectively bargain; that such cessation of service and abandonment of interstate commerce by the defendant company and the other defendants is contrary to the laws and public policy of the United States and of the State of Illinois, and is a ■source of disorder, disturbance of the peace, and against the general welfare; that such cessation and abandonment is injuring the property and rights of plaintiffs and the public, and is causing irreparable loss to defendant company through deterioration of its equipment and rolling stock, and is injuring the property of defendant’s stockholders; that such cessation and abandonment is preventing the employment of more than five hundred persons, and is a loss and injury to any and all persons, and is to the advantage or gain ¡of no one; that upon information and belief, the defendant Brotherhoods, unions and employees are ready and will immediately return to work and resume rail service and the free flow of interstate commerce under the same conditions and rates of pay that were in force and effect from March 22, 1942, until October 1, 1945, when the defendant company was operated by the United States Government, which conditions and rates of pay have been and are the same as those in effect on other railroads in the United States. The complaint prayed generally for relief in the premises and that the court invoke such means as necessary to bring about the prompt resumption of transportation of interstate and all commerce on said Railroad, and that the court order such remedy as is necessary to effectuate the prompt availability to plaintiffs and other shippers of rail service on that railroad. It prayed specifically that the court enjoin the appellant, the defendant unions and all persons from further abandonment of operation of the railroad. It further prayed specifically that the court appoint a receiver to take possession of all the properties, franchises, equipment and facilities of the Railroad, and that such receiver be ordered to restore rail service and free flow of interstate transportation and other commerce on such railroad immediately, and that such receiver retain possession of all of such property and equipment and direct the operation of said railroad under supervision of the court until the further order of such court, and that the court grant such other relief in the premises as is meet and in the interests of the plaintiffs, the public and for the security of the general welfare. On March 20, 1946, plaintiffs filed a petition for the appointment of a temporary receiver, alleging that appellant and the Brotherhoods had attended a meeting called at the request of Governor Green; that no agreement was reached between appellant and the Brotherhoods at that meeting and that afterwards the parties were no nearer settlement than they had been before; that since October 1, 1945, appellant’s railroad has been closed down and has transported no freight over its line. It further alleged that there was no apparent possibility of any agreement between the parties or that the railroad could be placed in operation to perform its duties as a common carrier, unless a receiver appointed by that court should take possession of it and begin operation. The Brotherhoods, 'in their answer to this petition for a temporary receiver, stated among other things, that the meeting referred to in the petition had been held and that no - agreement had been reached, but denied that there was no apparent possibility of any agreement between the parties, or that the railroad could not be placed in operation to perform its duties as. a common carrier unless a receiver was appointed. A petition for temporary relief, similar to that filed by plaintiff on March 20, 1946, was filed by plaintiffs on May 3, 1946. Neither of the two last-named petitions filed by the plaintiffs was acted upon by the court. Appellant answered the complaint in.sub-' stance that its railroad had been in possession of, and had been operated by, the Government through a federal manager from March 22, 1942, until October 1, 1945; that on September 13, 1945, the Brotherhoods made written demand upon appellant, insisting. that from and after.October 1, 1945, all of the terms and conditions under which appellant’s'properties had been operated by the federal manager should apply to appellant; that on September 29, 1945, appellant offered to continue in effect the federal manager’s rates of pay and rules, and to employ all who were employees of appellant on March 22, 1942, and the employees of the federal manager, except those who had engaged in acts of violence in late 1941 and early 1942, with historical seniority; that effective at midnight, September 30, 1945, the federal manager terminated the employment of almost all of his employees; that at that time appellant was confronted with the seizure of its property by the Brotherhoods in what they termed a strike; that negotiations subsequently were had with the Brotherhoods, seeking a mutually agreeable disposition of all controversial questions, but that said negotiations had proved unavailing; that appellant had attempted to operate its railroad, but was prevented from doing so through the violent acts and unlawful conduct of the Brotherhoods; that appellant had sought protection from the public authorities sufficient to operate its road, but such protection had not been furnished, and proper operation and interchange with other railroads could not be carried out; that many of appellant’s employees had been hurt by pickets, property had been damaged, shooting had occurred, and that in one instance certain of the pickets had been shot and killed by armed special agents (acting in self-defense) employed by appellant in the attempted operation of one of its trains; that the unlawful conduct and acts of violence of which the Brotherhoods were guilty were similar in kind and character to those involved in the earlier suit in which the judge had granted an injunction which was affirmed by this court and reversed by the Supreme Court on the ground that appellant had not agreed to arbitrate as required by the Norris-LaGuardia Act, as above stated; that appellant had not abandoned its road, but had not been able to operate the same due to the unlawful conduct on the part of the Brotherhoods, and, that.if given adequate protection, appellant had available, or could procure, a sufficient number of properly trained employees to operate the road and render service to the shippers and to the public at large. Appellant further alleged in its answer that plaintiffs had no interest or title to any of appellant’s properties which would authorize the appointment of a receiver; nor did the complaint disclose that any one or more of the plaintiffs had any interest in or right to compel a court to settle a labor controversy by seizing the property and assets of one party to said controversy. With this answer appellant also filed a cross complaint by which it sought in-junctional relief against the continued violence and unlawful conduct on the part of the Brotherhoods against, and interference with the operation of the railroad. The Brotherhoods’ answer consisted largely of admissions of certain allegations of the complaint or statements that the allegations were neither admitted nor denied. Their answer specifically stated that they were ready and would immediately return to work and resume the rail service and the free flow of interstate commerce under the same conditions and rates of pay that were in force and effect on September 30, 1945, when the road was being operated by the Government. The Brotherhoods moved to dismiss the complaint, and made the same motion at the close of plaintiffs’ evidence. These motions were denied by the court in its judgment of June 6, 1946. Material to the issues here joined, the court on June 6, 1946, made in substance the following findings of fact and conclusions of law: On September 6, 1945, the Director of the Office of Defense Transportation ordered that management of appellant be returned to its private management on September 30, 1945. On September 13, 1945, the Brotherhoods requested appellant’s president to confer with respect to a continuation of the rates of pay and working conditions which had been in effect under the federal manager. On September 15, 1945, appellant by letter notified the Brotherhood officials that it would not be proper for appellant to make any agreement with them at that time, and that it declined to participate in a meeting, and made no^ alternate or other proposal; that on or about September 27, 1945, appellant’s employees voted to withdraw from service on October 1, and that on September 28 and 29, appellant made certain proposals to the Brotherhoods which the Brotherhood officials would not accept. On October 1, 1945, practically all employees of appellant withdrew from service. By this finding the court also said that by their letter of September 13, the Brotherhoods had made a bona fide effort for collective bargaining and that the defendant railroad unreasonably frustrated this effort, and that neither appellant nor the Brotherhoods made any reasonable effort to negotiate and engage in collective bargaining prior to the employees’ withdrawal from service and cessation of rail transportation on October 1, 1945. The court further referred to other efforts made to bring the representatives of the defendants into agreement, but found that all such efforts toward mediation and adjustment were unsuccessful. By reason of these facts the court further found that the defendants had maintained an unreasonable disregard for the rights of plaintiff shippers and had acted contrary to the public welfare. In a further finding the court enumerated various acts of violence and stated that appellant’s officials had asked the local law enforcing officials and also the Governor of Illinois for protection; that the requests of all defendants to the law enforcing officers were reasonably complied with, and that appellant’s failure to operate was not justified by the railroad’s charge that public officials refused or were unable to perform their duty. It further stated that although incidents of violence occurred and a hostile and provocative attitude by pickets and also employees of defendant railroad was a hazard to the public peace and safety, yet the court could not find that such violence was a sufficient justification for the failure of the defendant to operate its trains unless the court could also find or presume from the evidence that local law enforcing officials and the Executive Officers of Illinois had refused or were unable to perform their official duties. The court said that it could not indulge in such presumption and that the evidence did not permit such finding. The court found that essential connecting rail carriers of defendant had since October 1, 1945, refused to interchange freight with defendant because of the danger to their employees arising out of the presence of armed guards on defendant’s trains and property, and because of the hazards due to the inefficiency of some of defendant’s engine crews; that one of the principal reasons for the failure of appellant to operate its trains and provide rail service was that the railroad did not have in its employ a sufficient force of trained and experienced railroad workers to operate its trains and man its equipment, and that such insufficiency of workers was the result of the appellant’s unreasonable refusal in September, 1945, to meet the defendant Brotherhoods, and engage in bona fide collective bargaining. The court further said that such insufficient force of workmen was also the result of the unreasonable and obstinate attitudes of all defendants (which included the Brotherhoods and their officials as well as appellant) and their refusal to make concessions and their failure to genuinely negotiate and bargain for the joint welfare of the employees, the railroad corporation and the public. The court found that from December, 1941 to March, 1942, many acts of violence were perpetrated by the striking workers of the railroad company; that these conditions were intercepted and relieved by the appointment of a federal manager who made a contract with the Brotherhoods which existed until October 1, 1945, when the road was returned to the appellant; that from October 1, 1945, until the present date, all the Brotherhoods refused to work, and violence has been prevalent on the part of' both membership and employees from that day to the present time; that from October 1, 1945, until the present time there has been considerable violence on the part of the present employees of the company and pickets and strikers, until conditions almost justified the statement that a state of war exists between these two opposing factions. He further stated that in his opinion, conditions were such that “a future settlement of the determined contentions of each of the parties is highly improb-' able.” The court’s conclusions of law, material to the issues here presented, are substantially as follows: The evidence does not establish that local law enforcing officers and the Executive Department of the State of Illinois have either refused or are unable to perform their public duties to keep the peace and afford protection, and. the railroad’s defense of violence and interference is not sufficient to excuse the failure to operate its trains and provide service. Upon withdrawal from service, the union members had the lawful right to engage in peaceful picketing. They had no right, however, to engage in violence or unlawful interference with defendant’s property. Neither did defendant have a right to provoke tension by the dangerous use of firearms and other provocative measures. Appellant’s refusal to arbitrate between 1941 and March 1942, and to respond to the order of the War Labor Board and the request of the President of the United States was not a reasonable discharge of its obligations to the public welfare. The refusal of defendant to comply with the Brotherhoods’ request for a conference on September 13, 1945, amounted to a failure of defendant to fulfill its legal duty to engage in collective bargaining, and the failure of the Brotherhoods to request additional steps for negotiation of appellant’s proposal of September 29, 1945, constituted a lack of full effort on their part to pursue collective bargaining. Appellant knew, or should have known, that the natural and probable consequences of its labor policy would result in cessation of interstate commerce and abandonment of its operations. It is the duty of the District Court to give effect to the law by compelling the prompt resumption of the safe, free and uninterrupted flow of interstate commerce on the railroad, and to accomplish that result it concluded that it should appoint a receiver of appellant to operate the railroad under that court’s supervision, and that all persons should be enjoined from interfering with the receiver in the performance of his duties. The court further concluded that an injunction in favor of appellant against the Brotherhoods and other appellees-defend-ants, as prayed in its cross complaint, “would not amount to relief sufficient to achieve prompt and complete resumption of the operations on defendant Railroad,” and in view of the order of the court for the appointment of a receiver, and an order enjoining all interference with the receiver, the defendant railroad’s cross complaint should be dismissed. The decree, entered on June 6, 1946, in substance denied the motions of all defendants to dismiss the complaint, and also dismissed appellant’s cross complaint. It also appointed Fred Windish, “not an experienced railroad official, but an efficient business man who has no interest on behalf of either of the defendants,” as receiver of all of the properties, franchises and assets of appellant. It further decreed that the receiver, upon filing his bond in the sum of $10,000 for the faithful performance of his duties should “take possession of all the real and personal property, franchise rights and other assets tangible and intangible of” appellant, “and operate or arrange to operate such Railroad in such manner as will furnish satisfactory and adequate rail transportation to all members of the public subject to the approval of this Court,” and that “all defendants, persons, firms and corporations be and they are hereby enjoined from interfering with the Receiver in obtaining possession of these properties or with his possession or with his operation of the Railroad.” On June 12, 1946, appellant filed its verified motion to vacate the decree and enter a decree in its favor, or to vacate the decree and hear further 'evidence. This motion disclosed that the case had been closed on May 17, 1946, argument of counsel heard on May 20 and 21, and the decree entered on June 6, 1946; that the shooting on February 6, 1946, above referred to, concerning which testimony had been introduced at this trial, had resulted in the indictment of four of appellant’s employees for manslaughter in McLean County, Illinois; that a trial of those defendants had been had in the Circuit Court of that County, which resulted in an acquittal on May 24, 1946. The motion further disclosed that since the final arguments in this case appellant had inspected and placed in operating condition the Eastern Division of its railroad running between East Peoria and Effner, Illinois; that on June 4, 1946, appellant had lifted its embargo to permit the acceptance of all carload shipments, excepting perishables and live stock, when originating at or destined to stations between East Peoria and Effner, and had established daily service, except Sunday, to shippers located on the Eastern Division; that since June 4, 1946, appellant had daily, except Sunday, operated a train between East Peoria and Effner, and had furnished to the shippers on the Eastern Division all the services they had requested; that since June 4, 1946, appellant had completed transportation of certain cars on its line; that connecting railroads, with one exception, had advised appellant that they would accept and handle cars in exchange from appellant, although certain other railroads had stated that such handling would depend upon freedom from interference, and the Peoria and Pekin Union Railroad had issued on June 4, 1946, an embargo against all shipments to and from, appellant. This motion further alleged that appellant was able to hire a sufficient number of employees to operate its lines, if it ultimately proved to be impossible to agree with the Brotherhoods; that since the closing arguments in this case, appellant and the Brotherhoods had conferred with respect to a settlement of their differences, and their endeavors were continuing when this decree was entered. This motion was denied. The receiver was appointed and his bond for faithful performance was filed and approved. Plaintiffs were not required to give bond. The first question presented is whether the District Court under the evidence was authorized by law or equity to appoint a receiver of appellant That court quite succinctly stated the question in the following language: “Whether * * * this court can, under the law, because of an injury to the public appoint a receiver over a financially sound institution, and more or less abolish the rights of arbitration or the rights of dealing with labor and capital.” His ruling was in the affirmative, and by it we think the methods prescribed by Congress for dealing with controversies between capital and labor were indeed abolished with respect to this case. It is admitted by plaintiffs and the District Court that the decree provides a new and unprecedented method of solving labor disputes by appointing a receiver of appellant’s property, which was specifically prayed for in' the complaint, together with the usual prayer for general relief. True, there was an additional prayer that the receiver be ordered to operate the property and that in so doing he be protected by injunctive process. Such prayer was granted as is usual in all federal equity re-ceiverships. Every equity receiver is appointed for the purpose of either preserving, liquidating or operating the property involved. It is admitted that this appointment was not made for the purpose of liquidation, nor was it made for the purpose of preserving the property, for plaintiffs had no interest in it, either legal or equitable, nor did they have a claim of any kind against it. It is clear that the ultimate aim of the action was the appointment of a receiver for the sole purpose of operating the railroad, without any limitation as to time, and not being ancillary to other equitable or legal relief sought. Under these circumstances we think the decree was improper. Kelleam v. Maryland Casualty Company, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899; Gordon v. Washington, 295 U.S. 30, 55 S.Ct. 584, 79 L.Ed. 1282; Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763; Re Metropolitan Railway Receivership, 208 U.S. 90, 28 S.Ct. 219, 52 L.Ed. 403; 16 Fletcher Cyclopedia of Corporations, Sec. 7683. Appellant further contends that the District Court erred in dismissing its cross complaint in which it asked for an injunction against the defendant-appellees. In its conclusions of law, the court stated in effect, as one of its reasons for such ruling, that it was unnecessary to grant that relief to appellant because it had granted the same relief to the receiver, and further, that to grant an injunction to appellant “would not amount to relief sufficient to achieve' prompt and complete resumption of the operations on * * * (the) railroad.” This latter statement is consistent with only one of two conceivable facts. Either the receiver contemplated granting the unions’ demands, or the court thought that the unions would not obey an injunction issued to appellant. We are reluctant to indulge in that thought for that would be to presume an unpatriotic act on the part of the unions as well as all participating courts. A further reason for dismissing the cross complaint, as set forth in its conclusions of law, was that appellant had not reasonably discharged its obligations to the public welfare, because it had refused to arbitrate its controversies with the Union in 1941 and March 1942, and that it did not respond to the order of the War Labor Board and the request of the President of the United States. At that time, of course, there had been no offer to arbitrate, as shown in the opinion of the Supreme Court in the former case (321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810), in which, however, it was held that appellant at that time had performed all of its duties as to negotiation and mediation as the District Court in the former case had found. Of course, the War Labor Board never issued a mandatory order in this case, nor did it have the power to do so. Its order, as well as that of the President, was purely recommendatory, and neither was binding on appellant. This ruling is further based on the appellant’s refusal to comply with the Brotherhoods’ request for a conference on September 13, 1945, as stated in the conclusions of law. The reason for not thus participating was that none of the employees concerned were then in appellant’s employment, but all were in the employment of the Government and would be until October 1. However, on September 29, appellant proposed to the Brotherhoods to adopt the federal manager’s pay and working conditions as of September 30, 1945, also to adopt the principle of historical seniority with respect to all appellant’s former employees and those of the federal manager; to give employment to all for whom jobs might be available, with the exception of 23 persons who had been found by the court in 1942 to have been guilty of unlawful conduct and acts of violence against appellant and who had been named in the injunctional order of the court issued on January 19, 1942, and one other person who had shot at one of appellant’s trains in violation of the injunc-tional order; and to sign an agreement with all of the Brotherhoods, recognizing them as bargaining representatives. The Brotherhoods refused appellant’s proposal of September 29, claiming that the provision concerning the treatment of persons who had engaged in acts of violence was unacceptable to them, and later they refused the provision relating to historical seniority, and so far as this record discloses there were no other questions involved. Even after October 1, there were other negotiations and proposals through the Illinois Commerce Commission, and the National Mediation Board. Appellant offered to arbitrate under an arbitrator appointed either by the senior federal judge of that district, or the trial judge, or the senior circuit judge of this ■circuit, or by the Illinois Commerce Commission, and finally appellant proposed to arbitrate their two remaining differences, or any others which might arise, under the •terms of the Railway Labor Act. The Brotherhoods rejected all of these proposals, notwithstanding their answer denying the allegation in plaintiffs’ petition that the railroad could not be placed in operation to perform its duties as a common ■carrier unless a receiver was appointed. Under these circumstances which are undisputed, we think it cannot be said that appellant failed either to negotiate, mediate or arbitrate as contemplated by the former decision in this case by the Supreme Court. The court found that the parties did not bargain or negotiate in good faith, and that their failure to agree was the result of the unreasonable and obstinate attitudes of all defendants and their refusal to make concessions. At the close of the trial, however, he said: “I know that there is an honest disagreement on the part of the management of the railroad company and perhaps an honest — and I know an honest disagreement on the part of the employees of the Brotherhoods.” Of course this statement of the court would not of itself annul its findings of lack of good faith in negotiating and bargaining, but it conclusively shows that the finding is based solely on the fact that the parties did not reach an agreement, which under the law does not constitute a proper basis for such finding. The statutes provide a remedy for such a situation by arbitration, which if accepted becomes binding on all parties, and if not accepted, the applicant is furnished with injunctive process for its protection under the ruling of the Supreme Court in the earlier case, 321 U.S. 50, 14 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810. The law does not require the Brotherhoods or the appellant to enter into an agreement which is not mutually satisfactory. Virginian Railway Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; N. L. R. B. v. Jones & Laughlin Steel Co., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. It is urged by appellees that the appointment of a receiver will not be injurious to appellant. Conceding this arguendo, it furnishes no basis for the appointment of a receiver. 53 Corpus Juris on Receivers, § 21; 45 American Jurisprudence on Receivers, § 30; 16 Fletcher, Cyclopedia Corporations, § 7728. Appellees urge quite strongly that appellant has abandoned its railroad because, as it appears, the road cannot operate because of the unlawful interference of the Brotherhoods and because of the unlawful refusal of the connecting lines to interchange traffic with appellant. There is no merit in this contention. Townsend v. Michigan Cent. R. Co., 6 Cir., 101 F. 757; Williams v. Atlantic Coast Line Co., 4 Cir., 17 F.2d 17; Chicago & E. I. R. v. Clapp, 201 Ill. 418, 66 N.E. 223; Toledo, Peoria & Western R. R. Co. v. Brotherhood, supra; Interstate Commerce Act, § 3(3), 49 U.S.C.A. § 3(3); Smith-Hurd Ill.Ann. Statutes, chap. 111⅔, § 44. It seems to be well settled that appellant cannot be required to operate its road in the face of unlawful conduct and the acts of violence on the part of the Brotherhoods, especially where such conduct approaches the magnitude of civil war as found by the court in the case at bar. See Empire Transportation Co. v. Philadelphia & Reading Coal and Iron Co., 8 Cir., 77 F. 919, 35 L.R.A. 623; Geismer v. Lake Shore & Michigan Railroad Co., 102 N.Y. 563, 7 N.E. 828, 55 Am.Rep. 837. See also Toledo, Peoria & Western R. R. v. Brotherhood, supra; People v. New York Central R. R. Co., 28 Hun, N.Y., 543; and Jonesborough, L. C. & E. R. Co. v. Maddy, 157 Ark. 484, 248 S.W. 911, 28 A.L.R. 503; Ritchie v. Oregon Short Line R. Co., 42 Idaho 193, 244 P. 580, 45 A.L.R. 919. In its conclusions of law the court states that the enforcing officers and executive department of the State of Illinois have neither refused nor been unable to perform their public duties to keep the peace and afford protection to the defendant for the operation of its road. We are not disposed to labor this matter. The record does not inform us as to the specific duties of these officers, nor is it necessary that we should make further investigation on this subject. The undisputed evidence is that this road has been unable to run for quite a long period of time, and of course it is admitted that this is due to the labor troubles which are now before us. These troubles have grown in intensity, and they have resulted in the deaths of three human beings. It is undisputed that these troubles have never been alleviated by the officers referred to. Whether this was due to the officers’ inactivity or inability, or beyond the scope of their duty is immaterial at the present time. This condition has existed so long that it has become a stench in the nostrils of patriotic" citizens of Illinois, and it should be stopped by due process of law. Appellant has urged with considerable emphasis that the District Court was without jurisdiction to hear this case. We are indeed doubtful of the merit of this contention because of the very wide latitude of plaintiffs’ prayer for relief.- It sought any relief which the court might properly give and we see no reason why under that pleading and this evidence the District Court could not have issued a mandatory injunction against the appellant to continue the operation of its road and also protect the appellant by an injunction such as it has issued to the receiver. Of course, it did not do this. However, we do not feel disposed to hold that the District Court was without jurisdiction to hear the case. Its jurisdiction does not depend upon the correctness of its decision. The defendant appellees urge that appellant’s cross complaint was insufficient to support an injunction in favor of appellant against interference with its operation of the road because the cross complaint was, not verified by oath, nor did it disclose that notice of past unlawful interference, or such threatened interference, was given to the chiefs of those public officials, charged with the duties to protect appellant’s property in the counties and cities within which such unlawful acts were threatened or committed, nor was summons issued upon the cross complaint, and served upon any ap-pellee. The propriety of an injunction against interference in the road’s operation inheres in the issues raised by the complaint and answers. Plaintiffs ask for equitable relief by way of mandatory injunction, to compel appellant to operate the road. It is elemental that the law will never require the performance of an act unless it is physically possible to perform it. Appellant’s answer alleges acts of the Brotherhoods and their associates which, if true and continued, render the operation of the road impossible. The cross complaint for injunction is based, by reference, upon the allegations of interference as set forth in the answer., The court dismissed the cross complaint for injunction although it enjoined any interference with the operation of the road by the receiver which it appointed. The reason for this ruling is set forth in the court’s 9th conclusion of law, to which no objection was, or is now, made by any appellee. As stated before we think plaintiffs are entitled to the mandatory injunction, providing appellant is protected by an injunction against interference by anyone in the operation of the road. We think the proviso should be adhered to because of the history of this controversy. It is true that our Supreme Court has held that to render a person amenable to an injunction, it is neither necessary that he should have been a party to

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

RY-LOCK COMPANY, Ltd., a Corporation, Appellant, v. SEARS, ROEBUCK & CO., a Corporation, Appellee. No. 14144. United States Court of Appeals Ninth Circuit. Nov. 21, 1955. Rehearing Denied Dec. 27, 1955. Webster & Webster, Percy S. Webster, Stockton, Cal., Naylor & Neal, James M. Naylor, San Francisco, Cal., for appellant. John L. Wheeler, Los Angeles, Cal., Frank E. Liverance, Jr., Grand Rapids, Mich., for appellee. Before BONE and POPE, Circuit Judges, and MURRAY, District Judge. POPE, Circuit Judge. The appellant, here called Ry-Loek, as assignee of the inventor and patentee, brought this suit for infringement of letters patent No. 2,380,794, which was issued for a “tensioning and locking device for frameless window screens.” The defendant, Sears, Roebuck & Co., here called Sears, was charged with selling tensioning and locking devices for frame-less window screens which infringed Ry-Lock’s patent. The sales occurred at Sear’s store at Sacramento, California. Upon the trial below the court found that Ry-Lock’s patent was void for want of the required novelty, utility and advance in the art; that the patented device was anticipated by earlier patents, and entered judgment for the defendant Sears. The subject matter of the patent concerns a combination made up of a “sill-bracket” and a “tension arm”. The drawings and specifications show that the sill bracket is a metal part which is secured by screws to the sill of the window upon which a frameless window screen is to be installed. It is so designed as to provide an opening for the insertion of a bolt with wing-nut extending upward from the sill 'bracket. A special feature of the sill bracket is that at the end, toward the inside of the window, there is an upturned flange forming a fulcrum. The tension arm is rigidly fixed by rivets or other means to a metal bar . or flange across the bottom of the screen .and just above the portion of the flange which is,designed to make tight contact with the window sill. This tension arm extends in the direction of the inside of the window and is so located that it will fit over the upturned flange or fulcrum portion of the sill bracket previously described. It is provided with a longitudinal slot through its center so as to accommodate the bolt in the sill bracket. The outer ends of the tension arm (one on either side of the slot) are turned down so as to hook or project over the upturned flange' or fulcrum on the sill bracket. When the' tension arm is in this position on the sill bracket, the wing-nut on the bolt may be tightened and thus tension placed upon the top of the tension arm which in turn puts tension on the screen and brings the flange at the base of the screen structure into contact with the window sill at the base. Because the innermost portion of the tension arm is hooked over the fixed fulcrum, the turning of the wing nut-and tightening of the bolt gives the tension arm a rocking movement the effect of which is not merely to tighten the screen but to move the screen snugly against the blind stop along the vertical sides of the window. Thus the bottom of the screen moves flush against the sill and the sides of the frameless screen are brought to fit ■closely against the blind stop and eliminate any openings for the admission of insects. The rocking motion described is readily possible because the slot in the tension arm is a longitudinal one. About the time the patent was granted in' 1945, Ry-Lóck began manufacturing and selling its device, which met with great commercial success. ' In the years from 1946-50, Sears purchased and sold it. It advertised the device as being of a “revolutionary new style” and as having numerous points'of superiority over other devices - for ' installing window screens. The specifications for construction contracts proposed to be let-by the United States Government used a reference to these Ry-Lock devices as basis for the product called for in the specifications requiring that “Tension type screens shall be a standard product of an established manufacturer, similar or equal to the approved Ry-Lock tension screens as manufactured by the Ry-Lock Company, Ltd., San Leandro, California.” At the time the patent was issued and Ry-Lock’s manufacture of these screens began, there was .nothing on the market which in any manner resembled the Ry-Lock device. A Columbia frameless window screen was manufactured, but the mode of tension there provided for was through the use of a lever attached to the side of the flange to which the bottom of the screen was attached. The lever hooked over the heads of screws in the window sill and the screen was tensioned by a simple push of the lever. It bore no resemblance to Ry-Lock’s patented device. Considered by itself in the light of what had been previously manufactured and used or what had been commercially available, it would appear that the Ry-Lock device was both new and useful and measured up to the ordinary standards of invention. The trial court’s finding of invalidity appears to have been based upon its belief that the claimed invention had been substantially anticipated in prior art patents to which the court alluded in its findings. The primary question here is therefore with respect to Sears’ claim of anticipation. In this connection it should be noted that after Ry-Lock had put in its proof consisting of numerous exhibits disclosing its patent, operating models thereof and fabricated parts, together with oral evidence explaining the history of the invention, the manner and mode of using the device and its commercial success, and had introduced evidence of the claimed infringement, Sears in presenting- its defense limited its proof to the printed copies of the earlier United States letters patent and relied upon these prior patents to establish the claim of anticipation, without any attempt to support that claim by testimony of experts or other witnesses. No physical representations or samples of the devices described in these prior patents were produced and it does not appear that any of the claimed anticipating devices were ever manufactured or sold. We note therefore that the findings of the trial court with respect to anticipation were based solely upon these paper patents unsupported by any testimony of witnesses in open court. It follows that we are in as good a position as was the trial court to consider and evaluate the anticipatory effect of the, patents brought forward by Sears. The two patents in which the district court found anticipation were Norquist No. 1,705,132 and Boomershine No. 1,-895,309. The Norquist patent was for a window screen, part of which disclosed a means of tensioning or tightening the frameless screen. The drawings and specifications of Norquist show brackets affixed to the inner side of a cross bar at the lower end of the screen; extending vertically through these brackets is a pin, the lower end of which is flared and enlarged so that it may be slipped into a slot provided in the outer side of a three cornered latch screwed to the window sill. The upper end of the pin is threaded so that it may accommodate a collar which can be turned by hand on the threads. Between the collar and the top of the bracket a spring is slipped over the pin so that when the collar is turned upon the threads the spring is tightened and presses down upon the brackets thus giving tension to the screen. Except for the fact that turning the collar upon the threads will furnish tension and tighten the screen, this Nor-quist device appears to have little resemblance to Ry-Lock’s combination for Ry-Lock utilizes the principle of a lever operating upon a fulcrum, and the tightening of the bolt with a wing nut furnishes the rocking action which not only creates downward tension but makes the screen taut against the blindstop. Ry-Lock’s device thus utilizes ah anchor type fulcrum upon which operates a tension lever arm with the turned-over “detents” which hold the lever arm in proper relation to the fulcrum, and furnishes means for pressure which supplies both vertical tightness and longitudinal tautness. Boomershine, the other patent upon which the trial court’s finding of anticipation is based, appears to have even less resemblance to any principle applied by Ry-Lock. It is true that it deals with flexible material which might include a screen. It is entitled “Stretching and securing means for flexible material”. It shows a means of fastening a screen or other flexible material on a window frame. As that material is brought over the square edge of the frame it is made taut and stretched by the use of a lever-like device through which a-screw is inserted. The lever is shaped like a dogleg and its lower end is pressed against the outer portion of the extended screen; then as the screw is tightened it brings the other end of the lever down upon the screen furnishing additional tension drawing the screen tighter over the frame. It is true that Ry-Lock utilized the principle of a lever in the manner we have previously described. It is also true that the principle of the lever is probably as old as the oldest mechanical art, but it must be borne in mind that Ry-Lock’s patent was for a combination. There is no doubt but that the various parts utilized by Ry-Lock were, separately considered, old, but we think that the mere fact that Norquist utilized a collar operating on threads in a pin, and that Boomershine utilized the lever in an entirely different type of operation, is not sufficient to establish the defense of anticipation sought to be set up by Sears. Each of the elements making up Ry-Lock’s combination performs a substantial and necessary function in bringing about new results. ’ Winslow Engineering Co. v. Smith, 9 Cir., 223 F.2d 438 In our view there is invention here, for the whole of what Ry-Lock has produced exceeds the sum of its parts, and it measures up to the standards of invention which this court has approved in the Win-slow case, supra. Indeed, we are of the opinion that the finding of want of invention and of anticipation which the trial court made was inherently defective and insufficient. It is set forth at length in the margin. This invention, made up by combination of elements, in a manner which was sufficiently new and novel to measure up to the accepted standards of invention, was not, in the language of Himes v. Chadwick, 9 Cir., 199 F.2d 100, “a mere aggregation of a number of old parts”. Hence, a finding which, as here, picks out one element in one prior patent and another element in another prior patent as a demonstration of anticipation, is manifestly insufficient to overcome the presumption arising from the issuance of the patent, a presumption reemphasized by the existing Act. 35 U.S.C.A. § 282. We hold therefore that the findings of lack of invention and of anticipation are clearly erroneous. Sears wholly failed to present a case to justify the findings made. The record compels a finding that the patent was valid. The question of infringement remains. The evidence in our judgment so clearly demonstrates infringement that a finding of no infringement on this record would have been clearly erroneous. A consideration of the models and drawings of the accused device shows that all of the features above described which are basic to the combination of elements which the inventor of Ry-Lock’s patent has assembled are utilized in the accused device. In that device we find the anchor type fulcrum, substantially the same tension lever arm, the same means for pressure, and the same action designed to make the screen taut against the blind stop, all assembled in a combination which in substance is not to be distinguished from that which belongs to Ry-Lock. There are certain immaterial variances in these elements in the accused device, which as made up appears to be merely an inferior imitation of Ry-Lock’s patent. The sill bracket screwed to the window sill, like that of Ry-Lock, has an upturned flange forming a fulcrum. Instead of being a wide flange over which the tension arm detents are fastened, it has the equivalent in the form of a narrow upturned flange over which a circular opening in the lever tension arm fits. The variances in the assembly are spurious departures. The lever tension arm has a shorter longitudinal slot sufficient to permit the bolt to accommodate the rocking action called for by the Ry-Lock patent; the lever tension arm is not fastened rigidly to the lower crossbar of the screen but is merely hooked over that crossbar. Like the lever tension arm of Ry-Lock it is channel shaped and the ends of the side flanges forming the channel are notched at the end nearest the screen to permit them to be hooked over the crossbar. This lever tension arm in the accused device is more flimsy and would appear to be more difficult to assemble than that of Ry-Lock, but it produces “substantially the same result in substantially the same way” and infringement results. Royal Typewriter Co. v. Remington Rand, 2 Cir., 168 F.2d 691, 692. In view of the clear proof of infringement, we hold that the judgment must be reversed and the cause remanded to the district court with directions to enter judgment in favor of the plaintiff Ry-Lock and against the defendant Sears with an injunction against a further infringement by the defendant. The court is further directed to proceed to an accounting of plaintiff’s damages and to an assessment of costs against the defendant. . Rehearing has been granted in that case limited to points other than the one for which it is here cited. . “2. Patent No. 2,380,794 is a patent for a tensioning and locking device for frameless window screens and is in a crowded field of that art. Such patent combines elements old in the art of frameless screens, in substantially the same way as the patent to Norquist et al., No. 1,705,132, differing therefrom only in the substitution of a simple lever secured at one end to the lower edge strip of the screen cloth and fulcrumed ' at its end farthest away from its point of attachment, instead of being free at such end as in Norquist et al., but getting a tensioning of the screen in the same direction by a sill anchored bolt extending upwardly having a tensioning nut thereon above such arm or leyer like Norquist et al. Such fulcrumed lever, tensioned in the same manner and for the purpose of tensioning a screen, is not new, being shown in the earlier patent to Boomershine, No. 1,895,309. The Rust patent No. 2,380,794 does not represent discovery or invention within the meaning of the patent law, and any changes made over the Norquist patent represents only the mechanical skill of one conversant with and skilled in the art, having available in the art, teachings of the changes made. The structure described and claimed in patent No. 2,380,794, lacks such patentable novelty, utility and advance in the art of tensioning and locking devices for frameless window screens as is necessary to establish invention.” . “A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.”

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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 H. ORTH and Barbara A. Orth, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 86-1546. United States Court of Appeals, Seventh Circuit. Argued Sept. 23, 1986. Decided March 9, 1987. Michael A. Sandberg, Kamensky & Rubinstein, Lincolnwood, 111., for petitioners-appellants. Elaine F. Ferris, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee. Before BAUER, Chief Judge, WOOD, Circuit Judge, and ESCHBACH, Senior Circuit Judge. HARLINGTON WOOD, Jr., Circuit Judge. This is an appeal from the tax court’s decision affirming the Commissioner’s deficiency determination against the taxpayers, David H. Orth and Barbara A. Orth. The taxpayers donated 73 lithographs to various charitable organizations, and claimed a charitable contribution deduction in the amount of $300 per lithograph, the price for which similar lithographs allegedly were sold in galleries or from art dealers. The Commissioner valued the lithographs using the price which the Orths and others paid when buying the lithographs in bulk from wholesalers. The taxpayers argued that the Commissioner undervalued their deduction. The tax court found that the Commissioner’s valuation was correct, and the taxpayers appeal. I. FACTUAL BACKGROUND The tax court made the following findings of fact. (For additional findings of fact, see Lio v. Commissioner, 85 T.C. 56 (1985).) This court must accept the tax court’s findings unless they are clearly erroneous. Illinois Power Co. v. Commissioner, 792 F.2d 683, 685 (7th Cir.1986). Taxpayer David H. Orth, a physician, is married to taxpayer Barbara A. Orth. In September of 1978, the taxpayers paid $10,-000 to purchase 100 unframed lithographs created by artist Leonardo Nierman. A lithograph is a piece of paper on which an image is artistically reproduced. The image is produced by pressing the paper onto a hard object known as a plate, which has part of its surface covered with ink. A plate is used to create multiple impressions of the same image, and the plate is then destroyed or cancelled. Editions generally are limited in number. Lithographs usually are sold to the public by art galleries and art dealers. While more lithographs are sold framéd it is not uncommon for the public to purchase unframed lithographs from galleries and dealers. A “suite” is a term used in the retail art trade for a set of works, usually by the same artist and often on the same theme or subject matter, compiled and offered together as a set. A single suite of “Intuition de L’Univers” consists of ten lithographs, and a double suite of “Intuition de L’Univers” consists of twenty lithographs. Leonardo Nierman created 271 “Intuition de L’Univers” suites: 101 double suites and 170 single suites, for a total of 3,720 lithographs. The taxpayers purchased the lithographs from Greenwich Art Consultants, Inc. (Greenwich), a joint venture between Art Consultants, Ltd. (Art Consultants) and Preferred Partnerships, Inc., formed for the limited purpose of selling lithographs from Nierman’s “Sound of Color” and “Intuition de L’Univers” editions. Art Consultants was a subchapter S corporation whose business consisted of selling graphics. Almost all of these graphics were sold unframed to individuals. Art Consultants did not have a public area for display of art. It used an office which was rented by the law firm of Kamensky and Rubinstein, the firm which represented the taxpayers in this appeal, to store art and maintain its books and records. Greenwich used the facilities and personnel of Art Consultants. As part of a package of art and services, Art Consultants provided the following tax-related services to Dr. Orth: letters from the organizations to which he contributed lithographs acknowledging their receipt; appraisals of the 73 lithographs, one by R. Bruce Duncan, president of the Chicago Appraisers Association, who appraised them at $24,000, the other by Ross Edman, a Chicago appraiser, who appraised the lithographs at $25,464; and photographs of the lithographs. Lublin Graphics, Inc. (Lublin), was the sole United States distributor of Nierman lithographs. During 1978 and 1979, Lublin sold a total of 2,319 Nierman lithographs; Greenwich purchased approximately 63% (1,473) of these lithographs for $50 each. All of the Nierman lithographs that Greenwich purchased were from either the “Sound of Color” or the “Intuition de L’Univers.” Greenwich sold almost all of these Nierman lithographs in 1978 and January, 1979, for $100 each in large quantities to individuals. In 1979, galleries sold an unspecified number of single lithographs from the “Sound of Color” and the “Intuition de L’Univers” editions for approximately $300, unframed. Lithographs from the “Sound of Color” edition are still available for sale in some galleries. Taxpayers insured the lithographs on March 30, 1979, for $300 per lithograph. In December of 1979, the taxpayers, having owned the Nierman lithographs longer than the period required by Treasury regulations in order to deduct the full market value of a charitable contribution, donated 73 lithographs to several charitable organizations, including Mundelein High School (7 lithographs), Waukegan Public Schools (5 lithographs), Thornton Fractional High School (20 lithographs), Chicago Public Library (5 lithographs), Chicago Board of Education (6 lithographs), The Woodlawn Organization (10 lithographs), and Deerfield Public Schools (20 lithographs). The taxpayers framed and displayed nine of the Nierman lithographs in Dr. Orth’s office, and placed the remaining eighteen lithographs in storage. On their federal income tax return for calendar year 1979, Dr. and Mrs. Orth claimed a charitable contribution deduction of $27,682 (approximately $379 each) for the donation of the 73 Nierman lithographs to qualified charitable organizations. It is unclear how the taxpayers derived the $27,-682 figure; they argued before the tax court and on appeal, however, that the lithographs had a total fair market value of $21,900 ($300 each) as of the date of donation. In the deficiency notice, the Commissioner disallowed the claimed deduction to the extent it exceeded $7,300, the cost of the lithographs to the taxpayers. The tax court found that the taxpayers had failed to meet their burden of proving that the value of the 73 Nierman lithographs which they donated was greater than their cost and affirmed the Commissioner. Taxpayers appeal that decision. II. DISCUSSION The taxpayers raise two challenges on appeal. They assert (1) that the tax court’s finding on the lithographs’ value and the market it used in determining that value was contrary to the parties' stipulations, and (2) that the tax court improperly used the date of taxpayers’ acquisition of the lithographs rather than the date of donation to determine the lithographs’ value. A. Stipulations The parties stipulated that several statements were true. Among these stipulations were the following: 19. In 1979 galleries sold single lithographs from the “Sound of Color” and the “Intuition de L’Univers” editions for approximately $300, unframed. Without describing the sales by Greenwich Art Consultants as retail, wholesale or anything else, the parties describe these as retail sales. Lithographs from the “Sound of Color” edition are still available for sale in some galleries. 21. Lithographs are usually sold to the public by art galleries and art dealers. Galleries and dealers sell lithographs both framed and unframed. While more lithographs are sold framed, it is not uncommon for the public to purchase unframed lithographs from galleries and dealers. The foregoing general statements are true with respect to Nierman lithographs, including the editions at issue in this case. 23. Greenwich Art Consultants sold almost all of the “Sound of Color” and the “Intuition de L’Univers” lithographs that it purchased from Lublin Graphics. The sales were all for $100 per lithograph. The sales took place in 1978 and January of 1979____ In light of stipulations 19 and 21, the taxpayers argue that the fair market value established by the Commissioner and affirmed by the tax court, $100 per lithograph, is “utterly unsupportable.” They argue that the appropriate market in which to determine the lithographs’ value was the retail market of galleries and art dealers, The Internal Revenue Code allows a taxpayer to deduct certain charitable contributions made within the taxable year. I.R.C. § 170(a)(1) (1982). The applicable treasury regulation provides that for a charitable contribution of property other than money “the amount of the contribution is the fair market value of the property at the time of the contribution.” Treas. Reg. § 1.170A-l(c)(l) (as amended in 1984). Fair market value is defined as the “price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of relevant facts.” Treas.Reg. § 1.170A-l(c)(2) (as amended in 1984); United States v. Cartwright, 411 U.S. 546, 551, 93 S.Ct. 1713, 1716-17, 36 L.Ed.2d 528 (1973); Anselmo v. Commissioner, 757 F.2d 1208, 1212 (11th Cir.1985). The Commissioner’s determination of fair market value is presumed to be correct. Helvering v. Taylor, 293 U.S. 507, 514-15, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935); Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Anselmo, 757 F.2d at 1211. Tax court rules shift to the taxpayer the burden of proving that the valuation should have been higher than that stated in the deficiency notice. Tax Ct.R. 142(a). Neither § 170 of the Internal Revenue Code nor the treasury regulations thereunder specifies what market a taxpayer should use in calculating fair market value. The tax court in its opinion referred to the definition of market provided by estate and gift tax regulations. The Court of Appeals for the Eleventh Circuit has noted that [r]ules governing valuations for charitable contributions of property are distinguishable from valuations in the estate and gift context because the taxpayer has the opposite incentives in the two situations: the taxpayer wants to reduce the value of property for estate and gift tax purposes but, as here, the taxpayer wishes to inflate the value of property for charitable donation purposes. Anselmo, 757 F.2d at 1214. The Eleventh Circuit in Anselmo went on to address these regulations as an accommodation to the taxpayers, however, because “[i]n the usual case ... there should be no distinction between the measure of fair market value for estate and gift tax and charitable contribution purposes.” Id. The tax court similarly accommodated taxpayers in this case. The Orths, focusing on the language in the treasury regulation requiring that the market be one in which the item “is most commonly sold,” argue that the lithographs must be valued with reference to the retail market, that is, sales made by art dealers and galleries. They point to the stipulations that “[l]ithographs[, including Nierman lithographs,] are usually sold to the public by art galleries and art dealers,” Stip. 21, and that “[i]n 1979 galleries sold single [Nierman] lithographs ... for approximately $300, unframed.” Stip. 19. The combined effect of the stipulations, taxpayers assert, is to require the Commissioner, the tax court, and now this court to value the lithographs at $300 each as a matter of law. The stipulations do not prove quite so much. Although it may be true that galleries and art dealers made more sales to individuals than Greenwich did, Greenwich sold more lithographs than the galleries and dealers. Lublin, the sole United States distributor of Nierman lithographs, sold 63% of its Nierman inventory to Greenwich, which in turn sold all of these lithographs in large quantities to individuals for $100 each. This indicates that the lithographs were in fact most commonly sold in the market through which the taxpayers acquired them, and the lithographs were most commonly sold at the price which taxpayers paid for them: $100 each. Although Greenwich may have had fewer sales than galleries and dealers, it sold more lithographs in the United States. The tax court’s finding that the market in which lithographs were most commonly sold was the one in which the taxpayers bought their lithographs was not contrary to the stipulations. B. Time of Valuation The fair market value of property as of a given date is a question of fact for the tax court to resolve considering all relevant evidence in the record. Skripak v. Commissioner, 84 T.C. 285, 320 (1985); Kaplan v. Commissioner, 43 T.C. 663, 665 (1965). The tax court’s finding on fair market value “must stand unless it is clearly erroneous.” Tripp v. Commissioner, 337 F.2d 432, 434 (7th Cir.1964). The tax court had before it only the parties’ stipulations and two appraisals. The court is not required to accept an appraiser’s opinion if it is contrary to the court’s own judgment on value. Chiu v. Commissioner, 84 T.C. 722, 734 (1985). The court found insufficient evidence of the lithographs’ value as of the date of donation; the court, therefore, calculated the value of the taxpayers’ deduction based on the price the taxpayers paid for the lithographs. Taxpayers argue that the cost of the lithographs does not accurately represent their fair market value fifteen months later, when the taxpayers donated them. The only evidence of the lithographs’ value at the time of donation was the parties’ stipulation that some consumers) paid $300 to buy lithographs from some gallery(ies). The taxpayers provided no evidence of the number of such sales, what types of customers were involved, or any other specific information. As the court noted, “[i]t is common knowledge that a consumer can pay a wide range of retail prices for the same item depending on where he chooses to shop and how much investigating he does of the various sources of a particular item.” 85 T.C. at 69 (1985). The tax court, finding the stipulation to be too vague to be reliable as to the lithographs’ value, instead relied on the record evidence that 63% of the Nierman lithographs sold in the United States in 1978 and 1979 were sold for $100. The tax court in Chiu similarly relied on prices actually paid for the property rather than expert testimony which the court found to be unpersuasive. 84 T.C. at 734. And in Skripak, the court rejected expert opinion on value because the expert relied on an improper market in determining the value of the property at issue and failed to take into account the bulk of the sales. 84 T.C. at 322. Viewing the evidence in the record in the light most favorable to the market value finding, Tripp v. Commissioner, 337 F.2d at 435, we hold that the tax court was correct in its decision to rely on the price taxpayers paid for the lithographs rather than the vague stipulation that some people paid three times that amount. Nothing in the record indicates that the taxpayers received any kind of discount that was not generally available to other buyers. There was only a brief interval (15 months) between the time the taxpayers bought the lithographs and the time they donated them, and there is no evidence in the record of any significant appreciation in the lithographs’ value during this interval. The tax court could reasonably have found that the lithographs’ purchase price accurately reflected their value at the time the taxpayers donated them. This was an interesting tax-saving arrangement devised as an art transaction, but the art will have to be treasured for art’s sake and not as a tax deduction. Taxpayers’ complaint was against the Commissioner, whereas perhaps it should have been against those who sold them the art if they are now dissatisfied with it as art or as a tax deduction. Because the tax court’s decision on the amount that taxpayers were entitled to deduct for their charitable contribution is not clearly erroneous, we affirm. Affirmed. . The Orths purchased the following lithographs: (a) One single suite entitled “Intuition de L’Univers" Suite # 123. (b) Three double suites entitled "Intuition de L’Univers" Suites # XV/LXXV, XVTII/LXXV and XLV/LXXV. (c) One suite entitled “Sound of Color” Suite # XVI/LXXX. (d) Four Mahler lithographs # 151, 152, 153, and 154/250. (e) One Brahms lithograph # 176/250. (f) Four Debussy lithographs # 149, 150, 151, and 152/250. (g) Four Bach lithographs # 150, 151, 152, and 153/250. (h) Four Mozart lithographs # 156, 157, 158, and 159/250. (i) Two Ravel lithographs # 138 and 139/250. (j) Four Stravinsky lithographs # 197, 198, 199, and 200/250. . Taxpayers do not argue in their brief that these appraisals were determinative of value; even if they did so argue, the tax court was not bound to accept these appraisals when other evidence of value was available. See, e.g., Tripp v. Commissioner, 337 F.2d 432, 434 (7th Cir.1964). . See Treas.Reg. § 1.170A-4(b)(2) (as amended in 1982). During the years involved, the capital gains holding period was one year. I.R.C. § 1222(3) (1982). . The parties stipulated during the tax court proceedings that the seven organizations to which taxpayers donated the lithographs were qualified charitable organizations for purposes of I.R.C. § 170(a)(1). . This rule derives from the principle that deductions are a matter of legislative grace to which a taxpayer must clearly demonstrate his entitlement. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934); Anselmo, 757 F.2d at 1211 n. 2; National Can Corp. v. United States, 687 F.2d-1107, 1112 (7th Cir.1982). . The estate tax regulations provide as follows: (b) Valuation of property in general ... Nor is the fair market value of an item of property to be determined by the sale price of the item in a market other than that in which such item is most commonly sold to the public, taking into account the location of the item wherever appropriate. Thus, in the case of an item of property includible in the decedent’s gross estate, which is generally obtained by the public in the retail market, the fair market value of such an item of property is the price at which the item or a comparable item would be sold at retail____ Treas.Reg. § 20.2031-l(b) (as amended in 1965). The gift tax regulations are virtually identical in wording. See Treas.Reg. § 25.-2512-1 (as amended in 1965).

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

COUNCIL OF the SOUTHERN MOUNTAINS, INC., et al, Petitioners, v. Raymond J. DONOVAN, Secretary of Labor, Eckehard Muessig, Deputy Assistant Secretary of Labor, and Mine Safety and Health Administration, Respondents, American Mining Congress, Intervenor. No. 80-2536. United States Court of Appeals, District of Columbia Circuit. Argued March 25, 1981. Decided April 16, 1981. J. Davitt McAteer, Washington, D. C., of the bar of the Supreme Court of Illinois, Pro Hac Vice by special leave of Court, and Thomas B. Gumbel, Collinsville, 111., of the bar of the Supreme Court of W. Va., Pro Hac Vice by special leave of Court, with whom L. Thomas Galloway, Washington, D. C., was on the brief, for petitioners, Council of the Southern Mountains, Inc., et al. Betty Jean Hall, Jacksboro, Tenn., entered an appearance for petitioner Coal Employment Project. Michael A. McCord, Counsel, Dept, of Labor, Washington, D. C., with whom Cynthia L. Attwood, Acting Associate Sol., and Nancy S. Hyde, Atty., Dept, of Labor, Washington, D. C., were on the brief, for respondents. Anthony J. Thompson, Washington, D. C., with whom Edward A. McCabe, Robert W. Frantz, Henry Chajet and Michael F. Duffy, Washington, D. C., were on the brief, for intervenor. Before ROBB, WALD and GINSBURG, Circuit Judges. Opinion PER CURIAM. PER CURIAM: In November 1978, the Mine Safety and Health Administration (MSHA) of the Department of Labor issued final regulations requiring coal operators to equip all underground miners with self-contained self-rescuers (SCSRs) that will provide oxygen in the event of a mine explosion or fire. The regulations gave coal operators two years, until December 21, 1980, to order and supply the devices. Today we do not review either the propriety of the 1978 regulations or the wisdom of the initial phase-in period. Instead we judge a more narrow question: whether on December 5, 1980, the Secretary of Labor acted reasonably when he deferred implementation of the regulations until June 21, 1981, and whether he had good cause to take that action without providing prior notice or an opportunity to comment. While we find the notice-and-comment question very close, we conclude that, in the special circumstances presented, the Secretary had good cause to dispense with usual rulemaking procedures and that his action was otherwise reasonable. I. BACKGROUND Each year, underground fires and explosions claim the lives of some coal miners. Miners who are not killed by the initial explosion or spreading flames may die from inhalation of noxious gases or simple lack of oxygen. In 1969 the National Academy of Engineering concluded that asphyxiation from smoke, carbon monoxide, or carbon dioxide caused twenty-two percent of the 566 mine deaths that occurred between 1950 and 1969. Responding to this type of information Congress in 1969 required coal mine operators to give all underground miners self-rescue devices that would protect them from poisonous gases for at least one hour. Regulations promulgated shortly thereafter directed mine operators to supply filter-type self-rescuers to all underground miners. Filter-type self-rescuers, however, are inadequate to the life-saving task for several reasons. They protect miners only against carbon monoxide, not against smoke, carbon dioxide, or other toxic gases. Even protection from carbon monoxide ceases if carbon monoxide levels exceed one percent of the atmosphere. At higher concentrations of carbon monoxide, the filter-type self-rescuer produces air that is too hot to inhale. Miners react by spitting out the filter-type device and thereupon die from carbon monoxide poisoning. In addition to these problems, filter-type self-rescuers do not supply an independent source of oxygen. Therefore, even if the devices successfully protect miners from carbon monoxide, a low oxygen level may cause miners to lose consciousness and eventually perish in the contaminated mine atmosphere. Aware of the filter-type device’s limitations, the Bureau of Mines began an extensive testing program to identify a better self-rescuer. In 1977 these efforts culminated in proposed regulations requiring coal operators to equip underground miners with SCSRs rather than filter-type self-rescuers. SCSRs contain an independent oxygen supply that lasts for an hour or more. Thus, they protect miners from all poisonous gases and give miners sufficient oxygen to attempt escape from a mine struck by a disaster. While SCSRs are much more effective than filter-type self-rescuers, the proposed rules did not contemplate an immediate switch from one device to the other. Instead, the proposed rules indicated that coal operators would have two years from the date of any final regulations to equip their miners with SCSRs. On November 21, 1978, the Department of Labor issued final regulations requiring the use of SCSRs in coal mines. As promised in the 1977 proposed rules, coal operators were given two years, until December 21,1980, to select, order, and supply SCSRs. 1978 Regulations, supra note 1, at 54246. During this phase-in period, MSHA pledged to field test the SCSRs. Id. at 54244. While MSHA was confident that SCSRs were “reliable and safe to use and. store in underground mines,” id. at 54243, the agency wanted to conduct field testing to determine how the use of SCSRs would “affect miners” in actual mining situations. Id. at 54244. After promulgation of the final rules, MSHA promptly developed a program for field testing SCSRs. On February 28, 1979, Joseph 0. Cook, MSHA Administrator for Coal Mine Safety and Health, sent Robert B. Lagather, Assistant Secretary of Labor for Mine Safety and Health, an action plan for evaluating SCSRs. The plan envisioned completion of testing well before the December 1980 deadline for implementing the regulations. Two circumstances, however, delayed the field testing program. First, the National Institute for Occupational Safety and Health (NIOSH), which had to approve SCSR models before they could be used in the tests, did not approve production model SCSRs until the summer of 1980. Second, the Joint Industry Health and Safety Committee, representing both a major coal operators’ association and the United Mine Workers of America (UMWA), would not recommend that their members participate in field testing until MSHA answered safety concerns about SCSRs that had surfaced early in 1980. The Bituminous Coal Operators’ Association (BCOA), the major industry association represented on the Joint Committee, did not finally approve field testing in its mines until November 19, 1980. MSHA worked ddl&ently to overcome tkese roadblocks. When NIOSH approval for production model SCSRs was not forthcoming, the agency used hand-manufactured models that had been approved in 1979 for a first round of field tests. To calm lingering fears about the safety of SCSRs, MSHA asked the Bureau of Mines to conduct an extensive study of the devices. This study was completed during the summer of 1980 and presented to the Joint Industry Health and Safety Committee the following fall. And when BCOA continued to withhold approval for field testing throughout the fall of 1980, MSHA initiated tests in mines owned by members of the National Independent Coal Operators Association (NICOA). Despite delays in the field testing program, MSHA appeared determined throughout the fall of 1980 to complete field testing by December and implement the regulations on schedule. On Novem- ber 5, 1980, Assistant Secretary Lagather wrote to the Joint Industry Committee, noting that the Committee had already received the Bureau of Mines study, and expressed his confidence that field tests could “be started at... affiliated mines [of Committee members] in the very near future.” On November 12, 1980, Robert G. Peluso, MSHA Chief of Special Projects, wrote to representatives of the two manufacturers that had received approval for their SCSRs and asked how many SCSRs they would have on hand by December 21, how many devices they could manufacture during each month after that date, and how they planned to transport finished SCSRs to customers. Finally, on November 28, 1980, Assistant Secretary Lagather reported to BCOA that seven mines had been selected for field testing, that testing would begin December 5, 1980, and that testing at three mines would be completed by December 15. While testing at the other four mines would not be completed until January of 1981, Lagather hoped that information from the first three tests would “provide some guidance in implementating the regulations.” Although Lagather’s November 28 letter implied that he planned to implement the regulations on schedule, MSHA announced a different position shortly thereafter. On December 5, 1980, MSHA published the order that gave rise to this petition for review. In a few brief paragraphs, MSHA stated that since it had not completed field testing SCSRs, and since only a small number of the devices were available, it had decided to defer implementation of the regulations until June 21, 1981. This order was preceded by neither notice nor a comment period; MSHA declared that “[i]n view of the imminence of the deadline and the circumstances stated above” it was “impracticable and contrary to the public interest to provide advance notice and opportunity for public comment on this amendment.” December 5 Order, supra note 3, at 80502. The Council of the Southern Mountains (CSM), a representative of miners in Martin County, Kentucky, together with District 12 of UMWA and the Coal Employment Project, petitioned this court for review of the December 5 order. We permitted the American Mining Congress (AMC), an industry association, to intervene. Because the order deferring implementation of the regulations is now in effect, we have treated this case on an expedited basis. We turn now to the two issues that CSM most urgently presses on appeal. II. NOTICE AND COMMENT Petitioners’ most substantial claim is that the Secretary improperly issued the December 5 order without prior notice or an opportunity to comment. The Administrative Procedure Act (APA) requires agencies to give “[gjeneral notice of proposed rule making” and to provide “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(b), (c) (1976). This notice-and-comment requirement permits interested parties to criticize projected agency action before that action is embedded in a final rule and allows the agency to benefit from the parties’ suggestions. See National Tour Brokers Association v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978). At oral argument the Government did not dispute that the December 5 order was the type of agency action ordinarily subject to the notice-and-comment procedure. The Government contends, however, that 5 U.S.C. § 553(b)(B) excuses its failure to follow the notice-and-comment route. That subsection creates a narrow exception, applicable only when an “agency for good cause finds... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” We recently admonished agencies that circumstances justifying reliance on this exception are “indeed rare” and will be accepted only after the court has “examine[d] closely proffered rationales justifying the elimination of public procedures.” American Federation of Government Employees v. Block, 655 F.2d 1153, 1157 n.6 (D.C. Cir. 1981). We proceed, therefore, to “examine closely” both the circumstances surrounding the December 5 order and the Secretary’s stated rationale for failing to follow notice- and-comment procedures before issuing that order. The Secretary’s justification for dispensing with notice and an opportunity to comment was “the imminence of the deadline” for implementing the SCSR regulations. This rationale is one that permits avoidance of APA procedures only in exceptional circumstances. Otherwise, an agency unwilling to provide notice or an opportunity to comment could simply wait until the eve of a statutory, judicial, or administrative deadline, then raise up the “good cause” banner and promulgate rules without following APA procedures. Because of this possibility for abuse, “the mere existence of deadlines for agency action... [can] not in itself constitute good cause for a § 553(b)(B) exception.” United States Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207, 213 (5th Cir. 1979), quoted in American Federation of Government Employees, supra, 655 F.2d at 1158. In this case, however, we do not believe MSHA tarried through the fall of 1980, knowing that the SCSR regulations could not be implemented on time, and then postponed the implementation date at the eleventh hour. Instead, we believe that MSHA, recognizing the life-saving importance of the SCSR rules, was determined to implement the rules on time; that the agency believed through the end of November 1980 that on-schedule implementation was possible; and that only at the beginning of December, when it truly was too late to follow notice-and-comment procedures, did the agency concede that effective implementation of the regulations would be advanced by a relatively short-term postponement. Our conclusion is based on five factors that, in combination, render this a special, possibly unique, case. First, the circumstances that ultimately forced MSHA to postpone implementation of the regulations were beyond the agency’s control. Field tests were not completed on schedule because of delays in obtaining approval for production model SCSRs and because both mine operators and miners refused to participate in the tests until MSHA answered last-minute safety concerns about SCSRs. Sufficient supplies of SCSRs were unavailable in December 1980 because of delays in obtaining approval for production models and because of industry’s failure to order the devices. MSHA’s actions caused neither of these problems. Second, MSHA acted diligently both to initiate field testing and to overcome the hurdles created by other parties. The agency developed an action plan for field tests early in 1979. It did not dawdle at the outset and then attempt a rush in the final months. When roadblocks threatened to hold up the field testing program, MSHA reacted resourcefully. It completed some field tests with hand-manufactured SCSRs, requested a comprehensive Bureau of Mines study on the safety of SCSRs, and performed some field tests in mines that were not owned by members of the resistant BCOA. Third, the record strongly indicates that, even in November 1980, MSHA intended to implement the regulations on schedule. During the first half of that month a MSHA official wrote to the two manufacturers of approved SCSRs and asked how they intended to transport SCSRs to customers, how many of the devices they would have on hand by December 21, and how many units could be produced each month after that date. Moreover, once it finally received industry’s tardy approval for field testing on November 19, MSHA made immediate plans to complete as many of the tests as possible by December 15. And Assistant Secretary Lagather, writing to BCOA about these planned tests, indicated that the regulations indeed would be implemented on December 21. There is nothing in the record that shows MSHA wavering over the implementation date until the December 5 order itself issued. Fourth, when the Secretary did postpone the implementation date, he deferred implementation for a relatively short time. If a rule ranks as a substantive regulation, the limited nature of the rule cannot in itself justify a failure to follow notice and comment procedures. We have recognized, however, that “[t]he more expansive the regulatory reach of [agency] rules,... the greater the necessity for public comment.” American Federation of Government Employees, supra, 655 F.2d at 1156. Conversely, the limited scope of the December 5 order influences our finding that the Secretary possessed good cause to dispense with prior notice and comment. Finally, Government counsel assured this court at oral argument that field testing has been completed, that an evaluation of the tests should be available shortly, and that implementation of the regulations on June 21 of this year is fully anticipated. While these assurances were made after the December 5 order, they contribute substantially to our impression that MSHA has followed a persistent course toward implementation of the regulations without unnecessary delay. Absent these assurances, we might have entertained some doubt about MSHA’s good faith intention, throughout the fall of 1980, to implement the regulations on schedule. And were we not convinced of that determination, we could not excuse MSHA’s eleventh hour decision to defer implementation without affording interested parties prior notice or an opportunity to comment. These five factors, taken together, persuade us that the Secretary had good cause to dispense with notice and comment before issuing his December 5 order. We emphasize again, however, that this is an extremely close case. Nothing in this decision diminishes the force of our repeated admonition that “it should be clear beyond contradiction or cavil that Congress expected, and the courts have held, that the various exceptions to the notice-and-comment provisions of section 553 will be narrowly construed and only reluctantly countenanced.” New Jersey v. United States Environmental Protection Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980). We recognize an exception to that rule in this case, but we do so guardedly, based on the totality of the special circumstances presented. III. ARBITRARY AND CAPRICIOUS Petitioners also contest the reasonableness of the Secretary’s decision to postpone implementation of the regulations. In contrast to the borderline question the notice-and-comment issue presents, we have scant difficulty concluding that the Secretary’s action was reasonable. During the phase-in period numerous parties, including both coal operators and miners, questioned the safety of SCSRs. Against this background the Secretary reasonably determined that field testing should be finished before the regulations were implemented. Completion of the field tests would help the Secretary satisfy any genuine safety concerns raised by parties governed by the regulations; in addition, the test results would enhance his effort to assure the cooperation of all affected parties when SCSRs were finally introduced into the mines. The unavailability of SCSRs, moreover, is a factor relevant to our consideration of the Secretary’s decision to delay implementation. While the Government clarified at oral argument that unavailability of the devices was not an “independent justification” for the deferral, the fact that very few miners would have received SCSRs by December 21 fortified the Secretary’s decision to delay implementation of the regulations. As the Government now points out, the unavailability of SCSRs rendered less severe the practical consequences of the Secretary’s decision to defer implementation until field testing was complete. Finally, we note a point stressed by Government counsel in briefing and arguing this case. As the December deadline approached, MSHA found that guidelines on the storage of SCSRs and the training of miners had not been completed. While the Secretary did not rely on this problem in his published notice of deferral, the lack of finished guidelines on these important matters was a factor that could reasonably have influenced the Secretary’s decision to defer implementation. We regret that the long effort to equip miners with safe, oxygen-generating rescue devices has been prolonged an additional six months. We do not believe, however, that MSHA has been insensitive to the health and safety of underground miners. Satisfactory deployment of SCSRs will demand the cooperation of both coal operators and miners. To assure that cooperation, and to reassure the concerned parties that SCSRs would not introduce additional dangers into the hazardous mine environment, MSHA reasonably decided to postpone implementation of the SCSR regulations from December 21, 1980, to June 21, 1981. CONCLUSION Since we find the Secretary’s December 5 order neither procedurally infirm nor arbitrary and capricious, that order is Affirmed. . Use of Filter-Type and Self-Contained Self-Rescuers in Underground Coal Mines, 43 Fed. Reg. 54241 (Nov. 21, 1978) [hereinafter cited as 1978 Regulations]. The regulations are codified at 30 C.F.R. §§ 75.1714 to.1714-3 (1980). . No party ever petitioned for review of the 1978 SCSR regulations. . The order deferring implementation was published at 45 Fed.Reg. 80501 (Dec. 5, 1980) [hereinafter cited as December 5 Order]. . According to petitioners, 89 miners died in coal disasters between 1970 and 1978. Brief of Petitioners at 6 n.*. Before 1970, the number killed each year was higher. In 1968, a year that saw an unusually high number of mine deaths, 309 miners lost their lives. During that year each miner had a one in five hundred chance of perishing in the mines. S.Rep.No. 411, 91st Cong., 1st Sess. 8 (1969). . Committee on Mine Rescue and Survival Techniques, National Academy of Engineering, Mine Rescue and Survival at 5-6 (Mar. 1970) (final report). These figures do not include 78 miners who died in a 1968 mine explosion in Farmington, West Virginia. The cause of death for 76 of those miners is not known, id. at 6. More recent surveys indicate that, between 1970 and 1978, 12 miners died from asphyxiation. See Brief of Petitioners at 6 n.*. . Federal Coal Mine Health & Safety Act of 1969, Pub.L.No.91-173, tit. Ill, sec. 317(n), 83 Stat. 742, 787 (codified at 30 U.S.C. § 877(n) (1976)). . 35 Fed.Reg. 17890, 17928 (Nov. 20, 1970); Brief for the Secretary of Labor at 3. . When carbon monoxide constitutes 2% of the mine atmosphere, air inhaled through a filter-type self-rescuer reaches a temperature of 200 degrees Fahrenheit. See 1978 Regulations, supra note 1, at 54241. . For a general discussion of the problems associated with filter-type self-rescuers, see 1978 Regulations, supra note 1, at 54241-42. . 42 Fed.Reg. 59300 (Nov. 16, 1977). The Department of Interior published the proposed rules. As of March 9, 1978, Congress transferred responsibility for administering the coal mine safety and health laws to the Department of Labor. The final rules, as well as the December 5 order discussed in this opinion, were published by the Department of Labor. See 1978 Regulations, supra note 1, at 54241. . 42 Fed.Reg. 59300, 59302 (Nov. 16, 1977). . See Action Plan for an Evaluation Program for the Self-Contained Self-Rescuers at 2-3 (Record item B(43)), Joint Appendix (J.A.) at 313-14; id. attachment (“Milestones”) at 1-2, J.A. at 316-17; Brief for the Secretary of Labor at 5-6. . See Letter from Anthony Robbins (NIOSH Director) to Robert B. Lagather (June 26, 1980), J.A. at 41; Letter from Robert B. Lagather to Congressman John P. Murtha at 1-2 (July 7, 1980), J.A. at 55-56; Letter from Frank R. Lee (Supervisory Electrical Engineer, MSHA Approval and Certification Center) and Samuel L. Terry (Supervisory Chemist, Respirator Section, Testing and Certification Branch, NIOSH Division of Safety Research) to Dr. Pasternack (Draegerwerk AG Lubeck) (June 9, 1980) (Record item E(49)); Letter from Ralph J. Touch, Jr. (Acting Chief, Testing and Certification Branch, NIOSH Division of Safety Research) to T.D. McConnell (Mine Safety Appliances Co.) (July 24, 1980) (Record item E(51)); Letter from Anthony Robbins to Davitt McAteer (Counsel for Petitioners) at 1 (Dec. 23, 1980), reprinted in Memorandum in Reply to Respondents’ Response to Petitioners’ Motion for Stay, as Attachment D. At oral argument, counsel for CSM claimed that “commercially produced” SCSRs were approved as early as 1977, and that subsequent extensions of approval were sought only for minor design changes. The record items cited above, however, indicate that ready-to-manufacture SCSRs were not finally approved until June and July of 1980. Moreover, one of the “minor insignificant changes” referred to by CSM’s counsel was a change in the size of the SCSR’s straps. As subsequent tests proved, the straps are an important part of the device and may cause numerous difficulties if not properly designed. See Memorandum from Jerry W. Stengel (Supervisory Physical Scientist, Bureau of Mines) to Robert L. Marovelli (Director, Division of Minerals Health and Safety Technology, Department of Interior) at 5 (Nov. 3, 1980) (reporting that at October 1980 smoke test at Bruceton mine, participants stepped on “excessive straps” and found straps difficult to loosen), J.A. at 219. Alteration of the SCSR’s straps, therefore, may appreciably improve the utility of the device. . Letter from Robert L. Vines (for the Bituminous Coal Operators’ Association) and Martin Connors (for the UMWA) to Robert B. Lagather at 1 (Feb. 15, 1980), J.A. at 25. The American Mining Congress (AMC), another industry association and an intervenor in this proceeding, also suggested to MSHA that field tests should not begin until the agency had sponsored an “independent evaluation” of SCSRs. Letter from J. Allen Overton, Jr. (AMC President) to Robert B. Lagather at 1 (Feb. 22, 1980), J.A. at 27. The safety concerns of both the Joint Industry Committee and the American Mining Congress evidently stemmed from an in-house status report on SCSRs prepared by the Research and Development Department of Conoco Inc. The report concluded that “potential hazards of KO2 [the chemical agent used in some SCSRs] in a mine environment have been identified and need to be carefully tested and evaluated.” Mining Research Division, Research and Development Department, Conoco Inc., Technical Memorandum No. 34-1334-6, at 1 (Oct. 22, 1979), J.A. at 15. Joseph O. Cook, MSHA Administrator for Coal Mine Safety and Health, transmitted a copy of the Conoco report to E. Muessig, Deputy Assistant Secretary of Labor for Mine Safety and Health, on February 5, 1980. J.A. at 13. . Letter from Joseph P. Brennan (BCOA President) to Robert B. Lagather (Nov. 19, 1980), J.A. at 301. The record does not show when UMWA approved participation of its members in field testing. On June 18, 1980, a UMWA representative signed a Joint Industry Committee letter to leaders of BCOA and UMWA. This letter recommended that more safety tests should be performed on SCSRs and, more startling, that filter-type self-rescuers should be used until the government could develop SCSRs small enough to wear on miners’ belts. Letter from Martin Connors (for the UMWA members) and Robert L. Vines (for the BCOA members) to Sam Church, Jr. (UMWA President) and Joseph P. Brennan (BCOA President) at 1-2 (June 18, 1980), J.A. at 36-37. These recommendations were sent to Lagather and other government officials on July 11, 1980. Letter from Sam Church (UMWA President) and Joseph P. Brennan (BCOA President) to Lindsay Norman (Bureau of Mines Acting Director), Robert B. Lagather, and Anthony Robbins (NIOSH Director) (July 11, 1980), J.A. at 58. By November 21, 1980, however, UMWA was protesting strenuously against any delay in implementing the SCSR regulations. Letter from Everett Acord (UMWA Safety Director) to Robert B. Lagather (Nov. 21, 1980), J.A. at 303-05. . See Memorandum from Robert G. Peluso (MSHA Chief of Special Projects) to Edward Clair (Counsel for Coal Mine Safety and Health Standards and Regulations, Office of the Solicitor, Department of Labor) at 2-3 (June 22, 1979), J.A. at 7-8; Brief for the Secretary of Labor at 6 n.5. According to petitioners, MSHA finished this first phase of field testing, which called for MSHA inspectors to wear SCSRs during routine mine inspections, late in 1979. Inspectors wore SCSRs for a total of 683 hours and answered questionnaires about the devices. Brief of Petitioners at 36 n*. . See Letter from Robert B. Lagather to Robert L. Vines (BCOA Vice President for Health and Safety) and Everett S. Acord (UMWA Safety Director) at 1 (Nov. 5, 1980), J.A. at 220; R.W. Watson, W.J. Doyak, & A.L. Furno, Evaluation of the Safety of One-Hour Chemical Seif Rescuers (PRC Report No. 4294 July 1980), excerpted in J.A. at 42-54. Interim findings by the Bureau of Mines were presented to interested parties on several occasions prior to preparation of the final report and those parties suggested additional tests that could be performed. See Letter from Robert B. Lagather to Congressman John P. Murtha at 2 (July 7, 1980), J.A. at 56; Letter from Robert B. Lagather to Martin Connors (UMWA) and Robert L. Vines (BCOA) (May 21, 1980), J.A. at 35. The Bureau of Mines tests showed that SCSRs might start one fire in about eight years. Since statistics suggested that mines would experience about 129 fires from other sources during that same period, as well as 500 frictional ignitions of methane at the face, the Bureau of Mines concluded that SCSRs would have “an insignificant impact on the frequency of ignitions and fires already occurring” in mines. R.W. Watson, W.J. Doyak, & A.L. Furno, supra, at 67, J.A. at 53. . Brief for the Secretary of Labor at 10. These tests, conducted in six mines, were completed by early October 1980. See Letter from Wayne E. Veneman (Chief, MSHA Office of Information) to J. Davitt McAteer (Counsel for Petitioners) at 1 (Dec. 16, 1980), reprinted in Memorandum in Reply to Respondents’ Response to Petitioners’ Motion for Stay, as Attachment G. . All parties appear to share the understanding that implementation does not mean every miner will be supplied with an SCSR on the critical date. Rather, once the regulations are implemented, mine operators will be impelled to supply whatever devices are available and order additional devices on pain of exposure to statutory penalty. 30 U.S.C. § 820 (Supp. Ill 1979). . Letter from Robert B. Lagather to Robert L. Vines (BCOA Vice President for Health and Safety) and Everett S. Acord (UMWA Safety Director) at 1 (Nov. 5, 1980), J.A. at 220. . Letters from Robert G. Peluso to Thomas McConnell (Mine Safety Appliances Co.) (Nov. 12, 1980), J.A. at 293, 294; Letters from Robert G. Peluso to Wesley Kenneweg (National Mine Service Co. (United States representative for the German Draeger company)) (Nov. 12, 1980), J.A. at 295, 296. One company, the National Mine Service Co., promptly informed Peluso that it would be able to transport finished SCSRs in compliance with Department of Transportation regulations and that 9000 units would be available for immediate delivery by December 31, 1980. Thereafter, the company expected to produce 1350 to 1650 units per month, for a total of 16,000 to 20,000 units during 1981. Starting in 1982, the company expected production to rise to 3000 to 5000 units per month. Letter from Wesley J. Kenneweg (National Mine Service Co.) to R. G. Peluso (Nov. 14, 1980), J.A. at 297; Letter from Wesley J. Kenneweg to Robert G. Peluso (Nov. 17, 1980), J.A. at 298-99. Responses from the other company, the Mine Safety Appliances Co., are not in the record. According to the Government, Mine Safety Appliances had no units available for delivery in December 1980. Brief for the Secretary of Labor at 13 n.9. . Letter from Robert B. Lagather to Joseph P. Brennan (BCOA President) at 1 (Nov. 28, 1980), J.A. at 306. . December 5 Order, supra note 3. . Only 9000 SCSRs were available for delivery in December 1980. See note 21 supra. Since there are approximately 133,000 underground coal miners in the United States, Brief for the Secretary of Labor at 13 n.9, the number of SCSRs available in December 1980 was woefully inadequate. In their written and oral presentations to this court, petitioners emphasized that manufacturers will remain without incentives to produce SCSRs in quantity until orders are placed for the devices. Reluctance to place early orders for SCSRs is understandable. At oral argument, counsel for CSM estimated that SCSRs now cost approximately $550 apiece. If coal operators purchase one SCSR for each of the nation’s 133,000 coal miners, the cost will exceed 73 million dollars. . On January 27, 1981, a motions panel of this court stayed the December 5 order. A few weeks later, however, the court vacated the January 27 stay and left the December 5 order in effect pending expedited review. . In addition to the issues discussed below, CSM claims that the Secretary impermissibly engaged in ex parte contacts with industry representatives during the fall of 1980. We decline either to vacate the December 5 order because of these contacts or to require MSHA to disclose the substance of the communications in the record presented to this court for review. At the time these contacts occurred, M

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

R. HOE & CO., Inc., et al. v. GOSS PRINTING PRESS CO. Circuit Court of Appeals, Second Circuit. March 22, 1929. No. 46. For the opinion of the Circuit Court of Appeals, see 30 F.(2d) 271. John D. Morgan, of New York City, for the motion. James J. Kennedy, of New York City, opposed. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. PEE CUEIAM. We held in Page Machine Co. v. Dow, Jones & Co., 168 F. 703, that we would not require a patentee, whose claims we had held valid, to disclaim a claim found invalid by the Circuit Court. At that time the plaintiff had no appeal from an interlocutory decree of invalidity, and the effect of requiring a disclaimer was to make the decision of the Circuit Court final without review by us. If the patentee had had the appeal which he now has, the result need not have been the same, as Judge Westenhaver pointed out in Ensten v. Rich-Sampliner Co. (D. C.) 13 F.(2d) 132. It is the practice of the Sixth and Seventh Circuits to require disclaimer of those claims held invalid in the Circuit Court of Appeals as a condition of proceeding upon the valid claims. Herman v. Youngstown (C. C. A.) 191 F. 579, 587; Liquid Carbonic Co. v. Gilchrist Co. (C. C. A.) 253 F. 54; Higgin Mfg. Co. v. Watson (C. C. A.) 263 F. 378, 387; Excelsior, etc., Co. v. Williamson Heater Co. (C. C. A.) 269 F. 614, 619. We can see no distinction, whether a decree holding some of the claims invalid is affirmed, or this court in part reverses a decree holding them all valid. In each case the time is extended till the decision on appeal. If this court’s decision were final, such a rule would be a corollary of O’Reilly v. Morse, 15 How. 62, 14 L. Ed. 601, Seymour v. McCormick, 19 How. 96, 15 L. Ed. 557, and Gage v. Herring, 107 U. S. 640, 2 S. Ct. 819, 27 L. Ed. 601. However, it is not final, if the Supreme Court chooses to grant certiorari. In that event, a disclaimer would destroy the patentee’s right to a review of our holding as to invalidity. The patentee should not be put to such a hazard, but should be as free to withhold his disclaimer, until his appeal to the Supreme Court is decided, as he is upon appeal to this court from the decree of the District Court. The plaintiff at bar goes further, however, arguing that, even after denial of an application for Certiorari, the patentee should not be obliged to disclaim. It argues that the Circuit Court of Appeals of another circuit might disagree with our ruling, and the Supreme Court would then take the ease on certiorari and might declare the claims valid. A disclaimer would merely destroy this right, though the defendant is protected forever by its decree, and really has no interest in the disclaimer at all. While we acknowledge the difficulty and the possibility, it appears to us that so to extend the patentee’s time might result in avoiding the statute altogether. The patentee may not sue-again, or, if he does, the result may be the-same. It does not follow, because two Circuit Courts of Appeals have held the same-way, that a third will not disagree. Must the patentee disclaim at the conclusion of the-second suit, or may he wait until all nine circuits have passed upon his claims? The-question is at best of seasonable action, and-in practice there must be some end, short of exhausting all conceivable remedies. When the patent has once passed through all the courts then available, the statute should have its effect; else the putatively invalid claims-may remain as scarecrows, preserved against the bare possibility that at some future time-they may come to life. The mandate will therefore be recalled- and amended, so as to require the plaintiff to-file a disclaimer within 30 days after the-time expires within which to petition for certiorari, or, if it does so petition, then within-30 days after denial, if it is denied, or affirmance of the decree, if it is granted, and the decree is affirmed.

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

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

JUSTHEIM PETROLEUM COMPANY, a corporation, Appellant, v. Laurence HAMMOND and C. D. Flournoy and Milford Giffin, a partnership doing business as Flournoy and Giffin, Appel-lees. Clarence I. JUSTHEIM, Appellant, v. Laurence HAMMOND and C. D. Flournoy and Milford Giffin, a partnership doing business as Flournoy and Giffin, Appel-lees. Nos. 5013, 5014. United States Court of Appeals Tenth Circuit. Nov. 3, 1955. Rehearing Denied Nov. 29, 1955. Brigham E. Roberts, Salt Lake City, Utah (Calvin W. Rawlings, Harold E. Wallace, Wayne L. Black and J. Reed Tuft, Salt Lake City, Utah, on the brief), for appellants. George M. McMillan, Salt Lake City, Utah, for appellees. Before BRATTON, MURRAH and PICKETT, Circuit Judges. PICKETT, Circuit Judge. This action has its source in a contract executed by the plaintiff Laurence Hammond and the defendants Justheim Petroleum Company and Clarence I. Just-heim. The first cause of action is for damages caused by an alleged breach of contract by the company and Justheim. The second cause of action is for deceit on the part of the defendants Justheim Petroleum Company, Clarence I. Just-heim, F. F. Hintze, Hugh J. Hintze and J. Darrell Nicodemus. The case was tried to a jury which found for the plaintiffs against only the company on both causes of action. The court upon motion entered a judgment notwithstanding the verdict against the defendant Clarence I. Justheim on the first cause of action. On May 25,1953, Hammond acquired a block of oil and gas leases in Dawes County, Nebraska, under an agreement requiring him to drill a test well. On July 4, 1953, the well was drilled to a depth of 2,632 feet, but Hammond was required to shut down drilling because of lack of finances. At this time, it was believed that granite would be reached at about 2,900 feet. In attempting to raise additional funds, Hammond negotiated with a man named Connor of Denver, Colorado, who came to the well site with F. F. Hintze, a geologist. Hintze made a rather detailed examination of the drilling reports and available geologic information including the surface geology. He talked to the drillers and two geologists, one of whom had written a report on the structure and the other of whom was in charge at the well. After this examination Connor and Hintze returned to, Denver. On August 3, 1953, Hintze notified Hammond that Connor was unable to raise the necessary funds within the time required, and advised him that he believed that he had a source of money in Salt Lake City, Utah. Hintze was granted a five-day option upon terms which required a payment of $5,000 in cash and a contribution of $25,000 for past expenses in exchange for a fifty per cent interest in the well and leases. If the deal was consummated, Hintze understood that Connor was to receive one-half of the $5,000 for his part in the transaction. Hintze immediately returned to Salt Lake City, and detailed information concerning the acreage and geological reports was sent to him there. During the next few days there was constant communication between Hammond and Hintze. Hintze advised Hammond that it appeared certain that the deal would go through and suggested that they make preparation to continue the drilling. On August 8, Hintze wired Hammond that the company wanted a Schlumberger electric log of the well. Upon receipt of this telegram, Hammond called Hintze, who identified his principals as Justheim or Justheim Petroleum Company. They were not in agreement as to the Schlum-berger test and on August 9th, Hintze called Hammond and requested him to fly to Salt Lake City to complete the deal. Upon arrival in Salt Lake City, Hammond met with Hintze, H. G. Hintze, Justheim, and Nicodemus. Justheim was president of Justheim Petroleum Company, and Nicodemus was- secretary. F. F. Hintze was the managing geologist of the company and the holder of a substantial block of stock which had been given him for this service. Hintze advised Hammond that he had neglected to tell Justheim that the option required a $25,000 payment for. past expenses and that if this sum were mentioned, the deal would probably fall through.. At the beginning of the conference, Justheim appeared to know all about the transaction -■and asked no detailed questions. The negotiations started with the elimination of the $25,000 payment for a fifty per cent interest. The contract agreed upon, in addition to $5,000 in cash,, provided that $12,500 should be paid for a seventy per cent interest, including a ten per cent interest which Hintze wat to receive from Justheim and Justheim Petroleum Company. It was disclosed at that meeting that Connor was to receive one-half of the $5,000 as a commission. Justheim was told that during the drilling operations, showings of oil had been encountered at the Lower Sundance, the Converse, and the Upper Minnelusa Sands. Hammond advised Justheim that he believed that there were three possible productive sands below the drilling, including the Leo Sand which had been quite productive in the Lance Creek Field in Eastern Wyoming. Hammond demanded a written contract and Justheim stated that he could not remain at the meeting, but that Nicodemus had full power and authority to act for him, and he assured Hammond that what Nicodemus did would be satisfactory. Justheim left and Hintze proceeded to type the contract in which Hammond was designated party of the first part, and Clarence I. Justheim and Justheim Petroleum Company were referred to as joint parties of the second part. The contract required the payment of $5,000 upon its execution and the deposit of $12,500 in the First National Bank of Chadron, Nebraska in escrow with instructions to pay that sum to Hammond upon certification that the well had been deepened as required and an assignment of the oil and gas leases deposited. Hammond was obligated to deepen the well forthwith and continue with diligence , until completed. He was also required to use his best efforts to obtain certain additional leases. The parties of the second part were to pay seventy per cent of the cost of a Sehlumberger electric log and all other tests ordered by Justheim. The contract gave “full and complete power of supervision of the deepening operation” to Hintze, “the geologist of the second party”. Justheim paid the $5,000 with his personal check. He testified that the company refunded the amount to him at a later date. Hammond returned immediately to Chadron, Nebraska, which was near the well, and shortly thereafter deposited the assignment of the leases with the bank as required by the contract. He also obtained the additional leases required by the contract. In the meantime, the drillers continued drilling and encountered granite. Upon Hammond’s arrival, he found that the drillers had encountered granite and called Hintze to get on the job immediately, which he did on August 11th. Hintze took charge of the activities at the well upon arrival. He ordered tests run to determine if there was commercial production in any of the different sands which had been encountered. After receiving a negative report of the test of the granite wash, he ordered the other possible zones of production to be tested and returned to Salt Lake' City and discussed the matter with Justheim. Hammond was instructed by Justheim and Hintze to report to them by telephone the results of each test. When Hintze left, he took with him a sample from the drilling, which appeared to be saturated with oil. Hintze told Just-heim that he believed they had an oil well. Justheim told others that he had acquired what appeared to be an oil well. In the meantime, Hammond left for Amarillo, Texas to acquire additional leases in the area. After Hintze had all the information regarding the well, and after he had reported to Justheim, Hammond was notified that the $12,500 had been forwarded to the bank. A check drawn on the Justheim Petroleum Company was forwarded to the Chadron bank with instructions to deposit it to the credit of Clarence I. Justheim and J. Darrell Nicodemus. The bank was advised by letter that Justheim and Nicodemus would arrive shortly and would furnish instructions for the handling of the money. Within a few days, it was determined that there would be no production from the well. Justheim then notified Hammond by telegram that he was cancelling the contract, and he demanded the return of the $5,000. The reason given for the cancellation was that Hammond had represented “that the Leo Sand was ahead of the bit” when in fact the well log showed that the sand had been passed through when the contract was made. In demanding the return of the $5,000 he referred to it as “my money”. The defendants first contend that even though Hintze was acting as agent for the company and Justheim, they were entitled to a directed verdict upon the first cause of action because Hammond admitted that he paid Hintze $2,200 of the $5,000 for his services in obtaining the contract. This contention is predicated upon the .rule that knowledge and acts of an agent acting adversely to his principal and in collusion with another to cheat and defraud the principal, will not be imputed to the principal for the benefit of one who participates. Powerine Co. v. Russell’s, Inc., 103 Utah 441, 135 P.2d 906; Herdan v. Hanson, 182 Cal. 538, 189 P. 440. However, any money received by Hintze was not from Hammond, but according to Hintze’s own testimony, it was from Connor. The money was delivered to Hintze for Con-nor, and Hintze accounted to Connor for it. This accounting included a division of a portion of the $2,200, the settlement of a debt due Hintze from Connor, and the payment of some expenses. It was known to the parties during the discussions preceding the contract that Connor would receive a portion of the $5,000, and that Hintze would receive a ten per cent interest which the contract provided was to be taken from the seventy per cent interest of Justheim and the company. In addition, this question was presented for the first time on appeal. The rules provide that affirmative defenses must be pleaded and proved, and that a party waives all defenses and obligations which he does not present either by motion or in his answer or reply. Fed.Rules Civ.Proc. rules 8(c) and 12 (h), 28 U.S.C.A.; Liberty Petroleum Co. v. California Co., 10 Cir., 114 F.2d 980. It is settled that issues which are not raised and presented to the trial court will not be considered on appeal. Walters v. City of St. Louis, Mo., 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660; Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037; Brown v. American Nat. Bank, 10 Cir., 197 F.2d 911; Denver & R. G. W. R. Co. v. Himonas, 10 Cir., 190 F.2d 1012; State ex rel. Williams v. Neu-stadt, 10 Cir., 149 F.2d 143; National Fire Insurance Co. of Hartford, Conn. v. School Dist. No. 68, 10 Cir., 115 F.2d 232. The court instructed the jury that “There are five elements in the concept of fraud and in order to find that there was fraud which induced the defendants to enter into this contract, you must find the existence of all five of those elements. There must be a misrepresentation ; second, of a material fact; third, made with the intent to deceive; fourth, upon which the defendants relied; fifth, to their detriment. * * * There is no fraud, ladies and gentlemen, unless you also find the intent to deceive upon the part of Laurence Hammond. Unless you find that Hammond intended to deceive Justheim Petroleum Company and Clarence I. Justheim, an individual, you cannot find for the Justheims in this defense.” The instruction is a correct statement of the law of fraud. Adamson v. Brockbank, 112 Utah 52, 185 P.2d 264; Oberg v. Sanders, 111 Utah 507, 184 P.2d 229; Nielson v. Leamington Mines & Exploration Corporation, 87 Utah 69, 48 P.2d 439; Campbell v. Zion’s Co-Op. Home Building & Real Estate Co., 46 Utah 1, 148 P. 401; Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed. 678. The defendants argue that this instruction is prejudicial to them because under the evidence the contract may have been entered into as a result of an innocent misrepresentation which would afford ground for cancellation of the contract in the absence of deceit. The evidence relied upon is that which pertains to the location of the Leo Sand. The defendants contend that the contract was executed because of Hammond’s representations that the Leo Sand was still below the drilling bit and that this would be grounds for rescinding the contract even if the representation was innocent. Hammond testified that he advised the defendants that he believed that the Leo Sand lay below the bit and might prove productive. The well log did not show that this sand had been passed through. Dr. Glen M. Ruby, an eminent geologist, testified that according to the well logs and reports the Pahasapa Limestone was reached at about 2,400 feet and' that the Leo Sand, if it were to be found in that area, would be above the Paha-sapa Limestone. The testimony of Dr. Ruby also indicates that the Leo Sand is. not constant in the locality but may pinch out and that there were three sands shown to be between the top of the Minnelusa and the Pahasapa Limestone-As nearly as he could say, they were the Converse, the Leo, and the Bell Sand. The evidence indicates that the location or existence of the Leo Sand is rather nebulous. Hammond believed that it had not been reached and so stated. A representation which is a mere expression of an opinion is not actionable. Stuck v. Delta Land & Water Co., 63 Utah 495, 227 P. 791. The question of whether he made these statements as an absolute fact or as an expression of opinion was-properly submitted to the jury. It is impossible for any one, including experts, to speak with certainty as to what may be found during the drilling of a wildcat oil well. Justheim and his ger ologist were at least as competent to judge what lay ahead in the well, as was Hammond. Southern Development Co. v. Silva, supra; Gordon v. Butler, 105 U.S. 553, 26 L.Ed. 1166. The circumstances of this case are not such that the rule permitting the rescission of a contract because of a mutual mistake or an innocent misrepresentation, may be invoked. The Leo Sand is peculiar to the Lance Creek Field in Eastern Wyoming and no one, including geologists, know that it will be found or be productive elsewhere. The existence and the productiveness of the Leo Sand was a chance which Justheim and the company took when they executed the contract, and the circumstances were such that a question of fact was presented as to whether the defendants were justified in relying on Hammond’s representations as to the location or existence of the sand. Adamson v. Brockbank, supra. The value of that risk, together with the possibility of production in other sands, was agreed upon after considerable negotiations and after all the information which Hammond had was made available to the defendants. The defendants offered instructions upon this subject, but exceptions to the failure to give them were not made after the court had instructed the jury, and the refusal to give the instructions cannot be urged on appeal. Jones v. Koma, Inc., 10 Cir., 218 F.2d 530. Furthermore, we think it is quite clear that there was sufficient evidence for the jury to conclude that the defendants did not rely upon Hammond’s representations when the contract was executed, and this issue was submitted to the jury. Hammond was a novice in the oil business and a total stranger to the defendants. Justheim was an experienced mining engineer and metallurgist. His experience in the oil business is not shown, except that he was president of the defendant company and had drilled a number of oil wells. He appeared to be quite familiar with the business of oil well drilling. Hintze was known to be an experienced geologist of many years in the business and was the company’s managing geologist. Justheim testified in a deposition that he “was going on the recommendation of Dr. Hintze” and there were ample circumstances to indicate this was true. Hintze had told him the night before the conference at which the contract was executed that the well had good possibilities. If the defendants did not rely on the representations of Hammond, they were not prejudiced by the failure to instruct on the issue of innocent misrepresentations. 37 C.J.S., Fraud, § 29; 23 Am.Jur., Fraud and Deceit, Sec. 141; Oberg v. Sanders, supra; Johnson v. Allen, 108 Utah 148, 158 P. 2d 134, 159 A.L.R. 256; Stuck v. Delta Land & Water Co., supra; Hecht v. Metzler, 14 Utah 408, 48 P. 37. It also appears that when Hintze, acting under the terms of the contract, went to the well location after it had been drilled to granite, he thereafter knew all the facts about the condition of the well. He knew the well was bottomed; he knew that if the Leo Sand was present, it had been passed; he knew when the last drilling started; he had a complete well log and an electric log; and he had all the other available data about the well. In fact, he had all the information about which the defendants complain they had no knowledge. Shortly thereafter, Justheim learned from Hintze and Hammond that granite had been reached, and that if the Leo Sand was in that area, it had been passed through. Yet he did not attempt to rescind the contract at that time. Instead, he relied upon Hintze’s statement that he believed that producing sands had been encountered during the drilling and that he had ordered drillstem tests to be made at those zones. Justheim then forwarded the money to the Chadron bank and notified Hammond in Amarillo, Texas, who was there obtaining additional leases, that the money had been forwarded to the bank. The defendants attempted to retain their rights under the contract until after they knew that there would be no commercial production. If oil had been found in any of the sands, Justheim and his company would have owned seventy per cent of the well and leases. Where parties have the right to rescind, they cannot delay the exercise of that right to determine whether avoidance or affirmance will be more profitable to them. This is particularly true where the transaction is one of a speculative nature. Restatement of Contracts, Vol. 2, Secs. 483, 484; 12 C.J.S., Cancellation of Instruments, § 44; Frailey v. Mc-Garry, 116 Utah 504, 211 P.2d 840; Taylor v. Moore, 87 Utah 493, 51 P.2d 222; Le Vine v. Whitehouse, 37 Utah 260, 109 P. 2; Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328. The court instructed' the jury that one of the issues was whether the information given to Hintze on his first trip to the well was attributable to the defendant Justheim or the company. The jury was told that in considering whether Hintze was the agent of the defendants on that date, it should take into consideration the nature of thé relationship between Hintze and the defendants; the amount and degree of control, if any, which the defendants had and did in fact exercise over Hintze; the past relationship of the parties; and the fact that he was held out to the public as their managing geologist. - The defendants objected to this instruction upon the ground that the evidence showed that on that date Hintze was the agent, of Connor and not the agent of the defendants. A careful examination of the evidence discloses that the facts and circumstances are sufficient to sustain the inference that Hintze was acting for the company as its managing geologist throughout all of the negotiations. It is true that Con-nor was trying to find some one who would give financial help to Hammond and that he expected to be paid for it. He knew that Hintze was associated with Salt Lake “City interests which might be interested. If Hintze acted in good faith, and there is no evidence here that he did not, he might well have acted in a dual capacity. There were no adverse interests between the defendants and Con-nor, and it was known to Justheim that Connor was to be paid and that Hintze was- to have an interest in the well and lease. 3 C.J.S., Agency, § 271; Latses v. Nick Floor, Inc., 99 Utah 214, 104 P.2d 619; Newsom v. Watson, 198 Okl. 220, 177 P.2d 109; Maryland Casualty Co. of Baltimore, Md. v. Queenan, 10 Cir., 89 F.2d 155. In addition, the instruction is not prejudicial to the defendants because under the terms of the contract, Hintze became their agent and thereafter obtained all the available information about the well and reported to Justheim. As hereinbefore stated, the defendants later knew all the facts and still did not elect to rescind the contract until it became definitely known that the well was a failure. In the first cause of action, Hammond claimed damages of $12,500 and seventy per cent of the additional expenditures for testing the well after the contract was signed, which amounted to $3,136.50, together with the value of adjacent oil and gas leases in the sum of $14,800. The jury was instructed that the measure of damages in this kind of an action was the amount which the defendants hád agreéd to pay and any other damages which were the natural and probable result of a breach of contract. It is urged that this instruction was erroneous because the proper measure of damages- should have been the difference between the contract price and the market value of the leases at the time of the breach. Although this may be the rule in an action at law to recover damages for the breach of a contract, it has no application here. The theory of plaintiffs’ case was that Hammond had fully performed the contract by completing the well, acquiring additional leases, and depositing an assignment of the leases in escrow as required by the contract and therefore was entitled to the contract price. No issue as to the value in the leases after the failure to deposit the $12,500 was in the case. From the record it appears that both parties assumed that the leases had no value after the defendants’ breach and abandonment of the well. The case was tried on this theory, and apparently the jury adopted that view. Assuming that Hammond could not retain valuable leases and at the same time recover the full contract price, there is no evidence upon which a jury could compute the difference. We therefore conclude that even though the instruction given by the court was not a correct statement of the general law oil the subject, it was not prejudicial in this case. The second cause of action is in deceit based on the theory that the defendants entered into a contract with the plaintiffs representing at the time that they intended to perform the contract, when as a matter of fact, they did not intend to perform, and intended to deceive the plaintiffs. To sustain an action of this nature, it must be shown that there was an intention on the part of the defendants at the time of the execution of the contract that they did not intend to perform it. Such fraudulent intent is not usually susceptible of direct proof and may be established by circumstances. It may not, however, be inferred alone from the fact of nonperformance of the contract. A lawful inference of such deceitful intent may be drawn only from established facts. 3 Restatement, Torts, Section 530; 24 Am.Jur., Fraud and Deceit, Section 263; Annotation 125 A.L. R. 1306; Oberg v. Sanders, supra; Adamson v. Brockbank, supra; Nielson v. Leamington Mines & Exploration Corporation, 87 Utah 69, 48 P.2d 439; Hull v. Flinders, 83 Utah 158, 27 P.2d 56. We think there is a total lack of evidence of bad faith or lack of intent to perform, on the part of the defendants at the time of the execution of the contract. While there was some conduct on the part of Justheim and Hintze which would indicate that they knew more about the facts under consideration than they .professed to know, it is quite obvious that this was for the purpose of negotiating over the purchase price. There is no evidence that the defendants did not intend to fully perform the conditions of the contract at the time of its execution. It was not until it became known that the well had been drilled to granite that the defendants looked for a way to retain their interest in the well and leases, and at the same time protect themselves against the loss of the $12,500 if there was a total failure. Upon the execution of the contract, the $5,000 was paid to Hammond, and Hintze proceeded to the well immediately and took charge of the drilling operations. He ordered a test of the granite wash and of the other zones which might be productive. The defendants did everything required of them until it became known that the well might not be productive. This is not a circumstance from which an inference may be drawn that the defendants did not intend to perform at the time they executed the contract. We therefore conclude that the court should have directed a verdict for the defendants on the second cause of action. Finally, it is contended that the court erred in entering judgment against Justheim notwithstanding the verdict in his favor. When the contract was drafted Justheim was made a party. Nicodemus signed for Justheim as attorney in fact. Justheim testified that Nicodemus only had authority to sign for the corporation. Nicodemus stated that in signing the contract, he intended only to bind the corporation. The evidence was sufficient to sustain a finding that Nicodemus was without authority to sign for Justheim personally. Justheim could therefore refuse to be bound upon discovery that an unauthorized agent had made him a party to the contract. This right, however, is one which may be waived. 2 Am.Jur., Agency, Section 209. The evidence is without conflict that after Justheim had read the contract and knew that he was a party to it, he did not disaffirm it but elected to be bound. He forwarded money to the Chadron bank and notified Hammond that the money was forwarded as “per contract”. In his personal telegrams of August 17 and 18th, Justheim mentioned only the misrepresentations as to the location of the Leo Sand as a ground for rescission. He did not at any time claim that he was not personally obligated under the contract because of an unauthorized signature. The August 17th telegram clearly discloses that he considered it a personal obligation. It is well established that where a person without authority assumes to act as the agent of another who later affirms or adopts what has been done, the latter is bound to the same extent as though authority had been given in the first instance. Restatement of Agency, Sections 82, 100; Jones v. Mutual Creamery Co., 81 Utah 223, 17 P.2d 256, 85 A.L.R. 908; United States Bond & Finance Corp. v. National Building & Loan Ass'n of America, 80 Utah 62, 12 P.2d 758, 17 P.2d 238; Burnham v. Layton, 10 Cir., 209 F.2d 237. Judgment on the second cause of action is reversed with instructions to enter judgment for the defendants. Judgment on the first cause of action is affirmed. . H. G. Hintze was the son of P. J6\ Hintze and was attorney for tlie company. Justheim, Nicodemus and H. G. Hintze were directors of the company. . Hammond testified as follows: “I asked him how could we sign the contract if he as principal was not there and he said to me, putting his hand on Mr. Nicodemus ‘J. Darrell Nicodemus has my power of attorney. Anything he signs is as if I signed it personally’ and I said ‘Is that an actual fact and I have your assurance of that?’ and he said “You do, and if you wish to - have written proof, I will see it is provided’ and I said T don’t think that is necessary, though I would like to see it’ and Mr. Justheim left at that time.” . The plaintiffs Flournoy and Giffin were the drilling contractors and have an interest in the contract through an assignment from Hammond. . In answer to an interrogatory relating to the representation as to the location of the Leo Sand, the defendants stated that “ * * * it may be that the Leo Sands were not present at the well site.” . “You are instructed, ladies and gentlemen of the jury, that expressions of opinion as distinguished from statements of fact cannot form the basis for avoiding a contract upon the ground of fraud. The second essential element; namely,a misrepresentation of a material fact, would not be present in such a case. In the present case it is for you to decide whether the statements in question were expressions of opinion only or were statements of fact. The question you should ask yourselves is: Were the statements claimed to have been made by Hammond merely expressions of the judgment, opinion or belief of the plaintiff- Hammond or did he state the matter as a positive fact based upon knowledge.” . The evidence shows that after an examination, Hintze stated that “rarely in his life [had he] seen so much structure in one area”. . In Johnson v. Allen, the Supreme Court of Utah said [108 Utah 148, 158 P.2d 137]: “It is fundamental that before any one can have relief from a claimed fraud he must show not only that he relied on the misrepresentation but also that he had the right to rely on it.” . This notification was by telegram which read: “Lawrence Hammond “Care Atkins and Atkins Attorneys at Law “Amarillo Tex “$12,500 forwarded by wire to Chad-ron Bank as per contract “Clarence Justheim Justheim Petroleum Co.” . Generally speaking, the measure of damages for breach of an executory contract to purchase real property or an interest therein, is the difference between the contract price and the market value of the land at the time of the breach. 55 Am.Jur., Vendor and Purchaser, Sec. 524; Perkins v. Spencer, Utah, 243 P.2d 446; Malmberg v. Baugh, 62 Utah 331, 218 P. 975; Dopp v. Richards, 43 Utah 332, 135 P. 98. . For the purpose of sustaining his claim to damages for the loss in value of certain leases, Hammond offered proof that prior to the breach the leases had a value of $4 or $5 an acre. This was not proof that the leases had such value áfter the breach and abandonment of the well. . “Exhibit 24 — Telegram dated August 17, 1953, Clarence I. Justheim to Laurence Hammond “ ‘You represented to me in Dr. Hintze’s office that the Leo Sand was ahead of the bit. On this statement by you I gave you five thousand dollars. Two days later when Dr. Hintze went to Chadron. your geologist produced the strip log of the well which showed you had passed thru the Leo Sand before you came to see us. Accordingly you received money from me by misrepresentation and therefore demand the return of my money.’ ”

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

NICHOLS et al. v. SANBORN CO. No. 3696. Circuit Court of Appeals, First Circuit. Jan. 9, 1942. Daniel G. Cullen, of Detroit, Mich. (Butzel, Levin & Winston, of Detroit, Mich., and Friedman, Atherton, King & Turner, of Boston, Mass., on the brief), for appellants. Robert Cushman and William Gates, Jr., both of Boston, Mass. (Roberts, Cushman & Woodberry, of Boston, Mass., on the brief), for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. This is a suit for infringement of two patents. Plaintiffs allege that all the claims of Nichols patent No. 1,647,710 are infringed by defendant’s device, called the Sanborn Cardiette, for taking human electrocardiograms. They allege, further, that all the claims of Nichols patent No. 1,-888,139 are infringed by an interference eliminator used in and forming part of another machine called a portocardiograph, also manufactured by defendant. The district court gave a judgment dismissing the bill of complaint, upon findings that patent No. 1,647,710, though infringed by the Cardiette, was invalid in its entirety for lack of invention, and upon the further finding that patent No. 1,888,139 was not infringed by the interference eliminator in defendant’s portocardiograph, no ruling being made on the validity of this patent. We are content to affirm on the full and convincing opinion rendered by the court below, Nichols v. Sanborn Co., D.C., 35 F.Supp. 707, 712. As to patent No. 1,888,139, appellants devote only one page of their brief to argument against the finding of noninfringement, and in oral argument they ignored this patent altogether. The district court was certainly warranted in finding, on the evidence, that defendant’s interference eliminator operates by quite a different method from that narrowly described in the patent in suit. Nothing need be added to the discussion of the court below on this point. As to patent No. 1,647,710, it is clear that Nichols has added nothing to the art of medical diagnosis of heart activity by means of cardiograms. Indeed, as found by the trial judge an amplifier constructed with the values of capacity and resistance enumerated in the patent specifications would not be satisfactory for clinical use by a practising physician in taking a cardiogram; the cardiograms so taken were in some instances definitely misleading, “producing from a normal individual a record indicative of a serious heart ailment.” It is true, as further found by the court below, “that by selecting proper values of condensers and resistors, different from such as the patent suggests, and using the amplifier circuit shown in the patent, a satisfactory cardiograph could be made.” But even after Nichols made the necessary departure from the teaching of the patent in this respect, the Nichols machine still did not produce a better cardiogram, for purposes of clinical diagnosis, than had long been possible with the use of the standard Einthoven string galvanometer. Furthermore, to supply these deficiencies in the patent specifications required the skill of one expert in the electrical art; this could not be done by a practising cardiologist. As a result, patent No. 1,647,710 is thrown into the basic electrical art, and in determining its validity, consideration must be given to the state of that art at the time Nichols came along. In fact, the claims in suit are not limited to the recording of cardiac activity but describe a method and devices for “recording characteristics of muscular activities within living bodies”; and the specifications even more broadly state that the Nichols cardiograph “can also be applied for recording the potentials developed as a concomitant of any change of state of any material.” From the electrical point of view, the recording in the form of a graph of the small variable potentials generated by heart action presents no unique problem. Nichols lays great stress upon his use of a movable coil galvanometer connected to vacuum tube amplifiers, with condensers included in the circuit to suppress the constant potential produced by body activities (generally refered to as the “skin potential”) which otherwise would distort the recording of the variable heart voltages. It may be noted that the patent claims are not limited to movable coil galvanometers, but read just as readily upon the use of any standard type of galvanometer, including string galvanometers of the Einthoven type. But laying that objection aside, the evidence shows that vacuum tube amplifiers, with condensers, arranged in a circuit substantially the same as that shown in the patent, had been used in connection with movable coil galvanometers in marine cable work many years prior to Nichols. As the trial judge found: “This work is much like electrocardiography from an electrical viewpoint, since there is always a high constant current on a marine cable, and the signals are of low frequency.” The result produced by Nichols is the same, regardless of the source of the constant and variable potentials. Nichols also makes much of the feature of portability characteristic of his device. Here again, his claims as finally allowed make no mention of portability. The file wrapper discloses that in his correspondence with the Patent Office Nichols argued that without the use of amplifiers “the galvanometer must be made so sensitive and so large in size that it would render any apparatus including it not portable”; that “by stepping up the feeble potentials of the heart by aid of audions, a smaller and portable galvanometer can be used and this is the new result obtained by the use of applicant’s device.” But if portability is achieved merely as a result of using an old amplifier circuit and an old movable coil galvanometer for the measurement of weak potentials whether produced by cardiac activity or as “a concomitant of any change of state of any material,” the feature of portability obviously cannot be an adequate basis for a claim of invention. However, Nichols in his testimony indicated that there was more to the problem than that; that in “putting wiring in a small place, you have got to be very particular how you arrange that wiring; otherwise you will get interference between currents on one system and then on another. In other words, there will be cross-induction there.” If this is the secret of the portability achieved by Nichols, still no invention can be claimed on this score, because the patent discloses nothing as to how to avoid cross-induction in “putting wiring in a small place.” Therefore, quite apart from the prior work of Dr. Forbes and of the Western Electric Company in the field of electrocardiography, so properly emphasized by the court below, we are satisfied that patent No. 1,647,710 is.invalid for want of invention, in view of the earlier general electrical art. See Dorr Co., Inc., v. Yabucoa Sugar Co., 1 Cir., 1941, 119 F.2d 521, 524. See, also, Cuno Engineering Corp. v. Automatic Devices Corp., 62 S.Ct. 37, 86 L.Ed. — decided Nov. 10, 1941. The judgment of the District Court is affirmed, with costs to the appellee.

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?

MEDLIN, Mitchel C., Theurer, James, Reed, William and McClintock, Earl, DeVault, Donald C., v BOEING VERTOL COMPANY, Bowers, James and Owens, E. v. LOCAL 1069 OF the UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW). Medlin, Mitchel C., Theurer, James, Reed, William and McClintock, Earl, DeVault, Donald C., Appellants in No. 79-1027 Boeing Vertol Company, Appellant in No. 79-1028 Local 1069 of the United Automobile Aerospace and Agricultural Implement Workers of America (UAW), Appellant in No. 79-1029. Nos. 79-1027 to 79-1029. United States Court of Appeals, Third Circuit. Argued Nov. 15, 1979. Decided April 22, 1980. John W. Nails, Chester, Pa. (argued), for Mitchel C. Medlin, James Theurer, William Reed, Earl McClintock and Donald C. De-Vault. Paula R. Markowitz (argued), Markowitz & Richman, Philadelphia, Pa., for Local 1069 of the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Jerome A. Hoffman (argued), Jeffrey G. Weil, Barbara P. Ianacone, Dechert Price & Rhoads, Philadelphia, Pa., for Boeing Vertol Company, James and Owens E. Bowers. Before HUNTER, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. 1. In this appeal we have raised, sua sponte, the question of subject matter jurisdiction. The original action was filed in state court by five employees against their former employer, Boeing Vertol Company. The employer filed a third party action against the union, Local 1069 of the United Automobile, Aerospace and Agricultural Implement Workers of America, which had represented the employees. The case was removed by the union to federal district court without objection where it was decided on tne merits. Because we conclude that the district court did not have subject matter jurisdiction to adjudicate plaintiffs’ claims we will vacate the judgment of the district court and remand to the district court with instructions to remand the case to the state court. I 2. Plaintiffs, five former employees of Boeing Vertol, were originally laid off by the company between 1969 and 1970. In early 1973 they were sent notices offering them reinstatement with their previously accrued seniority if they accepted immediately. Each plaintiff promptly quit other jobs and accepted the offer. 3. Shortly after their return to Boeing Vertol, however, they were informed by the company that it had erroneously interpreted the relevant provision of the collective bargaining agreement and that, in fact, they were not entitled to their prior seniority. In May 1973 the Union filed a grievance on behalf of the employees. The grievance claimed that the company’s original interpretation of the collective bargaining agreement was correct and that the new interpretation constituted a unilateral change in the binding agreement by the company. The dispute was eventually submitted to arbitration and, on July 17, 1975, was resolved in favor of the company’s interpretation of the contract. 4. Meanwhile, in May 1975, the plaintiffs were once again laid off. In March 1977 four of the plaintiffs brought this action in the Court of Common Pleas of Delaware County, Pennsylvania alleging misrepresentation in the reinstatement letter and breach of the contract created by the letter. They were joined in February 1978 by the fifth plaintiff. The Defendants . . knew or should have known at the time of sending out its original letter . . that Plaintiff was not entitled to retain his seniority rights and therefore falsely represented to Plaintiff that he would retain his seniority rights in order to induce him to return to his employment with the Boeing Vertol Company. If the Defendant did not know at the time of sending out the letter ... of the fact that [Plaintiff] was not entitled to his seniority rights then the company acted negligently in failing to discover this error. 5. Boeing Vertol, in defense, alleged that the layoffs in 1975 took place pursuant to the collective bargaining agreement and that the only contract between Boeing and the plaintiffs was that agreement. Moreover, Boeing asserted that all five plaintiffs were, at all relevant times, employees of the Company and that the collective bargaining agreement provides that “the exclusive remedy for the disposition of any claim, dispute or grievance of any kind of any employee against the Company” shall be the grievance procedure of the bargaining agreement. Therefore, the company argues, the failure to process their misrepresentation and breach of contract claim through the grievance procedure forestalls the instant lawsuit. 6. In May of 1978, Boeing Vertol filed a third party complaint which joined Local 1069 as an additional defendant in the suit. See Pa.R.Civ.P. 2252-2255. The complaint by the company against the union contains two counts. It alleges first, that it was the union’s false representation which misled the plaintiffs and caused their injury, and second, that the union should have processed the plaintiffs’ misrepresentation claim through the mandatory grievance procedure. On each of these counts, Boeing Ver-tol contends, in the alternative, that the union is solely liable to the plaintiffs, but that if Boeing is liable, the union is jointly and severally liable, and that if Boeing is liable, it is entitled to recover all amounts it has expended, in indemnity from the union. 7. The union promptly removed the case to federal court on the ground that Boeing Vertol’s complaint stated a federal cause of action against the union. Removal was not challenged, and the district court proceeded to trial on the merits of the case. The trial, however, was terminated at the conclusion of the employees’ case. No evidence was received on the third party claim. The Defendant’s letter . . constituted an offer, included in the offer was the promise by Boeing Vertol Company that if the Plaintiff returned to work he would be given seniority rights dating back to [his original hiring date]. Plaintiffs return to work constituted an acceptance of this offer and created a contract between the Plaintiff and the Defendant Boeing Vertol Company. The Defendant breached this contract in March of 1975, when it revoked the Plaintiffs original seniority rights. . II 8. At the outset, we must emphasize the nature of our inquiry. Because removal was not challenged in this case, our purpose is not to review the procedures utilized in this case for compliance with the general federal removal statute. 28 U.S.C. § 1441 (1976). Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). Any irregularity in these procedures has been waived. See American Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-17, 71 S.Ct. 534, 541, 95 L.Ed. 702 (1951). 9. It is beyond dispute, however, that failure to challenge removal cannot confer subject matter jurisdiction which it does not otherwise possess upon the federal district court. See Id. at 17-18, 71 S.Ct. at 542 (“The jurisdiction of the federal court is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties.”) It is the responsibility of this court to inquire, sua sponte, into the question of the subject matter jurisdiction of the district court. Pharmadyne Laboratories, Inc. v. Kennedy, 596 F.2d 568, 570 n. 3 (3d Cir. 1979); In re Trimble Co., 479 F.2d 103, 110 (3d Cir. 1973); see Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908); Cameron v. Hodges, 127 U.S. 322, 325, 8 S.Ct. 1154, 1155, 32 L.Ed. 132 (1888). The exact limits of our task have been set by the Supreme Court. [Wjhere after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court. Grubbs v. General Electric Credit Corp., 405 U.S. at 702, 92 S.Ct. at 1347 (emphasis added). 10. We shall begin by examining each of the complaints to determine whether the case, as it first appeared in federal court, was properly within our subject matter jurisdiction. We then consider the claims as they stood at the time of judgment. Because we conclude that at no time during the proceedings was there a federal cause of action, we find it unnecessary to pass upon a number of thorny jurisdictional problems. Ill 11. We first examine the third party complaint, filed by Boeing Vertol against the union, which provided the alleged basis for the removal of this case. The first count of that two count complaint alleges misrepresentation by the union to the plaintiff employees. This is a nonfederal claim which need not concern us here. 12. The second count of the complaint alleges that plaintiffs’ claims should have been processed as a grievance under the terms of the collective bargaining agreement and that the collective bargaining agreement provides that the grievance procedure is the sole remedy for the disposition of claims by employees against the company. It is urged that these allegations state a cause of action for breach of the union’s duty of fair representation. Boeing also contends that the complaint states a cause of action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976), for breach by the union of the collective bargaining agreement. We disagree with both arguments. 13. The duty of fair representation is the duty owed by the union to the employees to represent their interests fairly and in good faith. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964); Nedd v. United Mine Workers, 400 F.2d 103, 105-06 (3d Cir. 1968); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318 (3d Cir. 1963). This duty arises out of the union-employee relationship. Nedd v. United Mine Workers, 400 F.2d at 106, and the Labor Management Relations Act, 29 U.S.C. §§ 158-159 (1976), which creates and defines that relationship. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1013-14 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 857-58 (8th Cir. 1975); Smith v. Local 25, Sheet Metal Workers Int’l Ass’n, 500 F.2d 741, 746 (5th Cir. 1974). To violate the duty, however, it is necessary that the union act with a bad faith motive. Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 859 (8th Cir. 1975); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 185 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. In order to state a claim for breach of this duty, it is essential that plaintiffs allege a bad faith motive on the part of the union. Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); accord, Anderson v. United Transp. Union, 557 F.2d 165, 168 (8th Cir. 1977); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 186 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). The instant complaint contains no such allegation. A mere allegation that a grievance “should have been” processed through a grievance procedure does not satisfy this requirement. See generally Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Accordingly, we hold that the second count of Boeing Vertol’s complaint against the union does not state a federal cause of action for breach of the union’s duty of fair representation. 14. Nor do we believe that the third party complaint alleges a cause of action under section 301(a). Section 301(a) does not grant jurisdiction over all disputes between unions and employees. This court has repeatedly stated that section 301(a) provides jurisdiction only over suits for violation of contracts between an employer and a labor organization. See Leskiw v. International Bhd. of Electrical Workers, 464 F.2d 721, 722-23 (3d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972); Adams v. Budd Co., 349 F.2d 368, 369-70 (3d Cir. 1965). The company has alleged no duty owed by the union to process all employee grievances. The only contractual provision cited by the company states that the grievance procedure is exclusive. There is no indication that this imposes a duty on the union to the company to process every grievance presented by employees. Indeed, the contract itself, submitted as an exhibit to the company’s pleadings, and incorporated therein by reference, provides that the processing of a grievance beyond step one proceeds only if a union representative “considers the grievance valid.” Collective Bargaining Agreement, Article VI, § 1. Step one does not require union participation. In addition, the contract sets time limits which, if not adhered to, preclude further consideration of any grievance or render a grievance void. Collective Bargaining Agreement, Article VI, § 2. Finally, the contract describes the effect of a disposition of a grievance that is “accepted by the union.” These provisions, which define the grievance procedure belie any claim of a duty on the union to process all grievances. Therefore, we conclude that the company has not stated a federal cause of action under section 301(a). IV 15. The company urges that jurisdiction may be based on the employees’ complaint against Boeing Vertol. They argue that the complaint, in substance, alleges a cause of action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976). Although we agree that we must look beyond the fact that section 301(a) is not expressly mentioned in the complaint and examine the true substance of the complaint, see Jones v. General Tire and Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976); Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 376 F.2d 337, 340 (6th Cir. 1967), affd., 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), we do not agree that the substance of plaintiffs’ claim falls within section 301. 16. As previously mentioned, section 301(a) provides jurisdiction only over suits for violation of contracts between an employer and a labor organization. See Leskiw v. International Bhd. of Electrical Workers, 464 F.2d at 722-23; Adams v. Budd Co., 349 F.2d at 369-70. In this case, the plaintiffs’ claims are based only on the independent rights allegedly created by the letters of reinstatement. The collective bargaining agreement, and the arbitration which resulted therefrom, constituted no more than a backdrop for the plaintiffs’ claim against the company for inducing them to return to Boeing under a false promise of seniority. Until the arbitration had been resolved, and the contract finally interpreted, the plaintiffs could not have claimed that Boeing’s promise was false. Thus, these were not rights arising in any way under the collective bargaining agreement. Cf. 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) (heart of complaint was “no-strike” clause in collective bargaining agreement); Leskiw, 464 F.2d at 723 (rights asserted to be independent of labor contract). Accordingly, plaintiffs’ claims are not within section 301(a). 17. Nor is jurisdiction conferred by the fact that the company raises the collective bargaining agreement in defense, as a bar to this action. First, it is doubtful that defendant alleges a violation of the collective bargaining agreement. The defense alleges only that the agreement interposes a bar to the instant action. However, even assuming, arguendo, that the defendant Boeing Vertol alleges a violation of the collective bargaining agreement, this court would not have jurisdiction over plaintiffs’ claims. 18. Section 301(a) invokes the jurisdiction of 28 U.S.C. § 1337 (1976), which provides federal subject matter jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce. . . .” Avco Corp., 390 U.S. at 561-62, 88 S.Ct. at 1238 (quoting 28 U.S.C. § 1337 (1976)). The “arising under” requirement of section 1337 has been interpreted to be the same as that found in 28 U.S.C. § 1331, the grant of general federal question jurisdiction. Yancoskie v. Delaware River Port Authority, 528 F.2d 722, 725 (3d Cir. 1975); see Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525 (1942) (discussing predecessor to section 1337). It is well settled that the existence of a federal defense to a nonfederal claim is insufficient to satisfy the “arising under” requirement. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). For an action to arise under federal law a right under federal law must be an element, and an essential one, of the plaintiffs’ claim. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). It is therefore clear that the invocation of the collective bargaining agreement in defense did not confer jurisdiction upon the district court. V 19. Although we have determined that none of the complaints, as they first appeared in federal court, stated federal causes of action, this does not end our inquiry. In ascertaining the existence of federal subject matter jurisdiction over a removed case, we must examine the posture of the case at the time of trial and when judgment is entered as well as at the time of removal. See American Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-17, 71 S.Ct. 534, 541-542, 95 L.Ed. 702 (1951); Grubbs v. General Electric Credit Corp., 405 U.S. 699, 704-06, 92 S.Ct. 1344, 1348-49, 31 L.Ed.2d 612 (1972). In Finn, for example, the Supreme Court found jurisdiction to be lacking because of the presence of nondiverse parties not only at the time of removal, but also at the time of judgment. To our knowledge, however, this requirement has not yet been applied to federal question jurisdiction. We can conceive of two possible interpretations of the Finn Rule. If a claim is deemed to arise under federal law only when the complaint states a federal cause of action, it would be possible to confine the necessary inquiry to the face of-the complaint as it existed at the time of trial or judgment. On the other hand, it may be sufficient to confer jurisdiction, that the claim itself, as it existed at the time of trial or judgment, was a claim arising under federal law. In this case, however, it is unnecessary to select an interpretation. If the first characterization is correct, we need only note that none of the complaints have been amended since the case first appeared in federal court. If the second interpretation is correct, we need only observe that later proceedings and materials submitted outside of the complaints neither changed the nature of any of the claims nor supplied the required missing elements of any of the purportedly federal claims. We therefore conclude that none of the claims in this case arose under federal law. VI 20. Our finding that no federal question is raised in this case does not end our inquiry into federal subject matter jurisdiction because it has been argued that diversity of citizenship exists. The employees note that one of the five plaintiffs is of diverse citizenship from the defendants and urge us to find the claim of that plaintiff to be separate and independent of those of the other plaintiffs. This, they contend, would establish jurisdiction over the entire case under 28 U.S.C. § 1441(c) (1976). 21. Section 1441(c) provides that: Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. Even assuming, without deciding, that the claim is separate and independent, we believe the contention to be without merit. Section 1441(c) requires that the separate and independent claim “would be removable if sued upon alone.” Section 1441(b), in defining removability, requires, in cases of removal based on diversity, that “none of the parties in interest properly joined and served as defendants [be] a citizen of the State in which such action is brought.” As all defendants in this case were citizens of the state in which the action was brought, Pennsylvania, the claim would not have been removable if sued upon alone. We therefore conclude that section 1441(c) does not provide a basis for jurisdiction over the instant case. VII 22. In light of the above, we believe that the district court improperly exercised subject matter jurisdiction over this case and, therefore, that the case was improperly removed. We, therefore, will vacate the judgment of the district court and remand the case to the district court with instructions to remand the action to the Court of Common Pleas of Delaware County, Pennsylvania. . At the court’s request, the parties have submitted supplemental briefs on this issue. . The operative allegations were repeated in haec verba for each of the five plaintiffs. . Specifically, we note that with this resolution of the case it is unnecessary to consider the effect of the doctrine of pendent jurisdiction which is ordinarily to be determined at the time of the pleadings, not on the facts as they may eventually be established. See Lentino v. Fringe Employee Plans, 611 F.2d 474, 478-79 (3d Cir. 1979). It is similarly unnecessary to decide whether, in this context, jurisdiction is properly exercised where a federal claim is alleged in a complaint, but is ultimately shown to be nonfederal or where no federal claim is alleged in a complaint, but the plaintiffs claim is eventually shown to be federal. . We are doubtful as to whether a cause of action which “arises out of the union-employee relationship and pervades it,” Nedd v. United Mine Workers, 400 F.2d at 106, may be raised by the employer, an outsider to that relationship. Because of our disposition of this case, however, we need not reach that question here. . Section 301(a) provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organization, 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. . We do not intimate that the clause in the contract which makes the grievance procedure the exclusive method of dispute resolution is not a valid defense to the employees’ claims. We merely observe here that it does not serve to impose a duty on the union. . We do not believe that the requirement of Grubbs that we consider only the original jurisdiction of the federal courts, see part II, supra, precludes this inquiry. It would be odd, indeed, to suggest that the federal courts could exercise removal jurisdiction pursuant to section 1441(c) over a claim not otherwise within its original jurisdiction when removal was challenged but may not exercise jurisdiction over the same claim when the removal is not challenged. . Whether similar claims by multiple plaintiffs against a single defendant constitute “separate and independent” claims for purposes of 28 U.S.C. § 1441(c) is not clear. Compare Stokes v. Merrill Lynch, Pierce, Fenner & Smith, 523 F.2d 433, 437-38 (6th Cir. 1975); Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798, 801 (5th Cir. 1973); Lowenschuss v. Gulf & Western Industries, Inc., 419 F.Supp. 342 (E.D.Pa.1976) (multiple plaintiffs’ claims are separate and independent) with Schwartz v. Merrill Lynch, Pierce, Fenner & Smith, 424 F.Supp. 672, 673-74 (N.D.Cal.1976); U.S. Industries, Inc. v. Gregg, 348 F.Supp. 1004, 1011 (D.Del.1972), rev’d on other grounds, 540 F.2d 142 (3d Cir. 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2972, 53 L.Ed.2d 1091 (1977) (multiple plaintiffs’ claims are not separate and independent). . 28 U.S.C. § 1441(b) (1976) provides: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. . We note that the parties will not be prejudiced by this remand, since they will be able to return to state court unhampered by the statute of limitations. See 42 Pa.Cons.Stat.Ann. §§ 5503, 5103 (Purdon 1979 Pamphlet).

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

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

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

Irene ALVARADO, Reg. 17513-170, et al., Appellants, v. Virginia McLAUGHLIN, Warden, Federal Reformatory for Women, Alderson, West Virginia, et al., Appellees. No. 73-1111. United States Court of Appeals, Fourth Circuit. Argued July 18, 1973. Decided Oct. 23, 1973. Wilfred J. Ritz, Lexington, Va. (Richard J. Bolen, Noel P. Copen, Huddles-ton, Bolen, Beatty, Porter & Copen, Huntington, W. Va., and Fred M. Vinson, Jr., Washington, D. C., on brief), for appellants. John A. Field, III, U. S. Atty., for ap-pellees. Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges. DONALD RUSSELL, Circuit Judge: Section 7237(d), 26 U.S.C., provided, inter alia, that a convicted narcotic law offender was ineligible for parole consideration. That section, however, was repealed as a part of the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, effective May 1, 1971. Under this Act, persons convicted of, narcotic law violations were entitled to the same parole consideration as other offenders had under the general parole provision set forth in Section 4202, 18 U.S.C. The Act included, though, a “savings” provision to the effect that, “[P]rosecutions for any violation of law occurring prior to the effective date of section 1101 * * * * shall not be affected by the repeals or amendments made by such section * * * or abated by reason thereof.” The Board of Parole takes the position that, by virtue of this “savings” provision in the Act as well as the general “savings” statute, any federal prisoner convicted of a narcotic law offense committed prior to May 1, 1971, does not qualify for administrative parole consideration under the terms of the general parole statute. The petitioners, all federal prisoners convicted and sentenced on account of a narcotic law offense committed prior to May 1, 1971, filed this declaratory action to establish their eligibility for administrative parole consideration under Section 4202. The District Court, 355 F.Supp. 404, found that they did not qualify and dismissed their claim for relief. The petitioners have appealed. We reverse. The contention of the Board, if sustained, would mean that federal prisoners, convicted of the same offense, would, as a matter of law, be treated differently in connection with the service of their sentences dependent upon whether their offense occurred before or after May 1, 1971. This contention is predicated on what the Board conceived to have been Congressional intent in enacting the new Act. Congressional intent to achieve such an irrational and manifest discrimination in treatment between prisoners convicted of the same offense, so inconsistent with fundamental fairness, should not be assumed, unless compelled by clearly expressed legislative purpose. We find no such expression of legislative intent in the Act. To the contrary, we are of the opinion that the language of the two “savings” provisions, relied on by the Board for its ruling, is plainly inapplicable as a bar to the rights of the petitioners under Section 4202 and that the position taken by the Board is at variance with the broad rehabilitative purposes of the Act itself. The “savings” provision incorporated in the Comprehensive Drug Abuse Prevention and Control Act of 1970 [i. e., Section 1103(a)] was intended merely to preserve the right of the Government to prosecute offenders whose offense occurred before the effective date of the new Act but had not been theretofore prosecuted. The key word in the “savings” provision is “prosecution”. That term fixed the reach of the provision. The grant of parole, as authorized under Section 4202 is a part of an administrative proceeding, conducted not by the Court but by an administrative body, and conducted “long after sentence has been entered and the prosecution terminated.” Bradley v. United States (1973) 410 U.S. 605, 611, n. 6, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528. It “in no way affects the prosecution of the case,” United States v. Stephens (9th Cir. 1971) 449 F.2d 103, 105, and is in no respect a part of the “prosecution”. Section 1103(a), confined as it is specifically to the concept of “prosecution”, presents thus no bar to the right of the petitioners to qualify for consideration for parole under Section 4202 and cannot justify the arrant discrimination inherent in the position taken by the Board. Neither does the general “savings” statute, Section 109, 1 U.S.C., foreclose the petitioners from a right to be considered for parole. That statute, “intended to obviate the common law’s technical abatement of a prosecution by the repeal of the statute under which it proceeded,” provides that, “[T]he repeal of any statute shall not have the effect to release or extinguish any penalty * * incurred under such statute, unless the repealing Act shall so expressly provide * * *.” It seems clear that the term “penalty” as used in this statute was intended to cover the same concept as the term “prosecution” in Section 1103(a) and is to be given no broader meaning. See United States v. McGarr (7th Cir. 1972) 461 F.2d 1, 4-5. “Penalty” in the statute refers to and embraces simply the sentence imposed by the Court. That sentence is in no way voided or “abated” by the subsequent grant of administrative parole. Parole is not “a suspension of sentence”, Jenkins v. Madigan (7th Cir. 1954) 211 F.2d 904, 906, cert, denied 348 U.S. 842, 75 S.Ct. 63, 99 L.Ed. 664; it does not remove or make invalid the sentence imposed, Marrero v. Warden, supra; it is still “a form of custody”, Padilla v. Lynch (9th Cir. 1968) 398 F.2d 481, 482, and “is in legal effect imprisonment”, Anderson v. Corall (1923) 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247; in summary, it “is not a release of the prisoner from all disciplinary restraint but is rather merely ‘an extension of the prison walls’; and the prisoner while on parole remains ‘in the legal custody and under the control of’ the Parole Board,” United States v. Nicholson (4th Cir. 1935) 78 F.2d 468, 469-470, cert, denied 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405. So regarded, administrative parole does “not have the effect to release or extinguish any penalty” imposed by the sentence of the Court and is accordingly not within the terms of Section 109. “The granting and revocation of parole are matters traditionally handled by administrative officers.” Not only is there nothing in the law relied on by the Board to sustain this denial of eligibility for parole consideration to the petitioners but also, the Congressional intent in enacting the Comprehensive Act that repealed Section 7237(d) shows, to our mind, an unmistakable legislative purpose contrary to that contended for by the Board. It is obvious that Congress, in removing the ban on administrative parole for narcotic law offenders in the Comprehensive Act of 1970, was expressing a legislative judgment that an intelligent program of rehabilitation, in which administrative parole should be an available tool, was the preferred method of dealing with such offenders. If that was the Congressional purpose, it is difficult to find any basis in that Act, much less in reason or in fairness, for treating differently prisoners whose narcotic law offenses took place before May 1, 1971 from those whose offenses occurred after that date. We will not assume that Congress intended any such irrational purpose or intent. Compounding the discrimination that the Board has made between offenders sentenced before and after May 1, 1971 is the incongruous position taken by the Board in eases arising in the Ninth and Seventh Circuits, where the Courts have found that the Board does have parole authority, and those arising in other Circuits where the Courts have not passed on the issue. In the case of any prisoner in the Ninth and Seventh Circuits the Board finds parole eligibility; in all other Circuits it denies eligibility. Such a disparity in treatment is intolerable. If the Board acquiesces in the decisions made by the Ninth and Seventh Circuits, it should in common justice extend the rights thus acquiesced in to all prisoners under its control. Our decision, so far as prisoners in this Circuit are concerned, assures to them equality of treatment with prisoners in the Ninth and Seventh Circuits. We assume the Board will extend the same rights to prisoners from the Third and District of . Columbia Circuits in view of the decisions in United States v. Marshal, 13 Cr.L. 2547 and Marrero v. Warden, supra, 483 F.2d 656. We recognize, as the able District Judge observed, that there are decisions indicating a contrary conclusion to that expressed by us. A majority of the Courts that have examined the question have, however, decided as we have and we find their reasoning convincing. This proceeding is accordingly remanded to the District Court with direction to enter a declaratory judgment that the petitioners are eligible for consideration for parole on the terms and subject to the conditions set forth in Section 4202,18 U.S.C. . 21 U.S.C. 801 et seq. . This is the section of the Act which repealed Section 7237(d). . Note under Section 171, 21 U.S.C. . Section 109, 1 U.S.C. . Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. 801 et seq. . See, also, Morrissey v. Brewer (1972) 408 U.S. 471, 486, 92 S.Ct. 2593, 2603, 33 L.Ed. 2d 484: . Marrero v. Warden (3d Cir. 1973) 483 F. 2d 656. . The right of the judge to provide for parole as a part of his sentence is quite different from the “availability of parole under the general parole statute”; the reason is that one is a part of the sentence or “penalty”, the other is an administrative action “made long after sentence has been entered and the prosecution terminated.” See, United States v. Huguet (2d Cir. 1973) 481 F.2d 888, 891. . Many of these cases dealt specifically with the power to sentence under the old Act, not to the subsequent, administrative effectuation of that sentence later. See United States v. Fiore (2d Cir. 1972) 467 F.2d 86, 88-89, cert. den. 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181; United States v. De Simone (2d Cir. 1972) 468 F.2d 1196, 1198-1199, cert. den. 406 U.S. 959, 93 S.Ct. 1499, 36 L. Ed.2d 188; Page v. United States (10th Cir. 1972) 459 F.2d 467, 468, cert. den. 410 U.S. 989, 93 S.Ct. 1506, 36 D.Ed.2d 187. Whether Fiore and De Simone remain the law of the Second Circuit is doubtful in view of the decision of that Circuit in United States v. Huguet (2d Cir. decided July 9, 1973), 481 F.2d 888. . See United States v. Marshal, supra; Marrero v. Warden, supra; United States v. McGarr, supra; United States v. Stephens, supra; United States v. Robinson (7th Cir. 1972) 466 F.2d 780, 782; United States v. Pratter (7th Cir. 1972) 465 F.2d 227, 233.

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"?

PUERTO RICO INTERNATIONAL AIRLINES, INC., Plaintiff-Appellant, v. Luis F. SILVA RECIO, Secretary of Labor of the Commonwealth of Puerto Rico, Defendant-Appellee, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Applicant for Intervention, Appellant. Nos. 74-1192, 74-1193. United States Court of Appeals, First Circuit. June 26, 1975. Daniel B. Bickford, Boston, Mass., with whom Gaston, Snow, Ely & Bartlett, Richard J. McCarthy, Boston, Mass., Donald M. Hall and McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria, San Juan, P. R., were on briefs, for Puerto Rico International Airlines, Inc. Roberto Armstrong, Jr., Asst. Sol. Gen., with whom Miriam Naveira De Rodon, Sol. Gen., was on brief, for Luis F. Silva Recio. Gary Green, Washington, D. C., with whom Daniel M. Katz, Washington, D. C., was on brief, for Air Line Pilots Ass’n, International. Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges. COFFIN, Chief Judge. Puerto Rico International Airlines, Inc. (PRINAIR) in its complaint below sought declaratory and injunctive relief against the Secretary of Labor of the Commonwealth of Puerto Rico to prevent the execution of local wage and hour laws asserting that the application of such laws to PRINAIR is inconsistent with federal laws regulating the aviation industry. Prior to the filing of the suit below was a suit brought in a Commonwealth superior court by some PRINAIR pilots in 1970 grounded on the challenged statutes and seeking a back pay award against PRINAIR. In that proceeding, PRINAIR raised in defense the claim that the statutes were in conflict with federal law and therefore invalid. The Superior Court resolved the claim in favor of the pilots and rejected the asserted claim of federal preemption. The Supreme Court of Puerto Rico refused to entertain an interlocutory appeal on this issue. PRINAIR then, in 1973, proceeded to file this claim in federal district court. The issue of damages is pending in the Commonwealth courts, proceedings having been voluntarily suspended pending resolution of this case. The Secretary argued that the federal courts should abstain from ruling on the matter until the Puerto Rican Supreme Court resolved the issue. The Air Line Pilots Association, which sought unsuccessfully to intervene argued that an injunction would be violative of 28 U.S.C. § 2283. The district court dismissed the complaint below, relying principally on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). The district court indicated that it was compelled to dismiss under the law. On appeal, PRINAIR drops the claim for injunctive relief. Its remaining claim is for a declaration that Puerto Rican laws 289 and 379 are, as applied to airlines, preempted by federal law. PRINAIR argues that the fact of pending state litigation should not act as a bar to federal resolution because (1) the parties are not identical in the state and federal proceedings; (2) the relief sought was not interference with the pending court decision but with the future operation of the law and future liability thereunder; (3) PRINAIR is entitled to a federal court hearing on the federal issue and to federal discovery; and (4) as a defendant in the state court, PRINAIR made no voluntary choice to accept that forum and has made the requisite effort to preserve the issue for federal decision under England v. Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). We proceed from the same assumption as did the district court, that principles of federalism must enter into the decision whether to go forward with federal proceedings in equity when state court resolution of the vital issues in the case, the rights and obligations under the challenged statutes as well as their constitutionality is in progress. The district court relied upon the doctrine of equitable restraint articulated in Younger v. Harris, supra, and Samuels v. Mackell, supra, requiring the federal court to refrain from interference when state criminal proceedings are pending. The state court proceeding in question here was, however, not criminal but civil in nature, brought in reliance upon a regulatory statute. Since the district court decision, the Supreme Court has expanded the doctrine of equitable restraint to include quasi-criminal civil proceedings, Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (March 18, 1975), in which the state defendants, there as here, went to federal court after a state lower court ruling was rendered. But we are not persuaded that the state suit in question here, brought by private individuals, not state officials, falls within the bounds of this new doctrine. For to extend so far the doctrine would require reversal of Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942) (Frankfurter, J.), most recently reaffirmed in Provident Tradesman’s Bank & Trust v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) which leaves declination of federal jurisdiction as a matter of discretion for the district court. The district court’s exercise of restraint was, therefore, not mandated. But, while what we might call the “strong” doctrine of equitable restraint symbolized by Younger is not applicable to this case, normal equitable principles antedating Younger do require an assessment of the countervailing interests of the parties. Declaratory relief like other equitable remedies should be granted only as a matter of judicial discretion, exercised in the public interest. Public Affairs Press v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). The court must, then, undertake a balancing of the equities and in weighing the potential harm to the claimant here, the court must take into account claimant’s assertion of a right to be informed of its future liability and to federal resolution of its federal preemption claim. Should the state court resolve its claim unfavorably, it will be forced to assume a substantial financial burden — a burden, we would add, that would also be assumed if the final federal decision were adverse to the claimant. Appellant also has a legitimate interest in a reasonably prompt decision of the federal question. Thus far delay has been encountered in both the state and federal proceedings. The denial of interlocutory review by the Supreme Court of Puerto Rico precluded a chance for resolution before damages were ascertained. The federal proceedings thus far have not brought the issue any closer. The likelihood of a reasonably timely resolution of the preemption issue must now be weighed prospectively. Should the district court conclude that allowing the case to progress in the Commonwealth courts would involve an unreasonably greater delay in resolving the federal issue than would be experienced in the federal court, this would be a significant factor in the equitable scales. The equitable counterbalance includes the possibility that the Puerto Rican Supreme Court will, in following the Commonwealth case to conclusion, find the local statute inapplicable to PRINAIR or itself resolve the federal law dispute in PRINAIR’s favor. And against any claim PRINAIR has to immediate federal court resolution must be weighed the unseemliness of duplicative court proceedings and the unnecessary federal-state friction that will be generated. In other words, in weighing the public interest, comity must be considered as well as plaintiff’s potential harm. The fact of a previously filed and still pending proceeding in another court ought to be weighty in the balance of equities. PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674 (5th Cir. 1973); Duggins v. Hunt, 323 F.2d 746 (10th Cir. 1963). “The fact that another action, involving substantially the same issues, is pending in a state or federal court is a potent factor in discretionary refusal to assume jurisdiction.” 6A Moore’s' Federal Practice 1 57.08[3] at 57-43 (3d ed. 1974). See also Note, Availability of Declaratory Judgment When Another Suit is Pending, 51 Yale L.J. 511 (1942). This court has had occasion to apply this doctrine in the past. Western Electric Co., Inc. v. Hammond, 135 F.2d 283, 287 (1st Cir. 1944). Finally, if PRINAIR has in fact properly preserved the federal issue under England, at 422 n. 13, 84 S.Ct. 461, see also H. M. Hart & H. Wechsler, at 1009, or if an appeal is taken and fully reviewed by the United States Supreme Court, PRINAIR will have, at a later juncture, a federal court ruling on its claim: “Even assuming, arguendo, that litigants are entitled to a federal forum for the resolution of all federal issues, that entitlement is most appropriately asserted by a state litigant when he seeks to relitigate a federal issue adversely determined in completed state court proceedings.” Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482. While what we have said would support the result reached below as an exercise of discretion, we cannot shortcut the process. It seems impossible for us to read the district court’s opinion as anything other than a response to what it thought was the overpowering mandate of Younger, which left, in such a case as this, no room for discretion. We therefore see no alternative to a remand for the weighing of the various factors which should determine the exercise of discretion. Since the district court is fully aware of all such factors, we would not foresee that its decision would unduly extend this phase of the proceedings. Vacated and remanded. . The complaint challenged Laws of the Commonwealth of Puerto Rico No. 96 of 1956, as amended, 29 L.P.R.A. 245 et seq.; No. 289 of 1946, as amended, 29 L.P.R.A. 295 et seq.; and No. 379 of 1948, as amended, 29 L.P.R.A. 271 et seq. Since that time airlines have been exempted from the requirements of Law 96 so that the denial of relief concerning Law 96 is not contested on appeal. . In light of our disposition of this appeal we need not pass on the district court ruling refusing intervention. . 28 U.S.C. § 2283 prohibits a federal injunction or stay of state court proceedings but as a technical matter does not apply to declaratory relief. 6A Moore’s Federal Practice II 57.06 (3d ed. 1974). . The doctrine of equitable restraint derives from an accommodation of the principle of comity and the equity principle that relief will not be granted if there is an adequate remedy at law. H. M. Hart & H. Wechsler, The Federal Courts and the Federal System, 1009-1013 (2d ed. 1973). It is distinct from the doctrine of abstention which, under certain circumstances, counsels federal deference to state courts on state issues. Id. at 985. The appellant argues that abstention, an alternate basis for the district court order, is inappropriate in this case because the statutes are not ambiguous. There remains, of course, the possibility that they might be construed as not being applicable. See, e. g., England, supra. But since the district court did not pass on the issue, we do not deal with it. . Rule 57 Fed.R.Civ.Proc. also states that “the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” . PRINAIR’s claim of right to federal discovery is not imposing in this basically nonfactual dispute. Cf. England, supra at 416.

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

FARMERS GRAIN CO. et al. v. TOLEDO, P. & W. R. R. et al. No. 9114. Circuit Court of Appeals, Seventh Circuit Nov. 20, 1946. Writ of Certiorari Granted March 31, 1947. MAJOR, Circuit Judge, dissenting in part. Clarence W. Heyl, of Peoria, Ill., John E. MacLeish, Charles M. Price, and Leland K. Neeves, all of Chicago, Ill., for appellant. John E. Cassidy, John F. Sloan, Stanley Crutcher, Harry E. Witherell, George Z. Barnes, and Louis F. Knoblock, all of Peoria, Ill., for appellee. Before SPARKS, MAJOR, and KER-NER, Circuit Judges. SPARKS, Circuit Judge. This is an appeal by the Toledo, Peoria & Western Railroad Company from a judgment appointing a receiver to take possession of all its properties and to operate its railroad, and enjoining appellant and all others from interfering with his possession or operation. The controversy which gave rise to the present action arose out of labor difficulties between defendant-appellant, the railroad company, and the defendants-appel-lees. The latter are labor unions in which, it is alleged, 90% of appellant’s employees hold membership. These difficulties began prior to 1940 and they grew in intensity as time passed. On January 3, 1942, appellant filed a complaint, asking an injunction against the striking union, in the same district court from which this appeal is taken. After an extended hearing, the injunction was granted. Upon appeal, this court affirmed that decree on December 16, 1942. Toledo, Peoria & Western Railroad Co. v. Brotherhood of Railroad Trainmen, 7 Cir., 132 F.2d 265. In this opinion are set forth the District Court’s rulings and its reasons therefor. Upon appeal to the Supreme Court our decision was reversed on January 17, 1944. Brotherhood of Railroad Trainmen v. Toledo, Peoria & Western Railroad, 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810. That opinion held that a railroad company which refused to submit a labor dispute to arbitration in accordance with provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., although it had sought to settle the dispute by negotiation and by mediation, had not made every reasonable effort to settle the dispute, within the meaning of section 8 of the Norris-LaGuardia Act, 29 U.S.C.A. § 108, and was thereby barred by the Acts of Congress, from injunctive relief in the federal courts. In other words, it was held that the appellant was not entitled to an injunction until it had sought to settle the dispute by all three of the prescribed methods of conciliation, to wit: negotiation, mediation and arbitration; that it had not agreed to arbitrate the dispute, and while it was not required to do so, yet if it failed to make an offer to do so it deprived itself of the right to an injunction. In that case plaintiffs’ present counsel represented the labor unions, and the latter are now represented by other different counsel. This complaint, which was filed February 20, 1946, alleges that plaintiffs are shippers whose places of business are on appellant’s right of way; that the federal government had been in possession of the railroad from March 22, 1942 until October 1, 1945, at which time possession was relinquished to appellant; that on or about September 20, 1945, more than four-fifths of the employees who were in the service of the government in and during its operation of the railroad had voted to quit work; that the strike was effective as of 12:01 A.M. on October 1, 1945; that appellant and the Brotherhoods did not engage in collective bargaining prior to October 1, 1945; that on that date transportation of interstate commerce terminated; that since said date appellant’s facilities have been abandoned; that such abandonment will continue and plaintiffs and others similarly situated will be denied service until a working agreement is entered into between appellant and the Brotherhoods; that the president of appellant, who was in complete control of it, has refused to engage in collective bargaining in good faith; that cessation and abandonment of the railroad was also the result of failure of defendant Brotherhoods and unions since October 1, 1945, to exert efforts to persuade the president to meet with them and collectively bargain; that such cessation of service and abandonment of interstate commerce by the defendant company and the other defendants is contrary to the laws and public policy of the United States and of the State of Illinois, and is a ■source of disorder, disturbance of the peace, and against the general welfare; that such cessation and abandonment is injuring the property and rights of plaintiffs and the public, and is causing irreparable loss to defendant company through deterioration of its equipment and rolling stock, and is injuring the property of defendant’s stockholders; that such cessation and abandonment is preventing the employment of more than five hundred persons, and is a loss and injury to any and all persons, and is to the advantage or gain ¡of no one; that upon information and belief, the defendant Brotherhoods, unions and employees are ready and will immediately return to work and resume rail service and the free flow of interstate commerce under the same conditions and rates of pay that were in force and effect from March 22, 1942, until October 1, 1945, when the defendant company was operated by the United States Government, which conditions and rates of pay have been and are the same as those in effect on other railroads in the United States. The complaint prayed generally for relief in the premises and that the court invoke such means as necessary to bring about the prompt resumption of transportation of interstate and all commerce on said Railroad, and that the court order such remedy as is necessary to effectuate the prompt availability to plaintiffs and other shippers of rail service on that railroad. It prayed specifically that the court enjoin the appellant, the defendant unions and all persons from further abandonment of operation of the railroad. It further prayed specifically that the court appoint a receiver to take possession of all the properties, franchises, equipment and facilities of the Railroad, and that such receiver be ordered to restore rail service and free flow of interstate transportation and other commerce on such railroad immediately, and that such receiver retain possession of all of such property and equipment and direct the operation of said railroad under supervision of the court until the further order of such court, and that the court grant such other relief in the premises as is meet and in the interests of the plaintiffs, the public and for the security of the general welfare. On March 20, 1946, plaintiffs filed a petition for the appointment of a temporary receiver, alleging that appellant and the Brotherhoods had attended a meeting called at the request of Governor Green; that no agreement was reached between appellant and the Brotherhoods at that meeting and that afterwards the parties were no nearer settlement than they had been before; that since October 1, 1945, appellant’s railroad has been closed down and has transported no freight over its line. It further alleged that there was no apparent possibility of any agreement between the parties or that the railroad could be placed in operation to perform its duties as a common carrier, unless a receiver appointed by that court should take possession of it and begin operation. The Brotherhoods, 'in their answer to this petition for a temporary receiver, stated among other things, that the meeting referred to in the petition had been held and that no - agreement had been reached, but denied that there was no apparent possibility of any agreement between the parties, or that the railroad could not be placed in operation to perform its duties as. a common carrier unless a receiver was appointed. A petition for temporary relief, similar to that filed by plaintiff on March 20, 1946, was filed by plaintiffs on May 3, 1946. Neither of the two last-named petitions filed by the plaintiffs was acted upon by the court. Appellant answered the complaint in.sub-' stance that its railroad had been in possession of, and had been operated by, the Government through a federal manager from March 22, 1942, until October 1, 1945; that on September 13, 1945, the Brotherhoods made written demand upon appellant, insisting. that from and after.October 1, 1945, all of the terms and conditions under which appellant’s'properties had been operated by the federal manager should apply to appellant; that on September 29, 1945, appellant offered to continue in effect the federal manager’s rates of pay and rules, and to employ all who were employees of appellant on March 22, 1942, and the employees of the federal manager, except those who had engaged in acts of violence in late 1941 and early 1942, with historical seniority; that effective at midnight, September 30, 1945, the federal manager terminated the employment of almost all of his employees; that at that time appellant was confronted with the seizure of its property by the Brotherhoods in what they termed a strike; that negotiations subsequently were had with the Brotherhoods, seeking a mutually agreeable disposition of all controversial questions, but that said negotiations had proved unavailing; that appellant had attempted to operate its railroad, but was prevented from doing so through the violent acts and unlawful conduct of the Brotherhoods; that appellant had sought protection from the public authorities sufficient to operate its road, but such protection had not been furnished, and proper operation and interchange with other railroads could not be carried out; that many of appellant’s employees had been hurt by pickets, property had been damaged, shooting had occurred, and that in one instance certain of the pickets had been shot and killed by armed special agents (acting in self-defense) employed by appellant in the attempted operation of one of its trains; that the unlawful conduct and acts of violence of which the Brotherhoods were guilty were similar in kind and character to those involved in the earlier suit in which the judge had granted an injunction which was affirmed by this court and reversed by the Supreme Court on the ground that appellant had not agreed to arbitrate as required by the Norris-LaGuardia Act, as above stated; that appellant had not abandoned its road, but had not been able to operate the same due to the unlawful conduct on the part of the Brotherhoods, and, that.if given adequate protection, appellant had available, or could procure, a sufficient number of properly trained employees to operate the road and render service to the shippers and to the public at large. Appellant further alleged in its answer that plaintiffs had no interest or title to any of appellant’s properties which would authorize the appointment of a receiver; nor did the complaint disclose that any one or more of the plaintiffs had any interest in or right to compel a court to settle a labor controversy by seizing the property and assets of one party to said controversy. With this answer appellant also filed a cross complaint by which it sought in-junctional relief against the continued violence and unlawful conduct on the part of the Brotherhoods against, and interference with the operation of the railroad. The Brotherhoods’ answer consisted largely of admissions of certain allegations of the complaint or statements that the allegations were neither admitted nor denied. Their answer specifically stated that they were ready and would immediately return to work and resume the rail service and the free flow of interstate commerce under the same conditions and rates of pay that were in force and effect on September 30, 1945, when the road was being operated by the Government. The Brotherhoods moved to dismiss the complaint, and made the same motion at the close of plaintiffs’ evidence. These motions were denied by the court in its judgment of June 6, 1946. Material to the issues here joined, the court on June 6, 1946, made in substance the following findings of fact and conclusions of law: On September 6, 1945, the Director of the Office of Defense Transportation ordered that management of appellant be returned to its private management on September 30, 1945. On September 13, 1945, the Brotherhoods requested appellant’s president to confer with respect to a continuation of the rates of pay and working conditions which had been in effect under the federal manager. On September 15, 1945, appellant by letter notified the Brotherhood officials that it would not be proper for appellant to make any agreement with them at that time, and that it declined to participate in a meeting, and made no^ alternate or other proposal; that on or about September 27, 1945, appellant’s employees voted to withdraw from service on October 1, and that on September 28 and 29, appellant made certain proposals to the Brotherhoods which the Brotherhood officials would not accept. On October 1, 1945, practically all employees of appellant withdrew from service. By this finding the court also said that by their letter of September 13, the Brotherhoods had made a bona fide effort for collective bargaining and that the defendant railroad unreasonably frustrated this effort, and that neither appellant nor the Brotherhoods made any reasonable effort to negotiate and engage in collective bargaining prior to the employees’ withdrawal from service and cessation of rail transportation on October 1, 1945. The court further referred to other efforts made to bring the representatives of the defendants into agreement, but found that all such efforts toward mediation and adjustment were unsuccessful. By reason of these facts the court further found that the defendants had maintained an unreasonable disregard for the rights of plaintiff shippers and had acted contrary to the public welfare. In a further finding the court enumerated various acts of violence and stated that appellant’s officials had asked the local law enforcing officials and also the Governor of Illinois for protection; that the requests of all defendants to the law enforcing officers were reasonably complied with, and that appellant’s failure to operate was not justified by the railroad’s charge that public officials refused or were unable to perform their duty. It further stated that although incidents of violence occurred and a hostile and provocative attitude by pickets and also employees of defendant railroad was a hazard to the public peace and safety, yet the court could not find that such violence was a sufficient justification for the failure of the defendant to operate its trains unless the court could also find or presume from the evidence that local law enforcing officials and the Executive Officers of Illinois had refused or were unable to perform their official duties. The court said that it could not indulge in such presumption and that the evidence did not permit such finding. The court found that essential connecting rail carriers of defendant had since October 1, 1945, refused to interchange freight with defendant because of the danger to their employees arising out of the presence of armed guards on defendant’s trains and property, and because of the hazards due to the inefficiency of some of defendant’s engine crews; that one of the principal reasons for the failure of appellant to operate its trains and provide rail service was that the railroad did not have in its employ a sufficient force of trained and experienced railroad workers to operate its trains and man its equipment, and that such insufficiency of workers was the result of the appellant’s unreasonable refusal in September, 1945, to meet the defendant Brotherhoods, and engage in bona fide collective bargaining. The court further said that such insufficient force of workmen was also the result of the unreasonable and obstinate attitudes of all defendants (which included the Brotherhoods and their officials as well as appellant) and their refusal to make concessions and their failure to genuinely negotiate and bargain for the joint welfare of the employees, the railroad corporation and the public. The court found that from December, 1941 to March, 1942, many acts of violence were perpetrated by the striking workers of the railroad company; that these conditions were intercepted and relieved by the appointment of a federal manager who made a contract with the Brotherhoods which existed until October 1, 1945, when the road was returned to the appellant; that from October 1, 1945, until the present date, all the Brotherhoods refused to work, and violence has been prevalent on the part of' both membership and employees from that day to the present time; that from October 1, 1945, until the present time there has been considerable violence on the part of the present employees of the company and pickets and strikers, until conditions almost justified the statement that a state of war exists between these two opposing factions. He further stated that in his opinion, conditions were such that “a future settlement of the determined contentions of each of the parties is highly improb-' able.” The court’s conclusions of law, material to the issues here presented, are substantially as follows: The evidence does not establish that local law enforcing officers and the Executive Department of the State of Illinois have either refused or are unable to perform their public duties to keep the peace and afford protection, and. the railroad’s defense of violence and interference is not sufficient to excuse the failure to operate its trains and provide service. Upon withdrawal from service, the union members had the lawful right to engage in peaceful picketing. They had no right, however, to engage in violence or unlawful interference with defendant’s property. Neither did defendant have a right to provoke tension by the dangerous use of firearms and other provocative measures. Appellant’s refusal to arbitrate between 1941 and March 1942, and to respond to the order of the War Labor Board and the request of the President of the United States was not a reasonable discharge of its obligations to the public welfare. The refusal of defendant to comply with the Brotherhoods’ request for a conference on September 13, 1945, amounted to a failure of defendant to fulfill its legal duty to engage in collective bargaining, and the failure of the Brotherhoods to request additional steps for negotiation of appellant’s proposal of September 29, 1945, constituted a lack of full effort on their part to pursue collective bargaining. Appellant knew, or should have known, that the natural and probable consequences of its labor policy would result in cessation of interstate commerce and abandonment of its operations. It is the duty of the District Court to give effect to the law by compelling the prompt resumption of the safe, free and uninterrupted flow of interstate commerce on the railroad, and to accomplish that result it concluded that it should appoint a receiver of appellant to operate the railroad under that court’s supervision, and that all persons should be enjoined from interfering with the receiver in the performance of his duties. The court further concluded that an injunction in favor of appellant against the Brotherhoods and other appellees-defend-ants, as prayed in its cross complaint, “would not amount to relief sufficient to achieve prompt and complete resumption of the operations on defendant Railroad,” and in view of the order of the court for the appointment of a receiver, and an order enjoining all interference with the receiver, the defendant railroad’s cross complaint should be dismissed. The decree, entered on June 6, 1946, in substance denied the motions of all defendants to dismiss the complaint, and also dismissed appellant’s cross complaint. It also appointed Fred Windish, “not an experienced railroad official, but an efficient business man who has no interest on behalf of either of the defendants,” as receiver of all of the properties, franchises and assets of appellant. It further decreed that the receiver, upon filing his bond in the sum of $10,000 for the faithful performance of his duties should “take possession of all the real and personal property, franchise rights and other assets tangible and intangible of” appellant, “and operate or arrange to operate such Railroad in such manner as will furnish satisfactory and adequate rail transportation to all members of the public subject to the approval of this Court,” and that “all defendants, persons, firms and corporations be and they are hereby enjoined from interfering with the Receiver in obtaining possession of these properties or with his possession or with his operation of the Railroad.” On June 12, 1946, appellant filed its verified motion to vacate the decree and enter a decree in its favor, or to vacate the decree and hear further 'evidence. This motion disclosed that the case had been closed on May 17, 1946, argument of counsel heard on May 20 and 21, and the decree entered on June 6, 1946; that the shooting on February 6, 1946, above referred to, concerning which testimony had been introduced at this trial, had resulted in the indictment of four of appellant’s employees for manslaughter in McLean County, Illinois; that a trial of those defendants had been had in the Circuit Court of that County, which resulted in an acquittal on May 24, 1946. The motion further disclosed that since the final arguments in this case appellant had inspected and placed in operating condition the Eastern Division of its railroad running between East Peoria and Effner, Illinois; that on June 4, 1946, appellant had lifted its embargo to permit the acceptance of all carload shipments, excepting perishables and live stock, when originating at or destined to stations between East Peoria and Effner, and had established daily service, except Sunday, to shippers located on the Eastern Division; that since June 4, 1946, appellant had daily, except Sunday, operated a train between East Peoria and Effner, and had furnished to the shippers on the Eastern Division all the services they had requested; that since June 4, 1946, appellant had completed transportation of certain cars on its line; that connecting railroads, with one exception, had advised appellant that they would accept and handle cars in exchange from appellant, although certain other railroads had stated that such handling would depend upon freedom from interference, and the Peoria and Pekin Union Railroad had issued on June 4, 1946, an embargo against all shipments to and from, appellant. This motion further alleged that appellant was able to hire a sufficient number of employees to operate its lines, if it ultimately proved to be impossible to agree with the Brotherhoods; that since the closing arguments in this case, appellant and the Brotherhoods had conferred with respect to a settlement of their differences, and their endeavors were continuing when this decree was entered. This motion was denied. The receiver was appointed and his bond for faithful performance was filed and approved. Plaintiffs were not required to give bond. The first question presented is whether the District Court under the evidence was authorized by law or equity to appoint a receiver of appellant That court quite succinctly stated the question in the following language: “Whether * * * this court can, under the law, because of an injury to the public appoint a receiver over a financially sound institution, and more or less abolish the rights of arbitration or the rights of dealing with labor and capital.” His ruling was in the affirmative, and by it we think the methods prescribed by Congress for dealing with controversies between capital and labor were indeed abolished with respect to this case. It is admitted by plaintiffs and the District Court that the decree provides a new and unprecedented method of solving labor disputes by appointing a receiver of appellant’s property, which was specifically prayed for in' the complaint, together with the usual prayer for general relief. True, there was an additional prayer that the receiver be ordered to operate the property and that in so doing he be protected by injunctive process. Such prayer was granted as is usual in all federal equity re-ceiverships. Every equity receiver is appointed for the purpose of either preserving, liquidating or operating the property involved. It is admitted that this appointment was not made for the purpose of liquidation, nor was it made for the purpose of preserving the property, for plaintiffs had no interest in it, either legal or equitable, nor did they have a claim of any kind against it. It is clear that the ultimate aim of the action was the appointment of a receiver for the sole purpose of operating the railroad, without any limitation as to time, and not being ancillary to other equitable or legal relief sought. Under these circumstances we think the decree was improper. Kelleam v. Maryland Casualty Company, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899; Gordon v. Washington, 295 U.S. 30, 55 S.Ct. 584, 79 L.Ed. 1282; Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763; Re Metropolitan Railway Receivership, 208 U.S. 90, 28 S.Ct. 219, 52 L.Ed. 403; 16 Fletcher Cyclopedia of Corporations, Sec. 7683. Appellant further contends that the District Court erred in dismissing its cross complaint in which it asked for an injunction against the defendant-appellees. In its conclusions of law, the court stated in effect, as one of its reasons for such ruling, that it was unnecessary to grant that relief to appellant because it had granted the same relief to the receiver, and further, that to grant an injunction to appellant “would not amount to relief sufficient to achieve' prompt and complete resumption of the operations on * * * (the) railroad.” This latter statement is consistent with only one of two conceivable facts. Either the receiver contemplated granting the unions’ demands, or the court thought that the unions would not obey an injunction issued to appellant. We are reluctant to indulge in that thought for that would be to presume an unpatriotic act on the part of the unions as well as all participating courts. A further reason for dismissing the cross complaint, as set forth in its conclusions of law, was that appellant had not reasonably discharged its obligations to the public welfare, because it had refused to arbitrate its controversies with the Union in 1941 and March 1942, and that it did not respond to the order of the War Labor Board and the request of the President of the United States. At that time, of course, there had been no offer to arbitrate, as shown in the opinion of the Supreme Court in the former case (321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810), in which, however, it was held that appellant at that time had performed all of its duties as to negotiation and mediation as the District Court in the former case had found. Of course, the War Labor Board never issued a mandatory order in this case, nor did it have the power to do so. Its order, as well as that of the President, was purely recommendatory, and neither was binding on appellant. This ruling is further based on the appellant’s refusal to comply with the Brotherhoods’ request for a conference on September 13, 1945, as stated in the conclusions of law. The reason for not thus participating was that none of the employees concerned were then in appellant’s employment, but all were in the employment of the Government and would be until October 1. However, on September 29, appellant proposed to the Brotherhoods to adopt the federal manager’s pay and working conditions as of September 30, 1945, also to adopt the principle of historical seniority with respect to all appellant’s former employees and those of the federal manager; to give employment to all for whom jobs might be available, with the exception of 23 persons who had been found by the court in 1942 to have been guilty of unlawful conduct and acts of violence against appellant and who had been named in the injunctional order of the court issued on January 19, 1942, and one other person who had shot at one of appellant’s trains in violation of the injunc-tional order; and to sign an agreement with all of the Brotherhoods, recognizing them as bargaining representatives. The Brotherhoods refused appellant’s proposal of September 29, claiming that the provision concerning the treatment of persons who had engaged in acts of violence was unacceptable to them, and later they refused the provision relating to historical seniority, and so far as this record discloses there were no other questions involved. Even after October 1, there were other negotiations and proposals through the Illinois Commerce Commission, and the National Mediation Board. Appellant offered to arbitrate under an arbitrator appointed either by the senior federal judge of that district, or the trial judge, or the senior circuit judge of this ■circuit, or by the Illinois Commerce Commission, and finally appellant proposed to arbitrate their two remaining differences, or any others which might arise, under the •terms of the Railway Labor Act. The Brotherhoods rejected all of these proposals, notwithstanding their answer denying the allegation in plaintiffs’ petition that the railroad could not be placed in operation to perform its duties as a common ■carrier unless a receiver was appointed. Under these circumstances which are undisputed, we think it cannot be said that appellant failed either to negotiate, mediate or arbitrate as contemplated by the former decision in this case by the Supreme Court. The court found that the parties did not bargain or negotiate in good faith, and that their failure to agree was the result of the unreasonable and obstinate attitudes of all defendants and their refusal to make concessions. At the close of the trial, however, he said: “I know that there is an honest disagreement on the part of the management of the railroad company and perhaps an honest — and I know an honest disagreement on the part of the employees of the Brotherhoods.” Of course this statement of the court would not of itself annul its findings of lack of good faith in negotiating and bargaining, but it conclusively shows that the finding is based solely on the fact that the parties did not reach an agreement, which under the law does not constitute a proper basis for such finding. The statutes provide a remedy for such a situation by arbitration, which if accepted becomes binding on all parties, and if not accepted, the applicant is furnished with injunctive process for its protection under the ruling of the Supreme Court in the earlier case, 321 U.S. 50, 14 S.Ct. 413, 88 L.Ed. 534, 150 A.L.R. 810. The law does not require the Brotherhoods or the appellant to enter into an agreement which is not mutually satisfactory. Virginian Railway Co. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; N. L. R. B. v. Jones & Laughlin Steel Co., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. It is urged by appellees that the appointment of a receiver will not be injurious to appellant. Conceding this arguendo, it furnishes no basis for the appointment of a receiver. 53 Corpus Juris on Receivers, § 21; 45 American Jurisprudence on Receivers, § 30; 16 Fletcher, Cyclopedia Corporations, § 7728. Appellees urge quite strongly that appellant has abandoned its railroad because, as it appears, the road cannot operate because of the unlawful interference of the Brotherhoods and because of the unlawful refusal of the connecting lines to interchange traffic with appellant. There is no merit in this contention. Townsend v. Michigan Cent. R. Co., 6 Cir., 101 F. 757; Williams v. Atlantic Coast Line Co., 4 Cir., 17 F.2d 17; Chicago & E. I. R. v. Clapp, 201 Ill. 418, 66 N.E. 223; Toledo, Peoria & Western R. R. Co. v. Brotherhood, supra; Interstate Commerce Act, § 3(3), 49 U.S.C.A. § 3(3); Smith-Hurd Ill.Ann. Statutes, chap. 111⅔, § 44. It seems to be well settled that appellant cannot be required to operate its road in the face of unlawful conduct and the acts of violence on the part of the Brotherhoods, especially where such conduct approaches the magnitude of civil war as found by the court in the case at bar. See Empire Transportation Co. v. Philadelphia & Reading Coal and Iron Co., 8 Cir., 77 F. 919, 35 L.R.A. 623; Geismer v. Lake Shore & Michigan Railroad Co., 102 N.Y. 563, 7 N.E. 828, 55 Am.Rep. 837. See also Toledo, Peoria & Western R. R. v. Brotherhood, supra; People v. New York Central R. R. Co., 28 Hun, N.Y., 543; and Jonesborough, L. C. & E. R. Co. v. Maddy, 157 Ark. 484, 248 S.W. 911, 28 A.L.R. 503; Ritchie v. Oregon Short Line R. Co., 42 Idaho 193, 244 P. 580, 45 A.L.R. 919. In its conclusions of law the court states that the enforcing officers and executive department of the State of Illinois have neither refused nor been unable to perform their public duties to keep the peace and afford protection to the defendant for the operation of its road. We are not disposed to labor this matter. The record does not inform us as to the specific duties of these officers, nor is it necessary that we should make further investigation on this subject. The undisputed evidence is that this road has been unable to run for quite a long period of time, and of course it is admitted that this is due to the labor troubles which are now before us. These troubles have grown in intensity, and they have resulted in the deaths of three human beings. It is undisputed that these troubles have never been alleviated by the officers referred to. Whether this was due to the officers’ inactivity or inability, or beyond the scope of their duty is immaterial at the present time. This condition has existed so long that it has become a stench in the nostrils of patriotic" citizens of Illinois, and it should be stopped by due process of law. Appellant has urged with considerable emphasis that the District Court was without jurisdiction to hear this case. We are indeed doubtful of the merit of this contention because of the very wide latitude of plaintiffs’ prayer for relief.- It sought any relief which the court might properly give and we see no reason why under that pleading and this evidence the District Court could not have issued a mandatory injunction against the appellant to continue the operation of its road and also protect the appellant by an injunction such as it has issued to the receiver. Of course, it did not do this. However, we do not feel disposed to hold that the District Court was without jurisdiction to hear the case. Its jurisdiction does not depend upon the correctness of its decision. The defendant appellees urge that appellant’s cross complaint was insufficient to support an injunction in favor of appellant against interference with its operation of the road because the cross complaint was, not verified by oath, nor did it disclose that notice of past unlawful interference, or such threatened interference, was given to the chiefs of those public officials, charged with the duties to protect appellant’s property in the counties and cities within which such unlawful acts were threatened or committed, nor was summons issued upon the cross complaint, and served upon any ap-pellee. The propriety of an injunction against interference in the road’s operation inheres in the issues raised by the complaint and answers. Plaintiffs ask for equitable relief by way of mandatory injunction, to compel appellant to operate the road. It is elemental that the law will never require the performance of an act unless it is physically possible to perform it. Appellant’s answer alleges acts of the Brotherhoods and their associates which, if true and continued, render the operation of the road impossible. The cross complaint for injunction is based, by reference, upon the allegations of interference as set forth in the answer., The court dismissed the cross complaint for injunction although it enjoined any interference with the operation of the road by the receiver which it appointed. The reason for this ruling is set forth in the court’s 9th conclusion of law, to which no objection was, or is now, made by any appellee. As stated before we think plaintiffs are entitled to the mandatory injunction, providing appellant is protected by an injunction against interference by anyone in the operation of the road. We think the proviso should be adhered to because of the history of this controversy. It is true that our Supreme Court has held that to render a person amenable to an injunction, it is neither necessary that he should have been a party to the suit, nor have been actually served with a copy of it, so long as he appears to have had actual notice of it. In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110. It is quite true that anyone, having actual notice, who might interfere with appellant’s compliance with the mandatory injunction would be guilty of contempt and could be punished therefor. Even so, that decision does not in any way militate against the propriety of issuing the injunction against interference, and the latter has the advantage of giving actual and specific notice to the defendant appellees as to the rights of the parties. We think it is preferable practice in view of the magnitude and aggravated history of this case, and the period of time over which it has extended. We think it was never the intention of Congress, nor was it within its power, to prevent a court of equity from protecting its decrees. It is quite true that the court found in this case, or rather concluded as a matter of law, that the facts did not warrant an injunction against interference. At the same time, in announcing its decision, it stated in effect that the conduct of the parties constituted almost a state of war between appellant and its employees. The truth of that statement is abundantly borne out by the evidence in both cases that have been before us. In

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?

M.D. PHELPS and Irene K. Phelps, Plaintiffs, Appellees, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant, Appellant. No. 85-1591. United States Court of Appeals, First Circuit. Heard Jan. 7, 1986. Decided Feb. 28, 1986. Evan Slavitt, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for defendant, appellant. Robert Sweeney Troy, Buzzards Bay, Mass., for plaintiffs, appellees. Before COFFIN, Circuit Judge, ALD-RICH and ROSENN, Senior Circuit Judges. Of the Third Circuit, sitting by designation. ROSENN, Circuit Judge. This appeal raises the troublesome question whether a government insurance agency is barred from asserting as a defense the failure of its insured to file a written proof of loss when misrepresentations of the agency induced the failure. Our specific task is to determine whether, under the circumstances we have here, the insurer’s status as a federally subsidized agency precludes the application of traditional estoppel against it. Because many factors have made it uneconomical for the private insurance industry to make flood insurance available to those in need of such protection from flood disasters on reasonable terms and conditions, Congress established a National Flood Insurance Program (NFIP), 42 U.S.C. § 4001 et seq (1982). The Director of the Federal Emergency Management Agency (FEMA) is presently authorized to carry out the program, 42 U.S.C. § 4011 (1982). The Secretary of the Treasury has been authorized to establish in the United States Treasury a National Flood Insurance Fund. 42 U.S.C. § 4017. On February 11, 1974, the plaintiffs, M.D. and Irene Phelps, initially purchased a policy of insurance under the program against loss to their home in Wellfleet on the Massachusetts coast. On March 13, 1980, while the policy was in full force and effect, the plaintiffs sustained serious damage to their home as a result of a severe storm. FEMA denied coverage and plaintiffs sued in the United States District Court for the District of Massachusetts. FEMA contended that the loss was outside the scope of the policy and that the insured had failed to comply with the requirement that a claimant file a written proof of loss. Following a trial with an advisory jury, the court ruled in favor of the insured for the full amount of the policy. FEMA appeals and we reverse. I. The facts in this case are undisputed. On March 14 and 15, 1980, a fierce storm struck the Wellfleet coast. Winds reached 67 miles per hour and waves reached levels attained only twelve times in twelve years. Thirty-three feet of land immediately in front of the Phelps’ home collapsed. The Phelps inspected the loss about one week later and learned that because of the devastating damage to their home, the local building inspector had condemned it. M.D. Phelps telephoned Liberty Mutual, the agent listed on the flood insurance policy. He spoke to Paul Amoroso, a claims supervisor, who referred him to the NFIP offices in Maryland. Phelps called the NFIP offices and talked to Burke Gabriel, a claims supervisor who identified himself as the head of investigations for the NFIP. Gabriel was an employee of Electronic Data Services Federal Corp. (EDS), the “servicing agent” authorized by government regulations to “assist in issuing flood insurance policies under the Program in communities designated by the [Federal Insurance] Administrator [see 44 C.F.R. § 2.64], and to accept responsibility for delivery of policies and payments of claims for losses as prescribed by and at the discretion of the Administrator.” 44 C.F.R. § 62.3(a) (1985). Phelps described the loss to Gabriel, who assured Phelps that the information he had furnished fully reported the loss, that the investigative process would begin immediately, and that Phelps need do nothing further. Phelps inquired about filing a written report but Gabriel told him it was unnecessary. Phelps testified that he called EDS several times, and each time they assured him that he had properly reported the loss and that the investigation process was underway. FEMA instructed its agent, John McNamara of Crawford and Company, an insurance adjustment firm, to investigate the loss. Crawford inspected the property and noted that the house had been deemed “uninhabitable” by the Wellfleet building inspector. On May 20,1980, McNamara filed a “Preliminary Report of Inspection” that concluded: “We feel there is coverage.” On May 22, 1980, McNamara wrote to the insured to inform them that he had inspected the property and reported to NFIP. His letter consisted primarily of a check list of documents required for the investigation but the only item checked was an enclosed non-waiver agreement. He neither checked item 3 referring to a proof of loss, nor enclosed a form for proof of loss. The Phelps signed and returned the enclosed non-waiver agreement which stated that investigation of the claim did not cause waiver of any rights by either party. At no time during the process did anyone notify the .insured to submit a proof of loss form. M.D. Phelps testified that he relied on assurances by FEMA’s duly authorized representative that he need do nothing further to properly file his claim. The investigation continued until January 1981 and at no time did FEMA or its agents suggest that they required a proof of loss or that one should be filed. On the contrary, FEMA’s agents specifically assured the Phelps that they need do nothing further. FEMA never raised the issue of the absence of the proof of loss form during the claims period and they completed their investigation without it. FEMA eventually denied coverage of the loss because it concluded that the loss was not due to a “flood” and was therefore outside the scope of the policy’s coverage. The Phelps brought suit to recover on their policy. The district court found that the damage was due to a “flood” within the meaning of the regulation, and that FEMA was es-topped from raising as a defense the Phelps’ failure to file a written proof of loss. II. The Standard Flood Insurance Policy (SFIP) in effect at the time required the insured to submit a “proof of loss” to the insurer within 60 days of the alleged loss. Within 60 days after the loss, unless such time is extended in writing by the Insurer, the Insured shall render to the Insurer, a proof of loss, signed and sworn to by the Insured ... as to the following: the time and origin of the loss, the interest of the Insured and all others in the property, actual cash value of each item thereof and the amount of loss thereto, all encumbrances thereon, all other contracts of insurance, whether valid or not, covering any of said property, any changes in the title, use, occupation, location, possession or exposure of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts hereof were occupied at the time of the loss____ 44 C.F.R. § 61, App. A(l), Dwelling Form 11N (1979) (current version at 44 C.F.R. § 61, A(l), General Conditions and Provisions, H 1.4 (1985)). Failure to comply with this requirement ordinarily barred recovery: No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all of the requirements of this policy have been complied with____ Dwelling Form, General Conditions and Provisions, 11 S, 44 C.F.R. § 61, App. A(l) (1979) (current version at 44 C.F.R. § 61 App. A(l), General Conditions and Provisions, 11 Q (1985)). Thus, if FEMA can raise as a defense the Phelps’ failure to comply with the written proof of loss requirement, it can bar recovery on the policy. The threshold question presented is whether the principles of estoppel should apply to prevent FEMA from raising this defense. Our review of this question of law is plenary. Molerio v. Federal Bureau of Investigation, 749 F.2d 815, 820 (D.C.Cir.1984). In order to give the insured the benefit of any doubt, we assume, without deciding the question, that the substantive claim of the insured under the policy is meritorious. A. Equitable estoppel is a judicially-devised doctrine which precludes a party to a lawsuit, because of some improper conduct on that party’s part, from asserting a claim or a defense, regardless of its substantive validity. Courts invoke the doctrine when “one person makes a definite misrepresentation of fact to another person having reason to believe that the other will rely upon it and the other in reasonable reliance upon it” acts to his or her detriment. Restatement (Second) of Torts § 894(1) (1977). Thus, the party claiming the estoppel must have relied on its adversary’s conduct “in such a manner as to change his position for the worse,” and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading. See Wilber National Bank v. United States, 294 U.S. 120, 124-125, 55 S.Ct. 362, 364, 79 L.Ed. 798 (1935). Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59, 104 S.Ct. 2218, 2223-24, 81 L.Ed.2d 42 (1984). The elements of traditional estoppel are plainly present in this case. Had the Phelps purchased their flood insurance from a private carrier, there would be no doubt whatsoever that they could have invoked the doctrine. FEMA’s agents represented to the insured that they need not file a written proof of loss, and that FEMA could conduct its investigation without it. The agents, whom the law required the insured to deal with, made the representations reasonably believing that the Phelps would rely on them. The Phelps reasonably relied on these assurances and as a result changed their legal position to their detriment. The Supreme Court, however, from its early decision in Lee v. Munroe & Thornton, 11 U.S. (7 Cranch) 366, 3 L.Ed. 373 (1813), to its most recent decision in Heckler v. Community Health Services of Crawford County, Inc., supra, has consistently refused to apply the equitable estoppel doctrine against the government, no matter how compelling the circumstances. Justification for this refusal rests primarily upon considerations of sovereign immunity and constitutional grounds — the potential for interference with the separation of governmental powers between the legislative and executive Thompson, Equitable Estoppel of the Government, 79 Colum.L.Rev. 551, 565 (1979). There is also a vital concern for public policy. Heckler v. Community Health Services, supra, 467 U.S. at 63, 104 S.Ct. at 2225. In a complex government with thousands of agencies and departments,, and innumerable employees, there is a very real need to protect the Government against binding commitments by improper conduct of its agents, which might promote fraud or collusion. “Fear of uncontrollable liability and crippling losses to the public treasury have also played a role in sustaining the rule.” Thompson, supra at 557. The district court in the instant ease, citing Meister Bros., Inc. v. Macy, 674 F.2d 1174 (7th Cir.1982), allowed estoppel against FEMA because the insured reasonably relied on the representations of government agents and because allowing recovery would further congressional intent that flood victims be protected by insurance. We respect the district court’s rationale and the substantive basis for it but in light of the Supreme Court’s pronouncements, we are compelled to reject the court’s conclusion that estoppel against the Government is permissible in this case. We do not think that Meister Bros. squares with repeated and emphatic Supreme Court pronouncements pertaining to estoppel against the Government. The Court has rejected the two principles that support the Meister Bros, decision. First, the Meister Bros, court emphasizes the need for the Government to treat citizens fairly. 674 F.2d at 1177. For pragmatic public policy reasons, however, the Supreme Court does not weigh equitable considerations in government estoppel cases or consider the reasonableness of reliance on the representations of a government agent. Moreover, reliance on an erroneous representation may not be reasonable because all citizens are expected to know the law, however arcane. See Community Health Services, 467 U.S. at 63-65, 104 S.Ct. at 2225-27. Second, Meister Bros, rests in part on the distinction between the Government acting in its sovereign capacity and government serving a proprietary or business function. 674 F.2d at 1177. Cf. Community Health Services v. Califano, 698 F.2d 615, 620-21, (3d Cir.1983) (“[W]ith the great expansion of governmental operations, [federal] courts [of appeal] have recently shown a greater willingness to apply estoppel against the government in specific circumstances.”). The Supreme Court, however, found no merit in this distinction in Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), and recently reaffirmed the vitality of the case in Community Health Services, 467 U.S. at 60, n. 11, 104 S.Ct. at 2224, n. 11. The analogy and force of Merrill are inescapable here. In Merrill, the respondents (Merrill Bros.) purchased crop insurance from the Federal Crop Insurance Corp., a wholly government owned enterprise. Their policy covered 460 acres of spring wheat, of which 400 acres were to be reseeded winter wheat. The insurer’s agent advised the insured that the entire crop was insurable and on the agent’s recommendation the insurer accepted the application for insurance. Drought later destroyed the entire crop and Merrill Bros, learned to its dismay that valid regulations precluded crop insurance for reseeded wheat. Acknowledging that under the circumstances recovery could be had against a private insurance company, nonetheless, the Supreme Court refused to estop the Government from denying liability stating: Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. 332 U.S. at 384, 68 S.Ct. at 3. The salient facts in Merrill, with one exception, paralleled the facts in this case. Both involved insurance coverage obtained from a government agency. In each case, a government agent made erroneous representations to the insured. In both cases, the insured relied on those representations to the insured’s detriment. The only distinction is that in Merrill the respondents were not entitled to coverage whereas the plaintiffs here were. A comparatively recent case, Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1980), is also instructive because, like this case, it involved a procedural default improperly precipitated by a government agent. By per curiam opinion, it reversed a scholarly decision of the court of appeals challenging the principle that the Government cannot be estopped in circumstances of procedural default. The Court stressed “ ‘the duty of all courts to observe the conditions defined by Congress for charging the public treasury.’ ” Id. at 788, 101 S.Ct. at 1471 (quoting Merrill, 332 U.S. at 385, 68 S.Ct. at 3). It also held that the government agent’s failure to comply with the Claims Manual by not recommending that the claimant file a written application, as required for “mother’s insurance benefits” for which she was eligible under the Social Security Act, did not constitute affirmative misconduct. It rejected the court of appeals’ distinction between the claimant’s substantive eligibility and her mere failure to satisfy the procedural requirement as a justification for estopping the Government with the statement: “A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other requirement for the receipt of benefits.” Schweiker v. Hansen, 450 U.S. at 790,101 S.Ct. at 1472. The Merrill Court found that the agent’s failure to comply with the Government Claims Manual by not recommending to the claimant that she file a written application did not constitute affirmative misconduct. As it later did in Heckler, the Court left the door open to estoppel in certain circumstances. It concluded, however, that the agent’s errors in the advice he gave the social security claimant fell far short of conduct which would raise a serious question of whether the Government is es-topped from insisting upon compliance with a valid regulation. We believe that the analyses in Merrill and Hansen apply with particular force to the facts of this case. In all three cases, there were erroneous misrepresentations to innocent persons. In each of the cases, the recipients of the erroneous information relied on it to their serious detriment. In Hansen, the claimant was eligible for benefits and would have been entitled to them had she filed a written application. In the instant case, we have assumed arguendo that the insured would have been entitled to their insurance coverage had they filed a written proof of loss. As far as we have been able to determine, the Supreme Court has never shown hospitality toward claims of estoppel against the Government. See supra note 3. It has explicitly or implicitly rejected each point relied on by the district court in the instant case for invoking estoppel against the Government. Regardless of the district court’s belief that the insured reasonably relied on a positive misrepresentation by FEMA’s agent, a belief to which we subscribe, we are compelled to hold that in these circumstances estoppel may not be applied against a government agency despite the hardship visited upon the insured. Whatever our inclinations may be, they must give way to the admonition that it is “the duty of all courts to observe the conditions defined by Congress for charging the public treasury.” The Phelps’ failure to file a written proof of loss therefore bars their recovery on their policy unless, as they argue, FEMA waived this requirement. B. The insured argue that FEMA’s agents waived the proof of loss requirement through their oral assurances that the Phelps had done all that was necessary to collect on the insurance policy and that the submission of a proof of loss would be unnecessary. However, federal law and the terms of the Standard Flood Insurance Policy explicitly preclude oral waiver or waiver by conduct. 44 C.F.R. § 61.13(d) (1979) provided that: The Standard Flood Insurance Policy and required endorsements must be used in the Flood Insurance Program, and no provision of the said documents shall be altered, varied, or waived other than through the issuance of appropriate amendatory endorsement, approved by the [Federal Insurance] Administrator as to form and substance for uniform use. See 44 C.F.R. § 61.13(d) (1985) (identical). The Standard Flood Insurance Policy, of which the insured had a copy, stated in pertinent part: [N]o provision [of this policy] may be waived except such as by the terms of this policy is subject to change. No permission affecting this insurance shall exist, or waiver of any provision be valid, unless granted herein or expressed in writing added hereto. No provision, stipulation or forfeiture shall be held to be waived-by any requirement or proceeding on the part of the Insurer relating to appraisal or to any examination provided for herein. 44 C.F.R. § 61, App. B, Dwelling Form 11D (1979) (current version at 44 C.F.R. § 61, App. A, Art. VIII 11D (1985)). Therefore, FEMA can waive the proof of loss requirement only by duly executing a written waiver, which it did not do. In fact, it requested that the insured execute, and they did, a “non-waiver agreement,” the effect of which we do not reach. We hold that FEMA did not waive the proof of loss requirement. HI. Controlling and consistent Supreme Court precedent compels us to hold that the Phelps’ failure to submit a written proof of loss, coupled with the absence of a waiver of this requirement by FEMA, constitutes a valid defense to recovery on the insurance policy. Accordingly, the judgment of the district court is reversed with instructions to dismiss the complaint. Each side to bear its own costs. . The administration of the program has undergone change. From June 6, 1969 to December 31, 1977, the program was administered by the National Flood Insurers Association, an unincorporated association of insurance carriers under a contract with the Department of Housing and Urban Development (HUD). Effective January 1, 1978, HUD took over administration of the program. By executive order on April 1, 1979, FEMA assumed responsibility for administering the program. Meister Bros., Inc. v. Macy, 674 F.2d 1174, 1175 n. 1 (7th Cir.1982). . Interpretation of these contract provisions is a matter of federal law. "This Court has consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs.” United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 99 S.Ct. 1448, 1457, 59 L.Ed.2d 711 (1979). . Critics of the Court's application of the doctrine charge that it has not always been consistent and point to the Court’s decisions in Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951), and United States v. Pennsylvania Chemical Corp., 411 U.S. 655, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1972). See 4 K. Davis, Administrative Law Treatise § 20:2 (1983). The Court, however, does not regard these cases as turning on equitable estoppel and distinguishes them in its recent decision in Heckler v. Community Health Services of Crawford County Inc. Also, in Immigration and Naturalization Service v. Hibi, 414 U.S. 5, 8-9, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973), the Court suggested in dictum that it would permit estoppel only where government agents engage in "affirmative misconduct.” . In light of our disposition of this appeal, we do not reach the question whether the property damage was due to a "flood" within the meaning of the SFIP.

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

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

MANNE v. COMMISSIONER OF INTERNAL REVENUE. No. 13183. Circuit Court of Appeals, Eighth Circuit May 7, 1946. Rehearing Denied June 3, 1946. Karol A. Korngold, of Saint Louis, Mo. (A. B. Frey and Frey & Korngold, all of Saint Louis, Mo., on the brief), for petitioner. John F. Costelloe, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges. RIDDICK, Circuit Judge. The question is whether sums paid to the taxpayer under nine contracts with insurance companies were received as annuities under annuity or endowment contracts within the meaning of section 22(b) (2) of the Internal Revenue Code, 26 U.S. C.A. Int.Rev.Code, § 22(b) (2). The statute and regulations involved are printed in the margin. Each of the contracts in question was purchased by the taxpayer for a lump sum and was entitled “Annuity Contract.” In each contract the insurance company agreed to make periodical payments of a stated sum to the taxpayer during his life, the amount of the periodical payment in each contract being determined by reference to the taxpayer’s age and life expectancy. Each contract contained a provision for the computation of its reserves upon a designated table of mortality and at rates of interest varying from three to four per cent, and each contract also provided that, if the total payments to the taxpayer in his lifetime should be less than the single premium paid for its purchase, the payments should be continued to his beneficiaries after his death until the total amount of all payments equaled the sum paid for the contract. In the year 1940 the taxpayer received from the insurance companies payments aggregating $1,752.35, the amount coming to the taxpayer by the terms of the contracts for that portion of the year for which payments were due. In 1941 the taxpayer received $2,964.24, which is the amount which the taxpayer was entitled to receive annually under the contracts. The contracts were purchased in the year 1940 for an aggregate consideration of $60,000 paid by the taxpayer in cash. No physical examination was required of the taxpayer, who was born December 20, 1890, and-whose life expectancy at the time of the contracts of purchase was twenty-one and one-half years. The Tax Court sustained the Commissioner’s determination that the taxpayer was required by section 22(b) (2) of the Internal Revenue Code to include in his gross income for the year 1940 $1,045 with respect to the payments of $1,752.35 received in that year, and to include in his gross income for the year 1941 $1,800 with respect to the annuity payments of $2,964.24 received in 1941. It is admitted that the sums mentioned above, if required to be included in the taxpayer’s gross income for the years mentioned under section 22(b) (2), are correctly computed. The contracts here involved are annuity contracts within the meaning of section 22(b) (2) of the Internal Revenue Code, and the amounts received under them by the taxpayer fall within the definition of the applicable Treasury Regulation, promul•gated under this section of the Code, as amounts received in periodical installments payable for an indefinite period longer than one year. The payments are also within the definition of an annuity given by the courts. In Bodine v. Commissioner, 3 Cir., 103 F.2d 982, 984, an annuity is defined as “a sum paid yearly or at other specified intervals in return for the payment of a fixed sum by the annuitant.” The payments received by the taxpayer in the present case were taxable to the extent provided by section 22(b) (2) of the Code. 1 Merten’s Law of Federal Income Taxation, § 6.30. And see Gillespie v. Commissioner, 9 Cir., 128 F.2d 140; and Raymond v. Commissioner, 7 Cir., 114 F.2d 140. The taxpayer’s contention that section 22(b) (2) as applied in this case is unconstitutional is based upon an assumption for which the evidence offers no support. The taxpayer assumes that the payments received by him during the taxable years 1940 and 1941 were merely the return to him of portions of the capital invested in the purchase of the annuity contracts. On that assumption he contends that, until the full purchase price of the annuities has been returned to him, the tax imposed by section 22(b) (2) is a tax upon capital and not upon income, gain derived from capital, and therefore beyond the power of Congress. Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570. The taxpayer’s argument ignores the fact that the considerations paid for the contracts were sums which, plus interest and less expenses of the issuing companies, would equal the total of the payments to be made under the contracts. Rishel v. Pacific Mut. Life Ins. Co. of California, 10 Cir., 78 F.2d 881, 887, 131 A.L.R. 414. “It is well known that an annuity is calculated to yield a recipient who lives out his expectancy a total amount equal to the consideration paid, plus interest thereon. Hence, each annual payment, from the actuarial point of view, is made up partly of a return of capital and partly of income. The statutory method is an arbitrary but essentially equitable device for determining the amount of the income for taxation. Hence, it should be sustained.” Magill, Taxable Income, p. 433. We do not know from anything in the evidence what part of the return to the taxpayer in the form of periodical payments here involved represents earnings upon his investment, considerations paid by him for all the contracts. Conceivably, the total- of that part of the return on which tax is imposed for the years in question may have been paid from earnings on the investment. From the standpoint of the taxpayer, the most favorable assumption that can be made is that some part of the annual return to the taxpayer is represented by earnings Upon his investment in the hands of the insurance companies. Recognition of this characteristic of annuity contracts like those involved here led to the enactment of the section of the Revenue Code under consideration. Congress, in providing that the return from such annuity contracts should be included in the annuitant’s gross income to the extent of three per cent of the sum invested by the annuitant, may be said to have made an approximation of that portion of the annuitant’s return which is received by him in the form of income from the capital invested. A taxpayer claiming that the section of the Revenue Code in question imposes in a given case a tax upon the return of capital under the guise of a tax on income is under the burden of establishing that no income was in fact received by him from his investment, or at least that the income actually received is less than three per cent upon his investment. In this case there is no evidence to show that the earnings on the taxpayer’s investment were less than three per cent of its amount during the taxable years in question, or to support the inference that the payments received by him were wholly or even partly a return of capital. The taxpayer is, therefore, in no position to question the constitutionality of the section of the Revenue Code under the facts in this case. Gillespie v. Commissioner, supra, 128 F.2d at page 144; Raymond v. Commissioner, supra, 114 F.2d at page 143. The question of the constitutionality of section 22(b) (2) of the Internal Revenue Code is, on the facts in the present case, an academic question which the courts are not authorized to answer. Peak v. Commissioner, 8 Cir., 80 F.2d 761, 762; White v. Johnson, 282 U.S. 367, 373, 51 S.Ct. 115, 75 L.Ed. 388. A taxpayer alleging unconstitutionality of an act must show not only that the act is invalid, but that he has sustained some direct injury as the result of its enforcement. Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078. The decision of the Tax Court is affirmed. 26 U.S.C.A. Internal Revenue Code. “Sec. 22. Gross income. ******* “(b) Exclusions from gross income. Tlie following items shall not be included in gross income and shall be exempt from taxation under this chapter: ******* “(2) Annuities, etc. * * * Amounts received as an annuity under an annuity or endowment contract shall be included in gross income; except that there shall be excluded from gross income the excess of the amount received in the taxable year over an amount equal to 3 per cen-tum of the aggregate premiums or consideration paid for such annuity (whether or not paid during such year), until the aggregate amount excluded from gross income under this chapter or pri- or income tax laws in respect of such annuity equals the aggregate premiums or consideration paid for such annuity.” Treasury Regulations 103, promulgated under the Internal Revenue Code. “Sec. 19.22(b) (2)-2. Annuities.— Amounts received as an annuity under an annuity or endowment contract include amounts received in periodical installments, whether annually, semiannually, quarterly, monthly, or otherwise, and whether for a fixed period, such as a term of years, or for an indefinite period, such as for life, or.for life and a guaranteed fixed period, and which installments are payable or may be payable over a period longer than one year. Such portion of each installment payment of an annuity shall be included in gross income as is not in excess of 3 per cent of the aggregate premiums or consideration . paid for such annuity, whether or not paid during the taxable year, divided by 12 and multiplied by the number of months in respect of which the installment is paid. As soon as the aggregate of the amounts received and excluded from gross income equals the aggregate premiums or consideration paid for such annuity, the entire amount received thereafter in each taxable year must be included in gross income.”

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

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 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?

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

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

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

In Re FRONTIER MOBILE HOME SALES, INC. GENERAL ELECTRIC CREDIT CORPORATION, Appellee, v. Dale McCOY, Trustee, Appellant. No. 80-1554. United States Court of Appeals, Eighth Circuit. Submitted Dec. 19, 1980. Decided Dec. 23, 1980. Charles Darwin Davidson, P. A., Little Rock, Ark., pro se. Tom Forest Lovett, P. A., by Tom F. Lovett, Little Rock, Ark., for appellee. Before BRIGHT, ROSS and McMILLI-AN, Circuit Judges. PER CURIAM. The trustee in bankruptcy appeals from a judgment entered in the district court of the Eastern District of Arkansas finding that appellee General Electric Credit Corp. (hereinafter GECC) had a security interest in a mobile home superior to that of appellant by virtue of Ark.Stat.Ann. § 85-9-306(5)(a) (Supp.1979). For the reasons discussed below, the judgment of the district court is affirmed. in 1971, Frontier Mobile Home Sales, Inc. (hereinafter Frontier or the bankrupt), entered into two agreements with GECC. The first was a financial agreement under which GECC extended credit to Frontier for the purchase of inventory; the second was an assignment to GECC by Frontier of all chattel paper arising from the sale of the inventory. Frontier sold the mobile home in question to Percy and Jean Craig. Pursuant to the second agreement, the chattel paper was assigned to GECC, which noted its lien on the certificate of title. Thereafter, the Craigs defaulted. Frontier repossessed the mobile home and placed it on its lot for resale. The mobile home was still being held for sale when Frontier filed its bankruptcy petition. After Frontier’s bankruptcy petition was filed, GECC unsuccessfully filed for possession of the mobile home. Instead, the mobile home was sold and the proceeds (approximately $3,800) held pending the resolution of this dispute. The bankruptcy court ruled that GECC’s security interest was superior to the trustee’s lien because § 85-9-306(5)(a) applied and GECC’s security interest in the inventory held for sale reattached to the mobile home upon repossession. On appeal to the district court, the trustee challenged whether the provisions of § 85-9-306(5)(a) were properly met. In particular, the trustee challenged whether any money was owed under the original financing agreement because Frontier had assigned the chattel paper to GECC. The district court affirmed the decision of the bankruptcy court and rejected the trustee’s contention. The district court held that Frontier, despite the assignment, was still obligated to GECC for any outstanding balance in the event the purchasers defaulted. For reversal the trustee raises a new contention, not presented to the bankruptcy court or the district court, that GECC forfeited or subrogated its perfected security interest in the inventory by acquiring a lien under the chattel paper. The trustee argues that GECC can only assert this latter interest, which, in the view of the trustee, is unperfected and thus inferior to the trustee’s lien. The trustee does not reassert before this court the argument made below that the requirements of § 85-9-306(5)(a) were not met because money was not still owing. We note initially that the trustee’s argument on appeal presupposes that GECC did not perfect its lien on the mobile home. The record reveals that GECC noted its lien on the certificate of title of the mobile home in accordance with Arkansas law. Our review of Arkansas law indicates that a notation of the lien on the certificate of title is the correct means of perfecting a security interest in the mobile home. Ark. Stat.Ann. §§ 75-102, 132.1, 160, 161 (1979). Thus, even if we accepted the trustee’s argument about which security interest GECC can claim, the trustee would not prevail because GECC has a perfected security interest superior to the trustee’s lien under either the inventory or the chattel paper approach. We do not decide the case on this basis, however, because it appears that the issue of whether GECC properly perfected its lien on the mobile home was not directly presented to or decided by the district court. There are three critical stages of time which affect the type of security interest or interests GECC has. They are (1) before the sale, (2) after the sale, and (3) after repossession. Before the sale a purchase money lender has a perfected security interest in the collateral (the mobile home), if he has duly filed. After the sale the perfected security interest of the purchase money lender continues only in the proceeds, if he consented to the sale. This is the result of § 85-9-306(2). By virtue of his prior filing the purchase money lender has no perfected security interest against the collateral in the hands of the buyer. The purchase money lender, however, can acquire an after sale security interest in the collateral, if the chattel paper is assigned and, as in the present case, the lien is noted on the certificate of title. Thus, after the sale a purchase money lender can have two perfected security interests: one against the seller for the proceeds arising out of the inventory financial agreement and another against the buyer for the collateral arising out of the assignment of the chattel paper. The third stage is entered only upon default by the buyer. If the seller repossesses the property, then under § 85-9-306(5)(a) the purchase money lender’s pri- or perfected security interest in the collateral reattaches and is considered as if it were in effect continuously. In other words, the perfected security interests shifts from collateral to proceeds upon the sale and back again from proceeds to collateral automatically upon repossession. The one condition of § 85-9-309(5)(a) is that “the goods were collateral at the time of sale, for an indebtedness of the seller which is still unpaid .... ” In the present case GECC initially had a perfected security interest in the collateral arising from the inventory financial agreement. After Frontier sold the mobile home, GECC continued to have a perfected security interest against the seller (Frontier) in the proceeds of the sale by the operation of § 85-9-306(2). GECC also acquired a perfected security interest against the buyer (the Craigs) in the collateral by virtue of the assignment of the chattel paper and the notation of the lien on the certificate of title. Thus, the trustee correctly asserts that GECC has two distinct security interests, but fails to distinguish GECC’s chattel paper security against the buyer for the collateral from its inventory security interest against the seller for the proceeds. The trustee confuses the two security interests and treats them as interchangeable. Using this erroneous characterization, the trustee argues that the chattel paper security interest supersedes the inventory security interest and that, upon repossession, GECC cannot avail itself of § 85-9-306(5)(a), but stands against the seller with only the chattel paper security interest. We disagree. An analogous case strongly implies that the acquisition of an after the sale security interest in the collateral is not an abdication of the pre-existing purchase money security interest or of the benefits of § 85-9-306(5)(a). In In re Mid State Wood Products Co., 323 F.Supp. 853 (N.D.Ill.1971), a purchase money lender had a perfected security interest in the proceeds of the sale of inventory under the operation of sections 9-306(a) and 9-312(3) of the U.C.C. Subsequently, the purchase money lender acquired an assignment of future accounts to further safeguard its credit advances for the purchase of inventory. The district court held that such an action was not an abdication of the priorities under the preexisting perfected security interest. The district court viewed the assignment as supplementing and not supplanting the pre-ex-isting purchase money security interest. 323 F.Supp. at 856. We find this reasoning persuasive. GECC’s chattel paper security interest supplemented and did not supplant its inventory security interest; GECC did not abdicate or subrogate its inventory security interest to the chattel paper security interest. Not content with a security interest in the proceeds, GECC also wanted the added protection of acquiring an after the sale security interest in the collateral. Thus, under § 85-9-306(5)(a), GECC’s perfected security interest in the collateral prior to the sale reattached upon repossession and is viewed as being effective continuously, provided the condition of money still being owed is met. The district court’s reasoning that this requirement was met is sound. It reasoned that despite the assignment of the chattel paper, Frontier was still obligated to GECC for the outstanding balance on the debt in the event of the purchaser’s default. Accordingly, the judgment of the district court is affirmed. . The Honorable William R. Overton, United States District Judge for the Eastern District of Arkansas. . The original mobile home was destroyed by a tornado. With the insurance proceeds a replacement was purchased. The replacement was substituted for the original on all financial agreements, including the notation of GECC’s lien on the new title. Thus the substitution does not affect the outcome of this case. . Ark.Stat.Ann. § 85-9-306(2) (Supp.1979) provides: (2) Except where this Article (chapter) otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor. A security interest in farm products shall not be considered waived nor shall authority sell, exchange, or otherwise dispose of farm products be implied or otherwise result from any course of dealing between the parties or by any trade usage. . Ark.Stat.Ann. § 85-9-306(5)(a) (Supp.1979) provides: (5) If a sale of goods results in an account or chattel paper which is transferred by the seller to a secured party, and if the goods are returned to or are repossessed by the seller or the secured party, the following rules determine priorities: (a) If the goods were collateral at the time of sale, for an indebtedness of the seller which is still unpaid, the original security interest attaches again to the goods and continues as a perfected security interest if it was perfected at the time when the goods were sold. If the security interest was originally perfected by a filing which is still effective, nothing further is required to continue the perfected status; in any other case, the secured party must take possession of the returned or repossessed goods or must file. . Although not considering this exact argument, the comments to the Arkansas U.C.C. oppose the trustee’s position: 4. Subsection (5) states rules to determine priorities when collateral which has been sold is returned to the debtor: for example goods returned to a department store by a dissatisfied customer. The most typical problems involve sale and return of inventory, but the subsection can also apply to equipment. Under the rule of Benedict v. Ratner, failure to segregate such returned goods sometimes led to invalidation of the entire security arrangement. This Article rejects the Benedict v. Ratner line of cases (see Section 9-205 and Comment). Subsection (5)(a) of this Section reinforces the rule of Section 9-205: as between secured party and debtor (and debtor’s trustee in bankruptcy) the original security interest continues on the returned goods. Whether or not the security interest in the returned goods is perfected depends upon factors stated in the text. Ark.Stat.Ann. § 85-9-306(5)(a), comment 4 (1961).

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

Olivero BUSTAMANTE, Plaintiff-Appellee, v. The CARBORUNDUM COMPANY, Defendant-Appellant. No. 15420. United States Court of Appeals Seventh Circuit. March 22, 1967. Rehearing Denied April 21, 1967. Albert F. Manion, L. H. Vogel, Chicago, 111., David F. Holland, Chicago, 111., of counsel, for defendant-appellant. James P. Chapman, Philip H. Corboy, Donald Lipman, Chicago, 111., for plaintiff-appellee. Before HASTINGS, Chief Judge, and CASTLE and FAIRCHILD, Circuit Judges. HASTINGS, Chief Judge. Appellee, Olivero Bustamante, instituted a diversity tort action in the district court against the Indiana Harbor Belt Railroad Company, his employer, and the Carborundum Company, to recover damages for personal injuries he sustained in the course of his employment by the railroad while using a product manufactured by Carborundum. Bustamante’s complaint alleged three alternate causes of action. The first, against the railroad company, was settled before trial, the railroad agreeing to pay Bustamante $20,000 upon a covenant not to sue. The second count alleged that Carborundum failed to test its product, a grinding wheel, properly and that Carborundum negligently manufactured it. The third count alleged that Carborundum had breached implied warranties of merchantability and reasonable fitness and that such breach was the proximate cause of Bustamante’s injuries. The ease was submitted to the jury under both causes of action, and the jury returned a verdict against Carborundum in the amount of $25,000 (later reduced to $5,000 on motion of Carborundum.) Carborundum has appealed from the judgment on the verdict in favor of Bustamante and from the denial of its post-trial motions. Bustamante was employed by the railroad in one of its roundhouses as a grinding machine operator. On October 24, 1961, in the course of his work, he installed a new grinding wheel, manufactured by Carborundum, on his portable grinding machine. The grinding wheel consisted of an eight inch circular steel plate to which an abrasive flat cylinder two inches thick had been bonded by a resin cement. This was attached to the grinding machine by a spindle passing through the center of the wheel. A protective cover, which exposed only the abrasive face of the wheel, was mounted over the wheel. When using the grinding machine to grind the railroad frog, or track crossover, on which he was working, Busta-mante stood astride the frog, bent over at the waist with both hands grasping the protective cover, and moved the grinder horizontally along the frog. With the grinder in this position, the grinding wheel was shielded from Busta-mante by the protective cover. On the day following his installation of the new grinding wheel on his grinder, Bustamante continued to work on the frog. After he had operated the grinder normally for one-half hour, the wheel disintegrated, and a fragment from it seriously injured his arm. The cause of the disintegration of the wheel was an issue at the trial. Under Bustamante’s theory of the case, because of a defect in the wheel, either a fragment broke off the wheel as it was being used, causing an imbalance and further disintegration or the wheel disintegrated spontaneously due to an insufficient or weak bond fixing it to its steel plate. Carborundum attempted to show that its wheel was safely constructed and properly tested and that the cause of the breakage was not due to defective construction of the wheel. An inference to be drawn .from its position was that Bustamante had dropped or misused the grinder, thus causing the breakage himself. Bustamante, however, denied this unequivocally, and no witness could relate whether or not the grinder had been dropped or misused before the accident. On appeal, Carborundum contends there was no evidence to prove a causal relationship between the alleged defect in the grinding wheel and Bustamante’s injury and that there was no evidence to prove Carborundum had failed to test the grinding wheel properly or that it was not reasonably fit for its intended use. It is further asserted that the trial court erred in submitting the case to the jury under a theory of res ipsa loquitur, in allowing Bustamante’s breach of warranty claims to be submitted to the jury, in overruling objections to hypothetical questions and in limiting cross-examination. Finally, it is contended that the verdict of the jury was contrary to the manifest weight of the evidence. Carborundum urges that, because of a failure to prove a causal relationship, the trial court committed error in submitting to the jury Bustamante’s allegations of specific negligence regarding testing and fitness of the wheel for its intended use. There was testimony that the phenolic resin used to bond the abrasive wheel to the steel plate backing it was applied to the plate manually, by a spatula. When manufacture of a wheel was completed, Carborundum tested it for weakness and poor adhesion by mounting the wheel on a machine similar to that on which it was intended for use. The wheel was then operated at a speed fifty per cent higher than it would be operated at by a purchaser. Carborundum’s expert testified that the rotational forces created by this test were far in excess of those existing in the instant case. He further testified that as the grinding wheel is consumed in use, the forces normally acting on it decrease. His examination of the fragments of the wheel in the instant case indicated to him that the initial fracture in the wheel took place through the abrasive material itself. The fracture pattern — two diametrical cracks perpendicular to each other, separating the abrasive material into four nearly equally sized pieces — indicated that the wheel had disintegrated at once, that is, no single fragment broke off the wheel first, but the major fragments separated from the wheel at the same time. He was of the opinion that, under the facts of the instant ease, some force other than those created in the normal use of the wheel caused the wheel to break. Professor Kalpakjian, one of Busta-mante's experts, testified, in effect, that the bonding agent holding the wheel to the steel plate was not of uniform distribution and strength. This raised the possibility that, if the bond were insufficiently strong, the grinding wheel as a whole might separate from the steel plate when the grinder was being used. Professor Kalpakjian further testified as to a simple test, tapping on the back of the plate, after the wheel had been bonded to it, in order to discover a difference in sound, whereby separation between the grinding wheel and the plate might have been indicated. From this brief recital, it can be seen that there was an impasse in the evidence. Bustamante’s evidence showed no fault on his part and pointed to Carborundum’s manufacture as the cause. Carborundum’s evidence disclosed no specific fault on its part and pointed to a cause external to the wheel itself. This factual uncertainty is committed to the jury to resolve. The testimony of Professor Kalpakjian, together with the absence of evidence of misuse or negligence on the part of Bustamante or a third party, created a basis from which a jury could infer, without speculation, a cause of the disintegration of the wheel, that is, an inadequacy of the bond, and Carborundum’s responsibility for it. We cannot say that the evidence in the record, together with all reasonable inferences to be drawn from it, failed to justify submission of the case to the jury. Cf. Reitan v. Travelers Indemnity Company, 7 Cir., 267 F.2d 66 (1959). With respect to the question of res ipsa loquitur, it is true that formerly in Illinois res ipsa loquitur was held inapplicable in cases in which the instrumentality or agency of injury was not exclusively in the possession or control of the defendant. Further, it has been the rule in Illinois that injury and control being shown, res ipsa loquitur created a rebuttable presumption of negligence which vanished when any evidence, such as manufacturing procedure, was presented which tended to exculpate the defendant. However, the recent case of May v. Columbian Rope Co., 40 Ill. App.2d 264, 189 N.E.2d 394, (1963) recognizes and establishes a less restrictive doctrine of res ipsa loquitur than formerly obtained. Under May, a possession or control of the injuring instrumentality or agency intervening between that of the manufacturer and the occurrence of the injury does not preclude the application of res ipsa loquitur in Illinois, unless the length or character of the intervening control indicates that the defect probably did not exist when the manufacturer parted with control. May, supra, at 271-273, 189 N.E.2d 394. As stated by the court: “The demonstrable trend of these authorities is to determine from the nature of the defective instrumentality and the surrounding circumstances whether the inference of the defendant’s negligence is strong enough to survive the fact that, between the defendant’s control and the plaintiff’s injury, another possession intervened. If a reasonable inference of negligence does survive, liability has been imposed.” May, supra, at 271, 189 N.E.2d at 397. The facts of intervening control and possession are jury questions, and it is for the jury to further determine whether the permissive inference of negligence arising from those facts is to prevail over a defendant’s countervailing proof of due care. May, supra, at 274-275, 189 N.E.2d 394. Thus, the doctrine of res ipsa loquitur was not inapplicable in the instant case, and, notwithstanding Carborundum’s evidence of due care, the jury was entitled to infer negligence from the facts. Carborundum states that Bustamante’s claim for breach of warranty should not have been submitted to the jury. Citing Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275 (1956), Carborundum asserts that in Illinois, an action for breach of implied warranty is an action sounding in contract, which may be maintained only by a party in privity to the contract of sale. The cited case plainly does not hold this. It does state that actions for breach of express warranties are ex contractu, Harris, supra, at 39, 139 N.E.2d 275, but actions for breach of implied warranties of fitness are not so treated. On the contrary, in a case in which it was held that the trial court was in error in striking negligence counts based on the theory of implied warranty, the Illinois court stated the rule that: “A product that is inherently dangerous or defectively made constitutes an exception to the requirement of privity in an action between the user of the product and its manufacturer.” Suvada v. White Motor Co., 51 Ill.App.2d 318, 325-326, 201 N.E.2d 313, 318 (1964), aff’d 32 Ill.2d 612, 210 N.E.2d 182 (1965). See Brandenburg v. Weaver Mfg. Co., 77 Ill.App.2d 374, 222 N.E.2d 348 (1966). We hold that under Illinois law, the trial court did not err in submitting to the jury the claim for breach of implied warranty. We have examined Carborundum’s contentions respecting the overruling of its objections to certain hypothetical questions and the limiting of its cross-examination of Bustamante’s experts. We find no merit in these contentions. Nor do we find any merit in the final contention that the verdict of the jury was contrary to the manifest weight of the evidence. The cause of the accident having been put in issue, and evidence having been introduced on the issue, it was for the jury to find the facts. The jury verdict is not contrary to the manifest weight of the evidence considered as a whole. The judgment appealed from 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 "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?

CENTRAL FIBRE PRODUCTS CO. et al. v. HARDIN et al. No. 7558. Circuit Court of Appeals, Fifth Circuit. March 20, 1936. Rehearing Denied April 16, 1936. Charles Kassel, and B. E. Godfrey, both of Fort Worth, Tex., for appellants. C. O. McMillan, of Stephenville, Tex., and Sam Billingsley, of Fort Worth, Tex., for appellees. Before FOSTER and SIBLEY, Circuit Judges, and DAWKINS, District Judge, FOSTER, Circuit Judge, Appellants are creditors who filed a petition for involuntary bankruptcy against H. H. Hardin and other creditors who thereafter intervened. The petition was filed on November 10, 1932. In addition necessary jurisdictional allegations and description of the various debts, the petition, in substance, alleges: That Ilar¿¡n while insolvent committed the following acts of bankruptcy: (1) A receiver was appomted and put in charge of his properly> °n thc 28th day °* 1932 5 ^ Üiat the sald f veTrTshlP wa* fought about Poured by Hardin and had the effect of a general assignment for the beneflt of hls creditors; (3) that he concealed or removed a part of his property with the intention to hinder, delay, or defraud his creditors; (4) that he had permitted creditors to obtain a preference by legal proceedings and did not within 30 days from the date of the judgment vacate such judgment. The iast tw0 acts 0f bankruptcy charged are based on the following allegations of fac¿. Hardin’s wife died, and her wd2, ]eaving him the bulk of her undivided share of the community property, was probated. On August 2, 1932, his three children flled a proceeding to set aside the probate of the will. Hardin made no defense and on the contrary gave evidence m supPort of the clalm of bis children, with the result that a decree revoking the order of probate and setting aside the will was entered- , The effcct of ,sald decree was to place the title to one-half of Hardin s estate in the names of his children who were also creditors. This proceeding was collusive, and although more than two months had elapsed since the entry of the decree annulling the will, Hardin had taken no aPfeal fr°m the j?d£ment a“d bad permitted rt to become final as to him. ^ Hardin answered denying insolvency and praying for trial by jury. At the close of the evidence the petitioning creditors moved for a directed verdict, which was denied. The question of insolvency was submitted to the jury and resulted in a verdict that Hardin was not insolvent on the following dates: July 28, 1932, August 2, 1932, August 19, 1932, and November 10, 1932. The petitioning creditors moved for judgment non obstante veredicto, adjudging Hardin a bankrupt, which motion was denied. A motion for a new trial was also overruled. This appeal followed. Error is assigned to the actions of the court above set out. • It appears that Hardin was a man past 79 years of age and was engaged in the wholesale and retail lumber business, owning and operating some 28 or 29 yards in various towns of Texas. He also owned ranches. He was estimated to be worth over $1,500,000. His business was not incorporated and he had no partner. He testified, in substance, that the reason he made no objection to the setting aside of the probate of his wife’s will was he had intended giving his children their mother’s share of the community. Later he found out from them that it was their intention to withdraw the property from the reach of his creditors, so far as the law would permit. He objected to that, and for the purpose of preserving his property for all creditors and to prevent its being sacrificed by forced sales at the instance of some creditors who had filed suits, he made no objection and assisted in the appointment of a receiver. The receiver appealed from the judgment of the probate court annulling the will and it was reversed. The question of insolvency was submitted to the jury on conflicting evidence, which we need not review further than to say that there was substantial evidence before the jury tending to show that Hardin’s assets at a fair valuation exceeded his debts. It was not error to deny the motion for a directed verdict. The bill for the appointment of a receiver was in aid of the foreclosure of a mortgage and alleged solvency of Hardin but that his lands were burdened with liens and a receiver was necéssary to prevent waste. The appointment of a receiver is not an act of bankruptcy unless on the ground of insolvency or the debtor is insolvent, Manufacturers’ Finance Co. v. McKey, 294 U.S. 442, 55 S.Ct. 444, 79 L.Ed. 982, and insolvency is an essential prerequisite to an adjudication on the ground that the debtor had suffered or permitted a preference to be created through legal proceedings. Citizens’ Banking Co. v. Ravenna Bank, 234 U.S. 360, 34 S.Ct. 806, 58 L.Ed. 1352. The verdict of the jury disposed of these two grounds urged for the adjudication of bankruptcy adversely to the contentions of the appellants. We need not further discuss them. A verdict of the jury in a bankruptcy case has the same effect as a verdict in a law case and the District Court was without authority to enter judgment non obstante veredicto on these two grounds. C. Elliott & Co. v. Toeppner, 187 U.S. 327, 23 S.Ct. 133, 47 L.Ed. 200. It was not essential to show insolvency of the debtor in charging that he had made a general assignment for the benefit of his creditors or had transferre'd his property with intent to hinder, delay, or defraud his creditors. George M. West Co. v. Lea Bros., 174 U.S. 590, 19 S.Ct. 836, 43 L.Ed. 1098. However, on the second ground it was necessary to show that Hardin intended to hinder, delay, or defraud his creditors Wilson Bros. v. Nelson, 183 U.S. 191, 22 S.Ct. 74, 46 L.Ed. 147. Not only was this not shown, but it is apparent there was no transfer of tangible property at all. Any rights the children would receive by the annulment of the will would vest in them by force of law as the heirs of their mother. Neither a judgment annulling the will nór an actual transfer of the property could defraud the creditors. Their mother’s estate consisted of only community property and they would take it cum onerej charged with the community debts. Article 3661, Vernon’s Ann.Civ.St. Tex.; American Nat. Bank v. First Nat. Bank, 52 Tex.Civ.App. 519, 114 S.W. 176; Sargeant v. Sargeant, 118 Tex. 343, 15 S.W.(2d) 589; Clemmons v. McDowell (Tex.Com.App.) 12 S.W.(2d) 955; Stone v. Jackson, 109 Tex. 385, 210 S.W. 953. A “general assignment for the benefit of creditors” may be briefly defined as a transfer by a debtor of the legal and equitable title to all his property to a trustee, with authority to liquidate his affairs and distribute the proceeds equitably to his creditors. United States v. Middle States Oil Corporation (C.C.A.) 18 F.(2d) 231, 57 A.L.R. 848. The Bankruptcy Act of 1898 as originally adopted (30 Stat. 546, § 3) did not make the appointment of a receiver an act of bankruptcy. That was added by the amendment of 1903 (32 Stat. 797, § 2 [see 11 U.S.C.A. § 21]). Prior thereto it was frequently sought to procure an adjudication in bankruptcy on the ground that a receivership amounted to a general assignment. In the leading case of Vaccaro v. Security Bank (C.C.A.) 103 F. 436, opinion by the late Mr. Justice Lurton, the question was fully discussed and it was held that an ordinary receivership, although consented to, did not have that effect. See, also, In re Empire Metallic Bedstead Co. (C.C.A.) 98 F. 981. There are other decisions to the same effect by district courts, which it is unnecessary to cite. After the amendment of 1903 it was held by the Court of Appeals for the Second Circuit that it was no longer necessary to consider whether a receivership amounted to a general assignment since the appointment of a receiver was of itself an act of bankruptcy. In re Burrell (C.C.A.) 123 F. 414. We are not aware of any case decided since then in which it has been held that the appointment of a receiver by consent was in fact a general assignment for the benefit of creditors for the purpose of adjudicating the debtor bankrupt. Appellants rely upon the following cases: United States v. Butterworth-Judson Corporation, 269 U.S. 504, 46 S.Ct. 179, 70 L.Ed. 380, and Davis v. Miller-Link Lumber Co. (C.C.A.) 296 F. 649. In each of them the question presented was whether the United States was entitled to priority of payment under the provisions of section 3466, Revised Statutes (31 U.S.C.A. § 191). Had an adjudication in bankruptcy been sought, it would have been unnecessary to consider whether the receivership was a general assignment. We do not think these and similar cases are in point. Aside from that it is apparent that the receivership in this case was not intended to have and did not have the effect of a general assignment. The receiver was given broad powers of administration, but he was not authorized to liquidate the property in whole nor to pay ordinary creditors. It appears that during the trial Hardin suffered an attack of illness and was compelled to leave the courtroom and receive medical attention in a nearby office. One of the grounds for a new trial was that Hardin’s apparent illness then became known to the jury and had a tendency to influence them in bringing in a verdict of solvency. The District Court gave careful consideration to this question and received the testimony of some of the jurors. It was conclusively shown that the incident was not discussed by the jury and did not influence the individual jurors who knew about it. We find no abuse of discretion in overruling the motion for a new trial. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917, and City of Amarillo v. Emery (C.C.A.) 69 F.(2d) 626, relied upon by appellants, have no application in this case. Other objections which, although not clearly stated, may be inferred from the lengthy assignment of errors, that occupies some 20 pages of printed transcript, are clearly without merit and require no discussion. The record presents no reversible error. Affirmed.

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

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

CHASE v. ORMSBY et al. No. 4864. Circuit Court of Appeals, Third Circuit. April 7, 1933. Edward J. Fox, of Easton, Pa., for appellant. C. Brewster Rhoads and Laurence H. El-dredge, both of Philadelphia, Pa. (Montgomery & McCracken, of Philadelphia, Pa., of counsel), for appellees. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. DAVIS, Circuit Judge. This is an appeal from an order of the District Court refusing to take off a compulsory nonsuit. The plaintiff, Louise Chase, a resident of St. Louis, was, on October 17, 1925, temporarily residing in New York City in an apartment house which belonged to Frank G. Orms-by, who was then living at Easton, Pa., and was a resident and citizen of that commonwealth and remained so until his death. On the morning of October 17, 1925, the plaintiff and her mother entered the elevator of the apartment house and the elevator suddenly fell from the fifth floor to the basement. Her mother was killed and the plaintiff was seriously injured. She spent about a year and a half in hospitals. For six months she was in a plaster cast. One limb was so badly injured that it had to be amputated and the other was ruined for life. This suit was brought in the Eastern District of Pennsylvania, where Ormsby resided, against the executors of his estate, to recover damages for the injuries which the plaintiff received in the fall of the elevator, which she alleges was due to the negligence of their testator. The injuries were received on October 17, '1925. Ormsby died in Easton on June 14, 1926, and suit was brought against his executors in the Eastern District of Pennsylvania on March 17,1927, within two years after the accident. An affidavit of defense was filed in which it was averred that the death of Orms-by abated the action under the law of New York and that the suit could not be brought and maintained against his executors in Pennsylvania. A question was thus raised under the Pennsylvania pleading in the nature of a demurrer. In Pennsylvania a suit may be brought under the statute against the executors of a tort-feasor’s estate. A stipulation was entered into by counsel whereby they submitted to the court the question of the right of plaintiff to maintain her action in Pennsylvania. The court in an opinion (3 F. Supp.' 680) indicated that the action could not be maintained but said that the question had not been properly raised and suggested that the ease be tried to the court and jury. Subsequently a jury was called for the trial of the ease and at the trial the plaintiff offered to prove the above facts, but the court sustained an objection to the offer and entered a compulsory nonsuit which it refused to take off and thereupon the plaintiff appealed. Passing by minor contentions in the ease, the real question is whether or not the cause of action under the above facts survived in Pennsylvania and could be prosecuted against the executors of Ormsby’s estate. The general rule of law declared in both text-books and decisions is that substantive rights axe determined by the law of the place where the tort was committed, the lex loci delicti commissi, but remedial rights, the rules regulating the machinery by which substantive rights are established, are determined by the law of the place where those rights are sought to be enforced, the lex fori. Treatise on Conflict of Laws by Beale, p. 165; Goodrich on Conflict of Laws, p. 158; Slater v. Mexican National R. R., 194 U. S. 121, 126, 24 S. Ct. 581, 48 L. Ed. 900; Davis v. Mills, 194 U. S. 451, 24 S. Ct. 692, 48 L. Ed. 1067; Spokane, etc., R. R. v. Whitley, 237 U. S. 487, 35 S. Ct. 655, 59 L. Ed. 1060, L. R. A. 1915F, 736. The allegations of negligence in the complaint are assumed to be true. When the elevator fell and the plaintiff was negligently injured a cause of action arose. This invested the plaintiff with a property right and gave her the right to sue and at the same time it subjected the tortfeasor to the liability of being sued. The state of New York could not confine the cause of action within its own borders nor prescribe the court in which the right should be enforced, nor define the procedure therefor. Tennessee Coal, Iron & Railroad Co. v. George, 233 U. S. 354, 34 S. Ct. 587, 58 L. Ed. 997, L. R. A. 1916D, 685. The action was transitory, and wherever Ormsby went, this liability went with him-and attached to him personally until the moment of his death. When Ormsby died, did the cause of action die with him, or did it survive and the liability to be sued pass over to his executors ? This question depends upon whether it is to be determined by the laws of the state of New York, where the tort was committed, or by the laws of the state of Pennsylvania, where Ormsby lived and died and where suit was brought. In New York, the death of Ormsby abated the action, but in Pennsylvania it survived. The Act of March 30, 1921, P. L. 255, § 1, amending P. L. 1917, p. 447, § 35 (b), 20 PS § 772', provides that: “Executors * * * shall be liable to be sued, either alone or jointly with other defendants, in any such action, except as aforesaid, which might have been maintained against such decedent if he had lived.” If Ormsby had lived admittedly this suit might' have been brought and maintained against him. All the authorities agree that survivability of a cause of action is a property right and not a question of procedure. State Legislatures have absolute dominion over the property or estate of dead men and determine what causes of action survive and what abate with their death. Whether or not a cause of action survives is, therefore, determined by the laws of the state where the action is brought and not by the laws of the state in which the injury was inflicted. The right to revive an action in a federal court is made by the United States statute to depend upon its survivability. Whether or not it survives will be determined by the federal court in accordance with the laws of the state where the action is brought. This rule of law is supported by the cases discussed below. In the case of Martin v. Wabash Railway Co., 142 F. 650, 6 Ann. Cas. 582, Judge Grosseup, speaking for the Circuit Court of Appeals for the Seventh Circuit, said: “Whether a cause of action survived by law is not a question of procedure, but of right, and is determinable, when the action is one arising at common law, not by the law of the state where it arose, but by the law of' the state where the action is brought.” In that case Martin lived in Illinois and brought suit in that state against the Wabash Railway Company, a corporation of Ohio, to recover damages for personal injuries received by him in Indiana. After judgment in the District Court and while the ease was pending in the Circuit Court of Appeals, Martin died. The statute of Illinois (Smith-Hurd Rev. St. 1931, c. 3, § 123) provides that, “in addition to the actions which survive by the common law, the following shall also survive: Actions of re-plevin, actions to recover damages for an injury to the person.” Under the law of Indiana, the cause of action died with the plaintiff, just as, in the case at bar, it died in New York with Ormsby; but the court held that whether or not the cause of action survived depended upon the law of Illinois where the action was brought, not upon that of Indiana, where it abated and so the action was maintained. In Page v. United Fruit Co. (C. C. A.) 3 F.(2d) 747, 754, one Michael B. Ryan, a citizen of Connecticut, was injured by the defendant, United Fruit Company, in Costa Rica. Suit to recover damages was brought by Ryan in the district of Massachusetts. After verdict and while the case was pending in the Circuit Court of Appeals for the First Circuit, plaintiff died, and Page was substituted for him as plaintiff. It was contended on application for a rehearing that under the law of Costa Rica the cause of action did not survive and that the substituted plaintiff was improperly admitted to prosecute the cause. In reply to this contention, the Circuit Court of Appeals said: “The right to revive the action is not affected by the fact that the plaintiff received his injuries in Costa Rica. The action having been brought in the Massachusetts district, the right to revive it is governed by the law of Massachusetts, not by that of Costa Rica.” In the case of Martin’s Administrator v. Baltimore & Ohio Railroad, 151 U. S. 673, 14 S. Ct. 533, 545, 38 L. Ed. 311, the plaintiff brought suit against the Baltimore & Ohio Railroad Company in the state of West Virginia for injuries received by him in the state of Maryland. The suit was tried and a verdict was rendered-against Martin and for the defendant. The plaintiff appealed. Before the appeal was heard Martin died. In Maryland, a tort action does not abate with the death of the plaintiff. It survives for the benefit of his next of kin or personal representatives. But in the state of West Virginia, where the suit was brought, an action for personal injuries abates with the death of the person injured. The question at issue was whether or not Martin’s administrator could maintain the action. This depended upon whether the survival of the cause of action was to be determined by the laws of Maryland or West Virginia. The court held that when the cause of action does not arise under a law of the United States, its survival depends upon the law of the state where the suit is brought and not upon the law of the state where the injury was received, and so dismissed the writ of error. After citing and analyzing many eases it said: “The result is that by the law of Virginia the administrator has no right to maintain this action, and that by the statutes of the United States regulating the proceedings in this court he is not authorized to come in to prosecute this writ of error. The only verdict and judgment below were in favor of the defendant, who is not moving to have that judgment affirmed or set aside. The original plaintiff never recovered a verdict, judgment upon which might be entered or affirmed nunc pro tune in his favor. If the judgment below against him should now, upon the application of his administrator, be reversed, and the verdict set aside, for error in the instructions to the jury, or, according to the old phrase, a venire de novo be awarded, no new trial could be had, because the action has abated by his death.” The court discussed many cases on survival of actions. The substance of the discussion is tersely summed up in the syllabus as follows: “The question, whether a cause of action survives to the personal representative of a deceased person, is a question not of procedure, but of right; and, when the cause of action does not arise under a law of the United States, depends upon the law of the State in which the suit is brought.” In Baltimore & Ohio Railroad Co. v. Joy, 173 U. S. 226, 19 S. Ct. 387, 388, 43 L. Ed. 677, one John A. Hervey, a citizen of the state of Ohio, was injured at Albian, Ind., in a collision caused by the negligence of the railroad company. He brought suit in the common pleas court of Hancock county, Ohio, to recover damages for the personal injuries which he had thus received. The railroad company removed the case into the federal court. Thereafter Hervey died and the action was revived in the name of his administrator, Joy, over the objection of the railroad company. At the time of Hervey’s death, section 5144 of the Revised Statutes of Ohio (Rev. St. Ohio 1890) provided that “no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto.” On the other hand, the statute of Indiana (Burns’ Ann. St. Ind. 1894, § 283) provided that, “a cause of action arising out of an injury to the person dies with the per- 4 son of either party,” with exceptions here immaterial. It was contended by the railroad company that the cause of action abated with the death of Hervey in accordance with the provision of the statute of Indiana which created the cause of action and defined the rights of the plaintiff. The ease eventually reached the Circuit Court of Appeals for the Sixth Circuit, which certified the following question to the Supreme Court for its instruction: “Does an. action pending in the circuit court of the United States sitting in Ohio, brought by the injured person as plaintiff to recover damages for injuries sustained by the negligence of the defendant in Indiana, finally abate upon the death of the plaintiff, in view of the fact that, had no suit been brought at all, the cause of action would have abated both in Indiana and Ohio, and that, even if suit had been brought in Indiana, the action would have abated in that state?” The court answered the question in the negative and held that the right to revive was of substantial value, attached under the local law of Ohio when suit was brought, was pending at the death of Hervey, became inseparably connected with the cause of action so far as the laws of Ohio were concerned, and was not lost either upon the removal of the case into the federal court or the death of Hervey. It said: “Whether a pending action may be revived upon the death- of either party, and proceed to judgment, depends primarily upon the laws of the jurisdiction in which the action was commenced. * * * That the determination of the question of the right to revive this action in the name of Hervey’s personal representative is not affected in any degree by the fact that the deceased received his injuries in the state of Indiana. The action for such injuries was transitory in its nature, and the jurisdiction of the. Ohio court to take cognizance of it upon personal service or on the appearance of the defendant to the action cannot be doubted. Still less can it be doubted that the question of the revivor of actions brought in the courts of Ohio for personal injuries is governed by the laws of that state, rather than by the law of the state in which the injuries occurred.” In this last ease, the action survived because the Legislature" of Ohio had provided that it survived if it was “pending” at the time of the death of either party although it had abated in Indiana where the tort was committed. In the case at bar, the Legislature of Pennsylvania has provided that an action survives the death of the torbfeasor and may be maintained against his executors, if it could have been maintained against him if he had lived. The test of a survival of an action depends upon whether or not it comes within the terms of the statute in the state where suit is brought. In the Joy Case, supra, it was “pending” when Hervey died and was thus brought within the provisions of the statute; but in the ease of Martin’s Administrator v. Baltimore & Ohio Railroad, supra, it did not meet the requirements of the statute, for there was no statute providing for the survival of actions in West Virginia where the suit was brought and so the action abated with the death of Martin although it survived in Maryland where the injuries were received. In the instant case, suit could have been brought against Ormsby if he had lived. Therefore, it may be maintained against his executors for it complies with the requirements prescribed by the Legislature. It follows that the judgment must be reversed, and a venire facias de novo awarded.

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

Virgil ALESSI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 1260, Docket 79-2270. United States Court of Appeals, Second Circuit. Argued June 3, 1980. Decided Aug. 13, 1980. Petition for Rehearing En Banc Unanimously Denied October 2, 1980. Steven B. Duke, New Haven, Conn., for petitioner-appellant. Stephen F. Markstein, Asst. U.S. Atty., New York City (William M. Tendy, U.S. Atty., and Howard W. Goldstein, Asst. U.S. Atty., New York City, on the brief), for respondent-appellee. Before TIMBERS, Circuit Judge, and MISHLER and WILL , District Judges. Editor’s Note: The opinion of the United States Court of Appeals, Eighth Circuit in County National Bancorporation and TGB Co. v. Board of Governors of the Federal Reserve System, published in the advance sheets at this citation (628 F.2d 1133), was withdrawn from the bound volume because rehearing was granted. Hon. Jacob Mishler, Senior Judge, United States District Court for the Eastern District of New York, sitting by designation. Hon. Hubert L. Will, Senior Judge, United States District Court for the Northern District of Illinois, sitting by designation. TIMBERS, Circuit Judge: This appeal calls upon us for the fifth time to address claims arising out of two indictments charging appellant with various federal narcotics and tax offenses, and appellant’s guilty pleas thereto. E. g., Alessi v. United States, 593 F.2d 476 (2 Cir. 1979); United States v. Alessi, 544 F.2d 1139 (2 Cir.), cert. denied, 429 U.S. 960 (1976); United States v. Alessi, 536 F.2d 978 (2 Cir. 1976). Briefly, the instant appeal comes to us by the following route. In November 1976 appellant withdrew previously entered pleas of not guilty to charges contained in the two indictments mentioned above, and — in satisfaction of all charges against him — pled guilty to one count of a Southern District narcotics indictment and one count of an Eastern District tax indictment. In January 1977 Judge Bonsai sentenced appellant to thirteen years imprisonment on the narcotics count, to be followed by six years special parole; and two years imprisonment on the tax count. In May 1978 appellant filed two motions pursuant to 28 U.S.C. § 2255 (1976) to vacate the judgments of conviction entered upon his guilty pleas. In these motions, appellant primarily claimed that he did not understand the nature of the charges to which he pled guilty and that there was no factual basis for his pleas. Appellant’s motions were denied by Judge Bonsai and appellant appealed. On appeal, this Court upheld appellant’s claims regarding the tax count. We therefore directed the district court to vacate appellant’s conviction on the tax count and to grant appellant leave to replead to that count. With regard to the narcotics count, however, we concluded that “a hearing might develop both that Alessi had a full understanding of the charge and that there was a factual basis for the plea.” 593 F.2d at 481 (footnote omitted). We therefore remanded the case to the district court so that an evidentiary hearing could be held with respect to appellant’s claims that he lacked an understanding of the narcotics charge and that there was no factual basis for his guilty plea to that charge. We further directed that the hearing encompass appellant’s claim that he lacked an understanding of his liability for special parole. The evidentiary hearing mandated by this Court was held by Judge Bonsai in May 1979. At the conclusion of the hearing, Judge Bonsai found that appellant in fact did understand the charge to which he had pled guilty, that he understood his liability for special parole as a result of the plea, and that there existed a factual basis for the guilty plea on the narcotics count. Appellant then took the instant appeal attacking these findings. In view of the prior procedural history of this case — in particular, our most recent decision directing the district court to hold an evidentiary hearing on the validity of appellant’s plea — the issue before us today is a relatively narrow one: namely, did the district court err in reaching the factual findings described above and in concluding that appellant was not entitled to have his conviction vacated pursuant to § 2255? We hold that there was no error. At the outset, we note that much of the evidence presented to the district court consisted of witness testimony, including recollections of past events by appellant and his attorneys. Witness credibility, therefore, played a major role in the district court’s findings. The court expressly found that appellant’s testimony was lacking in credibility and was “tailored” to support his contentions. The court further found that the credible testimony at the hearing did not support appellant’s claims. Courts must be wary of overturning findings based on such determinations of credibility. E. g., Harned v. Henderson, 588 F.2d 12, 23 (2 Cir. 1978). We find no reason to depart from that salutary rule in this case. We believe that the evidence, both testimonial and non-testimonial, fully supports the district court’s findings. Ordinarily, the burden of proof in this type of proceeding rests upon the petitioner. Harned v. Henderson, supra, 588 F.2d at 22. Even if the burden were on the government in this proceeding, as appellant contends, we would affirm. With regard to the issue of appellant’s understanding of the narcotics charge, Nancy Rosner — appellant’s attorney at the time of the plea — and other attorneys with whom appellant was in contact testified that they had several discussions with appellant concerning various aspects of the government’s prosecution of appellant. Mrs. Rosner further testified that she normally kept her clients informed of the nature of charges against them and of the conduct of pretrial proceedings; it was also her practice to supply clients with copies of all papers filed on their behalf. Finally, despite appellant’s claims to the contrary, appellant’s own affidavit indicates that he in fact knew that he was being charged with distribution of narcotics in the Southern District of New York. Evidence at the hearing also demonstrated that appellant understood his liability for special parole. Appellant had stated at an earlier plea allocution that he understood special parole. Furthermore, one of appellant’s former attorneys testified that he had discussed special parole with appellant. Finally, considering appellant’s own admission that Mrs. Rosner had advised him under which statute he was going to plead guilty, it is reasonable to assume that she also informed him of the ramifications of pleading under that statute, including the effect of special parole. Finally, the district court did not err in concluding that there was a factual basis for the guilty plea. Appellant’s admission during the guilty plea allocution, the government’s bill of particulars, the testimony of appellant’s cohort, Manfredonia, during the trial of United States v. Panebianco (at which Judge Bonsai presided), and testimony by the Assistant United States Attorney who had been in charge of appellant’s prosecution provided a sufficient factual basis for appellant’s plea of guilty. This evidence established that appellant had given narcotics to Manfredonia, knowing that the latter intended to take the narcotics to the Southern District for distribution. We have carefully considered all of appellant’s remaining claims, including the claims that he was denied effective assistance of counsel, that he had not been informed of his fifth and sixth amendment rights, that this Court’s earlier decision to vacate appellant’s tax conviction automatically invalidated his narcotics conviction, and that the evidentiary hearing was unfair. Although there is substantial doubt that any of these claims are properly before us, we have examined appellant’s supporting arguments, and we hold the claims to be without merit. We find no error in the findings of fact and conclusions of law made by the district court. We affirm the order of the district court denying appellant’s § 2255 motion. 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?

John RUSIN and Irene Rusin, his wife, Plaintiffs-Appellees, v. GLENDALE OPTICAL COMPANY, INC., Defendant-Appellant. No. 85-1480. United States Court of Appeals, Sixth Circuit. Argued Sept. 26, 1986. Decided Nov. 20, 1986. Daniel S. Goldsmith (argued), Goldsmith Yaker & Goldsmith, Birmingham, Mich., for plaintiffs-appellees. Joseph F. Lucas, James S. Goulding (argued), Detroit, Mich., for defendant-appellant. Joseph S. Gill, Brickler & Eckler, Columbus, Ohio, amicus curiae, for Optical Laboratories Assn. Richard A. Steyer, Loomis, Owen, Fell-man & Howe, Washington, D.C., amicus curiae, for Optical Mfrs. Assn. Before LIVELY, Chief Judge, MERRITT, Circuit Judge, and TIMBERS, Senior Circuit Judge. Honorable William H. Timbers, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation. TIMBERS, Senior Circuit Judge. Appellant Glendale Optical Company, Inc. (“appellant”), a manufacturer of protective spectacles, appeals from a judgment entered on a jury verdict in the Eastern District of Michigan, George E. Woods, District Judge, awarding appellees John Rusin and his wife, Irene Rusin (collectively or singularly “appellee”) $1,846,294.78 compensatory damages and interest for injuries sustained by appellee when a fragment of a grinding wheel shattered the glass lens of the protective spectacles ap-pellee was wearing. Appellee’s theory of liability was that appellant breached its duty to warn appellee by not informing him of the superior impact resistance of plastic lenses over glass lenses. Appellant argues that it had no duty to warn appellee of the superior impact resistance of plastic lenses. Appellant also argues that it cannot be held liable for appellee’s injuries, since the lens that shattered was not manufactured by appellant. We hold, as a matter of law, that appellant had no duty to inform appel-lee of the superior impact resistance of plastic lenses. We reverse. I. We summarize only those facts believed necessary to an understanding of the issues raised on appeal. Appellee has worked as a journeyman diemaker for the Chrysler Corporation (“Chrysler”) since 1964. Appellant manufactures and sells protective eyewear. Appellant sells two types of protective spectacles to Chrysler for use in Chrysler’s various manufacturing plants. One type of spectacle contains tempered glass lenses and the other type contains polycarbonate plastic lenses. The major difference between the two types is that plastic lenses are more impact resistant than glass lenses, but plastic lenses scratch or haze more easily. It is undisputed that both types of appellant’s spectacles meet or exceed state and federal safety standards. Appellee was wearing a pair of appellant’s glass lensed spectacles on October 20, 1977 while he was undercutting die steel on a profile grinding machine at Chrysler’s Warren (Mich.) Stamping Plant. The grinding wheel shattered and a fragment of the wheel struck the left lens of appellee’s spectacles, shattered it and entered appellee’s eye. Appellee was left permanently blind in his left eye. The evidence at trial disclosed that, while the spectacles and lenses originally had been manufactured by appellant, the lens that shattered was a replacement glass lens manufactured by another company. The circumstances under which appellee came to be wearing appellant’s spectacles are significant to the resolution of this appeal. Chrysler maintains elaborate internal procedures for the evaluation and purchase of safety-related plant equipment. A nine member product safety committee is charged with evaluating and recommending products to be purchased. This committee, after viewing manufacturers’ presentations and performing its own safety tests, generates a list of approved products that are bulk ordered by Chrysler through competitive bidding. Appellant's sales representatives made various presentations to the committee concerning spectacles with both types of lenses. Appellant’s sales representatives, who were interested in creating a market for the more newly developed plastic lenses, testified that these presentations included discussions on the superior impact resistance of plastic lenses. A sales brochure given to Chrysler by appellant also emphasized the superior impact resistance of plastic lenses. By early 1977, the committee had approved both types of lenses and Chrysler had bulk ordered both types of spectacles from appellant. Once a product was bulk ordered, it was up to the individual plant safety supervisor to determine whether to stock it in the tool cribs at his plant. At the plant where appellee worked, the supervisor ordered only glass lensed spectacles for. the die shop. Appellant ships both types of spectacles to Chrysler in individual boxes. On each box there is a printed warning that states: “CAUTION These GLENSITE lenses are impact resistant but NOT unbreakable. Clean and inspect frequently. Pitted or scratched lenses reduce vision and seriously reduce protection. Replace immediately. Meets ANSI Z87.1-1968”. An identical warning is attached to one lens of each spectacle by means of a gummed label. When a box of spectacles arrives at the Warren plant, employees remove the spectacles from the box and remove the gummed warning label from the lens. The spectacles are then placed in plastic bags and deposited in the tool cribs where employees like appellee may pick them up. Appellee testified that on the day of the accident he took a pair of spectacles from the tool crib. He admitted that plant safety rules required him to wear a full-face plastic safety shield when grinding, but that he neglected to wear one that day. He testified that there were no warnings on the spectacles he used. The fact that the spectacles used by ap-pellee on the day of the accident contained a lens not manufactured by appellant is explained by Chrysler’s policy of periodically replacing lenses that become scratched. These replacement lenses are bulk ordered from a company other than appellant. The evidence indicates that the replacement glass lenses were substantially identical to appellant’s glass lenses in all material respects including impact resistance. Appellee commenced the instant action against appellant, the grinding machine manufacturer, and the grinding machine service company on October 11, 1979 in the Wayne County (Mich.) Circuit Court. The defendants removed the action to the federal court on diversity grounds on December 17, 1980. Discovery proceedings followed. Settlement negotiations between appellee and the grinding machine defendants resulted in a settlement of these claims. The remaining claims by appellee against appellant were tried to a jury from March 6 to March 11, 1985. Appellee’s theory at trial was that appellant had failed to warn appellee of the risks of using glass lensed spectacles as opposed to plastic lensed spectacles. More specifically, appellee claimed that appellant should have warned appellee of the superior impact resistance of plastic lenses. Appellee did not attempt to prove any other defect in the spectacles. Appellee’s liability theory sounded in both negligence and breach of implied warranty, a Michigan version of products liability law. The jury was instructed on both theories. In a special verdict, the jury found that appellant was liable for appellee’s injuries, but the jury’s answers to the special verdict questions did not indicate whether the jury found appellant negligent or in breach of its implied warranty. The jury also found that appellee’s own negligence was responsible for 25% of his injuries. The jury awarded the husband $1,000,000 in compensatory damages and his wife $375,-000 in compensatory damages. The court entered judgment on the jury’s verdict after reducing the damage award by 25% for appellee’s contributory negligence. The court also awarded appellee $815,044.78 in pre-judgment interest as provided by Michigan law. Mich.Stat.Ann. § 27A.6013 (Callaghan 1986). On May 22, 1985 the court denied appellant’s motion for a new trial or judgment n.o.v. Appellant has appealed from the judgment entered on the jury’s verdict and from the court’s denial of appellant’s post-trial motions. The principal issue raised on appeal — the one we find decisive — is whether appellant owed appellee a duty to warn of the superi- or impact resistance of plastic lenses over glass lenses. For the reasons stated below, we hold that under Michigan law and the facts of this case appellant was under no duty to warn appellee of the superior impact resistance of plastic lenses. II. Appellee’s theory of recovery at trial was that appellant’s failure to warn appellee of the difference in impact resistance between glass and plastic lenses breached appellant’s duty to warn appellee and caused appellee’s injuries. Appellee claimed that, had appellant warned him of the superior impact resistance of plastic lenses, he would have worn plastic lenses and avoided injury. Appellee did not attempt to prove that the spectacles were defective in design or manufacture. Appellee’s claim was in the alternative: on a negligence theory— that appellant’s failure to warn regarding the superior impact resistance of plastic lenses constituted simple negligence; or on a breach of implied warranty or products liability theory — that appellant’s failure to give such a warning created an unreasonably dangerous product. While it is unclear which theory the jury embraced and at oral argument before us appellee’s counsel was uncertain whether the case had been tried on a negligence theory, we hold that the Michigan courts would not have permitted recovery under either theory. Under either theory; it is the law of Michigan that no manufacturer may be held liable absent a showing of some duty owed the plaintiff and a breach of that duty resulting in the complained of injuries. In a failure to warn case, the Michigan courts have characterized the manufacturer’s obligation as the duty “to warn the purchasers or users of its product about dangers associated with intended use.” Antcliff v. State Employees Credit Union, 414 Mich. 624, 637, 327 N.W.2d 814, 820 (1982). The scope of this duty, whether styled in negligence prudent person language or products liability unreasonably dangerous product language, is “reasonable care under the circumstances.” Smith v. E.R. Squibb & Sons, 405 Mich. 79, 89, 273 N.W.2d 476, 470 (1979). More specifically, the Michigan Supreme Court has held that “[a] manufacturer’s liability to a purchaser or user of its product should be assessed with reference to whether its conduct, including the dissemination of information about the product, was reasonable under the circumstances.” Antcliff, supra, 414 Mich. at 630, 327 N.W.2d at 817. In Antcliff, the court considered whether an electric scaffolding manufacturer’s duty to warn extended to including rigging instructions with each scaffold. The court refused to adopt a bright line rule between instructions and warnings and stressed that the scope of a manufacturer’s duty to warn can be assessed only by what is reasonable in the particular circumstances. Id. The court held as a matter of law that, because the manufacturer sold its scaffolding to professional building contractors and because the plaintiff was a “journeyman painter”, the manufacturer owed no duty to “warn” the plaintiff on safe rigging instructions. 414 Mich, at 632-35, 327 N.W.2d at 818-19. It is our task to assess what duty appellant owed appellee under the particular circumstances of the instant case. The factual parallels to the Antcliff case are striking. Here, as in Antcliff, appellant is in the business of selling its products to professional users. Chrysler is a sophisticated user of protective eyewear independently skilled in the intricacies of protective spectacles. Also as in Antcliff, appellee is a journeyman diemaker of many years experience who must be charged with knowledge of safe grinding techniques. The similarity of these facts to the Antcliff facts strongly suggests that the scope of appellant’s duty to warn appellee is severly circumscribed. In Antcliff, the court held that under the circumstances of that case there was no duty to warn on the safe method of operation of the product. Here, we hold that under similar circumstances there was no duty to warn on alternative products and their varying characteristics. This is not a case in which the manufacturer’s conduct in any way misled the product user or otherwise heightened the manufacturer’s duty of care. See Antcliff, supra, 414 Mich, at 640 n. 10, 327 N.W.2d at 821 n. 10. Rather, appellant took virtually every step it could to ensure that Chrysler was fully aware of the differences between glass and plastic lenses. The record shows that appellant's sales representatives in their presentations to Chrysler stressed the enhanced impact resistance of plastic lenses. Moreover, appellant included two warnings on breakability with each pair of spectacles it sold to Chrysler. In view of Antcliff, we decline to hold that a manufacturer of protective spectacles who sells its product to a sophisticated, professional user like Chrysler has a duty to warn one of Chrysler’s highly skilled employees such as appellee of the availability of alternative products. As the Michigan Supreme Court recently stated: “Manufacturers are not insurers that ‘in every instance and under all circumstances no injury will result from the use’ of their products.” Owens v. Allis-Chalmers Corp., 414 Mich. 413, 432, 326 N.W.2d 372, 379 (1982), (quoting E.I. DuPont de Nemours & Co. v. Baridon, 73 F.2d 26, 30 (8th Cir.1934)). III. To summarize: We hold, as a matter of law, that appellant’s duty to warn appellee did not require appellant to inform appellee of the availability and impact resistance of plastic lenses. Under Michigan law a manufacturer’s duty to warn must be evaluated only in light of the particular circumstances of each case. When a manufacturer sells industrial safety equipment to a sophisticated employer for use by professional employees, that duty cannot be said to require a warning on the availability of alternative products. To hold otherwise would be to make appellant an absolute insurer of its products — something the Michigan courts do not permit. Consequently, we reverse the judgment of the district court and remand the case to that court with instructions to enter a judgment dismissing the action. REVERSED and REMANDED. . The first two questions of the special verdict state (jury's answers in italics); "QUESTION ONE: WAS THE DEFENDANT NEGLIGENT OR DID IT BREACH ITS IMPLIED WARRANTY? ANSWER: YES (YES or NO) QUESTION TWO: WAS THE DEFENDANTS NEGLIGENCE OR BREACH OF ITS IMPLIED WARRANTY A PROXIMATE CAUSE OF THE INJURY OR DAMAGE TO THE PLAINTIFF? ANSWER: YES (YES or NO)” . The court also held that “[i]t is well-settled law that the question of duty is to be resolved by the court rather than the jury." 414 Mich. at 640, 327 N.W.2d at 821. . In view of our holding on the scope of appellant's duty to warn, we find it neither necessary nor appropriate to address appellant’s claim based on the replacement of its lens with another manufacturer’s lens.

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

COUNCIL OF the SOUTHERN MOUNTAINS, INC., et al, Petitioners, v. Raymond J. DONOVAN, Secretary of Labor, Eckehard Muessig, Deputy Assistant Secretary of Labor, and Mine Safety and Health Administration, Respondents, American Mining Congress, Intervenor. No. 80-2536. United States Court of Appeals, District of Columbia Circuit. Argued March 25, 1981. Decided April 16, 1981. J. Davitt McAteer, Washington, D. C., of the bar of the Supreme Court of Illinois, Pro Hac Vice by special leave of Court, and Thomas B. Gumbel, Collinsville, 111., of the bar of the Supreme Court of W. Va., Pro Hac Vice by special leave of Court, with whom L. Thomas Galloway, Washington, D. C., was on the brief, for petitioners, Council of the Southern Mountains, Inc., et al. Betty Jean Hall, Jacksboro, Tenn., entered an appearance for petitioner Coal Employment Project. Michael A. McCord, Counsel, Dept, of Labor, Washington, D. C., with whom Cynthia L. Attwood, Acting Associate Sol., and Nancy S. Hyde, Atty., Dept, of Labor, Washington, D. C., were on the brief, for respondents. Anthony J. Thompson, Washington, D. C., with whom Edward A. McCabe, Robert W. Frantz, Henry Chajet and Michael F. Duffy, Washington, D. C., were on the brief, for intervenor. Before ROBB, WALD and GINSBURG, Circuit Judges. Opinion PER CURIAM. PER CURIAM: In November 1978, the Mine Safety and Health Administration (MSHA) of the Department of Labor issued final regulations requiring coal operators to equip all underground miners with self-contained self-rescuers (SCSRs) that will provide oxygen in the event of a mine explosion or fire. The regulations gave coal operators two years, until December 21, 1980, to order and supply the devices. Today we do not review either the propriety of the 1978 regulations or the wisdom of the initial phase-in period. Instead we judge a more narrow question: whether on December 5, 1980, the Secretary of Labor acted reasonably when he deferred implementation of the regulations until June 21, 1981, and whether he had good cause to take that action without providing prior notice or an opportunity to comment. While we find the notice-and-comment question very close, we conclude that, in the special circumstances presented, the Secretary had good cause to dispense with usual rulemaking procedures and that his action was otherwise reasonable. I. BACKGROUND Each year, underground fires and explosions claim the lives of some coal miners. Miners who are not killed by the initial explosion or spreading flames may die from inhalation of noxious gases or simple lack of oxygen. In 1969 the National Academy of Engineering concluded that asphyxiation from smoke, carbon monoxide, or carbon dioxide caused twenty-two percent of the 566 mine deaths that occurred between 1950 and 1969. Responding to this type of information Congress in 1969 required coal mine operators to give all underground miners self-rescue devices that would protect them from poisonous gases for at least one hour. Regulations promulgated shortly thereafter directed mine operators to supply filter-type self-rescuers to all underground miners. Filter-type self-rescuers, however, are inadequate to the life-saving task for several reasons. They protect miners only against carbon monoxide, not against smoke, carbon dioxide, or other toxic gases. Even protection from carbon monoxide ceases if carbon monoxide levels exceed one percent of the atmosphere. At higher concentrations of carbon monoxide, the filter-type self-rescuer produces air that is too hot to inhale. Miners react by spitting out the filter-type device and thereupon die from carbon monoxide poisoning. In addition to these problems, filter-type self-rescuers do not supply an independent source of oxygen. Therefore, even if the devices successfully protect miners from carbon monoxide, a low oxygen level may cause miners to lose consciousness and eventually perish in the contaminated mine atmosphere. Aware of the filter-type device’s limitations, the Bureau of Mines began an extensive testing program to identify a better self-rescuer. In 1977 these efforts culminated in proposed regulations requiring coal operators to equip underground miners with SCSRs rather than filter-type self-rescuers. SCSRs contain an independent oxygen supply that lasts for an hour or more. Thus, they protect miners from all poisonous gases and give miners sufficient oxygen to attempt escape from a mine struck by a disaster. While SCSRs are much more effective than filter-type self-rescuers, the proposed rules did not contemplate an immediate switch from one device to the other. Instead, the proposed rules indicated that coal operators would have two years from the date of any final regulations to equip their miners with SCSRs. On November 21, 1978, the Department of Labor issued final regulations requiring the use of SCSRs in coal mines. As promised in the 1977 proposed rules, coal operators were given two years, until December 21,1980, to select, order, and supply SCSRs. 1978 Regulations, supra note 1, at 54246. During this phase-in period, MSHA pledged to field test the SCSRs. Id. at 54244. While MSHA was confident that SCSRs were “reliable and safe to use and. store in underground mines,” id. at 54243, the agency wanted to conduct field testing to determine how the use of SCSRs would “affect miners” in actual mining situations. Id. at 54244. After promulgation of the final rules, MSHA promptly developed a program for field testing SCSRs. On February 28, 1979, Joseph 0. Cook, MSHA Administrator for Coal Mine Safety and Health, sent Robert B. Lagather, Assistant Secretary of Labor for Mine Safety and Health, an action plan for evaluating SCSRs. The plan envisioned completion of testing well before the December 1980 deadline for implementing the regulations. Two circumstances, however, delayed the field testing program. First, the National Institute for Occupational Safety and Health (NIOSH), which had to approve SCSR models before they could be used in the tests, did not approve production model SCSRs until the summer of 1980. Second, the Joint Industry Health and Safety Committee, representing both a major coal operators’ association and the United Mine Workers of America (UMWA), would not recommend that their members participate in field testing until MSHA answered safety concerns about SCSRs that had surfaced early in 1980. The Bituminous Coal Operators’ Association (BCOA), the major industry association represented on the Joint Committee, did not finally approve field testing in its mines until November 19, 1980. MSHA worked ddl&ently to overcome tkese roadblocks. When NIOSH approval for production model SCSRs was not forthcoming, the agency used hand-manufactured models that had been approved in 1979 for a first round of field tests. To calm lingering fears about the safety of SCSRs, MSHA asked the Bureau of Mines to conduct an extensive study of the devices. This study was completed during the summer of 1980 and presented to the Joint Industry Health and Safety Committee the following fall. And when BCOA continued to withhold approval for field testing throughout the fall of 1980, MSHA initiated tests in mines owned by members of the National Independent Coal Operators Association (NICOA). Despite delays in the field testing program, MSHA appeared determined throughout the fall of 1980 to complete field testing by December and implement the regulations on schedule. On Novem- ber 5, 1980, Assistant Secretary Lagather wrote to the Joint Industry Committee, noting that the Committee had already received the Bureau of Mines study, and expressed his confidence that field tests could “be started at... affiliated mines [of Committee members] in the very near future.” On November 12, 1980, Robert G. Peluso, MSHA Chief of Special Projects, wrote to representatives of the two manufacturers that had received approval for their SCSRs and asked how many SCSRs they would have on hand by December 21, how many devices they could manufacture during each month after that date, and how they planned to transport finished SCSRs to customers. Finally, on November 28, 1980, Assistant Secretary Lagather reported to BCOA that seven mines had been selected for field testing, that testing would begin December 5, 1980, and that testing at three mines would be completed by December 15. While testing at the other four mines would not be completed until January of 1981, Lagather hoped that information from the first three tests would “provide some guidance in implementating the regulations.” Although Lagather’s November 28 letter implied that he planned to implement the regulations on schedule, MSHA announced a different position shortly thereafter. On December 5, 1980, MSHA published the order that gave rise to this petition for review. In a few brief paragraphs, MSHA stated that since it had not completed field testing SCSRs, and since only a small number of the devices were available, it had decided to defer implementation of the regulations until June 21, 1981. This order was preceded by neither notice nor a comment period; MSHA declared that “[i]n view of the imminence of the deadline and the circumstances stated above” it was “impracticable and contrary to the public interest to provide advance notice and opportunity for public comment on this amendment.” December 5 Order, supra note 3, at 80502. The Council of the Southern Mountains (CSM), a representative of miners in Martin County, Kentucky, together with District 12 of UMWA and the Coal Employment Project, petitioned this court for review of the December 5 order. We permitted the American Mining Congress (AMC), an industry association, to intervene. Because the order deferring implementation of the regulations is now in effect, we have treated this case on an expedited basis. We turn now to the two issues that CSM most urgently presses on appeal. II. NOTICE AND COMMENT Petitioners’ most substantial claim is that the Secretary improperly issued the December 5 order without prior notice or an opportunity to comment. The Administrative Procedure Act (APA) requires agencies to give “[gjeneral notice of proposed rule making” and to provide “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(b), (c) (1976). This notice-and-comment requirement permits interested parties to criticize projected agency action before that action is embedded in a final rule and allows the agency to benefit from the parties’ suggestions. See National Tour Brokers Association v. United States, 591 F.2d 896, 902 (D.C. Cir. 1978). At oral argument the Government did not dispute that the December 5 order was the type of agency action ordinarily subject to the notice-and-comment procedure. The Government contends, however, that 5 U.S.C. § 553(b)(B) excuses its failure to follow the notice-and-comment route. That subsection creates a narrow exception, applicable only when an “agency for good cause finds... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” We recently admonished agencies that circumstances justifying reliance on this exception are “indeed rare” and will be accepted only after the court has “examine[d] closely proffered rationales justifying the elimination of public procedures.” American Federation of Government Employees v. Block, 655 F.2d 1153, 1157 n.6 (D.C. Cir. 1981). We proceed, therefore, to “examine closely” both the circumstances surrounding the December 5 order and the Secretary’s stated rationale for failing to follow notice- and-comment procedures before issuing that order. The Secretary’s justification for dispensing with notice and an opportunity to comment was “the imminence of the deadline” for implementing the SCSR regulations. This rationale is one that permits avoidance of APA procedures only in exceptional circumstances. Otherwise, an agency unwilling to provide notice or an opportunity to comment could simply wait until the eve of a statutory, judicial, or administrative deadline, then raise up the “good cause” banner and promulgate rules without following APA procedures. Because of this possibility for abuse, “the mere existence of deadlines for agency action... [can] not in itself constitute good cause for a § 553(b)(B) exception.” United States Steel Corp. v. United States Environmental Protection Agency, 595 F.2d 207, 213 (5th Cir. 1979), quoted in American Federation of Government Employees, supra, 655 F.2d at 1158. In this case, however, we do not believe MSHA tarried through the fall of 1980, knowing that the SCSR regulations could not be implemented on time, and then postponed the implementation date at the eleventh hour. Instead, we believe that MSHA, recognizing the life-saving importance of the SCSR rules, was determined to implement the rules on time; that the agency believed through the end of November 1980 that on-schedule implementation was possible; and that only at the beginning of December, when it truly was too late to follow notice-and-comment procedures, did the agency concede that effective implementation of the regulations would be advanced by a relatively short-term postponement. Our conclusion is based on five factors that, in combination, render this a special, possibly unique, case. First, the circumstances that ultimately forced MSHA to postpone implementation of the regulations were beyond the agency’s control. Field tests were not completed on schedule because of delays in obtaining approval for production model SCSRs and because both mine operators and miners refused to participate in the tests until MSHA answered last-minute safety concerns about SCSRs. Sufficient supplies of SCSRs were unavailable in December 1980 because of delays in obtaining approval for production models and because of industry’s failure to order the devices. MSHA’s actions caused neither of these problems. Second, MSHA acted diligently both to initiate field testing and to overcome the hurdles created by other parties. The agency developed an action plan for field tests early in 1979. It did not dawdle at the outset and then attempt a rush in the final months. When roadblocks threatened to hold up the field testing program, MSHA reacted resourcefully. It completed some field tests with hand-manufactured SCSRs, requested a comprehensive Bureau of Mines study on the safety of SCSRs, and performed some field tests in mines that were not owned by members of the resistant BCOA. Third, the record strongly indicates that, even in November 1980, MSHA intended to implement the regulations on schedule. During the first half of that month a MSHA official wrote to the two manufacturers of approved SCSRs and asked how they intended to transport SCSRs to customers, how many of the devices they would have on hand by December 21, and how many units could be produced each month after that date. Moreover, once it finally received industry’s tardy approval for field testing on November 19, MSHA made immediate plans to complete as many of the tests as possible by December 15. And Assistant Secretary Lagather, writing to BCOA about these planned tests, indicated that the regulations indeed would be implemented on December 21. There is nothing in the record that shows MSHA wavering over the implementation date until the December 5 order itself issued. Fourth, when the Secretary did postpone the implementation date, he deferred implementation for a relatively short time. If a rule ranks as a substantive regulation, the limited nature of the rule cannot in itself justify a failure to follow notice and comment procedures. We have recognized, however, that “[t]he more expansive the regulatory reach of [agency] rules,... the greater the necessity for public comment.” American Federation of Government Employees, supra, 655 F.2d at 1156. Conversely, the limited scope of the December 5 order influences our finding that the Secretary possessed good cause to dispense with prior notice and comment. Finally, Government counsel assured this court at oral argument that field testing has been completed, that an evaluation of the tests should be available shortly, and that implementation of the regulations on June 21 of this year is fully anticipated. While these assurances were made after the December 5 order, they contribute substantially to our impression that MSHA has followed a persistent course toward implementation of the regulations without unnecessary delay. Absent these assurances, we might have entertained some doubt about MSHA’s good faith intention, throughout the fall of 1980, to implement the regulations on schedule. And were we not convinced of that determination, we could not excuse MSHA’s eleventh hour decision to defer implementation without affording interested parties prior notice or an opportunity to comment. These five factors, taken together, persuade us that the Secretary had good cause to dispense with notice and comment before issuing his December 5 order. We emphasize again, however, that this is an extremely close case. Nothing in this decision diminishes the force of our repeated admonition that “it should be clear beyond contradiction or cavil that Congress expected, and the courts have held, that the various exceptions to the notice-and-comment provisions of section 553 will be narrowly construed and only reluctantly countenanced.” New Jersey v. United States Environmental Protection Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980). We recognize an exception to that rule in this case, but we do so guardedly, based on the totality of the special circumstances presented. III. ARBITRARY AND CAPRICIOUS Petitioners also contest the reasonableness of the Secretary’s decision to postpone implementation of the regulations. In contrast to the borderline question the notice-and-comment issue presents, we have scant difficulty concluding that the Secretary’s action was reasonable. During the phase-in period numerous parties, including both coal operators and miners, questioned the safety of SCSRs. Against this background the Secretary reasonably determined that field testing should be finished before the regulations were implemented. Completion of the field tests would help the Secretary satisfy any genuine safety concerns raised by parties governed by the regulations; in addition, the test results would enhance his effort to assure the cooperation of all affected parties when SCSRs were finally introduced into the mines. The unavailability of SCSRs, moreover, is a factor relevant to our consideration of the Secretary’s decision to delay implementation. While the Government clarified at oral argument that unavailability of the devices was not an “independent justification” for the deferral, the fact that very few miners would have received SCSRs by December 21 fortified the Secretary’s decision to delay implementation of the regulations. As the Government now points out, the unavailability of SCSRs rendered less severe the practical consequences of the Secretary’s decision to defer implementation until field testing was complete. Finally, we note a point stressed by Government counsel in briefing and arguing this case. As the December deadline approached, MSHA found that guidelines on the storage of SCSRs and the training of miners had not been completed. While the Secretary did not rely on this problem in his published notice of deferral, the lack of finished guidelines on these important matters was a factor that could reasonably have influenced the Secretary’s decision to defer implementation. We regret that the long effort to equip miners with safe, oxygen-generating rescue devices has been prolonged an additional six months. We do not believe, however, that MSHA has been insensitive to the health and safety of underground miners. Satisfactory deployment of SCSRs will demand the cooperation of both coal operators and miners. To assure that cooperation, and to reassure the concerned parties that SCSRs would not introduce additional dangers into the hazardous mine environment, MSHA reasonably decided to postpone implementation of the SCSR regulations from December 21, 1980, to June 21, 1981. CONCLUSION Since we find the Secretary’s December 5 order neither procedurally infirm nor arbitrary and capricious, that order is Affirmed. . Use of Filter-Type and Self-Contained Self-Rescuers in Underground Coal Mines, 43 Fed. Reg. 54241 (Nov. 21, 1978) [hereinafter cited as 1978 Regulations]. The regulations are codified at 30 C.F.R. §§ 75.1714 to.1714-3 (1980). . No party ever petitioned for review of the 1978 SCSR regulations. . The order deferring implementation was published at 45 Fed.Reg. 80501 (Dec. 5, 1980) [hereinafter cited as December 5 Order]. . According to petitioners, 89 miners died in coal disasters between 1970 and 1978. Brief of Petitioners at 6 n.*. Before 1970, the number killed each year was higher. In 1968, a year that saw an unusually high number of mine deaths, 309 miners lost their lives. During that year each miner had a one in five hundred chance of perishing in the mines. S.Rep.No. 411, 91st Cong., 1st Sess. 8 (1969). . Committee on Mine Rescue and Survival Techniques, National Academy of Engineering, Mine Rescue and Survival at 5-6 (Mar. 1970) (final report). These figures do not include 78 miners who died in a 1968 mine explosion in Farmington, West Virginia. The cause of death for 76 of those miners is not known, id. at 6. More recent surveys indicate that, between 1970 and 1978, 12 miners died from asphyxiation. See Brief of Petitioners at 6 n.*. . Federal Coal Mine Health & Safety Act of 1969, Pub.L.No.91-173, tit. Ill, sec. 317(n), 83 Stat. 742, 787 (codified at 30 U.S.C. § 877(n) (1976)). . 35 Fed.Reg. 17890, 17928 (Nov. 20, 1970); Brief for the Secretary of Labor at 3. . When carbon monoxide constitutes 2% of the mine atmosphere, air inhaled through a filter-type self-rescuer reaches a temperature of 200 degrees Fahrenheit. See 1978 Regulations, supra note 1, at 54241. . For a general discussion of the problems associated with filter-type self-rescuers, see 1978 Regulations, supra note 1, at 54241-42. . 42 Fed.Reg. 59300 (Nov. 16, 1977). The Department of Interior published the proposed rules. As of March 9, 1978, Congress transferred responsibility for administering the coal mine safety and health laws to the Department of Labor. The final rules, as well as the December 5 order discussed in this opinion, were published by the Department of Labor. See 1978 Regulations, supra note 1, at 54241. . 42 Fed.Reg. 59300, 59302 (Nov. 16, 1977). . See Action Plan for an Evaluation Program for the Self-Contained Self-Rescuers at 2-3 (Record item B(43)), Joint Appendix (J.A.) at 313-14; id. attachment (“Milestones”) at 1-2, J.A. at 316-17; Brief for the Secretary of Labor at 5-6. . See Letter from Anthony Robbins (NIOSH Director) to Robert B. Lagather (June 26, 1980), J.A. at 41; Letter from Robert B. Lagather to Congressman John P. Murtha at 1-2 (July 7, 1980), J.A. at 55-56; Letter from Frank R. Lee (Supervisory Electrical Engineer, MSHA Approval and Certification Center) and Samuel L. Terry (Supervisory Chemist, Respirator Section, Testing and Certification Branch, NIOSH Division of Safety Research) to Dr. Pasternack (Draegerwerk AG Lubeck) (June 9, 1980) (Record item E(49)); Letter from Ralph J. Touch, Jr. (Acting Chief, Testing and Certification Branch, NIOSH Division of Safety Research) to T.D. McConnell (Mine Safety Appliances Co.) (July 24, 1980) (Record item E(51)); Letter from Anthony Robbins to Davitt McAteer (Counsel for Petitioners) at 1 (Dec. 23, 1980), reprinted in Memorandum in Reply to Respondents’ Response to Petitioners’ Motion for Stay, as Attachment D. At oral argument, counsel for CSM claimed that “commercially produced” SCSRs were approved as early as 1977, and that subsequent extensions of approval were sought only for minor design changes. The record items cited above, however, indicate that ready-to-manufacture SCSRs were not finally approved until June and July of 1980. Moreover, one of the “minor insignificant changes” referred to by CSM’s counsel was a change in the size of the SCSR’s straps. As subsequent tests proved, the straps are an important part of the device and may cause numerous difficulties if not properly designed. See Memorandum from Jerry W. Stengel (Supervisory Physical Scientist, Bureau of Mines) to Robert L. Marovelli (Director, Division of Minerals Health and Safety Technology, Department of Interior) at 5 (Nov. 3, 1980) (reporting that at October 1980 smoke test at Bruceton mine, participants stepped on “excessive straps” and found straps difficult to loosen), J.A. at 219. Alteration of the SCSR’s straps, therefore, may appreciably improve the utility of the device. . Letter from Robert L. Vines (for the Bituminous Coal Operators’ Association) and Martin Connors (for the UMWA) to Robert B. Lagather at 1 (Feb. 15, 1980), J.A. at 25. The American Mining Congress (AMC), another industry association and an intervenor in this proceeding, also suggested to MSHA that field tests should not begin until the agency had sponsored an “independent evaluation” of SCSRs. Letter from J. Allen Overton, Jr. (AMC President) to Robert B. Lagather at 1 (Feb. 22, 1980), J.A. at 27. The safety concerns of both the Joint Industry Committee and the American Mining Congress evidently stemmed from an in-house status report on SCSRs prepared by the Research and Development Department of Conoco Inc. The report concluded that “potential hazards of KO2 [the chemical agent used in some SCSRs] in a mine environment have been identified and need to be carefully tested and evaluated.” Mining Research Division, Research and Development Department, Conoco Inc., Technical Memorandum No. 34-1334-6, at 1 (Oct. 22, 1979), J.A. at 15. Joseph O. Cook, MSHA Administrator for Coal Mine Safety and Health, transmitted a copy of the Conoco report to E. Muessig, Deputy Assistant Secretary of Labor for Mine Safety and Health, on February 5, 1980. J.A. at 13. . Letter from Joseph P. Brennan (BCOA President) to Robert B. Lagather (Nov. 19, 1980), J.A. at 301. The record does not show when UMWA approved participation of its members in field testing. On June 18, 1980, a UMWA representative signed a Joint Industry Committee letter to leaders of BCOA and UMWA. This letter recommended that more safety tests should be performed on SCSRs and, more startling, that filter-type self-rescuers should be used until the government could develop SCSRs small enough to wear on miners’ belts. Letter from Martin Connors (for the UMWA members) and Robert L. Vines (for the BCOA members) to Sam Church, Jr. (UMWA President) and Joseph P. Brennan (BCOA President) at 1-2 (June 18, 1980), J.A. at 36-37. These recommendations were sent to Lagather and other government officials on July 11, 1980. Letter from Sam Church (UMWA President) and Joseph P. Brennan (BCOA President) to Lindsay Norman (Bureau of Mines Acting Director), Robert B. Lagather, and Anthony Robbins (NIOSH Director) (July 11, 1980), J.A. at 58. By November 21, 1980, however, UMWA was protesting strenuously against any delay in implementing the SCSR regulations. Letter from Everett Acord (UMWA Safety Director) to Robert B. Lagather (Nov. 21, 1980), J.A. at 303-05. . See Memorandum from Robert G. Peluso (MSHA Chief of Special Projects) to Edward Clair (Counsel for Coal Mine Safety and Health Standards and Regulations, Office of the Solicitor, Department of Labor) at 2-3 (June 22, 1979), J.A. at 7-8; Brief for the Secretary of Labor at 6 n.5. According to petitioners, MSHA finished this first phase of field testing, which called for MSHA inspectors to wear SCSRs during routine mine inspections, late in 1979. Inspectors wore SCSRs for a total of 683 hours and answered questionnaires about the devices. Brief of Petitioners at 36 n*. . See Letter from Robert B. Lagather to Robert L. Vines (BCOA Vice President for Health and Safety) and Everett S. Acord (UMWA Safety Director) at 1 (Nov. 5, 1980), J.A. at 220; R.W. Watson, W.J. Doyak, & A.L. Furno, Evaluation of the Safety of One-Hour Chemical Seif Rescuers (PRC Report No. 4294 July 1980), excerpted in J.A. at 42-54. Interim findings by the Bureau of Mines were presented to interested parties on several occasions prior to preparation of the final report and those parties suggested additional tests that could be performed. See Letter from Robert B. Lagather to Congressman John P. Murtha at 2 (July 7, 1980), J.A. at 56; Letter from Robert B. Lagather to Martin Connors (UMWA) and Robert L. Vines (BCOA) (May 21, 1980), J.A. at 35. The Bureau of Mines tests showed that SCSRs might start one fire in about eight years. Since statistics suggested that mines would experience about 129 fires from other sources during that same period, as well as 500 frictional ignitions of methane at the face, the Bureau of Mines concluded that SCSRs would have “an insignificant impact on the frequency of ignitions and fires already occurring” in mines. R.W. Watson, W.J. Doyak, & A.L. Furno, supra, at 67, J.A. at 53. . Brief for the Secretary of Labor at 10. These tests, conducted in six mines, were completed by early October 1980. See Letter from Wayne E. Veneman (Chief, MSHA Office of Information) to J. Davitt McAteer (Counsel for Petitioners) at 1 (Dec. 16, 1980), reprinted in Memorandum in Reply to Respondents’ Response to Petitioners’ Motion for Stay, as Attachment G. . All parties appear to share the understanding that implementation does not mean every miner will be supplied with an SCSR on the critical date. Rather, once the regulations are implemented, mine operators will be impelled to supply whatever devices are available and order additional devices on pain of exposure to statutory penalty. 30 U.S.C. § 820 (Supp. Ill 1979). . Letter from Robert B. Lagather to Robert L. Vines (BCOA Vice President for Health and Safety) and Everett S. Acord (UMWA Safety Director) at 1 (Nov. 5, 1980), J.A. at 220. . Letters from Robert G. Peluso to Thomas McConnell (Mine Safety Appliances Co.) (Nov. 12, 1980), J.A. at 293, 294; Letters from Robert G. Peluso to Wesley Kenneweg (National Mine Service Co. (United States representative for the German Draeger company)) (Nov. 12, 1980), J.A. at 295, 296. One company, the National Mine Service Co., promptly informed Peluso that it would be able to transport finished SCSRs in compliance with Department of Transportation regulations and that 9000 units would be available for immediate delivery by December 31, 1980. Thereafter, the company expected to produce 1350 to 1650 units per month, for a total of 16,000 to 20,000 units during 1981. Starting in 1982, the company expected production to rise to 3000 to 5000 units per month. Letter from Wesley J. Kenneweg (National Mine Service Co.) to R. G. Peluso (Nov. 14, 1980), J.A. at 297; Letter from Wesley J. Kenneweg to Robert G. Peluso (Nov. 17, 1980), J.A. at 298-99. Responses from the other company, the Mine Safety Appliances Co., are not in the record. According to the Government, Mine Safety Appliances had no units available for delivery in December 1980. Brief for the Secretary of Labor at 13 n.9. . Letter from Robert B. Lagather to Joseph P. Brennan (BCOA President) at 1 (Nov. 28, 1980), J.A. at 306. . December 5 Order, supra note 3. . Only 9000 SCSRs were available for delivery in December 1980. See note 21 supra. Since there are approximately 133,000 underground coal miners in the United States, Brief for the Secretary of Labor at 13 n.9, the number of SCSRs available in December 1980 was woefully inadequate. In their written and oral presentations to this court, petitioners emphasized that manufacturers will remain without incentives to produce SCSRs in quantity until orders are placed for the devices. Reluctance to place early orders for SCSRs is understandable. At oral argument, counsel for CSM estimated that SCSRs now cost approximately $550 apiece. If coal operators purchase one SCSR for each of the nation’s 133,000 coal miners, the cost will exceed 73 million dollars. . On January 27, 1981, a motions panel of this court stayed the December 5 order. A few weeks later, however, the court vacated the January 27 stay and left the December 5 order in effect pending expedited review. . In addition to the issues discussed below, CSM claims that the Secretary impermissibly engaged in ex parte contacts with industry representatives during the fall of 1980. We decline either to vacate the December 5 order because of these contacts or to require MSHA to disclose the substance of the communications in the record presented to this court for review. At the time these contacts occurred, MSHA was not engaged in rulemaking. Rather, it was endeavoring to implement a final rule. Successful implementation of a rule may depend on uninhibited exchanges between the agency and the parties affected by the rule. Moreover, given the limited nature of the Secretary’s December 5 order, the stated reasons for that order, and the circumstances under which the order was made, we do not believe disclosure of the ex parte conversations pointed to by petitioners would aid our review. We find similarly unpersuasive intervenor’s argument that we lack jurisdiction to review the Secretary’s December 5 action. The Government, we note, does not share intervenor’s view. Brief for the Secretary of Labor at 1 n.l. In any case, we believe that 30 U.S.C. § 811(d) (Supp. Ill 1979) clearly gives this court jurisdiction to review the December 5 order. That section authorizes this court to review “mandatory health or safety standard[s] promulgated” by the Secretary of Labor. While the Secretary based his December 5 order on the general grant of rulemaking authority contained in 30 U.S.C. § 957 (1976), the order was in effect an amendment to a mandatory safety

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

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

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

FLEMING, TEMPORARY CONTROLS ADMINISTRATOR, v. RHODES, SHERIFF, et al. No. 682. Argued April 7,1947. — Decided April 28, 1947. Samuel Mermin argued the cause for appellant. With him on the brief were Acting Solicitor General Washington, John R. Benney, William E. Remy, David London, Irving M. Gruber and Albert J. Rosenthal. No appearance for appellees. Mr. Justice Reed delivered the opinion of the Court. This appeal is from an interlocutory order of the District Court of the United States for the Northern District of Texas denying preliminary injunctions. Appellant’s predecessor sued certain landlord appellees and the Sheriff and a constable of Tarrant County, Texas, in that United States District Court for an injunction to stop eviction of tenants under state judgments that were recovered by the landlords in suits for restitution of leased property. The state suits were filed by the landlords without the certificates required by the Rent Regulation for Housing to maintain such actions. 8 F. R. 7322; 10 F. R. 11666; 11 F. R. 5824, 8106. The state judgments were entered after June 30, 1946, the termination date of the Emergency Price Control Act, and before July 25, 1946, the date of the approval by the President of the Price Control Extension Act. As there was no federal price control statute during this period, these judgments will be treated as valid when granted. The decision of the District Court, denying the motion as to the landlords and directing the entry of the order, was based on the unconstitutionality, as applied to these state judgments, of that portion of § 18 of the Price Control Extension Act of July 25,1946, that declared, “The provisions of this Act shall take effect as of June 30,1946, . . This provision the Court thought was unconstitutional (1) because the words affected the state judgments retroactively by bringing them under the Extension Act and (2) because the vested rights, created by the prior judgments in the landlords to obtain restitution of their leased properties, could not be destroyed by subsequent legislation. Apparently it was felt that the due process clause of the Fifth Amendment forbade such regulation of the incidents of judgments. The question is raised as to whether the Act of August 24, 1937, 50 Stat. 751, confers power upon this Court to review, on direct appeal, a ruling against the constitutionality of an act of Congress when the ruling of unconstitutionality is made in the application of the statute to a particular circumstance, as in this appeal, rather than upon the challenged statute as a whole. A reading of the first three sections of the act convinces us that Congress granted litigants in courts of the United States a direct appeal to this Court from decisions against the constitutionality of any act of Congress as applied in the pending litigation. The first section only authorizes the intervention of the United States in private litigation, “whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question . ...” It has nothing to do with appeals. The second section allows an appeal to this Court from a final or interlocutory order only when the United States is a party, through the preceding § 1 or originally, and the decision is against the constitutionality of the federal law. It provides for expedition in our determination of the appeal. Section three relates to the allowance or refusal of injunctions staying acts of Congress in whole or in part on the ground of repugnancy to the Constitution, and requires a three-judge court, expedition in determination and notice to the United States. The specific provision for prompt review of judgments granting or denying “in whole or in part” such an injunction is limited to applications for stays of acts of Congress because of their unconstitutionality. Thus the constitutionality of federal acts comes to us by direct appeal, under the Act of August 24, 1937, only when the United States is a party to the litigation below or an injunction is sought. This enables the United States to exercise large discretion, by its determination as to whether or not to intervene, as to what cases are reviewable directly in this Court. The Congress intended prompt review of the constitutionality of federal acts. Since § 1 allows intervention when the constitutionality of an act is “drawn in question” and § 2 allows appeal after intervention, it follows that there is an appeal from an order that invalidates, as unconstitutional, a statute as applied. To limit the generality of the language of § 2 of the Act of August 24, 1937, to cases that involved only the constitutionality as a whole of the challenged statutes might seriously impair prompt determinations of matters of great public interest. Litigants may challenge the constitutionality of a statute only in so far as it affects them. We hold that jurisdiction of the appeal from the challenged order is conferred upon this Court by 28 U. S. C. § 349a. The Court was also of the view that § 265 of the Judicial Code barred any injunction against the state officials. The appellant sought injunctions against future eviction of these tenants through writs of restitution or other process by which eviction might be consummated. Sections 2 (d), 4 (a) and 205 (a) of the Emergency Price Control Act of 1942, as amended, and Rent Regulation § 6 (a), set out below. Such an injunction is in accord with the administrative Interpretations of the Rent Regulation. The properties involved in this litigation were defense-area housing accommodations. There is no suggestion that the heretofore referred to sections of the price control acts and § 6 of the Rent Regulations for Housing do not authorize these legal proceedings. The constitutionality of the price control acts, generally considered, is unquestioned. Bowles v. Willingham, 321 U. S. 503. The sole inquiry for us, at this point, is whether it was erroneous for the district court to refuse to allow the temporary injunction, because to do so would invade the constitutional right of the landlord appellees to retain the fruits of their “vested rights” in the valid judgments. As the appellant is undertaking to enjoin future eviction of the tenants or lessees, our consideration is not affected by the proviso of § 18 of the Extension Act, set out in the margin. The retroactive provision of § 18, quoted above at note 2, is inapposite for the same reason. It is immaterial whether the state judgments were obtained before or after the effective date of the Extension Act. The effort of the appellant is to enjoin future proceedings for eviction after the acquisition by the landlord appellees through valid judgments of what the district court characterized as “vested rights.” Federal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Immunity from federal regulation is not gained through forehanded contracts. Were it otherwise the paramount powers of Congress could be nullified by “prophetic discernment.” The rights acquired by judgments have no different standing. The protection of housing accommodations in defense-areas through the price control acts may be accomplished by the appellant notwithstanding these prior judgments. The preliminary injunctions should have been granted. Only a word need be said as to the contention that § 265 of the Judicial Code forbids an injunction against the execution of state judgments by state officers. A contention was made before this Court in similar cases last term that § 265 forbade a federal injunction to stay such proceedings in any court of a state. The argument was not accepted. We thought that § 205 (a) of the Emergency Price Control Act of 1942 created an exception to § 265. No specific mention was made in these opinions as to whether state officers who were parties in the case could be enjoined. However, we do not see any ground, under § 265 of the Judicial Code, to differentiate as to stays against a sheriff or a constable or stays against the parties to the litigation. We think the District Court had power to stay the sheriff and constable. Judgment reversed. Jurisdiction of suits for such injunctions is conferred upon the district courts of the United States by § 205 of the Emergency Price Control Act of 1942, 56 Stat. 23, 58 Stat. 632, 59 Stat. 306, and the Price Control Extension Act of July 25,1946, 60 Stat. 664. Price Control Extension Act of July 25, 1946, supra. As this opinion relies upon the validity under the price control acts of the prohibition of future eviction of tenants in § 6 of the Rent Regulation for Housing, 8 F. R. 7322; 10 F. R. 11666; 11 F. R. 5824, 8106, it is unnecessary to consider further whether the mere inclusion of these past judgments within the reach of the price control legislation, by advancing the effective date of the act, is constitutional. Compare Blodgett v. Holden, 275 U. S. 142, 146, and Untermyer v. Anderson, 276 U. S. 440, 445, with United States v. Hudson, 299 U. S. 498. The last three words were construed in Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 288, to allow appeals under Judicial Code § 237 to this Court from final judgments of state courts of last resort upholding the validity of state statutes against a challenge to their application to particular circumstances because of their repugnance to federal law. This was a settled construction for the words. See Kepner v. United States, 195 U. S. 100, 124. Garment Workers v. Donnelly Co., 304 U. S. 243, 249-50. H. Rep. No. 212, 75th Cong., 1st Sess., p. 2: “The importance to the Nation of prompt determination by the court of last resort of disputed questions of the constitutionality of acts of the Congress requires no comment.” S. Rep. No. 963,75th Cong., 1st Sess., pp. 3-4: “The United States is not excluded by the principle thus stated, from drawing the judicial power to its proper assistance either as an original party, or as an intervenor, when, in private litigation, decision of the constitutional question may affect the public at large, may be in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes a duty to all the citizens of securing to them their common rights.” Blackmer v. United States, 284 U. S. 421, 442; Virginian R. Co. v. Federation, 300 U. S. 515, 558; Carmichael v. Southern Coal Co., 301 U. S. 495, 513. Emergency Price Control Act of 1942, 56 Stat. 23, 58 Stat. 632, 59 Stat. 306: Section 2 (d). “Whenever in the judgment of the Administrator such action is necessary or proper in order to effectuate the purposes of this Act, he may, . . . regulate or prohibit . . . renting or leasing practices (including practices relating to recovery of the possession) in connection with any defense-area housing accommodations, which in his judgment are equivalent to or are likely to result in . . . rent increases, . . . inconsistent with the purposes of this Act.” Section 4 (a). “It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person to ... do or omit to do any act, in violation of any regulation or order under section 2, ... or to offer, solicit, attempt, or agree to do any of the foregoing.” Section 205 (a). “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” Rent Regulation for Housing, 8 F. R. 7322, 10 F. R. 11666; 11 F. R. 5824, 8106: Section 6. “Removal of tenant — (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof or which otherwise provides contrary hereto, . . .” Pike & Fischer, OPA Service, Rent, Interpretations of the Rent Regulation for Housing, § 6-VI, issued July 25, 1946: “Interpretation 6-VI. Evictions Pending On July 25, 1946. “The Emergency Price Control Act of 1942, as amended, on July 25, 1946, was extended by striking out 'June 30, 1946' and substituting 'June 30,1947,’ as the expiration date of the Act. Section 18 provides that the provisions of the Act shall take effect as of June 30,1946. In this section a savings clause was inserted for the protection of persons who had acted contrary to the regulation during the interim period between June 30, 1946, and July 25, 1946. This savings clause provides that no act or transaction occurring between said dates shall be deemed a violation. As a result any eviction which occurred during the interim period was not a violation of the Act or regulation. By reason of this the tenant who has been in fact evicted during this interim period receives no protection. If, however, he is in possession on July 25, 1946, he is entitled to the protection of the eviction provisions of the regulation and it is a violation of the regulation for the landlord on or after that date to attempt to evict by court process or otherwise except in accordance with the provisions of Section 6 of the regulation.” “Provided further, That no act or transaction, or omission or failure to act, occurring subsequent to June 30,1946, and prior to the date of enactment of this Act shall be deemed to be a violation of the Emergency Price Control Act of 1942, as amended, or the Stabilization Act of 1942, as amended, or of any regulation, order, price schedule, or requirement under either of such Acts: . . .” Sproles v. Binford, 286 U. S. 374, 391; Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603; Calhoun v. Massie, 253 U. S. 170; Norman v. Baltimore & Ohio R. Co., 294 U. S. 240, 303-11; Guaranty Trust Co. v. Henwood, 307 U. S. 247, 259. Wright v. Union Central Ins. Co., 304 U. S. 502, 509; Paramino Lumber Co. v. Marshall, 309 U. S. 370. Judicial Code § 265: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Porter v. Lee, 328 U. S. 246; Porter v. Dicken, 328 U. S. 252; Bowles v. Willingham, 321 U. S. 503, 510.

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

What is the issue of the decision?

James SAYLES, Petitioner-Appellant, v. George WELBORN, Warden, and Joseph McCombs, Chairman, Respondents-Appellees. No. 83-1346. United States Court of Appeals, Seventh Circuit. Argued Nov. 28, 1983. Decided Jan. 11, 1984. Jeffrey Haas and Michael E. Deutsch, Deutsch & Hass, Chicago, Ill., for petitioner-appellant. Michael V. Accettura, Asst. Atty. Gen., Chicago, 111., for respondents-appellees. Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and GRANT, Senior District Judge. The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation. CUMMINGS, Chief Judge. On December 17,1982, the Illinois Prisoner Review Board decided, for the fourth time since 1980, to deny parole to petitioner James Sayles, who is incarcerated at Cen-traba Correctional Center, serving consecutive 100-200 year sentences for two murders committed in 1971 as well as concurrent twenty to forty-year sentences for each armed robbery committed in connection with the murders. Previously Sayles had pled guilty to and served an eighteen-month sentence for robbery and attempted murder committed in 1967 when he was seventeen years old. In response to Sayles’ challenges to two of these denials, brought in federal court by means of successive petitions for writs of habeas corpus, Magistrate Cohn of the United States District Court for the Southern District of Illinois, found the 1981 and the August 1982 parole denials defective and ordered new parole hearings in each case. However, the magistrate found that the December 1982 fourth denial complied with constitutional requirements. Sayles appeals this decision. We affirm. Sayles makes several arguments in his challenge to the Board’s December 1982 decision to deny him parole but essentially they are all restatements of the claim that even the Board’s last rationale violated this Court’s holding in Welsh v. Mizell, 668 F.2d 328 (7th Cir.1982), certiorari denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186. In that case, we decided that general deterrence concerns, incorporated into Illinois parole law for the first time in 1973 (see Ill.Rev.Stat.1973, ch. 38, § 1003-3-5(c)(2), were substantially harsher than the specific deterrence criteria used exclusively in parole decisions until that time. Applying general deterrence criteria to convicts like Welsh and Sayles whose crimes were committed before 1973 was held to be a violation of the ex post facto clause of the United States Constitution, U.S. Const, art. I, § 9, and therefore impermissible. It is well settled that decisions to grant or deny parole are within the discretion of the agency created by statute to review such matters. E.g., Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Decisions made by such an agency are not to be disturbed by the courts absent a determination that the agency abused its discretion by exceeding the constraints imposed specifically by statute or generally by constitution. See Welsh, 668 F.2d 328. There is no basis for such a determination in this case. Welsh clearly required the Board to use specific deterrence criteria in deciding whether to parole Sayles, since Sayles committed the crimes for which he is incarcerated in 1971 before Illinois authorized use of general deterrence criteria. Applying specific deterrence criteria means that the Board had to evaluate the factors in Sayles’ case to determine whether he was by then deterred from committing further criminal acts, rather than considering whether Sayles’ further imprisonment would deter others from criminal activity. A review of the Board’s rationale for its December 17, 1982, decision makes it clear that the Board in fact correctly used only specific deterrence criteria in deciding to deny parole to Sayles. Nothing in the rationale indicates that the Board considered whether denying parole to Sayles would deter the general public from committing crimes similar to his. On the other hand, the Board’s reiteration of the factors it considered about Sayles himself evidences its efforts to determine whether Sayles specifically was rehabilitated and therefore deterred from such further criminal conduct. The Board weighed the facts of his criminal episodes of 1967 and 1971 against his exemplary prison conduct, his academic achievement, and his community and family support. The Board concluded that as positive as these latter factors were, they were not sufficient to convince the Board that Sayles was yet “capable of again becoming a law-abiding citizen.” Ill.Rev.Stat.1969, ch. 108, § 203; Welsh, 668 F.2d at 330 (quoting Ill.Rev.Stat.1961, eh. 38, § 806). Thus the decision to deny parole and the rationale explaining that decision were made within the constraints of the parole statute in effect in 1971 and were therefore properly approved by the District Court’s Magistrate. Sayles contends, however, that the Board’s reference to the nature of his 1971 crimes shows that its decision was made on impermissible general deterrence grounds. Sayles’ contention misconstrues both the concept of general deterrence and the substance of the parole statute applied to him. As Magistrate Cohn noted, “it is permissible to consider the relationship of crimes committed to the likelihood of rehabilitation.” Sayles v. Welborn, Civil No. 82-3109, slip op. at 2 (S.D.Ill. Jan. 20, 1983). In fact, the then parole statute itself requires the Board to give “due consideration * * * to the records and professional reports kept by the Department [as well as] all other aspects of the prisoner’s situation.” Ill.Rev.Stat.1969, ch. 108, § 206. Among the records that must be kept by the Department is a statement by the State’s Attorney which includes “the facts and circumstances constituting the crime or offense whereof the prisoner * * * was convicted * * * and any other facts or circumstances which may tend to throw light upon the question as to whether such prisoner * * * is capable of again becoming a law-abiding citizen.” Id. at § 203. It is clear that the State’s Attorney filed such a report in this case, since the Board referred to it in its August 1982 rationale for denying parole (Pet.App. B). Thus the Board was not only permitted to consider the facts surrounding Sayles’ 1971 crimes but was required by statute to give these facts “due consideration” in reaching its decision. The only constraint on the Board’s consideration of these facts was the requirement that its consideration be focused specifically on the question of whether Sayles was rehabilitated rather than on the issue of general societal deterrence. Welsh, supra. As we have already shown, the Board complied with that requirement. Sayles claims that even if the Board’s rationale for its December 17, 1982, decision facially complies with Welsh, certain events suggest that the Board in fact relied on general deterrence criteria in reaching the decision and warrant this Court’s finding the rationale illegal. In support of this claim, Sayles cites the fact that the Board did not issue its rationale for its informal November denial until December 17, 1982. It is true that a post-hoc rationale may warrant less judicial deference than a rationale issued simultaneously with the decision. Clement v. Securities and Exchange Commission, 674 F.2d 641, 644 (7th Cir.1982). But even when the Board’s decision is subjected to greater scrutiny there is no basis for Sayles’ claim. On its own volition, the Board initiated the November 1982 parole review, even before Magistrate Cohn issued his November 22 decision as to the illegality of the Board’s rationale for its August 1982 parole denial. Although Magistrate Cohn ultimately decided that said rationale did not comply with his order of July 22, 1982, he did not say that the August 1982 rationale definitely applied general deterrence criteria. Sayles v. Welborn, Civil No. 82-3109 (S.D. Ill. Nov. 22, 1982). In fact it is clear that the Board had made a good faith effort to base its August 1982 decision on special deterrence criteria. Certainly it would have been preferable for the Board to postpone its informal November 1982 decision pending the issuance of Magistrate Cohn’s November 22, 1982 order invalidating the Board’s August 31, 1982, parole denial. However, since the Board had made the good faith effort in August to comply with Welsh, there is no basis to conclude that its proper rationale issued on December 17, 1982, was in fact motivated by impermissible general deterrence criteria. For the reasons stated above, the January 18,1983, order of the magistrate upholding the December 17, 1982, parole denial is affirmed. . The cause was referred to Magistrate Cohn for final determination with the consent of both parties pursuant to 28 U.S.C. § 636(c). . Sayles did not seek review of the November 1980 denial of parole and therefore it was not the subject of Magistrate Cohn’s or this Court’s review. . The rationale for the December 17, 1982, formal denial (confirming its informal November 1982 decision not to grant Sayles parole) was as follows: A thorough review of your file reflects that you, after having previously pled guilty to the crimes of robbery and attempt [sic] murder, and having served your sentence in a maximum security institution, were thereafter, in 1971, charged, tried by a jury and found guilty of the murder of two persons, a man and his wife, while engaged in the commission of yet another felony, armed robbery, during a home invasion. For these crime [sic ] you were sentenced to terms of 100-200 years, 20-40 years, 100-200 years and 20-40 years (four concurrent, but the murder sentence involving Edith Snyder to be served consecutively to Arthur Snyder’s two counts.) These murders were especially heinous, it being described in the Official Statement of Facts that you took a claw hammer and using both sides of the head of the hammer, “beat and ripped Edith Snyder’s face, skull and body apart ... literally beat Arthur Snyder’s brains out, leaving the hammer deeply imbedded in Arthur’s skull”, subsequently setting fire to the mattress upon which lay the dead body of Edith Snyder. The Prisoner Review Board has considered many factors in your particular case, among which are the personal interview, the representations made by your attorneys and your wife, your lengthy term of incarceration, the fact that you are A Grade and have been involved in educational programs while incarcerated. However, in denying parole at this time, the Board feels that given your two serious departures from acceptable behavi-our in the free community, the factors that weigh against your release outweigh those which would dictate your release. (Pet.App. D) . For instance, the Board indicated that a significant reason for its August 1982 decision was that “the risk of further nonconforming conduct is too great for release at this time,” a reason indicating a focus on Sayles’ own rehabilitation rather than on general societal deterrence (Pet.App. B). While the Magistrate thought the Board should have been clearer in August 1982 that its denial was based on specific deterrence, he faulted the Board for not having stated “essential facts” for its decision (ibid.). . Petitioner’s other contentions on appeal do not merit discussion, but in the future, the Board should not “jump the gun” by informally announcing a decision without simultaneously including a rationale therefor. Respondents’ motion to strike filed herein on June 28, 1983, is granted and the Court sua sponte also strikes Argument IV of petitioner’s reply brief. Petitioner’s November 30, 1983, motion to file clarifying letter was granted on December 2, 1983.

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

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

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

John T. PHILLIPS, Jr., Corrado Frank Tumminello, Charles Phillip Freitag, and Carroll Charles Myers, Plaintiffs-Appellees, v. CROWN CENTRAL PETROLEUM CORPORATION, Defendant-Appellant. Nos. 77-1780, 78-1078. United States Court of Appeals, Fourth Circuit. Argued Oct. 2, 1978. Decided July 2, 1979. James H. Kelley, Robert A. Burka, Arthur Wineburg, Washington, D. C. (Bergson, Borkland, Margolis & Adler, Washington, D. C., on brief); Morton A. Sacks, Baltimore, Md. (Cable, McDaniel, Bowie & Bond, Baltimore, Md., on brief), for appellants. Robert G. Levy, Peter H. Gunst, Allan P. Hillman, Baltimore, Md. (Frank, Bernstein, Conaway & Goldman, Baltimore, Md., on brief), for appellees Phillips, Freitag & Myers. J. Hardin Marion,- William C. Sammons, Baltimore, Md. (Tydings & Rosenberg, Baltimore, Md., on brief), for appellee Tumminello. Before HAYNSWORTH, Chief Judge, COWEN, Senior Judge, and WIDENER, Circuit Judge. Wilson Cowen, Senior Judge of the Court of Claims, sitting by designation. COWEN, Senior Judge: Defendant Crown Central Petroleum Corporation (Crown), is an independent wholesaler of gasoline and other oil products in the Maryland marketing area. Plaintiffs are four of Crown’s independent dealers. The plaintiffs brought private antitrust actions against Crown, charging violations of 15 U.S.C. §§ 1, 15, and 26 (§ 1 of the Sherman Act, and §§ 4 and 16 of the Clayton Act). The complaints alleged that Crown entered into a horizontal conspiracy with its competitors to stabilize the retail price of gasoline in Maryland; that Crown forced its independent dealers into a vertical price-fixing agreement to control the retail price of gasoline; that Crown entered into tying agreements with its dealers which required that only Crown brands of motor oil could be sold, and that these conspiracies and agreements supported and reinforced each other to create an elaborate and pervasively illegal system of reducing competition and restraining trade in the Maryland gasoline market. After a trial, the district court found Crown liable on most of these charges and issued an injunction which required the defendant to enter into new 3-year leases with each of the plaintiffs and forbade Crown from cancel-ling the leases (or refusing to renew them) for any retaliatory or illegal reason. The determination of money damages was reserved for a separate trial. Three days after the permanent injunction issued, the attorney for the plaintiffs notified the court that one plaintiff, Corrado Frank Tumminello, had committed perjury, both in pretrial proceedings and during the course of the trial. Tumminello had also fabricated business records to support his perjured testimony. Crown moved for various forms of relief based on the discovery of perjury; but the district court, after considering the motions and the evidence, reaffirmed all of its previous actions except the permanent injunction (which was vacated with respect to Tumminello to protect “the integrity of the court” and otherwise continued) and one finding of fact (which was stricken). Crown appealed to this court all of the district court’s rulings in favor of the plaintiffs. While this appeal was pending, the district court held a separate trial to determine the quantum of money damages. On February 17, 1977, the court awarded plaintiffs total treble damages of $434,310 and attorneys’ fees of $200,000. Phillips v. Crown Central Petroleum Corp., 426 F.Supp. 1156 (D.Md.1977). An appeal from the damage award followed. In Phillips v. Crown Central Petroleum Corp,, 556 F.2d 702 (4th Cir. 1977), we vacated the permanent injunction without prejudice and remanded the case to the district court with instructions to hold a hearing regarding the extent of Tumminello’s perjury. Consideration of all the other issues on appeal was stayed pending the outcome of this hearing, which was held on July 22, 1977. After the hearing the district court struck some of its findings of fact, but reaffirmed its previous decision in all important respects. Crown now appeals again to this court, challenging the manner in which the remand hearing was conducted and renewing its appeals on all the previous rulings of the district court. I. The Remand Hearing We turn first to the objections raised by the defendant to the proceedings on remand from the original appeal. To understand the posture of this aspect of the case, some factual background is necessary. Plaintiff Tumminello testified at trial and in pretrial proceedings to several events which tended to prove the existence of a horizontal conspiracy among Crown and its competitors to fix prices. According to his testimony, he had on at least four occasions refused to raise his retail gasoline price when instructed to do so by Crown representatives. Those representatives told him at those times that he had to raise his price because his delay was “screwing up the arrangement” with the other oil companies. This testimony formed the basis for several of the district court’s findings of fact. After the first permanent injunction issued, an accountant examining Tumminello’s business records was unable to square the written account books with Tumminello’s story of one of the episodes described above (the one alleged to have taken place on April 24, 1971). Tumminello finally admitted to his counsel that he had lied about the incident; destroyed the genuine business records for that day, and fabricated new records that would support his false story. He continued to stand by his other testimony. The defendant filed motions pursuant to Rules 52(b), 59(a), and 60(b) of the Federal Rules of Civil Procedure, asking the court to dismiss all of the claims of every plaintiff, or to grant a new trial or other extensive discretionary relief. The district court simply struck the finding of fact which dealt with the spurious incident and reaffirmed its judgment in all other respects. On appeal from this decision, we stayed consideration of the merits of the case until the district court could conduct a “plenary hearing,” “re-appraise the case,” and then determine the appropriate findings and conclusions. Phillps v. Crown Central Petroleum Corp., supra, 556 F.2d at 705. By so doing we intimated no view on the soundness of the conclusion reached by the district court (a finding that the perjury was limited and did not infect large areas of the case); we simply instructed the court to hear Tumminello ore tenus and receive such order evidence as might be required to assess the full impact of the perjury on the case as it stood. The remand hearing took place July 22, 1977. Prior thereto Crown took a 2-day deposition of Tumminello and this was offered in evidence. However, Crown had previously indicated that it did not intend to call Tumminello to testify but would rely instead on his deposition. In view of the explicit directions from this court, the district court directed plaintiff to call Tumminello, who testified and was cross-examined extensively in open court by Crown. Crown also called as a witness, Mr. Barry Owens, an employee of Crown’s counsel, who had performed the analysis of Tumminello’s records. Crown introduced exhibits and a deposition in testimony. The trial court denied the requests of both parties to call a large number of witnesses on the issue of horizontal price fixing on the ground that such action would transform the remand hearing into a new trial. The trial judge also denied Crown’s request to recall to the stand several of Crown’s witnesses who had testified in the 1974 trial, plus another witness, James C. Blackman, who had testified previously only by deposition. The court concluded that the hearing of such testimony was not required by our order. In an opinion filed August 19, 1977, the district court denied all of Crown’s post-trial motions and reaffirmed the court’s former findings and conclusions, except for two findings of fact which were stricken in view of the testimony given at the remand hearing. The defendant raises several objections to the conduct of the remand proceedings. Most of them can be traced to a disagreement over the precise nature of the hearing contemplated by this court when we issued the remand order. The district court enunciated in this way the question to be answered at the hearing: The question ultimately presented at the remand hearing was essentially a narrow one, namely, whether Tumminello is now telling the truth or whether he is now lying in confirming on the stand under oath substantially all his prior testimony. * * * The defendant argues that this approach is somehow inconsistent with our instruction to “reappraise the case and * * * determine the appropriate findings and conclusions” in light of the evidence adduced at the hearing. We do not agree. The difficulty we found with the case on the first appeal was that the trial judge had not heard testimony from Tumminello since the disclosure of his perjury and it was uncertain how pervasive his perjury may have been. Therefore, we were reluctant to affirm findings of fact based, in part at least, on the testimony of an admitted perjurer until Tumminello was examined ore tenus and the district court had an opportunity to reassess his testimony. On review, we find that the purpose of the remand order was fulfilled to the extent that no reversal is required on account of the conduct of the remand hearing. The trial court’s refusal to again hear four Crown witnesses who were implicated in varying degrees by Tumminello’s testimony was not error, since the district court had previously found their testimony uncorroborated, and since only one of them, John W. Conway, was involved in the particular incident which Tumminello admitted he had fabricated. To put it in another way, the district court would have been required to hear these witnesses again only if Tumminello’s perjury extended into areas other than those covered by his frank admission. Since the trial judge decided that the remainder of Tumminello’s testimony was credible, he had no need to rehear the testimony of these witnesses. Taking a slightly different tack, Crown argues that on remand the district court should have applied the maxim fafeus in uno, falsus in omnibus, reinforced by the judicially enunciated observation that “intentional falsification of material records presumptively destroys the weight of the offender’s evidence as to the entire case.” Gratsos v. Moisie Bay, 287 F.2d 706, 707 (4th Cir. 1961). Crown argues that the testimony which Tumminello admitted was false differed in no material respect from much of his other testimony, and that therefore all of that other testimony should be regarded as suspect until corroborated. Even if we were inclined to utilize the maxim cited above, which this court has at various times labeled “worthless,” [Virginia Ry. Co. v. Armentrout, 166 F.2d 400, 406 (4th Cir. 1948)], “inappropriate,” [United States v. Harris, 346 F.2d 182, 185 (4th Cir. 1965)], and “always treacherous,” [Phillips v. Crown Central Petroleum Corp., supra, 556 F.2d at 705], we would not adopt the defendant’s reasoning, since the maxim has always been purely informatory, never mandatory. Norfolk and Western Ry. Co. v. McKenzie, 116 F.2d 632, 635 (6th Cir. 1941). The district court could have decided, on the basis of Tumminello’s perjury, that he was unworthy of belief on other points as well. The court did not choose to do so, and we cannot say on the record before us that the refusal was error. The court found the rest of Tumminello’s testimony to be substantiated and corroborated by other evidence of record, and we conclude that Crown has failed to show that the district court’s findings on these issues are clearly erroneous. Crown’s other objections to the conduct of the remand hearing — that it was scheduled at.a time inconvenient to Crown’s counsel, that prehearing discovery was not as extensive as it might' have been, and that the videotape of Tumminello’s remand deposition should have been received in evidence — all pertain to matters traditionally left to the trial judge’s informed discretion, and we decline to disturb such rulings absent a showing of abuse. That showing was not made here. II. The Horizontal Price-fixing Findings Since we find that no reversible error was committed in the conduct of the remand hearing, the remaining issues must be decided on the record as finally reaffirmed by the trial judge after that proceeding. We have reviewed that ample record, assisted by able briefs from counsel for both sides, and we find therein sufficient evidence to support the trial judge’s findings that a horizontal conspiracy to fix prices existed and that Crown participated in that conspiracy. Several employees and officers of Crown testified to telephone calls between Crown and its competitors; the subject of those calls was retail pricing. Wilbur Pressler, Crown’s Manager of Administration (Marketing), testified that he called Ashland Oil and Refining Company and Meadville Oil Company about the retail prices being charged by some of those companies’ gas stations, because those stations “were engaged in price competition that could seriously affect sales of the Crown station” near them. Pressler came close to admitting that his motive for making those calls was to stop the price competition among the retail gas stations concerned. Pressler also testified that he received phone calls from the Society of Independent Gasoline Marketers of America (SIGMA) concerning future retail price moves in the Maryland gasoline market. Pressler believed these calls to be “improper,” and testified that he did not encourage SIGMA, but the calls continued. Crown itself was not a member of SIGMA. Archie Garrison, who was Pressler’s predecessor as Manager of Administration, also admitted that he made telephone calls to competitors to discuss retail prices being charged by particular gas stations. Garrison called Hess Oil Company when Hess stations were hurting Crown sales by posting lower prices, asking Hess officials to “look into it.” James C. Black-man, Crown’s Mid-Atlantic Regional Office Manager, acknowledged that he had called officers of Petroleum Marketing Corporation (PMC), another Crown competitor, asking them when PMC was planning to change its retail prices. Joseph J. Gilboy, Crown’s Virginia District Manager, testified that he had received calls from PMC, asking him to raise Crown’s retail gasoline prices and informing him in advance of PMC’s price moves. When asked whether he returned calls to PMC, Gilboy equivocated. Telephone records confirm the placing of calls between Crown and each of the competitors mentioned here. These calls were verified by the testimony of the officers of the competitors who participated in them. Irving Grossman, Price Coordinator for Hess, testified that he received calls from Crown and other oil companies informing him of prospective retail pricing actions, and understood these calls to be explanations of those actions. Henry R. Wainwright, Vice President of PMC, admitted that he made calls to the other oil companies to discuss future price moves and stated specifically that he talked to John W. Conway of Crown about pricing in the Maryland area. Other evidence in the record lends support to the district court’s findings. Tumminello’s testimony (which was found credible by the trial judge) that officers of Crown had told him of an agreement with the other oil companies is corroborated by the testimony of Earl Burch, a Crown sales representative, who stated that he also received this information from his superiors at Crown. On several occasions, Blackman was able to predict the day and hour of competitors’ price changes, since he sent field agents to watch other gas stations to see whether the price changed when he thought it would. Blackman’s explanation for his prescience was that his knowledge was “based on competition in the area, what we had seen * * *Finally, there was the testimony of Howard Knox. We have reserved discussion of Knox’s testimony to the end of this review of the evidence, because it is vigorously assailed by Crown. Howard Knox was Administrative Aide and secretary to two vice presidents of PMC, Wainwright and Ferguson. Knox testified that the vice presidents for whom he worked called all the independent dealers, including Crown, just before a planned price hike to find out whether the other dealers were going to “go along” with it. He was in a position to hear the officers actually speaking with the other conspirators. These telephone calls took place during 1970 and 1971, while Knox was working for PMC. Knox himself took some messages from other independents to relay to his superiors, and he testified that he took such a message from Crown. Knox stated that he called Crown himself “six or seven times” to advise Crown of proposed changes in gasoline prices. The district court, in finding the existence of a horizontal conspiracy, accorded “particular weight” to Knox’s testimony. Crown attacks Knox’s testimony on several grounds. First, no particular dates for any of the phone calls Knox described were given, nor could Knox recall the details (as opposed to general tenor) of the price-fixing communications. Crown also suggests that Knox had a “bone to pick” with one of his superiors at PMC, implying that he had a strong motive to fabricate damaging testimony. Both of these objections, however, relate to the credibility of the witness, and the district court resolved them adversely to Crown. In the light of the whole record, we decline to upset the trial judge’s resolution of these issues. Crown’s frontal attack on Knox is based on his subsequent testimony in other proceedings, particularly a deposition taken in a subsequent civil action against PMC. Counsel for Crown attended the deposition and participated in the cross-examination, apparently for the purpose of discrediting Knox and obtaining ammunition to use in the present proceeding. Four salient points emerge from this deposition: 1. In his testimony before the trial judge in the present case, Knox said that he had no ill feelings at all toward any representative of PMC. In his deposition, he admitted that he had ill feelings toward Mr. Ralls of PMC. To that extent, his testimony before the district court in the present case was false. 2. Knox was confronted at the deposition with telephone records and company price-changing records for the periods of time he was employed by PMC and was unable to correlate particular price changes with particular telephone calls to competitors. The strong implication, according to Crown’s counsel, was that such a correlation was impossible, but without the records before us we cannot resolve the question. 3. Knox testified before the district court in the present case that he telephoned Crown to suggest price changes and that Crown representatives would later call him back to give their assent. In his deposition he admitted that, many times, the assent would be given in the same conversation. To that extent, his testimony before the district court in this case conflicted with the deposition. 4. Knox stoutly reaffirmed in his deposition that the calls he described actually took place largely as he had explained them in this case. The district court ruled that the deposition evidence was not properly a part of the record before him and refused to consider it. The court also found that even if the deposition were admitted “it would not affect the weight which this Court has accorded the trial testimony of the witness Knox.” We are disposed to agree with the district court’s ruling [cf. Curtis Publishing Co. v. Butts, 351 F.2d 702, 717 (5th Cir. 1965), aff’d 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)], since the evidence merely affected the weight to be accorded Knox’s testimony and would not have changed the result in this case. The trial judge found that the admission of the deposition in evidence would not change any finding of fact. The trial judge has made this credibility determination and we have been shown no convincing reason to disturb it. A formidable array of evidence thus supports the district court’s finding that Crown participated in an elaborate conspiracy among independent oil dealers to fix the retail price of gasoline in the Baltimore area in the early 1970’s. It is settled law that Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se. * * * United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223, 60 S.Ct. 811, 844, 84 L.Ed. 1129 (1940). Therefore, the district court’s finding of liability on the charge of horizontal price fixing must be affirmed unless Crown can demonstrate that the finding is clearly erroneous or that Crown has a legal defense. It has done neither. Crown argues that each of the pieces of evidence supporting the horizontal conspiracy finding is so small and unconvincing that the evidence as a whole does not amount to proof that a conspiracy existed. We are not constrained, however, to be so microscopic in our examination of the record. As the Supreme Court wrote in Continental Ore Co. v. Union Carbide, 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962): * * * In cases such as this, plaintiffs should be given the full benefit of their proof without tightly compartmentalizing the various factual components and wiping the slate clean after scrutiny of each. “.. [T]he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole, [citation omitted.] and in a case like the one before us, the duty of the jury [and, therefore, of the trial judge in the case at bar] was to look at the whole picture and not merely at the individual figures in it.” American Tobacco Co. v. United States, 147 F.2d 93, 106 (6th Cir. 1944). Taken as a whole, the evidence presented at trial and reviewed above affords adequate support for the conclusion that Crown participated in a horizontal price-fixing conspiracy. Crown has pointed to a few minor points in the findings of fact (such as that Crown employees were proud of the price stability in the Maryland market) which may be slightly inaccurate. But minor flaws in the record are to be expected in a case of this size and complexity, and we hold that these errors (if errors they were) are harmless. The major findings of fact are fully supported by the record. Crown next maintains that the district court failed to consider the objective evidence Crown introduced to explain and justify its pricing policies and changes. Evidence of the pricing patterns of the major oil companies, plus evidence from legitimate sources of the availability of information regarding gasoline prices charged by independent companies, says Crown, disprove the existence of a conspiracy, because the pricing policies could have arisen legitimately. This argument sidesteps the district court’s finding that these pricing policies did not arise legitimately; the trial judge was as free to disregard this evidence as he would have been to disregard the contrary evidence (supporting the conspiracy finding) which Crown now asks us to ignore. The district court did ■ not err in failing to accord conclusive weight to Crown’s evidence of independent pricing justification. Finally, Crown argues briefly that the telephone calls admittedly made by its officers about gasoline prices were legitimate inquiries to avoid potential Robinson-Patman Act violations. Passing over the obvious rejoinder that price discrimination claims under the Robinson-Patman Act arise only when prices decrease (and these calls were often associated with price increases), it is enough to point out that only one witness at trial (Wilbur Pressler) mentioned the Act as a possible justification for the pricing calls, and he failed to keep records of the calls which would be the natural object of anyone genuinely concerned over Robinson-Patman violations. The district court was justified in rejecting this tenuous contention. III. The Vertical Price-fixing Findings In addition to the horizontal agreement among the independent oil companies to stabilize retail prices, the district court also found the existence of a vertical conspiracy by means of which Crown controlled its dealers’ retail prices. Crown asserts that this finding is based on a misinterpretation of the evidence presented at trial, and that no vertical conspiracy existed. We note first that the district court found a “pervasive web of illegality,” and that the division of a price-fixing scheme such as that found here into “horizontal” and “vertical” components is, in some measure, an abstraction. The horizontal agreement would have been worthless if Crown had not the power to control the retail prices charged by its dealers. The point of the horizontal conspiracy was to stabilize the retail price market, and an agreement with competitors to hold retail prices steady would not work without control over those prices. The existence and duration of the horizontal conspiracy, then, is itself some measure of proof that Crown was able to control the retail prices its dealers charged. Crown recognizes this when it argues that the vertical price-fixing case must fall if the horizontal case is not proved. Since we have upheld the finding of horizontal price fixing, the reverse is true: the vertical price-fixing conspiracy finding is buttressed by the finding of the horizontal conspiracy. Turning to the substantive evidence, we find in the record ample support for the district court’s finding of vertical price fixing. The most convincing piece of hard evidence is a memorandum dated October 9, 1968, which Crown Vice President John I. Loving wrote to Crown Regional Manager T. H. Cahir (with copies to Garrison and Pressler). The memorandum outlined the agreement to be reached with a new independent dealer. The first paragraph of the outline read: Gross gasoline margins of 4.75$ and 5.25$ house brand and premium, respectively. Margins on both grades to escalate up or down ¼$ per gallon with each 1$ on the pump (base posting = 29.9$ and 33.9$). This does not apply to postings increased due to a tax increase. Minimum margin will be 3.75$ and 4.25$. Above understanding to be verbal. Pump postings at Crown’s discretion. This single piece of evidence demonstrates that Crown was to control both the retail price being set and the dealer’s profit margin, which was to be keyed directly to the preset retail price. Its insistence on a verbal agreement also suggests some consciousness of wrongdoing on the part of Crown’s officers. Crown attempts to circumvent the devastating implications of this memorandum by maintaining that the document was an internal communication which described Crown’s method of calculating its wholesale price from a previously determined “suggested” retail price. This argument must fail, since the document by its own terms is a description of the agreement to be reached with the dealer, not a guide to wholesale price calculation. Furthermore, the phrase “pump postings at Crown’s discretion” is hardly consonant with the notion of a “suggested” price; it sounds more like a fiat than a suggestion. A second highly probative piece of evidence is a clause in Crown’s standard dealer lease which provided that any dealer’s lease could be cancelled on 5-days’ notice for any reason, or for no reason at all. Short-term leases have been found to be inherently coercive devices, and when used to promote price-fixing schemes they become patently illegal. The Supreme Court wrote in Atlantic Refining Co. v. FTC, 381 U.S. 357, 368, 85 S.Ct. 1498, 1505, 14 L.Ed.2d 443 (1965), that * * * Among the sources of leverage in [the oil company’s] hands are its lease and equipment loan contracts with their cancellation and short-term provisions. Only last Term we described the power implications of such arrangements in Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964), and we need not repeat that discussion here. * * The inherently coercive leases found unacceptable in Simpson were simply 1-year renewable leases with no 5-day cancellation clause like that found here. Of course, the mere existence of the clause does not prove an antitrust violation. It must be shown that the clause was used to further an illegal scheme. An abundant showing was made in this case. Plaintiffs Phillips and Freitag were threatened with abrupt cancellations if they failed to comply with Crown’s “suggested” retail prices. So were Margaret Kling, David Horner, and William O’Hara, three Crown dealers who are not parties to this suit. Furthermore, all four plaintiffs, and other nonparty witnesses, testified to considerable pressure by Crown to insure compliance with Crown’s retail pricing policies. On one occasion, a Crown representative actually changed the prices on Tumminello’s pumps during his absence from his station. Other testimony could be cited, but what we have discussed establishes that the trial judge permissibly found the existence of an extensive (and largely successful) vertical price-fixing conspiracy. Consequently, the district court’s finding of liability on the vertical price-fixing conspiracy count is affirmed. IV. The Motor Oil Tying Agreement Crown prohibited its dealers from selling any brands of motor oil other than Crown’s own. The district court held that this prohibition was an illegal tying agreement in violation of section 1 of the Sherman Act (15 U.S.C. § 1). Because we feel that the district court misinterpreted the emerging law of tie-ins in franchise settings, we reverse on this issue. A per se tying violation is shown when three elements exist: The fact of a tying agreement, the affecting of a “not insubstantial” amount of interstate commerce, and sufficient economic power in the market for the tying product for the seller to restrain competition in the market for the tied product. Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). The first of these elements is uncontested; the district court’s finding that the second existed is supported by substantial evidence and should not be disturbed. The difficulty centers on the third element — the seller’s economic power in the market for the tying product. The district court nowhere identified what it considered to be the tying product in this case. It is possible that either Crown gasoline or Crown service station leases were deemed to be the tying product. Without inquiring at length into the market for either, the court simply observed that Crown’s power to impose the tie-in was amply demonstrated by the fact that it had done so. The court was probably guided by remarks in past tying cases that the oil company’s plenary economic power over its dealers is inherent in the structure and economics of the petroleum distribution system. Federal Trade Commission v. Texaco, Inc., 393 U.S. 223, 226, 89 S.Ct. 429, 21 L.Ed.2d 394 (1968). But that comment, and others like it, were made in cases where the tied product was not purchased directly from the seller of the tying product. Slightly different considerations apply when the tying agreement is part of an otherwise valid franchise arrangement, since the very essence of a franchise is the purchase of several related products in a single competitively attractive package. A thorough discussion of the law of tying agreements in franchise settings is found in Ungar v. Dunkin’ Donuts of America, Inc., 531 F.2d 1211, 1224 (3d Cir. 1976). The Third Circuit, faced with the problem of deciding whether class action plaintiffs had to show that they were each individually coerced by the exercise of dominant market power, analyzed the problem in this way: * * * Under the district court’s theory a class of franchisees could prove a per se illegal tying arrangement by establishing: (1) that the franchisor was economically dominant over its franchisees; (2) that the franchisor offered for sale, and sold, more than one product to its franchisees; and (3) that the franchisor had a policy to persuade franchisees to buy its products. It is difficult to conceive of a franchisor-franchisee relationship in which this could not be established. The very nature of the franchise institution contemplates the presence of a comparatively strong financial entity — the franchisor — that makes available to a relatively weaker financial entity — the franchisee — an attractive business opportunity at a relatively modest initial investment. * * * This analysis makes clear that it is the seller’s power in the lease market that must be examined (since no dealer could obtain or keep a Crown lease without agreeing to the tie-in) to see if the necessary economic power existed. Such an inquiry was outlined in Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977), where the court observed: * * * Plaintiffs could show, for example that the defendants controlled a majority of existing service stations and that because zoning restrictions and high capital costs make development of new stations difficult, the defendants have sufficient market dominance over existing stations to impose a tie-in. [561 F.2d at 454.] No showing of this kind was made in this case. The only relevant evidence in the record is that Crown’s service stations captured about 4 percent of the gasoline market in the Baltimore area. And this figure is of doubtful relevance to power in the lease market. Lacking any other evidence on this point, it is clear that plaintiff’s tying claim must fall for failure of proof. Accordingly, the motor oil tying agreement did not violate section 1 of the Sherman Act; the plaintiffs are not entitled to damages, and the district court’s holding on this issue is reversed. As an alternate ground for our decision, we note that even if gasoline, not the lease, is viewed as the tying product, plaintiff’s claim would still fail. In Osborn v. Sinclair Refining Co., 286 F.2d 832 (4th Cir. 1960), we held that an oil company whose share of the market was more than 10 percent had sufficient economic power to support a finding of an illegal tying agreement where the tied product was not purchased from the lessor as part of the franchise agreement, rather from a third party which paid a commission to the lessor. The Osborn case probably represents a showing very close to the minimum permissible, and the case before us simply does not fall within the Osborn rule either quantitatively (4 percent as opposed to 10 percent) or qualitatively (tied product produced by a seller-landowner as opposed to third party producer). Cf. the Supreme Court’s remarks about market share in United States Steel Corp. v. Fortner Enterprises, 429 U.S. 610, 614, 97 S.Ct. 861, 51 L.Ed.2d 80 (1977). Thus, while we hold that the tying product in this case is the service station lease, the result we reach would not differ if the tying product were gasoline. V. The Refusals to Renew Crown also attacks the district court’s finding that Crown’s refusal to renew the leases of the plaintiffs in due course constituted an unlawful refusal to deal, because the refusals were in furtherance of a price-fixing scheme which violated the antitrust laws. Crown argues that the testimony of its witnesses showed that there was a valid business purpose for each of the terminations, unrelated to any antitrust violations. Plaintiffs respond that the supposed “business reasons” were just fabrications, and that until they began to protest Crown’s illegal pricing policies, there had been no reason.to refuse the renewal of their leases. The determination of motive, especially in a cloudy area, is a matter peculiarly within the province of the trier of fact. We conclude that the trial judge did not err in deciding as he did, for there was substantial evidence to support his conclusion. Plaintiffs’ past good records in the operation of their stations, the extensive evidence that operators with more serious problems than the plaintiffs were never terminated, and the evasiveness on the stand of Edward T. Gillespie, Crown’s main witness on this matter

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

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

NATIONAL LABOR RELATIONS BOARD v. LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL-CIO, et al. No. 76-719. Argued October 31, 1977 Decided January 17, 1978 Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Richard A. Allen, John 8. Irving, Carl L. Taylor, and Linda Sher. Sydney L. Berger argued the cause for respondents. With him on the brief was Charles L. Berger. J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae. Mr. Justice White delivered the opinion of the Court. Sections 8 (b) (7) and 8 (f) were added to the National Labor Relations Act in 1959. Section 8 (f), permitting so-called “prehire” agreements in the construction industry, provides that it shall not be an unfair labor practice to enter into such an agreement with a union that has not attained majority status prior to the execution of the agreement. Under § 8 (b) (7) (C), a union that is not the certified representative of the employees in the relevant unit commits an unfair labor practice if it pickets an employer with “an object” of “forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees” and if it does not within 30 days file a petition for an election under §9 (c). The National Labor.Relations Board (Board) held that it is an unfair labor practice within the meaning of § 8 (b) (7) (C) for an uncertified union not representing a majority of the employees to engage in extended picketing in an effort to enforce a prehire agreement with the employer. The issue here is whether this is a misapplication of the section, as the Court of Appeals held in this case. I Higdon Construction Co. and Local 103 of the International Association of Bridge, Structural &; Ornamental Iron Workers, AFL-CIO (hereinafter Local 103), had a history of collective bargaining dating back to 1968. A prehire agreement was reached by Local 103 and Higdon on July 31, 1973, obliging Higdon to abide by the terms of the multiemployer understanding between Local 103 and the Tri-State Iron Workers Employers Association, Inc. No union security clause provision was contained in the Local 103-Higdon agreement. At about the same time, Higdon Contracting Co. was.formed for the express purpose of carrying on construction work with nonunion labor. Local 103 picketed two projects subsequently undertaken by Higdon Contracting Co.,, in Kentucky and Indiana, with signs which read: "Higdon Construction Company is in violation of the agreement of the Iron Workers Local Number 103.” Picketing at one jobsite persisted for more than 30 days, into March 1974. Local 103 had never represented a majority of the employees at either site and, although it was free to do so, it did not petition for a representation election to determine the wishes of the employees at either location. On March 6, 1974, Higdon Contracting Co. filed a charge with the Regional Director of the Board, alleging that Local 103 was violating § 8 (b) (7) of the Labor Act. The Administrative Law Judge found that Higdon Contracting Co. and Higdon Construction Co. were legally indistinct for purposes of the proceedings. In -an opinion issued August 23, 1974, he concluded that Local 103’s picketing did not constitute an unfair labor practice. Higdon had entered into a lawful § 8 (f) prehire contract with Local 103 by which it promised to abide by the multiemployer standard. The picketing was for purposes of obtaining compliance with an existing contract, rather than to obtain recognition or bargaining as an initial matter. Only the latter was a purpose forbidden by § 8 (b)(7). The Board did not agree with the Administrative Law Judge. Relying on its R.J. Smith decision, the Board emphasized the fact that Local 103 had never achieved majority status, and the § 8 (f) agreement thus had no binding force on the employer. For this reason, Local 103’s picketing was not simply for the purpose of forcing compliance with an existing contract, even though the Board accepted the finding that only a single employer was involved. Under the Board’s view of the law and the evidence, an object of the picketing was “forcing and requiring Higdon Contracting Company, Inc., to bargain with [Local 103], without being currently certified as the representative of Higdon Contracting Company, Inc.’s employees and without a petition under Section 9 (c) being filed within a reasonable period of time....” Local 103 sought review in the United States Court of Appeals for the District of Columbia Circuit. That court set aside the order, as it had set aside the Board’s R. J. Smith order three years previously. The Court of Appeals ruled that the validity of a § 8 (f) prehire contract carried with it the right to enforce that contract by picketing, and the right as well, when breach of the agreement occurs, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. This elevation of a nonmajority union to the rights of majority status was acceptable, in the court’s view, because of the second proviso to § 8 (f), which denies the usual contract bar protection to prehire agreements and permits a representation election to be held at the instance of either party at any time during the life of the agreement. The Board’s subsequent petition to this Court for a writ of certiorari was granted. We reverse. II It is undisputed that the union was not the certified representative of Higdon’s employees and that it did not file an election petition within 30 days of the onset of the picketing. The issue for the Board was whether for the purposes of § 8 (b)(7)(C), the.union pickets carrying signs asserting that Higdon was violating an agreement with the union were picketing with the forbidden purpose of requiring Higdon to recognize or bargain with the union. Under the Board’s view of § 8 (f), a prehire agreement does not entitle a minority union to be treated as the majority representative of the employees until and unless it attains majority support in the relevant unit. Until that time the prehire agreement is voidable and does not have the same stature as a collective-bargaining contract entered into with a union actually representing a majority of the employees and recognized as such by the employer. Accordingly, the Board holds, as it did here, that picketing by a minority union to enforce a prehire agreement that the employer refuses to honor, effectively has the object of attaining recognition as the bargaining representative with majority support among the employees, and is consequently violative of § 8 (b) (7) (C). The Board and the Court of Appeals thus differ principally on the legal questions of how § 8 (f) is to be construed and of what consequences the execution of a prehire agreement has on the enforcement of other sections of the Act, primarily §§ 8 (a)(5) and 8 (b)(7) (C). We have concluded that the Board’s construction of the Act, although perhaps not the only tenable one, is an acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections. Although on its face, §8 (b)(7)(C) would apply to any extended picketing by an uncertified union where recognition or bargaining is an object, the section has not been literally applied. The Board holds that an employer’s refusal to honor a collective-bargaining contract executed with the union having majority support is a refusal to bargain and an unfair labor practice under § 8 (a) (5). Extended picketing by the union attempting to enforce the contract thus seeks to require bargaining, but as the Board applies the Act, § 8 (b) (7) (C) does not bar such picketing. Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086 (1964); Bay Counties District Council of Carpenters (Disney Roofing & Material Co.), 154 N. L. R. B. 1598, 1605 (1965). The prohibition of § 8 (b)(7)(C) against picketing with an object of forcing an employer “to recognize or bargain with a labor organization” should not be read as encompassing two separate and unrelated terms, but was “intended to proscribe picketing having as its target forcing or requiring an employer’s initial acceptance of the union as the bargaining representative of his employees.” Sullivan Electric, supra, at 1087. As the present case demonstrates, however, the Sullivan Electric rule does not protect picketing to enforce a contract entered into pursuant to § 8 (f) where the union is not and has never been the chosen representative of a majority of the employees in a relevant unit. Neither will the Board issue a § 8 (a) (5) bargaining order against an employee refusing to abide by a § 8 (f) contract unless the complaining union can demonstrate its majority status in the unit. R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971). The Board’s position is rooted in the generally prevailing statutory policy that a union should not purport to act as the collective-bargaining agent for all unit employees, and may not be recognized as such, unless it is the voice of the majority of the employees in the unit. Section 7 of the Act, 61 Stat. 140, 29 U. S. C. § 157, guarantees the employees the right to bargain collectively with representatives of their own choosing. Section 9 (a), 29 U. S. C. § 159 (a), provides that the bargaining agent for all of the employees in the appropriate unit must be the representative “designated or selected for the purposes of collective bargaining by the majority of the employees....” It is thus an unfair practice for an employer under §§ 8 (a) (1) and (2) and for a union under § 8 (b) (1) (A) to interfere with, restrain, or coerce employees in the exercise of their right to select their representative. The Court has held that both union and employer commit unfair practices when they sign 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. “There could be no clearer abridgment of § 7 of the Act, assuring employees the right 'to bargain collectively through representatives of their own choosing’ or 'to refrain from’ such activity” than to grant “exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the noncon-senting majority.” Garment Workers v. NLRB, 366 U. S. 731, 737 (1961). This is true even though the employer and the union believe in good faith, but mistakenly, that the union has obtained majority support. “To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Act — that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives.” Id., at 738-739. Section 8 (f) is an exception to this rule. The execution of an agreement with a minority union, an act normally an unfair practice by both employer and union, is legitimated by § 8 (f) when the employer is in the construction industry. The exception is nevertheless of limited scope, for the usual rule protecting the union from inquiry into its majority status during the terms of a collective-bargaining contract does not apply to prehire agreements. A proviso to the section declares that a § 8 (f) contract, which would be invalid absent the section, “shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e).” The employer and its employees — and the union itself for that matter — may call for a bargaining representative election at airy time. The proviso exposing unions with prehire agreements to inquiry into their majority standing by elections under § 9 (c) led the Board to its decision in R. J. Smith: An employer does not commit an unfair practice under § 8 (a)(5) when he refuses to honor the contract and bargain with the union and the union fails to establish in the unfair labor practice proceeding that it has ever had majority support. As viewed by the Board, a “prehire agreement is merely a preliminary step that contemplates further action for the development of a full bargaining relationship.” Ruttmann Construction Co., 191 N. L. R. B. 701, 702 (1971). The employer’s duty to bargain and honor the contract is contingent on the union’s attaining majority support at the various construction sites. In NLRB v. Irvin, 475 F. 2d 1265 (CA3 1973), for example, the prehire contract was deemed binding on those projects at which the union had secured a majority but not with respect to those projects not yet begun before the union had terminated the contract. Applying this view of § 8 (f) in the § 8 (b) (7) (C) context, the Board held in this case that when the union picketed to enforce its prehire agreement, Higdon could challenge the union's majority standing by filing a § 8 (b) (7) charge and could prevail, as Higdon did here, because the union admittedly lacked majority credentials at the picketed projects. Absent these qualifications, the collective-bargaining relationship and the union’s entitlement to act as the exclusive bargaining agent had never matured. Picketing to enforce the § 8 (f) contract was the legal equivalent of picketing to require recognition as the exclusive agent, and § 8 (b) (7) (C) was infringed when the union failed to request an election within 30 days. Nothing in the language or purposes of either § 8 (f) or § 8 (b) (7) forecloses this application of the statute. Because of § 8 (f), the making of prehire agreements with minority unions is not an unfair practice as it would be in other industries. But § 8 (f) itself does not purport to authorize picketing to enforce prehire agreements where the union has not achieved majority support. Neither does it expand the duty of an employer under §8 (a)(5), which is to bargain with a majority representative, to require the employer to bargain with a union with which he has executed a prehire agreement but which has failed to win majority support in the covered unit. As for § 8 (b)(7), which, along with § 8 (f), was added in 1959, its major purpose was to implement one of the Act’s principal goals — to ensure that employees were free to make an uncoerced choice of bargaining agent. As we recognized in Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975), “[o]ne of the major aims of the 1959 Act was to limit 'top down’ organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees.” Id., at 632, and references cited therein. The use of picketing was of particular concern as a method of coercion in three specific contexts: where employees had already selected another union representative, where employees had recently voted against a labor union, and where employees had not been given a chance to vote on the question of representation. Picketing in these circumstances was thought impermissibly to interfere with the employees’ freedom of choice. Congressional concern about coerced designations of bargaining agents did not evaporate as the focus turned to the construction industry. Section 8 (f) was, of course, motivated by an awareness of the unique situation in that industry. Because the Board had not asserted jurisdiction over the construction industry before 1947, the House Committee Report observed that concepts evoked by the Board had been “developed without reference to the construction industry.” H. R. Rep. No. 741, 86th Cong., 1st Sess., 19 (1959), 1 Leg. Hist. 777. There were two aspects peculiar to the building trades that Congress apparently thought justified the use of prehire agreements with unions that did not then represent a majority of the employees: “One reason for this practice is that it is necessary for the employer to know his labor costs before making the estimate upon which his bid will be based. A second reason is that the employer must be able to have available a supply of skilled craftsmen ready for quick referral.” Ibid. The Senate Report also noted that “[representation elections in a large segment of the industry are not feasible to demonstrate... majority status due to the short periods of actual employment by specific employers.” S. Rep. No. 187, 86th Cong., 1st Sess., 55 (1959), 1 Leg. Hist. 541-542. Privileging unions and employers to execute and observe prehire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, but in no sense can it be portrayed as an expression of the employees’ organizational wishes. Hence the proviso that an election could be demanded despite the prehire agreement. By the same token, because § 8 (b) (7) was adopted to ensure voluntary, uncoerced selection of a bargaining representative by employees, we cannot fault the Board for holding that § 8 (b)(7) applies to a minority union picketing to enforce a prehire contract. The Board’s position does not, as respondents claim, render § 8 (f) meaningless. Except for § 8 (f), neither the employer nor the union could execute prehire agreements without committing unfair labor practices. Neither has the Board challenged the voluntary observance of otherwise valid § 8 (f) contracts, which is the normal course of events. It is also undisputed that when the union successfully -seeks majority support, the prehire agreement attains the status of a collective-bargaining agreement executed by the employer with a union representing a majority of the employees in the unit. The Board's resolution of the conflicting claims in this case represents a defensible construction of the statute and is entitled to considerable deference. Courts may prefer a different application of the relevant sections, but “[t]he function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.” NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957); NLRB v. Insurance Agents, 361 U. S. 477, 499 (1960). Of course, “recognition of the appropriate sphere of the administrative power... obviously cannot exclude all judicial review of the Board’s actions.” Ibid. But we cannot say that the Board has here “[moved] into a new area of regulation which Congress [has] not committed to it.” Ibid, In American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965), the Court was “unable to find that any fair construction of the provisions relied on by the Board... can support its finding of an unfair labor practice.... [T]he role assumed by the Board... -[was] fundamentally inconsistent with the structure of the Act and the function of the sections relied upon.” As we have explained, this is not the case here. The union suggests that the Board’s construction of § 8 (f) deserves little or no deference because it is merely an application in the § 8 (b)(7) context of the decision in R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971), which itself was inconsistent with a prior decision, Oilfield Maintenance Co., 142 N. L. R. B. 1384 (1963). It is not at all clear from the latter.case, however, that the union involved there had never had majority status. The issue received only passing attention at the time; and the case was distinguished by the Board in Ruttmann Construction Co., 191 N. L. R. B., at 701 n. 5, decided the same day as R.J. Smith, supra, as being “primarily concerned” with “the right of a successor-employer to disavow contracts made by a predecessor with five different unions and substitute the terms of a contract it had with another union.” In any event, if Oilfield Maintenance represents a view that the majority status of the union executing a prehire agreement may not be challenged in unfair labor practice proceedings, the Board has plainly not adhered to that approach. Its contrary view has been expressed on more than one occasion. An administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes. The union argues that the Board’s position permitting an employer to repudiate a prehire agreement until the union attains majority support renders the contract for all practical purposes unenforceable, assertedly contrary to this Court’s decision in Retail Clerks v. Lion Dry Goods, Inc., 369 U. S. 17 (1962). There, the Court’s opinion recognized that § 301 of the Labor Management Relations Act confers jurisdiction on the federal courts to entertain suits on contracts between an employer and a minority union, as well as those with majority-designated collective-bargaining agents. Section 8 (f) contracts were noted as being in this category. The Court was nevertheless speaking to an issue of jurisdiction. That a court has jurisdiction to consider a suit on a particular contract does not suggest that the contract is enforceable. It would not be inconsistent with Lion Dry Goods for a court to hold that the union’s majority standing is subject to litigation in a § 301 suit to enforce a § 8 (f) contract, just as it is in a § 8 (a) (5) unfair labor practice proceeding, and that absent a showing that the union is the majority’s chosen instrument, the contract is unenforceable. It is also clear from what has already been said, that the decision here is not inconsistent with Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086 (1964). That case merely permits picketing to enforce contracts with a union actually representing a majority of the employees in the unit. Here, the union did not represent the majority, and in picketing to enforce the prehire agreement, it sought the privileges of a majority representative. The conclusion that § 8 (b) (7) was violated is legally defensible and factually acceptable. The judgment of the Court of Appeals is reversed. So ordered. Section 8 (b) (7), 73 Stat. 544, 29 U. S. C. § 158 (b) (7), provides: “It shall be an unfair labor practice for a labor organization or its agents... to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees: “ (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act, “(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or “(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9 (c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. “Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8 (b) Section 8 (f), 73 Stat. 545, 29 U. S. C. § 158 (f), provides: “It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and- construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreements, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area -. Provided, That nothing in this subsection shall set aside the final proviso to section 8 (a) (3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e).” Iron Workers Local 103 (Higdon Contracting Co.), 216 N. L. R. B. 45 (1975). Iron Workers Local 103 v. NLRB, 175 U. S. App. D. C. 259, 535 F. 2d 87 (1976). R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971), enf. denied sub nom. Engineers Local 160 v. NLRB, 156 U. S. App. D. C. 294, 480 F. 2d 1186 (1973). Engineers Local 150 v. NLRB, supra. 429 U. S. 1089 (1977). As will appear, the Board’s conclusion, that an object of the picketing was to obtain recognition even though Local 103 sought only to enforce the § 8 (f) contract, flows from the Board’s view that a prehire contract is not the equivalent of recognizing the union as the majority representative of the employees, and that an attempt to enforce the prehire agreement by picketing to require the employer to treat with the union is recognitional picketing. Determining the object, or objects, of labor union picketing is a recurring and necessary function of the Board. Its resolution of these mixed factual and legal questions normally survives judicial review. A type of activity frequently found to violate § 8 (b) (7) is picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers. Even in cases where the union expressly disavows any recognitional intent, acceptance of the uniform terms proposed by the union can have the “net effect” of establishing the union “as the negotiator of wage rates and benefits.” Centralia Building & Construction Trades Council v. NLRB, 124 U. S. App. D. C. 212, 214, 363 F. 2d 699, 701 (1966). “The Board has held that informing the public that an employer does not employ members of a'labor organization indicates an organizational object, and that stating that an employer does not have a contract with a labor organization similarly implies an object of recognition and bargaining.” Carpenters Local 906, 204 N. L. R. B. 138, 139 (1973). Hence, picketing to enforce area standards, where an employer had been assured by notice from the union that “while we expect you to observe the wages, hours, and other benefits set forth in these documents, we do not expect or seek any collective bargaining relationship with your firm,” has been held to violate § 8 (b) (7). Hotel & Restaurant Employees (Holiday Inns of America, Inc.), 169 N. L. R. B. 683, 684 (1968). The Courts of Appeals have upheld the Board in these inferences. “Though this legend [‘Non-Union Conditions’] could be interpreted as merely a protest of the restaurant’s working conditions, it was reasonable for the NLRB to conclude that the message... was at least in part that the union desired to alter a non-union working situation by obtaining recognition. In the absence of any countervailing evidence, the NLRB could thus determine that the purpose of the picketing was recog-nitional.” San Francisco Local Joint Board v. NLRB, 163 U. S. App. D. C. 234, 239, 501 F. 2d 794, 799 (1974). See also NLRB v. Carpenters, 450 F. 2d 1255 (CA9 1971), and cases cited therein. In the present case, the Local’s business agent contacted Higdon Contracting’s general manager, asking “if ‘we’ were going to use union people on the job.” The general manager answered in the negative; the business agent replied, “I'll get right on it,” and the pickets materialized. The message on the picket signs announced that Higdon was not in compliance with the terms of its agreement with Local 103. The inference is certainly sustainable that Local 103 wished Higdon to abide by those terms. Hence, if the Board is correct in its view of the interaction of §§ 8 (f) and 8 (b)(7)(C), the Board’s decision here was within settled precedent in concluding that a purpose of the picketing was to force Higdon Contracting to recognize or bargain with the union. The picketing carried on in this case, unless § 8 (f) required a contrary conclusion as a matter of law, was in clear violation of § 8 (b) (7) (C). See NLRB v. Hyde, 339 F. 2d 568, 571-573 (CA9 1965). A contract with a majority representative also carries with it the presumption that the union’s majority status still obtains. Dayton Motels, Inc., 192 N. L. R. B. 674, 678 (1971), remanded, 474 F. 2d 328 (CA6 1973), enf’d, 525 F. 2d 476 (CA6 1976). “The total effect of these proposals in the administration bill would be to regulate picketing so that employers and their employees will not be subject to the continuous coercion of an organizational picket line.” 105 Cong. Rec. 1731 (1959) (remarks of Sen. Dirksen), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 994 (hereinafter cited as Leg. Hist.). The administration bill had added the provisions that would become §8 (b)(7). The Department of Labor’s explanatory statement grouped together the ways in which unfair picketing pressure could be exerted, and noted that the bill would make it “an unfair labor practice, subject to mandatory injunction, for a union to picket in order to coerce an employer to recognize it as bargaining representative of his employees....” 105 Cong. Rec. 1281 (1959), 2 Leg. Hist. 977. The President’s transmittal letter had stated: “I recommend legislation... [t]o make it illegal for a union, by picketing, to coerce an employer to recognize it as the bargaining representative of his employees or his employees to accept or designate it as their representative where the employer has recognized in accordance with law another labor organization, or where a representation election has been conducted within the last preceding 12 months, or where it cannot be demonstrated that there is a sufficient showing of interest on the part of the employees in being represented by the picketing union or where the 'picketing has continued for a reasonable period of time without the desires of the employees being determined by a representation election; and to provide speedy and effective enforcement measures.” S. Doc. No. 10, 86th Cong., 1st Sess., 2-3 (1959), 1 Leg. Hist. 81-82 (emphasis added). Congress was careful to make its intention clear that prehire agreements were to be arrived at voluntarily, and no element of coercion was to be admitted into the narrow exception being established to the majority principle. Representative Barden, an important House floor leader on the bill and a conferee, introduced as an expression of legislative intent Senator Kennedy's explanation the year before of the voluntary nature of the prehire provision: “Mr. Kennedy: I shall answer the Senator from Florida as follows — and it is my intention, by so answering, to establish the legislative history on this question: It was not the intention of the committee to require by section 604 (a) the making of prehire agreements, but, rather, to permit them; nor was it the intention of the committee to authorize a labor organization to strike, picket, or otherwise coerce an employer to sign a prehire agreement where the majority status of the union had not been established. The purpose of this section is to permit voluntary prehire agreements.” 105 Cong. Rec. 18128 (1969), 2 Leg. Hist. 1715. The House Conference Report similarly stressed that “[n]othing in such provision is intended... to authorize the use of force, coercion, strikes, or picketing to compel any person to enter into such prehire agreements.” H. R. Rep. No. 1147, 86th Cong., 1st Sess., 42 (1959), 1 Leg. Hist. 946. A comparable situation obtains concerning hot-cargo clauses, which are permitted in the construction industry by § 8 (e), 29 U. S. C. § 158 (e), but which cannot be enforced by picketing. Before the enactment of the proviso, this Court held that it was a violation of the secondary boycott provisions of the Act, §8 (b)(4) (A), 61 Stat. 136, to enforce a lawful hot-cargo clause in a contract by

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

What is the issue of the decision?

James D. THOMAS, Plaintiff-Appellant, v. John CARPENTER, Defendant-Appellee. No. 88-6507. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1989. Decided Aug. 9, 1989. George W. Shaeffer, Jr., Silver, Kreisler, Goldwasser & Shaeffer, Newport Beach, Cal., for plaintiff-appellant. Eric S. Oto, Cotkin, Collins & Franscell, Los Angeles, Cal., for defendant-appellee. Before HUG, HALL and WIGGINS, Circuit Judges. WIGGINS, Circuit Judge: We must consider in this case the right of a public employee to seek election to the position occupied by his supervisor, free from retaliatory action against him when he fails. Under the circumstances of this case, we hold that the public employee states a cause of action. I Appellant James D. Thomas, a Lieutenant for the County of Santa Barbara Sheriff’s Department, appeals from the district court’s dismissal of his second-amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Thomas’s complaint alleges civil rights violations against the County of Santa Barbara and its sheriff, John Carpenter, and seeks both injunctive relief and compensatory and punitive damages under 42 U.S.C. § 1983 (1982). The district court dismissed the complaint with prejudice, concluding that Carpenter's alleged conduct as a matter of law did not violate Thomas’s constitutional rights. We have jurisdiction of Thomas’s timely appeal under 28 U.S.C. § 1291 (1982). A dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) is a ruling on a question of law and as such is reviewed de novo. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir.1986). We cannot uphold such a dismissal “unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved. All material allegations in the complaint are to be taken as true and construed in the light most favorable to the non-moving party.” Id. The material allegations in Thomas’s complaint are as follows. Thomas has been employed by the Santa Barbara Sheriffs Department since 1973. He attained the position of Lieutenant in 1982. A Lieutenant is defined by the department's policy and discipline manual as a “subexecu-tive” whose duty is to “carry out department policies and administer and supervise the work of various subdivisions.” As a Lieutenant, Thomas is not responsible for developing departmental policy, and therefore he, like any other employee, can only recommend policy changes through the designated chain of command. During his tenure as Lieutenant, Thomas had attended over 100 departmental staff meetings in the absence of his Division Commander, attended departmental policy manual revision meetings in conjunction with other Lieutenants in the department, and participated as an evaluator in training exercises for the department’s high risk entry team. In 1986 Thomas challenged Carpenter, the incumbent sheriff, in the June election for that office. Thomas’s campaign literature focused on Carpenter’s commitment to the sheriff’s department and challenged his competence in running an efficient law enforcement agency. Carpenter won the election, receiving 54% of the vote to Thomas’s 46%. After the election, Carpenter banned Thomas from attending departmental staff meetings, from attending policy manual revision meetings, and from participating as an evaluator for the department’s high risk entry team. Thomas is the only Lieutenant in the department singled out for exclusion, purportedly in retaliation of his campaign against Carpenter for the office of Sheriff. Carpenter asserts that he took these steps because of Thomas’s disloyalty and untrustworthiness, but he has not formerly charged Thomas in any departmental disciplinary proceedings. Carpenter’s conduct is alleged to have diminished Thomas’s professional reputation so that he has lost promotional opportunities within the department and lateral opportunities with other law enforcement agencies in California. He seeks general damages, punitive damages, and injunctive relief. II “ ‘To make out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.’ ” Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1313-14 (9th Cir.1989) (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987)). The district court concluded that Thomas’s allegations failed to meet the second of these two elements. The district court reasoned that Thomas was not deprived of any protected right because he “was neither terminated nor demoted nor transferred,” and he “had no given right to attend policymak-ing meetings.” Underlying this rationale is the notion that dismissal was proper because Thomas failed to allege a constitutionally protected property interest. But such allegations are unnecessary under the theory of Thomas’s claim. Because “[sjtate action designed to retaliate against and chill political expression strikes at the heart of the First Amendment,” Gibson, 781 F.2d at 1338, all that Thomas’s complaint needs so as to avoid dismissal are allegations that Carpenter’s conduct was motivated by an intent to retaliate for his exercise of constitutionally protected rights, see Soranno’s Gasco, Inc., at 1314 n. 3 (“The fact that he had no protected property interest in continued employment was not dispositive because his firing, if retaliatory, effectively deprived him of his constitutionally protected right to free speech.”). It is therefore of no consequence that, as Thomas alleges, Carpenter chose to remove certain responsibilities from his usual duty assignments instead of terminating, demoting, or transferring him. See, Allen v. Scribner, 812 F.2d 426, 434 n. 16 (9th Cir.1987) (“If Allen reasonably felt that office work was less desirable than field work, his reassignment might have had an impermissible chilling effect on his constitutionally protected speech,” even if the tasks “were commensurate with his training and experience.”), modified, 828 F.2d 1445 (9th Cir.1987); cf. Elrod v. Burns, 427 U.S. 347, 359 n. 13, 96 S.Ct. 2673, 2683 n. 13, 49 L.Ed.2d 547 (1976) (conduct used to discourage the exercise of first amendment freedoms “need not be particularly great in order to find that rights have been violated”; for example, “[rjights are infringed both where the government fines a person a penny for being a Republican and where it withholds the grant of a penny for the same reason”). The crux of this case, then, rests on whether Thomas’s complaint sufficiently alleges that Carpenter acted with an intention of retaliating against the exercise of constitutionally protected rights. Carpenter does not challenge Thomas’s allegations that the “substantial” or “motivating” factor of his decisions banning him from certain duties was because of Thomas’s candidacy for Sheriff. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-86, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977) (after plaintiff satisfies his burden of showing that the defendant’s conduct was motivated by his exercise of a constitutional right, the burden shifts to the defendant to establish that the decision would have been no different even in the absence of the protected conduct). Instead, Carpenter contends that Thomas’s campaign against him is not constitutionally protected. Whether a public employee’s conduct is constitutionally protected necessarily involves balancing “ ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987) (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). “The threshold question in applying this balancing test is whether [Thomas’s] speech may be ‘fairly characterized as constituting speech on a matter of public concern.' ” Id. 107 S.Ct. at 2896-97 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)). This inquiry is “determined by the content, form, and context of a given statement, as revealed by the whole record.” Id. 107 S.Ct. at 2897 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690). There is no doubt that the allegations of Thomas’s complaint, taken as true, satisfies this threshold inquiry. The content of Thomas’s speech was to challenge Carpenter’s commitment to the Sheriff’s department and his competence in running an efficient law enforcement agency. Cf. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (“the competency of the police force is surely a matter of great public concern”). The form of the speech was literature disseminated widely throughout the County of Santa Barbara. And, of great significance, the statements occurred in the context of a political campaign. The content, form, and context of these statements clearly satisfy the threshold requirement even under the most exacting of views of what kinds of statements involve matters of public concern. See Rankin, 107 S.Ct. at 2902 (Scalia, J., dissenting) (speech on matters of public concern include “those matters dealing in some way with ‘the essence of self government,’ matters as to which ‘free and open debate is vital to informed decisionmaking by the electorate,’ and matters as to which ‘ “debate ... [must] be uninhibited, robust, and wide-open” ’ ” (citations omitted)). Balanced against Thomas’s interest in speaking on these matters of public concern is the public employer’s interest “in promoting the efficiency of the public services it performs through its employees.” Id. at 2898 (majority opinion). The focus of this part of the inquiry is on whether the protected conduct disrupts “the effective functioning of the public employer’s enterprise.” Id. at 2899. Factors to consider are “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Id. Where, as here, the challenged speech deals more directly with issues of public concern, the public employer is “required to make an even ‘stronger showing’ of disruption.” McKinley, 705 F.2d at 1115. “Exactly what that ‘stronger showing’ entails is unclear,” Allen, 812 F.2d at 432, and even varies depending on the context of the situation. “[A] police department,” for example, “ordinarily will not be governed by the same standard as a school district” because of the “ ‘differences between the public interest in education and the public interest in safety.’ ” Id. (quoting in part Byrd v. Gain, 558 F.2d 553, 554 (9th Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978)). Carpenter argues that these safety concerns tip the balance in his favor and therefore Thomas’s conduct was not constitutionally protected. “Yet even in a police department, the complained-of disruption must be ‘real, [and] not imagined.’ ” Id. (quoting McKinley, 705 F.2d at 1115). Here, the clear import of Thomas’s allegations is that his campaign against Carpenter did not impede his ability to perform his job or interfere with the safety responsibilities of the department. Simply stated, then, Carpenter cannot use the disruption exception “ ‘as a pretext for stifling legitimate speech or penalizing [Thomas’s expression of] unpopular views.’ ” Id. (quoting McKinley, 705 F.2d at 1115). Carpenter also relies on the political affiliation cases of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), to argue that he could justifiably exclude Thomas from any policymaking role on the department solely on account of Thomas’s being his political adversary. See also Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 261 (1985). Elrod and Branti are not directly on point because they address political patronage dismissals based upon party loyalty. The election between Thomas and Carpenter, however, was nonpartisan. Nonetheless, “[t]he El-rod-Branti line is premised upon concerns similar to those animating the employee speech cases.” Hall v. Ford, 856 F.2d 255, 262 (D.C.Cir.1988). Accordingly, “the government interest recognized in the affiliation cases is also relevant in the employee speech cases.” Id. at 263. The interest advanced by Carpenter’s argument is the “need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367, 96 S.Ct. at 2687. This interest is not furthered, however, by the discharge of nonpolicymaking individuals who “have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.” Id. It simply cannot be decided on the basis of Thomas’s complaint that he would be in a position to thwart the goals of the in-party. As noted in Elrod, No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a poli-cymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well-defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policy-making position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. Id. at 367-68, 96 S.Ct. at 2686-87. Even this formula is not all encompassing. “[T]he ultimate inquiry,” the Court announced later in Branti, “is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518, 100 S.Ct. at 1295. Carpenter cannot show, based solely on the allegations of Thomas’s complaint, that Thomas’s political loyalty is essential to the effective performance of the tasks removed from his list of responsibilities. Thomas alleges that the weekly staff meetings are informational only and do not involve the formulation of departmental policy. Also, it seems patent that the role of evaluator of the department’s high risk entry team has no significant relationship to one’s political loyalty. The effect of Thomas’s participation in policy manual revision meetings is much less clear. Carpenter may be able to prove at trial, or perhaps even by summary judgment, that Thomas’s political loyalty in each of these positions is needed for the effective implementation of general departmental policy. Compare Roth v. Veteran’s Admin. of Government of U.S., 856 F.2d 1401, 1408 (9th Cir.1988) (requiring trial on government’s defense that employee’s speech disrupted the office) with Balogh v. Charron, 855 F.2d 356, 357 (9th Cir.1988) (affirming summary judgment based upon bailiff's status as a confidential employee). At the pleading stage, however, Carpenter cannot satisfy this burden. Cf. Soderbeck, 752 F.2d at 288 (whether employee could be fired based on political affiliation “was sufficiently uncertain to be one for the jury to decide”). Ill Because Thomas’s complaint states a claim under section 1983, we reverse the district court and remand for additional proceedings. Thomas is entitled to costs of this appeal. However, a claim for attorneys’ fees is premature and must await the ultimate determination of the prevailing party. See Hanrahan v. Hampton, 446 U.S. 754, 756, 100 S.Ct. 1987, 1988, 64 L.Ed.2d 670 (1980). REVERSED AND REMANDED.

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

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

UNITED STATES of America v. Alphonso R. RANDOLPH et al. Appeal of A. C. WALLER, in No. 71-1231. Appeal of James WEATHERS, in No. 71-1232. Nos. 71-1231, 71-1232. United States Court of Appeals, Third Circuit. Argued Nov. 11, 1971. Decided Feb. 28, 1972. H. David Rothman, Pittsburgh, Pa., for A. C. Waller. William F. Cercone, Jr., Rainero, Greenberg, Cercone & Berneburg, Pittsburgh, Pa., for James Weathers. Samuel J. Orr, III, Asst. U. S. Atty., Pittsburgh, Pa. (Richard L. Thorn-burgh, U. S. Atty., Pittsburgh, Pa., on brief), for appellee. Before VAN DUSEN and JAMES ROSEN, Circuit Judges, and BECKER, District Judge. OPINION OF THE COURT JAMES ROSEN, Circuit Judge. This is a bank robbery case. Appellants, A. C. Waller and James Weathers, were arrested along with co-defendants Alphonso Randolph and Keith Johnson for the April 28, 1970 armed robbery of the Century Federal Savings and Loan Association, Shadyside office, Pittsburgh. The grand jury returned a two count indictment against all four charging them with robbing a federally insured savings & loan association, and putting lives in jeopardy during that robbery, in violation of „ 18 U.S.C. § 2113(a, d), and 18 U.S.C. § 2. After they were indicted, the appellants escaped from custody and were not reapprehended until after the two codefendants, Randolph and Johnson, had pleaded guilty and been sentenced. When they were returned, Waller and Weathers were tried jointly and, on February 5,1971, were convicted. Waller and Weathers contend that there was insufficient evidence to warrant submitting their cases to the jury because the government did not establish their guilt beyond a reasonable doubt. Waller also argues that the trial judge committed reversible error in denying his Rule 16(b) motion for discovery. (b) Other Books, Papers, Documents, Tangible Objects or Places. Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a) (2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. § 3500. (Emphasis supplied) Ronald Wheeler, who was employed by the Savings and Loan Association, observed three unmasked Negro males walk into the institution on April 28, 1970 and place either ski masks or scarves over their faces. Once inside, one of the three men approached Wheeler, put a loaded gun to his head and directed him to the teller’s cage where the other men were in the process of taking the sum of $-1,013.58 from a teller. As the three men left, they removed their masks. Wheeler chased them to their intended get-a-way car. Their automobile did not start, so they abandoned it and fled on foot along with a fourth person who had been waiting for them in the automobile. Weathers was identified by Wheeler at a line-up and in court as being one of the robbers. Kim Morris witnessed the robbery from a store window immediately adjacent to the Savings & Loan building. He followed the robbers to a white Chevrolet. When the car would not start the robbers fled from the vehicle and split up. Waller and Weathers were seen shortly after the robbery by two local residents. Mrs. Claire Lehman testified that just after she had returned home from shopping, she observed three men run across her lawn to the get-a-way car which was parked in front of her house. She saw them unmasked and was so close to them that one actually bumped her on the way to the car. Several days after the robbery Mrs. Lehman identified Waller and Weathers at a live line-up and again identified both of them in • court as being two of the men she saw running past the car on the day of the robbery. Peter Gray, a professor at the University of Pittsburgh, testified that, while sitting in his backyard shortly after the robbery, he saw the four unmasked robbers run across his lawn. Professor Gray identified Waller in a live line-up held the day of the robbery and identified Waller and Weathers in the court. Weathers was arrested by a police officer shortly after the robbery in the general vicinity of the Savings & Loan Association. At that time, Weathers was sweating profusely and on his person was a bag in which there was found $1,013.58, the same amount taken in the robbery. Taken from this bag was a money band which was traced to the Savings & Loan Association. Waller was apprehended several blocks from the Savings & Loan building immediately after the robbery and he also was sweating profusely at that time. Appellant’s contention that there is insufficient evidence to support the jury’s verdict of guilty is without substance. Waller testified in his own behalf. The gist of his defense was to the effect that he was high on drugs (heroin) and was hitchhiking when picked up by Johnson and Randolph. He claims he fell asleep in the car; did not participate “no way” in a robbery. Waller admitted that there was “another fellow” in the back of the car whom he did not know. He also said that when the three men returned to the car he awakened, became aware that something was wrong and ran with the rest of them. Appellant Weathers also testified in his own behalf. He denied knowledge of or participation in the robbery. He said he was in the vicinity to seek employment and, as he was walking, a woman behind him was bumped by three men who were running, and one of the men dropped a blue bag. Weathers allegedly picked up the bag, heard coins “jingle,” but was apprehended before he had an opportunity to look into it. Testimony to be believed must not only proceed from the mouth of a credible witness but must be credible in itself. It must be such as the common experience and observation of mankind can approve as probable in the circumstances. This was a case of positive identification as against testimony tending to prove alibi. The jury accepted the positive identification rather than the alibi. Their conclusion is justified by the evidence. As we said in United States v. Chaney, 446 F.2d 571 (3 Cir., 1971) “An examination of all the evidence, including that recounted above, leads us to the conclusion that the evidence against the defendants] * * made out a strong enough case to permit a jury to find the defendant[s] guilty.” Waller’s second contention is that he was wrongfully denied discovery which he was entitled to as a matter of right pursuant to Rule 16(b). More specifically, he claims that the trial judge was required to grant his motion for discovery of any pretrial statements that Johnson and Randolph had made to police and to do so before they were examined on direct as defense witnesses. As previously mentioned the appellants were indicted along with codefend-ants Johnson and Randolph, but Johnson and Randolph were tried and sentenced before appellants’ trial began. Waller intended to call Johnson and Randolph as defense witnesses because they had “indicated” that Waller was not involved in the robbery and they did not make any prior written or oral statements to the contrary. These representations were apparently not of sufficient assurance to Waller’s counsel. He thereupon applied under Rule 16(b) for any prior statements which were made by Johnson and Randolph in the possession of the government. The trial judge denied the application. Despite this ruling Johnson and Randolph were called as defense witnesses. They testified on direct examination that Waller had not participated in the robbery and corroborated Waller’s explanation of how he happened to be in the car with the three other defendants. Johnson did not give any statement to the authorities. However, during the cross-examination of Randolph the prosecution did use for impeachment purposes a signed statement Randolph had given to the Pittsburgh police which implicated Waller, Johnson and himself in the robbery. The statement also disclosed that it was Waller who had carried the stolen money out of the bank. It is argued that if the 16(b) motion had been granted Waller would have uncovered the prior statement and would not have used Randolph as a defense witness. The thesis continues to the effect that if this impeachment statement had not been revealed to the jury Waller “might” have been cleared by Johnson’s testimony. This is pure speculation. The evidence against Waller was substantial and the jury verdict reflects their acceptance of the government’s factual presentation. Rule 16 as adopted by the United States Supreme Court in 1946 was a rather limited rule of discovery. In 1966 the Rule was rewritten and the scope of discovery was expanded. At the same time provisions were made to guard against possible abuses. There are certain basic principles governing the scope of discovery which have been recognized by this court. In United States v. Fioravanti, 412 F.2d 407 (3 Cir., 1969) cert. denied, sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969) we held that “an application for relief under the discovery rules is a matter within the sound discretion of the district court and its ruling will be disturbed only for abuse of discretion.” Judge Aldisert observed that appellate courts have been increasingly reluctant to find that a denial of a particular discovery motion was an abuse of discretion in the absence of a showing that the defendant was prejudiced by such denial. He also noted that Rule 16 does not require the prosecution to disclose “all the minutia of its evidence, to reveal its trial strategy, and to delineate with total specificity the case it intends to present.” The trial judge in the case at bar was not faced with a situation where an accused requested a copy of his own statement. The application was for an order directing the Government to search its file for assurance that a prospective defense witness could withstand an attack on his credibility when cross-examined by the Government. The extent to which discovery should be permitted in federal criminal cases is admittedly “a complex and controversial question,” Fioravanti, supra, 412 F.2d p. 410, but Rule 16(b) was never intended to be a vehicle by which a defendant can obtain a guarantee or insurance of the unim-peachability of a defense witness. We do not have the factual picture presented in Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The critical issue in Brady was that the evidence suppressed by the government was exculpatory: “A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . .” pp. 87, 88, 83 S.Ct. p. 1197. Here no exculpatory evidence was kept from Waller. Randolph’s prior statement to the police directly implicated Waller as a participant in the hold-up and named him as the person who carried the stolen money from the bank. The Government did not suppress evidence “favorable to the accused.” There is nothing in Brady which requires the prosecution to spare the defense the risk of impeachment of its witnesses. The trial judge exercised sound judgment in denying Waller’s application. Lastly, Waller’s contention that the denial of his application for discovery reached constitutional dimensions, violating due process and preventing the effective assistance of counsel, is specious. Limiting of pretrial discovery in criminal cases is not constitutionally impermissible. DeVita v. Sills, 422 F.2d 1172, 1181 (3d Cir. 1970). We have examined the complete record and are satisfied that the defendants received a fair and impartial trial. Affirmed. . 18 U.S.C. § 2 provides that: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. . Waller was apprehended in Wheeling, West Virginia while using an assumed name. Tr. 233-234. Weathers was apprehended in Pittsburgh after attempting to break away from the arresting police officer. Tr. 237-238. . Weathers was found guilty on the first count. He was a prior offender and was sentenced to twenty years. Waller did not have any prior criminal record. He was convicted on both counts of the indictment and was also sentenced to twenty years. Waller and Weathers were given the right to parole at the Parole Board’s discretion in accordance with 18 U.S.C. § 4208(a) (2). . Weathers’ appeal was submitted on briefs under 3rd Cir. Rule 12(6). Waller’s appeal was considered on briefs and oral argument. . Rule 16(b) of the F.R.Crim.P. provides as follows: . We have examined the government’s trial exhibit showing the physical lay-out of the bank, the streets traversed by defendants, and the position from which witnesses Claire Lehman and Peter Gray observed the defendants. The reliability of the witnesses’ testimony is corroborated by this exhibit. . No claim is made as to any impropriety in the out-of-court or in-court identifications of Waller and Weathers. . Tr. 324. In Waller’s brief, footnote p. 6, counsel says: “Of course, Waller’s inability to identify the fourth person, particularly in view of Weathers being apprehended with the bag of money, and his escape with Weathers, was a serious factor in judging Waller’s credibility. Counsel frankly argued to the jury that Waller may not be telling the truth as to the identity of the fourth man because no black defendant will testify against another. Counsel argued also that this did not necessarily mean that lie was not telling the truth about himself.” . Weathers’ brief, pp. 3-4. . See In re Perrone 5 N.J. 514, 522, 76 A.2d 518 (1950). . The trial began on February 1. Waller’s lawyer spoke to the oodefendants at the county jail on the following day. Then, on February 3, be made an application for discovery of impeaching evidence in the possession of the Government. Tr. 232. . For the history of Rule 1G see Wright 1, F.Pr. & P. § 251, p. 490. . Cf. Gollaher v. United States, 419 F. 2d 520, 527 (9th Cir. 1969), cert. den. 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424, which involved a trial court’s denial of a defense motion for grand jury testimony of two witnesses. Unlike Waller’s attorney, who proceeded to call Randolph and Johnson even though he was denied discovery, the attorney in Gollaher decided not to call the two witnesses whose testimony he had been denied. On appeal, he alleged that the denial of discovery deprived him of the defense of “potentially helpful witnesses” because he felt he could not put witnesses on the stand who might be impeached by the grand jury testimony. He claimed the denial of discovery violated due process requirements of Brady v. Maryland, infra. The Ninth Circuit, in deciding against appellant, held that Brady did not require the prosecution to spare the defense “the risk of impeachment” of its witnesses.

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

Frank FOE and Walter Woe, (a pseudonym), by his mother and guardian, Wilma Woe (a pseudonym), on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Mario CUOMO, individually and as Governor of the State of New York; Lawrence Kolb, M.D., individually and as Commissioner of Department of Mental Hygiene of the State of New York; Morton B. Wallach, M.D., individually and as Director of Brooklyn State Hospital; and the State of New York, Defendants-Appellees. Nos. 514, 515, Dockets 88-9075, 89-7037. United States Court of Appeals, Second Circuit. Argued Dec. 11, 1989. Decided Dec. 15, 1989. Morton Birnbaum, Brooklyn (George D. Garofallou, New York City, Mark Green-fest, Roslyn Heights, Burton Zuckerman, New York City, of counsel), for plaintiff s-appellants. Michael S. Lottman, East Hartford, Conn. (Murray B. Schneps, Scheinberg, Schneps, DePetris and DePetris, River-head, of counsel), for plaintiffs-appellees. Arnold D. Fleischer, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., of the State of New York, 0. Peter Sherwood, Sol. Gen., New York City, of counsel), for defendants-appellees. Before TIMBERS, PIERCE, and MINER, Circuit Judges. PER CURIAM: Dr. Morton Birnbaum, Esq., and Burton Zuckerman, Esq., have brought this appeal on behalf of members of a class of persons between the ages of 21 and 65 who are involuntarily civilly committed in the Bronx Psychiatric Center (the “BPC”). Appellants challenge an order of the United States District Court for the Eastern District of New York (Bartels, Judge) approving the settlement of this action insofar as it related to the BPC. See Foe v. Cuomo, 700 F.Supp. 107 (E.D.N.Y.1988). Birnbaum and Zuckerman served as class counsel for a number of years in this lengthy class action litigation. They purport, on behalf of appellants, to appeal from orders in which Judge Bartels found that they had withdrawn from their representation of the plaintiff class and barred them from intervening in the action on behalf of Wilma Woe, the mother of the original, now-deceased, lead plaintiff, and T.C.L., the mother of R.L., a patient at the BPC. Assuming appealability, the question of whether the district judge abused his discretion in supervising the counsel before him must be considered in light of the judge’s obligation to insure that the plaintiff class is adequately represented throughout the litigation. See Cullen v. New York State Civil Service Comm’n, 435 F.Supp. 546, 563-64 (E.D.N.Y.), appeal dismissed, 566 F.2d 846, 848-49 (2d Cir.1977); Fed.R.Civ.P. 23(d); 1 H. Newberg, Newberg on Class Actions § 1.07, at 10 (2d ed.1985). To the extent it is claimed that Birnbaum and Zuckerman had been barred, de facto, from representing the class, we do not believe the district judge exceeded the bounds of his authority and responsibility to supervise counsel. Furthermore, in later determining that Birnbaum and Zuckerman had withdrawn from representing the class, the district judge was entitled to rely upon the representation of their co-counsel that this had indeed occurred. We also note that following the district judge’s decision replacing them as class counsel, Birnbaum and Zuckerman did not attempt to participate in the case for approximately eleven months. While the district judge may have erred in not permitting Birnbaum and Zuckerman to re-enter the case formally to represent the interests of R.L., see Fed.R. Civ.P. 23(d)(2); 7B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1799, at 441-46 (1986) (urging liberal consideration of motions to intervene in class actions), we see little prejudice to R.L. Indeed, after Birnbaum and Zuckerman indicated a desire “to participate as co-counsel, to review any proposed settlement and ... to inform the court and other plaintiffs’ counsel as to what we believe is just and proper for our clients,” they were invited to participate at the hearing on the settlement and they submitted written objections which were considered by the district judge. With respect to the class settlement itself, the district judge carefully considered and evaluated the settlement in light of the factors set forth in this court’s precedents. While the settlement did not incorporate Judge Neaher’s previous finding” that the BPC would be overcrowded when holding a population of 580 patients, Woe v. Cuomo, 638 F.Supp. 1506, 1515 (E.D.N.Y.1986), appellants fail to recognize that the context of the litigation had substantially changed by the time the settlement was reached. The most significant change was the reaccreditation of the BPC by the Joint Committee on Accreditation of Hospitals. Appellants further argue that this settlement is not as beneficial as the settlement reached in a similar case in another district. While comparisons between similar actions may be helpful in addressing whether a settlement is fair, it is important to recognize distinctions between such actions. Moreover, since the ultimate question is whether this settlement was reasonable under the circumstances, a district judge is not required to make such a comparison. We conclude that the district judge did not abuse his discretion in approving the settlement which was reached by experienced counsel through arm’s length negotiations. While Birnbaum and Zuckerman have yet to submit a fee application, they urge that the matter be remanded to a different district judge for consideration of such an application. We see no reason to apply this “extraordinary remedy,” Sobel v. Yeshiva Univ., 839 F.2d 18, 37 (2d Cir.1988), and we are confident that Judge Bartels will fully and fairly evaluate any application which is made by Birnbaum and Zuckerman. We have considered appellants’ remaining arguments and believe them to be without merit. The orders of the district court are 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?

GENERAL TIRE & RUBBER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 71-1165. United States Court of Appeals, First Circuit. Heard Nov. 2, 1971. Decided Nov. 22, 1971. Jeffrey A. Belkin, Cleveland, Ohio, with whom Louis S. Belkin and Belkin, Belkin & Goldstein Co., L. P. A., Cleveland, Ohio, were on the brief, for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, with whom Peter G. Nash, Gen. Counsel, Warren M. Davison, Deputy Asst. Gen. Counsel, and William H. Du Ross, III, Atty., were on the brief, for respondent. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. This is a petition brought by an employer to review a finding of a section 8(a) (1) violation, 29 U.S.C. § 158(a) (1), by the National Labor Relations Board. The facts are these. After a period of unsuccessful bargaining, the production employees of General Tire & Rubber Company went on strike. The company thereupon decided to transfer all but a handful of its clerical employees to production work. On the first morning of the strike the production union established a picket line. One Hill, a clerical employee, passed through the line. On reaching her place of work she was told to report for production. She refused, stating that her husband, who was employed by another company, was a union man; that she sympathized with the strikers, and would not do struck work. The company insisted. A discussion ensued, in which Hill was finally told that if she did not do production work the company would “show [her] the door.” She thereupon left the plant and promptly filed the present unfair labor practice charge. The Board found that her discharge was improper. The company concedes, as it must, that if Hill had failed to cross the picket line, that is to say, had refused to enter the plant, she would have had the rights of an economic striker and not been subject to discharge. N L R B v. Union Carbide Corp., 4 Cir., 1971, 440 F.2d 54, cert. denied 404 U.S. 826, 92 S. Ct. 58, 30 L.Ed.2d 55; N L R B v. Southern Greyhound Lines, 5 Cir., 1970, 426 F.2d 1299. Its first position is that, comparable to Caesar’s crossing the Rubicon, she committed herself when she crossed the line. Whether this contention would have had validity if the company had proved that she knew, when she crossed, that she would be obliged to do production work, we need not determine, as the company failed to establish such knowledge. Cf. Virginia Stage Lines v. N L R B, 4 Cir., 1971, 441 F.2d 499, cert. denied 404 U.S. 856, 92 S.Ct. 105, 30 L.Ed.2d 98; NLRB v. Kit Mfg. Co., 9 Cir., 1964, 335 F.2d 166, cert. denied 380 U.S. 910, 85 S.Ct. 894, 13 L.Ed.2d 797. It should be obvious that she should not have been required to take a position until the full facts were brought home to her. Having assumed the contrary, the company’s brief proceeds to argue that Hill was necessarily guilty of “insubordination.” We do not agree. Alternatively, the company maintains that it had the right to discharge because Hill’s willingness to do clerical work meant that she was not truly a striker, but only a “partial striker,” and that this is impermissible. We quite agree that an employee cannot do only part of her work, and be a partial striker in that sense. See Home Beneficial Life Ins. Co. v. N L R B, 4 Cir., 1947, 159 F.2d 280, cert. denied 332 U.S. 758, 68 S.Ct. 58, 92 L.Ed. 344; Montgomery Ward & Co. v. N L R B, 8 Cir., 1946, 157 F.2d 486. The company offers no authority suggesting that an employee’s willingness to do her regular work justifies its compelling her, on penalty of discharge, to do struck work. See Virginia Stage Lines, Inc. v. N L R B, 441 F.2d at 503, and Cooper Thermometer Co., 1965, 154 N.L.R.B. 502. The company’s contention is contrary to the entire principle of sympathetic striking. See N L R B v. Union Carbide Corp., 440 F.2d at 56; N L R B v. Southern Greyhound Lines, 426 F.2d at 1301. See also N L R B v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 1942, 130 F.2d 503, 505, and N L R B v. City Yellow Cab Co., 6 Cir., 1965, 344 F.2d 575, 582. Lastly, the company attempts to justify Hill’s discharge by claiming that “compelling business reasons” dictated its action. While in some unusual situations an overriding business interest can justify removing an employee from the protection against discharge which the Act affords employees exercising their section 7 rights, the company shows no such exceptional circumstances. See Cooper Thermometer Co., ante, and cases cited therein. Its invocation of “business reasons” means only that it does not like strikes. We consider the company’s position so frivolous, and certain aspects of its argument, such as reliance upon section 8(a) (3) decisions in a section 8(a) (1) ease, so inappropriate, as to call for the application of our Smith & Wesson doctrine, N L R B v. Smith & Wesson, 1 Cir., 1970, 424 F.2d 1072. The order will be enforced, with costs taxed against the employer to include counsel fees. . Before us the company persists in its assertion that Hill quit voluntarily rather than was discharged. The contention that the Board’s finding of discharge is unsupported on the evidence is too frivolous to warrant discussion. . It does not appear that the company assigned as error the trial examiner’s declination to resolve that issue. . Nor does it make a difference that she offered to do the clerical work of an employee who was to be continued on clerical duties, and thus release her for production. The company says this shows she was not truly sympathetic to the strike. Good conscience requires no such counsel of perfection. Cf. United States v. Stoppelman, 1 Cir., 1969, 406 F.2d 127, cert. denied 395 U.S. 981, 89 S.Ct. 2141, 23 L.Ed.2d 769.

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

WALLECK v. HUDSPETH, Warden, United States Penitentiary, Leavenworth, Kansas. No. 2490. Circuit Court of Appeals, Tenth Circuit. May 19, 1942. Appellant Pro Se. Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee. Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges. HUXMAN, Circuit Judge. By application for writ of habeas corpus, petitioner, Victor S. Walleck, sought release from the federal penitentiary at Leavenworth, Kansas, where he is confined under sentence and commitment from the District Court of the United States for the Southern District of New York. The ground for the application for the writ was that he was denied the right to the effective assistance of counsel and to adequately present his defense. Petitioner has appealed from the decision of the trial court denying his application for the writ. At the outset we are confronted with a challenge to the jurisdiction of this court. The point urged is that the trial court, having made a finding that the appeal was without merit and not taken in good faith, entered an order denying the application to appeal in forma pauperis. It is urged that in the face of such an order, this court is without jurisdiction to entertain the appeal. The record shows that the trial court entered its judgment discharging the writ and remanding petitioner to the custody of respondent September 9, 1941. On September 23, petitioner presented a notice of appeal to the trial court, which, omitting the formal part thereof, is as follows: “Notice is hereby given that Victor S. Walleck the petitioner above named, hereby appeals to the Circuit Court of Appeals for the Tenth Circuit from the order denying writ entered in this action on September 9th, 1941. “Petitioner again alleges that he is a citizen of the United States and a pauper and prays that he be allowed to proceed on appeal in forma pauperis. “(Signed) Victor S. Walleck, “Petitioner’ It bears the following' endorsement on the bottom thereof: “It Is So Ordered, This 23rd day of September, 1941. “(Signed) Richard J. Hopkins, “Judge” The notice of appeal was filed in the office of the clerk of the court September 23, 1941. On October 28, 1941, the court entered an order which in substance recited that for good cause shown, the time for filing and docketing the appeal was enlarged to and including December 22, 1941. Thereafter, on October 30, 1941, without referring to its former order granting the right to appeal in forma pauperis, the court entered the order on which respondent relies, denying the right to so appeal. No reason is given why the court, having in its first order, by implication, found that the appeal was in good faith and meritorious, on October 30 reversed itself and found that the appeal was frivolous and without merit. A question might be raised as to whether a court once having granted the right to appeal in forma pauperis and notice of appeal having been filed pursuant thereto, could thereafter nullify the appeal by entering a further order denying that which it had formerly granted and in reliance on which an appeal had been taken. But our jurisdiction is not dependent on an answer to this question. • Under Rule 73 of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, an appeal is- perfected by filing a proper notice of appeal. De Maurez v. Swope, Warden, 9 Cir., 110 F.2d 564, and Miller v. United States, 7 Cir., 114 F.2d 267. The rule provides that if a proper notice of appeal is filed, failure to take any of the further steps required to secure the review of the judgment does not destroy the validity of the appeal, but subjects an appellant to such orders of the appellate court as it deems proper, which may include' an order of dismissal. Filing of the notice constitutes a valid appeal and vests jurisdiction of the case in the appellate court. The appellate court thereafter has power to control the further steps- in that court in perfecting and hearing the appeal. After entry of the order of October 30, petitioner filed an application in this court for an order permitting him to appeal in forma pauperis. We did not grant this application. We did direct that the case be docketed instanter and then entered an order requiring the Clerk of the District Court to certify to our court the original pleadings, exhibits, orders, and other papers on file in the case in the District Court. We granted petitioner leave to prosecute the appeal in our court without being required to prepay fees or costs or give security therefor, and directed that the appeal be heard on the original record, certified to our court, and on a typewritten copy of brief by petitioner. We made no order relating to costs in the District Court. We think we have ample authority to control the proceedings in our court, including the right to permit petitioner to proceed in forma pauperis as far as costs in our court are concerned. Petitioner was arrested in Montreal, Canada, June 26, 1937. He waived extradition and was returned to New York. On June 30 he was arraigned and entered a plea of not guilty, and trial was set for July 13. No inquiry was made by the court at that time respecting counsel. The United States Attorney asked petitioner if he had an attorney. He replied that he had only arrived in New York that morning. The United States Attorney suggested that the Marshal would put him in touch with an attorney. The Marshal suggested the name of an attorney who he said knew his way about the courts and could be of material assistance to him. Petitioner asked the Marshal to see the attorney and have him call. The attorney did not call. On July 13, petitioner was brought to court for trial. When the case was called for trial, the United States Attorney suggested that the petitioner was not represented by attorney, whereupon the .following colloquy occurred : “The Court: He has no counsel? “Mr. Martin: No. “The Court: I assume the Court should appoint a counsel for him. In our district, we have not followed the custom, but I will follow the custom here, whatever it is. If he desires a counsel to be appointed for him, I would do so, but not delay the trial in any way whatever. Which one is Walleck ? “Defendant Walleck: I should prefer to have my own counsel, but there is some delay. I cannot seem to figure on it. “The Court: You have employed counsel? “Mr. Walleck: Nothing came of it. I expect to provide my own. * * * * * “The Court: He was arraigned here on June 30th? “Mr. Martin: Yes. “The Court: And the case at that time was set for trial today? “Mr. Martin: Yes, sir. “The Court: I would not grant any postponement. I would be willing to assign counsel if he so desires. Do you desire me to assign you counsel? “Mr. Walleck: No. I ask to have my own counsel, on my own account. “The Court: I would not assign the counsel you request, where I have to appoint any for you. “Mr. Walleck: I mean, I do not know the general procedure in these matters. “The Court: I think you have had ample opportunity to employ counsel or to have brought it to the attention of the court earlier. I will, therefore, direct that the trial proceed.” From this, it fairly appears that petitioner desired to be represented by counsel and did not waive his right to the assistance of counsel. When the court asked if he desired the appointment of counsel, he replied that he preferred his own counsel. He stated that what he meant was that he did not know the procedure in such matters ; that there had been some delay in his ability to procure counsel. The court’s reply was that he thought he had had ample opportunity to procure counsel or to have brought it to the attention of the court, and thereupon ordered the case to trial. Petitioner was an itinerant seaman, having spent approximately twenty years at sea. He had been in court only once, when he was represented by counsel. At this time he had three hundred dollars with which to employ an attorney. Only two weeks had intervened between his arraignment and the trial. During all this time he was in jail. He believed the Marshal had arranged for an attorney to call and see him. He no doubt was waiting for the attorney to call. It is clear from the record that petitioner was devoid of knowledge of court trials and court procedure. It is doubtful if he knew that he had the right to ask the court for the appointment of an attorney. He cannot be charged with dereliction for failing for two weeks to call the court’s attention to the fact that he had no counsel, especially since during this time he was expecting a call from an attorney. From this, it is clear to us that he did not intelligently waive his right to be represented by counsel. Furthermore, within the rationale of Glasser v. United States, 62 S.Ct. 457, 86 L.Ed. -, and Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 60, 77 L.Ed. 158, 84 A.L.R. 527, petitioner was deprived of his right to the effective assistance of counsel. In the Powell case, supra, the Supreme Court said: “The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the-calm spirit of regulated justice but to go forward with the haste of the mob.” To offer to appoint counsel upon condition, however, that the trial proceed at once, is in effect denying the right of counsel. Under such conditions, an attorney could render no effective aid or assistance to the defendant. The judgment of the trial court is reversed, and the cause is remanded, with directions to grant the writ and to deliver the defendant to the United States District Court for the Southern District of New York for appropriate proceedings therein.

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

BENZIAN v. GODWIN. No. 281, Docket No. 21006. Circuit Court of Appeals, Second Circuit. June 30, 1948. Poletti, Diamond, Freidin & Mackay, of New York City (Charles Poletti, David Mackay, Sidney A. Diamond and Robert E. Herman, all of New York City, of counsel) for appellant. John F. X. McGohey, U. S. Atty., of New York City, for the Southern District of New York (Henry L. Glenn, of New York City, of counsel) for appellee. Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges. FRANK, Circuit Judge: The chief issue is whether Congress intended the training and service provisions of the Selective Service Act, 50 U.S.C.A. Appendix, § 303(a), to apply to temporary business visitors kept in this country by virtue of transportation difficulties. The Act, as originally passed in September, 1940, made “every male alien residing in the United States” subject to registration (Sec. 2, 50 U.S.C.A.Appendix, § 302), and made “every male alien residing in the United States who has declared his intention to become such a citizen” liable to training and service (Sec. 3(a). On October 11, 1940, the Attorney General delivered an opinion in which he interpreted the phrase “every male alien residing in the United States,” as then found in Section 2; he interpreted it to mean that “temporary alien visitors for business or pleasure” were among those subject to registration, and that the Act was intended to apply to every alien “who lives or has a place of residence or abode in the United States, temporary or otherwise, for whatever purposes taken or established.” There seems to be nc doubt that, under the Attorney General’s interpretation of the Act of 1940, 'appellant was subject to registration. 'At that time, however, he was not liable for training and service, as he was not a male alien residing in the United States who had declared his intention of becoming- a citizen. On December 20, 1941, shortly after war was declared, Congress amended § 2 to make “every other male person [other than a citizen] residing in the United States” subject to registration, and amended § 3-(a) to make “every other male person residing in the United States” liable for military service. It provided, however, that any citizen of a neutral nation could be relieved of such liability by making proper application in accordance with regulations prescribed by the President, but that any person who made such application should thereafter be barred from becoming a citizen. It also provided, in § 5(a), 50 U.S.C. A.Appendix, § 305(a), that the President could specify other categories of aliens who would be exempt. As a result of the authority delegated to him by the President, the Director of Selective Service promulgated Regulation 611.13, defining nondeclarant aliens who are not residing in the United States, and Regulation 611.21, providing for determination of non-residence upon filing application within three months after date of entry or after becoming liable for service. On June 27, 1945, this latter regulation was supplemented by regulation 611.21-1, permitting application for a determination to be filed after three months. It appears from the use of the phrase “every other male person residing in the United States,” in both §§ 2 and 3-(a) of the amended Act, that Congress intended that everyone who- was subject to registration should also be liable for service, unless he came within the categories specifically exempted by the Act. Congressional re-enactment of substantially the same phrase concerning residence in § 2, after it had been interpreted by the Attorney General, indicates Congressional approval of that interpretation. It would follow, then, that since appellant was subject to registration under the Attorney General’s interpretation, Congress intended him to be subject to registration under the amended Act. And if he was subject to registration he was also liable for service, unless (1) he applied for exemption as a neutral under § 3(a) or (2) came within the category of an alien non-resident as determined by the Director of Selective Service by Regulation 611.13, promulgated under the authority of § 5(a) of the Act. Appellant was not within the definition of a non-resident alien under Regulation 611.13. That he did not come in that category was determined not only by his local board, but also, by the Director himself, to whom authority was delegated by the President to determine who should be exempted under section 5(a) of the Act. The determination cannot have been made on the basis of his failure to file Form 302 within the prescribed time limit; for, when the determination was made, the three months’ requirement had' been removed. We think it not material that the determination was made after appellant had filed Form 301, for appellant’s status'as resident or non-resident was unaffected by the filing of that form. Furthermore, since the determination of appellant’s status by the Director of Selective Service does not appear to be without basis in fact, we are not empowered to review it. Appellant argues that Regulations 611.13 and 611.21 were invalid because the power delegated to the Director to determine non-residence was exercised arbitrarily and capriciously, and because there were no standards whereby an alien could determine his status under those regulations. But assuming, arguendo, that the regulations were invalid, appellant would be in no better position. For then the Director, as the President’s delegatee, would have failed to establish any exempt categories, as permitted by § 5(a) and, appellant under the terms of § 3(a) would still have been subject to service unless he claimed exemption as a neutral. Whether these regulations were valid or invalid, therefore, appellant was not entitled to exemption from service under § 5(a). Congress gave him the alternative of obtaining exemption by filing Form 301, thus forfeiting any future opportunity to become a citizen. We see nothing unconstitutional in these provisions. We may assume, arguendo, that Congress lacks power to compel citizens of neutral countries to serve in our armed forces. But Congress did not attempt to exercise such power. It was clearly within the power of Congress to provide that, if such a person chose to take 'advantage of an exemption, he should thereafter be debarred from becoming a citizen. For the Supreme Court long ago stated that naturalization is a privilege which may be granted or withheld on whatever terms Congress may prescribe. We concur with the district court’s holding that the disability placed upon appellant by signing Form 301 outlived the repeal of the Act. When Congress in 1945 amended § 224(c) of the Immigration Act, to refer to those debarred from becoming a citizen under SO U.S.C.A.Appendix, § 303(a), it made clear its intent in this matter. Judgment affirmed. 39 0p.Atty.6en. 504. Such executive construction is entitled to great weight. Cf. Billings v. Truesdell, 321 U.S. 542, 552, 553, 64 S.Ct. 737, 88 L.Ed. 917; Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 91 L.Ed. 1375. The government suggests that the substitution of “male person” for “male alien” may have resulted from the passage of the Nationality Act of 1940, 8 U.S.C.A. § 501 et seq., 54 Stat. 1137, which established a class of nationals who were neither aliens nor citizens. § 3(a) reads in part as follows: “Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States, who is between the age of eighteen and forty-five at the time fixed for his registration, shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with the rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States: * * § 5(a) reads in part as follows: “ * * * persons in other categories to be specified by the President, residing in the United States, who are not citizens of the United States, and who have not declared their intention to become citizens of the United States, shall not be required to be registered under section 2 and shall be relieved from liability for training and service under section 3(b).” 50 U.S.C.A.Appendix, § 310(b). Billings v. Truesdell, 321 U.S. 542, 552, 64 S.Ct. 737, 88 L.Ed. 917. Regulation 611.13 reads in part as follows: “When a non-declarant alien is not residing in the United States. (a) A male alien who is now in or hereafter enters the United States who has not declared his intention to become a citizen of the United States is not ‘a male person residing in the United States’ within the meaning of section 2 or section 3 of the Selective Training and Service Act of 1940, as amended; provided he has in his personal possession an official document issued pursuant to authorization of or described by the Director of Selective Service which identifies him as a person not required to present himself for and submit to registrations and provided: * * * (7) lie has within the time prescribed and in the manner provided in § 611.21, filed with the local board with which he is registered, or if he is not registered, with the local board having jurisdiction over the area in which he is located, an Alien’s Application for Determination of Residence (Form 304) and such application is either pending or has resulted in the issuance by the local board of an Alien’s Certificate of Non-residence (Form 303) which has not expired, * * *” Regulation 611.21 reads in part as follows: “What aliens may apply for a determination. Any nondeclarant alien who has entered or who hereafter enters the United States * * * may file with his local draft board * * * an Alien’s Application for Determination of Residence (Form 302); Provided, That such application is filed within three months after the date of his entry into the United States or within three months after persons of his age become liable for training and service by law, whichever is the later; And provided further, That such application is filed prior to induction * * *” Regulation 611.21-1 reads as follows: “Applieation filed after three months. Any alien who has not complied with the provisions of Section 611.21 or Section 611.26 may file an Alien’s Applieation for Determination of Residence (Form 302) and an Alien’s Personal History and Statement (Form 304) with a local board for transmittal to the Director of Selective Service for consideration.” Lang v. Commissioner, 304 U.S. 264, 270, 58 S.Ct. 880, 82 L.Ed. 1331, 118 A.L.R. 319; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 115, 59 S.Ct. 423, 83 L.Ed. 536; Helvering v. Bliss, 293 U.S. 144, 151, 55 S.Ct. 17, 79 L.Ed. 246, 95 A.L.R. 207. United States v. Cox, 332 U.S. 442, 453, 68 S.Ct. 115; Estep v. United States, 327 U.S. 114, 123, 66 S.Ct. 52, 90 L.Ed. 414. Citing Ex parte Ghosh, D.C., 58 F. Supp. 851. United States v. Macintosh, 283 U.S. 605, 615, 51 S.Ct. 570, 75 L.Ed. 1302.

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

James H. WILLIAMS, Appellee, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellant. No. 13183. United States Court of Appeals Fourth Circuit. Argued June 11, 1969. Decided July 22, 1969. Edward J. White, Asst. Atty. Gen., of Va. (Robert Y. Button, Atty. Gen., and Reno S. Harp, III, Asst. Atty. Gen. of Virginia, on brief), for appellant. William C. Mach, Petersburg, Va., [Morton B. Spero, Petersburg, Va. (Court-assigned counsel), on brief], for appellee. Before SOBELOFF, WINTER and BUTZNER, Circuit Judges. SOBELOFF, Circuit Judge: The Commonwealth of Virginia appeals from an order of the District Court granting a writ of habeas corpus to James Howell Williams, a Virginia prisoner currently serving an eight-year sentence for statutory burglary. The petitioner was tried without a jury-in the Petersburg City Hustings Court, and, following his conviction, was sentenced on February 5, 1965. A petition for a writ of error filed in the Supreme Court of Appeals of Virginia was denied on December 4, 1967. Williams then sought habeas corpus relief in the United States District Court. Relying on the state court record, the District Court granted the writ on December 4, 1968, finding that a total lack of evi-dentiary support for an essential element of the crime charged rendered the petitioner's conviction constitutionally invalid. The record reveals that at the trial Mrs. Betty Cox of Petersburg testified that she saw someone enter her house through the front door at approximately 1 a. m. on November 21, 1964. Mrs. Cox stated that she was lying in her darkened bedroom but had left the living room lighted and the front door open because her daughter was expected home shortly. She saw the intruder walk slowly across the living room toward the bedroom. He directed a lighted flashlight into the dark room, hurriedly leaving the house when the light fell on Mrs. Cox’s face. Mrs. Cox notified the police, who picked up the petitioner in the neighborhood about fifteen minutes later and took him to Mrs. Cox. She identified him as the intruder. A police officer who was called to the Cox home testified that he saw the petitioner hiding about 200 yards from the house. He fled from the police but was pursued and captured. At that time he denied having been in Mrs. Cox’s house. When the petitioner testified at trial, he admitted having entered Mrs. Cox’s house but attempted to explain his presence there. He stated that he had met two men earlier in the evening and had arranged to sell them some whiskey. Since they did not have enough money with them to pay for it, he drove them to the vicinity of Mrs. Cox’s house, and they left the car allegedly to go and get more money. After waiting some time for the men to return, the petitioner went looking for them. Following their general direction, he saw that a single house on the block was lighted and entered in search of them. According to his version, he found no one home and left the house, hiding from the police because he feared they would find the illegal whiskey in his car. He denied having seen Mrs. Cox in the house. Under Virginia law, the elements of statutory burglary are breaking and entering “the dwelling house of another in the nighttime with intent to commit a felony or larceny therein.” § 18.1-86, Code of Virginia (1950). Specific intent is an essential element of the crime and “it is necessary for the intent to be established as a matter of fact before a conviction can be had.” Taylor v. Commonwealth, 207 Va. 326, 150 S.E.2d 135, 141 (1966). In the present case, the District Court concluded that, although there was ample evidence of a breaking and entering, no evidence supported the state court’s finding of the petitioner’s intent to commit larceny. The District Court therefore held that the petitioner had been convicted without due process of law. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). When the sufficiency of the evidence supporting a state conviction is challenged by way of federal habeas corpus, the sole constitutional question is whether the conviction rests upon any evidence at all. Young v. Boles, 343 F.2d 136 (4th Cir. 1965). The probative strength of the evidence is not in issue. Applying that test to the instant case, we do not find the record so lacking in evidence of the petitioner’s specific intent to commit larceny that a conviction for burglary is constitutionally precluded. The petitioner entered a strange house in the middle of the night carrying a flashlight which he used to examine the unlighted part of the house. Finding the house occupied, he fled, and when first picked up by the police made a number of inconsistent statements regarding his presence in the neighborhood. He also denied having a car, although his car was later discovered by the police approximately three-quarters of a mile from Mrs. Cox’s house. The petitioner’s trial testimony conflicted with his earlier statements to the police. In the circumstances, the trier of fact could reasonably find that his version of the occurrence was not credible. Although the evidence of intent was not overwhelming, it must be recognized-that intent is almost always established by circumstantial evidence. Looking at the entire record, we cannot say that there was no evidence from which the state court judge could rationally infer, as he did, that the petitioner entered the Cox home with the intent to commit larceny. The order of the District Court granting a writ of habeas corpus is accordingly 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 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?

Peter BOGART and June Bogart, Appellants, v. PEOPLE OF the STATE OF CALIFORNIA, Appellee. No. 22089. United States Court of Appeals Ninth Circuit. March 17, 1969. Rehearing Denied April 25, 1969. Sam Bubriek, Los Angeles, Cal., for Peter D. Bogart & June Bogart. Evelle J. Younger, Dist. Atty., Robert J. Lord, Asst. Dist. Atty., Los Angeles, Cal., for appellee. Before BARNES, DUNIWAY and ELY, Circuit Judges. BARNES, Circuit Judge: This appeal was set for oral argument on March 4, 1969. At that time, upon oral motion made by counsel for appellants to be relieved as counsel for appellants, and upon consent expressed in open court by each appellant that the motion be granted, the motion was granted. Appellants thereupon each requested in open court that the appeal be submitted on the brief on file (no brief had been filed by appellee). It was so ordered. This matter has been before this court previously. For a recital of the complicated facts through 1965, see our opinion appearing at 355 F.2d 377 (1966), particularly pages 378 to 380. In that case we concluded: “The order of the district court remanding the cause to the state court is affirmed.” The date of that opinion was January 13, 1966. A petition for rehearing was denied by this court on February 21, 1966. A petition for certiorari was filed with the Supreme Court of the United States, and we stayed our mandate. The petition for certiorari was denied by the Supreme Court on October 10, 1966, 385 U.S. 888, 87 S.Ct. 132, 17 L.Ed.2d 117, and a rehearing denied by that same Court on November 21, 1966, 385 U.S. 964, 87 S.Ct. 400, 17 L.Ed.2d 310. Our judgment (now mandate) was issued on January 16, 1967, and “filed and spread and entered” in the district court on February 6, 1967. As of that date, the matter (No. 20,050 in this court and No. 34749 in the district court) was final, and the appellants’ cause of action was in the state court, and not in the federal courts. All previously issued stays had expired by their own terms. On February 6, 1967, appellants “lodged” with the district court two documents, each entitled “FIRST AMENDED PETITION FOR REMOVAL OF PROSECUTION BY DEFENDANTS DENIED CIVIL RIGHTS. 28 U.S.C. §§ 1U3, 1U6.” (T.R. 39, et seq.) On that same date, the Hon. Charles H. Carr entered an order with respect to the “lodged” papers (1) denying consideration of the amended removal petitions, and (2) denying motions to appoint counsel for alleged indigent appellants. On February 13, 1967, appellants lodged, and on February 15, 1967, filed, a notice of appeal from (1) and (2), supra, and (3) “from all orders and final judgments made on said February 6, 1967 in said cause.” The only order made on that day other than (1) and (2), supra, was that the mandate of this court of appeals be spread. (R.T. 3-9.) The two orders denying appellants’ motions were premised on the fact that the trial court’s previous order of March 31, 1965, remanding appellants’ cases to the California Superior Court, had been affirmed by this court; his ruling was thus the law of the case, and res adjudicata (R.T. 9). We hold the district court was correct. At the time of the original order of transfer appellants made no offer or effort to amend their petitions. Their untimely attempts, made almost two. years later, to amend came too late, for there was then nothing before the district court to amend. Appellants ask this court in their brief filed August 14, 1968, “to extend their notice of appeal to an order made by Judge Carr entered on March 13, 1967 denying them leave to appeal in forma pauperis.” No appeal having been taken from this order, we are without jurisdiction to entertain any such appeal, or “to extend” the earlier and timely notice of appeal. Fed.R.App.P., Rule 26(b); Rule 2. 222 East Chestnut St. Corp. v. Lakefront, 256 F.2d 513 (7th Cir.) cert. den. 358 U.S. 907, 79 S.Ct. 232, 3 L.Ed.2d 228 (1958); Britton v. Dowell, Inc., 243 F.2d 434 (10th Cir. 1957); Pioche Mines Consol., Inc. v. Foley, 237 F.2d 164 (9th Cir.1956); Food Handlers Local No. 425, v. Pluss Poultry, Inc., 23 F.R.D. 109 (W.D.Ark. 1958); Jones v. Kennedy, 2 F.R.D. 357 (D.D.C.1942). Affirmed.

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

Are there two issues in the case?

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. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be 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?

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

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.

Thomas L. REDWINE, Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee. No. 17203. United States Court of Appeals District of Columbia Circuit. Argued Jan. 17, 1963. Decided April 4, 1963. See also 28 F.R.D. 29. Mr. Samuel L. Phillips, Washington, D. C., for appellant. Mr. Robert D. Devlin, Asst. U. S. Atty., with whom Messrs. David G. Acheson, U. S. Atty., Frank Q. Nebeker and Mrs. Ellen Lee Park, Asst. U. S. Atiys., were on the brief, for appellee. Mr. Nathan J. Paulson, Asst. U. S. Atty., at the time the record was filed, also entered an appearance for appellee. Before Bazelon, Chief Judge, and Fahy and Bastían, Circuit Judges. PER CURIAM. The District Court granted appellee’s motion for summary judgment in appellant’s suit for declaratory relief from his “undesirable discharge” from the United States Air Force. While on “remote duty” in Alaska as a member of the United States Air Force, appellant pleaded guilty to a civilian charge of burglary for which he was sentenced to prison for two and one-half years. Thereafter, and without hearing, the Air Force issued an “undesirable discharge.” Appellant subsequently requested and received a hearing at which he was represented by counsel and in which the discharge was affirmed. Appellant contends that due process required a hearing prior to discharge. In the context of this case, at least, we think not, since appellant makes no claim that he was prejudiced by the fact that his hearing was held subsequent to discharge. Appellant also challenges the validity of his guilty plea in the civilian court, upon which his undesirable discharge was predicated. He claims that it was not made “understandingly,” because he was not informed of all the consequences of the plea including the likelihood of an undesirable disehai'ge. But an Air Force discharge proceeding is not the proper place for such an attack. Moreover', we are aware of no authority holding that a plea of guilty is “understandingly” made only if the defendant is informed of all the possible non-criminal consequences which may flow from it. Appellant’s other claims of error are without merit. Affirmed. . A.F.R. 39-22, Sept. 23, 1953, states that “the general policy will be to discharge an airman with an undesirable discharge under this Regulation where the airman has been convicted by a civil court of an offense punishable by death or imprisonment for more than one year.” . Appellant says that counsel and voluntary witnesses are obtainable at Government expense in pre-discharge hearings but not in post-discharge hearings. Assuming arguendo that this is so, we need not decide whether this would require a pre-discharge hearing since appellant was, in fact, represented by counsel at his post-discharge hearing, and he does not claim that he was prejudiced by any difficulty in obtaining witnesses.

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?

Lennie CROSBY, et al., Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. William BOWLING and Arthur F. Quern, Defendants-Appellants. No. 81-2109. United States Court of Appeals, Seventh Circuit. Argued March 29, 1982. Decided July 20, 1982. Val Gunnarsson, Asst. Atty. Gen., Springfield, 111., for defendants-appellants. Herbert Eastman, St. Cloud Area Legal Services, East St. Louis, 111., for plaintiffsappellees. Before PELL, SPRECHER, and CUDAHY, Circuit Judges. Circuit Judge Robert A. Sprecher was assigned to the panel to hear oral argument in this case. He had read the briefs prior to oral argument but was unable to be present at the argument and did not participate thereafter in the decision of the case because of his failing health and subsequent death on May 15, 1982. PELL, Circuit Judge. The defendants-appellants challenge a district court order awarding $18,439.50 in attorney’s fees to the plaintiffs pursuant to 42 U.S.C. § 1988 (1976). The fee award pertains to Crosby’s class-action suit, brought pursuant to 42 U.S.C. § 1983 (1976) challenging certain federal and Illinois regulations concerning the Work Incentive (WIN) program established pursuant to Title IV of the Social Security Act. That suit, which named both federal and state officials as defendants, resulted in issuance of a nation-wide permanent injunction against enforcement of the challenged regulations. The district judge found that no fees could be taxed against the federal defendants because of sovereign immunity, 28 U.S.C. § 2412 (1976); Adams v. Carlson, 521 F.2d 168, 169-71 (7th Cir. 1975). The arguments raised by the state defendants in this appeal are: (1) that Crosby is not a “prevailing party” within the meaning of 42 U.S.C. § 1988 (1976); (2) that, in any event, Crosby did not prevail against the state defendants; (3) that “special circumstances” make a fee award against the state defendants unjust; and (4) that if the state defendants are liable for any fees, the award should be reduced to reflect their limited role in enforcing the regulations. I. FACTS The federal WIN program was designed to structure state plans for aid to families with dependent children along lines envisioned by the Congress to be most beneficial to the needy and supportive of family stability. The program requires all able-bodied adults seeking aid to “register for manpower services, training and employment as provided by regulations of the [United States] Secretary of Labor . . . . ” 42 U.S.C. § 602(a)(19)(A) (1976). Section 602(a)(19)(F), as originally enacted, further provided that “if and for so long as [an individual] has been found by the Secretary of Labor ... to have refused without good cause to participate under a work incentive program . . . such individual’s needs shall not be taken into account. . .. ” 42 U.S.C. § 602(a)(19)(F) (1976) (amended 1980) (emphasis added). The federal regulations challenged in Crosby’s suit provided that any individual found to have refused to participate in the work requirements without good cause was to be denied benefits for a fixed period of ninety days. See 29 C.F.R. §§ 56.20, 56.51, and 56.77 (1978); 45 C.F.R. §§ 224.50, 224.51, and 225.77 (1978). The state regulations, promulgated and enforced by the state defendants, similarly provided for a fixed-period sanction. Lennie Crosby, an Illinois resident, was a recipient of federal funds through the Aid to Families with Dependent Children (AFDC) Program administered by the Illinois Department of Public Aid. She registered, as she was required to do by 42 U.S.C. § 602(a)(19)(A) (1976), for manpower services under the WIN program in June, 1977. Subsequently, Crosby was found to have refused without good cause to participate in the work program. She was notified that she would be deregistered from eligibility for AFDC funds for ninety days. Crosby then brought an action in the district court on behalf of herself and two classes of persons in forty-seven states. She claimed that the fixed-period sanctions prescribed by federal and state regulations were inconsistent with 42 U.S.C. § 602(a)(19)(F) (1976) (amended 1980) which provided for deregistration “for so long as” an individual refuses to participate without good cause in the work program. On July 10,1980, Judge Ackerman granted the plaintiffs’ motion for summary judgment, finding the fixed-period sanctions invalid because they were in conflict with the express language of the statute. The district judge also found that the federal defendants were collaterally estopped from litigating the validity of the regulations because of a previous holding of invalidity in McLean v. Mathews, 458 F.Supp. 285, 288 (S.D.N.Y.1977). Judge Ackerman granted declaratory and injunctive relief against the state and federal defendants. The appellees subsequently petitioned for attorney’s fees pursuant to 42 U.S.C. § 1988 (1976). On December 5, 1980, the court granted the petition in part. On March 6, 1981, the court vacated its December 5th order. The following June 10th, after the appellants conducted discovery and were accorded a hearing, Judge Ackerman reentered the order of December 5, 1980 in modified form. He allowed the appellees’ supplemental petition for attorney’s fees. The appellees requested a total of $30,-527.80 in fees and the court awarded a total amount of $18,439.50. II. PREVAILING PARTY An award of attorney’s fees can be ordered pursuant to section 1988 only if the court finds that the plaintiff was a “prevailing party.” 42 U.S.C. § 1988 (1976); Maine v. Thiboutot, 448 U.S. 1, 9, 100 S.Ct. 2502, 2506, 65 L.Ed.2d 555 (1980). A two-part test is applied to determine whether one has prevailed. First, the plaintiff’s lawsuit must be “causally linked to the achievement of the relief obtained.” Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir. 1981). Second, the defendant must not have acted gratuitously in response to a frivolous or legally insignificant claim. Id. The appellants’ argument against the appropriateness of a fee award in this case does not focus primarily on application of this test; rather, the state defendants rely on the Congressional purpose underlying section 1988. A. Did the Plaintiffs Prevail Within the Meaning of Section 1988! The legislative history of section. 1988 states that the purpose of the fee provision is to give private citizens “a meaningful opportunity to vindicate the important Congressional policies which [civil rights laws] contain.” S.Rep.No.1011, 94th Cong., 2d Sess. 2 (1976), reprinted in [1976] U.S.Code Cong. & Ad. News 5908, 5910. The appellants pose two arguments relating to this language: (1) that the appellees did not vindicate a Congressional policy, and (2) at most, the policy vindicated by the plaintiffs was not one of high priority. The appellants rely heavily on the fact that Congress has amended section 602(a)(19)(F) so as to permit deregistration of an individual who refuses without good cause to participate in a WIN program “for such period as is prescribed under joint regulations of the Secretary and the Secretary of Labor.” Act of June 9, 1980, Pub.L.No. 96-265, 401, 94 Stat. 461 (1980) (codified at 42 U.S.C.A. § 602(a)(19)(F) (Cum.Supp. 1981)). The fixed-period sanction found invalid in this suit would therefore be permissible under the amended statutory language. The state defendants argue that this amendment merely clarified the original intent of Congress in enacting 42 U.S.C. § 602(a)(19)(F) (1976) (amended 1980). If Congress meant to permit such sanctions, the appellees cannot be said to have “vindicate[d]... important Congressional policies,” S.Rep.No.1011, 94th Cong., 2d Sess. 2 (1976), reprinted in [1976] U.S.Code Cong. & Ad. News 5908, 5910; rather, they merely proved that a technical inconsistency between the statutory language and the regulations existed. The second point urged by the appellants, on the authority of Naprstek v. City of Norwich, 433 F.Supp. 1369 (N.D.N.Y.1977), also relies on the amendment of section 602(a)(19)(F). If Congress originally intended to preclude fixed-period sanctions, as the court below concluded, this policy could not have been one of high priority or Congress would not have acted so promptly to amend the statutory language. We are not persuaded by these arguments. First, the legislative history of the amendment to section 602(a)(19)(F) suggests that Congress viewed the amendment as a change in law rather than as a clarification. Senate Report No. 408, 96th Cong., 2d Sess. 6 (1979), reprinted in [1980] U.S. Code Cong. & Ad. News 1277, 1285, states that the amendment would “authorize the Secretaries of Labor and Health, Education, and Welfare to establish the period of time during which an individual will continue to be ineligible for assistance in the case of a refusal without good cause to participate in a WIN program” (emphasis added). The Senators’ choice of the word “authorize” is significant because the Report utilizes the term “clarify” in the following sentence: “The amendment would also clarify the treatment of earned income derived from public service employment.” Id. (emphasis added). The conclusion that Congress deliberately used the term “authorize” rather than “clarify” in discussing the permissible sanctions is furthered by language used later in the Report which states the Congress’ “belie[f] that the present statutory requirements should be strengthened in such a way as to provide additional encouragement for welfare recipients to move into employment.” Id. at 63, reprinted in [1980] U.S. Code Cong. & Ad.News 1277, 1341 (emphasis added). We cannot accept the appellants’ argument that the amendment to section 602(a)(19)(F) was merely a clarification of prior Congressional intent in light of this specific reference to “strengthening” the statutory requirements so as to provide “additional” incentives for aid recipients to accept employment. Second, we do not read Naprstek v. City of Norwich, 433 F.Supp. 1369 (N.D.N.Y. 1977), as holding that the plaintiffs in that case were other than prevailing parties. Although the opinion is perhaps less explicit than it might be, we believe that the district court for the Northern District of New York found that special circumstances present in Naprstek would make a fee-award to the prevailing parties unjust. Id. at 1370. Even if Naprstek does stand for the proposition urged by the appellants, it is readily distinguishable from the instant case. The plaintiffs in Naprstek contended that a local juvenile curfew ordinance was unconstitutionally vague because it failed to specify a termination time. The court found that the challenged ordinance was rarely enforced and noted that the constitutional power of a municipality to enact a properly worded curfew was established. Id. Further, counsel for the municipality had indicated their willingness to meet with the plaintiffs’ attorneys to discuss redrafting the ordinance but their offer had been refused by the plaintiffs. In contrast to the facts of Naprstek, the fixed-period sanctions challenged by Crosby’s class-action suit were enforced and there is no evidence whatsoever that either federal or state officials were willing to desist from the practice absent a judicial order so requiring. These facts also demonstrate that this case fulfills both parts of the test enunciated by this court for determining whether a plaintiff is a prevailing party. See Harrington v. DeVito, 656 F.2d 264, 266 (7th Cir. 1981). The plaintiffs’ claim was a legally significant one and the relief obtained by the plaintiffs was a direct result of their lawsuit. We conclude that the district judge was correct in holding that the plaintiffs were prevailing parties. B. Did the Plaintiffs Prevail as to the State Defendants? The second major argument posed by the state defendants is that if the plaintiffs have prevailed in their suit, they have done so only as to the federal defendants. The appellants urge that they had no choice but to conform the state regulations to the standard mandated by the federal rulemakers because to have done otherwise would have jeopardized the funding of the entire AFDC program in Illinois. See 42 U.S.C. § 602(a)(19)(F) (1976). Further, the state defendants maintain that the summary judgment entered against the federal defendants was sufficient to provide the plaintiff class full relief and the order against the state defendants was “mere surplusage.” The appellants overlook several facts. The federal regulations mandating fixed-period sanctions were first declared invalid on June 23, 1977, in McClean v. Mathews, 458 F.Supp. 285, 288 (S.D.N.Y.1977). The Illinois defendants continued, however, to enforce such sanctions against state AFDC recipients who declined to participate in the WIN program. Second, the state defendants actively participated in all phases of the case at bar. Their opposition to both certification of the class and the issuance of a preliminary injunction is inconsistent with the passive role which they now attribute to themselves. We conclude therefore that the plaintiff class “prevailed,” within the meaning of 42 U.S.C. § 1988 (1976), as to both the federal and state defendants. III. SPECIAL CIRCUMSTANCES The appellants correctly note that “special circumstances” may militate against an award of fees to a prevailing party. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam), the Supreme Court stated that “one who succeeds in obtaining an injunction under [Title II] should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” The state defendants contend that two such circumstances preclude a fee award in this case: (1) they were “coerced by the power and authority” of the federal defendants into adopting fixed-period sanctions, and (2) the state regulations were actually in accord with Congressional intent. In evaluating the appellants’ arguments, we must bear in mind that the burden of demonstrating the existence of special circumstances is on the defendant. Williams v. Miller, 620 F.2d 199, 202 (8th Cir. 1980); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 38 (2d Cir. 1978). Further, the “special circumstances” limitation of section 1988 is applicable only to unusual cases. See Riddell v. National Democratic Party, 624 F.2d 539, 544-45 (5th Cir. 1980). A. Coercion by Federal Defendants The basis of the alleged coercion is federal control over AFDC funds. 42 U.S.C. § 601 (1976). The appellants maintain that a failure to enforce fixed-period sanctions against AFDC recipients who failed to participate in the WIN program would have resulted in the State’s losing the federal dollars that funded the programs. We start with the recognition that there is authority indicating the propriety of a fee award, pursuant to section 1988, against state defendants who have acted pursuant to an invalid federal regulation. In Tongol v. Usery, 601 F.2d 1091 (9th Cir. 1979), the plaintiffs challenged federal regulation 20 C.F.R. § 618.15 (1975), which required states to recoup overpayments in Federal Supplemental Benefits despite state laws that provided for waiver of recovery of such overpayments. The district judge held the regulation to be inconsistent with the legislative purpose of the Emergency Unemployment Compensation Act and this aspect of his opinion was affirmed by the Ninth Circuit. The district judge had not awarded attorney’s fees to the plaintiffs, however, because he found that they had failed to state a claim pursuant to section 1983. Id. at 1097. Holding that a claim had been stated under that section, the court of appeals ruled that the district court had discretion to award fees and remanded the case. The court gave no indication whatsoever that the limited enforcement role played by state officials would constitute a special circumstance militating against a fee award. In Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), the United States Supreme Court utilized language suggesting that fees can properly be taxed against those whose role is limited to enforcement of regulations that they had no role in promulgating. In that case the plaintiffs had succeeded in their section 1983 challenge to particular provisions of the Virginia State Bar Code. The Virginia Supreme Court was responsible for propounding the Code. That court also had independent authority to enforce the Code. The State Bar had previously recommended that the court amend the provisions of the Code that were challenged by the Consumers Union, but the court had failed to do so. The district court taxed the plaintiffs’ award of attorney’s fees, pursuant to section 1988, against the court and its chief justice. No fees were taxed against the State Bar, however, because of its attempt to persuade the court to amend the provision. The United States Supreme Court held that legislative immunity precluded a fee award against the court that was premised on its failure to exercise its rulemaking authority. Id. at 739, 100 S.Ct. at 1978. In vacating the fee award and remanding for further proceedings, the Court stated: This is not to say that absent some special circumstances in addition to what is disclosed in this record, a fee award should not have been made in this case. We are not convinced that it would be unfair to award fees against the State Bar, which by statute is designed as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or an injunction. Id. Although Consumers Union did not involve state officials charged with enforcing federal regulations, we think that the Supreme Court’s analysis supports our conclusion that state officials can be charged with fees despite the fact that they acted in response to a federal regulation. The conclusion that the state defendants could be held responsible for attorney’s fees in this case does not, of course, fully resolve whether they should be. We are not persuaded by the appellants’ economic coercion argument, however, because there is no evidence in the record that the state defendants even considered how they might avoid this alleged coercion. The appellants could have heeded the statutory language and, if the federal authorities actually threatened to terminate AFDC funding for failure to comply with the federal regulations, proceeded administratively, see 45 C.F.R. Part 213. Alternatively, the state defendants could have sought a declaratory judgment as to the validity of the fixed-period sanctions. Smith v. Puett, 506 F.Supp. 134, 146 (M.D.Tenn.1980). The record does not indicate other than that the state defendants willingly acquiesced in imposition of the fixed-period sanctions. We cannot conclude, therefore, that they were victims of coercion. B. Intent of Congress The appellants urge that the consistency between the fixed-period sanctions and the amended version of section 602(a)(19)(F), 42 U.S.C.A. § 602(a)(19)(F) (Cum.Supp.1981), is a special circumstance making a fee award unjust. Because we are not persuaded that the amendment reflects the intent of the Congress that enacted the original version of section 602(a)(19)(F), see Section 11(A) supra, we find no merit to this argument. C. Other Special Circumstances The state defendants rely on several cases in support of their argument that special circumstances preclude an award of fees in this ease. None of these cases directly supports the specific “special circumstances” arguments discussed above. We have therefore reserved discussion of these authorities to this point. The appellants assert that their role in the present case is analogous to that of amici curiae and rely on Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980), for the proposition that fees are therefore inappropriate. The state defendants appear to overlook the fact that they were named parties to Crosby’s suit and that relief was granted against them. As noted in Section 11(B), supra, the appellants took an active role in litigating this case at the district court level. Because we do not find the state defendants’ role in this case to be analogous to that of amici curiae, the Northcross case is inapposite. The other cases on which the appellants rely are readily distinguishable. First, we note that the state defendants cite only one case, Bibb v. Montgomery County Jail Officials, 622 F.2d 116 (5th Cir. 1980), in which a court of appeals found that the district court had abused its discretion regarding an award of attorney’s fees. The Bibb court did not hold, however, that special circumstances precluded an award of attorney’s fees to the plaintiffs; rather, the Fifth Circuit held that the district court erred in taxing the state defendants with the entire award when many of the conditions of which the plaintiffs complained were attributable only to the county defendants. The Fifth Circuit remanded the case in order for the district court to attribute some portion of the fees to these county officials. By contrast, the state defendants in the instant case were directly responsible for enforcement of the state regulations of which the plaintiffs complained. Further, because there is no clear authority for imposing fees on the federal defendants, we are asked to deny the plaintiffs any award pursuant to section 1988. As noted above, none of the three other cases on which the appellants rely, Chastang v. Flynn & Emrich Co., 541 F.2d 1040 (4th Cir. 1976); Entertainment Concepts, III, Inc. v. Maciejewski, 514 F.Supp. 1378 (N.D. Ill.1981); Bush v. Bays, 463 F.Supp. 59 (E.D.Va.1978), holds that the district judge abused his discretion in awarding or denying fees to a prevailing plaintiff. Further, the Fourth Circuit in Chastang and the district court in Bush both found that the defendants had acted promptly to comply with the law as soon as the law had been clarified. Chastang, 541 F.2d at 1045; Bush, 463 F.Supp. at 66. By contrast, the state defendants in the instant suit did not abandon fixed-period sanctions following the decision in McLean v. Mathews, 458 F.Supp. 285 (S.D.N.Y.1977), which declared such sanctions invalid. Although McLean clearly was not binding on the Illinois state officials, it did provide some clarification of the law. None of the “special circumstances” cases cited by the appellants persuades us that an award of attorney’s fees, taxable to the state defendants, is unjust in the present case. We therefore turn to the final argument on which the appellants rely. The appellants urge that the district judge thought that the attorney’s fees should be awarded jointly and severally against the state and federal defendants but believed himself precluded from so ordering. Essentially they argue that it is unfair for the state defendants to be charged with the entire fee award when, in their view, the greater portion of the “blame” lies with the federal defendants. We note that the Equal Access to Justice Act, Pub.L.No.96-481, 94 Stat. 2325 (1980), would allow fees to be assessed against the federal defendants had this case been pending on October 1, 1981. Although we express no view as to whether this case could be brought within the strictures of that Act, we note that the state defendants have apparently not explored this option at any length. Second, this circuit has yet to establish a rule on the question of federal liability under section 1988 relevant to those cases not within the ambit of the Equal Access to Justice Act. Although the weight of authority has denied such liability, see, e.g., Shannon v. United States Department of HUD, 577 F.2d 854 (3d Cir. 1978), cert. denied, 439 U.S. 1002, 99 S.Ct. 611, 58 L.Ed.2d 677 the dissent of Chief Judge Wright in NAACP v. Civiletti, 609 F.2d 514, 521-31 (D.C.Cir.1979), cert. denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980), would provide the basis for an argument in favor of federal liability. We, of course, express no view as to whether such an argument would prevail. We merely note that such an approach might have been pursued by the state defendants and was not. Instead, the state defendants claim that the plaintiffs should bear their own fees because the “blame” rests with the federal defendants. In our view, this is completely inconsistent with the purposes of the section 1988 provision for an award of attorney’s fees to a prevailing party. We conclude, therefore, that there exist no “special circumstances” making an award of fees unjust in this case. IV. APPORTIONMENT OF THE AWARD The final argument posed by the state defendants is that the fee award taxed against them should be reduced to reflect their limited role in enforcing the invalid fixed-period sanctions. Our review of Judge Ackerman’s order of December 5, 1980, suggests, however, that the district court considered the roles played by the federal and state defendants, respectively, in setting the amount of the fee award. The December 5th order noted both that the federal defendants were responsible for the initial promulgation of fixed-period sanctions and that Congress subsequently amended section 602(a)(19)(F). The district judge then stated that “because of the special circumstances described above, it would be unjust to force the state defendants to bear the entire burden of such an award.” Although the judge referred in the same paragraph to twelve “factors” on which he relied in determining the appropriate fee award, see Hampton v. Hanrahan, 600 F.2d 600, 643 (7th Cir. 1979) (adopting the standards delineated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)), modified, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), we conclude that he also gave due consideration to the degrees of liability attributable to the two classes of defendants. This conclusion is reinforced by the fact that the district judge vacated his order of December 5th on March 6,1981. The appellants had an opportunity to conduct discovery and were afforded a hearing by the district judge before he entered the final order pertaining to attorney’s fees on June 10, 1981. The total fees awarded were approximately sixty percent of the amount requested by the plaintiffs’ attorneys. We find no abuse of discretion in the amount of the final award or in the method by which Judge Ackerman arrived at that amount. CONCLUSION Having concluded that the plaintiffs were “prevailing parties” within the meaning of 42 U.S.C. § 1988 (1976), that no special circumstances making an award of attorney’s fees unjust are present in this case, and that the district judge did not err in the amount of fees he taxed against the state defendants, the order of the district court is hereby Affirmed. . See 42 U.S.C. §§ 601-644 (1976). . The Act of June 9, 1980, Pub.L.No.96-265, 94 Stat. 461 (1980), amended section 602(a)(19)(F) by substituting “(and for such period as is prescribed under joint regulations of the Secretary and the Secretary of Labor)” for the phrase italicized above. 42 U.S.C.A. § 602(a)(19)(F) (Cum.Supp.1981). This amendment is pertinent to the appellants’ arguments that the plaintiffs are not prevailing parties, see Section II, infra, and that special circumstances make a fee award inappropriate in this case, see Section III, infra. . At oral argument before this court, the appellee argued forcefully that this case would, not allow a recovery of fees pursuant to the Equal Access to Justice Act because (1) it was not pending on October 1, 1981; (2) no application was made within 30 days of final judgment; and (3) the Act is subject to a strict construction.

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

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

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

GILMER v. INTERSTATE/JOHNSON LANE CORP. No. 90-18. Argued January 14, 1991 Decided May 13, 1991 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 36. John T. Allred argued the cause and filed a brief for petitioner. James B. Spears, Jr., argued the cause for respondent. With him on the brief was Robert S. Phifer. Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Robert L. Liebross; and for the American Federation of Labor and Congress of Industrial Organizations by Laurence Gold and Marsha S. Berzon. Briefs of amici curiae urging affirmance were filed for the Center for Public Resources, Inc., by Jay W. Waks; for the Chamber of Commerce of the United States of America by Peter G. Nash, Dixie L. Atwater, Michael J. Murphy, and Stephen A. Bokat; for the Equal Employment Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, Ann Elizabeth Reesman, and Donald L. Goldman; for the Lawyers’ Committee for Civil Rights Under Law by Alan E. Kraus, Nicholas deB. Katzenbach, Robert F. Mullen, David S. Tatel, Thomas J. Henderson, and Richard T. Seymour; and for the Securities Industry Association, Inc., by A. Robert Pietrzak and William J. Fitzpatrick. Justice White delivered the opinion of the Court. The question presented in this case is whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application. The Court of Appeals held that it could, 895 F. 2d 195 (CA4 1990), and we affirm. I Respondent Interstate/Johnson Lane Corporation (Interstate) hired petitioner Robert Gilmer as a Manager of Financial Services in May 1981. As required by his employment, Gilmer registered as a securities representative with several stock exchanges, including the New York Stock Exchange (NYSE). See App. 15-18. His registration application, entitled “Uniform Application for Securities Industry Registration or Transfer,” provided, among other things, that Gilmer “agree[d] to arbitrate any dispute, claim or controversy” arising between him and Interstate “that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register.” Id., at 18. Of relevance to this case, NYSE Rule 347 provides for arbitration of “[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative.” App. to Brief for Respondent 1. Interstate terminated Gilmer’s employment in 1987, at which time Gilmer was 62 years of age. After first filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC), Gilmer subsequently brought suit in the United States District Court for the Western District of North Carolina, alleging that Interstate had discharged him because of his age, in violation of the ADEA. In response to Gilmer’s complaint, Interstate filed in the District Court a motion to compel arbitration of the ADEA claim. In its motion, Interstate relied upon the arbitration agreement in Gilmer’s registration application, as well as the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq. The District Court denied Interstate’s motion, based on this Court’s decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and because it concluded that “Congress intended to protect ADEA claimants from the waiver of a judicial forum.” App. 87. The United States Court of Appeals for the Fourth Circuit reversed, finding “nothing in the text, legislative history, or underlying purposes of the ADEA indicating a congressional intent to preclude enforcement of arbitration agreements.” 895 F. 2d, at 197. We granted certiorari, 498 U. S. 809 (1990), to resolve a conflict among the Courts of Appeals regarding the arbitrability of ADEA claims. II The FAA was originally enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. Its purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219-220, and n. 6 (1985); Scherk v. Alberto-Culver Co., 417 U. S. 506, 510, n. 4 (1974). Its primary substantive provision states that “[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. The FAA also provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, §3, and for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement, §4. These provisions manifest a “liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 24 (1983). It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. Indeed, in recent years we have held enforceable arbitration agreements relating to claims arising under the Sherman Act, 15 U. S. C. §§1-7; § 10(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78j(b); the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. § 1961 et seq.; and § 12(2) of the Securities Act of 1933, 15 U. S. C. § 77l(2). See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U. S. 477 (1989). In these cases we recognized that “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi, 473 U. S., at 628. Although all statutory claims may not be appropriate for arbitration, “[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Ibid. In this regard, we note that the burden is on Gilmer to show that Congress intended to preclude a waiver of a judicial forum for ADEA claims. See McMahon, 482 U. S., at 227. If such an intention exists, it will be discoverable in the text of the ADEA, its legislative history, or an “inherent conflict” between arbitration and the ADEA’s underlying purposes. See ibid. Throughout such an inquiry, it should be kept in mind that “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone, supra, at 24. Ill Gilmer concedes that nothing in the text of the ADEA or its legislative history explicitly precludes arbitration. He argues, however, that compulsory arbitration of ADEA claims pursuant to arbitration agreements would be inconsistent with the statutory framework and purposes of the ADEA. Like the Court of Appeals, we disagree. A Congress enacted the ADEA in 1967 “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. § 621(b). To achieve those goals, the ADEA, among other things, makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” § 623(a)(1). This proscription is enforced both by private suits and by the EEOC. In order for an aggrieved individual to bring suit under the ADEA, he or she must first file a charge with the EEOC and then wait at least 60 days. § 626(d). An individual’s right to sue is extinguished, however, if the EEOC institutes an action against the employer. § 626(c)(1). Before the EEOC can bring such an action, though, it must “attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.” §626(b); see also 29 CFR §1626.15 (1990). As Gilmer contends, the ADEA is designed not only to address. individual grievances, but also to further important social policies. See, e. g., EEOC v. Wyoming, 460 U. S. 226, 231 (1983). We do not perceive any inherent inconsistency between those policies, however, and enforcing agreements to arbitrate age discrimination claims. It is true that arbitration focuses on specific disputes between the parties involved. The same can be said, however, of judicial resolution of claims. Both of these dispute resolution mechanisms nevertheless also can further broader social purposes. The Sherman Act, the Securities Exchange Act of 1934, RICO, and the Securities Act of 1933 all are designed to advance important public policies, but, as noted above, claims under those statutes are appropriate for arbitration. “{S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.” Mitsubishi, supra, at 637. We also are unpersuaded by the argument that arbitration will undermine the role of the EEOC in enforcing the ADEA. An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action. Indeed, Gilmer filed a charge with the EEOC in this case. In any event, the EEOC’s role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA “from any source,” and it has independent authority to investigate age discrimination. See 29 CFR §§1626.4, 1626.13 (1990). Moreover, nothing in the ADEA indicates that Congress intended that the EEOC be involved in all employment disputes. Such disputes can be settled, for example, without any EEOC involvément. See, e. g., Coventry v. United States Steel Corp., 856 F. 2d 514, 522 (CA3 1988); Moore v. McGraw Edison Co., 804 F. 2d 1026, 1033 (CA8 1986); Runyan v. National Cash Register Corp., 787 F. 2d 1039, 1045 (CA6), cert. denied, 479 U. S. 850 (1986). Finally, the mere involvement of an administrative agency in the enforcement of a statute is not sufficient to preclude arbitration. For example, the Securities Exchange Commission is heavily involved in the enforcement of the Securities Exchange Act of 1934 and the Securities Act of 1933, but we have held that claims under both of those statutes may be subject to compulsory arbitration. See Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989). ' Gilmer also argues that compulsory arbitration is improper because it deprives claimants of the judicial forum provided for by the ADEA. Congress, however, did not explicitly preclude arbitration or other nonjudicial resolution of claims, even in its recent amendments to the ADEA. “[I]f Congress intended the substantive protection afforded [by the ADEA] to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” Mitsubishi, 473 U. S., at 628. Moreover, Gilmer’s argument ignores the ADEA’s flexible approach to resolution of claims. The EEOC, for example, is directed to pursue “informal methods of conciliation, conference, and persuasion,” 29 U. S. C. § 626(b), which suggests that out-of-court dispute resolution, such as arbitration, is consistent with the statutory scheme established by Congress. In addition, arbitration is consistent with Congress’ grant of concurrent jurisdiction over ADEA claims to state and federal courts, see 29 U. S. C. § 626(c)(1) (allowing suits to be brought “in any court of competent jurisdiction”), because arbitration agreements, “like the provision for concurrent jurisdiction, serve to advance the objective of allowing [claimants] a broader right to select the forum for resolving disputes, whether it be judicial or otherwise.” Rodriguez de Quijas, supra, at 483. B In arguing that arbitration is inconsistent with the ADEA, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “res[t] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas, supra, at 481. Consequently, we address these arguments only briefly. Gilmer first speculates that arbitration panels will be biased. However, “[w]e decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious and impartial arbitrators.” Mitsubishi, supra, at 634. In any event, we note that the NYSE arbitration rules, which are applicable to the dispute in this case, provide protections against biased panels. The rules require, for example, that the parties be informed of the employment histories of the arbitrators, and that they be allowed to make further inquiries into the arbitrators’ backgrounds. See 2 CCH New York Stock Exchange Guide ¶2608, p. 4314 (Rule 608) (1991) (hereinafter 2 N. Y. S. E. Guide). In addition, each party is allowed one peremptory challenge and unlimited challenges for cause. Id., ¶2609, at 4315 (Rule 609). Moreover, the arbitrators are required to disclose “any circumstances which might preclude [them] from rendering an objective and impartial determination.” Id., ¶2610, at 4315 (Rule 610). The FAA also protects against bias, by providing that courts may overturn arbitration decisions “[w]here there was evident partiality or corruption in the arbitrators.” 9 U. S. C. § 10(b). There has been no showing in this case that those provisions are inadequate to guard against potential bias. Gilmer also complains that the discovery allowed in arbitration is more limited than in the federal courts, which he contends will make it difficult to prove discrimination. It is unlikely, however, that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims. Moreover, there has been no showing in this case that the NYSE discovery provisions, which allow for document production, information requests, depositions, and subpoenas, see 2 N. Y. S. E. Guide.¶2619, pp. 4318-4320 (Rule 619); Securities and Exchange Commission Order Approving Proposed Rule Changes by New York Stock Exchange, Inc., Nat. Assn, of Securities Dealers, Inc., and the American Stock Exchange, Inc., Relating to the Arbitration Process and the Use of Predispute Arbitration Clauses, 54 Fed. Reg. 21144, 21149-21151 (1989), will prove insufficient to allow ADEA claimants such as Gilmer a fair opportunity to present their claims. Although those procedures might not be as extensive as in the federal courts, by agreeing to arbitrate, a party “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Mitsubishi, supra, at 628. Indeed, an important counterweight to the reduced discovery in NYSE arbitration is that arbitrators are not bound by the rules of evidence. See 2 N. Y. S. E. Guide ¶2620, p. 4320 (Rule 620). A further alleged deficiency of arbitration is that arbitrators often will not issue written opinions, resulting, Gil-mer contends, in a lack of public knowledge of employers’ discriminatory policies, an inability to obtain effective appellate review, and a stifling of the development of the law. The NYSE rules, however, do require that all arbitration awards be in writing, and that the awards contain the names of the parties, a summary of the issues in controversy, and a description of the award issued. See id., 1fi[2627(a), (e), at 4321 (Rules 627(a), (e)). In addition, the award decisions are made available to the public. See id., ¶2627(f), at 4322 (Rule 627(f)). Furthermore, judicial decisions addressing ADEA claims will continue to be issued because it is unlikely that all or even most ADEA claimants will be subject to arbitration agreements. Finally, Gilmer's concerns apply equally to settlements of ADEA claims, which, as noted above, are clearly allowed. It is also argued that arbitration procedures cannot adequately further the purposes of the ADEA because they do not provide for broad equitable relief and class actions. As the court below noted, however, arbitrators do have the power to fashion equitable relief. 895 F. 2d, at 199-200. Indeed, the NYSE rules applicable here do not restrict the types of relief an arbitrator may award, but merely refer to “damages and/or other relief.” 2 N. Y. S. E. Guide ¶2627(e), p. 4321 (Rule 627(e)). The NYSE rules also provide for collective proceedings. Id., ¶2612(d), at 4317 (Rule 612(d)). But “even if the arbitration could not go forward as a class action or class relief could not be granted by the arbitrator, the fact that the [ADEÁ] provides for the possibility of bringing a collective action does not mean that individual attempts at conciliation were intended to be barred.” Nicholson v. CPC Int’l Inc., 877 F. 2d 221, 241 (CA3 1989) (Becker, J., dissenting). Finally, it should be remembered that arbitration agreements will not preclude the EEOC from bringing actions seeking class-wide and equitable relief. C An additional reason advanced by Gilmer for refusing to enforce arbitration agreements relating to ADEA claims is his contention that there often will be unequal bargaining power between employers and employees. Mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context. Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we nevertheless held in Rodriguez de Quijas and McMahon that agreements to arbitrate in that context are enforceable. See 490 U. S., at 484; 482 U. S., at 230. As discussed above, the FAA’s purpose was to place arbitration agreements on the same footing as other contracts. Thus, arbitration agreements are enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. “Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’” Mitsubishi, 473 U. S., at 627. There is no indication in this case, however, that Gil-mer, an experienced businessman, was coerced or defrauded into agreeing to the arbitration clause in his registration application. As with the claimed procedural inadequacies discussed above, this claim of unequal bargaining power is best left for resolution in specific cases. IV In addition to the arguments discussed above, Gilmer vigorously asserts that our decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and its progeny—Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981), and McDonald v. West Branch, 466 U. S. 284 (1984) — preclude arbitration of employment discrimination claims. Gilmer’s reliance on these cases, however, is misplaced. In Gardner-Denver, the issue was whether a discharged employee whose grievance had been arbitrated pursuant to an arbitration clause in- a collective-bargaining agreement was precluded from subsequently bringing a Title VII action based upon the conduct that was the subject of the grievance. In holding that the employee was not foreclosed from bringing the Title VII claim, we stressed that an employee’s contractual rights under a collective-bargaining agreement are distinct from the employee’s statutory Title VII rights: “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.” 415 U. S., at 49-50. We also noted that a labor arbitrator has authority only to resolve questions of contractual rights. Id., at 53-54. The arbitrator’s “task is to effectuate the intent of the parties” and he or she does not have the “general authority to invoke public laws that conflict with the bargain between the parties.” Id., at 53. By contrast, “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Id., at 54. We further expressed concern that in collective-bargaining arbitration “the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit.” Id., at 58, n. 19. Barrentine and McDonald similarly involved the issue whether arbitration under a collective-bargaining agreement precluded a subsequent statutory claim. In holding that the statutory claims there were not precluded, we noted, as in Gardner-Denver, the difference between contractual rights under a collective-bargaining agreement and individual statutory rights, the potential disparity in interests between a union and an employee, and the limited authority and power of labor arbitrators. There are several important distinctions between the Gardner-Denver line of cases and the case before us. First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” Mitsubishi, 473 U. S., at 625. Therefore, those cases provide no basis for refusing to enforce Gilmer’s agreement to arbitrate his ADEA claim. V We conclude that Gilmer has not met his burden of showing that Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act. Accordingly, the judgment of the Court of Appeals is Affirmed. Compare the decision below with Nicholson v. CPC Int’l Inc., 877 F. 2d 221 (CA3 1989). Section 1 of the FAA provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U. S. C. § 1. Several amici curiae in support of Gilmer argue that that section excludes from the coverage of the FAA all “contracts of employment.” Gilmer, however, did not raise the issue in the courts below; it was not addressed there; and it was not among the questions presented in the petition for certiorari. In any event, it would be inappropriate to address the scope of the § 1 exclusion because the arbitration clause being enforced here is not contained in a contract of employment. The FAA requires that the arbitration clause being enforced be in writing. See 9 U. S. C. §§2, 3. The record before us does not show, and the parties do not contend, that Gilmer’s employment agreement with Interstate contained a written arbitration clause. Rather, the arbitration clause at issue is in Gilmer’s securities registration application, which is a contract with the securities exchanges, not with Interstate. The lower courts addressing the issue uniformly have concluded that the exclusionary clause in § 1 of the FAA is inapplicable to arbitration clauses contained in such registration applications. See, e. g., Dickstein v. DuPont, 443 F. 2d 783 (CA1 1971); Malison v. Prudential-Bache Securities, Inc., 654 F. Supp. 101, 104 (WDNC 1987); Legg, Mason & Co. v. Mackall & Coe, Inc., 351 F. Supp. 1367 (DC 1972); Tonetti v. Shirley, 219 Cal. Rptr. 616, 618, 173 Cal. App. 3d 1144 (1985); see also Stokes v. Merrill Lynch, Pierce, Fenner & Smith, 523 F. 2d 433, 436 (CA6 1975). We implicitly assumed as much in Perry v. Thomas, 482 U. S. 483 (1987), where we held that the FAA required a former employee of a securities firm to arbitrate his statutory wage claim against his former employer, pursuant to an arbitration clause in his registration application. Unlike the dissent, see post, at 38-41, we choose to follow the plain language of the FAA and the weight of authority, and we therefore hold that § l’s exclusionary clause does not apply to Gil-mer’s arbitration agreement. Consequently, we leave for another day the issue raised by amici curiae. In the recently enacted Older Woi’kers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 978. Congress amended the ADEA to provide that “[a]n individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary.” See §201. Congress also specified certain conditions that must be met in order for a waiver to be knowing and voluntary. Ibid. Gilmer also contends that judicial review of arbitration decisions is too limited. We have stated, however, that “although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute” at issue. Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 232 (1987). The Court in Alexander v. Gardner-Denver Co. also expressed the view that arbitration was inferior to the judicial process for resolving statutory claims. 415 U. S., at 57-58. That “mistrust of the arbitral process,” how'ever, has been undermined by our recent arbitration decisions. McMahon, 482 U. S., at 231-232. “[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of ar-bitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626-627 (1985).

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?

Edward L. KIRKLAND and Nathaniel Hayes, each Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES et al., Defendants-Appellants, and Albert M. Ribeiro and Henry L. Coons, Intervenors-Appellants. Nos. 445, 499, Dockets 74-2116, 74-2258. United States Court of Appeals, Second Circuit. Argued April 21, 1975. Decided August 6, 1975. Rehearing En Banc Denied Dec. 10, 1975. Judith A. Gordon, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Stanley L. Kan tor, Asst. Atty. Gen., New York City, of counsel), for defendants-appellants. Richard R. Rowley, Albany, N. Y. (Sneeringer & Rowley, Albany, N. Y., of counsel), for intervenors-appellants. Deborah M. Greenberg, New York City (Jack Greenberg and Morris J. Bailer, New York City, of Counsel), for plaintiffs-appellees. Arnold Forster, New York City (Joy Meyers, and Justin J. Finger, New York City, of counsel), for amicus curiae, Anti-Defamation League of B’nai B’rith. Before HAYS, TIMBERS and VAN GRAAFEILAND, Circuit Judges. VAN GRAAFEILAND, Circuit Judge: On October 14, 1972, the New York State Department of Civil Service offered examination 34-944 for promotion to the position of correction sergeant in the New York State Department of Correctional Services. One thousand, two hundred sixty-three white correctional officers took this examination, and three hundred eighty-nine, or 30.8%, received a passing score. Of the one hundred four Blacks tested, eight, or 7.7% passed; of the sixteen Hispanics, two, or 12.5% passed. Thus was this litigation born. On April 10, 1973, Edward Kirkland and Nathaniel Hayes, two Black officers who failed, joined with the Brotherhood of New York State Correction Officers, Inc., in instituting this civil rights class action on behalf of their similarly situated fellow officers, seeking to enjoin any promotions to sergeant based on the results of the examination. The case was tried before Judge Lasker in July of 1973, and this appeal is taken from his order and decree. Basically, the order provided as follows: 1. It declared examination 34-944 invalid as unconstitutionally discriminatory and enjoined defendants from making any appointments to sergeant based on the results thereof. 2. It mandatorily enjoined defendants to develop a lawful, non-discriminatory selection procedure for the position of sergeant, requiring that it be validated in accordance with the E.E. O.C. Guidelines on Employment Selection Procedures and that all validation studies be performed by means of empirical, criterion-related validation techniques insofar as feasible. It also required that the proposed selection procedure be submitted to the plaintiffs for review and to the court for approval prior to its adoption. 3. It authorized defendants to request the court’s permission for the making of interim appointments, with the provision that members of the plaintiff class receive at least one out of every four such promotions until the combined percentage of Black and Hispanic sergeants was equal to the combined percentage of Black and Hispanic correction officers. 4. It required that, following the development and court approval of revised selection procedures, defendants continue to promote at least one Black or Hispanic employee for each three white employees promoted until the combined percentage of Black and Hispanic sergeants was equal to the combined percentage of Black and Hispanic correction officers. 5. It awarded attorney’s fees to plaintiffs as part of their costs, retaining jurisdiction in the court to determine the amount thereof. Defendants have appealed from this order, contending primarily that examination 34-944 was job-related and therefore not unconstitutionally discriminatory; that the court erred in requiring future examinations be criterion-validated; that the imposition of promotion quotas was unjustified and constituted reverse discrimination; and that the award of attorney’s fees was improper. By order to show cause dated April 23, 1974, Albert M. Ribeiro and Henry L. Coons, correction officers who had taken and passed examination 34-944, sought leave to intervene as parties defendant on behalf of themselves and a class of similarly situated correction officers, alleging that they were indispensable parties, since the relief sought by plaintiffs would deprive them of their personal and property rights without due process of law. This motion was granted, with the proviso that intervenors could not litigate any matters which they might have litigated had they been parties from the outset. Intervention was also limited to the petitioners as individuals and not as representatives of a class. Intervenors also appeal from the final order and decree, urging as additional error that they should have been joined at the outset as indispensable parties. Since this latter contention involves the litigation at its inception, we will address ourselves to it first. DISMISSAL FOR NON-JOINDER Intervenors’ claim of indispensability is grounded upon the provisions of the New York Civil Service Law, Consol. Laws, c. 7. The office of correction sergeant is in the competitive class under such law. Article 5, Section 6, of the New York Constitution requires that appointments and promotions in the Civil Service “shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far ' as practicable, shall be competitive”. The Civil Service Law, following the mandate of the Constitution, requires the taking of competitive examinations and the appointment and promotion to covered positions from eligible lists promulgated from the results of such examinations. Appointment or promotion is generally required to be made from one of the three persons standing highest on the eligible list. When there is no appropriate eligible list available, provisional appointments or promotions are authorized, pending the creation of a new list; and provisional appointees secure certain benefits which may be applied against future permanent appointments. The eligible list from the examination preceding 34-944 became exhausted in the Spring of 1972, and intervenors, together with some members of plaintiff class, received provisional appointments to correction sergeant. Intervenors were among the ninety persons who had passing scores on examination 34 — 944, and it was expected that all ninety would receive permanent appointments as sergeant. Such appointments were prohibited, initially by the District Court’s temporary restraining order and finally by the order and decree appealed from. That the intervenors were adversely affected by such orders can hardly be gainsaid. However, this in itself is not determinative of their right to be joined as indispensable parties. When litigation seeks the vindication of a public right, third persons who may be adversely affected by a decision favorable to the plaintiff do not thereby become indispensable parties. It may be that because of the “reverse discrimination” aspects of this case which will be discussed hereafter, intervention with the right to participate in the trial would have been appropriate if timely request therefor was made. However, that question is not before us. We hold that intervenors’ argument that the complaint should have been dismissed because they were not joined as indispensable parties could not be made for the first time one year after the trial had been completed. At that late date, the test of “equity and good conscience” foreclosed any such rights which intervenors might possibly have had. That intervenors were aware of the litigation at its inception was clearly shown by the fact that the District Court’s preliminary injunction prohibited their appointments. The orderly processes of justice do not permit that, with such knowledge, they may stand idly by until after an adverse decision is rendered. THE CONSTITUTIONALITY OF THE EXAMINATION Proof in employment discrimination cases proceeds from effect to cause. Plaintiffs establish the racially disparate consequences of defendants’ employment practices, and defendants must then justify such consequences on constitutionally acceptable grounds. Plaintiffs herein contend that examination 34-944 had a disproportionate impact upon minority correction officers, and that defendants must therefore establish that the subject matter of the test bore a meaningful relationship to the duties of the office for which the test was given, i. e., that it was “job-related”. The figures relied upon by plaintiffs are recited above; 30.8% of the Whites who took examination 34-944 passed, as contrasted with 7.7% of the Blacks and 12.5% of the Hispanics. Defendants, while not disputing the accuracy of these figures, contend that most of the racial disparity occurred at Ossining Prison which employs the largest group of minority correction officers and urge that any attack upon the examination should be limited to the employees at that institution. Defendants say that either there was no disparity at all at the other correction facilities or else that so few officers were tested at such facilities that no meaningful conclusions could be reached from the test results. This argument completely overlooks the identity of job classifications in the State’s penal institutions, the Statewide scope of examination coverage, and the mobility of employees throughout the correctional system. It also ignores the fact that the examination grades for minorities were uniformly lower at all of the State’s facilities. The District Court’s refusal to fractionalize the examination by varying its application among the correctional facilities was therefore not clearly erroneous. The District Court was likewise not convinced by defendants’ argument that the results of the five sub-tests comprising examination 34-944 did not show a consistent racial disparity, particularly when broken down among the different correctional facilities. Since passing grades and promotion were dependent upon the cumulative results of the five sub-tests, we too see little relevance in this proof on the issue of whether or not the examination as a whole had an unconstitutional discriminatory impact. In Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973), we stated that racially disproportionate impact need not be proven with complete mathematical certainty. Within the broad outlines of that rule, the District Court’s holding that examination 34-944 had such disproportionate impact was not clearly erroneous. Defendants were therefore properly put to their proof to establish the job-relatedness of the examination under attack. The District Judge’s decision that defendants had not met the heavy burden thus imposed upon them was based largely upon his conclusion that the procedures employed in constructing examination 34-944 did not conform to professionally acceptable and legally required standards. Specifically, the District Judge held that the defendants had not performed an adequate job analysis and had too routinely followed the pattern of past practices. This approach was approved by us in Vulcan, supra, where we said that it was unnecessary for the trial judge to bury himself in a question-by-question analysis of the test. Of course, the trial judge could not confine himself to an examination of the process of preparation while completely ignoring the merit of the result. However, since insufficient spadework usually results in a poor garden, evidence of unsatisfactory preparation imposed upon the defendants a heavier burden of demonstrating that they had created a satisfactory job-related examination. The District Judge, without going into great detail, pointed out that certain items on the test involved guidelines that a correction sergeant would have no need to apply. He showed that the five sub-tests and their component parts were not weighted to reflect the relative importance of , the job-related attributes being tested. He considered the expert testimony submitted by both sides and stressed the fact that neither expert would characterize the examination as job-related. We hold that Judge Lasker’s finding that defendants had failed to carry their heavy burden of establishing the job-relatedness of examination 34— 944 was not clearly erroneous, and we move to the question of the relief granted. NEW TESTING PROCEDURES Having declared examination 34-944 unconstitutionally invalid, the District Judge ordered the development of a “lawful non-discriminatory selection procedure”. He also required that such procedure be validated in accordance with the E.E.O.C. Guidelines on Employment Selection Procedures and that such validations be performed by means of empirical criterion-related validation techniques insofar as feasible. In Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), and again in Vulcan, supra, we described the several techniques for proving the validity of testing procedures which are professionally designated “empirical”, “construct” and “content”, and we see no need for further description in this opinion. In Vulcan, we went a step further. We said: “The Fourteenth Amendment no more enacted a particular theory of psychological testing than it did Mr. Herbert Spencer’s Social Statics. Experience teaches that the preferred method of today may be the rejected one of tomorrow. What is required is simply that an examination must be ‘shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.’ ” However, since our decision in Vulcan, the Supreme Court in Albemarle Paper Co. v. Moody, 422 U.S. 205, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), has strongly endorsed the procedures outlined in the E.E.O.C. Guidelines which provide that evidence of content or construct validity may be appropriate “where criterion-related validity is not feasible” While Albemarle is distinguishable from the instant case in that it is a Title VII action involving a private industrial employer, we think the District Court’s similar preference for the E.E.O.C. Guidelines was not clearly erroneous. We do not construe the order of the District Court as going beyond the provisions of the Guidelines by requiring empirical validation regardless of feasibility. It seems clear that the problems involved in civil service testing are substantially different from those which confront a private employer who tests on a limited and non-competitive basis. These problems will, we are sure, be considered by the District Court should a dispute hereafter arise as to whether appellants’ testing procedures have been empirically validated “insofar as feasible”. The District Court ordered that the new test prepared by defendants be submitted to the plaintiffs for review. We find this requirement difficult to comprehend. Presumably, this examination will be taken by members of the plaintiff class in competition with others. Permitting advance review by plaintiffs would place all others at a competitive disadvantage. If the District Judge is seeking professional assistance from plaintiffs’ expert, his order should so provide; and proper steps should be taken to insure confidentiality. THE IMPOSITION OF QUOTAS One of the most controversial areas in our continuing search for equal employment opportunity is the use of judicially imposed employment quotas. The replacement of individual rights and opportunities by a system of statistical classifications based on race is repugnant to the basic concepts of a democratic society. The most ardent supporters of quotas as a weapon in the fight against discrimination have recognized their undemocratic inequities and conceded that their use should be limited. Commentators merely echo the judiciary in their disapproval of the “discrimination inherent in a quota system Our court has approached the use of quotas in a limited and “gingerly” fashion. In United States v. Wood Lathers, Local 46, 471 F.2d 408 (2d Cir.) cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973), we approved an order based upon a consent decree which directed a union to issue a quota of work permits to minority workers. In Bridgeport, supra, we approved the use of hiring quotas for the Bridgeport Police Department. In Vulcan, supra, we affirmed an interim order for quota hiring of New York City firemen “only because no other method was available for affording appropriate relief without impairing essential city services”. 490 F.2d at 398. Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2d. Cir. 1974), imposed a specific racial membership goal upon a union. In Patterson v. Newspaper Deliverers’ Union, 514 F.2d 767 (2d Cir. 1975), we approved a settlement which also involved union membership with an imposed quota system for the union’s group classification system. In each of these cases, there was a clear-cut pattern of long-continued and egregious racial discrimination. In none of them was there a showing of identifiable reverse discriminátion. In the instant case, there is insufficient proof of the former and substantial evidence of the latter. . This is a class action brought on behalf of one hundred seventeen persons who took and failed examination 39-944 or who passed but ranked too low to be appointed. The class was so designated by the District Court which found that the question of whether examination 34-944 discriminated against minority candidates was the question of law common to the class. The existence of such common question of law or fact was, of course, a prerequisite to the maintenance of a class action. At the outset of the trial, the District Judge indicated his desire to decide the case on the basis of 34-944 alone, and it is clear that the trial proceeded substantially on that basis. Some incomplete, and therefore unreliable, data were submitted with regard to the previous examination given in 1970, but plaintiffs concede, as they must, that there are no data in the record with respect to pre1970 tests. There was proof of some present racial imbalance among supervisory correction personnel, but this had little probative value without statistical background data concerning the eligible correction officer labor pool from which minority supervisors could have been drawn. The testimony is undisputed that the duties of a correction sergeant have changed substantially over the years so that no retroactive inference concerning job-relatedness could be made as a result of examination 34-944, which was evaluated in relation to the job as it then existed. Finally, although this is not dispositive of the matter, there is no claim that defendants at any time acted without the utmost good faith or with intention to discriminate. A comparison of respondent’s proof with that considered by then District Judge Mansfield in Chance v. Board of Examiners, 330 F.Supp. 203 (S.D.N.Y. 1971), aff’d, 458 F.2d 1167 (2d Cir. 1972), is illuminating. Judge Mansfield’s opinion shows that he reviewed the pass-fail statistics from fifty supervisory examinations taken by six thousand, two hundred one candidates over a seven-year period to ascertain the relevant racial and ethnic groupings. In the instant case, the litigation centered on one. As District Judge Weinfeld pointed out in the lower court opinion in Vulcan, 360 F.Supp. 1265, 1271 (S.D.N.Y.1973), the consequence of relying upon one examination is “that any finding of discrimination and the relief to be granted will necessarily be restricted to the scope of the proof.” In view of the limited scope of the issues framed in this class action and the paucity of the proof concerning past discrimination, we feel that the imposition of permanent quotas to eradicate the effects of past discriminatory practices is unwarranted. Moreover, once defendants have prepared a court-approved job-related civil service examination, a deliberate misuse of the resultant eligibility list on racial grounds would seem to be violative of both the New York and the Federal Constitutions. Civil service laws, like civil rights laws, were enacted to ameliorate a social evil. In the former case, it was the spoils system; in the latter, discrimination. To the citizens of the State of New York, civil service was sufficiently important that they mandated its use by their constitution. In so doing, they “declared in unmistakeable terms that merit, ascertained as therein provided, shall govern appointments and promotions in the public service”, and that merit must be ascertained as far as practicable by competitive examination. The Congress recognized the social benefits inherent in a system of promotion based upon merit when it provided that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system” As pointed out by the Court in Griggs, supra, Congress did not intend “to guarantee a job to every person regardless of qualifications”. The attack upon the content of civil service examinations, illustrated by Vul can and Bridgeport, merely heralds future confrontations between the advocates of equal employment opportunities and the supporters of our civil service system. In the offing, surely, is an attack upon the provisions of § 61 of the New York Civil Service Law which requires that appointment from an eligible list be made from one of the three persons standing highest on the list. It seems to us that the judiciary should act with great reluctance in undermining traditional civil service concepts; and, if a decision is to be made to subordinate the social purposes of civil service to those of equal employment opportunity, that decision should be made by the people speaking through their legislators. The courts of New York hold that one whose efforts secure for him a position upon a civil service promotion list “is entitled to consideration and protection in such position”. Whether this governmental benefit be termed a right or a privilege is of no significance; constitutional rights do not turn upon such issues. So long as civil service remains the constitutionally mandated route to public employment in the State of New York, no one should be “bumped” from a preferred position on the eligibility list solely because of his race. Unless the Fourteenth Amendment is applicable only to Blacks, this is constitutionally forbidden reverse discrimination. The smaller the group participating in a civil service examination, the more pointed the problem becomes. We can no longer speak in general terms of statistics and class groupings. We must address ourselves to individual rights. A hiring quota deals with the public at large, none of whose members can be identified individually in advance. A quota placed upon a small number of readily identifiable candidates for promotion is an entirely different matter. Both these men and the court know in advance that regardless of their qualifications and standing in a competitive examination, some of them may be bypassed for advancement solely because they are white. As to such a situation, the following comments of Judge Mulligan in Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, supra, are most pertinent: “We are discussing some 117 positions with time-in-grade requirements mandating three years’ service as patrolman, sergeant and lieutenant postponing promotion to captain for a minimum of nine years. While this factor will delay those of the minority groups who will become patrolmen, the imposition of quotas will obviously discriminate against those Whites who have embarked upon a police career with the expectation of advancement only to be now thwarted because of their color alone. The impact of the quota upon these men would be harsh and can only exacerbate rather than diminish racial attitudes.” We turn now to the remedial relief ordered by the District Court, which is both interim and final in nature. As interim relief, the court ordered that if defendants wished to make any appointments pending the development of a new selection procedure, they might apply to the court for permission to do so. The court directed that at least one out of four of the persons so promoted must be members of the plaintiff class. Since this portion of the decree is interim in nature, does not mandate the making of any promotions, does not disregard an existing civil service eligibility list, and since its benefits are limited to the members of the plaintiff class, we affirm it as not being an abuse of the District Court’s discretion. Insofar as the order appealed from imposes permanent quota restrictions upon those who seek advancement by means of a court-approved job-related civil service examination, we reverse. The benefits of such order are not limited to the plaintiff class. Its quota requirements are based upon a shifting and rapidly expanding racial base, wholly unrelated to the consequences of any alleged past discrimination. It provides for appointment according to race without regard to the individual applicant’s standing on a job-related examination and, indeed, without regard to whether the benefitted Black or Hispanic received a passing grade. It completely ignores the statutory requirements and constitutional purpose of the New York Civil Service Law and constitutes court-imposed reverse discrimination without any exceptional or compelling governmental purpose. PROVISIONAL APPOINTMENTS At the outset of the litigation, the District Court issued a temporary restraining order prohibiting defendants from terminating provisional appointments which had been made to members of the plaintiff class. The terms of this order were carried over into Judge Lasker’s opinion but were amended to state that such appointments might not be terminated solely because of plaintiffs’ failure to pass examination 34-944. However, they were not incorporated into the final order and decree, and we cannot be sure that the District Court intended them to survive. Appellants argue convincingly that under § 65 of the New York Civil Service Law provisional appointments are made only when there is no appropriate eligible list available for filling a vacancy and that therefore the making of such appointments bears no relationship to the constitutionality of examination 34-944. Appellants also argue that such order was discriminatory in that it applied only to minorities who failed the examination. We need not reach any of the foregoing questions, however, since, as we read § 65, provisional appointments are made only for periods of up to nine months and then terminate automatically unless a new provisional appointment is made. We do not read Judge Lasker’s opinion as prohibiting termination for any reason unrelated to the failure to pass the examination or requiring the making of a new appointment at the end of the nine month provisional period. ATTORNEY’S FEES The District Court’s award of attorney’s fees cannot stand. In Stolberg v. Board of Trustees, 474 F.2d 485 (2d Cir. 1973), we laid down the test of “unreasonable, obdurate obstinancy” on the part of the defendant as the determining factor in the award of counsel fees. There is no claim of any such attitude on the part of defendants-appellants. Accordingly, we would have been reluctant to approve the awarding of counsel fees herein. In any event the matter has now been decided for us by the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). DISPOSITION 1. We deny intervenors’ application to dismiss the complaint. 2. We affirm the District Court’s order insofar as it invalidates examination 34-944 and directs the preparation of a new non-discriminatory examination procedure. 3. We affirm so much of the District Court’s order as requires the new testing procedures to be validated by means of empirical criterion-related validation techniques if feasible. 4. We reverse so much of the District Court’s order as requires the new testing procedure to be submitted to plaintiffs for review. 5. We affirm that part of the District Court’s order which provides a procedure for interim appointments if desired by defendant. 6. We reverse so much of the District Court’s order as provides for promotion by quota following the establishment of new civil service testing procedures. 7. We reverse that part of the District Court’s order which includes counsel fees as part of plaintiff’s costs. 8. We remand to the District Court for such further orders as are required by and consistent with this opinion. . Although the coverage of Title VII was enlarged in 1972 by the amendment of 42 U.S. C.A. § 2000e(a) to include governments, governmental agencies and political subdivisions, this action was brought under 42 U.S.C. §§ 1981, 1983. . Equal Employment Opportunity Commission. . N.Y. Civil Service Law § 44 (McKinney 1972). . N.Y. Civil Service Law §§ 52, 61 (McKinney 1972). . N.Y. Civil Service Law § 61 (McKinney 1972). . N.Y. Civil Service Law § 65 (McKinney 1972). . N.Y. Civil Service Law § 52 (McKinney 1972). . Castro v. Beecher, 459 F.2d 725, 736 (1st Cir. 1972). . National Licorice Co. v. NLRB, 309 U.S. 350, 366, 60 S.Ct. 569, 84 L.Ed. 799 (1940); National Resources Defense Council, Inc. v. Tennessee Valley Authority, 340 F.Supp. 400 (S.D.N.Y.1971), rev’d on other grounds, 459 F.2d 255 (2d Cir. 1972); Sansom Committee v. Lynn, 366 F.Supp. 1271 (E.D.Pa.1973). . See, e. g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973). . Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). . Rios v. Steamfitters Local 638, 520 F.2d 352 (2d Cir. 1975). . Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). . Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973); Vulcan Society of the New York City Fire Dep’t, Inc. v. Civil Service Comm’n, 409 F.2d 387 (2d Cir. 1973). . Vulcan Society of the New York City Fire Dep’t, Inc. v. Civil Service Comm’n, 360 F.Supp. 1265, 1272 (S.D.N.Y.1973), aff'd, 490 F.2d 387 (2d Cir. 1973). See note 13, supra. . 29 C.F.R. §§ 1607.1 et seq. (1970). . 29 C.F.R. § 1607.5(a) (1970). . Cf. Douglas v. Hampton, 168 U.S.App.D.C. 62, 512 F.2d 976 (1975). . Cf. Matter of Fitzgerald v. Conway, 275 App.Div. 205, 88 N.Y.S.2d 649 (3d Dep’t 1949); Matter of Belmont v. Kaplan, 16 A.D.2d 605, 229 N.Y.S.2d 888 aff’d 13 N.Y.2d 998, 245 N.Y.S.2d 390, 195 N.E.2d 57 (1963) (mem). . Note, Constitutionality of Remedial Minority Preferences in Employment, 56 Minn.L.Rev. 842 (1972). See, e. g.. Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974), cert. denied 417 U.S. 965, 94 S.Ct. 3169, 41 L.Ed.2d 1137 (1974). . Blumrosen, Quotas, Common Sense, and Law in Labor Relations: Three Dimensions of Equal Opportunity, 27 Rutgers L.Rev. 675 (1974). . Hughes v. Superior Court, 339 U.S. 460, 467, 70 S.Ct. 718, 94 L.Ed. 985 (1950); see also dissenting opinion of Mr. Justice Douglas in De Funis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), dissenting opinion of Judge Hays in Rios v. Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974), and concurring opinion of Judge Feinberg in Patterson v. Newspaper Deliverers’ Union, 514 F.2d 767 (2d Cir. 1975). . Fed.R.Civ.Pro. 23(a). . See Chance v. Board of Examiners, 458 F.2d 1167, 1179 (2d Cir. 1972). . N.Y.Const. art. V, § 6 (1965).’ . Palmer v. Board of Education, 276 N.Y. 222, 226, 11 N.E.2d 887, 888 (1937). . Matter of Fink v. Finegan, 270 N.Y. 356, 361, 1 N.E.2d 462 (1936). . 42 U.S.C. § 2000e-2(h). . 401 U.S. 424, at 430, 91 S.Ct. 849, at 853, 28 L.Ed.2d 158 (1971). . Barlow v. Craig, 210 App.Div. 716, 719, 206 N.Y.S. 293, 295 (1st Dept. 1924); Barlow v. Berry, 245 N.Y. 500, 503, 157 N.E. 834 (1927). . Sugarman v. Dougall, 413 U.S. 634, 644, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973). . Note Judge Feinberg’s concern about “bumping” expressed in United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971). . “The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color.” Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 209, 65 S.Ct. 226, 235, 89 L.Ed. 173 (1944) (concurring opinion of Mr. Justice Murphy); Commonwealth v. Glickman, 370 F.Supp. 724, 736 (W.D.Pa.1974). . 482 F.2d at 1341. . See Matter of Board of Education v. Nyquist, 31 N.Y.2d 468, 475, 341 N.Y.S.2d 441, 293 N.E.2d 819 (1973). . See also, Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 497 F.2d 1112 (2d Cir. 1974). . Although an attorney may find lesser professional challenge in a Title VII proceeding than in an action under §§ 1981 and 1983, there are a number of reasons why the former procedure is preferable. The possibility of an award for attorney’s fees is now one of them.

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

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

UNITED STATES of America, Appellant, v. Eugene FRANKEL, Appellee. No. 83-1161. United States Court of Appeals, Third Circuit. Argued Sept. 14, 1983. Decided Nov. 22, 1983. Peter F. Vaira, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Robert E. Welsh, Jr. (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellant. Richard A. Sprague, William R. Herman (argued), Sprague & Rubenstone, Philadelphia, Pa., for appellee. Before WEIS, HIGGINBOTHAM, and SLOVITER, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. The district court concluded that an indictment charging mail fraud in a check kiting operation was faulty because it relied on an implied representation in the presentation of an N.S.F. check. We affirm in the circumstances here, but caution that the mail fraud statute may be violated even in the absence of active misrepresentations. Defendant Eugene Frankel was charged with nine counts of mail fraud and one count of wire fraud for operating a check kiting scheme. The district court dismissed the indictment on the ground that presentation of a check not secured by adequate funds does not constitute a misrepresentation. The dismissal was without prejudice to the government’s right to obtain a superseding indictment. Paragraph 6 of the indictment charges that defendant devised a scheme to defraud two banks of “money and interest on the use of money by means of false and fraudulent pretenses, representations and promises.” Defendant was the president of Linens Unlimited which had corporate checking accounts at the Continental Bank in Fort Washington, Pennsylvania, and the Commerce Bank of New Jersey in Marlton, New Jersey. He also maintained a personal account at the New Jersey bank under the name of “Gene F. Estates.” Subsequent paragraphs of the indictment alleged that defendant wrote checks on the Linens and the Estates accounts in the New Jersey bank when neither contained sufficient funds to cover the checks. The checks were deposited in the Continental Bank in Pennsylvania creating an artificial balance against which additional checks were then drawn to pay Linens’ creditors. As part of the alleged scheme, defendant made telephone calls to the New Jersey bank to determine the balance in his accounts and to ask that bank employees delay returning the N.S.F. checks to the Continental Bank in Pennsylvania. Meanwhile, N.S.F. checks were written on Continental Bank and deposited in the New Jersey bank to inflate the account balances and cause the N.S.F. checks to be paid by the New Jersey bank. The mail fraud statute was invoked because defendant caused the N.S.F. checks to be mailed, and the wire fraud statute was triggered by his use of the telephone to delay return of the checks. At a hearing on a motion for a bill of particulars, defense counsel requested that the government identify the false pretenses referred to in the indictment. The government responded that the “false and fraudulent pretenses, representations and promises” listed in the indictment were: 1. The deposit of checks in the bank when the defendant knew that at the time of processing for payment there would be “insufficient funds to support the checks, thus constituting a false pretense that the checks were and would be supported by sufficient funds.” 2. The use of various means to delay processing of the checks for payment by causing the New Jersey bank employees to violate the bank’s policies and by improperly endorsing the checks to prevent expeditious processing. These tactics were alleged as constituting a breach of defendant’s duty, as well as his implicit representation as an account holder, “not to manipulate the banking channels.” The district court concluded that the government had chosen to charge a “scheme or artifice” under the mail fraud statute, 18 U.S.C. § 1341 (1976), “to be accomplished by false and fraudulent pretenses, representations, and promises.” The district judge observed that in United States v. Pearlstein, 576 F.2d 531 (3d Cir.1978), this court apparently viewed a fraudulent representation as an integral part of a section 1341 unlawful scheme. Since the checks, under the rationale of Williams v. United States, 458 U.S. 279, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982), could not constitute the misrepresentations Pearlstein apparently required, the district court felt compelled to dismiss the indictment. The district judge concluded his opinion by saying, “This of course is not to say that an indictment under section 1341 can never be returned in a check kiting scheme of some sort.” The mail fraud statute proscribes a broad range of activity, Durland v. United States, 161 U.S. 306, 313, 16 S.Ct. 508, 511, 40 L.Ed. 709 (1896), and permits federal prosecution when the mails are used to further the purpose of the activity, United States v. Maze, 414 U.S. 395, 405, 94 S.Ct. 645, 651, 38 L.Ed.2d 603 (1974). In pertinent part, the statute reads: “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 ... [and] for the purpose of executing such scheme ... places in any post office ... any matter ... to be sent or delivered by the Postal Service ... shall be fined ... or imprisoned ... or both.” 18 U.S.C. § 1341 (1976). As the district court determined and the government recognizes, the indictment in this case is based on allegations of obtaining money or property — here interest free loans — by means of false or fraudulent pretenses. The purported representations are the existence of adequate funds in the accounts to cover each check written. But, defendant did not explicitly make the representations; rather, they are alleged to be implicit in the presentation of the checks. In Williams v. United States, the Supreme Court rejected the notion that a false statement is made by presenting for deposit a check not backed by sufficient funds. The Court said that “technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as ‘true or false.’ ” 458 U.S. at 284, 102 S.Ct. at 3092. It follows, therefore, that the indictment here has not set forth statements constituting misrepresentations. In the district court the government also identified the defendant’s telephone statements as false representations intended to induce bank employees to delay transmission of the checks. This activity allegedly breached his duty to not manipulate banking channels. The prosecution repeats that argument on appeal and contends that a scheme to defraud using the defendant’s tactics comes within the meaning of “pretenses, representations, and promises.” The government cites no authority for its proposition that manipulation of the banking channels is per se a criminal offense. Moreover, the indictment does not describe how the defendant’s statements are false or fraudulent representations. Although this portion of the prosecution’s case was not discussed in the bench opinion, the court obviously placed the challenged activity in the same category as presentation of the checks. We find no error in the dismissal of the indictment as drawn, because it relies on a misrepresentation theory unsupported by the allegations. Although Williams involved prosecution under a different statute, the Supreme Court’s holding — that the presentation of a check is not a representation or statement of any kind — is fatal to the government’s theory here. Williams is the obvious hurdle that the government is unable to overcome, but dictum in our earlier case of United States v. Pearlstein, 576 F.2d 531 (3d Cir.1978), underlies the prosecution’s difficulty. The government’s and the district court’s reading of that case forced the prosecution into a position it probably would not have taken otherwise. Pearlstein involved a fraudulent scheme to sell distributorships for a direct-mail-marketing firm. The evidence demonstrated the defendant’s deliberate use of false and misleading statements, aliases, fictitious names, forged signatures, fabricated excuses and “lulling” letters. On that record, this court found ample evidence of a fraudulent scheme. Observing that the statutory “scheme to defraud ... is not defined according to any technical standards,” we said that “[t]he scheme need not be fraudulent on its face ... but must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.” 576 F.2d at 535. The district court recognized the misrepresentation requirement as dictum but felt obligated to follow it, particularly since the prosecution had cast the indictment in terms designed to track the Pearlstein language. Pearlstein, however, should not be read so narrowly. In that case, the record established a scheme to defraud by means of false representations. No need arose to distinguish situations where the fraudulent scheme might be implemented by means other than a misrepresentation. The basic question presented here, which was not at issue in Pearlstein, is whether the statute should be read so that “by means of false or fraudulent pretenses, representations or promises” — the wording following “obtaining money by false pretenses” — also limits the “scheme or artifice to defraud” language set out in the first clause. Specifically, the question is whether a fraudulent scheme executed without a misrepresentation is within the scope of the statute. As originally enacted, the mail fraud statute did not contain the reference to “obtaining money ... by ... fraudulent pretenses ...” and spoke only to schemes or artifices to defraud. The second clause referring to obtaining money by false pretenses was added in 1909 as a result of the Supreme Court holding in Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896). There, the Court rejected the validity of a defense to the crime of obtaining money by false pretenses charged under the statute, because defendant had only made a false promise, not a misrepresentation of an existing fact. The defense available at common law, therefore, cannot be asserted as a defense to mail fraud, and thus the 1909 change expands the reach of the statute. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548 (1914). Although the added clause was intended to identify and proscribe a particular course of conduct, it does not follow that the first and more general clause was restricted by the amendment. Various courts of appeals have stated that the “scheme to defraud” and the “for obtaining money” clauses are to be read separately. See United States v. Scott, 701 F.2d 1340, 1343-44 (11th Cir.1983); United States v. Margiotta, 688 F.2d 108, 121 (2d Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Halbert, 640 F.2d 1000, 1007 (9th Cir.1981); United States v. States, 488 F.2d 761, 764 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). In Halbert, the court gave the statute a disjunctive reading, and held that “[a] defendant’s activities can be a scheme or artifice to defraud whether or not any specific misrepresentations are involved.” 640 F.2d at 1007. See also United States v. Townley, 665 F.2d 579, 585 (5th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); United States v. Bruce, 488 F.2d 1224, 1229 (5th Cir.1973), cert. denied, 419 U.S. 825, 95 S.Ct. 41, 42 L.Ed.2d 48 (1974); Silverman v. United States, 213 F.2d 405, 407 (5th Cir.1954); Fournier v. United States, 58 F.2d 3, 5 (7th Cir.1932). Older cases in this court are in agreement. In United States v. Kram, 247 F.2d 830 (3d Cir.1957), Judge Biggs noted that “[a] mail fraud indictment may or may not allege that the solicitation was so drawn as to be intentionally misleading. If the latter, it is sufficient if an intent to defraud is found by the jury to exist .. . even though the material itself in the opinion of the jury is completely ineffective to deceive anyone.” Id. at 832 (emphasis in original). In Kaufmann v. United States, 282 F. 776 (3d Cir.), cert. denied, 260 U.S. 735, 43 S.Ct. 96, 67 L.Ed. 488 (1922), this court stated, “If a scheme is devised with the intention of defrauding, and the mails are used in executing it, it makes no difference that there is not a misrepresentation of a single existing fact.” Id. at 779. More recently, in United States v. Boffa, 688 F.2d 919 (3d Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983), we joined those courts of appeals that have not confined the mail fraud statute to schemes aimed at deprivation of money or property. We recognized that “a scheme to deprive persons of intangible rights or interests may be within the ambit of 18 U.S.C. § 1341.” 688 F.2d at 926. More specifically, we held that a scheme to deprive employees of the loyal, faithful, and honest services of their union officials comes within the scope of the scheme or artifice clause of the statute. Id. at 931. Similarly, a plan to deprive an individual of the economic benefits contained in a collective bargaining agreement was found to be within the scope of the statute. Id. at 930. The misrepresentation factor was not an issue in the Boffa opinion. However, the courts that have accepted the notion that a deprivation of intangible rights is within the statute, recognize that an active misrepresentation is not necessary. Instead, the prosecution need prove only a recognizable scheme formed with intent to defraud regardless of how that intent manifests itself in execution. United States v. Bohonus, 628 F.2d 1167, 1172 (9th Cir.1980). For example, a public official engaged in bribery by mail need not actively make any misrepresentations in order to violate section 1341. See, e.g., United States v. Isaacs, 493 F.2d 1124, 1149-1151 (7th Cir.1974). Although Boffa did not discuss the disjunctive reading of the statute, that decision is not inconsistent with our position here and indeed tends to be in agreement. In sum, the opinions of this court lend support to the proposition that “scheme or artifice to defraud” is to be read independently of “obtaining money by false pretenses.” The government’s reading of the Pearlstein dictum, while understandable, is nonetheless erroneous. Schemes to defraud come within the scope of the statute even absent a false representation. We do not wish to be understood as endorsing an overly expansive theory of the breadth of section 1341. The statute does not encompass every suspect scheme. As Chief Judge Seitz cautioned in Boffa, “We do not believe that mail fraud prosecutions based on this theory are boundless, however, and we may not extend the reach of 18 U.S.C. § 1341.” 688 F.2d at 926. Accordingly, at this juncture, we say no more than that a scheme need not include false representations to violate the scheme or artifice clause of section 1341. Our explanation of Pearlstein and disjunctive reading of section 1341 do not require that we reverse the district court’s order. The indictment charges defendant with misrepresentations and therefore we must assume that the grand jury based its allegations on that premise. Since the government chose to rely on misrepresentations, it must prove them. United States v. Kram, 247 F.2d 830, 832-33 (3d Cir.1957). Williams prevents successful proof here, and thus the indictment was properly dismissed. Whether the prosecution can secure a valid superseding indictment on a different theory, we do not decide. Although our discussion has addressed only the mail fraud statute, the same principles apply to the wire fraud violation. See United States v. Tarnopol, 561 F.2d 466, 475 (3d Cir.1977). The order of the district court will be affirmed. SLOVITER, Circuit Judge, concurring. I agree with the judgment of the majority to affirm the dismissal of the indictment as drawn because it has not set forth statements constituting misrepresentation, and join in that portion of the majority’s opinion which supports that holding. I also do not object to the suggestion in the majority’s opinion that the government may have read our earlier opinion in United States v. Pearlstein, 576 F.2d 531 (3d Cir.1978), too narrowly if the government assumes that every mail fraud indictment must be based on an active misrepresentation of an existing fact. I write separately because the majority’s opinion extends further than necessary to decide the case before us and because the rule of law it seeks to propound, that “[sjchemes to defraud come within the statute even absent a false representation”, majority op. at 921, has been neither briefed nor argued by the parties. I am sympathetic to the majority’s apparent wish to redress what it believes was the mischief of the dictum in Pearlstein. But in fighting dictum with what is at most other dictum, the majority raises more questions than it answers. The language of the mail fraud statute, 18 U.S.C. § 1341, makes criminal the devising of “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” Although it is evident that the first two clauses of § 1341 must be read in the disjunctive, it is not clear from the statutory language whether a scheme or artifice “to defraud” within the statutory meaning must be based on a misrepresentation either because that language is modified by the clause “by means of false or fraudulent pretenses, representations or promises” or because the term “defraud” in itself incorporates some element of deceit. The language of Pearlstein posited merely that § 1341 requires “some sort of misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.” 576 F.2d at 535 (emphasis added). Although we have cited Pearlstein for the proposition that the statute prohibits “all schemes to defraud by any means of misrepresentation that in some way involve the use of the postal system,” see United States v. Boffa, 688 F.2d 919, 925 (3d Cir.1982), we were not there focusing on the nature of the misrepresentation. In fact, Pearlstein left open a considerably broader view of the statute as encompassing, as noted above, “omissions reasonably calculated to deceive” as well as “misrepresentations.” It is true that the earlier cases of this court cited by the majority suggest that a scheme to defraud does not require an affirmative misrepresentation, but the holdings in those cases are not inconsistent with this language in Pearlstein. The majority seems to suggest that the statutory language “schemes to defraud” does not require any misrepresentation — • whether affirmative or by omission. Not all the cases the majority relies on accept this broad construction. For example, in United States v. Halbert, which the majority quotes at page 920 for the proposition that no specific misrepresentation need be proven, the court also stated, in apparent contradiction, “Even if the Government had not established one or more of the six acts of misrepresentation involved in this case, sufficient proof of even one of the acts would have been enough to support Hal-bert’s conviction for mail fraud.” 640 F.2d 1000, 1008 (9th Cir.1981) (emphasis added). The majority apparently is motivated by a desire to signal the district courts and the government that it will be receptive to a broader reading of the mail fraud statute than the government employed in this case. However, its failure to limit or define “schemes to defraud” may leave open the construction that even a deceitful omission is not required. This court may ultimately adopt such a broad construction of the statute. But that should be only after plenary consideration in an adversary context. . But see, Comment, “The Intangible-Rights Doctrine and Political-Corruption Prosecutions Under the Federal Mail Fraud Statute,” 47 U.CHI.L.REV. 562 (1980), arguing that the intangible rights theory was not intended by Congress and that it is inconsistent with the “for obtaining money by false or fraudulent pretenses” clause. We note, however, that to the extent that Durland eliminates a common law defense, the amendment expands, rather than contracts the scope of the statute as the Comment argues. . For contrasting views on the interpretation of the mail fraud statute, compare Hurson “Limiting the Federal Mail Fraud Statute — A Legislative Approach”, 20 AM.CRIM.L.REV. 423 (1982), with Rakoff, “The Federal Mail Fraud Statute”, 18 DUQ.L.REV. 771 (1980).

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?

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. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be 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?

UNITED STATES of America, Appellee, v. Lawrence A. KLEIN, Defendant-Appellant. No. 75-1105. United States Court of Appeals, First Circuit. July 28, 1975. Martin G. Weinberg, Boston, Mass., with whom Jeffrey J. Binder and Crane, Inker & Oteri, Boston, Mass., were on brief, for appellant. Lawrence P. Cohen, Asst. U. S. Atty., Deputy Chief, Crim. Div., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. LEVIN H. CAMPBELL, Circuit Judge. Lawrence A. Klein appeals from a judgment of conviction entered by the District Court for the District of Massachusetts. Klein and a codefendant, Allison Bernier, were indicted for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2, and for conspiracy to so distribute in violation of 21 U.S.C. § 846. Bernier entered a plea of guilty to both counts. Klein waived his right to a jury trial and was tried by the court on both. The district court heard all the evidence offered by the Government, reserving decision on Klein’s motion to suppress the fruits of a search by federal agents, his motion to strike alleged hearsay declarations of Bernier, and his motion for a judgment of acquittal. Several months after the trial, the district court denied the motion to suppress and the motion to strike and found Klein guilty as charged. The court recited findings of fact in support of its decision, see Fed.R.Crim.P. 23(c), which we excerpt here. “Now with respect to the facts in this case, I find that on or about 9:30 a. m. on April 12, 1974, Special Agent Harry Barton received a telephone call from Miss Bernier. Miss Bernier told Agent Barton that she and a friend had four ounces of cocaine which they wanted to sell for $1400 per ounce. Agent Barton told Miss Bernier to call back in an hour, and at approximately 10:30 a. m. Miss Bernier called and arrangements were made for her to meet him at Kenmore Square at around 1 p. m. At approximately 1 p. m. Agent Barton did arrive at Kenmore Square. He parked on Deerfield Street, and shortly thereafter Miss Bernier arrived in an MG and beeped her horn. Agent Barton entered Miss Bernier’s vehicle, and they drove around the corner to Deerfield Street. After the car was parked, Miss Bernier told Agent Barton that she only had one ounce of cocaine with her and that the rest of the cocaine was with a friend of hers who was only a few minutes away. Miss Bernier gave Mr. Barton a sample of the ounce which she claimed to have. He field tested this ounce, and the field test indicated that the sample given him contained cocaine. Agent Barton returned to Miss Bernier’s vehicle and paid her $1400 in official government funds. Miss Bernier handed Agent Barton one ounce of cocaine. The serial numbers of the fourteen $100 bills given to Miss Bernier had previously been recorded by Agent Barton. The one-ounce package of cocaine which Miss Bernier handed to Agent Barton was removed by her from her pocketbook. During the process Agent Barton looked into Miss Bernier’s pocketbook and did not observe any other cocaine, nor did he observe any other cocaine in the vehicle. Miss Bernier then stated that she would go see her friend who was just up the street and that she would return in approximately ten minutes. After saying this, Miss Bernier drove away from Agent Barton; and after she had done so, Agent Barton advised surveillance agents in the area that Miss Bernier was moving to meet someone to pick up the rest of the cocaine. As Miss Bernier drove away from Agent Barton, she was followed by Agents Doyle and Staffieri. Upon arriving on Bay State Road, Miss Bernier got out of her vehicle and entered a Jaguar driven by the defendant, Mr. Klein. After remaining in the Jaguar for about five minutes, Miss Bernier got out of that car and reentered her own car and then drove away. She shortly thereafter returned back to where she had left Agent Barton, and again Agent Barton entered her vehicle. When he had done so, he asked her if she had picked up the rest of the cocaine, and Miss Bernier responded that she had and while so responding removed from her pocketbook a plastic bag containing three ounces of cocaine. Agent Barton then left her vehicle on the pretext of obtaining some money; and after he had done so, other agents appeared on the scene and placed her under arrest. Shortly after this had happened, Mr. Klein was approaching the area on foot. He came into the view of Miss Bernier and the agents that accompanied her. In response to a question by Agent Sampson, Miss Bernier pointed at the defendant Klein who was walking down the street in her immediate vicinity and identified Mr. Klein as her “source.” Following this identification by Miss Bernier, Klein was immediately placed under arrest. After his arrest, Mr. Klein was taken to the John F. Kennedy Federal Building, where he was ordered by Agent Doyle to strip. He was under arrest at this time. Mr. Klein, in response to Doyle’s order, took off his jacket and shirt. Then he opened up his pants and handed Agent Doyle $1400 in one hundred dollar bills from his underwear. Agent Doyle took the fourteen bills and gave them to Agent Barton, who compared their serial numbers with the list of serial numbers taken from the bills he had earlier removed from the vault, in other words, the official government currency, and the numbers on the bills and the numbers on the list kept by the agent matched exactly. After having handed over the $1400, Klein continued to strip. After he had done so, he was ordered to bend over, and he was examined visually by Agent Doyle, including a visual examination of his rectum.” Our review of the transcript convinces us that these findings are adequately supported by the evidence offered at the trial. We therefore pass onto Klein’s contentions that his motions to suppress and to strike should have been granted. I Klein argues, in support of his motion to suppress, that his arrest was without probable cause and therefore illegal. It follows, he contends, that the $1400 should have been suppressed as the fruit of an illegal search. We think the district court was correct in concluding that there was probable cause to arrest. Probable cause exists where the facts and circumstances in the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed. See Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Mark Polus, 516 F.2d 1290 (1st Cir. 1975). Here the agents had information which would lead them to conclude that Bernier was working with an accomplice who had been waiting in another vehicle close by and had held the bulk of the cocaine for the sale. They then received from Bernier information that Klein was that accomplice. This was sufficient to justify their arrest of Klein. Klein’s alternate argument on the motion to suppress concerns the validity of the search of his person at the Kennedy Building. Citing the fourth and ninth amendments to the Constitution, Klein contends that even if his arrest was legal, the strip search was unreasonable. As the agents had probable cause to arrest Klein, both his person and the property in his immediate possession were subject to search after his arrest. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States v. DeLeo, 422 F.2d 487 (1st Cir.) cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); see, e. g., Mark Polus, supra. United States v. Eatherton, 519 F.2d 603 (1st Cir. 1975). And the search could be conducted at the time of arrest, or where he may later be taken. As we said in DeLeo, “the fact that a suspect, arrested in a public place, has been subjected only to a hasty search for obvious weapons has a reasonable nexus with the necessity of conducting a more deliberate search for weapons or evidence just as soon as he is in a place where such a search can be performed with thoroughness and without public embarrassment to him.” Id. at 493. Against this, Klein argues that the search to which he was subjected was illegal because “shocking” and too intrusive. The Government counters that since the $1400 was handed over voluntarily, the further enforced stripping and peering at his body, including at his rectum, afford no reason to suppress the $1400. We do not decide the Government’s argument, because we find no basis for agreeing with Klein that the brief strip search of his person, conducted without abuse and in a professional manner, was unconstitutional. A post-arrest search of the person, plainly authorized by Edwards and DeLeo, may include requiring a suspect to remove his clothes and a visual inspection of his person. Cf. United States v. Caruso, 358 F.2d 184 (2d Cir.) cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966). That is all that happened here. If such procedures were not permissible it would often be difficult to conduct a thorough search for weapons and contraband. The facts are not akin to the taking of blood considered in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). There the Court, while permitting the enforced taking of a blood sample, limited “searches involving intrusions beyond the body’s surface” to cases where authorities possess “a clear indication that in fact evidence will be found,” id. at 770, 86 S.Ct. at 1835. But the present facts do not require us to consider the extent to which compulsory medical . procedures may be imposed upon persons lawfully arrested. There was no piercing or probing of Klein’s skin, nor forced entry beyond the surface of his body. There was not even any touching of his body. Thus, his only claim is based upon the indignity of being forced to strip in front of the agents and to expose his private parts. But there is no evidence that the stripping was a pretext to humiliate or degrade him, and the modesty of one lawfully arrested must give way to reasonable precautionary procedures designed to detect hidden evidence, drugs, or objects which might be used against others or to cause self-inflicted harm. Rules limiting strip searches during border inspections are entirely inapposite, since border searches are permitted upon mere suspicion. See, e. g., United States v. Arias Flores, 477 F.2d 608, 609 (1st Cir.), cert. denied, 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1973); United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970). We find nothing unreasonable in the circumstances of the instant search. And as the search was lawful, there was no illegality in the seizure of the bills. II The agents’ testimony reciting declarations of Bernier was admitted by the district court under the coconspirator exception to the hearsay rule. Appellant advances three challenges to the court’s consideration of these declarations: that there was no independent evidence establishing the existence of a conspiracy, cf. United States v. Oliva, 497 F.2d 130, 132-34 (5th Cir. 1974), that the statements were not made during the course of and in furtherance of any conspiracy, and that the coconspirator exception as here applied violates the confrontation clause of the sixth amendment. We reject all three arguments. Disregarding the declarations of Bernier, there was evidence that when she arrived at Kenmore Square she had only one ounce of cocaine with her and that when she returned from meeting Klein in a vehicle a few blocks away she had three more ounces. Further there was the $1400 which had been given to Bernier before she left and was discovered concealed in Klein’s underwear shortly after they had met. This evidence was credible and supported a finding of concerted action sufficiently to permit consideration of Bernier’s declarations under the coconspirator exception to the hearsay rule. We see no merit to appellant’s contention that Bernier’s statements were not in furtherance of the conspiracy. All were directly related to the sale of the four ounces of cocaine, and some were indeed a part of that sale. Klein also appears to argue that the statements of Bernier over the phone the morning before the sale should not have been introduced against him because there was no evidence to indicate that he was part of any conspiracy at that time. As he presents it, this is not properly a question of whether these statements were within the conspiracy to distribute cocaine. It seems more an objection to whether all the evidence supported the court’s verdict that Klein had been a part of that conspiracy, discussed infra. Insofar as Klein’s confrontation clause argument is a challenge to the constitutionality of the federal coconspirator exception to the hearsay rule, we rejected the claim in United States v. Clayton, 450 F.2d 16 (1st Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972); and we see no reason to alter our holding on the issue. Cf. Woodcock v. Amaral, 511 F.2d 985, 995 (1st Cir. 1974). Appellant urges that the special facts of illegal drug trafficking remove from Bernier’s statements those “indicia of reliability” which the confrontation clause requires. See McLaughlin v. Vinzant, 522 F.2d 448 (1st Cir. 1975). Agent Barton did testify on cross-examination that some drug sellers might so fear being robbed by putative purchasers that they would concoct stories of nonexistent accomplices in the hope of deterring such acts. But that information was presented to the trier of fact and in view of Klein’s actual participation in some overt acts with Bernier could legitimately have been discounted. In his brief appellant points out that, “The trial offered no opportunity to cross-examine Bernier to learn whether or not she created the false impression of a knowing friend from whom she would obtain the second allotment of cocaine out of the reality of an innocent friend who later received the money absent any actual knowledge of its source.” While this may be true, we think that it, like the argument regarding the temporal extent of the conspiracy, goes to the merits of the court’s guilty verdict rather than to the admissibility of Bernier’s statements. We disagree with appellant’s contention that there was any indication that Bernier possessed “a strong motive to falsify” her statements, and hold that they were properly admitted for the court’s consideration. Ill We come finally to appellant’s contention that his motion for judgment of acquittal should have been granted. Klein argues that even considering Bernier’s statements, the evidence was insufficient to establish that he had been anything other than an accessory after the fact in the sale of the cocaine to Agent Barton. Continuing the line of argument quoted above from his brief, Klein constructs an elaborate hypothesis which includes his innocently agreeing to assist Bernier in collecting money owed to her, becoming suspicious when she did not return promptly, worrying that she might be in trouble, hiding the money in his clothing and starting towards Kenmore Square. It is true that, as Klein contends, such an hypothesis is consistent with the evidence offered at the trial. But that does not entitle him to an acquittal. The choice among various reasonable constructions of the evidence is for the trier of fact. The court’s verdict will be sustained if, viewing the evidence in the light most favorable to the Government, United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973), cert. denied, 416 U.S. 906, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974), the total evidence warrants the conclusion that Klein is guilty beyond a reasonable doubt. Dirring v. United States, 328 F.2d 512, 515 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964); see United States v. Concepcion Cueto, 515 F.2d 160 (1st Cir. 1975). The evidence here meets that standard. Affirmed. . This statement was offered solely on the issue of probable cause to arrest Klein, Part I infra. We do not consider it with respect to appellant’s sufficiency of the evidence claim, Part III infra, nor as part of the independent basis for finding a conspiracy, Part II infra. . The Government states that it is customary procedure for drug enforcement agents to conduct a thorough search of suspects before turning them over to the United States Marshal, and that this search was in accordance with that practice. While it may be that the agents had no particular reason to suspect that Klein was harboring evidence, we see nothing unreasonable about a uniform rule of the type in question.

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 21. 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 21? Answer with a number.

Charles W. RAMSEY, Appellant, v. UNITED STATES of America et al. No. 24748. United States Court of Appeals, District of Columbia Circuit. April 27, 1972. Mr. Edward L. Merrigan, Washington, D. C. (appointed by this court) was on the brief for appellant. Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Oscar Altshuler, and Stephen W. Grafman, Asst. U. S. Attys., were on the brief for appellees. Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges. PER CURIAM: This is an appeal from a summary judgment entered September 10, 1970, dismissing a complaint filed by appellant pro se from Lorton Reformatory, for declaratory relief and writ of mandamus, directing that he be credited with time spent in jail from December 14, 1967 to May 31, 1968, toward service of his sentence, of two to six years, imposed on May 31, 1968, in Criminal Case No. 218-68 (narcotics). Counsel appointed for the appeal contends now that appellant has never been credited at all for this time. While an appellate court has latitude to amplify the record for facts that are not essentially in dispute, in the case before us the ultimate facts, and perhaps some evidentiary facts, are vigorously disputed by the government. The place for resolution of such dispute is the District Court, on appropriate pleading and issue joined. Appellant also contends the judgment should be reversed, even assuming that some credit was given him for the 1967-68 detention, on the ground that he was entitled to have that credit applied to the sentence in Criminal Case No. 218-68. Appellant relies on the “presentencing credit” provision of 18 U.S.C. § 3568: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed No sentence shall prescribe any other method of computing the term. The Government’s position is that the time between December 14, 1967 and May 31, 1968, was not spent in custody “in connection with the offense or acts for which sentence was imposed” in Criminal No. 218-68, but rather was time spent in service of the sentence imposed in 1960, 2-11 years, in Criminal Case No. 1089-59, on a plea of guilty to assault with intent to commit rape. Appellant was released on parole on September 8, 1966, with 1655 days remaining to be served, or until September 22, 1970. The Government’s brief asserts that on appellant’s arrest on December 14, 1967, (a) he was charged with narcotics violations, for which he was later indicted and sentenced in Criminal Case No. 218-68, and (b) he forthwith began service of the days remaining unserved in Criminal Case No. 1089-59, on execution of a parole violator’s warrant dated November 1, 1967. The prison sentence imposed May 31, 1968, in Criminal Case No. 218-68, was expressly made consecutive, not concurrent. The Government’s position may well prove sound ultimately, but there are at least some problems in the record as it stands. The Government’s motion was supported by a Statement of Material Facts as to which there is no issue, filed under Local Rule 9(h) of the District Court, but there is no affidavit, as required by Rule 56, F.R.Civ.Pro., to establish facts dehors the pleading. For this purpose we cannot fairly refer to the affidavit of the Superintendent of Lorton Reformatory, dated August 9, 1971, captioned in the dockets of both the District Court and this court, which the Government filed in order to contest factual assertions in the appellant’s brief. This was filed after the motion for summary judgment was granted. Furthermore, there is no record foundation for the assertion in the Government’s brief (p. 2, fn. 1) that the parole warrant of November 1, 1967, alleged parole violations “totally unrelated to those for which appellant was ultimately indicted in Criminal No. 218-68.” We do not necessarily say that this fact is decisive, yet it is not without materiality, as is implied from the Government’s use of the fact. And it is not set forth in the Government's 9(h) statement, nor even in the Superintendent’s 1971 affidavit. While we would not focus on procedural details in a matter where the pertinent facts are essentially uncontested, that is not how this case shapes up as of present. With this murkiness in the facts, and possibly in their legal significance, the interest of justice (28 U.S.C. § 2108) leads us to remand the record to the District Court to enter, after such hearing as may be appropriate, its findings and conclusions concerning (a) the basis of the parole board’s warrant of November 1, 1967, (b) the basis of the arrest of December 14, 1967, and confinement starting that date and (c) the kind of credit, if any, that was entered administratively concerning that detention, to enter its reasons for concluding whether relief should be granted or denied the appellant, and to transmit the record, thus amplified, to this court. So ordered. . United States v. Kearney, 136 U.S.App.D.C. 328, 331, 420 F.2d 170, 173 (1969). The court’s reference distinguishing the panel opinion in (Barrington) Johnson v. United States (June 20, 1969) likewise is applicable to the eu banc opinion adopting that panel ruling, Johnson v. United States, 138 U.S.App.D.C. 174, 179, 426 F.2d 651, 656 (1970). . The Lorton Progress Report of December 9, 1970, appended to appellant’s brief, states that the specifications of the warrant were that he was arrested in Trenton in October, 1967, for possession of hypodermic needle and CDW — in violation of Rule 12, against departing city limits; in Rule 4, prohibiting possession of a hypodermic needle; and Rule 13, in that he did not remain at liberty without violating the law. “For these reasons, his mandatory release was revoked June 13, 1968.” . Under 18 U.S.C. § 4205 if a parolee is retaken under a warrant his “unexpired term . . . shall begin to run from the date he is returned to the custody of the Attorney General under said warrant. ...” A question arises when there is arrest under a parole violation warrant issued by the D.C. Parole Board. The Government’s statement under Rule 9(h) did not allege that any action had been taken by the D.C. parole board, other than issuance of a warrant, prior to May 31, 1968. If the only D.C. parole board revocation, under 24 D.C.Code § 206, came after May 31, 1968, a question arises whether the confinement Dec. 14, 1967 — May 31, 1968, may be ascribed to service of the prior sentence on an assumption of termination of parole, or must be credited, under 18 U.S.C. § 3568, to the sentence imposed May 31, 1968. . In the light of that amplification of record, appellant will decide whether to withdraw his appeal, or to submit a supplementary brief. The Government will be free to make corresponding decisions.

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

R. W. & M. F. ROSE CO. v. MARVIN. In re HUGHES. Circuit Court of Appeals, Third Circuit. January 16, 1928. No. 3663. Bankruptcy <©=>188(3) — Order given by bankrupt to creditor held not equitable assignment and invalid as against trustee. An order given to a creditor by bankrupt, who was plaintiff in a pending action against a county, directing his attorney or the county to pay to the creditor a certain sum-from the amount recovered, to be applied on his debt, held not an equitable assignment and not to en- . title the creditor to recover the proceeds of the judgment from bankrupt’s trustee. Appeal from the District Court of the United States for the Middle District of Pennsylvania; Albert W. Johnson, Judge. In the matter of Wells S. Hughes, bankrupt; Frank' M. Marvin, trustee. From an order denying the claim of the R. W. & M. F. Rose Company to a fund in the hands of the trustee, the company appeals. Affirmed. David Cameron, of Wellsboro, Pa., for appellant. Frank H. Rockwell, Crichton & Orvlett, and Rockwell & Rockwell, all of Wellsboro, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. This case concerns a fund arising from damages to a landowner caused by the construction of a county road through his premises. The pertinent facts are these: Prior to March 10, 1925, Hughes, the landowner, presented his claim for damages and the matter was so i prosecuted by him in an action at law against the county that subsequently he recovered a judgment for some $900. On May 4, 1926, the county paid the balance of said judgment over and above an allowance for attorney’s fees to the trustee in bankruptcy of Hughes, who had on February 18,1926, been adjudged a voluntary bankrupt. On January 17,1927, R. .W. and F. M. Rose, the present appellants, presented a petition to the court below sitting in bankruptcy praying that Hughes’ trustee pay them the money paid to him, as above, by the county of Tioga. The trustee answered, denying their right, and the matter was referred to the referee, who took proofs and reported the petition he denied and discharged. From an order confirming the referee’s report, this appeal was taken by the Roses. That the claim against the county was Hughes’ property, that it passed to his trustee in bankruptcy and was paid by the county to such trustee are facts which entitle the latter to hold the same for the benefit of Hughes’ creditors unless the Messrs. Rose can show a better right. This they seek to do by showing that on March 10, 1925, Hughes was indebted to them for about a thousand dollars, and on that date executed and delivered to them the paper printed in the margin. This paper was never presented to the commissioners. The Roses did not seek to become parties in his suit against the county nor in fact was any claim made under it until January 17, 1927, when their recited petition was presented to the court below. Do these facts show a right in the Roses superior to that of the trustee? The referee and court held not, and we think rightly. Manifestly the paper was but an order to apply. There is no proof that Hughes paid his debt to the Roses by giving the order or that they accepted it in extinguishment of the debt. It was .but’ an attempt to give them as security a part up to $1,500 of Hughes’ claim against the county, but, under the law of Pennsylvania (Vetter v. Meadville, 236 Pa. 564, 85 A. 19; Appeal of Philadelphia, 86 Pa. 179), the county was under no obligation to recognize such a partial order or assignment. Moreover, under the authorities (Geist’s Appeal, 104 Pa, 355), the Roses could not have enforced this order against either the county, Hughes, or his trustee, for, as was said by the Supreme Court in Christmas v. Russell, 14 Wall. 70, 20 L. Ed. 762, cited in the foregoing ease: “An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment. * * * The assign- or must not retain any control over the fund —any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee. The transfer must be of sueh a character that the fund holder can safely pay, and is compellable to do so, thoug*h forbidden by the assignor.” For the foregoing reasons we feel the decree dismissing the Rose petition should be, and is, affirmed. I, Wells S. Hughes, do certify that I have a claim for damages against Tioga county; that the claim is now pending in the courts of Tioga county and from the first proceeds of said claim the commissioners of Tioga county, or my attorney, C. H. Ashton, is hereby authorized and required to pay R. W. & M. F. Rose Company $1,500 or as their interest may appear, and this is an order on them so to do and will be their authority for so doing.

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

BETTER GOVERNMENT ASSOCIATION, Appellant, v. DEPARTMENT OF STATE, et al. NATIONAL WILDLIFE FEDERATION, et al., Appellants, v. UNITED STATES DEPARTMENT OF INTERIOR, et al. Nos. 84-5723, 84-5928. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 19, 1985. Decided Jan. 3, 1986. Eric R. Glitzenstein, with whom Alan B. Morrison and Cornish F. Hitchcock, Washington, D.C., were on brief, for appellant in No. 84-5723. John Bonine, Eugene, Or., for appellant in No. 84-5928. Michael Axline, Eugene, Or., was on brief, for appellant in No. 84-5928. Deborah Ruth Kant, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees in Nos. 84-5723 and 84-5928. Before WRIGHT and EDWARDS, Circuit Judges, and DAVIS, Circuit Judge, United States Court of Appeals for the Federal Circuit. Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS. Concurring opinion filed by Circuit Judge J. SKELLY WRIGHT. Sitting by designation pursuant to Title 28 U.S.C. § 291(a). HARRY T. EDWARDS, Circuit Judge. In these consolidated cases, the appellants, the Better Government Association (“BGA”) and the National Wildlife Federation (“NWF”), challenge the validity of a set of guidelines promulgated by the Department of Justice (“DOJ”). These guidelines are utilized by the appellees, the Department of State (“State”) and the Department of the Interior (“Interior”), to determine whether an individual or organization requesting information under the Freedom of Information Act (“FOIA”) is entitled to a waiver of search and copying fees. NWF also takes exception to Interior’s utilization of an allegedly illegal regulation governing its treatment of FOIA fee waiver requests, and its failure to adopt regulations, allegedly mandated by FOIA, setting forth specific criteria to be applied in fee waiver decisions. Both BGA and NWF incurred administrative denials of FOIA fee waiver requests pursuant to the guidelines and regulation at issue, and then challenged their respective denials in District Court. In each case, the Government reversed its position after the complaints were filed, waived the fees in question, and filed a motion for summary judgment on the grounds that the claims involving the individual denials of the fee waiver requests were moot and that the challenges to the facial validity of the DOJ guidelines and the Interior regulation were not ripe. The District Court agreed with the Government and held that the claims in question were not justiciable. We disagree. Although the challenges to the guidelines and the regulation as applied to the particular fee waiver requests are indisputably moot, it is equally clear that the appellants’ claims that the DOJ guidelines and the Interior regulation are facially invalid survive. The critical question is whether the facial challenges are ripe at this time. We hold that the crucial prerequisites to ripeness — final agency action, purely legal questions, and hardship if review is withheld — are present in the instant case. Therefore, we remand these cases to the District Court for consideration on the merits. I. Background A. The Statutory and Regulatory Framework FOIA permits agencies to impose “reasonable standard charges for document search and duplication” to recover the direct costs of such services. The statute also provides that: Documents shall be furnished without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. The legislative history of the fee waiver provision reveals that it was added to FOIA “in an attempt to prevent government agencies from using high fees to discourage certain types of requesters, and requests,” in particular those from journalists, scholars and nonprofit public interest groups. In 1980, however, after some experience with the fee waiver provision, a congressional subcommittee concluded that “[m]ost agencies have... been too restrictive with regard to granting fee waivers for the indigent, news media, scholars” and, therefore, recommended that the DOJ develop guidelines to deal with these problems. On December 18, 1980, the DOJ’s Office of Information Law and Policy promulgated a set of such guidelines under the rubric “Interim Fee Waiver Policy.” In January, 1983, however, the DOJ’s Office of Legal Policy issued a new memorandum that superseded the interim guidelines. The 1983 memorandum sets forth the DOJ’s twofold commitment “to encouraging agencies to waive FOIA search and duplication fees where the disclosure of requested information will primarily benefit the general public,” and to “the preservation of public funds where there will be insufficient public benefit derived from disclosure.” It then lists five general factors that agencies should consider in determining whether to grant a fee waiver. At all times relevant to this case, State had in effect regulations governing the granting of FOIA fee waivers that were adopted pursuant to a notice and comment rulemaking. State has admitted, however, that it "utilizes [the DOJ] guidelines in resolving requests for fee waivers.” Interior, too, has in effect a regulation pertaining to the granting of fee waivers. However, Interior also employs the DOJ guidelines in its fee waiver determinations. Most importantly, the record reveals that both departments explicitly relied on the DOJ guidelines in their denials of the BGA and NWF waiver requests involved in this appeal and will continue to employ them in processing FOIA fee waiver requests in the future. B. Procedural History BGA is a nonprofit organization that conducts investigations designed to expose waste, fraud and abuse in the functioning of government programs. In the course of its work, BGA made a FOIA request to State. BGA sought any audits, inspections or reports issued by that department’s Inspector General regarding the five American embassies receiving the most official visitors, and petitioned for a fee waiver. In an initial decision dated July 26, 1983, State denied the fee waiver request, stating that it did “not believe that the processing of [the] request [would] primarily benefit the general public.” BGA sought a reconsideration of this decision; but State denied its appeal on September 27, 1983, relying on the DOJ guidelines here at issue. BGA then appealed that decision in the District Court. On December 8, 1983, counsel for State informed BGA that the agency had reversed its position and would grant the fee waiver. Subsequently, State filed a motion for summary judgment, arguing that its ultimate waiver of fees rendered the case moot as to the specific request and unripe as to the challenge to the facial validity of the guidelines. The District Court dismissed the case on these grounds, and this appeal followed. NWF is a nonprofit organization “dedicated to the promotion of conservation principles on behalf of a large national... constituency.” In March, 1983, NWF filed a FOIA request with the Montana State Director of the Bureau of Land Management (“BLM”) seeking documents related to the impact of proposed coal exchanges and lease sales on fish and wildlife, as well as a waiver of search and copying fees. The BLM denied the fee waiver request. NWF paid the required sum in order to expedite the processing of its request, while simultaneously seeking a reconsideration of the fee waiver denial. Citing the DOJ guidelines, the BLM, and subsequently Interior, refused to reconsider this decision. NWF, like BGA, then sought relief in District Court. Here, too, Government counsel announced a reversal of the agency position, refunded the fee and filed a motion for summary judgment. The District Court held that the case was moot, and that, as a consequence, NWF lacked standing; the trial court also held that the challenges to the DOJ guidelines and the Interior regulation were not ripe. NWF appeals from that decision. The BGA and NWF cases have been consolidated for purposes of this appeal. II. Analysis A. Mootness The Government claims that its belated decisions to waive the appellants’ FOIA fees mooted the disputes before the District Court. However, appellants challenged not only the application of the DOJ guidelines and the Interior regulation to their respective requests, but also the facial validity of these provisions. Thus, BGA and NWF contend that the controversy between the parties remains alive. The doctrine of mootness is a logical corollary of the “case or controversy” requirement of Article III of the Constitution. A federal court is constitutionally forbidden to render advisory opinions or “to decide questions that cannot affect the rights of litigants in the case before them.” Any judgment issued must resolve “ ‘a real and substantia] controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” A consideration of the circumstances of this case in light of the constitutional standard reveals that the appellants’ challenge to the standards as applied to their specific fee waiver requests is, in fact, moot. Even assuming appellants’ claims that they were improperly denied fee waivers were well-founded, we cannot order the appellee departments to do something they have already done, i.e. waive the FOIA fees in the instant cases. As to this issue, BGA and NWF “ ‘ha[ve] obtained everything that [they] could recover... by a judgment of this court in [their] favor.’ ” The appellants apparently seek a declaration from this court that the initial refusals to waive FOIA fees were unlawful; however, such a declaration would be an advisory opinion which federal courts may not provide. There is, however, no question that the appellants’ other arguments concerning the facial validity of the DOJ guidelines and the Interior regulation are not moot. The challenge to the fee waiver denials was but one claim in the appellants’ complaints; the additional counts were directed at the legality of the standards utilized by the appel-lees. The Government incorrectly assumed that the mootness of the former led inexorably to the mootness of the latter. The satisfaction of the claims for reversals of the individual fee waiver denials did not render moot the facial challenges to the guidelines and regulation. The appellants are frequent FOIA re-questers; and neither State nor Interior have disavowed reliance on the guidelines or the Interior regulation. In fact, the Government clearly intends to apply these purportedly objectionable standards to FOIA fee waiver requests in the future. It is therefore evident that the allegedly impermissible practice, the utilization of the guidelines and the regulation in evaluating FOIA requests, has continued, that the appellants have alleged a continuing injury due to this practice, and that no relief has been forthcoming. In short, appellants’ facial challenges are not moot. Moreover, both the Government and each District Court judge correctly perceived that the crucial question in this case was not one of mootness, but rather one of ripeness; and we now proceed to address that issue. B. Ripeness The critical question of justiciability in this case is whether the facial challenges to the DOJ guidelines and the Interior regulation are ripe for review. Although it is true that “[rjipeness law overlaps at its borders with Article III requirements of case or controversy,” its application in the present case implicates the doctrine in only its prudential aspects. In that form, the ripeness inquiry takes into account pragmatic concerns regarding “the institutional capacities of, and the relationship between, courts and agencies.” These concerns include “the agency’s interest in crystallizing its policy before that policy is subjected to judicial review,” “the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting,” and “the petitioner’s interest in prompt consideration of allegedly unlawful agency action.” In Abbott Laboratories, the Supreme Court announced the two-pronged test for ripeness that balances these interests. The test requires a court to evaluate “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Pursuant to the “fitness of the issues” prong, we first must decide whether the disputed claims raise purely legal questions and would, therefore, be presumptively suitable for judicial review. Second, we determine whether the court or the agency would benefit from the postponement of review until the agency action or policy in question has assumed either a final or more concrete form. Finally, we examine the appellants’ interest in immediate review. In order to outweigh any institutional interests in the deferral of review, appellants must demonstrate “hardship,” i.e., that “the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs.” Initially, we find that the questions presented by the instant case are fit for judicial resolution. Both appellants contend that, on their face, the DOJ guidelines violate FOIA. This question will be resolved by an analysis of FOIA, its legislative history, and its construction by relevant case law. Likewise, BGA’s procedural challenge to the guidelines raises the purely legal question of whether State violated section 553(c) of the Administrative Procedure Act (“APA”) by its failure to give public notice of, and an opportunity to comment on the guidelines. Finally, NWF alleges that the failure of Interior to promulgate regulations establishing specific criteria to govern FOIA fee waiver requests violates a purported FOIA requirement that all agencies do so. Each claim presents purely legal questions, the understanding of which neither requires nor is facilitated by further factual development. Our appraisal of the legitimacy of the DOJ guidelines in light of the statutory requirements of FOIA and the APA would not be enhanced by the existence of a particular FOIA fee waiver request. Second, we find that the agency action in question has taken its final form. The DOJ guidelines at issue have been in effect well over two years. Both appellee departments assert that they will continue to rely upon the DOJ guidelines in their evaluation of FOIA fee waiver requests. Neither ap-pellee has indicated that it intends to subject the guidelines to public notice and comment; nor has Interior suggested that it intends to take steps to adopt revised or different regulations. In other words, on the present record, it seems clear that Interior and State have utilized and will continue to utilize the standards at issue in their present form. From what appellees have said, no further procedural or substantive evolution is expected. The appellees’ description of the guidelines as “informal” is not definitive in our ripeness determination. Courts have taken a “flexible” and “pragmatic” view of the finality of agency action. Where, as here, the agency has stated that the action in question governs and will continue to govern its decisions, such action must be viewed as final in our analysis of ripeness. “[W]hat is decisive is the substance of what [the agency] has done;” here State and Interior have made final, not tentative, decisions to utilize the challenged fee waiver standards. Finally, we hold that the continued use of the DOJ guidelines and the Interior regulation has a “direct and immediate” impact on the appellants that rises to the level of hardship. These guidelines “purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of [the appellants.]” As noted above, both BGA and NWF rely heavily and frequently on FOIA and its fee waiver provision to conduct the investigations that are essential to the performance of certain of their primary institutional activities — publicizing governmental choices and highlighting possible abuses that otherwise might go undisputed and thus unchallenged. These investigations are the necessary prerequisites to the fundamental publicizing and mobilizing functions of these organizations. Access to information through FOIA is vital to their organizational missions. Thus, the “primary conduct” of the appellants is affected by the standards at issue. Moreover, this impact is “felt immediately.” The appellants are nonprofit public interest groups that routinely make FOIA requests that potentially would not be made absent a fee waiver provision. While under normal circumstances an appellant’s budgetary constraints would not weigh decisively in our hardship evaluation, here we have the additional authority of a Congressional determination that such constraints should not impede the access to information for appellants such as these. Congress explicitly recognized the importance and the difficulty of access to governmental documents for such typically under-funded organizations and individuals when it enacted the “public benefit” test for FOIA fee waivers. This waiver provision was added to FOIA “in an attempt to prevent government agencies from using high fees to discourage certain types of requesters and requests” in a clear reference to requests from journalists, scholars and, most importantly for our purposes, nonprofit public interest groups. Congress made clear its intent that fees should not be utilized to discourage requests or to place obstacles in the way of such disclosure, forbidding the use of fees as “ ‘toll gate[s]’ on the public access road to information.” Payment in advance, followed by litigation to recover costs, may often be impossible if costs are prohibitive. Thus, insofar as these appellants are correct that the DOJ guidelines and standards in question act to discourage FOIA requests and to impede access to information for precisely those groups Congress intended to aid by the fee waiver provision, they inflict a continuing hardship on the nonprofit public interest groups who depend on FOIA to supply their lifeblood — information. The appellants allege that the DOJ guidelines act to “chill” the ability and willingness of their organizations to engage in activity that is not only voluntary, but that Congress explicitly wished to encourage. We recognize that this hardship analysis relies in part upon an acceptance of the appellants’ view of the merits. However, when, as here, “[t]he issue of harm and the issue on the merits are intertwined,” we properly adopt such a perspective from which to address the threshold consideration of ripeness. See note 36 supra. This case is on all fours with the recent decision of this circuit in American Federation of Government Employees v. FLRA. In that case, the AFGE claimed that the statute in question provided a blanket authorization requiring agencies to grant official time off to employees representing their unions in the negotiation of collective bargaining agreements during “duty status,” or worktime. The Government contended that its policy, which placed some limitations on that statutory entitlement, was not ripe for review because no hardship would exist until a union negotiator was confronted with a concrete denial of official time off by an agency. We disagreed and held as follows: If AFGE is correct in claiming that the statute provides a blanket authorization of official time for “duty status” time... and we believe it is, then an authoritative rejection of the blanket nature of that entitlement is a concrete injury even if the impact on any particular union is not immediate. AFGE’s claim that it is statutorily entitled to official time for negotiation of local agreements during what would otherwise have been duty status time has been firmly and finally rejected by the FLRA and, as the agency itself observes, the FLRA has applied the Interpretation of its rationale to a number of cases. This constitutes an impairment of rights, not a mere threat of future impairment. Likewise, in the present case, the appellants allege that, on their face, the guidelines deny them certain, purported statutory entitlements, such as, for example, a presumption that they, as nonprofit, public interest groups, must receive FOIA fee waivers. Here, too, the allegedly impermissible standards have been and are now employed by the appellee departments, creating a current “impairment of rights” under FOIA. The Government relies heavily on the decision in Webb v. Dept. of Health and Human Services in its argument that the instant case is not ripe for review. However, the appellants in this case have suffered hardship of a sort that was absent in Webb. In that case, this court held that the appellant’s challenge to a Food and Drug Administration (“FDA”) regulation was not ripe. Specifically, we determined that the challenge to the FDA rule at issue was uniquely fact-based, stating that “the validity of applying [the regulation] to a FOIA request will vary depending on what information is actually contained in the N[ew] D[rug] Application] file.” Moreover, we found that the only hardship that would spring from delayed consideration in Webb was “the burden of having to file another lawsuit... hardly the type of hardship which warrants immediate consideration of an issue presented in abstract form.” The court also disbelieved the plaintiff’s claim that he was a frequent FOIA requester. Here we are confronted with an entirely different set of circumstances. As discussed above, the instant cases involve purely legal issues, the resolution of which would not be measurably enhanced by factual illustration. Appellants’ claims concerning the nature of the guidelines and regulation, their alleged facial inconsistency with the legal mandate of FOIA, and the alleged requirement of notice and comment rulemaking are matters that are presently ripe for review. Appellants are indisputably frequent FOIA requesters, whose daily conduct and decision-making are affected, by the standards at issue. Finally, and most importantly, appellants allege a continuous injury due to a deprivation of a statutory entitlement. Webb is simply not apropos of the circumstances here at issue, either with respect to the “fitness of the issues” or the “hardship" prong of the ripeness test. Rather, we believe that the controlling precedent here is American Federation of Government Employees, and we adhere to it in finding these cases ripe for judicial review. In sum, the prudential considerations implicated by the ripeness doctrine all militate for judicial review in the instant case. The issues are purely legal, the agency actions final, and the hardship to the parties created by withholding review are concrete and present. These facial challenges to the guidelines and to Interior’s failure to promulgate specific criteria governing fee waiver determinations are now ripe for judicial resolution. C. Remand Our decision that this case is ripe for judicial review leaves for resolution several complex questions involving the applicability of FOIA and the APA. First, the District Court must determine whether the DOJ guidelines utilized by the appellee departments are inconsistent with the mandate of FOIA. In other words, the trial court must ascertain whether FOIA requires DOJ to provide more or different substantive standards to regulate fee waiver determinations under FOIA. The Government characterizes the guidelines solely as helpful advice, and thus may argue that their substantive content is irrelevant, because it is not binding. We were unable to discern either from the record or from the response of counsel at oral argument whether the DOJ guidelines are, or are perceived as, mandatory, or whether they are purely advisory in nature. The appellee departments, however, appear to have believed that adherence to the guidelines was required. In any event, appellants contend that, whether or not mandatory, the guidelines are being followed by State and Interior, and that they are facially invalid. Second, BGA contends that the Government was required to follow notice and comment rulemaking pursuant to section 553 of the APA in promulgating the guidelines. In other words, BGA asserts that the guidelines are “rules” within the meaning of section 551(4) of the APA and that they fall far outside the purview of the statutory exceptions to the rulemaking requirements. However, as noted above, the Government characterizes the guidelines as advisory only. The District Court must therefore decide whether the strictures of the APA require the appellees to submit the DOJ guidelines to the public for notice and comment. Finally, appellants appear to contend that, even assuming that these particular “guidelines” are not properly subject to the rulemaking requirements of the APA, FOIA mandates the enactment of some specific criteria to govern waiver requests. Implicit in this suggestion is the argument that the appellees’ existing guidelines, regulations and practices fall short of what is required by FOIA, and that when lawful rules are finally adopted they must be promulgated pursuant to notice and comment rulemaking. All of these questions must be resolved by the District Court on remand. III. Conclusion Although the appellants’ original claims involving the Government’s refusal to waive their FOIA fees are moot, the facial challenges to the DOJ guidelines and the Interior regulation are live, ripe controversies which we hereby remand to the District Court for resolution. So Ordered. . The Northern Plains Resources Council is an appellant, and the Bureau of Land Management, an appellee, in National Wildlife Federation, et al. v. United States Department of Interior, et al. For convenience, we will refer only to the NWF and Interior throughout this opinion. . 5 U.S.C. § 552(a) (1982). . 43 C.F.R. § 2.19(c) (1985). . The appellee departments occasionally will be referred to as "the Government.” . 5 U.S.C. § 552(a)(4)(A) (1982) (emphasis supplied). . See Ettlinger v. FBI, 596 F.Supp. 867, 872 (D.Mass.1984); Sen. Comm, on the Judiciary, Amending the FOIA, S.Rep. No. 854, 93rd Cong., 2d Sess. 11-12 (1974), U.S.Code Cong. & Admin. News 1974, p. 6267 (hereinafter S.Rep.). . Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, 95th Cong., 2d Sess., Agency Implementation of the 1974 Amendments to the Freedom of Information Act: Report on Oversight Hearings 90-96 (Comm.Print 1980) (hereinafter Subcomm. Report). . BGA Joint Appendix ("J.A.”) 23. . Under the 1983 DOJ memorandum, the agency must evaluate: (1) "whether there is a genuine public interest in the subject matter of the documents... There is no universal formula by which the existence and extent of legitimate public interest in the subject matter of FOIA requests can be evaluated, so each agency must draw on its unique expertise in making these judgments about the subject matter of its own records. The ‘public' to be benefited need not be so broad as to encompass all citizens, but it must be distinct from the requester alone;” (2) "the value to the public of the records themselves... [T]he public is benefited only if the information released meaningfully contributes to the public development or understanding of the subject;” (3) “whether the requested information is already available in the public domain;” (4) “a requester’s identity and qualifications;” and (5) “any personal interest of the requester reasonably expected to be benefited by disclosure... It is necessary to assess the magnitude of any such personal interest, and then to compare it with that of any discernable public benefit____” BGA J.A. 23. . See 22 C.F.R. § 171.13(e) (1985). . See 45 Fed.Reg. 58,108 (1980). . Defendant’s Answer, ¶ 8, reprinted in BGA J.A. 19. . See 43 C.F.R. § 2.19(c) (1985). . NWF J.A. 21. . BGA J.A. 45. . NWF, et al. v. Department of Interior, et al., 616 F.Supp. 889, 891 (D.D.C.1984), reprinted in NWF J.A. 142. . The BLM is a division of the Department of Interior. . North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). . Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)). . Counsel for the appellants suggested at oral argument that the "voluntary cessation of illegal activity” exception to the mootness doctrine salvaged the individual waiver denials from mootness. This suggestion is manifestly incorrect. The Government’s waiver of fees left only the legal challenge to the facial legitimacy of its standards in controversy. In Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir.1979), the EPA revoked a rule that Dow charged had been invalidly promulgated under the APA, solely in order to remedy the alleged procedural irregularities, and made clear its intention to repromulgate a substantively identical rule. Relying on the “voluntary cessation” doctrine, the Third Circuit held that the substantive challenge to the rule was not moot. This court has subsequently clarified that holding: [T]he EPA’s revocation of the rule under those circumstances did not moot the entire case, specifically the petitioner's challenge to the validity of the substance of the rule, which the court then went on to address____ Notably, the court in Dow did not even address the merits of petitioner’s earlier procedural challenge to the rule, which suggests that it implicitly regarded this issue as moot or that petitioner did not press the argument after the rule was revoked. National Resources Defense Council, Inc. ("NRDC”) v. NRC, 680 F.2d 810, 814-15 n. 9 (D.C.Cir.1982). In the instant case, appellants’ challenges to the rules as applied, like the procedural challenge in Dow, were mooted by the agency’s curative actions. When courts apply the "voluntary cessation” doctrine, they typically conclude that the case is not moot; in fact, it often should be more precisely stated that the entire case is not moot. . NRDC v. NRC, 680 F.2d at 814 (quoting California v. San Pablo & Tulare Railroad, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893)). . Id. at 815. . See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 1697-98, 40 L.Ed.2d 1 (1974) (proper to award declaratory relief when need for injunction has been removed but challenged governmental practice continues). . Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985). . No party to this case contends that the constitutional criteria of the doctrine have not been met. . Eagle-Picher Indus., Inc., 759 F.2d at 915. . Id. . Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 149, 87 S.Ct. at 1515. . Id.; see also Eagle-Picher Indus., Inc., 759 F.2d at 915; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 126 (D.C.Cir.1974) (en banc). . See Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 725 (D.C.Cir.1984); Continental Airlines, Inc., 522 F.2d at 124-25. . Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . Although the meaning of the guidelines and regulation might be illustrated by their application to particular fee waiver requests, such illustrations are not necessary to appellants’ challenges. They contend that, even without application, the standards are facially inconsistent with FOIA and violate the APA, and are therefore illegal. It is these claims that we hereby hold ripe for review. . See Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124 (D.C.Cir.1974) ("The label an agency attaches to its action is not determinative.”). Although it is not clear whether State and Interior were required to adopt the DOJ guidelines, they apparently have constructively done so. . See Abbott Laboratories, 387 U.S. at 149-50, 87 S.Ct. at 1515-16. . Although certain of the questions that are pertinent to ripeness may also go to the merits, we do not mean to prejudge the merits of these cases. The ripeness issue — concerning whether these cases are now fit for review — is separate from the questions concerning the nature of the guidelines and regulation, their alleged inconsistency with the legal mandate of FOIA, and the alleged applicability of notice and comment rulemaking under the APA. It is these latter questions that will be resolved by the District Court on remand. . Sea-Land Service, Inc. v. Federal Maritime Comm'n, 402 F.2d 631, 633 (D.C.Cir.1968). . Abbott Laboratories, 387 U.S. at 152, 87 S.Ct. at 1517. . Id. . Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524. . Ettlinger v. FBI, 596 F.Supp. at 872; see also S.Rep., supra note 6, at 11-12. . S.Rep., supra note 6, at 11-12. . Subcomm. Report, supra note 7, at 78. . Id. at 90-96. . National Wildlife Federation v. Snow, 561 F.2d 227, 237 (D.C.Cir.1976). . 750 F.2d 143 (1984). . Id. at 145. . For example, the appellants contend that the purposes and the legislative history of FOIA indicate that persons or organizations making requests for nonprofit purposes should generally receive fee waivers. Granting such waivers "encourages participation in the government process by those without a direct economic motivation to do so.” Bonine, Public-Interest Fee Waivers Under the FOIA, 1981 Duke LJ. 213. The sources relied upon by Congress in enacting the fee waiver provision each concluded that nonprofit requests merit fee waivers. See S.Rep., supra note 6, at 3, 10, 11, 12; Bonine, supra at 239-42. See also Subcomm. Report, supra note 7, at 96: The guidelines should recommend that each agency authorize as part of its FOIA regulations fee waivers for the indigent, the news media, researchers, scholars, and non-profit public interest groups. The guidelines should note that the presumption should be that re-questers in these categories are entitled to fee waivers, especially if the requesters will publish the information or otherwise make it available to the general public. No such presumption appears in the 1983 DOJ guidelines; indeed there is no mention of nonprofit groups in the section of the guidelines entitled "the requester’s identity and qualifications.” . Our conclusion that appellants will suffer hardship if review is withheld also holds true for BGA’s claim that State’s failure to expose the guidelines to notice and comment violates the APA. BGA is an interested party and arguably suffers continuing injury to its procedural rights if State has altered its practice without following APA requirements. See National Conservative Political Action Committee v. Federal Election Committee, 626 F.2d

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

RUSSELL v. THE TEXAS CO. et al. No. 14246. United States Court of Appeals, Ninth Circuit. March 9, 1954. Ralph J. Anderson, Helena, Mont., for appellant. Coleman, Jameson & Lamey, Cale Crowley, Billings, Mont., Walter E. Will, Denver, Colo., M. L. Countryman, St. Paul, Minn., Robert P. Davidson, Billings, Mont., of counsel, for appellee. Before BONE,. ORR and POPE, Circuit Judges. POPE, Circuit Judge. The appellant filed a complaint in the District Court alleging three causes of action. The first cause states that the defendant Northern Pacific Railway Company received patent to a certain section of land pursuant to the terms of the Northern Pacific Land Grant of 1864, 13 Stat. 365; that it subsequently conveyed the land to plaintiff's pi'ede-cessor excepting and reserving the minerals upon or in the land. It alleges that the purported exception and reservation of such minerals is void, but that notwithstanding such invalidity the Railway Company executed an oil and gas lease to the Texas Company and that the latter Company and its agent, the Frederick T. Manning Drilling Co., have entered upon the land pursuant to the lease and were removing large quantities of oil and gas therefrom, and causing other damage to plaintiff’s land. It alleged that the purported exception and reservation of the minerals and the lease to the Texas Company constitute a cloud upon plaintiff’s title. The second and third causes of action allege that the defendants, the Texas Company and the Drilling Company, were making an unlawful use of plaintiff's land in connection with drilling operations on adjacent lands. The Railway Company was not involved in these last two causes of action. The prayer of the complaint was that the mineral reservation and the oil and gas lease be adjudged void and that the cloud thereby created upon plaintiff’s title be removed; that the defendants be enjoined from trespassing upon plaintiff’s land,, and that plaintiff have judgment for damages on account of the use by the Texas Company and the Drilling Company of his land, both in connection with drilling operations thereon and with the operations on the adjoining lands. The Northern Pacific Railway Company made a motion for summary judgment and the other defendants made a separate motion for partial summary judgment. On November 23, 1953, the court below filed an order granting the motion of the Railway Company and which recited; “Now, Therefore, it is Ordered, Adjudged and Decreed that summary judgment be entered in favor of the defendant Northern Pacific Railway Company and against the plaintiff, with costs.” The order further determined that there was no genuine issue of fact between plaintiff and the defendants Texas Company and the Drilling Company concerning the right of said defendants to enter upon the lands as lessees of the Railway Company; that they were entitled to enter the lands under the lease for the purpose of extracting minerals, and that plaintiff was not entitled to an injunction restraining such use. The order left for later decision between the plaintiff and the last two defendants the issues of injunctive relief and damages under the second and third causes of action. On November 25, 1953, the entry of the order of November 23, 1953, in the Civil Order book was noted in the docket. On December 3, 1953, a formal summary judgment was made, entered and noted in the docket adjudging and decreeing “that the defendant Northern Pacific Railway Company does hereby have judgment in its favor and against the plaintiff.” No appeal was taken from the order of November 23 as noted November 25. On January 27, 1954, upon a showing that plaintiff had not received notice of the December 3 judgment until January 26, the court made an order extending plaintiff’s time to appeal from the December 3 “partial summary judgment” until February 1, 1954. Upon the same day, January 27, 1954, plaintiff filed notice of appeal to this court from the December 3 judgment. The appellee, Northern Pacific Railway Company, first moved to dismiss the appeal on the ground that the appealable decision of the court below was that of November 23, 1953, and that when the appeal was taken on January 27, 1954, that appeal was ineffective, first because it did not purport to be an appeal from the November 23 decision, and second, because on that day the period to which the time for appeal from the November 23 order could be extended by the district court under Title 28, § 2107 had then expired. Appellee asserts that the decisions of this court in Liberty Mutual Ins. Co. v. Pillsbury, 154 F.2d 559; Haddock Limited v. Pillsbury, 155 F.2d 820; and Steccone v. Morse-Starrett Products Co., 191 F.2d 197, demonstrate the finality of the November 23d decision. Appellant says that those cases are distinguishable from this in that the order of November 23,1953, contains no such words of finality as those in the orders discussed in the cases cited, saying that the November 23d order shows on its face that it went no further than to direct the preparation and entry of a final judgment. We find it unnecessary to resolve the question stated in the preceding paragraph because after the Railway Company filed its motion to dismiss it filed a supplemental memorandum suggesting an additional reason why the appeal should be dismissed. The suggestion is that since more than one claim for relief was present in this action, and since the court has directed entry of a judgment upon less than all of the claims, the judgment or decision is covered by Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., relating to judgment upon multiple claims. Attention is called to the fact that neither the order of November 23, 1953, nor the judgment of December 3, 1953, contains “an express determination that there is no just reason for delay”. Therefore, ap-pellees say, if the rule applies the appeal is premature. We are of the opinion that the point thus made with respect to the effect of Rule 54(b) is well taken. Here, where the decision of the court was as to some but not all of the claims and where it purports completely to dispose of the rights of one but not all defendants, the case comes within the rule of our recent decision in Burkhart v. United States, 210 F.2d 602. Upon this- ground and for this reason the appeal is dismissed. . “ * * * The district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree. * * * ” 28 U.S. C.A. § 2107. . Rule 54(b) “Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated. whieh adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

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

SARKES v. WELLS. Circuit Court of Appeals, Sixth. Circuit. January 17, 1930. No. 5272. J. B. Dworken, of Cleveland, Ohio, for appellant. Monroe A. Loeser, of Cleveland, Ohio (E. C. Landsman, of Cleveland, Ohio, on the brief), for appellee. Before DENISON, MOORMAN, and HICKS, Circuit Judges. HICKS, Circuit Judge. Appeal by George Sarkes, bankrupt, from an order of the District Court adjudging him in contempt for failure to obey an order, made by the referee, directing the bankrupt to deliver to the appellee trustee the sum of $3,000 and a diamond ring. The turnover order, wherein it was found that the bankrupt at the time of bankruptcy had the money and ring in his possession and under his control, was regularly made on April 12, 1928, upon the petition of the trustee and after a full hearing. Appellant having failed to comply, the referee certified the facts found to the judge, who, after a full hearing, at whieh were admitted the findings of the referee and the evidence introduced upon the part of the appellant, including his own testimony, was of opinion that the appellant had the present ability to comply with the order, and therefore, on September 11, 1928, ordered that, if he did not comply within ten days, he should for his contempt be held in custody until he did, or until further orders. ■ The judge was right. The bankrupt filed no petition to review the turnover order (General Order XXVII), and it was therefore an adjudication which may not be collaterally attacked that at the time it was made the appellee had possession of and was withholding the property. There can no longer be any difference of judicial opinion upon the point. Oriel v. Russell, 278 U. S. 358, 363, 49 S. Ct. 173, 73 L. Ed. 419; Internat. Agr. Corp. v. Cary, 240 F. 101, 106 (C. C. A. 6); In re L. & R. Wister & Co., 237 F. 793, 795 (C. C. A. 3); Toplitz v. Walser, 27 F.(2d) 196, 197 (C. C. A. 3); In re David, 33 F.(2d) 748, 749 (C. C. A. 3); Coates v. Dresner, 34 F.(2d) 264, 265 (C. C. A. 3); In re Siegler, 31 F.(2d) 972, 973 (C. C. A. 2); Clark v. Milens, 28 F.(2d) 457, 458 (C. C. A. 9). The only defense open to the bankrupt Hiere upon the contempt proceeding was that something had occurred since the order which rendered him unable to obey it. Oriel v. Russell, supra. He made no such defense. He contented himself with denying that he had had possession or control of the property either before or after the turnover order and asserting that it was therefore impossible for him to turn over that which he had never possessed. This insistence was not relevant to the issue in the contempt proceeding. It was an indirect attempt to annul the turnover order, whieh may not be collaterally attacked, and whieh within itself constituted a prima facie case against the bankrupt in the contempt proceeding. Berkhower v. Mielzner, 29 F.(2d) 65, 66 (C. C. A. 6); Shulman v. United States, 18 F.(2d) 579, 580 (C. C. A. 6). Upon its presentation, the burden shifted to appellant to show by persuasive evidence that he was no longer in possession of the property and the circumstances under which he was deprived of its control. Oriel v. Russell, supra; Regus v. Morrison, 30 F.(2d) 685 (C. C. A. 5); Clark v. Milens, supra; In re Siegler, supra; Toplitz v. Walser, supra; Coates v. Dresner, supra. Appellant having failed therein, there was no error in the judgment of the lower court, and it is affirmed.

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

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

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

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

UNITED STATES of America v. Don A. THOMPSON (a/k/a John F. Shellington), Appellant. No. 91-3091. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 19, 1992. Decided May 8, 1992. David Carey Wall (appointed by the Court), for appellant. Albert A. Herring, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Bruce E. Yannett, Asst. U.S. Attys., were on the brief, for appellee. Before WALD, WILLIAMS, and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge D.H. GINSBURG. Dissent by Circuit Judge WALD. D.H. GINSBURG, Circuit Judge: After the appellant had been convicted of various drug offenses, the trial judge enhanced his sentence on the ground that he had testified falsely at trial. The appellant contends that his trial testimony was “simply a denial of guilt” and thus should not be treated as perjury for the purpose of enhancing his sentence. We conclude that the district judge’s decision to enhance the appellant’s sentence was not improper. I. BaCkground Officer Mark Stone watched appellant Don Thompson through high-powered (7x50) binoculars for three hours, during which time Thompson engaged in what appeared to be eight separate drug transactions. Officer Stone radioed for assistance in order to arrest Thompson and several officers came to the scene, which was an alley. When Thompson spotted them, he tossed the brown paper bag he had been holding into some nearby bushes and tried to leave. After the officers arrested Thompson, they retrieved the bag and found in it sixty-four ziplock bags each containing cocaine base. A search of Thompson’s person turned up $297 in cash. Thompson was charged with possession of cocaine base with intent to distribute and with distribution of cocaine base, both within 1000 feet of a public school. See 21 U.S.C. §§ 841(a)(1), (b)(1), 845a(a). At trial one of the arresting officers testified that Thompson was the only person in the alley who matched the detailed body and clothing description that Officer Stone had given them. Subsequent to the arrest, Stone himself identified Thompson as the man he had observed selling drugs. At trial, Officer Stone again identified Thompson as the vendor. Thompson's defense was mistaken identity. He testified that he had been playing chess in a courtyard leading to the alley where the drug sales had occurred but had not been in the alley and certainly had not been selling drugs. His sister and four other witnesses also testified in his defense at trial, each corroborating some part of Thompson’s testimony. (For example, his sister said that she had given him $250 just two days before the arrest; one friend said he had been playing chess with Thompson during the time of the drug sales, another that the bag Thompson discarded was the one in which she had brought him a beverage from a nearby store.) The jury found Thompson guilty on all counts. The Probation Office recommended that the court enhance Thompson’s sentence two offense levels for obstructing justice by giving perjured testimony and suborning the perjury of others. Section 3C1.1 of the Sentencing Guidelines (Nov. 1, 1990) instructs a trial judge to increase the offense level by two if: the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.... According to Application Note 3(b), “committing, suborning, [and] attempting to suborn perjury” are among the types of conduct that warrant an enhancement for obstruction of justice. After hearing argument on the enhancement issue, Judge Lamberth determined that although he did not believe the testimony of Thompson’s sister, he could not conclude that Thompson had suborned her to commit perjury. On the other hand, the judge determined not only that Thompson “did testify untruthfully” but “that he has, in fact, obstructed justice” thereby. Accordingly, he enhanced Thompson’s sentence by two offense levels. II. Analysis On appeal, Thompson “submit[s] that [his] testimony was simply a denial of guilt” and seeks refuge in Application Note 1 for Guideline § 3C1.1, which cautions: This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant’s denial of guilt (other than a denial of guilt under oath that constitutes perjury) ... is not a basis for application of this provision. In applying this provision, the defendant’s testimony and statements should be evaluated in a light most favorable to the defendant. Citing cases in each of which an enhancement was imposed after the defendant’s testimony was deemed by the trial judge to have been “inherently implausible,” “replete with internal contradictions,” or a “fairy tale,” United States v. Matos, 907 F.2d 274, 276 (2d Cir.1990); United States v. Wallace, 904 F.2d 603, 605 (11th Cir.1990); United States v. Akitoye, 923 F.2d 221, 229 (1st Cir.1991), Thompson argues in essence that a sentence can be enhanced for penury only if the defendant’s testimony is utterly preposterous. Because his testimony “told a plausible version of events,” Thompson asserts, “the [district] court should not have had a firm conviction that [he] lied.” We disagree with Thompson’s reading of the Guidelines. On its face, § 3C1.1 does not require that a defendant’s false testimony be implausible or particularly flagrant. Rather, the sentencing judge need find only that the defendant willfully committed, suborned, or attempted to suborn perjury in order to obstruct justice. The admonition in Application Note 1 to evaluate the defendant’s testimony “in a light most favorable to the defendant” apparently raises the standard of proof— above the “preponderance of the evidence” standard that applies to most other sentencing determinations, see United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989) — but it does not require proof of something more than ordinary perjury. To limit enhancements only to cases of internally contradictory testimony or flagrant lying — or to permit enhancements only when no reasonable trier of fact could have found other than that the defendant lied— would be merely to reward the polished prevaricator while punishing those less practiced in the art of deception. We do not think that the Guidelines contemplate this distinction between different degrees of willful lying. Thus, the sentencing court must determine whether the defendant testified (1) falsely, (2) as to a material fact, and (3) willfully in order to obstruct justice, not merely inaccurately as the result of confusion or a faulty memory. See 18 U.S.C. § 1621; see also United States v. Jordan, 890 F.2d 968 (7th Cir.1989) (false statement about drug use during sentencing stage of criminal proceeding considered material); United States v. Lofton, 905 F.2d 1315, 1317 (9th Cir.1990) (“‘willfully’ requires that the defendant consciously act with the purpose of obstructing justice”); United States v. Christman, 894 F.2d 339 (9th Cir.1990) (same). When the jury has answered the first question by finding beyond a reasonable doubt that the defendant lied, and could not have convicted otherwise, it might be anomalous for the judge to sentence the defendant upon the basis of the jury verdict and yet refuse to enhance the sentence for perjury merely because the judge entertains a doubt that the defendant lied. Cf. Fed.R.Crim.P. 29(a) (court shall direct acquittal “if the evidence is insufficient to sustain a conviction”). We do not express an opinion, however, as to whether it would be an error; after all, the judge’s decision to let the case go to the jury says only that a reasonable jury could find guilt beyond a reasonable doubt, not that a reasonable judge would necessarily agree. In the case before us, Thompson’s story, if believed, would have been a complete bar to conviction. Although not wildly implausible, the jury did not in fact believe that story; they concluded beyond a reasonable doubt that Thompson was lying. Judge Lamberth unequivocally stated at the sentencing hearing that he found Thompson’s testimony untruthful and an obstruction of justice. Mindful of the deference that we owe the findings of the sentencing court, see 18 U.S.C. § 3742(e) (in reviewing a sentence, “[t]he court of appeals shall ... accept the findings of fact of the district court unless they are clearly erroneous”), we conclude that it was not error to enhance Thompson’s sentence by two offense levels for obstruction of justice. Accordingly, the sentence imposed by the district court is Affirmed.

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

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