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UNITED STATES of America ex rel. John SADOWY, Petitioner-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Respondent-Appellee. No. 140, Docket 26225. United States Court of Appeals Second Circuit. Argued Nov. 4, 1960. Decided Nov. 25, 1960. John Sadowy pro se for appellant. Louis J. Lefkowitz, Atty. Gen., of the State of New York, for appellee. Pax-ton Blair, Sol. Gen., Albany, N. Y., Irving Galt, Asst. Sol. Gen., New York City, and George K. Bernstein, Asst. Atty. Gen., of counsel. Before SWAN, CLARK and MEDINA, Circuit Judges. SWAN, Circuit Judge. In June 1954 appellant was convicted in the County Court, Queens County, New York, and was sentenced as a second felony offender to a term of imprisonment which he is still serving. On appeal the judgment was affirmed by the Appellate Division, People v. Mysholowsky [and Sadowy], 1 A.D.2d 1036, 152 N.Y.S.2d 252. Leave to appeal to the Court of Appeals was denied by Judge Fuld, and certiorari was denied Sadowy v. People of State of New York, 352 U.S. 933, 77 S.Ct. 237, 1 L.Ed.2d 168. Appellant also made two unsuccessful applications for writs of error coram nobis. Appeals taken in these two proceedings were dismissed by the Appellate Division for failure to perfect the appeal. The present petition for a writ of habeas corpus was filed in March 1960. Judge Cashin granted petitioner’s application to proceed in forma pauperis but denied issuance of the writ with a memorandum opinion which states 189 F.Supp. 151: “The only ground raised by the petitioner to support the contention that he is in custody in violation of the Constitution or laws of the United States, is that the trial court refused to allow into evidence at the trial testimony as to the result of 'lie detector’ tests he had taken, which tests would tend to show the innocence of the petitioner”. Thereafter Judge Cashin issued a certificate of probable cause limited to the ground stated in the above quotation. The alleged error of the trial court in excluding testimony of an expert as to the pathometer (“lie detector”) tests taken by the defendant, was urged in his state court appeals and in his coram nobis proceedings. It is the only point argued in the present appeal. He relies particularly upon the decision of Judge Colden in Queens County Court who admitted such evidence. People v. Kenny, 167 Misc. 51, 3 N.Y.S.2d 348. This opinion was rendered on March 29, 1938. Subsequently, on November 29, 1938, the Court of Appeals held in People v. Forte, 279 N.Y. 204, 18 N.E.2d 31, 32, 119 A.L.R. 1198, reargument denied 279 N.Y. 788, 18 N.E.2d 870, that such evidence was properly excluded, the record there being “devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy.” Appellant contends that in his case, as well as in Kenny’s, adequate proof of the efficacy of the pathometer was presented, and that the Kenny decision should have been followed rather than People v. Forte, although Dr. Burke, who administered the tests to appellant in evaluating the results, mentioned “certain irregularities” in appellant’s responses. It is not necessary for us to determine, as the defendant asks us to do, whether the Forte case should have been distinguished and the Kenny rule followed by the Queens County Court in his trial. In following Forte and holding the pathometer unreliable, the trial court was merely applying a rule of evidence in accordance with its interpretation of New York law. This raises no federal question. As stated in Buchalter v. People of State of New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 1131, 87 L.Ed. 1492, “the due process clause of the Fourteenth Amendment does not enable us to review errors of state law however material under that law.” See also Lisenba v. People of State of California, 314 U.S. 219, 226-229, 62 S.Ct. 280, 86 L.Ed. 166. If it is the defendant’s contention that, aside from its correctness under New York law, the Forte rule deprives him of due process, we agree with Judge Cashin that since the Forte rule is overwhelmingly, if not universally, followed in other jurisdictions, both state and federal, it cannot be said to violate due process, that is, to be repugnant to “the very essence of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. The defendant’s constitutional argument is predicated upon his theory of the pathometer’s reliability. Judge Colden’s eloquent opinion in Kenny may well be prophetic of the general recognition which courts may ultimately accord to lie detector tests. They have not yet done so, and any opinion we might express as to the desirability of so doing would be irrelevant. Due process certainly does not require them to do so now. We agree with Judge Cashin’s succinct opinion, 189 F.Supp. 150. Judgment affirmed.

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

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

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

Did the court declare any statute or administrative action unconstitutional?

UNITED STATES of America, Plaintiff-Appellee, v. James R. HOFFA, Thomas Ewing Parks and Larry Campbell, Defendants-Appellants. Nos. 18029-18031. United States Court of Appeals Sixth Circuit. July 23, 1968. Morris A. Shenker, St. Louis, Mo., for appellants, Joseph A. Fanelli, Washington, D. C., for James R. Hoffa, Jacques M. Schiffer, Rockville Center, for Thomas Ewing Parks, Cecil D. Branstetter, Nashville, Tenn., for Larry Campbell, Daniel B. Maher, Washington, D. C., of counsel. Theodore George Gilinsky, Atty., Dept. of Justice, Washington, D. C., for appellee, Fred M. Vinson, Jr., Asst. Atty. Gen., Austin S. Mittler, Daniel E. Schultz, Attys., Dept. of Justice, Washington, D. C., John H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief. Before O’SULLIVAN and CELEBREZZE; Circuit Judges, and CECIL, Senior Circuit Judge. O’SULLIVAN, Circuit Judge. This matter involves the appeals of defendants-appellants, above named, from denial of the fourth motion for a new trial made by them in the above cause. They had been convicted of endeavoring to influence, intimidate and impede petit jurors in the discharge of their duties, in violation of 18 U.S.C. § 1503, by jury verdict returned in the District Court at Chattanooga, Tennessee, on March 4, 1964. On appeal to this Court, their conviction and the denial of their first motion for new trial were affirmed. United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied, February 27, 1967, 386 U.S. 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967). A second motion for new trial was denied and such denial was affirmed here. United States v. Hoffa, 376 F.2d 1020 (6th Cir. 1967), cert. denied, 389 U.S. 859, 88 S.Ct. 102, 19 L.Ed.2d 124 (1967). The denial of a third motion for new trial, based upon allegedly newly discovered evidence of misconduct of the jurors who convicted appellants, and the United States Marshals who had charge of them, was affirmed by this Court on September 14, 1967, United States v. Hoffa, 382 F.2d 856. The fourth motion for new trial, now before us, was filed on February 28, 1967, amended April 3, 1967, and was denied by order entered May 13, 1967; this denial followed disallowance of appellants’ motion for a 90-day continuance of the hearing on the motion, made on the day set for such hearing, and the refusal to allow the motion’s discontinuance without prejudice. We affirm. This fourth motion — relying on newly discovered evidence — set out charges of improper electronic surveillance of Hoffa, his witnesses, his associates, and his attorneys, by agents of the United States. The charges were extensive, covering a period before, during and after the 1964 trial and were supported by some 20 affidavits. If true, they disclosed questionable conduct by various government agents, including one Walter Sheridan, whose employment by the Department of Justice had been for the special purpose of investigating the activities of James Hoffa in an earlier case involving Hoffa — known as the Test Fleet case. His employment extended from January, 1961, to August, 1964. The motion recited some 82 specifications of alleged misconduct — • tapping telephone .lines, “bugging” of hotel rooms, and like electronic surveillance. The government’s response was supported by affidavits substantially denying charges of plaintiffs’ motion and its supporting affidavits. The District Judge held that an evidentiary hearing should be had to resolve the factual issues framed by the opposing affidavits relating to 53 paragraphs of the motion. As to the other 19 paragraphs of the motion, he held that the allegations thereof were not relevant to the trial at which appellants were convicted, and they were accordingly stricken. On March 27, 1967, with the agreement of all counsel, the evidentiary hearing was set to go forward on May 8, 1967, 1. The stricken allegations. The stricken allegations relate, a) to alleged electronic surveillance of the Florida hotel rooms of James Hoffa and his attorney in 1961 before the happening of any of the events involved in the prosecutions before us; b) to some alleged tapping of the residence telephone of a William Buffalino, one of Hoffa’s attorneys, by Detroit police officers, but the only claim of involvement of federal officers was an unsupported expression by an affiant Detroit officer that he “was under the belief that these were taps for the federal government”; and c) to the electronic surveillance of two telephone conversations involving one Charles O’Brien, apparently an associate of Hoffa, but as the District Judge correctly found, “Exhibits to the defendants’ motion in this respect reflect that the two monitored conversations of O’Brien related only to matters regarding his own pending trial.” We agree with the District Judge that such allegations were not sufficiently relevant or material to the trial of the defendants-appellants to require taking testimony concerning them. They were properly stricken. 2. Denial of continuance and discontinuance without prejudice. On the day finally set for the evi-dentiary hearing — May 9, 1967 — and without earlier request or notice, defendants’ counsel moved for a 90-day continuance on the ground that, “Within the last several days, certain information has come to the attention of counsel. This information is of such a nature that counsel feel it would be improper for them to proceed with the Motion at this time. This information has been communicated to this defendant, [Hoffa] and counsel are authorized in his behalf to ask this Court that this matter be continued for a period of ninety days. Counsel and this defendant feel that to proceed without being fully informed on the matters that were brought to their attention within the last few days would be most improp-' er.” The other appellants joined in this motion. Invited to do so by the District Judge, counsel did not elaborate upon the motion or disclose the nature of the “certain information” that had come to their attention. Neither did counsel disclose what circumstance forbade their disclosing the “certain information”. Upon the District Judge’s indication that no adequate ground for continuance had been shown, appellants’ counsel moved in the alternative that they be allowed to discontinue their motion for new trial without prejudice. The District Judge observed: “Gentlemen, I believe that the motion to be allowed to dismiss should be overruled. This matter has been pending now for several months and the hearing date set for today was the date which was requested by counsel for the defendants after the Court had suggested an earlier date. I believe the motion should be overruled, the motion to dismiss, [without prejudice] and we should proceed.” Appellants declined to proceed, and the District Judge denied the motion for continuance and for leave to discontinue without prejudice. Thereafter, and on May 19, 1967, the judge entered a final order dismissing and denying the motion for a new trial. We consider that denial of the motions for continuance and for leave to dismiss without prejudice were matters addressed to the discretion of the District Judge, which was not in this regard abused. His final order concluded: “It is accordingly Ordered that the motion for new trial filed upon behalf of each defendant upon February 28, 1967, as amended upon April 3, 1967, be and the same is hereby denied as to each ground thereof, the same having been found to be without merit by.the Court, and the motion is accordingly dismissed.” The relevant factual allegations of appellants’ motion having been put in issue by the government’s affidavits traversing them, the burden was on appellants to go forward with the proofs to sustain their charges; declining to do so, it was proper for the District Judge to deny and dismiss the motion. In their address to us, appellants express concern that such order would bar any further motions to the District Court should it later be discovered that the government had been guilty of misconduct or electronic surveillance other than that described in the fourth motion for new trial. We do not consider the District Court’s disposition of the .matter as a holding, as a matter of law, that conduct such as that described in appellants’ motion would not, if proven, be grounds for a new trial. Given the opportunity to prove the motion’s allegations, appellants declined to do so. It was for that reason the motion was denied, and we affirm for that reason. Judgment affirmed. . On February 20, 1967, the Supreme Court denied appellants’ motion to vacate judgment, which alleged violation of their constitutional rights by the use of electronic devices, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880.

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

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

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

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

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 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?

George A. CUNNINGHAM, Appellant, v. Jerome GANS, d/b/a Atlanta Engineering Company, et al., Appellees. No. 50, Docket 73-1747. United States Court of Appeals, Second Circuit. Argued Nov. 1, 1974. Decided Dec. 2, 1974. John R. Mitchell, Charleston, W. Va. (Paul Stone, and Di Trapano, Mitchell, Lawson & Field, Charleston, W. Va., on the brief), for appellant. David D. Rothbart, Brooklyn, N.Y. (Abraham-Reingold, and Glabman, Ru-benstein, Reingold & Rothbart, Brooklyn, N.Y., on the brief), for appellee Gans. Irwin H. Haut, New York City (Sidney A. Schwartz, and Alexander, Ash, Schwartz & Cohen, New York City, on the brief), for appellees Kahn, Green-berg, Donald N. Boas, James M. Boas, and Central Iron Manufacturing Co., Inc. Before LUMBARD, MOORE and MANSFIELD, Circuit Judges. LUMBARD, Circuit Judge: George Cunningham appeals from a judgment of the Eastern District, dismissing his complaint and directing a verdict for defendants. He claims that rulings by the trial judge, refusing to admit certain pieces of evidence as business records, refusing to receive the testimony of two witnesses offered by Cunningham as experts, and refusing to allow Cunningham to examine certain witnesses as adverse witnesses, were erroneous and were unduly restrictive and that they prevented Cunningham from establishing his tort and contract claims against defendants. Since we are in basic agreement with plaintiff’s position, we reverse and remand for new trial. Cunningham was employed by M. K. Kellogg Co. (Kellogg) as a pipe-fitter on a construction project at Belle, West Virginia, where an ammonia plant was being built for E. I. duPont de Nemours Co. On September 1, 1966, Cunningham helped erect a ten-inch steel pipe that connected a furnace to a boiler line. The pipe was over forty feet long, weighed several thousand pounds, and was to be installed approximately thirty feet above the ground. In order to install the pipe it was necessary to use pipe hangers, which consisted in part of clamps that were fastened around the pipe. After Cunningham had completed the installation of one such clamp, the devices used temporarily to hold the pipe in place were released. Almost immediately thereafter the clamp that Cunningham had installed broke and the pipe fell downward. Cunningham was knocked from his perch and he was injured when he fell thirty feet to the ground. Cunningham filed this diversity action in August 1968 against the principals of Atlanta Engineering Co. (Atlanta), the alleged seller of the clamp, and Central Iron Manufacturing Co. (Central), the alleged manufacturer of the clamp. In his complaint Cunningham claimed that the clamp that broke and caused his injury was negligently designed and manufactured and that the defendants breached an express warranty of fitness and an implied warranty of fitness and merchantability. After extensive pre-trial proceedings, the case came to trial in January 1973. At the trial it became apparent that Cunningham faced several very difficult hurdles that had to be surmounted if he was to affix liability on the defendants. The problems stemmed from the fact that the clamp that broke was no longer available and could not be introduced into evidence and the fact that there was uneontroverted evidence that the clamp intended for use in hanging the pipe in question could not be found on the morning of the installation, and that another, lighter clamp had been substituted. Thus, there was no direct evidence that the clamp that broke was manufactured or sold by defendants, while there was evidence to show that a lighter, less sturdy clamp than called for in the plans had been used. In an attempt to overcome these problems Cunningham endeavored to show that Atlanta was the only firm that had contracted to supply Kellogg with clamps, that no clamps were bought in West Virginia, and that no clamps were manufactured at the job site. If Cunningham could establish these facts, he would have shown through circumstantial evidence that it was probable that the clamp that broke was made and sold by defendants. In order to overcome the problem caused by the substitution of a lighter clamp, Cunningham attempted to show that the clamp actually used, as described by the witnesses who saw it, would have held a pipe of the size involved here, if that clamp met defendants’ warranted specifications. In order to establish these contentions Cunningham offered several documents into evidence and called two witnesses as experts. After initially allowing some of the documents into evidence, the trial judge changed his mind and ruled that they were all inadmissible. In the case of one of plaintiff’s experts, the judge ruled that he was not an expert. In the case of the other expert, the judge restricted the extent to which Cunningham was allowed to ask him hypothetical questions. Exhibit 22 Exhibit 22 was a material status report on the Belle construction project, compiled by employees of Kellogg, that listed all of the purchase orders for that project. The exhibit was crucial to plaintiff’s case because it apparently established that all of the clamps ordered for the project were supplied by Atlanta. Cunningham established that Mr. Connell, the Kellogg employee who had accompanied the document to the trial, was familiar with the internal records of Kellogg, that Kellogg kept records concerning the materials ordered for a project in the ordinary course of its business, and that Exhibit 22 was that record for the Belle project. Defendants - attacked Exhibit 22 as not falling under the business records exception to the hearsay rule because Connell did not personally take Exhibit 22 from the company files (his superior gave it to him), was not positive that he had seen Exhibit 22 before it was handed to him, and was not employed in the records or purchasing division of Kellogg. The judge initially ruled Exhibit 22 was admissible, but the following day he changed his mind and refused to allow it into evidence. While matters such as these are usually left to the discretion of the trial judge, it appears that the judge in this case based his decision on what we feel was an erroneous reading of two cases: Palmer v. Hoffman, 318 U.S, 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Hartzog v. United States, 217 F.2d 706 (4th Cir. 1954). This fact, together with our' feeling that the evidentiary rulings in this case were unduly restrictive, requires us to reverse the judgment. In Palmer, the Supreme Court excluded from evidence a statement made by the engineer of a train to a railroad company official following a train accident because the statement was not made in the ordinary course of the railroad’s business, which the Court said was railroading, not investigating accidents. In doing so, however, the Court noted that the business records exception “should of course be liberally interpreted so as to do away with the anachronistic rules which gave rise to its need.” Palmer v. Hoffman, supra, 318 U.S. at 115, 63 S.Ct. at 481. In Hartzog, the Fourth Circuit refused to allow into evidence as business records the written summaries of business records prepared by a deceased government investigator in anticipation of litigation. Both of these decisions are based on a desire to exclude from the business records exception to the hearsay rule statements made or prepared with an eye toward litigation. Neither of these cases even faintly suggests that Exhibit 22 was not admissible as a business record since it clearly was prepared in the course of Kellogg’s business and not for litigation. Our recent cases also call for the admission of the Exhibit. In United States v. Rosenstein, 474 F.2d 705 (1973), we held that it was not required that the witness introducing the records had personally kept the records. It was enough that “someone who is sufficiently familiar with the business practice [testifies] that [the] records were made as part of that practice.” United States v. Rosen-stein, supra, at 710. See also United States v. Dawson, 400 F.2d 194, 198 (2d Cir. 1968). Connell testified that he was familiar with Kellogg’s procedures and that Exhibit 22 was made in accordance with those procedures. There was no reason to believe that the record was unreliable and it should have been admitted. Exhibit 23 Mr. Connell also produced a xerox copy of an isometric drawing that depicted the pipe that was being installed when the accident occurred. The drawing was an important element in Cunningham’s case: he intended to use it to establish the weight of the pipe. It will be remembered that he had to establish that weight in order to show that the clamp that broke should have been able to support that weight. Connell testified that the xeroxed copy was a fair representation of the drawings that were used on the Belle project and that the copy had been made from the original which was in the files of Kellogg Co. The defendants’ objections were similar to those raised against Exhibit 22. Once again, we feel, for the reasons discussed above, that Exhibit 23 should have been admitted. Exhibit 24 Exhibit 24 consisted of documents that tended to show that Kellogg had problems with several of the clamps purchased from Atlanta. One of the documents was a laboratory report that indicated that the wrong kind of steel was used in manufacturing the clamps. Another indicated that Atlanta replaced many of the clamps because of the problems that Kellogg had with them. Cunningham sought to use these documents to establish that the clamp that broke was defective. However, the judge ruled that these documents (which were all dated within two months of Cunningham’s injury) were inadmissible because they did not pertain to the specific clamp that plaintiff claimed caused his injury. Since plaintiff established that all of the clamps supplied by Atlanta had been delivered prior to the date of the accident, it seems to us that these documents, which dealt with the clamps supplied by Atlanta, were relevant and should have been admitted. Of course, Cunningham still must establish that Atlanta did supply the clamp that broke. If the jury decides that Atlanta did supply the clamp in question, they should be able to consider evidence that showed that other clamps supplied by Atlanta were defective. As expressed by McCormick: “[T]he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence.” C. McCormick, Evidence § 185, at 437 (1972). We think that Exhibit 24 easily meets this test and should have been admitted into evidence. John Young as an Expert Witness Plaintiff attempted to have John Young give an expert opinion as to whether the clamp actually used should have been able to support the pipe that was being installed. In order to qualify Young as an expert in the field of pipe-hanger construction, plaintiff showed that Young had been a pipefitter for 33 years, had designed dies for making pipe-hangers, had made many thousands of hangers over a period of 16 years, had spent 17 years working exclusively as a pipefitter, and had been a general foreman in charge of pipefitting at the Belle plant. Defendants objected that these qualifications were not enough to establish Young as an expert, largely because Mr. Young was not a metallurgist and because some of his experience in the field had taken place many years ago. We do not find these objections persuasive. Indeed, the latter objection only establishes that Young had been around a long time. Moreover, in light of Young’s long practical experience in the field, we do not think that his lack of metallurgic training disqualifies him as an expert witness. While we normally allow a trial judge considerable freedom in deciding whether a witness qualifies as an expert, see, e. g., Butkowski v. General Motors Corp., 497 F.2d 1158, at 1159 (1974), we feel in this case that Young should have been allowed to testify as an expert. Young’s extensive experience in this field certainly qualified him as a person who could aid the jury in the resolution of the question of how much weight the clamp actually used should have been able to support. See generally C. McCormick, Evidence § 13 (1972). Of course, the defendants are free to cross-examine Young to develop any shortcomings in his qualifications. Emanuel Silkiss as an Expert Witness Cunningham called Emanuel Silkiss as an expert witness to establish that the clamp that broke should have been able to support the pipe. In his questioning of Silkiss plaintiff’s attorney was greatly hindered by defense counsels’ objections to the hypothetical questions he was posing. Although those questions sometimes covered over a page of printed transcript defense counsel always objected and claimed that plaintiff’s attorney had misstated a minor point. These objections were sustained by the trial judge, and as a result Cunningham was unable to elicit helpful testimony from Silkiss. We feel the trial court’s rulings were unduly restrictive. On retrial a better trial procedure would be for Cunningham’s attorney to ask shorter, less detailed hypothetical questions. Then defense counsel should attack the expert’s testimony by showing his conclusions would be different if certain facts were also assumed or if certain assumed facts were changed rather than by voicing picky objections to complicated hypothetical questions. Such a procedure has been advocated by many authorities. See, e. g., Proposed Federal Rule of Evidence 705 and advisory committee’s note; C. McCormick, Evidence § 16 (1972). Adverse Witnesses Cunningham also claims that he should have been allowed to call, and then question as adverse witnesses, two persons who were formerly employed by Central. Since these two men were never directors, officers or managing agents of Central, the application of rule 43 which allows a party to call and treat certain individuals as adverse witnesses is unclear. See 9 C. Wright and A. Miller, Federal Practice & Procedure, § 2413, at 369-70 (1971). However, we need not determine that issue since Cunningham does not show how he was prejudiced by his inability to treat the witnesses as adverse. He only suggests that one witness testified differently at trial than he did at the time of his deposition. Since rule 32(a)(1) allows any party to impeach a witness who deviates from his deposition answers at trial, we do not see how Cunningham was prejudiced. Fed.R.Civ.P. 32(a)(1). See also United States v. Freeman, 302 F.2d 347 (2d Cir. 1962) (party may impeach own witness). Because the trial judge’s erroneous rulings on the admissibility of business records and the appropriateness of expert testimony were unduly restrictive, plaintiff was prevented from establishing his case. We think that the offered evidence should have been admitted, and that if it had been, plaintiff would have presented sufficient evidence to require submission of the case to a jury. Reversed and remanded for a new trial before a different judge. . The business-records exception to the hearsay rule is statutorily established in 28 U.S.C. § 1732: “(a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence,, or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. . . . ”

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

CROWLEY v. ICKES, Secretary of the Interior. No. 7166. United States Court of Appeals for the District of Columbia. Decided Oct. 2, 1939. James E. Trask, of St. Paul, Minn., and T. S. Plowman, of Washington, D. C., for appellant. Nathan R. Margold, Sol., and Jackson E. Price, Asst. Sol., both of the Department of the Interior, for appellee. Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices. MILLER, Associate Justice. This case arises under the War Minerals Relief Act. It involves a claim for losses alleged to have been suffered by The Merritt Development Company during the period of the World War as a result of mining operations carried on under government stimulation. Loss was claimed in the amount of $665,926.33. The Secretary of the Interior made an award of $17,-585.07 but disallowed the remainder of the claim. Appellant, Receiver of The Merritt Development Company, petitioned the lower court for a review of the Secretary’s decision. That court directed the Secretary to reexamine some items of the claim and dismissed appellant’s petition as to the others. This appeal is from that part of the decree which dismissed the petition and held that as to the items last mentioned the adjudication made by the Secretary of the Interior was proper. The War Minerals Relief Act, as amended, makes the decision of the Secretary of the Interior on all questions of fact “conclusive and not subject to review by any court”; but provides that judicial review may be had of his final decision upon any question of law. If the Secretary’s decision in the present case, therefore, concerning any item, rests upon an erroneous conclusion as to a point of law it is subject to review. On the other hand, if his decision is based upon a determination of fact and is consistent with the law governing the question, we must assume that he has properly performed his duty. Under such circumstances his decision is conclusive. An examination of the Secretary’s decision reveals that, as to two items of loss claimed on this appeal, it is based upon an erroneous interpretation of the applicable law. The first item is for taxes paid on the property involved during the years 1917 and 1918. It is admitted that the period of stimulation covered the time for ■vyhich the taxes were assessed and within which they were paid. Upon this point the Secretary’s decision reads as follows: “Claimant objects to deduction of the item of taxes for the years 1917 ($14,845.15) and 1918 ($18,073.37) a total of $32,918.52. It is insisted that this is an ordinary operating expense necessarily incurred in carrying on the business; that the taxes on this property for 1916 were only $2,687.84 and that the levy was increased as the result of expanded development and augmented production, all of which was directly due to Government stimulation. Commenting on this item the Commissioner said: ‘The charge for taxes is deducted because under the terms of the lease, taxes and minimum royalty would have been exacted from claimant even though there had been no Government interference.’ The Department believes where an increase of taxes occurs because of expansion of an operation as a result of stimulation that the increased assessment or levy should be treated as an allowable operating expense. It appears, however, that under the Minnesota laws (sections 1972, 1979, and 1988, compiled laws of Minnesota, 1913) taxes on mineral property are determined by the amount of ore proven, etc. Late in 1916 and early in 1917 prior to stimulation claimant had proven the ore body on the High Grade lease. In fact drilling on the High Grade property commenced in the fall of 1914. Ore was mined therefrom in marketable quantities as early as February, 1917, and there was very substantial development on the property prior to April 16, 1917. Apparently, however, the' ‘drillings’ which had proven the lease, not having been filed with the tax commission or other proper authorities, the taxes remained at a nominal figure. On the property' being opened up in the spring of 1917 the tax assessor ascertained the approximate tonnage of the lease and acted accordingly. See section 1989, Laws of Minnesota, 1913. So far as the record shows the development policy inaugurated in 1916 remained in the main unaffected by stimulation. There was a decided change in „the policy and important extensions were made after Merritt’s visit to Washington in March, 1918. Additional shafts were sunk and a much larger tonnage assured. Under the circumstances it would appear that the difference in taxes between the years 1917 and 1918, $3,228.22, should be considered.” It will be noted from the excerpt quoted that the Secretary adopted as a statement of the applicable law that “ * * * where an increase of taxes occurs because of expansion of an operation as a result of stimulation * * * the increased assessment or levy should be treated as an allowable operating expense”; and determined as a fact that expansion of operations resulted from stimulation in March, 1918. The Secretary relies upon our decision in Wilbur v. United States ex rel. Chestatee Pyrites & Chemical Corp. to support his statement of law and his determination of this item. However, that decision says nothing about expansion of operation. In fact, it states an entirely different rule, which if literally applied would require an allowance of the total increase of taxes paid — approximately $26,000. In that case we said: “ * * * the difference between the tax paid on property embraced in this governmental enterprise prior to the stimulation period and the tax paid during that period on the same property * * * ” should be treated as a proper item in the determination of net loss. However, the formula thus stated was intended to be applied to the facts of that case. It was not intended, thereby, to substitute a legal formula — as a rule of universal application— in place of the fact determination required to be made by the Secretary. In this case it is his duty to consider the item of taxes paid and to determine as a matter of fact what part thereof, if any, constituted net loss suffered by reason of good faith expenditure of money in “producing or preparing to produce, either manganese, chrome, pyrites, or tungsten in compliance with the request or demand of the Department of the Interior * * * .” Stimulation being admitted as of April 16, 1917, there is no more reason for requiring expansion of an operation as a test of good faith expenditure, in the case of taxes paid, than in the case of any other item of expense. Consequently, the Secretary’s adjudication of this item cannot stand. Again, in our view, the Secretary’s adjudication concerning the cost of a public accountant’s report is based upon an erroneous interpretation of the applicable law. As to this item, the decision of the Secretary reads as follows: “Marwick, Mitchell, public accountants’ report, 1915. Counsel for claimant insists that this item is foreign to any promotion expenses or any expenses in connection with the sale of stock; that the report was required by bonding company before furnishing bonds for the claimant company’s treasurer. It is noted in this regard, however, that the Merritt Development Company was organized in June, 1914, and a treasurer chosen at that time. Apparently the report in question was not requested prior to 1918 and was not made until April of that year. The accounts of the company were audited for the period of June 2, 1914, the date of incorporation, to December 31, 1917. There is nothing in the report to indicate that it was prepared for the purpose of satisfying a bonding company. The report is merely a complete resume of the history, organization, operation and accounts, together with balance sheet, etc., for the period before mentioned. Under the circumstances it could only be inferred that it was for the information and enlightenment of the officers and stockholders. It is observed that a similar report was made by Richard Dougherty and Company for the period of January 1, 1918, to December 31, 1918. Under the circumstances this item is believed inadmissible as a legitimate operating expense(s) within the meaning of the relief act.” From the Secretary’s statement it appears, therefore, that the report covered the operations of the company during a portion of the period of stimulation; it was requested during the year 1918 and made in April of that year — both during the period of stimulation. Rejection of the item is based upon a conclusion of law applied to the facts as stated, i. e., “Under the circumstances this item is believed inadmissible as a legitimate operating ex-penséis) within the meaning of the relief act.” But an audit and report on the financial and other conditions of a business may be vitally essential to its proper management. Failure to obtain such an audit may, in a particular case, be a violation of the duty of the corporate officers properly to administer the corporate affairs. Certainly, it cannot be said, as a rule of law, that an audit for the information of those directing the affairs of a corporation is a matter foreign to the legitimate operation of the enterprise. Consequently, the decision of the Secretary as to this item cannot stand. We have examined each of appellant’s other assignments and contentions and find them to be without merit. A careful reading of the Secretary’s decision, and of the memorandum of the lower court, reveals that the decision — so far as concerns each of the remaining items presented on this appeal — was not rested upon a mistaken interpretation or application of the law. Under the circumstances, the decision of the Secretary, as to these items, being based upon determinations of fact, is conclusive. The decree of the lower court and the decision of the Secretary will be modified as indicated herein. Modified and, as modified, affirmed. Act of March 2, 1919, 40 Stat. 1272, as amended by Act of November 23, 1921, 42 Stat. 322, 50 U.S.C.A. § 80 note. See Act of February 13, 1929, 45 Stat. 1166. Act of March 2, 1919, 40 Stat. 1272, as amended by Act of February 13, 1929, 45 Stat. 1166. Wilbur v. United States ex rel. Chestatee Pyrites & Chemical Corp., 288 U.S. 97, 100, 53 S.Ct. 293, 77 L.Ed. 638. Crimora Manganese Corp. v. Wilbur, 60 App.D.C. 55, 58, 47 F.2d 417, 420, certiorari denied 283 U.S. 861, 51 S.Ct. 654, 75 L.Ed. 1466; Aguilera v. Ickes, 62 App.D.C. 226, 227, 66 F.2d 206, 207, certiorari denied, 290 U.S. 684, 54 S.Ct. 121, 78 L.Ed. 590. See Work v. United States ex rel. Rives, 267 U.S. 175, 181, 182, 45 S.Ct. 252, 69 L.Ed. 561; Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 70 L.Ed. 738; Ex Parte Bakelite Corp., 279 U.S. 438, 451, 452, 49 S.Ct. 411, 73 L.Ed. 789; Murray’s Lessee v. Hoboken Land and Imp. Co., 18 How., U.S., 272, 284, 15 L.Ed. 372. Cf. Luckenbach Steamship Co. v. United States, 272 U.S. 533, 537, 538, 47 S.Ct. 186, 71 L.Ed. 394; United States v. Esnault-Pelterie, 303 U.S. 26, 58 S.Ct. 412, 82 L.Ed. 625. 61 App.D.C. 212, 213, 59 F.2d 887, 888. 40 Stat. 1272, as amended, 42 Stat. 322, 50 U.S.C.A. § 80 note.

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

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

NATIONAL LABOR RELATIONS BOARD v. GAMBLE ENTERPRISES, INC. No. 238. Argued November 19, 1952. Decided March 9, 1953. Bernard Dunau argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, George J. Bott, David P. Findling and Mozart G. Ratner. Frank C. Heath argued the cause for respondent. With him on the brief was H. Chapman Rose. Henry Kaiser, Gerhard P. Van Arkel and Eugene Gress-man filed a brief for Local No. 24, American Federation of Musicians, as amicus curiae, supporting petitioner. Mr. Justice Burton delivered the opinion of the Court. This case is a companion to American Newspaper Publishers Assn. v. Labor Board, ante, p. 100. The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8 (b) (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, when it insists that the management of one of an interstate chain of theaters shall employ a local orchestra to play in connection with certain programs, although that management does not need or want to employ that orchestra. For the reasons hereafter stated, we hold that it does not. While the circumstances differ from those in the preceding case, the interpretation there given to § 8 (b) (6) is controlling here. For generations professional musicians have faced a shortage in the local employment needed to yield them a livelihood. They have been confronted with the competition of military bands, traveling bands, foreign musicians on tour, local amateur organizations and, more recently, technological developments in reproduction and broadcasting. To help them conserve local sources of employment, they developed local protective societies. Since 1896, they also have organized and maintained on a national scale the American Federation of Musicians, affiliated with the American Federation of Labor. By 1943, practically all professional instrumental performers and conductors in the United States had joined the Federation, establishing a membership of over 200,000, with 10,000 more in Canada. The Federation uses its nationwide control of professional talent to help individual members and local unions. It insists that traveling band contracts be subject to its rules, laws and regulations. Article 18, § 4, of its ByLaws provides: “Traveling members cannot, without the consent of a Local, play any presentation performances in its jurisdiction unless a local house orchestra is also employed.” From this background we turn to the instant case. For more than 12 years the Palace Theater in Akron, Ohio, has been one of an interstate chain of theaters managed by respondent, Gamble Enterprises, Inc., which is a Washington corporation with its principal office in New York. Before the decline of vaudeville and until about 1940, respondent employed a local orchestra of nine union musicians to play for stage acts at that theater. When a traveling band occupied the stage, the local orchestra played from the pit for the vaudeville acts and, at times, augmented the performance of the traveling band. Since 1940, respondent has used the Palace for showing motion pictures with occasional appearances of traveling bands. Between 1940 and 1947, the local musicians, no longer employed on a regular basis, held periodic rehearsals at the theater and were available when required. When a traveling band appeared there, respondent paid the members of the local orchestra a sum equal to the minimum union wages for a similar engagement but they played no music. The Taft-Hartley Act, containing §8 (b)(6), was passed, over the President’s veto, June 23, 1947, and took effect August 22. Between July 2 and November 12, seven performances of traveling bands were presented on the Palace stage. Local musicians were neither used nor paid on those occasions. They raised no objections and made no demands for “stand-by” payments. However, in October, 1947, the American Federation of Musicians, Local No. 24 of Akron, Ohio, here called the union, opened negotiations with respondent for the latter’s employment of a pit orchestra of local musicians whenever a traveling band performed on the stage. The pit orchestra was to play overtures, “intermissions” and “chasers” (the latter while patrons were leaving the theater). The union required acceptance of this proposal as a condition of its consent to local appearances of traveling bands. Respondent declined the offer and a traveling band scheduled to appear November 20 canceled its engagement on learning that the union had withheld its consent. May 8, 1949, the union made a new proposal. It sought a guaranty that a local orchestra would be employed by respondent on some number of occasions having a relation to the number of traveling band appear-anees. This and similar proposals were declined on the ground that the local orchestra was neither necessary nor desired. Accordingly, in July, 1949, the union again declined to consent to the appearance of a traveling band desired by respondent and the band did not appear. In December an arrangement was agreed upon locally for the employment of a local orchestra to play in connection with a vaudeville engagement on condition that the union would consent to a later traveling band appearance without a local orchestra. Respondent’s New York office disapproved the plan and the record before us discloses no further agreement. In 1949, respondent filed charges with the National Labor Relations Board asserting that the union was engaging in the unfair labor practice defined in § 8 (b)(6). The Regional Director of the Board issued a complaint to that effect. After a hearing the trial examiner found respondent to be engaged in interstate commerce and recommended that the Board assert jurisdiction. 92 N. L. R. B. 1528, 1538, 1540. On the merits, he concluded that the union’s conduct “was nothing more or less than a proposal for a stand-by engagement,” but he was not convinced that the union’s demands were an “attempt to cause” any payment to be made “in the nature of an exaction.” He, accordingly, recommended dismissal of the complaint. Id., at 1549, 1550, 1551. The Board unanimously agreed to assert jurisdiction. With one dissent, it also ordered dismissal of the complaint, but it did so on grounds differing from those urged by the trial examiner. Id., at 1528-1529. It said: “On the contrary, the instant record shows that in seeking employment of a local orchestra, the . . . [union] insisted that such orchestra be permitted to play at times which would not conflict with the traveling bands’ renditions. Thus, the record herein does not justify a finding that, during the period embraced by the charges herein, the . . . [union] was pursuing its old policy and was attempting to cause the charging party to make payments to local musicians for services which were not to be performed. “In our opinion, Section 8 (b) (6) was not intended to reach cases where a labor organization seeks actual employment for its members, even in situations where the employer does not want, does not need, and is not willing to accept such services. Whether it is desirable that such objective should be made the subject of an unfair labor practice is a matter for further congressional action, but we believe that such objective is not proscribed by the limited provisions of Section 8 (b)(6). “Upon the entire record in the case, we find that the . . . [union] has not been guilty of unfair labor practices within the meaning of Section 8 (b)(6) of the Act.” Id., at 1531, 1533-1534. The Court of Appeals for the Sixth Circuit did not disturb the Board’s finding that the union sought actual employment for its members, but it held, nevertheless, that the union was engaging in a labor practice declared unfair by § 8(b) (6). It, therefore, set aside the Board’s order of dismissal and remanded the cause. 196 F. 2d 61. For reasons stated in the American Newspaper case, ante, p. 100, we granted certiorari. 344 U. S. 814. We denied the union’s motion to intervene, 344 U. S. 872, but, with the consent of the parties, it filed a brief as amicus curiae, supporting the Board. We accept the finding of the Board, made upon the entire record, that the union was seeking actual employment for its members and not mere “stand-by” pay. The Board recognized that, formerly, before §8 (b)(6) had taken effect, the union had received “stand-by” payments in connection with traveling band appearances. Since then, the union has requested no such payments and has received none. It has, however, requested and consistently negotiated for actual employment in connection with traveling band and vaudeville appearances. It has suggested various ways in which a local orchestra could earn pay for performing competent work and, upon those terms, it has offered to consent to the appearance of trav- ■ eling bands which are Federation-controlled. Respondent, with equal consistency, has declined these offers as it had a right to do. Since we and the Board treat the union’s proposals as in good faith contemplating the performance of actual services, we agree that the union has not, on this record, engaged in a practice proscribed by § 8 (b)(6). It has remained for respondent to accept or reject the union’s offers on their merits in the fight of all material circumstances. We do not find it necessary to determine also whether such offers were “in the nature of an exaction.” We are not dealing here with offers of mere “token” or nominal services. The proposals before us were appropriately treated by the Board as offers in good faith of substantial performances by competent musicians. There is no reason to think that sham can be substituted for substance under § 8 (b) (6) any more than under any other statute. Payments for “standing-by,” or for the substantial equivalent of “standing-by,” are not payments for services performed, but when an employer receives a bona fide offer of competent performance of relevant services, it remains for the employer, through free and fair negotiation, to determine whether such offer shall be accepted and what compensation shall be paid for the work done. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to it. Reversed and remanded. “Sec. 8. “(b) It shall be an unfair labor practice for a labor organization or its agents— “(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. . . .” 61 Stat. 140-142, 29 ü. S. C. (Supp. V) §158 (b)(6). Countryman, The Organized Musicians, 16 U. of Chi. L. Rev. 56-85, 239-297. Article 18, §3, provides: “Traveling members appearing in acts with vaudeville unit or presentation shows are not permitted to play for any other-acts on the bill without consent of the Local.” The union suggested four plans. Each called for actual playing of music by a local union orchestra in connection with the operation of the theater: (1) to play overtures, intermissions and chasers; (2) to play the music required for vaudeville acts not an integral part of a traveling band ensemble; (3) to perform on stage with vaudeville acts booked by respondent; or (4) to play at half of the total number of respondent’s stage shows each year. In addition to the legislative history cited in the American Newspaper case, the following explanation by Senator Ball emphasizes the point that § 8 (b) (6) proscribes only payments where no work is done. As a member of the Senate Committee on Labor and Public Welfare, and as one who had served as a Senate conferee, he made it on the floor of the Senate immediately preceding the passage of the bill, over the President’s veto, June 23, 1947: “There is not a word in that [§ 8 (b)(6)], Mr. President, about ‘featherbedding.’ It says that it is an unfair practice for a union to force an employer to pay for work which is not performed. In the colloquy on this floor between the Senator from Florida [Mr. Pepper] and the Senator from Ohio [Mr. Taft], before the bill was passed, it was made abundantly clear that it did not apply to rest periods, it did not apply to speed-ups or safety provisions, or to anything of that nature; it applied only to situations, for instance, where the Musicians’ Federation forces an employer to hire one orchestra and then to pay for another stand-by orchestra, which does no work at all.” (Emphasis supplied.) 93 Cong. Rec. 7529.

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?

WGN, Inc., v. FEDERAL RADIO COMMISSION et al. No. 5939. Court of Appeals of the District of Columbia. Argued Nov. 6, 1933. Decided Dec. 11, 1933. Louis G. Caldwell and Arthur W. Sehar-feld, both of Washington, D. C., for appellant. George B. Porter, Fanney Neyman, Ben S. Fisher, and Ralph L. Walker, all of Washington, D. C., for appellee. Paul D. P. Spearman, of Washington, D. C., for interveners. Before MARTIN, Chief Justice, and ROBB, 1IITZ, and GRONER, Associate Justices. MARTIN, Chief Justice. This is an appeal from a decision of the Federal Radio Commission, granting the applications of broadcasting stations WBBM and KFAB for a modification of their broadcasting licenses so as to permit them to operate in synchronization during .certain night hours. Synchronization is the operation of two broadcasting stations simultaneously upon the same frequency, and with identical programs. It is a comparatively new advancement in radio operation, and is not yet regularly recognized as a method of broadcasting by the Radio Commission. The appellant, WGN, Inc., owns and operates broadcasting station WGN, located at Chicago, 111., operating full time on a cleared channel of 720 kilocycles with power of 2-3 kilowatts. It is a subsidiary of the Tribune Company, the publisher of the Chicago Tribune. Broadcasting station WBBM is a subsidiary of the Columbia Broadcasting System, Inc., located at Chicago, 111., owuei and operated by WBBM Broadcasting Corporation. Broadcasting station KFAB, located at Lincoln, Neb., is owned and operated by the KFAB Broadcasting Company. These two stations were both licensed for the use of 770 kilocycles cleared channel; the former with 26-kilowatt power, the latter with 5-kilowatt power (C.P. 25 kilowatts). These stations divided time upon this channel; WBBM having four-sevenths and KFAB three-sevenths time of operation. By mutual agreement they operated simultaneously in the daytime and shared time at night by an arrangement whereby WBBM had the evening hours from 7 to 10 p. m. and KFAB had the hours from 10 p. m. to midnight. On March 30, 1932, these two stations severally filed with the Commission interrelated applications requesting authority to operate together in synchronization from 10’ p. m. to midnight; no change being requested for daytime operation. The effect of the requested modification of their licenses, if granted, would be to authorize WBBM to broadcast alone on 770 kilocycles from 7 to 10 p. m. at night, and in synchronization with KFAB from 10 p. m. to midnight, thus in effect giving WBBM full time of operation. No change was requested in respect to the operation of KFAB, except that from 10 p. in. to midnight it would broadcast in synchronization with WBBM instead of independently as theretofore. The Commission upon receipt of the applications designated them for public hearing before an examiner duly appointed. The examiner after hearing testimony of various expert witnesses reported in favor of granting the applications experimentally; ihat this was the first complete and satisfactory synchronization experiment proposed to the Commission in which the stations to be synchronized were so separated that their goo-d service areas did not overlap; that the synchronization operations proposed ,by the applicants would be conducted by the executives and engineers of the applicants in conjunction with those of the Columbia Broadcasting System and of the Bell Telephone Laboratories, Inc.; that the training and experience as well as the financial resources available to these parties for conducting such operations would add considerably to tho existing knowledge upon the subject of common frequency broadcasting; that these tests would bo conducted in such a way as to prove or disprove tho practicability of common frequency broadcasting oveicoming operating conditions; and that this would he important in advancing the science and art of broadcasting. The examiner stated that accord hig to tho evidence tho service rendered by the stations separately was less satisfactory than might be expected during at least two-thirds of the time if the stations were permitted to operate synchronously. The report of the examiner was considered by the Commission and was approved. The Commission accordingly ordered that the applications for a modification of the station licenses of WBBM and KFAB to synchronize the two stations during the specified night hours should be and the same was granted experimentally. Thereupon station WGN appealed from the Commission’s decision, under section 36 of the Radio Act of 3927, as amended July 1,1930 (46 Stat. 844, 47USCA § 90 (a) (3), which provides in part as follows: “ (a) An appeal may he taken, in the manner hereinafter provided, from decisions of the commission to the Court of Appeals of the District of Columbia in any of the following cases: * * * “(3) By any other person, firm, or corporation aggrieved or whose interests are adversely affected by any decision of the commission granting or refusing any such application or by any decision of the commission revoking, modifying, or suspending an existing station license.” It is not claimed by WGN that any interference will result between the operation of its station and the synchronized broadcasting of the other two stations, if such be permitted. So far as appears, there liad been no such interference between WGN operating upon 720 kilocycles and WBBM operating alone upon 770 kilocycles, although both were located in Chicago, and it does not appear that the proposed synchronization of WBBM and KFAB from 10 p. m. to midnight would cause any interference between the stations. But it is claimed by WGN that, inasmuch as the fourth zone, in which both Nebraska and Illinois are located, is already over quota, and inasmuch as the state of Illinois is likewise over quota, the addition of increased nighttime operation for two hours by WBBM resulting from the proposed synchronization would subject WGN and all other stations located in Chicago, and indeed in Illinois likewise, to increased danger of loss or reduction of facilities, under tho provisions of the Act of Congress approved March 28,1928 (45 Stat. 373 [see 47 USCA §§ 89) 91]), commonly called the Davis Amendment. We think this objection is answered by the fact that the Commission’s decision permits only an experimentation and is not a final order modifying the licenses of the respective stations. Further action of the Commission must he had before the modification becomes final. Moreover, inasmuch as synchronization is not yet recognized by the Commission as a regular broadcasting service no addition is made to the quota of either the city, state, or zone involved, because of the present order. It is also contended by WGN that the Commission’s decision subjects it to an economic injury through, the allocation of additional facilities to the city of Chicago. This complaint rests upon the theory that the modification will increase the competition among broadcasting stations in Chicago, and thereby inflict a pecuniary loss upon each of the stations already established therein, including WGN. This complaint, however, is so vague, problematical, and conjectural as not to furnish a present substantial objection to the Commission’s decision. WGN also contends that the Commission’s decision places an additional obstacle in the way of securing increased power for its station, which increased power will improve its broadcasting service. Again we may say that in our opinion this objection is purely conjectural and rests upon no substantial basis. Telegraph Herald Company v. Fed. Radio Commission (Sanders Bros. Radio Station, Intervener), 62 App. D. C. 240, 66 F.(2d) 230; Edward Hines Yellow Pine Trustees v. United States, 363 U. S. 143, 44 S. Ct. 72, 68 L. Ed. 216. In answer to all of appellant’s complaints, it may again be noted that the - authority granted by the Commission’s decision to the applicant stations is granted experimentally only, and, until they apply fo-r and are granted a regular license for this purpose, the decision of the Commission is conditional and only for the purpose of conducting experiments which may prove wholly unsuccessful and never be carried into- the regular broadcasting service. Complaint is made by the appellant that the Commission failed to serve it with a written notice of the applications of WBBM and KFAB prior to the hearing had by the examiner, and contends that such failure renders the decision void or at least reversible upon this appeal. We may say in answer to this that in our opinion under the circumstances the appellant was not entitled to a written notice for the reason that it was not then a party “aggrieved or whose interests are adversely affected” by the proposed modification of the appellees’ licenses for experimental purposes. The decision of the Commission is accordingly affirmed.

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

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

Stanley KAHN and Courtney Kahn, co-partners trading as Kahn Brothers, Appellants, v. The MAICO COMPANY, Incorporated, a body corporate of the State of Minnesota, Appellee. No. 6786. United States Court of Appeals Fourth Circuit. Argued June 4, 1954. Decided Oct. 13, 1954. Isidore Ginsberg, Baltimore, Md. (Hyman Ginsberg and Ginsberg & Ginsberg, Baltimore, Md., on brief), for appellants. Stuart S. Janney, Jr., Baltimore, Md. (Robert M. Thomas and Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PARKER, Chief Judge. This is an appeal from an order dismissing an action for lack of jurisdiction. The plaintiffs, residents of Maryland, constituted a partnership which held a franchise contract to act as exclusive distributor in certain Maryland counties of hearing aids manufactured by defendant. The action was to recover damages of defendant for alleged breach or wrongful termination of this contract. It was dismissed on the ground that defendant, a foreign corporation, was not doing business in the State of Maryland within the meaning of the applicable Maryland statute, Code Art. 23, sec. 88(a), which provides: “Every foreign corporation doing intrastate or interstate or foreign business in this State shall be subject to suit in this State by a resident of this State or a person who has a usual place of business in this State, (1) on any cause of action arising out of such business, and (2) on any cause of action arising outside of this State.” The evidence shows clearly that plaintiffs were more than mere dealers in or distributors of defendant’s products. Defendant was engaged in the manufacture and sale of hearing aids which it advertised and guaranteed to purchasers. It entered into a contract, designated a franchise contract, with plaintiffs under which plaintiffs were given the exclusive right to deal in these aids within certain counties in Maryland. While the contract speaks of the right of plaintiffs to purchase and resell the aids within the territory granted, other provisions of the contract and the evidence adduced at the hearing before the District Judge show clearly that much more than sale and resale were involved and that the business of plaintiffs was in fact controlled and directed by defendant. The prices at which plaintiffs made sales were fixed by defendant. Every sale was made on an order form provided by defendant, was reported to defendant and defendant wrote the purchaser with regard thereto. Advertisements were furnished and paid for by defendant under an arrangement which virtually precluded the use of other advertising by plaintiffs. Inquiries with respect to hearing aids were referred by defendant to plaintiffs, who were required to report to defendant action taken thereon. Plaintiffs were called upon by defendant to make deliveries of hearing aids to government agencies on sales negotiated within the state by another representative of defendant. Defendant gave a written guaranty on every aid sold by plaintiffs and authorized plaintiffs to make the contract of guaranty in its behalf. It authorized plaintiffs to adjust complaints made under the guaranty, and consigned to plaintiffs repair parts with which to make the adjustments. It required plaintiffs to take out insurance against damages arising out of malpractice in the fitting of hearing aids, for protection of both plaintiffs and defendant, in a company which defendant designated. It had plaintiffs to insure the instruments sold against loss or damage and make report to it with regard thereto. It arranged for purchasers from plaintiffs to finance their purchases through a company with which it contracted. It had its representatives to visit plaintiffs and advise and direct plaintiffs as to the management of their business. Plaintiffs were authorized to use the defendant’s trade name “Maico” in connection with their business and did so use it, and defendant referred to them in correspondence as “Maico Hearing Service of Baltimore”. They were listed in the telephone directory as “Maico Hearing Service.” Defendant relies upon the fact that it was not incorporated in Maryland and has never registered or qualified to do business in that state, that its office and factory are in Minnesota and that it has no warehouses and owns no property in Maryland, except small amounts of new parts for hearing aids consigned to the plaintiffs until paid for, that none of its officers or directors live in Maryland and that the goods shipped to plaintiffs by defendant with the exception of the small amount of consigned parts represent outright sales of products, shipped f. o. b. defendant’s factory in Minneapolis. Upon the evidence taken as a whole, however, it is impossible to escape the conclusion that, through the plaintiffs, defendant was advertising and selling its hearing aids in the State of Maryland, that the business was in effect done in defendant’s name and that it was as completely controlled by defendant as it would have been if plaintiffs had been mere selling agents. Furthermore, there can be no doubt but that defendant actually participated in the sales made by plaintiffs, since the guaranty given in connection with the sale of a hearing aid was a part of the sale, and in making the guaranty the plaintiffs were unquestionably acting as agents of defendant. They were also acting as agents of defendant in adjusting complaints made under the guarantees. On these facts, we think that defendant was clearly doing business in the state within the meaning of the statute. In La Porte Heinekamp Motor Co. v. Ford Motor Co., D.C., 24 F.2d 861, and the very recent case of Thomas v. Hudson Sales Corp., Md., 105 A.2d 225, 228, in both of which jurisdiction was sustained, it was pointed out that, while it did not constitute doing business within the state for a foreign corporation to make sales outside the state to distributors who carried on business therein, even though a district superintendent, might visit them and advise with respect to selling policies, nevertheless such foreign corporation would be held to be doing business within the state if it went beyond this pattern and exercised substantial control over the business of the local distributor. Here the defendant not only controlled the business policies of the distributor, but also regulated the details of the business almost as completely as if the distributor had been an agent in all respects. No one would contend that what was done did not constitute doing business by defendant if plaintiffs had been compensated on a commission basis instead of by discounts allowed from the sale price which defendant fixed; but the method of compensating the one who carries on the business cannot defeat jurisdiction when it appears that it was in reality defendant’s business that was being carried on. The case is not one where sporadic or occasional transactions are relied on to establish the doing of business within the state; but one in which it is shown that business of defendant was regularly carried on. See Dobie on Federal Procedure pp. 488-489 and opinion of Mr. Justice Peckham in Pennsylvania Lumberman’s Mutual Fire Ins. Co. v. Meyer, 197 U.S. 407, 415, 25 S.Ct. 483, 49 L.Ed. 810. The only question is whether defendant’s connection with the business was established; and we think that it unquestionably was. In Thomas v. Hudson Motor Corp., supra, which is controlling here, the Court of Appeals of Maryland said that prior decisions of that court were not helpful in the decision of the question there presented which is essentially the question before us, and the court proceeded to base its decision that the foreign corporation was “doing business” in the state within the meaning of that language as used in the Maryland statute largely upon the reasoning in Judge Soper’s decision in La Porte Heinekamp Motor Co. v. Ford Motor Co., supra, and the. later decisions of the Supreme Court of the United States in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485. The court quoted the following passages from the opinion in the International Shoe Company case in the discussion of what constituted doing business: “ ‘ * * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair ;play and substantial justice’. * * Finally, although the commission of .some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372, other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit. * * * It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. * * * to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.’ ” After quoting the foregoing passages, the court said of the International Shoe Company case: “This case has been looked upon as announcing a new principle in determining whether a corporation was ‘doing business’ for the purpose of jurisdiction and that suit in the foreign state would not violate the due process clause.” The Court of Appeals also quoted the following passage from the opinion of Judge Soper in the case of La Porte Heinekamp Motor Co. v. Ford Motor Co., supra: “ ‘Summarizing this recital of the relations between the Ford Motor Company and the residents of Maryland, who handle its products, it appears that, while the company does not maintain within the state an agent with power to bind it by contract, nevertheless the actual supervision and control exercised by it through its traveling representative is almost as complete as if the dealers were its agents in all respects. The privilege of handling Ford cars and other products is evidently valuable, and, since the company may withdraw it at any time, it is not difficult to prevail upon the dealer to comply with the company’s demands. The work of the local representative in this connection is of substantial benefit to the defendant. He not only stimulates the dealers to do their utmost in distributing the company’s products, but incidentally secures information which enables the company to regulate its output in conformity to the demands of the public. Much of this he accomplishes through an almost daily contact with the various sellers of Ford products within the state; and, when the importance of the problem of distribution in this great business is considered, it becomes clear that the activities of the company within the state, as distinguished from those of the dealers, are not negligible.’ ” In relying upon the decision in the cases of International Shoe Company v. State of Washington, supra, Perkins v. Benguet Consolidated Mining Co., supra, and La Porte Heinekamp Motor Co. v. Ford Motor Co., supra, when dealing with the question of doing business in the state within the meaning of the Maryland statute, the Court of Appeals of Maryland clearly held that the “doing of business” sufficient to satisfy the due process clause of the federal Constitution was sufficient to satisfy the jurisdictional requirements of Art. 23, sec. 88(a) of the Maryland Code; for it will be noted that the court held on the basis of those decisions, not only that suit in Maryland did not offend the due process clause, but also that the activities relied on constituted doing business within the meaning of the state statute. The court said: “The exercise by Hudson Sales of the privilege of conducting activities within this State and the benefits and protection of the laws of this State which it enjoys, appear to give rise to the obligations of one who does business here and that it is reasonable and just according to ‘traditional notions of fair play and substantial justice’ to hold that Hudson Sales is ‘doing business’ in Maryland and that suit here does not offend the due process clause. International Shoe Company v. State of Washington, supra; Perkins v. Benguet Consolidated Mining Co., supra; Kilpatrick v. Texas & P. R. Co., supra [2 Cir., 166 F.2d 788]; State v. Ford Motor Co., 1946, 208 S.C. 379, 38 S.E.2d 242; Atlantic National Bank v. Hupp Motor Car Corp., 1937, 298 Mass. 200, 10 N.E.2d 131; Wilson v. Hudson Motor Car Co., D.C.Neb.1928, 28 F.2d 347.” (Italics supplied.) This is in accord with the spirit of the statute, which is to extend the jurisdiction of the Maryland courts over suits by citizens of the state or contracts made within the state as far as constitutionally possible. Cf. Compania de Astral S. A. v. Boston Metals Co., Md., 107 A.2d 357. It is in accord, also, with the sound public policy that foreign corporations engaging in business in a state either directly or through others should be subject to the jurisdiction of its courts, so that citizens of the state having claims arising out of such business may not be required to resort to the courts of an alien and distant jurisdiction to obtain justice. As said by Mr. Justice Black in his dissenting opinion in Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 669-670, 73 S.Ct. 900, 904, 97 L.Ed. 1331: “A large part of the business in each and every state is done today by corporations created under the laws of other states. To adjust the practical administration of law to this situation the Court in recent years has refused to be bound by old rigid concepts about ‘doing business.’ Whether cases are to be tried in one locality or another is now to be tested by basic principles of fairness, * In this case it is in accord with the basic principles of fairness that this defendant, which has carried on the business of selling its hearing aids in Maryland through the plaintiffs whose business it has controlled and dominated, should be held to answer to plaintiffs in the courts for alleged breach of contract in connection with that business. For the reasons stated, the order of dismissal for lack of jurisdiction will be reversed and the case will be remanded for further proceedings not inconsistent herewith. Reversed. . In the last cited case the court said [105 A.2d 228] : “It appears that manufacturers of automobiles and other manufacturers who have followed more or less the following pattern in foreign states had been held not to be ‘doing business’ in those foreign states. A foreign corporation which has its principal business in another state, sells its products to distributors outside of that state, and the products are shipped f.o.b. with drafts attached. A district superintendent is employed whose territory includes foreign states. He visits distributors and dealers and advises them how to sell the products, how to keep up theii stock of goods, and selects new dealers subject to the approval of the company. All contracts are executed by an officer of the corporation outside of the foreign state, the district superintendent having no authority to finally ratify any contracts. Among cases so holding are Holzer v. Dodge Bros., 1022, 233 N.Y. 216, 135 N.E. 268; Zimmers v. Dodge Bros., D.C.N.D.Ill.1927, 21 F.2d 152; Hinchcliffe Motors, Inc., v. Willys-Overland Motors, Inc., D.C.Mass.1939, 30 F.Supp. 580; Johns v. Bay State Abrasive Products Co., D.C.1950, 89 E. Supp. 654; Harrison v. Robb Mfg. Co., D.0.1953, 110 F.Supp. 848.” . In the case cited it was held that jurisdiction under Art. 23, sec. 88(d) might he based upon the making of a single contract within the state. Sec. 88(a) was not involved in the decision, but nothing was said therein, which would in any wise limit the breadth of the decision under sec. 88(a) in Thomas v. Hudson Sales Corp., supra.

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

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

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

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

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

James GORDON and Edward L. Brown, Petitioners, Appellants, v. J. T. WILLINGHAM, Warden, United States Penitentiary, Lewisburg, Pennsylvania, Respondent-Appellee. No. 13557. United States Court of Appeals Third Circuit. Argued June 9, 1961. Decided Aug. 30, 1961. Alfred Avins, Chicago, 111., for appellants. Janies C. Waller, Jr., Washington, D. C. (Daniel H. Jenkins, U. S. Atty., Phillip H. Williams, Asst. U. S. Atty., Scranton, Pa., Thomas A. Ryan, Lieutenant Colonel, JAGC, Office of The Judge Advocate Gen., Dept, of the Army, Washington, D. C., on the brief), for appellee. Before BIGGS, Chief Judge, and HAS-TIE and FORMAN, Circuit Judges. PER CURIAM. Appellants are two of seven American soldiers who were tried together and convicted by a court-martial in West Germany for multiple rape upon a fifteen year old German girl. Appellant Gordon was sentenced by the court to life imprisonment and dishonorable discharge. Appellant Brown was sentenced to imprisonment for forty years and dishonorable discharge. In due course a Board of Review, acting pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866, considered various contentions, including these now in issue, and reduced the terms of imprisonment to thirty years in the case of Gordon and fifteen years in the case of Brown. Thereafter, the United States Court of Military Appeals reviewed the cases and affirmed the decision of the Board of Review. United States v. Carter et al., 1958, 9 U.S.C.M.A. 108. To serve their sentences the present appellants were confined within the Middle District of Pennsylvania where they filed this petition for habeas corpus. Relief was denied by the district court and the prisoners have appealed to us. We have examined the record and have considered all of appellants’ contentions. We find no error in the decision of the district court. Only one contention, which appellants’ capable counsel candidly designates as his strongest point, requires particular comment. It is argued that the members of the court-martial were impelled or inclined to impose very severe sentences upon appellants because of urgings by the convening authority and a still higher commander shortly before this trial that Draconian punishment be meted out to soldiers convicted of crimes of violence against German civilians. At the same time, there is no indication that anything said by commanders should have been understood or was in fact understood by members of this court-martial as urging that anyone be convicted without proper and convincing proof of guilt. Thus, the issue of command influence is limited to the question whether the appellants have been deprived of essential fairness and independence of judgment in sentencing. Under military law the maximum sentence which could properly have been imposed pursuant to these convictions of rape was life imprisonment. As we already have stated, the court-martial sentenced appellants Gordon and Brown to imprisonment for life and for forty years, respectively. However, the Board of Review resentenced appellants to prison terms of thirty years and fifteen years, respectively. On the present record we think' this action by the Board of Review is decisive against appellants’ constitutional contention, regardless of the possibility that the court-martial may have been subjected to command influence in its fixing of penalties. The Supreme Court recently pointed out in Jackson v. Taylor, 1957, 353 U.S. 569, 77 S.Ct. 1027, 1 L.Ed.2d 1045, affirming a decision of this court, 234 F.2d 611, that a Board of Review, acting under Article 66 of the Uniform Code of Military Justice, 10 U.S.C. § 866, is vested with plenary power to substitute for the original sentence of a court-martial whatever lesser sentence the Board may consider appropriate on the entire record and in all of the circumstances of the case. Indeed, the Supreme Court indicated that in the administration of military justice this procedure is a proper substitute for a remand for resentencing by a court-martial. Accord, Fowler v. Wilkinson, 1957, 353 U.S. 583, 77 S.Ct. 1035, 1 L.Ed.2d 1054. It is, therefore, the presently effective sentence imposed by the Board of Review, not the superseded more severe sentence of the court-martial, which we must consider in determining whether there has been essential fairness and freedom from undue influence in sentencing. We have found nothing which indicates that the Board of Review was influenced in any way by what the theatre commanders had said or that the Board did not make independent and unbiased determination of what constituted fair sentences in these cases. We are satisfied that due process of law in sentencing requires no more than competence and impartiality on the part of the authority which has imposed the sentence under which the prisoners are now confined. For due process purposes it is not important that the effective sentence was imposed by an authority other than the original trial tribunal. The judgment will be affirmed. . Co-defendants who have been committed to prisons elsewhere have also made unsuccessful collateral attacks upon their convictions and sentences. Kasey v. Goodwyn, 4 Cir., 1961, 291 F.2d 174; Chandler v. Markley, D.C.S.D.Ind., 191 F.Supp. 706.

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

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, an Illinois Trust, et al., Plaintiffs-Appellees, and Claude Carpenter and James Adcock, Individually and on behalf of all members and beneficiaries of Central States, Southeast and Southwest Areas Health and Welfare Fund, an Illinois Trust, Proposed Intervenors-Appellants, v. OLD SECURITY LIFE INSURANCE COMPANY, a corporation, et al., Defendants-Appellees. Nos. 78-2232, 78-2287. United States Court of Appeals, Seventh Circuit. Argued Jan. 24, 1979. Decided June 12, 1979. Lawrence Walner, Sidney Z. Karasik, Chicago, Ill., for proposed intervenors-appellants. James L. Coghlan and Mairen C. Kelly, Gary M. Elden, Reuben & Proctor, Chicago, Ill., for defendants-appellees. Before FAIRCHILD, Chief Judge, MAR-KEY, Chief Judge, of the Court of Customs and Patent Appeals, and SPRECHER, Circuit Judge. The Honorable Howard T. Markey, Chief Judge of the United States Court of Customs and Patent Appeals, is sitting by designation. MARKEY, Chief Judge. These consolidated appeals rise out of complex litigation occasioned by alleged waste of assets and mismanagement of the Central States, Southeast and Southwest Areas Health and Welfare Fund (Fund). Before us are two different orders of the district court, each denying a motion. In appeal No. 78-2287, defendant Old Security Life Insurance Company (Old Security) appeals the denial of its motion to dismiss. We dismiss that appeal for lack of jurisdiction. In appeal No. 78-2232, Claude Carpenter and James Adcock (Beneficiaries), individually and on behalf of all Fund members and beneficiaries, appeal the denial of their motion to intervene. We reverse. General Background On August 4, 1976, the Fund, through its former trustees, brought suit in the district court against Old Security and sixty other defendants, including appellee Continental Illinois National Bank and Trust Company of Chicago (Continental), to recover $7 million in Fund assets, allegedly diverted and misappropriated by defendants’ insurance fraud conspiracy. Prior to the filing of a second amended complaint, the former trustees were required to resign. New trustees filled the vacancies and were substituted as plaintiffs. The Fund’s second amended complaint charged the sixty-one defendants with breach of contract, fraud, conspiracy, and breach of fiduciary duty under state law, and with breach of statutory duties as fiduciaries under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1976) (ERISA). It alleged that the Fund contracted with Old Security for insurance benefits to Fund members; that at that time Old Security failed to inform the Fund of Old Security’s feeble financial condition; that the Fund transferred $7 million in premiums to Old Security; that Old Security defaulted on the contract because of its financial condition; that the failure to inform and default were part of a complex scheme in which defendants conspired to defraud the Fund of $7 million, all of which was misappropriated, diverted, and wasted by defendants. Old Security and various other defendants filed counterclaims and third-party claims charging trustees, officers, and agents of the Fund with complicity or actual participation in the scheme to defraud. Because the issues are unrelated, the appeals must be separately treated. Appeal No. 78-2287— The Motion to Dismiss Background In October, 1977, the Missouri Director of Insurance, Jerry B. Buxton (Buxton), petitioned the Circuit Court of Cole County, Missouri (Missouri court), for an order placing Old Security in receivership. Buxton v. Old Security Life Insurance Co., No. 29686 (Cir.Ct., Cole Cty., Mo., filed Oct. 1977) (Missouri insolvency proceeding). Buxton proceeded under Section 375.560 of the Missouri Insurance Act, Mo.Rev.Stat. § 375.560, authorizing receivership of domiciliary insurance companies for rehabilitation or liquidation. By order of October 20,1977, the Missouri court adjudged Old Security insolvent, appointed Buxton receiver, and authorized him to rehabilitate Old Security and to otherwise act in protection of Old Security’s remaining assets. The order included this (Missouri injunction): 11. All persons are enjoined and restrained from prosecuting or bringing any action, issuing any process or obtaining any judgment against the defendant, Old Security Life Insurance Company, or its properties or assets, except pursuant to the order of this Court. It was after issuance of the Missouri injunction that the Fund filed its second amended complaint and moved for preliminary injunctions in the district court against Old Security. The Fund did not seek permission of the Missouri court and made no attempt to obtain modification of the Missouri injunction. On December 27, 1977, Old Security moved to dismiss, arguing that further proceedings in the federal action were barred by the Missouri injunction. On September 1, 1978, the district court denied the motion, stating: Old Security also urges this court to abstain from taking jurisdiction over this controversy because it is now under liquidation or rehabilitation by defendant Jerry Buxton, the court-appointed receiver in Missouri. That court has enjoined any suits against Old Security by its order entered October 20, 1977. However, E.R. I.S.A. confers upon Federal courts exclusive jurisdiction over employee health and welfare funds, except that a beneficiary is given the right to file a civil action in a State court to enforce his claims and for similar purposes. We therefore have a “virtually unflagging obligation” to retain and exercise jurisdiction over Old Security. See Will v. Calvert, [437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504] 46 U.S.L.W. 4811, 4813 (1978). Colorado River Water Conservation District v. United States, 424 U.S. 800 [96 S.Ct. 1236, 47 L.Ed.2d 483] (1976) does not support defendant’s argument for abstention. No difficult or unusual question of state law has been raised. To the contrary, all three counts involve questions of Federal law which, as we have held, are exclusively under our jurisdiction in this particular instance. We do not overlook the holding in Blackhawk Heating & Plumbing Co., Inc. v. Geeslin, 530 F.2d 154 (7th Cir. 1976), a diversity case where the State court had obtained jurisdiction over the res. In that situation, it was held that the Federal court should not simultaneously proceed with liquidation of the res, particularly when a domestic insurance company is involved. However, when the Federal suit is proceeding in personam, we see no reason why we should not proceed simultaneously with the State court liquidation proceedings. Roller v. Richmond Industrial Loan and Thrift, 407 F.Supp. 1211 (E.D.Va.1975). The other arguments raised by Old Security for dismissal have been considered and found wanting. We will merely refer specifically only to 29 U.S.C. § 1144(b)(2)(A) which provides that: Nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance To what extent plaintiffs may be bound by Missouri law we are not called upon to decide. They are entitled to bring an action to enforce alleged obligations under E.R.I.S.A., while at the same time Old Security is bound by the laws of the State of Missouri under the foregoing statutory provision. As the basis for jurisdiction in this appeal, Old Security relies on the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Issue The dispositive issue is whether the district court’s order denying the motion to dismiss is an appealable collateral order under Cohen. OPINION Jurisdiction of Appeals from “final decisions,”.28 U.S.C. § 1291 (1976), includes jurisdiction of final “collateral orders,” described in Cohen as “that small class which finally determines claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546, 69 S.Ct. at 1225. Cohen was a stockholders’ derivative suit, with jurisdiction based solely on diversity. Defendant corporation, entitled to do so under the law of the forum state, moved to require plaintiff to post security for defendant’s costs, including attorneys’ fees, and appealed the denial of that motion. The court saw “a serious and unsettled question,” 337 U.S. at 547, 69 S.Ct. 1221, in whether federal courts in diversity cases must apply the state statute on posting security. To be final and appqalable, therefore, a collateral order must raise an important and unsettled question of law, the question must be separable from the merits, and delay in its resolution must result in an irretrievable loss of rights. We conclude that the denial of Old Security’s motion to dismiss is not a final and appealable collateral order and that this court is, therefore, without jurisdiction. Though Old Security variously described an alleged important and unsettled question of law in the briefs it became clear at oral argument that the only question relied on by Old Security is whether it is an abuse of discretion not to abstain in this in person-am action alleging violation of a federal statute. Abstention, says Old Security, is required in view of the Missouri injunction against prosecution of claims outside the insolvency proceeding. The issue presents neither a legal question of first impression nor one unsettled. In McGough v. First Arlington National Bank, 519 F.2d 552 (7th Cir. 1975), the district court had stayed a federal securities claim pending resolution of related state court proceedings. This court stated: [I]t is manifest to us that the exclusive remedy sought under the complaint in the District court is not available to McGough in the state action. Therefore, we conclude that the District Court’s stay order was an abuse of judicial discretion and reversible error, since it relegated McGough to a sterile state court for vindication of its federal remedies. That the federal courts have exclusive jurisdiction over ERISA claims for breach of fiduciary duty is settled. Morrissey v. Curran, 567 F.2d 546, 549 (2d Cir. 1977); Marshall v. Chase Manhattan Bank National Association, 558 F.2d 680, 682 (2d Cir. 1977). Section 502(e)(1) of ERISA, 29 U.S.C. § 1132(e)(1), provides that the federal district courts have exclusive jurisdiction of civil actions brought by a participant or beneficiary, and section 514(a), 29 U.S.C. § 1144(a), preempts all state laws relating to employee benefit plans covered by the statute. Though a state court may decide federal questions, e. g., an affirmative defense based on federal statute, the concern here is with affirmative relief. Exclusive federal jurisdiction being present, only the federal courts have power to provide that affirmative relief. McGough v. First Arlington National Bank, supra at 555; Movielab, Inc. v. Berkey Photo, Inc., 321 F.Supp. 806 (S.D.N.Y.1970), aff’d, 452 F.2d 662 (2d Cir. 1971). With no prejudgment on the merits of the case, we conclude that the question of law relied on by Old Security is not so unsettled as to justify appeal at this time under Cohen. If there were doubt of the absence of an important and unsettled question, that doubt would not aid Old Security in view of its failure to establish a Cohen -type irretrievable loss of rights. The right otherwise irretrievably lost in Cohen was specific. There the state statute provided for security for defendant’s costs and attorneys’ fees, and the question was whether a federal court exercising diversity jurisdiction was to apply that statute. The “right” here asserted by Old Security is not the sort present in Cohen, nor would its loss be the sort there viewed as incapable of vindication on appeal from final judgment. Dismissal of its appeal means that Old Security will “suffer” only in undertaking the expense of defending itself in this action. Enforcement of a state statute for a bond, covering potential reimbursement of the cost of a lawsuit, is not equatable with a holding that incurrence of litigation costs constitutes irreparable harm. That view would render appealable every denial of a motion to dismiss. One may not invoke Cohen on the basis of a “right” not to have to litigate at all. EEOC v. American Express Co., 558 F.2d 102, 104 (2d Cir. 1977); United States Tour Operators Association v. Trans World Airlines, Inc., 556 F.2d 126, 129 (2d Cir. 1977). Non-existent rights cannot be “lost,” and Old Security has no right to enforce the Missouri injunction. Even the state courts have no such right in relation to federal in personam actions. Donovan v. Dallas, supra note 6, 377 U.S. at 413, 84 S.Ct. 1579. Finally, Old Security relies upon its “right” to a single liquidation forum, analogizing the Bankruptcy Act, 11 U.S.C. § 1 et seq. (1976), with the Missouri Insurance Act, Mo.Rev.Stat. § 374 et seq., respecting receivership, rehabilitation, and liquidation of insolvents. Old Security begins by noting that the purpose of the Missouri injunction is to insure efficient, economic settlement of claims by preventing dissipation of assets in multiple, far-flung litigation, and that the same purpose is served for most corporations by the federal Bankruptcy Act provisions enjoining external prosecution of claims against bankrupts. 11 U.S.C. §§ 29, 516(4), 714. Old Security then says this case is governed by the Missouri insolvency proceeding only because it is an insurance company subject to state regulation under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq. (1976), and for whom the Bankruptcy Act is inapplicable, 11 U.S.C. § 22. Protecting the integrity of state insurance insolvency proceedings, and concern for their freedom from outside interference, are of great importance. Blackhawk Heating & Plumbing Co. v. Geeslin, supra at 159. We conclude, however, that Old Security’s assertion of a single-forum right cannot here prevail. The Uniform Insurers Liquidation Act (Act), part of the Missouri Insurance Act, Mo.Rev.Stat. § 375.950.990, does not itself create an exclusive single-state forum. The Act expressly authorizes separate claims proceedings in ancillary states, i. e., in all states adopting the Act. Mo.Rev.Stat. § 375.958. Moreover, the Act cannot be interpreted as precluding a party from pursuing a congressionally created federal claim in the only courts able to provide affirmative relief on that claim. We hold that the denial of Old Security’s motion to dismiss is not a final “collateral order” justifying a deviation from the final judgment rule of 28 U.S.C. § 1291. Conclusion Old Security’s appeal from the denial of its motion to dismiss, appeal No. 78-2287, is dismissed for lack of appellate jurisdiction. Appeal No. 78-2282 — The Motion to Intervene Background On May 1, 1978, the Beneficiaries filed a motion to intervene and an intervention complaint, of which counts III and V correspond essentially to counts I and III of the Fund’s second amended complaint, counts I and IV are asserted against the present trustees, former trustees, Old Security, the Fund administrator, and others, and count II is asserted against the present trustees and the administrator. All counts allege violations of ERISA. When the Beneficiaries filed their motion to intervene, they brought a separate action, in the same district court, based on the same allegations as those in their intervention complaint. Carpenter v. Fitzsimmons, No. 78 C 1672 (N.D.Ill., filed May 1, 1978). On April 19, 1979, while this appeal was pending, the district court denied the Beneficiaries’ motion to consolidate the two actions for purposes of discovery. Claiming intervention as a matter of right under Fed.R.Civ.P. 24, the Beneficiaries alleged that the motion was timely filed; that they have a substantial interest in the subject matter of the litigation; that disposition of the underlying action would impair or impede their ability to protect that interest; and that their interest is not being adequately represented. Respecting inadequacy of representation, the Beneficiaries alleged that the present trustees have a community of interest with the former trustees, with Old Security, and with other defendants, rendering the suit collusive in nature. It is asserted that the former trustees’ choice of Old Security, a company financially infirm and inexperienced in the relevant field of insurance, over unquestionably sound insurance companies, furthered a scheme to defraud the Fund; that the former and present trustees are intimately linked because the former controlled their successors’ selection; that, notwithstanding the clear involvement of the former trustees in a conspiracy to defraud the Fund, the present trustees failed to join their predecessors as defendants; and that the present trustees have evinced a pattern of inadequate, less than zealous, representation by failing to assert certain other claims arising from the circumstances. On September 1, 1978, the district court denied the motion to intervene. As indicated in a memorandum order, the court concluded that the present trustees are acting in the best interests of the Fund, though not taking every step desired by the Beneficiaries. Respecting failure of the present trustees to intervene in Old Security’s lawsuit against National American Life Insurance Company (NALICO), Old Security Life Insurance Co. v. National American Life Insurance Co., Civ. No. 76-1910 (D.D.C.), the district court noted that the objective of the NALICO litigation was acquisition of assets for Old Security, making it more responsive to relief sought here by the Fund; that intervention of the Beneficiaries here would have no direct effect on the NALICO litigation; and that such effect could be achieved by intervention of the Beneficiaries in that case. The court further concluded that the Beneficiaries’ separate class action against the trustees was a means for obtaining relief against the trustees and would be a “window” for observing the present litigation, both actions being prosecuted simultaneously before the same judge. The Beneficiaries appeal. Only the present trustees and defendant Continental have responded. Issue The issue is whether the district court erred in denying the motion to intervene. OPINION To intervene of right under Fed.R.Civ.P. 24(a)(2), an applicant must: (1) timely apply, (2) claim “an interest relating to the property or transaction which is the subject of the action,” (3) be “so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest...,” and (4) not be “adequately represented by existing parties.” On this appeal, the interest of the Beneficiaries is not challenged and appellees’ assertion of untimeliness is without merit. Appellees argue, “that ‘inadequate representation’ requires a compelling showing of collusion between the representative and an opposing party in the lawsuit [citing cases],” and assert that the Beneficiaries have alleged no facts indicating collusion between the plaintiffs and any named defendants. All nonconclusory allegations supporting a motion to intervene are taken as true, absent sham, frivolity, or other objections. Stadin v. Union Electric Co., 309 F.2d 912, 917 (8th Cir. 1962); Clark v. Sandusky, 205 F.2d 915, 918 (7th Cir. 1953). The Beneficiaries have pleaded with specificity, in Count I of the intervention complaint, instances of collusion between the former trustees and the defendants, including: 1. Though Prudential Life Insurance Company is a nationally known insurer with unquestioned assets, and its bid was objectively superior to that of Old Security, the former trustees selected the relatively small, unknown, inexperienced-in-the-field company for a cost plus fee contract generating $20.4 million in premiums. 2. The former trustees gave advance confidential information of the solicitation to defendants or coconspirators acting on behalf of Old Security, employed insufficient and inadequate insurance consultants, and used consulting information slanted toward selection of Old Security. 3. Selection of Old Security rested on its willingness to continue using Amalgamated Insurance Agency as exclusive service agent. Amalgamated is controlled by Allan M. Dorfman, convicted of a felony, whose services were sought and continued despite statutory (ERISA, 29 U.S.C. §§ 1109 and 1111) and common law prohibitions. 4. The former trustees failed: (a) To determine whether reinsurance was contemplated or necessary and the identity and financial position of proposed reinsurers. (b) To retain the right to control designation of a reinsurer. (c) To establish sufficient control over the account into which premiums were paid. (d) To adequately investigate the successful bidder. 5. After problems of Old Security and jeopardy of the insurance program were public knowledge, the former trustees made a July, 1976 payment of $1,776,000 to Old Security. The Beneficiaries have also specifically alleged in count I a relation between the present and the former trustees, asserting that the present trustees “were appointed under mechanism believed to be such as to permit the Former Trustees to directly or indirectly participate in or control or effect the appointment of the [present] Trustees or their tenure in office.” We find the Beneficiaries’ material allegations to be noneonclusory. There being no evidence of sham, frivolity, or other defects we must take those allegations as true. We therefore find in the Beneficiaries’ complaint allegations sufficient to establish, prima facie, a case of collusion between the former trustees and the defendants, and a relationship the equal of collusion between the present and former trustees. This suit was initiated by the former trustees, for whom the present trustees have been substituted. In considering the representation issue, the present trustees would have us treat their predecessors as strangers to the action, and would have us hold that alleged collusion must be direct collusion between the representative and an opposing party. That narrow view of the adequacy of representation question is required by neither the rule nor prior decisions of this court. Representation is either adequate or inadequate. Its character must be determined therefore on the facts presented. In Clark v. Sandusky, supra at 918, this court found inadequacy in light of a conspiracy between plaintiffs and a third party “wrongfully to appropriate and use [applicant’s] property,” and “injury to [applicant’s] property by defendants as a consequence of this conspiracy.” There is, moreover, a basic unattractiveness in the notion that inadequacy of representation cannot be shown when indirect collusion, a kind of “collusion once removed,” is alleged and established. Factual allegations reflecting collusion between original representatives and a party, and reflecting control over substituted representatives in the hands of those original representatives, are sufficient in this case to indicate an inadequacy of representation. The veil otherwise existing between the former and present representatives having been pierced by the allegation of their relationship, we find sufficient indication of collusion between the present trustees and defendants, through the former trustees, to warrant a grant of intervention as of right. The present trustees say the Beneficiaries’ interests will not be impaired because their counts III and V duplicate counts I and III of the trustees’ second amended complaint, and the Beneficiaries’ remaining counts duplicate the complaint in their separate action. We disagree. Because the present trustees do not adequately represent the Beneficiaries’ interest, denial of intervention would be certain to “impair or impede” their ability to protect their interest respecting counts III and V of the intervention complaint. Respecting the other counts in the. intervention complaint, and the Beneficiaries’ separate action, we repeat this court’s pronouncement in Clark v. Sandusky, supra at 919: “The right to intervene is not barred merely by the existence of another remedy.... ” Conclusion The Beneficiaries were entitled to intervene of right under Fed.R.Civ.P. 24. Accordingly, in Appeal No. 78-2232, we reverse the denial of the motion to intervene. . An employee benefit plan for certain members of the International Brotherhood of Teamsters (Union). . The second amended complaint also specifically charged Continental with breach of fiduciary duty and negligence in the transfer of $1.5 million of the $7 million sum to an unauthorized signator. . The Missouri statutory procedures for insolvent insurance companies, Mo.Rev.Stat. § 375.-950-.990, are those of the Uniform Insurers Liquidation Act, adopted by thirty-two states. . At the time of oral argument, Old Security was in receivership for rehabilitation. On February 22, 1979, Buxton petitioned the Missouri court for liquidation. The petition was granted May 15, 1979. . The September 1, 1978 decision also disposed of motions to dismiss Continental and Buxton. Buxton was dismissed because his being a receiver did not make him a fiduciary under ERI-SA. Continental did not appeal the denial of its motion. In addition to considering the Missouri injunction, the district court also concluded that Old Security was an ERISA fiduciary. Old Security’s appeal being based solely on the Missouri insolvency proceeding and the Missouri injunction, we express no view on whether a life insurance company is generally a fiduciary under ERISA wi(h respect to payments made to it by an employee benefit plan. . Old Security does not now assert that the important question supporting appealability is whether a federal court must dismiss an in personam action when a state court has enjoined all actions against the defendant. In Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), the Supreme Court recognized “the old and well-established judicially declared rule that state courts are completely without power to restrain federal-court proceedings in in personam actions. Id. at 412-13, 84 S.Ct. at 1582 (footnote omitted). And in the more recently decided case of General Atomic Co. v. Feiter, 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977), the court said that “[i]t is therefore clear from Donovan that the rights conferred by Congress to bring in personam actions in federal courts are not subject to abridgment by state-court injunctions, regardless of whether the federal litigation is pending or prospective.” Id. at 17, 98 S.Ct. at 78 (footnote omitted). . Old Security contends that, although technically in personam, this federal action has substantial in rem aspects. If this federal action were in rem, it would present a very different situation. Blackhawk Heating & Plumbing Co., Inc. v. Geeslin, 530 F.2d 154 (7th Cir. 1976) involved state and federal proceedings, both in rem. An Illinois court placed a domestic insurance company in liquidation. Blackhawk petitioned the federal court to turn over certain securities. This court held that “since the Illinois court had already acquired control over the securities at the time Blackhawk filed its turnover petition, the federal court lacked power to exercise control over that property. That property had been removed from the in rem jurisdiction of all other courts.” Id. at 159. A federal court which first acquires in rem jurisdiction of a suit to liquidate is obliged to relinquish jurisdiction to permit administration of the affairs of the insolvent under the state’s statutory receivership plan. Pennsylvania v. Williams, 294 U.S. 176, 185-86, 55 S.Ct. 380, 79 L.Ed. 841 (1935). However, the Fund’s second amended complaint seeks to enforce a personal liability and obtain a money judgment, not to obtain possession of a res. Old Security describes injunction motions by the Fund as demanding in rem relief. Nothing of record indicates that the district court granted those motions or any in rem relief. The district court is fully capable of preventing inappropriate conversion of the suit to a proceeding truly in rem. . 29 U.S.C. § 1132(e)(1) provides: (e)(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section. Subsection (a)(1)(B) covers only the recovery or clarification of benefits due under a particular plan and is not relevant here, where the ERISA claim is based on breach of fiduciary duty. . 29 U.S.C. § 1144(a) provides: (a) Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975. . Old Security admits that the district court is not obligated to honor the Missouri injunction, see note 6 supra, but says the court should exercise its discretion to abstain. Under McGough v. First Arlington National Bank, supra, however, abstention would be an abuse of discretion, and the presence of discretion would militate against Old Security’s effort to invoke Cohen. In Cohen the statute, from which the right there involved was derived, was either constitutional and applicable under the Erie doctrine, or it was not. There was no room for discretion. The Court in Cohen noted that “[i]f the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security.. appealability would present a different question.” 337 U.S. at 547, 69 S.Ct. at 1226. . 15 U.S.C. § 1012 provides in pertinent part: (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. (b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business unless such Act specifically relates to the business of insurance . Section 3 of the Uniform Insurers Liquidation Act provides in pertinent part: In any delinquency proceeding begun in this state against a domiciliary insurer of this state, claimants residing in a reciprocal ancillary state may file claims either with the ancillary receiver, if any, or with the domiciliary receiver. In any such proceeding controverted claims belonging to claimants residing in ancillary states may either (a) be proved in this state as provided by law, or (b) if ancillary proceedings have' been commenced in such ancillary state, may be proved in such ancillary proceedings.. . On July 24, 1978, the Beneficiaries moved to disqualify the attorneys for the present trustees, alleging conflict of interest. In its September 1, 1978 order, the court stated that the motion to disqualify appeared premature because the alleged conflict is with the former trustees who are not yet parties. The court held the Beneficiaries without standing to disqualify, the motion to intervene being denied. . Unlike the companion appeal No. 78-2287, appealability has not been here questioned. The traditional rule is that an order denying intervention of right is unconditionally appeala-ble. Reedsburg Bank v. Apollo, 508 F.2d 995, 997 (7th Cir. 1975). . “A denial of an application for intervention by right which was timely filed... is subject to the usual scope of. appellate review over questions of law. An erroneous denial will be reversed.” United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 841 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976) (citation omitted). . The district court stated: This motion is resisted by the present plaintiffs and by the defendant Continental Illinois National Bank and Trust Company of Chicago as being both untimely and unnecessary within the intent of F.R.C.P. 24(a). We find that this opposition is well-founded at the present stage of the proceedings and therefore will deny the motion. [Emphasis added.] The present trustees rely on the quoted statement as an express finding that the motion was untimely. We disagree. The quoted reference to untimeliness merely cited the opponents’ contentions. The only express findings in the court’s memorandum are directed to adequate representation and necessity. The district court would not have decided on the merits if the motion had been untimely. Further, the court’s statements that “this opposition is well-founded at the present stage of the proceedings," and that the “situation may change in the course of time, but for the present at least, the motion is denied [emphasis added],” imply renewal; hence they represent an implicit finding that the instant motion was timely. . Appellees further argue that the present plaintiff-trustees have strong personal motives for succeeding against the present defendants, i. e., avoiding personal liability for breach of fiduciary duty, and evading any need to sue the former trustees. The argument is unpersuasive in the face of the factual allegations of collusion in the record. . Count I, paragraph 8 of the Beneficiaries’ complaint alleges that the present trustees “formed or participated in or later joined and ratified” a conspiracy to defraud the Fund. Being unsupported by specifics, that allegation is conclusory. . Collusion between a representative and a party evidenced inadequacy in Cuthill v. Ortman-Miller Machine Co., 216 F.2d 336 (7th Cir. 1954). Some opinions have indicated that representation was adequate when no collusion is shown between a representative and a party, United States v. Board of School Commissioners, 466 F.2d 573 (7th Cir. 1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); Martin v. Kalvar Corp., 411 F.2d 552 (5th Cir. 1969); Moore v. Tangipahoa Parish School Board, 298 F.Supp. 288 (E.D.La.1969); Peterson v. United States, 41 F.R.D. 131 (D.C. Minn. 1966), but, in those cases there were present no evidentiary bases for a finding of collusion, nor was there the basis for finding indirect collusion between a representative and a party present here. . In view of our holding,

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

ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, INC., Roosevelt Johnson, Craig Kelly, Charles Herd, Robert Lewis, William Cary, Charles R. Young, Herman Agosto, Harmin Linares, Ismael Pomales, Salvador Perez, and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF BRIDGEPORT, Nicholas Panuzio, Robert W. Weeks, Jr., Edward F. Daley, Julius Nobili, William G. Pjura, Frank J. Deprinzio, Alan Cohen, Bridgeport Civil Service Commission, Charles E. Porzelt, Andrew Gottfried, Salvatore S. Spadaccino, Charles J. Dougiello, John J. Hannon, John F. Gleason, David Sullivan, William D. Miklus, Albert Schwarz, Bridgeport Board of Fire Commissioners, individually and in their official capacities, Defendants-Appellants-Cross-Appellees, and Bridgeport Firefighters for Merit Employment, Inc., Joseph Dicarlo, Thomas Naples, Philip Lynch, Bruno Bressie, Thomas O’Connell, Frank G. Bender, and Robert B. Anderson, Intervenors-Defendants-Appellants-Cross-Appellees. Nos. 549, 1103 and 1228, Dockets 79-7650, 79-7652 and 79-7709. United States Court of Appeals, Second Circuit. Argued April 30, 1980. Decided April 8, 1981. Rehearing and Rehearing In Banc Denied May 29, 1981. David N. Rosen, New Haven, Conn. (Michael P. Koskoff, Bridgeport, Conn., on brief), for plaintiffs-appellees-cross-appel-lants. John J. McNamara, Bridgeport, Conn. (Raymond B. Rubens, Bridgeport, Conn., Bruce A. Nelson, John L. Beers, Steven B. Berlin, Wendy L. Tice-Wallner, Morrison & Foerster, San Francisco, Cal., on brief), for defendants-appellants-cross-appellees. J. Daniel Sagarin, Bridgeport, Conn. (Harrigan, Hurwitz, Sagarin & Rutkin, P. C., Bridgeport, Conn., on brief), for interve-nors-defendants-appellants-cross-appellees. Steven H. Rosenbaum, Washington, D. C. (U. S. Dept, of Justice, Drew S. Days III, Asst. Atty. Gen., David L. Rose, Washington, D. C., on brief), for United States as amicus curiae. McGuiness & Williams, Washington, D. C. (Robert E. Williams, Douglas S. McDowell, Washington, D. C., on brief), for Equal Employment Advisory Council as amicus curiae. Before LUMBARD, VAN GRAAFEI-LAND and KEARSE, Circuit Judges. KEARSE, Circuit Judge: This employment discrimination suit, now before this Court for the second time, was commenced in 1975 in the United States District Court for the District of Connecticut on behalf of black and hispanic residents of Bridgeport, Connecticut, against the City of Bridgeport and other individuals responsible for hiring firefighters for the City of Bridgeport (hereinafter collectively the “City”). The plaintiffs contend that the City unlawfully discriminated in entry-level hiring practices for the Bridgeport Fire Department, in violation of Titles VI and VII of the Civil Rights Act of 1964 (the “Act”), 42 U.S.C. §§ 2000d to 2000d-4, and 2000e to 2000e-17 (1976), and the antidiscrimination provision of the State and Local Fiscal Assistance Act (“Revenue Sharing Act”), 31 U.S.C. § 1242(a) (1976). After trial, the district court ruled that a 1975 examination administered by the City violated Title VII. 454 F.Supp. 751 (D.Conn.1978). The court enjoined further use of the exam, and ordered various remedial measures, including requirements that only minority candidates be hired uhtil their number equaled the number of white candidates hired since 1975 and that thereafter one-half of all vacancies be filled by minority candidates until there were 125 minority firefighters in the force. 454 F.Supp. 758 (D.Conn.1978). On appeal, this Court concluded that the opinions below provided an insufficient basis for review of the sensitive questions raised by “sweeping affirmative relief, including hiring quotas.” 594 F.2d 306, 309 (1979) (“ADE v. Bridgeport’). Accordingly, the district court’s order was vacated and the case remanded for further consideration. Following a limited hearing on remand, the district court reaffirmed its original determination that the City was liable under Title VII, determined that the City was also liable under Title VI and the Revenue Sharing Act, and modified in several respects the relief ordered. 479 F.Supp. 101 (D.Conn.1979.) On this appeal the City and the intervening current firefighters challenge the findings of liability under Title VI and liability under Title VII prior to 1975, and they attack most aspects of the remedial order. Plaintiffs have cross-appealed, challenging two limited aspects of the relief granted. For the reasons below, we generally affirm the decision of the district court, but vacate the finding of liability under Title VI and remand portions of the remedial order for modification. I. FACTS AND PRIOR PROCEEDINGS Since 1936, the City’s process of selecting its firefighters has included the giving of a written examination. In 1972, having had only two minority firefighters since 1936, having recently been sued for employment discrimination in the police department, and perhaps recognizing the approaching applicability of Title VII to municipalities, Bridgeport joined ten other Connecticut cities in hiring a consulting firm to develop a new exam for firefighters. The resulting exam was administered by the City in 1975. In order to qualify for firefighter positions, candidates were required to achieve a score in or above the 75th percentile of those taking the exam; they were then ranked according to their scores. In addition, a 1975 candidate was required to pass medical and physical agility tests, be over the age of eighteen, be a high school graduate or have earned high school equivalency certification, have resided in the City for at least one year just prior to taking the written exam, and hold a valid Connecticut driver’s license. Of the 661 white candidates who took the 1975 exam, 184, or 27.8%, passed. Of the 110 minority candidates who took the exam, eight, or 7.3%, passed. A. The Complaint The initial complaint in this action was filed on September 2, 1975, by the Association Against Discrimination in Employment and ten individual plaintiffs who are black or hispanic residents of Bridgeport, on behalf of themselves and all others similarly situated. The plaintiffs alleged that the City had engaged in a “policy and practice of discriminating on the basis of race, color and/or national origin against minority group members” and that minority group members “are currently being denied initial employment and promotion in the Bridgeport Fire Department.” The original complaint attacked the 1975 test as well as the City’s prior practices, asserting claims under 42 U.S.C. §§ 1981 and 1983 (1976), and Title VII; the complaint was amended several times, as plaintiffs withdrew the claims under §§ 1981 and 1983 and added allegations of violation of Title VI and the Revenue Sharing Act, and alleged the filing of charges with the Equal Employment Opportunity Commission (“-EEOC”). Unless otherwise noted, references hereafter to the “complaint” are to the third amended complaint in its final form. In July 1976, Bridgeport Firefighters for Merit Employment, Inc. (“BFME”), a nonprofit organization, was permitted to intervene as a defendant and cross-claimant, representing “non-minority firefighters within the Bridgeport department of fire services.” BFME’s cross complaint sought relief from any injury which might be done to nonminority firefighters by the City as a result of any modification of the City’s existing hiring or promotional practices. B. Interim Hiring from the 1975 List Shortly after the intervention of BFME, plaintiffs learned of the City’s plans to make immediate appointments from the list of eligible candidates generated by the 1975 exam, and moved for a preliminary injunction against such appointments. The motion came before Judge Newman, who issued an order, on consent of all parties, permitting defendants to “make at any time appointments to the Bridgeport Fire Department of a number of firefighters equal to one-half the number for which the city warrants there is and will remain an immediate need and adequate funding.” The order further stated that “[i]n the event the Court should order a hiring plan, these appointments will be counted as part of such plan.” Pursuant to this order 40 firefighters were hired commencing in October 1976. In 1977 the City sought to hire additional firefighters from the 1975 list. On June 13, 1977, the parties agreed, before Judge Zam-pano, that the City could hire additional firefighters from that list under substantially the same conditions as those set forth in Judge Newman’s order. Thereafter 44 additional firefighters were hired. Of the 84 firefighters hired pursuant to the interim orders, 81 were white and three were minorities. C. The Trial Court’s Initial Decision In 1978, following a substantial period of discovery, an eleven-day trial with respect to liability was held before Judge Daly. The court found that the City had violated Title VII. It observed that although minorities comprised 41% of Bridgeport’s population the Bridgeport Fire Department, 428 members strong, had only one minority firefighter prior to the 1975 exam. The court found that the 1975 exam “did little to alter this imbalance”: only eight of the 192 candidates who passed it were members of minority groups, and the pass rate for non-minority candidates was more than three times that for minority candidates. The court concluded that these statistics left “no doubt that the firefighters exam had a disparate impact on the named plaintiffs and the class of persons they represent.” 454 F.Supp. at 754. As to the merits of the test itself, the court found that it was doubly flawed. First, the exam had no rational relationship to the skills needed in firefighting. The test was developed, by the consulting firm retained for that purpose, without compiling any list of critical work behaviors and with no effort to rank the rated skills in terms of their importance to the job. 454 F.Supp. at 755-56. Indeed, in handing down his order on remedy, Judge Daly noted that the Bridgeport Fire Chief had testified at the remedy hearing “that there might be an inverse correlation between those who passed the exam and those who are most qualified to be firefighters.” Id. at 759. For example, while the Fire Chief stated that superior physical ability and intelligence are the two most important attributes, the 1975 hiring process used simply a pass-fail physical agility test, and the 1975 written exam weighed negatively any high scores on comprehension questions, thus “penalizpng] those who indicated that they were ‘inquiring, curious, analytic, exploring, intellectual, reflective, incisive, investigative, probing, logical, scrutinizing, theoretical, astute, rational [and] inquisitive.’ ” Id. Ironically, the court noted that the 1975 exam “represented a decided improvement over some of the earlier civil service exams employed by Bridgeport.” 454 F.Supp. at 757. The second flaw in the 1976 exam lay in the City’s selection of 12 as the minimum passing score, a choice that the court found “bore no relation to ‘normal expectations of proficiency.’ ” Id. (quoting 19 C.F.R. § 1607.6 (1977)). The court found that lowering the passing score from twelve to six would have significantly alleviated the discriminatory impact of the exam. The court concluded that the use of the 1975 exam could not be continued, and it awarded a variety of relief to minority candidates for firefighter positions. Because it had found the 1975 exam not job related, the court began “with the premise that the firefighters exam administered in 1975 did not distinguish qualified from unqualified applicants.” 454 F.Supp. at 759. Since testimony showed that the 84 firefighters hired while the case was pending were adequately performing their duties and since their scores on the non-job-related exam did not demonstrate that they were any better qualified than those who failed, the court found it “fair to assume that all of the applicants who are able to pass the same agility test and medical examination will be capable of performing at least as well as the eighty-four men already hired.” Id. With the goal of “remedying the disparate impact of the firefighters exam by placing those frustrated applicants on a parity with the eighty-four men who have been hired,” 454 F.Supp. at 759-60, the court ordered the immediate hiring of “Blacks and Hispanics who filed applications with the civil service office for the 1975 firefighters exam and who pass both the agility test and the medical examination.” These applicants were also awarded backpay and seniority retroactive to October 1976. Once the 1975 minority applicants were hired, the City would have been required to make all future selections from a pool of qualified minority candidates until the number of minority candidates hired since 1975 equaled the number of white candidates hired since that time, and then to hire one-half of all firefighters from the minority pool until the number of minority firefighters totaled 125. D. The First Appeal Defendants appealed to this Court, attacking both the finding of liability and the remedy. They contended, inter alia, that their selection of an employment test was an administrative decision that could not be overturned if supported by substantial evidence, and that the relief ordered amounted to the imposition of a quota that was unconstitutional, unlawful under § 703(j) of Title VII, and unwarranted by the facts. Plaintiffs cross-appealed, arguing that the district court had improperly limited back-pay to those minority candidates who had taken the exam in 1975 and were to be appointed pursuant to the court’s order, rather than including minority candidates who had taken the exam in 1975 but no longer desired appointment or no longer met the prerequisites and minority individuals who had been deterred from applying by defendants’ past discriminatory practices. This Court recognized that “[n]o manner of legal argument can justify” the virtual absence of minorities on the force, 594 F.2d at 308, but found the district court’s opinions trebly inadequate to permit resolution of the challenges to the relief ordered. First, it was not clear that the district court had considered any of this Court’s recent opinions dealing with quotas. We offered the following guidance with respect to those opinions: Looking to the decisions of our own court, it is reasonably clear that for some of its members quota relief can constitutionally be justified only if necessary to redress ‘a clear-cut pattern of long-continued and egregious racial discrimination,’ and if the reverse discriminatory effects of the quota do not fall upon ‘a small number of readily identifiable’ non-minority persons. Kirkland v. New York State Department of Correctional Services [520 F.2d 420, 429 (2d Cir.), rehearing denied, 531 F.2d 5 (2d Cir. 1975), cert, denied, 429 U.S. 823 (97 S.Ct. 73, 50 L.Ed.2d 84) (1976)]. 594 F.2d at 310. Thus we instructed the district court to consider the relevant authorities expressly and to make appropriate findings, answering such questions as (a) whether its ruling on liability was based on discrimination before or after 1972, and on what theories it relied, and (b) why the quota required the hiring of minorities in a ratio that exceeded their representation in the group of applicants who took the 1975 test. Second, it was not apparent what effect the district court had given to the two pretrial orders that had permitted the City to hire 84 firefighters from the 1975 list. Various interpretations were possible. Plaintiffs contended, for example, that the parties had impliedly agreed that if the test were held invalid, the hiring of 84 blacks and hispanics could immediately be ordered. BFME, on the other hand, contended that plaintiffs had agreed to the interim orders in order “to avoid an early hearing and... in exchange for guaranteed funding for positions which might, but not necessarily would, be assigned to minority group members.” Id. at 312 (footnote omitted). The City contended that the interim orders immunized it from any backpay liability. Since the district court had not explicitly considered the implications of the interim orders, we instructed it to do so on remand. Finally, we noted the district court’s stated view that the disparate impact of the exam could have been significantly alleviated by lowering the passing score. While declining to express a view as to “whether an employer who selects a cut-off score and defends it until the test has been found not job-related can then avoid the implications of that finding by adjusting the passing score to a point where the disparate impact is arguably insignificant,” 594 F.2d at 313 n.20, we directed the district court to explore, on remand, the possibility that some plan which accepts the reduction of the passing mark to six and treats the list as a qualifying list without ranking, subject to passing physical and medical examinations, would, as an interim measure, afford substantial minority representation and be acceptable as part of an overall settlement that the parties may still discover to be the most sensible course of all. Id. at 314. II. PROCEEDINGS LEADING TO THE PRESENT APPEAL A. Structuring of Issues for Consideration on Remand On remand, the parties expressed varying views as to the proper scope of the new proceedings. BFME, apparently envisioning a completely new trial of all the issues in the case, served on plaintiffs requests for more than 180 admissions of “fact,” ranging from the basic concept of civil service hiring, to the validation of the 1975 test, to the state of employment discrimination law in this Circuit. Plaintiffs and the City set considerably narrower sights. The City stated that it wished to submit further evidence on three issues that it described as follows: 1. The effect on disparate impact if the passing score is reduced from 12 to 6 and differential adjustments are made. 2. Adopt a plan which accepts the score reduction and treats this list as a qualifying list without ranking, subject to passing physical and medical examinations, which would afford substantial minority representation on the Fire Department. 3. Whether the City has a long history of notorious discriminatory practices in its hiring policies? Plaintiffs, expressly reserving their position that the City could not avoid liability “by manipulation of the passing score after having been found to have discriminated,” stated that they had no objection to presentation of further evidence on the City’s first and third issues, nor on the second to the extent that it simply reflected the City’s position with respect to remedy. Plaintiffs proposed, in addition, to submit evidence with respect to the current manpower needs and vacancies within the fire department, and with respect to Title VI. As to the latter, plaintiffs stated as follows: After the trial in this case the Supreme Court addressed issues relating to Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et seq., issues which are raised in the pleadings in this case. The record is not clear with respect to the relevance of Title VI to this case, in that there is no evidence relating to receipt of federal funds by the City other than Revenue Sharing funds. The record should be developed on this issue, by having the record reflect the City’s receipt of funds, in order to avoid the necessity for a remand at some future time. In a prehearing order, the district court reviewed the directions given by this Court on the first appeal and determined that a broad-ranging evidentiary hearing was uncalled for. Directing that any additional evidence be limited to that suggested by this Court’s opinion and that necessitated by the passage of time since the district court’s original remedy order, Judge Daly ruled that the issues as to which supplementary evidence would be permitted were the effect of the interim hiring orders, the effect of lowering the passing score on the 1975 exam, and the present personnel needs of the fire department. Discovery on other issues was denied. The court stated that further findings with respect to the appropriateness of quota relief would be based on the prior record. B. The Supplementary Presentations of Evidence An evidentiary hearing was held, limited to the three issues specified by the district court. The defendants offered expert testimony as to various candidate selection methods by which the disparity in pass rates on the 1975 test could be eliminated, assuming the passing level were lowered from twelve to six. Plaintiffs offered expert testimony to show that lowering the passing score from twelve to six would not eliminate the disparate impact of the exam because it would merely decrease the disparity in pass rates from 20.5 percentage points to 14.2 percentage points, still a highly significant statistical difference. The defendants’ expert conceded that merely lowering the test score, without also adopting one of the methods he espoused, would not eliminate the disparate impact of the exam. Testimony on issues other than those specified in the court’s prehearing order was rejected. Thus, when the defendants proffered the testimony of a statistician and a chart to show that the percentage of minorities in the Bridgeport labor market of persons over the age of 18 with a high school diploma would not exceed 18%, the court sustained plaintiffs’ objections on the ground that this issue had been fully litigated at trial and the evidence was beyond the scope of the hearing. Similarly, when plaintiffs called the City’s Comptroller to testify on the subject of the City’s use of federal funds in the fire department, to support their Title VI claim, the court sustained the City’s objection that such testimony would be outside the scope of the hearing. The court stated, after ascertaining that the City’s budget was published, that judicial notice would be taken of the budget. It does not appear that the entire published budget was ever presented to the court. Subsequent to the hearing, plaintiffs filed the affidavit of a paralegal employed by plaintiffs’ counsel, annexing photocopies of four pages described as part of the City’s “Public Employment Employee Roster.” The affidavit stated that these pages showed that in 1971 and 1972, “some federal money,” provided under the Emergency Employment Act, “was used by the City to hire personnel for the Fire Department.” C. The Decision on Liability Following the submission of such supplementary evidence as was allowed, the district court made detailed findings of fact and set forth its conclusions of law. The court found that, even had there been no additional evidence of discrimination, the statistical evidence alone would have established a prima facie case of discriminatory impact. In 1975, when black and hispanic persons comprised approximately 41% of the labor force, the City’s fire department had 427 whites, one hispanic, and no blacks. In its entire history prior to 1975, the City had employed only two minority firefighters, one of them hired in 1938. Following the institution of the present suit, the City had, pursuant to the two orders permitting interim hiring, hired 84 firefighters; 81 of them were white. The court noted that the City’s hiring of minorities approached the “ ‘inexorable zero.’ ” 479 F.Supp. at 109 n.9, quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 342 n.23, 97 S.Ct. 1843, 1858 n.23, 52 L.Ed.2d 396 (1977). “Not surprisingly,” the court found, the City had a strong reputation for discrimination in employment. Indeed, its “reputation for employment discrimination against black and hispanic persons... was ‘by far the worst’ of all cities in Connecticut.” 479 F.Supp. at 106. The court found that the City’s reputation, as well as certain of its actions, described below, deterred minority persons from even applying for City employment: “This reputation created the attitude in the black community that ‘[i]f you’re black, just don’t apply because you won’t get the job.’ ” Id. As to the merits of the 1975 test, the court found again that it was not job related and that it had a disparate impact on minority candidates. The court expressly incorporated its original findings with respect to the invalidity of the test, see Part I. C. supra. In addition the court found that certain parts of the exam were significantly discriminatory against blacks, and that certain of the test score data were improperly used. If adjustments were made for the improperly used data, using the 1975 test as a predictor of job performance would be “ ‘about as good... as tossing a coin.’ ” Id. at 110 n.10, quoting testimony of Dr. John Peck. In answer to one of the questions posed by this Court on the first appeal, Judge Daly found that merely reducing the passing level on the 1975 exam from twelve to six would not spare the City liability for unlawful discrimination. First, the court concluded, on the basis of testimony from experts on both sides, that such a reduction would decrease, but not eliminate, the disparity between the pass rates of whites and minorities; and the resulting disparity would still prove discriminatory impact. The court also concluded that it would be inappropriate for the court to order hiring on the basis of, and to undertake administration of, an employment test that had been proven to have no relation to job skills. Finally, the court found that even if the disparate effects of the 1975 test could be eliminated by lowering the passing level, the City could not avoid liability for employment discrimination, because it had “engaged in a policy and practice of discrimination extending well beyond the 1975 exam.” Id. at 109-10 n.10. The court found that the City had made little or no effort to recruit minority persons for the fire department. Noting that, despite its awareness of its discriminatory policies and reputation, the City had not adopted any affirmative action program until it was forced to do so in order not to lose some $7 million in federal funds, the court found that “[n]o voluntary efforts have been made by the City to comply with its own affirmative action goals for the Fire Department.” Id. at 113 n.12. The court found that “[ajbsolutely no attempts were made to recruit minority applicants” for fire department examinations prior to 1972, id. at 106, and that no significant recruiting efforts were made by the City thereafter. Id. at 107. The court found that the City’s pre-1972 failure to recruit minority persons for the fire department was deliberate. Indeed, the court found that the City had “engaged in a continuing pattern and practice of... actively deterring minority persons who have sought to become firefighters.” Id. at 104-05. For example, it found that, while a coalition of community minority groups, coordinated by a local official of the United States Labor Department, was attempting to recruit minority candidates for the fire department, the City probably impeded these efforts. The City Civil Service Commission’s personnel director furnished the coalition with a notice of the 1975 examination, and stated that familiarity with fire department tools, knowledge of first aid and knowledge of the geography of Bridgeport would be covered on the test. The coalition then, in sessions open to anyone, regardless of race, gave applicants training in these subjects. But the subjects covered by the 1975 test bore no resemblance to these areas; there were no questions involving geography, or first aid, or the use of firefighting equipment. Id. at 107-08. The understandable reaction of the minority applicants who had studied these rather pertinent subjects, only to be confronted with a test that did not mention them, was, “ ‘[t]he City has fooled us again.’ ” Id. at 108. The court found that the City had also engaged in several acts of discrimination against individual minority candidates. Plaintiff Ismael Pomales, for example, took the 1975 exam and passed it. However, he did not receive any notification that he had passed until he was informed that his name was being removed from the eligible list because he had not appeared for the physical agility test that those who passed the written exam were required to take. Other candidates were prevented from even taking the written test. One such candidate, class member Elias Castro, an hispanic with four years’ experience as a firefighter in the United States Air Force, attempted to file his application with the Civil Service Commission in the middle of the afternoon on the last day for filing applications. He was told that it was too late. He was not allowed to speak to the superior of the person who told him it was too late, and he was not informed of any means by which he could appeal or lodge an official complaint. He did not get to take the 1975 exam. Another candidate, plaintiff Harmin Li-nares, filed his application before the deadline and was told that a notice would be mailed to him stating the date and time of the exam. He never received such a notice, and he did not get to take the exam. Finally, the court found that the City’s discrimination against minorities was of long duration. It reviewed the written firefighter exams that the City had given in 1965,1968, and 1971. It found that none of these tests was job related and that all had had a disparate impact on minority applicants. For all these pre-1975 tests combined, those identified as nonminority candidates had passed at the rate of better than one out of every three; of eighteen identified minority applicants, only one had passed. Id. at 108 n.9. Thus, the court concluded that the City had “engag[ed] in a policy and practice of discrimination against black and hispanic persons relative to entry-level hiring in the Bridgeport Fire Department,” id. at 111; see id. at 111-12; and that its pattern of discrimination was “ ‘clear-cut[,]... long-continued and egregious.’ ” Id. at 112. On the basis of these findings the court concluded that the City had violated Title VII, which prohibits discrimination in employment on the basis of race. Noting that the Title VII had not become applicable to municipalities until March 24, 1972, the court found that the combination of the statistical evidence, the City’s use after that date of the results of the discriminatory examination held in 1971, and the City’s policy and history of discrimination, including its deliberate failure to recruit minority applicants, compelled the conclusion that the City’s violation of Title VII dated back to March 24, 1972. Relying on many of the above findings, the court concluded also that the City’s discriminatory policies and practices violated Title VI, dating back to January 1,1971. Stating that Title VI prohibits such discrimination in “ ‘any program or activity receiving Federal financial assistance,’” id. at 111, quoting 42 U.S.C. § 2000d (1976), the court held that the City’s receipt of such funds had been adequately proven. Finally, the district court found that the City had received revenue sharing funds in every year since 1973, and that it had expended these funds, in part, for the operation of its Fire Department. The court concluded that the City’s discriminatory practices had therefore violated the Revenue Sharing Act since January 1, 1973. D. The Remedy In light of its expanded findings and conclusions, the district court fashioned a new remedial order, which we set forth in pertinent part in the margin. The order banned any further use of the 1971 and 1975 exams, set immediate minority hiring goals for the City, required the active recruitment of minority firefighters and the hiring of firefighters on a nondiscriminatory basis after the immediate goals were met, and awarded backpay and seniority relief to victims of the City’s discrimination. After reviewing certain of this Court’s decisions in employment discrimination cases, the court concluded that the City’s long history of egregious race discrimination warranted the issuance of a race-conscious hiring order, and that the court would be shirking its duty were it not to order affirmative relief to remedy past effects of discrimination. The court stated that its own aims were to grant redress to the victims of discrimination, to prevent future discrimination, and to persuade potential minority candidates that future applications for employment in the Bridgeport fire department would not automatically be rejected. The court expressly declined, however, to impose a hiring quota, which it defined as an order requiring the relatively permanent use of a specified hiring ratio. Rather, the court determined to set hiring goals for the City, which would lapse when the specified number of minority offers had been made, concluding that the imposition of such goals was “the only effective means of remedying past discrimination.” Id. at 114. The court elaborated as follows: [T]his Court is of the opinion that merely ordering nondiscriminatory hiring in the future, even coupled with the requirement that the City actively recruit minority candidates, would be inadequate either to remedy past discrimination or “to assure prospective minority candidates that applying is no longer futile.” Association Against Discrimination in Employment v. City of Bridgeport, supra, 594 F.2d at 311 n.13. “The effects of... past violation[s] of the minority’s rights cannot be eliminated merely by prohibiting future discrimination, since this would be illusory and inadequate as a remedy. Affirmative action is essential.” Rios v. Enterprise Association Steamfitters Local 638, [501 F.2d 622, 631 (2d Cir. 1974)]. Id. at 113-14. In setting the hiring goals for the City, the court looked to the period during which violations had been found and to the ratio between Bridgeport’s minorities and nonmi-norities. On the basis of its ruling that the City’s violations of Title VI dated back to January 1, 1971, the court selected the period starting on that date as its time frame. Within that period, the court observed that the City had hired 152 white firefighters, one hispanic firefighter, and three black firefighters. Having noted at the outset of its opinion that black and hispanic persons in 1975 comprised approximately 41% of Bridgeport’s labor force, the court observed that “[t]he hiring of an additional 102 minority persons would create a situation in which the percentage of minority firefighters hired since January 1, 1971 roughly would equal the percentage of minority persons in the population of the City.” Id. at 115 (footnote omitted). The court therefore ordered the City to compile a list of 102 persons to whom firefighter positions are to be offered. The list is to be comprised, first, of those minority individuals still seeking to be firefighters who filed applications for either the 1971 or the 1975 exam and who can pass the City’s agility test and medical examination; if there are fewer than 102 such persons, the list is to include minority persons who can prove to a special master that they were deterred by the City’s discriminatory practices from applying to take either the 1971 or the 1975 exam, and who can pass the agility test and medical exam; and finally, if the total number of applicants and deterred would-be applicants is less than 102, additional minority persons, identified by a method to be devised by the City with the approval of the court, are to be added until the total reaches 102. The order requires the City, as quickly as possible within the limits of its ability to train new firefighters, to offer the 102 persons on the list active employment in the fire department and prohibits it from hiring any other individuals as firefighters until all of the persons on the list have been offered such employment. In addition, the court ordered the City to compile a list of up to 102 persons to be awarded backpay, comprised, first, of persons who were applicants or deterred would-be applicants for the 1971 or 1975 exam whose names are placed on the list of persons to whom employment must be offered; if there are fewer than 102 such persons, the list is to include minority persons who applied to take the 1971 or 1975 test, but whose names are not on the list of persons to be offered positions, providing they prove to the special master by a preponderance of the evidence that they met the City’s age, residency, driver’s license, education, agility and medical requirements on the date of the exam for which they applied; and finally, if there are fewer than 102 persons in those two groups, the list is to include minority persons not on the list of those to be offered positions, who

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

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

UNITED STATES ex rel. ROONEY v. RAGEN. UNITED STATES ex rel. BERRY v. RAGEN. Nos. 9577, 9578. United States Court of Appeals Seventh Circuit. March 22, 1949. Albert E. Jenner, Jr., Roger W. Barrett, and John Paul Stevens, all of Chicago, 111., for appellants. Ivan A. Elliott, Atty. Gen., and William C. Wines, Asst. Atty. Gen., (George F. Barrett, Atty. Gen. of the State of Illinois, Raymond S. Samow and James C. Murray, Asst. Attys. Gen., of counsel), for appellee. Before MAJOR, Chief Judge, and KER-NER and DUFFY, Circuit Judges. MAJOR, Chief Judge. These are separate appeals from identical orders, entered December 24, 1947, in each of which a petition for writ of habeas corpus was denied, dismissed and quashed, and the relators remanded to the custody of the respondent. The issues in the two cases are substantially the same, they were heard together below and the separate appeals have here been consolidated. Petitioner Rooney filed a petition for habeas corpus in the District 'Court on May 31, 1944, which was dismissed on motion of respondent on March 8, 1946. Rooney appealed, and on November 20, 1946, this court reversed the order of dismissal. United States ex rel. Rooney v. Ragen, 7 Cir., 158 F.2d 346 (hereinafter referred to as our former opinion). Petitioner Berry filed a petition for habeas corpus in the District Court on January 13, 1945, The motion of respondent to dismiss was denied on March 6, 1946. Petitioners Rooney and Berry, with Rosalie Rizzo, were tried and convicted of murder in the Criminal Court of Cook County, Illinois, on August 5, 1933. Petitioners were sentenced to the penitentiary for life, and the judgment of conviction was affirmed by the Supreme Court of Illinois, People v. Rooney et al., 355 Ill. 613, 190 N.E. 85. Two other persons, namely, John Jilson and Herbert Arnold, were also named as defendants but, not having been apprehended, were not tried with petitioners and Rizzo. The proceedings in the State court which resulted in petitioners’ conviction are fully set forth in the Illinois Supreme Court opinion and to a lesser extent in our former opinion, which obviates any occasion for their detailed narration at this time. Briefly, a labor dispute was in progress between Goldblatt’s Department Store in Chicago and the Circular Distributors’ Union, of which petitioner Rooney was president. The headquarters of the Union were located near Goldblatt’s. The store had been picketed by the Union, and upon payment of money to Rooney the pickets had been removed. Upon refusal to meet Rooney’s further demands, the pickets were reinstated. A course of vandalism was then inaugaurated, during which windows were broken, stench bombs thrown into the store and merchandise damaged. Gold-blatt’s employed persons to guard the store and watch for window breakers. One of such persons was Stanley Gross, who, at about three o’clock on the morning of May 23, 1933, while seated in an automobile in front of the store, was shot and killed by persons riding in a passing automobile. It was for the shooting of Gross that petitioners were convicted. In our former opinion, we relate in considerable detail the allegations of the petition for habeas corpus filed by Rooney, which we think unnecessary to repeat. The main issue on that appeal was whether his petition was sufficient to require a response by the respondent and to entitle Rooney to a hearing. We concluded that it was, and reversed the lower court’s order of dismissal. The petition, in support of the allegation that Rooney was deprived of due process in violation of the Fourteenth Amendment, relies in the main upon two factors, (1) that certain evidence was introduced at the trial which was obtained as a result of an unlawful search and seizure by Illinois officials and, therefore, in violation of his Federal constitutional rights, and (2) that one Davidson; a witness who testified on behalf of the State and without whose testimony a conviction could not have .been procured, committed perjury, and that such perjury was with the knowledge and connivance of the prosecuting officials. While other issues have been injected into the proceeding, we think they are more or less incidental to the all-important question as to whether Rooney was deprived of due process so as to nullify the judgment of conviction, and the nature of the cases is such that what is said as to Rooney is equally applicable to Berry. It is conceded that Rooney and his co-defendant Rizzo were under surveillance by Chicago officers in Wisconsin for several days and were taken into custody by such officers on June 13, 1933, while sleeping in his cottage in Eagle River, Wisconsin. Rooney was handcuffed, taken from his cottage at the point of a gun, placed in the back seat of an automobile and forced to accompany the arresting officers back to Chicago, all without any warrant or process of extradition. The officers also searched the premises, without a warrant or other process, and as a result found in a drawer a pair of field glasses, which they seized without his consent. The police officers also entered and searched a flat occupied by Rooney and Rizzo in Ber-wyn, Illinois, without a warrant and without their consent. In a dresser drawer they found and seized a receipt for the purchase price of a pair of field glasses. Police officers also entered a garage on the premises of Rizzo’s parents without a warrant or other process and seized an automobile belonging to Rizzo, in which petitioners were alleged to have ridden at the time of the shooting. This automobile was displayed to persons who testified at the trial and was also used by the officers in a re-enactment of the shooting before these witnesses. The police officers also searched the Union headquarters of which Rooney was head, drilled the Union safe and took papers therefrom, all without a warrant. . Prior to trial, the petitioners moved to suppress this evidence illegally seized, the States Attorney confessed that the motion should be sustained and stated that such evidence would not be offered.- Of the suppressed evidence, two items, the pair of field glasses and the receipt showing payment for the same, were admitted over objection. These exhibits were offered for the purpose of corroborating certain details of the testimony given by Davidson. As to these items, Rooney’s counsel in his brief filed before the Illinois Supreme Court stated, “The court, by admitting the field glasses and receipt, permitted corroboration by Davidson upon an immaterial matter.” The Illinois Supreme Court expressed the opinion that the admission of these exhibits was error and criticized the States Attorney because of -their introduction, but held that their admission did not constitute reversible error. Petitioners cite cases in support of the proposition that if the seizure of the evidence in the instant case had been by Federal officers and used in connection with a trial in a Federal court, it would have constituted a violation of the Fourth and Fifth Amendments to the Constitution of the United States, which prohibit unreasonable search and seizure and compulsory self-incrimination. We need not, however, be concerned about these cases because, assuming that such is the law, they admittedly do not apply where the search was made by State officers and the evidence used in connection with a State court trial, which is the situation before us. Nevertheless, petitioners urgently insist that the evidence thus seized was used in violation of the due process clause of the Fourteenth Amendment. Petitioners, while conceding that the Supreme Court has not so broadly interpreted the due process clause, make an impressive argument that the court is headed strongly in that direction. Numerous cases are cited and quoted from, such as Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223; Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029, asserted to demonstrate that four of the Supreme Court Justices are committed to the proposition that a violation of any . of the amendments known as the Bill of Rights by State officers is a violation of the due process clause of the Fourteenth Amendment. And certain expressions by another of the Justices, so it is argued, indicate that he will be aligned with the present minority so as to give the court a majority favorable to petitioners’ contention in the instant matter. We think it would be presumptuous on our part to anticipate or speculate on what the Supreme Court will hold if and when it is presented with the instant question. It may be, as argued, that the Supreme Court is advancing steadily in the direction claimed, but it will be time enough for us to follow that court when such a decision is made. It is neither our purpose por desire to accelerate or become the torch bearer for this ever expanding interpretation of the due process clause by which solemn judgments of State courts are impugned and new avenues of escape suggested to, if not provided for, those against whom such judgments have been pronounced. When Rooney’s case was previously before this court, we thought the most important and in fact the controlling issue presented by his petition was that his conviction (as well as Berry’s) was obtained as the result of the perjured testimony by the witness Davidson, with the knowledge, consent and connivance -of the prosecuting attorneys. An affidavit of recantation made by Davidson was attached to Rooney’s petition, which we treated and considered as a part of the petition, but we also held that upon a hearing such affidavit would be inadmissible in evidence. We based this holding upon Walker v. Johnston, 312 U.S. 275, 284-285, 61 S.Ct. 574, 85 L.Ed. 830. A further, reading of that opinion leaves no room for doubt but that the Supreme Court so held. More than that, the court held that upon a trial the petitioner had the burden of sustaining his allegations by a preponderance of evidence. At the hearing, this affidavit of recantation (as well as other affidavits made by Davidson) were admitted in evidence over the objection of respondent. In view of what the Supreme Court has held, we think they were improperly admitted, but in any event they cannot be relied upon as proof of the perjury alleged. Davidson was called as a court’s witness and both sides were permitted to cross-examine him. In his testimony he repudiated his so-called recantations and reaffirmed the incriminating testimony which he gave at the criminal trial. Petitioners were present at the hearing but neither of them saw fit to take the stand and testify in support of their petitions. It is doubtful if there is any competent evidence in support of the perjury charge and certainly none which would have permitted the trial court to make a finding to that effect. But assuming that Davidson committed perjury, there is no proof whatever that he did so with the knowledge and connivance of the prosecuting attorneys. Without doubt, Davidson is a man of bad repute as to truth and veracity, as well as otherwise. The lower court characterized him as a “habitual liar,” and petitioners in their brief describe him as a “drunken, irresponsible, untrustworthy, psychopathic, flophouse bum with a criminal record.” We find no reason to disagree with this harsh description of him. However, it cannot be denied that Davidson on the night of the murder was in a position where he could have acquired facts to which he testified. According to all the testimony, he was in the Union headquarters on <the night of the murder, in company with Rooney and Berry, and we suppose that no person is a liar of such huge proportions that he is incapable of sometimes telling the truth. His testimony was scrutinized by the jury and, corroborated as it was, must have been believed, and this notwithstanding the fact that a number of witnesses testified that his general reputation for truth and veracity was bad. Davidson, as the lower court pointed out, was “certainly not the type of man that a prosecutor would pick out as a witness if he were to choose the type of man that he might use as a witness, * * * yet I probably know very little more about that man than Judge Harry Miller knew when he rendered judgment, against petitioners.” And it is axiomatic that whatever we may think of the veracity of Davidson or the weight which we might give to his testimony if we were the triers of the facts are of little consequence. That is not the province of a reviewing court, particularly in a proceeding of the instant nature but was peculiarly within the domain of the jury. Much criticism, some of it bitter, is directed at the attorneys who represented the State in the criminal trial. Superficially, some of it seems justified, but upon a careful consideration of the situation as it existed we are not greatly impressed. The activities which are assailed may be divided into two parts, those occurring prior to the conviction and those subsequent. Included in the former, as heretofore noted, is the manner of Rooney’s arrest in Wisconsin and his return to Illinois, as well as the illegal seizures. While the activities in this respect cannot be judicially condoned, we do not think they amounted to a violation of the due process clause of the Federal constitution, and we think there is no merit in the criticism that Davidson was kept under “protective custody” by the States Attorney’s office from a few days after the murder until the time of the trial and afterwards, and that during such time he was kept at good hotels and paid considerable sums of money by the States Attorney’s office for his own comfort and for the support of his wife. The States Attorney was confronted with a situation of major importance. A citizen engaged in a lawful occupation had been brutally murdered and the States Attorney was well within his rights in using every means necessary to protect Davidson or any other witness who had any knowledge as to the perpetrators of the crime. It is not difficult to visualize what would have happened to Davidson if he had been permitted to return to his haunts on West Madison Street. The treatment accorded to Davidson by the States Attorney’s office and the means which were employed to protect him pending the trial certainly neither prove nor tend to prove that Davidson was induced to commit perjury. It was all consistent with the sworn obligation of the States Attorney to use every lawful means at his command to insure that Davidson would be available as a witness at the trial. Moreover, most of this pre-trial treatment accorded Davidson was or could have been developed at the trial. At this point it may be observed that petitioners in the trial which resulted in their conviction, as well as before the Supreme Court of Illinois where their conviction was affirmed, were represented by an able and experienced criminal lawyer. It is also claimed that the States Attorney’s office had knowledge of Davidson’s past history which they deliberately kept from the jury. This charge rests upon the fact that objections were made by the prosecutors and sustained by the court as to certain cross-examination of Davidson as to previous minor offenses. All of such offenses, however, such as his service in the Illinois State Training School for Boys at St. Charles, his service in the Chicago House of Correction, and similar offenses, were misdemeanors, and we think it requires no citation of authority for the Illinois rule that a witness cannot be impeached by showing that he has previously been convicted of a misdemeanor. In any event, the objection of the States Attorney to this character of cross-examination cannot by any stretch of the imagination indicate that the witness was committing perjury. The treatment accorded Davidson by the States Attorney’s office subsequent to the trial is of little consequence, even though it shows that he was kept under “protective custody” for some time, was paid considerable sums of money and was employed by the City of Chicago at the procurement of the office of the States Attorney. It perhaps is true that the magnanimous interest which the States Attorney’s office displayed in this witness for so long a time is unexplained. But we have no difficulty in discerning that it was regarded as essential that he be protected until the cáse was finally disposed of. More than that, it is disclosed that two other defendants, John Jilson and Herbert Arnold, indicted with but not tried with petitioners, were later apprehended and tried and that Davidson was a witness in that trial. There is no basis for the intimation that this after-trial treatment of Davidson by the States Attorney’s office shows knowledge that his testimony was perjured, and in any event whether the precaution exercised in this respect was greater than the circumstances required is of no concern to the petitioners. It bears no relation to their charge that they were deprived of a fair trial. This case is an illustration of the wide spread and ever increasing abuse now attendant upon the use of the writ of habeas corpus. Designed as a sacred remedy to protect the liberty of the citizen, it has deteriorated to the point where it now serves chiefly as a means by which those confined in prison are enabled to make any kind of a charge, however heinous it may be, against those responsible for their conviction. The prisoner becomes the accuser and public officials, including the Judge who pronounced sentence, the defendants. Such officials, both living and dead, often with enviable records of honorable public service, become the targets of every character of charge capable of conception by the fertile mind of a person in prison who has no responsibility and nothing to lose. And the regrettable fact is that courts, particularly Federal courts, must in the main share the responsibility for this unsavory situation. It is not difficult to visualize that confidence in the administration of justice and the integrity of courts cannot long endure under the system which is presently being tolerated. In our previous opinion we acknowledged our indebtedness to court-appointed counsel, and we desire to reaffirm our appreciation. The same counsel which we appointed represented petitioners in the court below and again represent them on these appeals. They have contributed freely of their time and have presented the issues before this court with a degree of skill and learning which we have seldom witnessed. The record discloses that Judge Barnes gave the petitioners every opportunity to prove the charges by which they sought to obtain their discharge. He concluded that the proof was not sufficient, and with this conclusion we agree. The orders appealed from are, therefore, 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. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.

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

In re Gilbert ALCALA, Darlene Alcala, Debtors. Richard A. CANATELLA, Plaintiff-Appellant, v. Edward F. TOWERS, Trustee, Defendant-Appellee. No. 89-15372. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 20, 1990. Decided Nov. 1, 1990. Richard A. Canatella, San Francisco, Cal., for debtors, plaintiff-appellant. Michael St. James, Rosenblum, Parish & Bacigalupi, San Francisco, Cal., for defendant-appellee. Before LIVELY, FLETCHER and REINHARDT, Circuit Judges. The Honorable Pierce Lively, Senior Circuit Judge of the Sixth Circuit, sitting by designation. LIVELY, Circuit Judge: This case concerns an attempt by an attorney for Chapter 7 debtors in bankruptcy, who was never employed by the trustee, to collect a fee for alleged post-petition services to the bankruptcy estate. The bankruptcy court denied the request for an attorney fee, and the district court affirmed. We agree that the attorney is not entitled to be paid from estate assets, and affirm the judgment of the district court. I. Attorney Richard A. Canatella prepared and filed a petition in bankruptcy on behalf of Gilbert Alcala and Darlene Alcala (the debtors) on September 19, 1983. The “Schedules of Assets and Liabilities” filed with the petition listed personal property, consisting of household goods, supplies, and furnishings, wearing apparel, jewelry, etc. with a total value of $7,500. The schedules listed no contingent or unliqui-dated claims. The debtors’ “Statement of Affairs” listed two lawsuits to which the debtors were parties at the time they filed the petition in bankruptcy. One listing disclosed that Gilbert Alcala was a defendant in a state court action that apparently had no connection with the present case. The other listed case was pending in the Bankruptcy Division of the U.S. District Court for the Northern District of California, and was described as “Frink, et al. v. Walsh, et al.” with no indication of what the debtors’ involvement was in the case. After Edward F. Towers had been appointed trustee in bankruptcy of the debtors, Canatella made two motions on behalf of the debtors requesting the trustee to abandon certain property of the estate. These motions, dated November 2 and December 19, 1983, requested the abandonment of the debtors’ cross-claims and third-party claims against various parties in the adversary action pending in bankruptcy court as Frink v. Walsh. The motions for abandonment described the debtors’ claims as seeking to enforce a written contract for the payment of money and for the cancellation of certain deeds of trust. The motions, signed by Canatella, described the claims as “inconsequential, or nonexistent” and stated that they should be abandoned so the debtors could proceed to prosecute them. Neither the motions nor pleadings in Frink v. Walsh that were attached as exhibits referred to a claim against Bank of America NT & SA (the Bank). The pleadings contained claims by the debtors only against Robert Frink and various Frink entities. The trustee consented to the abandonment of the Frink v. Walsh claims and the bankruptcy court entered an order approving abandonment on February 10, 1984. The order stated that it appeared the claims had “no value to the estate, or at best only inconsequential value to the estate.” Meanwhile, on January 20, 1984, and unbeknownst to the trustee, Canatella filed a complaint on behalf of the debtors in a California state court against Robert Frink, the Frink entities and others. The claims were similar to those the debtors had asserted in their pleadings in the adversary proceedings. Again, the Bank was not a party and no allegations were made that would state a claim against the Bank. On May 23, 1984, the debtors, through Canatella, filed an amended complaint in the state court action against Frink. The amended complaint sought damages from the Bank for breach of contract, breach of covenant of good faith and fair dealing, fraud and interference with a business relationship. The claims against the Bank, as alleged, arose before the debtors filed their original petition in bankruptcy. Subsequently, the debtors filed a second amended complaint expanding their claims. Just prior to filing the first amended complaint Canatella and the debtors entered into a “Legal Service Contract” by which the debtors retained Canatella to represent them “in the matter involving Gilbert Alcala v. Bank of America, et al.” The contract established an agreed rate of compensation for legal services with a 35 percent contingency provision and granted Canatella a lien on the debtors’ claims against the Bank and any cause of action filed thereon. II. A. Canatella did not inform the trustee of the claims against the Bank at the time he filed the first or second amended complaint. Upon learning of the claims, the trustee employed special counsel pursuant to section 327 of the Bankruptcy Code, 11 U.S.C. § 327 (1982), to pursue the claims as assets of the estate. After negotiations the Bank agreed to pay $33,000 in settlement of all the claims. The trustee presented the settlement proposal to the bankruptcy court. The debtors, represented by Canatella, objected to the proposed settlement. In addition to their objections to the settlement, the debtors filed a motion to confirm the claims against the Bank as abandoned property of the estate. The bankruptcy court filed findings of fact and conclusions of law finding the settlement “fair and reasonable,” and entered two orders — one approved the compromise settlement and the other denied the motion to declare the claims against the Bank abandoned property. The court found that the causes of action asserted against the Bank in the two amended complaints were the property of the estate and had not been abandoned by the estate. The debtors appealed both orders and the district court affirmed. The debtors then appealed to this court, which affirmed the district court in an unpublished memorandum decision. Noting that the claims against the Bank were based on events that allegedly occurred prior to the filing of the petition in bankruptcy, this court stated: “Therefore, the causes of action accrued pre-petition and are párt of the estate vested in the trustee.” In re Gilbert and Darlene Alcala, 845 F.2d 1029 (9th Cir.1988). B. Canatella opened the next chapter in this litigation by filing a pleading styled “Motion for Order Enforcing Lien on Proceeds of Court Approved Settlement of Bank of America Litigation and Directing Trustee to Pay Debtors’ Attorney Amounts Determined.” Canatella also filed a declaration containing a copy of his contract with the debtors and a 45-page exhibit detailing time spent and expenses incurred purportedly in pursuit of the claims against the Bank, with a statement due for services in the amount of $68,242.84. After a hearing the bankruptcy court denied the motion for order enforcing lien, noting that “Mr. Ca-natela [sic] was never retained by the estate but, rather, represented the debtors and not the Trustee, and that Mr. Canatela represented interests adverse to the estate.” Canatella appealed to the district court, which affirmed denial of the motion on several grounds. The court found the motion procedurally defective as an application for compensation because notice was not given to creditors as required by Bankruptcy Rule 2002, and defective as an attempt to enforce a lien because it was not brought as an adversary proceeding under Part VII of the Bankruptcy Rules. The district court also found the motion substantively defective under Bankruptcy Code section 329 because Canatella represented interests adverse to the trustee and the estate. III. Canatella’s arguments on appeal are confusing and appear, in part at least, to be based on false assumptions about the record. He appears to claim that the trustee approved abandonment of the claims against the Bank along with the Frink claims. The record totally refutes this contention. The order approving abandonment of the Frink claims was entered before the Bank was made a party to the Frink action and before the trustee knew of the existence of any claims against the Bank. Canatella also appears to contend that the claims against the Bank somehow were not part of the bankruptcy estate, relating this assertion to the fact that he was claiming an attorney fee on the basis of a post-petition contract with the debtors. This position either overlooks or refuses to recognize the holding of this court in his first appeal: “The events from which their [the debtors’] damages arose, certain alleged breaches of contract and fraud, occurred before their Chapter 7 petition was filed. Therefore, the causes of action accrued pre-petition and are part of the estate vested in the trustee.” In re Gilbert and Darlene Alcala, supra, at 2 [845 F.2d 1029 (table) ]. Canatella also argues that the district court’s findings of procedural defects are erroneous as a matter of law because he is not seeking compensation under sections 327-330 of the Bankruptcy Code as an attorney appointed by the trustee. Rather, he asserts, he has a lien under California law that is enforceable from the proceeds of the lawsuit against the Bank even though they have become estate assets. He cites authority to the effect that bankruptcy courts will enforce a lien based on a fee agreement between debtors and their attorney and allow compensation based on the reasonable value of the attorney’s services to the estate. See In re Pacific Far East Line, Inc., 654 F.2d 664, 669 (9th Cir.1981). Pacific Far East Line involved proceedings under Chapter XI of the Bankruptcy Act of 1898. The dispute between an attorney for the debtor and a creditors’ committee was over the priority to be accorded a claim for an attorney fee under a contingent fee agreement. The creditors argued that 95 percent of the fee for services performed before the Chapter XI “arrangement” should be treated as an unsecured claim. The district court held, however, that the attorney had a lien on funds generated by a settlement of claims of the debtor against third parties, and that the fee was payable directly from the settlement fund. Id. at 666-67. Critical factual differences make Pacific Far East Line totally inapplicable to the present case. In that case the contingent fee contract was made prior to the commencement of bankruptcy proceedings, and most of the services were rendered prior to that time. The attorney pursued a claim on behalf of the debtor for more than three years before the debtor filed its Chapter XI petition. One month after the filing, while a lower court’s decision in favor of the debtor was on appeal, the third parties offered a settlement that would result in the bankruptcy estate receiving $10 million in damages and other valuable concessions. The bankruptcy court appointed the debt- or’s attorney special counsel to conclude the settlement. After the estate received the settlement funds, the bankruptcy court found that the contingent fee agreement of 15 percent represented reasonable compensation and awarded the attorney $1.5 million payable immediately from the settlement funds. Id. at 667. Affirming the award, this court found that the attorney had a valid lien that was enforceable against the settlement proceeds. “Under California law, the lien takes effect from the date it was created; upon the fund’s production, the lien attaches to the specific asset.” Id. at 669. Since the lien was created more than three years before Chapter XI proceedings were begun, it had priority from that earlier time rather than from the date of the payment of the settlement, as contended by the creditors. Id. at 669-70. In other words, the claims that produced the fund already were encumbered with the attorney’s lien when they became estate property in the Chapter XI proceeding. When the claims ripened into a monetary settlement, the lien attached to this asset of the estate. The present case is distinguishable in many respects. Although based on later-filed pleadings, the claims against the Bank arose before the commencement of Chapter 7 proceedings. The debtors and Canatella did not reveal these claims in the bankruptcy petition or schedules. Canatella was never appointed an attorney for the estate, either before or after the trustee discovered the existence of the claims and began pursuing them. At the debtors’ and Cana-tella’s instigation, the trustee abandoned the claims against the Frink entities. At that time, there was no indication that the debtors were asserting claims against the Bank. Furthermore, the debtors and Cana-tella did not enter into the fee agreement until after the order approving abandonment of the claims in the Frink action was entered. Only then did Canatella file the first amended complaint on behalf of the debtors, asserting claims against the Bank for the first time. Thus, the claims against the Bank that ultimately ripened into a settlement did not come to the estate encumbered with an attorney’s lien. The lien could not have attached until the fee contract was made. This occurred months after the Chapter 7 petition was filed and after the claims had become estate assets. Canatella and the debtors could not create a lien on estate property by their fee agreement. Finally, Canatella argues that his representation of the debtors with regard to the claims against the Bank benefited the estate. It is clear, however, that Canatella’s efforts to collect from the Bank were made on behalf of the debtors, not for the benefit of the estate. He consistently took the position that the trustee had abandoned the claims against the Bank and filed a motion long after the Frink claims had been abandoned seeking to have the court confirm that the claims against the Bank had been included in the earlier order of abandonment. The bankruptcy court denied that motion, and when the district court affirmed, he appealed to this court. Only after this court conclusively determined that the claims against the Bank were property of the estate that had not been abandoned to the debtors did Canatella seek to enforce an attorney’s lien on the proceeds of the settlement. IV. This court reviews the findings of fact of a bankruptcy court under the clearly erroneous standard and considers questions of law de novo. Bankruptcy Rule 8013; In re Anderson, 833 F.2d 834, 836 (9th Cir.1987). A. The bankruptcy court’s findings of fact are not clearly erroneous. The estate did not abandon the claims against the Bank; they remained assets of the estate. This question was settled upon the first appeal to this court. Further, the record fully supports the finding that Canatella represented the debtors, not the estate, in his efforts against the Bank. At all times he contended that the Bank claims had been abandoned. When special counsel for the estate reached an agreement with the Bank to settle the claims, Canatella filed objections on behalf of the debtors. The findings that Canatella consistently took positions adverse to the trustee and that his efforts conferred no benefit on the estate are supported by the record. B. The rulings of the bankruptcy court and the district court are correct as a matter of law. The post-petition contingent fee agreement did. not create a lien on the proceeds of the settlement. Putting aside the procedural deficiencies of Canatella’s efforts to collect from the estate, the fee claim does not satisfy the basic criterion for any allowance of compensation to an attorney from the funds of an estate in bankruptcy. Section 330 of the Bankruptcy Code limits such payments to “reasonable compensation for actual, necessary services rendered by such ... attorney.” While an attorney for a debtor may be allowed compensation to the extent that his or her services benefit the estate, section 330 limits such compensation to reasonable charges for actual and necessary services, rendered “in contemplation of and in connection with” the bankruptcy case. In re Yermakov, 718 F.2d 1465, 1472 (9th Cir.1983). The findings of fact that we have affirmed demonstrate that Canatella’s services were neither actually for the benefit of the estate nor necessary for its proper administration. We agree with the court’s statement in In re Reed, 890 F.2d 104, 106 (8th Cir.1989): [A]n attorney fee application in bankruptcy will be denied to the extent the services rendered were for the benefit of the debtor and did not benefit the estate. Canatella rendered his services for the benefit of the debtors, and took positions throughout all the proceedings that were adverse to the interests of the estate rather than for its benefit. These services were not compensable under section 330 of the Bankruptcy Code. The judgment of the district court is AFFIRMED.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals.

Was there any amicus participation before the court of appeals?

The INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, and Lodge 1021, International Association of Machinists, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 300, Docket 24385. United States Court of Appeals Second Circuit. Argued April 9, 1957. Decided Aug. 2, 1957. Plato E. Papps, Washington, D. C., Sturm & Perl, New York City, for petitioners. Kenneth C. McGuiness, General Counsel, Stephen Leonard, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Margaret M. Farmer, Attys., National Labor Relations Board, Washington, D. C., for respondent. Clarence M. Mulholland, Toledo, Ohio, Edward J. Hickey, Jr., Washington, D. C. (Mulholland, Robie & Hickey, Washington, D. C., of counsel), for Railway Labor Executives’ Ass’n, amicus curiae. Before HAND, MEDINA and WATERMAN, Circuit Judges. WATERMAN, Circuit Judge. This case is before us upon the petition of the International Association of Machinists, AFL-CIO, and Lodge 1021 of that union, pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board issued against the petitioners based upon a finding of unfair labor practices committed by them. The Board’s decision and order are reported at 116 N.L.R.B. No. 92 (1956). We have jurisdiction under the Act because the conduct found by the Board to constitute unfair labor practices occurred in New Britain, Connecticut, within this judicial circuit. In 1954 the New Britain Machine Company and the petitioners entered into a collective bargaining agreement, effective for a period of two years, covering a production and maintenance unit. The agreement contained a union security provision requiring employees who were union members to “maintain their membership in the Union in good standing” during the life of the agreement as a condition of their continued employment. A member’s failure to maintain such a status would entitle the union to request his discharge by the company. The maintenance of membership provision contained the following proviso: “ * * * provided, however, there shall be during the period of this contract, annual escape periods from March 7 to March 22 inclusive, within which escape periods any Union member may resign from the Union and be relieved of the obligations of maintenance of membership by written notice to both the Union and the Company indicating such resignation, and such notice shall also operate as a simultaneous revocation of the employee’s checkoff authorization under 4.3.” Edward Batogowski was an employee of the New Britain Machine Company and a union member who had signed a checkoff authorization. By letter dated March 21, 1955, Batogowski notified the Company that he was resigning that day from the union. The Company removed Batogowski’s name from the checkoff list. It then, in April, 1955, sent to Lodge 1021 a list of those employees who had canceled their checkoff authorizations, including Batogowski. Batogowski made no dues payments to the union after his letter to the Company. On May 17, 1955, the recording secretary of Lodge 1021 wrote Mr. Morrow, a vice-president of the Company in charge of industrial relations, informing him that the union had “received no official notification” of resigning and checkoff cancellation from Batogowski or from John Stochmal, another employee whose name had been placed on the list sent to the union in April. The letter of the recording secretary then directed the Company’s attention to the requirement in the bargaining agreement that both the Union and the Company must receive written notice of a union member’s resignation during an escape period in order for that resignation to be effective. On May 26 the Company official replied, stating that the Company had “investigated these two cases and is satisfied that the notices to the Union were properly placed in mail channels to the Union,” and asserted that proper mailing of the notice by the employee was sufficient compliance with the requirements of the escape period provision. The collective bargaining agreement contained provisions for a grievance procedure, with ultimate resort to arbitration of any unsettled issues. Sometime during May 1955, a grievance meeting was held. At the hearing before the Trial Examiner of the NLRB the union representative testified that at this meeting he told Morrow that the union had not received notices from the two employees, and that under the union constitution these employees would cease to be “members in good standing” after the lapse of a 90-day grace period measured from March 1, 1955, the date at which the employees’ obligation to tender the first unpaid installment of dues arose. The union representative further testified that at this May meeting he stated that if the two employees paid their back dues, the union would consider the matter closed. The Company adhered at that time, however, to its interpretation of the collective bargaining agreement and its contention that the two employees had sufficiently complied with the resignation provisions. Unsatisfied with this position, the union filed a formal grievance with the Company on June 16, 1955, at which time neither Batogowski nor Stochmal had tendered any back dues. It was the union’s claim that the attempted resignations were ineffective and therefore the two employees were no longer “members in good standing.” The grievance was considered by a Company official, who after a further examination upheld the Company’s original position. The grievance remained unresolved, however, and the parties resorted to arbitration. Sometime after June 20 but before the parties resorted to arbitration in August, Stochmal tendered his back dues, which were accepted by the union, and thus that employee was restored to the status of a “member in good standing.” There was evidence at the hearing held by the Trial Examiner of the NLRB tending to show that sometime prior to the arbitration hearing the union requested that the Company discharge Batogowski because he was no longer a “member in good standing.” The issue originally submitted for arbitration was framed as follows: “Did Employee Edward Batogowski resign from the Union membership and revoke his checkoff authorization under Article IV of the Contract?” The parties later agreed to add the following question to the statement of the issue: “And if not, (to) what remedy, if any is the Union entitled under the Contract?” The arbitrators held their hearing in the latter part of August and handed down their decision on November 28, 1955. This decision, written by the “third arbitrator” and concurred in by the arbitrator selected by the union, stated that Batogowski’s attempted resignation was ineffective because they found that no notice thereof was received by the union. The award of the arbitrators reads as follows: “Employee Edward Batogowski did not resign from the Union and revoke his checkoff authorization in accordance with Article IV of the Contract. “The Union is entitled under the Contract to require the discharge of Edward Batogowski.” Morrow learned of the award on the same day it was made. He immediately summoned Batogowski to the office, told him of the award, and suggested that he pay his back dues. Batogowski sent Lodge 1021 a note on that very day— November 23 — stating that he was enclosing a money order for $20 “representing arrears in dues as of today. If [there is] any monetary difference as to the accuracy of my calculation, please let me know promptly, as it is my desire to pay my dues in full.” It was stipulated before the Trial Examiner that Batogowski tendered the full amount of his back dues. At a meeting of Lodge 1021 held on December 1, 1955, the members voted not to accept Batogowski’s tender of dues, and the treasurer returned the money order to him. On December 6, the recording secretary wrote Morrow advising him of the union’s decision and requesting that the Company discharge Batogowski. Morrow rejected this request and set forth the company’s reasons for so doing. In the ensuing weeks the union repeated its request, but the Company stated that it would discharge Batogowski only when it was assured that it would not be committing an unfair labor practice thereby or depriving Batogowski of his legal or contractual rights. The Union representatives continued to press their demand for Batogowski’s discharge. Finally, at a meeting with Morrow on February 1, 1956, they threatened a strike unless their demand was met. The next day Morrow apprised Batogowski of the union’s stand, and informed him that his employment was terminated. On the same day Morrow notified the NLRB of the Company’s decision to discharge Batogowski and the circumstances prompting this action. The Company also charged the union with the commission of unfair labor practices in requesting Batogowski’s discharge and in threatening to strike if the request were not granted. A complaint was issued, and the NLRB took jurisdiction. “The Company understands that subsequent to the arbitration award, Edward Batogowski made full tender of back dues to the Union. In view of this fact, the Company may not legally discharge Mr. Batogowski for non-payment of Union dues. Under a recent decision of the National Labor Relations Board, both the Company and the Union would be subject to an unfair labor practice charge if the Company were to discharge Mr. Batogowski now. We refer you to the case of Aluminum Workers, A. F. of L., decided by the NLRB on May 6, 1955, and reported at 36 LRRM 1077 * * * On these facts, the Board found that the union had violated sections 8(b) (1) (A) and 8(b) (2) of the Act by “unlawfully demanding the discharge of Edward Batogowski.” In addition to the usual cease and desist order, the Board ordered the reinstatment of Batogowski, with back pay damages, if any, to be borne by the petitioners. The Board reasoned that although the petitioners were entitled to request Batogowski’s discharge at the time of the arbitration award on November 23, 1955, Batogowski had “made a full and unqualified tender of back dues after the arbitration decision had been announced and before the actual discharge had taken place.” Therefore the petitioners, subsequent to that tender, “were no longer privileged to lawfully require Batogowski’s discharge.” In support of this analysis, the Board relied on the following broad language in its own opinion in Aluminum Workers International Union, Local No. 135, AFL, 112 N.L. R.B. 619, 621 (1955), enforcement granted, N. L. R. B. v. Aluminum Workers International Union, 7 Cir., 1956, 230 F.2d 515: “ * * * a full and unqualified tender made anytime prior to actual discharge, and without regard as to when the request for discharge may have been made, is a proper tender and a subsequent discharge based upon the request is unlawful.” We reverse the Board’s order and decision finding the petitioners guilty of unfair labor practices under sections 8 (b) (1) (A) and 8(b) (2). We believe that the quoted language from the Board opinion in the Aluminum Workers case is an incorrect statement of the law. We are therefore remanding this case for further proceedings to ascertain the reason or reasons motivating the requests for Batogowski’s discharge that were made by the petitioners subsequent to November 23. The legislative intent embodied in sections 8(a) (3) and 8(b) (2) of the National Labor Relations Act was examined and discussed by the Supreme Court in considerable detail in Radio Officers’ Union of Commercial Telegraphers Union, A.F.L. v. N. L. R. B., 1954, 347 U.S. 17, 40-41, 74 S.Ct. 323, 335, 98 L.Ed. 455: “ * * * The policy of the Act is to insulate employees’ jobs from their organizational rights. Thus §§ 8(a) (3) and 8(b) (2) were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union without imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to § 8(a) (3) which authorizes employers to enter into certain union security contracts, but prohibits discharge under such contracts if membership ‘was not available to the employee on the same terms and conditions generally applicable to other members’ or if ‘membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership’. Lengthy legislative debate preceded the 1947 amendment to the Act which thus limited permissible employer discrimination. This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concern about ‘free riders,’ i. e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. Thus an employer can discharge an employee for nonmembership in a union if the employer has entered a union security contract valid under the Act with such union, and if the other requirements of the proviso are met. No other discrimination aimed at encouraging employees to join, retain membership, or stay in good standing in a union is condoned.” Under the applicable language of section 8(b) (2), 29 U.S.C.A. § 158(b) (2), a labor organization commits an unfair labor practice only if it causes an employer “to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues * * * uniformly required as a condition of * * * retaining membership.” (Emphasis added.) The petitioners here argue that there was no finding by the Board that their request for Batogowski’s discharge was motivated by anything other than that employee’s failure to tender his periodic dues. To this contention the Board replied that the requests for Batogowski’s discharge that were made on December 6, 1955, and thereafter, must have been motivated by some other reason because Batogowski had tendered the full amount of accrued back dues to the union on November 23, 1955 — the day of the arbitration award. Moreover, the Board argues, the Company would have committed an unfair labor practice if it had acceded to the union’s request for Batogowski’s discharge prior to the outcome of the arbitration, because the Company until that time would have had “reasonable grounds for believing that Batogowski’s union membership was * * # terminated for reasons other than [his] failure * * * to tender the periodic dues. * * *” 29 U.S.C.A. § 158(a) (3) (B). That is, until November 23, the Company believed that Batogowski’s union membership had been terminated by an effective resignation during the “escape period.” But, answer the petitioners, even if the Company was entitled to deny the union requests for Batogowski’s discharge made prior to the outcome of the arbitration, the Company was thereafter required to grant the request subsequent to November 23 because on that date the Company learned that Batogowski had not effectively resigned from the union during the preceding March. Thus his subsequent failure to tender the monthly union dues as they fell due deprived him of his status as a “member in good standing” and empowered the union to request his discharge under the terms of the existing collective bargaining agreement. And, according to the petitioners’ reasoning, Batogowski’s tender of back dues on November 23 was too late to defeat the union’s right to request his discharge, because at that time, under the union constitution, Batogowski had not been a “member in good standing” for almost six months. The underlying theory of this argument is that once the union’s right to request an employee’s discharge has arisen under the terms of the collective bargaining agreement, it cannot be defeated by a subsequent belated tender of back dues. We believe that there is considerable merit to the petitioners’ contention, and it finds support in at least two of the earlier Board decisions. See Chisholm-Ryder Co., 94 N.L.R.B. 508, 511 (1951); Ferro Stamping and Mfg. Co., 93 N.L.R.B. 1459, 1504 (1951). See generally Note, The Ability of A Union To Cause A Discharge For Nonpayment of Dues Under The Taft-Hartley Act, 45 Geo.L.J. 250 (1956-57). In the Ferro case the Trial Examiner stated that the failure to tender periodic dues “is not automatically canceled-out by a subsequent tender of payment, unless acquiesced in by the union or unless the union’s own regulations provide for restitution of membership rights upon correction of the default.” 93 N.L.R.B. at 1504. In ChishoIm-Ryder the Board applied this principle in holding that a tender of back dues by a union member who was delinquent in his payments did not defeat the union’s right to compel that employee’s discharge under a union security provision. The rationale of the Chisholm-Ryder holding is obvious. If labor organizations are to be allowed effective enforcement of union security provisions, they must be free to invoke the sanction of loss of employment against those union members who are delinquent in tendering their periodic dues. This sanction might become meaningless if an employee could avoid its impact by an eleventh hour tender of back dues just prior to actual discharge. Moreover, an employer might effectively frustrate the expeditious collection of dues by warning recalcitrant employees to tender their dues when the union finally pressed its request for discharge by resort to the NLRB arbitration, or, as here, by threat of strike. It seems clear to us that Congress did not intend that the efficacy of valid union security provisions should depend solely on the employer’s willingness to act promptly upon a request for an employee’s discharge when the validity of that request is not in issue. Rather, we believe that the employee who is delinquent in paying his union dues is a “free rider,” whose discharge can be compelled by the union under an applicable union security provision even though that employee belatedly tenders his back dues in full before actual discharge. Throughout the proceedings below, counsel for the NLRB, the Trial Examiner, and finally the Board itself relied upon the statement quoted above from the Board opinion in the Aluminum Workers case. Hence neither the intermediate order of the Trial Examiner nor the final decision of the Board contains a finding as to the reason or reasons underlying the requests for Batogowski’s discharge made subsequent to his tender of back dues on November 23. We believe that such a finding is crucial in a proceeding involving a charge brought under section 8(b) (2). That is, a violation of that section can be sustained here only upon a finding that the petitioners requested Batogowski’s discharge for some other reason “than his failure to tender * * * periodic dues.” We are therefore remanding this case to the NLRB for further proceedings in order to ascertain whether the demands for discharge made after November 23 were based, even in part, upon some ground other than nonpayment of dues. In its brief on appeal, the Board compared the union’s acceptance of Stochmal’s belated tender of dues with its subsequent refusal to accept Batogowski’s tender. The Board then argued that the requests for the latter’s discharge after November 23 must have been motivated by resentment over his insistence on arbitration rather than by his failure to tender periodic dues. Although on appeal we cannot sustain the finding of unfair labor practices on an inference that was not explored by the triers of fact, we do point out that this comparison in treatment may be relevant to the inquiry for which we are remanding this case. In upholding a Board finding of a section 8(b) (2) violation, this court has given great weight to evidence of any disparity in a union’s treatment of different employees, all of whom were similarly delinquent in tendering back dues. See N. L. R. B. v. Biscuit & Cracker Workers, 2 Cir., 1955, 222 F.2d 573, 575-577. Here Batogowski tendered his dues as soon as he was conclusively apprised that he was so obligated. His refusal to tender dues or to permit their checkoff, subsequent to March 1955 but prior to the outcome of the arbitration proceedings, was motivated, from all that appears in the record below, solely by his good faith belief that he was not a member of the union after March and thus was not obligated to tender periodic dues after that date. A finding by the Board that the demands for Batogowski’s discharge subsequent to November 23 were prompted, even in part, by union pique over that employee’s resort to grievance and arbitration procedures would provide ample basis for concluding that the petitioners had violated sections 8(b) (1) (A) and 8(b) (2). Clearly, Congress never intended that union security provisions could be invoked to penalize an employee whose only “error” was that he insisted on a full exhaustion of procedures expressly provided for in the collective bargaining agreement before he would concede his indebtedness to the union. Reversed and remanded to the NLRB for further proceedings there in accordance with this opinion. . That letter read as follows: “At the regular Lodge membership meeting held in the Lodge Hall at 434 Main Street, in New Britain, on December 1, 1955, the award of the Arbitrators on the Arbitration between the New Britain Machine Company and the International Association of Machinists Lodge No. 1021, regarding employee Edward Batagowski was read and thoroughly discussed. It was voted unanimously by all the members present at the meeting that the Lodge abide by the Arbitrators decision of November 23, 1955 on Edward Batagowski. “We request that Edward Batagowski be discharged under Article IV in the Contract between the New Britain Machine Company and the International Association of Machinists and Lodge No. 1021, IAM, dated March 22, 1954.” . That letter, dated December 12, 1955, insofar as here relevant, read as follows: . Section 8(b) (1) (A) provides: “(b) It shall be an unfair labor practice for a labor organization or its agents— “(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to proscribe its own rules with respect to the acquisition or retention of membership therein; * * * ”. . Section 8(b) (2) provides: “(b) It shall be an unfair labor practice for a labor organization or its agents— S: * * * * “(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.” . At the hearing below the parties stipulated that “ * * * the question of whether or not Batogowski sent a proper resignation to the union * * * ” is not an issue in this proceeding, having been resolved by the same parties through the arbitration proceeding. In its opinion the Board characterized the arbitration decision in this case “as a fair and voluntary settlement of the factual issues presented in that proceeding.” The Board then relied upon its decision in Spielberg Mfg. Go., 112 N.L.R.B. 1080, 1082 (1955), where it said, “ * * * the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by [the Board’s] recognition of the arbitrator’s awards.” Thus the arbitration decision was not disputed on appeal. . On appeal, the Court of Appeals for the Seventh Circuit based its affirmance on two grounds, neither of which involved the broad rule set forth by the Board. See N. L. R. B. v. Aluminum Workers International Union, 7 Cir., 1956, 230 E.2d 515. The court held that on the particular facts of that case the employee’s tender of dues was timely, and that in any event it was made prior to the union’s “operative demand” for the employee’s discharge. The court also queried the union’s reason for requesting the discharge, suggesting that it was based on some other ground than nonpayment of dues. . Section 8(a) (3), insofar as here relevant, reads as follows: * * * Provided further, That no employer shall justify any discrimination against añ employee for nonmembership in a labor organization * * * if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; . See also the remarks of the late Senator Taft made on the Senate floor while the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., was in the course of enactment. E. g., 93 Cong.Rec. 3827 ; 93 Cong.Rec. 3953 (1947); 93 Cong.Rec. 4317-4318 (1947); 93 Cong.Rec. 4887; 93 Cong. Rec. 5087-88 (1947). See S.Rep. No. 105, 80th Cong., 1st Sess. 6-7 (1947); Legislative History of the Labor Management Relations Act, 1947, pp. 412-413, 1010, 1096. . See Note, The Ability of A Union To Cause A Discharge Por Nonpayment of Dues Under The Taft-Hartley Act, 45 Geo.L.J. 250, 259-61, 264 (1956-57). . Efforts by a union to procure an employee’s discharge for a variety of reasons other than nonpayment of periodic dues or initiation fees have been held to be unfair labor practices. E. g., failure to pay a fine or other assessment, N. L. R. B. v. International Ass’n of Machinists, Local No. 504, 9 Cir.1953, 203 P. 2d 173; Custom Underwear Mfg. Co., 108 N.L.R.B. 137 (1954); Westinghouse Electric Corp., 96 N.L.R.B. 522 (1951); Electric Auto-Lite Co., 92 N.L.R.B. 1073 (1950); affirmed 6 Cir., 196 F.2d 500, certiorari denied 1952, 344 U.S. 823, 73 S.Ct. 23, 97 L.Ed. 641; Pen and Pencil Workers Union. Local 19593, AFL, 91 N.L.R.B. 888, 886 (1950); acceptance of a wage lower than the one establislied as union scale, International Brotherhood of Teamsters, AFL, 110 N.L.R.B. 287 (1954); activities in a rival union, Wagner Iron Works, 104 N.L.R.B. 445, 450 (3953) ; failure to attend union meetings, Hunkiu-Conkey Constr. Co., 95 N.L.R.B. 438, 436 (1951); circulating a petition criticizing the method of selecting a shop steward, Air Products, Inc., 91 N.L.R.B. 1381 (1950).

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

LORDS LANDING VILLAGE CONDOMINIUM COUNCIL OF UNIT OWNERS v. CONTINENTAL INSURANCE CO. No. 96-1033. Decided June 2, 1997 Per Curiam. In this diversity ease, the holding of the federal appellate court below has been called into question by a recent decision of the highest state court in Maryland. We must decide whether it is appropriate, in these circumstances, for this Court to grant the petition for certiorari, vacate the judgment of the lower court, and remand the case (GVR) for further consideration. Petitioner, an association of condominium owners, sued respondent in Maryland state court, seeking to compel respondent to pay a $1.1 million judgment it had obtained against respondent’s insured, the developer of its condominium complex. In a previous action, a jury had held the developer liable for numerous defects in the complex, finding that the developer had made misrepresentations and breached various warranty obligations. Respondent had issued a general liability insurance policy covering the developer. The policy provided that respondent would pay “ 'those sums that [the developer] becomes legally obligated to pay as damages because of . . . “property damage” to which this insurance applies.”’ App. to Pet. for Cert. 2a. Under the policy, “property damage” was covered only if it was caused by an “accident.” Respondent removed the action to the United States District Court for the District of Maryland, based on the parties’ diversity of citizenship. The District Court granted summary judgment in favor of respondent. On August 6, 1996, the Court of Appeals for the Fourth Circuit affirmed. The Court of Appeals held that, as a matter of Maryland law, an “accident” does not include the “natural and ordinary consequences of a negligent act.” Id., at 4a (internal quotation marks omitted) (citing I A Construction Corp. v. T&T Surveying, Inc., 822 F. Supp. 1213, 1215 (Md. 1993) (quoting Ed. Winkler & Son, Inc. v. Ohio Casualty Ins. Co., 51 Md. App. 190, 194-195, 441 A. 2d 1129, 1132 (1982))). Because the damages awarded in the underlying action were for breach of warranties and misrepresentations relating to poor workmanship, the Court of Appeals concluded that the damages were not caused by an “accident” within the meaning of respondent’s insurance policy. The Court of Appeals denied a petition for rehearing on September 3, 1996, and issued the mandate on September 11, 1996. On September 17, 1996, petitioner’s counsel learned of Sheets v. Brethren Mutual Ins. Co., 342 Md. 634, 679 A. 2d 540, a recent decision of the Maryland Court of Appeals— the highest court in Maryland. (Although Sheets was handed down on July 26, 1996, 11 days before the Court of Appeals’ decision, the parties were not aware of the decision until after the mandate was issued, and therefore had not brought the case to the attention of the Court of Appeals. Pet. for Cert. 11.) Sheets cast doubt on the soundness of the Court of Appeals’ decision because it held that “an act of negligence constitutes an 'accident’ under a liability insurance policy when the resulting damage was 'an event that takes place without [the insured’s] foresight or expectation.’ ” 342 Md., at 652, 679 A. 2d, at 548 (citation and internal quotation marks omitted). The Maryland Court of Appeals also expressly disapproved Ed. Winkler & Son, supra, at 1132, and IA Construction Corp., supra, at 1215, two decisions on which the Court of Appeals had primarily relied. 342 Md., at 654-655, and n. 4, 679 A. 2d, at 549-550, and 550, n. 4. On September 20, 1996, petitioner filed a motion asking the Court of Appeals to recall or stay its mandate based on this development in Maryland law. In its response, respondent argued in part that the Court of Appeals lacked authority to recall an already issued mandate. In a brief order, the Court of Appeals denied petitioner’s request, ruling only that “the said petition and motions are without merit.” App. to Pet. for Cert. 11a. Petitioner now asks us to grant certiorari, vacate the judgment below, and remand the case to the Court of Appeals for further consideration in light of Sheets. Pet. for Cert. 13-14. This case fits within the category of cases in which we have held it is proper to issue a GVR order. “Where intervening developments, or recent developments that we have reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, a GVR order is ... potentially appropriate.” Lawrence v. Chater, 516 U. S. 163, 167 (1996) (per curiam). The situation here is virtually identical to that in Thomas v. American Home Products, Inc., 519 U. S. 913 (1996), a state-law case from earlier in this Term. There, after the Court of Appeals for the Eleventh Circuit ruled against petitioners, the Georgia Supreme Court overruled the holding that was the basis for the federal appeals court’s holding. Id., at 914 (Scalia, J., concurring). The appellate court nevertheless denied a petition for rehearing, and we GVR’d. As Justice Scalia wrote in concurrence, our order was in keeping with our “longstanding practice” of vacating a court of appeals’ decision based on a construction of state law that appears to contradict a recent decision of the highest state court. Id., at 915. “[A] judgment of a federal court ruled by state law and correctly applying that law as authoritatively declared by the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved of their former rulings and adopted different ones.” Huddleston v. Dwyer, 322 U. S. 232, 236 (1944) (per curiam). Given Sheets’ explicit disapproval of the cases on which the Court of Appeals based its decision, there is reason to question the correctness of the Court of Appeals’ decision. It is true that petitioner brought Sheets to the attention of the Court of Appeals in a motion to stay or recall its mandate and that the Court of Appeals denied this motion. But the Court of Appeals’ ambiguous statement that petitioner’s request was “without merit” does not establish that it actually considered and rejected petitioner’s Sheets argument. In opposing petitioner’s motion, respondent argued that a court of appeals lacks authority to recall its mandate, and the Court of Appeals may have rested its denial of petitioner’s motion on this procedural ground. Respondent does not argue otherwise. Indeed, the procedural ground is by far the most likely, given Sheets’ explicit repudiation of the precedent on which the Court of Appeals’ original judgment hinged. Moreover, we have at least once before issued a GVR order where petitioners notified the Federal Court of Appeals of an intervening State Supreme Court’s opinion in a second petition for rehearing, which the Court of Appeals denied. See Huddleston, supra, at 235. In these circumstances, we now grant certiorari, vacate the judgment below, and remand the case to the Court of Appeals for further consideration.

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?

Arthur D. JACOBS, Appellant, v. William P. BARR, et al., Appellees. No. 91-5061. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 6, 1991. Decided March 27, 1992. Greta Van Susteren, with whom John P. Coale, Washington, D.C., was on the brief, for appellant. Irving Gornstein, Atty., Dept, of Justice, Washington, D.C., for appellees. Willard K. Tom, Washington, D.C., was on the brief, for amici curiae, urging that this Court affirm the District Court’s decision to dismiss Mr. Jacobs’s complaint. Before: MIKVA, Chief Judge, EDWARDS and RUTH BADER GINSBURG, Circuit Judges. Richard Thornburgh was Attorney General of the United States when Mr. Jacobs filed his complaint on March 9, 1989. William P. Barr is now Attorney General, and he has been substituted for Mr. Thornburgh under Fed. R.App.P. 43(c). Opinion for the Court filed by Chief Judge MIKVA. MIKVA, Chief Judge: Fifty years ago, President Roosevelt authorized his Secretary of War to send Japanese Americans to internment camps solely because of their race. Four years ago, Congress passed a Civil Liberties Act to compensate the victims of the policy, and to apologize for the “grave injustice” they had suffered. 50 App. U.S.C. § 1989a(a). Today, Arthur Jacobs, an American citizen who says he was detained with his German father in 1945, argues unexpectedly that the Civil Liberties Act is unconstitutional. Because the Act compensates interns of Japanese and Aleutian, but not German, descent, he says it denies him the equal protection of the laws. We disagree with the district court’s conclusion that Mr. Jacobs has no standing to bring his suit. He alleges that he was denied compensation under the Act even though he, like the children of Japanese Americans, was interned by the United States government, and that is enough to establish injury under Article III. But we reject Mr. Jacobs’s claim on the merits. After three years of testimony from hundreds of witnesses, Congress concluded that Japanese Americans were detained en masse because of racial prejudice and demagoguery, while German Americans were detained in small numbers, and only after individual hearings about their loyalty. Congress’s conclusions, which are amply supported by the historical record, suggest that the decision to compensate Japanese but not German Americans can survive the most exacting equal protection review — let alone the intermediate scrutiny that the Supreme Court requires us to apply. I. BackgRound Arthur Jacobs was born in Brooklyn in 1933 and was interned, along with his German father, at Ellis Island in February, 1945. His complaint alleges that was interned “as a consequence of the internment of his father,” ¶ 15, but he provides no details about why, precisely, either he or his father was interned. (At oral argument, his counsel conceded that the father was interned after an individual hearing, rather than as part of a mass deportation program of the kind directed against the Japanese. She could not say, however, whether Mr. Jacobs was ordered by the government to accompany his father, or whether he went because his father chose to keep the family together. Transcript of Oral Argument at 12.) In April, 1945, the family was transferred to an internment camp at Crystal City, Texas, where they remained until the beginning of December. At Crystal City, Mr. Jacobs says that he was treated no differently than the children of Japanese interns, who taught him, he alleges, how to “eat sushi” and to make “sandals and kites.” Affidavit of Arthur D. Jacobs at 2. On August 10,1988, Congress passed the Civil Liberties Act of 1988, Title I of “An Act to Implement the Recommendations of the Commission on Wartime Relocation and Internment of Civilians.” Pub.L. No. 383; 50 App. U.S.C. § 1989-1989d. Recognizing that “a grave injustice was done both to citizens and permanent resident aliens of Japanese ancestry by their forced relocation and internment during World War II,” Congress attempted to make amends by issuing a formal apology and $20,000 to each Japanese intern. 50 App. U.S.C. §§ 1989a, 1989b-4. In the same legislation, Congress passed the Aleutian and Pribilof Islands Restitution Act, which authorizes an apology and an award of $12,000 to each eligible Aleut. 50 App. U.S.C. §§ 1989c, 1989c-5. Congress found that the Aleuts were relocated to Alaska “long after any potential danger to their home villages had passed” and that the “United States failed to provide reasonable care” for them and for their property. 50 App. U.S.C. § 1989a(b). Congress passed the Civil Liberties Act after collecting volumes of evidence about the injustices suffered by Japanese Americans. It had previously authorized three years of investigation by a Commission on Wartime Relocation and Internment of Civilians. The Commission’s conclusions, presented to Congress in a December 1982 report called Personal Justice Denied, relied on hundreds of thousands of documents and testimony from over 750 witnesses. Id. at vii, 1. The Commission found unambiguously that Executive Order No. 9066 and the military orders affecting Japanese Americans were the products of prejudice and demagoguery, rather than military necessity. Personal Justice Denied at 4-6, 27-46. But it also found that “no mass exclusion or detention, in any part of the country was ordered against American citizens of German or Italian descent,” and that actions against German or Italian aliens were “much more individualized and selective than those imposed on the ethnic Japanese.” Id. at 3. In enacting the Civil Liberties Act, Congress noted that the premises relied on in Supreme Court decisions upholding the internment have been repudiated by scholars, by former government officials, and more recently, by courts. See, e.g., H.R.Rep. No. 278, 100th Cong., 1st Sess. 9 (1987). In 1983, Fred Korematsu, Gordon Hirabaya-shi, and Minoru Yasui, who had challenged the constitutionality of the internment, reopened their landmark federal cases through writs of error coram nobis. Their wartime convictions for defying the internment policy were vacated, based on evidence that the government had misrepresented and suppressed evidence that racial prejudice, not military necessity, motivated the internment of Japanese Americans. Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal.1984); Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash.1986), aff'd in part and rev’d in part, 828 F.2d 591 (9th Cir.1987); Yasui v. United States, 83-151 BE (D.Or.1984), remanded, 772 F.2d 1496 (9th Cir.1985). None of the decisions was reversed on appeal. For an admirable review of the history of the internment policy, see Hohri v. United States, 782 F.2d 227, 231-39 (D.C.Cir.1986) (Wright, J.), vacated, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Mr. Jacobs filed this purported class action for injunctive and declaratory relief on March 9, 1989. Complaint ¶1¶ 1, 7. Because only interns of Japanese and Aleutian ancestry are entitled to redress under the Civil Liberties Act, he alleges that it discriminates on the basis of national origin in violation of the Fifth Amendment. Id. ¶¶ 1, 8, 17-19. On January 22, 1991, the district court held that he had failed to allege facts establishing his standing to challenge the Civil Liberties Act and dismissed the action. Mem. Op. at 15 (Jan. 22, 1991). This appeal followed. II. Analysis A. Standing The constitutional requirement for standing has three prongs. First, plaintiffs must allege that they have suffered some actual or threatened injury; second, the injury must be fairly traceable to the challenged official conduct and, third, there must be a substantial likelihood that the alleged injuries will be redressed by a judicial decision in the plaintiffs’ favor. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). The broad injury that Mr. Jacobs alleges is that the Civil Liberties Act of 1988 denies him the equal protection of the laws. Complaint, 1117. When the injury alleged is the denial of equal protection, plaintiffs must also allege that they are being denied equal treatment solely as a result of the classification they are challenging. Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394-95, 79 L.Ed.2d 646 (1984). The district court dismissed the complaint because it concluded that Mr. Jacobs had failed to allege any injury at all: The fact that he was interned is simply not enough to establish standing. As the government notes, the plaintiff does not allege that there is any similarity between his internment and that of those persons referred to in the above Acts.... [A]ll the plaintiff argues is that he was interned as the result of his father’s internment. His father may well have been interned for valid reasons.... Mem. Op. at 13-14; id. at 11 (“This Court cannot discern the basis upon which the plaintiff contends that he has been injured by the 1988 Act.”). We conclude that the district court has confused standing questions with defenses on the merits. Mr. Jacobs does allege that there is a similarity between his internment and that of the Japanese and Aleuts. In his complaint, he alleges: “Although Plaintiff experienced the precise harms and losses that the individuals of Aleutian or Japanese ancestry experienced, Plaintiff is not receiving compensation for his harm and losses.” Complaint, 1116. And in his response to defendant’s motion to dismiss, he alleges: “Plaintiff suffered the same injury as a result of the same governmental conduct yet is denied the relief to which he is equitably entitled due to impermissible discrimination or exclusion and for no other reason.” Plaintiffs Response to Defendant’s Motion to Dismiss, filed 7/5/89, at 15-16 (emphasis added). Mr. Jacobs’s complaint is imprecise, but it is sufficient to satisfy the Heckler test which merely requires him to allege that he suffered the same injuries as the Japanese and Aleuts, and that he has been denied compensation because of his national origin. The fact that Mr. Jacobs says he was interned, in other words, is enough to establish injury for standing purposes; he is not required to allege at the outset that he was interned for the same reasons as the Japanese and Aleuts, as the district court suggested. Evidence that the reasons were, in fact, radically different — that the Japanese children, for example, were interned because of virulent racial prejudice while Mr. Jacobs was interned after his father received an individualized hearing— is a defense on the merits, not a bar to standing. The district court also erred when it concluded that “without further facts, the Court must assume that the actions of the government were valid.” Mem. Op. at 14. The Supreme Court has repeatedly stated that when “ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975) (citing Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969)); see also National Wildlife Federation v. Burford, 835 F.2d 305, 312 (1987) (D.C.Cir.1987). The government urges us to impose an even higher standing barrier than the district court. To establish standing, it argues on appeal, Jacobs “must show that he satisfies all the statutory criteria for receiving compensation other than being a person of Japanese ancestry.” Appellees’ Brief at 18. In the government’s view, the only people who have standing to challenge the Civil Liberties Act are those who, but for their race, would themselves have been victims of Executive Order No. 9066. Like the district court, the government confuses standing with merits questions. We reject its ingenious theory, which would have the effect of barring most equal protection challenges even before they have been presented. Cf. McCarthy v. Madigan, — U.S. —, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (cautioning against implication of exhaustion requirement not ordered by Congress or based on sound exercise of judicial discretion). Since we think Mr. Jacobs has adequately alleged injury, we turn to the remaining tests for standing, which he passes easily. The alleged injury (denial of the compensation that equal protection demands) is traceable to the asserted unconstitutional classification in the Civil Liberties Act. As for redressibility, the Supreme Court has noted that a court sustaining an equal protection challenge faces two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion. For that reason, we have frequently entertained attacks on discriminatory statutes or practices even when the government could deprive a successful plaintiff of any monetary relief by withdrawing the statute’s benefits from both the favored and the excluded class. Heckler v. Mathews, 465 U.S. at 738-39, 104 S.Ct. at 1394-95. In this case, a court could order the benefits of the Civil Liberties Act to be extended to Mr. Jacobs, or it could declare the statute a nullity. Congress would then either rewrite the Act to include German Americans in Mr. Jacobs’s class, or it would discard the legislation. In either case, the equal protection violation would be redressed. See generally Califano v. Westcott, 443 U.S. 76, 89-91, 99 S.Ct. 2655, 2663-64, 61 L.Ed.2d 382 (1979) (distinguishing invalidation from extension). B. Further Discovery Although the district court did not reach the merits of the case, the government argues that they are ripe for decision, and a remand would not serve any useful purpose. Mr. Jacobs addressed the merits in his pleadings, and the government briefed them below and on appeal. At oral argument, Mr. Jacobs’s counsel argued strenuously for further discovery, but was unable to show how it could strengthen her client’s case. Her only suggestion was that examination of the War Department’s files might uncover secret evidence that General De-Witt or Secretary of War Stimson said: “We don’t like the Germans; let’s gather them up and let’s lock them up like we are doing the Japanese.” Transcript of Oral Argument at 44. She does not appear to have read the report of the Congressional Commission, which notes that General De-Witt did press for a program that would have allowed the removal of several thousand Germans and Italians from the West Coast. Personal Justice Denied at 286. But because of widespread political opposition to mass detention of Germans and. Italians, Secretary Stimson persuaded President Roosevelt to reject the proposal. Id. at 287. Given the overwhelming evidence supporting-' Congress’s conclusion that there was no mass detention of Germans, and given our deference to Congress’s fact finding, we do not agree that further discovery on a scrupulously reported historical question would cast any useful light on the case. In his pleadings below, Mr. Jacobs did make the remarkable (and entirely inconsistent) argument that further discovery would help him to prove that “there was a military justification for the large-scale exclusion of individuals of-Japanese descent,” because many Japanese were.trying to organize “massive fifth-column activities.” Plaintiffs Response at 3-4. Access to government archives, Mr. Jacobs believed, would help him “demonstrate that there was a good faith basis for the government to promulgate the exclusion orders, that the wartime exclusion and relocation was undertaken in a reasonable manner, [and] that the Plaintiff is, in fact, similarly situated to the persons being compensated under the Acts.... ” Affidavit of Philip B. Allen at 2. It is not clear why Mr. Jacobs toyed with the idea of defending the internment policy, except to argue in the alternative that even if his father had been legitimately detained because his loyalty was suspect, many Japanese were disloyal as well. (The bizarre theory seemed to be that Congress deprived disloyal German interns of equal protection when it compensated disloyal Japanese interns. Plaintiffs Response at 23.) Mr. Jacobs’s appellate counsel, fortunately, suggested at oral argument that her client was no longer seeking discovery on the question of Japanese American treachery, and would concentrate instead on uncovering evidence of prejudice against German Americans. Since Congress has examined that evidence exhaustively, we conclude that the questions that remain in dispute are constitutional not factual, and we have all the information we need to decide them. We turn, therefore, to the merits. C. The Merits 1. Standard of Review There is an initial dispute about our standard of review. In Metro Broadcasting Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990), the Supreme Court held that “benign race-conscious measures mandated by Congress — even if those measures are not “remedial in the sense of being designed to compensate victims of past governmental or societal discrimination’ — are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives.” Id. 110 S.Ct. at 3008-09 (quoting Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 2796, 65 L.Ed.2d 902 (1980)). It would seem hard to claim that the Civil Liberties Act of 1988 — which was designed to compensate victims of past governmental discrimination — should be subject to even stricter scrutiny than the non-remedial measures upheld in Metro Broadcasting. Mr. Jacobs, however, insists that the Civil Liberties Act should be subject to strict scrutiny, and should be upheld only if it is narrowly tailored to meet a compelling governmental interest. Plaintiffs Response at 22; see also Reply Brief for Appellant at 4 (incorporating merits arguments from pleadings below). Metro Broadcasting compels us to reject his argument. There are not yet any cases applying strict scrutiny to remedial racial classifications approved by Congress; on the contrary, strict scrutiny has only been applied to race-conscious remedies designed by municipalities, or lower courts. See Richmond v. J.A. Croson Co., 488 U.S. 469, 490, 109 S.Ct. 706, 719, 102 L.Ed.2d 854 (1989) (“That Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the States and their political subdivisions are free to decide that such remedies are appropriate.”); see also United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (district court’s race conscious remedial order subjected to strict scrutiny). The Paradise Court, however, noted: Although this Court has consistently held that some elevated level of scrutiny is required when a racial or ethnic distinction is made for remedial purposes, it has yet to reach consensus on the appropriate constitutional analysis. We need not do so in this case however, because we conclude that the relief ordered survives even strict scrutiny analysis. Id. at 166-167, 107 S.Ct. at 1064. Like the Paradise Court, we have no doubt that the Civil Liberties Act of 1988 could survive the strictest scrutiny, and like the Paradise Court, we will apply the more exacting test for demonstrative purposes only. The Metro Court made another distinction that controls our decision in this case: Id. 110 S.Ct. at 3011 (emphases added) (citations omitted). Although we do not “ ‘defer’ ” to the judgment of the Congress and the Commission on a constitutional question.... we must pay close attention to the expertise of the Commission and the factfinding of Congress when analyzing the nexus between minority ownership and programming diversity. With respect to this “complex” empirical question, we are required to give “great weight to the decisions of Congress and the experience of the Commission.” The holding of Metro, in other words, is that although courts should not defer to Congress on constitutional questions, we should defer — or give “great weight” — to Congress on empirical questions. We see no difference between “great weight” and “deference,” which the Supreme Court and this Court have consistently treated as synonyms. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981); Commonwealth Edison Co. v. United States Dept. of Energy, 877 F.2d 1042, 1045 (D.C.Cir.1989). In light of Metro and its predecessors, we must give “great weight” to Congress’s factual findings that the Japanese internment program was “motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership,” 50 App. U.S.C. § 1989a, while the internment of Germans and Italians was not. 2. Congress’s Conclusions In enacting the Civil Liberties Act, Congress sought to remedy “a grave injustice” and “fundamental violations” of “basic civil liberties and constitutional rights.” 50 App. U.S.C. § 1989a. In particular, Congress found that the Japanese internment policies “were carried out without adequate security reasons” and “were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.” Id. “The Government unquestionably has a compelling interest in remedying past... discrimination by a state actor,” United States v. Paradise, 480 U.S. at 167, 107 S.Ct. at 1064, especially discrimination as ugly as the policies endorsed by the government in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Unless Mr. Jacobs can show that he, like the children of Japanese descent, was interned because of racial prejudice, then it seems obvious that the remedy Congress chose in the Civil Liberties Act (compensating children of Japanese but not German descent) is substantially related to the ends of the Act (compensating those who were interned because of racial prejudice). The remedy, in fact, would represent a “perfect fit between means and ends.” Croson, 488 U.S. at 526-27, 109 S.Ct. at 738-39 (Scalia, J., concurring in the judgment). But Mr. Jacobs cannot show — he does not even allege — that he was interned because of racial prejudice. The children of Japanese descent were not interned simply because their parents were interned, but because they themselves were subject to the Civil Exclusion Orders issued pursuant to Executive Order No. 9066. See, e.g., Ex Parte Mitsuye Endo, 323 U.S. 283, 288, 65 S.Ct. 208, 212, 89 L.Ed. 243 (1944) (emphasis added) (Civilian Exclusion Order No. 52 excludes “all persons of Japanese ancestry, both alien and non-alien” from Sacramento, California). Mr. Jacobs, by contrast, alleges that he was interned not as a consequence of racial prejudice, but “as a consequence of the internment of his father.” Complaint, ¶ 15. He provides no other details about why, precisely, his father was interned; but his counsel conceded at oral argument that the father was interned as a result of an individual hearing, rather than a mass deportation policy of the kind directed against the Japanese. Transcript of Oral Argument at 15. She did not know whether Mr. Jacobs was ordered by the government to accompany his father, or whether he went because his father chose to keep the family together. Id. at 12. But even if we assume that Mr. Jacobs was ordered to accompany his father, he cannot prevail unless he can prove the following, improbable proposition: that although his father was interned after a valid hearing, he, Jacobs, was ordered to accompany his father because of “racial prejudice, wartime hysteria, and a failure of political leadership.” 50 App. U.S.C. § 1989a. After extensive testimony, however, Congress found that “no mass exclusion or detention, in any part of the country, was ordered against American citizens of German or Italian descent. Official actions against enemy aliens of other nationalities were much more individualized and selective than those imposed on the ethnic Japanese.” Personal Justice Denied at 3 (emphasis added). Congress does not appear to have distinguished in its findings between the treatment of the children of German interns and the treatment of the interns themselves. We do not know, therefore, whether children like Mr. Jacobs were ordered to accompany their fathers as a matter of course; if so, whether they received hearings; or if not, whether it was simply assumed that families would stay together. But this much is clear: Congress’s finding that “no mass exclusion or detention... was ordered against American citizens of German or Italian descent” is broad enough to cover children as well as adults, and it leaves no room for the unlikely suggestion that German American children were the victims of prejudice, while their fathers were not. If evidence before Congress had suggested that German children experienced the same racial prejudice as Japanese children, Mr. Jacobs could certainly argue that Congress was wrong to extend benefits arbitrarily to the Japanese alone. Cf. Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966). Of course Congress cannot exclude an identifiable group from a remedial program because of racial or ethnic prejudice. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 359-360 n. 35, 98 S.Ct. 2733, 2783 n. 35, 57 L.Ed.2d 750 (1978) (opinion of Brennan, White, Marshall, and Blackmun, JJ.). But Congress has concluded that Germans were not subject to the same prejudice as Japanese, and we must give its empirical conclusion “great weight.” Metro Broadcasting, 110 S.Ct. at 3008. Congress’s findings, in any case, would survive any standard of review, since the historical evidence is hardly controversial. (The evidence is discussed in detail in chapter 12 of the Commission’s report, “Germans and German Americans,” id. at 283-293.) The report concludes that in the spring of 1942, the War Department debated whether the power of Executive Order No. 9066 should be used to exclude categories of German and Italian aliens. There were no serious proposals for the mass deportation of all Germans and Italians, but General DeWitt pressed for the removal of several thousand aliens from the West Coast. President Roosevelt rejected the proposal because of widespread political opposition to the detention of Germans and Italians. When the evacuation of the Japanese was about to begin, a congressional select committee called the mass movement of Germans and Italians “out of the question if we intend to win this war.” Report of the Select Committee Investigating National Defense Migration, U.S. House of Representatives, 77th Cong., 2d Sess., H.R. Report No. 1911, p. 24. Accordingly, General DeWitt on the West Coast, and General Drum on the East Coast, issued individual exclusion orders to a small number of Germans and Italians. Personal Justice Denied at 288. The report concludes that visceral prejudice toward Asians, combined with the political influence of Germans accounted for the very different treatment of Japanese and German Americans. Id. at 289. The report also points to cases reversing individual German American exclusion orders as further evidence of the lack of widespread prejudice toward Germans. Id. at 115-16, (discussing Schueller v. Drum, 51 F.Supp. 383 (E.D.Pa.1943) and Ebel v. Drum, 52 F.Supp. 189 (D.Mass.1943)). These cases are different from the Japanese cases in three respects. First, the exclusion of German Americans, unlike the mass exclusion of Japanese Americans, involved individual administrative and judicial proceedings which focussed on the military threat posed in each case. Personal Justice Denied at 115-16. Second, courts in the German American cases took a skeptical, rather than deferential, view of the military’s sweeping claims about the threat posed by the excluded person. Id. Comparing Mr. Ebel’s case with Mr. Hirabaya-shi’s, for example, the Ebel court concluded: “There is no such question of discrimination involved in this case. The plaintiff Ebel was not ordered excluded because he was a German or because he was a naturalized citizen, but only on the ground he was dangerous to the national defense.” Ebel v. Drum, 52 F.Supp. at 194. Finally, many of the German exclusions were reversed, even though the evidence against the individuals in question was much more compelling than the vague accusations directed at the Japanese. Mr. Ebel, for example, kept up intimate contacts with the German consul, and was an enthusiastic fundraiser for the Kyffhaeu-ser Bund. Id. at 192. The court described Mr. Scherzberg as someone “more imbued with Nazi principles than with American ideals,” Scherzberg v. Maderia, 57 F.Supp. 42, 47 (E.D.Pa.1944), especially since he called the British catastrophe at Dunkirk “a good thing,” and had installed a short wave radio in his car to beam Nazi propaganda throughout greater Philadelphia. Id. at 43-44. Both men, nevertheless, were freed, while Japanese Americans, whose loyalty was never questioned, were imprisoned. In debates over the Civil Liberties Act of 1988, individual members of Congress also emphasized the very different treatment of Japanese and German Americans. Representative Frank, for example, said: “I don’t see how anybody can look at these historical events and deny that racial prejudice is there, when Japanese Americans were treated so differently than German Americans, Italian Americans, or Americans who had an ethnic ancestry affiliated with any other country.” Legislation to Implement the Recommendations to the Commission on Wartime Relocation and Internment of Civilians: Hearings Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm, of the Judiciary, 100th Cong., 1st Sess. 157 (April 29, 1987). Representative Lowry, similarly, explained that he had grown up in a part of Washington in which almost everyone was German, and none of them was interned during the War. Civil Liberties Act of1985 and Aleutian and Pribilof Islands Restitution Act Part 1: Hearings Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm, on the Judiciary, 99th Cong., 2d Sess. 61 (April 28 and July 23, 1986). Representative Panetta, a co-sponsor of the House bill, found it “bitterly ironic — and an unattractive reflection of fear and prejudice — that Americans of German or Italian ancestry were not considered a similar threat even though we were also at war with those countries.” Id., 99th Cong., 2d Sess. 1520 (April 28 and July 23, 1986). And Representative Mineta, who had himself been interned, said: “We did not lock up German-Americans. We did not lock up Italian-Americans_Why is it that we just happened to lock up an ethnic group subject to decades of blatant and cruel discrimination? Because this was the group that popular opinion... demanded to have locked up.” Japanese American and Aleutian Wartime Relocation: Hearings Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm, on the Judiciary, 98th Cong., 2d Sess. 75 (June 20, 21, 27, and Sept. 12, 1984). All this is to say that Congress considered extensive evidence that Japanese Americans were the victims of widespread racial prejudice, while German Americans were not; and we would confidently uphold Congress’s factual conclusions even if we were not compelled, as we are, to give them “great weight.” We conclude, therefore, that Congress’s decision to compensate Japanese but not German Americans is substantially related (as well as narrowly tailored) to the important (and compelling) governmental interest of compensating those who were interned during World War II because of racial prejudice. The district court, finally, did not address Mr. Jacobs’s claim that he is similarly situated to the Aleuts. And since Mr. Jacobs does not even allege that the United States failed to provide him with reasonable care, or that he was relocated from Brooklyn “long after any danger to his home village had passed,” cf. 50 App. U.S.C. § 1989a(b), we will not address it either. III. Conclusion We vacate the district court’s holding that Mr. Jacobs has no standing to bring his suit, but we reject Mr. Jacobs’s claim on the merits. Congress’s finding that Japanese Americans were the victims of prejudice, while German Americans were not, is broad enough to cover children as well as adults; and it is amply supported by historical evidence that the internment policy extended to Japanese

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

Mrs. Fannie Lou HAMER et al., Appellants, v. Sam J. ELY, Jr., et al., Appellees. No. 25610. United States Court of Appeals Fifth Circuit. April 10, 1969. Benjamin E. Smith, New Orleans, La., Morton Stavis, Dennis J. Roberts, George Logan, III, Harriet Van Tassel, Newark, N. J., Alvin J. Bronstein, L. H. Rosenthal, Jackson, Miss., William M. Kunstler, Arthur Kinoy, New York City, for appellants; Irving M. King, Cotton, Watt, Jones & King, Chicago, Ill., of counsel. W. Dean Belk, Jr., Indianola, Miss., Joe T. Patterson, Atty. Gen., Will S. Wells, Asst. Atty. Gen., Jackson, Miss., for appellees. Before WISDOM, THORNBERRY, and GOLDBERG, Circuit Judges. WISDOM, Circuit Judge: May 2, 1967, was a historic day in the Town of Sunflower, Mississippi. That day there was an election to choose a mayor and five aldermen. For most of the Negro electors, it was the first time in their lives that they could cast a ballot. Moreover, the Negroes, constituting a majority of the 900 residents of Sunflower, had a black candidate for mayor and six black candidates for the five aldermanie positions that were to be filled. The list of registered voters showed 190 Negro registrants and 160 white registrants. The candidates campaigned vigorously. Negro leaders extended themselves to educate the voters, many of whom were illiterate, and to explain the mechanics of voting. Came election day. Sunflower overflowed with strangers. These were reporters, representing the wire services and newspapers, and broadcasters and cameramen, some of whom represented national television networks. The wires to Washington had hummed before the election. Three federal observers were present inside the polling place. A federal “team captain” came to the polling booth from time to time during the day. Two attorneys from the Department of Justice were on hand. To the chagrin of the hardworking Negro campaigners, their candidate for mayor lost by a vote of 190 to 121. The five white candidates for aldermen won by votes of 180, 165, 165, 161, and 160 to 111, 105, 105, 104, 77, and 32. It is easy to understand the feeling of the Negro candidates and their supporters. They felt that there must have been skullduggery at the polls. Indeed, with reason, they could and did say that the Board of Election Commissioners should have shown more consideration for the uninformed, often illiterate, Negro casting his first ballot. In a motion asking the district court to set aside the election, the plaintiffs focused their attack on the Election Commission’s refusal to permit illiterate Negro voters to have voting assistance from Negro election officials. After a hearing, the district judge found that the election “was conducted in a completely fair, objective way and that the results thereof truly represent the will of a majority who voted that day”. On the record as a whole, we cannot say that the district court erred. I. The campaign manager for the Negro candidate for mayor and for five of the six Negro candidates for aldermen was Mr. Joseph Harris. He was not a registered voter in Sunflower but he was an employee of the Delta Ministry of the National Council of Churches who had been active for several years in encouraging Negroes in the Delta to register. In preparing for the election, Mr. Harris conducted a survey to determine the number of Negro voters who would need assistance in marking their ballots. Based on this survey and a practice election, he concluded that over one-third of the Negro voters would need assistance at the polls. Attorneys for the plaintiffs discussed this key problem with Mr. Will Wells, counsel for the defendants and an Assistant Attorney General for the State of Mississippi, and arrived at an “understanding”. Mr. Wells testified: That sometime in the latter part of April, prior to the election in May, that I conferred with Mr. Stavis, at the Attorney General’s office in Jackson, discussing the coming election, and I did advise him at that time that it was my understanding, based on conversations which I had had with Mr. Oscar Townsend, who is attorney for the Town of Sunflower, that there would be two Negro men who would be appointed as election officials, clerks, for the holding of that election, and that I further understood that one of them was Joseph Harris; That it was further my understanding, based on my conversations, that in the matter of aiding and assisting illiterates, that those two Negro men would be authorized to assist any illiterate who requested that they aid them in casting their ballots; That on the day before the election * * * it was still at that time my understanding that that would be the procedure. On the evening of May 1, while the Negroes in Sunflower were being assured at a meeting that they would receive voting assistance, the Board of Election Commissioners held a meeting. General Wells urged the Commissioners to allow Negro voting officials to assist Negro voters. The Board of Commissioners, however, decided that only members of the Commission were permitted to render aid to illiterate voters. In addition, there is some indication that the Commission considered that Mr. Harris, both because he was not a registered voter in Sunflower and because he was Campaign Manager of six of the seven Negro candidates, would be an inappropriate choice for an election official. All three commissioners are white. To make matters worse, so the plaintiffs say, one of the commissioners is “a plantation owner” who was running for County Sheriff; he had been a deputy sheriff; and his brother was a candidate for alderman in the May 2 election. Another commissioner operates a grocery store where Negroes frequently purchase goods on credit. The Commission did appoint two Negroes to serve as election officials but they were assigned only ministerial functions. Mr. Harris inscribed the names of the voters in a book. The other Negro official stood near the ballot box and placed ballots in the box as they were handed to him by the voters. The plaintiffs contend that many illiterate Negro voters cast their ballots without aid, rather than disclose how they voted. In support of this contention they point to the fact that there were 27 rejected irregular ballots. The plaintiffs assume that these ballots were all cast by Negroes. This is not necessarily true. In Bell v. Southwell, 5 Cir. 1967, 376 F.2d 659, 662, in setting aside an election, we pointed out: “ * * * the trial Court legally could not assume — as it evidently did — that all white voters would vote for white candidates, all Negroes for Negroes, or that no whites would vote for Negroes in a free, untainted election.” An analysis of the rejected and assisted ballots is inconclusive. On - election night 38 ballots were marked “irregular”, exclusive of 31 ballots marked “assisted”. The Commission accepted 11 of the irregular ballots. Of these, eight had votes for Negro candidates only; two split the votes between Negro and white candidates; one had votes for white candidates only. Of the 27 rejected ballots, 14 had votes for Negro candidates only; 11 split the votes; two had votes for white candidates only. In the race for mayor, an analysis of the 31 assisted ballots shows that 12 votes were east for the white candidate and 19 for the Negro candidate. In the race for aider-men, of the assisted ballots four were for all white candidates; eight were split; 19 were for all Negro candidates. The district judge noted: “It is significant that not one witness was offered, not one witness testified that he or she was illiterate and needed assistance in casting his ballot, but refused to ask for assistance because he did not want a white person to know how his vote was cast.” Of course, it would be naive to doubt that there must have been some Negroes who were unwilling to ask for aid because of a reluctance to disclose or fear of disclosing how they intended to vote. But this election was held in a fishbowl. The report of the federal observers is in the record. Commenting on the report the district judge said: “It speaks clearly and demonstrates that this election was fairly and properly held in every respect, and it is not questioned but that every person who was given assistance was assisted fairly and impartially with the ballot in each instance being marked in exact accord with the voter’s wishes.” II. The larger issue is whether the refusal of the Election Commissioners to appoint two Negro officials to render voting aid was a failure to provide “adequate assistance” to illiterates as required by a proper construction of Voting Rights Act of 1965. This requirement of voter assistance stems from the Voting Rights Act, specifically 42 U.S.C.A. § 1973l(c) (1) which defines the terms “vote” and “voting” as including “all action necessary to make a vote effective * * As the three-judge court said in United States v. State of Louisiana, E.D.La. 1966, 265 F.Supp. 703, 708, aff’d 386 U.S. 270, 87 S.Ct. 1023, 18 L.Ed.2d 39: “We cannot impute to Congress the self-defeating notion that an illiterate has the right [to] pull the lever of a voting machine, but not the right to know for whom he pulls the lever.” In light of this requirement, it becomes “ * * * the duty and responsibility of the precinct officials at each election to provide to each illiterate voter who may request it such reasonable assistance as may be necessary to permit such voter to cast his ballot in accordance with the voter’s own decision.” United States v. State of Mississippi, S.D.Mississippi 1966, 256 F.Supp. 344, 349. The appellants’ position, then, is that the use of only white poll assisters was not “reasonable assistance” in the circumstances prevailing at the Sunflower election. The Sunflower election was governed by the Declaratory Judgment entered in the case of United States v. State of Mississippi, supra, and not by any Mississippi statute. The Mississippi statute dealing with poll assistance was repealed in 1965. This statute provided: “§ 3273. Illiterate voter to have aid. A voter who declares to the managers of the election that by reason of inability to read he is unable to mark his ballot, if the same be true, shall, upon request, have the assistance of a manager in the marking thereof; and the managers shall designate one of their number for the purpose, who shall note on the back of the ballot that it was marked by his assistance; but he shall not otherwise give information in regard to the same.” The action of the Sunflower Election Commissioners, however, was in compliance with the statute as it stood before its repeal. In light of the order in United States v. State of Louisiana, supra, which was tailored to the precise terms of a repealed Louisiana voter assistance statute, the action of the Election Commissioners in the present case, tailored to the terms of a repealed Mississippi statute, would appear to be reasonable. Voters may be motivated by reasons other than fear for not seeking voter assistance, and they have at their disposal a variety of measures to cast their votes without it. Thus, in United States v. State of Louisiana, E.D.Louisiana, 265 F.Supp. 703, 715, the court said: There are varying degrees of illiteracy, and varying degrees of voter intelligence among functionally illiterate electors. Many illiterates are able to respond to symbols and numbers; others will memorize the positions on the ballot of those for whom they wish to vote. Still others, even if unable to do these things, are willing to take their chances rather than reveal their choices to polling officials. Nonetheless, those few voters who do not trust their own ability to cast a ballot effectively and are willing to seek assistance are, under the Voting Rights Act of 1965 as we read it, entitled to that assistance.” The Act requires that voters be apprised of their right to assistance, not that they be induced to accept it. In the Sunflower election, voters were apprised of their right and each was informed that he could request a federal observer to be with him in the voting booth to check the quality of assistance rendered by the election official. On the cold record before us, the attitude of Sunflower’s Election Commissioners may have been shoddy, but it does not justify the “drastic, if not staggering” procedure (Bell v. Southwell, 5 Cir. 1967, 376 F.2d 659) of a federal court’s voiding a state election. Such “drastic” measures are properly reserved for cases involving serious violations of voting rights. Hamer v. Campbell, supra; McGill v. Ryals, M.D.Alabama, 253 F.Supp. 374. III. The plaintiffs also charged that the Election Commissioners used segregated voting lines by giving preference to individual white voters over Negro voters standing in line. The evidence is conflicting. Two witnesses for the plaintiffs testified that while Negroes were waiting in line, whites were admitted to the polling place without any wait at all. A witness for the defendants, employed as bailiff during the Sunflower election, denied the existence of segregated voting lines. He testified that on one occasion he did escort a white voter into the polling place ahead of some Negroes, but that was because the individual concerned was a newspaperman and not a voter. This witness admitted that on two other occasions he had escorted white voters into the polling place, but he insisted that he received permission to do so from the voters in line. One of these preferred voters was a nurse said to be urgently needed; two were a salesman and his wife who worked out of town. The district court concluded that the claim of segregated voting lines was “not sustained by the evidence.” The court noted the absence of any testimony to this effect by the federal observers or members of the news media, and the further fact that of 190 Negroes in Sunflower eligible to vote in the May 2 election, more than 180 participated. * * * Taking the record, as a whole, we cannot say that the findings of the district court were clearly erroneous. The judgment is affirmed. . The election was held under order of the district court issued in accordance with this Court’s decision in Hamer v. Campbell, 5 Cir. 1966, 358 F.2d 215, cert. den. 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79. In that case we concluded that the district court should have enjoined the 1965 election; we ordered that the elec-. tion be set aside and a new one held under a plan to be directed by the district court.

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

LORD SPENCER, Inc., v. M. N. STOUT CO., Inc. Circuit Court of Appeals, First Circuit. May 27, 1929. No. 2334. George S. Ryan, of Boston, Mass. (Ammidon & Bicknell, of Boston, Mass., on the brief), for appellant. Joseph Cavanagh, of Boston, Mass. (Wardner & Cavanagh, of Boston, Mass., on the brief), for appellee. Before BINGHAM and ANDERSON, Circuit Judges, and BREWSTER, District Judge. Rehearing denied July 30, 1929. BREWSTER, District Judge. The appellee, plaintiff below (hereinafter referred to as the plaintiff), recovered judgment against the appellant, defendant below (hereinafter referred to as the defendant), in an action of contract brought to recover damages for breach of a contract to purchase and pay for five carloads of oranges, described in the contract as: “ ‘Yours Truly’ brand Florida oranges average run of sizes, * * * bulge pack.” Defendant’s assignments) of error relate to admission and exclusion of evidence, to certain portions of the judge’s charge, and to his refusal to give certain requested instructions. Some of these assignments were not argued and may be treated 'as waived. Those principally relied upon, and which we deem worthy of notice in an opinion, will be considered. Assignments Nos. 5 and 10 may well be treated together because they relate to the admission in evidence of a letter and to comments during arguments upon facts disclosed in the letter. It appeared in evidence that the five carloads of oranges were shipped by the plaintiff to the defendant, and, upon their arrival in Boston the defendant, on November 30,. 1925, notified the plaintiff by wire that the cars had been examined; that the fruit was of poor quality and “all slack pack”; that it would be impossible to accept .the cars; and that it had notified the defendant’s representative ■ at Boston, who would communicate with the plaintiff. On the same day, plaintiff notified the defendant that it would refuse to accept the rejection of the five cars. On December 1, 1925, the defendant wired the plaintiff as follows: “Answering wire oranges so poor positively cannot handle very sorry to have this: happen true the market has smashed but regardless of market conditions could not accept these cars they, look like wild oranges 'and in addition to that they are not bulge pack and very unattractive have got in touch •with your representative here and inspection is being made.” On the same day one Yalente, who, according to the evidence, was the representative referred to in the defendant’s telegram above mentioned, wrote the following letter to the defendant : “December 1, 1925. “Lord & Spencer, Inc., 21 Northsida Faneuil Hall Market, Boston, Mass. — Gentlemen : In accordance with your request to go to the Boston & Maine R. R. yard, with your man Tom Pierce to examine five ears of oranges that you bought from M. N. Stout Co., Inc., Plant City, Florida, through us aeting as Brokers for M. N. Stout Co., Inc., Plant City, Florida, I. examined ear FGE-20018 and FGE32194. I fear you have been misinformed regarding the quality of these ears. In my opinion both of these ears are a fine run of fruit from the Plant City section. Mr. Pierce tells me that the other three cars are similar to FGE32194 and on account of engine being attached to the string of ears, I did not examine any other ears today. L will examine tomorrow the remaining three cars and if they are as Mr. Pierce [says] similar to 32194, I eannot see any reason why you shouldn’t accept these five cars of oranges. “Yours truly, “JBY/AY John B. Yalente.” To this letter, so far as appears, there was no answer. The trial judge admitted it in evidence over the objection of the defendant, and it constitutes the subject-matter of the fifth assignment. During the course of the argument, plaintiff’s counsel commented on the fact that the defendant had not produced as a witness the Tom Pierce mentioned in Valente’s letter. It is a general rule, subject to important exceptions, that a letter, not part of a mutual correspondence and to which no answer is made, is not admissible in favor of the writer as evidence of the \ptatements therein contained (Morris v. Norton [C. C. A.] 75 F. 912, 924; Callahan v. Goldman, 216 Mass. 234, 103 N. E. 687; Kumin v. Fine, 229 Mass. 75, 118 N. E. 187, 8 A. L. R. 1161); the reason being that a party to the action cannot make evidence for himself by writing a letter to the other party which the latter is not bound to answer (Gregory Consolidated Mining Co. v. Starr, 141 U. S. 222, 225, 11 S. Ct. 914, 35 L. Ed. 715; Fearing v. Kimball, 4 Allen [Mass.] 125, 126, 81 Am. Dec. 690). The record discloses that Valente, the writer of the letter, acted as a broker only.He did not hold any authority from plaintiff to negotiate a settlement of the controversy which had arisen. He was requested by defendant to make the inspection, and his report to defendant after the inspection had been made was a part of the transactions leading up to the final refusal of the defendant to accept the merchandise and the action of the plaintiff following such rejection. This made him a factor in the negotiations for settlement. Moreover, there was competent evidence from other sources tending to show that Valente had been requested to make the inspection, that he had inspected two ears and that the results of the inspection were as stated in the letter, that he had later inspected the remaining three ears and had found those in a similar condition. These facts do not appear to have been in dispute. In view of this situation, it is difficult to see how defendant was hurt by the admission of the letter in evidence. Its admission affords no sufficient grounds for a reversal. The same may be said respecting the comment of plaintiff’s counsel, in his closing argument, upon the failure of defendant to call as a witness its employee who had participated with Valente in the examination of the oranges shortly after they had arrived. The next assignment to be considered is the ninth assignment which relates to the testimony of one Steinbauer, a federal fruit and produce inspector. During the course of the trial, the plaintiff had relied upon certificates of United States inspectors and the testimony of the inspector Mr. Payne, who was in charge of the Boston office at the time the oranges arrived. Mr. Lord, of the -defendant corporation, had on cross-examination given testimony tending to impeach the fairness and intelligence of Payne as an inspector. Other of the defendant’s witnesses sought to bring out that the trade generally treated the government inspections lightly. Mr. Steinbauer was called in rebuttal and when on the stand he was asked, over the objections of the defendant, whether or not he knew anything in regard to his (Payne’s) competency as an inspector, to which he replied that everyone in the service regarded Mr. Payne as one of the best inspectors. The defendant invokes the familiar rule of evidence that when, on cross-examination, a witness is questioned upon collateral matters, the party interrogating cannot com tradict the answers and thus raise an immaterial and foreign issue. Alexander v. Kaiser, 149 Mass. 321, 21 N. E. 376; Fisk v. Fisk (Mass.) 160 N. E. 274. But the evidence of Steinbauer was offered to meet, not only the testimony of Lord in cross-examination, but the testimony of other witnesses, and, furthermore, the issue upon which the question had a direct bearing was not an immaterial or foreign issue. If the defendant had seen fit to minimize the value as evidence of the government inspectors, it was surely open to the plaintiff to meet this attack by the same kind of evidence as that to which the defendant had resorted. While we think that the trial judge, in the exercise of his discretion, might with propriety have excluded the question and answer, yet in view of the foregoing we cannot say that there was error. The twelfth and thirteenth assignments relate to the refusal of the judge to instruct the jury according to the following requests: (5) “If you find that the contract between the plaintiff and the defendant was for the sale and purchase of oranges of a certain quality, and that the oranges shipped were not of that quality, but were in faet of a quality that passed inspection as United States grade number one oranges, then the plaintiff is not entitled to recover and your verdict must be for the defendant. (6) “If the contract between the plaintiff and the defendant was for the sale of fancy oranges, and the oranges shipped were not fancy oranges, but were of the grade known as United States grade number one, then your verdict must be for the defendant.” We see no prejudicial error in the failure of the judge to give these instructions. The principal defense set up to the action was that the sale was one by sample, rather than by description, and that the oranges whieh were delivered did not come up to the sample. The plaintiff, on the other hand, contended that the oranges were sold by description and that the seller’s obligations were discharged by the delivery of merchantable oranges which answered that description. The contentions of the parties, with the resultant issues of fact, were clearly stated to the jury, and they were told in substance that, if the plaintiff had shown the defendant a sample of fancy oranges labeled, “Yours Truly,” and was told that the oranges sold under that name were of the class represented by the sample, then it would be wrong for the plaintiff to ship goods of an inferior quality under the same (trade-name, and the words, “‘Yours Truly’ brand,” used in the contract, would, under the conditions mentioned, contain a representation of quality; but if the jury found that the oranges were not sold with any representation of quality, but were sold by description only, and were of a fairly merchantable quality, then the terms of the contract in this respect were fulfilled. These statements to the jury were correct and fully covered the situation. By their verdict the jury probably found, as they well might have, that the oranges were sold, not by sample, but by description, and that they were of a fairly merchantable quality. The fourteenth and last assignment of error deals with a portion of the judge’s charge with regard to the weight that is to be given certificates of inspection issued by the United States Department of Agriculture. The portion of the charge to which the defendant has objected reads as follows: “Reference has been made in the testimony and in the arguments of counsel to the certificates of inspection by the inspectors of the United States Department of Agriculture. Those certificates are prima faeie evidence of all the facts and statements therein contained, but they are not conclusive evidence and may be controlled or rebutted by other credible evidence in the case. And unless you find that there was a custom or usage in the fruit trade to accept them as decisive and conclusive to the extent that it would be a breach of the usages of the trade among those engaged therein, the facts stated in the Government certificate are open to rebuttal and it is wholly for the jury to say what weight they will give to them as testimony. Prima faeie evidence is a legal term meaning that' the facts stated in the certificates are taken to be true unless overcome by other evidence of a credible and satisfactory character.” We think that all that the trial judge had in mind was to say to the jury that, in the absence of a usage or custom of the trade to treat the certificated as conclusive, they would be open to rebuttal, and for the jury to attach to them such weight as they saw fit. If, as the defendant contends, there was no evidence warranting the jury in finding any such custom or usage, we are unable to say how any harm resulted to the defendant by this statement of the judge. Moreover, there was testimony brought out in the course of the cross-examination of one of the defendant’s witnesses that it was a well-settled custom and usage among fruit and produce dealers in the ease of dispute over quality or conditionj to call for and abide by a government inspection. While the statement of this witness was somewhat weakened in redirect examination and would create a reasonable doubt as to the existence of the custom in the Boston market, there was still some evidence of such a custom, and the jury were, in effect, properly instructed that the certificates would be treated only as prima faeie evidence of the statements therein contained unless there existed a custom which made them conclusive. The assignments of error argued by counsel and not noted above present no grounds for reversal. 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. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be 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?

Oma Belle DAY, Plaintiff-Appellant, v. Walter J. HICKEL, Secretary of the Interior of the United States, et al., Defendants-Appellees. No. 71-1866. United States Court of Appeals, Ninth Circuit. April 10, 1973. W. C. Arnold (argued), Anchorage, Alaska, for plaintiff-appellant. Bradford F. Whitman, Washington, D. C. (argued), G. Kent Edwards, U. S. Atty., Anchorage, Alaska, Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Dept, of Justice, Washington, D. C., for defendants-appellees. Before MERRILL, DUNIWAY and TRASK, Circuit Judges. TRASK, Circuit Judge: The district court by summary judgment upheld a decision of the Secretary of the Interior which rejected appellant’s application for certain lands near Valdez, Alaska, made under the Color-of-Title Act, 43 U.S.C. § 1068. Review by the district court was properly made pursuant to 5 U.S.C. § 704 and this court eyes it under 28 U.S.C. § 1291. We affirm. On the south side of Port Valdez and to the west of the town of Valdez, Alaska, a spit of land which looks to be less than twenty acres in area extends north-westerly into the waters of the port. A narrow neck of earth connects it with the mainland. The tip of this arm of land which is Jackson Spit, is called Jackson Point. The mainland near the spit was formerly an army post, Fort Liscum, and since its abandonment has been public domain subject to the patent applications herein described. In 1929, Andrew S. Day, deceased husband of Oma Belle Day, appellant herein, filed a homestead claim in the District Recording Office at Valdez, Alaska, pursuant to the Act of March 3, 1903, ch. 1002, 32 Stat. 1028, as amended 48 U.S.C. § 371 (1970). This claim included a 50-acre corridor of land to the west of appellant’s present homestead, but the claim was never perfected. The Day family carried on canning operations at Jackson Point for a number of years and constructed a road across the neck, from their mainland holding to the point. Walter Day, son of Andrew, began patent proceedings on the land constituting the western half of Jackson Spit, but abandoned them when he learned the parcel had been patented to one Green or Greenbaum. He later purchased that patent covering the western half of the spit. Mrs. Day cultivated a garden on the eastern half of the spit and the Days operated a small sawmill there. This eastern half of approximately nine acres is a part of the land claimed in this proceeding and is referred to as Tract One. In 1950, Andrew Day refiled his homestead claim (160 acres) in the Anchorage Land Office. Appellant contends that this refiling was intended to extend west to a point where appellant’s refiled claim would have coincided with the western boundary of the unperfected 1929 patent application and would have given access along the road to Jackson Spit. In fact, it left a corridor of land consisting of 50 acres between the westerly boundary of the new homestead claim and the westerly boundary of the claim as originally filed. This is the other parcel of the land to which appellant has laid claim under the Color-of-Title Act and is referred to as Tract Two. The total claim involved is some 59 acres. Appellant contends that she was unaware of the discrepancy in the western boundary of the later homestead claim although its boundaries were clearly marked, until the state filed an application for a selection of it. She then filed a color-of-title application under 43 U.S.C. § 1068, and in a separate case, a protest to the state selection. This application for patent was perfected and a patent issued to Mrs. Day for 160 acres. The Color-of-Title Act, as amended, 43 U.S.C. § 1068, provides in part: “The Secretary of the Interior (a) shall, whenever it shall be shown to his satisfaction that a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation issue a patent for not to exceed one hundred and sixty acres of such land .” (Emphasis added.) The Code of Federal Regulations provides in part: “A claim is not held in good faith where held with knowledge that the land is owned by the United States. . . .” 43 C.F.R. § 2540.0-5(b) In the administrative proceeding which was lodged with the trial court, the Director of the Bureau of Land Management noted that the claims of adverse possession asserted by appellant in support of her color-of-title application were (1) a homestead location made by her deceased husband but never perfected; (2) a trade and manufacturing site location notice filed by Walter Day for land west of Tract One; and (3) a revised homestead application upon which a patent was issued for 160 acres to appellant for United States Survey No. 3328, and lying east of Tract Two. Physical acts of possession asserted consisted of cultivation of a small garden on Tract One, and use of a sawmill there which was later removed to the patented portion of Jackson Spit. Color-of-title possession was also asserted by the construction of a road across Tract One to appellant’s cannery on Jackson Point. The Director of the Bureau of Land Management determined that the unperfected patent of Mr. Day could not, establish rights and that the subsequent patent to Mrs. Day for 160 acres which did not include Tract Two would constitute a bar to any claim based upon a prior unperfected patent entry. The trade and manufacturing site location was entirely within the land already patented on Jackson Spit, and thus no rights could be based upon it. No proceedings were taken to include the lands used for a sawmill or garden outside the patented land at Jackson Spit and the trade and manufacturing location was closed for failure to take action. The patent for the 160 acres under United States Survey No. 3328 was clearly monumented on the ground and there was, therefore, no basis or merit to the claim of appellant that she believed her patent to include the adjacent Tract Two. Finally, the use of a public domain right-of-way to construct an access road to one’s patented land does not constitute a use adverse to the United States because it was in recognition of the government ownership. The Secretary approved the Director’s findings and denied the col- or-of-title application. In the trial court the appellee filed a motion for summary j'udgment recognizing the factual claims of Mrs. Day but asserting that they did not create a genuine issue of fact and that appellee was entitled to judgment as a matter of law. The only opposing affidavit was that of the appellant and was not sufficient in form or content to raise an issue of fact. The court found the facts as the plaintiff asserted them to be, but concluded, as a matter of law, that the appellee should have judgment. The appellant’s mistaken beliefs as to boundary could not. fulfill the requirement of good faith possession where the boundaries of her patent were clearly marked and there was no evidence of actual occupancy of Tract Two. The history of the Act discloses that as originally enacted in 1928 (Act of December 22, 1928, ch. 47, § 1, 45 Stat. ,1069), the Color-of-Title Act provided that when the proper conditions existed “the Secretary may, in his discretion . ” issue a patent. As indicated by S.Rep. No. 732, 70th Cong., 1st Sess. (1928), accompanying the bill, the purpose of the Act was to authorize the Secretary to deal with “eases . . . where lands have been held and occupied in good faith for a long period of time under a chain of title found defective . . . .” (Emphasis added). No mention was made of eases of possession of land where there was no such chain of title. Thus, the history would indicate that there should be excluded from the intent of the Act, land adversely possessed by one who knew that the title was in the United States, but who had no chain of title to it. The 1928 Act was amended in 1953 to read as it now does. The legislative history of the amendment indicates that its purpose was to make mandatory what had been discretionary with the Secretary. “Existing law permits the Secretary of the Interior to issue a patent at his discretion for not more than 160 acres of public land, upon payment of not less than $1.25 per acre, if he is satisfied that the land has been held in good faith and in peaceful, adverse possession by the claimant, his ancestors, or grantors, under claim or color of title for more than 20 years, and that valuable improvements have been placed on the lands or some part thereof has been reduced to cultivation. This bill would make mandatory the issuance of patents in such cases and create a vested right in the land on the part of the setter with a genuine eolor-of-title claim which meets the requirements.” S.Rep. No. 588, 83rd Cong., (1953), 1953 U.S.Code Cong. & Adm.News at pp. 2014, 2015. There having been no change in the claim or color of title requirements, it is not an unreasonable interpretation by the Secretary that possession of lands by one who knows the title is in the United States does not constitute a claim of title which is sufficient under the Act. The Secretary’s decisions have followed that interpretation. Lester J. Hamel, 74 I.D. 125, 129 (1967); Nora Beatrice Kelley Howerton, 71 I.D. 429, 434 (1964). In Howerton, the Secretary stated: “Further, even though land may have been occupied, improved, and held by someone else in good faith for more than 20 years under color of title, if a person acquiring the land is aware that title is in the United States, it has been held that he is lacking in good faith and has no right to a patent under the Color of Title Act. Anthony S. Enos, 60 I.D. 106 (1948) and 60 I.D. 329 (1949); Clement Vincent Tillion, Jr., A-29277 (April 12, 1963).” 71 I.D. at 434. The Supreme Court has held that great deference should be given to the construction of a statute by an administrative agency, Udall v. Tallman, 380 U. S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). That seems particularly apposite in this case. Appellant relies heavily on Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), reversed on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170, rehearing denied, 391 U.S. 961, 88 S.Ct. 1834, 20 L.Ed.2d 875 (1968). “It has long been established that a qualified entryman upon public lands of the United States, whether as a locator of a mining claim, as a homesteader, or as one asserting rights under others of the multifarious laws governing entries on public lands, who perfects his entry by compliance with the applicable Act of Congress, thereby acquires a right to the land as against the sovereign itself, as well as third persons.” 363 F.2d at 196. The Court says nothing in particular about the Color-of-Title Act. It does say that one “who perfects his entry by compliance with the applicable Act of Congress” acquires a right to the land. Appellant’s difficulty is that she has not established her compliance with any applicable Act of Congress. Under her color of title application Mrs. Day stated she was also making application pursuant to 43 U.S.C. § 1431 (Sale of Lands Subject to Unintentional Trespass); 43 U.S.C. § 1171 (Sales of Isolated Tracts); 43 U.S.C. § 682a (Sale of Small Tracts for Residence, Recreation, Business or Community Site Purposes) ; and 48 U.S.C. § 461 (Purchases for Trade or Manufacture). The Director in his decision of December 3, 1969, which was approved by the Secretary, referred to a trade and manufacturing site location notice which described a parcel of land entirely within United States Survey No. 348 which was already patented and subsequently acquired by the Days from the patentee. That claim would lend no support to the contentions made here. However, the color of title application also was based upon umbrella claims encompassing several of the other statutory provisions for sales of public lands including a trade and manufacturing claim. The trial court in its Amended Memorandum of Decision and Order disposed of these claims by stating in its Conclusion of Law No. 8: “8. Applications to purchase public land pursuant to 43 U.S.C.A. §§ 682a, 1171 and 1431 (1964) are not raisable in a Color of Title application and the validity of the Director’s decision is in no way affected by his failure to discuss the merits of those claims.” C.T. at 123. No authority is cited to either statute or regulation for this conclusion. Certainly as a matter of the orderly filing and processing of claims, an application under a color of title claim is not the place to tuck in an omnibus claim based on four other unrelated sections. The Secretary’s regulations in many cases require separate applications for each type of entry (43 C.F.R. § 2562.-1(b) for trade and manufacture), specifying in the form the particular information required to support that individual application. Here the information to support the catch-all claims was designated by the reference “see attachment.” The attachment was a lengthy statement directed to the color of title application. A review of appellant’s statement in the light of the statutory requirements for each of the four claimed entries raises substantial doubt as to its sufficiency. The trial court did not consider these claims bn their merits, and found that the Director and Secretary did not either. We therefore decline to pass upon them until they have been properly presented and considered below. The record indicates there is a competing state selection for a part or all of the lands in controversy. Whether another application or applications under the four collateral sections would be timely, is a matter we also do not reach. Appellant claims an interest in a right-of-way for road purposes. It is undisputed that she or her husband constructed a road between their mainland patent over the neck, across public domain to Jackson Point. No reference was made to this claim in the color of title application which has ripened into this litigation. No charge has been made that the United States has closed or threatened to close the portion of the road over public land. Should it do so, appellant might then complain. United States v. 9,947.71 Acres of Land, 220 F. Supp. 328 (D.Nev.1963). We express no opinion on that question here. A sketch not drawn to scale is attached for purposes of illustration. The judgment is affirmed. . The validity of this protest is not before us in this proceeding.

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?

John A. RICHARDS, Appellee, v. BLAKE BUILDERS SUPPLY INC., and William C. Blake, Appellants. John B. KING, Jr., Ancillary Administrator of the Estate of John Thomas Turner, Deceased, and Raymond G. Turner, Sr., Administrator of the Estate of John Thomas Turner, Deceased, Appellants, v. HARRIS-JOYNER COMPANY, a Foreign Corporation, and Thunderhawk, Ltd., Inc., a Foreign Corporation, Appellees. Arthur Thomas HAWKS and Marsha Kay Congleton Hawks, Appellants, v. HARRIS-JOYNER CO., a North Carolina Corporation; and Thunderhawk, Ltd., Inc., a Foreign Corporation, Appellees. Nos. 74-2010, 74-2302 and 74-2303. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1975. Decided Nov. 10, 1975. John Richard Newton, Wilmington, N.C. (Rountree & Newton, Wilmington, N.C., on brief), for appellee in No. 74-2010. Daniel Lee Brawley, Wilmington, N.C. (Lonnie B. Williams, Marshall, Williams, Gorham & Brawley and James L. Nelson, Wilmington, N.C., on brief), for appellants in No. 74-2010. John B. King, Jr., Norfolk, Va. (Joseph A. Gawrys and Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellants (Thorp & Etheridge, Rocky Mount, N.C., on brief for appellants in No. 74-2303), (Allsbrook, Benton, Knott, Allsbrook & Cranford, Roanoke Rapids, N.C., on brief for appellants in No. 74-2302). Beverly L. Crump, Richmond, Va. (John E. McDonald, Jr., and McDonald & Crump, Richmond, Va., on brief), for appellee Thunderhawk, Ltd., Inc. in Nos. 74-2302 and 74-2303. Henry H. McVey, III, Richmond, Va. (Guy W. Horsley, Jr., McGuire, Woods & Battle, Richmond, Va., on brief), for appellee Harris-Joyner Co. in Nos. 74 — 2302 and 74-2303. Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges. HAYNSWORTH, Chief Judge: In Crosson v. Vance, 4th Cir., 484 F.2d 840, we observed that there was impressive argument for the elimination from admiralty jurisdiction of controversies involving only the operation of small pleasure craft. There we dealt with the claim of an injured water skier against the operator of the towing motorboat. We held that controversy to be not within the admiralty jurisdiction, but we specifically refrained from speculation about the effect of the Supreme Court’s holding in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454, on other controversies involving the operation of small pleasure craft. Now we are confronted with cases arising out of two separate incidents which compel us to address that question. We conclude that admiralty jurisdiction is present, though we think the jurisdiction should be limited to exclude such cases as these. THE VIRGINIA CASES The King and Hawks cases arose out of the explosion of a motorboat while being operated on Lake Gaston, a man-made lake, partly in Virginia and partly in North Carolina, on the Roanoke River. The boat, eighteen feet long and powered by a 170 horsepower inboard-outboard gasoline engine, had been manufactured by Thunderhawk, Ltd. and had been sold to Raymond Turner by Harris-Joyner Company, a retail dealer. On a summer’s day, John Turner, son of Raymond, his wife and two friends, Arthur and Marsha Hawks, were using the boat for an outing on Lake Gaston in Virginia. Shortly after a stop for refueling, there was an explosion, causing the death of John Turner and injuries to Mr. and Mrs. Hawks. These actions were filed by the ancillary administrator for John Turner and by Mr. and Mrs. Hawks against the manufacturer and seller of the boat, alleging causes of action based upon negligence, breach of warranty and strict liability in tort on the part of the manufacturer and the vendor. The district judge read our opinion in Crosson in light of Onley v. South Carolina Electric & Gas Company, 4th Cir., 488 F.2d 758 as indicating no intention to limit Crosson to its facts. He dismissed all of the actions for lack of admiralty jurisdiction. THE NORTH CAROLINA CASE On a Sunday morning in April, a group of friends left Southport, North Carolina at the mouth of the Cape Fear River to attend a fish fry on a bank of the river, apparently upstream from Wilmington. After the fish fry, they decided to go still farther upstream to the first lock and the dam. The plaintiff, John Richards, was one of the passengers in a twenty foot boat powered by two outboard motors which was owned by Blake Builders Supply, Inc. and operated by William Blake. En route up the river from the fish fry, the boat suddenly swerved to port and crashed into the bank. John Richards was seriously injured. In his complaint, the plaintiff claimed negligence on the part of William Blake in the operation of the boat. He sought a large amount in damages. In its reply, Blake Builders Supply, Inc., the owner, sought a limitation of its liability to the value of the boat. The district judge denied a motion to dismiss for want of admiralty jurisdiction. GENERAL Both of these occurrences were on navigable waters. Oceangoing vessels ply the Cape Fear River, at least as far as Wilmington. The record presently does not show the extent of commercial use of the river upstream from Wilmington, but the reference to the lock suggests there is some. There is nothing to suggest that Lake Gaston, though navigable, supports any substantial commercial activity. In each case the vessel involved was purely a pleasure craft and was being utilized for the pleasure and recreation of its occupants. DISCUSSION The admiralty jurisdiction of the federal courts derived from the conviction of the members of the Constitutional Convention that there was a need for a uniform body of laws, in general harmony with the laws of other maritime nations, for the conduct of the shipping business. Thirteen separate bodies of law were thought quite unacceptable for the governance of international trade. Regulation of the shipping industry was close to the conduct of foreign affairs, and those engaged in the industry were thought to have a need of predictability for their rights and liabilities. The admiralty jurisdiction was created to serve commercial shipping interests by providing a uniform body of law for the resolution of legal disputes arising among those engaged in it. The great increase in the ownership and use of small pleasure craft is a modern phenomenon. Save for those in charter service, their owners and operators have no commercial interests to protect. Ships in foreign commerce or in the coastal trade move regularly from country to country or from state to state, but pleasure craft generally have a much narrower range. Those operated on lakes and waterways forming state boundaries may cross those boundaries with frequency, but many others will never be operated outside the state in which the owner resides. Their interstate contact, for the average pleasure craft, is not likely to be greater than that of the average privately owned automobile. If there be a continuing need for a relatively uniform body of laws for the governance of the commercial shipping industry, there is no such apparent need for the regulation of the operation of private pleasure craft aside from the Rules of the Road, laws and regulations relating to lights and the provision and maintenance of lifesaving and safety equipment and similar matters. The Congress, by statute, and the Coast Guard, by regulation, can provide all of the uniform rules needed for the operation of small pleasure craft, but those can be interpreted and enforced by state courts as well as by federal judges. Indeed, Professor Stolz views the operation of small pleasure craft as being so local in nature that a uniform body of laws is a positive detriment and that transfer of the jurisdiction to the states would be generally advantageous. He was particularly concerned with the inapplicability of state statutes and the inability of state legislatures and state courts to consider local needs in an area in which the Congress, with all of its other pressing concerns, may well be indifferent. He expected the great majority of cases arising out of the operation of such small craft to be brought in state court systems, under the saving to suitors clause, as probably they are, systems which are as capable of dealing with controversies arising out of a collision of two small motorboats as with controversies arising out of the collision of two automobiles on an interstate highway. He thought that state legislatures and state courts should be freed of the need of applying federal maritime law and that those controversies getting into federal courts by some means should be governed by state law. As Professor Stolz, Professors Gilmore and Black recognize that the best reason for the admiralty jurisdiction is the need of a special court for the governance of the maritime industry and that controversies involving “motorboat accidents on lakes substantially landlocked” have no business in that court. If there be no reason for the application of federal maritime law to the operation of a small pleasure boat on Lake Gaston, there are some reasons for not applying it. If the warranties upon which the plaintiffs in these Virginia cases are relying arise out of a contract or a state’s commercial code, there is doubt about admiralty’s jurisdiction to enforce them. There is some doubt that an admiralty court would enforce the doctrine of strict liability in tort of a manufacturer, a doctrine which has been emerging in the state courts. Surely, the limitation of liability to the value of the boat of an owner without “privity or knowledge” of the fault in the context of a small pleasure craft capable of causing death or grievous injury is in conflict with our senses of justice and appropriateness. It may have been necessary to provide an owner of a commercial vessel with the right to limit his liability to the after event value of the vessel; American shipping was in competition with English shipping where there was such a right, and members of the industry may have been thought in need of protection from exposure to all of the economic consequences of major disasters. But we can perceive no reason to extend that protection to the relatively affluent owners of pleasure boats and their insurers at the expense of those injured or killed and their families. Professors Gilmore and Black were moved to say “No theory can justify the results reached in Coryell v. Phipps or The Trillora under which the owner of a yacht or speedboat, who is provident enough to hire someone else to run the boat for him, is granted a general license to kill and destroy.” The fact is, however, that in Coryell v. Phipps it was the Supreme Court speaking and, in the North Carolina case, Blake Builders Supply, Inc. may be entitled to the limitation it sought. If there be a strong case for the relinquishment of admiralty jurisdiction in controversies arising out of the operation of small pleasure craft on inland lakes, it does not extend to every vessel maintained and operated for the pleasure of her owner, his family and friends. There are oceangoing yachts, ships rather than boats, and quite small craft operate regularly in the Gulf Stream and in other areas sufficiently far offshore to be without the jurisdiction of any state. Perhaps what is needed is congressional attention to the matter, for the Congress, after hearings, could tailor the jurisdiction to the need, relinquishing to the states and to their judicial systems those controversies better handled there while retaining for federal admiralty jurisdiction those controversies for which it is better equipped. Meanwhile, however, we do not feel that we are free to read into the Supreme Court’s holding in Executive Jet Aviation a release from what seems to have been the settled course of decision in the Supreme Court as well as in the lower federal courts. In Executive Jet Aviation there was stated disapproval of decisions holding claims by injured water skiers against the operators of towing motorboats to be within the admiralty jurisdiction. The Supreme Court’s treatment of such cases as aberrations warranted us, in Crosson, in holding that such claims were not within admiralty jurisdiction. There was no such critical reference to the Supreme Court’s own prior treatment of other controversies arising out of the operation of small pleasure craft. In Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319, a wrongful death action arising out of a collision of two motorboats on the Ohio River was treated as being in admiralty. There was no discussion of the question whether the admiralty jurisdiction extended to the controversy. Apparently no one thought it open to question. The answer was assumed and the question resolved under federal maritime law. In Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903, and Coryell v. Phipps (The Seminole), 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363, the Supreme Court dealt with limitation of liability proceedings by owners of pleasure boats. In Just the claim was denied because the fault was within the privity or knowledge of the owner. In Coryell it was allowed. In neither case did the Supreme Court discuss the jurisdictional question. It was assumed that admiralty jurisdiction extended to the operation of pleasure boats and the Court’s attention was simply focused upon the application of the admiralty rule of limitation of liability. Thus, in at least three instances, the Supreme Court has treated pleasure boats as being within the admiralty jurisdiction, without a suggestion of any doubt about the matter. Nor did the Court, in Executive Jet Aviation, cast any doubt about its own prior holdings. It did not include those cases within the group of motorboat eases of which it did express disapproval. Under those circumstances, we do not think we can read Executive Jet Aviation as having overruled the earlier cases in the Supreme Court, or even as reopening the whole general question for reconsideration in the lower federal courts. When a land based airplane on a flight between two points within the continental United States crashes into navigable waters, the Supreme Court held, in Executive Jet Aviation, that the controversy was not within the admiralty jurisdiction for there was no showing of any connection with maritime commerce or navigation. In these cases, the business of commercial shipping has no presence, but these small pleasure boats were certainly vessels in navigation, and the controversy arose out of their navigation. There is thus a maritime connection not present in Executive Jet Aviation. Since we cannot read the Court’s opinion in Executive Jet as a general questioning of its earlier opinions in pleasure boat cases, we must conclude that the operation of these boats was within the admiralty jurisdiction and the new rule as stated in Executive Jet. Conceptually, we have some difficulty distinguishing between the claim by a water skier against the operator of a towing boat and a claim by a passenger against the operator of a motorboat. In the one instance, however, judicial resolution of the matter against admiralty jurisdiction is uncomplicated, while a judicial ruling involving motorboats in general should be confined so that controversies are not left to state judicial systems which they cannot handle, or cannot handle as well as v admiralty courts. More particularly, however, the Supreme Court, in the one instance, gave us explicit leave to hold the controversy outside of admiralty jurisdiction while its own decisions seem to call for an exercise of the jurisdiction and an application of general maritime law when the claimants are occupants of the boat. Accordingly, the order dismissing the Virginia cases for want of admiralty jurisdiction is reversed, and the order denying the motion to dismiss the North Carolina action is affirmed. Nos. 74r-2302/74 — 2303 reversed, and No. 74 — 2010 affirmed. . The history is traced in Stolz, Pleasure Boating and Admiralty: Erie at Sea, 51 Cal.L.Rev. 661, particularly 666 et seq., and in Chapter 1 of Gilmore & Black, The Law of Admiralty (2nd Edition). . Gilmore & Black, supra n. 1, Section 1-10, page 30. . See Dudley v. Bayou Fabricators, Inc., D.C.S.D.Ala., 330 F.Supp. 788. . See, however, Lindsay v. McDonnell-Douglas Aircraft Corp., 8th Cir., 460 F.2d 631. . Gilmore & Black, Section 10-22, p. 882, quoted by Stolz at 706, n. 188; see also Petition of Porter (The Yacht Julaine), D.C.S.D.Tex., 272 F.Supp. 282. . The jurisdiction is founded upon the constitutional grant, of course, but the Congress should have authority to define its dimensions along its periphery. . The Seminole may have been engaged in commerce, for it had been subject to charter. See 39 F.Supp. 142, the opinion of the trial court, but the Supreme Court did not allude to that fact and apparently treated The Seminole as any other yacht.

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

Alan M. GROCHAL, Trustee for Instantwhip-Washington, D.C., Appellant, v. AERATION PROCESSES, INC., d/b/a Instantwhip Foods, Inc., et al. No. 85-5766. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 12, 1986. Decided Aug. 19, 1986. Edward J. Carnot, for appellant. Samuel H. Young, Skokie, Ill., with whom Joseph Tasker, Jr., Washington, D.C., was on brief, for appellees. Before WALD, Chief Judge, BUCKLEY, Circuit Judge, and WRIGHT, Senior Circuit Judge. Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: Plaintiff-appellant Instantwhip-Washington, D.C. (“I.W.”) appeals orders of the district court denying its motion for a continuance, dismissing its complaint with prejudice, and denying its motion for reinstatement of its complaint. The district court dismissed I.W.’s complaint at the pretrial conference in response to a motion by defendant-appellee Aeration Processes, Inc. (“Aeration”). The court reasoned that dismissal was warranted by I.W.’s failure to subpoena an essential witness for trial and its failure to provide information relating to its damage claims prior to the pretrial conference. Because, under the circumstances of this case, neither of these justifications is adequate to support the district court’s action, we reverse and remand with instructions to try the case on the merits. I. Factual Background Between 1935 and 1981, I.W. was a franchisee of Aeration engaged in the business of manufacturing and distributing whipped cream products. I.W.’s customers included other Aeration franchisees that distributed but did not themselves manufacture aerosol whipped cream products. In 1981 these other Aeration franchisees stopped buying from I.W., causing a substantial drop in I.W.’s sales. In addition, Aeration significantly increased the rent it charged I.W. for use of LW.’s manufacturing facility, thereby prompting I.W. to vacate that facility. As a consequence of these developments, I.W. filed a complaint on August 24, 1984, asserting antitrust, contract and tort claims against Aeration and several of its subsidiaries, franchisees, and employees. At a scheduling conference on December 18, 1984, the district court set a trial date of April 22, 1985 and a pretrial conference date of April 11. The pretrial conference was subsequently rescheduled for April 18 at the request of Aeration. The court specified on December 18 that all discovery was to be completed by the pretrial conference. This deadline was reiterated in the court’s March 6 pretrial order. The pretrial order further required both sides to submit their trial exhibits at the pretrial conference, to “[ijdentify, in writing, precise facts relied on and opinions of any proposed expert,” and to provide “[f]ull itemization of all special damages claimed and supporting documentation” at the conference. Discovery began in January 1985 when I.W. served Aeration with three notices of deposition and two requests for production of documents. Aeration responded with motions for protective orders with respect to all of I.W.’s discovery requests. In February, Aeration submitted its own discovery requests, consisting of two sets of interrogatories, a request for admission of facts, and a request for production of documents. Like Aeration, I.W. moved for a protective order with respect to the discovery sought by Aeration. The district court rejected all requests for protective orders. Aeration’s motion was denied on March 12, and the court directed it to respond to I.W.’s document request by March 25. I.W.’s motion was denied on March 27, and the court ordered it to respond to Aeration’s requests within 10 days. I.W. submitted timely responses to Aeration’s requests on April 8, 1985. In addition to producing on that date the documents demanded by Aeration, I.W. answered the 89 questions contained in Aeration’s first and second sets of interrogatories. Aeration subsequently asserted that I.W.’s responses to five of these interrogatories were incomplete. Aeration first brought this matter to the court’s attention at a status conference on April 12, but no formal motion was made and the court issued no order at that time with respect to the interrogatory responses. One week later, at the pretrial conference, Aeration moved for an order preventing I.W. from offering proof of damages at trial. Aeration argued that such an order was warranted because it was unable to defend against I.W.’s damage claims without the itemization of damages demanded by the five interrogatories. At no time, however, did Aeration move to compel more complete responses to its interrogatories under Fed. R.Civ.P. 37(a). Rather, Aeration waited until the pretrial conference to formally request court action with respect to I.W.’s failure to itemize damages. The one Aeration discovery request to which I.W. produced no response at all on April 8 was Aeration’s third set of interrogatories. These were served by mail on March 18, and contained four questions requesting the identities of and opinions held by I.W.’s expert witnesses. I.W. did not respond to these interrogatories until the pretrial conference. Indeed, it appears that I.W.’s lawyer was very careful during depositions of I.W. witnesses to protect the identity of his expert witness. The pretrial conference began on April 18, 1985. The principal topic of discussion at the conference was the alleged failure of I.W. to provide information relating to its damage claims. In this regard the court expressed dissatisfaction with I.W.’s failure to fully answer Aeration’s interrogatories. I.W. also notified the court that one of its essential witnesses had left the country unexpectedly because of a family emergency. I.W. explained that the witness would probably be back in time to testify at trial, but there was no guarantee of this. I.W. stated that it had not originally subpoenaed this witness because there had been no reason to expect him not to appear at trial, but a process server had been sent to his house to serve him with a subpoena upon his return to the United States. I.W. indicated that it would be unable to go to trial without this witness. A number of motions were submitted by Aeration at the conference, including a motion for summary judgment. The court stated that additional time would be required before these motions could be decided. The conference accordingly was extended until the following day, Friday, April 19, the last working day before the trial. Immediately after the April 18 conference, I.W.’s lawyer offered Aeration a complete set of I.W.’s trial exhibits as required by the pretrial order. Aeration’s lawyer stated, however, that he had not had time to make copies of Aeration’s exhibits for I.W. Counsel thereupon agreed to exchange exhibits at the pretrial conference the following day. At the reconvened conference on April 19, I.W. stated that it had been unable to locate its missing witness and therefore could not assure the court of his appearance at trial. The court explained that, because the case was to be tried by a jury, I.W. would have to decide immediately whether it was prepared to go to trial the following Monday. I.W. indicated that it could not proceed without the missing witness, and it accordingly requested a continuance to the next available date. Before the court could rule on this matter, Aeration moved to bar the testimony of I.W.’s expert accounting witness and use of the exhibits this witness had prepared concerning I.W.’s damage claims. Without this evidence, I.W. would be left with no proof of the damages that it had allegedly sustained. Aeration offered three reasons for granting its motion. First, it argued that I.W. had wrongfully concealed the identity of its accounting expert until the pretrial conference. Second, it suggested that I.W. had violated the pretrial order by refusing to exchange trial exhibits detailing its damage claims on the first day of the pretrial conference. Third, it claimed that I.W. had failed to respond adequately to five questions concerning damages in Aeration’s first and second sets of interrogatories. The court accepted these arguments and, pursuant to Fed.R.Civ.P. 37(b)(2)(B) and 37(d), granted Aeration’s motion to exclude I.W.’s evidence relating to damages. In addition, the court denied I.W.’s motion to postpone the trial, apparently on the ground that I.W. should have subpoenaed its missing witness. The court then ruled that, without any evidence of I.W.’s damages, conducting a trial would be pointless. The court accordingly dismissed I.W.’s complaint with prejudice to renewing its claims in the district court. These rulings were summarized by the district court in an order dated April 19, 1985. In a subsequent order dated April 23, 1985, the court ruled on a variety of other motions presented at the pretrial conference and reiterated its grant of Aeration’s motion to exclude I.W.’s evidence concerning damages. I.W. then submitted a motion to reconsider and reinstate its complaint, which was denied by the court in an order dated May 30, 1985. II. Discussion A. I. W. ’s Request for a Continuance To the extent that the district court’s dismissal of I.W.’s complaint was based on 1. W.’s request for a continuance, our decision in Trakas v. Quality Brands, Inc., 759 F.2d 185,187-88 (D.C.Cir.1985), requires us to find that the court abused its discretion. In Trakas, the district court dismissed a civil rights action for want of prosecution when, two days prior to trial, the plaintiff’s attorney requested a continuance because unexpected financial difficulties prevented the plaintiff from appearing at trial. This court ordered the complaint reinstated, explaining: We obviously do not condone plaintiff’s waiting so long to bring her financial difficulties to the attention of counsel and of the court, but the error did not cause such consequences as to warrant the harsh sanction of dismissal. It is uncontroverted that up until the incident in question here, [the plaintiff] had pursued her claim diligently and expeditiously. No prior continuances had been sought____ The record discloses no evidence whatsoever of bad faith, deliberate misconduct, or tactical delay. Id. Similarly in the instant case, I.W. proffered a reasonable explanation for its request, I.W. had not previously sought a continuance, and there was no evidence of “bad faith, deliberate misconduct, or tactical delay.” It is indeed true that I.W. might have avoided the necessity of requesting a continuance had it served a subpoena on its missing witness. Affirming the district court on this basis, however, would be tantamount to ruling that litigants are required to subpoena all witnesses for trial, regardless of how certain they are that the witnesses will appear. To impose such a burden on litigants and the courts would be “wasteful of administrative resources.” Wells v. Rushing, 755 F.2d 376, 381 (5th Cir.1985). In the circumstances of this case, I.W. had no reason to believe that a subpoena would be necessary. The witness had cooperated fully throughout discovery and had promised to appear at trial. The family emergency that required him to leave the country was entirely unexpected, and I.W. cannot be faulted for failing to anticipate such a development. We can find no authority for the proposition that, confronted with a request for a continuance under circumstances like those presented here, the district court has discretion not only to deny the request, but also to dismiss the action. Cf. United States v. Cacciatore, 487 F.2d 240, 244 (2d Cir.1973) (reversing trial judge’s dismissal of a criminal prosecution for violation of the defendants’ right to a speedy trial where the prosecutor acted reasonably in not subpoenaing essential witnesses for trial). To be sure, the fact that I.W. twice represented to the court that the witness was “essential” to its case and that it could not proceed to trial without him suggests that serving him with a subpoena would have been prudent. If, rather than dismissing the action, the district court had merely denied I.W.’s request for a continuance, it could conceivably be argued that the district court should be affirmed because I.W. assumed the risk that its “essential” witness would not appear when it failed to subpoena him. Even under this scenario, however, there is persuasive authority that refusing to delay the trial would have been an abuse of discretion. See id.; accord Tralcas v. Quality Brands, Inc., 759 F.2d at 187-88. We therefore hold that the district court abused its discretion both in dismissing I.W.’s complaint on the basis of its request for a continuance, and in refusing the requested continuance. B. I. W. ’s Failure to Provide Information Relating to Its Damage Claims As explained above, Aeration claimed at the pretrial conference that I.W. had failed in three respects to provide information relating to its damage claims. Aeration alleged that I.W. had wrongfully concealed the identity of its accounting expert, that it had refused to exchange trial exhibits detailing its damage claims, and that it had not adequately responded to five interrogatories concerning damages. All three contentions were apparently accepted by the district court in ruling to exclude I.W.’s proof of damages. The first two of these allegations are clearly specious. With respect to I.W.’s purported concealment of the identity of its accounting expert, Aeration was simply incorrect in suggesting that I.W. was under an obligation to identify its expert prior to the pretrial conference. Aeration did not ask I.W. to identify its expert witnesses until March 18, when Aeration served its third set of interrogatories on I.W. Because these interrogatories were served by mail, I.W. had 33 days to respond. See Fed.R.Civ.P. 6(e) and 33(a). This time period was superseded by the requirement of the amended pretrial order that experts be identified by the time of the pretrial conference on April 18. I.W. identified its accounting expert at the pretrial conference and therefore was in full compliance with the pretrial order and the rules of discovery. The allegation that I.W. refused to exchange trial exhibits during the first day of the pretrial conference is also incorrect. As described above, the only reason that the exhibits were not exchanged on April 18 was that Aeration did not have extra copies of its exhibits. Counsel thereupon agreed to exchange exhibits the following day, and on April 19 Aeration received I.W.’s exhibits in accordance with this agreement. See Hearing Transcript, April 19,1985 at 34-35. Once again, I.W. was in compliance with the pretrial order. Aeration’s third claim of factual concealment is more plausible than the first two, but upon closer analysis it too must be rejected as meritless. We fully agree with Aeration’s contention that I.W.’s responses to the five interrogatories relating to damages should have been more complete. The question before this court, however, is whether the responses were so inadequate as to warrant exclusion of I.W.’s evidence of damages and, as a necessary consequence of such exclusion, dismissal of I.W.’s complaint. Our review of the pertinent authorities satisfies us that I.W.’s responses were not sufficiently inadequate to justify granting the motion to exclude introduction of any proof of damages or expert witness testimony. As this evidence should not have been excluded, I.W.’s complaint should not have been dismissed. As this court recently observed, “ 'dismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success’ or would obviously prove futile.” Shea v. Donohoe Construction Co., 795 F.2d 1071, 1075 (D.C.Cir.1986), (quoting Trakas v. Quality Brands, Inc., 759 F.2d at 187). Applying this principle, the court in Shea ordered reinstatement of a complaint that had been dismissed because the plaintiff’s attorneys failed to appear at three status calls. The court found that neither the defendant nor the orderly administration of justice were sufficiently prejudiced by the dereliction of the plaintiff’s attorneys to warrant dismissal of the complaint. Insofar as dismissal was intended to deter similar misconduct in the future, the court stated “[w]e look disfavorably upon dismissals as sanctions for attorney misconduct or delay unless the client himself has been made aware of the problem, usually through notice from the trial court. Id. at 1078 (emphasis in the original). Finding no basis for imputing the attorneys’ misconduct to the plaintiff, the court ordered reinstatement of the complaint, noting that “the District Court should first attempt to sanction the attorney at fault.” Id. at 1077. Our decisions involving dismissal as a sanction for the failure of a plaintiff to cooperate in discovery are consistent with Shea. In far more egregious circumstances than those presented in the instant case, this court has reinstated complaints dismissed by the district court for failure of the plaintiff to obey the rules of discovery. For instance, in Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C.Cir.1977), a complaint was reinstated despite the failure of plaintiff’s lawyer to obey an explicit court order to report on the progress of settlement negotiations within 30 days. The court emphasized that since only one court order had been disregarded, there was no history of neglect by the plaintiff’s lawyer. It was further observed that parties should not ordinarily be penalized for the misconduct of their attorneys. Id. at 123. Similarly, in Butler v. Pearson, 636 F.2d 526 (D.C.Cir.1980), this court ordered reinstatement of a complaint where the plaintiffs failed for almost five months to provide any response to interrogatories. The court noted that under the pretrial order the plaintiffs still had eight days to respond when their complaint was dismissed, though the time to respond under the federal rules had long since passed. In addition, the court observed that the plaintiffs were not technically in violation of any orders of the court. See also Robison v. Transamerica Insurance Co., 368 F.2d 37 (10th Cir.1966) (dismissal of complaint at pretrial conference reversed where plaintiff submitted reasons for his failure to respond to interrogatories and offered at the conference to provide answers). The cases cited by Aeration are readily distinguishable because all involved much more serious abuses of the discovery process than in the present case. For example, dismissal was upheld in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976), where the trial court found that the plaintiff had acted in “flagrant bad faith” and “callous disregard” of the rules by failing to file timely responses to discovery requests, and then eventually filing responses that were “grossly inadequate.” Likewise, in Weisberg v. Webster, 749 F.2d 864 (D.C.Cir.1984), dismissal was affirmed where the plaintiff ignored two explicit court orders to produce documents. G-K Properties v. Redevelopment Agency of the City of San Jose, 577 F.2d 645 (9th Cir.1978), similarly is distinguishable in that the plaintiffs ignored for more than three months a court order requiring them to produce documents. In contrast to these cases, I.W. was at no time in clear violation of a court order regarding discovery. The court’s March 25, 1985 order denying I.W.’s request for a protective order directed I.W. to respond to Aeration’s first and second sets of interrogatories, but it did not specifically require a more definite response to the five interrogatories in question. Nor did the court specifically direct I.W. to elaborate on its responses to the five interrogatories at the April 12 status conference where this matter was first brought to the court’s attention. In addition to distinguishing the cases cited by Aeration, the fact that I.W. was not in violation of any court orders reflects the failure of Aeration to request, and the failure of the court to take, any steps to obtain more complete interrogatory responses from I.W. before the action was dismissed. At no time was any consideration given to issuing an order to compel discovery under Rule 37(a), nor were any sanctions less severe than dismissal considered. It is also significant that the facts of this case provide no basis for imputing the misconduct of I.W.’s lawyers, such as it was, to I.W. See Shea v. Donohoe Construction Co., at 1078. I.W. was at no time advised of the district court’s growing frustration with its lawyers. Indeed, the lawyers themselves were not advised of their tenuous situation by means of a court order requiring them to cooperate more fully in discovery, and the court obviously made no effort to sanction the lawyers before sanctioning I.W. In short, our decisions establish that a plaintiff must be more derelict than was I.W. before dismissal of its complaint is justified. Though I.W.’s lawyers certainly could have been more forthcoming in their responses to Aeration’s discovery requests, we do not think that this case presented circumstances warranting the district court’s imposition on I.W. of “a sanction of last resort.” Trakas v. Quality Brands, Inc., 759 F.2d at 187. III. Conclusion Our review of the record in this case convinces us that there was a lamentable failure on the part of counsel for both I.W. and Aeration to cooperate in the discovery process. We can appreciate the frustration that the district court must have felt in attempting to resolve the seemingly endless procession of petty problems that the parties brought to its attention. A number of sanctions were available to the court under the circumstances, but dismissal of the action was not among them. The district court’s solution worked solely to the benefit of Aeration and to the detriment of I.W. We therefore reverse the decision of the district court and remand with instructions to try the case on the merits. Reversed and Remanded. . Interrogatory 17(c) of Aeration’s first set of interrogatories asked I.W. to "[i]temize each element of damages claimed in this suit, giving a description of how each such item was calculated and a statement of the connection, if any, between the wrongful conduct charged against defendants and any such element of damages.” In response to this interrogatory, I.W. stated ”[s]ee documents provided by plaintiff in response to defendant's request for documents.” Interrogatory 63(d) of Aeration’s first set of interrogatories asked I.W. to identify ”[t]o the extent not previously stated in answers to these interrogatories ... [t]he amount of any damage ... caused to plaintiff and the manner in which such amount was computed.” I.W. stated in response to this interrogatory “[s]ee answers number 1 through number 62 and Attachment.” Interrogatories 24, 25 and 26 of Aeration’s second set of interrogatories asked I.W. to itemize the damages sustained by it in connection with counts III, IV and V of its complaint. I.W. stated in response to each of these interrogatories that ”[d]amages are being calculated and will be provided in accordance with the Pretrial Order.” . Among the other matter? decided in the April 23 order was a motion by Aeration under Fed.R. Civ.P. 37 for an award of costs in connection with the failure of an I.W. employee, Barbara Sagges, to appear at her deposition. Aeration contended in its motion that Sagges had been properly subpoenaed and that I.W.’s lawyers knew that she would not appear but did not share this information with Aeration. In its April 23 order the court granted Aeration’s motion "with alternative relief.” The court did not identify the "alternative relief’ awarded, and we are unable to discern what the court meant by this statement. Clearly the court did not mean that it had sanctioned the failure of the employee to appear by dismissing I.W.’s complaint, for such relief is not authorized by Fed.R.Civ.P. 37. Under Rule 37(d), a complaint may be dismissed only if "a party or an officer, director, or managing agent of a party or a person designated ... to testify on behalf of a party” fails to appear at his deposition. Sagges fell into none of these categories. The court therefore was without authority to sanction her failure to appear by dismissing I.W.’s complaint. The proper remedy in this situation would have been to find Sagges in contempt of court pursuant to Rule 37(b)(1).

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

Mrs. Fannie Lou HAMER et al., Appellants, v. Sam J. ELY, Jr., et al., Appellees. No. 25610. United States Court of Appeals Fifth Circuit. April 10, 1969. Benjamin E. Smith, New Orleans, La., Morton Stavis, Dennis J. Roberts, George Logan, III, Harriet Van Tassel, Newark, N. J., Alvin J. Bronstein, L. H. Rosenthal, Jackson, Miss., William M. Kunstler, Arthur Kinoy, New York City, for appellants; Irving M. King, Cotton, Watt, Jones & King, Chicago, Ill., of counsel. W. Dean Belk, Jr., Indianola, Miss., Joe T. Patterson, Atty. Gen., Will S. Wells, Asst. Atty. Gen., Jackson, Miss., for appellees. Before WISDOM, THORNBERRY, and GOLDBERG, Circuit Judges. WISDOM, Circuit Judge: May 2, 1967, was a historic day in the Town of Sunflower, Mississippi. That day there was an election to choose a mayor and five aldermen. For most of the Negro electors, it was the first time in their lives that they could cast a ballot. Moreover, the Negroes, constituting a majority of the 900 residents of Sunflower, had a black candidate for mayor and six black candidates for the five aldermanie positions that were to be filled. The list of registered voters showed 190 Negro registrants and 160 white registrants. The candidates campaigned vigorously. Negro leaders extended themselves to educate the voters, many of whom were illiterate, and to explain the mechanics of voting. Came election day. Sunflower overflowed with strangers. These were reporters, representing the wire services and newspapers, and broadcasters and cameramen, some of whom represented national television networks. The wires to Washington had hummed before the election. Three federal observers were present inside the polling place. A federal “team captain” came to the polling booth from time to time during the day. Two attorneys from the Department of Justice were on hand. To the chagrin of the hardworking Negro campaigners, their candidate for mayor lost by a vote of 190 to 121. The five white candidates for aldermen won by votes of 180, 165, 165, 161, and 160 to 111, 105, 105, 104, 77, and 32. It is easy to understand the feeling of the Negro candidates and their supporters. They felt that there must have been skullduggery at the polls. Indeed, with reason, they could and did say that the Board of Election Commissioners should have shown more consideration for the uninformed, often illiterate, Negro casting his first ballot. In a motion asking the district court to set aside the election, the plaintiffs focused their attack on the Election Commission’s refusal to permit illiterate Negro voters to have voting assistance from Negro election officials. After a hearing, the district judge found that the election “was conducted in a completely fair, objective way and that the results thereof truly represent the will of a majority who voted that day”. On the record as a whole, we cannot say that the district court erred. I. The campaign manager for the Negro candidate for mayor and for five of the six Negro candidates for aldermen was Mr. Joseph Harris. He was not a registered voter in Sunflower but he was an employee of the Delta Ministry of the National Council of Churches who had been active for several years in encouraging Negroes in the Delta to register. In preparing for the election, Mr. Harris conducted a survey to determine the number of Negro voters who would need assistance in marking their ballots. Based on this survey and a practice election, he concluded that over one-third of the Negro voters would need assistance at the polls. Attorneys for the plaintiffs discussed this key problem with Mr. Will Wells, counsel for the defendants and an Assistant Attorney General for the State of Mississippi, and arrived at an “understanding”. Mr. Wells testified: That sometime in the latter part of April, prior to the election in May, that I conferred with Mr. Stavis, at the Attorney General’s office in Jackson, discussing the coming election, and I did advise him at that time that it was my understanding, based on conversations which I had had with Mr. Oscar Townsend, who is attorney for the Town of Sunflower, that there would be two Negro men who would be appointed as election officials, clerks, for the holding of that election, and that I further understood that one of them was Joseph Harris; That it was further my understanding, based on my conversations, that in the matter of aiding and assisting illiterates, that those two Negro men would be authorized to assist any illiterate who requested that they aid them in casting their ballots; That on the day before the election * * * it was still at that time my understanding that that would be the procedure. On the evening of May 1, while the Negroes in Sunflower were being assured at a meeting that they would receive voting assistance, the Board of Election Commissioners held a meeting. General Wells urged the Commissioners to allow Negro voting officials to assist Negro voters. The Board of Commissioners, however, decided that only members of the Commission were permitted to render aid to illiterate voters. In addition, there is some indication that the Commission considered that Mr. Harris, both because he was not a registered voter in Sunflower and because he was Campaign Manager of six of the seven Negro candidates, would be an inappropriate choice for an election official. All three commissioners are white. To make matters worse, so the plaintiffs say, one of the commissioners is “a plantation owner” who was running for County Sheriff; he had been a deputy sheriff; and his brother was a candidate for alderman in the May 2 election. Another commissioner operates a grocery store where Negroes frequently purchase goods on credit. The Commission did appoint two Negroes to serve as election officials but they were assigned only ministerial functions. Mr. Harris inscribed the names of the voters in a book. The other Negro official stood near the ballot box and placed ballots in the box as they were handed to him by the voters. The plaintiffs contend that many illiterate Negro voters cast their ballots without aid, rather than disclose how they voted. In support of this contention they point to the fact that there were 27 rejected irregular ballots. The plaintiffs assume that these ballots were all cast by Negroes. This is not necessarily true. In Bell v. Southwell, 5 Cir. 1967, 376 F.2d 659, 662, in setting aside an election, we pointed out: “ * * * the trial Court legally could not assume — as it evidently did — that all white voters would vote for white candidates, all Negroes for Negroes, or that no whites would vote for Negroes in a free, untainted election.” An analysis of the rejected and assisted ballots is inconclusive. On - election night 38 ballots were marked “irregular”, exclusive of 31 ballots marked “assisted”. The Commission accepted 11 of the irregular ballots. Of these, eight had votes for Negro candidates only; two split the votes between Negro and white candidates; one had votes for white candidates only. Of the 27 rejected ballots, 14 had votes for Negro candidates only; 11 split the votes; two had votes for white candidates only. In the race for mayor, an analysis of the 31 assisted ballots shows that 12 votes were east for the white candidate and 19 for the Negro candidate. In the race for aider-men, of the assisted ballots four were for all white candidates; eight were split; 19 were for all Negro candidates. The district judge noted: “It is significant that not one witness was offered, not one witness testified that he or she was illiterate and needed assistance in casting his ballot, but refused to ask for assistance because he did not want a white person to know how his vote was cast.” Of course, it would be naive to doubt that there must have been some Negroes who were unwilling to ask for aid because of a reluctance to disclose or fear of disclosing how they intended to vote. But this election was held in a fishbowl. The report of the federal observers is in the record. Commenting on the report the district judge said: “It speaks clearly and demonstrates that this election was fairly and properly held in every respect, and it is not questioned but that every person who was given assistance was assisted fairly and impartially with the ballot in each instance being marked in exact accord with the voter’s wishes.” II. The larger issue is whether the refusal of the Election Commissioners to appoint two Negro officials to render voting aid was a failure to provide “adequate assistance” to illiterates as required by a proper construction of Voting Rights Act of 1965. This requirement of voter assistance stems from the Voting Rights Act, specifically 42 U.S.C.A. § 1973l(c) (1) which defines the terms “vote” and “voting” as including “all action necessary to make a vote effective * * As the three-judge court said in United States v. State of Louisiana, E.D.La. 1966, 265 F.Supp. 703, 708, aff’d 386 U.S. 270, 87 S.Ct. 1023, 18 L.Ed.2d 39: “We cannot impute to Congress the self-defeating notion that an illiterate has the right [to] pull the lever of a voting machine, but not the right to know for whom he pulls the lever.” In light of this requirement, it becomes “ * * * the duty and responsibility of the precinct officials at each election to provide to each illiterate voter who may request it such reasonable assistance as may be necessary to permit such voter to cast his ballot in accordance with the voter’s own decision.” United States v. State of Mississippi, S.D.Mississippi 1966, 256 F.Supp. 344, 349. The appellants’ position, then, is that the use of only white poll assisters was not “reasonable assistance” in the circumstances prevailing at the Sunflower election. The Sunflower election was governed by the Declaratory Judgment entered in the case of United States v. State of Mississippi, supra, and not by any Mississippi statute. The Mississippi statute dealing with poll assistance was repealed in 1965. This statute provided: “§ 3273. Illiterate voter to have aid. A voter who declares to the managers of the election that by reason of inability to read he is unable to mark his ballot, if the same be true, shall, upon request, have the assistance of a manager in the marking thereof; and the managers shall designate one of their number for the purpose, who shall note on the back of the ballot that it was marked by his assistance; but he shall not otherwise give information in regard to the same.” The action of the Sunflower Election Commissioners, however, was in compliance with the statute as it stood before its repeal. In light of the order in United States v. State of Louisiana, supra, which was tailored to the precise terms of a repealed Louisiana voter assistance statute, the action of the Election Commissioners in the present case, tailored to the terms of a repealed Mississippi statute, would appear to be reasonable. Voters may be motivated by reasons other than fear for not seeking voter assistance, and they have at their disposal a variety of measures to cast their votes without it. Thus, in United States v. State of Louisiana, E.D.Louisiana, 265 F.Supp. 703, 715, the court said: There are varying degrees of illiteracy, and varying degrees of voter intelligence among functionally illiterate electors. Many illiterates are able to respond to symbols and numbers; others will memorize the positions on the ballot of those for whom they wish to vote. Still others, even if unable to do these things, are willing to take their chances rather than reveal their choices to polling officials. Nonetheless, those few voters who do not trust their own ability to cast a ballot effectively and are willing to seek assistance are, under the Voting Rights Act of 1965 as we read it, entitled to that assistance.” The Act requires that voters be apprised of their right to assistance, not that they be induced to accept it. In the Sunflower election, voters were apprised of their right and each was informed that he could request a federal observer to be with him in the voting booth to check the quality of assistance rendered by the election official. On the cold record before us, the attitude of Sunflower’s Election Commissioners may have been shoddy, but it does not justify the “drastic, if not staggering” procedure (Bell v. Southwell, 5 Cir. 1967, 376 F.2d 659) of a federal court’s voiding a state election. Such “drastic” measures are properly reserved for cases involving serious violations of voting rights. Hamer v. Campbell, supra; McGill v. Ryals, M.D.Alabama, 253 F.Supp. 374. III. The plaintiffs also charged that the Election Commissioners used segregated voting lines by giving preference to individual white voters over Negro voters standing in line. The evidence is conflicting. Two witnesses for the plaintiffs testified that while Negroes were waiting in line, whites were admitted to the polling place without any wait at all. A witness for the defendants, employed as bailiff during the Sunflower election, denied the existence of segregated voting lines. He testified that on one occasion he did escort a white voter into the polling place ahead of some Negroes, but that was because the individual concerned was a newspaperman and not a voter. This witness admitted that on two other occasions he had escorted white voters into the polling place, but he insisted that he received permission to do so from the voters in line. One of these preferred voters was a nurse said to be urgently needed; two were a salesman and his wife who worked out of town. The district court concluded that the claim of segregated voting lines was “not sustained by the evidence.” The court noted the absence of any testimony to this effect by the federal observers or members of the news media, and the further fact that of 190 Negroes in Sunflower eligible to vote in the May 2 election, more than 180 participated. * * * Taking the record, as a whole, we cannot say that the findings of the district court were clearly erroneous. The judgment is affirmed. . The election was held under order of the district court issued in accordance with this Court’s decision in Hamer v. Campbell, 5 Cir. 1966, 358 F.2d 215, cert. den. 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79. In that case we concluded that the district court should have enjoined the 1965 election; we ordered that the elec-. tion be set aside and a new one held under a plan to be directed by the district court.

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

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

ROCHESTER PURE WATERS DISTRICT, a Municipal Authority of the State of New York, et al. v. ENVIRONMENTAL PROTECTION AGENCY, Appellant. Nos. 90-5011, 90-5320. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 29, 1990. Decided April 3, 1992. John J. Roberts, Jr., Attorney, U.S. Dept, of Justice, Washington, D.C., for appellant. Richard B. Stewart, Asst. Atty. Gen., Carl Strass, Peter R. Steenland, Jr., David C. Shilton, and Apphia T. Schley, Attorneys, U.S. Dept, of Justice, and E. Donald Elliott, General Counsel, Environmental Protection Agency (“EPA”), and Stephen G. Pressman, Attorney, EPA, Washington, D.C., were on the brief, for appellant. Joseph M. Zorc, with whom Christopher L. Rissetto and Ronald L. Raider, Washington, D.C., were on the brief, for appellees. Before BUCKLEY, WILLIAMS, and THOMAS, Circuit Judges. Former Circuit Judge THOMAS, now an Associate Justice of the Supreme Court of the United States, was a member of the panel when the case was argued but did not participate in this decision. Opinion PER CURIAM. PER CURIAM: May a federal court order an executive agency to set aside funds from an appropriation that Congress has rescinded? In this case, the district court issued a temporary restraining order mandating that the Environmental Protection Agency retain approximately $4 million of the $47.7 million remaining in an appropriation for a grant program. Congress rescinded the entire $47.7 million after the court issued its order. Relying on case law dealing with the extension of lapsed budget authority, the court answered the question posed above in the affirmative by converting its temporary restraining order into a permanent injunction after the rescission. We are not persuaded by the analogy to a lapsed appropriation. A federal court cannot, consistent with the Constitution, overturn a rescission by Congress in order to preserve the positions of the parties in an ongoing dispute. To do so would allow the court to appropriate funds. That is the job of Congress. Therefore, we reverse. I. Background The Rochester Pure Waters District and the City of Rochester, New York (collectively “Rochester”), are embroiled in a long-standing dispute with the Environmental Protection Agency over funding for the construction of a sewage treatment plant. In 1968, the EPA awarded Rochester a $1,948,000 grant to help build a plant pursuant to section 8 of the Federal Water Pollution Control Act. That section established a program under which the Federal Government was authorized to provide up to thirty percent of the eligible costs of water pollution abatement projects. See 33 U.S.C. § 466e (1964), Pub.L. No. 89-753, § 203, 80 Stat. 1246, 1248-49 (1966). By June 1972, the EPA had increased Rochester’s grant to a total of $19,776,700, representing twenty-five percent of the total costs. In October 1972, Congress enacted the Federal Water Pollution Control Act Amendments, which brought about significant changes in the law. In addition to creating the heart of the current federal water pollution programs, the Amendments greatly increased federal funding for qualified pollution abatement projects. The Amendments established a new program through which municipalities could recover up to seventy-five percent of construction costs. 33 U.S.C. § 1281 et seq. (1988). Congress also authorized additional reimbursements to section 8 grantees that had instituted approved projects between June 1966 and July 1973, up to a total of fifty-five percent of eligible construction costs. See id. § 1286(a) (“section 206(a)”). The Amendments required that applications for the upward adjustments be filed within a one-year window commencing on October 18, 1972. Applicants filing within this window were allowed to revise their claims “from time to time, as may be necessary.” Id. § 1286(c). Congress appropriated $1.9 billion for the section 206(a) program in 1972. See Pub.L. No. 92-399, 86 Stat. 591 (1972). The next year, Congress extended the application deadline until January 31, 1974. See Pub.L. No. 93-207, 87 Stat. 906 (1973). In 1976 and 1977, a further $500 million was added to the section 206(a) appropriation. Rochester filed a timely application for additional funds. The city and the district sought an increase to cover fifty-five percent of the project’s total cost of approximately $79 million, which the EPA granted. All together, the EPA provided Rochester with grants totalling $43,472,000. Over ten years after the expiration of the filing deadline, Rochester applied to the EPA for an additional $3,986,884 to cover the costs of settling lawsuits with the project’s prime contractor and a subcontractor. The New York Department of Environmental Conservation, the EPA's delegated agent for the section 206(a) program, denied the request in December 1984, holding that an applicant could not receive more than the amount claimed prior to the statutory deadline of January 31, 1974. See Rochester Pure Waters Dist. v. EPA, 724 F.Supp. 1038, 1041 (D.D.C.1989) {“Rochester"). After this denial, Rochester diligently pursued its administrative remedies with the state agency and the EPA. In September 1989, Rochester also filed a Deviation Request with the EPA, pursuant to 40 C.F.R. Part 30, in which it sought a departure from the agency’s regulations. Id. at 1041-42. In the meantime, while these administrative appeals were pending, Rochester became concerned that while it might win the administrative battles, the EPA might lose the funds with which to satisfy the additional claim. By 1989, only $47.7 million of the $2.4 billion appropriated for section 206(a) remained unobligated. In June 1989, the staff of the House Committee on Appropriations contacted the EPA and asked for data and comments regarding the possible rescission of the $47.7 million. The EPA replied shortly thereafter that it believed no one would be adversely affected by the proposed step. Id. at 1042. On July 20, 1989, the House of Representatives passed a bill appropriating funds for a variety of agencies, including the EPA, for fiscal year 1990. That legislation included the rescission of the full $47.7 million in section 206(a) funds. The committee report accompanying the bill stated that the EPA “indicate[d] that this rescission will cause no adverse impacts.” H.R.Rep. 101-150, 101st Cong., 1st Sess. 49 (1989). In early September 1989, the EPA’s Acting Deputy Assistant Administrator of Water was informed of Rochester’s claim. See Quigley Affidavit If 7, reprinted in Joint Appendix (“J.A.”) at Tab 5. As a consequence, the agency advised the Senate Appropriations Committee staff on September 11 that “EPA had some difficulties with the proposed rescission because there was a pending administrative claim for section 206(a) funds.” Brozen Affidavit II 5, reprinted in J.A. at Tab 4. Senate committee staff members acknowledged that they were aware of the claim. Id. Nevertheless, the Senate subsequently passed its version of the fiscal year 1990 appropriations bill, which included the identical rescission proviso. On October 13, 1989, Rochester filed this action in the district court to require the EPA to preserve and set aside the nearly $4 million needed to cover its claim and requested a temporary restraining order (“TRO”). The court granted the order the same day and directed the agency to preserve the monies until November 15. Rochester, 724 F.Supp. at 1040. It appears that EPA staff immediately informed the House Appropriations Committee staff of the lawsuit and of the likelihood that a restraining order would be entered that day. Agency officials indicated that they had no objection to reducing the rescission by $4 million to cover the claim. On October 18, 1989, a conference committee reported a bill that included the full rescission. The Senate passed the legislation on October 27, and the House gave its assent four days later. See id. at 1043 n. 37. The only concession to Rochester’s claim is to be found in the conference committee report, which explains that [t]he conferees want to emphasize that the inclusion of the bill language rescinding $47,700,000 of section 206(a) funds should not prejudice EPA’s consideration of appeals by Rochester, NY and other cities. The conferees urge the Administrator to make a final determination on pending section 206(a) appeals as soon as possible and report the results to the Committees on Appropriations. If the appeals are approved, the conferees expect the Agency to assist the municipalities by identifying in its report to Congress the options available and administrative steps required for payment, including current construction grants appropriations and the claims and judgment fund. H.R.Rep. No. 101-297, 101st Cong., 1st Sess., 135 Cong.Rec. H7201, 7210 (Oct. 18, 1989) (“Committee Report”). The President signed the appropriations bill into law on November 9,1989. See Pub.L. No. 101-144, 103 Stat. 839 (1989). After passage of the rescission, the parties agreed to convert Rochester’s pending motion for a preliminary injunction into a motion for a permanent injunction. Rochester, 724 F.Supp. at 1040 n. 2. Rochester asked the court to exercise its inherent equitable powers “to preserve these funds so that meaningful relief will be available to plaintiffs should they prevail on the merits of their administrative appeals.” Id. at 1043. “[T]o ensure that plaintiffs will have an adequate remedy should they prevail on their administrative appeals[,]” id., the court granted the permanent injunction “suspend[ing] rescission of these disputed funds (and only these disputed funds) pending final resolution” of Rochester’s two administrative appeals. Id. at 1047. After the district court had issued its decision in this case, the agency denied Rochester’s administrative appeal, but granted the Deviation Request, allowing Rochester to recover $1,123,682. See EPA, Deviation for Rochester Pure Waters (July 27, 1990), reprinted in J.A. at Tab 17; EPA, Response to Petition for Review (July 27,1990), reprinted in J.A. at Tab 18. The EPA, however, deferred payment of the $1.12 million under the deviation order until resolution of this action. J.A. at Tab 17. The question of Rochester’s entitlement to these funds is not before this court. Rather, we are reviewing actions taken by the district court to ensure that Rochester could collect from the funds that had been appropriated for this purpose in the event it ultimately prevailed in its dispute with the EPA. Following the agency’s twin decisions in July 1990, the district court extended the life of the injunction “until EPA has taken final agency action on each of these two pending matters and the plaintiffs have made timely filings in the appropriate court for judicial review of any adverse final agency action and a ruling has been issued on plaintiffs’ contemporaneous request for injunctive relief, if any, from that court.” Rochester Pure Waters Dist. v. EPA, 1990 WL 134502, 1990 U.S. Dist. Lexis 11357 (D.D.C. Aug. 28, 1990). II. Discussion A. Standard of Review This appeal presents a question of pure law: whether the district court had the authority to order the permanent injunction. We review this issue de novo. See Delaware & Hudson Ry. Co. v. United Transp. Union, 450 F.2d 603, 620 (D.C.Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971). Under these circumstances, “a reversal based oh a disagreement with the underlying legal premise of the trial court is not based on, or to be construed as, a determination of arbitrary abuse of judicial discretion.” Ambach v. Bell, 686 F.2d 974, 980 (D.C.Cir.1982) (quoting NRDC v. Morton, 458 F.2d 827, 832 (D.C.Cir.1972)). B. Analysis It is beyond dispute that a federal court cannot order the obligation of funds for which there is no appropriation. , See, e.g., Reeside v. Walker, 11 How. 272, 291, 13 L.Ed. 693 (1851); Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 2471-72, 110 L.Ed.2d 387 (1990). Nor can it be contended that a court may appropriate funds from which an obligation may be made. See U.S. Const., art. I, § 9, cl. 7; Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 770, 81 L.Ed. 1122 (1937). See generally K. Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343 (1988) (examining Congress’s exclusive power to appropriate). In its decision, the district court ordered the EPA to set aside funds in the face of a rescission by Congress of the underlying appropriation. Because Congress had rescinded the funds, the order, in essence, appropriated funds from the Treasury for possible obligation. We find that the district court lacked such authority. The court believed that it possessed equitable power to enjoin the rescission, basing its decision on a line of cases in which we awarded injunctions to avoid lapses in an agency’s budget authority. This term refers, generally, to the authority granted by Congress to commit or expend funds. See State of Connecticut v. Schweiker, 684 F.2d 979, 997 n. 30 (D.C.Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983). In that context, we have held that federal courts have the power “to order that funds be held available beyond their statutory lapse date if equity so requires.” Id. at 997 (quoting National Ass’n of Regional Councils v. Costle, 564 F.2d 583, 588 (D.C.Cir.1977)). See also Jacksonville Port Authority v. Adams, 556 F.2d 52, 55-57 (D.C.Cir.1977). Cf. West Virginia Ass’n of Community Health Centers, Inc. v. Heckler, 734 F.2d 1570, 1576-77 (D.C.Cir.1984) (district court has power to enjoin lapse of budget authority, but case moot because appropriation exhausted); City of Los Angeles v. Adams, 556 F.2d 40, 51 (D.C.Cir.1977) (district court has power to order agency to pay on a claim because it issued order prior to lapse of appropriation at issue). This case presents a very different situation. In these cases, our exercise of the court’s equitable powers has given effect to congressional intent by permitting timely claimants to recover from funds that Congress set aside for that purpose. Budget authority lapse provisions impose deadlines that require agencies to obligate funds within a specified period. That period may be extended in the rare circumstance where the extension will serve the interests of justice and the ends Congress sought to bring about. In Jacksonville Port Authority, the applicant for a grant under the Federal Aviation Administration’s (“FAA”) Airport and Airways Development Program was denied the grant by the operation of the program’s “priority system.” A district judge later struck down that system and ruled that airport sponsors were entitled to their full allotment of airport development funds. Jacksonville Port Authority, 556 F.2d at 54. Shortly thereafter, the Port Authority filed suit to obtain the grant and asked for a temporary restraining order as the authorization to obligate funds was scheduled to lapse in a few days. The court declined to issue an order, and the authorization lapsed. Id. We held that the district court abused its discretion by failing to enter the TRO. We noted that Congress employed the lapse mechanism to prevent “procrastination and the dangers of an agency discretion to dip into old unused authorizations.” Id. at 55. Therefore, the imposition of a deadline “on an agency’s ability to take action on its own motion does not preclude an agency’s authority to take later action on direction of a court exercising judicial review”. Id. at 56. As the Port Authority had made timely application within the period the agency was authorized to act, we concluded that we had the authority “in the interest of equity and justice, [to] make the plaintiff whole by ordering the FAA and the district court to act as if there had been a conditional grant prior to [the lapse of the authorization].” Id. Similarly, in State of Connecticut, the dispute centered on whether Congress had imposed a deadline for applications by States for reimbursement of certain expenditures under the Social Security Act in recently enacted appropriations legislation. Appellants sought (1) a declaratory judgment that no deadline barred their applications and (2) an injunction “reserving and setting aside a portion of the remaining HHS appropriations for fiscal year 1981” in order to “prevent the remaining fiscal year 1981 funds from reverting to the general Treasury on October 1, 1981.” State of Connecticut, 684 F.2d at 985-86. The district court dismissed the suit and refused to act on the injunction. During the pendency of the appeal, the appropriation lapsed. We determined that the legislation involved had not imposed a deadline. We therefore remanded to the district court with instructions to enter an injunction to prevent the remaining funds in the program from reverting to the Treasury. Id. at 996-99. Because the statutes at issue did not bar the claim, and because we found that the lapse of the appropriations did not reflect a rejection by Congress of the underlying State grants program, we employed equitable authority to suspend the lapse provision. Id. at 998-99. The statutory rescission in the present case is critically different from the lapses of budget authority in Jacksonville and State of Connecticut. Here, Congress, with full knowledge of Rochester’s claim, chose to rescind the appropriated funds that would otherwise have been available to meet that claim. It revoked the exact amount of funds remaining available for section 206(a) grants. The intent of Congress could not be clearer: It did not want any part of the remaining funds to be expended for the section 206(a) grant program, so it canceled the appropriation. As we have noted, Congress has “absolute control of the moneys of the United States.” Harrington v. Bush, 553 F.2d 190, 194 n. 7 (D.C.Cir.1977) (citation and internal quotation marks omitted). The Appropriations Clause of the Constitution vests Congress with exclusive power over the federal purse: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const., art. I, § 9, cl. 7, The clause “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Cincinnati Soap Co., 301 U.S. at 321, 57 S.Ct. at 770. When Congress rescinded the section 206(a) appropriation, the funds reverted to the Treasury. See Office of Management and Budget, Circular No. A-34 at II-7 (Aug. 25, 1985) (statutory rescission defined as “[e]nacted legislation canceling budget authority previously provided by Congress, prior to the time when the authority would otherwise lapse.”). This is so notwithstanding the district court’s temporary restraining order as that order was not, nor could it have been, binding on Congress. Therefore, the order entering a permanent injunction sought to sequester funds that were no longer subject to a budget authority. It is this fact that distinguishes this case from those on which the district court relied. Rochester argues, nevertheless, that the rescission legislation could not have an effect on the disputed funds because its claim had matured into an obligation against the United States. Rochester believes that the district court’s restraining order converted the claim into a conditional obligation, and that Congress cannot rescind funds that have been obligated. We disagree with Rochester’s first contention and therefore do not reach the second. The district court’s temporary restraining order did not obligate the United States to pay Rochester, conditionally or otherwise, as the court did not address the merits of Rochester’s claim. The TRO simply mandated that the EPA set aside funds to pay a possible judgment. At that point, the funds were at the discretion of the EPA, and the agency could have obligated the funds as it wished. With limited exceptions, pending litigation does not create an obligation against the United States. See 31 U.S.C. § 1501(a) (1988) (“An amount shall be recorded as an obligation of the United States Government only when supported by documentary evidence of ... (6) a liability that may result from pending litigation.”); 35 Comp.Gen. 185, 187 (1955) (interpreting precursor of section 1501(a)(6) as applying to land condemnation and similar cases where liability established and only outstanding issue is amount of liability); In the Matter of the Status of Impounded Food Stamp Program Appropriations Obligated by Court Order, 54 Comp.Gen. 962, 964-66 (1975) (allowing exception to prior interpretation for impoundment cases). Rochester’s situation does not fall within this limited spectrum. ■ As matters stand, it is unlikely that Rochester will go unpaid if it prevails in its claims against the EPA. The conference committee noted that in such an event, the conferees would expect the agency to pursue alternative sources of payment, see Committee Report at H7210; and at oral argument, counsel for the EPA vouched that it would find funds to cover Rochester’s claim, even if that required obtaining a supplemental appropriation from Congress. III. Conclusion Because the budgetary lapse cases do not control a situation in which Congress rescinds appropriations with full knowledge of pending claims, the district court’s injunction runs afoul of the Appropriations Clause. We therefore reverse and remand the case to the district court. So ordered. . Rochester filed additional deviation requests on June 19 and 20, 1990, and a separate administrative appeal on July 10, 1990. Judge Green did not include those actions within the ambit of the permanent injunction. Rochester Pure Waters Dist. v. EPA, 1990 WL 134502 at n. 3, 1990 U.S.Dist. Lexis 11357 at n. 3. The record does not reveal whether Rochester has filed for judicial review of the July 27, 1990 agency decisions. Because the EPA has declined to award Rochester the deviation recovery until this court reviews the district court's decision, we conclude that this appeal is not moot. . There may be an exception to this general rule in a case where a court orders expenditures for constitutional reasons. In several cases, the Supreme Court has ordered the broadening of eligibility for federal benefit programs to remedy Equal Protection violations. See Califano v. Westcott, 443 U.S. 76, 89-91, 99 S.Ct. 2655, 2663-64, 61 L.Ed.2d 382 (1979) (citing cases). These decisions make no reference to the status of the appropriations for the programs.

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

Martha DUNHAM and Preston Dunham, Plaintiffs-Appellants, v. FRANK’S NURSERY & CRAFTS, INC., Defendant-Appellee. No. 89-2109. United States Court of Appeals, Seventh Circuit. Argued Jan. 8, 1990. Decided Dec. 12, 1990. Saul I. Ruman, Thomas A. Clements, Ru-inan, Clements & Tobin, Hammond, Ind., for plaintiffs-appellants. Frank J. Galvin, Robert H. Bahner, Gal-vin, Stalmack, Kirschner & Clark, Hammond, Ind., for defendant-appellee. Before POSNER, RIPPLE, and KANNE, Circuit Judges. KANNE, Circuit Judge. The issue in this case is whether the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) forbids a private litigant in a civil case from exercising a peremptory challenge on racial grounds. Other circuits confronting this issue have reached opposite conclusions. In Fludd v. J.B. Dykes, 863 F.2d 822 (11th Cir.1989), the Eleventh Circuit held that Batson applies to the exercise of peremptory challenges by a private litigant in a civil case. In a recent en banc opinion, the Fifth Circuit held that Batson is limited to criminal cases. Edmonson v. Leesville Concrete Co., Inc., 895 F.2d 218 (5th Cir.1990) (en banc). We declined to resolve this issue in Maloney v. Plunkett, 854 F.2d 152, 155 (7th Cir.1988) on the grounds that it was not ripe for decision in that appeal. Today, we join the Eleventh Circuit in holding that Batson forbids a private litigant in a civil case from exercising a peremptory challenge on racial grounds. Martha Dunham was injured in December of 1985 while shopping at Frank’s Nursery & Crafts in Merrillville, Indiana. Mrs. Dunham received an electrical shock when she placed a Christmas ornament plug into a portable electric outlet. Frank’s directed its customers to use the portable outlet to test the working condition of electrical ornaments prior to purchase. Martha Dun-ham brought a negligence suit against Frank’s to recover for her injuries; her husband, Preston Dunham, asserted a claim for lost consortium and services of his wife due to her injuries. Jurisdiction in federal court was based upon diversity of citizenship in accordance with 28 U.S.C. § 1332. Frank’s and the Dunhams both consented to a United States Magistrate conducting all proceedings. On April 24, 1989, a jury trial was commenced. Both Mr. and Mrs. Dunham are black, and of the jury panel examined during voir dire, the only black member to be seated on the petit jury was peremptorily struck by Frank's. The Dunhams objected to this peremptory strike, claiming that it was racially motivated. The magistrate declined to require Frank’s to provide a non-racial explanation for its strike, correctly noting that neither the Supreme Court nor the Seventh Circuit has held that Batson applies to a civil case. The case proceeded to trial with a jury of seven white members. On April 28, 1989, the jury rendered a verdict against the Dunhams finding that, under Indiana’s Comparative Fault Act, Martha Dunham’s fault was greater than fifty percent. The Dunhams appeal solely on the ground that the magistrate erred in declining to order Frank’s to provide a non-racial explanation for its peremptory strike as required by Batson. In Batson, the Supreme Court held that the equal protection clause of the fourteenth amendment forbids a prosecutor in a state criminal trial from using peremptory challenges to strike potential jurors from the venire solely because they are of the same race as the defendant. 476 U.S. at 89, 106 S.Ct. at 1719. In addition, the Court formulated an evidentiary standard for establishing that the state has struck a potential juror on account of his race. Specifically, the Court held that the prosecutor’s striking of a defendant’s racial peer from the venire can be used as circumstantial evidence of the prosecutor’s discriminatory intent. In so doing, the Court overruled the portion of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) which held that a prosecutor’s use of a peremptory challenge is presumptively based on proper considerations related to the case he is trying. Departing from Swain, the Court concluded that a defendant may establish a prima facie case of racial discrimination solely on evidence concerning the prosecutor’s use of a peremptory challenge at the defendant’s trial. Batson, 476 U.S. at 95-96, 106 S.Ct. at 1722-23. In order to establish a prima facia case under Batson, the defendant must first show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to prevent members of his race from serving on the jury. Second, the defendant is entitled to rely on the fact that the mere exercise of a peremptory challenge can be used as circumstantial evidence of discriminatory intent. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptories to exclude veniremen from the petit jury on account of their race. Id. Once the defendant makes a prima facia showing, the burden shifts to the state to come forward with a non-racial explanation for its challenge. Although the prosecutor’s explanation does not have to rise to the level of cause, the mere denial of a discriminatory motive, or an affirmation of prosecutorial good faith does not suffice as a neutral explanation. After hearing the state’s explanation, the trial court must determine if the defendant has established purposeful discrimination. Id. at 97-98, 106 S.Ct. at 1723-24. It is important to emphasize that the holding of Batson was based on the equal protection clause of the fourteenth amendment, not the sixth amendment right to a jury trial in criminal cases. While sixth amendment rights apply only to criminal defendants, equal protection rights apply to civil litigants as well as criminal defendants. Accordingly, the equal protection rationale underlying Batson does not stem from any rights or protections afforded to a criminal defendant that are not afforded to a civil litigant. The Court in Batson based its holding on three basic principles. First, the Court stated that “[cjompetence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. A person’s race simply ‘is unrelated to his fitness as a juror’ ” 476 U.S. at 87, 106 S.Ct. at 1718 (citations omitted). Second, the Court stated that a prosecutor shall not be allowed to assume that a juror of the defendant’s race will be partial to the defendant simply because of their shared race. Id. at 97, 106 S.Ct. at 1723. Finally, the Court reasoned that “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” Id. at 87, 106 S.Ct. at 1718. It is obvious that these three principles are not dependent upon the fact that the jurors in Batson were being selected to sit for a criminal trial rather than a civil trial. Because the rationale of Batson is not inherently dependent upon the fact that Batson was a criminal proceeding, it is only logical to conclude that the Supreme Court would not intend the equal protection requirements of Batson to be limited to criminal cases. This conclusion does not end our analysis, however, for the Constitution does not forbid private persons from discriminating. For a civil litigant to invoke the requirements of the equal protection clause, the litigant must show that the alleged discriminatory act is “state action” subject to the dictates of the Constitution. State action is readily apparent in the context of a criminal case; for there, a representative of the state — the prosecutor — exercises the peremptory challenge. However, state action is not so obvious in a civil case where the party utilizing the peremptory challenge is often a private individual, not a representative of the state. But the fact that a private litigant exercises a peremptory challenge does not automatically make that act private. As the level of interaction and cooperation between private individuals and the state rises — as it does in the jury selection process — it becomes increasingly difficult to discern precisely where private conduct ends and state action begins. In this case, Frank’s, a private litigant, is the alleged discriminatory actor. For Batson to apply in this situation, the alleged discriminatory act — Frank’s exercise of a peremptory challenge — -must fairly be said to be conduct attributable to the state. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 721, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). In Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Supreme Court established a two-part framework for determining the presence or absence of state action. The first part asks whether the claimed constitutional deprivation has resulted from the exercise of a right or privilege having its source in state authority. Id. at 937, 102 S.Ct. at 2753-54. As Frank’s concedes, this requirement is clearly satisfied here. Specifically, 28 U.S.C. § 1870 provides that each party in a civil case shall be entitled to three peremptory challenges. The crucial question is whether the Dunhams can establish Lugar’s second requirement: under the facts of a given case, can the party charged with the deprivation appropriately be characterized as a “state actor”? Id. The Court emphasized that a private party who exercises a right having its source in state authority — Lugar’s first requirement — is not considered a state actor — Lugar ’s second requirement — absent “something more.” Id. at 937-39, 102 S.Ct. at 2754. Determining what constitutes “something more” is far from a precise task. In Lugar, the Court referred to its own use of several different tests in making this determination, including the “public function” test, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); the “state compulsion” test, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); the “nexus" test, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Auth., supra; and the “joint action” test, see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The Court questioned whether these tests are actually different in operation or are simply different ways of “characterizing the necessarily fact-bound inquiry that confronts the Court in such a situation.” Lugar, 457 U.S. at 939, 102 S.Ct. at 2755. The Court concluded that, in the final analysis, the state action determination must be based on the specific facts and the entire context of a given case. “ ‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in .private conduct be attributed its true significance.’ ” Id. (citing Burton, 365 U.S. at 722, 81 S.Ct. at 860). At the outset of this “necessarily fact-bound inquiry,” it is instructive to examine the key facts of relevant precedents in which the Court has traced the line that separates private conduct from government action. In Shelley v. Kraemer, supra, the Court established that the equal protection clause forbids judicial enforcement of private, racially restrictive covenants. The Court held that enforcement of such private agreements by judicial officers in their official capacities amounted to state action. The Court applied a but for analysis, reasoning that, absent the intervention of the enforcing court, supported by the full panoply of state power, the persons excluded by the covenants would have been free to occupy the properties at issue. 334 U.S. at 19, 68 S.Ct. at 845. In Burton v. Wilmington Parking Auth., supra, the Court found that the state acted when a privately owned restaurant located in a state owned and operated parking garage refused to serve a black would-be-patron. Although the decision to discriminate was made by the restaurant owner, a private concern, the Court reasoned that the state could have affirmatively required the restaurant not to discriminate as a precondition to renting space in the parking garage. 365 U.S. at 725, 81 S.Ct. at 861-62. The Court reasoned that through its inaction, the state elected to place its power, property and prestige behind the admitted discrimination. The Court concluded that regardless of the state’s motive, it was not allowed to effectively abdicate its responsibility to prohibit racial discrimination occurring on its property. Id. Recently, in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the Court concluded that the activities of a probate court in a dispute between private parties caused the acts of one party to amount to state action. Tulsa involved a provision of the Oklahoma Probate Code barring creditor claims against an estate unless those claims are presented to the estate no later than two months after the estate notifies creditors that probate proceedings had commenced. A creditor who failed to comply with the two month requirement contended that the estate’s notification did not comply with the requirements of the due process clause because the estate provided only publication notice to creditors as opposed to personal notice. Id. at 479-81, 108 S.Ct. at 1341-43. The Court held that the estate’s act of providing notice was an act that could be attributed to the government because of the probate court’s role in the notification process in particular and the probate process in general. Specifically, the Court emphasized that the two month time bar did not begin to run until the probate court appointed an executrix and required her to file a copy of the estate’s notice and an affidavit stating that the notice had been published. The Court reasoned that the role of the probate court was “so pervasive and substantial that it must be considered state action subject to the restrictions of the Fourteenth Amendment.” Id. at 487, 108 S.Ct. at 1345-46. The Court concluded that whenever “private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found.” Id. at 486, 108 S.Ct. at 1345. We now turn to whether there was state action in this case. The key is to determine whether the trial court’s participation in Frank’s exercise of its peremptory challenge is substantially different than the state’s involvement in Shelley, Burton, or Tulsa. In holding that state action is absent in a civil case, Judge Thomas Gibbs Gee, writing for the en banc panel of the Fifth Circuit in Edmondson, characterized the role of a trial judge as follows: 895 F.2d at 221-22 (footnotes omitted). Judge Gee reasoned that this “mere standing aside” cannot constitute “action” in light of Supreme Court pronouncements that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement ... that the choice must ... be deemed to be that of the State,” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (citing cases), and that “[mjere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the ... Fourteenth Amendment.” Id. (citing cases). [t]he merely ministerial function exercised by the judge in simply permitting the venire members cut by counsel to depart is an action so minimal in nature that one of less significance can scarcely be imagined. No exercise of judicial discretion is involved, rather a mere standing aside; so that the fault — if it is a fault — lies with the system which permits such challenges, not with the judge’s mere ministerial compliance with what the rule requires. While the approach of the Fifth Circuit is certainly plausible, we believe that Supreme Court precedent requires a different characterization of the role of a trial judge in the peremptory challenge process. Analogizing to Shelley, Burton, and Tulsa, we are unable to characterize a judge’s role as that of a “ministerial bystander.” Admittedly, this case is different than Shelley in one key respect — a judge enforcing peremptory challenges, unlike a judge enforcing racial covenants, does not exercise judicial discretion; once a private litigant exercises a peremptory challenge, the judge has no choice but to excuse the stricken panel member. However, in applying a but for analysis in Shelley, the Court focused on a court’s coercive powers, not its discretionary powers. A similar but for analysis is applicable here. Like the racial covenants in Shelley, enforcement of a peremptory strike is ultimately dependent upon the judge’s coercive powers. When a private litigant peremptorily challenges a panel member, that challenge is not self-effectuating. The litigant may exercise the peremptory challenge — but it is the presiding judge who then exercises his authority to excuse the juror from service. All jurors are under the control of the presiding judge during the course of the trial. It is this control over the jury and its selection procedures, inherent in the powers of a federal judicial officer, which demonstrates that the ultimate enforcer of a peremptory challenge is the trial judge; enforcement is not dependent upon an agreement between the private parties. In excusing a juror, the state, no less than in Burton, places its power and prestige behind the admitted discrimination. In addition, peremptory challenges are invoked in a courtroom operated by the government. If the Court in Burton did not allow the state to abdicate its responsibility to prohibit racial discrimination in a parking garage, it only seems logical that the Court would not allow the state to abdicate this responsibility in a court of law. Up to this point, we have focused only on the function of a trial judge in excusing a juror pursuant to a private litigant’s peremptory challenge. In finding state action in Tulsa, however, the Court did not limit its focus to the role of the probate court in the process by which the estate provided notice; rather, the Court emphasized the importance of the probate court’s overall involvement in the probate proceedings. Likewise, our state action inquiry should focus on the overall involvement of the trial court in the jury selection process. The role of a federal district court in the jury selection process appears to be at least as pervasive as the role of the probate court in Tulsa. Congress determines the qualifications for jury service and the method of summoning jury panels; the district court, in turn, enforces these standards. 28 U.S.C. § 1865. In order to avoid discrimination in the selection of jury ve-nires, Congress also requires each district court to devise and enforce a plan for random jury selection. 28 U.S.C. § 1863. The clerk of the district court summons the venire to appear in court at a particular time and place. Of course, jury service in the federal system is not optional — if not excused by the district court, a summoned juror must fulfill jury duty. In regard to the exercise of peremptory challenges, there are several discretionary measures open to a judge which tend to belie the characterization of the judge as a “ministerial bystander.” For example, while the number of peremptory challenges is determined by statute in single party civil cases, a trial'judge has broad discretion in determining the appropriate number and allocation of peremptory challenges in multiparty civil cases. 28 U.S.C. § 1870. Perhaps more important, the trial judge indirectly determines the impact of any given number of peremptory strikes. Local court rules control the number of jurors empaneled in civil cases, thereby governing the relative effectiveness of peremptory challenges in determining the composition of a jury. The trial judge controls the conduct of voir dire and the range of information that may be discovered about a jury panel member, thus affecting the exercise of both challenges for cause and peremptory challenges. In addition, the judge has broad discretion over whether or not to excuse a juror for cause, thus determining the number of jurors who remain eligible for the exercise of peremptory strikes. Finally, a trial judge enjoys broad discretion in determining the manner in which peremptory challenges are exercised: he can decide which party exercises the last challenge; he can require the parties to exercise their challenges simultaneously in writing; or he can require one party to exercise all of its challenges first, thereby allowing the other party to act with full knowledge of its opponent’s choices. We do not think the role of the trial court in Frank’s peremptory strike is significantly different than the role of the state in Shelley, Burton, or Tulsa. Accordingly, we conclude that the requisite state action is present in this case. There is one final point we should address, however: the en banc court in Ed-monson noted that the Court in Batson declined to hold that the equal protection clause prohibits defense counsel in a criminal case from exercising peremptory challenges on racial grounds. 895 F.2d at 222. The en banc court hinted, and Frank’s now argues, that the Court’s failure to so hold is inconsistent with the view of the trial court as state actor. Id. We disagree. The Court in Batson explicitly declined to express a view one way or the other on whether the Constitution imposes any limits on the exercise of peremptory challenges by defense counsel. 476 U.S. at 89 n. 12, 106 S.Ct. at 1719 n. 12. Thus, it is clear that the Court in Batson did not address the issue of whether the trial court supplies the necessary state action in the context presented in this case. Since Batson was decided in 1986, a debate has ensued as to whether it makes sense to allow a right to peremptory challenges — a device admittedly intended to allow a party to strike a potential juror for any reason, be it a hunch, an assumption or an intuitive judgement — once the Supreme Court created an equal protection exception to that right. One thing is certain — the future viability of peremptory challenges is quite uncertain. As of this date, the Supreme Court has not made clear whether the equal protection rationale of Batson forbids the exercise of peremptory challenges with regard to other cognizable categories such as sex, ethnic origin, religion and so on. See Batson, 476 U.S. at 124, 106 S.Ct. at 1737 (Burger, C.J., dissenting). Some propose that we should completely abolish peremptory challenges (as they have in England), see Batson, 476 U.S. at 106-08, 106 S.Ct. at 1728-29 (Marshall, J., concurring), while others argue that we should restore peremptory challenges to the $re-Batson right with no exceptions. Regardless of what position one favors, the current status of the law — peremptory challenges which are not truly peremptory, with exceptions for some reasons but not others — hardly seems satisfactory. See United States v. Clark, 737 F.2d 679, 682 (7th Cir.1984) (Posner, J.) (permitting inquiry into the basis for a peremptory challenge causes it to collapse into a challenge for cause); Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges and the Review of Jury Verdicts, 56 U.Chi.L.Rev. 153 (1989). For our purposes today, however, the debate over the partial invalidation of peremptory challenges was resolved by the Supreme Court in Batson; thus, our views on its merits are irrelevant to deciding this appeal. Our basic task has been to determine the presence or absence of state action. Having found the requisite state action, we are bound to hold that the requirements of Batson apply to Frank’s use of its peremptory challenge. Accordingly, we must remand this case to the district court for it to determine whether the Dunhams can establish a prima facie case of racial discrimination. If the Dunhams establish a prima facie case, then the district court must require Frank’s to show that it had some neutral, that is, non-racial reason for its challenge. If Frank’s does not come forward with a non-racial explanation for its challenge, the district court shall order a new trial. The case is Remanded for further proceedings consistent with this opinion. . The en banc opinion vacated the original panel opinion, which held that Batson applies to a private litigant in a civil case. See Edmonson v. Leesville Concrete Co., Inc. 860 F.2d 1308 (5th Cir.1988). . In Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir.1990), the Eighth Circuit held that the requirements of Batson apply to a civil case when the government is the civil litigant exercising the peremptory challenge. Id. at 1008. The court declined to express a view on whether the action of a trial court alone, in a case involving no government litigants, can supply the necessary element of state action. Id. n. 2. . Martha and Preston Dunham are residents of Lake County Indiana; Frank’s Nursery & Crafts, Inc. is incorporated in the state of Michigan and has its principal place of business in Michigan. The amount in controversy exceeds $50,000. . Batson was based on the equal protection clause of the fourteenth amendment, which applies only to the states, not the federal government. However, the right to equal protection of the laws expressed in the fourteenth amendment has been found by implication in the due process clause of the fifth amendment, which applies to federal action. Johnson v. Robison, 415 U.S. 361, 364, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 389 (1974); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954). . The Court declined to express a view on the merits of Batson's sixth amendment arguments. 476 U.S. at 84, 106 S.Ct. at 1716 n. 4. Recently, in Holland v. Illinois, — U.S. -, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), the Court held that the fair cross section requirement of the sixth amendment does not prevent either side in a criminal prosecution from exercising its peremptory challenges in order to exclude cognizable racial or other groups from the petit jury as long as the venire itself is drawn from a fair cross section of the community. . The facts of Blum v. Yaretsky, see accompanying text, are not pertinent to our case. Unlike this case, the private action at issue in Blum failed to satisfy Lugar’s first prong. In Blum, the Court noted that it was dealing with a case “obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it ‘state’ action for purposes of the Fourteenth Amendment." 457 U.S. at 1003, 102 S.Ct. at 2785. . The portion of the en banc opinion in Edmon-son pertaining to state action does not discuss Shelley, Burton, or Tulsa. See Edmonson, 895 F.2d at 221-22.

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

KERSHNER, Royce, Ryan, Bernard, on their own behalf and on behalf of others similarly situated, Appellants, v. MAZURKIEWICZ, J. F., Superintendent; Gerber, Gary R., Librarian, SCI at Rockview, Bellefonte, Pa., Appellees. No. 81-1042. United States Court of Appeals, Third Circuit. Argued May 19, 1981. Reargued Nov. 23, 1981. Decided Feb. 1, 1982. Richard G. Fishman (argued), Keystone Legal Services, Inc., State College, Pa., for appellants. Gregory R. Neuhauser (argued), Francis R. Filipi, Deputy Attys. Gen., Leroy S. Zim-inerman, Atty. Gen., Harrisburg, Pa., for appellees. Argued May 19, 1981. Before ADAMS, ROSENN and HIGGIN-BOTHAM, Circuit Judges. Reargued In Banc Nov. 23, 1981. Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVI-TER, Circuit Judges. OPINION OF THE COURT ADAMS, Circuit Judge. On January 30, 1980, appellants Royce Kerchner and Bernard Ryan, inmates at the State Correctional Institution at Rock-view [Rockview] filed a class action civil rights complaint under 42 U.S.C. § 1983 seeking preliminary and final injunctive relief against two prison officials. Appellants contended that defendants were required by the sixth and fourteenth amendments to provide indigent inmates with free legal supplies including pads, pens, pencils, photocopying, and postage. Three issues are presented for consideration: first, whether the district court erred when it denied the inmates’ motion for a preliminary injunction; second, whether this Court has appellate jurisdiction to review at this time the district court’s denial of class certification; and finally, assuming there is jurisdiction over the denial of class certification, whether the trial court abused its discretion in denying class certification. We believe that the district court did not err in denying the motion for preliminary injunctive relief, and affirm the judgment of the district court in this regard. Because we conclude, however, that the order denying class certification is not now appealable, we do not reach the merits of the third issue. I. Kerchner and Ryan brought suit against Dr. J. F. Mazurkiewicz, the Superintendent of Rockview, and Gary R. Gerber, the Librarian at Rockview, for their alleged refusal to provide without cost certain legal supplies and documents both to the named plaintiffs and to other allegedly indigent inmates. In this respect, Pennsylvania law provides that: “Adequate legal size paper shall be available in institution commissaries for purchase by inmates.” 37 Pa.Code § 93.2(a). The inmate handbook for Rock-view further provides: LEGAL MATERIAL AND NOTARY PUBLIC 1. You may purchase any legal material you believe to be valuable to you in seeking legal remedies. The amount permitted in your cell at any one time may be limited depending on individual circumstances. 2. Some legal materials are available at the institutional library for your use. 3. The institution will provide notary service for documents requiring notarization. A request slip should be directed to the Records Office in the institution for Notary Public Services. Appendix at 37. As a result of the operation of the above policy, Kerchner complains that he has been “forced... to pay for legal supplies and materials in seeking... legal remedies... despite his indigency and [has been] placed... in the position of either foregoing these supplies and materials in the pursuit of legal remedies or giving up the few amenities available in prison life.” H 16, Plaintiffs’ Complaint, Appendix at 10. Kerchner earns $35.00 per month from his institutional job. During his incarceration Kerchner has had less than $60.00 in his institutional account at any one time; his average balance through January 2, 1980 was approximately $21.72. Ryan’s average balance was $12.00; on January 2, 1980, he had $25.85 in his institutional account. Appendix at 19-23. II. At the outset it must be stressed that the appellants did not establish that there was any instance in which they were unable to pursue any legal action because of the cost of legal supplies and photocopying. Rather, they assert that in being required to use their own limited funds they have been or will be deprived of certain unspecified amenities. The first issue before us, then, is simply whether the district court erred in denying a preliminary injunction that would have required the Commonwealth to supply, without cost to the named plaintiffs, pads, pens, pencils, postage, photocopying and other legal materials when the plaintiffs had funds in their institutional accounts sufficient to purchase those items. A. A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party “will be irreparably injured pendente lite if relief is not granted.” Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972). Consequently, the scope of appellate review of a trial court’s ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir. 1980). In this instance, the case was referred to Magistrate Raymond J. Durkin, who wrote a thoughtful opinion and recommendation. He concluded that the plaintiffs failed to carry their burden to show either “a probability of success on the merits or that they will suffer irreparable harm if the preliminary injunction is not granted.” Appendix at 57. Magistrate Durkin found that there has been no demonstration in the complaint or other documents that any prisoner has not been able to perfect and pursue a legal action due to the written policy concerning postage and the policy regarding paper and writing utensils, even if informal. With respect to the specific matters in dispute, it is recognized by plaintiffs that each inmate is permitted without cost to mail 10 one-ounce first class letters or the equivalent thereof in postage per month up to $1.50, and there has been no demonstration that any prisoner who exceeded this limit and was without funds and found himself in an emergency situation with respect to court matters was refused postage. In the absence of such demonstration, it would appear that prison officials would be free to establish some limitation on free postage. * * * * * * With respect to the matter of free photocopying, plaintiffs once again have not pointed to any instance in which an inmate was actually denied access to the courts by reason of being unable to photocopy documents when he did not have the funds to pay for the photocopying service. Appendix at 58, 60. The district court approved and adopted the Magistrate’s recommendation to deny the preliminary injunction “for the reasons set forth in his report.” Appendix at 69. B. On appeal, the inmates reiterate their claim that they were irreparably harmed because they were forced into a position in which they had “to choose to forego legal remedies for the few ‘amenities of prison life’ they have funds to purchase, or forego these ‘amenities in pursuit of legal remedies.’ ” Appendix at 53. But appellants do not in any way specify what these amenities are. Nor do they allege that they were deprived of their basic necessities. They assert merely that they have “clear” constitutional rights that are being violated, and that the violation of constitutional rights for even minimal periods of time constitutes the required showing of irreparable harm. Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1292(a)(1). It is now established, of course, “that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). But at this stage in the litigation, there has been no showing that this proceeding involves “access to the courts.” Although broad constitutional claims are asserted, the present matter is quite different from any of the major constitutional cases relied upon by the appellants: This is not a situation in which prisoners are being denied the right to file petitions for habeas corpus unless the petitioners are found “properly drawn” by the legal investigator for the Parole Board. Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). This is not a case in which the state has “effectively foreclosed” indigent prisoners from filing appeals and habeas corpus petitions by requiring the payment of docket fees. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961); Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959). This is not a case in which an indigent inmate cannot acquire trial records because of his inability to pay for them. Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). See also Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958). L.Ed.2d 899 (1963). This is not a case in which indigent inmates are denied “a meaningful appeal” from their convictions because of the state’s failure to appoint counsel. Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811 (1963). This is not a case in which the state prison system failed to provide adequate legal library facilities, Bounds, supra. Nor is this a case in which the state is closing a prison law clinic and does not provide an adequate law library, Wade v. Kane, 448 F.Supp. 678 (E.D.Pa.1978), aff’d 591 F.2d 1338 (3d Cir. 1979). Plaintiffs have been permitted to proceed in forma pauperis in this and in all their other cases, and thus the case at hand is also unlike Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975), in which the plaintiffs were denied the right to proceed in forma pauperis. Appellants rely heavily on Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). In the very first sentence in Bounds, however, the majority stated its perception of the primary issue before the Court as follows: “The issue in this case is whether States must protect the right of prisoners to access to the courts by providing them with law libraries or alternative sources of legal knowledge.” 430 U.S. at 817, 97 S.Ct. at 1492-93 (emphasis added). Pads, pens, pencils, and photocopy machines are, of course, neither “law libraries” nor “alternative sources of legal knowledge.” In a lengthy discourse on somewhat collateral issues, however, the Court said: “It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them.” 430 U.S. at 824-25, 97 S.Ct. at 1496 (emphasis added). Whether the latter statement was dictum or a holding is irrelevant for our purposes because the touchstone was the word “indigent,” though the Court proffered no definition of indigency. Magistrate Durkin’s report suggests that the plaintiffs may not have been “indigent” for the purpose of purchasing the modest supplies at issue here. Further, and more important, the Magistrate stressed that there was no proof adduced that “any prisoner has not been able to perfect and pursue a legal action due to the written policy concerning postage and the policy regarding paper and writing utensils.... ” Appendix at 58. He noted that each inmate was allowed to mail ten first class letters without cost per month and found that plaintiffs were unable to point “to any instance in which an inmate was actually denied access to the courts by reason of being unable to photocopy documents when he did not have the funds to pay for the photocopying service.” Appendix at 60. We agree with the district court that appellants have not met their burden of showing irreparable injury in this regard. As the Court of Appeals for the Tenth Circuit recently observed in Johnson v. Parke: The constitutional concept of an inmate’s right of access to the courts does not require that prison officials provide inmates free or unlimited access to photocopying machinery. See Harrell v. Keo-hane [621 F.2d 1059 (10th Cir. 1980)]. When an inmate’s access to the courts is not unduly hampered by the denial of access to such machinery, he cannot complain. 642 F.2d 377, 380 (10th Cir. 1981) (emphasis added). We therefore will affirm the district court’s order denying appellants’ motion for preliminary injunctive relief. IIÍ. Appellants urge that, in addition to ruling on the preliminary injunction issue, we should also consider that portion of the district court’s order that denied certification of the purported class of inmates. We conclude, however, that we lack appellate jurisdiction at this time over the latter issue. A. The appealability of a district court order denying a motion for class certification was, until recently, an unresolved issue. In 1978, however, the Supreme Court established that such orders are not generally appeala-ble, inasmuch as they are neither “final decisions” for purposes of 28 U.S.C. § 1291, Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), nor refusals of injunctive relief for purposes of 28 U.S.C. § 1292(a)(1), Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978). Cf. DeMasi v. Weiss, 669 F.2d 114 at 119 (3d Cir. 1982) (refusing to employ mandamus to review class certification order). In the present case, however, class certification was denied in the same order as the refusal of preliminary injunctive relief. Both parties agree that this Court has jurisdiction, under section 1292(a)(1), to review that portion of the order declining to issue the requested injunction. The disputed question is whether we may also review the class certification issue that was disposed of in the same order. Appellants exhort us to embrace what one federal court has termed the doctrine of “pendent appellate jurisdiction,” Marcera v. Chinlund, 595 F.2d 1231, 1236 n.8 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). That doctrine, a judicially crafted exception to the interlocutory appeal rules of 28 U.S.C. § 1292, would provide that once an appellate court is accorded jurisdiction over the grant, refusal or modification of an injunction pursuant to § 1292(a)(1), the court in its discretion may review the entire order, including those portions of the order which otherwise would not qualify for interlocutory review. While the Supreme Court has yet to address the propriety of pendent appellate jurisdiction, our circuit has had a number of opportunities to explore the concept. An examination of the opinions reveals, however, that this Court has never formulated a consistent approach to the problem. In several decisions, this Court appears to have adopted a broad view of appellate jurisdiction under section 1292. In D’Iorio v. County of Delaware, 592 F.2d 681 (3d Cir. 1978), for example, the Court stated: [B]ecause the district court granted D’lorio’s requested injunctive relief and ordered his reinstatement as a county detective, this appeal is properly before us under 28 U.S.C. § 1292(a)(1) (authorizing appeals from injunctive orders). When appellate jurisdiction is established on this basis, the entire order, and not simply the propriety of the injunctive relief, is before the court for review. 592 F.2d at 685 n.4 (emphasis added). Similarly, in Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972), the Court asserted that certain provisions of the district court’s orders were “injunctions within the meaning of section 1292(a)(1).... Given jurisdiction over these aspects of the district court’s orders we can review the merits of the entire case as it now rests.” 458 F.2d at 262. See also Jaffee v. United States, 592 F.2d 712, 715 (3d Cir.), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 F.2d 786, 791 (3d Cir. 1978). The reach of Kohn, however, was explicitly constricted in W. L. Gore & Assoc. v. Carlisle Corp., 529 F.2d 614, 618 (3d Cir. 1976), a patent infringement case in which Judge Maris, writing for a unanimous panel, concluded that the jurisdiction conferred upon the court of appeals does not extend to other claims or issues determined by the judgment which have no bearing upon the propriety of the action of the court with respect to the injunction.... Our decision in Kohn... is not to the contrary. For in that case an injunction was the principal relief sought and all the issues decided by the district court in its interlocutory judgment which was appealed under § 1292(a)(1) appear to have been involved in the plaintiff’s right to injunctive relief. Finally, a later case, Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 168 (3d Cir. 1979), would appear to be even more directly at variance with Kohn and D’Iorio. Considering a district court order that disposed both of plaintiff’s motion for a preliminary injunction and of defendant-intervenor’s motion to file a supplemental answer, the court stated summarily: “This court’s jurisdiction is limited to reviewing that portion of the... order refusing to grant an injunction.” Bushkill thus represents a narrow approach to section 1292(a)(1) that would restrict our jurisdiction to the literal terms of the statute. B. Section 1292(a)(1) provides that the appellate courts “shall have jurisdiction of appeals from... [ijnterloeutory orders of the district courts... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.... ” 28 U.S.C. § 1292(a)(1) (1976). The provision is one of four exceptions to the general rule that our appellate jurisdiction extends to final decisions of district courts. 28 U.S.C. § 1291 (1976). The history of § 1292 has been recounted elsewhere, see, e.g., Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955); Katz v. Carte Blanche Corp., 496 F.2d 747, 753-54 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829-30 (2d Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). It is sufficient to note here that section 1292(a)(1) “creates an exception to the long-established policy against piecemeal appeals, which this Court is not authorized to enlarge or extend. The exception is a narrow one and is keyed to the ‘need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978) (quoting Baltimore Contractors v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955) (footnote omitted)); accord, Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). Because section 1292(a)(1) is an exception to an otherwise fundamental rule of federal appellate jurisdiction, we must construe the scope of the provision with great care and circumspection. Indeed, as the Supreme Court declared in Switzerland Cheese Assoc. v. E. Horne’s Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966), it is necessary that we “approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.” A broad grant of section 1292(a)(1) jurisdiction posited by such cases as D’Iorio and Kohn appears directly to contravene the admonition of the Supreme Court in Gardner and Switzerland Cheese. Kohn, however, relied upon a different line of Supreme Court precedent, the genesis of which was Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 410, 41 L.Ed. 810 (1897). In Smith, the Supreme Court construed the predecessor of section 1292(a)(1) to authorize “according to its grammatical construction and natural meaning, an appeal to be taken from the whole of such interlocutory order or decree, and not from that part of it only which grants or continues an injunction.” Reliance upon Smith, however, was misplaced. In Smith, the Supreme Court went on to say that the intent of the provision in question was “not only to permit the defendant to obtain immediate relief from an injunction... but also to save both parties from the expense of further litigation, should the appellate court be of opinion that the plaintiff was not entitled to an injunction because his bill had no equity to support it." 165 U.S. at 525, 17 S.Ct. at 410 (emphasis added). Smith holds, therefore, that where appellate jurisdiction is based on section 1292(a) but it appears to the appellate court that there is no merit to the complaint whatever, the entire case will be dismissed. This holding is much narrower than the excerpt quoted in Kohn would appear to suggest. N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99 (3d Cir. 1979), reflects more accurately the meaning of the Smith case. There, the district court denied a motion for a preliminary injunction and, in the same order, directed that discovery go forward. We decline to review the discovery order, concluding that, unless “subject matter jurisdiction is entirely lacking or the pleadings disclose no claim upon which relief could be granted... the discovery order is interlocutory and unreviewable.” 610 F.2d at 104. The other circuits that have considered the issue appear to have taken the more restrictive view of section 1292(a)(1) that is reflected in such opinions as Interstate Dress Carriers and Gore, discussed supra. Both the Second and Seventh Circuit approaches deserve close examination. In Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, 70 (2d Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966), Judge Lumbard — reflecting the Smith court rationale — noted that [a]s a general rule, when an appeal is taken from the grant or denial of a preliminary injunction, the reviewing court will go no further into the merits than is necessary to decide the interlocutory appeal.... However, this rule is subject to a general exception — the appellate court may dismiss the complaint on the merits if its examination of the record upon an interlocutory appeal reveals that the case is entirely void of merit.... Such an exception serves the obvious interest of economy of litigation.... The Second Circuit carved out another narrow exception to the general rule in Sanders v. Levy, 558 F.2d 636, 643 (2d Cir. 1976), adhered to on this point en banc, 558 F.2d 646, 647-48 (2d Cir. 1977), rev’d on other grounds sub nom. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). There, the Court concluded that it could review an otherwise nonappealable class action determination because there was “sufficient overlap in the factors relevant” to the class action issue and the other, properly appealable, issues. See also Marcera v. Chinlund, 595 F.2d 1231, 1236 n.8 (2d Cir.) vacated on other grounds, sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). Judge Waterman, in State of New York v. Nuclear Regulatory Commission, 550 F.2d 745 (2d Cir. 1977), carefully delineated the rationale behind the Hurwitz and Sanders decisions. Declining to review the merits of the entire case after properly assuming jurisdiction under section 1292(a)(1), he concluded: What Hurwitz and Sanders have in common, and what distinguishes them from the present case, is that in each of them the expanded review undertaken by the appellate court required no greater expenditure of effort by that court than if it had strictly confined its review to the interlocutory order which was independently appealable. 550 F.2d at 760 (emphasis added). A similarly circumscribed approach was adopted by the Seventh Circuit in Jenkins v. Blue Cross Mutual Insurance, Inc., 522 F.2d 1235 (7th Cir. 1975), aff’d on rehearing, 538 F.2d 164 (7th Cir.), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). There, the plaintiff, a former employee of Blue Cross, charged her former employer with sex discrimination in violation of Title VII. The requested injunctive relief would have enjoined the defendants’ current employee evaluation and promotion practices. In refusing to grant the plaintiff’s motion to certify a class including all current employees of Blue Cross, the district court effectively precluded the requested injunctive relief: because the plaintiff was no longer employed, she could not demonstrate “irreparable harm” to herself resulting from continued use of the evaluation and promotion practices. On these facts, the Seventh Circuit held the class certification question appealable, concluding that “there can be no doubt that the district court’s earlier refusal to certify the suit as a class action directly controlled its subsequent decision on the requested preliminary injunction.” Id. at 1238 (emphasis added) (footnote omitted). A fair reading of the relevant Supreme Court precedents, as well as the discussions of section 1292(a)(1) found in the decisions of the other circuits that have considered the issue, lead us to conclude that the broad grant of section 1292(a)(1) jurisdiction adopted in such cases as D’lorio and Kohn is incorrect. The Congress that drafted section 1292 set forth four exceptions — and only four — from the basic rule that interlocutory orders are not appealable. Mindful of the Supreme Court’s counsel in Gardner, supra, and Switzerland Cheese, supra, we decline to reach out and extend our jurisdiction absent further directives from Congress. Instead, we hold that a pendent class certification order is not appealable under section 1292(a)(1) unless the preliminary injunction issue cannot properly be decided without reference to the class certification question. Our holding today reflects the carefully tailored reading of section 1292(a)(1) that has been mandated by the Supreme Court and advocated explicitly by the Second and Seventh Circuits. If the preliminary injunction issue appealable under section 1292(a)(1) cannot be resolved without reference to the otherwise nonappealable class certification issue — either because the latter issue directly controls disposition of the former, or because the issues are, in some other way, inextricably bound — then both issues must be addressed in order to resolve properly the section 1292(a)(1) preliminary injunction issue. In such a situation, the appellate court has no choice: any more limited review would deprive the appellant of his or her congressionally mandated right to a section 1292(a)(1) interlocutory appeal. If, on the other hand, the appellate court can dispose of the section 1292(a)(1) appeal without venturing into otherwise nonre-viewable matters, its jurisdiction should be limited accordingly. A contrary rule would have serious and unfortunate consequences. For one thing, extending appellate jurisdiction over interlocutory orders not explicitly covered by section 1292(a) could disrupt the functioning of the district court by prematurely taking matters out of the district judge’s hands. An appellate court decision to assume jurisdiction over a class certification order, for example, which “may be altered or amended before the decision on the merits,” Fed.R.Civ.P. 23(c)(1), is — -in the absence of extraordinary circumstances — a usurpation of the district court’s role. In addition, any rule that encourages a broad range of appeals under section 1292(a)(1) invites abuse. Litigants desiring immediate appellate review could simply encumber their complaints or counterclaims with prayers for injunctive relief. Finally, and most importantly, the standard arguably suggested in D'Iorio and Kohn could effectively undermine the final decision rule. Once we begin reviewing a broad range of interlocutory orders, we defeat the narrow scope of section 1292(a) that was clearly intended by Congress. C. Turning to the present appeal, we conclude that the order denying the class certification is not appealable as a concomitant of the order denying preliminary injunctive relief. Under the standard that is inferrable from section 1292(a), a mere nexus between the two orders is not sufficient to justify a decision to assume jurisdiction. Thus, the fact that the definition of the term “indigency” was relevant to both issues is not enough, by itself, to warrant the extension of our jurisdiction. Unlike Jenkins v. Blue Cross Mutual Insurance, Inc., supra, this is not a case in which the order denying the class certification “directly controlled” the refusal to grant a preliminary injunction. As an appellate court, we can resolve the preliminary injunction issue without even a reference to the order denying class certification. Indeed, it is instructive to note that, in this case, the Magistrate disposed of the preliminary injunction issue in its entirety before addressing the motion for class certification. Appendix at 62. Additionally, as the appellees point out, “it is conceivable that preliminary injunc-tive relief could have been granted while class action status [was] denied and the same result desired by the inmates would have been achieved.” Brief for Appellees at 15. The two issues are separate and distinct; in no way can they be said to be “inextricably bound.” IV. We therefore hold (a) that the ruling of the district court denying the request for a preliminary injunction will be affirmed, and (b) that the class certification order is not reviewable under section 1292(a)(1) at this point in the litigation. The matter will be remanded to the district court for action consistent with this opinion. . Kerchner’s name was docketed as Kershner, but except for the caption we will use the correct spelling of his name in this opinion. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 555 n*. 100 S.Ct. 790, 790-91 n* 63 L.Ed.2d 22 (1980). . While there is a claim that there was a failure to provide § 1983 forms for prisoners, the failure to provide enough § 1983 forms was found by the Magistrate to be nothing more than a “temporary short fall [which] resulted... [when] a check disclosed that there were only 5 sets of forms on hand. Gerber felt he had to limit the number of forms given to Ryan, until supplies could be replenished, when one considers that there are 850 men in the prison [sic]... Moreover, this court can take notice that many handwritten civil rights complaints, not on the required forms, are filed in this district.” Appendix at 60. We cannot conclude that these findings were clearly erroneous. . It must be emphasized that this case comes to us as an appeal from the denial of

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

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

STANFORD v. PENNSYLVANIA R. CO. No. 9681. United States Court of Appeals Seventh Circuit. Dec. 11, 1948. John J. Enright, of Chicago, 111., and Charles F. Scanlon and Ray J. McGowan, both of Akron, Ohio, for appellant. Theodore Schmidt, P. J. Cronin, Charles F. White, and Herbert C. De Young, all of Chicago, 111., for appellee.. Before KERNER and SPARKS, Circuit Judges, and LINDLEY, District Judge. KERNER, Circuit Judge. This was a suit in which plaintiff claimed damages under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for the death of her husband, Dona-ld G. Stanford, while in defendant’s employ. The cause was tried to a jury. The jury found against defendant and returned a verdict for plaintiff .for $9,000. Defendant moved the court to set aside the verdict and enter judgment in accordance with its motion for a directed verdict in its favor. The trial judge set asi-de the verdict and entered judgment notwithstanding the verdict in favor of defendant. The complaint was based upon the charge that defendant had negligently moved a locomotive at a time when plaintiff’s decedent was attempting to put water into the tender of the locomotive. It appeared that a water plug had been pinned again-st Stanford’s stomach, causing injuries from which he died. There was evidence that the fall spout of the water plug was bent and that the plug was closed by the impact, but there were no eye witnesses to show definitely the actual occurrence -at and just prior to the time that Stanford was crushed. The trial judge was of the opinion that “The only reasonable explanation of the accident i-s that Stanford upon giving the •signal and before the engine stopped moving, stepped between the plug and the coal slope, placing himself in -a position of danger and that his death was not the result of any negligence on the part of the engineer.” PlaintifF-s theory is that in order to crush Stanford the -train must have continued to move after th-e stop signal was given, because at the time t-h-e stop -signal was given Stanford had not been injured, but was standing in front and to the north of the water plug or spout. On the other hand, defendant contends that there is no evidence tending to -show that defendant was guilty of any negligence. Its theory is that Stanford, upon giving the signal and before the train stopped moving, stepped between t-h-e plug and the coal slope, grabbed t-he plug either before the train had entirely stopped or pulled it with -such force that the spout hit him. Thus there is presented th-e question of whether -there was any -evidence to -support the jury’s finding that defendant negligently moved th-e engine at a time w-hen Stanford was attempting to pu-t water into the tender. If -there was any evidence which, together with a-11 the reasonable -inferences that might -be drawn the-refirom, supports plaintiff’s case, the trial judge erred in substituting his conclusions for those of t-he jury, -since the jury i-s -th-e tribunal to decide that type o.f -issue. Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; and Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615. Only a -complete absence of probative facts -to support the conclusions reached would justify a court -to substitute i-t-s -conclusions for those of the ju-ry. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916. This is so because the choice of -conflicting versions of the way t-he accident happened, -the decision as to which witnes-s is telling the truth, and -the inferences to be drawn from uncontroverte-d -a-s well as c-on-t-roverted facts, are questions -for the jury. Once there is a reasonable basis for concluding that there Was negligence which caused the injury, it is irrelevant that -fair minded men might reach a different conclusion. Otherwise it would be an invasion of the jury’s function for the trial judge to draw contrary inferences or to conclude that a different conclusion would be more reasonable. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572. Stanford was -a locomotive fireman on board -the -engine -of an interstate passenger train consisting of an -engine, tender, -and -eight coaches. For -the purpose of taking -on water, th-e engine stopped at a water plug, consisting of -a standpipe, an ■extension pipe and fall pipe, in defendant’s East Con-way Yards, Pennsylvania. Defendant’s -tracks at this point run in a general -easterly and westerly -direction.c The water plug wa-s located to the south of -the tracks u-pon which this -engine was 'being operated, headed east. Stanford got down from th-e engine, unlatc-h-ed -the plug, turned it over to th-e tender, and then got up on. the tender. Located on -the tender, immediately to the rear -of th-e coal -loft or slope, was a brakeman’s -cabin about 4% feet in height. Stailfo-rd, for -the purpose of putting water into the manhole located on the extreme rear -end of -the -tender, swung the extension pipe of the plug from -the south to the north, but when the pipe would not -clear the cabin, he signaled the 'engineer, sitting sidewise -on a -seat on the south side of the cab of the engine with his back toward Stanford, to move the engine from 24 to 36 inches in order that -the plug might be in a position to spot the plug over the manhole. From certain photographs -showing the tender, the cabin and th-e water plug, if appears that the -only way the plug -cou-ld -clear the cabin would be to s-wing th-e plug -clear of the engine and move the engine forward. The engineer testified that after receiving Stanford’s signal he moved the -engine back about two feet or perhaps -a little more than -that, and that when it was far enough he looked up and -saw Stanford ■standing in .front and to the north of the plug; that Stanford waved his arm to stop the engine, and hollered “That will do”; that thereupon he put on the air valve with the independent brake and stopped the engine; and that when he next -looked up -he -saw Stanford’s hands back -up over the coal slope; that he did no-t se-e Stanford change his position from -the time Stanford Called out “That will do” -and that he did not see Stanford when he was in the act of stopping the .train; that he immediately went up to see what the trouble was and found Stanford pinned between the coal slope and the plug. To this evidence must be added the presumption that Stanford was in the exercise of due care for his own safety at the time he was crushed. Tennant v. Peoria & P. U. Ry. Co., supra; and Chicago & N. W. Ry. Co. v. Grauel, 8 Cir., 160 F.2d 820, 821. We think, after applying the principles enunciated in the cases cited above to the facts in our case, that there was evidence upon which the jury could have found negligence on the part of defendant which contributed, in whole or in pant, to Stanford’s death, and since there was an evidentiary basis .for the jury’s verdict, the jury was free to discard or disbelieve whatever facts were inconsistent with its conclusions, Lavender v. Kurn, supra, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916; and that .the court erred in substituting its conclusions .for those of the jury. Accordingly, the judgment of the District Court is reversed and the cause is remanded for further proceedings not inconsistent with this-opinion. 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?

Helen STEIN, Widow and Administratrix of the succession of Awtrey C. Gaudet, deceased, Plaintiff-Appellee, v. SEA-LAND SERVICES, INC., Defendant-Appellant. No. 30525 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 29, 1971. Stuart A. McClendon, McClendon & McClendon, Metairie, La., for defendant-appellant. George W. Reese, Peter J. Abadie, Jr., Reese & Abadie, New Orleans, La., for plaintiff-appellee. Andrew T. Martinez, Terriberry, Rault, Carroll, Yancey & Farrell, New Orleans, La., for defendant-appellee. Before WISDOM, COLEMAN and SIMPSON, Circuit Judges. . The judgment appealed from was entered August 13, 1970 following a jury verdict in favor of the plaintiff Awtrey C. Gaudet for money damages in the amount of $140,000.00. Between verdict and final judgment Mr. Gaudet died June 29, 1970. After the entry of this appeal the present plaintiff-appellee was substituted upon motion and without objection. Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: The original appellee Awtrey C. Gaudet was injured when he slipped and injured his back coming from a tier of cargo to the deck while working as a longshore foreman directing the loading of large trailer vans on the weather deck at the No. 3 hatch of the S. S. CLAIBORNE on October 29, 1966, on the navigable waters of the Mississippi River in the city of New Orleans, Louisiana. He brought suit asserting that the accident and his resulting injury was caused by the unseaworthiness of the vessel in that it was not provided with ladders to go from tier to deck and further that the deck was greasy. The jury verdict by answers to special interrogatories found that the vessel was unseaworthy and that this was the proximate cause of Gaudet’s injury, that Gaudet was contributorily negligent and that his contributory negligence, expressed in percentage, contributed approximately 20% to his injury. The jury assessed the amount of the damages necessary to fairly compensate Gaudet for the injury at $175,000.00. After trial before the trial court and again on this appeal, the defendant-appellee raised questions attacking the jury verdict. These attacks were mounted by motions for directed verdict at the close of the plaintiff’s case, by motion for judgment notwithstanding the verdict, by motion for new trial, all on grounds of insufficiency of the evidence, and by motion for remittitur or alternatively for new trial on the ground of excessiveness of the verdict. The trial judge in an extensive (but oral and unreported) opinion sustained the verdict and the amount thereof and entered judgment for $140,000.00. We conclude that the trial judge correctly determined that the questions presented to him and on appeal to us represent no more than attempts to upset legitimate credibility choices of the jury. The judgment appealed from was right. It is Affirmed. . Owned and operated by Sea-Land Services, Inc., defendant-appellant.

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

THORPE v. HOUSING AUTHORITY OF THE CITY OF DURHAM. No. 20. Argued October 23, 1968. Decided January 13, 1969. James M. Nabrit III argued the cause for petitioner. With him on the briefs were Jack Greenberg, Charles Stephen Ralston, Charles H. Jones, Jr., Anthony G. Amsterdam, and William Bennett Turner. Daniel K. Edwards argued the cause for respondent. With him on the briefs was William Y. Manson. Mr. Chief Justice Warren delivered the opinion of the Court. This case raises the question whether a tenant of a federally assisted housing project can be evicted prior to notification of the reasons for the eviction and without an opportunity to reply to those reasons, when such a procedure is provided for in a Department of Housing and Urban Development (hereinafter HUD) circular issued after eviction proceedings have been initiated. On November 11, 1964, petitioner and her children commenced a month-to-month tenancy in McDougald Terrace, a federally assisted, low-rent housing project owned and operated by the Housing Authority of the City of Durham, North Carolina. Under the lease, petitioner is entitled to an automatic renewal for successive one-month terms, provided that her family composition and income remain unchanged and that she does not violate the terms of the lease. The lease also provides, however, that either the tenant or the Authority may terminate the tenancy by giving notice at least 15 days before the end of any monthly term. On August 10, 1965, petitioner was elected president of a McDougald Terrace tenants’ organization called the Parents’ Club. On the very next day, without any explanation, the executive director of the Housing Authority notified petitioner that her lease would be canceled as of August 31. After receiving notice, petitioner attempted through her attorneys, by phone and by letter, to find out the reasons for her eviction. Her inquiries went unanswered, and she refused to vacate. On September 17,1965, the Housing Authority brought an action for summary eviction in the Durham Justice of the Peace Court, which, three days later, ordered petitioner removed from her apartment. On appeal to the Superior Court of Durham County, petitioner alleged that she was being evicted because of her organizational activities in violation of her First Amendment rights. After a trial de novo, the Superior Court affirmed the eviction, and the Supreme Court of North Carolina also affirmed. Both appellate courts held that under the lease the Authority’s reasons for terminating petitioner’s tenancy were immaterial. On December 5, 1966, we granted certiorari to consider whether petitioner was denied due process by the Housing Authority’s refusal to state the reasons for her eviction and to afford her a hearing at which she could contest the sufficiency of those reasons. On February 7, 1967, while petitioner’s case was pending in this Court, HUD issued a circular directing that before instituting an eviction proceeding local housing authorities operating all federally assisted projects should inform the tenant "in a private conference or other appropriate manner” of the reasons for the eviction and give him “an opportunity to make such reply or explanation as he may wish.” Since the application of this directive to petitioner would render a decision on the constitutional issues she raised unnecessary, we vacated the judgment of the Supreme Court of North Carolina and remanded the case “for such further proceedings as may be appropriate in the light of the February 7 circular of the Department of Housing and Urban Development.” On remand, the North Carolina Supreme Court refused to apply the February 7 HUD circular and reaffirmed its prior decision upholding petitioner’s eviction. Analogizing to the North Carolina rule that statutes are presumed to act prospectively only, the court held that since “[a] 11 critical events” had occurred prior to the date on which the circular was issued “[t]he rights of the parties had matured and had been determined before . . that date. We again granted certiorari. We reverse the judgment of the Supreme Court of North Carolina and hold that housing authorities of federally assisted public housing projects must apply the February 7, 1967, HUD circular before evicting any tenant still residing in such projects on the date of this decision. In support of the North Carolina judgment, the Housing Authority makes three arguments: (1) the HUD circular was intended to be advisory, not mandatory; (2) if the circular is mandatory, it is an unauthorized and unconstitutional impairment of both the Authority’s annual contributions contract with HUD and the lease agreement between the Authority and petitioner; and (3) even if the circular is mandatory, within HUD’s power, and constitutional, it does not apply to eviction proceedings commenced prior to the date the circular was issued. We reject each of these contentions. I. Pursuant to its general rule-making power under § 8 of the United States Housing Act of 1937, HUD has issued a Low-Rent Management Manual, which contains requirements that supplement the provisions of the annual contributions contract applicable to project management. According to HUD, these requirements “are the minimum considered consistent with fulfilling Federal responsibilities” under the Act. Changes in the manual are initially promulgated as circulars. These circulars, which have not yet been physically incorporated into the manual, are temporary additions or modifications of the manual’s requirements and “have the same effect.” In contrast, the various “handbooks” and “booklets” issued by HUD contain mere “instructions,” “technical suggestions,” and “items for consideration.” Despite the incorporation of the February 7 circular into the Management Manual in October 1967, the Housing Authority contends that on its face the circular purports to be only advisory. The Authority places particular emphasis on the circular’s precatory statement that HUD “believes” that its notification procedure should be followed. In addition to overlooking the significance of the subsequent incorporation of the circular into the Management Manual, the Authority’s argument is based upon a simple misconstruction of the language actually used. The import of that language, which characterizes the new notification procedure as “essential,” becomes apparent when the February 7 circular is contrasted with the one it superseded. The earlier circular, issued on May 31, 1966, stated: “[W]e strongly urge, as a matter of good social policy, that Local Authorities in a private conference inform any tenants who are given . . . [termination] notices of the reasons for this action.” (Emphasis added.) This circular was not incorporated into the Management Manual. That HUD intended the February 7 circular to be mandatory has been confirmed unequivocally in letters written by HUD’s Assistant Secretary for Renewal and Housing Assistance and by its Chief Counsel. As we stated in Bowles v. Seminole Rock Co., 325 U. S. 410, 414 (1945), when construing an administrative regulation, “a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. . . . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thus, when the language and HUD’s treatment of the February 7 circular are contrasted with the language and treatment of the superseded circular, there can be no doubt that the more recent circular was intended to be mandatory, not merely advisory as contended by the Authority. II. Finding that the circular was intended to be mandatory does not, of course, determine the validity of the requirements it imposes. In our opinion remanding this case to the Supreme Court of North Carolina to consider the HUD circular’s applicability, we pointed out that the circular was issued pursuant to HUD’s rule-making power under § 8 of the United States Housing Act of 1937, which authorizes HUD “from time to time [to] make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act.” The Housing Authority argues that this authorization is limited by the Act’s express policy of “vest[ing] in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of . . . [HUD]), with due consideration to accomplishing the objectives of this Act while effecting economies.” But the HUD circular is not inconsistent with this policy. Its minimal effect upon the Authority’s “responsibility in the administration” of McDougald Terrace is aptly attested to by the Authority’s own description of what the circular does not require: “It does not . . . purport to change the terms of the lease provisions used by Housing Authorities, nor does it purport to take away from the Housing Authority its legal ability to evict by complying with the terms of the lease and the pertinent provisions of the State law relating to evictions. It does not deal with what reasons are acceptable to HUD .... Moreover, the Circular clearly does not say that a Housing Authority cannot terminate at the end of any term without cause as is provided in the lease.” The circular imposes only one requirement: that the Authority comply with a very simple notification procedure before evicting its tenants. Given the admittedly insubstantial effect this requirement has upon the basic lease agreement under which the Authority discharges its management responsibilities, the contention that the circular violates the congressional policy of allowing local authorities to retain maximum control over the administration of federally financed housing projects is untenable. The Authority also argues that under the Due Process Clause of the Fifth Amendment HUD is powerless to impose any obligations except those mutually agreed upon in the annual contributions contract. If HUD’s power is not so limited, the Authority argues, HUD would be free to impair its contractual obligations to the Authority through unilateral action. Moreover, in this particular case, the Authority contends that HUD has not only impaired its own contract with the Authority, but it has also impaired the contract between petitioner and the Authority. The obligations of each of these contracts, however, can be impaired only “by a law which renders them invalid, or releases or extinguishes them ... [or by a law] which without destroying [the] contracts derogate [s] from substantial contractual rights.” The HUD circular does neither. The respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. Each provision of that contract is as enforceable now as it was prior to the issuance of the circular. Although the circular supplements the contract in the sense that it imposes upon the Authority an additional obligation not contained in the contract, that obligation is imposed under HUD’s wholly independent rule-making power. Likewise, the lease agreement between the Authority and petitioner remains inviolate. Petitioner must still pay her rent and comply with the other terms of the lease; and, as the Authority itself acknowledges, she is still subject to eviction. HUD has merely provided for a particular type of notification that must precede eviction; and “[i]n modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right.” Since the Authority does not argue that the circular is proscribed by any constitutional provision other than the Due Process Clause, the only remaining inquiry is whether it is reasonably related to the purposes of the enabling legislation under which it was promulgated. One of the specific purposes of the federal housing acts is to provide “a decent home and a suitable living environment for every American family” that lacks the financial means of providing such a home without governmental aid. A procedure requiring housing authorities to explain why they are evicting a tenant who is apparently among those people in need of such assistance certainly furthers this goal. We therefore cannot hold that the circular’s requirements bear no reasonable relationship to the purposes for which HUD’s rule-making power was authorized. III. The Housing Authority also urges that petitioner’s eviction should be upheld on the theory relied upon by the Supreme Court of North Carolina: the circular does not apply to eviction proceedings commenced prior to its issuance. The general rule, however, is that an appellate court must apply the law in effect at the time it renders its decision. Since the law we are concerned with in this case is embodied in a federal administrative regulation, the applicability of this general rule is necessarily governed by federal law. Chief Justice Marshall explained the rule over 150 years ago as follows: “[I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” This same reasoning has been applied where the change was constitutional, statutory, or judicial. Surely it applies with equal force where the change is made by an administrative agency acting pursuant to legislative authorization. Exceptions have been made to prevent manifest injustice, but this is not such a case. To the contrary, the general rule is particularly applicable here. The Housing Authority concedes that its power to evict is limited at least to the extent that it may not evict a tenant for engaging in constitutionally protected activity; but a tenant would have considerable difficulty effectively defending against such an admittedly illegal eviction if the Authority were under no obligation to disclose its reasons. On the other hand, requiring the Authority to apply the circular before evicting petitioner not only does not infringe upon any of its rights, but also does not even constitute an imposition. The Authority admitted during oral argument that it has already begun complying with the circular. It refuses to apply it to petitioner simply because it decided to evict her before the circular was issued. Since petitioner has not yet vacated, we fail to see the significance of this distinction. We conclude, therefore, that the circular should be applied to all tenants still residing in McDougald Terrace, including petitioner, not only because it is designed to insure a fairer eviction procedure in general, but also because the prescribed notification is essential to remove a serious impediment to the successful protection of constitutional rights. IV. Petitioner argues that in addition to holding the HUD circular applicable to her case, we must also establish guidelines to insure that she is provided with not only the reasons for her eviction but also a hearing that comports with the requirements of due process. We do not sit, however, “to decide abstract, hypothetical or contingent questions ... or to decide any constitutional question in advance of the necessity for its decision . . . .” The Authority may be able to provide petitioner with reasons that justify eviction under the express terms of the lease. In that event, she may decide to vacate voluntarily without contesting the Authority’s right to have her removed. And if she challenges the reasons offered, the Authority may well decide to afford her the full hearing she insists is essential. Moreover, even if the Authority does not provide such a hearing, we have no reason to believe that once petitioner is told the reasons for her eviction she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts. Thus, with the case in this posture, a decision on petitioner’s constitutional claims would be premature. Reversed and remanded. “This lease shall be automatically renewed for successive terms of one month each at the rental last entered and acknowledged below .... Provided, there is no change in the income or composition of the family of the tenant and no violation of the terms hereof. In the event of any change in the composition or income of the family of the tenant, rent for the premises shall automatically conform to the rental rates established in the approved current rent schedule which has been adopted by the Management for the operation of this Project ...” “This lease may be terminated by the Tenant by giving to Management notice in writing of such termination 15 days prior to the last day of the term. The Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen (15) days prior to the last day of the term. Provided, however, that this paragraph shall not be construed to prevent the termination of this lease by Management in any other method or for any other cause set forth in this lease.” The Housing Authority construes this provision to authorize termination upon the giving of the required notice even if the tenant has not violated the terms of the lease and his income and family composition have not changed. Petitioner, however, insists that since the Authority is a government agency, it may not constitutionally evict “for no reason at all, or for an unreasonable, arbitrary and capricious reason . . . .” Brief for Petitioner 27. We do not, however, reach that issue in this case. See n. 49, infra. The text of the notice is as follows: “Your Dwelling Lease provides that the Lease may be cancelled upon fifteen (15) days written notice. This is to notify you that your Dwelling Lease will be cancelled effective August 31, 1965, at which time you will be required to vacate the premises you now occupy.” One of those attempts was made on September 1. In an affidavit filed with the Superior Court of Durham County, petitioner alleged that on that day members of the Housing Authority met with a Durham police detective who had been investigating petitioner’s conduct. Although petitioner’s attorney met with Housing Authority representatives on this same day to request a hearing, the attorney was not informed what information had been uncovered by the police investigation or whether it had any bearing on petitioner’s eviction. All of the essential facts were stipulated in the Superior Court, including: “that if Mr. C. S. Oldham, the Executive Director of the Housing Authority of the City of Durham, were present and duly sworn and were testifying, he would testify that whatever reason there may have been, if any, for giving notice to Joyce C. Thorpe of the termination of her lease, it was not for the reason that she was elected president of any group organized in McDougald Terrace, and specifically it was not for the reason that she was elected president of any group organized in McDougald Terrace on August 10, 1965 .. . .” 267 N. C. 431, 148 S. E. 2d 290 (1966). 385 U. S. 967. The full text of that circular is as follows: DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Washington, D. C. 20410 Circular 2-7-67 Office of the Assistant Secretary For Renewal and Housing Assistance TO: Local Housing Authorities Assistant Regional Administrators for Housing Assistance HAA Division and Branch Heads FROM: Don Hummel SUBJECT: Terminations of Tenancy in Low-Rent Projects Within the past year increasing dissatisfaction has been expressed with eviction practices in public low-rent housing projects. During that period a number of suits have been filed throughout the United States generally challenging the right of a Local Authority to evict a tenant without advising him of the reasons for such eviction. Since this is a federally assisted program, we believe it is essential that no tenant be given notice to vacate without being told by the Local Authority, in a private conference or other appropriate manner, the reasons for the eviction, and given an opportunity to make such reply or explanation as he may wish. In addition to informing the tenant of the reason (s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing. Such records are to be available for review from time to time by HUD representatives and shall contain the following information: 1. Name of tenant and identification of unit occupied. 2. Date of notice to vacate. 3. Specific reason(s) for notice to vacate. For example, if a tenant is being evicted because of undesirable actions, the record should detail the actions which resulted in the determination that eviction should be instituted. 4. Date and method of notifying tenant with summary of any conferences with tenant, including names of conference participants. 5. Date and description of final action taken. The Circular on the above subject from the PHA Commissioner, dated May 31, 1966, is superseded by this Circular. s/ Don Hummel Assistant Secretary for Renewal and Housing Assistance 386 U. S. 670, 673-674 (1967). 271 N. C. 468, 471, 167 S. E. 2d 147, 150 (1967). 271 N. C., at 470, 157 S. E. 2d, at 149. 390 U. S. 942 (1968). The Supreme Court of North Carolina stayed the execution of its judgment pending our decision. As a result, petitioner has not yet vacated her apartment. Under § 10 (a) of the United States Housing Act of 1937, 50 Stat. 891, as amended, 42 U. S. C. § 1410 (a) (1964 ed., Supp. Ill), HUD is required to enter into an annual contributions contract with the local housing authorities. In that contract, HUD guarantees to provide a certain amount of money over a certain number of years. 50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III). Housing Assistance Administration, HUD, Low-Rent Management Manual. Id., §0 (preface) (April 1962). Ibid. Housing Assistance Administration, HUD, Low-Rent Housing Manual § 100.2, at 2 (Sept. 1963). Ibid. Circular from Commissioner Marie C. McGuire to Local Authorities, Regional Directors, and Central Office Division and Branch Heads, May 31, 1966. “[W]e intended it to be followed. . . . The circular is as binding in its present form as it will be after incorporation in the manual. . . . HUD intends to enforce the circular to the fullest extent of its ability. . . .” Letter from Assistant Secretary Don Hummel to Mr. Charles S. Ralston of the NAACP Legal Defense and Educational Fund, Inc., July 25,1967. HUD’s Chief Counsel stated that his “views are the same as those expressed” by Assistant Secretary Hummel. Letter from Mr. Joseph Burstein to Mr. Charles S. Ralston, Aug. 7, 1967. Accord, Udall v. Tollman, 380 U. S. 1 (1965). See Zemel v. Rusk, 381 U. S. 1 (1965). See Udall v. Tollman, supra. 3 86 U. S. 670, 673, n. 4 (1967). This rule-making power was transferred from the Public Housing Administration to HUD by § 5 (a) of the Department of Housing and Urban Development Act, 79 Stat. 669, 42 U. S. C. § 3534 (a) (1964 ed., Supp. III). 50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III). Such broad rule-making powers have been granted to numerous other federal administrative bodies in substantially the same language. See, e. g., 72 Stat. 743, 49 U. S. C. § 1324 (a) (Civil Aeronautics Board); 49 Stat. 647, as amended, 42 U. S. C. § 1302 (Department of Health, Education, and Welfare); 52 Stat. 830, 15 U. S. C. § 717o (Federal Power Commission). Section 1 of the United States Housing Act of 1937, 50 Stat. 888, as amended by § 501 of the Housing Act of 1959, 73 Stat. 679, 42 U. S. C. § 1401. Brief for Respondent 21, 23. Although the constitutional prohibition of the impairment of contracts, U. S. Const. Art. I, § 10, applies only to the States, we have held that “[v]alid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Lynch v. United States, 292 U. S. 571, 579 (1934). Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 431 (1934). The statute challenged in Lynch v. United States, supra, fell into the first of these two categories. It repealed “all laws granting or pertaining to yearly renewable [War Risk term] insurance . . . .” 292 TJ. S., at 575. A far different case would be presented if HUD were a party to this suit arguing that it could repudiate its obligations under the annual contributions contract because the Authority had failed to apply the circular. Cf. Lynch v. United States, supra. Cf. Home Bldg. & Loan Assn. v. Blaisdell, supra, at 425. Penniman’s Case, 103 U. S. 714, 720 (1881). See El Paso v. Simmons, 379 U. S. 497, at 508 (1965); Home Bldg. & Loan Assn. v. Blaisdell, supra. We have consistently upheld legislation that affects contract rights far more substantially than does the HUD circular. E. g., El Paso v. Simmons, supra, upheld a state statute that placed a time limit on the right to reinstate a claim in previously forfeited public lands; East N. Y. Sav. Bank v. Hahn, 326 U. S. 230 (1945), upheld a New York statute suspending mortgage foreclosures for the 10th year in succession; and Blaisdell upheld a statute that extended mortgagors’ redemption time. There is no reason why the principles that control legislation that affects contractual rights should not also control administrative rule making that affects contractual rights. Cf. Permian Basin Area Rate Cases, 390 U. S. 747, 779-780 (1968), which upheld a Federal Power Commission order limiting the application of “escalation clauses” in contracts for the sale of natural gas; and 24 CFR §§ 1.1-1,12 (1968), which proscribe a wide range of racially discriminatory practices by both governmental and private interests that receive any federal financial assistance whether or not pursuant to a preexisting contract. This regulation was promulgated under § 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d-l, which directs each federal agency that administers federal financial assistance “by way of grant, loan, or contract other than a contract of insurance or guaranty ... to effectuate the provisions of section 601 [which prohibits racial discrimination in the administration of any program receiving federal financial assistance] ... by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” See, e. g., FCC v. Schreiber, 381 U. S. 279, 289-294 (1965); American Trucking Assns., Inc. v. United States, 344 U. S. 298 (1953). Section 2 of the Housing Act of 1949, 63 Stat. 413, 42 U. S. C. § 1441. That section further directs all agencies of the Federal Government “having powers, functions, or duties with respect to housing . . . [to] exercise their powers, functions, and duties under this or any other law, consistently with the national housing policy declared by this Act . . . .” Ibid. “A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law.” Ziffrin, Inc. v. United States, 318 U. S. 73, 78 (1943). Accord, e. g., Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941); United States v. Chambers, 291 U. S. 217 (1934). United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). See, e. g., United States v. Chambers, supra. See, e. g., Carpenter v. Wabash R. Co., 309 U. S. 23 (1940). See, e. g., Vandenbark v. Owens-Illinois Glass Co., supra. See Greene v. United States, 376 U. S. 149 (1964), in which we held that the petitioner’s right to recover lost pay for a wrongful discharge was “vested” as a result of our earlier decision in Greene v. McElroy, 360 U. S. 474 (1959), which we construed to have made a “final” and “favorable” determination, 376 U. S., at 159, that petitioner had been wrongfully deprived of his employment. “We do not contend that, in the case of Housing Authority leases if the purpose of the notice of termination of the lease is to proscribe the exercise of a constitutional right by the tenant the notice would be effective; the notice would be invalid, and the term of the lease and its automatic renewal would not thereby be affected.” Brief for Respondent 11. See generally Thorpe v. Housing Authority of the City of Durham, 386 U. S. 670, 674-681 (1967) (Douglas, J., concurring). Transcript of Argument 28. Despite this admission, counsel for the Authority insisted throughout his oral argument that HUD has no power to require compliance with the circular. See id., at 26-27, 28, 30-32, 48-49. He even expressly suggested that the Authority could depart from its requirements “without violating any kind of Federal law.” Id., at 48. Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945). Cf. Zemel v. Rusk, supra, at 13-20; United States v. Fruehauf, 365 U. S. 146 (1961). Moreover, if the procedure followed by the Authority proves inadequate, HUD may well decide to provide for an appropriate hearing. Cf. 24 CFB, §§1.1-1.12 (1968), which establish a detailed procedure to dispose of complaints of racial discrimination in any federally assisted program. These same considerations lead us to conclude that it would be equally premature for us to reach a decision on petitioner’s contention that it would violate due process for the Authority to evict her arbitrarily. That issue can be more appropriately considered if petitioner is in fact evicted arbitrarily. See Alabama State Federation of Labor v. McAdory, supra.

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?

BOSTON MUTUAL LIFE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 82-1173. United States Court of Appeals, First Circuit. Argued Sept. 13, 1982. Decided Oct. 12, 1982. Henry T. Goldman, Washington, D.C., with whom Richard J. Walsh, and Warner & Stackpole, Boston, Mass., were on brief, for petitioner. Helen L. Morgan, Atty., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Paul J. Spielberg, Deputy Asst. Gen. Counsel, Washington, D.C., were on brief, for respondent. Before DAVIS, CAMPBELL and BREYER, Circuit Judges. Of the Federal Circuit, sitting by designation. BREYER, Circuit Judge. The Boston Mutual Life Insurance Company, the petitioner here, discharged a debit agent named Francis Thone. Boston Mutual claims it did so because Thone made improper use of its system allowing policyholders’ premiums to be paid out of policy dividends and “because of his previous disciplinary record.” The National Labor Relations Board claims that Boston Mutual’s actual motive was Thone’s union activity. An administrative law judge found that Boston Mutual violated National Labor Relations Act § 8(a)(1), 29 U.S.C. § 158(a)(1), in threatening to discharge Thone, and § 8(a)(3), 29 U.S.C. § 158(a)(3), in discharging him. The Board affirmed the ALJ’s finding. We review the Board’s decision to determine whether it is supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We conclude that it is. Boston Mutual maintains thirteen regional or district offices throughout New England. Its headquarters are in Canton, Massachusetts. Thone worked out of the Methuen office, along with debit agents Leland Greenberg, Karen Greenberg, and others. The management employees directly involved in Thone’s dismissal included Eugene DiPirro, Regional Sales Manager; John Topjian, DiPirro’s immediate superior at the home office; and Roy Daniels, Topjian’s immediate supervisor. Boston Mutual hired Thone in 1970. He worked there until his discharge in May 1980, with two important exceptions. In 1974 Boston Mutual discharged Thone because it found a money shortage in his books; it reinstated him in early 1975 “for humanitarian reasons.” It also suspended him for one week in 1977 for insubordination. Thone became office chairman (“steward”) of the Insurance Workers’ International Union in 1975. While he was steward he filed about ten grievances; he filed five of these after June 1979, when DiPirro became regional manager, and some, if not all, of these appear to be based upon his own complaints about DiPirro. Thone testified that, as steward, he would also advise employees of their rights under the collective bargaining agreement, and help them to “better understand their job.” The parties agree that Thone abused the Company’s “dividend premium payment” policy. That policy allowed an agent to apply the policy’s dividends to payment of premiums; it was designed to prevent a policy from lapsing when its holder did not pay on time, but it was to be used only when necessary to keep the policy from lapsing. Thone, misstating the “missed payment” dates, led the company to apply dividends to premium payments even when it was not necessary; by doing so Thone might have earned a little extra commission (about thirty cents), or he may have tried to save himself the bother of reminding policyholders to pay their premiums when due. In any event, his falsifications violated both company rules and his duty to the policyholders. The parties also agree that relations between DiPirro and Thone were strained. In late 1979 and early 1980, there were acrimonious conversations involving the two of them. And, DiPirro, along with Topjian and Daniels, secured Thone’s discharge. Within this broad framework, however, the parties strongly dispute what occurred. The evidence regarding the § 8(a)(1) violation exemplifies the dispute, for there is a direct conflict in the testimony. Thone states that on one occasion DiPirro told him that if he did not withdraw a grievance DiPirro would “get [him] on one thing or another eventually.” Leland Greenberg testified that on another occasion DiPirro told him that he, Greenberg, “should speak to [Thone] and tell [Thone] to knock off the bullshit that had been going on in the office in regard to familiarizing new agents with the procedures.” If Thone did not “knock it off ... he’d be terminated.” DiPirro simply denied making these statements. The ALJ believed Thone and Greenberg; he did not believe DiPirro. If Thone and Greenberg are telling the truth, DiPirro and, hence, Boston Mutual, violated § 8(a)(1), for they coerced Thone in the exercise of his § 7 right to perform his duties as union steward. NLRB v. East Texas Pulp & Paper Co., 346 F.2d 686, 687 (5th Cir.1965). The issue was solely one of credibility. And, in reviewing an agency’s finding of credibility, we must accept the finding unless it exceeds “the bounds of reason.” P.S.C. Resources, Inc. v. NLRB, 576 F.2d 380, 382 (1st Cir.1978). The company here argues for a stricter standard of review on the ground that the ALJ based his credibility findings on reasons set out in the record rather than upon observation of demeanor. In fact, the ALJ bases his findings in part upon demeanor; he states, for example, that Leland Green-berg’s demeanor was “impressive,” and that DiPirro was confused or evasive. Regardless, we have read the record and conclude that the ALJ’s credibility findings were well within the “bounds of reason.” The issue is not close. Once the ALJ’s credibility findings are accepted, the Board’s § 8(a)(3) conclusion is more than adequately supported. For one thing, DiPirro’s statements are strong evidence that protected activity underlay the discharge. In addition, the Board found that Topjian said, with respect to Thone, “we have to get that bastard.” Then, they fired him. The company responds that, regardless, it had sufficient legitimate grounds for dismissing Thone. But, the ALJ found that these grounds were a “pretext”: they would not have led to Thone’s dismissal in the absence of his protected conduct. The ALJ based this conclusion upon DiPirro’s statements, upon DiPirro’s behavior in preparing his case against Thone, upon Topjian’s conversations, and upon the fact that, in the ALJ’s view, Thone’s offenses did not rise to the level that would have led the company to dismiss others. The ALJ’s reasoning is set out in his detailed opinion, and that opinion has adequate record support. We see no need to go further and simply list here the facts and reasoning already set out in the ALJ’s opinion, for what is required in a “substantial evidence” case — at least where the ALJ’s opinion is fairly comprehensive — is a reading by the appellate court of the opinion in light of the record so that there will be an independent determination of whether the ALJ has reached a reasonable conclusion. Detailed reiteration of the facts and reasoning does not seem to be a useful exercise. We shall, however, mention two points. The company emphasizes that Daniels, who ultimately fired Thone, did not know about Thone’s union activity. This fact, it believes, shows that the dismissal must have been motivated by legitimate considerations. We agree that it shows that the grounds given by the company, under company policy, could have constituted a sufficient basis for dismissal; but it does not show that those grounds did lead to dismissal in this instance. To the contrary, the ALJ found that DiPirro and Topjian (for whose actions the company is equally responsible) acted for “bad,” not “good,” reasons. And, Daniels acted in direct response to what they told him. Moreover, we are reluctant to adopt a rule that would permit the company to launder the “bad” motives of certain of its supervisors by forwarding a dispassionate report to a neutral superior. The ALJ found that ordinarily DiPirro dismissed agents on his own authority without bringing Daniels into the matter; hence, the fact that DiPirro and Topjian went to the trouble of involving Daniels suggested to the ALJ that DiPirro and Topjian were trying to create a cover for their “bad” motive. Such a view is not unreasonable. And, it supports the notion that without the “bad” motive, neither Daniels, nor anyone else, would have dismissed Thone. Second, we believe that the ALJ used the proper standard for judging the § 8(a)(3) issue. For one thing, much of what the ALJ and the Board say suggests that they saw the case as a “pretext” case, Le., a case in which there is no mixture of “good” and “bad” motives because the “good” motive does not exist. If that is their view, then the ALJ necessarily made an independent judgment that the General Counsel had borne his overall burden of proving that Thone would not have been dismissed in the absence of the “bad” motive — a conclusion that, as we have said, is adequately supported in the record. Some of the ALJ’s language suggests, however, that he may have analyzed the case in terms of “burdens of proof”, i.e., did the employer satisfy his “burden” of showing a “good motive that was sufficient in itself to cause the discharge.” Nonetheless, if he did so, he applied the standard required by this court’s Wright Line decision. NLRB v. Wright Line, A Div. of Wright Line, Inc., 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Although he decided the case just before that decision was issued, the ALJ noted that, after a prima facie case is established, the burden of proof shifts to the company. But, the ALJ, quoting Wyman-Gordon v. NLRB, 654 F.2d 134 (1st Cir.1981), explicitly noted that the shifting burden “does not impose an overall burden upon the company to prove itself innocent .... Rather, the company must come forward with evidence to the point where no longer does a preponderance of the evidence establish the violation.” 654 F.2d at 142. In other words, the ALJ noted that he must make an independent determination at the close of both cases about whether a preponderance of the evidence still shows the existence of a “bad” motive that was a necessary cause for the dismissal. This was the point of Wright Line. Since the decision is adequately supported in the record, the petition for review is denied and the Board’s order is enforced. APPENDIX § 157. Right of employees as to organization, collective bargaining, etc. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall 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 as authorized in section 158(a)(3) of this title. § 158. Unfair labor practices (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 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 ....

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"?

BLANCO OIL COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Gulf Oil Corporation, Estate of H. L. Hunt et al., Estate of Mrs. James R. Dougherty et al., Intervenors. CHEVRON U.S.A. INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Gulf Oil Corporation, Mokeen Oil Company et al., Estate of Mrs. James R. Dougherty et al., Intervenors. ESTATE OF George H. COATES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Estate of Mrs. James R. Dougherty et al., Intervenor. EXXON CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Gulf Oil Corporation, Estate of Mrs. James R. Dougherty et al., Intervenors. ESTATE OF George H. COATES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Nos. 77-1458, 77-1460, 77-1463, 77-1471 and 77-1730. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 28, 1978. Decided Jan. 9, 1979. George B. Mickum, III, Washington, D. C., with whom Daryl A. Chamblee, Washington, D. C., was on the brief, for petitioner in No. 77 1458. Also presented argument on behalf of all petitioners. Steven A. Taube, A tty., Federal Energy Regulatory Commission, Washington, D. C., with whom Philip R. Telleen, Atty., Federal Energy Regulatory Commission, Washington, D. C., was on the brief, for respondent. John R. Staffier, Washington, D. C., with whom Ben F. Vaughan, III, Austin, Tex., was on the brief, for intervenor, The Estate of Mrs. James R. Dougherty, et al., in Nos. 77 1548, 77 1460, 77 1463 and 77-1471. Justin R. Wolf and Charles H. Shoneman, Washington, D. C., were on the brief for petitioner in No. 77 • 1460. Bernard A. Foster, III, Washington, D. C., was on the brief, for petitioner in Nos. 77 1463 and 77 1730. Martin N. Erck and Paul W. Wright, Houston, Tex., were on the brief, for petitioner in No. 77 1471. Robert W. Henderson, Dallas, Tex., and Richard F. Generelly, Washington, D. C., were on the brief, for intervenor, Estate of H. L. Hunt, et al., in No. 77 1458. Also Michael Kendrick, Jr., Corpus Christi, Tex., entered an appearance for intervenor, Mokeen Oil Company, et al. in No. 77 1460. Also B. James McGraw, A. Randall Friday, Houston, Tex., and Craig W. Hulvey, Washington, D. C., entered appearances for intervenor, Gulf Oil Corp. in Nos. 77-1458, 77 1460 and 77 1471. Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges. Opinion for the Court filed by WILKEY, Circuit Judge. Dissenting Opinion filed by 'LEVEN-THAL, Circuit Judge. WILKEY, Circuit Judge: The controversy in these cases arises out of the issuance by the Federal Power Commission (Commission), pursuant to § 7 of the Natural Gas Act, of “permanent” certificates authorizing independent producers of natural gas to sell gas to pipelines for resale in interstate commerce. Petitioners, who are independent producers, seek review of orders of the Commission requiring them to refund payments received for sales covered by “temporary” certificates which were in excess of the so-called “in-line” prices upon which their later “permanent” certificates were conditioned. Petitioners claim that their refund obligations should be limited rather to amounts in excess of the somewhat higher “just and reasonable” prices which had been determined by the Commission prior to its ordering disbursement of the refunds. Because we believe that the Commission’s departure from the statutory norm of “just and reasonable” prices was without justification, we vacate the orders in question and remand for proceedings consistent with this opinion.- I. BACKGROUND A. History and Statutory Structure An understanding of the controversy in these cases requires some background. The Commission’s authority to regulate sales of natural gas derives entirely from the Natural Gas Act of 1938. Although the provisions of the Act do not expressly extend to independent producers or to well-head sales of gas, the Supreme Court held in 1954 that independent producers are “natural gas companies]” within the meaning of § 2(6) of the Act. Since that time the Commission has tried with some difficulty to find an appropriate way of regulating producer sales. Initially, it sought to determine the “just and reasonable” rate at which § 4 of the Act requires that natural gas be sold by examination of each producer’s cost of service. This approach, although suitable -to other rate-making situations, proved inappropriate to the regulation of producer gas sales for a number of reasons. Eventually, the Commission decided to rely instead on a number of area rate proceedings through which maximum rates would be set for each production area. The Supreme Court approved this method of regulation in the Permian Basin Area Rate Cases. The determination of “just and reasonable” rates within the area rate proceedings still entailed protracted inquiry which invariably consumed years. Consequently the Commission was obliged to rest interim regulation of producer sales on § 7. Section 7(c) of the Act provides that a natural gas company may engage in a sale of natural gas subject to the Commission’s jurisdiction only if it has obtained from the Commission a certificate of public convenience and necessity. “Permanent” certificates are issued only after hearing with notice to interested parties, although the Commission is authorized in cases of emergency to issue temporary certificates without notice or hearing. Section 7(e) provides that permanent certificates shall be granted if, and only if, the Commission finds that the proposed sale “is or will be required by the present or future public convenience and necessity.” That section further provides that the Commission may attach to permanent certificates “such reasonable terms and conditions as the public convenience and necessity may require.” In the early, years of regulating producer sales, the Commission construed its authority under § 7 quite narrowly and the field price of natural gas rose rapidly. The Supreme Court determined, however, in Atlantic Refining Co. v. Public Service Commission (CATCO), that the Commission’s loose practice under § 7 afforded too little substantive review of initial prices. In light of the fact that the just and reasonable rates determined under § 5 became effective only prospectively, consumers were left unprotected from excessive charges pending completion of the area rate proceedings. The Court said: “[T]he inordinate delay presently existing in the processing of § 5 proceedings requires a most careful scrutiny and responsible reaction to initial price proposals of producers under § 7.... The fact that prices have leaped from one plateau to the higher levels of another. [makes] price a consideration of prime importance.... The Congress, in § 7(e), has authorized the Commission to condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant’s existing rates by reason of ‘favored nation’ clauses or otherwise, the Commission in the exercise of its discretion might attach such conditions as it believes necessary.” Following the CATCO decision, the Commission devised a system whereby it would set maximum initial rates at which gas could be sold, pending the determination of just and reasonable rates. These initial prices were intended to be “in line” with current prices for gas in the area of the proposed sale, thus affording a rule of thumb likely to prevent exceptional rises in price. Where an in-line price existed, permanent certificates were conditioned pursuant to § 7(e) to provide that the producer could not initially sell gas at a higher price. Some certificates were conditioned further to limit the rate increases which a producer might otherwise file under § 4. The Supreme Court generally approved the method of in-line pricing in United Gas Improvement Co. v. Callery Properties, Inc. There is a further variation of the rate-making process, material here, occasioned by the delay attending the determination of the in-line prices themselves. In order to permit delivery of gas preceding the determination of in-line prices, the Commission issued temporary certificates pursuant to § 7(c) of the Act. These certificates, like the permanent certificates, provided that gas not be sold at prices above certain prescribed levels. The initial rates contained in temporary certificates were governed by the Commission’s 1960 guidelines and were ordinarily somewhat higher than the in-line rates subsequently established. Once the in-line prices were set, the temporary certificates were replaced with permanent certificates conditioned upon the inline rates. By their nature, neither the temporarily certificated prices nor the in-line prices contained in permanent certificates were likely to closely approximate the just and reasonable prices mandated by §§ 4 and 5. Consequently, to the extent that delay in setting the just and reasonable price was unavoidable, it became important whether producers might be required to refund payments subsequently found to have been excessive. The Commission’s authority in this regard is largely constrained by the settled principle that the Commission has no reparations power. Although § 4(e) of the Act does permit the Commission to require refund of such portions of rate increases which it determines after hearing to have been unjust, the Supreme Court held in FPC v. Sunray DX Oil Co., “that an initial price which is authorized in a final, unconditioned permanent certificate is a lower limit below which a refund cannot be ordered under § 4(e).” Thus an in-line price contained in such a permanent certificate constitutes a refund floor for sales covered by the certificate. The same is not true, however, of an initial price contained in a temporary certificate, which is issued on the producer’s own representations. In Sunray DX, the Court held that it was a permissible exercise of the Commission’s power to condition permanent certificates under § 7(e) for it to require producers to refund amounts collected under temporary certificates in excess of the finally determined in-line prices. It is precisely this condition on petitioners’ certificates whose continued relevance is here attacked. B. The Origin and Course of the Litigation Petitioners each were issued at times between 1960 and 1962 “unconditioned” temporary certificates authorizing sales of natural gas within Texas Railroad District Nos. 2, 3 or 4. The temporary certificates prescribed initial rates which were governed by the Commission’s 1960 guidelines. Thereafter, in a series of decisions in 1964 and 1965 the Commission determined the in-line rate for each of the sales in question and issued permanent certificates at those rates. In its opinions setting in-line prices the Commission deferred the question whether refunds should be ordered as a condition of the permanent certificates. In opinions in 1966 and 1968, the Commission decided that refunds would in fact be ordered of all amounts collected under temporary certificates in excess of the in-line price, although it declined at that time to order disbursement of the refunds. Later in 1968 the Supreme Court in Sun-ray DX approved the in-line rates applicable to several of the producers who are parties to this controversy and sustained the one order before it requiring producers to measure refunds on temporarily-certificated sales by the in-line price. Following the decision in Sunray DX, the Commission extended its order to retain refundable payments to all producers having refund obligations arising from the in-line pricing orders, still declining to order disbursement. Then, by orders of 28 November 1968, the Commission directed implementation of the in-line pricing orders and refund orders, but continued its order that refundable monies be retained. Nearly three years later, on 6 May 1971, the Commission issued Opinion No. 595, establishing just and reasonable ceiling prices for the Texas Gulf Coast Area. The opinion provided, inter alia, that the just and reasonable rates would be applied retroactively to calculate refund liabilities for producers holding permanent certificates subject to § 4(e) refund proceedings and producers who had operated throughout with temporary certificates (for whom no in-line prices ever were fixed). Upon rehearing of Opinion No. 595, petitioners (holders first of temporary, then permanent certificates) requested that their refund liabilities as well be determined by reference to the just and reasonable price. The Commission rejected petitioners’ argument that it was inequitable to require refunds down to the lower, in-line price, believing that that argument would require it in every case to postpone refunds until the just and reasonable prices were fixed. The Commission stated that its previous orders had finally determined petitioners’ substantive refund liability, “reserving only the administrative determination as to distribution” of the refundable amounts. It would not, therefore, alter a final determination of liability on the basis of its subsequent order. This court reviewed the Commission’s decision in Opinion No. 595 and on rehearing in No. 595-A. We separated for review and disapproved the Commission’s refusal to consider petitioners’ contention that their refund liability ought to be measured by the just and reasonable price. We held that petitioners were entitled to have the merits of their argument considered, the Commission apparently having believed incorrectly that it was without jurisdiction to do so. We observed that although the principle of finality in administrative law is important, it was enough uncertain whether the controversy previously had been suitable for judicial review — the principal indicium of finality — for us to conclude that the matter was still reviewable. We remanded in order that the Commission would consider whether “administrative considerations, or other reasons, will justify the. distinction between [petitioners] and the producers receiving the benefits of the ‘just and reasonable’ rates.” After our decision in Blanco I, two producers who are petitioners here, filed a motion restating their request that the Commission refigure the refund liabilities arising out of the in-line pricing orders. The Commission responded with an order of 3 September 1976 in which it found “no administrative considerations or other reasons that would justify the Commission in drawing a distinction between [petitioners] and the producers receiving the benefit of the just and reasonable rates.” The Commission concluded that in-line prices were merely “designed to fill a gap until just and reasonable rates were determined.” Consequently, the Commission ordered that all refunds arising from the in-line pricing orders be determined using the just and reasonable prices in Opinion No. 595. Additionally, for the first time, the Commission ordered disbursement of the refunds. In light of the Commission’s order of 3 September, certain other producers for whom the just and reasonable price was below the in-line price requested a rehearing. They argued that use of the Opinion No. 595 prices as a refund floor would increase their refund liabilities in plain contradiction of Sunray DX. On 3 March 1977, the Commission issued an order on rehearing in which it reversed its decision of 3 September. It stated that in light of the arguments raised in the petition for rehearing and the Supreme Court’s decision in Sunray DX, the in-line rates were, as originally held, the appropriate lower bound for figuring refund liability. The Commission felt constrained to employ the in-line prices for all producers covered by the in-line pricing orders, thinking it not “equitable to allow producers to take their choice between the just and reasonable rates and the in-line price depending on which method is to their financial advantage.” Finally, the Commission disagreed that its order of 3 March was discriminatory insofar as it permitted some producers, who were not subject to the in-line pricing orders, to use the just and reasonable prices as a refund Door. The Commission was of the opinion that inasmuch as Sunray DX permitted it to order refunds based on the in-line price, the fact that it had postponed fixing refund liability in other cases until the just and reasonable prices had been set did not make it discriminatory to continue to measure petitioners’ liabilities by the in-line prices. Petitioners sought rehearing and thereby reinstatement of the 3 September order, arguing that producers claiming an initial price refund floor under Sunray DX could be satisfied simply by permitting them to use the higher in-line price as a floor. In an order of 28 April 1977 the Commission denied a rehearing, reciting its rationales of 3 March. Thereafter, the Commission granted various stays delaying the flow-through of refunds pending judicial review. This suit followed. II. ANALYSIS A. The Presumption of “Just and Reasonable” Prices The question raised for review is whether the Commission, having now established just and reasonable prices, may continue to measure petitioners’ refund liabilities for sales under unconditioned temporary certificates against the in-line prices which conditioned their permanent certificates. This is apparently a question of first impression. We beg^in with the plain language of the Natural Gas Act, § 4 of which provides, in part: All rates and charges made, and all rules and regulations affecting or pertaining to such rates or charges, shall be just and reasonable, and any such rate or charge that is not just and reasonable is hereby declared to be unlawful. We think it a fair inference from this language, and from its judicial construction, that “just and reasonable” prices are statutorily preferred and that prices may lawfully vary from that standard only with substantial reason. The courts have, of course, approved variances from just and reasonable prices when occasioned by the practical necessity of permitting gas to flow at some price. But in each case, the extent of the excusable variance precisely fit its rationale. Thus, the issuance of permanent certificates containing the somewhat arbitrary in-line prices has been held permissible only so long as there were no just and reasonable rates fixed at the time. Once just and reasonable rates have been determined, they are ordinarily to be taken as the initial prices at which subsequent sales are certificated. We said in this regard in our Rayne Field decision: It is evident, however, that use of the in-line price as the yardstick for the initial-price determination on certification cannot be justified in situations where a just and reasonable area rate for gas of the vintage in question has already been established. The goal of gas-pricing to which the Act emphatically speaks is the just and reasonable rate, for which the in-line price is not a reliable substitute. Rather, as we have explained, adoption of the in-line price as the initial price is merely an interim measure designed to hold the line until the just and reasonable rate for the gas can be ascertained. If that rate, by reason of a past determination, is already available, its use as the initial price for future gas sales follows logically and, we think, legally as a normal concomitant of certification... [Ojnly the presence of an overriding consideration promoting an identifiable legislative purpose can justify administrative displacement of the just and reasonable rate through approval of another rate for gas to which the Act applies. The need for prompt setting of an initial price in a Section 7 certification proceeding becomes such a consideration where there is no just and reasonable rate as yet. But where, on the other hand, the just and reasonable rate has been established when the Commission comes to fix an initial price for gas, there is simply no need- to resort to any other rate. Reliance on in-line prices for measuring refund liabilities again has been an admittedly second-best solution. Although the Supreme Court has approved use of the in-line price as a refund floor where no just and reasonable price has been fixed, it observed that logically producers should be liable for refunds down to the just and reasonable level. The Court said in Sunray DX: This Court stated in CATCO that the Natural Gas Act “was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges.” 360 U.S. at 388, [76 S.Ct. 1246]. Since the Natural Gas Act nowhere refers to “in-line” prices, the “excessive rates” referred to must be rates in excess of the just and reasonable rates at which § 4(a) commands that all gas must move. Logically, this would seem to imply that to assure the “complete, permanent and effective bond of protection” referred to, any rate permitted to be charged during the interim period before a just and reasonable rate can be determined must be accompanied by a condition rendering the producer liable for refunds down to the just and reasonable rate, should that rate prove lower than the initial rate specified in the certificate. In view of the fact that an initial price and a refund floor might be used to achieve distinct regulatory goals, it seems regrettable that the Commission and courts apparently have never entertained the possibility of separating these two aspects of an “in-line price” in particular cases. Use of the in-line rate as a refund floor was nevertheless upheld in light of the need to speed refunds to consumers “at the earliest possible moment consistent with due process.” But it is quite clear that after just and reasonable prices have been established they ordinarily become the relevant floor for figuring refunds. Thus it is settled that refunds arising under either § 4(e) or § 7(c) which were not previously determined will have as a floor the just and reasonable price, if one exists, except insofar as a higher initial price may operate as an independent floor under Sunray DX. B. The Commission’s Justification for Deviating from Just and Reasonable Prices in this Case The Commission does not disagree, nor could it, with the principle that in-line prices are a tentative and second-best accommodation. It nevertheless maintains that the instant controversy is ungoverned by the general principle. Its reasoning is straightforward and, we think, ultimately wrong: 1. At the time of its decisions in 1966 and 1968, the Commission had authority under Sunray DX to require, petitioners via a § 7(c) condition to refund amounts collected under temporary certificates in excess of the inline rates, and 2. The decisions of 1966 and 1968 have become final and would not be reopened absent some extraordinary equitable reasons which have not been shown, but 3. If the matter were reopened, the order of 3 March was correct anyway, because 4. It was unfair to permit producers subject to in-line pricing orders to “choose” bet ween the in-line price and the just and reasonable, price, and 5. There was no undue discrimination in denying petitioners the benefit of the just and reasonable price allowed to others, since petitioners had been compensated with the certainty that their liability would at least be bounded by the initial, in-line price. Statement (1) is correct, undisputed and without obvious relevance to the instant dispute. Statement (2) was rejected by this court in Blanco 1 but will be reconsidered insofar as it is relevant to a somewhat more pragmatic version of the finality argument. The only substantive rationales advanced are contained in Statements (3) through (5). First, it is plain that the principal substantive rationale for deviating from just and reasonable prices — that no such prices have been ascertained — As foreclosed. Although unavailable in 1966 and 1968, by the time disbursement of the refunds was first ordered in 1976, the just and reasonable price had existed for at least eight years. Thus the only arguments available are those which purport to justify locking in an otherwise disfavored price. 1. The P’inalily Argument It was only conclusorily argued, although we think it a more plausible ground than others advanced, that the orders of 1966 and 1968 be left undisturbed in the interest of finality. Of course, in Blanco I we rejected the Commission’s finding that it was barred by principles of finality from considering the merits of petitioners’ claims. We said there that inasmuch as petitioners’ suit was unripe until just and reasonable ¡mices had been fixed, it was timely when brought thereafter. There again being no question raised whether the Commission has the ¡lower to modify its prior orders, we inquire whether there are reasons of policy for it not doing so. Finality ordinarily assures regularity of administrative process and avoids unfairness to parties who have relied on a final decision. The fairness problem is not present here in light of the improbability of reliance by consumers on a retroactive refund order. Although there are imaginable circumstances in which the adjustment of a refund liability would threaten serious inconsistency and disruption to a regulatory scheme, we do not think they are present here either. This is not a case in which a producer seeks a retroactive adjustment to a liability already discharged. Petitioners do not suggest, nor could they, that it would not have been permissible to order refunds based on the in-line prices, had the Commission finally disposed of the matter prior to determining the just and reasonable prices. Nor is this a case in which the flow-through of refunds had begun or was imminent at the time adjustment was sought. In such cases principles of finality and repose or simply of administrative regularity might insist that a final refund order be unaffected by a subsequent price • determination. However, those arguments simply are unavailable to the Commission on the facts of this case. Here the Commission, for whatever reasons, postponed the disbursement of refunds by all affected producers until eight years after its Opinion No. 595. In these circumstances, no interests associated with notions of finality would be advanced by preserving an otherwise objectionable decision. 2. The Impermissible “Choice” Argument In its order of 3 March, the Commission justified still using the in-line rates as petitioners’ refund floor in part as follows: On further consideration of this situation in our opinion the basis of the refunds should be the in-line rates. It is true that the in-line rates were an interim device pending determination of the just and reasonable rates, but the parties had every right to count on them as a refund floor. Any other result under these conditions would be contrary to Sunray DX. Even where the just and reasonable rate is higher we must properly require the use of the in-line rate because we do not believe it equitable to allow producers to take their choice between the just and reasonable rate and the in-line price depending on which method is to their financial advantage. The putative choice which the Commission finds objectionable is the natural consequence of having two independent refund floors. The ordinary and statutorily favored floor is the just and reasonable price. The other is the final initial price factors afforded by Sunray DX. The apparent “have it both ways” aspect of having two price floors may in fact be regrettable. But it is so only insofar as it permits variation from the just and reasonable price. This was the plain opinion of the Supreme Court in Sunray DX itself. In a passage referred to earlier the Court said: [i]n view of the fact that an initial price and a refund floor might be used to achieve distinct regulatory goals. it seems regrettable that the Commission and courts apparently have never entertained the possibility of separating these two aspects of an “in-line price” in particular cases. Had the Commission bifurcated the price ceiling and refund floor functions of the in-line price as suggested in Sunray DX, the apparent unfairness of a double floor might have been eliminated. Conceivably the Commission might have selected a refund floor more likely to approximate the just and reasonable price. Alternatively, it might have imposed a contingent liability to refund down to a later fixed just and reasonable price. Thus the “choice” which exists arose from the failure of imagination on' the part of the Commission in setting the in-line price. Moreover, the Commission’s solution to the “choice” is fairly extraordinary. By insisting that all producers who have used the in-line prices make refunds on this basis, the Commission maximizes the variance away from just and reasonable prices and leaves undisturbed the prices which are most objectionable on statutory grounds— the excessive prices allegedly insulated by Sunray DX. Concededly, our holding does contemplate two independent refund floors. But we simply have been told of no reason why petitioners should be compelled to accept less than the ascertained just and reasonable price. The other floor exists, as we have said, for want of more imaginative use of § 7(e) conditions. 3. The “Not Undue” Discrimination Argument In its brief the Commission argued that its rate orders did not result in “undue discrimination.” It correctly supposed that one relevant group to which tó compare petitioners were those producers under temporary certificates throughout the period in question. The Commission said: In these cases Petitioners received in-line permanent certificates and refund limits while those who never received the in-line permanent certificates remained under temporary certificates subject to unlimited refunds. At the time Petitioners received their in-line rates, it was possible that these rates would prove to be higher than the later determined [just and reasonable] area rates... Thus, Petitioners had the benefit of a rate which might have proven to be higher than the area ceiling rate but yet served as a refund floor below which the Commission could not order refunds. Petitioners, therefore, were able to conduct their affairs with far more certainty than the producer with only a temporary certificate awaiting the determination of the ceiling rate and the possibility of considerable refunds with no refund floor. . Therefore, the in-line permanent certificate was a valuable asset when awarded. The fact that that value was diminished somewhat when the area ceiling rates proved to be higher than the in-line rates does not alter the prior value the in-line permanent certificates offered. If the in-line rate had been higher than area ceiling rates, Petitioners surely would not now be before this Court. Even were this ingenious argument more persuasive, we would be inclined to resist it, appearing as it does for the first time on judicial review. However, to avoid needlessly prolonging this marathon proceeding, we consider and reject the novel argument. Essentially the Commission portrays its rate orders as the rational and fair outcome of a rough sort of insurance scheme. Thus petitioners (being risk averse, one supposes), were insured against possibly “unlimited” refund liability through the in-line price refund floor of Sunray DX. Having exchanged an uncertain liability for a fixed liability, petitioners should not be heard to complain (the Com-. mission supposes), that they would have lost less the other way. Although we could imagine cases in which the insurance analogy would be appealing, on the facts of this case it would appear largely fictional. First, petitioners appear to have had little or no choice whether to use in-line prices or to await the setting of just and reasonable prices. The termination of the in-line pricing proceedings was an agency decision made for administrative reasons. Absent some such choice, simply imposing a losing gamble on some producers and not on others would appear arbitrary per se. Second, the value of the certainty allegedly obtained by petitioners is entirely conjectural, and probably inevitably so. In any case, it is likely that the Commission overstates the risk from which petitioners were relieved. Nothing in the record suggests that the expected just and reasonable price would tend to be lower than the in-line price. In fact, were the Commission’s insurance analogy apt, just the contrary would probably be true. Third, no one knew that if the just and reasonable prices were lower than the inline prices, the in-line prices would provide a floor for refunds — until the Supreme Court decided Sunray DX. Summarizing, we decline to excuse a configuration of prices which are prima facie discriminatory on the basis of a speculative theory without substantial record support. III. CONCLUSION The Natural Gas Act mandates that gas be sold at prices which are just and reasonable. Certain nonconformance with this standard is inescapable inasmuch as the Commission has no reparations power and it is sometimes necessary to permit final transactions prior to setting just and reasonable prices. But the variance from just and reasonable prices occasioned by the Commission’s actions in this case is plainly gratuitous. We have been given no administrative excuse for the rather Byzantine configuration of rates obtaining here, nor does any occur to us. We presume that on remand the Commission will necessarily re-figure petitioners’ refund liability based on the just and reasonable prices established in Opinion No. 595. Remanded for proceedings consistent with this opinion. . Pursuant to the provisions of the Department of Energy Organization Act, Pub.L.No. 95 91, 91 Stat. 567, 42 U.S.C.A. §§ 7101 7352 (1977), and Executive Order No. 12009, 43 Fed.Reg. 46267 (13 Sept. 1977), the Federal Power Commission ceased to exist on 30 September 1977, and most of its functions were transferred to the Federal Energy Regulatory Commission which, along with the Department of Energy, was activated on 1 October 1977. Section 705 of the Organization Act, 42 U.S.C.A. § 7295 (1977), provides for the substitution of the new Commission as a party in cases such as this. Throughout this opinion, the “Commission” in the context of actions taken prior to 1 October 1977 refers to the Federal Power Commission, and when used otherwise, refers to the Federal Energy Regulatory Commission. . Natural Gas Act, § 7, 15 U.S.C. § 717f (1976). . Petitioners in these cases are Blanco Oil Company, Exxon Corporation, Chevron USA, Inc., and Estate of George H. Coates. . The orders being reviewed herein arose in Area Rate Proceeding (Texas Gulf Coast Area), Docket No. AR 64-2, et al. They are (1) Order Determining Computation of Refunds on Court Remand and Ordering Refunds (issued 3 Sept. 1976), reprinted at Joint Appendix (J.A.) 76; (2) Order Granting intervention and Rehearing, and Clarifying (issued 3 March 1977), reprinted at J.A. 132; and (3) Order Denying Rehearing (issued 28 April 1977), reprinted at J.A. 170. . Natural Gas Act of 1938, 21 June 1938, c. 556, 52 Stat. 821-33, as amended, 15 U.S.C. §§ 717-717w (1976). . Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). . 15 U.S.C. § 717a(6) (1976). . 15 U.S.C. § 717c(a) (1976). . See Permian Basin Area Rate Cases, 390 U.S. 747, 756, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). See generally, Phillips Petroleum Co., 24 F.P.C. 537, 542 (1960). . See J. Bonbright, Principles of Public Utility Rates 67 (1961). . See Permian Basin Area Rate Cases, 390 U.S. at 756-757, 88 S.Ct. 1344. . Id. at 767-777, 88 S.Ct. 1344. . 15 U.S.C. § 717f(c) (1976). . 15 U.S.C. § 717f(e) (1976). . 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). . 15 U.S.C. § 717d (1976). Section 5 authorizes the Commission sua sponte or otherwise, to conduct an investigation into the reasonableness of existing rates and charges and to fix them at a just and reasonable level. Under § 4 a producer may, unless otherwise bound by a contract, file a new rate schedule with the Commission. This rate becomes effective upon filing, subject to the five month suspension provision of § 4 and the posting of bond where required. Section 4 thus permits producers to increase prices where justified and further assures consumers refunds of charges later found to have been excessive. . 360 U.S. at 391, 79 S.Ct. at 1255. . See FPC v. Sunray DX Oil Co., 391 U.S. 9, 18-19, 88 S.Ct. 1526, 20 L.Ed.2d 388 (1968). . 15 U.S.C. § 717c (1976); see note 16 supra. . 382 U.S. 223, 226 229, 86 S.Ct. 360, 15 L.Ed.2d 284 (1965). . Statement of General Policy No. 61-1, 24 F.P.C. 818 (1960). . See Brief for FERC at 4-5. . See FPC v. Sunray DX Oil Co., 391 U.S. 9, 25, 88 S.Ct. 1526,

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

FISH et al. v. WISE et al. No. 411. Circuit Court of Appeals, Tenth Circuit. Sept. 25, 1931. Robert L. Owen, of Washington, D. C. (Prank J. Boudinot, of Washington, D. C., D. H. Linebaugh, of Muskogee, Okl., and Henry G. Thomas, of Washington, D. C., on the brief), for appellants. Lloyd G. Owen, of Tulsa, Okl., and John T. Gibson, of Muskogee, Okl. (James A. Yeasey, of Tulsa, Okl., Ployd C. Dooley, of Okemah, Okl., C. P. Gotwals, W. A. Killey, and James D. Gibson, all of Muskogee, Okl., P. M. Goodwin, of Washington, D. C., H. G. House, and R. S. Cate, both of Muskogee, Okl., on the brief), for appellees. Before LEWIS and COTTERAL, Circuit Judges, and POLLOCK, District Judge. LEWIS, Circuit Judge. This bill purports to be a class suit. It was exhibited by several enrolled Seminole Indians and heirs of deceased enrolled Seminóles in "behalf of all “ ‘The Seminóles,’ comprising a group of citizens of the State of Oklahoma, and of the United States, composed of 3,119 persons on the finally approved Seminole rolls, or their heirs, * * *, and whether they be of Indian blood or not, * * It is alleged in the introductory clause that the Seminóles “own exclusively all of the coal, mineral, oil and gas in Seminole County in fee simple by an unbroken chain of title, * * The bill is directed against Walter Wise, Seminole allot-tee, and all other Seminole allottees who claim royalties from or the ownership of oil, gas and other mineral found in the lands allotted to them, also against their grantdes or lessees and against a named oil company and a pipe line company that produce or transport oil and gas from leased allotments. Some seventeen enrolled Seminole Indians and others who are heirs of enrolled Seminóles holding allotments as original allottees or as heirs, from which oil and gas is being produced •and from which they receive royalties, intervened as defendants. On defendants’ motions the bill was dismissed with prejudice as being without equity, and the plaintiffs appealed. The suit in practical purpose is in behalf of those who have non-mineral Seminole allotments against those whose allotments contain mineral to compel the latter to share per capita with the former all mineral produced. “The Seminóles” (plaintiffs) ask in the bill in its stating -part to be subrogated as lessors in all existing mineral leases made by Seminole allottees, their heirs or grantees, and to be recognized as owners of the coal, mineral, oil, and gas. It is alleged that “The Seminóles” do “not own this property by communal title but by ownership in common as an undivided whole by a grant from themselves as the then Seminole Tribe to themselves who were living on December 31, 1899, as individuals as grantees as of that date, and their heirs, * * *; that the second Seminole agreement was an action taken by the owners of the property as of December 31, 1899, at which time and on which day the Seminole tribe still owned the title to the mineral, oil, and gas, and as owners transferred that ownership of the mineral, oil, and gas as an undistributed whole to themselves by the simple process of declaring that the final rolls should be as of that particular day upon which the distribution of the allotted lands, the funds and the other property belonging to the Seminole Indians should be made. The right, therefore, to the undivided mineral, oil, and gas and to its distribution vested as a property right in the Seminóles as of that day and to their heirs.” The Seminole Agreement was approved by Act of Congress, July 1, 1898 (30 Stat. 567). The Supplemental Agreement with the Seminoles was approved by Congress, June 2, 1900 (31 Stat. 250). It is this supplemental agreement on which the bill relies as passing the communal title of the tribe in the mineral to the enrolled Seminóles as tenants in common; and perforce of that contention it must be established that it was not the intention of the tribal government in its agreement of July 1,1898, that the fee title in allotments should pass from the tribe to the allottees. We held in Moore v. Carter Oil Co., 43 F.(2d) 322, it was intended by the agreement that allottees should get full titles to their allotments, and that the agreement as executed, per its direction, vested in them titles in fee simple. Counsel are critical of our opinion in that case and say we went further on the subject of title than the issues and facts required. So, we put it aside for the moment and notice the principal points on which appellants contend that Seminole allottees acquired title only to surface rights in their allotments, and that the mineral estate was held by the tribe as communal property until the approval of the Supplemental Agreement on June 2, 1900. First, they say that when the Seminole Agreement was entered into and approved by Congress, as also the agreements with the other civilized tribes, it was then the settled policy of the United States to reserve the mineral estate, when mineral lands were allotted, to the tribe, and they, cite the Osage Allotment Act of Juno 28, 1906 (34 Stat. 539). The act relied on was passed eight years after the date it is claimed the policy existed. Indeed the General Allotment Act of February 8, 1887 (24 Stat. 388), is evidence to the contrary. That act provided that allottees to whom allotments might be made under it should have titles in fee simple. Moreover, the act which initiated the procedure for agreements with the five civilized tribes (27 Stat. 645, 616, § 16) did not contemplate, if tribal lands should be divided between the members thereof, that any tribal interest or estate should remain in those lands. There is no suggestion of a reservation. The act contemplated two methods of extinguishing tribal titles, — by a cession of the lands to the United States for a consideration or their division in severalty among the members of the tribe. No thought of reserving the mineral estate to the tribe as such is suggested or intimated in either event. It was intended by Congress that those agreements would extinguish the tribal title, and necessarily the whole of it. Second, in further support of the foregoing contention much reliance seems to be placed on a written proposition made to the Seminóles by the Dawes Commission on July 26, 1894. This proposition is set forth in the hill. The Commission, after refeiring to the act under which it was appointed, said to the Seminóles and so reported to Congress: We “propose to treat with the Seminole Nation on the general lines indicated below, to be modified as may be deemed wise by both parties after discussion and conference.” “First. To divide all lands now owned by the Seminole Nation, not including town sites, among all citizens according to the treaties now in force, reserving town sites, coal and mineral, for sale under special agreement. * * * “Third. Town sitos, and eoal and mineral discovered before allotment, to be the subjects of special agreements between the parties— * * * “Fifth. All invested funds, not devoted to school purposes, and all moneys derived from the sale of town sites, coal and minerals, as well as all moneys found due from the United States, to be divided per capita among the citizens according to their respective rights under the treaties and agreements. • * *» Identical written propositions were presented to the other four civilized tribes. It was a matter of common knowledge, we think, at that time that large mineral deposits, especially coal, had been opened and were being mined and sold in the territory of some of the tribes, but none had been found and developed in the territory of the Seminole Nation. Both counsel say that oil and gas was not discovered there in commercial quantities until more than twenty-five years thereafter. We think it too plain for argument that the proposition submitted was not to reserve coal and mineral under all tribal lands, but only to reserve from allotment lands on which coal and mineral had been or might be discovered before the allotments were to be made. Known mineral lands were not to be allotted between the members of the tribe. Those lands were to be sold, as the proposition expressly stated, and the moneys therefrom divided per capita. The first Choetaw-Chiekasaw Agreement, ratified three days prior to the ratification of the Seminole Agreement, is also cited to support the claimed policy of the United States. That agreement expressly provided that all coal and asphalt in and under allotments should be reserved and excepted from the allotments. Act June 28, 1898, § 29 (30 Stat. 505). However, this was changed by Supplemental Agreement made July 1, 1902 (32 Stat. 641) which, of course, was after the Seminole Agreement, wherein it was provided that the Secretary of the Interior should ascertain, so far as practical, what lands of those tribes were principally valuable because of the deposits of coal and asphalt; that such lands should be segregated and later sold, and the proceeds deposited in the Treasury of the United States to the credit of the tribe; and that “All coal and asphalt deposits, as well as other minerals which may be found in any lands not so segregated and reserved, shall be deemed a part of the land and shall pass to the allottee or other person who may lawfully acquire title to such lands.” 32 Stat. 654. Reference is also made to agreements with the other two tribes. They were both made after the agreement with the Seminóles, and both the Creek and Cherokee Agreements (31 Stat. 861, 32 Stat. 500, 716) made no reservation of minerals under allotments. Each of them clearly indicates that the allottee was to take the fee title. These contentions, singly and collectively and in connection with the Curtis Act (30 Stat. 495) and the claim that the Indians understood that “land” meant only the surface, are relied on in support of the claim that under the Seminole Agreement the mineral in the allotments was not to pass to the allottee. In fact, there are attached to the bill affidavits of a large number of Seminole Indians wherein they say that the written proposition submitted to the Seminóles in 1894 by the Dawes Commission was that they should allot their lands reserving coal and mineral from allotment; that in 1897 that Commission drew up an agreement for the Seminóles to carry out these purposes and it was explained to the Seminóles that the coal, mineral, oil, and gas were not to be allotted by that agreement but reserved to the tribe, and that no allotment should carry any title to the coal, mineral, oil, and gas to the allot-tee, but that the land allotted and for which deeds were promised excluded the mineral; that the Seminóles ratified the agreement with that understanding, and by the second Seminole Agreement they understood that they conveyed the undivided title to the coal, mineral, oil, and gas to their members who were living on December 31, 1899. The bill asks that the plaintiffs be allowed to call witnesses in the trial to establish by proof the facts stated in said affidavits. The bill is voluminous. It states other evidentiary facts. -It reviews and discusses the Goat Case, 224 U. S. 465, 32 S. Ct. 544, 56 L. Ed. 841, the De Graffenried Case, 238 U. S. 284, 35 S. Ct. 764, 59 L. Ed. 1310, and the Moore Case (C. C. A.) 43 F.(2d) 322. The Seminole Agreement and the supplement thereto are in simple words, plain in meaning and legal significance. It has been carried out in accordance with a common understanding of what it meant and was intended to accomplish, and we cannot now, more than thirty years after it was executed, consent that it be overthrown and thwarted in its purpose by testimony from witnesses that they thought it meant something else. U. S. v. Choctaw Nation et al., 179 U. S. 494, 531, 532, 533, 534, 21 S. Ct. 149, 45 L. Ed. 291. We are unable to accept as sound any of appellants’ contentions supra. The five tribes were neighbors, there were intermarriages and changes of residence from the territory of one tribe to that of another — especially so between Creeks and Seminóles — , and their several agreements bespeak a common wish and intention that the members of each should take titles as allot-tees in fee simple. We gave careful consideration to the Seminole Agreement (30 Stat. 567) in Moore v. Carter Oil Co. and reached the conclusion, for the reasons there stated, that Seminole allot-tees acquired full equitable title to their allotments when they were made, and that thereafter when they received deeds for them, which the agreement promised and said they should have, they thus acquired, as the agreement intended they should acquire, legal title in fee to said allotments, free from any claim on the part of the tribe as such or on the part of any other member of said tribe, his heirs •or grantees; and we adhere to that conclusion. We see nothing whatever in the Supplemental Agreement with the Seminóles which says that the tribe as such then claimed any interest whatever or had reserved any interest whatever in Seminole lands after they should be allotted, or that it was then disposing of any interest in said lands reserved to it to the enrolled members thereof as tenants in common. There are only two paragraphs or sections in that supplement, and the sole purpose of the first seems to be the fixing of a day on which Seminole rolls shall be closed for purposes of allotment. It provides that the Commission “shall place on said rolls the names of all children bom to Seminole citizens up to and including the 31st day of December, 1899, and the names of all Seminole citizens then living.” And the second'section seems to have no other purpose than to fix the line of descent of Seminóles who die after that day. There are no words of conveyance, present or future, or about titles of allottees. Those matters are all dealt with in the Seminole Agreement of July 1, 1898. The order of the trial court dismissing the bill is therefore affirmed.

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

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

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

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

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. 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?

Gloria J. ALEXANDER, Appellant, v. UNITED STATES of America, Appellee. Margaret M. WATKINS, Appellant, v. UNITED STATES of America, Appellee. Nos. 18124, 18125. United States Court of Appeals District of Columbia Circuit. Argued March 11, 1964. Decided April 16, 1964. Petition for Rehearing en Banc Denied June 19, 1964. Certiorari Denied Dec. 7, 1964. See 85 S.Ct. 336. Mr. M. Michael Cramer (appointed by the District Court), Washington, D. C., with whom Mr. Thomas Sisk (appointed by this court), Washington, D. C., was on the brief for appellant in No. 18124, argued for both appellants. Miss Ruth E. Hankins (appointed by the District Court), Washington, D. C., was on the brief for appellant in No. 18125. Mr. Anthony A. Lapham, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., and Messrs. Frank Q. Nebe-ker and Daniel Reznéck, Asst. U. S. Attys., were on the brief, for appellee. Before Prettyman, Senior Circuit Judge, and Washington and McGowan, Circuit Judges. PER CURIAM: Appellants (two women) met the complainant (a man) in a bar and had drinks with him. When he left they followed him, seized him, and took a roll of bills from his pocket. A police officer happened to witness the later stages of the affair and arrested them on the spot. They were indicted for robbery and convicted of assault with intent to commit robbery. In defense appellants say they had given the complainant a dollar with which to buy whiskey and were seeking to recover their money. They submitted that version to the jury, but as the verdict indicates, that body declined to accept it. Appellants also present a point under the so-called Jeneks statute. Inquiry was made into the matter at the trial. It was established that the officer had made an original pencil' draft of a report, that the draft had been given to a stenographer at police headquarters who made a typewritten version of it, and that the officer signed it. The typed report was produced at the trial and used to impeach the officer’s testimony as to the events he witnessed. As to the pencil draft the officer said: “ * * * it went in the trash after it was — * * * It. probably went in the trash after the clerk typed it.” All who heard this testimony appear to have taken it at face value as establishing that the notes had been destroyed in the usual course of business. The defense in particular seized upon the fact of the destruction of the notes, and urged upon the court that that fact alone necessitated the striking of the officer’s testimony. It did not suggest to the court, by motion or otherwise, that a hearing be held to inquire into either the fact or the circumstances of the destruction. Appellants now say the trial judge should, upon his own initiative, have held a hearing to determine whether the original pencil draft of the policeman’s report had been destroyed. As the Supreme Court pointed out in Campbell v. United States, the inquiry conducted by the judge upon such a matter is not an adversary proceeding controlled by rules as to burden of proof or persuasion, but is simply a proceeding necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute. The trial judge in the case at bar, having the officer before him and hearing his testimony, was satisfied there was no cause for a hearing. The record indicates that the defense was similarly satisfied. The only objective of a hearing would have been to determine whether the throwing of the pencil notes into the trash had been in bad faith or not in normal course. No suggestion to that effect was made at the time. We cannot say the trial judge committed reversible error in failing to initiate an inquiry which no one who heard the officer’s testimony thought necessary. As to the argument that the destruction of the pencil notes after they had been typed and the typed copy signed made the officer’s testimony inadmissible, Killian is to the contrary. Affirmed. . 71 Stat. 595 (1957), 18 U.S.C. § 3500. . In his interrogation of the officer, defense counsel himself referred to the handwritten statement as “The one in the trash.” . 365 U.S. 85, 95, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). . Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961).

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?

REINHARD v. RAFF. No. 5997. Circuit Court of Appeals, Third Circuit. May 19, 1936. George A. Rupp, of Allentown, Pa., for appellant. O. J. Tallman, of Allentown, Pa. (William Boone Douglass, of Washington, D. C., of counsel), for appellee. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. BUFFINGTON, Circuit Judge. The facts of the case are as follows: The bankrupt advertised for the services of an engineer. The claimant applied for the position. He was employed, but was asked to give bond for his good conduct. This lie was willing to do. Pending the short interval required to supply the bond, he was asked to deposit a certified check for $1,000. This he did. .The money was at once misappropriated by the bankrupt and used to pay wage claimants. It will thus be seen that as the wage claimants were entitled to priority over general creditors, the application of the fruit of the fraud was really a payment in relief of the general creditors, and that the return of the money to the victim of the fraud in no way deprived the creditors of what would otherwise have been theirs. Moreover, to refuse such return to the defrauded man would in effect be to give such creditors twofold relief, namely, wiping out the wage claimants and giving the fruits of the fraud to the general creditors, lelieved of the priority of wage claimants. It will thus be seen the situation here presented measures up to the requirement stated in 34 Cyc. 348, namely: “When the transactions establish a fiduciary relation between the parties, and not the relation of debtor and creditor only, a trust is created, the violation of which constitutes a fraud by which the Trustee or his Receiver cannot profit, and entitling the cestui que trust to prior payment out of the funds in the hands of the Receiver. * * * There must be some showing that the estate has been augmented by the trust fund, or at least that the estate has been so benefited by the misappropriation of the trust fund that the removal of its equivalent from the estate will be without prejudice to creditors.” Holding, therefore, that the equities of this case are with the man defrauded and not with the general creditors and that the fund is identified as paid to the wage claimants, the decree below which ordered payment to the man defrauded is affirmed.

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

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

Orin OLSON, Appellant, v. RED WING SHOE COMPANY, Inc., a Minnesota Corporation, Appellee. No. 71-1399. United States Court of Appeals, Eighth Circuit. March 13, 1972. Russell M. Spence, Robins, Meshbesher, Singer & Spence, Minneapolis, Minn., for appellant. James G. Nye, Jr., Nye, Johnson & Bauer, Minneapolis, Minn., for appellee. Before MATTHES, Chief Judge, and LAY and ROSS, Circuit Judges. PER CURIAM. The plaintiff, Orin Olson, was a block layer for Geo. W. Olson Construction Company, a general contractor, employed by the owner-defendant, Red Wing Shoe Company, Incorporated, to build a warehouse in Red Wing, Minnesota. During the course of construction plaintiff was seriously injured by the collapse of a concrete block wall. Plaintiff sued the owner and the architect of the building. Olson Construction Company could not be sued directly by reason of its exclusive liability under the Minnesota Workmen’s Compensation Act. A special jury verdict was returned finding the wall collapse was due to 100 percent negligence on the part of the general contractor. Thus judgment was rendered in favor of the defendant, Red Wing Shoe Company, Inc. The trial court refused to set aside the verdict and this appeal followed. On appeal the plaintiff urges that the trial court refused to instruct the jury that the defendant, Red Wing Shoe Company, Inc., could be found liable under § 416 of the Restatement (Second) of Torts (1965). Both parties agree that Minnesota law governs the action. The trial judge, the Honorable Philip Neville, in a well reasoned opinion held § 416 of the Restatement not applicable to the facts. Olson v. Kilstofte and Vo-sejpka, Inc., 327 F.Supp. 583 (D.Minn. 1971). We affirm the judgment of the district court for the reasons set forth in its opinion. Judgment affirmed. . Section 416 reads : “One wlio employs an independent contractor to do work which the employer should recognize ns likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take sucli precautions, even though the employer has provided for sucli precautions in the contract or otherwise.”

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

TALLMAN v. LADD et al. (Circuit Court of Appeals, Fourth Circuit. April 14, 1925.) No. 2313. 1. Equity <©=>418, 419 — Entry of decree pro oonfesso held warranted", and court’s refusal to open default or suspend decree not abuse of discretion. ■ Decree pro confesso held properly entered, under rule 29, in suit for accounting and removal of executrix of estate, on defendant’s failure to answer within 5 days after denial of her motion to dismiss, nor was court’s refusal to open the default, or to suspend, alter, or rescind the decree pro' confess.o, an abuse of his discretion, under rules 5 and 17. 2. Executors and administrators <§=>35(19)— Order denying motion to dismiss, heard after entry of decree appointing receiver, held adjudication of duly contested matter, reviewable on appeal from decree. Where, after entry of decree removing executrix and appointing receiver, decree was operied to extent of motion of executrix to dismiss on ground that testator’s daughter took property to exclusion of plaintiffs, held, refusing motion to dismiss was an adjudication of a duly contested matter, properly reviewable on appeal from order removing executrix and appointing receiver. 3. Wills <§=>681 (I) — Testator’s daughter held not to take absolute fee in estate, to exclusion of possible remaindermen. Where testator gave all of estate to wife and daughter, share and share alike, but provided that, if wife survived daughter, daughter’s interest in estate should go to certain others, brothers and sisters of testator, held, daughter did not take an absolute fee simple, to exclusion of possible remaindermen, which was inherited by her mother. 4. Appeal and error <§=>865 — On appeal from default decree, defendant can only question sufficiency of bill to warrant decree. On appeal from default decree, defendant cannot urge want or insufficiency of testimony, but can contest decree on ground that it was unwarranted by bill. 5. Executors and administrators <§=>35(0— Removal of executrix for failure to keep accounts free from confusion held unwarranted. Where testator appointed wife as executrix .of his estate, without bond, security, or ap-praisement, her mere failure through mistake to keep her accounts free from confusion held insufficient to warrant her removal, and appointment of receiver. 6. Receivers <§=>14 — Receiver of estate not appointed, except where clear necessity appears. Receiver will not be appointed to take charge of an estate intrusted by testator to executrix or trustee, except where it clearly appears necessary to protect and preserve trust property, in which case clear proof of misconduct or fraud, or danger of loss, is required. Appeals from tbe District Court of tbe United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Judge.- Suit by George T. Ladd and others against Caroline G. Tallman, executrix of the will of Albert P. Tallman and guardian of Helen Tallman, personally and in her own right. Decree for plaintiffs, and defendant appeals. Decree modified. 1 Henry M. Russell, of Wheeling, W. Va. (Hubbard & Hubbard, of Wheeling, W. Va., on the brief), for appellant. George R. E. Gilchrist, of Wheeling, W. Va., for appellees. Before WOODS, WADDILL, and ROSE, Circuit Judges. WOODS, Circuit Judge. The will of Albert P. Tallman, dated October 10,1903, was as follows: “Eirst. I give and bequeath all of my personal and real property to my beloved wife Carrie and to my blessed child Helen, one half to each, share and share alike. I wish no appraisement nor inventory made. “Second. Should my beloved wife Carrie survive my little daughter Helen, then Helen’s share is to go to her mother for the latter’s use during her life and at the mother’s death said share (Helen’s) is to be divided equally between my brother Wilbur, my sisters, Mary Topping, Elen English and my sister Cornelia Ladd’s estate. Should my brother Wilbur be not living at the date when the' distribution just mentioned b-e made if made at all, then said share (Helen’s) is to be divided into three equal parts, one going to my sister Mary or her estate, one to my sister Ellen or hér estate and the remaining one to the estate of my sister Cornelia Ladd that is to say, this last named third is to be divided equally between George, Louis and Elizabeth Ladd, her children. “Third. I hereby appoint my beloved wife administratrix of this my last will and testament without bond or security and I would suggest that she act as guardian of our little daughter Helen without bond, security or ap-praisement.” The testator died in 1904, and his widow, Caroline G. Tallman, qualified as executrix and as guardian of her daughter, Helen, giving a bond without security in the former capacity of $150,000, and in the latter of $75,000. Helen died in 1919, unmarried, at the age of 20. Mary Topping died in 1909, and Wilbur Tallman in 1914. There is no dispute that the plaintiffs are the persons entitled to one-half of the corpus of the estate under the second clause of the will, unless under the first clause one-half went to Helen in fee, and was inherited by her mother as her sole heir. Plaintiffs filed their bill on- October 12, 1922, alleging that they were entitled to a remainder in one-half of the estate after the death of Caroline G. Tallman; that Caroline G. Tallman had qualified as executrix and had mismanaged her trust, in that she had not made an inventory of the estate; that she had not kept the corpus and income separate; that she had improperly so'ld securities; that she had made incorrect application of a number of items; that she had not on request given plaintiffs an account of her management of the estate and the amount and condition of the trust funds. The bill asked for the removal of Caroline G. Tallman as executrix, the appointment of a receiver of the estate, and an accounting. The proceedings under the bill were as follows : Defendant moved to dismiss the bill May 12, 1923; the motion was denied August 11, 1923; decree pro confesso was entered November 26, 1923, for failure to answer within five days as required by rule 29. After presentation by the plaintiffs of the bill and evidence in support of it on May 5, 1924, a deeree of the District Judge was made May 13, 1924, removing Caroline G. Tallman “as trustee for plaintiffs as remaindermen,” appointing the National Bank of Wheeling receiver of certain securities aggregating in value about $115,000, embraced in a list submitted by defendant to plaintiffs as representing the trust estate, and appointing a special master to take the accounts of the executrix and ascertain the amount and status of the prpperty in controversy. On May 20,1924, the defendant again tendered a motion to dismiss the bill on the specific ground that testator’s daughter, Helen, took under his will an absolute interest in one-half of the estate, which upon her death went by descent to her mother, Caroline G. Tallman. The court, as we understand the record, opened the default to the extent of hearing the motion to dismiss, and after argument again refused to dismiss the bill. The defendant then moved the court to open the decree pro confesso as to the appointment of a receiver. This motion was refused. A motion to open the default and allow the defendant to answer was also refused. No answer having been filed in 5 days after the motion to dismiss was denied, the decree pro confesso was properly entered under rule 29. The District Judge had discretion under rule 5 to suspend, alter, or rescind the deeree pro confesso entered by the clerk. If, as defendant’s counsel said, they were unable to restate the accounts so as to make a proper answer within the time, application should have been made to the District Judge to suspend the decree pro eonfesso for the requisite time. No such application having been made, and 30 days having elapsed from the entry of the deeree pro confesso, the court rightfully heard the case on the bill and ex parte proof, and made the decree absolute against the defendant. There is no ground to say that the discretion conferred on the District Judge by rule 17 was arbitrarily exercised to the extent that he refused to open the default. When the District Judge opened the decree of May 13, 1924, to the extent of allowing defendant’s counsel to move to dismiss the bill on the new ground that the daughter Helen took an absolute estate in fee simple to the exclusion of the plaintiffs, the order refusing the motion to dismiss was the adjudication of a duly contested matter which is properly here for review on appeal from the deeree of May 13, 1924. The correctness of this ruling of the court on the construction of the will was necessarily involved in the order appointing the receiver, for, if the plaintiffs have no interest in the estate, of course they have no right to a receivership. We agree with the District Judge in the construction of the will. Its language seems perfectly plain, and we are referred to no technicalities of construction in West Virginia which deny effect to the expressed intention of the testator. In the first clause the testator gives his estate to his wife and child, one-half to each, and then he said in the second clause, if his wife should he the survivor, she should have the use of the daughter’s share for her life, and that it should then go to the persons now represented by the plaintiffs. The gift of the absolute estate appearing from the first clause was thus cut down to a life estate by plain and unequivocal language, intended to be read with the first clause. Henry v. Haymond, 77 W. Va. 173, 87 S. E. 78; Criner v. Geary, 78 W. Va. 476, 89 S. E. 149. It follows that the widow took one-half of the estate absolutely, that she had the right as executrix and guardian of her daughter to the custody and control of the other half, both corpus and income, on the trust to apply the income for the benefit of her daughter Helen until her death, and after that event on the trust to take the income of that half for herself, and to safely keep the corpus for the remaindermen entitled to receive it at her death. The other important action of the District Judge was the appointment of a receiver of securities in the hands of the executrix of the value of $115,000. We consider first to what extent the decree of May 13, 1924, entered upon the default of the defendant, is reviewable on appeal. In Ohio, etc., R. R. v. Central Trust Co., 133 U. S. 83, 91, 10 S. Ct. 235, 237, 33 L. Ed. 561, the court said as to the proceedings under the bill after default: “If the' allegations are distinct and positive, they may be taken as true without proof; but if they are indefinite, or the demand of the complainant is in its- nature uncertain, the requisite certainty must be afforded by proof.- But in either event, although the defendant may not be allowed, on appeal, to question the want of testimony or the insufficiency or amount of the evidence, he is not precluded from contesting the sufficiency of the bill, or from insisting that the averments contained in it do not justify the decree.” The same rule is laid down in Thomson v. Wooster, 114 U. S. 104, 114, 5 S. Ct. 788, 29 L. Ed. 105, and in Winters v. United States, 207 U. S. 564, 575, 28 S. Ct. 207, 52 L. Ed. 340. We are therefore required to decide whether the facts set out in the bill, taken as true, justify breaking into the trust which the testator reposed in the defendant by the appointment of a receiver. There is no averment of insolvency; on the contrary, it - appears from the bill that one-half of the estate, which is alleged to be worth more than $350,000, belongs absolutely to the executrix. The utmost inference that could be drawn against the executrix from the charges is that she had made serious mistakés in her accounts, resulting in confusion, that she has mistaken her right in selling securities, and that she is unable to straighten out her accounts, so as to show the plaintiffs the amount of the trust fund. The accounting ordered before a master, to rectify the accounts and ascertain the trust fund in the hands of the executrix, is a sufficient remedy for these conditions. The ample solvency of the executrix and her ability to respond to any order of the court concerning the trust fund prevent any apprehension of the danger of loss of any part of it. -The plaintiffs themselves affirmatively proved by the correspondence the desire of the executrix to make a proper accounting, and her offer of all of her books and accounts for the scrutiny of plaintiffs’ counsel, to the end that he might aid in correcting mistakes. Defendant’s husband, whose chief solicitude was manifestly for his wife and daughter, placed his entire estate in her hands without security. He reposed in her, as he had the right to do, the confidence and trust of holding and managing one-half of the estate, in which she had only a life interest until her depth. Under these circumstances, the trust fund will not be taken from her under a bill which alleges nothing more than mistakes in management, without any showing of peril to the remaindermen under the trust. Appointment of a receiver of an estate intrusted by testator to an executor or trustee is a very strong measure, and will be made only when it clearly appears necessary to protect and preserve the trust property. There should be clear proof of misconduct or fraud, and danger of loss. Wise v. Hinegardner (W. Va.) 125 S. E. 579; 23 R. C. L. 28; 34 Cyc. 63; note, 72 Am. St. Rep. 63. We think, therefore, that the bill did not make a case for the appointment of a receiver, and the decree in this respect must be modified. The modification of the decree of the District Judge, however, is without prejudice to the right to plaintiffs to apply for the appointment of a receiver, and to the power of the District Judge to make the appointment, if at any time in the progress of the ease the receivership should be necessary for the preservation of the estate in remainder. Modified.

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

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

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL 12, Respondent. No. 20914. United States Court of Appeals Ninth Circuit. April 18, 1967. As Amended on Denial of Rehearing May 18, 1967. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, William Wachter, Attys., N.L.R.B., Washington, D.C., Thomas P. Graham, Director, N.L.R.B., Seattle, Wash., Robert J. Weiner, Officer-in-charge, N.L.R.B., Portland, Ore., for appellant. Norman Leonard, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., Pozzi, Levin & Wilson, Portland, Ore., for appellee. Before CHAMBERS and HAMLEY, Circuit Judges, and BYRNE, District Judge. HAMLEY, Circuit Judge: The National Labor Relations Board (Board) petitions for enforcement of its order of November 18, 1965, issued against respondent, International Longshoremen’s and Warehousemen’s Union, Local 12. The Board decision and order is reported at 155 N.L.R.B. No. 89. The Board’s regional director alleged in his complaint that Local 12 had engaged in unfair labor practices in violation of section 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act (Act), 49 Stat. 452, as amended, 29 U.S.C. § 158(b) (1) (A) and (b) (2) (1964). Local 12 had violated these statutes, it was alleged, by failing to dispatch Donald Wilson, Bernard Warnken and Lee Thomas, the charging parties, from the dispatch hall, and by excluding them from the dispatch hall. The trial examiner entered findings and conclusions upholding the charges and upon agency review, the Board adhered to the trial examiner’s findings and conclusions. The Board order requires Local 12, together with its officers and agents, to cease and desist from the specified unfair labor practices. It also requires them to make Wilson, Warnken and Thomas whole for loss of pay suffered by reason of such practices. In addition, the order contains the usual provisions concerning the posting of notices and the giving of notifications. Wilson, Warnken and Thomas worked out of North Bend-Coos Bay, Oregon, longshoremen’s dispatch hall. The hall was established pursuant to a collective bargaining agreement between the International Longshoremen’s and Warehouse-men’s Union (ILWU), of which Local 12 is an affiliate, and an association of employers known as the Pacific Maritime Association (PMA). Under the terms of that agreement, the hall, which offers the only means longshoremen have of obtaining work in that area, is governed by a joint committee of union and employer representatives. Under the terms of the agreement, longshoremen registered under the PMAILWU contract have first preference of dispatch. A longshoreman who is not so registered is known as a “casual,” and may be dispatched for employment if there are no registered longshoremen present, provided he pays his pro rata share of dispatching hall expenses. It is the practice for casual workers seeking employment to telephone for a recorded tape message which indicates whether there is any prospect for employment of casuals on that day. If there is such a prospect, the casuals who telephone may come to the dispatch hall, where available work is assigned out by a dispatcher. Wilson, Warnken and Thomas were casuals. On August 18, 1964, Wilson complained to William Armstrong, president of Local 12, that the dispatchers were discriminating against them by preferring casuals who were sons of registered longshoremen. These three indicated to Armstrong their intention to picket unless the discrimination was discontinued. Receiving no assurance that the matter would be investigated, they picketed the hall for fifteen minutes on August 19, 1964. They discontinued this when Armstrong assured them that the joint committee would meet with them at 7:30 p. m. on August 21, 1964. The three were present at the time and place set for the meeting, but no meeting was held. On August 29, 1964, Wilson was put in touch by telephone with W. B. Ferguson, a PMA representative of the joint committee, who told him to file with that committee a written statement of grievances. Wilson, Warnken and Thomas filed such a statement with the committee later that day. Wilson, Warnken and Thomas made an oral presentation of their grievances before the joint committee on September 2, 1964. The committee then agreed to take the matter under consideration and the three casuals stated that they would abide by the committee’s decision. No action having been taken by September 26, 1964, Wilson, Warnken and Thomas wrote to Ferguson complaining that the situation at the dispatch hall was much worse. Ferguson wrote back, assuring these men that the committee was investigating the grievances, and urging them to postpone “ * * * any unnecessary drastic action until our efforts have been expended. * * * ” On October 5, 6 and 7, there were many ships in the bay and every casual working out of the dispatch hall was hired except Wilson, Warnken and Thomas. Rather than dispatch these three casuals, the dispatchers recruited men from taverns and from a nearby Air Force base to serve the ships then in the bay. On October 8,1964, Thomas and Warn-ken were at the hall. Armstrong who was at the hall that day, testified that these men told other casuals who were present, “Go on up to the window; there’s plenty of work.” They were referring to the small window through which a prospective casual could talk to a dispatcher. This was contrary to the dispatcher’s practice of lining up casuals who were at the hall to select those needed for available jobs, rather than to dispatch casuals one at a time through the window. Joe Jakovac, the relief dispatcher who was then on duty, did not know exactly what Thomas and Warnken were then doing, but testified that he knew that for several days they had been walking around the hall talking to others and trying to start a strike against the hiring procedures. On October 8, 1964, believing that Thomas and Warnken were disrupting established dispatch hall practices, Jakovac stopped the hiring and in the presence of Armstrong, president of Local 12, told them to leave the hall. As they started to leave they met Wilson and told him what Jakovac had said. All three then left. Later the same day, Thomas returned to the hall to talk to Jakovac, but Jakovac told him to “ * * * get out and stay out.” Local 12 claimed in the Board proceeding that this eviction was intended to be for that day only. The trial examiner found, however, that in view of the entire context of events, including Jakovac’s last statement to Thomas, the eviction was not intended for just one day. The trial examiner also found that Wilson was correct in assuming that he was included in the eviction although Jakovac did not speak directly to him. The three casuals advised Ferguson of their expulsion from the dispatch hall. Ferguson requested that they take no further action until they heard from him on October 13, 1964. Not having heard from him by that date, Wilson, Warnken and Thomas resumed picketing the dispatch hall the next day and continued to do so until the unfair labor practice charge was filed on October 20, 1964. The charges came to the attention of the joint committee at a meeting held on October 21, 1964. At that meeting the employer representatives announced that they would have nothing further to do with the matter. The committee has-made no disposition of the grievance. On or about November 13, 1964, a. Board representative advised the three-casuals to return to the hall and attempt, to obtain dispatch to employment. This-they did without success. Based on findings to this general effect, the trial examiner further found that Local 12 discriminated against Wilson, Warnken and Thomas, by refusing to dispatch them when work was available, and by excluding them from the dispatch hall. The reason for such discrimination, the trial examiner found, was to effectuate reprisal for the concerted activities in which these three had engaged. These activities consisted of their concerted protest against Local 12’s method of operating the dispatch hall, manifested by picketing the hall, filing a grievance with the joint committee, and making a personal appeal to other casuals present at the dispatch hall on several occasions. The trial examiner concluded that by reason of the discrimination practiced against these three casuals, Local 12 had committed an unfair labor practice within the meaning of section 8(b) (2) of the Act, by causing or attempting to cause employers to encourage membership in a labor organization in violation of section 8(a) (3) of the Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(a) (3) (1964). Such encouragement, the trial examiner concluded, resulted when the three employees were made aware, through union-motivated discriminatory practices, that they could not expect employment unless they became members of the union and remained in good standing. The trial examiner also concluded that Local 12 committed an unfair labor practice within the meaning of section 8(b) (1). (A) of the Act, by restraining or coercing these three employees in the exercise of rights guaranteed in section 7 of the Act, 49 Stat. 452, as amended, 29 U.S.C. § 157 (1964), particularly the right to engage in concerted activities for the purpose of mutual aid or protection. In resisting the petition for enforcement, respondent first contests the trial examiner’s holding, adopted by the Board, that Local 12 committed an unfair labor practice under section 8(b) (1) (A), by restraining or coercing Wilson, Warnken and Thomas in the exercise of rights guaranteed in section 7 of the Act. Respondent argues that there is no showing that Wilson, Warnken and Thomas were restrained or coerced with respect to any protected activity. The issue raised by this argument is whether this particular finding of the trial examiner is supported by substantial evidence on the record considered as a whole, this being a proper subject of inquiry in a Board enforcement proceeding. See section 10(e) of the Act, 49 Stat. 453, 29 U.S.C. § 160(e) (1964) Before these three casuals manifested their protest by picketing, and by filing a grievance with the joint committee, discriminatory hiring practices were limited to preferring of sons of union members over other casuals. After-wards, Wilson, Warnken and Thomas were not dispatched at all even when, because of the number of ships in the bay, it was necessary to recruit men from taverns and an Air Force base. When these three men, through concerted, activity, sought to call the attention of other casuals present in the dispatch hall to the discriminatory practices, they were ordered out of the dispatch hall. While a dispatcher testified that the exclusion was only intended to be for one day, Wilson, Warnken and Thomas were not so advised by the dispatchers, even when they resumed picketing of the dispatch hall. While the evidence shows that work dropped off substantially in the last quarter of 1964, it is not contended that there was no work for casuals during that period. Respondent argues (citing Iron Workers Local 433, 151 NLRB 1092), that where it is not shown that any union representative exhibited hostility to, or resentment against, persons who were not dispatched, it may not be found that such failure was for the purpose of restraining or coercing protected concerted activity. Without passing upon the question of whether a showing of hostility or resentment is indispensable, we believe that hostility and resentment on the part of the dispatchers were demonstrated here. We also think there was a sufficient showing of a specific discriminatory motivation. Respondent contends that the conduct of Wilson, Warnken and Thomas in the dispatch hall was not protected activity under section 7, pointing to testimony that they were disrupting the operation of the dispatch hall. If the three casuals were disrupting such operations, they should have been advised to this effect and asked to desist. Instead, without explanation, they were ordered to leave. Under these circumstances they were entitled to assume that they were being excluded because they sought support for their protest against the hiring practices. Giving application to the rule of Universal Camera, supra note 3, we hold that there is substantial evidence supporting the Board finding that, by reason of the described conduct of the dispatchers, Wilson, Warnken and Thomas were restrained in their protected and concerted effort to protest the discriminatory hiring practices of the North Bend-Coos Bay dispatch hall. Respondent next contends that there is no substantial evidence to support the finding of the Board that Local 12 caused employers to discriminate against Wilson, Warnken and Thomas, in violation of section 8(b) (2) of the Act. The trial examiner found, in effect, that such employer discrimination consisted m withholding employment from these three casuals. The effect of such discrimination, the trial examiner could reasonably conclude, was to encourage them to join the union in order to obtain work assignments. Respondent argues that there is no evidence in this record which shows that Local 12 caused or attempted to cause employers to discriminate against these three casuals in the- manner just described. Again applying the Universal Camera test, we believe there was ample evidence of this kind. After Wilson, Warnken and Thomas had engaged in concerted activities in protest against the hiring practices, the employer discrimination was caused or attempted to be caused by Local 12 through the simple expedient of not dispatching these men to any of the employers. Respondent is chargeable with knowing that this employer discrimination, which respondent caused, would tend to encourage Wilson, Warnken and Thomas to become union members so that the discrimination would cease. Respondent also argues that any liability which could arise from the two unfair labor practices discussed above, should not attach to Local 12, but to the International Union, which is not a party to these proceedings. The Board, however, adopted the trial examiner’s finding which stated that Local 12 could be held liable for the dispatcher’s acts on either a joint venture or an agency theory. We need not decide whether the trial examiner’s joint venture theory has application here because, in any event, the agency theory provides an adequate ground for holding Local 12 liable for the acts of the dispatcher. See N.L.R.B. v. International Longshoremen’s and Warehousemen’s Union, 9 Cir., 210 F.2d 581; N.L.R.B. v. International Longshoremen’s and Warehousemen’s Union, Local 10, 9 Cir., 283 F.2d 558, note 5, 100 A.L.R.2d 348. Moreover, since the examiner also properly found that Local 12 was bound directly by the acts of the dispatchers, it could be held responsible for the dispatcher’s conduct regardless of whether an agency relationship existed between International and Local 12. Respondent contended before the trial examiner that it was not responsible for the unlawful operation of the dispatch hall because the hall was under the immediate control of the joint committee, half of whose members were employer representatives associated with PMA. The trial examiner concluded, however, that since Local 12 elected the dispatchers and paid for one-half the cost of maintaining the dispatching hall, it was responsible for the acts of dispatchers whom it selected and paid. This conclusion is consistent with this court’s opinion in N.L.R.B. v. I.L.W.U., 9 Cir., 210 F.2d 581, 584. In addition, Armstrong, president of Local 12, was present when Wilson and Warnken were told to leave the dispatch hall and apparently acquiesced therein. Under this circumstance and the other circumstances discussed above, we are of the view that the trial examiner did not err in concluding that Local 12 could be held responsible for the discrimination which occurred. Local 12 attacks the provision of the Board order which requires the local to make whole Wilson, Warnken and Thomas from October 5, 1964, for any loss of pay suffered by them as a result of the discrimination of Local 12 against them. The Board order provides that such payment shall be equal to the amount of wages they would have earned but for the discrimination practiced against them, computed on the basis of each separate calendar quarter or portion thereof, together with interest at the rate of six per cent per annum. Local 12 asserts that this back-pay provision is contrary to the holding in N.L.R.B. v. Local 2, Etc., 2 Cir., 360 F.2d 428. In that case, the court modified a Board back-pay order which did not appear to contemplate an inquiry into the length of time the employer would have kept the charging parties at work. As we read the order here in issue, it contemplates such an inquiry in the compliance proceeding. Such a compliance proceeding usually commences with the issuance, by a Board official, of a back-pay specification. If the answer thereto filed by the respondent presents an issue of fact, a hearing is held before a trial examiner. Therefore, no modification of the order in this regard is needed. Finally, respondent argues that the proceeding should be remanded to the Board with directions that it consider whether the picketing by Wilson, Warn-ken and Thomas, and their submission of demands or requests, were protected activities within the meaning of section 7, in view of the fact that the collective bargaining contract contains a no-strike clause and provisions setting up grievance and arbitration procedures. The no-strike provision of the collective bargaining agreement has no application in this case because the picketing and other activities of Wilson, Warnken and Thomas did not constitute a strike or work stoppage by employees against one or more employers. See N.L. R.B. v. Illinois Bell Telephone Co., 7 Cir., 189 F.2d 124, 127; THE POINT REYES, 5 Cir., 110 F.2d 608, 609-610; C. G. Conn, Ltd. v. N.L.R.B., 7 Cir., 108 F.2d 390, 397. The question of the availability of the grievance procedure is not properly before us. Insofar as the record before us indicates, the only objection which respondent made before the agency with reference to whether respondent had restrained or coerced Wilson, Warnken and Thomas in engaging in a protected activity, had to do with their activity within the dispatch hall in seeking to enlist the support of other casuals. As to this particular occurrence, respondent’s only contention was that the activity was not protected because it involved a disruption of the dispatch hall — not because alternative grievance procedures were available. Since the argument which respondent now advances was not the basis of any objection made in the agency proceeding, it is not available to respondent in this court. See section 10(e) of the Act, 49 Stat. 454, 29 U.S.C. § 160(e) (1964); N.L.R.B. v. Cheney California Lumber Co., 327 U.S. 385, 387-388, 66 S. Ct. 553, 90 L.Ed. 739; N.L.R.B. v. International Ass’n of Machinists, Lodge 942, AFL-CIO, 9 Cir., 263 F.2d 796, 798. The petition will be enforced. . The Board order modifies, in certain respects, the trial examiner’s recommended remedy. . Wilson continued reporting to the hiring hall for about fifty days without securing employment. He obtained other employment on February 16, 1965. Warnken regularly went to the hiring hall between November 13, 1964 and March 23, 1965, the date of the hearing in this matter, without being dispatched. Thomas regularly went to the hall between November 13, 1964 and December 4 or 5, 1964, without being dispatched. . In considering that question we are required to apply the rule announced in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456, that the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight. . Respondent argues that these three casuals made themselves unavailable for employment for work from October 8, 1964, when they were barred from the dispatch hall, until November 13, 1964, when they returned to the hall at the suggestion of the Board representative. However, we agree with the trial examiner that after these men were told to get out of the dispatch hall, it was the respondent’s responsibility to notify them that the dispatch hall was open to them before it could claim that these men had made themselves unavailable for dispatch. . As noted above, section 8(b) (2) of the Act makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of 378 F.2d — 9 section 8(a) (3) of the Act. Section 8 (a) (3) prohibits employer discrimination against employees “to encourage or discourage membership in any labor organization : * * * ” . Section 8.21 of the 1961-1966 agreement between PMA and ILWU provides that the personnel for each dispatching hall, with the exception of dispatchers, would be appointed by the joint committee. Dispatchers were to be selected by ILWU through elections. In application of these provisions, however, it was the membership of Local 12 which elected the dispatchers.

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

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

John W. RIORDAN; Jane Fox, Plaintiffs-Appellees, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant. No. 1793, Docket 92-7160. United States Court of Appeals, Second Circuit. Argued Aug. 10, 1992. Decided Oct. 2, 1992. Neil A. Goldberg, Buffalo, N.Y. (Lawrence A. Schulz, Richard J. Cohen, Saper-ston & Day, of counsel), for defendant-appellant. Jonathan J. Wilkofsky, New York City (Mark L. Friedman, David B. Karel, Wilkof-sky, Friedman, Karel & Cummins, of counsel), for plaintiffs-appellees. Eugene R. Anderson and Leonard W. Stewart, New York City (Anderson Kill Olick & Oshinsky, P.C., of counsel), submitted a brief for amici curiae Beverly Brooks, et al. in support of plaintiffs-appellees. Before: WINTER, MINER, and McLAUGHLIN, Circuit Judges. MINER, Circuit Judge: Defendant-appellant Nationwide Mutual Fire Insurance Company appeals from a judgment entered on January 15, 1992 after a jury trial in the United States District Court for the Southern District of New York (Brieant, Ch. J.), awarding a total of $349,304.34 in damages and $174,652.17 in attorney’s fees to plaintiffs-appellees John Riordan and Jane Fox (the “Riordans”). The Riordans, a married couple, commenced this action after their house and its contents suffered severe damage as a result of a fire. The Riordans initially made a claim under their homeowners insurance policy with Nationwide. After six months elapsed without settlement of their claim, the Riordans brought this action, alleging that Nationwide breached the insurance contract and committed deceptive acts and practices in violation of N.Y.Gen.Bus.Law § 349 (McKinney 1988) (“GBL § 349”). The Riordans sought compensatory, statutory and punitive damages as well as the attorney’s fees permitted by GBL § 349(h). At the close of trial, the jury returned a verdict in favor of the Riordans, awarding compensatory and punitive damages in addition to damages under GBL § 349. The district court then approved an attorney’s fees award. On appeal, Nationwide asserts a variety of errors. Its principal contentions relate to the applicability of GBL § 349 to the insurance industry, the availability of attorney’s fees in this case, the availability of punitive damages in a first party action against an insurance company, and the sufficiency of the evidence adduced at trial supporting the GBL § 349 and punitive damages awards. Nationwide also seeks certification of certain questions to the New York Court of Appeals, contending that New York law on those issues is not settled and that therefore New York’s highest court must resolve the issues before they can be litigated in this diversity suit. We hold GBL § 349 applicable to insurance companies’ interactions with insureds and that sufficient evidence supported the damages awarded under that section. We also reject Nationwide’s arguments that the Riordans’ attorneys were required to submit contemporaneous time records and that the district court abused its discretion in awarding attorney’s fees pursuant to GBL § 349. We certify questions regarding the availability of punitive damages in this case to resolve a split of authority between Appellate Division Departments on this issue. BACKGROUND In 1988, the Riordans purchased from Nationwide an “Elite II” homeowners insurance policy to insure their residence located at 48 Overlook Road, Ossining, New York. The policy covered the building and its contents, guaranteeing payment of the replacement cost of both in the event of loss. On July 17, 1989, a fire occurred at the residence, completely destroying the downstairs family room and causing varying degrees of damage to other areas of the house. Most of the house and its contents, with the exception of the attic, suffered significant damage due to heat, soot, smoke, and water. Approximately ninety percent of the contents of the house, including clothing, artwork, antiques, and personal effects, was in need of repair or cleaning or had been totally destroyed. After learning of the fire and its effects, the Riordans contacted their insurance agent at Nationwide and engaged Steven Seltzer, a public insurance adjuster with the firm of Goldstein Affiliates, to assist in handling their claim. Seltzer and the Rior-dans set about retaining the appropriate persons to estimate the damages to the house and its contents. They also began to prepare for submission to Nationwide an inventory listing the approximate values of all personal effects damaged or destroyed in the fire. Nationwide’s claims adjuster, John Hahn, visited the premises on two occasions after the fire. The first time, within two days of the occurrence, Hahn made a preliminary evaluation of the scene and had a contractor estimate the cost of repairing the damage to the house. The second and final time, on August 2, 1989, Hahn went through the entire house with Seltzer. The Riordans previously had provided Hahn with their completed inventory, so Hahn took notes on the inventory sheets regarding the condition of the items and the likelihood and cost of repair. Hahn did not authorize the start of any repairs or cleaning for the house or its contents, despite several attempts thereafter by Seltzer to obtain such authorization. Although he already had the Riordans’ inventory with item values, Hahn demanded that the Rior-dans compile for Nationwide a sworn Statement in Proof of Loss, a document listing each item of inventory for which reimbursement was claimed and its value. The Riordans, after tiring of Hahn’s failure to communicate with them, proceeded to have their personal effects removed from the house for cleaning and restoration by companies which Seltzer recommended. Seltzer and the Riordans began compiling the information for the Proof of Loss based on the reports and estimates provided by the companies hired to clean and restore the personal effects. Nationwide never sent anyone to evaluate the damage to these items, although Seltzer continually requested Hahn to do so. The Riordans timely submitted the Proof of Loss to Nationwide, but detailed only those items known at that point to be irreparably damaged or destroyed. Not included were items on which restoration or cleaning was being attempted. For this reason, at the end of the Proof of Loss the Riordans reserved the right to amend the document upon completion of the analysis of the damage and the attempts at restoration. Between the time Hahn demanded the Proof of Loss and the submission of the document, Hahn and Nationwide did not take any steps to ascertain the amount of damage to the contents of the house. Although Hahn had the inventory during this period, he did not question the amounts claimed therein or send appraisers to evaluate the condition of the Riordans’ personal effects, or the possibility of repairing or cleaning them. Nor did Hahn answer Seltzer’s numerous letters and telephone calls requesting meetings, advances, or other action by Nationwide on the claim. Even after receipt of the Proof of Loss, Hahn failed to respond, neither approving or denying the claim nor requesting additional information. In mid-November, over a month after receiving the Proof of Loss, Hahn sent experts to evaluate the damage to certain of the antiques and artwork in the possession of the restoration company, although much restoration work had been completed by this time. Nationwide’s experts did not cooperate with the restoration company personnel, and Nationwide never produced the results of the appraisals to the Riordans or explained whether their claim would be affected. With regard to the building portion of the claim, Seltzer had retained a construction contractor to evaluate the cost to repair the damage to the Riordans’ home. Seltzer then sought an advance on this portion of the Riordans’ claim so that construction could start. Nationwide obliged with a $25,000 advance, but the Riordans could not utilize the money for repairs without prior approval from Citibank, the mortgagee of the property. Citibank would not release the funds until the building portion of the claim had been settled, so the Riordans were forced to leave the house in its damaged condition and live in their summer home on Long Island. Finally, on January 16, 1990, Hahn met with Seltzer in an attempt to settle the Riordans’ claim. At that meeting, Seltzer agreed to accept the amount offered by Hahn to settle the building portion of the claim, although it was below what the Rior-dans sought. Hahn telephoned his supervisor, Joseph Kenyon, for approval to settle that portion of the claim, but Kenyon refused to do so unless the Riordans agreed to accept Nationwide’s offer on the contents portion of the claim. Nationwide, through Hahn, had offered approximately $21,000 to settle the contents portion of the claim, but Seltzer previously had rejected the same amount as too far below the figure of more than $160,000 sought by the Riordans based on the Proof of Loss. As a consequence, Seltzer felt constrained to reject settlement of the building portion of the claim because it was contingent on settlement of the contents portion at the low amount. In December 1989, the Riordans, at this point tired of waiting for Nationwide to settle their claim, registered a complaint with the New York Department of Insurance. The Department did not respond to the complaint until April 1990 and then only recommended that the Riordans retain an attorney and sue. The Riordans had already commenced this suit on January 24, 1990, alleging that Nationwide’s actions amounted to a breach of the insurance contract and that Nationwide had committed deceptive acts and practices in violation of GBL § 349 in the claims settlement process. The Riordans sought to recover compensatory and punitive damages, damages as permitted by statute for the deceptive acts of Nationwide, and attorney’s fees as permitted under GBL § 349(h). On December 12, 1990, the district court (Kram, J.) granted the Riordans’ motion for summary judgment on the breach of contract claim, reserving for trial the issue of damages on that claim, and denied Nationwide’s motion to dismiss. Riordan v. Nationwide Mut. Fire Ins. Co., 756 F.Supp. 732 (S.D.N.Y.1990). Trial commenced on November 6, 1991, at the close of which the jury rendered a verdict in favor of the Riordans, awarding $36,692.55 for repair of the house, $112,611.79 for damages to the contents, $49,000 in living expenses, $1000 on the deceptive acts and practice violations, and $150,000 in punitive damages. Upon motion of the Riordans, the district court determined that an award of attorney’s fees pursuant to GBL § 349(h) was warranted, and, based on the parties’ submissions, set the amount at $174,652.17. DISCUSSION Nationwide has made a motion to certify to the New York Court of Appeals various issues it raises on appeal, contending that, as these issues raise questions of first impression in New York, certification is warranted before a federal court addresses the matters. Because the motion encompasses the substantive issues raised on appeal, we first set forth the standards for certification. Then, along with the discussion of each substantive issue, the standards will be applied in order to determine suitability for certification. Certification of a question of law to the New York Court of Appeals is permissible, pursuant to 2d Cir.R. § 0.27 and N.Y.Ct. App.R. § 500.17, when there is no controlling New York precedent on the issue. See, e.g., Unigard Sec. Ins. Co. v. North River Ins. Co., 949 F.2d 630 (2d Cir.1991); Banque Worms v. BankAmerica Int’l, 928 F.2d 538 (2d Cir.1991). Certification is a discretionary device, both for the certifying court and for the court requested to answer the certified question. N.Y.Ct.App.R. § 500.17 (entitled “Discretionary Proceedings to Review Certified Questions”); 2d Cir.R. § 0.27 (“this Court may certify to the highest court of a state an unsettled and significant question of state law”) (emphasis added); see Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 Notre Dame J. Legis. 127, 140-44, 156-58, 170-71 (1992) (explaining discretionary certification provisions of Uniform Act and New York’s rule). In the past, we have certified questions to the New York Court of Appeals only where there is a split of authority on the issue, where the statute’s plain language does not indicate the answer, or when presented with a complex question of New York common law for which no New York authority can be found. See, e.g., Unigard Security, 949 F.2d at 631-32 (certifying question of whether reinsurer must prove prejudice before successfully invoking defense of late notice of loss, because of lack of New York appellate authority and “split of authority within the Southern District of New York”); Banque Worms, 928 F.2d at 540-41 (“lack of clear precedent was evidenced by the fact that both appellant and appellee cited [the same case]” for contrary positions and by presence of Appellate Division cases supporting both arguments); Alexander & Alexander Servs., Inc. v. Lloyd’s Syndicate 317, 902 F.2d 165, 168-69 (2d Cir.1990) (certifying question of whether personal jurisdiction requisite of “doing business” in New York is satisfied by presence of insurance company trust fund at New York bank in compliance with New York law, but no other business transacted in state because statute not clear and no court decisions address the issue); Home Ins. Co. v. American Home Prods. Corp., 873 F.2d 520, 522 (2d Cir.1989) (certifying question of whether insurer is required to reimburse insured for punitive damages award in foreign judgment because question one of New York public policy). A. Applicability of GBL § 349 GBL § 349(a) declares unlawful “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” The statute provides both for enforcement by the attorney general, id. § 349(b), and a private right of action to any person injured by the deceptive acts or practices committed by a business, id. § 349(h). Nationwide contends that the statute cannot be used against insurance companies because of the pervasive statutory scheme regulating unfair and deceptive acts and practices by insurance companies. See N.Y.Ins.Law §§ 2401 et seq. & 2601 (McKinney 1985). The Insurance Law empowers and charges the Superintendent of Insurance to investigate and hold hearings on allegations of deceptive and unfair claims settlement practices, and to enforce the statute’s prohibitions by cease and desist orders or, through the attorney general, judicial action. Id. §§ 2404-07. Nationwide asserts that this statutory scheme preempts the use of GBL § 349 by private individuals against insurance companies. This argument fails, however, because it ignores the plain language of GBL § 349(g), which states that “[t]his section shall apply to all deceptive acts or practices declared to be unlawful, whether or not subject to any other law of this state.” By its own terms, therefore, GBL § 349 applies to the acts or practices of every business operating in New York. Official Practice Commentaries to General Business Law §§ 349-50, reprinted at 19 McKinney’s § 349, at 90-92 (Supp.1992) (stating that GBL § 349 “contains no exceptions or exemptions for regulated industries”, and suggesting possible usages against insurance companies). Nowhere does GBL § 349 provide an exception for insurance companies, nor does the Insurance Law exempt insurance companies from the reach of GBL § 349. In Sulner v. General Accident Fire and Life Assurance Corp., 122 Misc.2d 597, 599-601, 471 N.Y.S.2d 794, 796-97 (N.Y.Sup.Ct.1984), the court denied the defendant insurance company’s motion to dismiss a cause of action by an insured under GBL § 349. Sulner involved the claim of an insured to recover for water damage to documents and other property of a business. The insurance company argued that GBL § 349 was inapplicable in the insurance claims context. The court, citing to legislative history and the rule that “ ‘remedial statutes are liberally construed [in order] to carry out the reforms intended,’ ” held the statute applicable to the conduct of insurers and found that the complaint “allege[d] a series of acts which... may be found to be deceptive.” Id. (alteration in original). Although Sulner is not an appellate decision, we find its reasoning persuasive, especially in light of the language of the statute and the Official Practice Commentaries. See also People v. British & Am. Casualty Co., 133 Misc.2d 352, 360-61, 505 N.Y.S.2d 759, 766 (Sup.Ct.1986) (granting preliminary injunction to attorney general under GBL § 349 to prohibit insurance company sending to customers letters containing deceptive and misleading information). But cf. Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F.Supp. 1084, 1089 (S.D.N.Y.1988) (finding acts pleaded in complaint against insurance company “not the types of transactions that fall within the scope of [GBL § 349]”, because “consumers have not been harmed and the public interest has not been implicated”). Nationwide further contends that the New York legislature “did not intend for the type of conduct alleged against Nationwide in this action to be subject to the private right of action created by subsection (h) [of GBL § 349].” Nationwide argues that the statute is meant to cover the deceptive actions of retail operations “or the type of conduct generally prosecutable in small claims court.” However, the language of the statute places no such limitations on the citizen suit provision of subsection (h). Given the statutory intent to protect consumers, Azby Brokerage, 681 F.Supp. at 1089, we see no reason to limit the application of the statute to small claims when consumers at all levels are subject to deceptive acts and practices. Under the circumstances, certification is not warranted on the question of the applicability of GBL § 349. The statute is clear, and none of Nationwide’s arguments raises a serious question about the correct interpretation of the language. Nationwide also challenges the sufficiency of the evidence supporting the jury’s verdict on this claim. In a case applying New York law, a reviewing court may only set aside a jury verdict if the “evidence so preponderates in favor of the party against whom the verdict was rendered that it is clear that the jury did not reach its conclusion on a fair interpretation of the evidence... or if a contrary conclusion is the only reasonable inference that can be made from the proven facts.” Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240, 247-48 (2d Cir.1980) (citations omitted). On this record, the Riordans adduced ample evidence proving that Nationwide engaged in various deceptive acts and practices in their dealings. For example, the evidence at trial showed that Nationwide continually failed to acknowledge correspondence from the Riordans, demanded a Proof of Loss statement without justification, refused to accept the Riordans’ inventory simply because it was not on Nationwide’s forms, failed to respond to the Proof of Loss statement as required by N.Y.C.R.R. § 216.6(c), and required that both the contents and building loss claims be settled together in violation of N.Y.C.R.R. § 216.6(e). Nationwide also refused to estimate, much less pay, the replacement cost value of the Riordans personal effects as required by the policy. The Riordans had purchased the “Elite II” policy which ostensibly entitled them to certain extra benefits, none of which they received because of Nationwide’s dilatory tactics. Additionally, the Riordans present ed ample evidence to prove that Nationwide engaged in similar deceptive settlement practices against other policyholders, thus satisfying the GBL § 349 requirement that the conduct be recurring or have ramifications for the general public. Genesco Entertainment v. Koch, 593 F.Supp. 743, 751-52 (S.D.N.Y.1984); see also Azby Brokerage, 681 F.Supp. at 1089 (citations omitted). B. Attorney’s Fees Award Under GBL § 349 Pursuant to GBL § 349(h), a “court may award reasonable attorney’s fees to a prevailing plaintiff.” Nationwide argues that the district court erred in awarding attorney’s fees under this subsection because the Riordans’ attorneys did not submit contemporaneous time records as required by New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir.1983). In that case, we required that “any attorney... who applies for court-ordered compensation in this Circuit... must document the application with contemporaneous time records... specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” Id. at 1148. Failure to do so results in denial of the motion for fees. On the other hand, New York courts have specifically rejected the “hard and fast rule that reconstructed time records can never serve as a basis for compensation” in favor of wider trial court discretion in evaluating fee petitions. In re Karp, 145 A.D.2d 208, 216, 537 N.Y.S.2d 510, 515 (1st Dep’t 1989). Nationwide contends that the district court should have applied the federal rule in the present case and rejected the petition for attorney’s fees because of the Rior-dans’ attorneys failure to keep contemporaneous time records. State law creates the substantive right to attorney’s fees, see Chambers v. NASCO, Inc., — U.S.-, -, 111 S.Ct. 2123, 2136-37, 115 L.Ed.2d 27 (1991), a right which cannot be deprived by applying the contemporaneous time records rule adopted in this Circuit, Carey, 711 F.2d at 1147. See Northern Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 475 (1st Cir.1988) (ruling method of calculating award substantive and hence rejecting district court use of federal “lodestar” method of calculating attorney’s fees in favor of Massachusetts law which looked to party’s engagement agreement with its lawyers); Blanchette v. Cataldo, 734 F.2d 869, 878 (1st Cir.1984) (applying state law mandatory fee provision to reverse district court denial of attorney’s fees); McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 232 (1st Cir.1980) (remanding to district court for calculation of attorney’s fees in accordance with state law and noting that “[t]o the extent [state] law is silent or incomplete on the calculation of attorney’s fees, [federal law] may well be relevant”); cf. Powell v. Old S. Life Ins. Co., 780 F.2d 1265, 1267-68 (5th Cir.1986) (acknowledging but not deciding whether method of calculation is substantive). Nationwide next contends that the district court abused its discretion in making the award and therefore that legal fees should be denied or limited. We perceive no abuse of discretion in this instance. The district court in its opinion took into account the factors ordinarily considered by New York courts when evaluating requests for attorney’s fees, including the time and skill required in litigating the case, the complexity of issues, the customary fee for the work, and the results achieved. See In re Estate of Gutchess, 117 A.D.2d 852, 854, 498 N.Y.S.2d 297, 300 (3d Dep’t), appeal denied, 68 N.Y.2d 609, 508 N.Y.S.2d 1026, 501 N.E.2d 36 (1986); In re Ury, 108 A.D.2d 816, 817, 485 N.Y.S.2d 329, 330 (2d Dep’t), appeal denied, 64 N.Y.2d 611, 490 N.Y.S.2d 1024, 479 N.E.2d 827 (1985). In calculating the award, the district court limited the amount to one half of the total amount of damages awarded, so that the resulting fee award was some $38,000 less than requested. The district court expressly noted that it was limiting the final award to fifty percent of the recovery, rather than using the fifty percent figure as the determinant of the appropriate fee. In setting this relationship between the amount recovered and the amount of the fee award, the district court merely exercised its discretion with respect to one factor considered in arriving at an appropriate fee award: the result obtained. In a case such as this, where the issues and claims intertwine to such a great extent, a limitation based on the total recovery does not seem unreasonable to us. Nationwide also seeks certification of the attorney’s fees issues. Again, the plain language of the statute leaves no room for interpretation. There is nothing to suggest that a court may only award fees in certain types of cases. The fee award is left to the discretion of the trial court in all circumstances, and hence we see no reason to certify this question to the New York Court of Appeals. C. Punitive Damages Nationwide argues that the district court erred in permitting the jury to consider and award punitive damages in this case. Nationwide maintains that New York law does not permit an insured to recover punitive damages from an insurance company in a first party suit premised on unfair and deceptive claims practices in violation of an insurance contract because N.Y.Ins.Law § 2601 (McKinney 1985) preempts such recovery. Alternatively, Nationwide argues that, assuming the availability of punitive damages, the Riordans failed to adduce sufficient evidence to support the award. Under the circumstances revealed here, we are constrained to certify these questions to the New York Court of Appeals in order to apply the correct New York law to the facts of this case. Although punitive damages generally are recoverable in New York for morally culpable acts aimed at the public, Walker v. Sheldon, 10 N.Y.2d 401, 404-05, 223 N.Y.S.2d 488, 490-91, 179 N.E.2d 497, 498 (1961), the New York Court of Appeals has yet to rule directly on the preemption issue. See, e.g., Halpin v. Prudential Ins. Co. of Amer., 48 N.Y.2d 906, 908, 425 N.Y.S.2d 48, 49, 401 N.E.2d 171, 172 (1979); Gordon v. Nationwide Mut. Ins. Co., 30 N.Y.2d 427, 437-39, 334 N.Y.S.2d 601, 608, 285 N.E.2d 849, 854 (1972). There is a split between the First and Second Departments over whether punitive damages may be recovered in this context. Compare Belco Petroleum Corp. v. AIG Oil Rig, Inc., 164 A.D.2d 583, 585-91, 565 N.Y.S.2d 776, 777-81 (1st Dep’t 1991) (Ins.Law § 2601 does not preempt punitive damages, which are recoverable “upon an appropriate showing of morally reprehensible conduct aimed at the general public”) with Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 40-43, 544 N.Y.S.2d 359, 371-74 (2d Dep’t 1989) (“The availability of punitive damages in private lawsuits premised on unfair claim practices has been preempted by the administrative remedies available to the Superintendent of Insurance pursuant to Insurance Law § 2601.”). But see Porter v. Allstate Ins. Co., — A.D.2d-, 585 N.Y.S.2d 465 (2d Dep’t 1992). The Third and Fourth Departments have not ruled on the issue, but have implicitly recognized the availability of punitive damages. Monroe v. Providence Washington Ins. Co., 126 A.D.2d 929, 930, 511 N.Y.S.2d 449, 451 (3d Dep’t 1987); DiBlasi v. Blue Cross of W.N.Y., Inc., 156 A.D.2d 986, 987, 548 N.Y.S.2d 829, 830 (4th Dep’t 1989). The language of section 2601 does not indicate whether preemption of punitive damages was intended. Certification is therefore warranted. Our decision to certify this issue does not preclude us from affirming the remainder of the judgment and ordering that the mandate issue. See Securities and Exchange Comm’n v. Elliott, 953 F.2d 1560, 1584 (11th Cir.1992); Lohr v. Florida Dep’t of Corrections, 835 F.2d 1404, 1406 (11th Cir.1988). Consequently, we choose to have the mandate issue as to the matters resolved and retain jurisdiction on the punitive damages issues pending a response from the New York Court of Appeals. CONCLUSION The judgment of the district court is AFFIRMED in all respects, except as to the punitive damages issues. It is hereby ORDERED that the Clerk of the Court transmit to the Clerk of the New York Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a complete set of the briefs, appendices, and record filed by the parties in this Court. The mandate shall issue as to those portions of the district court’s judgment which we affirm. This panel shall retain jurisdiction in order to rule on the availability of punitive damages and, if necessary, the sufficiency of the evidence supporting the jury’s award, once a response from the New York Court of Appeals is received. APPENDIX UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Docket No. 92-7160 Filed October 2, 1992 JOHN W. RIORDAN; JANE FOX, Plaintiffs-Appellees, —against— NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellant. Certificate to The New York Court of Appeals pursuant to McKinney’s Revised 1992 New York Rules of Court § 500.17(b) (certification of unsettled questions of state law) The home of John Riordan and Jane Fox (the “Riordans”), a married couple, was partially destroyed by fire on July 17,1989. The Riordans, with the assistance of a public insurance adjuster, submitted a claim under their homeowners insurance policy with Nationwide Mutual Fire Insurance Company. Nationwide engaged in certain dilatory measures to thwart full and prompt payment of the claim. After waiting six months and experiencing a variety of delays, refusals to settle, and other deceptive claims settlement practices on the part of Nationwide, the Riordans commenced this action in federal district court seeking, among other relief, punitive damages. At the close of trial, the jury rendered a verdict in favor of the Riordans, awarding compensatory damages, damages pursuant to N.Y.Gen.Bus.Law § 349 (McKinney 1988) (“GBL § 349”), and punitive damages. Upon motion of the Rior-dans, the district court awarded to them attorney’s fees pursuant to GBL § 349(h). Nationwide appealed, alleging a variety of errors. We rejected all the claims of error except Nationwide’s challenges to the punitive damages recovery. Specifically, Nationwide contends that New York law prohibits an insured from recovering punitive damages on a breach of insurance contract claim because N.Y.Ins.Law § 2601 (McKinney 1985) preempts such a recovery, or in the alternative that even if punitive damages may be recovered, the Riordans adduced insufficient evidence at trial to support the award. The Riordans were permitted at trial to offer proof on the issue of punitive damages after the district court (Kram, J.) denied Nationwide’s motion to dismiss, the district court having concluded that New York law permitted recovery of punitive damages when a plaintiff proves that an insurer committed morally reprehensible conduct in dealing with the general public. Riordan v. Nationwide Mut. Fire Ins. Co., 756 F.Supp. 732, 740-42 (S.D.N.Y.1990). To prove their entitlement to such damages, the Riordans offered testimony from other insureds who had submitted claims to Nationwide under homeowners policies and had encountered difficulties similar to the Riordans’. The evidence indicated that Nationwide’s past tactics included dilatory settlement practices, lack of response to correspondence in violation of N.Y.C.R.R. § 216.6(a), failure to respond to the Proof of Loss statement as required by N.Y.C.R.R. § 216.6(c), and refusal to settle claims piecemeal in violation of N.Y.C.R.R. § 216.6(e). The Riordans also attempted, by eliciting testimony from Nationwide employees, to prove that Nationwide regularly put insureds into inadequate alternative living quarters during the claims settlement process in derogation of the terms of their insurance policies, and that Nationwide consistently offered to settle claims for amounts below their own experts’ estimates. Finally, the Riordans produced evidence that Nationwide flagged certain policies as unprofitable in order to alert claims adjusters in the handling of future claims under those policies. Nationwide allegedly treated its insureds in this fashion to force claimants to accept low settlements instead of waiting long periods of time in poor conditions to obtain a reasonable settlement. In support of its position that the Rior-dans are precluded from recovering punitive damages, Nationwide principally relies upon Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 40-43, 544 N.Y.S.2d 359, 371-74 (2d Dep’t 1989), and the failure of any New York court to uphold punitive damages awards in this context. In Roldan, the Second Department conclude[d] that allegations that an insurance company is engaging in a persistent course of conduct involving fraud or unfair claims practices may more properly be evaluated and, if proved, be redressed by the Superintendent of Insurance, who is charged by law with the regulation of this industry, rather than by private litigants. The availability of punitive damages in private lawsuits premised on unfair claim practices has been preempted by the administrative remedies available to the Superintendent of Insurance pursuant to Insurance Law § 2601. Id. at 43, 544 N.Y.S.2d at 374. The Riordans contend that punitive damages are recoverable in this case, relying principally on Belco Petroleum Corp. v. AIG Oil Rig, Inc., 164 A.D.2d 583, 585-91, 565 N.Y.S.2d 776, 777-81 (1st Dep’t 1991). In that case, the First Department rejected Roldan’s analysis and held that punitive damages are available to insureds “upon an appropriate showing of morally reprehensible conduct aimed at the general public.” Id. at 588, 575|N.Y.S.2d at 779. The Rior-dans also point to a myriad of cases which, while rejecting claims for punitive damages, have at least implicitly recognized their availability. See, e.g., DiBlasi v. Blue Cross of W.N.Y. Inc., 156 A.D.2d 986, 987, 548 N.Y.S,2d 829, 830 (4th Dep’t 1989); Botway v. American Int’l Assurance Co. of New York, 151 A.D.2d 288, 290, 543 N.Y.S.2d 651, 653 (1st Dep’t 1989); Monroe v. Providence Washington Ins. Co., 126 A.D.2d 929, 930, 511 N.Y.S.2d 449, 451 (3d Dep’t 1987). Finally, the Riordans maintain that the evidence produced at

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?

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. 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?

UNITED STATES of America v. Stanley APFELBAUM, Appellant. No. 77-2427. United States Court of Appeals, Third Circuit. Argued June 6, 1978. Decided Aug. 10, 1978. Joel Harvey Slomsky, Philadelphia, Pa., for appellant. Robert E. Madden, Sp. Atty., Dept, of Justice, Robert N. deLuca, U. S. Atty., E. D. Pa., Philadelphia, Pa., Robert J. Erickson, Vincent L. Gambale, Attys., Dept, of Justice, Washington, D. C., for the U. S. Before ADAMS, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. This appeal calls upon us to examine the contours of the permissible use by the Government of immunized grand jury testimony where that testimony does not constitute the corpus delicti or core of a defendant’s false swearing indictment. In resolving this issue, we recognize the tension created by the conflicting interests between the power of a grand jury to compel testimony and a witness’s privilege against self-incrimination. Following the teaching of Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and the precepts established in this court’s precedents, see United States v. Frumento, 552 F.2d 534, 542-43 (3d Cir. 1977) (en banc); United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973), we hold that grand jury testimony which is compelled under a grant of immunity may be utilized only as the corpus delicti of an indictment for perjury or for false swearing. See 18 U.S.C. § 6002. I. On December 13, 1976 and January 3, 1977, Stanley Apfelbaum, then an administrative assistant to the District Attorney in Philadelphia, appeared as an immunized witness before a federal grand jury. The grand jury was investigating criminal activities (including racketeering and extortion) alleged to be involved in the operation of a Chestnut Hill automobile dealership in Philadelphia. In response to questioning before the grand jury, Apfelbaum made two series of statements which served as the basis for his subsequent false swearing indictment and conviction. In his December 13th grand jury testimony he denied that he had tried to locate one Harry Brown in Fort Lauder-dale, Florida during the month of December 1975 Then, on December 13, 1976 and again on January 3, 1977, Apfelbaum testified before the grand jury that he did not recall telling F.B.I. agents that he had loaned $10,000 to Brown. The grand jury which heard these two statements returned an indictment against Apfelbaum which charged him with two counts of wilfully and knowingly making false material declarations before a grand jury in violation of 18 U.S.C. § 1623. With respect to Apfelbaum’s “locating Brown,” paragraph 5 of Count One of the indictment recited Apfelbaum’s grand jury testimony. That testimony and the charging clause of the indictment follow: Q. It’s my understanding you went down to Florida in December of 1975, approximately the 5th of December. A. That’s right. That’s what I said before. Q. Now, at that time did you see Mr. Brown? A. No. I told you I went down there for a fishing trip, not fishing trip, to look at a boat for Dr. Slawek and then go to Puerto Rico. Q. And you only stayed in Florida about three days? A. About three or four days, something like that. I’m not sure exactly. Don’t hold me to three or four. It was around that. I spent a total time of about two weeks between the two, including flight time and so on. Q. When you were down there, did you call up Harry Brown to talk to him? A. No. Q. Did you know he was down there? A. I heard he was down there. Somebody had said he was down there. Q. Did you do anything to attempt to contact Mr. Brown when you were down there? A. Not that I remember. I don’t think I knew where he was at. Q. Well, how did you find out where he was at eventually? A. Somebody had told me about it and I don’t know who, but they told me he was down in Florida. Q. Okay. By this time, had the papers reported that Harry Brown was missing? A. I don’t believe so. I don’t know. I’m not sure. I’m trying to recollect. I don’t know whether they said he was missing or not. Q. So, in December, when you were down there, you’re sure you didn’t try to contact Harry Brown; is that correct? A. Yeah, Yeah. Q. Did you try to locate Harry Brown when you were down there? A. No. Q. You’re sure? A. Positive. Q. Now, did you tell anyone that you were trying to locate Harry Brown in Florida? A. Not that I remember. Q. And, you know, you were on your vacation and you were looking at the boats, so you weren’t running around trying to find somebody you didn’t know where they were, is that correct? A. Yeah. Q. And you would remember that? A. Yeah, I think I would. Whereas, in truth and fact, as Stanley Apfelbaum then well knew, he had tried to locate Francis Harry Brown-, aka Harry Brown, in Florida, during December of 1975. With respect to Apfelbaum’s failure to recall his loan discussion with the F.B.I., paragraphs 4 and 5 of Count Two of the indictment recited Apfelbaum’s grand jury testimony. That testimony and the charging clause follow: Q. Did you ever tell anyone that you had lent any money to Harry Brown or Marvin Greenblatt? A. No, sir. Q. Did you ever tell anyone that you had been involved in a loan to Harry Brown or Marvin Greenblatt? A. No, sir. Q. You never told anyone that you. had been involved in any kind of loan to Harry Brown? A. No. Q. Did you ever tell the F.B.I. — you denied last week that you told anyone you had lent money to Harry Brown? A. That’s right. Q. You denied that? A. How could I lend money when I don’t have any money myself, Mr. Friedman? Q. So, you didn’t tell the F.B.I. or anyone that you had lent money to Harry Brown? A. No, sir. Q. Is that right? A. That’s right. * * * sfe * * Q. Now, sir, in 19 — what, 1975 and 1976, did you have $10,000? A. Did I what? Q. Have $10,000? A. I told you I didn’t have $10,000. Q. And, you didn’t lend $10,000 to Harry Brown, is that right? A. No, sir. Q. And, you testified that way last week. A. Yeah. Q. You testified last week that you never told anyone that you had lent $10,-000 to Harry Brown; is that right? A. That’s right, sir. Q. Okay. And, you still persist in that testimony? A. Uh-huh. How can I lend it to him when I didn’t have it? I had to go to the bank and borrow money myself. Q. You still persist in that testimony? A. Yes, sir. Q. You never told the F.B.I. that you lent Harry Brown $10,000; is that right? A. If I did, it was ridiculous. Q. Did you tell them that? A. I don’t know. I don’t think I did. Q. Do you have any recollection of telling them that? A. No, no sir. Whereas, in truth and fact as Stanley Apfelbaum then well knew, he (Stanley Apfelbaum) had told someone, to wit, agents of the Federal Bureau of Investigation, that he (Stanley Apfelbaum) had lent ten thousand dollars ($10,000) to Harry Brown. At the trial upon the indictment, the Government produced evidence in support of its charges that Apfelbaum’s statements to the grand jury were false. In addition, the Government produced evidence that Apfelbaum knew his statements were false. In proving its case in chief, the Government introduced a series of excerpts taken from the transcript of Apfelbaum’s immunized grand jury testimony. The immunized testimony introduced at trial related to a range of topics relevant to the prosecution’s case. These included inter alia (1) the degree of friendship between Apfelbaum and Brown (App. 96a-98a); (2) the circumstances surrounding Apfelbaum’s discovery of, and visit to, Brown in Florida in 1976 (App. 107a, 110a, 124a-29a); (3) whether Apfel-baum and Brown discussed any loan transactions while in Florida (App. 112a); (4) whether Brown “patted down” Apfelbaum for weapons during his visit, or merely hugged him (App. 113a); (5) Apfelbaum’s denial that he ever engaged in financial transactions with the Chestnut Hill dealership other than a $500 loan (App. 114a); (6) Apfelbaum’s denial that he ever co-signed a loan for Brown (App. 115a); (7) a statement that Apfelbaum was introduced to one John Orem by Harry Brown (App. 116a). Apfelbaum objected to the introduction of this testimony. The jury returned a verdict of guilty on both counts of false swearing. Apfelbaum was sentenced to concurrent terms of two years in prison. His appeal charges, among other alleged errors, that the fifth amendment’s privilege against self-incrimination precluded the admission at trial of his immunized grand jury testimony. It is to that issue that we turn. II. A. The fifth amendment provides that “[n]o person... shall be compelled in any criminal case to be a witness against himself.” The privilege “assures that a citizen is not compelled to incriminate himself by his own testimony,... [and] usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer.” Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972). A competing constitutional interest however is that a duly constituted grand jury, “an integral part of our constitutional heritage” whose “historic office has been to provide a shield against arbitrary or oppressive action,” United States v. Mandujano, 425 U.S. 564, 571, 96 S.Ct. 1768, 1774, 48 L.Ed.2d 212 (1976) (plurality opinion of Burger, C. J.), has the “right to every man’s evidence” to fulfill its historic office. Kastigar v. United States, 406 U.S. at 443, 92 S.Ct. 1653; see United States v. Mandujano, 425 U.S. at 571, 96 S.Ct. 1768. This “right” necessarily includes the authority to compel the attendance and the testimony of witnesses. Id.; United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Kastigar v. United States, 406 U.S. at 443, 96 S.Ct. 1653. Yet the power to compel testimony is necessarily limited by the privilege against self-incrimination. Id. at 346, 92 S.Ct. 1653; see United States v. Mandujano, 425 U.S. at 573, 96 S.Ct. 1768; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). Any testimony compelled in violation of that privilege may, along with its fruits, be suppressed. United States v. Blue, 384 U.S. 251, 255-56, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966). Accommodation of these interests has been achieved by the use of immunity. [It] is the Government’s ultimate tool for securing testimony that would otherwise be protected;... [w]hen granted immunity, a witness once again owes the obligation imposed upon all citizens — the duty to give testimony — since immunity substitutes for the privilege. United States v. Mandujano, 425 U.S. at 576, 96 S.Ct. at 1776 (emphasis added). A grant of “use and fruits” immunity conferred under 18 U.S.C. § 6002 may indeed substitute for the fifth amendment privilege, but only because its protection against the subsequent use of the compelled testimony is coextensive with the scope of the privilege. Kastigar v. United States, 406 U.S. at 453, 96 S.Ct. 1653. That is, the grant of the immunity must, by definition, afford the witness the same protection he would have received had he invoked the privilege. See Kastigar v. United States, 406 U.S. at 462, 96 S.Ct. 1653; United States v. Frumento, 552 F.2d 534, 542-43 (3d Cir. 1977) (en banc); United States v. Kurzer, 534 F.2d 511, 516 (2d Cir. 1976). Because a witness who has properly invoked the privilege may remain silent, see Kastigar v. United States, 406 U.S. at 461, 92 S.Ct. 1653, use and fruits immunity under section 6002 “prohibits the prosecutorial authorities from using the compelled testimony in any respect.” Id. at 453, 92 S.Ct. at 1661 (emphasis in original); accord, United States v. Frumento, 552 F.2d at 543; United States v. Hockenberry, 474 F.2d 247 (3d Cir. 1973). Put another way, invocation of the privilege would have left Apfelbaum in a position where he would not have answered questions, truthfully or falsely, and thus such answers could not have been used against him. In the words of the Constitution, he would not have been compelled to “be a witness against himself.” Perjury however is a violation of an independent criminal statute, and as a practical matter, if immunity constituted a license to lie, the purpose of immunity would be defeated. Thus in order to preserve the integrity of the truth-seeking process, see United States v. Mandujano, 425 U.S. at 576, 96 S.Ct. 1768, 1776; a narrow exception to immunity has been carved out. That exception permits prosecution for perjurious statements made under a grant of immunity. Indeed, the Supreme Court has observed that false swearing “has no place whatever” in the “constitutional process of securing a witness’ testimony.” Id. “The Fifth Amendment privilege does not condone perjury;. [nor] endow the person who testifies with a license to commit perjury.” United States v. Wong, 431 U.S. 174, 178, 97 S.Ct. 1823, 1825, 52 L.Ed.2d 231 (1977) (even the predicament of being forced to choose between an inculpatory truth or falsehood does not justify perjury), quoting Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed. 128 (1911); accord, United States v. Knox, 396 U.S. 77, 82, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969) (furnishing false information on a federal tax return in purported compliance with a statutory requirement is unprivileged); see Harris v. New York, 401 U.S. 222, 225, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971) (voluntary confessions obtained in violation of Miranda may be used to impeach a testifying defendant so as not to “pervert” “the shield provided by Miranda... into a license to use perjury”); cf. United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974) (testimony given by indigent in order to exercise the right to counsel may be effectively compelled and therefore protected from subsequent use, but it may not “be converted into a license for false representations”); Note, Resolving Tensions Between Constitutional Rights: Use Immunity in Concurrent or Related Proceedings, 76 Column.L.Rev. 674 (1976). The sanction of the perjury statute adequately protects against a witness making a mockery of immunity. Our court has accordingly held that although a witness’s false immunized testimony may indeed subject him to a prosecution for perjury, United States v. Frumento, 552 F.2d at 543; United States v. Hockenberry, 474 F.2d at 249, the use of the witness’s immunized testimony is limited only to its use as the basis of a perjury indictment. As we explained in Hockenberry, [t]he immunity statute properly permits prosecution for perjury committed in an otherwise, immunized statement and also the introduction in evidence of so much of the statement as is essential to establishing the corpus delicti. 474 F.2d at 249 (emphasis added). Further than this, however, and consistent with the fifth amendment, the Government may not go. See id.; United States v. Frumento, 552 F.2d at 543 (“[w]e reiterate our adherence to this principle; except as the basis for a prosecution for perjury a witness’s immunized testimony may not be used against him”) (emphasis added). And see Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The introduction of immunized testimony in any subsequent proceeding is thus severely restricted. Other than as the corpus delicti of the indictment, the Government may not use immunized testimony as substantive evidence. United States v. Frumento, 552 F.2d at 541-43; United States v. Hockenberry, 474 F.2d at 249-50. As we have previously explained: “no one [could] clai[m] that [the appellant’s immunized] responses could be used in the government’s case in chief against him at a subsequent trial. Clearly such use would contravene Kastigar.” United States v. Frumento, 552 F.2d at 542. Nor may immunized testimony be used to impeach the testimony of the witness. Id. at 542-43; United States v. Hockenberry, 474 F.2d at 250. Again we have earlier explained: Clearly, if a witness had invoked his Fifth Amendment privilege, the government could have no testimony available with which it might impeach his subsequent sworn statements. Were we to permit impeachment with immunized testimony, we would then be affording the immunized witness something less than his full Fifth Amendment protection. United States v. Frumento, 552 F.2d at 543. B. At Apfelbaum’s trial, the Government introduced in support of its accusations a number of immunized statements made by Apfelbaum. The statements were used to prove a wide variety of substantive matters in the case-in-chief. As we have explained, however, such use cannot be reconciled with Apfelbaum’s privilege against self-incrimination. Nor may such use be harmonized with the scope of immunity afforded Apfelbaum by statute, because as the Supreme Court has declared, use and fruits immunity is, and must necessarily be, co-extensive with the privilege. Kastigar v. United States, 406 U.S. at 453, 96 S.Ct. 1653. Thus, the introduction of immunized statements which did not form the core of, and which were not incorporated in, the indictment violated constitutional dictates, requiring the reversal of Apfelbaum’s conviction. C. The Government however, seeking to justify the introduction of Apfelbaum’s testimony, argues that a witness’s immunized grand jury testimony is nonetheless admissible at a subsequent trial for false swearing where (as is alleged here), the immunized testimony is either “directly related” to the statement in the indictment charged as false, or where the immunized testimony is “not incriminating in itself,” or where the immunized statement is “in all likelihood false.” See Government’s Brief at 11-14. We disagree. We find no support or warrant for reading the “directly related” or “not incriminating in itself” exceptions into our prior case-law. Rather, Frumento and Hockenberry unequivocally prohibit any subsequent use of truthful immunized testimony against its speaker. We of course are bound by this precedent. Even were we not so bound, we would independently reach the same conclusion. As to the Government’s assertion that Apfelbaum’s grand jury testimony was “in all likelihood false,” we acknowledge that if it is false it is unprotected, and therefore would subject Apfelbaum to the risk of a perjury or a false statement prosecution. However until such time as the immunized statements are incorporated into a false swearing indictment as the corpus delicti of the indictment, the statements are unavailable for use by the Government at trial. Permitting the Government unrestricted use of any immunized statements whenever it supposes them to be false would necessarily vitiate the protection afforded by a grant of immunity and would effectively abrogate the immunity agreement. As the Second Circuit Court of Appeals has observed, and as we here hold, the proper remedy in the situation where the Government believes that immunized statements are false is not to disregard the immunity grant but rather is to prosecute the perjurious witness. See United States v. Kurzer, 534 F.2d at 518. But cf. United States v. Tramunti, 500 F.2d 1334 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974). In short, we conclude that the three categories of immunized testimony asserted by the Government to be exceptions to the blanket protection afforded under a grant of immunity are in fact included within the ambit of the fifth amendment's protection. Thus the use of such testimony would trench upon a witness’s fifth amendment privilege. United States v. Frumento, 552 F.2d at 541 — 44; United States v. Hockenberry, 474 F.2d at 249-50; see Kastigar v. United States, 406 U.S. at 453, 96 S.Ct. 1653; cf. United States v. Berardelli, 565 F.2d 24, 28-29 (2d Cir. 1977) (truthful immunized testimony may not be used to prove an earlier or later perjury but untruthful testimony may subject witness to prosecution for perjury); United States v. Moss, 562 F.2d 155, 165 (2d Cir. 1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978) (“acknowledgment by [witness] that [his immunized testimony] was perjurious rendered it usable” in subsequent proceeding); United States v. Housand, 550 F.2d 818, 823 (2d Cir.), cert. denied, 431 U.S. 970 (1977) (truthful, immunized testimony is not admissible to prove perjury); United States v. Patrick, 542 F.2d 381, 385-86 (7th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977) (two immunized statements may not be basis of an inconsistent declaration prosecution under 18 U.S.C. § 1623(c) because “perjury by inconsistent statements must necessarily be shown through the use of the immunized testimony”); United States v. Kurzer, 534 F.2d at 514-18; United States v. Tramunti, 500 F.2d 1334 (2d Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974) (false immunized testimony may be subsequently used for impeachment purposes and to demonstrate prior acts). When applied to Apfelbaum these precepts require that his conviction be reversed, and that a new trial be granted, free from the impermissible use of protected testimony. III. We conclude that there is no merit in Apfelbaum’s other contentions raised on this appeal. Hence they may be disposed of summarily. A. Apfelbaum urges us to go beyond reversing his conviction and a new trial. He contends that we should dismiss his two-count indictment for false swearing. This contention is based upon his argument that it was the same jury which not only heard his immunized testimony but which also returned his indictment for false swearing. He claims that this “same jury” procedure violated his privilege against self-incrimination because the grand jury was necessarily influenced to indict by having previously heard his protected testimony. The short answer to this contention is that the record is deficient of any proofs that the grand jury which indicted Apfelbaum impermissibly relied on his immunized testimony. See Lawn v. United States, 355 U.S. 339, 348-49, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). In light of such a barren record, we decline Apfelbaum’s invitation to address his purported constitutional violation, see United States v. Anzalone, 555 F.2d 317, 319-20 (2d Cir.), aff’d on rehearing, 560 F.2d 492 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978) (rejecting a “same jury” claim); United States v. Camporeale, 515 F.2d 184 (2d Cir. 1975) (same); cf. United States v. Hinton, 543 F.2d 1002, 1010 n. 9 (2d Cir. 1976), cert. denied, 429 U.S. 980, 1051, 1066, 97 S.Ct. 493, 764, 796, 50 L.Ed.2d 589, 767, 783 (1977) (upholding a “same jury” claim when the subsequent indictment charged the substantive crimes under investigation but expressly distinguishing the situation when the subsequent indictment charges false swearing), or his suggested per se rule that “the government should be required to use a different grand jury to indict for perjury or false declarations.” Appellant’s Brief at 35. See also United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974) (“an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence [citation]; or even on the basis of information obtained in violation of a defendant’s fifth amendment privilege against self-incrimination”); Lawn v. United States, 355 U.S. at 349, 78 S.Ct. 311. B. Apfelbaum also claims that the district court improperly instructed the jury as to his knowledge of the falsity of his statements because it used a Mann charge, i. e. one which states that “unless the evidence points otherwise,” a jury may infer that “one intends all the natural and probable consequences of an act.” In United States v. Garrett, 574 F.2d 778 (3d Cir. 1978), cert. denied, 436 U.S. 919, 98 S.Ct. 2265, 56 L.Ed.2d 759 (1978), our court, exercising its supervisory powers, adopted a rule disapproving use of the Mann charge in all trials commencing ninety days after the date of the Garrett decision. Apfelbaum’s new trial, which we have directed, necessarily will begin after that date. Thus, on remand and at re-trial, our Garrett decision will be controlling. C. Next, Apfelbaum argues that the use of certain evidence by the prosecutor, particularly the testimony of one John Orem, violated the rule announced by our court in United States v. Crocker, 568 F.2d 1049 (3d Cir. 1977). He further charges that the district court abused its discretion when it ruled that it would permit prospective character witnesses intending to testify favorably to the defendant’s reputation for veracity to be cross-examined with reference to a newspaper article which implicated Ap-felbaum’s honesty. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Fed.R.Ev. 608(b). Inasmuch as we have ordered a new trial, it would be inappropriate for us to anticipate and rule upon claims which challenge the admissibility of evidence which has not as yet been, and may never be, introduced. We will reverse Apfelbaum’s judgment of conviction, and remand for a new trial consistent with this opinion. . Immunity had been granted in accordance with 18 U.S.C. § 6002, quoted in full in n. 8 infra. . Harry Brown was the general manager of Chestnut Hill who was subsequently convicted of collecting extensions of credit by extortionate means (in violation of 18 U.S.C. § 894); mail fraud (18 U.S.C. § 1341); racketeering (18 U.S.C. § 1962); and conspiracy (18 U.S.C. § 371). . 18 U.S.C. § 1623 provides in pertinent part: (a) Whoever under oath... in any proceeding before... [a] grand jury of the United States knowingly makes any false material declaration... shall be fined not more than $10,000 or imprisoned for not more than five years, or both. . The indictment (Indictment No. 77-317) is reproduced in full at App. 14a-25a. Apfelbaum had been the subject of an earlier indictment which charged three counts of violating 18 U.S.C. § 1623. The district court dismissed that indictment however because each of the three counts failed to allege sufficiently why the allegedly false statements were material to the grand jury investigation. See United States v. Slawik, 548 F.2d 75 (3d Cir. 1977). And see United States v. Tonelli, 577 F.2d 194 (3d Cir. 1978). Apfelbaum was then re-indicted under Indictment No. 77-317 which charged two counts of violating § 1623. As explained by Apfelbaum: The substantial difference between the first and second indictments was the allegations regarding materiality. The new indictment spelled out in more detail the subject matter of the grand jury investigation and how Mr. Apfelbaum’s false statements tended to influence or impede the grand jury’s investigation. Appellant’s Brief at 15. Apfelbaum therefore does not challenge on appeal the materiality of the charges contained in Indictment No. 77-317. . That evidence demonstrated that Apfelbaum did indeed try to find Harry Brown in Florida in December, 1975, but could not locate him. Further, the evidence showed that on March 16, 1976, Apfelbaum told the FBI agents in an interview that he tried to locate Brown in Florida because he had loaned $10,000 to Brown in an “extremely complicated arrangement” and wanted to recover his money. . In its brief the Government does not dispute that the excerpts of grand jury testimony, as noted above, were introduced at trial. . Although Apfelbaum objected to the testimony summarized in text above, he did not object to any testimony reproduced in the indictment, nor to the admission at trial of other immunized grand jury testimony. The Government has not raised, nor has it argued, whether this failure to object constituted a waiver of any defect in the indictment, or a waiver which would permit the entire grand jury testimony transcript to be introduced at trial, despite the partial objection. See Fed.R.Crim.P. 12. See generally, Rogers v. United States, 340 U.S. 367, 372-75, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951) (“where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details”); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896). See also In re Neff, 206 F.2d 149 (3d Cir. 1953). In light of the Government’s failure to raise this issue, we do not address it here. Stotler & Co., Inc. v. Amstar Corp., 579 F.2d 13, at 20 (3d Cir. 1978) (opinion sur petition for panel rehearing); see Singleton v. Wulff, 428 U.S. 106, 120, 96 S

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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, Appellant, v. Roger F. VORACHEK, Joseph W. Vorachek, Estate of Emmett J. Vorachek, Georgette I. Vorachek, Laverne V. Gaarder, Marjorie W. Vorachek, Wilmer J. Vorachek, James H. Vorachek, Keith J. Vorachek, and North Dakota State Tax Commissioner, Appellees. No. 77-1256. United States Court of Appeals, Eighth Circuit. Submitted Aug. 19, 1977. Decided Oct. 7, 1977. Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, Leonard J. Henzke, Jr., Michael J. Roach, Attys., Tax Div., Dept. of Justice, Washington, D. C., Harold O. Bullis, U. S. Atty., Fargo, N. D., for appellees. Roger F. Vorachek, Lankin, for appellant. Before GIBSON, Chief Judge, VOGEL, Senior Circuit Judge, and BRIGHT, Circuit Judge. PER CURIAM. This is an appeal by the government from a district court judgment in its favor against Appellee Roger F. Vorachek for unpaid tax liability for the tax years 1965, 1966, and 1968 to 1974, and against Appel-lee Maria Vorachek for the tax years 1973 and 1974. The jurisdiction of this court is invoked under 28 U.S.C. § 1291. The case began in February 1975, when the government brought an action in district court to reduce to judgment federal income tax assessments which it had made against Roger Vorachek for the tax years 1965, 1966 and 1968 to 1972. Vorachek responded with a motion to dismiss the tax assessments in which he alleged that he had a claim against the government, based on an unauthorized release of medical records, which exceeded any tax due. In preparation for the action, the government filed a notice to take the deposition of Vorachek. At the deposition, Vorachek appeared, identified himself, and stated his employment. Thereafter, he refused to answer all questions concerning his assets, his income tax returns, and his income and deductions for the tax years in issue. On May 21, 1975, the government moved for summary judgment for the unpaid balance due, $21,539.79, for the tax years 1965, 1966, and 1968 to 1972. The motion was granted by an order of the district court entered July 11, 1975. On July 22, 1974, tax assessments were entered against Roger and Maria Vorachek for the tax year 1973. On June 2,1975, tax assessments were entered against the Vora-cheks for the tax year 1974. On December 15, 1975, the government filed a motion to amend its prior complaint to include the unpaid balance due, $3,834.00, on those assessments. The motion was granted on January 6, 1976, and the government’s amended complaint was filed on the same day. On June 9, 1976, the government moved for a summary judgment on the amended complaint. Roger Vorachek requested an extension of time in order to file response to the government’s motion and the request was granted. He did not file a response. Accordingly, the district court granted the government’s motion for summary judgment in an order filed September 2, 1976. On August 16, 1976, supplemental tax assessments in the amount of $6,194.52 were entered against the Voracheks for the tax year 1973. On July 26, 1976, supplemental tax assessments were entered against the Voracheks in the amount of $10,829.35 for the tax year 1974. The supplemental assessments were made pursuant to 26 U.S.C. § 6204(a). On August 23,1976, a tax assessment of $7,163.78 was entered against the Voracheks for the tax year 1975. The government alleges that the Internal Revenue Service did not inform the Department of Justice of its intention to file the supplemental assessments for the tax years 1973 and 1974 until after the government’s motion for summary judgment had been granted. On November 8, 1976, the government moved for an order withdrawing the district court’s order of September 2,1976, and for leave to file a supplemental complaint to include the unpaid balance due, $28,-022.13, for the supplemental assessments for 1973 and 1974 and the assessment for 1975. The district court denied the government’s motion and entered a final judgment, pursuant to Rule 54(b) of the Fed.R. Civ.P., based on the summary judgment granted on September 2,1976. The government appeals from this judgment, urging that the district court erred in denying its motions to vacate judgment and to file a supplemental complaint. The government entitled its motion as one “for leave of court to supplement complaint.” The distinction between an amended pleading under Rule 15(a) and a supplemental pleading under Rule 15(d) of the Fed.R.Civ.P. has been stated as follows: An amended pleading is designed to include matters occurring before the filing of the bill but either overlooked or not known at the time. A supplemental pleading, however, is designed to cover matters subsequently occurring but pertaining to the original cause. Berssenbrugge v. Luce Mfg. Co., 30 F.Supp. 101 (W.D.Mo.1939). See also Slavenburg Corporation v. Boston Insurance Company, 30 F.R.D. 123 (S.D.N.Y.1962); Randolph v. Missouri-Kansas-Texas R. Co., 78 F.Supp. 727, 728 (W.D.Mo.1948). While the tax assessments in the government’s proposed “supplement to the complaint” occurred subsequent to the complaint to be amended, their significance lies in tax events which allegedly occurred prior to the complaint but of which the government was not cognizant at the time. Therefore, Rule 15(a) was applicable. Fed.R.Civ.P. 15(a) provides as to amending pleadings “by leave of court” that, “leave shall be freely given when justice so requires.” In commenting on the application of Rule 15(a), the Supreme Court, in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), stated: Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded. See generally, 3 Moore, Federal Practice (2d ed. 1948), §§ 15.08, 15.10. If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously a 1- lowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought should, as the rules require, be “freely given." Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules. (Emphasis supplied.) The only reason given by the district court for denying the government’s motions was that by granting them it would deprive the Voracheks of a possible defense of res judicata in a subsequent independent action brought by the government to collect the supplemental assessments for the tax years 1973 and 1974. We disagree with the district court, for a taxpayer is not entitled to a windfall at the public’s expense by a tax collector’s error which in no way is shown to prejudice a taxpayer. The only other legitimate hardship that we can see accruing to the taxpayers in allowing the amended complaint is delay, as the government’s request to correct its complaint came some eleven months after its prior complaint was filed. However, the taxpayer does not claim that he was prejudiced by the delay, or that the delay was due to any bad faith or dilatory motive on the part of the government. Nor do we find any evidence from the record that such was the case. We see no prejudice accruing to the taxpayers as a result of granting the government’s request to correct its pleading. No reason appears why the formality and expense of starting a new action should be required. Therefore, we believe that in light of the Supreme Court’s holding in Foman, supra, and the provisions of Fed.R. Civ.P. 15(a), the district court was required to set aside the judgment and permit the filing of a corrected complaint. We reverse and remand the case for further proceedings consistent with this opinion. . The erroneous characterization of the corrected pleading as a “supplement to the complaint” is immaterial. See United States v. Reiten, 313 F.2d 673, 674 (9th Cir. 1963); United States v. Russell, 241 F.2d 879, 882 (1st Cir. 1957).

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

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

In re D. C. HUMAN RELATIONS COMMISSION v. NATIONAL GEOGRAPHIC SOCIETY, Appellant. No. 71-1248. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 30, 1972. Decided Feb. 13, 1973. Arthur B. Hanson, Washington, D. C., with whom W. Frank Stickle, Jr., and Ralph N. Albright, Jr., Washington, D. C., were on the brief, for appellant. Ted D. Kuemmerling, Asst. Corp. Counsel for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee. Before McGOWAN and MacKINNON, Circuit Judges, and WYZANSKI, Senior United States District Judge for the District of Massachusetts. Sitting by designation pursuant to 28 U.S.C. § 294(d). WYZANSKI, District Judge: December 27, 1968 the District of Columbia Human Relations Commission served upon the National Geographic Society a complaint alleging that the Commission had reasonable cause to believe that the Society was “discriminating against minority groups in its recruiting and hiring methods in ways which tend to deprive them of equal employment opportunities and such methods are in violation of Article 47 of the Police Regulations of the District of Columbia.” September 4, 1970 the Commission, by amendment to the complaint, particularized the alleged violation. November 24, 1970 the Commission served upon the Society a subpena duces tecum to produce twelve categories of information as follows: 1. All employment applications received in the last six months, including, but not limited to, those for applicants hired, rejected or pending. 2. A payroll list or printout of all employees on staff as of the first pay period in October, including, but not limited to, record of gross salary earned by each employee. 3. Job descriptions for all jobs, including, but not limited to, salary levels for each job. 4. Description of qualifications required for all jobs, including, but not limited to, educational requirements. 5. Copies of all employment tests administered, test manuals and copies of any validation studies made in connection therewith. 6. Copies of all correspondence with any recruitment sources utilized during the past year. 7. A copy of each employment application form used. 8. A copy of all personnel policies promulgated or circulated to employees. 9. An organization chart indicating number of employees in each organizational unit. 10. A copy of any affirmative action plan, filed with any governmental agency. 11. All records relative to the establishment, scheduling and routing of the employees’ bus service to the Gaithersburg facility. 12. Copies of any and all union contracts affecting employees. The Society moved the District Court to quash the subpena. February 22, 1971 the District Court, without opinion, entered an order denying the motion to quash. The Society appealed. Appellant’s argument has five points. 1. The Society contends that Article 47 of the Police Regulations of the District of Columbia, pursuant to which the Commission acted, was not published in the compilation allegedly required by the District of Columbia Administrative Procedure Act, and for that reason was not in effect at the time the subpena was issued. There is no merit to the point. In the July 27, 1970 Special Edition of the District of Columbia Register the District Government incorporated in the District of Columbia Register the District of Columbia Police Regulations. Such regulations were and are available for purchase at the District of Columbia Publications Office. The Register thus adequately informed its readers of the full text. Congress never contemplated more, for D.C.Code, § 1-1504(a) (Supp. IV, 1971) provides that although in general the Register shall set forth the full text, “the Commissioner may in his discretion omit from the District of Columbia Register rules the publication of which would be unduly cumbersome, expensive, or otherwise inexpedient, if, in lieu of such publication, there is included in the Register a notice stating the general subject matter of any rule so omitted and stating the manner in which a copy of such rule may be obtained.” Full compliance with the conditions of this exception is not doubtful. But it is implausibly argued that the exception does not apply to regulations, such as these, which antedated the October 21, 1969 effective date of D.C.Code § 1-1507 (Supp. IV, 1971). There is nothing in the language or policy of the act to support such an argument, which seems to us frivolous, especially since the Society admits that without difficulty or delay it immediately procured the relevant regulations when it wanted them. 2. Next, the Society argues that the complaint, the amendment, and the subpena are invalid because the Commission failed to promulgate rules of procedure as required by the District of Columbia Administrative Procedure Act. However, April 15, 1971 the Commission promulgated and published rules of procedure. See 8 D.C.R.R. 1.1 et seq. The Society has not been prejudiced by the delay. It now knows all that it needs to learn of the procedure in order to answer the subpena. Even if we assume that such knowledge was a prerequisite to the enforcement, by a contempt proceeding, of the District Court’s order, it certainly was not a prerequisite to the issuance of the subpena or to the entry of the District Court’s order. 3. Then, the Society claims that neither the complaint nor the amendment validly alleges a violation of Article 47 of the Police Regulations because the pleadings are not sufficiently specific. As Justice Frankfurter would have said, we have outgrown the formalism of Baron Parke. Modern cases fully support the sketchy nature of the instant complaint and amendment. Graniteville Co. (Sibley Div.) v. Equal Employ. Op. Com’n, 438 F.2d 32 (4th Cir., 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir., 1970); Bowaters Southern Paper Corp. v. Equal Employ. Op. Com’n, 428 F.2d 799 (6th Cir., 1970); United States v. Gustin-Bacon Div. Certain-Teed Prod., 426 F.2d 539 (10th Cir., 1970). 4. Penultimately, the Society contends that the subpena is invalid because it was issued by the Executive Director of the Commission to whom the issuing power was not validly delegated. Here again the appellant has presented a sleeveless argument. The subpena states that it was issued under the authority granted by D.C.Code, § 1-237 (1967). That statute authorized the former District of Columbia Board of Commissioners to issue subpenas. As of June 10, 1965, when the Board of Commissioners enacted Article 47 of the D.C. Police Regulations, heretofore mentioned, they specifically provided that defendant (then operating under the name of “Commissioners Council on Human Relations”) “and its Executive Director shall possess the powers vested in the Commissioners by that Act.” Authorization for the aforesaid delegation is conferred by Reorganization Plan 5 of 1952. (66 Stat. 824, D.C.Code, Title I, Appendix, 1967 ed.). 5. The Society’s final point is that the District Court should have quashed the subpena because it is overly broad and oppressive, requires the Society to prepare and compile information, and demands items irrelevant to the complaint. We agree that on the record as it stands there is some merit to this point. We have no indication that either of the parties offered detailed argument to the District Court on any of the twelve categories of items to be produced, nor attempted to assess the relevance or the burden of the items. So far as appears, the parties treated the Court like the daysman on the shield of Achilles in the Iliad, that is, as an arbitrator limited to choosing between either one of two extreme positions but not free to form a wholly informed and truly independent judgment of the relevance of the items to the controversy and of the burdensomeness of compliance with the subpena. We do not suggest, that the District Court should be placed in the laborious position of ruling, unasked, upon each detail of the subpena as it would rule upon a question to which objection was taken at a trial. Yet the procedure here followed in the District Court seems to us inconsistent with the brooding omnipresence of the Fourth Amendment and with the growing recognition of the wisdom of Justice Brandeis’ remark that the Constitution “conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928). Without suggesting that the Commission here was engaged in a fishing expedition or in a search pursuant to an ulterior, unacknowledged purpose, and while recognizing how much need there is in a matter of this kind for background and statistical data and how thorough must be the scrutiny of many items which in their individual aspect seem insignificant but which in their totality reveal a pattern, we are concerned lest the judiciary lend itself to rubber-stamping the demands of administrative agencies which naturally enough have a zeal and sense of righteousness commensurate with the importance of their mission and the difficulties of its accomplishment. What we deem appropriate is for the Commission, when challenged, to prove to the trial court by argument, not necessarily nor usually by evidence, that its demands are proper and necessary. The burden of persuasion rests upon it. And the trial court has the duty, in a contested case, of making explicit its rulings, though, of course they may have an orotund generality, as is usual in discovery proceedings. We conclude that in this case a remand to permit this procedure is required because at our bar the Corporation Counsel representing the Commission admitted that paragraph 11 of the subpena should be struck, and that the subpena does not make it clear that it is limited, as apparently intended, to positions within the District of Columbia. Furthermore, we are not clear, and our confusion seemed to be shared by counsel, as to what is the starting date of the information sought. In the event the parties are unable to agree on a reasonable starting date for the information sought, the court shall fix the date. Whatever shape the subpena may have after it has been suitably tailored, it ought to bear the date of the final version. 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 "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?

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

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

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

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

Mrs. Guilberta Dakin MAGGIORE et al., Plaintiffs-Appellants, v. J. C. BRADFORD et al., Defendants-Appellants. Nos. 14790, 14823. United States Court of Appeals Sixth Circuit. Dec. 4, 1962. David Keeble, of Hooker, Keeble, Dodson & Harris, and W. Raymond Denney, of Denney, Leftwich & Osborn, Nashville, Tenn., Z. T. Osborn, Jr., E. J. Walsh, Nashville, Tenn., on brief, for plaintiffs-appellants. William Waller, of Waller, Davis & Lansden, Nashville, Tenn., Clarence Evans, Cecil Sims, Nashville, Tenn., on the brief; Farris, Evans & Evans, Bass, Berry & Sims, Nashville, Tenn., of counsel, for defendants-appellants. Before CECIL, Chief Judge, WEICK, Circuit Judge, and TAYLOR, District Judge. WEICK, Circuit Judge. The suit in the District Court was a stockholders derivative action. It was brought by minority stockholders of Phillips & Buttorff Corporation, a Tennessee corporation, *to rescind a transaction whereby the controlling shareholders of P & B (hereinafter referred to as Comer Group) financed the purchase of their stock with funds derived from their sale to P & B of 60,000 shares of an unlisted stock owned by them in Wm. R. Moore Dry Goods Company of Memphis, Tennessee for $2,700,000. The complaint alleged conspiracy and fraud and charged a violation of the fiduciary duty owing by controlling shareholders. It averred that the assets of P & B were wrongfully depleted by the transaction to the detriment of P & B and the minority shareholders. The transaction complained of was handled in a somewhat circuitous manner. Brokers, who were made defendants in the action, acquired the shares of P & B on the order of Guy L. Comer with temporary financing. The shares were placed in the name of Church of Christ Foundation, a corporation not for profit, of which Mr. Comer was a trustee. Woodstock Corporation, a Comer company, with the authority of the Foundation and its subsidiary, First National Company, gave P & B an option to purchase the Moore shares at $45.00 a share. P & B loaned $2,000,000 to Woodstock secured by a pledge of the Moore stock, which pledge was made by permission of the owners. The brokers through Woodstock gave First National Company an option to purchase 75,721 shares of the common stock of P & B, which carried the control of P & B. First National Company assigned its option on the P & B stock to the Foundation which exercised it. P & B exercised its option and purchased the Moore shares. As of December 31, 1955 P & B had cash on hand of $953,335.53 and investments in government and other marketable securities totaling about $2,000,-000. In order to make the loan to Woodstock and purchase the Moore stock, P & B liquidated its securities and borrowed additional money from a bank. The Comer Group had previously acquired the Moore shares by the use of Moore’s assets and the shares were placed in the name of the Foundation. The case pended in the District Court for about ten months. Discovery proceedings had been taken. On October 15, 1958, which was before the case had been assigned for trial, P & B sold the Moore stock back to the Foundation for $45.00 a share. The District Court impressed a lien on the proceeds of sale for attorneys fees for plaintiffs’ counsel. Plaintiffs then filed an amended complaint seeking to recover from the officers and directors of P & B operating losses sustained by P & B before the transaction was rescinded. The only questions left for determination by the District Court were as to the allowance of attorneys fees to counsel for plaintiffs, the liability of the officers and directors of P & B for the operating losses sustained by P & B, and the appointment of a receiver. The District Judge considered the matter of allowance of attorneys fees on the basis of whether the plaintiffs, as minority shareholders, were entitled to relief, rescinding the transaction. On this proposition the controlling evidence was uncontroverted. It remained only for the court to determine the legal consequences. The District Judge was of the view that this evidence did not prove conspiracy or fraud. He found that the price paid for the Moore shares was not unfair or oppressive either to P & B or its minority shareholders. He held that the evidence did not show that the Comer Group actually exercised control over the directors and officers of P & B even though they had the right to control; that the operating losses were not attributable in whole or part to the Moore purchase. The court dissolved the attorneys’ lien and dismissed the complaint. On the issue whether the Comer Group exercised control, the transaction speaks for itself. The officers and directors of P & B entered into the transaction without making a proper investigation and without knowledge even as to who was behind the deal. They liquidated all the marketable securities of the company and made a loan to a corporation which had no assets other than the Moore stock. Looking through the corporate maze, the deal was simply one whereby the majority shareholders were using corporate assets to finance their purchase of the stock. It is clear to us that it was not an arms length business transaction, but one which was entered into by a person dealing with himself. Without going into further detail, we think that, at least,' constructive fraud was shown and that the District Court was mistaken in not so finding. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. It is well-settled that dominant or controlling shareholders who exercise control over a corporation are fiduciaries. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 250 U.S. 483, 39 S. St. 533, 63 L.Ed. 1099; Seagrave Corp. v. Mount, 6 Cir., 212 F.2d 389; Dale v. Thomas H. Temple Company, 186 Tenn. 69, 208 S.W.2d 344. Some authorities hold that transactions between persons in control and the corporation are illegal and may be set aside irrespective of the fairness thereof. Gillespie v. Branham, 47 Tenn.App. 234, 337 S.W.2d 689, cert. denied by the Supreme Court of Tennessee on December 12, 1959; Attalla Iron Ore Company v. Virginia Iron, Coal & Coke Co., 111 Tenn. 527, 77 S.W. 774. If the transaction is regarded merely as one subject to “close scrutiny,” in our judgment, it cannot withstand the light of day. Stripping P & B of its cash and marketable securities and requiring it to borrow money so that the Comer Group could finance their controlling shares certainly operated to the prejudice of P & B and its minority shareholders. The evidence clearly disclosed the plan to acquire the control of P & B by the use of its assets. The defendants all participated in carrying it out. A conspiracy is an agreement to perform an illegal act. It may be shown by direct as well as circumstantial evidence. In our judgment, it was clearly established by the evidence. It is no defense that plaintiffs did not exhaust their corporate remedies. Since P & B was under the control of the Comer Group, it would have been futile to resort to it. The fact that the case pended in the District Court for ten months before the rescission was made is pretty good proof of the unavailability of any adequate corporate remedy. Under the circumstances resort to such remedies was excused. Akin v. Mackie, 203 Tenn. 113, 310 S.W.2d 164; Peeler v. Luther, 175 Tenn. 454, 135 S.W.2d 926. The District Court did not consider the right to allowance of attorneys’ fees on the basis of the liability of defendants to rescind the transaction and the case must be remanded for that purpose. The fact that'the defendants rescinded the transaction before the court had an opportunity to pass upon the merits of the case would not, in our judgment, defeat the right to compensation. The rescission, however, without the necessity of a trial must be taken into account in fixing fees along with other relevant factors. A question was raised as to liability for interest on $2,700,000. We think it should be computed at the legal rate from the date of the commencement of this action (January 16, 1958) to the date of rescission (October 15,1958) less credits for interest received by P & B from Woodstock Corporation and less dividends received by P & B from the Moore stock during said period. Dale v. Thomas H. Temple Co., 186 Tenn. 69, 208 S.W.2d 344. Relative to the operating losses, the District Court found as a fact that these were not attributable to the purchase of the Moore stock. In our judgment, this finding was not clearly erroneous. Nor do we find any error in the refusal of the court to appoint a receiver for P & B, or in denying plaintiffs’ motion under Rule 60(b). The judgment of the District Court is reversed in Case No. 14790 and the cause remanded for further proceedings in conformity with this opinion. The judgment in Case No. 14823 is affirmed. . Phillips & Buttorff Corporation will be referred to as P & B. . Wm. It. Moore Dry Goods Company will be referred to as Moore,

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

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

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

Rose Mary KNICK, PETITIONER v. TOWNSHIP OF SCOTT, PENNSYLVANIA, et al. No. 17-647 Supreme Court of the United States. Argued October 3, 2018 Reargued January 16, 2019 Decided June 21, 2019 J. David Breemer, Sacramento, CA, for Petitioner. Teresa Ficken Sachs, Philadelphia, PA, for Respondents. Solicitor General Francisco for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner. J. David Breemer, Meriem L. Hubbard, Brian T. Hodges, Christina M. Martin, Pacific Legal Foundation, Sacramento, CA, for Petitioner. Matthew Littleton, David T. Goldberg, Donahue, Goldberg & Weaver, LLP, Washington, DC, Teresa Ficken Sachs, Mark J. Kozlowski, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Respondents. Chief Justice ROBERTS delivered the opinion of the Court. The Takings Clause of the Fifth Amendment states that "private property [shall not] be taken for public use, without just compensation." In Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights-and thus cannot bring a federal takings claim in federal court-until a state court has denied his claim for just compensation under state law. The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a "ripe" federal takings claim in federal court. See id., at 194, 105 S.Ct. 3108. But as we later held in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005), a state court's resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning. The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees "a federal forum for claims of unconstitutional treatment at the hands of state officials," and the settled rule is that "exhaustion of state remedies 'is not a prerequisite to an action under [ 42 U.S.C.] § 1983.' " Heck v. Humphrey, 512 U.S. 477, 480, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (quoting Patsy v. Board of Regents of Fla., 457 U.S. 496, 501, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) ). But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court. We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under § 1983 at that time. I Petitioner Rose Mary Knick owns 90 acres of land in Scott Township, Pennsylvania, a small community just north of Scranton. Knick lives in a single-family home on the property and uses the rest of the land as a grazing area for horses and other farm animals. The property includes a small graveyard where the ancestors of Knick's neighbors are allegedly buried. Such family cemeteries are fairly common in Pennsylvania, where "backyard burials" have long been permitted. In December 2012, the Township passed an ordinance requiring that "[a]ll cemeteries... be kept open and accessible to the general public during daylight hours." The ordinance defined a "cemetery" as "[a] place or area of ground, whether contained on private or public property, which has been set apart for or otherwise utilized as a burial place for deceased human beings." The ordinance also authorized Township "code enforcement" officers to "enter upon any property" to determine the existence and location of a cemetery. App. 21-23. In 2013, a Township officer found several grave markers on Knick's property and notified her that she was violating the ordinance by failing to open the cemetery to the public during the day. Knick responded by seeking declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property. Knick did not seek compensation for the taking by bringing an "inverse condemnation" action under state law. Inverse condemnation is "a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant." United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980) (quoting D. Hagman, Urban Planning and Land Development Control Law 328 (1971)). Inverse condemnation stands in contrast to direct condemnation, in which the government initiates proceedings to acquire title under its eminent domain authority. Pennsylvania, like every other State besides Ohio, provides a state inverse condemnation action. 26 Pa. Cons. Stat. § 502(c) (2009). In response to Knick's suit, the Township withdrew the violation notice and agreed to stay enforcement of the ordinance during the state court proceedings. The court, however, declined to rule on Knick's request for declaratory and injunctive relief because, without an ongoing enforcement action, she could not demonstrate the irreparable harm necessary for equitable relief. Knick then filed an action in Federal District Court under 42 U.S.C. § 1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment. The District Court dismissed Knick's takings claim under Williamson County because she had not pursued an inverse condemnation action in state court. 2016 WL 4701549, *5-*6 (MD Pa., Sept. 8, 2016). On appeal, the Third Circuit noted that the ordinance was "extraordinary and constitutionally suspect," but affirmed the District Court in light of Williamson County. 862 F.3d 310, 314 (2017). We granted certiorari to reconsider the holding of Williamson County that property owners must seek just compensation under state law in state court before bringing a federal takings claim under § 1983. 583 U.S. ----, 138 S.Ct. 1262, 200 L.Ed.2d 416 (2018). In Williamson County, a property developer brought a takings claim under § 1983 against a zoning board that had rejected the developer's proposal for a new subdivision. Williamson County held that the developer's Fifth Amendment claim was not "ripe" for two reasons. First, the developer still had an opportunity to seek a variance from the appeals board, so any taking was therefore not yet final. 473 U.S. at 186-194, 105 S.Ct. 3108. Knick does not question the validity of this finality requirement, which is not at issue here. The second holding of Williamson County is that the developer had no federal takings claim because he had not sought compensation "through the procedures the State ha[d] provided for doing so." Id., at 194, 105 S.Ct. 3108. That is the holding Knick asks us to overrule. According to the Court, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation." Id., at 195, 105 S.Ct. 3108. The Court concluded that the developer's federal takings claim was "premature" because he had not sought compensation through the State's inverse condemnation procedure. Id., at 197, 105 S.Ct. 3108. The unanticipated consequences of this ruling were not clear until 20 years later, when this Court decided San Remo. In that case, the takings plaintiffs complied with Williamson County and brought a claim for compensation in state court. 545 U.S. at 331, 125 S.Ct. 2491. The complaint made clear that the plaintiffs sought relief only under the takings clause of the State Constitution, intending to reserve their Fifth Amendment claim for a later federal suit if the state suit proved unsuccessful. Id., at 331-332, 125 S.Ct. 2491. When that happened, however, and the plaintiffs proceeded to federal court, they found that their federal claim was barred. This Court held that the full faith and credit statute, 28 U.S.C. § 1738, required the federal court to give preclusive effect to the state court's decision, blocking any subsequent consideration of whether the plaintiff had suffered a taking within the meaning of the Fifth Amendment. 545 U.S. at 347, 125 S.Ct. 2491. The adverse state court decision that, according to Williamson County, gave rise to a ripe federal takings claim simultaneously barred that claim, preventing the federal court from ever considering it. The state-litigation requirement relegates the Takings Clause "to the status of a poor relation" among the provisions of the Bill of Rights. Dolan v. City of Tigard, 512 U.S. 374, 392, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under § 1983, but the state-litigation requirement "hand[s] authority over federal takings claims to state courts." San Remo, 545 U.S. at 350, 125 S.Ct. 2491 (Rehnquist, C.J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights. III A Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: "[N]or shall private property be taken for public use, without just compensation." It does not say: "Nor shall private property be taken for public use, without an available procedure that will result in compensation." If a local government takes private property without paying for it, that government has violated the Fifth Amendment-just as the Takings Clause says-without regard to subsequent state court proceedings. And the property owner may sue the government at that time in federal court for the "deprivation" of a right "secured by the Constitution." 42 U.S.C. § 1983. We have long recognized that property owners may bring Fifth Amendment claims against the Federal Government as soon as their property has been taken. The Tucker Act, which provides the standard procedure for bringing such claims, gives the Court of Federal Claims jurisdiction to "render judgment upon any claim against the United States founded either upon the Constitution" or any federal law or contract for damages "in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). We have held that "[i]f there is a taking, the claim is 'founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine." United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). And we have explained that "the act of taking" is the "event which gives rise to the claim for compensation." United States v. Dow, 357 U.S. 17, 22, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been "paid contemporaneously with the taking"-that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time. Id., at 17, 54 S.Ct. 26 (quoting Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 306, 43 S.Ct. 354, 67 L.Ed. 664 (1923) ). We rejected the view of the lower court that a property owner is entitled to interest only when the government provides a particular remedy-direct condemnation proceedings-and not when the owner brings a takings suit under the Tucker Act. "The form of the remedy d[oes] not qualify the right. It rest[s] upon the Fifth Amendment." 290 U.S. at 16, 54 S.Ct. 26. Jacobs made clear that, no matter what sort of procedures the government puts in place to remedy a taking, a property owner has a Fifth Amendment entitlement to compensation as soon as the government takes his property without paying for it. Whether the government does nothing, forcing the owner to bring a takings suit under the Tucker Act, or whether it provides the owner with a statutory compensation remedy by initiating direct condemnation proceedings, the owner's claim for compensation "rest[s] upon the Fifth Amendment." Although Jacobs concerned a taking by the Federal Government, the same reasoning applies to takings by the States. The availability of any particular compensation remedy, such as an inverse condemnation claim under state law, cannot infringe or restrict the property owner's federal constitutional claim-just as the existence of a state action for battery does not bar a Fourth Amendment claim of excessive force. The fact that the State has provided a property owner with a procedure that may subsequently result in just compensation cannot deprive the owner of his Fifth Amendment right to compensation under the Constitution, leaving only the state law right. And that is key because it is the existence of the Fifth Amendment right that allows the owner to proceed directly to federal court under § 1983. Williamson County had a different view of how the Takings Clause works. According to Williamson County, a taking does not give rise to a federal constitutional right to just compensation at that time, but instead gives a right to a state law procedure that will eventually result in just compensation. As the Court put it, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation." 473 U.S. at 195, 105 S.Ct. 3108. In the absence of a state remedy, the Fifth Amendment right to compensation would attach immediately. But, under Williamson County, the presence of a state remedy qualifies the right, preventing it from vesting until exhaustion of the state procedure. That is what Jacobs confirmed could not be done. Just two years after Williamson County, in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987), the Court returned to the understanding that the Fifth Amendment right to compensation automatically arises at the time the government takes property without paying for it. Relying heavily on Jacobs and other Fifth Amendment precedents neglected by Williamson County, First English held that a property owner is entitled to compensation for the temporary loss of his property. We explained that "government action that works a taking of property rights necessarily implicates the 'constitutional obligation to pay just compensation.' " 482 U.S. at 315, 107 S.Ct. 2378. Because of "the self-executing character" of the Takings Clause "with respect to compensation," a property owner has a constitutional claim for just compensation at the time of the taking. Ibid. (quoting 6 P. Nichols, Eminent Domain § 25.41 (3d rev. ed. 1972)). The government's post-taking actions (there, repeal of the challenged ordinance) cannot nullify the property owner's existing Fifth Amendment right: "[W]here the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation." 482 U.S. at 321, 107 S.Ct. 2378. In holding that a property owner acquires an irrevocable right to just compensation immediately upon a taking, First English adopted a position Justice Brennan had taken in an earlier dissent. See id., at 315, 318, 107 S.Ct. 2378 (quoting and citing San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 654, 657, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting)). In that opinion, Justice Brennan explained that "once there is a 'taking,' compensation must be awarded" because "[a]s soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation." Id., at 654, 101 S.Ct. 1287. First English embraced that view, reaffirming that "in the event of a taking, the compensation remedy is required by the Constitution." 482 U.S. at 316, 107 S.Ct. 2378 ; see ibid., n. 9 (rejecting the view that "the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government" (quoting Brief for United States as Amicus Curiae 14)). Compensation under the Takings Clause is a remedy for the "constitutional violation" that "the landowner has already suffered" at the time of the uncompensated taking. San Diego Gas & Elec. Co., 450 U.S. at 654, 101 S.Ct. 1287 (Brennan, J., dissenting); see First English, 482 U.S. at 315, 107 S.Ct. 2378. A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place. The violation is the only reason compensation was owed in the first place. A bank robber might give the loot back, but he still robbed the bank. The availability of a subsequent compensation remedy for a taking without compensation no more means there never was a constitutional violation in the first place than the availability of a damages action renders negligent conduct compliant with the duty of care. In sum, because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time. Just as someone whose property has been taken by the Federal Government has a claim "founded... upon the Constitution" that he may bring under the Tucker Act, someone whose property has been taken by a local government has a claim under § 1983 for a "deprivation of [a] right[ ]... secured by the Constitution" that he may bring upon the taking in federal court. The "general rule" is that plaintiffs may bring constitutional claims under § 1983 "without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available." D. Dana & T. Merrill, Property: Takings 262 (2002); see McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U.S. 668, 672, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963) (observing that it would defeat the purpose of § 1983 "if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court"); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ("The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked."). This is as true for takings claims as for any other claim grounded in the Bill of Rights. B Williamson County effectively established an exhaustion requirement for § 1983 takings claims when it held that a property owner must pursue state procedures for obtaining compensation before bringing a federal suit. But the Court did not phrase its holding in those terms; if it had, its error would have been clear. Instead, Williamson County broke with the Court's longstanding position that a property owner has a constitutional claim to compensation at the time the government deprives him of his property, and held that there can be no uncompensated taking, and thus no Fifth Amendment claim actionable under § 1983, until the property owner has tried and failed to obtain compensation through the available state procedure. "[U]ntil it has used the procedure and been denied just compensation," the property owner " 'has no claim against the Government' for a taking." 473 U.S. at 194-195, 105 S.Ct. 3108 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, n. 21, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) ). Williamson County drew that understanding of the Clause from Ruckelshaus v. Monsanto Co., a decision from the prior Term. Monsanto did not involve a takings claim for just compensation. The plaintiff there sought to enjoin a federal statute because it effected a taking, even though the statute set up a special arbitration procedure for obtaining compensation, and the plaintiff could bring a takings claim pursuant to the Tucker Act if arbitration did not yield sufficient compensation. 467 U.S. at 1018, 104 S.Ct. 2862. The Court rejected the plaintiff's claim because "[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking." Id., at 1016, 104 S.Ct. 2862 (footnote omitted). That much is consistent with our precedent: Equitable relief was not available because monetary relief was under the Tucker Act. That was enough to decide the case. But Monsanto went on to say that if the plaintiff obtained compensation in arbitration, then "no taking has occurred and the [plaintiff] has no claim against the Government." Id., at 1018, n. 21, 104 S.Ct. 2862. Certainly it is correct that a fully compensated plaintiff has no further claim, but that is because the taking has been remedied by compensation, not because there was no taking in the first place. See First English, 482 U.S. at 316, n. 9, 107 S.Ct. 2378. The statute in Monsanto simply required the plaintiff to attempt to vindicate its claim to compensation through arbitration before proceeding under the Tucker Act. The case offers no support to Williamson County in this regard, because Congress-unlike the States-is free to require plaintiffs to exhaust administrative remedies before bringing constitutional claims. See McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ("Where Congress specifically mandates, exhaustion is required."). Williamson County also relied on Monsanto when it analogized its new state-litigation requirement to federal takings practice, stating that "taking[s] claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act." 473 U.S. at 195, 105 S.Ct. 3108. But the Court was simply confused. A claim for just compensation brought under the Tucker Act is not a prerequisite to a Fifth Amendment takings claim-it is a Fifth Amendment takings claim. A party who loses a Tucker Act suit has nowhere else to go to seek compensation for an alleged taking. Other than Monsanto, the principal case to which Williamson County looked was Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Like Monsanto, Parratt did not involve a takings claim for just compensation. Indeed, it was not a takings case at all. Parratt held that a prisoner deprived of $ 23.50 worth of hobby materials by the rogue act of a state employee could not state a due process claim if the State provided adequate post-deprivation process. 451 U.S. at 543-544, 101 S.Ct. 1908. But the analogy from the due process context to the takings context is strained, as Williamson County itself recognized. See 473 U.S. at 195, n. 14, 105 S.Ct. 3108. It is not even possible for a State to provide pre-deprivation due process for the unauthorized act of a single employee. That is quite different from the taking of property by the government through physical invasion or a regulation that destroys a property's productive use. The poor reasoning of Williamson County may be partially explained by the circumstances in which the state-litigation issue reached the Court. The Court granted certiorari to decide whether the Fifth Amendment entitles a property owner to just compensation when a regulation temporarily deprives him of the use of his property. ( First English later held that the answer was yes.) As amicus curiae in support of the local government, the United States argued in this Court that the developer could not state a Fifth Amendment claim because it had not pursued an inverse condemnation suit in state court. Neither party had raised that argument before. The Court then adopted the reasoning of the Solicitor General in an alternative holding, even though the case could have been resolved solely on the narrower and settled ground that no taking had occurred because the zoning board had not yet come to a final decision regarding the developer's proposal. In these circumstances, the Court may not have adequately tested the logic of the state-litigation requirement or considered its implications, most notably the preclusion trap later sprung by San Remo. That consequence was totally unanticipated in Williamson County. The dissent, doing what respondents do not even dare to attempt, defends the original rationale of Williamson County -that there is no Fifth Amendment violation, and thus no Fifth Amendment claim, until the government denies the property owner compensation in a subsequent proceeding. But although the dissent makes a more thoughtful and considered argument than Williamson County, it cannot reconcile its view with our repeated holdings that a property owner acquires a constitutional right to compensation at the time of the taking. See supra, at 2170 - 2173. The only reason that a taking would automatically entitle a property owner to the remedy of compensation is that, as Justice Brennan explained, with the uncompensated taking "the landowner has already suffered a constitutional violation." San Diego Gas & Elec. Co., 450 U.S. at 654, 101 S.Ct. 1287 (dissenting opinion). The dissent here provides no more reason to resist that conclusion than did Williamson County. C The Court in Williamson County relied on statements in our prior opinions that the Clause "does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation" after a taking. Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 34 L.Ed. 295 (1890). Respondents rely on the same cases in contending that uncompensated takings for which compensation is subsequently available do not violate the Fifth Amendment at the time of the taking. But respondents read those statements too broadly. They concerned requests for injunctive relief, and the availability of subsequent compensation meant that such an equitable remedy was not available. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 107, 149, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (reversing a decision "enjoin[ing]" the enforcement of a federal statute because "the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur"); Hurley v. Kincaid, 285 U.S. 95, 99, 105, 52 S.Ct. 267, 76 L.Ed. 637 (1932) (rejecting a request to "enjoin the carrying out of any work" on a flood control project because the Tucker Act provided the plaintiff with "a plain, adequate, and complete remedy at law"). Simply because the property owner was not entitled to injunctive relief at the time of the taking does not mean there was no violation of the Takings Clause at that time. The history of takings litigation provides valuable context. At the time of the founding there usually was no compensation remedy available to property owners. On occasion, when a legislature authorized a particular government action that took private property, it might also create a special owner-initiated procedure for obtaining compensation. But there were no general causes of action through which plaintiffs could obtain compensation for property taken for public use. Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 69-70, and n. 33 (1999). Until the 1870s, the typical recourse of a property owner who had suffered an uncompensated taking was to bring a common law trespass action against the responsible corporation or government official. The official would then raise the defense that his trespass was lawful because authorized by statute or ordinance, and the plaintiff would respond that the law was unconstitutional because it provided for a taking without just compensation. If the plaintiff prevailed, he nonetheless had no way at common law to obtain money damages for a permanent taking-that is, just compensation for the total value of his property. He could obtain only retrospective damages, as well as an injunction ejecting the government from his property going forward. See id., at 67-69, 97-99. As Chancellor Kent explained when granting a property owner equitable relief, the Takings Clause and its analogs in state constitutions required that "a fair compensation must, in all cases, be previously made to the individuals affected." Gardner v. Newburgh, 2 Johns.Ch. 162, 166 (N. Y. 1816) (emphasis added). If a government took property without payment, a court would set aside the taking because it violated the Constitution and order the property restored to its owner. The Framers meant to prohibit the Federal Government from taking property without paying for it. Allowing the government to keep the property pending subsequent compensation to the owner, in proceedings that hardly existed in 1787, was not what they envisioned. Antebellum courts, which had no means of compensating a property owner for his loss, had no way to redress the violation of an owner's Fifth Amendment rights other than ordering the government to give him back his property. See Callender v. Marsh, 18 Mass. 418, 430-431 (1823) ("[I]f by virtue of any legislative act the land of any citizen should be occupied by the public..., without any means provided to indemnify the owner of the property,... because such a statute would be directly contrary to the [Massachusetts takings clause]; and as no action can be maintained against the public for damages, the only way to secure the party in his constitutional rights would be to declare void the public appropriation."). But in the 1870s, as state courts began to recognize implied rights of action for damages under the state equivalents of the Takings Clause, they declined to grant injunctions because property owners had an adequate remedy at law. See, e.g., Stetson v. Chicago & Evanston R. Co., 75 Ill. 74, 78 (1874) ("What injury, if any, [the property owner] has sustained, may be compensated by damages recoverable by an action at law."); see also Brauneis, supra, at 97-99, 110-112. On the federal level, Congress enabled property owners to obtain compensation for takings in federal court when it passed the Tucker Act in 1887, and we subsequently joined the state courts in holding that the compensation remedy is required by the Takings Clause itself. See First English, 482 U.S. at 316, 107 S.Ct. 2378 (collecting cases). Today, because the federal and nearly all state governments provide just compensation remedies to property owners who have suffered a taking, equitable relief is generally unavailable. As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government's action effecting a taking. But that is because, as the Court explained in First English, such a procedure is a remedy for a taking that violated the Constitution, not because the availability of the procedure somehow prevented the violation from occurring in the first place. See supra, at 2171 - 2173. The dissent contends that our characterization of Cherokee Nation effectively overrules "a hundred-plus years of legal rulings." Post, at 2183 (opinion of KAGAN, J.). But under today's decision every one of the cases cited by the dissent would come out the same way-the plaintiffs would not be entitled to the relief they requested because they could instead pursue a suit for compensation. The premise of such a suit for compensation is that the property owner has already suffered a violation of the Fifth Amendment that may be remedied by money damages. * * * We conclude that a government violates the Takings Clause when it takes property without compensation, and that a property owner may bring a Fifth Amendment claim under § 1983 at that time. That does not as a practical matter mean that government action or regulation may not proceed in the absence of contemporaneous compensation. Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate. But because the violation is complete at the time of the taking, pursuit of a remedy in federal court need not await any subsequent state action. Takings claims against local governments should be handled the same as other claims under the Bill of Rights. Williamson County erred in holding otherwise. IV The next question is whether we should overrule Williamson County, or whether stare decisis counsels in favor of adhering to the decision, despite its error. The doctrine of stare decisis reflects a judgment "that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right.' " Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting)). The doctrine "is at its weakest when we interpret the Constitution," as we did in Williamson County, because only this Court or a constitutional amendment can alter our holdings. Agostini, 521 U.S. at 235, 117 S.Ct. 1997. We have identified several factors to consider in deciding whether

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?

Yancy Douglas HARDY, Appellant, v. UNITED STATES of America, Appellee. No. 16455. United States Court of Appeals Eighth Circuit. June 30, 1961. Martin Schiff, Jr., St. Louis, Mo., for appellant; Yancy Douglas Hardy, pro se, and H. Jackson Daniel, St. Louis, Mo., with him on the brief. William R. Crary, Asst. U. S. Atty., Sioux City, Iowa, for appellee; F. E. Van Alstine, U. S. Atty., Sioux City, Iowa, on the brief. Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and BLACKMUN, Circuit Judges. JOHNSEN, Chief Judge. Appellant was convicted in 1951 on separate charges (1) of having entered a federally insured bank with intent to commit larceny therein, thereby violating 18 U.S.C. § 2113(a), and (2) of having committed larceny against the bank of money and property exceeding $100 in value, thereby violating § 2113 (b). He was given a sentence of 20 years on the first count and a sentence of 10 years on the second, with the sentences to run concurrently. He appealed from the judgment of conviction and we affirmed, 8 Cir., 199 F.2d 704, but he did not in that proceeding raise any question as to the court’s right to impose two sentences upon him. He waited until he-had been confined the period necessary for a 10-year term and then filed a motion to have his 20-year sentence set aside as being illegal. The court denied his motion but on its own motion vacated the 10-year sentence. The court’s action as to the 10-year sentence was in conformity with what we had in 1957 directed to be done in the case of appellant’s associate in the crime, Kitts v. United States, 8 Cir., 243 F.2d 883. In appellant’s view, however, we did not in the Kitts ease make proper interpretation and application of the decision of the Supreme Court in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. Appellant would have us read the Prince case as holding that, where a bank is entered with larcenous intent, in violation of § 2113(a), and the larceny is accomplished, so that a violation of § 2113(b) has occurred, the unlawful entry becomes so merged into the consummated larceny as to lose its identity for legal purposes as a criminal offense and therefore not to be capable of being made the subject of a charge of § 2113(a) violation. A year after the Kitts case, we had occasion to deal with the question again in La Duke v. United States, 8 Cir., 253 F.2d 387, where we similarly permitted a sentence of 20 years to stand on a conviction of having entered a bank with intent to commit larceny therein, in a situation where it was conceded that the larceny had been consummated and a violation of § 2113(b) had accordingly occurred. While in that case the Government had prosecuted only for the offense of unlawful entry, it would seem doubtful whether such a charge would be entitled to be made, if the consummation of the larceny had to be regarded as occasioning such a merger that the factual elements involved could have but one legal significance, so that the unlawful entry thus would, be deprived of any separate violative identity. The effect of our decision in the Kitts and La Duke cases is that the incidents of entering a bank with intent to commit larceny and of engaging in larceny therein are violations of two distinct statutory provisions; that there is nothing in the language or operability of these provisions to suggest that either incident, where both have been present in a situation, was intended to be deprived of its identity or status as a basis for making violative charges; but that, in respect to the imposing of punishment on them, they are so related in their nature and object that, under the doctrine of the Prince case, sentence may be meted out on only one of them, within the choice which the trial court deems appropriate in the circumstances. The opinion in the Prince case recognized that it manifestly was the purpose of Congress, by the statutory provisions involved, to establish more than one violative offense. “But in doing so there was no indication that Congress intended also to pyramid the penalties.” 352 U.S. at page 327; 77 S.Ct. at page 406. This, it seems to us, represents the crux of the Px-ince decision. As we indicated in the La Duke case, we do not believe that the Prince opinion is required to be read, or was meant, to impute the intention to Congress, on the plain language of the larceny provisions, that these should be allowed in application to produce the incongruous result that, if one enters a bank with intent to commit larceny, but for some reason his purpose is frustrated so that the larceny is not committed, he can be sentenced for a period of 20 years, but that, if he succeeds in committing the larceny on the basis of his unlawful entry, he cannot in that event be sentenced for a period of more than 10 years, and indeed for only a year or less, if he does not succeed in stealing more than ip 100 in amount. The views here expressed have similarly been taken in Purdom v. United States, 10 Cir., 249 F.2d 822, and United States v. Williamson, 5 Cir., 255 F.2d 512, and the Supreme Court has denied certiorari in both of these cases, 355 U.S. 913, 78 S.Ct. 341, 2 L.Ed.2d 273, and 358 U.S. 941, 79 S.Ct. 348, 3 L.Ed.2d 349, respectively. To the same effect also are Counts v. United States, 5 Cir., 263 F.2d 603, certiorari denied 360 U.S. 920, 79 S.Ct. 1440, 3 L.Ed.2d 1536, and Audett v. United States, 9 Cir., 265 F.2d 837, certiorari denied 361 U.S. 815, 80 S.Ct. 54, 4 L.Ed.2d 62. In all of these cases, the right of the court in such a situation to simply vacate the shorter sentence and allow the longer one to stand has been recognized. Appellant argues, however, that here his 10-year sentence had been served, so that there was no right to vacate it, and that consequently only the 20-year sentence was capable of being set aside. A similar situation and contention were involved in United States v. Leather, 7 Cir., 271 F.2d 80, where the court held that the longer sentence standing on the record would legally constitute the measure or the term of the punishment in the situation, unless the trial court saw fit to vacate it, and that the shorter concurrent sentence thus would, while the two sentences stood together, have incidence only in relation to this controlling measure or term of his punishment. The court accordingly upheld the right of the trial court in that case, as here, to vacate the shorter sentence, even though the defendant had by that time been confined for a period equal to its length. The Supreme Court denied certiorari to this holding, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525. We are in agreement with the Leather case. Affirmed.

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

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

UNITED STATES of America, Appellee, v. Richard HAMILTON, Appellant. No. 76-1313. United States Court of Appeals, Tenth Circuit. Argued and Submitted March 18, 1977. Decided April 13, 1977. Stephen K. Lester, Wichita, Kan. (E. Edward Johnson, U.S. Atty., Topeka, Kan., with him on the brief), for appellee. Russell E. Grant, Mulvane, Kan., for appellant. Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges. BREITENSTEIN, Circuit Judge. Petitioner-appellant Hamilton appeals from an order denying his “Motion and Petition to Vacate Conviction and Sentence” submitted alternatively under Rule 35, F.R.Crim.P., and 28 U.S.C. § 2255. We affirm. On October 18,1972, in the United States District Court for the District of Kansas, petitioner pleaded guilty to conspiring to import a controlled substance in violation of 21 U.S.C. §§ 960 and 963. On December 11, he was sentenced to imprisonment for three years with parole eligibility to be determined pursuant to 18 U.S.C. § 4208(a)(2). At the time of plea and sentence he was not told of any mandatory parole term. The Bureau of Prisons called the attention of the trial court to the mandatory parole provisions of the narcotic laws. On April 5, 1973, the court on its own motion and without notice to, or presence of, petitioner or his retained counsel, amended the judgment of sentence to impose the mandatory three-year parole provision of 21 U.S.C. § 841. Petitioner had pleaded guilty to violations of 21 U.S.C. §§ 960 and 963. Petitioner then filed a motion for correction of sentence and pointed out that he had not been prosecuted under § 841. In his motion petitioner said that a “Special Parole Term of Two Years pursuant to 21 U.S.C. § 960 would be proper.” He asked that the judgment and sentence as amended on April 5 be amended to provide for the two-year parole requirement of § 960. On September 20, without notice to, or presence of, petitioner or his counsel, the court again amended the judgment to provide for a two-year special parole as required by § 960. The unique parole provisions of the 1970 amendments to the narcotic laws only become material if the defendant violates his parole provisions. See Bachner v. United States, 7 Cir., 517 F.2d 589, 597, and McRae v. United States, 8 Cir., 540 F.2d 943, 946, n.3. The acceptance of the guilty plea and the subsequent imposition of sentence, both without advising the petitioner of the mandatory parole requirements, violated Rule 11(e), F.R.Crim.P. McCarthy v. United States, 394 U.S. 459, 471-472, 89 S.Ct. 1166, 22 L.Ed.2d 418. The first amendment of the sentence, the addition of the mandatory parole requirement, took place without notice to, or the presence of, either the petitioner or his retained counsel. In Mayfield v. United States, 10 Cir., 504 F.2d 888, in the absence of both defendant and counsel, the district court resentenced the defendant by adding to the original sentence the mandatory parole requirement of § 841. We held that the presence of the defendant was required and remanded for resentencing. Ibid. at 889. Petitioner’s application for alternative relief either under Rule 35, F.R.Crim.P. or under § 2255 was denied by the court without any response by the government and without hearing oral argument. Petitioner has served his term. On September 8,1976, the United States Parole Commission terminated his special parole term. The government concedes that the release from parole does not moot the case. See Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554. The trial court held, and the government contends, that petitioner’s motion for correction of sentence, which asserted that parole could only be ordered under § 960, waived any objection he might have had to a violation of Rule 11. Petitioner’s motion was for correction of sentence under Rule 35. A motion to correct a sentence does not attack the validity of the underlying conviction. Brown v. United States, 5 Cir., 480 F.2d 1036, 1039. The § 2255 proceeding before us attacks the validity of the conviction. The presentation of the Rule 35 motion was no waiver of a right to proceed under § 2255. The district court violated Rule 11 in failing to advise petitioner of the mandatory parole term. In McCarthy v. United States, 394 U.S. 459, 471, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418, the court said “prejudice inheres in a failure to comply with Rule 11.” At least four circuits have held that a guilty plea must be set aside when the trial court has failed to advise a defendant of the mandatory parole provisions of the narcotic laws. See United States v. Yazbeck, 1 Cir., 524 F.2d 641; Ferguson v. United States, 2 Cir., 513 F.2d 1011; United States v. Wolak, 6 Cir., 510 F.2d 164; and Roberts v. United States, 3 Cir., 491 F.2d 1236. None of the four decisions just cited mentioned the decision in Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109. In that case the petitioner sought § 2255 relief for vacation of his conviction because of a post-conviction change in the construction of the Selective Service laws. The Court stated that not all errors of law could be raised on a § 2255 motion. The Court reiterated its holding in Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417, that for collateral relief to be available something more than a simple violation of a formal requirement of a rule of criminal procedure must be shown. The Court suggested that the proper inquiry under § 2255 is, Ibid. 417 U.S. at 346, 94 S.Ct. at 2305: “[WJhether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’ and whether ‘[i]t presents] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ ” The Davis decision has resulted in two circuits denying § 2255 relief when the defendant was not advised of a special mandatory parole term prior to the acceptance of his guilty plea. See Bachner v. United States, 7 Cir., 517 F.2d 589; McRae v. United States, 8 Cir., 540 F.2d 943, and United States v. Ortiz, 8 Cir., 545 F.2d 1122. These cases all stress the lack of a fundamental defect resulting' in a complete miscarriage of justice or presenting special circumstances justifying collateral relief. In Bell v. United States, 4 Cir., 521 F.2d 713, cert. denied 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324, § 2255 relief was denied in a similar situation without discussion of Davis. No Tenth Circuit decision considers the general applicability of § 2255 and Rule 11 in the light of Davis. The dicta found in United States v. Jones, 10 Cir., 540 F.2d 465, 468-469, has no precedential value. In that case the defendant pleaded not guilty and was convicted by a jury. Rule 11 was not at issue. Mayfield v. United States, 10 Cir., 504 F.2d 888, rejected an amended sentence because neither the defendant nor his counsel was present when the action was taken. The application to the case at bar of the Davis tests of miscarriage of justice and exceptional circumstance convinces us that the petitioner is not entitled to § 2255 relief. Petitioner was represented by competent retained counsel both at arraignment and sentence. The trial court explained the petitioner’s rights at length and was assured both by the petitioner and his lawyer that the guilty plea was voluntary. The ultimate sentence was three years and two years parole. The total period did not exceed the term of imprisonment which the court told petitioner he might receive for his offense. After he knew of the mandatory parole provisions, petitioner did not seek vacation of the guilty plea but rather sought modification of the sentence under Rule 35 to provide for a two-year parole. He did not file the pending § 2255 motion until three years later. We are convinced that the petitioner voluntarily pleaded guilty and was not prejudiced by the technical rule violation. On the record before us the failure to advise the petitioner of the mandatory parole term did not inherently result in a miscarriage of justice or present exceptional circumstances justifying collateral relief. The district court properly denied the § 2255 motion. In the alternative, petitioner’s motion was based on Rule 35 relating to correction or modification of sentence. The second amended sentence, which imposed the three-year term plus two years parole did not exceed the statutory penalty and was legal. The time has past when petitioner could seek a reduction of sentence and, indeed, he has been released from parole. We recognize the recent decision in United States v. Watson, D.C.Cir., 548 F.2d 1058. That case related to a claimed Rule 11 violation arising from failure to tell a defendant of the mandatory parole requirement of certain narcotic laws. A pro se litigant, later represented by counsel, sought to invoke § 2255. The court discussed Davis and referred to the “uncertainties that accompany the resolution of the scope of 2255 in relation to a Rule 11 violation.” The court remanded the case to the district court for consideration under the standards provided in Rule 32(d). That rule says that to correct manifest injustice the court may permit a defendant to withdraw his plea. Nothing is to be gained by the invocation of Rule 32(d). Davis says that § 2255 may be used when a § 2255 motion presents a defect which results in a miscarriage of justice. We are convinced that there was no miscarriage of justice in the case at bar. Affirmed.

What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 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.

LEWIS et al. v. LILLISTON. No. 6741. United States Court of Appeals for the District of Columbia. Argued Jan. 7, 1937. Decided March 8, 1937. Christopher B. Garnett, of Washington, D. C., for appellants. Before MARTIN, Chief Justice, and VAN ORSDEL, GRONER, and STEPHENS, Associate Justices. PER CURIAM. Accomack Banking Company, Inc., is a Virginia corporation conducting a general banking business in Accomac county. In December, 1931, it became insolvent and Metompkin Bank & Trust Company was appointed receiver by the circuit court of Accomac county, since which time the latter company has been engaged in winding up the affairs of the bank. Appellee was assistant cashier of the bank, and this suit was brought against him by creditors, alleging that he had on the day the bank closed unlawfully withdrawn $2,450 from his deposit account. Subsequently appel--lee moved to Washington and is now a resident of the District of Columbia, and this suit was instituted by appellants, suing for themselves and all other creditors similarly situated. The bill alleges that plaintiffs repeatedly called upon the receiver to bring the suit, but the receiver refused to do so. The District Judge, who heard the case below, sustained a motion to dismiss on the ground that the receiver of the closed bank (under Virginia Code, § 4149 (52) succeeded as assignee to the rights of the bank; that the receiver is under the control of the Virginia court; and that appellants have no standing to sue, without the approval or authorization of the Virginia court. We think this holding correct in result. In Virginia the State Corporation Commission is given authority over Virginia banks generally similar to the authority of the Comptroller of the Currency with relation to national banks, except that in Virginia, if the Commission shall be of opinion that a receiver should be appointed, it is authorized to apply for such an appointment to the circuit court of the county or city in which the bank is located. When the court has acted and appointed the receiver, the receiver is made by statute the assignee of the assets and the property of the bank “with power to prosecute and defend, in the name of the bank or trust company or in’ his name as such receiver or otherwise, in Virginia or elsewhere, all such suits as may be necessary” for the purpose of collecting the assets of the bank. The administration of the estate, through the receiver as the officer of the court, is for the benefit of those whom the court shall ultimately adjudge to be entitled to it. In the circumstances— as was said in Porter v. Sabin, 149 U.S. 473, 479, 13 S.Ct. 1008, 37 L.Ed. 815 — the court may in its discretion direct the receiver to sue on any claims of the bank or may direct him to adjust them and settle them without suit. The method and time of asserting such rights of action are subjects within the exclusive jurisdiction of the court so long as the receivership exists. In this view, the allegation of a refusal by the receiver to bring the suit is not sufficient. Appellants cannot maintain such a suit without showing that they have applied to the court for an order requiring the receiver to bring the suit or, in the alternative, permitting them to bring it in its stead. If upon application the court directs the receiver to sue, the rights of creditors are, of course, fully protected. If the court refuses to require the receiver to sue but grants to creditors permission to do so, they may — certainly in this jurisdiction — maintain such a suit as appellants have instituted. There are cases in other federal courts holding or implying the contrary (cf. Kelly v. Dolan [C.C.A.] 233 F. 635), but we are not disposed to follow them. If, however, the court refuses to direct suit by the receiver and also refuses permission to creditors to sue, the courts of this jurisdiction cannot, of course, undertake to maintain such a suit as appellants have brought. Porter v. Sabin, supra. All that we hold is that, until an order to show cause such as we have indicated above has been applied for and decided by the court having custody of the estate, creditors, seeking to protect rights which the Virginia law vests in the receiver alone, cannot be said to have exhausted all the means within their reach to induce by appropriate action the bringing of the suit by the statutory receiver. The lack in this case of an allegation showing the facts in this regard not only leaves the courts of this jurisdiction without basis for determining whether or not appellants have exhausted the remedies reasonably available to them, but also renders the courts unable to know whether or not by entertaining the present suit they are improperly interfering with -the Virginia court in its orderly administration of the insolvent estate. We think, however, that under the circumstances the court below should permit appellants to amend their bill by showing that they have made application to the Virginia court; and we therefore reverse the decree, at appellants’ cost, with instructions to the lower court to set aside its dismissal of the bill and to permit appellants to show whatever facts may then exist which, in the view we have expressed, will give the court below jurisdiction to proceed to adjudicate the claim. Reversed.

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

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

AINSWORTH, Commandant Fifth Naval District, v. BARN BALLROOM CO., Inc. No. 5502. Circuit Court of Appeals, Fourth Circuit. July 27, 1946. J. Francis Hayden, Sp. Asst, to Atty. Gen. (John F. Sonnett, Asst. Atty. Gen., Harry H. Holt, Jr., U. S. Atty., and Walkley E. Johnson,' Asst. U. S. Atty., both of Norfolk, Va., and Edward H. Hickey, Sp. Asst, to Atty. Gen., on the brief), for appellants. Ben Jacobs and A. L. Bivins, both of Newport News, Va., for appellee. Before GRONER, Chief Justice, United States Court of Appeals for the District of Columbia, DOBIE, Circuit Judge, and CHESNUT, District Judge. GRONER, C. J. This is an appeal by Rear Admiral Ains-worth, Commandant of the Fifth Naval District, and Brigadier General Tilton, Commanding Officer at Fortress Monroe (Virginia), from an order of the District Court granting a preliminary injunction restraining them and their subordinates from enforcing an official order or regulation issued by them on or about February 11, 1946, declaring the premises used by appel-lee as a public dance hall and located in Newport News, “off limits” or “out of bounds” to enlisted personnel under their respective commands. The regulation provided— “Effective immediately the subj ect-named establishments are placed out-of-bounds to service personnel until further notice. This restriction is made due to unsanitary and immoral conditions existing in the establishments.” (Appellee’s place was fourth on the list.) The injunction order in turn provided that— “ * * * the defendants, their- agents, representatives, subordinates and all others acting by or under their authority be, and they hereby are, restrained and enjoined, pending the determination of this action, from enforcing the order issued on or about February 11, 1946, declaring the premises occupied by the plaintiff at No. 2611 Washington Avenue, Newport News, Virginia, ‘off limits,’ or ‘out of bounds’ to enlisted personnel under their command.” And in the court’s conclusions of law the breadth of the order was defined in these words: “Such temporary injunction should not be limited in its terms to enjoin merely the placing of guards at the premises but should be directed at the enforcement of the order in its entirety.” The facts alleged in appellee’s (amended) complaint, in substance, are that it is a Virginia corporation, conducting a restaurant and dance hall in Newport News, Virginia, in a lawful manner and without disorder, and that it has never dispensed alcoholic beverages; that being informed that the Provost Marshal at Fortress Monroe was about to institute proceedings to have military police stationed in front of its premises to prevent military personnel from entering, it inquired what the grounds were upon which such action was to be based, but was given no information; that on February 14, 1946, a Provost Marshal came to appellee’s place with a Navy shore patrol officer and read to appellee’s president an order declaring the premises “off limits;” that the next day military police were stationed in front of the premises, as a result of which civilian personnel refused to enter, to the total loss of plaintiff’s investment of $20,000. Appellee charged that appellants’ acts in the respects mentioned were without color of legal right, and prayed that the court enjoin the Admiral and the General from interfering with its business and for other relief. Appellants filed three motions to dismiss, one, because the suit was in substance an action against the United States; two, because the Secretary of War and Secretary of Navy were indispensable parties and had not been served; and three, that the court was without jurisdiction to interfere with actions of the Executive done pursuant to law. There was a hearing and thereafter the motions to dismiss were denied, and the court issued the injunction order from which the appeal is taken. Motion to suspend was denied, and the present appeal followed. The District Judge in a verbal opinion stated in substance that defendants having introduced no evidence bearing upon the necessity or propriety of the out of bounds order, and the plaintiff having shown that the dance hall was lawfully operated, defendants’ action in proscribing its use by military personnel amounted to a deprivation of appellee’s right to do business, causing it irreparable loss and depriving it of its property without due process of law. In support of their motion to dismiss, appellants introduced in evidence copies of War Department Circular 367, dated September 9, 1944, War Department Circular 134, dated May 4, 1945, and Court Martial Order No. 1 of 1942 of the Navy Department, especially the provisions appearing on page 135, as the pertinent regulation under which defendants acted in declaring the place out of bounds. These rules and orders show that a joint Army-Navy Disciplinary Control Board, embracing the Newport News area, was established under an agreement between the Secretary of War and the Secretary of the Navy, with the power and duty of recommending places or areas to be designated as out of bounds to military personnel, and the appropriate commanders in the areas involved were directed by the respective Secretaries to take the necessary action to carry out the recommendations. The order in question resulted from this joint agreement. As to all of this the District Court held that the question whether the Board in its action had overstepped its jurisdiction was a judicial question which the court had the right to examine into, and upon such a finding by the court, that the local military commanders were the proper parties defendant. We think this assumed too much, for it must be remembered that the sum of the complaint is no more than that as an incident of defendants’ order prohibiting the use of the dance hall by enlisted men, civilian patrons “refused to enter” the place. This is very far from charging an unlawful trespass or invasion of appellee’s property, as was the case in Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570, but is rather a challenge of the official discretion of appellants in the exercise of authority over the Army and Naval personnel under their respective commands. If the order was within the discretionary authority of the heads of the War and Navy Departments, duly delegated to appellants, the consequential damage which followed the making and enforcing of the order clearly would not create a jus-ticiable controversy. This is so, even if it be conceded there was an abuse of discretion. And as has been pointed out time and again, the courts may not invade the executive departments to correct alleged mistakes arising out of abuse of discretion. For to do so would interfere with the performance of governmental functions and vitally affect the interests of the United States. See, for example, Dakota C. Tel. Co. v. South Dakota, 250 U.S. 163, 184, 39 S.Ct. 507, 509, 63 L.Ed. 910, 4 A.L.R. 1623, where the Supreme Court said: “ * * * as the contention at best concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. This must be since, as this court has often pointed out, the judicial may not invade the legislative or executive departments so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.” And we think it cannot be questioned here that the Secretaries of War and Navy, respectively, subject to the approval of the President, were authorized to make and publish regulations for the government of the Army and Navy, of which the order in this case is a fair sample. Here the trial court found as a fact that a joint Army-Navy Disciplinary Control Board was established under an August 29, 1944 agreement between the Secretaries. One of its functions was, as we have seen, to recommend designated places or areas as out of bounds to military personnel, and the agreement provided that such recommendations should be made at the discretion of the Board, with or without previous warning to the proprietors of places which might be incidentally affected. And the order further required that commanding officers in the various locations should take the necessary action to carry out its provisions. It is accordingly apparent that the authority under which appellants acted was derived directly from heads of the respective departments as the representatives of the President, as a result of which it seems to us dear that in the present suit they acted, not as individuals, but as representatives of the Government, in the exercise of a delegated discretion reposed by Congress in the Executive Department. In this view it is apparent to us that the case is one in substance against the United States, and as the United States has not consented to be sued, the bill should have been dismissed. The rule in that respect was first pronounced by the Supreme Court in the Eliason case more than a hundred years ago, where it was said: “ * * * The Secretary of War is the regular constitutional organ of the President, for the administration, of the military establishment of the nation; and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority. Such regulations cannot be questioned or denied because they may be thought unwise or mistaken.” And the rule was reaffirmed by the Supreme Court in the Standard Oil case within the last five years. The question is not new and, under a state of facts substantially like those we have here, was decided by this court in favor of the view we now take. In that case Congress had appropriated a sufficient sum of money for the erection and equipment of a depot for the storage of high explosives. The President designated the site of the depot and title was acquired in the usual way. Whereupon explosives were stored there, and it was intended to store additional quantities, sufficient to blow up the entire county in which the depot was located. Property owners in the neighborhood brought suit against the Secretary of the Navy and the Naval officer in charge of the depot to prevent the further storage of explosives, alleging that such storage so depreciated the value of their property as to constitute a taking without due process of law, in violation of the Fifth Amendment. The District Court dismissed the bill and on appeal the dismissal was affirmed. Judge Parker, speaking for the court, said [27 F.2d 263]: "Now defendant Miles, in storing and preparing to store explosives on the Naval Mine Depot, is admittedly acting under the direction of the Secretary of the Navy, who represents the President. In suing to restrain' him, therefore, complainants are suing the authorized representative of the government, and are asking that he be restrained from carrying out on government property a policy determined upon by the Executive Department in the exercise of a discretion reposed in it by Congress. It is manifestly, then, not a suit to restrain unauthorized action by a government official, or action based upon an unconstitutional statute, but a suit to restrain action in which the official is exercising valid governmental authority by virtue of his office. There can be no doubt that such a suit is in essence a suit against the United States, and that the United States is a necessary party thereto. And, as it has not consented to be made a party, the suit must fail.” Stated in its simplest terms, the rule by which courts are controlled in situations analogous to those obtaining here is that where the defendant-official is engaged in something which the law authorizes him to do, or, is acting pursuant to valid authority validly conferred, the suit will be held to be against the United States. But where the authority to do the particular act had not been conferred, or constitutional power to confer it is lacking, the suit is not subject to the objection that it is against the United States. A few of the leading cases illustrative of the application of the rule are collected in the footnote below. Enough has been said, we think, to show that the President, acting through the Secretaries of War and Navy, had power to regulate and control the military establishments; that appellants’ order was restricted to military personnel; that it did not by its terms deprive appellee of the right to maintain its dance hall, or prevent its civilian customers from patronizing it. And if, in consequence, appellee’s business sustained a loss, it was neither a “taking” of appellee’s property, nor a trespass, nor an unwarrantable interference, and consequently is not an order for which damages will accrue against the individuals named. Since, therefore, the making of the regulation order was the exercise of authority conferred by law, it follows that this proceeding to annul it is a suit against the United States. See: Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40 L.Ed. 599; United States ex rel. Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191; International Postal S. Co. v. Bruce, 194 U.S. 601, 24 S.Ct. 820, 48 L.Ed. 1134; Jones v. Tower Prod. Co., 10 Cir., 120 F.2d 779; Transcontinental & W. Air Line v. Farley, 2 Cir., 71 F.2d 288; International Trading v. Edison, 71 App.D.C. 210, 109 F.2d 825; and see also Louisiana v. McAdoo, Wells v. Roper and Morrison v. Work, supra. What has just been said disposes of the case and requires us to reverse the order of the District Court. But we are also of opinion that the suit could not otherwise be maintained in the failure to name the Secretaries of War and Navy as defendants and to procure service of process upon them. See: Gnerich v. Rutter, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed. 1068; Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 69 L.Ed. 411; Nat. Conf. on Legalizing Lotteries v. Goldman, 2 Cir., 85 F.2d 66; and Neher v. Harwood, 9 Cir., 128 F.2d 846, 158 A.L.R. 1116. Reversed. Which includes the greater part of Virginia, North Carolina, West ATrginia and also parts of Maryland. 28 U.S.C.A. § 227. Act March 1, 1875, 18 Stat. 337. 34 U.S.C.A. § 591. United States v. Eliason, 16 Pet. 291, 10 L.Ed. 968. Standard Oil Co. v. Johnson, 316 U. S. 481-4, 62 S.Ct. 1168, 86 L.Ed, 1611. Ferris v. Wilbur, 4 Cir., 27 F.2d 262. Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; and Wells v. Roper, 246 U. S. 335, 38 S.Ct. 317, 62 L.Ed. 755.

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?

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

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

SOUTHERN UNDERWRITERS v. DUNN et al. No. 8272. Circuit Court of Appeals, Fifth Circuit. April 19, 1938. J. H. Burr, of Houston, Tex., for appellant. Gaius G. Gannon and William M. Ryan, both of Houston, Tex., for appellees. Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges. HUTCHESON, Circuit Judge. The suit was for a declaratory judgment t-hat appellant was obligated, under an automobile insurance contract it had issued to B. D. Kimmel, to defend, on behalf of the appellees, Dunn and Stanolind Pipe Line Company, three suits brought against them and Kimmel for personal injuries received in a collision with Kimmel’s truck, and to pay, within the policy limits, any judgment rendered against Dunn and Stanolind Pipe Line Company in these suits. The claim was not, that either of appellees was in fact a “named assured,” or “other assured” (“other assured,” according to the policy, was “any other person or organization using the automobile or legally responsible for the use thereof.”) Indeed, it was expressly stipulated that neither was in fact any such person or organization. The claim was that, because the policy obligated appellant “to defend in assured’s-name and on his behalf any suit against him seeking damages on account of injury or damage by reason of the ownership, maintenance or use of the insured automobile, even if such suit is groundless, false or fraudulent,” and there were allegations in the suits, that Dunn and Stanolind Pipe Line Company were either using the automobile or legally responsible for the use thereof, though these allegations were in this suit admitted to be wholly groundless in fact, it was the duty of appellant, under the policy, to defend those suits as to Dunn and Stanolind. The defense was that, obligated by the policy as defendant below, appellant here, admittedly was to defend the “named” and any “other assured” from groundless suits against them, it was not obligated by the policy to defend any one but the “named assured,” and “any other person” who not merely by allegations in a plaintiff’s pleading, but in fact, was “another assured” under its terms. That the claim made in this suit, if sustained, would rewrite the policy, to require the insurer to defend any person whom any one might elect to sue in connection with an accident involving the truck described in the policy, though the person sued was not the “named assured,” and was not, in fact, using or legally responsible for the use of the truck, if only the plaintiff in that suit should allege that the defendant in the suit was either using or legally responsible for the use of the truck. There was another defense that Dunn and Stanolind had insurance with the Travelers Insurance Company, and that the provision in appellant’s policy, that “if another assured had valid and collectible insurance against a loss also covered by this contract, such other assured shall not be covered,” prevented Dunn and Stanolind from recovering here. The case was submitted on a stipulation admitting these to be the facts: At the time of the collision Kimmel’s truck and trailer was covered by a policy issued to him by appellant. Dunn and Stanolind were covered and protected as to their operations, and particularly as to the operations of Dunn for Stanolind, by a policy in the Travelers Insurance Company. This policy contained, as to “other assured,” a similar provision to that contained in appellant’s policy; as to “named assured,” its provision was for proportional liability. Appellant’s policy covered liability “imposed upon the assured by law for damages by reason of the ownership, maintenance or use of the truck and trailer described in the schedule while they were being used for commercial purposes.” At the time of the collision the truck and trailer were being used for such purposes. In the contract is contained the provision set out above, oil which appellees sued, requiring appellant to defend suits brought against the assured. At the time of the injury the truck was hauling oil well pipe or casing; Kimmel was driving and, in some manner unknown to the stipulators in this cause, a collision occurred, in which three persons were injured. Three separate suits were instituted and are now pending seeking a recovery against Kimmel, Dunn, and Stanolind Pipe Line Company. As to these suits, it is stipulated that it is alleged in each that Kimmel was driving the truck, that it was owned by the defendant Dunn, and that the oil well pipe and casing with which it was loaded was owned by Stanolind Pipe Line Company. It was further alleged in them that at the time of the collision Kimmel was acting as the servant or agent of the defendant Dunn and Stanolind in driving the automobile truck, and was transporting on said truck a load of oil well pipe or casing, from a place in Oklahoma to a place in Texas, and that the automobile, in which the deceased and the other plaintiffs were riding was struck by the truck loaded with oil well pipe and casing belonging to and owned by Dunn and Stanolind, and driven by Kimmel, the servant of the defendants Dunn and Stanolind. Each of the plaintiffs alleged that the collision was caused by the negligence and want of care of the defendant, in this, that Kimmel, at the time of the collision, acting as the servant and employee of the defendants Dunn and Stanolind, violated the rules of the road and was otherwise negligent and careless. There was the further allegation that at the time of the collision Kimmel, Dunn, and Stanolind were all using and employing the truck. It was stipulated, however, in this case, that, contrary to the allegations in said petitions, the truck involved in the accident was solely owned by Kimmel; Dunn and Stanolind had no ownership or interest in. it, and Stanolind had no interest or ownership in the oil well pipe and casing being hauled; that in truth and in fact Kimmel was hauling the casing under an independent contract with Dunn, by the terms of which Kimmel agreed to and did furnish his own truck, and did haul the pipe for an agreed price per foot for such casing, and Dunn did not reserve or have any control or supervision over Kimmel or the truck he was using, or of the route, time, or method of the hauling. It was further stipulated that these facts are all admitted by Kimmel, and are known to the appellant; that by reason of the contract of defendant with Kimmel, and the other stipulated facts above, the Travelers Insurance Company has requested appellant to defend the suits on behalf of Dunn and Stanolind, but appellant has refused to do so. Appellant admitted that appellees Dunn and Stanolind are, through their insurance carrier, Travelers Insurance Company, defending all of said suits, but it denied that they are doing so because appellant has refused to defend them. In their brief before the trial court, plaintiffs below, appellees here, admitted “As a matter of fact, which is undisputed in this proceeding, it was agreed to in the stipulation that B. D. Kimmel was acting as an independent contractor at the time of the accident. He was not the servant of Dunn or of Stanolind, nor were Dunn and Stanolind using and employing the truck at the time of the accident; the truck was, in fact, owned by Kimmel.” “It is true that the suits brought by the Oklahoma plaintiffs have, insofar as Dunn and the Stanolind Corripany are concerned, no proper basis in fact, in that as is agreed that undisputed among the parties, Kimmel was an independent contractor, for whose acts he, and he alone, was legally responsible.” In the face of these admissions they nevertheless contended that, because of the allegations in the Oklahoma petitions, “appellant was under its contract obligated to defend Dunn and Stanolind as other assureds, and to pay any judgment rendered against them by reason of the matters and things alleged in the petition in each of said cases, if they are proven, and that they are entitled to a judgment so declaring.” The District Judge, agreeing with this contention, concluded that defendant was obligated to defend the suits on behalf of plaintiffs Dunn and Stanolind, and was also obligated to pay off, to the extent of the limits of the policy, “any judgment or judgments rendered in said suits, not only against Kimmel but against the plaintiffs Dunn and Stanolind Pipe Line Co. based upon a finding or findings that the facts are true which are set forth in the pleadings in such suit.” He found, too, that the other insurance provision in the Kimmel policy did not prevent Dunn and Stanolind from recovering, because the Travelers Insurance policy did not cover the injury in this case for which, under the stipulated facts, Kimmel was wholly responsible. Thus notwithstanding the stipulation which established that neither Dunn nor Stanolind were additionally insured, and notwithstanding his finding that neither Dunn nor Stanolind were legally responsible for the use of the truck, and therefore were not covered as to the collision in question by the Travelers policy, the District Judge found that because, and only because, of the allegations in the Oklahoma suits, the provision of appellant’s policy requiring it to defend groundless suits brought against its “assured” made these two, “other assureds,” and required appellant to defend the suits on their behalf, and to pay any judgments in them, “if it was determined in said judgments that Dunn and Stanolind were either using or were legally responsible for the use of the truck.” We agree with appellant that this will not do. The case before us is not a suit brought on judgments obtained in the Oklahoma suits against Dunn and Stanolind determining that Dunn and Stanolind were using, or legally responsible for the use of, the truck, and were therefore covered by the policy. It is not a suit upon allegations and proof that Dunn and Stanolind are “other assureds” to obtain a declaratory judgment that they are, and that appellant must therefore defend and indemnify them. It is a suit for a declaratory judgment as to the rights of plaintiffs and the duty of defendant under the policy contract, to be determined not upon the allegations in the Oklahoma suits, but upon the facts stipulated in this one. Whether Dunn and Stanolind are “other assureds" under appellant’s policy, to be defended and indemnified as such in the Oklahoma suits, is not to be determined here by either the allegations in or the hypothetical results of those suits. They are without bearing upon the duties and liability of appellant under the invoked policy. These depend alone, they are to be determined alone, by the facts stipulated and admitted here. Upon these facts, and upon the solemn judicial admissions of the plaintiffs, Dunn and Stanolind are not “assureds” under the policy; they are not named in it as such; they are not “other assureds” as “using or employing the truck, or being legally responsible for its use.” The declaration that appellant must defend the suits on behalf of Dunn and Stanolind, and must, upon the hypothesis and in the contingency named in the declaration, pay any judgment rendered against them, cannot stand. There should, under the stipulations and admissions, have been a contrary declaration. The judgment is reversed and the cause is remanded, with directions to enter judgment accordingly. Reversed and remanded.

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

METROPOLITAN EDISON CO. v. NATIONAL LABOR RELATIONS BOARD et al. No. 81-1664. Argued January 11, 1983 Decided April 4, 1983 Powell, J., delivered the opinion for a unanimous Court. Donald F. Sileo argued the cause for petitioner. With him on the briefs was Anthony A. DeSabato. Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Jerrold J. Ganzfried, Robert E. Allen, Linda Sher, and Elinor Had-ley Stillman. Laurence J. Cohen argued the cause for respondent Local Union 563, IBEW. With him on the brief were Richard Kirschner, Marsha Berzon, and Laurence Gold Briefs of amici curiae urging reversal were filed by Peter D. Walther, Mark M. Wilcox, and Stephen A. Bokat for the Chamber of Commerce of the United States; by Lawrence T. Zimmerman, Steven R. Semler, and Robert L. Baum for the Edison Electric Institute; and by Mallory Erie Phillips, Jr., and Mark E. Edwards for Miller Brewing Co. Justice Powell delivered the opinion of the Court. The issue is whether an employer may discipline union officials more severely than other union employees for participating in an unlawful work stoppage. Metropolitan Edison Company began construction of a two-unit nuclear generating station at Three Mile Island in 1968. Over half of its employees were represented by the International Brotherhood of Electrical Workers. Article XI of the collective-bargaining agreement between the company and the union provided: “The Brotherhood and its members agree that during the term of this agreement there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public.” App. to Pet. for Cert. A-32. Despite this no-strike clause, union members participated in four unlawful work stoppages between 1970 and 1974. On each occasion the company disciplined the local union officials more severely than the other participants. Twice the union filed a grievance because of the disparate treatment accorded its officials, and in both cases the arbitrators upheld the company’s actions. They found that union officials have an affirmative duty to uphold the bargaining agreement. The breach of that duty justified the company’s imposition of more severe sanctions. On August 30, 1977, an unrelated union, the Operating Engineers, set up an informational picket line at the entrance to the Three Mile Island construction site. When members of the Electrical Workers union refused to cross the picket line, company officials spoke to David Lang, the local union president. They told him that he had a duty as a union official to ensure that the Electrical Workers’ members complied with the no-strike clause. It was the company’s view that Lang could fulfill this duty only by crossing the picket line and thereby inducing other employees to follow. Although instructed repeatedly to cross the line, Lang declined to do so. He was aware that the other employees were unlikely to follow him and sought instead to learn the cause of the picket line. On being told that the line would not be removed unless the Operating Engineers’ business agent ordered it, Lang attempted to reach him. He also directed Gene Light, the Electrical Workers’ vice president, to continue his efforts to persuade the pickets to remove their line. After approximately four hours, Light and Lang were able to negotiate a settlement between the Operating Engineers and Metropolitan Edison. The settlement required the company to establish a separate entrance to the construction site. When this was done, the picket line came down and the union’s members returned to work. Metropolitan Edison disciplined all of its employees who refused to cross the picket line by imposing 5- to 10-day suspensions. Light and Lang, however, each received 25-day suspensions and were warned that future participation in any unlawful work stoppage would result in their immediate discharge. The company explained that the additional penalty was imposed because of their failure as union officials to make “every bona fide effort to prevent the unlawful work stoppage,” specifically their failure to attempt to end the strike by crossing the picket line. The union filed an unfair labor practice charge, and the Regional Director for the National Labor Relations Board issued a complaint against the company. The Administrative Law Judge concluded that under Precision Castings Co., 233 N. L. R. B. 183 (1977), selective discipline of union officials violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 61 Stat. 140, as amended, 29 U. S. C. §§ 158(a)(1) and (3). The Board affirmed the Administrative Law Judge’s conclusions and findings. Metropolitan Edison Co., 252 N. L. R. B. 1030 (1980). On petition for review and cross-petition for enforcement, the Court of Appeals for the Third Circuit enforced the Board’s order. 663 F. 2d 478, 484 (1981). It held that an employer may impose greater discipline on union officials only when the collective-bargaining agreement specifies that the officials have an affirmative duty to prevent illegal work stoppages. Id., at 482. If the agreement does not provide for such a duty, any disparate treatment of union officials violates § 8(a)(3). The court reasoned that in the absence of a clear contractual duty, requiring a union official to take affirmative steps to end an illegal work stoppage would place him in an intolerable position. If he failed to follow the company’s directions, he would place his job in jeopardy. If he complied with the company’s demands and crossed the picket line, he would lose the respect and support of the union members. Id., at 482-483. The Court of Appeals rejected the company’s argument that the two earlier arbitration awards were sufficient to impose a contractual duty on the union officials to cross the picket line. The court held that it was not bound by these arbitration decisions in determining the extent of the officials’ contractual obligations. Id., at 483. It noted that a previous arbitration decision normally would not bind an arbitrator later construing the same collective-bargaining agreement. Absent an express contractual provision making earlier arbitration decisions binding, the court declined to give these decisions any greater effect than an arbitrator would. Id., at 483-484. We granted certiorari to consider these recurring questions of federal labor law. 457 U. S. 1116 (1982). We now affirm. This case does not present the question whether an employer may impose stricter penalties on union officials who take a leadership role in an unlawful strike. The Administrative Law Judge found that neither Light nor Lang acted as a strike leader. Nor does this case question the employer’s right to discipline union officials who engage in unprotected activity. Neither the union nor the Board has argued that union officials who fail to honor a no-strike clause are immunized from being disciplined in the same manner as other strike participants. The narrow question presented is whether an employer unilaterally may define the actions a union official is required to take to enforce a no-strike clause and penalize him for his failure to comply. Metropolitan Edison advances two arguments to justify the additional sanctions it imposed on Light and Lang. It contends first that its actions did not violate § 8(a)(3) because a union official has a duty to ensure compliance with the terms of the collective-bargaining agreement. Breach of this duty justifies the imposition of an additional penalty on union officials. Alternatively, the company contends that a union in effect may waive any statutory protection that otherwise would be accorded its officials by agreeing that they will undertake specific action to assure compliance with the no-strike clause. In this case, the arbitration awards and the union’s acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a clear contractual duty. We examine these arguments in turn. A Section 8(a)(3) makes it an unfair labor practice for an employer “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U. S. C. § 158(a)(3). By its terms, the statute requires proof that disparate treatment has been accorded union members and that the employer’s action is likely to discourage participation in union activities. See NLRB v. Brown, 380 U. S. 278, 286 (1965). Congress, howqver, did not intend to make unlawful all acts that might have the effect of discouraging union membership. See American Ship Building Co. v. NLRB, 380 U. S. 300, 311 (1965). Rather, the intention was to forbid only those acts that are motivated by an anti-union animus. See, e. g., NLRB v. Great Dane Trailers, Inc., 388 U. S. 26, 33 (1967); NLRB v. Brown, supra, at 286-287. In determining whether Metropolitan Edison’s conduct constitutes a § 8(a)(3) violation, we are guided by well-established precedent. Where there is direct evidence of an employer’s antiunion motive, the Court has recognized that otherwise legitimate actions may constitute unfair labor practices. See NLRB v. Erie Resistor Corp., 373 U. S. 221, 227 (1963). Where, as here, there is only circumstantial evidence of intent to discriminate, identification of a § 8(a)(3) violation involves a more difficult inquiry. Intent must be inferred from conduct. But an employer may take actions in the course of a labor dispute that present a possible complex of motives, see id., at 228, and it is often difficult to identify the true motive. In these situations, the Court has divided an employer’s conduct into two classes. See NLRB v. Great Dane Trailers, Inc., 388 U. S., at 33-34. Some conduct is so “‘inherently destructive of employee interests’ ” that it carries with it a strong inference of impermissible motive. See id., at 33 (quoting NLRB v. Brown, supra, at 287). In such a situation, even if an employer comes forward with a nondiscriminatory explanation for its actions, the Board “may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.” 388 U. S., at 33-34. On the other hand, if the adverse effect of the discriminatory conduct on employee rights is “ ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.” Id., at 34 (emphasis in original). Congress has entrusted this determination in the first instance to the Board, see NLRB v. Erie Resistor Corp., supra, at 236, and we turn now to its decisions. B The Board has found that disciplining union officials more severely than other employees for participating in an unlawful work stoppage “is contrary to the plain meaning of Section 8(a)(3) and would frustrate the policies of the Act if allowed to stand.” Precision Castings Co., 233 N. L. R. B., at 184. This conduct, in the Board’s view, is “inherently destructive” of protected individual rights because it discriminates solely on the basis of union status. See Consolidation Coal Co., 263 N. L. R. B. 1306 (1982); Indiana & Michigan Electric Co., 237 N. L. R. B. 226 (1978), enf. denied, 599 F. 2d 227 (CA7 1979). The Board has concluded that an employer’s contractual right to be free of unauthorized strikes does not counterbalance the “discriminatory effects of singling out union officers for especially harsh treatment. ” Consolidation Coal Co., 263 N. L. R. B., at 1309. Disciplining union officials discriminatorily may have only an indirect effect on the rank and file’s decision to strike, but it may well deter qualified employees from seeking union office. See ibid. We defer to the Board’s conclusion that conduct such as Metropolitan Edison’s adversely affects protected employee interests. Section 8(a)(3) not only proscribes discrimination that affects union membership, it also makes unlawful discrimination against employees who participate in concerted activities protected by §7 of the Act. See Radio Officers v. NLRB, 347 U. S. 17, 39-40 (1954). Holding union office clearly falls within the activities protected by § 7, see General Motors Corp., 218 N. L. R. B. 472, 477 (1975), and there can be little doubt that an employer’s unilateral imposition of discipline on union officials inhibits qualified employees from holding office, see Szewczuga v. NLRB, 222 U. S. App. D. C. 336, 347, 686 F. 2d 962, 973 (1982). Determining that such conduct adversely affects protected employee interests does not conclude the inquiry. If the employer comes forward with a legitimate explanation for its conduct, the Board must “strike the proper balance between the asserted business justifications and the invasion of employee rights.” NLRB v. Great Dane Trailers, Inc., supra, at 33-34. In this case the company has argued that its actions were justified because there is an implied duty on the part of the union officials to uphold the terms of the collective-bargaining agreement. Unquestionably there is support for the proposition that union officials, as leaders of the rank and file, have a legal obligation to support the terms of the contract and to set a responsible example for their members. See Indiana & Michigan Electric Co. v. NLRB, 599 F. 2d, at 230-232. And in view of the disruptive effects of wildcat strikes, the importance of ensuring compliance with no-strike clauses is self-evident. See Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 248-249, and n. 17 (1970); Complete Auto Transit, Inc. v. Reis, 451 U. S. 401, 418-419 (1981) (Powell, J., concurring in part and concurring in judgment). But it does not follow that an employer may assume that a union official is required to attempt to enforce a no-strike clause by complying with the employer’s directions and impose a penalty on the official for declining to comply. As the Board has concluded, the imposition of such a penalty would violate § 8(a)(3). We think the Board’s view is consistent with the policies served by the Act. “The entire process of collective bargaining is structured and regulated on the assumption that ‘[t]he parties... proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.’” General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375, 394 (1982) (quoting NLRB v. Insurance Agents, 361U. S. 477, 488 (I960)). Congress has sought to ensure the integrity of this process by preventing both management and labor’s representatives from being coerced in the performance of their official duties. See Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790, 810-811 (1974); id., at 814 (White, J., dissenting). Cf. 29 U. S. C. § 158(a)(2) (specifying employer domination of unions as an unfair labor practice). If, as the company urges, an employer could define unilaterally the actions that a union official is required to take, it would give the employer considerable leverage over the manner in which the official performs his union duties. Failure to comply with the employer’s directions would place the official’s job in jeopardy. But compliance might cause him to take actions that would diminish the respect and authority necessary to perform his job as a union official. This is the dilemma Congress sought to avoid. We believe the Board’s decision furthers these policies and uphold its determination. HH 1 — \ The company argues that even if § 8(a)(3) would prohibit it from imposing a more severe penalty on union officials than on other employees, the union in effect has waived the protection afforded by the statute. The substance of this contention is that, in this case, the prior arbitration awards and the union’s acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a corresponding contractual duty. We are met at the outset, however, by the union’s response that the statutory right to be free from discrimination may never be waived. We examine first the union’s argument. A This Court long has recognized that a union may waive a member’s statutorily protected rights, including “his right to strike during the contract term, and his right to refuse to cross a lawful picket line.” NLRB v. Allis-Chalmers Manufacturing Co., 388 U. S. 175, 180 (1967) (footnotes omitted). Such waivers are valid because they “rest on ‘the premise of fair representation’ and presuppose that the selection of the bargaining representative ‘remains free.’” NLRB v. Magnavox Co., 415 U. S. 322, 325 (1974) (quoting Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 280 (1956)); cf. NLRB v. Allis-Chalmers Manufacturing Co., supra, at 180-181. Waiver should not undermine these premises. Thus a union may bargain away its members’ economic rights, but it may not surrender rights that impair the employees’ choice of their bargaining representative. See NLRB v. Magnavox Co., supra, at 325. We think a union’s decision to bind its officials to take affirmative steps to end an unlawful work stoppage is consistent with “the premise of fair representation.” Such a waiver imposes no constraints on the employees’ ability to choose which union will represent them. Imposition of this duty is more closely related to the economic decision a union makes when it waives its members’ right to strike. It merely requires union officials to take steps that are ancillary to the union’s promise not to strike and provides the employer with an additional means of enforcing this promise. The union argues that while a union may waive rights that are collective in nature, such as the right to strike, it may not waive individual rights, such as the right to hold union office. In Ford Motor Co. v. Huffman, 345 U. S. 330 (1953), however, the Court recognized that in securing the good of the entire bargaining unit, some differences in the treatment of individual union members might occur: “Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id., at 338. No-strike provisions, central to national labor policy, often have proved difficult to enforce. See Boys Markets, Inc. v. Retail Clerks, 398 U. S., at 248-249, and n. 17; Complete Auto Transit, Inc. v. Reis, 451 U. S., at 423-424 (Powell, J., concurring in part and concurring in judgment). A union and an employer reasonably could choose to secure the integrity of a no-strike clause by requiring union officials to take affirmative steps to end unlawful work stoppages. Indeed, a union could choose to bargain away this statutory protection to secure gains it considers of more value to its members. Its decision to undertake such contractual obligations promotes labor peace and clearly falls within the range of reasonableness accorded bargaining representatives. B We consider finally whether the union waived its officials’ rights. In Mastro Plastics Corp., supra, the question was whether a general no-strike provision waived the specific right to strike over an unfair labor practice. While reserving the question whether a union might waive this right if it were “explicitly stated,” the Court determined that “there is no adequate basis for implying [the] existence [of waiver] without a more compelling expression of it than appears in... this contract.” 350 U. S., at 283. Thus, we will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is “explicitly stated.” More succinctly, the waiver must be clear and unmistakable. In this case, Metropolitan Edison does not contend that the general no-strike clause included in the bargaining agreement imposed any explicit duty on the union officials. Rather it argues that the union’s failure to change the relevant contractual language in the face of two prior arbitration decisions constitutes an implicit contractual waiver. Not to give these decisions any effect, the company argues, would impair the effectiveness of the dispute resolution process for which the parties bargained. We agree that the grievance-arbitration procedure forms an integral part of the collective-bargaining process. See Clayton v. Automobile Workers, 451 U. S. 679, 686-687 (1981); Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 578 (1960). And we do not doubt that prior arbitration decisions may be relevant — both to other arbitrators and to the Board — in interpreting bargaining agreements. But to waive a statutory right the duty must be established clearly and unmistakably. Where prior arbitration decisions have been inconsistent, sporadic, or ambiguous, there would be little basis for determining that the parties intended to incorporate them in subsequent agreements. Assessing the clarity with which a party’s duties have been defined of course will require consideration of the specific circumstances of each case. Cf. Carbon Fuel Co. v. Mine Workers, 444 U. S. 212, 221-222 (1979). As noted above, the company argues that when the prior bargaining agreement was renegotiated, the union’s silence manifested a clear acceptance of the earlier arbitration decisions. During the history of collective bargaining between these two parties, however, there were only two arbitration decisions that imposed a higher duty on union officials. We do not think that two arbitration awards establish a pattern of decisions clear enough to convert the union’s silence into binding waiver. This is especially so in light of the provision in the bargaining agreement that “[a] decision [by an arbitrator] shall be binding... for the term of this agreement.” See n. 5, supra (emphasis added). We conclude that there is no showing that the parties intended to incorporate the two prior arbitration decisions into the subsequent agreement. > HH We accept the Board s conclusion that the imposition of more severe sanctions on union officials for participating in an unlawful work stoppage violates § 8(a)(3). While a union may waive this protection by clearly imposing contractual duties on its officials to ensure the integrity of no-strike clauses, we find that no waiver occurred here. Accordingly, the judgment of the Court of Appeals is Affirmed. Although the collective-bargaining agreement applicable to the incident in this case took effect on May 1, 1976, the no-strike clause has remained unchanged at all relevant times. In 1972, Metropolitan Edison disciplined union officials more severely than the other employees for not instructing striking employees to return to work. The company’s actions were upheld by the arbitrator, who found “that Union officials have an affirmative duty to protect the authority of the Union leadership from illegitimate action on the part of employees, and to uphold the sanctity of the Agreement and its established grievance procedures.” App. to Pet. for Cert. A-60 (emphasis in original). Two years later the company again determined that a senior shop steward was not taking sufficient corrective action during an unlawful work stoppage and imposed a greater penalty on him than on the other participants. This action also was upheld on arbitration. See id., at A-62, A-71. Once in 1970 and again in 1973, the company imposed a more severe penalty on union officials who participated in an unlawful work stoppage. The officials were suspended for one and five days respectively, but the union chose not to take these cases to arbitration. See App. 29, 32. The company stated that the employees were being disciplined for “failure to report to work as scheduled and participation in an unlawful work stoppage.” Metropolitan Edison Co., 252 N. L. R. B. 1030, 1333 (1980). It specified that Light and Lang were being disciplined for the same reason but added: “In addition, you are being disciplined for your failure as an elected official of Local Union 563 IBEW to demonstrate to the Company, in an objective manner, your affirmative duty as an elected officer to: “(c) Make every effort, including returning to work yourself, to end the unlawful work stoppage. “Your participation in any unlawful work stoppage in the future will result in your immediate discharge.” Ibid, (emphasis in original). Sections 8(a)(1) and (3), as set forth in 29 U. S. C. §§ 158(a)(1) and (3), provide in relevant part: “(a) It shall be an unfair labor practice for an employer— “(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 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.” Although §§ 8(a)(1) and (a)(3) are not coterminous, a violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1). See Indiana & Michigan Electric Co. v. NLRB, 599 F. 2d 227, 229, n. 2 (CA7 1979); cf. R. Gorman, Basic Text on Labor Law 137 (1976). Because the Board has not suggested that there is an independent violation of § 8(a)(1), we consider only the § 8(a)(3) charge. The bargaining agreement provided that arbitration decisions would be binding only for the term of the agreement. See 663 F. 2d 478, 484 (CA3 1981) (citing Article IX, §9.2, ¶ 4, of the collective-bargaining agreement). The Board has held that employees who instigate or provide leadership for unprotected strikes may be subject to more severe discipline than other employees. See Midwest Precision Castings Co., 244 N. L. R. B. 597, 598 (1979); Chrysler Corp., 232 N. L. R. B. 466, 474 (1977). In making this factual determination the Board has recognized that a remark made by a union official may have greater significance than one made by a rank-and-file member. See Midwest Precision Castings, supra, at 599. In this case the Board accepted the Administrative Law Judge’s finding that Light and Lang were not strike leaders, and the Court of Appeals affirmed that finding. See 663 F. 2d, at 484. We note also that the disciplinary notices issued to both Light and Lang made clear that the additional penalties imposed on them were not based on any perceived leadership role in initiating or maintaining the strike. See n. 3, supra. This case does not present the issue of the proper allocation of burdens and order of proof in a “mixed motive” case, or in cases where an employee contends that an employer’s otherwise legitimate act masks an impermissible purpose. See NLRB v. Transportation Management Corp., 674 F. 2d 130 (CA1), cert. granted, 459 U. S. 1014 (1982). The Board’s position on this question has not always been entirely clear. Some early Board opinions noted, as alternative rationales, that union officials have a greater duty than the rank and file to uphold a no-strike clause. Compare University Overland Express, Inc., 129 N. L. R. B. 82, 92 (1960); Stockham Pipe Fittings Co., 84 N. L. R. B. 629, (1949), with Chrysler Corp., 232 N. L. R. B., at 476; Pontiac Motors Division, 132 N. L. R. B. 413, 415 (1961). See also Note, Discriminatory Discipline of Union Representatives for Breach of their “Higher Duty” in Illegal Strikes, 1982 Duke L. J. 900, 904-912 (reviewing Board’s treatment of status-based responsibility). Precision Castings has eliminated any ambiguity, however, and the Board’s position has been upheld by almost every Court of Appeals that has considered this question. See NLRB v. South Central Bell Telephone Co., 688 F. 2d 345, 355 (CA5 1982); Szewczuga v. NLRB, 222 U. S. App. D. C. 336, 347, 686 F. 2d 962, 973 (1982); C. H. Heist Corp. v. NLRB, 657 F. 2d 178, 182-183 (CA7 1981) (distinguishing Indiana & Michigan Electric Co. v. NLRB, 599 F. 2d 227 (CA7 1979)). But cf. NLRB v. Armour-Dial, Inc., 638 F. 2d 51, 55-56 (CA8 1981) (upholding harsher penalties only because officials “fomented” illegal work stoppage). For example, when this Court upheld the Board’s decision that foremen could constitute an appropriate unit for collective bargaining, see Packard Motor Car Co. v. NLRB, 380 U. S. 485 (1947), Congress responded by excluding supervisors from the coverage of the Act. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 279-284 (1974); 29 U. S. C. § 152(3). Congress was concerned that if supervisors were included in a bargaining unit, ‘“management will be deprived of the undivided loyalty of its foremen.’” Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790, 809-810 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 5 (1947)). This concern was not limited to ensuring the loyalty of management’s representatives. The House Report recognized that “no one, whether employer or employee need have as his agent one who is obligated to those on the other side, or one whom, for any reason, he does not trust.” H. R. Rep. No. 245, 80th Cong., 1st Sess., 17 (1947) (emphasis in original); see also id., at 14 (stating that management, “as well as workers, are entitled to loyal representatives in the plants”). The Board’s position on this question has not been consistent. Compare Super Valu Xenia, 228 N. L. R. B. 1254, 1259 (1977) (upholding discipline of union officials where collective-bargaining agreement expressly imposed higher duty on union officials), with Gould Corp., 287 N. L. R. B. 881 (1978) (discharge of union steward not validated by contractually imposed duty), enf. denied, 612 F. 2d 728 (CA3 1979). Recently, in Consolidation Coal Co., 263 N. L. R. B. 1306 (1982), two Board members held that a contractual duty will not justify the imposition of more severe sanctions on union officials. See id., at 1310 (Members Fanning and Jenkins). Member Zimmerman would have allowed waiver where the duty was explicit. See id., at 1311-1312. Two members would have found an affirmative duty even absent such waiver. See id., at 1313 (Chairman Van de Water, dissenting); id., at 1319 (Member Hunter, dissenting). To the extent Consolidation Coal provides any guidance as to the Board’s present views, it suggests that a majority of the Board would find no statutory violation where the bargaining agreement imposes a specific duty on union officials. The Courts of Appeals that have considered this question have agreed that this statutory protection may be waived. See, e. g., NLRB v. South Central Bell Telephone Co., 688 F. 2d, at 356; Fournelle v. NLRB, 216 U. S. App. D. C. 173, 182-183, 670 F. 2d 331, 340-341 (1982); Gould, Inc. v. NLRB, 612 F. 2d 728, 733 (CA3 1979), cert. denied, 449 U. S. 890 (1980); C. H. Heist Corp. v. NLRB, 657 F. 2d, at 183. The union contends that Alexander v. Gardner-Denver Co., 415 U. S. 36, 51 (1974), demonstrates that the individual right not to be discriminated against may never be waived. In Gardner-Denver, however, we noted that waiver would be inconsistent with the purposes of the statute at issue there. As discussed above, the National Labor Relations Act contemplates that individual rights may be waived by the union so long as the union does not breach its duty of good-faith representation. The Courts of Appeals have agreed that the waiver of a protected right must be expressed clearly and unmistakably. See, e. g., Chesapeake & Potomac Telephone Co. v. NLRB, 687 F. 2d 633, 636 (CA2 1982); NLRB v. Southern California Edison Co., 646 F. 2d 1352, 1364 (CA9 1981); Communication Workers of America, Local 1051 v. NLRB, 644 F. 2d 923, 927 (CA1 1981). The holding in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962), is not to the contrary. There the Court found that a contract provision establishing that a dispute shall be settled exclusively and finally by compulsory arbitration makes clear that the union may not strike over such a dispute. See id., at 105. Lucas Flour established that there does not have to be an express waiver of statutory rights, but waiver was implied in that situation only because of the unique conjunction between arbitration and no-strike clauses. Cf. Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 382 (1974). An arbitration decision may be relevant to establishing waiver of this statutory right when the arbitrator has stated that the bargaining agreement itself clearly and unmistakably imposes an explicit duty on union officials to end unlawful work stoppages. Absent such a statement, the arbitration decision would not demonstrate that the union specifically intended to waive the statutory protection otherwise afforded its officials. In this ease, however, the two arbitration decisions did not purport to determine the parties’ specific intent. Even if the arbitration decisions do not state that there is a specific and explicit duty, they still may be relevant in determining the parties’ intent. Where there is a clear and consistent pattern of arbitration decisions the parties, in some circumstances, may be said to have incorporated the decisions into their subsequent bargaining agreements. Cf. Carbon

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Marvin DALTON, Appellant, v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA; and North Carolina State Personnel Commission, Appellees. No. 81-1242. United States Court of Appeals, Fourth Circuit. Argued Nov. 3, 1981. Decided Feb. 25, 1982. Rehearing and Rehearing En Banc Denied April 21,1982. Kenneth N. Flaxman, Durham, N. C. (Julius LeVonne Chambers, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P. A., Charlotte, N. C., on brief), for appellant. Norma S. Harrell, Asst. Atty. Gen., Thomas S. Whitaker, Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N. C., on brief), for appellees. Before HAYNSWORTH, Senior Circuit Judge, and RUSSELL and HALL, Circuit Judges. DONALD RUSSELL, Circuit Judge: The plaintiff/appellant Marvin Dalton, along with three other plaintiffs, suing individually and as representatives of a proposed class, filed in May, 1975, a discrimination action under Title VII, 42 U.S.C. § 2000e et seq., and § 1981, 42 U.S.C., against the defendant Employment Security Commission of North Carolina, and certain individual defendants. Early in the proceedings the individual defendants were, however, dismissed as parties, by consent. The action seems to have proceeded haltingly with the plaintiffs seeking class certification only in 1979, about three years after the action was filed. In response to what the defendants urged was plaintiffs’ belated request for class certification, the defendants moved for summary judgment for failure of the plaintiffs to prosecute their action diligently. The district judge refused to grant summary judgment at this stage of the proceedings for failure to prosecute diligently. He construed, though, the § 1981 action against the defendants who remained, (i.e., the two State Departments) as in effect one against the State and held that, under the Eleventh Amendment, the plaintiffs could not recover against those Departments a money judgment but were restricted in remedy to injunctive relief. That ruling is not challenged in this appeal. In the same order the district judge did dismiss three of the plaintiffs, including the plaintiff Dalton, as plaintiffs because of their failure to file a charge with, or to obtain a right-to-sue letter from, the Equal Employment Opportunity Commission before suit. In each instance, however, he authorized the participation of the dismissed plaintiffs as members of the class simultaneously certified with Bailey as a class representative, if they qualified as a member of such class. At the same time a class certification, stated to be tentative and conditional, was approved with Bailey designated as class representative. This tentative class certification, entered on May 7, 1980, was later amended to define the certified class as: “All black persons employed by the Employment Security Commission of North Carolina on or after May 17, 1973 who were denied promotions, or who were deterred from applying for promotions, because of the promotional testing program used by the Employment Security Commission prior to November, 1975.” On the eve of trial, some five or six years after the action had been begun, the parties agreed on a “Consent Decree” which expressly stipulated that it was “a final adjudication of all issues raised in this action, excepting that of Walter Bailey.” This Decree was consented to by counsel for the defendants and by the attorneys for the plaintiffs who had filed the action originally on behalf of all four plaintiffs and for whom an allowance of attorneys fees and costs was made. The district judge to whom the Decree was submitted for approval, ordered notice to be given to all interested parties, with opportunity to anyone dissatisfied to object, before determining to approve .it. Such notice was published in some seventeen newspapers located in all parts of the State, including all the leading dailies. There being no objection filed, the Decree was duly entered on November 10, 1980, after a finding by the Court “that this Decree will further the objectives of Title VII, and should be approved pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.” The Court retained “jurisdiction of this matter for the entry of such orders as [might] be necessary.” Primarily, this retention of jurisdiction was to resolve the claim of the plaintiff Walter Bailey. Finally, on January 28, 1980, the Court finding that the “personal claims of plaintiff Walter Bailey [had] been resolved among the parties,” dismissed the action “with prejudice,” adding “that this order shall serve as the final adjudication of all issues raised in this action.” That order was also agreed to by counsel. The plaintiff Dalton has now appealed from the final decision in this proceeding “insofar as said order made final and appealable a) the order of May 5, 1978 dismissing original plaintiff Dalton as a named plaintiff and b) the order of May 7, 1980 excluding unsuccessful applicants for employment from the plaintiff class.” The basis for the district court’s order dismissing Dalton as a plaintiff in the Title VII action, which is Dalton’s first assignment of error, was his failure to file a charge with or to receive a right-to-sue letter from the EEOC. It is the position of Dalton that the filing of a charge with the EEOC is not an essential qualification of a plaintiff under Title VII in a multi-plaintiff action. Concededly any Title VII claim of Dalton, had he filed as the sole plaintiff, would have been properly dismissed for failure to file a charge with the EEOC. There is some confusion in the decisions on the treatment to be accorded his claim if he sues along with other plaintiffs who have qualified by filing charges with, and receiving a right-to-sue letter from, the EEOC. Some of the decisions hold categorically that such a plaintiff should be dismissed. That was the rule followed by the district court in this case. In other decisions, the standing of a non-charging plaintiff has been upheld if his claim is “substantially identical” with that of another plaintiff who has standing under Title VII to sue. Though the district court did not advert to this more liberal line of cases, it is obvious that Dalton would not have had a right to remain as a party plaintiff under the rationale of such cases since his claim was not “substantially identical” with that of Bailey, the only plaintiff with standing to maintain a Title VII action. Dalton’s complaint alleged discrimination in hiring; Bailey’s charges were for discriminatory treatment in employment. Dalton’s dismissal as a party plaintiff in the Title VII action was accordingly proper. The conclusion that his dismissal as plaintiff was proper also disposes of Dalton’s second claim on appeal (so far as a Title VII action is concerned) that he was improperly denied the right to represent applicants for employment as a class representative. But Dalton argued that, even if his dismissal as a plaintiff in the Title VII action and the failure to certify him as a class representative were appropriate, the dismissal of his claim under § 1981 was erroneous, since the filing of a charge with the EEOC is not a condition to the right to maintain a § 1981 action. The position of Dalton on this point is sound. However, he has actually suffered no prejudice by the dismissal of such action. Under the ruling of the district court — not contested by Dalton — Dalton’s remedy in the § 1981 action was limited to injunctive relief. The Consent Decree provides complete injunctive relief against “discriminating on the basis of race, sex or national origin in hiring, promotion, upgrading, training, assignment or discharge or otherwise discriminating against an individual employee with respect to compensation, terms and conditions or privileges of employment because of such individual’s race, sex or national origin.” That provides as much relief as Dalton could have secured had he,continued as a plaintiff in the § 1981 action and had been certified as a class representative. Thus any error in dismissing Dalton as a plaintiff in the § 1981 action and as a class representative was harmless. Finally, it would seem that the Consent Decree precludes continued assertion of a claim in this proceeding by Dalton. His counsel consented to the Consent Decree. Moreover, the fullest possible public notice of that Decree was given all interested parties, including the plaintiff Dalton. That Decree was expressly declared to be a final resolution of all issues in the case with a single exception in favor of the claim of the plaintiff Bailey. The Decree should be given proper effect. If it is given such effect, there is no basis for appeal herein. We accordingly find no merit in the appellant’s claim for the reasons assigned and affirm the judgment of the district court. AFFIRMED. . On motion of the Employment Security Commission, the State Personnel Commission of North Carolina was added as a defendant. . Of the four plaintiffs only the plaintiff Bailey had filed charges of discrimination with the EEOC and obtained a right-to-sue letter prior to suit. The plaintiff McLean had filed charges but she had not received a right-to-sue letter. Neither the plaintiff Hubbard nor the plaintiff-appellant Dalton had filed charges of discrimination with the EEOC or obtained a right-to-sue letter. The claim of discrimination by Bailey was discriminatory treatment as an employee; that by McLean discriminatory denial of promotion, and that by Dalton and Hubbard discriminatory failure to hire after successfully passing the test for applicants. There is, however, in the record an affidavit from the official in charge of the records of the defendant that there is no record that Dalton either ever applied for employment or had taken the test for applicants. This discrepancy between the defendants’ records and the plaintiff Dalton’s claim was not resolved. . This certification was, oddly enough, different from the actual charges filed by Bailey with the EEOC. Bailey had filed three complaints with the EEOC; the first on November 9, 1973, the second on February 17, 1975, and the third (designated as “Amended”) on October 6, 1975. In his first charge he claimed that he was being required to “spend an hour to an hour and a half [of] my day relieving the receptionist,” despite the fact that this was not “required of the other Employment Counselor who is white.” The second charge complained of harassment “because [he] filed a complaint charging unlawful employment practices with EEOC in November of 1973.” The final, or “Amended,” charge was that the complainant had been “discharged .. . because of [his] race (Negro) and retaliated against because [he] previously filed a charge alleging unlawful employment practices.” . Inda v. United Air Lines, Inc., 565 F.2d 554, 558-59 (9th Cir. 1977). . Crawford v. United States Steel Corp., 660 F.2d 663, 665-66 (5th Cir. 1981).

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 42. 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 42? Answer with a number.

Jacob SCHAEFER, Appellee, v. Daniel LEONE, Warden, Hartford Correction Center, Appellant. No. 311, Docket 34493. United States Court of Appeals, Second Circuit. Argued Jan. 27, 1971. Decided May 24, 1971. John F. Mulcahy, Jr., Deputy Chief Prosecutor, New Haven, Conn., for appellant. John P. McKeon, Hartford, Conn., for appellee. Before WATERMAN, MOORE and FEINBERG, Circuit Judges. MOORE, Circuit Judge: Daniel Leone, Warden of the Hartford Correctional Center, appeals from the granting of appellee Jacob Schaefer’s petition for a writ of habeas corpus. The sole issue presented for review is whether a misstatement of Connecticut law by a Connecticut trial court to a jury regarding provable elements of the crime charged, held by the Connecticut appellate courts to constitute nonreversible error, is a question of constitutional dimension thereby creating a substantial federal question cognizable by the federal courts under their habeas corpus jurisdiction. We reverse. “Pool Selling. Any person, whether as principal, agent or servant, who owns, possesses, keeps, manages, maintains or occupies, or assists in keeping, managing, maintaining or occupying, any building, room, office, park, ground, enclosure or place with apparatus, books or boards or any device for the purpose of making, recording or registering bets or wagers, or of buying or selling pools upon the result of any trial or contest of skill, speed or endurance of man, beast, bird or machine, or upon the result of any game, competition, political nomination, appointment or election, whether such trial, contest, game, competition, nomination, appointment or election takes place either within or without this state, or where pool selling of any kind, either directly or indirectly, is permitted or carried on, or in which the business of transmitting money to any race track or other place there to be placed or bet on any horse race, game, sport, competition, nomination, appointment or election, whether within or without this state, is permitted or carried on in any manner, and any person who keeps a place which is reputed to be a place resorted to for the purpose of selling pools upon the result of any election, and any person who makes, records or registers any such wagers or bets, or buys or sells, or is concerned in buying or selling, any such pools, or in earrying on the business of the transmission of money to any race track or other place there to be bet or placed on any horse race, game, sport, competition, nomination, appointment or election, whether within or without this state, and any person who, being the owner, lessee or occupant of any building, room, park, ground, enclosure or place, or part thereof, knowingly permits the same to be used or occupied for any such purpose, on the first conviction shall be fined not more than one thousand dollars or be imprisoned not not more than one year or both fined and imprisoned; and on a second or subsequent conviction shall be fined not less than five hundred dollars nor more than three thousand dollars and be imprisoned not less than thirty days nor more than three years; and each day of such owning, keeping, occupying, permitting any person who becomes the custodian or depositary of any pools, money, property or thing of value, in or transmitting shall constitute a separate offense. Any manner wagered or bet upon such result or of any apparatus of any kind used for the purpose of assisting in buying or selling any such pools or making any such wagers or bets, shall be punished in like manner. The provisions of this section shall not prohibit the giving of purses or premiums for any trial or contest of skill, speed or endurance of man, beast, bird or machine and the charging of an admission or entrance fee to any contestant in any such trial or contest.” FACTS AND PROCEDURAL HISTORY Appellee Schaefer sought release from imprisonment following his conviction by a jury on March 18, 1968, on a single count of “pool selling” in violation of the Connecticut anti-pool selling statute, Conn.Gen.Stat. § 53-295, the text of which is reproduced in the margin Evidence seized from Schaefer’s possession which was introduced at trial included two pieces of paper identified at trial as bookmakers’ “tally sheets,” a National Armstrong Daily (a publication containing current racing information and betting odds), several football schedules containing handwritten numbers identified at trial as “lines” or “point spreads” and the charred remains of other papers retrieved from Schaefer’s fireplace identified at trial as bookmakers’ “worksheets” containing notations of names, initials and dollar amounts. Schaefer appealed his conviction to the Appellate Division of the Connecticut Circuit Court, claiming, in part, error in the charge to the jury. The conviction was affirmed, the court finding that “[rleading this portion of the charge as well as the charge as a whole, it meets the test of correctness and adequacy and should be sustained.” On September 24, 1969, the Connecticut Supreme Court refused to certify the jury charge issue for appeal. Having exhausted his State remedies, Shaefer petitioned the United States District Court for a writ of habeas corpus on October 6, 1969, pursuant to 28 U.S.C. § 2254. DISCUSSION The thrust of Schaefer’s petition is that the trial court’s assumed misinterpretation of the requirements of the applicable Connecticut statute in his charge to the jury (which is set forth in the margin), in failing to include reference to criminal intent, resulted in Shaefer’s allegedly unconstitutional conviction of a nonexistent crime, in violation of his rights under the First, Fifth and Fourteenth Amendments. Although the challenged instruction concededly was objected to specifically and in timely fashion, and although “mere possession” is not one of the five sets of circumstances under which one can be found guilty of “pool selling” in Connecticut, we reverse because the District Court did not properly have jurisdiction over Shaefer’s habeas corpus petition, as it had not raised any question of substantial constitutional significance. In justifying the existence of a fundamental question of constitutional significance, Schaefer and the District Court have relied on the authority of Cole v. Arkansas. In Cole, the Supreme Court reversed convictions which had previously been affirmed by State appellate courts on the basis of a substantive statutory section completely different from that for the violation of which the defendants were charged, tried and convicted in the first instance. As this precis and the language of Cole itself indicate the issue there was one of reasonable notice to a defendant of the charge brought and a fair opportunity to prepare and present a defense thereto. No allegation of constitutionally inadequate notice is made here. Rather, Schaefer strongly urges us to uphold the District Court’s reliance on Cole and asks us to disregard the facts (1) that he had fair notice of the substantive charge against him, and (2) that he was afforded a full and fair trial thereon, followed by appellate review of the jury instruction question through Connecticut’s highest court. Morissette v. United States, also relied upon by Schaefer and the District Court in attempting to demonstrate the “fundamental unfairness” of the State trial court’s error of omission, is clearly distinguishable from the case at bar. Morissette was concerned not at all with any constitutional question, but solely with determining the import of Congressional omission of the requirement of guilty intent in a statutory offense. The Supreme Court in Morissette granted certiorari for the narrow purpose of reviewing a federal trial court’s instruction with respect to the elements of a federal offense in its supervisory capacity over the federal courts. Upon the facts here presented, we hold that the legality of Schaefer's conviction was properly the exclusive province of the Connecticut courts. Were we to hold otherwise, the District Court’s rationale would turn every disagreement by a federal district judge with a State court’s interpretation of a State statute and their appraisal of a State trial court’s instructions thereunder potentially into a question of “fundamental due process.” This result would impose an additional burden on our already overburdened federal courts and pose an unnecessary and undesirable threat of greatly increased federal intervention in cases involving the sufficiency of jury instruction and the construction of State law. Any such interpretation would be contrary to the proper role of historic federal habeas corpus jurisdiction, namely, not to serve as the basis for merely an additional appeal. As the Supreme Court has stated: “His [the trial judge’s] action has been affirmed by the highest court of the Commonwealth. We are not at liberty to conjecture that the trial court acted under an interpretation of the state law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied. We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.” Reversed. . State v. Schaefer, CR-17-5828 (Cir.Ct. 17, March 18, 1968). . Section 53-295 reads as follows: . State v. Schaefer, 5 Conn.Cir. 669, 260 A.2d 623 (June 13, 1969). . 260 A.2d at 632. . State v. Schaefer, Vol. XXXI, No. 15, Conn.L.J. 9 (1969). . The trial court’s charge with respect to the statutory elements of the crime of “pool selling” in pertinent part reads as follows: 153. “The statute also prohibits one from having in his possession and under his control a betting line. It does not specifically say so, or odds upon football games as the possession of this line or odds as [is] prohibited by that portion of the statute which prohibits one from being concerned in pool selling. And, if you find that the defendant did have such a line or lines or odds in his possession and under his control, yon should find him guilty in this respect.” [Emphasis supplied.] . What the trial judge arguably did through the challenged instruction was to afford the jury the opportunity to convict Schaefer under § 53-295 without apprising them of the necessary element of “possession for the purpose of buying or selling pools.” [Emphasis supplied.] This omission the District Court found the Connecticut trial judge without constitutional authority to do. Memorandum of Decision at 15a. . 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). . 342 U.S. 246, 263, 72 S.Ct. 240, 96 L. Ed. 288 (1952). . Gemmel v. Buchkoe, 358 F.2d 338, 341 (6th Cir.), cert. denied, 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306 (1966) (allegedly erroneous instruction with regard to the theory of murder in the perpetration of a robbery). . See Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960) (Sobeloff, Ch. J.); Gemmel v. Buckhoe, 358 F.2d 338, 340 (6th Cir.), cert. denied, 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306 (1966). . Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948).

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?

Jose Manuel FIGUEROA-RODRIGUEZ, et al., Plaintiffs, Appellees, v. Aurelio LOPEZ-RIVERA, etc., Defendant, Appellant. Jose Manuel FIGUEROA-RODRIGUEZ, et al., Plaintiffs, Appellees, v. Aurelio LOPEZ-RIVERA, etc., Defendant, Appellee. Appeal of Alice NET-CARLO. Nos. 87-1319, 87-1320. United States Court of Appeals, First Circuit. April 22, 1988. Alice Net Carlo with whom Law Offices of Garcia Rodon, Correa Marquez & Vald-eras, Hato Rey, P.R., was on brief, for defendant, appellant. Pedro Miranda Corrada, San Juan, P.R., with whom Hector Urgell Cuebas was on brief, for plaintiffs, appellees. Before TORRUELLA and SELYA, Circuit Judges, and CAFFREY, Senior District Judge. Of the District of Massachusetts, sitting by designation. SELYA, Circuit Judge. This is yet another of the long, gray line of suits brought pursuant to 42 U.S.C. § 1983 in the aftermath of Puerto Rico’s 1984 gubernatorial election. Like most of the others, this action involves claims of politically motivated firings said to be viola-tive of the principles announced in 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). The affected employees, Jose Manuel Figueroa Rodriguez (Figueroa) and Luis Raul Roig Perez (Roig), were professional fire-fighters of long standing. Each occupied a substantially identical position as a “Zone Firemen Chief” (ZFC) in the Puerto Rico Fire Service. When ousted by defendant-appellant Aurelio Lopez Rivera (Lopez), the newly-appointed Chief, plaintiffs sued for reinstatement, damages, and other redress. The adverse employment actions were, they averred, politically inspired. After some preliminary skirmishing (not here material), Lopez moved for summary judgment. He claimed that a ZFC was a “policymaker” and that political affiliation was a suitable credential for such a post. The district court denied the motion. Figueroa v. Lopez Rivera, 657 F.Supp. 125, 128 (D.P.R.1987). Because it thought the Rule 56 motion “meritless and frivolous,” the court also fined defendant and his counsel $1000, jointly. Id. at 128. Lopez, clambering through the jurisdictional window framed by the Court’s decision in Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985), appealed the denial of his Rule 56 motion; he and his counsel, appellant Alice Net Carlo, also appealed the imposed sanction. I Under Mitchell, our role as to the first (merits) appeal is severely circumscribed. We can pass only on the question of whether partial summary judgment based on qualified immunity should have been ordered. See Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir.1987). We express no opinion on any other merits-related issues discussed in the district court’s opinion. Earlier today, this same panel filed an opinion which, we believe, expresses our basic views on the qualified immunity issue. See Fontane-Rexach v. Puerto Rico Electric Power Authority, 878 F.2d 1493. We regard Fontane-Rexach as a qualtagh for purposes of Lopez’s appeal. Appellees, like Fontane-Rexach himself, occupy “positions involving matters devoid of partisan concerns,” op. at 1494 (quoting Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir.1987)). That being so, the Elrod/Branti inquiry is answered and any need to consider whether ZFCs are policymakers is eliminated. We need illustrate this but briefly. The record contains an uncontested official job description formulated by the Puerto Rico Central Office of Personnel Administration. We attach it in full as an appendix. It can readily be seen that the duties and responsibilities of the position, while meaningful, are politically neutral. Unlike, say, the Chief — whose work is politically sensitive and who is a prime instrument of the administration in implementing its legitimate political goals — a ZFC’s work is weighted heavily toward technical and professional matters, e.g., “direct[ing] ... fire extinction and rescue work in his area,” insuring “that the fire [fighting] equipment ... is always maintained in optimum working conditions,” coordinating the flow of work by promulgating “work plans” and “givpng] follow-up to same,” and by “main-tainpng] the system of work shifts.” Appendix, infra, at 1492. Moreover, a ZFC is required to have both specialized training and experience, as well as distinctive knowledge of professionally-gaited matters like “modern principles, practices and procedures of fire prevention and extinction” and of “the use, operation and maintenance of fire fighting equipment.” Id. at 1492. The science of fire extinguishment is not logically divisible into a “PNP method” and a “PDP method.” A report of a burning building, one hopes, would bring the same swift, workmanlike response irrespective of the political leanings of the owner or occupant. Coordination of a zone-wide plan for, say, inspecting fire hydrants, seems (canine constituencies excepted) a politically neutral task. And the paramilitary structure of public safety agencies like the Fire Service requires fealty to the institution, not to any political party. In brief, the functions of a ZFC are remote from any partisan-responsive goals which the Fire Service may legitimately possess. The policy-implementing component of the job is, in the main, politically neutral. The need for strict professionalism is compelling. Under Elrod/Branti, and for some of the same reasons elucidated in Fontane-Rexach, 878 F.2d at 1494-1496. Political affiliation seems not to be an appropriate requirement for such an office. II Lopez argues that, even if the ZFC positions were in the shelter of Elrod/Branti, that fact was not “clearly established” when he gave a new twist to an old holiday and cashiered both plaintiffs effective April 1, 1985. We disagree. The legal theorems and precedents by which this contention must be judged are set forth in Fontane-Rexach, 878 F.2d at 1496-1498. The instant case is plainer still. As we see it, the protected nature of the employment was “manifestly evident in the doctrinal underpinnings of the general rule [announced in Elrod and Branti] concerning when — and under what circumstances —pure patronage dismissals might or might not be justifiable.” Vazquez Rios, 819 F.2d at 326. Indeed, there is precious little in the way of a conceptual difference between a ZFC and the chief deputy in the Cook County Sheriffs Office. In the same vein, a parallel can be drawn between a ZFC and the hypothetical head coach of a state university’s football team, of whom Justice Stevens wrote: “The coach ... formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of state government.” Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95. See also Fontane-Rexach, 878 F.2d at 1497 (and cases discussed therein); Vazquez Rios, 819 F.2d at 328-29 (law clearly established in 1985 as to nonpolitical status of, inter alia, supervisor of domestic services at Governor’s mansion); Jones v. Dodson, 727 F.2d 1329, 1338-39 (4th Cir.1984) (chief deputy sheriff protected against patronage dismissal). There is, to our way of thinking, a fundamental difference between a public safety agency, such as the Fire Service or a police department, on the one hand, and a social service agency on the other. In the former case, the agency’s role, for the most part, concerns matters about which there is no room for political disagreement. Except at the highest levels of authority — levels which we need not pinpoint, but which plainly surpass that attained by a ZFC— ideologic orientation is (or should be) immaterial. Beneath the top rank, even policy-making should have no bearing on the agency’s partisan-responsive goals; a forti-ori, the same should be true of policy implementation. In the social services area, this clearcut separation of politics from practice often does not exist. See, e.g., Bonilla v. Nazario, 843 F.2d 34, 36-37 (1st Cir.1988) (discussing Puerto Rico Automobile Accident Compensation Administration); Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 260-61 (1st Cir.1987) (discussing Rural Housing Administration). As a result, party affiliation may well be an appropriate qualification for certain social service jobs but totally inappropriate for public safety posts of roughly coequal rank. The long and the short of it, we think, is that a third-tier job in a public safety agency such as the Fire Service, organized along paramilitary lines, could not reasonably have been considered “grist for the political mill.” Fontane-Rexach, 878 F.2d at 1498. Elrod, after all, held as much. See supra note 3. It follows that, on the record presently before us, Lopez did not enjoy qualified immunity. III The last remaining matter pertains to the sanction; it is, as a game-show host might phrase it, “the $1000 question.” The fine was levied under Fed.R.Civ.P. 16(f), the relevant text of which we have set out in the margin. In imposing it, the district court ruled that defendant’s summary judgment motion “was meritless and frivolous, and delayed the Court’s attention to other matters.” Figueroa, 657 F.Supp. at 128. Section (f) was born in 1983, when a sweeping overhaul of Rule 16 was undertaken. The amendments were aimed primarily at “encourag[ing] pretrial management that meets the needs of modern litigation.” Fed.R.Civ.P. 16 advisory committee's note, reprinted in 97 F.R.D. 165, 206 (1983). In these days of increasingly complicated cases and burgeoning filings, judges must have at their fingertips smooth-running, productive machinery for conducting litigation and managing caseloads. Section (f) is meant to be the judicial stick which insures that lawyers and litigants partake of the carrot of increased efficiency. The rule, however, is narrow-gauged. It authorizes the imposition of sanctions in only four specific instances: (1) failure to obey a scheduling or pretrial order, (2) failure to appear at a scheduling or pretrial conference, (3) substantial unpreparedness on the occasion of such a conference, or (4) failure to participate in such a conference in good faith. Fed.R.Civ.P. 16(f). Its use must be limited accordingly; Rule 16(f) sanctions cannot be prescribed as a panacea to cure the ills of a bar which sometimes falls short of meeting, generally, acceptable standards of practice. Moreover, nothing about the rule divorces it from the usual requirement that findings be made adequate to support its invocation. Cf. Salahuddin v. Harris, 782 F.2d 1127, 1133 (2d Cir.1986) (adoption of Rule 16(f) “did not loose a strange and capricious new beast”). In this case, the district court made no findings which would bring the case within the ambit of Rule 16(f), nor is it evident on the face of the record that one or more of the four venal sins which the rule proscribes was committed. The conclusory statement that the motion was “meritless and frivolous,” unsupported by particularized subsidiary findings or by an explication of the court’s reasoning with respect to when and how Rule 16 was trammelled, is not enough to sustain the imposition of sanctions. Cf. Pearson v. Fair, 808 F.2d 163, 165-66 & n. 2 (1st Cir.1986) (per curiam) (discussing need for articulated findings of fact under Rule 52(a)); Lyles v. United States, 759 F.2d 941, 943-44 (D.C.Cir.1985) (similar). This failure, we think, is especially telling because the filing of a “meritless and frivolous” pleading does not, in itself, transgress Rule 16. Because the record as it stands does not support the conclusion that Rule 16(f) was countervailed, we are constrained to hold that the district court abused its discretion in imposing the fine. Having said as much, let us remark that we share the concerns of an able district judge that state actor defendants in section 1983 cases may be filing Mitchell -type motions “as a matter of course, without regard to the facts or the applicable jurisprudence.” Figueroa, 657 F.Supp. at 128. As the law becomes better and better defined in this circuit in patronage dismissal cases, the Elrod-Branti spectrum contracts, and there is less and less basis either for claiming qualified immunity or for denying the existence of qualified immunity in cases which fall at one of the ends of the continuum. We are confident, however, that Rule 11 — which we have recently construed as requiring attorneys “to conduct [themselves] in a manner bespeaking reasonable professionalism and consistent with the orderly functioning of the judicial system,” Sullivan, 843 F.2d at 598-599 — will serve as an adequate brake should the bar’s zeal overwhelm its judgment. IV We need go no further. In our view, the district court did not err in denying defendant’s motion for partial summary judgment on the basis of qualified immunity. The lower court misused its discretion, however, which necessitates that the fine imposed under Rule 16(f) be vacated. Appeal No. 87-1319 is overruled and the order refusing summary judgment is affirmed. Costs in favor of appellees. Appeal No. 87-1320 is sustained and the order imposing sanctions is vacated. No costs. APPENDIX ZONE FIREMEN CHIEF 6316 NATURE OF THE JOB This is highly responsible administrative and supervisory work which comprises directing the activities which are developed within a zone of the Puerto Rico Fire Department. DISTINCTIVE ASPECTS OF THE JOB: The employee performs work which is extremely difficult and has a lot of administrative responsibility in planning, directing and supervising the activities of the Fire Department in the zone under his charge. Participates actively in the formulation of the policies to be followed with respect to the prevention and extinction of fires. Exercises direct supervision over the Chiefs of the District Firemen in their zone and generally over the remaining personnel of the Fire Department assigned to the zone. Performs his functions with entire freedom of criteria, using the established methods and procedures, which are in agreement with the norms and policies set forth by the agency. Works under the administrative direction of the Chief and Assistant Chief of the Fire Department, who review his work through the evaluation of the reports which he prepares and through the achievements obtained. TYPICAL EXAMPLES OF THE JOB: Plans, directs, supervises and coordinates the activities of the Fire Department in the zone under his command. Supervises the personnel assigned to his zone. Sets forth the work plans of the zone and gives follow-up to same. Directs the task of fire extinction and rescue work in his area. Edits and reviews correspondence and reports on fires and other required aspects of the job. Interprets the laws, regulations and norms applicable to the job. Assumes command over all the fire extinction operations in his zone, unless relieved by the Chief or Assistant Chief of the Fire Department. Maintains the system of work shifts of the Officers assigned to the districts comprised within the zone. Insures that the fire equipment assigned to the zone is always maintained in optimum working conditions. Visits and effects periodic inspections of the Fire stations in the zone. Coordinates a plan for inspecting fire hydrants with the Chiefs of District Firemen under his supervision. Coordinates with the Chiefs of District Firemen under his supervision, a plan for effecting inspection visits on factories, businesses, industries and other facilities in the zone as part of the fire prevention program. Prepares reports for the Chief and the Assistant Chief of the agency on the work performed in the zone and others required. Performs other related required tasks. KNOWLEDGE, ABILITY AND MINIMUM SKILLS Considerable knowledge on the modern principles, practices and procedures of fire prevention and extinction. Considerable knowledge of the rules and regulations of the Fire Department and the laws and regulations pertaining to fire prevention. Considerable knowledge on the use, operation and maintenance of fire fighting equipment. Ability to plan, assign, direct and coordinate the work of a group of operational units and to instruct and supervise subordinate personnel. Ability to prevent the risk of fire in the assigned zone. Ability to establish and maintain effective labor relations with the subordinates, officials and officers of the agency and the general public. Ability to express oneself clearly and precisely, verbally and in writing. PREPARATION AND MINIMUM EXPERIENCE Graduation from fourth year high school, complemented by formal training courses in the methods and techniques of preventing and extinguishing fires. Six (6) years experience in all phases of fire extinction and prevention, one of which must be in functions comparable in nature and complexity to those performed by a District Fire Chief II. PROBATIONARY PERIOD Eight (8) months. (handwritten note “This has not be revised by the Fire Department but is not followed”) By virtue of the authority conferred upon me by Section 4.2 of Law 5 of October 14, 1985, Law of Personnel in Public Service, I hereby approve the preceding new class which will become part of the Classification Plan as of December first, 1977. San Juan, Puerto Rico, December 6, 1977. (sgd.) José R. Feijoo José Roberto Feijoó, Esq. Director . The Chief is the head of the Fire Service. His second in command is the Deputy Chief. Under them, the organization chart spawns four coequal divisions (administration, training, prevention, and extinguishing). The last, which has the responsibility for hands-on firefighting, is split along geographic lines into four zones. Each zone operates under a ZFC. . The Partido Nuevo Progresista (PNP) ruled Puerto Rico prior to the 1984 general election, which was won by the Partido Popular Demo-crático (PPD). . John Burns, Chief Deputy of the Process Division of the Cook County Sheriffs Office, supervised all departments of the office housed on one floor of a large office building. Elrod, 427 U.S. at 350-51, 96 S.Ct. at 2678-79. Justice Brennan, in the Court’s very first formulation of what has evolved into the “Elrod/Branti doctrine," ruled that Burns’s position was safe from patronage dismissal. . We acknowledge that the four ZFC positions are all denominated as "trust” positions (“de confianza") under P.R.Laws Ann. tit. 3, §§ 1349-51 (1978). This circumstance, though it is to be considered, does not answer the Elrod/Branti inquiry. See Fontane-Rexach, 878 F.2d at 1495 n. 3; Jimenez Fuentes v. Torres Gatzambide, 807 F.2d 236, 246 (1st Cir.1986) (en banc). . Rule 16(f) provides in pertinent part: If a party or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just,.... . "[B]aseless filings” can, of course, run afoul of Fed.R.Civ.P. 11, see In re D.C. Sullivan Co., 843 F.2d 596, 600 (1st Cir.1988), and thereby support a sanctions order. And an attorney “who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously can be ordered to defray the excess costs under 28 U.S.C. § 1927. The district court, however, did not invoke either of these authorities, and we, therefore, take no view of their applicability in this instance.

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

ERIE R. CO. v. KAZANECKI et al. (Circuit Court of Appeals, Third Circuit. December 29, 1925. Rehearing Denied February 2, 1926.) No. 3342. 1. Trial- <^=>260(1) — Refusal of charge, which in substance was already given, not error. Refusal of trial court to give requested charge, which was qualified and in substance already charged, held not error. 2. Railroads <§=3358(2) — Care required as to children playing in yards with company’s acquiescence. . Railroad company has right to exclusive use of its tracks; yet, when children of community have for many years constantly used railroad yard as playground with company’s knowledge and acquiescence, there arises duty to exercise care towards them as persons whose presence is permitted, and therefore to be anticipated. 3. Railroads @=398(1) — Permissive use of yard as playground may be proved by witness observing children playing. , Permissive use of railroad yard by children as playground may be proved by testimony that witness had played there as a child, and for 20 years had observed children doing so. 4. Railroads @=400(2) — Permissive use of yard by children as playground held for jury. In action for injury to child playing on track and struck by car, evidence held sufficient to submit issue of permissive use of railroad yard by children as playground to jury. 5. Railroads @=398(1) — Finding of negligence as to child permissibly on track sustained. Evidence held sufficient to submit case and sustain verdict, based on railroad company’s lack of care and caution to a child permissibly on its track. In Error to the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge. Suit by John Kazaneeki, Jr., a minor, by his parent and next friend, John Kazaneeki, Sr., and another against the Erie Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Thomas Patterson, J. M. Graham, and Patterson, Crawford, Miller & Arensberg, all of Pittsburgh, Pa., for plaintiff in error. Ruff alo, Drake & Wall,, of Cleveland, Ohio, and Robbin B. Wolf and MeCreery & Woli, all of Pittsburgh, Pa., for defendants in error. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. The child in this ease went upon a track of the defendant railroad company and was injured. After suit he had the judgment to which this writ of error is directed. Except the refusal of the trial court to charge one of its points (which was qualified and in substance already charged and therefore is without error), the defendant (below) raises on this review but two questions: First, whether there was sufficient evidence of permissive use to take the case out of the operation of the general rule of law that a trespasser, though an infant, cannot recover for an injury sustained on the land of another, except when the act is wanton or willful; and second, if the evidence of permissive use was sufficient, whether there was evidence of negligence on the part of the defendant, that is, evidence of a violation of its duty to give warning of danger to a child permissibly on its tracks. The central question in this ease therefore is one of permissive use. From the thorough discussion of the law of that subject, based upon an extended citation of authorities, we gather that the defendant does not question the law but challenges the sufficiency of the evidence in this ease to invoke its operation. In pressing this line of attack the defendant made careful comparisons of the facts of this ease with the facts of other cases where courts have found, and have not found, the evidence sufficient to submit to juries and to sustain verdicts. While such comparisons may be helpful, the instant ease cannot be decided by its resemblance or lack of resemblance to other eases on the facts but must be decided on the law as applied to its own facts. One of the leading eases in Pennsylvania on the law of permissive use is O’Leary v. P. & L. E. R. R. Co., 248 Pa. 4, 93 A. 771, followed by this court in D., L. & W. R. R. Co. v. Baltrushitis, 247 F. 474, 159 C. C. A. 528, and based on the earlier cases of Kay v. P. R. R. Co., 65 Pa. 269, 3 Am. Rep. 628; Henderson v. Continental Refining Co., 219 Pa. 384, 68 A. 968, 123 Am. St. Rep. 668; Millum v. L. & W. Coal Co., 225 Pa. 214, 73 A. 1106; Steele v. L. S. & M. S. R. R. Co., 238 Pa. 295, 86 A. 201. While the learned trial court entertained a doubt as to the decision-of that case, it followed it, as we shall do, assuming'that it correctly states the law of the Commonwealth of Pennsylvania. The substance of that decision is that a railroad company has the right to the exclusive use of its tracks, and that any stranger, an infant or an adult, going upon them is a trespasser; yet when the children of a community have for many years constantly used a railroad yard as a' playground, with the company’s knowledge and acquiescence, the rights and duties of the parties change; children so using the yards and tracks are not trespassers, and there arises in the railroad company the duty to exercise care towards them as persons whose presence is permitted and therefore to be anticipated. Mr. Justice Stewart, in Francis v. Railroad Co., 247 Pa. 425, 93 A. 490, tersely made the distinction on which turns the instant ease by stating that: “The purpose [of the testimony as to permissive use], however, was not to show any right in the boy, but a duty resting on the defendant, because of its acquiescence in a use by the public of a path upon its track, to take notice of conditions, it had suffered to arise, and exercise that degree of care which the law requires when such conditions exist.” Whether in a given case the conditions existed and whether, accordingly, the duty to exercise such care arose, the learned justice, continuing, said: “Where a higher degree of care is demanded under some circumstances than others, and where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligent, and whether it has been proved.” With these brief observations on the law we come to the facts and, taking up the first question, inquire whether there was sufficient evidence of permissive use to justify the submission of the ease to the jury. From the testimony — limited in amount, but clear, direet and positive in character — the jury, if they believed the witnesses, could have found these facts: The defendant owns and controls in Oil City, Pennsylvania, a freight yard of considerable size. Track No. 7 is parallel to and contiguous with Stevens Street. No fence or other thing marks the line between the street property and the railroad property. There is nothing but the track itself to indicate where the street ends and the railroad yard begins. To a casual observer it would appear that the track is on the street. The plaintiff resides in a house on the side of Stevens Street opposite that of the track. The neighborhood is large and contains many children who continually play upon the track. One witness testified that, when a child, he had played in and about the yard and that for twenty years he had observed children doing so. On a ruling that the testimony of use must be restricted to the place of the accident, thereafter this witness and others testified, by reference to a photographic exhibit showing the place of the accident, that children for a long time and as a matter of habit played upon the street and over and upon the track. Permissive use may be proved by testimony of this character. In kind and amount we think it was sufficient to show the defendant’s knowledge of the use to which the children put its property and its acquiescence therein, and sufficient to raise on its part a duty of due care and caution toward those whom it might expect would'be upon its premises. Accordingly, it was enough to submit to the jury on the issue of permissive use. The next question is whether, assuming the fact of permissive use, there was enough evidence on the issue of the defendant’s negligence to warrant submission. As to the care and caution which the railroad company exercised on this occasion, the evidence is negative for the reason that (according to the testimony for both parties) its conduct was negative. The story of the accident is short. The child was on the street playing ball with other children when the defendant shunted or kicked several freight cars upon the track. The ball was thrown in the direction of the track and the child, following the ball, stooped to pick it up when the wheels of one of the cars ran over his arm. Witnesses were asked questions such as these: “Did you see any brakeman or anyone else riding on these cars? Did you see any brakeman or any railroad man standing around there? Did you hear any bell or any whistle sounded on any engine that may have been there? Did you hear any warning of any description before you saw Johnny running for home?” All answers were in the negative. When the defendant came to its case, its evidence as to care and caution on the part of any of its employees was equally negative. No one testified that he saw the child or that a warning of any kind was given. On the record the jury might have found, as evidently they did, that the ears were being shunted back without a warning and without a trainman being on them. The evidence, we- think, was sufficient to submit the case and to sustain the verdict básed on the defendant’s laek of care and caution to a child permissibly on its track. The judgment below is affirmed.

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

ZWEIFEL, TUOHY & CRAGER et al. v. TRANS-STATE OIL CO. No. 8914. Circuit Court of Appeals, Fifth Circuit. Nov. 18, 1938. Seymour Lieberman, of Houston, Tex,, and Henry Zweifel, of Fort Worth, Tex., for appellants. - L. Sanford Schwing and Charles Rein-hard, both of Houston, Tex., for appellee. Before SIBLEY, HOLMES, and McCORD, Circuit Judges. HOLMES, Circuit Judge. The appellants are attorneys who represented the debtor, the Trans-State Oil Company, in reorganization proceedings under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. By this appeal, they seek reversal of an order which denied them any fee for their services payable out of the assets of the debtor’s estate. The opinion of the District Court is reported in Re Trans-State Oil Co., 24 F.Supp. 454, to which reference is made for a further statement of the facts. The court found that the appellants had performed services to the estate of the reasonable value of between three thousand and five thousand dollars, but that, since the debtor had agreed to pay them ten thousand dollars after the estate should be closed, which was more than the value of their services, it was the duty of the court to decline to make any allowance whatever out of the estate, leaving the attorneys free to pursue the matter otherwise as they saw fit. The agreement referred to was in the form of a written memorandum, signed for the debtor by its president, and provided that, in consideration of work done in reorganizing the company, the latter agreed to pay said attorneys, besides the money allowed by the court (which would be paid before the creditors were paid), an additional sum of ten thousand dollars, payable after payment of the creditors as set out in the plan. We concur with the court below that such agreement was not binding on it in this proceeding, and that it had no jurisdiction to determine its validity as an obligation of the debtor; but we think the court erred in declining to allow any compensation to appellants payable out of the assets of the estate. There was no intention on the part of the debtor or its attorneys that the agreed amount of ten thousand dollars should be in lieu of any such allowance by the court. The memorandum expressly provides that this shall be an additional sum, “besides the money allowed by the court, which will be paid before the creditors are paid.” The recent act of Congress (28 U.S. C.A. § 572a) which prohibits certain agreements fixing fees in reorganization proceedings provides, in case of violation, for the imposition of severe penalties by fine or imprisonment, or both; but it does not undertake to forfeit a reasonable compensation, actually earned, for the services. The court below neither approved nor disapproved the agreement for additional compensation, but assumed that it was binding on the debtor. We also withhold approval or disapproval, as beyond our jurisdiction on this appeal, but we do not find it necessary to assume that the agreement is binding on the debtor. As there was no waiver of compensation out of the assets of the estate, and the payment of the ten thousand dollars is to some extent contingent, we think a reasonable fee should be allowed appellants, expressly withholding any decision as to the effect of the agreement, other than that it does not preclude such reasonable allowance at this time out of the assets of the estate. The order of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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

The BECKER ELECTRIC COMPANY; Plaintiff, Bertke Electric Company, Inc.; and Stapleton Electric Company, Plaintiffs-Appellants, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION # 212 AFL-CIO; and International Brotherhood of Electrical Workers, Defendants-Appellees. No. 90-3348. United States Court of Appeals, Sixth Circuit. Argued Nov. 27, 1990. Decided Feb. 5, 1991. Daniel P. Dooley (argued) and Raymond D. Neusch, Frost & Jacobs, Cincinnati, Ohio, for Becker Elec. Co., plaintiff, Bertke Elec. Co., Inc., and Stapleton Elec. Co., plaintiffs-appellants. Gary Moore Eby (argued), Kircher & Phalen, Cincinnati, Ohio, Gary Snyder, Jerry A. Spicer, Snyder, Rakay & Spicer, Dayton, Ohio, and Richard M. Resnick, Sherman, Dunn, Cohen, Leifer & Yellig, Washington, D.C., for Intern. Broth, of Elec. Workers, Local Union # 212 AFL-CIO and Intern. Broth, of Elec. Workers, defendants-appellees. Before MARTIN and JONES, Circuit Judges, and ENGEL, Senior Circuit Judge. PER CURIAM. Plaintiffs-appellants Bertke Electric Company, Inc. and Stapleton Electric Company are electrical contracting companies. For many years, Bertke and Stapleton were parties to a collective bargaining agreement (“CBA”) with defendant-appel-lee International Brotherhood of Electrical Workers, Local Union 212, AFL-CIO (“Local 212”). The most recent CBA between the parties ran from June 1, 1981 through May 31,1984. During negotiations in early 1984, Local 212 demanded that a “work preservation clause” be included in the contract. The proposed work preservation clause read as follows: (a) In order to protect and preserve, for the employees covered by this Agreement, all work heretofore performed by them and in order to prevent any device or subterfuge to avoid the protection and preservation of such work, it is hereby agreed as follows: If and when the Employer shall perform any work of the type covered by this Agreement, under its own name or under the name of another, as a corporation, company partnership or any other business entity, including a joint venture, wherein the employer, through its officers, directors, partners, or stockholders, exercises either directly or indirectly management, control or majority ownership the terms and conditions of this Agreement shall be applicable to all such work. J.App. at 10 (complaint). Local 212 desired the clause due to a practice in the construction industry called “double-breasting”. A double-breasted, or dual shop, employer maintains one company that is a signatory to a CBA while maintaining a second, non-union company in the same line of work in order to utilize non-union labor. Local 212 feared that these non-union shops would diminish its job opportunities. There was evidence that Bertke had engaged in double-breasting. Bertke Electric was formed in 1928 as a closely-held corporation controlled by the Bertke family. In the early 1980s, Bertke Investments, Inc. was formed as an investment holding company. By 1984, Bertke Investments controlled 100% of the stock of Bertke Electric as well as that of a subsidiaries named Belemech, Inc., a non-union electrical contracting company, and Bertke Services. All these concerns were controlled by the Bertke family and had interlocking directorships. Belemech, as a non-union shop, was formed to obtain small electrical contracting jobs because the market for union contractors, such as Bertke Electric, had dried up. J.App. at 220 (deposition of Frank Bertke). During July and August 1984, plaintiffs bargained with Local 212 to impasse. During negotiations, the work preservation clause was the primary impediment to an agreement. Local 212 commenced a strike on August 27, 1984. The local picketed Bertke and Stapleton’s offices and construction sites. On April 3, 1986, plaintiffs filed this action in the U.S. District Court for the Southern District of Ohio, Judge Herman J. Weber presiding, against Local 212 and the International Brotherhood of Electrical Workers, AFL-CIO (“the International”). Plaintiffs alleged that Local 212’s strike was unlawful because the purpose was to force plaintiffs to agree to the work preservation clause. Plaintiffs argued that the clause violated section 8(e) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(e), and that therefore the strike was in violation of sections 8(b)(4)(i)-(ii)(A) of the NLRA. Plaintiffs also maintain that the International was liable because it had encouraged and authorized the unlawful strike. Plaintiffs asked for damages of $5,622,000.00. Plaintiffs and defendants both moved for summary judgment. On December 27, 1989, Magistrate Robert A. Steinberg issued his Report and Recommendation denying plaintiffs’ motion and granting summary judgment for defendants. The Magistrate found that the work preservation clause did not violate NLRA section 8(e). The Supreme Court has stated that work preservation clauses are designed to preserve “for the contracting employees themselves work traditionally done by them.” NLRB v. Enterprise Ass’n of Pipefitters, Local Union No. 638, 429 U.S. 507, 517, 97 S.Ct. 891, 897, 51 L.Ed.2d 1 (1977). To determine whether the work preservation clause in the instant case was lawful, the Magistrate applied a two-part test from NLRB v. Int’l Longshoreman’s Ass’n, 447 U.S. 490, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1979) (ILA I): (1) the clause “must have as its objective the preservation of work traditionally performed by employees represented by the union”, and (2) “the contracting employer must have the power to give the [union] employees the work in question.” Id. at 504-05, 100 S.Ct. at 2313-14. As an alternative means to validate the clause, the Magistrate also discussed the “construction industry proviso” of section 8(e). The proviso exempts contracting agreements done at a construction site between a labor organization and a construction employer. The purpose of the proviso is to prevent “job site friction between union and nonunion workers” by allowing a contractor not to subcontract construction site work to a nonunion subcontractor. J.App. at 84. The Magistrate found that the work preservation clause did not violate section 8(e) because its purpose was to preserve work traditionally done by Local 212’s members, and not to affect nonunion companies like Belemech affiliated with plaintiffs. The Magistrate also found that the clause had no secondary objectives, and that Bertke and Stapleton control the work sought by Local 212. Alternatively, the Magistrate determined that the clause would be protected by the construction industry proviso because the clause is limited to job site work. As a result of these findings, the Magistrate found that the issue of the International’s liability was moot. On March 16, 1990, the district court adopted the Magistrate’s Report and Recommendation and granted summary judgment for defendants. This timely appeal followed. I The NLRA prohibits strikes designed to force an employer to enter into an agreement which violates section 8(e). 29 U.S.C. § 158(b)(4)(i), (ii)(A). Section 8(e) is designed to prohibit agreements or activities with secondary effects. A secondary boycott, for example, is designed to coerce third-party customers or suppliers to withhold business relations from a primary employer. The distinction between primary and secondary activity focuses on intent. Plaintiffs argue that the purpose of the strike and picketing was to force them to enter into a “hot cargo” agreement prohibited by section 8(e) of the NLRA. Thus, the issue in this case is whether the clause violates section 8(e). Both parties agree that the clause would violate section 8(e) if it has secondary objectives designed to affect the labor relations of a separate, third-party employer. Plaintiffs assert that the clause has secondary effects because it would operate to apply the terms of the CBA to neutral, although related, employers. Specifically, “related companies may constitute separate employers for purposes of the secondary boycott provisions of the Act.” Brief of Plaintiffs-Appellants at 19-20. Plaintiffs fear a situation where “if a husband were an officer, director, partner or stockholder in a union company, the clause, by its terms would apply to another company which might be solely owned by his wife or another family member because of the indirect management or control language of the clause.” Id. at 17-18. Plaintiffs argument focuses on the “direct or indirect” language of the clause to demonstrate its overbreadth. Plaintiffs frame the question of whether the clause violates section 8(e) in terms of a four-part test used by the NLRB and the Supreme Court to determine if two entities constitute a single employer. South Prairie Construction Co. v. Local No. 627, Int’l Union of Operating Engineers, 425 U.S. 800, 802 n. 3, 96 S.Ct. 1842, 1843 n. 3, 48 L.Ed.2d 382 (1976) (per curiam) (four elements are “ ‘interrelation of operations, common management, centralized control of labor relations and common ownership.’ ”) (citation omitted). Plaintiffs therefore criticize the Magistrate for failing to make findings of fact as to whether Bertke and Belemech were a single employer under these standards. In particular, plaintiffs argue that although Belemech was a non-union subsidiary of Bertke Investments, it should be considered a neutral for labor relations purposes. However, we find the NLRB’s single employer test to be inapplicable to the instant case. The Supreme Court has clearly stated that work preservation clauses do not violate the NLRA merely because a neutral employer is to some degree affected. National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 627, 87 S.Ct. 1250, 1259, 18 L.Ed.2d 357 (1967) (“This Court [has] accordingly refused to read § 8(b)(4)(A) to ban traditional primary strikes and picketing having an impact on neutral employers even though the activity fell within its sweeping terms.”). Relying on National Woodwork, the Magistrate correctly addressed its inquiry to whether the clause was “primary”, or “directed to the labor relations between the contracting employer and its union employees.” J.App. at 82. Thus, the impact on neutral employers is not relevant because a bona fide effort to preserve jobs in the face of a threat is a primary objective. National Woodwork, 386 U.S. at 640, 87 S.Ct. at 1266. See also NLRB v. Int’l Longshoremen’s Ass’n, 473 U.S. 61, 79, 105 S.Ct. 3045, 3056, 87 L.Ed.2d 47 (1985) (ILA II) (clause “to preserve work in the face of a threat to jobs” has a “clear primary objective”). Plaintiffs also correctly state that a clause which seeks to acquire work for the union rather than to preserve existing work violates section 8(e). In support of plaintiffs’ contention that the clause at issue was meant to acquire rather than to preserve work, they describe a separate non-union or “merit shop” market which exists apart from the unionized market. Plaintiffs then assert that Belemech was a non-union, “merit shop” company and that the clause was therefore acquisitive because any work which Belemech performed was work which would never have gone to Local 212 in the first place. We are unconvinced by plaintiffs’ argument. First, plaintiffs incorrectly emphasize the union/“merit shop” distinction. The proper focus of analysis should be “the traditional work patterns that the parties are allegedly seeking to preserve, and ... how the agreement seeks to accomplish that result under the changed circumstances[.]” ILA I, 447 U.S. at 507, 100 S.Ct. at 2315. As the Magistrate recognized, “[l]abor has the right to seek to preserve traditional work in an attempt to respond to change.” J.App. at 91. The growth of non-union companies performing work which was traditionally performed by union companies is precisely the environment where work preservation clauses are most essential. The Magistrate found that the work preservation clause stemmed from Local 212’s desire to preserve work it had traditionally done which it feared was slipping away to non-union “double-breasts”. The clause only addresses efforts by the primary employer to avoid the CBA by performing union jobs through other entities it controls. As the Magistrate stated, “the fact that work has been eliminated through some change or innovation provides both the motivation and need for work preservation clauses.” J.App. at 91. We conclude that the clause does not violate section 8(e). The purpose of the clause in this case was to preserve union jobs. The secondary effects which plaintiffs base much of their argument on does not address the Magistrate’s conclusion that defendants “face the threat of losing traditional work to a nonunion double-breast, such as Belemech.” Id. Because insistence on the clause was a response to this threat, the union has demonstrated that the primary object of the clause was work preservation. As the Supreme Court has stated, “[wjhen the objective of [a work preservation] agreement and its enforcement is so clearly one of work preservation, the lawfulness of the agreement under §§ 8(b)(4)(B) and 8(e) is secure absent some other evidence of secondary purpose.” ILA II, 473 U.S. at 81-82, 105 S.Ct. at 3057-58. II Given our conclusion that the work preservation clause at issue does not violate section 8(e), we decline to address plaintiffs arguments that the clause is not protected by the construction industry proviso. We note, however, that the Supreme Court has relied on the proviso to endorse a preservation clause broader than the one in dispute in the instant case. In Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 648-49, 102 S.Ct. 2071, 2074-75, 72 L.Ed.2d 398 (1982), a union demanded that a clause be inserted in a CBA prohibiting the subcontracting of work at a construction jobsite “ ‘except to a ... signatory to this Agreement.’ ” Id. As in the case at bar, the union picketed and the employer filed unfair labor practice charges, claiming a violation of section 8(e). The Court unanimously held that the construction industry proviso protected the clauses sought by the unions: We hold that the construction industry proviso to § 8(e) of the National Labor Relations Act ordinarily shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective-bargaining relationship, even when not limited in application to particular jobsites at which both union and nonunion workers are employed. This interpretation of the proviso is supported by its plain language, as well as the legislative history. Id. at 666, 102 S.Ct. at 2083. Thus, we would agree with the Magistrate that the proviso supports the validity of the work preservation clause. In addition, we also find the issue of the liability of the International to be moot in light of our conclusion that the clause does not violate section 8(e). Ill As we find the Magistrate’s analysis of the validity of the work preservation clause to be correct, the judgment of the district court is AFFIRMED. . Becker Electric Company was a plaintiff in district court, but did not join the appeal. Three other electric companies who were plaintiffs below — Denier, Norvell, and Wray — also declined to join Bertke and Stapleton on appeal. . In October 1986, Local 212 was decertified as the representative of Bertke Electric’s employees. After Bertke Electric became non-union, Belemech ceased to exist. . Section 8(b)(4) of the NLRA provides, in relevant part: (b) It shall be an unfair labor practice for a labor organization or its agents— (4)(i) to engage in ... a strike ... or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this agreement. 29 U.S.C. § 158(b)(4)(i), (ii)(A)(1988) (emphasis added). . Section 8(e) states in relevant part: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void[.] 29 U.S.C. § 158(e)(1988).

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

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

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

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?

CHANDLER v. METOMKIN BANK & TRUST CO. et al. No. 4067. Circuit Court of Appeals, Fourth Circuit. Nov. 9, 1936. James E. Heath, of Norfolk, Va., and Stewart K. Powell, of Onancock, Va., for appellant. D. Arthur Kelsey, of Norfolk, Va., and B. Drummond Ayres, of Accomac, Va. (Warner Ames, of Onancock, Va., and Kelsey & Jett, of Norfolk, Va., on the brief), for appellees. Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge. NORTHCOTT, Circuit Judge. This is an appeal from an order of adjudication and reference in bankruptcy, entered in the District Court of the United States for the Eastern District of Virginia, in April, 1936, in which order the appellant, herein referred to as the petitioner, was adjudged an involuntary bankrupt. In November, 1933, certain creditors of the petitioner filed against him a petition in involuntary bankruptcy, alleging that on July 7, 1933, he had, being then insolvent, committed an act of bankruptcy, and praying that he be adjudged a bankrupt. The petitioner filed an answer alleging that on. July 7, 1933, he was a person engaged chiefly in farming or the tillage of the soil and requesting a jury trial on this issue. On March 13, 1936, a jury trial was had, it being agreed by the parties that the sole issue of fact to be submitted to the jury was whether at the time of the commission of the alleged act of bankruptcy the petitioner was a person chiefly engaged in farming or the tillage of the soil. The jury returned a verdict finding that the petitioner was not a person so engaged. A motion was made to set aside this verdict on the ground that it was contrary to the law and the evidence, which motion was overruled and the order complained of entered. From this action of the court below this appeal was brought. For many years prior to December 20, 1931, the petitioner had been the cashier of a banking institution, known as the Accomac Banking Company, doing business at Parksley, Va. On said December 20, 1931, the bank closed and the petitioner lost his position as cashier. There was testimony to the effect that when the bank was reorganized he applied for a position with the reorganized institution but was not employed; this the petitioner denied. While he was cashier of the bank the petitioner owned, either in whole or in part, interests in various tracts of farming land in the neighborhood of Parksley, and his residence in Parksley. He also had the management of a farm owned partly by his wife as well as a farm owned by his aunt. All of these farms were occupied by tenants who furnished their own farming equipment and paid as rent, according to the custom in that section, a certain percentage of the farm profits. The petitioner exercised a general supervision of the farms under his charge, but the tenants, as a rule, -used their own judgment as to what crops should be raised and how the land should be farmed. Petitioner testified that he had approximately $40,000 invested in farming land. In the year 1932 petitioner engaged in the produce brokerage business representing a company known as the Farmers Produce Company and had an office in Parksley, where he continued to reside, in which office he spent practically all of his time. In the year 1933, prior to the alleged act of bankruptcy, he formed a connection with the Seaboard Produce Distributors on' a commission basis and earned as commission during the balance of that year the sum of $184.47. The petitioner’s management and conduct of the farms which -he controlled was practically the same after he went into the produce brokerage business as it was while he was cashier of the bank. It is evident that he was endeavoring to establish a business as a produce broker. There was some conflict in the evidence, but a study of the record shows conclusively that there was substantial evidence to justify the verdict of the jury, in fact sufficient evidence to compel the verdict that the jury returned. A discussion, by this court, of the point here involved will be found in Virginia-Carolina Chemical Company et al. v. Shelhorse et al. (C. C.A.) 228 F. 493. While the findings of the jury upon an issue such as this are advisory merely, and are not conclusive on the facts, as in a law case, they are entitled to great weight and, when approved by the judge, they will not be disturbed unless clearly wrong. Gross et al. v. Tierney et al. (C.C.A.) 55 F.(2d) 578; Beneke et al. v. Moss (C.C. A.) 46 F. (2d) 948; Willis v. Blue Ridge Bank, Inc., et al. (C.C.A.) 15 F.(2d) 848. Cases relied upon by the petitioner involve a different state of facts from those here proven, and it is evident that each case must be decided upon the particular facts there involved. The point raised by the petitioner that if he were not a farmer he was a wage-earner has no merit. It was agreed that the only issue to be submitted to the jury was whether he was engaged chiefly in farming or the tillage of the soil. No evidence was submitted upon the question of the petitioner being a wage-earner. Even if this point could be raised for the first time in the appellate court, the evidence submitted on behalf of the petitioner, especially his own statement, shows that he was working on commission for the produce firms with which he was connected and was in no sense a wage-earner. The written instruction requested by petitioner at the trial was properly refused by the judge below, and the court’s charge to the jury was fair. There were no exceptions taken to either the refusal to give the instructions or to the court’s charge. The jury properly found that at the time of the commission of the alleged act of bankruptcy the petitioner was not engaged chiefly in farming or the tillage of the soil, and he was clearly not a wage-earner. The order of the court below is accordingly affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals.

Was there any amicus participation before the court of appeals?

SHERMAN INV. CO. v. UNITED STATES. No. 14562. United States Court of Appeals Eighth Circuit. Nov. 7, 1952. Oliver T. Remmers, St. Louis, Mo. (Remmers & Remmers, St. Louis, Mo., on the brief), for appellant. Isadore A. Honig, Sp. Litigation Atty., Office of Rent Stabilization, Washington, D. C. (Ed Dupree, Gen. Counsel, A. M. Edwards, Jr., Asst. Gen. Counsel, Nathan Siegel, Sol., and John A. McLeod, Jr., Sp. Litigation Atty., Washington, D. C., on the brief), for appellee. Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges. GARDNER, Chief Judge. This appeal is from a judgment requiring Sherman Investment Company to repay and refund to certain of its named tenants designated amounts as overcharges of rent collected from them by appellant and enjoining appellant from soliciting or receiving any rent, on all controlled housing accommodations owned, operated and managed by it in excess of the. maximum legal rent as determined by said judgment, or from otherwise violating the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. The judgment was entered in an action brought under Section 206(b) of the Housing and Rent Act of 1947, as' amended,.50 U.S.C.A.Appendix, § 1896(b). The complaint sought restitution of rental overcharges and injunctive relief, alleging that the housing accommodations of the Sherman Investment Company located at 6188 McPherson Avenue, St. Louis, Missouri, were subject to the Act as amended and the regulations issued pursuant thereto; that appellant received from various persons described in the complaint, for the use and occupancy of their accommodations, rent in excess of the maximum rents established under the Housing and Rent Act of 1947. Appellant, in its answer, denied that jurisdiction was conferred upon the court by the Housing and Rent Act of 1947, denied that its housing accommodations described in the complaint were subject to maximum rentals. It admitted operating the premises and the collection of the rents from various persons as alleged in the complaint. It affirmatively pleaded that the premises operated by it and described in the complaint constituted a hotel as defined in the Housing and Rent Act of 1947 and as such was excluded from control and regulation as controlled housing accommodations, and that the rentals collected by it were collected in good faith under the 'belief that they were lawful. The ultimate issue of fact for determination was whether the premises constituted an apartment hotel on June 30, 1947. The building in • question is a six-story, reinforced concrete and steel building, located at 6188 McPherson Avenue, in the City of St. Louis, Missouri. It has a lobby and parlors, hotel office and freight and passenger elevators. On the first floor of the building is a grocery and meat market, a cleaner, a drug store, a beauty shop and a food shop, and the space assigned to the manager. The remaining five stories ■ are devoted to residential quarters divided into fifty-two units. On the stipulation of the parties and the evidence produced, the court found the premises within the provisions of the Housing and Rent Act of 1947; that the defendant as landlord charged and collected from named tenants rents in excess of the maximum rentals allowable, and concluded that plaintiff was entitled to recover the excess rentals in behalf of the tenants and to an injunction. In seeking reversal appellant challenges the court’s findings of fact and conclusions of law. In its brief appellant states that “The question to be determined under the pleadings and the evidence: Was defendant operating a hotel at 6188 McPherson' Avenue in the city of St. Louis on June 30,. 1947, either under the name ‘Sherman’ or ‘Sherman Apartment Hotel’?” This, we take it, may be accepted as a statement of the question to be determined by the trial court. In this court the action is not triable de novo. As has been observed, the-court found the issues against the appellant and these findings are presumptively correct and can not be set aside unless found to be clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.;. United States v. Beatty, 8 Cir., 192 F.2d 945. Much of the evidence was the oral testimony of witnesses and it was the function of the trial court to decide on the weight of the testimony and the credibility of the various witnesses. We must assume that all conflicts in the evidence have been resolved in favor of the appellee and we must view the evidence in a light most favorable to the prevailing party. If, when-so viewed, the judgment is sustained by substantial evidence and is not clearly against the weight of the evidence, the judgment should be sustained. Whether or not the premises as conducted by appellant constituted a hotel or an apartment hotel was a question of fact. It was the contention of appellant that the premises were exempt from control under the exemption provision of the Housing and Rent Act of 1947. So far as here pertinent the exemption provision reads as follows: “(c) The term ‘controlled housing accommodations’ means housing accommodations in any defense-rental area, except that it does not include— “(1) (A) those housing accommodations, in any establishment which is commonly known as a hotel in the community in which it is located, which •are occupied by persons who are provided customary hotel services such as maid service, furnishing and laundering of linen, telephone and secretarial or desk service, use and upkeep of furniture and fixtures, and bellboy service”. 50 U.S.C.A.Appendix, § 1892. It is observed that the statute defines the term “controlled housing accommodations” as housing accommodations in any defense-rental area. These premises were within such an area and were subject to control unless within the exception noted in the statute. The burden of proving that the premises were within the exception was on the appellant. The trial court so held and that ruling is charged as error. We think this contention wholly without merit. The burden of proving an exception or an exemption is upon the one asserting it. As said by the United States Court of Appeals for the Ninth Circuit in Feeley v. Woods, 190 F.2d 228, 232: “We agree with appellee that the cases which reflect the rule of law applicable to the instant situation indicate clearly that in order for appellant to prevail in this action the burden was upon him to show that his establishment met the ‘hotel status’ requirements which conformed to the statutory requirements above noted on what has been termed ‘the cut-off date’ of June 30, 1947.” It was therefore incumbent upon appellant to prove that the premises here involved were being operated as a hotel or an apartment hotel and in order to make such proof the evidence would have to show that on June 30, 1947, it was so conducted as to be commonly known, in the particular community where it was located, as a hotel and that customary hotel services were then being furnished to the occupants of the premises. We have searched the record with great care and find no evidence even tending to show that the premises were commonly known as a hotel or as an apartment hotel in the community where located, and the court so found. There is affirmative, positive testimony that linen was not furnished to any of the tenants although there was vague testimony that it was available, but the court found, and we think the finding is compelled by the testimony, that linen was not furnished. In this connection it is significant, we think, that a witness testified to having made request for linen service and was told by the manager that linen was not furnished. The manager was not produced as a witness by the defendant, nor was failure to produce the manager explained. Maid service was not furnished, telephone service was not furnished, bellboy service was not furnished; there were no uniformed attendants and no elevator operators and the establishment was not licensed as a hotel. The occupants for the most part held leases as tenants. There was no transient occupancy immediately prior to June 30, 1947; in fact, there was no evidence that appellant furnished or made available services usually furnished by an apartment hotel, and the evidence, as noted by the trial court, fails to show that such services were made available. The trial court, after careful review and consideration of all the evidence said: “It was not until decontrol of hotels became known to defendant that it attempted to resurrect sufficient services, not to run a hotel but to qualify for exemption. It is not form but substance that must control the ruling. Defendant has failed to carry the burden of proof.” It is argued, however, that Exhibit 1, Appellant’s registration statement, which was introduced in evidence by plaintiff, showed that these premises were classified by the Area Rent Director as a hotel. This statement was prepared by appellant and opposite the word “hotel” appears an X, as reflecting appellant’s claim as to the nature of its establishment. The mere fact that this was filed was certainly not in the nature of an adjudication, nor would it es-top the appellee from proving the fact as to the nature of the establishment. The document was filed in 1944 and the vital date was June 30, 1947. In this connection it is argued by appellant that “what was once established is presumed to continue until contrary is shown.” At most, however, this is but a rebuttable presumption which can not be weighed in the balance as against evidence. The evidence in this case convinced the trial court that on June 30, 1947, this establishment was not a hotel, and such evidence was, we think, substantial and sustains the court’s finding. We are not impressed with the argument advanced by appellant that the trial court did not follow the reasoning of this court in Woods v. Benson Hotel Corp., 8 Cir., 177 F.2d 543 and in Woods v. Western Holding Corp., 8 Cir., 173 F.2d 655. The facts in the instant case are so radically different from those in the cases cited that appellant’s argument is wholly without merit. In the instant case there was neither proof of reputation nor of the services customarily furnished in hotels or apartment hotels in the vicinity where this establishment was maintained. We think the evidence, or lack of evidence, not only sustained but compelled -the findings of the court. The judgment appealed from is therefore 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. 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.

Honorable Ronald V. DELLUMS et al. v. James M. POWELL, Chief, United States Capitol Police, Appellant, Jerry V. Wilson, Chief, Metropolitan Police Department, et al. No. 75-1974. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 14, 1977. Decided Aug. 4, 1977. Rehearing Denied Nov. 14, 1977. See also, 184 U.S.App.D.C. -, 566 F.2d 216, and 184 U.S.App.D.C. -, 566 F.2d 231. Dennis G. Linder, Atty., Dept, of Justice, Washington, D. C., with whom Rex E. Lee, Asst. Atty. Gen., and Robert E. Kopp and David J. Anderson, Attys., Dept, of Justice, Washington, D. C., were on the briefs, for appellant. Warren K. Kaplan, Washington, D. C., with whom Lawrence H. Mirel, Ralph J. Temple, Mary A. McReynolds, and Kenneth V. Handal, Washington, D. C., were on the brief, for appellees. Before WRIGHT, TAMM and LEVEN-THAL, Circuit Judges. Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge. Concurring opinion filed by LEVEN-THAL, Circuit Judge. Dissenting opinion filed by TAMM, Circuit Judge. J. SKELLY WRIGHT, Circuit Judge: On November 11, 1971 this suit was brought in the United States District Court by Congressman Dellums individually and by nine persons seeking to represent a class of all persons arrested on the steps of the United States Capitol on May 5, 1971 while engaged in a protest against the war in Vietnam. Persons named as defendants included various officials of the United States and of the District of Columbia and the District itself. Suit was predicated on an allegation that the defendant officials had engaged in a civil conspiracy to arrest and detain the class members with the purpose of frustrating their First Amendment right to protest against the war. Liability was asserted under the “First, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution of the United States; the Civil Rights Act, 42 U.S.C. §§ 1981, et seq.; and the law of the District of Columbia,” and damages were alleged to be in excess of $10,000 for each plaintiff and class member. The complaint stated that the class plaintiffs had met with some 2,000 persons on the Mall near the United States Capitol on the early afternoon of May 5,1971. At that meeting plans were made to protest against the war in Vietnam by staging a public meeting at the Capitol, with Congressman Dellums and other Members of Congress to be in attendance and to address the assembled protestors. Pursuant to an agreement with police officials, those assembled on the Mall walked three abreast in groups of 21 from their meeting place on the Mall to the Capitol Grounds, obeying traffic signals and the directions of police officers along the way. At the Capitol the leaders were stopped by an officer of the Capitol Police, but were allowed to enter the Grounds when Congressman Dellums appeared and explained the.arrangements for a meeting on the Capitol steps. The group subsequently assembled on the East steps of the Capitol on the House side and “began to make and to listen to speeches concerning the People’s Peace Treaty and related matters.” While Congresswoman Abzug was addressing the crowd, at about 3:30 P.M., the police cordoned off the bottom of the steps, preventing anyone from leaving, and began arresting members of the assemblage. Arrests continued over the protests of Congressman Dellums and other Members of Congress, and the police refused Dellums’ offer to persuade the crowd to disperse. The complaint further alleged that those arrested were held for periods of from several hours to several days without being afforded due process of law. In addition; conditions of detention were said to have been inhumane in that there was severe overcrowding, inadequate sanitation, inadequate or filthy bedding," insufficient food, and no medical care. - Access to attorneys and telephones was said to have been denied or severely restricted. In answer the defendants generally denied that the demonstration at the Capitol had been peaceful and in accord with applicable law. They asserted probable cause for the arrests made at the Capitol and official immunity from prosecution. The District of Columbia raised its municipal immunity as a defense and further claimed that the individual defendants were at all times the servants of the United States. All defendants denied that conditions of detention had been inhumane. After a period of pretrial motion practice and discovery, the trial court certified this suit as a class action in May 1973 and defined the class as “all persons who were arrested while assembled on the Capitol steps on May 5, 1971.” This action came on for trial before a jury in December 1974. The evidence adduced at trial, as shall appear more fully below, was in conflict and provided support for the contentions in both the complaint and the answer. At the close of plaintiffs’ case and again at the close of all the evidence, the defendants remaining in the case — Deputy Attorney General Kleindienst, United States Capitol Police Chief James M. Powell, District of Columbia Police Chief Jerry V. Wilson, and the District of Columbia — each moved for a directed verdict. Deputy Attorney General Kleindienst’s motion was granted; all others were denied. The case was submitted to the jury and substantial verdicts were returned, as indicated in the margin. Chiefs Powell and Wilson and the District of Columbia each prosecuted appeals from the judgment entered below on the jury verdicts. The plaintiffs below have also appealed the directed verdict in favor of Deputy Attorney General Kleindienst. Finally, Chief Powell and the District have appealed from an order reinstating to this action three named plaintiffs who were dismissed before trial for failing to comply with discovery requests. These appeals were consolidated for argument; however, we have found it convenient to write separately in each. Accordingly, we will take up Chief Powell’s appeal from the judgment below in this opinion; the points raised by Chief Wilson and the District of Columbia will be the subject of an opinion in No. 75-1975; the plaintiffs’ appeal is treated by order in No. 75-2117; and objections to the reinstatement of certain named plaintiffs will be discussed in an opinion in Nos. 76-1418 & 76-1419. Chief Powell was held liable to the class plaintiffs for common law false arrest, false imprisonment, and malicious prosecution and for a Bivens claim based on violations of the First and Fourth Amendments. In addition, he was held liable to Congressman Dellums on a Bivens claim based on the First Amendment. We begin by discussing a cluster of issues surrounding the false arrest-false imprisonment-Fourth Amendment claim (which shall hereafter be referred to simply as false arrest), and then consider points raised concerning liability for malicious prosecution of the class and First Amendment liability to both the class and Congressman Dellums. I. FALSE ARREST, FALSE IMPRISONMENT, FOURTH AMENDMENT VIOLATION The tort action of false arrest in both its common law and constitutional variants protects and vindicates the interest in freedom from unwarranted interference with personal liberty. The focal point of the action is the question whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails. While the central issue of-the action is simply stated, the parties have somewhat divergent views on the mechanics of pleading, the allocation of the burden of proof, and the scope and elements' of defenses available in a false arrest action. For this reason, and to aid later analysis, we now sketch the salient features of both the common law and constitutional action. A plaintiff suing at common law must show that he has suffered an imprisr onment and that the imprisonment was unlawful. The former issue is one of fact, potentially for the jury. Under the law of the District of Columbia, the unlawfulness of a detention is presumed once “an allegation [is made] that a plaintiff was arrested and imprisoned without process.” Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.App.1973). The burden then shifts to the defendant to justify the arrest. Id.; accord, e.g., Pierson v. Ray, 386 U.S. 547, 556-557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Director General of Railroads v. Kastenbaum, 263 U.S. 25, 27, 44 S.Ct. 52, 68 L.Ed. 146 (1923); see, e.g., Restatement (Second) of Torts §§ 10 (especially comment c), 121 (1965). Justification can be established by showing that there was probable cause for arrest of the plaintiff on the grounds charged. E.g., Shaw v. May Department Stores Co., 268 A.2d 607, 609 (D.C. App.1970). A lesser showing can also be made, namely that the arresting officer had reasonable grounds to believe a crime had been committed and that plaintiff’s arrest was made for the purpose of securing the administration of the law (i.e., that the officer acted in good faith). See Wade v. District of Columbia, 310 A.2d 857, 862-863 (D.C.App.1973) (en banc), citing Pierson v. Ray, supra; Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1347-1348 (2d Cir. 1972); Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir. 1973). See also Restatement, supra, §§ 121, 127. The mechanics of pleading - and proof in a Bivens action for false arrest are in our judgment identical to those sketched above. Although we know of no case delineating the parameters of a prima facie case under a Bivens false arrest theory, Pierson v. Ray, supra, indicates that the details of constitutional tort actions should be shaped by reference to the parallel common law. See 386 U.S. at 556-557, 87 S.Ct. 1213. The rule recognized in the District that an allegation of arrest and imprisonment without warrant shifts to the defendant the burden of justifying the arrest is the majority rule in this country' and we see no identifiable purpose that would be served by adopting a different or more stringent definition of a prima facie case in constitutional litigation. On a different point, there can be no doubt that state and federal police officers sued under Section 1983 and Bivens, respectively, have available to them a qualified immunity defense, a privilege based on good faith and reasonableness, but that the burden is on the defendant officers to prove it. See Pierson v. Ray, supra, 386 U.S. at 555-557, 87 S.Ct. 1213; Bivens v. Six Unknown Named Agents of the Federa] Bureau of Narcotics, supra, 456 F.2d at 1347-1348; Hill v. Rowland, supra, 474 F.2d at 1377-1378; Jones v. Perrigan, 459 F.2d 81, 83 (6th Cir. 1972); Shifrin v. Wilson, 412 F.Supp. 1282, 1294-1295 (D.D.C.1976); cf. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); McSurely v. McClellan, 553 F.2d 1277, 1291 n.50 (1976) (en banc); Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 77-78, 516 F.2d 594, 670-671 (1975) (en banc), cert denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 187 (1976); Apton v. Wilson, 165 U.S.App.D.C. 22, 29-33, 506 F.2d 83, 90-94 (1974). In the instant case it is undisputed that members of the plaintiff class were arrested without a- warrant-. "Thus the unlawfulness of the plaintiffs’ subsequent and admitted imprisonment is presumed as' a matter of law and, contrary to the assertion of Chief Powell, plaintiffs were not Required to demonstrate that Chief Powell acted without probable cause. For the reasons set out above, the trial judge also correctly determined that the burden of proof was on Chief Powell to show that the May 5 arrests were privileged. Thus the only issue for trial was whether Chief Powell acted in good faith in arresting plaintiffs and whether his actions were reasonable in light of all the circumstances. The Supreme Court has delineated the considerations which must be made in resolving this issue: It is the existence of reasonable grounds for the belief [that cause for action existed] formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity. * * * Scheuer v. Rhodes, supra, 416 U.S. at 247-248, 94 S.Ct. 1683-1692. To establish good faith an official must show that he was “acting sincerely and with a belief that he is doing right * * *.” Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). In establishing the reasonableness of an arrest policemen are entitled to show reliance “on traditional sources for the factual information on which they decide and act,” Scheuer v. Rhodes, supra, 416 U.S. at 246, 94 S.Ct. at 1691, although this proposition must be tempered by an understanding that warrantless arrests for misdemeanors (as here) are authorized by statute only where a violation takes place in the presence of the arresting officer. See 23 D.C.Code § 581(a)(1)(B) (1973). Finally, policemen are not “charged with predicting the future course of constitutional law,” Pierson v. Ray, supra, 386 U.S. at 557, 87 S.Ct. at 1219, but at the same time an arrest may not be “justified by ignorance or disregard of settled, indisputable law * *.” Wood v. Strickland, supra, 420 U.S. at 321, 95 S.Ct. at 1000. Particularizing these standards to the present case, Chief Powell must show that he had an honest belief that the plaintiffs as a group were violating the law by assembling at the Capitol and, further, that this belief was reasonable in lignc of the facts available to him at the scene of the arrests and of the law as it then existed. A. Directed Verdict Notwithstanding the fact that Chief Powell has the burden of persuasion on the issue of qualified official immunity, he argues that a verdict should have been directed in his favor because the evidence overwhelmingly shows that the plaintiffs were in violation of the Capitol Grounds statute, 9 D.C.Code § 124 (1973), at the time of their arrests. Plaintiffs answer this argument by contending that the evidence taken in the light most favorable to them would support a finding that Chief Powell could not reasonably have believed that 9 D.C.Code § 124 as definitively construed in United States v. Nicholson, Nos. 20210-69A et al. (D.C. Ct. of Gen.Sess. June 19, 1969), aff’d, 263 A.2d 56 (D.C.App.1970) —which all parties agree controls this case —was violated by the activities of May 5. They further urge that, because plaintiffs were charged at the scene of the arrests solely with violating the District of Columbia unlawful entry statute, 22 D.C. Code § 3102 (1973), Chief Powell cannot now defend by showing merely that there were reasonable grounds for believing that 9 D.C.Code § 124 had been violated, but must show that there were reasonable grounds for believing that 22 D.C.Code § 3102 had been violated as well. Before turning to the evidence we must resolve this dispute about the applicable law, because Chief Powell asserts that the facts making out a Section 124 violation are materially different from those making out a Section 3102 violation in that the latter requires an order to disperse and an opportunity to disperse while, in his opinion, the former does not. In our view, Chief Powell’s position is incorrect. 1. The Law Applicable to Arrests on May 5, 1971 (a) At the outset we note that Chief Powell’s argument has a serendipitous quality about it, for the record shows that Chief Powell unquestionably took some steps to order the crowd to disperse on May 5 and, moreover, he testified that standard practice at the Capitol would be for such orders to be given because it was the experience of the Capitol Police that many people were not aware of the statutes governing conduct at the Capitol and would, upon being notified of a potential violation, bring their conduct into line with the law. In addition, regulations issued by Chief Powell required that persons be given individual warnings to leave before they were placed under arrest for participating in a mass demonstration. According to Chief Powell’s testimony, however, such individualized orders to leave were not given on May 5. Notwithstanding this administrative interpretation, Chief Powell urges that orders to disperse are not required by Section 124 and, further, that a violation of his own regulations in this regard has no bearing on the falsity of an arrest under that section. For the reasons set forth below, we find that orders to disperse were required, and we therefore reject Chief Powell’s contention. (b) As indicated, all parties agree that the principles announced in Nicholson control this case. We have printed Chief Judge Greene’s unpublished opinion in Nicholson as the Appendix to this opinion and, therefore, will only summarize points which are particularly relevant for present purposes. In Nicholson 13 Quakers were arrested while standing on the steps of the Capitol reading names of Vietnam War dead from the Congressional Record. They were charged by information with violating 22 D.C.Code § 3102 in that they failed to leave the Capitol when requested by a Capitol policeman to do so. The Quakers moved to dismiss the information on the ground that 22 D.C.Code § 3102 could not constitutionally be applied to them because their activities were protected by the First Amendment. Judge Greene agreed, holding that the Capitol was a public forum and consequently that Section 3102 was invalid as applied at the Capitol since it set no standards whatever for its enforcement. Notwithstanding the conclusion that Section 3102 was unconstitutionally vague, Judge Greene considered and accepted in part an argument pressed by the Government — that the indictments against the Quakers could be saved if the Government could show that the Quakers were also violating 9 D.C.Code § 124 at the time they were ordered from the Capitol. It was apparently the Government’s theory that 9 D.C.Code § 124 either was not unconstitutionally vague oi; could be subjected to an appropriate limiting construction. Reliance on Section 124 created further difficulties, however, since that statute, which bans all use of the Capitol as a public forum except as it is suspended in the discretion of the Speaker, of the House and the President of the Senate, was also found to be unconstitutional as written. Worse, Judge Greene found that the suspension power, which the police had interpreted to allow creation of a “permit” system, had been used selectively and that there are no written rules; permits likewise are usually not in writing; members of the public have no way of knowing whether they might be in violation of the law or how to avoid violations except by prior experience or by inquiries to Members of Congress or members of the Capitol Police Force. sfc * % * * The conclusion is inescapable that, as the law is administered, it is impossible for anyone to know whether his presence, or the presence of his group, on Capitol Hill is lawful, or unlawful. There is no set of regulations, orders, rules, or standards which he can consult, and the precedents of administration themselves are contradictory and uncertain. Notwithstanding these findings and conclusions, Judge Greene held that 9 D.C.Code § 124 could be saved from constitutional infirmity by a limiting construction. The language of the construction adopted is important and we quote, it in full: It is appropriate, therefore, under the statute to bar or to order from the Capitol Grounds, any group which is noisy, violent, armed, or disorderly in behavior, any group which has a purpose to interfere with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist, any group which has the effect, by its presence, of interfering with the processes of the Congress, any Member of Congress, congressional employee, visitor, or tourist; and any group which damages any part of the building, shrubbery, or plant life. Judge Greene then ruled that an indictment charging a violation of 22 D.C.Code § 3102 was constitutionally valid as applied to the Capitol if and only if the Government could show a simultaneous violation of 9 D.C.Code § 124 as limited. (c) We begin our consideration of the application of Nicholson to the instant case by noting that Judge Greene’s opinion expressly stated that 9 D.C.Code § 124 is unconstitutional except when it is used as a ground “to bar or to order from the Capitol Grounds” one of the groups enumerated in the opinion. It is apparently Chief Powell’s position that such language cannot be taken literally because the Nicholson opinion involved informations charging only violations of 22 D.C.Code § 3102, that orders to quit had in fact been given to the Nicholson defendants, and that the only issue before Judge Greene was the propriety of those orders. All this is true, but such a crabbed reading of Nicholson nonetheless does violence to Judge Greene’s analysis since the point of Nicholson is that 22 D.C.Code § 3102 is a legal nullity as applied to demonstrations at the Capitol and informations charging a violation of that statute are valid only if the facts show a simultaneous and constitutionally permitted violation of 9 D.C.Code § 124, whether or not 9 D.C.Code § 124 is charged in the information. In addition, the central conclusion of Nicholson is that 9 D.C.Code § 124 was unconstitutionally vague as written and administered. The vice of such vagueness is twofold. First, a vague statute puts too much discretion in the hands of officials, with the result that the statute may be enforced selectively against those who hold unpopular points of view. Second, a vague statute fails to give those subject to it fair notice of the point at which conduct becomes prohibited. Where some forms of conduct arguably regulated by the statute are protected by the First Amendment, such lack of precision creates an unconstitutional chilling effect. Nicholson addresses both vagueness problems, particularly the latter — “it is impossible for anyone to know whether his presence, or the presence of his group, on Capitol Hill is lawful, or unlawful.” Were Nicholson read as Chief Powell suggests, however, its only effect would be to cabin executive discretion. There would still be no fair warning because, faced with “precedents of administration [which were] themselves contradictory and uncertain,” it would be impossible for anyone to tell when his otherwise constitutionally protected behavior (or that of his group) had become “more disruptive or more substantial (in degree or number) than that normally engaged in by tourists and others routinely permitted on the Grounds.” Yet only if such a condition obtained would a violation of Section 124 have occurred. Accordingly, the only reading of Nicholson that would further Judge Greene’s purpose of eliminating an unconstitutional chilling effect is the literal one that an order to quit must precede arrests under 9 D.C.Code § 124. Even if Nicholson were not conclusive on the need to give an order and opportunity to disperse before arrest under Section 124, facts peculiar to this case would have required such an order. First, it is undisputed that Speaker Albert had in fact suspended Section 124 prior to the time any arrests were made. Chief Powell testified that his understanding of Speaker Albert’s instructions was that the protestors were to be allowed to remain while Members of Congress were speaking unless the crowd became disorderly, in which eventuality “we should ask these people to leave; if they refused to leave, that we would have to take whatever steps necessary.” With the statute suspended, there was no law which the plaintiffs could have been violating even if the Nicholson conditions were in fact present and, therefore, there was no probable cause for arrest — and no reasonable ground for believing that there was— until the suspension expired by its terms, one of which was that a dispersal order be given. Second, the protestors were unquestionably granted an unwritten “permit,” as described in Nicholson, to assemble on the Capitol Grounds and steps. Because “police officials * * * in effect told the demonstrators that they could meet where they did,” “to sustain [plaintiffs’] later conviction for demonstrating where they told [them they] could ‘would be to sanction an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him.’ ” Cox v. Louisiana, 379 U.S. 559, 571, 85 S.Ct. 476, 484, 13 L.Ed.2d 487 (1965), citing Raley v. Ohio, 360 U.S. 423, 426, 79 S.Ct. 1257, 3 L.Ed.2d 13, 44 (1959). In these circumstances, no constitutionally valid arrest could have been made until an order to disperse had been given which was itself based on permissible considerations. See Cox v. Louisiana, supra, 379 U.S. at 571-573, 85 S.Ct. 476. For the reasons stated above, plaintiffs could not constitutionally have been arrested as a group under either 9 D.C.Code § 124 or 22 D.C.Code § 3102 unless Chief Powell had reason to believe: (1) that the plaintiffs comprised one of the groups that could be banned or ordered from the Capitol under Nicholson; (2) that orders to disperse had been given which apprised the crowd as a whole that it was under an obligation to leave; and (3) that a reasonable opportunity had been given the plaintiffs to leave the Capitol. This conclusion, drawn from Nicholson, Cox, and the language of Section 124 — all sources predating May 5, 1971 — in our judgment represents well settled law which Chief Powell was obliged to know on pain of losing his qualified immunity. See Wood v. Strickland, supra, 420 U.S. at 321-322, 95 S.Ct. 992. 2. Standard of Review and the Evidence As we have already indicated, Chief Powell bears the burden of proof on the issue of his immunity. While this does not rule out the possibility of directing a verdict in his favor, it does require Chief Powell to demonstrate that the facts on each element of the immunity defense, taken in the light most favorable to appellees, are nonetheless so clearly in Chief Powell’s favor that “reasonable men could entertain no doubt with regard thereto.” Norfolk Southern R. Co. v. Davis Frozen Foods, Inc., 195 F.2d 662, 665 (4th Cir. 1952); accord, e. g., Dehydrating Process Co. v. A. O. Smith Corp., 292 F.2d 653, 656 n.6 (1st Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194 (1961); American Casualty Co. v. Gerald, 369 F.2d 829, 833 (4th Cir. 1966). With this standard in mind, we now review the evidence tendered by Chief Powell as conclusively establishing his case. First, under Nicholson Chief Powell was required to establish that it was reasonable to believe that plaintiffs constituted a group that was more noisy and more disruptive than other groups allowed on the Capitol Grounds. On this issue Chief Powell relies primarily on his own testimony to the effect that he was faced with an unruly, noisy, out-of-control mob from the moment he arrived at the Capitol steps. Plaintiffs, on the other hand, introduced evidence that equally noisy, unruly events had been held on the Capitol steps with no adverse action being taken by the police. In' addition, officials testifying on behalf of the defendants stated that the demonstration was “fairly mild” and that no violation of the Capitol Grounds statute had occurred. Indeed, even Chief Wilson, a co-defendant, stated that “it was a reasonably orderly crowd,” marred by only “a few particular misbehaviors.” Finally, plaintiffs introduced evidence of an out-of-court statement by Chief Powell to Congressman Rangel, made on the evening of May 5, that “[the demonstration] was one of the more peaceful crowds that [Powell] had seen on the Capitol steps.” Thus not only was the actual characterization of the events of May 5 contested, but the veracity of Chief Powell in testifying as he did was directly in issue. Given this state of the evidence, the issue was indisputably one for the jury. The evidence is similarly in conflict on the question whether Chief Powell made a bona fide effort to make sure the crowd heard his dispersal order. Although there was certainly evidence that the jury could credit to the effect that Powell made attempts to inform the crowd and was each time hooted down and drowned out, there was also evidence that Chief Powell realized that the crowd had not heard his warnings and yet took no steps to correct the situation. For example, a reporter present at the scene testified that he had overheard Chief Powell say to Chief Wilson “that he [Powell] wasn’t sure whether they [the demonstrators] heard him or not or [that] he didn’t think a lot of them heard him. Regardless of this, no further warnings were made, although such warnings were required by Chief Powell’s regulations. Nor was use made of a powerful police sound truck that was apparently at the scene, nor was any attempt made to use the public address system of the demonstration’s leaders; indeed, an offer from Congressman Dellums to make announcements over that system was specifically refused by Chief Powell. Finally, a jury would in our judgment be entitled to conclude that Chief Powell was not acting in good faith. As we have already noted, Chief Powell’s out-of-court admission to Congressman Rangel would belie Powell’s claim of good faith. So also would Chief Powell’s inaction after his remark to Chief Wilson which indicates that Powell was aware that notice to the crowd had been inadequate. Buttressing the inference of bad faith is the further fact that Chief Powell, by relying exclusively on dispersal orders shouted over a hand-held bullhorn in attempting to give notice, violated his own “Procedure for Handling Protest Groups” — a regulation issued over Chief Powell’s signature. Notwithstanding the obvious conflicts in the evidence set out above, Chief Powell would have us direct a verdict on the theory that advice of counsel is an absolute defense and that the facts show conclusively that he relied on counsel present at the Capitol. This position is untenable both as a matter of law and as a basis for directing a verdict on the facts of this case. The only point on which advice of counsel is claimed as a defense is the question whether plaintiffs constituted a group that could be ordered from the Capitol pursuant to the Nicholson opinion. It is not claimed that counsel advised Chief Powell that he could arrest plaintiffs without first giving them an order to disperse; accordingly, the scope of counsel’s advice was not enough to create a complete defense. Nor would advice of counsel be a defense unless it was sought in good faith. Since a directed verdict would not have been proper on the good faith issue, it follows, directly that no such verdict could be given on the strength of advice of counsel. In any event, this is not a case where advice of counsel should make Chief Powell’s belief on the Nicholson point per se reasonable. The law here was not highly technical, penetrable if at all only with the help of counsel. The controlling case was Nicholson, with which Chief Powell was fully acquainted. In addition, the central probable cause issue was one of fact: were the plaintiffs more noisy or disruptive than those routinely allowed onto the Capitol Grounds? On this issue Chief Powell, the officer in charge of the Capitol and a man of long experience, was obviously as expert as any counsel who might give him advice. In addition, appellees raised a serious question of fact concerning whether Chief Powell had fully disclosed the House Speaker’s orders to his legal advisor, Assistant United States Attorney Zimmerman, prior to asking his advice. Powell’s own testimony shows conclusively that the piece of advice primarily relied on by Chief Powell — Zimmerman’s agreement with Powell upon arriving at the Capitol steps that “this is a most flagrant violation of 9-124” — was rendered before Powell was advised that the Speaker had in fact suspended Section 124. Chief Powell could not reasonably have continued to act on that advice once he became aware of the Speaker’s wishes. Nor would reliance on counsel offer any defense unless Chief Powell had disclosed to his attorney all the facts and circumstances surrounding the Speaker’s orders. Yet on the critical question of whether Attorney Zimmerman was informed of the Speaker’s suspension of Section 124, Attorney Zimmerman testified: “I have no recollection of that [the fact of suspension] being told me at the time in question.” Indeed, although Chief Powell admits being told of the Speaker’s orders, he did not claim at trial that he conveyed this information to Attorney Zimmerman. Viewing this evidence in the light most favorable to the plaintiffs, an inference can be drawn that Attorney Zimmerman counselled Chief Powell in ignorance of critical material facts. Accordingly, the validity of the advice of counsel defense was properly a question for the jury. B. New Trial — Defective Jury Instructions As a first alternative to his argument in favor of a directed verdict, Chief Powell argues that regardless of the sufficiency of the evidence, a new trial is required on the false arrest claim because the trial judge erred in instructing the jury with respect to the qualified official immunity defense. Our discussion thus far disposes of most of Chief Powell’s objections and we will not rehearse those objections and our responses here. One point remains, however. Focusing on selected parts of the jury instructions, Chief Powell complains that the jury was erroneously instructed that immunity could be made out only if there was probable cause. While we agree that Chief Powell could defeat liability by showing reasonable grounds to believe that probable cause existed — plus, of course, subjective good faith — we do not agree with his interpretation of the jury instructions. As the instructions were originally given, the trial court did use the terms “probable cause” and “reasonable grounds to believe probable cause existed” interchangeably. Upon objection, however, the court further instructed the jury that “[t]here is no difference between ‘probable cause’ and ‘reasonable grounds to believe.’” There was no further objection. The supplemental instruction, obviously incorrect as a general proposition, had the effect in context of equating “probable cause” with the trial court’s extended instruction on qualified official immunity. No mention of a different or more stringent meaning of “probable cause” was made at any point in the jury instructions; consequently the jury could not have been confused that the issue of immunity was to be resolved in accord with the court’s extended instruction on the subject. Accordingly, there is no error. C. New Trial — Erroneous Introduction of Inflammatory Evidence As yet another alternative Chief Powell argues that he should be afforded a new trial because the first trial was tainted by admission of evidence on the bad faith and malice issue through the testimony of non-party class members, which was of the form: “I saw an unidentified policeman beat an unidentified demonstrator while arresting him.” Prejudice is not only said to rest on the inflammatory nature of such testimony, but is also said to be intimately linked to the fact that this suit was litigated as a class action. Frankly, we find the latter objection muddled and extremely difficult to understand, but we will attempt to address it as best we can. Apparently Chief Powell’s position is that, because the witnesses through whom this testimony was introduced were mostly unnamed class members, he was caught by surprise since he had not deposed these persons and since even if he had sought discovery the Federal Rules of Civil Procedure would not have allowed it. Chief Powell’s reading of the Federal Rules is patently incorrect. While it is true that discovery against absentee class members under Rules 33 and 34 cannot be had as a matter of course, the overwhelming majority of courts which have considered the scope of discovery against absentees have concluded that such discovery is available, at least when the information requested is relevant to the decision of common questions, when the interrogatories or document requests are tendered in good faith and are not unduly burdensome, and when the information is

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

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

EVANSTON CAB CO., Skokie Red Top Cab Co., and Lincolnwood Red Top Cab Co., Illinois corporations, Plaintiffls-Appellants, v. CITY OF CHICAGO, a municipal corporation, et al., Defendants-Appellees. No. 14201. United States Court of Appeals Seventh Circuit. Dec. 18, 1963. Jason Ernest Bellows, Charles A. Bellows, Sherman C. Magidson, Chicago, Ill., for plaintiffs-appellants. Alfred W. Bosworth, Alfred W. Israelstam, Manuel J. Finkel, William C. Wines, Julius Jesmer, John C. Melaniphy, Corp. Counsel, Robert J. Collins, Asst. Corp. Counsel, Chicago, Ill. (Sydney R. Drebin, Asst. Corp. Counsel, of counsel), Sherman Dickholtz, Chicago, Ill., for appellee. Before HASTINGS, Chief Judge, and SCHNACKENBERG and SWYGERT, Circuit Judges. SCHNACKENBERG, Circuit Judge. Evanston Cab Co., Skokie Red Top Cab Co., and Lincolnwood Red Top Cab Co., Illinois corporations, plaintiffs, brought an action against the City of Chicago, a municipal corporation, defendant, and the other defendants above-named, in the district court, under the Clayton Act, 15 U.S.C.A. §§ 15, 26, and the Sherman Act, 15 U.S.C.A. §§ 1, 2. On motion of defendants, the action was dismissed at plaintiffs' costs. This appeal followed. The relevant facts as shown by the pleadings we set out in condensed form. Chicago-O'Hare International Airport is an airport owned by the defendant City of Chicago and is the primary scheduled airline airport for the Chicago Metropolitan area consisting of the counties of Cook, Lake, DuPage, McHenry, Kane and Will, in the state of Illinois, and the counties of Lake and Porter in the state of Indiana. O'Hare is twenty-three miles from downtown Chicago and until March 28, 1956 was not within the incorporated area of the City of Chicago. On that date it was annexed to the city. Physically it is completely separated from the rest of the corporate area of the city except for a connecting strip of Higgins Road and East River Road. All but a very small portion of passengers arriving at O'Hare in scheduled airline planes originate their flights outside the State of Illinois. Plaintiffs are respectively engaged in the operation of taxicabs in the municipalities of Evanston, Skokie and Lincoln-wood, in suburban Cook County. The complaint alleges that 6,700,000 persons live in the Chicago metropolitan area and that all persons completing flights at O’Hare engage some form of further transportation to take them to their ultimate destination in the Chicago Metropolitan Area. To provide this further transportation the Chicago Helicopter airways has scheduled flights between O’Hare, Midway Airport, downtown Chicago, Gary, Indiana and Winnetka, Illinois. All other public transportation in interstate commerce of persons completing flights at O’Hare to their final destinations in the Chicago Metropolitan Area is by taxicab. The complaint charges that defendant taxicab concerns and other defendants conspired among themselves and with others to eliminate and restrict competition in the providing of taxicab service at O’Hare, by ratifying- a prior prohibition of the plaintiffs from providing taxicab service to persons traveling in interstate commerce completing their flights at O’Hare, and by agreeing to prohibit all persons from providing such service in the regular taxi line except the cab company defendants and other taxicabs licensed by the City of Chicago, and further agreed to permit the plaintiffs to render taxi service at O’Hare only when specifically contracted for by letter, telegram or telephone prior to rendering such service, thus placing the plaintiffs at a distinct competitive disadvantage. The complaint further charges that the city council of defendant city enacted an ordinance effectuating said agreements and that it and certain other ordinances, copies of which are attached to the complaint, which limit plaintiffs in providing taxi service at O’Hare, are therefore unreasonable, discriminatory and deprive plaintiffs of their property without due process of law, contrary to the fourteenth amendment to the constitution of the United States. The complaint further charges that the conspiracy and ordinance “actually restrain, burden and monopolize interstate commerce”. Plaintiffs seek recovery of damages for losses sustained by reason of the facts charged, relying on §§ 4 and 16 of the Clayton Act, 15 U.S.C.A. §§ 15, 26, and §§ 1 and 2 of the Sherman Act, 15 U.S. C.A. §§ 1, 2. 1. The United States Supreme Court has made clear that local operations of taxicabs, such as those involved in this case, do not constitute a part of interstate commerce within the meaning of the Sherman Act. United States v. Yellow Cab, 332 U.S. 218, 230, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947), which we relied upon in Parmelee Transportation Company v. Keeshin, 292 F.2d 794 (7 Cir., 1961), cert. den. 368 U.S. 944, 82 S.Ct. 376, 7 L.Ed.2d 340. In Yellow Cab, 332 U.S. at 230, 67 S.Ct. at 1566-1567, 91 L.Ed. 2010, the court said: “Finally, it is said that the appellees have conspired to control the principal taxicab operating companies in Chicago and to exclude others from engaging in the transportation of interstate travelers to and from Chicago railroad stations. To that end, they have conspired to induce the City of Chicago to limit the number of licensed taxicabs to 3,000, to hold 2,595 (or 86%) of these licenses themselves, to obtain for Yellow and Checker any licenses above 3,000 which the city might later issue, and to prevent new operators from entering the cab business in Chicago by having Yellow and Checker annually renew licenses for cabs which they do not operate and have no intention of operating.” Then, answering the contention that the passengers in the taxicabs there involved were being transported in interstate commerce, the court added: “The interstate commerce toward which this aspect of the conspiracy is directed is claimed to arise out of the following facts. Many persons are said to embark upon interstate journeys from their homes, offices and hotels in Chicago by using taxicabs to transport themselves and their luggage to railroad stations in Chicago. Conversely, in making journeys from other states to homes, offices and-hotels in Chicago, many persons are said to complete such trips by using taxicabs to transport themselves and their luggage from railroad stations in Chicago to said homes, offices and hotels. Such transportation of persons and their luggage is intermingled with the admittedly local operations of the Chicago taxicabs. But it is that allegedly interstate part of the business upon which rests the validity of the complaint in this particular. “We hold, however, that such transportation is too unrelated to interstate commerce to constitute a part thereof within the meaning of the Sherman Act. These taxicabs, in transporting passengers and their luggage to and from Chicago railroad stations, admittedly cross no state lines; by ordinance, their service is confined to transportation ‘between any two points within the corporate limits of the city.’ None of them serves only railroad passengers, all of them being required to serve ‘every person’ within the limits of Chicago. They have no contractual or other arrangement with the interstate railroads. Nor are their fares paid or collected as part of the railroad fares. In short, their relationship to interstate transit is only casual and incidental.” Further stating its reasons, the court, 332 U.S. at 231, 67 S.Ct. at 1567, 91 L.Ed. 2010, said: “Here we believe that the common understanding is that a traveler intending to make an interstate rail journey begins his interstate movement when he boards the train at the station and that his journey ends when he disembarks at the station in the city of destination. What happens prior or subsequent to that rail journey, at least in the absence of some special arrangement, is not a constituent part of the interstate movement. The traveler has complete freedom to arrive at or leave the station by taxicab, trolley, bus* subway, elevated train, private automobile, his own two legs, or various other means of conveyance. Taxicab service is thus but one of many that may be used. It is contracted for independently of the railroad journey and may be utilized whenever the traveler so desires. From the standpoints of time and continuity* the taxicab trip may be quite distinct and separate from the interstate journey. To the taxicab driver, it is just another local fare.” Plaintiffs purport to see a departure from the ruling in Yellow Cab, when they cite United States v. Employing Plasterers Association, 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618 (1954) and United States v. Employing Lathers Association, 347 U.S. 198, 74 S.Ct. 455, 98 L.Ed. 627 (1954). We see none. In Plasterers, 347 U.S. at 189, 74 S.Ct. at 454, 98 L.Ed. 618, Mr. Justice Black pointed out that there “ * * * a local group of people were to a large extent able to dictate who could and who could not buy plastering materials that had to reach Illinois through interstate trade if they reached there at all. Under such circumstances it goes too far to say that the Government could not possibly produce enough evidence to show that these local restraints caused unreasonable burdens on the free and uninterrupted flow of plastering materials into Illinois. That wholly local business restraints can produce the effects condemned by the Sherman Act is no longer open to question. * * * ” (Italics supplied.) In Lathers, the same justice quoted the course taken by lathing material produced in states other than Illinois and shipped interstate to Chicago, Illinois and finally delivered by a plastering contractor to his lathing contractor for use on local building jobs. The alleged conspiracy was among these contractors and the union whose members did the actual lathing. The court, 347 U.S. at 200, 74 S.Ct. at 456, 98 L.Ed. 627, said: “The complaint charges that an effect of the alleged combination and conspiracy has been that ‘[interstate trade and commerce in lathing and related building materials has been unlawfully restrained.’ Other allegations emphasize this charge by asserting that any restraint upon lathing work in Chicago ‘necessarily and directly restrains and affects the interstate flow of lathing materials, and * * * building materials * * *.’ “The complaint does state a cause of action * * In the case at bar no commodity shipped in interstate commerce is involved and the Plasterers and Lathers cases are not applicable. Plaintiffs would accomplish the “extinction” of Yellow Cab as authority by a process of reasoning which we shall attempt to condense. They refer to a 1960 per curiam order of the Supreme Court of the United States, Superior Ct. of State of Wash, for King County v. State of Wash, ex rel. Yellow Cab Service, 361 U.S. 373, 80 S.Ct. 400, 4 L.Ed.2d 380, which reversed, on the authority of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), an order of the Supreme Court of Washington, in State of Washington ex rel. Yellow Cab Service, Inc. v. International Brotherhood of Teamsters, etc., and Superior Court of the State of Washington for King County, 53 Wash.2d 644, 333 P.2d 924 (1959). By plaintiffs’ brief herein, our attention is called to the fact that the Superior Court for King County, Washington, had been asked by Yellow Cab Service, Inc. to enjoin picketing of its premises by a union. The Superior Court refused injunctive relief because Yellow Cab Service was in interstate commerce and the case presented a labor dispute affecting interstate commerce over which the National Labor Relations Board would have jurisdiction. The Superior Court relied on Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957). However, the Washington Supreme Court, on application for writ of mandate, considered Yellow Cab controlling and said that while Yellow Cab was decided under the Sherman Act, it was nonetheless an authority in the labor case before it. It reasoned as follows, 333 P.2d at 928: “We do not believe that whatever unfair labor practice may be present in this case can possibly be said to be ‘burdening or obstructing commerce’ (see 49 Stat. 450, 29 U.S. C.A. § 152(7), * * *). There is no testimony in the record that this strike has impaired taxicab service to or from the railroad terminals, airports, and docks, and hence no evidence of any effect upon interstate commerce sufficient to justify the application of the National Labor Relations Act. United States v. Yellow Cab Co., supra. No such circumstance is present in this case.” It thereupon directed the Superior Court to take jurisdiction of relator’s suit for injunctive relief. It was this action that the United States Supreme Court reversed by its 1960 per curiam order. The Garmon case is one of a series of cases in which the Supreme Court of the United States was faced with the problems created by the failure of the National Labor Relations Board to take jurisdiction in labor disputes in industries which affect interstate commerce. The broad scope of the National Labor Relations Act which encompassed the State of Washington case is reflected by the definitions in § 2 of that act, 29 U.S.C.A. § 152. The term “commerce” is defined as meaning “trade, traffic, commerce, transportation, or communication among the several States”, while the term “affecting commerce” means “in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.” The term “labor dispute” is defined as including “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” In Garmon, as well as in State of Washington, labor disputes were involved. In the case at bar, no labor dispute was involved and there is no contention that there was. No one is insisting that the National Labor Relations Board would have had any jurisdiction of the matter now before this court or that the Board’s jurisdiction would have been invaded or affected by the action of this court or «the district court. Moreover, no dispute exists in regard to any commodity moving in interstate commerce or which has or is about to enter into interstate commerce. No basis in fact or law appears to justify us in ignoring the persuasiveness of the reasoning and holding in Yellow Cab. The passenger who enters a cab at O’Hare field or who leaves a cab at O’Hare field is furnished a service. Neither the owner of the cab nor the driver thereof crosses any state line. Nothing about the service affects interstate commerce. The service is incidental to a local operation and we would not be justified in resorting to impractical theorizing in order to conclude that a local ride in a local taxicab affects interstate commerce. 2. Plaintiffs contend that defendants entered into a conspiracy to restrain trade, and that, the city, in pursuance thereof, passed the Chicago taxicab licensing ordinance, which is invalid, as a violation of the due process and equal protection clauses of the fourteenth amendment to the constitution of the United States as well as the privileges and immunities granted by article IV and the fourteenth amendment of said constitution, in that said ordinance makes an arbitrary and unreasonable discrimination against a corporation by requiring it, when applying for public passenger vehicle licenses, to have its principal place of business within the city of Chicago. In City of Chicago v. Voices, et al., 28 Ill.2d 475, 193 N.E.2d 40 (1963), the Illinois Supreme Court reviewed convictions of certain taxicab drivers, charged with transporting passengers for hire without a proper license. Defendants there were employed by either Evanston Cab Company or Skokie Red Top Cab Company, also named as plaintiffs herein. They were charged with violating § 28-2 of the Chicago municipal code relating to public passenger vehicles, which makes it unlawful “for any person other than a metropolitan transit authority or public utility to operate a motor vehicle for the transportation of passengers for hire unless the vehicle is licensed by the city of Chicago as a public passenger vehicle.” § 28-3 provides “Nothing in this chapter shall be construed to prohibit any public passenger vehicle from coming into the city to discharge passengers accepted for transportation outside the city. * * * No person shall be solicited or accepted in said vehicle for transportation from any place within the city. * * * ” § 28-5.1, relating to licensing applications, provides that all “corporate applicants shall be organized or qualified to do business under the laws of Illinois and have their principal places of business in the city of Chicago”. The court pointed out, 28 I11.2d at 477, 193 N.E.2d 40, that the ordinance provides that licenses must be applied for annually and that the commissioner of public vehicles should investigate the character and financial ability of the applicant to render safe and comfortable transportation service, to maintain or replace the equipment for such service and to pay all judgments and awards which may be rendered for any cause arising out of the operation of a public passenger vehicle during the license period. The Illinois Supreme Court met the challenges to the constitutionality of the ordinance, including the ground now under consideration by us, by holding that the requirement that a corporate licensee have its principal place of business in the city is not so oppressive nor unreasonable as to render it vulnerable to the constitutional attack there made upon it, which has been repeated by plaintiffs in the case at bar. The court said, 28 111.2d at 480, 193 N.E.2d at 44: “By its very nature the taxicab industry directly and substantially provokes considerations of public safety and welfare. Its vehicles are constantly on the city streets, day and night, and the members of the public who utilize them must place almost a blind trust in the fitness of their equipment and the competence of their drivers. Thus, not only does the operation of the business call for measures to protect others using the streets and highways, but also for regulations which insure the highest degree of safety for its passengers. * * * “If corporations licensed to operate taxis in the city of Chicago have no place of business there and do not maintain their records or equipment there, the functions of investigation, inspection and supervision required in the public interest would be exceedingly difficult if not impossible to completely and adequately perform. This is particularly true when we consider the vast number of suburban towns and villages encircling the city, and the circumstances that Chicago investigators and inspectors, once outside the territorial limits of the city, would be without authority to act or to require compliance with the ordinances involved. * * * “Further, it is also in the public interest to have the corporate officers and records available locally in the event of complaints, loss or litigation. * * *” We agree with the aforesaid reasoning and holdings of the Illinois court in Vokes. We find that the ordinance was enacted in the exercise of the city’s wide scope of discretion in the adoption of police laws and is not without any reasonable basis and therefore arbitrary. One who assails a classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Morey v. Doud, 354 U.S. 457, 463-464, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957). Plaintiffs have failed to sustain their burden. We hold that the ordinance now under attack is not subject to the infirmities charged against it by plaintiffs and that, therefore, there is no basis set forth in the complaint for holding in favor of plaintiffs on the constitutional grounds urged. 3. . In view of what we have held, it is unnecessary to discuss other points raised in plaintiffs’ brief in this court. For the reasons which we have stated, the order of the district court dismissing plaintiffs’ cause is affirmed. Order affirmed. . The last four defendants named are respectively the following officials of the City of Chicago: corporation counsel, public vehicle license commissioner, aide to the mayor, and a police officer assigned to duty in the office of the Public Vehicle License Oomnfissioner. . In addition Continental Air Transport Co., Inc., operates bus service between O’Hare, Midway Airport, downtown Chicago, Evanston, Illinois and Oak Park, Illinois. . In Retail Clerks International Ass’n, Local 1625, A.F.L.-C.I.O. v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179, the court said in respect to Garmon. •> * * * merely rationalizes the problems of coexistence between federal and state regulatory schemes in the field of labor relations; * *

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

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

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

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

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

NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES, et al., Petitioners, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, et al., Respondents. NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. Nos. 86-1114, 86-1535. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 3, 1986. Decided Jan. 16, 1987. As Amended Jan. 16, 1987. Alexander J. Pires, Jr., with whom John M. Himmelberg and Jeffrey A. Knishkowy were on the brief for petitioners. Letitia Grishaw, Dept, of Justice, with whom Cara S. Jablon, Michael S. Winer and Stanley H. Abramson, Office of General Counsel, E.P.A. were on the brief, Michael W. Steinberg, Dept, of Justice entered an appearance for respondents. Before STARR and WILLIAMS, Circuit Judges, and GREEN, District Judge. Opinion for the Court filed by Circuit Judge STARR. Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. § 292(a). STARR, Circuit Judge: In the Federal Food, Drug and Cosmetic Act, Congress conferred authority on the Environmental Protection Agency to promulgate tolerances limiting the level of pesticides in raw fruits and vegetables “to the extent necessary to protect the public health.” 21 U.S.C. § 346a(b) (1982). Petitioners seek review of EPA’s exercise of this authority to fix tolerances for the amount of ethylene dibromide found in imported mangoes. We are constrained to conclude that the agency has engaged in arbitrary and capricious decisionmaking. We therefore grant the petitions for review. I Ethylene dibromide (EDB) is a chemical that until recently was widely used as a pesticide on fruits and vegetables in the United States. In the 1970’s, evidence accumulated that exposure to EDB increased the risks of cancer, genetic mutations, and adverse reproductive effects in humans. These danger signals prompted EPA to conduct several detailed studies of the risks and benefits of EDB. As a result of its research, EPA in 1983 exercised its authority under the Federal Insecticide, Rodenticide, and Fungicide Act, 7 U.S.C. §§ 136-136y (1982 & Supp. Ill 1985), to impose bans on the use of EDB on domestic produce. Those bans took effect almost immediately. EPA embraced a more gradual approach, however, with respect to imported fruit, specifically mangoes, sprayed with EDB in their countries of origin. This particular use received special attention because EDB fumigation was the only effective way then available to insure that imported mangoes were free of fruit flies of various species, including the Mediterranean fruit fly. Acting pursuant to § 346a(b) of the Food, Drug and Cosmetic Act, EPA in January 1985 promulgated a tolerance under which imported mangoes could be treated with EDB as long as residues in the edible pulp of the fruit measured no more than 30 parts per billion (ppb). EPA appended a critical limitation in setting this tolerance, however. The tolerance was to expire September 1, 1985. After that date, a zero tolerance for EDB would take effect, rendering imported mangoes with any trace of EDB “adulterated” under the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 342(a)(2)(B), 346a(a)(l) (1982), and hence prohibited in interstate commerce. EPA summarized its decision as a prudent determination to remove EDB from the diet long-term while avoiding significant economic disruptions by allowing a year to develop alternative treatment methods. 50 Fed.Reg. 2547, 2550-51 (Jan. 17, 1985), Joint Appendix, No. 86-1114 (“J.A. I”) at 15, 17-18. As the September 1985 expiration date of the 30 ppb tolerance loomed ahead, proponents of continued use of EDB beyond U.S. borders undertook efforts to secure an extension of the interim tolerance. Advocates of the extension advanced two arguments. First, because no alternative to EDB treatment had been developed, expiration of the interim tolerance would amount to a complete ban on imported mangoes; this ban, they feared, would severely damage the fragile economies of mango-producing countries, especially Haiti and Mexico. Second, the interim-extension advocates submitted evidence that EDB dissipated more quickly than EPA had posited when it promulgated the interim tolerance; the proponents thus argued that EDB posed a lower health risk than that which animated EPA in imposing a zero tolerance as of September 1, 1985. This evidence showed, they maintained, that by the time mangoes reached the consumer, the fruit contained no more than a modest 10 to 14 ppb of EDB. Initially, EPA was unmoved. In fact, the agency expressly rejected both arguments in a memorandum dated August 28, 1985, which was apparently furnished to the State Department to explain the agency’s declination of invitations to extend the interim tolerance beyond the September 1, 1985 cutoff. EPA stated that it had considered the impact of a ban on foreign economies but concluded that extending the 30 ppb tolerance would not necessarily bring about a practicable alternative; an extension could, in fact, delay implementation of a substitute treatment method. Second, EPA determined that calculation of the health risk taking into account the effects of EDB’s dissipation nonetheless resulted in a risk in the same general range as calculations based on 30 ppb. The agency thus concluded: Since the risks for the U.S. consumers of treated mangoes are not changed from EPA’s 1984 estimates, which found one year of further exposure to be the limit of acceptable continued exposure, the Agency feels that additional exposure to EDB in the diet is not in the public interest. J.A. I at 19-20. Accordingly, on September 1, 1985, a zero tolerance for EDB on imported mangoes took effect. Not long after this, however, the agency received entreaties from the State Department and the Department of Agriculture to reconsider its newly imposed ban. Among the importunings were letters from John Whitehead, Deputy Secretary of State, and James Michel, Acting Assistant Secretary for Inter-American Affairs. The Whitehead-Michel communications reiterated the adverse economic impact on friendly countries occasioned by EPA’s ban on EDB-fumigated mangoes. In contrast to the agency’s reactions to such arguments in late summer, however, the spectre of burdened South and Central American economies now gave EPA considerable pause. On November 27, 1985, EPA did an about-face. The agency proposed to abandon the zero tolerance and revive the expired 30 ppb tolerance through at least September 30, 1986. EPA further announced that it would consider extending the interim tolerance for an additional year, through September 1987, if by September 1986 it clearly appeared that an alternative to EDB could be in place when the 1987-88 mango harvest began. Without referring to its contrary position of just three months before, outlined in the August 28, 1985 memorandum, EPA cited three reasons for its new course. First, since the zero tolerance had taken effect, EPA had become more keenly aware of the severe impact on the economies of mango-producing nations that the zero tolerance would occasion. Second, the Department of Agriculture expressed optimism that by 1987 or 1988 an alternative to EDB could be available. Third, the health risk of an additional year or two of EDB was deemed “acceptable... based on the fact that residues of EDB dissipate fairly rapidly” before mangoes treated with EDB reached United States consumers. See 50 Fed.Reg. 48,799, 48,800 (Nov. 27, 1985), J.A. I at 21, 22. After receiving comments on its proposal, EPA formally reestablished the 30 ppb tolerance in a final rule published February 14, 1986. 51 Fed.Reg. 5682 (Feb. 14, 1986), J.A. I at 178. The February 1986 decision, like that of the preceding November, never mentioned the tell-tale August 1985 EPA memorandum. EPA justified its action in this latest decision by noting the economic impact of a ban (including potential detriment to the U.S. economy); the Department of Agriculture’s assurance of a substitute for EDB treatment by 1987; and the agency’s determination that the health risks of EDB were “very low.” Id. A petition for review of the February 14, 1986 Final Rule was filed in this court on the same day. Petitioners challenged EPA’s action on four bases: first, that EPA lacked statutory authority to reestablish a tolerance of 30 ppb after having determined a zero tolerance to be necessary to protect public health, see 21 U.S.C. § 346a(b); second, that EPA acted arbitrarily and capriciously by basing the reestablishment of the 30 ppb tolerance primarily on the impact of a total ban on foreign economies; third, that EPA arbitrarily and capriciously shifted its position on the health risk posed by EDB without any new data to justify this reversal; and fourth, that EPA violated due process and the requirements of the Administrative Procedure Act, 5 U.S.C. § 553 (1982), by shortening the time for comment on its proposed rule and by refusing to hold a hearing before promulgating the rule. Petitioners sought and were granted expedited review of their challenge. Before the date originally scheduled for oral argument of this petition (October 17, 1986), EPA carried out its intention, announced in the February 14, 1986 Final Rule, to extend the interim tolerance through September 30, 1987. See 51 Fed. Reg. 28,603 (Aug. 8, 1986) (proposing extension), J.A. No. 86-1535 (“J.A. II”) at 1; 51 Fed.Reg. 34,469 (Sept. 29, 1986) (extension), J.A. II at 3. EPA concluded that the conditions established in February for an extension — substantial progress towards development of an alternative to EDB and proof that such an alternative would likely be in place for the 1987-88 mango harvest — had been satisfied. See 51 Fed.Reg. at 28,603, J.A. II at 1. This extension of the 30 ppb tolerance through 1987 prompted petitioners to file a second petition for review and to seek to consolidate it with their first. We requested further submissions to determine whether the first petition had been rendered moot by virtue of the fact that the date EPA initially set for the interim tolerance to expire, September 30, 1986, had passed prior to oral argument. We consolidated the petitions for purposes of oral argument and heard the case on an expedited basis. We now conclude that petitioners’ earlier petition is not moot and have consolidated the petitions for purposes of disposition. II Before addressing the merits, we must first examine a threshold issue raised by the agency. Specifically, EPA has interposed the defense that petitioners are not entitled to judicial review because they failed to exhaust administrative remedies. The agency bases its argument upon 21 U.S.C. § 346a(d)(5), which provides in pertinent part: Within thirty days after publication, any person adversely affected by a regulation published pursuant to paragraph (2) or (3) of this subsection, or pursuant to subsection (e) of this section, may file objections thereto with the Administrator,... requesting a public hearing upon such objections____ The Administrator shall thereupon, after due notice, hold such public hearing for the purpose of receiving evidence relevant and material to the issues raised by such objections____ As soon as practicable after completion of the hearing, the Administrator shall act upon such objections and by order made [sic] public a regulation. The regulations challenged in this case were promulgated following notice and comment and pursuant to § 346a(e), which permits EPA on its own initiative to establish tolerances for pesticides and provides that “[Regulations issued under this subsection shall upon publication be subject to paragraph (5) of subsection (d).” EPA interprets the latter provision, § 346a(d)(5), as compelling petitioners to seek a hearing under that subsection before invoking the judicial review provisions of § 346a(i). Alternatively, EPA argues that even if § 346a(d)(5) permits but does not require a hearing, exhaustion principles developed in the case law effectively render § 346a(d)(5) a mandatory provision. We disagree with both contentions. We are persuaded that, under the circumstances of this case, neither the language of the statute nor applicable decisional law requires resort to § 346a(d)(5) prior to seeking review under § 346a(i). First and foremost, the language of the specific provision on which EPA relies (§ 346a(d)(5)), is permissive, not mandatory. Where the language, as here, is clear, that should be the end of the matter. See e.g., Garcia v. United States, 469 U.S. 70, 75 (1984); United Air Lines, Inc. v. CAB, 569 F.2d 640, 647 (D.C.Cir.1977). But aside from the clear and unambiguous language of the provision, the structure of the statute likewise suggests that Congress did not mandate employment of the § 346a(d)(5) hearing. Section 346a(i)(l) provides for judicial review of “any order under subsection (d)(5), (e), or (l).” As we observed previously, EPA’s final rule of February 14, 1986 and the extension of September 1986 both qualify as “order[s] under subsection... (e).” See supra note 3. If we accept EPA’s argument that judicial review under § 346a(i)(l) can only follow formal hearings under subsection (d)(5) of § 364a, then the reference in § 346a(i)(l) to orders under subsection (e) is rendered surplus-age. Both the language and structure of § 346a therefore indicate that resort to a formal hearing is unnecessary before repairing to the courts. The case law does not point to an opposite result. To the contrary, a review of relevant decisions likewise suggests that exhaustion is not appropriately required in this case. First, the orders under challenge took immediate effect and were in that respect “final,” see 21 U.S.C. § 346a(e). Since, as we discussed, the applicable statutory provisions by their terms permit review of such orders, conducting review at this stage does not appear to thwart Congressional purposes by encouraging “deliberate flouting of administrative processes,” a primary concern underlying the exhaustion doctrine. See Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C.Cir.1984) (quoting McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969)). A second concern underlying the doctrine of exhaustion — the need for an adequate factual record — is likewise absent here. See id.; see also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938) (exhaustion required where petitioners sought completely to avoid hearing requirement of NLRA); Nader v. Volpe, 466 F.2d 261, 267 & n. 36 (D.C.Cir.1972). EPA's orders followed a notice and comment period in which numerous parties participated. Finally, our review does not deprive EPA of the opportunity to discover and correct its own errors, nor does it otherwise intrude prematurely into matters best left to percolate at the agency, a third factor upon which our decisions have wisely relied as a justification for exhaustion. See Andrade, 729 F.2d at 1484. Indeed, petitioners expressly advanced before EPA both arguments that we find dispositive. See 51 Fed.Reg. at 5688, J.A. I at 179; see also Comments Submitted on Behalf of J.R. Brooks & Son, Inc., Ed Mitchell, Inc., N.P. Brooks, and John Mitchell 2-4 (Jan. 10, 1986), J.A. I at 361-63. Thus, while we are quite unprepared to hold that exhaustion may never be required prior to review of a tolerance promulgated under § 346a(e), we are convinced it is unnecessary in the circumstances of this case. Ill Although the petitions raise a variety of substantive and procedural issues, we find it necessary to address in detail only two. Both pertain to petitioners’ claim that EPA’s decisions to reestablish and extend a 30 ppb tolerance for EDB on imported mangoes amounted to decisionmaking that was arbitrary and capricious and contrary to law, in violation of the APA, 5 U.S.C. § 706(2)(A) (1982). First, petitioners maintain that EPA based its decisions “on factors which Congress has not intended it to consider,” Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983), namely, the adverse impact of a zero EDB tolerance on foreign economies. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-12, 416, 91 S.Ct. 814, 821, 823, 28 L.Ed.2d 136 (1971). Second, petitioners contend that the agency failed to “supply a reasoned analysis,” State Farm, 463 U.S. at 57, 103 S.Ct. at 2874 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971)), for reversing its earlier position that a zero tolerance after September 1, 1985 was necessary to protect the public health. We consider each argument in turn. A The source of EPA’s authority to promulgate tolerances for pesticides on fruits and vegetables is found in section 408(b) of the Food, Drug and Cosmetic Act, which provides in pertinent part: The Administrator shall promulgate regulations establishing tolerances with respect to the use in or on raw agricultural commodities of poisonous or deleterious pesticide chemicals... to the extent necessary to protect the public health. In establishing any such regulation, the Administrator shall give appropriate consideration, among other relevant factors, (1) to the necessity for the production of an adequate, wholesome, and economical food supply; (2) to the other ways in which the consumer may be affected by the same pesticide chemical or by other related substances that are poisonous or deleterious; and (3) to the opinion submitted with a certification of usefulness under subsection (i) of this section. 21 U.S.C. § 346a(b). Petitioners maintain that this language makes clear that consideration of foreign economic impact is beyond EPA’s lawful authority. In contrast, EPA takes the position that the statute provides the agency with broad discretion to determine what factors are “relevant” to formulation of a tolerance. The more natural reading of the statutory phrase, “other relevant factors,” in § 346a(b) is that EPA can consider only factors related to protection of public health. It is, after all, “the public health” that EPA is charged with protecting through “regulations establishing tolerances.” At the same time, we are mindful that reviewing courts are not to substitute their interpretation of a statute for that of an administering agency merely upon concluding that the court’s reading is the more natural. See Young v. Community Nutrition Institute, — U.S. -, 106 S.Ct. 2360, 2364, 90 L.Ed.2d 959 (1986). Instead, we are called upon to examine whether Congress’ intent can clearly be discerned with respect to the particular matter at hand and, if not, to examine the permissibility of the agency’s interpretation. See United States v. City of Fulton, — U.S. -, 106 S.Ct. 1422, 1428, 89 L.Ed.2d 661 (1986); Montana v. Clark, 749 F.2d 740, 745-46 (D.C.Cir.1984), cert. denied, — U.S. -, 106 S.Ct. 246, 88 L.Ed.2d 255 (1985). It appears to us that in § 346a(b) Congress has not clearly addressed the precise issue whether foreign impact can figure in EPA’s setting of tolerances. Nor is Congress’ intent on this specific question revealed by other sources of legislative purposes, such as the structure of the statute or its history. Under these circumstances, we are obliged to uphold the agency’s construction if we conclude that it is a permissible (or reasonable) one, even if that interpretation is not one which we would have embraced had the decision been ours in the first instance. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Guided by Chevron principles, we are unprepared to hold that in promulgating tolerances under § 346a(b) EPA may only consider factors related to the health of the U.S. public and may never consider impact on foreign economies. The defect in these proceedings, however, is that EPA has failed entirely to take into account factors that § 346a(b) clearly requires the agency to consider, namely “to the necessity for the production of an adequate, wholesome and economical food supply” and “to the other ways in which the consumer may be affected by the same pecticide chemical or by other related substances.” Without purporting definitively to address how prominently consideration of impact on foreign countries can figure in the Administrator’s promulgation of a tolerance, we conclude that Congress intended EPA principally to attend to the specifically enumerated factors in the statute, see Environmental Defense Fund, Inc. v. HEW, 428 F.2d 1083, 1086 (D.C.Cir.1970), and to how non-enumerated factors (such as foreign economic impact) deemed “relevant” by the agency are linked to the statutorily specified factors. Section 346a(b) may permissibly be interpreted to permit the Administrator to assign some relevance to foreign impact, even though unrelated to U.S. public health, but the provision clearly mandates that health factors and issues of foreign impact related to the health of U.S. consumers be at the forefront of EPA’s deliberations. Here, EPA fell into error by losing sight of the specific statutory factors in its solicitude for the economic welfare of foreign countries. Counsel for EPA maintains that the agency did explicate the linkage between its concern for the impact on foreign countries of a zero tolerance and the health-based factors that the agency was statutorily bound to consider. We disagree. The passages in EPA’s decision on which counsel relies, see Brief of Respondents, No. 86-1535, at 6-12, do not set forth EPA’s justification for the revived 30 ppb tolerance; they merely summarize the comments on EPA’s proposals to reestablish a 30 ppb tolerance and extend it through 1987. We have no occasion to say whether the administrative record could support a decision that the economic impact of a zero tolerance could be so severe as to threaten “the public health” — for example, by disrupting the country’s mango supply, which could raise concern about the need for an “economical food supply,” or encouraging the illicit infiltration of fruit fly-infested mangoes, which could similarly pose a risk to the “adequa[cy]” and “wholesome[ness]” of the food supply. We hold only that EPA has not established any such linkage, nor under settled principles can counsel’s post hoc rationalizations cure this deficiency. See State Farm, 463 U.S. at 50, 103 S.Ct. at 2870; Citizens to Preserve Overton Park, 401 U.S. at 419, 91 S.Ct. at 825; cf. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962). We therefore hold that EPA acted arbitrarily and capriciously by relying exclusively on concerns for foreign well-being, albeit with a nod toward domestic interests, see supra note 6, in reviving and extending the 30 ppb tolerance without considering the factors specified in the FDCA and factors of foreign impact related to those factors enjoying express Congressional approbation. B Petitioners base their second argument on the well-settled principle that an agency may not shift its position without supplying a reasoned explanation for doing so. See, e.g., State Farm, 463 U.S. at 57, 103 S.Ct. at 2874 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d at 852); Oil, Chemical & Atomic Workers International Union v. NLRB, 806 F.2d 269, 273 (D.C.Cir.1986); Airmark Corp. v. FAA, 758 F.2d 685, 692 (D.C.Cir.1985). In this case, as petitioners see it, EPA failed to explain its about-face on the health risk occasioned by EDB. They point out that in establishing an interim tolerance of 30 ppb in January 1985, the agency initially determined that these health dangers required a zero tolerance after September 1, 1985. EPA reaffirmed this determination in August 1985, when the agency expressly found that “additional exposure [beyond September 1,1985] is not in the public interest,” J.A. I at 20. And on the appointed date of September 1, 1985, a zero tolerance for EDB on imported mangoes indeed went into effect. Notwithstanding this consistent course of action, the agency in proposing to reestablish the 30 ppb tolerance concluded in November 1985 that the risk posed by an additional year of exposure was “acceptable,” 50 Fed. Reg. at 48,800, J.A. I at 22; and in adopting the tolerance as a final rule, EPA characterized the risk of exposure through 1986 as “very low,” 51 Fed.Reg. at 5684, J.A. I at 180. Finally, in its latest pronouncement, EPA similarly determined that the risk of exposure through yet a third year, 1987, was “very low.” 51 Fed.Reg. at 34,-471, J.A. II at 5. The record is virtually barren of reasons for this volte face. The sole justification advanced by the agency for its turnabout on the potential health risk is found in its November 1985 proposal to reestablish a 30 ppb tolerance. There, EPA set forth the following basis for its conclusion that the health risk was acceptable: [Rjesidues of EDB dissipate fairly rapidly from the treated fruit. Therefore, the actual residues at the retail level are likely to be considerably lower than the tolerance limit of 30 ppb which applies to the fruit at the time of entry into the United States. 50 Fed.Reg. at 48,800, J.A. I at 22. On this record, we conclude that this rationale is wholly inadequate. It reflects an unexplained reversal from EPA’s position just three months earlier in the memorandum of August 28, 1985. In that document, the agency acknowledged that evidence existed “that mangoes released into commerce have EDB residues measured significantly below the 30 ppb tolerance,” J.A. I at 20. Nonetheless, EPA concluded: [E]ven if the average EDB level in mangoes at the time of consumption is well below the tolerance, for example, at 10 ppb, EPA’s assessment is that the dietary risk at that level is still in the same general range as for consuming mangoes with 30 ppb of EDB. Thus, the Agency has not seen any data which alters the 1984 assessment of risks posed by consuming EDB treated mangoes. Id. In an effort to shore up the agency’s latter-day embrace of the dissipation rationale, EPA’s counsel direct us to evidence submitted in the interim that showed, for example, that improved techniques for packing and shipping mangoes further enhanced dissipation. This is, once again, a post hoc rationalization that we are quite unable to accept to buttress agency action. And in any event, it is clear to us that in its November 1985 and subsequent decisions, EPA was recharacterizing the risk of 30 ppb of EDB, not changing its views of the relevant levels of EDB present on mangoes. EPA conceded that it had happened upon no new scientific evidence to justify reassessing the health risk entailed by EDB. In the absence of any such evidence or other explanation, its about-face is inexplicable and, under well-settled principles of law, stands condemned as arbitrary and capricious. Accordingly, if EPA on remand in any respect relies on an assessment of the health risk attributable to consumption of EDB on mangoes that is lower than the assessment underlying its January 1985 determination, it must adduce a legally adequate explanation. IV In summary, we hold that in its challenged orders, EPA acted arbitrarily and capriciously by failing to give appropriate consideration to relevant factors and reversing its position on the health risks of EDB. We therefore grant the petitions for review, reverse EPA’s orders of February 14, 1986 and September 29, 1986, and remand this case to the agency for further proceedings. We are sorely mindful of the severe time constraints present here, which raise the possibility that the September 30, 1987 deadline will arrive before EPA could, in the ordinary course, act on remand and this court would be able, if called upon, to complete its review of the agency’s action on remand. Under these unusual circumstances, we remand the case with specific instructions for the agency to address the issues discussed in this opinion and to decide within thirty days from the date hereof whether an interim tolerance of 30 ppb EDB (or any level other than zero) in imported mangoes is justified. To prevent further disruption and uncertainty in this difficult and sensitive matter, we refrain from setting aside immediately the final rule and extension of the 30 ppb tolerance, but permit them to remain in effect until issuance of mandate, which we direct to occur thirty days hence. Cf. Simmons v. ICC, 757 F.2d 296, 300 (D.C.Cir.1985). This court will then stand ready to take appropriate action on an expedited basis should circumstances so warrant. Judgment accordingly. . Petitioners are: the National Coalition Against the Misuse of Pesticides (a nonprofit organization the members of which share concerns about pesticide safety); J.R. Brooks & Son, Inc. and Ed Mitchell, Inc. (domestic mango growers); and N.P. Brooks and J.K. Mitchell (consumers of foreign and domestic mangoes). . After reviewing the parties’ submissions, we hold that petitioners’ first petition, No. 86-1114, challenging EPA’s decision on February 14, 1986 to reestablish a 30 ppb tolerance for EDB on imported mangoes, is not moot. Although that decision provided that the tolerance was to expire September 30, 1986, it also provided for an extension of the 30 ppb tolerance through September 1987. Thus, the September 1986 decisión extending the 30 ppb tolerance, which is the subject of the second petition, grew out of the decision which is the subject of the first petition. Accordingly, review of the later agency decision requires that we review the earlier one, and the extension of the revived tolerance cannot survive if we conclude that EPA improperly revived it in the first place. . See 49 Fed.Reg. 32,088, 32,089 (1984) (proposing interim tolerance pursuant to 21 U.S.C. § 346a(e)), J.A. I at 166, 167. . We may quickly dispose of petitioners’ other contentions, which we find lacking in merit. Petitioners argue that EPA lacked statutory authority to promulgate a tolerance of 30 ppb having previously established a zero tolerance. Their reasoning, as we understand it, is that the agency can only promulgate tolerances when "necessary to protect the public health." 21 U.S.C. § 346a(b) (emphasis added). Since by virtue of EPA’s January 1985 decision, a zero tolerance went into effect September 1, 1985, no further action was necessary to protect public health against EDB; therefore, no further action was authorized under the statute, certainly not one that resulted in increased exposure to what the agency had already determined to be a hazardous chemical. While acknowledging the verbal ingenuity of this argument, we reject it, for whatever initial appeal it appears to have when measured against the language of § 346a(b) evaporates when exposed to the light of common sense. To hold EPA statutorily disabled from ever raising a tolerance — the inexorable destination of petitioners’ reasoning — would mean that the agency could not act upon changed circumstances or subsequently discovered scientific data even though such considerations might warrant different action. For example, if after EPA established a zero tolerance for EDB on imported mangoes, evidence emerged indicating that this pesticide was less harmful than previously believed, the statute clearly contemplates reassessment of what level of EDB is necessary to protect public health. Because petitioners' argument handcuffs EPA to an extent at odds with the orderly operation of the statutory scheme, we reject it. Likewise, petitioners' attacks on the procedures EPA followed need not detain us. Petitioners first argue that the 45-day period EPA provided for comment on its November 1985 proposal to revive a 30 ppb tolerance for EDB violated the Administrative Procedure Act, 5 U.S.C. § 553(c), because it was too short to afford a reasonable opportunity for meaningful comment. They do not, however, suggest why this length of time, which is 15 days longer than the EPA usually provided, was insufficient in this case. See In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1354 n. 9 (D.C.Cir.1980) (attack on agency procedure must be joined with a showing of prejudice). Moreover, § 408(e) of the FDCA permits an agency to publish a final regulation establishing a tolerance only

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

Eugene R. LEMMON, Plaintiff-Appellant, v. CEDAR POINT, INCORPORATED, Defendant-Appellee. No. 18312. United States Court of Appeals Sixth Circuit. Jan. 30, 1969. John S. Stith, Cincinnati, Ohio, for appellant, Sherman Unger, Cincinnati, Ohio, on the brief, Frost & Jacobs, Cincinnati, Ohio, of counsel. Thomas P. Mulligan, Cleveland, Ohio, for Appellee, Jones, Day, Cockley & Rea-vis, Cleveland, Ohio, on the brief. Before O’SULLIVAN, EDWARDS, and McCREE, Circuit Judges. McCREE, Circuit Judge. This is an appeal from a judgment of the District Court dismissing plaintiff’s action. Defendant Cedar Point, Inc. owns and operates resort and amusement park facilities in Sandusky, Ohio. In 1961, it entered into both an employment contract and a stock option agreement with plaintiff, and until 1964 plaintiff supervised the development and rehabilitation of defendant’s facilities. In October, 1964, defendant discharged plaintiff and the present litigation ensued. Plaintiff asserted two causes of action in his complaint. In the first he alleged that he and the defendant corporation entered into an employment contract in May, 1962 2*****which provided for plaintiff’s employment at a stated annual salary through January, 1967; that in the summer of 1964, with the prior knowledge and approval of defendant’s officers, he tendered his resignation effective February 8, 1965; that on October 22, 1964 defendant terminated plaintiff’s employment; that under the employment contract defendant was obligated to pay plaintiff’s salary until the expiration date of the contract except to the extent such salary was offset by other earnings; and that plaintiff was not gainfully employed until February 1, 1965. He asked for damages in the amount of $5,499.99, the equivalent of his base salary from October 22, 1964 to February 1, 1965. In his second caused of action plaintiff alleged that on March 14, 1961, he and the G. A. Boeckling Company (defendant’s predecessor) entered into a written stock option agreement pursuant to which plaintiff was permitted to purchase 20,000 shares of defendant’s common stock in yearly increments of 4,000 shares provided he remained in the continuous employ of defendant during the year in which the option was exercisable; that during the summer of 1964, he informed defendant that the State of California was seeking his services; that defendant, through its officers, represented to plaintiff that he could consider such employment; that in reliance on this representation plaintiff accepted a position with the State of California and tendered his resignation effective February 8, 1965; that on October 22, 1964 defendant discharged plaintiff; that under the provisions of the stock option agreement plaintiff was entitled to 4,000 more shares of defendant’s common stock; and that he attempted to purchase these shares but defendant refused to transfer them. He asked for a judgment requiring defendant to specifically perform its obligation under the option agreement by transferring to him the 4,000 shares in question at the option price of $5.00 per share. Defendant filed a motion to dismiss plaintiff’s second cause of action for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b) (6). The District Judge sustained defendant’s motion and, since only $5,499.-99 in damages was sought in plaintiff’s first cause of action, he also dismissed it for failure to satisfy the jurisdictional amount requirement of 28 U.S.C. § 1332 (a). A plaintiff can aggregate his causes of action in order to satisfy the jurisdictional amount requirement of 28 U.S.C. § 1332(a). 1 J.Moore, Federal Practice |f 0.97, at 822 (2d ed. 1964). Therefore, a holding in this case that plaintiff’s second cause of action did state a claim upon which relief could be granted will have the effect of curing the jurisdictional amount deficiency which required the dismissal of his first cause of action. Hence, the question before us on appeal is the propriety of the District Judge’s dismissal of plaintiff’s second cause of action. Under the Federal Rules of Civil Procedure, pleadings are to be construed liberally and “a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” 2A J. Moore, Federal Practice H 12.08, at 2273-74 (2d ed. 1968) (author’s emphasis). Despite certain deficiencies in the complaint, we are of the opinion that the District Judge’s dismissal of the second cause of action was improper when measured against this standard. We therefore reverse. Under the terms of the stock option agreement, plaintiff was permitted to purchase 4,000 shares of defendant’s stock on February 1 of each year from 1962 through 1966, provided he remained in the continuous employ of defendant during the year in which the right to exercise the option accrued. The option agreement also provided that, “Nothing contained in [it] shall limit whatever right the Company * * * might otherwise have to terminate the employment of the Optionee.” In the employment contract it was agreed that, “The Company shall have the right to terminate this Employment Contract at any time." * * * ” Defendant contends that these provisions permitted it to discharge plaintiff at any time, with or without cause; and that since plaintiff was discharged prior to February 1, 1965, he was not entitled to acquire the 4,000 shares of stock he could have purchased on that date had he remained in defendant’s employ. A similar contention was considered in Coleman v. Graybar Electric Co., 195 F.2d 374 (5th Cir. 1952). There the plaintiff brought an action to recover added compensation to which he claimed he was entitled under the company’s compensation plan. A prerequisite to obtaining the added compensation was continuous employment during the year in which it was earned and the defendant had discharged the plaintiff 44 days before the end of the year. In defending the action the defendant relied on the provision in the employment agreement which stipulated that “employment is at the discretion of the company and may be terminated at any time,” and the provision in the compensation plan that “Nothing in [the] compensation plan shall be deemed to waive or impair any right of the Company * * * as to hiring, laying off, discharging * * * ” The company contended that these provisions allowed it to terminate the plaintiff’s employment at any time and for any reason, and to thereby foreclose his right to any added compensation he might have obtained by remaining in the company’s employ until the end of the year. The court disagreed. It held that: [A] construction of the language which would permit the employer to terminate the continuity of service without any cause and as a matter of arbitrary choice, or because of a desire to evade the payment of additional compensation would be entirely inconsistent with the purpose of the plan and, in the absence of clear and compelling language, should not be adopted. * * * We do not think the language of the employment application which granted the employer the right to terminate the employment in its discretion at any time can be so imported into the language of the compensation plan as to authorize a construction of its provisions to mean also that a discharge, even if otherwise authorized without cause, would bring such a cessation of employment within the terms of the forfeiture provision. 195 F.2d at 377 (emphasis added). Accordingly, the court reversed the District Judge’s direction that the jury return a verdict for the defendant and remanded in order to give the plaintiff an opportunity to prove that his discharge was arbitrary and without cause. Coleman is consistent with the principle that courts will strictly construe contractual provisions which authorize the ■ forfeiture of important rights almost earned by the rendering of substantial service. Unless the language of the contract is so clear as to permit no other reasonable interpretation, such provisions will be construed to prevent arbitrary action in reliance on them. 195 F.2d at 378. See also, Corbin, Contracts §§ 153, 552 at 210-11 (1963). Of course, in Coleman the court was attempting to ascertain the law of Texas where as here it is Ohio law with which we are concerned. In Harding v. Montgomery Ward Co., 58 N.E.2d 75 (Ohio App.1944), the Ohio Court of Appeals held that an employer could prevent an employee from obtaining a bonus by discharging him prior to the end of the period for which he had to remain in the employ of the company in order to qualify. However, the employment contract in Harding permitted termination “whether it be for cause or otherwise,” and also provided that “[I]f the manager’s services are terminated, either by the company or by the manager, the manager forfeits his right to bonus for the entire year in which his services are terminated.” 58 N.E.2d at 76. Thus, the right to foreclose the receipt of any added compensation by discharging the plaintiff, even without cause, was abundantly clear. Moreover, in an earlier Ohio case, which the court failed to mention in Harding, the Ohio Court of Appeals had indicated that the principle enunciated in Coleman may be applicable in Ohio. In The Parish & Bingham Corp. v. Jackson, 16 Ohio App. 51 (1921), the company instituted a profit-sharing plan which required employees to remain in the employ of the company throughout the year in order to qualify for a bonus. A little more than three months prior to the expiration of the year the plaintiff was discharged and the company refused to pay the bonus. Although the opinion does not reveal the breadth of the company’s power to discharge, the court held that because the plaintiff was discharged without cause the company was liable for the entire amount that would have been due if the plaintiff had been permitted to complete the one year employment requirement. The decisions in Coleman and Jackson indicate that it is not certain that plaintiff “is entitled to no relief under any state of facts which could be provee] in support of [his] claim.” 2A J. Moore, Federal Practice, supra at 2273-74. Therefore, dismissal of his second cause of action was erroneous. We refrain from indicating any opinion about the merits of this controversy, and in particular whether defendant had cause to discharge plaintiff. The decision of the District Court is reversed and the cause remanded for further proceedings consistent with this opinion. . This contract superseded the original contract of 1961. . This prayer for relief is the only indication in plaintiff’s complaint that the requisite jurisdictional amount of $10,-000 is involved in .this action. There is no proper allegation that the “matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars.” However, this deficiency can be cured by amendment pursuant to Rule 15 of the Federal Rules of Civil Procedure since it is apparent that jurisdiction does in fact exist. 3 J. Moore, Federal Practice ¶ 15.04, at 945 (2d ed. 1968). . The court in Coleman, supra, made this same observation in distinguishing Harding from its case. 195 F.2d at 378. . This question was submitted to a jury in the lower court and the jury found that the plaintiff had been wrongfully discharged. . In its brief defendant challenges the adequacy of plaintiff’s allegation that his discharge was without cause. Although plaintiff never uses the precise words “without cause”, we find that the complaint as a whole adequately informed the defendant that an element of plaintiff’s cause of action would be that his discharge was without cause.

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

Angelo TELESCO, Plaintiff-Appellant, v. TELESCO FUEL AND MASONS’ MATERIALS, INC.; Dominick W. Telesco; William C. Telesco; Rose M. Telesco; Katherine Raymond; Theresa La Russo; and Elaine Blackman, Defendants-Appellees. No. 691, Docket 84-7807. United States Court of Appeals, Second Circuit. Argued Feb. 6, 1985. Decided June 18, 1985. Robert R. Petrucelli, Bridgeport, Conn., for plaintiff-appellant. Tobias Weiss, Stamford, Conn., for defendants-appellees. Before PIERCE and MANSFIELD, Circuit Judges, and BARTELS, District Judge . Of the United States District Court for the Eastern District of New York, sitting by designation. BARTELS, District Judge: Plaintiff-Appellant, Angelo Telesco, appeals from an order of the District Court of Connecticut (Ellen Burns, J.), granting defendants’ motion to dismiss the present federal action under the doctrine of “exceptional circumstances” set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). This case arises out of a family feud involving a history of hostility, jealousy and vendetta litigation conducted in the Connecticut state court by appellant Angelo Telesco against the rest of his family and the corporation they own. The facts follow. State Court Actions Until 1945, Canio Telesco, father of plaintiff Angelo Telesco and of defendants Dominick and William Telesco, owned and operated a fuel and construction supplies business in Connecticut. Upon his death in 1945, his sons — Angelo, Dominick, William and Anthony — organized a partnership to continue operation of the business, with all four brothers apparently taking an active part in the management and operation of the business and all drawing equal compensation for their services. In June, 1953, they incorporated the business as Telesco Fuel and Masons’ Materials, Inc. Each brother held an equal one-fourth share and served as an officer, director and salaried employee of the corporation. Angelo received the title of Vice President, and Dominick, his older brother, served as President and Treasurer. When Anthony died in 1969, his interest passed to his wife, Rose, who did not immediately take any active role in the corporation, and the three surviving brothers continued to operate the business. In the operation of the business Angelo and his brothers began to have serious disagreements and the conflict surfaced in 1978 when Angelo filed an action in the Connecticut State Superior Court against his brothers and the corporation, referred to by the parties and the district court as the “original action.” The complaint in the original action is in two counts. Count one alleges generally fraud and gross mismanagement of the corporation by the defendants and in particular their failure to hold meetings, keep records, or seek approval for corporate actions, waste and diversion of assets, as well as failure to pay the plaintiff his share of corporate profits. Count two is a shareholder derivative action also alleging fraud and gross mismanagement, in addition to commingling and diversion of assets by Dominick. It also alleges Dominick’s successful coercion of Angelo to execute a shareholder’s agreement limiting transferability of shares and Dominick’s attempt to coerce Angelo into signing a will hereafter mentioned. As relief the complaint seeks dissolution of the corporation, appointment of a receiver, an audit, an accounting, restitution, an injunction against Dominick’s participation in the corporation, and any other relief warranted in the case. According to appellant, the events leading to the suit were Dominick’s efforts to edge Angelo out of the family business in retaliation for Angelo’s refusal to execute a will under which Angelo’s interest in the corporation would pass to his brothers rather than to his wife. Angelo, claiming that he was unable to obtain financial information from his brothers or the corporation in order to draw up his own will, and fearful of losing his proprietary interest in the company, retained counsel and brought suit. After hearings held at various times during the period from November 20, 1978 to July 24, 1979, the Connecticut Superior Court ordered an audit of the business, which was conducted by Price Waterhouse at a cost of $122,000 to the corporation. In May, 1980, that Court issued a memorandum opinion denying Angelo’s application for appointment of a temporary receiver and dissolution of the corporation. Defendants thereafter filed answers to the complaint and a motion for summary judgment on the second count. The Superior Court granted the motion based on its earlier, May, 1980 decision denying Angelo’s request for preliminary relief. Angelo appealed to the Connecticut Supreme Court which, in August, 1982, reversed and remanded on grounds that it was improper for the Superior Court to decide the merits of the complaint based upon its earlier limited interlocutory hearing and decision of May, 1980, rendered before pleadings had closed. Telesco v. Telesco, 187 Conn. 715, 447 A.2d 752 (1982). As a result of the Connecticut Supreme Court’s order, there has yet to be any decision on the merits of either count of Angelo’s original action, which- is still pending in the Connecticut state court. While these proceedings in the original action were going on, hostilities between Angelo and his brothers increased on other fronts. In May, 1981, the directors, absent Angelo, held several meetings which Angelo unsuccessfully tried to restrain by court order. At these meetings the directors terminated Angelo as a salaried employee and removed him as an officer and director, replacing him with Rose, the wife of the deceased brother Anthony. The directors notified Angelo of these actions by letter, informing him he no longer had any business at the corporation and advising him to keep off the premises. Angelo nevertheless continued to visit the corporate offices and plant where he allegedly disrupted operations to the extent that at one point the police were called in. In response, the corporation and three shareholders — namely, Dominick, William and Rose — filed, in July, 1981, another action in the state court, referred to by the parties as the “injunction action,” to enjoin Angelo’s alleged acts of harassment and to keep him off the corporate premises. In that action Angelo raised as a defense the illegality of his termination as director, officer and employee of the corporation. The Superior Court of Connecticut issued a temporary restraining order against Angelo in April, 1982, but no final judgment had been entered at the time of Judge Burns’ decision in the federal action. In addition to the original action and the injunction action, this internecine struggle has involved several other law suits in the Connecticut courts initiated by both sides against each other. While not directly relevant to this case, they indicate the extent to which the parties have used the courts as a forum in which to vent their deep hostilities. The Federal Action In April, 1983, while the original and injunction actions were pending in the Connecticut Superior Court, Angelo moved his residence to New York State and, on June 8, 1983, filed the federal diversity action presently before this Court. The amended complaint, filed November 3, 1983, sets out three counts. The first is premised on the allegation that, despite the 1953 incorporation, the brothers continued to operate the business as a partnership in effect. It seeks a declaratory judgment that a de facto partnership exists among the three brothers and Rose, and charges that the others have breached their contractual and fiduciary duties under the alleged partnership. As relief Angelo demands specific performance of the partnership agreement, including an order reinstating him as officer, director and employee, back pay, an injunction, an accounting, appointment of a receiver and dissolution of the partnership, damages and other relief. The second count, brought as a shareholder’s derivative action, seeks repayment of money owed the corporation by defendants as a result of alleged mismanagement and waste of assets by Dominick, William and Rose, as well as dissolution of the corporation and a receivership. The third count claims damages for the alleged illegal ouster of Angelo from the business and from the purported partnership by the others in breach of their contractual and fiduciary duties. Defendants moved to dismiss the action or for summary judgment in light of the protracted state court proceedings on the same claims. The district court, while acknowledging that the usual grounds for abstention were not present, nevertheless held that, under the principles set out by the Supreme Court in Colorado River Water Conservation District v. United States, supra, the case presented “exceptional circumstances” warranting dismissal in favor of the concurrent state proceedings. That court found that, despite differences between the pleadings in the federal and state court actions, Angelo essentially made the same claims and sought the same relief in both the state and federal courts. In particular it pointed to two issues assert-edly raised for the first time in the federal case — the existence of a de facto partnership agreement allegedly violated by defendants, and the affirmative claim for reinstatement as an officer, director and salaried employee of the corporation. As to the partnership theory, the court held that although Angelo had not asserted the existence of a de facto partnership in the state court actions, the underlying events were the same and this assertion was merely an attempt to cast the same grievances in the form of a new legal theory. This conclusion was supported by the fact that while the legal theories asserted in the state and federal courts differed, the complaints nevertheless requested the same relief. Referring to the claim for reinstatement, the court found that while Angelo had not expressly asserted an affirmative claim for reinstatement in the state courts, the pleadings in the original action were such that the claim could be raised in that suit, and further, that the legality of the ouster had been expressly raised as a defense in the injunction action. The relief claimed in the federal court, the court added, was available under the general prayer for equitable relief in the original action in the state court. We agree. Having concluded that the federal action essentially paralleled the state court actions, the district court detailed the exceptional circumstances present: (a) the state court action, instituted long before the federal case, had already involved five years of proceedings, including substantial discovery, hearings, and several interlocutory orders granting or denying injunctive and other temporary relief. In contrast, the federal case involved no discovery or proceedings beyond the motion to dismiss and some motions to clarify the pleadings; and (b) while in the usual case of parallel proceedings in state and federal courts it is the state court defendant who brings the second duplicative suit in federal court, here it was Angelo, after moving to New York, who brought the federal suit, having failed to obtain results in his own state court action. Holding that these were exceptional circumstances, the court decided that in the exercise of “wise judicial administration,” Colorado River, 424 U.S. at 818, 96 S.Ct. at 1246, and under the principles set forth in that case, it should dismiss the federal case and leave the parties to their well-advanced state court litigation. In his appeal, plaintiff asserts that his federal action raises issues distinct from those raised in state court and does not present exceptional circumstances warranting dismissal. For the reasons stated below, we affirm the dismissal. Discussion The sole question before us is whether this suit was properly dismissed in view of the pending state proceedings. The merits of the case are not involved. In cases of concurrent state and federal jurisdictions it is axiomatic that the federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them.” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. To this obligation there are, nevertheless, extraordinary and narrow exceptions where a countervailing interest would be served by permitting the state court to adjudicate the controversy, County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959). These exceptions are incorporated in the doctrines of abstension. “[T]he mere potential for conflict in the results of adjudications, does not, without more, warrant staying exercise of federal jurisdiction,” Colorado River, 424 U.S. at 816, 96 S.Ct. at 1245, and abstention from the exercise of federal jurisdiction is the exception, rather than the rule. Id. at 813, 96 S.Ct. at 1244. The abstention doctrines are generally confined to three narrow categories of eases which were outlined by the Supreme Court in Colorado River, 424 U.S. at 813-17, 96 S.Ct. at 1244-46. It is appropriate for the district court to abstain where (1) a federal constitutional issue is presented which might otherwise be mooted by a state court determination of pertinent state law. County of Allegheny v. Frank Mashuda Co., 360 at 189, 79 S.Ct. at 1063; Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); (2) there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar, Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959), or where federal review of the question would be disruptive of state efforts to establish a coherent policy in an area of public concern, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); and finally (3) federal jurisdiction has been invoked to restrain state criminal or tax proceedings. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). This case does not fall within any of those categories, and dismissal cannot be supported under the doctrine of abstention in any of its forms. There are other principles unrelated to considerations of constitutional adjudication and comity underlying the doctrines of abstention, which govern the exercise of concurrent federal and state jurisdiction. These considerations, referred to as the “exceptional circumstances test,” were first enunciated in Colorado River, supra, and subsequently reaffirmed in Moses H. Cone Memorial Hosp. v. Mercury Const., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). As stated by the Supreme Court in Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246, “These principles rest on considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation’ [citations omitted].” In referring to these principles the Court made it clear that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention.” Id. at 818, 96 S.Ct. at 1246. For a complete understanding of the exceptional circumstances test, reference to the facts in Colorado River is appropriate. That case involved the McCarran Amendment, 43 U.S.C. § 666, an amendment to federal laws governing the allocation of water rights and resolution of disputes relative thereto, which permits the federal government to be joined as defendant in state court adjudication of water rights. In that case there were comprehensive proceedings in the Colorado Water Division 7 in which the federal government was participating. Nevertheless, the federal government itself brought suit in federal court, on behalf of itself and certain Indian tribes, to settle water rights against some 1,000 private water users. The district court dismissed the federal action in favor of the state proceedings. The Supreme Court affirmed, emphasizing the danger of piecemeal litigation which the McCarran Amendment sought to avoid, and several other factors such as the absence of any proceedings in the district court other than the motion to dismiss; the extent to which state water rights were involved; the 300-mile distance between the district court and the state court; and the government’s existing participation in the state court proceedings. Finding the doctrine of abstention inapplicable, the Court then identified factors to be considered in applying the exceptional circumstances test, explaining: It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts____ In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; ... the desirability of avoiding piecemeal litigation; ... and the order in which jurisdiction was obtained by the concurrent forums. Id. [citations omitted]. In Moses H. Cone Memorial Hospital v. Mercury Const., supra, the Court reviewed and reaffirmed the test applied in the Colorado River decision. In Cone the hospital sued in state court for a declaratory judgment regarding rights and liabilities under a contract between it and Mercury Construction which had built an addition to the hospital. Shortly thereafter, Mercury brought its own suit in federal court to compel arbitration under § 4 of the federal Arbitration Act, which action the district court stayed pending resolution of the state court suit. The stay was appealed to the Supreme Court. In reviewing the exceptional circumstances test, the Court added two new factors to those set out in Colorado River: whether state or federal law supplies the rule of decision, 460 U.S. at 23-26, 103 S.Ct. at 941-942, and whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction. Id. at 26-27, 103 S.Ct. at 942-943. Applying the Colorado River factors, along with the two new factors, to the case before it, the Court found that the balance of circumstances weighed against staying the federal proceedings. Specifically, the Court found that the possibility of piecemeal litigation was the unavoidable result of the Arbitration Act’s command that certain issues be sent to arbitration; that the federal suit “was running well ahead of the state suit” at the time the district court refused to adjudicate the case; that federal law provided the rule of decision, a factor which “must always be a major consideration weighing against surrender;” and finally, that the state court might not provide adequate relief since it was unclear that the state court was bound by the relevant provision of the Arbitration Act. In applying the exceptional circumstances test, it is relevant to note the warnings of both Colorado River and Cone that this test is not subject to precise rules, but rather should “be applied in a pragmatic, flexible manner with a view to the realities of the case at hand.” Cone, 460 U.S. at 21, 103 S.Ct. at 939. In Cone, id. at 16, 103 S.Ct. at 937, the Court, in repeating the warning in Colorado River, stated: [T]he decision whether to dismiss ... does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case. In applying these factors to the circumstances of this case we hold that on balance there were sufficient grounds for the dismissal of the existing federal action. To begin with, the federal and state actions are essentially the same. Appellant contends that he has raised a new legal theory set forth in the federal complaint, i.e., the existence of a de facto partnership governing the parties’ relationships. He further asserts that this new legal theory together with his affirmative claim for reinstatement as a director, officer and employee, constitute a new cause of action not raised in the state courts and consequently that these distinctions between the federal and state actions entitle him to remain in the federal court. The fact, however, remains that in its essential elements the same cause of action, regardless of theory or pleadings, is asserted in both courts. Thus, the federal action does in fact duplicate the state litigation, as appears from the following: (a) Angelo’s federal complaint, based on the alleged partnership, concerns the same events and seeks the same relief requested in the original state court action, and there is no reason to believe Angelo cannot raise this theory in the pending original action. Merely raising an alternative theory of recovery, which may still be raised in state court, is not enough to differentiate the federal suit from the state suit. See Olmstead v. Amoco Oil Co., 725 F.2d 627, 631-32 (11th Cir. 1984); Berlitz Schools of Languages of America, Inc. v. Everest House, 619 F.2d 211, 215 (2d Cir.1980); Roach v. Teamsters Local Union No. 688, 595 F.2d 446 (8th Cir.1979). But see Crawley v. Hamilton County Commissioners, 744 F.2d 28, 31 (6th Cir.1984) (state court proceedings not “parallel proceedings”); (b) with respect to his claim for reinstatement raised in the federal complaint, the district court correctly found that this issue could properly be raised in the state court under the pleadings of the original action and that the merits of this claim were before the state court in the injunction action. In other words, the federal case is an action, involving a novel legal theory, parallel to the pending state cases. Moreover, the Connecticut state courts have had jurisdiction over the matters in this case far longer than the federal court. Angelo first sought redress in state court back in 1978 with the filing of his original action. Since that time there have been extensive, if inconclusive, proceedings in the original action, including substantial, costly discovery involving a $122,000 audit of the corporation, and several interlocutory decisions in the state court. In addition, the concurrent state proceedings found here include not one, but two state court suits raising the same issues asserted in the federal action. The second suit, the injunction action, like the original action, was commenced before the federal suit and likewise has involved more extensive proceedings than in the federal suit, including an interlocutory order granting a preliminary injunction. The federal suit, on the other hand, like that in Colorado River, has not moved beyond the initial pleadings and the motion to dismiss. With this history, it hardly seems wise to permit plaintiff to start anew in federal court. Another added factor is that federal law does not provide the rule of decision in this case, but, on the contrary, it is provided by the state law involving a novel state law theory, i.e., the existence of a de facto partnership, advanced by Angelo in support of his claim. A further example that state law provides the rule of decision is attested to by the Fourth claim added to the present complaint in December, 1983. That claim raises the state law question of whether non-consumers may assert rights under Connecticut’s Unfair Trade Practices Act, C.G.S. § 42-110b. In Cone, the Supreme Court stated that it found “considerable merit” in the idea “that the vexatious or reactive nature of either the federal or the state litigation may influence the decision whether to defer to a parallel state litigation under Colorado River.” 460 U.S. at 17 n. 20, 103 S.Ct. at 938 n. 20. The sequence of events in this case shows that the same party is plaintiff in both courts and sues in the federal court on the same cause of action after he has suffered some failures in the earlier state court action. This fact and the hostile history of the case strongly indicate the vexatious nature of the litigation. Accordingly, the conservation of judicial resources is a factor to be considered in determining the existence of exceptional circumstances justifying deference to a parallel state litigation. Conclusion While this case is close, we find it falls within the framework of the exceptional circumstances test. Upon carefully balancing all the factors, we conclude that the district court acted within its authority to dismiss this action in favor of the concurrent state proceedings. Affirmed. . After remand by the Connecticut Supreme Court, the Connecticut court dismissed the original action for failure to prosecute and then reopened the case. Apparently that action has not proceeded due to defendants’ objections to restoration of the case. Defendants' attorney stated at oral argument that he would drop objections to restoration if dismissal of the federal case were upheld. Our affirmance is based on the assumption that the parties can continue litigation on the merits in the state court. . Appellant’s claim, in papers submitted to this Court, that the injunction action has terminated in a settlement, is not properly before us on the record. Even if true, this fact was not before the district court and, moreover, it is insufficient alone to affect our decision. . In the other cases, Dominick sued Angelo for defamation; in 1979 Angelo sued to enjoin alteration of corporate financial records; in 1982 Angelo sued to force the corporation to pay for repairs to his car, and the corporation sued Angelo and his son for the cost of corporation gasoline taken by Angelo’s son for his car. . We are not here considering concurrent jurisdiction as between two federal district courts where different considerations apply. See Kero-test Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952); Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 165-66, 81 L.Ed. 153 (1936). Where the second parallel litigation is brought by the same party in two federal courts the basis for dismissing jurisdiction is not predicated upon the doctrine of abstention or exceptional circumstances but upon the general rule, as stated in Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1203 (2d Cir.1970): that in the absence of sound reasons the second action should give way to the first. See Food Fair Stores, Inc. v. Square Deal Mkt. Co., supra, 187 F.2d 219 [D.C.Cir.1951]. To begin with, any exception for cases where the same party is plaintiff in both actions would entail the danger that plaintiffs may engage in forum shopping or, more accurately judge shopping. When they see a storm brewing in the first court, they may try to weigh anchor and set sail for the hopefully more favorable waters of another district. . This court has previously discussed application of the exceptional circumstances test in Giardina v. Fontana, 733 F.2d 1047, 1052-53 (2d Cir.1984) (no exceptional circumstances warranting dismissal); and Levy v. Lewis, 635 F.2d 960, 965-67 (2d Cir.1980) (dismissal affirmed under Burford abstention, Younger abstention, and alternatively under Colorado River). . There was some question subsequently as to whether the exceptional circumstances test was viable. See 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4247 at 156—61 (Supp.1985). . See C.G.S. §§ 52-128, 52-130, 52-136, 52-137, 52-138. See also Crowell v. Middletown Savings Bank, 122 Conn. 362, 189 A. 172, 175 (1937) ("Our courts are liberal in allowing amendments, and, unless there is sound reason for denying permission to amend, it should be granted.”). . Appellees' citations to authorities and arguments based on principles of preclusion are inapposite since there has been in this case no prior judgment in either state or federal court concerning the merits of any of the matters presented here. . In applying the exceptional circumstances test, "the mere difficulty of state law does not justify a federal court’s relinquishment of jurisdiction in favor of state court action." Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27, 79 S.Ct. 1070, 1072, 3 L.Ed.2d 1058 (1959); see Giardina v. Fontana, 733 F.2d at 1053; Smith v. Metropolitan Property & Liability Insurance Co., 629 F.2d 757, 762 (2d Cir.1980) (Mansfield, J., dissenting). Here, however, there is present the additional fact that there is a state forum already hearing these matters where the plaintiff may raise his novel theory.

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

Howard Jerome SMITH, Administrator, Estate of Dorothy E. Saunders, Deceased, and National Surety Corporation, Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee. METROPOLITAN LIFE INSURANCE COMPANY, Appellant, v. NATIONAL SURETY CORPORATION, Appellee. Nos. 16947, 17171. United States Court of Appeals District of Columbia Circuit. Argued Jan. 21, 1963. Decided July 3, 1963. Mr. Robert T. Smith, Washington, D. C., for appellants in No. 16947 and ap-pellee in No. 17171. Mr. Henry H. Paige, Washington, D. C., with whom Messrs. Arthur P. Drury, John M. Lynham and John E. Powell, Washington, D. C., were on the brief, for appellee in No. 16947 and appellant in No. 17171. Before Wilbur K. Miller, Danaher and Bastían, Circuit Judges. DANAHER, Circuit Judge. Appellant on April 11, 1958 was named administrator of the estate of his aunt, Dorothy E. Saunders, who died on March 21, 1958. He here attacks a judgment in favor of the appellee permitting recovery of an overpayment in the sum of $1,000 from the appellant Smith as administrator and the National Surety Corporation as his surety. It is here argued that the appellee’s claim “was never probated against the estate, and the administrator was not notified of said claim until long after the expiration of the publication against creditors and several months after he had filed the final account on the 20th day of February, 1959.” Dorothy E. Saunders had been a federal employee, who at the time of her death was insured under a group policy issued by the appellee. According to the schedule of payments fixed by statute the amount of life insurance available to Dorothy E. Saunders was $4,000. On July 30, 1958, the appellant as administrator filed a sworn inventory of money and debts due, listing unpaid compensation, $373.94, Civil Service retirement fund $1,571.78, and specifically, “Federal Employees’ Group Life Insurance — $4,-000.” The Immigration and Naturalization Service, employing agent of the appellant’s decedent, issued an erroneous certificate in proper reliance upon which the appellee, on December 19, 1958, paid to the appellant as administrator the sum of $5,000. The Civil Service Commission’s audit having disclosed the overpayment, the correcting certificate having been issued as of April 13, 1959, the appellee sought reimbursement of the sum of $l,000. As of July 1, 1959, appellant’s counsel transmitted to the Probate Court the 1958 proof of publication against creditors, followed by a deposit of the can-celled vouchers, all dated August 6, 1958, and reflecting payment to the creditors of the deceased and a funeral bill of $1,053.70. Despite the various requests previously made by the appellee for reimbursement, the appellee’s claim was not then or thereafter listed by the appellant or his counsel. The appellee was given no notice that the administrator had lodged a purported “final account” on which no> action had yet been taken by the court. Instead, as late as September 17, 1959,. the appellee again requested information “immediately” as to when “we may expect to receive the reimbursement of the sunn of $1,000.” Appellant’s counsel replied under date of October 13, 1959 that he had taken up the matter with his client, the administrator, and would meet with him on October 22, 1959 to discuss “this matter.” Counsel concluded “After I have had an opportunity to talk to him, I will advise you.” The record contains no evidence of any such advices. On November 4, 1959, appellant filed a Finance Office nontaxable certificate dated October 29, 1959. Thereupon, on November 5, 1959, the administrator’s “first and final account,” the order recited, “being now presented for approval, the same is, after examination by the Court, approved and passed.” For more than six months, the appellant as administrator had known of the error which led to the overpayment. He had ignored the repeated requests of appellee’s counsel that appellee be reimbursed in the sum of $1,000. As late as the morning of November 5, 1959, on the face of his sworn account he was representing to the court that there was a “Balance for Distribution to Howard Jerome Smith, nephew” $5,069.57. It is obvious that when the District Court “approved” the final account, it had no notice of the overpayment. Even if we were to treat the amount in question as a debt or account “due to the deceased,” as the original inventory had set forth, no supplemental inventory had been filed “promptly,” as is required by D.C.Code § 18-405 (1961), to reflect receipt of assets not included in the original inventory. Nor had the administrator sought, as one entitled to the residue of the estate, to proceed under the special bond ■provisions of D.C.Code § 20-203 (1961). 'The allowance of the “final” account does mot conclude the matter because of the 'circumstances shown and because the basis upon which the administrator received the proceeds of the insurance was already fixed by law. Title 5 U.S.C. § 2093 (1958) provides in pertinent parti “Any amount of group life insurance * * * in force on any employee at the date of his death shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving * * * in the following order of precedence: ****** “Fifth, if none of the above, to the duly appointed * * * administrator of the estate of such employee.” (Emphasis supplied.) The Government’s own interest in the Federal Employees’ Group Life Insurance program and in the maintenance of its integrity is clearly evident from the provisions running throughout Title 5 U.S.C., Chapter 24. This appellant could not have received the proceeds of the decedent’s insurance except upon his establishment of a “valid claim.” He could not lawfully receive an amount greater than the $4,000 explicitly prescribed by the statute. 5 U.S.C. § 2092 (1958). When, after prolonged frustration, the appellee finally went to court and filed its motion for judgment against the administrator and his surety, the appellee rested its claim on the ground that the administrator had breached the duties of his office. The appellant in his answer admitted that he had accepted the sum of $5,000 “as administrator of said estate,” although he had sworn in his inventory that he was entitled to receive only $4,000. He sought to persuade the District Court, sitting as a probate court, that he had acted in good faith. Judgment was awarded to the appellee against the appellant as administrator of the Saunders estate and against National Surety Corporation as the surety on his administrator’s bond authorizing recovery by the appellee of the sum of $1,000 with interest thereon at 6% per annum from May 1, 1959. Since the administrator here had unlawfully received $1,000 which had been paid to him solely in his capacity as administrator, he was not entitled officially to retain that sum. Other contentions advanced by the appellant do not affect the result. We find no error. Affirmed. . This proceeding is authorized by D.O. Code § 28-2403 (1961). . The Probate Court’s file shows that the last publication against creditors had occurred in Máy, 1958, more than seven months before the appellee had paid the administrator's claim for the proceeds of his aunt’s insurance. . More complete details will be set forth, infra, but appellee’s claim was asserted only two months after the account was “filed.” Actually, the administrator’s account was not approved by the Probate Court until November 5, 1959. . 5 U.S.C. § 2092 (1958). . Appellee, on April 22, 1959, promptly wrote, registered mail, explaining the circumstances and requesting reimbursement. The return receipt shows delivery April 23, 1959. Appellee wrote again May 25, 1959 and June 5, 1959, without result. . On October 22, 1959, the Probate Court notified the appellant that the account had been pending since February 20, 1959 and “is still incomplete despite our numerous requests.” The administrator was directed to give the matter immediate attention or “your delinquency will be reported to the Court.” . In bis statement of tbe case on brief, the appellant informed the court: “In April of 1961 [sic], Howard Jerome Smith was notified by the Metropolitan Life Insurance Company of an alleged [sic] overpayment to him, as administrator of the estate of Dorothy E. Saunders, in the amount of $1,000, on the life insurance policy on the decedent.” . D.C.Code § 18—512 (1961) provides: “In no case shall an * * * administrator be allowed to retain for his own claim against the decedent, unless the same be passed by the probate court, and every such claim shall stand on an equal footing with other claims of the same nature.” (Emphasis supplied.) . Cf. United States v. State Bank, 96 U.S. 30, 35, 24 L.Ed. 647 (1878) where the Court said: “An action will lie whenever the defendant has received money which is the property of plaintiff, and which the defendant is obliged by natural justice and equity to refund. The form of the indebtedness or the mode in which it was incurred is immaterial.” That Howard Jerome Smith was administrator as well as sole distributee does not affect the result in the circumstances of this case. Clarke v. Rogers, 228 U.S. 534, 549, 33 S.Ct. 587, 57 L.Ed. 953 (1913). The Supreme Court has said in language sufficiently apt here: “[W]e are of opinion, that whatever property or money is lawfully recovered or received by the executor or administrator, after the death of his testator or intestate, in virtue of his representative character, he holds as assets of the estate; and he is liable therefor, in such representative character, to the party who has a good title thereto. In our judgment, this, upon principle, must be the true doctrine.” De Valengin’s Adm’rs v. Duffy, 14 Pet. 282, 39 U.S. 282, 290, 10 L.Ed. 457 (1840). And see generally, Tucker v. Brown, 20 Wash.2d 740, 150 P.2d 604, 663-664 (1944). . The appellee had moved to dismiss the purported appeal of National Surety Corporation which had not been named in the notice of appeal. Nearly a month after the time within which an appeal could have been taken, the trial judge decided that since the liability of National Surety Corporation was based solely upon its capacity as surety, the “notice of appeal” had been intended to include both the administrator and the surety. In view of the disposition we have made of the case we find it unnecessary to enter a definitive ruling dismissing the purported appeal on jurisdictional grounds. See Cook & Sons Equipment, Inc. v. Ellen, 277 F.2d 607 (9 Cir. 1960); Schlink v. Chesapeake & O. Railway Co., 276 F.2d 116 (6 Cir. 1960). Case No. 17171 will become moot.

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

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

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

James M. FILES, Arlene Magnuson, Leonard Green & George Didier, Plaintiffs-Appellants, v. CITY OF ROCKFORD, City of Rockford Board of Election Commissioners, Andrew J. Doyle, Marshall R. Wedman & Richard A. Reese, as members of the Board of Election Commissioners, John A. Anderson, Alderman 6th Ward, City of Rockford, Benjamin T. Schleicher, Mayor of Rockford, Phillip Reinhard, State’s Attorney, County of Winnebago, and Richard H. Lyford, Defendants-Appellees. No. 18234. United States Court of Appeals, Seventh Circuit. March 8, 1971. William E. Schirger, Knight, Ingrassia & Schirger, Rockford, Ill., for plaintiffs-appellants. William J. Scott, Atty. Gen., Donald J. Veverka, Asst. Atty. Gen., Chicago, Ill., Philip G. Reinhard, Stanley H. Guyer, Rockford, Ill., for defendants-appellees; Francis T. Crowe, Asst. Atty. Gen., of counsel. Before KILEY, PELL and STEVENS, Circuit Judges. PELL, Circuit Judge. This is an appeal by the plaintiffs from the district court’s dismissal of their amended four count complaint. Counts I, II and III alleged generally that certain violations of the Illinois Election Code occurred during the city election held in Rockford, Illinois on April 1, 1969. The alleged violations, as well as other alleged improprieties in connection with the election, are charged to most of the defendants in their capacities as various officials of the City of Rockford. Jurisdiction is claimed under 28 U.S.C. § 1343 based on alleged violations of 42 U.S.C. §§ 1983, 1985 and 1986. Count IV is by the plaintiff, Didier, against the defendant Reinhard, State’s Attorney of Winnebago County, Illinois, and defendant Lyford, successful alder-manic candidate in the challenged election. Didier seeks an injunction against pending state prosecution brought against him for a claimed violation of Illinois Revised Statutes, Chapter 46, § 26-1 (1967). The threshold contention of the defendants is that this court is without jurisdiction to entertain the appeal because notice of appeal was not timely filed by the plaintiffs. The factual situation with regard to this question is as follows. The order dismissing the complaint in this cause was entered October 6, 1969 in open court. All parties were present in court by counsel. There is no contention that the clerk failed to give notice of the entry of said order to attorneys for all parties. See Rule 77(d), Fed.R. Civ.P. On November 10, 1969, the plaintiffs, with advance notice to the defendants, filed their motion for an order extending the time for filing the record and docketing the appeal in the office of the clerk of this court to and including December 5, 1969. The motion stated that the reason for the requested extension was “that there are numerous parties involved in this case and that there are attorneys from Chicago, Northern Illinois, and Indiana, working on this case and it is difficult to make arrangements for the scheduling of briefs and conferences, * * *” On November 14, 1969, the district court extended the time for docketing the record on appeal to December 5, 1969. No request was made in the motion filed on November 10, 1969 for an extension of time within which to file the notice of appeal although more than thirty days had expired since the entry of the order of dismissal from which presumably plaintiffs intended to appeal. On December 4, 1969, plaintiffs, again with advance notice to defendants, filed their motion, moving the court to vacate its order of November 14, 1969 and enter an order extending the time for filing the record and docketing the appeal in the cause to and including January 30, 1970 and for leave to file instanter their notice of appeal. The only reference in the motion to a reason in support thereof was the following statement, “The reason for the requested extension is that there are numerous parties involved in this ease and that there are attorneys from Chicago, Northern Illinois, and Indiana, working on this case and it is difficult to make arrangements for the scheduling of briefs and conferences, * * * ” The motion contained no supporting reasons in terms for permitting the filing of the notice of appeal on an instanter basis. Although the district court’s memorandum order of December 4, 1969, in response to plaintiff’s motion, contained only the words “Enter order,” apparently the motion was granted as prayed. No indication was given therein of any reason supporting permission for instanter filing of the notice of appeal. On February 17, 1970, the defendants filed in this court their motion to dismiss the appeal on the ground that no excusable neglect had been shown pursuant to Rule 4(a), Fed.R.App.P., and that therefore notice of appeal was not timely filed. A single judge of this court denied the motion at the time and the matter presented by the motion to dismiss, as well as other points raised on the appeal, were briefed and heard by a regular three judge panel of this court. Rule 3(a), Fed.R.App.P., provides in part as follows: “An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal.” (Emphasis supplied.) Rule 4(a), Fed.R.App.P., provides that the notice of apeal required by Rule 3 shall be filed with the clerk of the district court within thirty days of the date of the entry of the judgment order appealed from. This rule also provides the following: “Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.” (Emphasis supplied.) Rule 4(a), Fed.R.App.P., which was effective July 1, 1968, was, according to the Advisory Committee’s note, derived from Rule 73(a), Fed.R.Civ.P., without any change of substance. The history of the development of rules pertaining to the time of appeal is traced in 9 Moore’s Federal Practice U203.21 et seq. (2d ed. 1970). The original Rule 73 as promulgated in 1937 contained no time limitation, that being regulated at the time in the case of civil appeals by statute. In 1946, Rule 73(a) was amended to include the present thirty days which shortened the time formerly allowed for most appeals. The amendment also provided, “* * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Id., j[203.24 [2], at 773. In the 1966 amendment the phrase “based upon a failure of a party to learn of the entry of the judgment” was eliminated. According to the committee note, this “empowers the district court to extend the time upon a showing of excusable neglect of any kind. In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result.” (Emphasis supplied.) Id., p03.25[3], at 783. Compliance with the time requirement on appeal has repeatedly been held to be mandatory and jurisdictional and if notice is not filed within the time provided, the right to appeal is lost. Howard v. Local 74, 208 F.2d 930, 932 (7th Cir. 1953). See also United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); and Winchell v. Lortscher, 377 F.2d 247 (8th Cir. 1967). Rule 73 was intended to. expedite appeals and guard against dilatory tactics and should be liberally construed to accomplish this purpose. However, an extremely important provision of Rule 73(a) “makes only the timely filing of the extremely simple notice of appeal a ‘jurisdictional’ step.” 3A Barron & Holtzoff-Wright, Federal Practice & Procedure § 1551, at 54 (1961). The basic rationale for insistence upon timely filing is the necessity for providing a precisely ascertainable point of time at which litigation comes to an end. An apparent exception to strict application in this area is found in what has been termed “unique circumstances.” This is discussed in 4 Wright & Miller, Federal Practice & Procedure § 1168, at 636 (1969). The principle of unique circumstances in connection with appeal time was first enunciated by the Supreme Court in the case of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). Other cases reaching a similar result, including Eady v. Foerder, 381 F.2d 980 (7th Cir. 1967), are discussed in 4 Wright & Miller, supra, § 1168. An examination of the cases, however, indicates that the unique circumstances concept is based on a theory similar to estoppel. Thus in Harris, the appellant requested and received an extension of time before the expiration of the original time in which to file the notice of appeal. If the extension had been denied he could still have filed the simple notice of appeal. The Supreme Court held that having relied upon the trial judge’s finding of excusable neglect prior to the expiration of the thirty day period, he should not suffer reversal of the finding on appeal. The record, stated the court, contained a showing of unique circumstances sufficient that the court of appeals ought not to have disturbed the motion judge’s ruling. 371 U.S. at 217, 83 S.Ct. 283. As pointed out in 4 Wright & Miller, supra, at 639, when viewed in the estoppel perspective, modification of the rule undoubtedly serves the interests of justice. In the case before us we find no unique circumstances and our determination must be confined to whether there was any showing of excusable neglect. The matter of what constitutes excusable neglect is discussed in 9 Moore’s Federal Practice f[204.13[l], at 971-974 (2d ed. 1970), as follows: “The Advisory Committee Note to the 1966 amendment to former Rule 73(a) does not indicate what grounds other than failure to learn of entry of judgment will support a finding of excusable neglect, noting only that the district court should be empowered to extend the time for other reasons ‘in extraordinary cases where injustice would otherwise result.’ The Committee Note to a corresponding change to former Rule 37(a) (2) of the Federal Rules of Criminal Procedure, which for the first time authorized the district court to extend the time for appeal in a criminal case, gives some indication of the circumstances under which extension of time may, in the discretion of the district court, be granted in civil cases as well. The cases referred to in the Committee Note accompanying former Rule 37(a) (2) as illustrative of the need for limited authority in the district court to extend the time for appeal involve disability of the person to whom the notice had been entrusted for filing by reason of sudden illness, and unusual and uncontrollable delay in transmission by mail. Other grounds which suggest themselves are the death of a party entitled to appeal before the appeal is taken, or the death or disability of the attorney for a party, under circumstances which prevent the timely filing of a notice of appeal. But it must be emphasized that in the terms of the Committee Note, ‘no reason other than failure to learn of the entry of judgment should ordinarily excuse a party,’ and that in cases not involving failure to learn of entry of judgment, the district courts may and should restrict extensions of time for filing the notice of appeal in civil cases to ‘extraordinary cases where injustice would otherwise result.’ The relatively few cases that have thus far interpreted the excusable neglect provision now found in Rule 4(a) shed some light on it. Predictably, it has been held that the heavy work load of counsel that caused him to overlook the time for appeal does not constitute excusable neglect. Nor is counsel’s unfamiliarity with local practice excusable neglect.” (Footnotes omitted.) An examination of the record in the matter before us fails to show any basis whatsoever for excusable neglect. The only reason conceivably advanced in support of the motion for filing the notice of appeal instanter was that there were numerous parties involved in the case and that there were attorneys from several areas working on the case and that it was difficult to make arrangements for the scheduling of briefs and conferences. As a matter of fact, this reason, if it be such, would apparently have pertained only to the extension requested for filing the record and docketing the appeal, as the motion to file the notice of appeal was to file it instanter. The reason advanced was “for the requested extension” and thus it appears that no reason was given whatsoever for the filing of the notice of appeal instanter. Also, while the amended complaint purported to state a class action, there were only four named plaintiffs. Further, two attorneys, apparently partners in the practice of law at Rockford, were the only attorneys filing pleadings, the later motion for extension and the briefs in this court. We have hereinbefore referred several times to the fact that a notice of appeal is an extremely simple instrument to prepare and file and if it is subsequently ascertained that an appeal should not be pursued it can be dismissed. 9 Moore’s Federal Practice 11204.13[3], at 978 (2d ed. 1970). Even if the motion filed November 10, 1969 were to be construed as being a notice of appeal, it failed to show any excusable neglect and itself was not filed within the thirty days after the entry of the order. Further, we note that Rule 4(a), Fed. R.App.P., requires that when an extension is requested following the expiration of the initial thirty day period, it must be by motion which brings into play Rule 7(b) (1), Fed.R.Civ.P., to the effect that a motion “* * * shall state with particularity the grounds therefor, * * * ” If the court were to assume jurisdiction here on the basis of the record before us, we would in effect be amending Rule 4(a), Fed.R.App.P., so as to provide an automatic sixty day period within which to file the notice of appeal. This is not our province nor indeed is it our ability to do so. Casting this substantial doubt on the finality of judgments would increase the burdens of an already overloaded federal judiciary. 9 Moore’s, supra, ff204.13[2], at 978. Harris Lines v. Cherry Meat Packers, supra, 371 U.S. at 217, 83 S.Ct. 283, requires that in a matter of this sort great deference should be given to the district court. This plus our own desire wherever reasonably possible to determine matters on the merits has caused us to give the consideration we have to the threshold contentions of the defendants. Inasmuch as it appears to us that no showing has been made by the plaintiffs justifying their belated appeal, we must perforce find that the district court in granting the motion to file the notice of appeal did exceed the wide latitude which we feel should be accorded to the district court in determining excusable neglect. We therefore upon reconsideration of the motion to dismiss heretofore filed, now finding that we are without jurisdiction, sustain said motion to dismiss. We think it not inappropriate to observe, however, that we have examined the other matters raised on this appeal and do note the conclusory nature of the allegations of Counts I, II and III. With regard to Count IV, we note that 28 U.S.C. § 2283 prohibits federal courts from restraining already instituted state proceedings except as authorized by Congress or where necessary in aid of the court’s jurisdiction or to protect or effectuate its judgment. This court has held that the Civil Rights Act, 42 U.S.C. § 1981 et seq., does not suspend or modify the anti-injunction statute. Boyle v. Landry, 422 F.2d 631, 634 (7th Cir. 1970). During oral argument, counsel for the state’s attorney indicated that prosecution of Didier for the alleged violation of Ill.Rev.Stat. ch. 46, § 26-1 (1967), would be initiated promptly. Under these circumstances it would not appear that the state prosecution would cause irreparable harm by an extensive chilling of free exercise of First Amendment rights sufficient to justify federal intervention. Because of the disposition of this attempted appeal on the grounds hereinbefore set out, it is not necessary for us to give other or further consideration to the additional points raised in the briefs. Appeal dismissed. . At the time this opinion was in the process of final preparation, the Supreme Court in several allied decisions, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Boyle v. Landry, etc., 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), made it clear the relief sought in Count IV was not one properly a basis for federal 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. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be 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.

GODFREY et al. v. POWELL et al. No. 11522. Circuit Court of Appeals, Fifth Circuit. April 24, 1946. Giles J. Patterson, of Jacksonville, Fla., for appellants. F. P. Fleming and Wm. H. Rogers, both of Jacksonville, Fla., Louis F. Carroll and Harold J. Gallagher, both of New York City, and W. R. C. Cocke, of Norfolk, Va., for appellees. Before SIBLEY, WALLER and LEE, Circuit Judges. SIBLEY, Circuit Judge. Foreclosure sale of the railroads of the Seaboard Air Line Railway Company, including what are referred to as the All Florida lines, occurred September 1, 1944, to Seaboard Railroad Company, and the sale was duly confirmed by the court on October 2, 1944. The appellants here, being holders of bonds secured by a mortgage on the All Florida lines, who were allowed to intervene in the foreclosures and receiver-ships, heretofore appealed from those decrees on certain matters relating to the distribution of the proceeds of sale. God-frey et al. v. Powell et al., 5 Cir., 150 F.2d 486. The decrees were affirmed; but they left open to some extent two matters relating to the so-called “operating agreement”, embodied in agreed court orders, under which the All Florida lines have been operated for years by the general receivers of the Seaboard System, to-wit: the exact amount these receivers are to be allowed as a lien against All Florida lines for betterments made prior to the sale; and whether or not the operating agreement itself ought to be modified, and as of what date. The operating agreement is summarized in Note 4 of the above cited opinion. After rehearing was denied on Sept. 5, 1945, the receivers made a final claim for the betterments and prayed its allowance. The intervenors’ answer neither admitted nor denied the betterments, and by way of counter-claim set up that since Oct. 1, 1943, the latest date as to which the receivers had reported the results of operation of the All Florida lines, there had continued to be large net earnings, and that the operating agreement ought to be modified as of that date, or such other date as the court might determine, so as to enable intervenors to share equitably in them. The judge had a hearing on Oct. 16, 1945, in which the receivers established their betterments claim. Intervenors offered no evidence on their counter-claim, but contended that the receivers should show the result of operations since Oct. 1, 1943, and that the court knew that the war conditions which gave profits before and in 1943 still continued. The receivers contended that the matter of operating profits to the date of sale had already been considered and adjudged by that court and affirmed by this court, and that a modification of the operating agreement since the sale was a matter of interest only to the purchaser, who was not asking it, and that the intervenors had no interest in subsequent operations, and that all claims against the Seaboard receivers in behalf of the receivers for the All Florida lines, and of the trustee for the mortgage thereon, in respect of their operation were expressly sold with the All Florida lines under the decree of foreclosure. The judge decreed that the receivers’ net claim for additional betterments to the date of sale was $29,802 more than tentatively fixed in the prior decree thereabout; and that modification of the operating agreement for the time prior to the sale had been denied by his previous decree and affirmed by this court; and as to the time since it was a matter of concern only to the purchaser; and that all claims against the receivers touching the operation of All Florida lines had expressly been sold to the purchaser under the foreclosure decree; and he dismissed the counterclaim of intervenors. The present appeal is from this decree. 1. The increase by $29,802 of the betterments claim, which is a lien against the proceeds of sale of All Florida lines, does not hurt appellants, because by the terms of the sale the increase, if any, is to be added to the upset price, which the purchaser bid at the sale. The remaining proce.eds applicable to the bonds of inter•venors remain the same. No argument indeed is offered on this feature of the appeal. 2. As to the modification of the operating agreement, it is true that by its original terms it was subject to modification by the court, after ten days notice to the parties in interest. Intervenors on such notice moved for a modification prior to the decrees brought to this court on the former appeal and this relief was denied in the District Court on two grounds; first, in fixing the upset price for the assets of All Florida lines there was added to their value $1,700,000 as representing a fair portion of the recent profits; and second, because the sale was imminent; but without prejudice to a right to renew the motion. We affirmed, holding in the last paragraph of our opinion: “As to the operating orders and the district judge’s refusal to modify them retrospectively, the orders leave in no doubt that if modified on notice, as it was provided in them they could be, the modification was to be prospective only, and there is no merit in appellants’ demand that they be modified retrospectively.” As to a prospective modification, that is, for a period after the giving of the notice and demand for modification, we held that under the circumstances there was no abuse of discretion in denying it, without prejudice to the right to renew it. This ruling disposed of that motion for modification. It did not deal only with profits to Oct. 1, 1943, as is now argued, but to the date of denial. The judge, as a matter of common knowledge, doubtless thought that profits probably continued after Oct. 1, 1943, and considered them in his adjustment of $1,700,000 for such profits in fixing the terms of sale. He states in the present record that such was his intention. The sale happened promptly on the terms fixed by him, and up to that date the matter is closed. The present motion to modify was filed after the confirmation of the sale and after affirmance thereof in this court. It is not prejudiced by the adverse judgment on the other motion, but it also cannot reach back into the past, for we have held the operating agreement did not contemplate retrospective modification. And this time the intervénors can have no prospective'modification, because since the sale and its confirmation they have no interest in the All Florida lines and their operation. “On confirmation of the sale by the court the accepted bidder becomes the purchaser in the full sense of the term and the substantial owner of the property sold with the right of possession, although this right may not be asserted until the due execution of the deed.” 31 Am.Jur., Judicial Sales, § 146. Rents and profits subsequently accruing are generally held to go thereafter to the purchaser. Id. § 155. “By the weight of authority the confirmation of a judicial sale and the deed executed in pursuance thereof take effect by relation as of the day of the sale. The purchaser is entitled to everything he would have been entitled to if the conveyance had been contemporary with the sale, including in most jurisdictions rents and profits.” Id. § 158. In this case it appears that the receivers are still in possession of the railroads, delivery of the deed having been delayed by this litigation and by the need of some action by the Interstate Commerce Commission; but we are told in argument that a failure of the sale is not at all likely. The operation of the All Florida lines by the receivers is now for the account of the purchaser. The purchaser, though by the purchase it has become a party to the cause, is not asking any change in the operating agreement. The bondholders’ rights are altogether against the proceeds of sale. Whether or not interest is running on the bid is not now a question for decision. It appears too that by the express terms of this decree of sale the purchaser gets not only the All Florida lines, but also the leases formerly made to the Seaboard Air Line Railway Company, which were not adopted by the receivers, and all claims for rental or for breach of the leases, and “all claims of the All Florida lines’ receivers now existing or hereafter arising against the Seaboard or the Seaboard receivers, not hereinbefore specified, in respect of the possession or operation of their properties, except claims .to any funds representing the proceeds of property sold or contracted to be sold prior to the date of this decree.” In addition to the effect of the general law above pointed out, this particular decree thus very effectually disposes of all the rights under discussion as of the time of the sale. Unless the sale shall be frustrated, the bondholders must look only to its pro-céeds. If the sale should be frustrated a new situation of course would arise. Judgment affirmed.

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

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

UNITED STATES v. BOWDEN et al. No. 4035. United States Court of Appeals Tenth Circuit. April 28, 1950. Benjamin Forman, Atty., Dept, of Justice, Washington, D. C. (H. G. Morison, Asst. Atty. Gen., Paul A. Sweeney, Atty., Dept, of Justice, Washington, D. C., and Scott M. Matheson, U. S. Atty., Salt Lake City, Utah, were with him on the brief), for the United States. No appearance for appellees. Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges. PHILLIPS, Chief Judge. On August 23, 1949, the clerk of the court below entered a default judgment against the Bowdens in favor of the United States for $153.93, being the balance due on a promissory note. On August 27, 1949, the clerk taxed costs against the Bowdens, but did not include the attorney’s docket fee of $20 claimed by the United States. The District Court, on motion to retax the costs, refused to tax the attorney’s docket fee. 28 U.S.C.A. § 1923 in part provides: “(a) Attorney’s and proctor’s docket fees in courts of the United States may be taxed as costs as follows: “$20 on trial or final hearing in civil, criminal or admiralty cases, except that in cases of admiralty and maritime jurisdiction where the libellant recovers less than $50 the proctor’s docket fee shall be $10; “S20 in admiralty appeals involving not over $1,000; “$50 in admiralty appeals involving not over $5,000; “$100 in admiralty appeals involving more than $5,000; “$5 on discontinuance of a civil action; * * *.” The former statute, 28 U.S.C.A. §§ 571 and 572, in part read: “§ 571. Fees to be taxed. The following fees and no other shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, and to district attorneys, except in cases otherwise expressly provided by law. * * * “§ 572. Attorneys, solicitors, and proctors. On a trial before a jury, in civil or criminal causes or before referees, or on a final hearing in equity or admiralty, a docket fee of $20: Provided, That in cases of admiralty and maritime jurisdiction, where the libellant recovers less than $50, the docket fee of his proctor shall be hut $10. * * *” Thus it will be seen that in the revision, the words "may be taxed” are substituted for the words "shall be taxed” in the former statute. (Italics ours.) The use of the word “may” in a statute will be construed as permissive and' to vest discretionary power, unless the context of the statute clearly indicates a purpose to use it in a mandatory sense. In proceedings in equity, the allowance and imposition of costs is a matter of discretion. The Federal Rules of Civil Procedure, 28 U.S.C.A., abolished the distinction between law and equity and provided for one form of action, to be known as a civil action. Rule 54(d) of such rules provides: “Costs. Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; * * * ” We are of the opinion that the revisers substituted the word “may” advisedly with the purpose of bringing the statute into harmony with the equity rule and Rule 54(d) and made the taxation of statutory costs a matter within the discretion of the court. The use of the word “shall” in the exception clause in § 1923 is not, in our opinion, significant. It simply prescribes the different amounts of costs, if costs in the discretion of the court are to be taxed. While we entertain no doubt that the entry of the default judgment was a final hearing within the meaning of the statute, we conclude that the taxation of costs is a matter vested in the sound discretion of the trial court. The cause will be remanded with instructions to the trial court to vacate the order denying the motion to retax the costs and to determine in the exercise of its discretion whether an attorney’s docket fee should be taxed as costs against the defendants below. . Mayor v. Board of Land Com’rs of Wyoming, 64 Wyo. 409, 192 P.2d 403, 411; State ex rel. Hubbard v. Northwald, 150 Neb. 894, 36 N.W.2d 282, 283, 284; Fleishman v. Kremer, 179 Md. 536, 20 A.2d 169, 171; Lansdown v. Faris, 8 Cir., 66 F.2d 939, 941; Western Distributing Co. v. Public Service Commission, D.C.Kan., 58 F.2d 239, 241. . Kittredge v. Race, 92 U.S. 116, 121, 23 L.Ed. 488; Newton v. Consolidated Gas Co., 265 U.S. 78, 83, 44 S.Ct. 481, 68 L.Ed. 909; ex parte Peterson, 253 U.S. 300, 317, 40 S.Ct. 543, 64 L.Ed. 919; See, also, Buck v. Bilkie, 9 Cir., 63 F.2d 447. . See Fishgold v. Sullivan Dry Dock & Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110; Moore’s Federal Practice Under the New Federal Rules, Vol. 3, § 54.04.

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?

Clayton J. POWELL; Darlene W. Powell, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Clayton J. POWELL; Darlene W. Powell, Plaintiffs-Appellants, v. INTERNAL REVENUE SERVICE, Defendant-Appellee. Nos. 89-1489, 89-1494. United States Court of Appeals, Fourth Circuit. Argued April 8, 1991. Decided March 3, 1992. Clayton J. Powell, Jr., Powell and Powell, P.C., Greenbelt, Md., argued (Darlene Wright Powell, on brief), for plaintiffs-appellants. Gilbert Steven Rothenberg, Tax Div., U.S. Dept, of Justice, Washington, D.C., argued (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Janet K. Jones, on brief), for defendant-appellee. Before RUSSELL and WIDENER, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION WIDENER, Circuit Judge: In these consolidated cases, Clayton J. Powell and Darlene W. Powell appeal from an order of the United States tax court dismissing their petition for lack of jurisdiction and from an order of the United States District Court for the District of Maryland denying their request for injunctive relief. While we remand to dismiss for mootness the case in the district court, we are of opinion that the tax court erred in dismissing the Powells’ petition for lack of jurisdiction. The events leading to the present controversy are traced back to late 1987, when the Powells moved from 10519 Carnation Court, Adelphi, Maryland, to 12051 Hallan-dale Terrace, Mitchellville, Maryland. The Powells’ income tax return for calendar year 1986 contained the Carnation Court address and the Hallandale Terrace address first appeared on their 1987 return. The Internal Revenue Service (IRS) received the Powells’ 1987 tax return more than two months early, on February 11, 1988, and posted the enclosed payment to their account. Eighteen days later, on February 29, 1988, the IRS mailed a notice of deficiency with respect to the Powells’ joint tax return for 1984. This notice was sent by certified mail to the Powells’ former address at Carnation Court. According to the evidence of the Hyattsville, Maryland Postmaster, the Powells had submitted a change of address order to the Postal Service. Nevertheless, the deficiency notice was, according to the Postmaster, mishandled by the Postal Service, endorsed “unclaimed,” and returned to the IRS without being forwarded to the taxpayers. The IRS, in contrast, stated that there was nothing in the Powells’ administrative file to indicate that the notice was returned to the IRS. We especially note that the February 29th notice from the IRS to the Powells was sent by certified mail, and while the Postal Service should have forwarded the notice to the Powells, there is nothing to indicate that the post office made two mistakes and did not return the notice to the IRS. In any event, since we presume, as we must, that public officers have properly discharged their official duties, e.g., United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926), it is presumed, as the evidence from the Postmaster would indicate, that the notice was returned to the IRS, which then lost or misplaced it, for on argument in the tax court, the attorney for the Government stated that the notice was not in the Pow-ells’ administrative file where it should have been. On December 26, 1988, the IRS mailed a final notice of its intention to levy unless the Powells paid $6,863.60 within ten days. This notice was sent to the Powells’ correct address at Hallandale Terrace and was promptly received. On January 11, 1989, the Powells filed a petition in the United States tax court seeking a redetermination of the alleged deficiency. In response, the Commissioner filed a motion to dismiss, arguing that because the Powells’ petition had not been filed within ninety days of the mailing of the original deficiency notice, the tax court had no jurisdiction. After conducting an evidentiary hearing on the motion, the tax court granted the respondent’s motion to dismiss for lack of jurisdiction on the ground that the Powells’ petition was untimely filed. This appeal followed. Under 26 U.S.C. § 6212(b)(1), a notice of deficiency with respect to income tax is deemed “sufficient” if it is mailed to the taxpayer at his “last known address.” The taxpayer then has a period of ninety days from the mailing of this deficiency notice in which to file a petition with the tax court seeking a redetermination of the deficiency. 26 U.S.C. § 6213(a). The central issue raised on this appeal is whether the Commissioner’s February 29, 1988 mailing was properly directed to the Powells’ last known address and thereby triggered the ninety-day period for the filing of a petition in the tax court. The taxpayer’s last known address has been defined as that which “in light of all relevant circumstances, the IRS reasonably may consider to be the address of the taxpayer at the time the notice of deficiency is mailed.” Mulder v. Commissioner, 855 F.2d 208, 211 (5th Cir.1988). This inquiry “requires an examination of the totality of the circumstances and a balancing of many relevant factual elements, factors which indicate that the inquiry is ‘essentially factual.’ ” King v. Commissioner, 857 F.2d 676, 679 (9th Cir.1988). Thus, where a full evidentiary hearing is held, as in the present case, findings largely factual, on the last known address issue should be reviewed under a clearly erroneous standard. Ward v. Commissioner, 907 F.2d 517, 521 (5th Cir.1990); King, 857 F.2d at 679; McPartlin v. Commissioner, 653 F.2d 1185, 1189 (7th Cir.1981). For many years, the courts construed 26 U.S.C. § 6212(b)(1) as allowing the IRS to consider the address shown on the tax return for the year in question as the taxpayer’s last known address. See, e.g., Luhring v. Glotzback, 304 F.2d 556, 559 (4th Cir.1962). While this approach has been abandoned by many courts, it should be noted that even under the traditional approach, the IRS was not entitled to rely upon the address on the questioned return if “clear and concise” notice was given by the taxpayer of a change in address. Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd, 538 F.2d 334 (9th Cir.1976). The taxpayer may give such clear and concise notice by filing a subsequent return bearing a new address. King, 857 F.2d at 679; Cyclone Drilling, Inc. v. Kelley, 769 F.2d 662, 664 (10th Cir.1985). In such a situation, the address on the taxpayer’s most recent return is deemed to be his last known address. See United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984). The authorities further require that the Commissioner must use reasonable diligence to ascertain the last known address. Ward, 907 F.2d at 521; McPartlin, 653 F.2d at 1189; Mulder, 855 F.2d at 211; Alta Sierra Vista, Inc., 62 T.C. at 374. In the case before us, despite the fact that the taxpayers had proven by the Postmaster that the notice of deficiency was returned to the IRS, the IRS called not a witness to refute the evidence of the Postmaster but merely relied upon the statement of its attorney that the returned notice of deficiency could not be found in the Powells’ administrative file. Almost the same thing happened to the IRS file in Mulder: “Moreover, the IRS file does not contain either the original letter or the executed return receipt.” 855 F.2d at 211. The Mulder court held that the return of mailings to the IRS was “a fact which weighs heavily in the due diligence equation.” 855 F.2d at 211. And because there had been no return of the notice to the IRS in Mulder and the return receipt had been lost either by the post office or by the IRS, the court held that due diligence had not been used and there had been no sufficient notice of a deficiency served on the taxpayer. McPartlin was another case in which the IRS mailed a deficiency notice to a previous address, although it had actual notice by way of later communications that the taxpayers had moved. The notice was sent to the previous address by certified mail with return receipt requested. As in Mulder and this case, the key documents in the case were missing from the IRS file. “Petitioners never received the notice mailed April 13,1978, nor does the Commissioner’s file on petitioners contain a return receipt for the notice.” McPartlin, 653 F.2d at 1188. The court in McPartlin held the notice was insufficient for two reasons. First, a lack of due diligence on the part of the Commissioner, and, second, a notice of deficiency not received by the taxpayers due to an error of the Postal Service is insufficient. The court noted that the fact that the Commissioner’s file contained no return receipt for the notice fostered a conclusion that fault for failure to receive it was either with the Postal Service or the Commissioner and not, in any event, with the taxpayers. The court held that if the Commissioner had failed to receive a return receipt, that “should have apprised him that delivery to petitioners of the notice of deficiency was never attempted” and also that “if, on the other hand, the return receipt was sent to the Commissioner it should have informed him that petitioners no longer resided at ... [their previous address].” The court held that “[i]n such circumstances notice is also insufficient.” 653 F.2d at 1191. The previous and alternate holding was that “[w]hen evidence indicates that a notice of deficiency has not been received by the taxpayers due to error of the Postal Service the notice shall be found insufficient.” 653 F.2d at 1191. In the case before us, the notice was admittedly not delivered to the taxpayers because of an error of the Postal Service. Consistent with McPartlin, we hold that that is sufficient proof on the part of the taxpayers and that the notice was insufficient. Also, consistent with McPartlin and Mulder, we are of opinion and hold that the IRS did not exercise reasonable diligence to ascertain the Powells’ last known address. There is no reason to believe that the undelivered notice was not returned to the IRS as the Postmaster said it was. His statement to that effect is uncontradicted. That being true, when the IRS received the returned notice, that was proof that the same had not been delivered to the Powells. The IRS cannot rely on the fact that it lost or misplaced the notice for proof of its case against these taxpayers. In arriving at our conclusion, we have also considered that the record in this case does not disclose whether the notice was sent to the Powells by certified mail with return receipt or without return receipt. If it was sent with return receipt, the same rule applied by the Court in McPartlin would apply here, and the absence of it would show non-delivery. If it was sent without a request for return receipt, that would be evidence which would tend to show a lack of due diligence and would be additional evidence to support our conclusion. The Powells are entirely innocent. When they moved, they filed their change of address forms with the Postal Service and the ultimate non-delivery of the notice to them was either the fault of the Postal Service Department or the IRS, or both. The evidence would indicate it was the fault of both, and we so hold. In these circumstances, we hold the notice was insufficient, although the fault of either department in the circumstances present here would support our holding. The IRS argues against this conclusion by taking the position that the Carnation Court address to which it mailed the deficiency notice was the only address listed for the Powells on the IRS computer file, and, thus, although the IRS had actual notice of the Powells’ change of address in its paper files by virtue of a later filed income tax return, it should not be held to this knowledge because the change of address would not yet show up on its computer. In effect, the IRS states that since the Powells’ new address would not show up on its computer until June 6, 1988, some four months after it was received by the IRS, that it should not be held to the change of address on February 29, 1988. While there may be some justification for this argument, that computers are an accepted way of doing business, there would seem to be as many or more reasons for not accepting it. For example, the IRS is arguing that the computer is a less efficient way of keeping track of addresses than the old way of simply looking in a file. The IRS urges that we accept what it calls a decision in Ward that it should have a reasonable time to process change of address notifications. While the court in Ward did state that it did “not disagree” with that proposition, it did not hold that it applied in that case, for the holding in Ward was that the IRS did have an opportunity to process the change of address so the court did not have to decide the question. In any event, in Ward, the taxpayer had written to the IRS on November 6th, notifying him of his new address. That letter was received by the IRS on November 10th; and on November 18th, the IRS wrote a letter to the taxpayer, thanking him for filing his change of address. Nevertheless, on November 20th the IRS mailed a notice of deficiency to the taxpayer at his old address, which was held by the Ward court to be insufficient. We do not reach the question here of how much time, if any, the IRS should have to put a change of address on a computer. We do suggest, however, that the Ward court would have had to strain a lot to find a sufficient notice when the IRS had acknowledged the change of address in writing. Also, as McPartlin rather forcibly points out, if the IRS had simply kept the Powells’ file in order and mailed the notice by certified mail, with return receipt requested, it would have had no trouble in finding the Powells’ address. The tax court did not give any effect to the uncontradicted evidence of the Postmaster that the undelivered notice had been returned to the IRS. The tax court also did not consider the question of the due diligence required of the IRS. For these reasons, its decision that the deficiency notice mailed to the Powells on February 29, 1988 was sufficient within the meaning of section 6212(b)(1) is clearly erroneous. We are of opinion that;it was not sufficient, and we so hold for the reasons stated above. We further find that the Powells’ petition for redetermination was timely filed before the tax court. When notice of a deficiency is not sent to a taxpayer’s last known address, subsequent actual notice of the deficiency will commence the running of the ninety-day period. McPartlin, 653 F.2d at 1192; Crum v. Commissioner, 635 F.2d 895, 901 (D.C.Cir.1980). In this case, the Powells received actual notice no earlier than December 1988 when they received the final notice of the IRS’s intention to levy. Their petition was filed on January 11, 1989, well within the ninety-day period. The Powells also contend that the three-year statute of limitations found in 26 U.S.C. § 6501(a) bars future action against them concerning their 1984 tax return. The order of the tax court understandably did not reach this question because of its conclusion that it was without jurisdiction to consider the petition. We believe that a determination concerning the application of the statute of limitations to the facts of this case should be made in the first instance by the tax court, and we do not reach that question. We accordingly reverse the order of the tax court granting the Commissioner’s motion to dismiss and remand the case to the tax court for additional proceedings consistent with this opinion. Finally, the Powells argue that the district court abused its discretion in refusing to grant their request for injunctive relief pursuant to 26 U.S.C. § 6213(a). The record reveals that the district court never considered on its merits the request for injunctive relief; rather, it declined to hear the same. While we might arguably consider such a refusal as a denial of injunc-tive relief, we think that is not necessary, for in this case, there has literally been neither a granting nor a denial of injunctive relief. In any event, because of the relief we have granted in the appeal from the judgment of the tax court, it is apparent that the suit in the district court requesting an injunction is moot. Accordingly, that case will be remanded for dismissal as moot. Case No. 89-1489 is REVERSED AND REMANDED WITH INSTRUCTIONS. Case No. 89-1494 is remanded to the district court for dismissal as moot. REMANDED WITH INSTRUCTIONS. We note that if the IRS in the case at hand had acknowledged receiving the undelivered notice back from the Postal Service, it would have been proof positive that the same had not been delivered, and so the mailing would have necessarily been insufficient, absent further inquiry on the part of the IRS, which was never made.

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

Rosario Joseph DISPENSA, Petitioner-Appellee, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellant. No. 86-2894. United States Court of Appeals, Fifth Circuit. Sept. 4, 1987. Jim Mattox, Atty. Gen., Charles Rex Hall, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellant. Alder & O’Conor, Robert O’Conor, Jr. (Court appointed), Houston, Tex., for petitioner-appellee. Before RUBIN, GARZA and JOLLY, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: The State of Texas appeals from a district court order granting a prisoner convicted of rape a writ of habeas corpus due to the suggestiveness of the identification procedures the police used and the subsequent unreliability of the in-court identification evidence offered by the victim. Because we conclude that new evidence introduced at the federal habeas corpus hearing makes the petitioner’s claims stronger than they were when presented to the state courts, we vacate the writ and remand for exhaustion of state remedies. I. In 1982 Rosario Joseph Dispensa was convicted of entering Theresa Ellen Barthel’s apartment at 4:00 a.m. and raping her. He was sentenced to fifteen years imprisonment for the offense. The primary evidence linking Dispensa to the scene of the crime was Barthel’s identification testimony, which Dispensa alleges is unreliable and was influenced by impermissably suggestive police identification procedures. Because the state court decisions offered no specific findings of fact about how the police originally presented Dispensa to Barthel for identification, the district court decided that it was free to make its own determination about what happened. It considered the testimony Dispensa offered at a federal habeas corpus hearing and the record of the testimony of state witnesses at Dispensa’s suppression hearing and trial, and concluded that the police identification procedure used was impermissibly suggestive and that the identification offered by Barthel was not otherwise reliable. Although the details of the police identification procedure Dispensa described at his habeas hearing differed markedly from his description of them when he testified in state court and were supplemented for the first time by expert psychological analysis suggesting that Barthel’s state-court testimony demonstrated that she relied on the police to make the identification for her, the district court concluded that the new evidence did not significantly change the strength of Dispensa’s case. Therefore, it concluded that exhaustion of the new evidence in state court was unnecessary and granted Dispensa the relief he requested: His conviction was overturned and the state ordered either to retry him without using Barthel’s identification testimony or to release him from custody. II. A habeas corpus petitioner must exhaust all available state remedies before his claims may be considered by a federal court. The considerations of comity underlying the exhaustion doctrine require that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights. In assessing whether a petitioner’s claims have been properly exhausted, therefore, the proper inquiry is whether the state courts have been given a fair opportunity to review them. Although it is not necessary that a petitioner pronounce every syllable of his claim before the state courts, he must present to them the substantial equivalent of the claim he later asserts in federal court. Thus when “a federal habeas petitioner presents newly discovered evidence not before the state courts such as to place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it, the state courts must be given an opportunity to consider the evidence.” To determine whether the new evidence Dispensa introduced at his federal hearing placed his case in a significantly stronger posture, it is necessary to examine both what Dispensa was required to prove to gain relief and the extent to which the evidence before the state courts and the evidence adduced at Dispensa’s federal hearing fulfilled that burden. This circuit has adopted a two-part test for determining whether identification testimony is sufficiently tainted by suggestive police identification procedures to require its suppression. The first inquiry is whether the procedures used to make the initial identification were impermissibly suggestive. The second is whether the identification is nonetheless reliable. The ultimate reliability of an identification is evaluated by the “totality of the circumstances” as established through analysis of five factors: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Although we agree with the district court that the state record contains evidence casting doubt on the propriety of the identification procedures used, on the reliability of the identification Barthel offered, and — ultimately — on the validity of the conviction itself, the inconsistencies in the testimony of the State’s witnesses do not preclude credibility choices reasonably supporting a determination that the identification is admissible. The new factual allegations Dispensa has made and the expert testimony he offered fill in important evidentiary gaps in Dispensa’s theory of the case. If credited, the new evidence transforms Dispensa’s assertion that the procedure used was impermissibly suggestive from a borderline case to a clearly egregious one and substantially enhances the evidentiary basis for concluding that the identification is otherwise unreliable. A. When Dispensa became a suspect in Barthel’s rape, Houston Police detectives L.H. Henning and Ralph Yarborough decided to take Barthel to the restaurant that Dispensa managed to see if she would recognize him as her assailant. Rather than escorting her directly to the restaurant, however, the detectives first walked with her through the mall in which the restaurant was located and asked her to observe the crowd and let them know if she recognized anyone. Twenty or thirty minutes later, they took her to eat lunch at the restaurant where Dispensa worked. After he had finished eating, Yarborough excused himself from the table and asked the cashier if he could speak to Dispensa. Eventually, he was escorted to Dispensa’s office at the rear of the restaurant. Yarborough there informed Dispensa that he was a suspect in a sex crime and told him that he could either walk through the restaurant so that the victim could see him or be subject to arrest and a police line-up. Dispensa chose to walk through the restaurant. None of the witnesses to the identification procedure agreed precisely on how it was conducted. Detective Yarborough testified that, on Dispensa’s first pass through the restaurant, he walked hastily through the tables and returned to his office, where Yarborough was waiting. Yarborough then asked Dispensa to wait while he checked with Henning to see if Barthel had reacted as Dispensa walked by. In a whispered conversation at the table, Henning told him that nothing had occurred. Consequently, Yarborough returned to Dispensa’s office and asked him to walk through the restaurant again. This time, however, Yarborough stated that he preceeded Dispensa from the office and waited for him at the cashier’s desk. He said Dispensa then walked through the restaurant a second time, taking a different path that placed him directly in front of Barthel, and finally he walked up to Yarborough. As Dispensa approached, he asked Yarborough if the second pass was good enough. Yarborough asserts that he then looked over Dispensa’s shoulder to see if there had been any reaction and saw Henning struggling to keep Barthel seated. Detective Henning testified at trial that he did not know what Dispensa looked like when he and Yarborough took Barthel to the restaurant and that he did not signal to her to look at Dispensa as he approached their table. Instead, he contended, he merely told her to be generally observant of the people in the restaurant. He testified at the suppression hearing that, while Yarborough was away from the table, Barthel told him that a man had just passed by who looked like the rapist but that Henning himself had only gotten a glimpse of the man to whom she referred. He stated that he next saw Dispensa when Dispensa was approaching the cashier’s desk. Although he admitted that Yarborough was also in that general area, he denied seeing the two men walk to the register together and could not remember how close together they were standing when Barthel turned around on her own volition, saw Dispensa clearly, exclaimed that he was the rapist, and burst into tears. Barthel’s testimony contradicted elements of both Yarborough’s and Henning’s accounts. She asserted that she never saw Yarborough return to the table after he excused himself. More importantly, she repeatedly stated at the suppression hearing that Henning told her when to look at Dispensa, and she became so angry when Dispensa’s attorney strove to confirm her testimony that she needed to ask for a recess to regain her composure. Nonetheless, she consistently stated that Henning effectively pointed Dispensa out to her as he walked past. She stated that the first time Henning told her to look, Dispensa walked past before she could see his face. She stated that, when however, Henning told her to look a second time, she saw Dispensa well for the first time and recognized him immediately. She also asserted that she did not see Yarborough with Dispensa in the restaurant and that she fled the dining room area after making the identification. At the suppression hearing and the trial, Dispensa described two passes through the restaurant as well. He stated that on the first pass he walked by every table, checking the settings, and then returned to his office, where Yarborough was waiting. Yarborough then checked with his partner and, upon returning, told Dispensa that someone had not gotten a good look at him. He therefore asked Dispensa to walk through again, and Dispensa reluctantly complied. Dispensa testified, however, that on the second pass Yarborough followed behind him and and that — rather than meandering through the tables as he had done on the first pass — he proceeded directly to the receptionist’s desk at the front of the restaurant. There, he said, he and Yarborough talked one or two minutes before Yarborough escorted him back to his office. Dispensa said that Yarborough then left the office again to check with Henning and returned with a uniformed policeman to make the arrest. He stated further that he did not notice any commotion while he was in the restaurant indicating that an identification had been made. Dispensa’s federal hearing testimony differed markedly from his prior account of the identification procedure. Instead of describing a single full pass through the restaurant and a second, abbreviated trip to the receptionist’s desk and back, he asserted that he was asked to make two full passes through the restaurant before he and Yarborough walked together from his office to the receptionist’s desk and talked two or three minutes. Between each of these passes, he testified, Yarborough left him in the office and checked with Henning to see if an identification had been made. He explained that he failed to mention the second full trip through the restaurant to the trial court because his trial counsel told him that the court would be less likely to believe his account if he testified to more passes than Yarborough and Henning admitted. At his federal hearing, Dispensa also testified for the first time that, during his first pass through the restaurant, he greeted the people at each occupied table as he checked their table settings. Because he did not know where Barthel and Henning were seated, he testified, he could not tell when the identification actually was made. In addition to the modifications to his account of the identification procedure, Dispensa offered expert psychological testimony about the significance of Barthel’s choice of words and her apparent emotional state at the suppression hearing. Dr. Fred Fason explained that Barthel’s repeated assertion that Henning told her when to look and her stated anger during cross examination about that testimony suggest that she unconsciously relied on the police to identify the rapist for her and that she felt guilty and angry with herself for not being able to make the identification alone. By analyzing the transcript of her testimony, Dr. Fason also concluded that Barthel’s assertions that she did not know why the police were taking her to the mall, despite the fact that there was only one obvious reason for such a trip, suggests that she had suspended her critical thinking and therefore was especially susceptible to suggestion. In response to questions posed by Dispensa’s new counsel about discrepancies between the description of her assailant that Barthel gave to the police and Dispensa’s actual appearance, Dr. Fason testified that she most likely would have noticed if her attacker was especially hairy, that she would also have been likely to notice prominent tatoos, and that poor descriptions such as the one she offered the police after the attack are consistent with a determination that she had repressed her memory of the attacker and could no longer accurately recall his appearance. Finally, he offered general testimony about the poor performance of victims in witness-identification experiments and about the low correlation between witnesses expressed confidence in the identifications they have made and the accuracy of their choices. B. If credited, as it was by the federal magistrate, the combined impact of Dispensa’s new evidence is substantial. His testimony that he addressed the parties seated at each occupied table during his first pass through the restaurant is the only direct evidence casting doubt on Barthel’s assertion that she recognized Dispensa the first time she saw his face. That evidence, therefore, is a significant factor in evaluating the level of certainty she demonstrated at the confrontation, one of the five factors relevant to determination of the reliability of the identification. The new details brought out in Dispensa’s federal testimony also draw into greater controversy the reasonableness of asking him to make a second pass — and possibly a third — through the restaurant after the first showing had failed to result in a positive identification. It would be one thing for Yarborough and Henning to decide to try one additional showing if they reasonably believed that Barthel simply had not seen Dispensa the first time he walked by her and quite another if they chose to try twice again after she had failed to recognize Dispensa even as he addressed her and Henning. Although Dispensa argues that the fact that he spoke to the parties at each table follows naturally from his testimony in state court that he, as the restaurant manager, checked the settings at each table during his first pass, the two activities are neither necessarily related nor equally probative of the issues central to this case. The state courts, therefore, can in no way be faulted for failing to make that assumption based on Dispensa’s previous testimony. Similarly, the testimony offered by Dr. Fason does much more than simply highlight what is already obvious from Barthel’s testimony. Dr. Fason assigned to that testimony a psychological interpretation that not only suggested that he personally believed Barthel was testifying untruthfully and that Henning’s behavior was suggestive but also that Barthel’s mental state at the time made her especially vulnerable to suggestion and that she was, while testifying, reacting emotionally to her inability to identify the assailant independently. A layman’s review of the state record would not necessarily lead him to conclude, as the district court suggests, precisely what Dr. Fason has described. Barthel’s testimony could also be understood to indicate that, while Henning may have exceeded proper bounds by pointing Dispensa out to her, she recognized Dispensa on her own as soon as she saw his face. Her anger could thus be understood to be a reaction to efforts by defense counsel to undermine an identification in which she was confident by stressing, as dispositive of the case, that Henning acted improperly. Although expert analysis may ultimately prove that interpretation untenable, the bare record does not. The testimony offered by Dr. Fason, therefore, provides significant new insights to that record that otherwise may not have been apparent. At the very least, it is weighty evidence confirming suspicions about the potential import of Barthel’s testimony and pointing out new portions of the transcript relevant to that inquiry. In much the same manner, Dr. Fason’s testimony regarding the kind of detail about the rapist Barthel could be expected to have noticed adds an important authoritative perspective to her failure to recall whether the rapist was, like Dispensa, particularly hairy or had prominent tatoos. It also presents a line of psychological thought contrary to the “tunnel vision” hypothesis introduced — though perhaps improperly — by the prosecution at trial in an effort to explain the lack of detail in Barthel’s description of the assailant. If credited, such expert testimony would markedly influence the weight given vital factors in the calculus employed to determine identification reliability. Because Barthel’s identification testimony was crucial to the state’s case against Dispensa and the description of the assailant she gave to the police describes Dispensa poorly, the suggestiveness of the identification procedure used and the certainty of Barthel’s identification at the restaurant are inquiries of paramount importance. Barthel had a good opportunity to see her assailant; he remained in her well-lit room fifteen or twenty minutes. Her attention for part of that period was good, but she also testified that she covered her face with a pillow during the rape itself. The length of time between the crime and the confrontation was one week, short enough so that her actual memory was unlikely to have faded but long enough for mental reconstruction and suggestion to introduce some level of memory distortion. Under these circumstances, evidence introducing significant, new considerations to analysis of the fact or degree of suggestiveness of the identification procedure and the certainty of the identification at the time of confrontation is central to the case. Although, in isolation, the new details and lines of expert analysis offered in Dispensa’s behalf may not have substantially affected the strength of his case, in total they clearly do. The state therefore must be afforded the first opportunity to weigh the credibility and effect of that evidence. III. Dispensa contends that even if the new evidence places his case in a significantly different and stronger posture, the exhaustion requirement in this case should be mitigated because the state courts refused either to grant him a hearing or to appoint counsel to represent him when he challenged the identification procedure and testimony in his state habeas petition. Because exhaustion is not considered to be a jurisdictional prerequisite, the federal courts have heard claims not previously considered by the state courts. Exceptions to the exhaustion requirement, however, generally have been recognized only if the state has waived the requirement, there is no opportunity to obtain redress in state court, or the corrective process is so clearly deficient as to render futile any effort to obtain relief. Dispensa’s observation that the state deprived itself of the opportunity to hear whatever new evidence he would have presented by denying him a hearing on his state habeas application establishes none of these circumstances. There has been no express waiver of the exhaustion requirement in this case. Moreover, review of the record demonstrates that Dispensa in no way indicated that significant new evidence existed, and there is no basis to believe that the state courts would be unwilling to hear the new evidence on remand. Mitigation of the exhaustion requirement is therefore not warranted. For the reasons stated above, the order of the district court granting Dispensa’s application for a writ of habeas corpus is vacated and the case remanded with directions to dismiss without prejudice. . See 28 U.S.C. § 2254(b), (c) (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). . Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). . Id. at 16, 103 S.Ct. at 277. . Spiegel v. Sandstrom, 637 F.2d 405, 407 (5th Cir. Unit B 1981); Lamberti v. Wainwright, 513 F.2d 277, 282 (5th Cir.1975). . Brown v. Estelle, 701 F.2d 494, 495 (5th Cir.1983). . See, e.g., McGee v. Estelle, 632 F.2d 476, 477 (5th Cir.1980). . See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). . Galtieri v. Wainwright, 582 F.2d 348, 354 (5th Cir.1978). . See, e.g., Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981); Hart v. Estelle, 634 F.2d 987, 989 (5th Cir. Unit A 1981); Galtier, 582 F.2d at 354-55. See also 28 U.S.C. § 2254(b).

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

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

What follows is an opinion from a United States Court of Appeals. 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 1. 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 1? Answer with a number.

The CONTINENTAL BANK AND TRUST COMPANY, OF SALT LAKE CITY, UTAH, Appellant, v. Emery J. WOODALL, Appellee. No. 5498. United States Court of Appeals Tenth Circuit. Jan. 2, 1957. Writ of Certiorari Denied March 25,1957. See 77 S.Ct. 663. Peter W. Billings, Salt Lake City, Utah (Albert J. Colton and Fabian, Clendenin, Moffat & Mabey, Salt Lake City, Utah, were with him on the briefs), for appellant. Bolling R. Powell, Jr., Washington, D. C., for appellee. Before BRATTON, Chief Judge, and HUXMAN and PICKETT, Circuit Judges. BRATTON, Chief Judge. This case presents for determination questions of law arising out of the attempt of the Board of Governors of the Federal Reserve System, hereinafter referred to as thé Board, to conduct a hearing in respect to the capital adequacy or inadequacy of a state bank member of the Federal Reserve System. Continental Bank and Trust Company, of Salt Lake City, Utah, hereinafter referred to as the Bank, is a state bank member of the Federal Reserve System. The Board issued an order for a hearing to be held at Salt Lake City for the purpose of determining the adequacy or inadequacy of the net capital stock and surplus of the Bank in relation to the character and condition of its assets and to its then present and prospective deposit liabilities and its other corporate responsibilities; determining what additional amount, if any, of capital funds were needed by the Bank to have an adequate capital structure; and determining what was a reasonable period of time to allow the Bank within which to effect any increase of capital funds found to be needed to make them adequate before being required to surrender its capital stock in the Federal Reserve Bank of San- Francisco and to forfeit its rights- and privileges of membership in the Federal Reserve System for failure to do so. The Bank moved the Board to dismiss the proceeding upon the ground that the Board had no authority to inquire into the capital adequacy or inadequacy of a state bank member of the Federal Reserve System, or to require such a Bank to acquire additional capital or forfeit its membership in the Federal Reserve System. The motion was denied. The Bank requested that the hearing be public and the Board acquiesced therein. Emery J. Woodall was designated as trial examiner to conduct the hearing and take evidence. Shortly before the hearing was scheduled to begin, the Bank instituted this action against Woodall to enjoin him from conducting the hearing upon the ground that the Board for whom he was acting had no power to conduct a hearing for such purposes. A temporary restraining order was issued. Later the restraining order was vacated and the action was dismissed. The Bank appealed. The focus of the attack upon the judgment dismissing the action is that the Board has no power to inquire into the capital adequacy or inadequacy of a state bank member of the Federal Reserve System; that the conducting of the hearing in question would result in irreparable injury to the Bank; and that therefore the court should have enjoined the holding of the hearing. The court predicated in part its dismissal of the action upon the view that the Board was an indispensable party. It is the well established rule of law that where a federal official attempts to perform an act which is in excess of his authority or under authority not validly conferred, an equitable action will lie to restrain him without the sovereign being a party; but where he acts within the range of his authority in the exercise of a function legally delegated to him, an action to restrain him cannot be maintained without the sovereign being im-pleaded even though there is an assertion of error in the exercise of such power or an abuse of discretion. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628; State of New Mexico v. Backer, 10 Cir., 199 F.2d 426; Oyler v. McKay, 10 Cir., 227 F.2d 604; Ogden River Water Users’ Association v. Weber Basin Water Conservancy, 10 Cir., 238 F.2d 936. The action was not one to restrain the trial examiner on the ground that he was acting beyond the range of the order of the Board. The essence of the cause of action pleaded in the complaint was to restrain the trial examiner on the ground that the Board had no power to order the hearing. Section 9 of the Federal Reserve Act, as amended, makes provision for banks incorporated under state law to become members of the Federal Reseiwe System. It provides that a state bank desiring to become such member may make application to the Board, under such rules and regulations as the Board may prescribe, for the right to subscribe to the stock of the Federal Reserve Bank organized within the district in which the applying bank is located; and that the Board, subject to the provisions of the Act and to such conditions as the Board may prescribe pursuant to the Act, may permit the applying bank to become a stockholder in such Federal Reserve Bank. 12 U.S.C.A. § 321. The section further provides that in acting upon the application of an applying state bank, the Board shall consider the financial condition of such bank, the general character of its management, and whether or not the corporate powers exercised are consistent with the purpose of the Act. 12 U.S.C.A. § 322. The section further provides that whenever the Board shall permit an applying bank to become a stockholder in the Federal Reserve Bank of the district, its stock subscription shall be payable on call of the Board, and stock issued to it shall be held subject to the provisions of the Act. 12 U.S.C.A. § 323. The section further provides that all banks admitted to membership in the Federal Reserve System under the provisions of the section shall be required to comply with the capital and reserve requirements of the Act and to conform to those provisions of law imposed upon national banks which prohibit such banks from lending on or purchasing their own stock, which relate to the withdrawal or impairment of capital, and which relate to the payment of unearned dividends. 12 U.S.C.A. § 324. The section further provides that as a condition to membership in the Federal Reserve System, such state banks shall be subject to examinations made by direction of the Board or of the Federal Reserve Bank by examiners selected and approved by the Board. 12 U.S.C.A. § 325. And the section further provides that if at any time it shall appear to the Board that a state bank member has failed to comply with the provisions of the Act, or the regulations of the Board made pursuant thereto, it shall be within the power of the Board after hearing to require such bank to surrender its stock in the Federal Reserve System and to forfeit all rights and privileges of membership. 12 U.S. C.A. § 327. Under the clear commands of the statute, after a state bank has been admitted to membership in the Federal Reserve System it must meet certain requirements. One of such requirements is compliance with the capital and reserve exactions of the Act. Another is compliance with the restrictions and inhibitions of the Act against the impairment of the capital of the bank. And where a state bank member fails to comply with the requirements of the Act in respect to its capital and reserve, or fails to comply with the restrictions or inhibitions against the impairment of its capital, the Board is expressly vested With power after hearing to require such bank to surrender its stock in the Federal Reserve Bank and to forfeit all rights and privileges of' membership' in the Federal Reserve System. In respect to a state bank meeting these requirements of the Act, the duties and functions of the Board are not merely coter-minus with the making of the application for membership and the admission of the applying bank into membership of the Federal Reserve System. Instead, it is the continuing duty and function of the Board to see that such bank either comply with the capital and reserve requirements of the Act and does not suffer impairment of its capital structure or surrender its stock in the Federal Reserve Bank and cease to be a member of the Federal Reserve System. The object and purpose of the scheduled hearing now under consideration was to inquire into the condition of the Bank in respect to whether it had suffered inadequacy of capital structure, if so what corrective procedure should be invoked, and whether the Bank should be required to surrender its stock in the Federal Reserve Bank and cease to be a member of the Federal Reserve System. And we entertain no doubt that under the provisions of the section of the Act, the Board had power to conduct the hearing for such purposes. Section 9 of the Act does not stand alone in point of present pertinence. By section 11 (i), - as amended, the Board is required to perform the duties, functions, and services specified in the Act, and it is authorized to make rules and regulations necessary to enable it effectively to perform the same. 12 U.S.C.A. § 248 (i). The provision amounts to a general grant of power to make rules and regulations in harmony with the objects and purposes of the Act and reasonably adapted to the effective discharge of the duties and functions of the Board under the Act. The Board promulgated and for many years has maintained Regulation H relating to conditions of membership of state banking institutions in the Federal Reserve System. The regulation provides among other things that such banks shall at all times conduct their business and exercise their powers with due regard' to the safety of their depositors; and that the net capital and surplus funds of such banks shall be adequate in relation to the character and condition of their assets and to their deposit liabilities and other corporate responsibilities. The regulation is in harmony with the objectives and purposes of the Act. It is reasonably adapted to further the discharge of the duties and functions of the Board under the Act. And its promulgation and maintenance constitute permitted administrative action under the Act. The scheduled hearing was intended and designed to ascertain whether the Bank had failed and was continuing to-fail to meet the requirements of the Act and the regulation, if so what should be done to bring its condition into, compliance with the Act and the regulation in respect to capital adequacy, and in the event of continued failure to meet the requirements of the Act and the regulation whether the Bank should cease to be a member of the Federal Reserve System. That being its purpose, the hearing was within the purview of the Act and the regulation, considered in their entirety. The Board was clothed with power to order the hearing. The authority to conduct the hearing and take the evidence was regularly delegated to the trial examiner, and the examiner was acting well within the range of authority delegated to him. In such circumstances, the Board was an indispensable party to the action to restrain the conducting of the hearing. And the Board not being a party, the court correctly entered its judgment of dismissal. Larson v. Domestic & Foreign Commerce Corp., supra; State of New Mexico v. Backer, supra; Oyler v. McKay, supra; Ogden River Water Users’ Association v. Weber Basin Water Conservancy, supra. The judgment is affirmed.

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

MISSOURI-ILLINOIS TRACTOR & EQUIPMENT CO., Inc., Appellant, v. D & L CONSTRUCTION COMPANY & ASSOCIATES and Continental Casualty Company, Appellees. No. 17632. United States Court of Appeals Eighth Circuit. Oct. 22, 1964. R. Richard Straub, of Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., made argument for appellant and filed brief. John A. Biersmith, of Rafter, Bier-smith, Miller & Walsh, Kansas City, Mo., made argument for appellee and filed brief. Before MATTHES, BLACKMUN and RIDGE, Circuit Judges. BLACKMUN, Circuit Judge. Is a Capehart payment bond suit brought by a subcontractor’s supplier controlled by the limitation period set forth in § 2(b) of the Miller Act, 40 U.S.C. § 270b(b) (“[B]ut no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied” by the plaintiff), or, instead, by the period the bond itself specifies (“No suit or action shall be commenced hereunder by any claimant * * * [a]fter the expiration of one (1) year following the date on which Principal [the prime contractor] ceases work on the contract”) ? This is the issue presented by this appeal. It was the first issue resolved by the court below in its general opinion, Travis Equip. Co. v. D & L Constr. Co. & Associates, 224 F.Supp. 410, 411-417 (W.D.Mo.1963), applicable not only to this but, as well, to a number of other eases. Koppers Co. v. Continental Cas. Co., 337 F.2d 499 (8 Cir. 1964), which we also decide today, has to do with the second issue the district court considered, pp. 417-418 of 224 F.Supp. The claimant, Missouri-Ulinois Tractor & Equipment Co., Inc., instituted the present action in federal court in June 1962. It asserted jurisdiction under the Capehart Act, 42 U.S.C. § 1594(a), under the general bond statute, 28 U.S.C. § 1352, and, perhaps somewhat significantly, under the very § 2(b) of the Miller Act quoted in part above. It is a suit to recover $9,478.46 for labor and material furnished by the plaintiff to W. S. Conner, a subcontractor on the Capehart project at Fort Leonard Wood, Missouri. The defendants are a joint venture, D & L Construction Company & Associates, the prime contractor, and Continental Casualty Company, Inc., the surety on its two Capehart bonds. The plaintiff’s labor and material were all supplied more than one year prior to the institution of its action. The suit, however, was begun within the year following the date on which D & L, as prime contractor and as principal on the Capehart bonds, ceased work on its contract. The defense of the Miller Act’s limitation period was affirmatively pleaded by the surety. The situation, thus, is one where the suit is barred if the Miller Act controls but where it is not barred if the bonds’ provision governs. The district court held that it was the Miller Act which was applicable. Pursuant to the suggestion contained in that opinion, p. 418 of 224 F.Supp., the defendants then moved for summary judgment. That motion was granted and judgment was entered in their favor. There is no genuine issue as to any material fact within the meaning of Rule 56(e), F.R.Civ.P. We are told that the question comes to us as a matter of first impression at the appellate level. We note, however, that one other federal district court has reached the same result and did so upon the authority of Judge Oliver’s opinion below. Economy Forms Corp. v. Trinity Universal Ins. Co., (D.N.D.1964, 234 F.Supp. 930). Our approach to these CapehartMiller cases has been outlined at length in recent opinions. Continental Cas. Co. v. United States for Use and Benefit of Robertson Lumber Co., 305 F.2d 794 (8 Cir. 1962), cert. denied 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231; D & L Constr. Co. v. Triangle Elec. Supply Co., 332 F.2d 1009 (8 Cir. 1964); Continental Cas. Co. v. Allsop Lumber Co., 336 F.2d 445 (8 Cir. 1964); Koppers Co. v. Continental Cas. Co., supra, 337 F.2d 499 (8 Cir. 1964). We need not repeat here what has been said in those four cases. We observe only that we have decided, expressly or by implication, that the Miller Act does have general application to Capehart bonds except, of course, where the two statutes are clearly different, or where the Miller Act’s provisions have no sensible application to a Capehart bond, or where a procedural aspect, such as a more stringent but not unreasonable notice provision in the bond than is present in the statute, is in issue. The plaintiff argues that the entry of summary judgment for the defendants here is in conflict with our decision in Robertson; that it is also in conflict with recent decisions of other courts; and that the limitation provision in the Cape-hart bonds is procedural in nature and is controlling. The first of these arguments is fully answered, so far as we are concerned, by what we said in Allsop and by what we have today repeated in Hoppers, particularly our statement, “If strict logic perforce demands a conclusion that this decision is but another way of saying that § 270b (b) of the Miller Act has application to a Capehart bond suit, we may be understood as going that far in our present holding” ; by our listing of and reference, p. 452 of 336 F.2d, to the factors prompting our conclusion there; and by our statements, in both Allsop and Hoppers, that Robertson must be read “in context and not out of it, and in the light of the issue and holding of that case” and “Robertson stands for what it holds, namely, that the notice provisions of a Capehart bond prevail over the less stringent notice provisions in the Miller Act.” The plaintiff’s second point also is fully answered by our observations in Hoppers relative to United States for Use and Benefit of Miles Lumber Co. v. Harrison & Grimshaw Constr. Co., 305 F.2d 363 (10 Cir. 1962), cert. denied 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229, and to the three state court decisions, Ireland’s Lumber Yard v. Progressive Contractors, Inc., 122 N.W.2d 554, 556-561 (N.D.1963); Allsop Lumber Co. v. Continental Cas. Co., 73 N.M. 64, 385 P.2d 625, 628-629 (1963), and Minneapolis-Honeywell Regulator Co. v. Terminal Constr. Corp., 41 N.J. 500, 197 A.2d 557 (1964). Three other cases which the plaintiff has cited, National State Bank of Newark v. Terminal Constr. Corp., 217 F.Supp. 341 (D.N.J.1963), aff’d 328 F.2d 315 (3 Cir. 1964); United States for Use and Benefit of Fogle v. Hal B. Hayes & Associates, 221 F.Supp. 260 (N.D.Cal.1963), and United States for Use and Benefit of Robertson Lumber Co. v. Cedric Sanders Co., 223 F.Supp. 435 (D.N.D.1963), add little force to its argument. All three concerned notice provisions of the Cape-hart bond. The New Jersey federal case also raised the question of the necessity of bringing the action in the name of the United States, although the court there did say, p. 351 of 217 F.Supp., “To this extent the two acts should be interpreted together, and this court will do so except in those cases where the Miller Act, or the eases decided under it, are contradicted by the Capehart Act, the cases decided under it, or the terms of the bond”. The plaintiff’s final case, Northwest Lumber Sales, Inc. v. S. S. Silberblatt, Inc., 211 F.Supp. 749 (E.D.Mo.1962), concerned itself primarily with what was felt to be a question of venue. None of these issues is present here. This leaves us with the last of the plaintiff’s arguments, namely, the nature of the limitation issue and its suggested qualification as a procedural matter within the reach of our Robertson decision. The plaintiff in its brief concedes that it “does not take issue with the conclusion of the District Court that the limitation provision of the Miller Act is jurisdictional in nature, since it operates upon the liability created by the same statute”. In view of what we have said in Allsop and Koppers, this concession forecloses plaintiff’s case. We feel, also, that a short answer to the plaintiff’s position is that there is nothing, which we have been able to find, indicating a congressional intent, by the Capehart Act, to give the Secretary of Defense the power, through provisions of the payment bond, to extend the limitation period beyond that so specifically and clearly fixed by the Miller Act to which the Capehart Act refers. Whether the Secretary has the power to prescribe a period shorter than that of the Miller Act is a question we need not now decide. Neither is it necessary for us to concern ourselves with the “technical niceties of distinction between procedural and jurisdictional and substantive aspects” to which we referred in Allsop, p. 452 of 336 F.2d. See, also, United States to Use of Gibson Lumber Co. v. Boomer, 183 F. 726, 730 (8 Cir. 1910); United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 162, 34 S.Ct. 550, 58 L.Ed. 893 (1914); Kansas City, Missouri v. Federal Pac. Elec. Co., 310 F.2d 271, 282 (8 Cir. 1962), cert. denied 371 U.S. 912, 83 S.Ct. 256, 9 L.Ed.2d 171 and 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 415. We observe, finally, that there are certain desirable practical results and an appealing equality of treatment which flow from the conclusion we reach. The period specified by the statute is, of course, to be presumed as known by all suppliers. It treats each one equally by giving it a like limitation period, i. e., one full year after supplying the last of its labor or material. It does not, therefore, favor earlier suppliers with a longer time in which to sue, as would be the case if the limitation period is to be measured, as the bond would have it, from the date the prime contractor ceases its work. Further, mere reference to its records enables a supplier to determine exactly when its limitation period begins and when it ends; it need not resort to an investigation of the prime contractor’s activity. Each of these factors has the same appeal for a Capehart situation as for a Miller situation. Both were noted when the 1959 amendment to the Miller Act, P.L. 86-135, § 1, 73 Stat. 279, was under consideration by the Congress. Senate Report No. 551 and House Report. No. 351, 86th Cong., 1st Sess., 2 U.S.Code-Congressional and Administrative News, 86th Cong., 1st Sess., 1959, pp. 1995-2000. Both were emphasized by the-Comptroller General and by the legislative committees. Both, we think, are of significance. Affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine or not there was any amicus participation before the court of appeals.

Was there any amicus participation before the court of appeals?

Alexander TOTH, Jr. and Velma Toth, Plaintiffs-Appellees, v. CORNING GLASS WORKS, Defendant-Appellant. No. 18274. United States Court of Appeals Sixth Circuit. June 5, 1969. Robert P. Bartlett, Dayton, Ohio, for appellant; John O. Henry, Dayton, Ohio, on brief; Estabrook, Finn & McKee, Dayton, Ohio, of counsel. Frank J. Thermes, Dayton, Ohio, for appellees; Holzfaster, Hoefling & Cecil, Dayton, Ohio, of counsel. Before PHILLIPS, EDWARDS and McCREE, Circuit Judges. McCREE, Circuit Judge. This is an appeal from the District Court’s judgment, entered on a jury verdict, awarding Alexander Toth, Jr., ap-pellee, the sum of Six Thousand Dollars for injuries suffered as a result of a' defect in a ceramic coffee pot which appellant manufactured. The questions presented are whether there was sufficient evidence to permit the jury to find that the coffee pot was defective at the time appellant sold it and whether the District Court’s failure, sua sponte, to dismiss the claim of appellee’s wife for loss of her husband’s services, or, without having been requested, to instruct the jury not to consider such loss in assessing damages, constitutes reversible error. In 1962, appellee bought a ceramic percolator coffee pot manufactured by appellant as a Christmas present for his wife. On July 28, 1964, while she was pouring some coffee from the pot into her husband’s cup, the pot broke into several pieces and its contents spilled onto appellee severely burning him. He initiated this action in the Common Pleas Court of Montgomery County, Ohio and it was removed to the District Court where, after a trial by jury, judgment was entered for appellee. Jurisdiction is based on diversity and the law of Ohio controls. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We determine that there was sufficient evidence for the jury to find that a defect in the coffee pot caused the failure of the vessel. Under the law of Ohio, a defect exists if a product is not fit for the ordinary purposes for which it is to be used. Lonzrick v. Republic Steel Corp., 6 Ohio St.2d 227, 218 N.E.2d 185 (1966). Experts for both sides testified that the failure occurred when a small crack at the top of, and inside, the pot’s ceramic bowl spread throughout a substantial portion of the vessel. There was evidence from which the jury could have found that this initial crack was formed when the inside of the pot was bumped slightly against a water faucet while the' appliance was being filled. Moreover, an employee of appellant testified that it was expected that this type of pot would be filled from a faucet. Therefore, the jury could have found, although the point is not stressed on appeal, that the pot was defective since it could not withstand the insubstantial bumping which was a consequence of intended foreseeable use. Finally, there was no direct testimony of misuse and the jury could have found from Mrs. Toth’s testimony that no misuse occurred. The remaining issue does not require reversal of the judgment. Despite appellant’s failure to move to dismiss Mrs. Toth’s claim, the District Court submitted to the jury only her husband’s claim for damages and the written form on which the jury recorded its verdict indicates that it considered only his claim. Whatever error was committed by the failure to strike the wife’s claim did not affect the substantial rights of the parties and was harmless. Rule 61, Fed.R. Civ.P. The judgment of the District Court is affirmed. . Defendant contends that under Ohio law a wife has no cause of action for damages for loss of consortium with her husband. . Much of the' expert testimony for both sides concerned variations in the thickness of the wall of the pot’s ceramic bowl from .058 to .120 inches. Appellee argues that this variation somehow subjected the thinner portions of the wall to greater stress than would have otherwise been the ease and thus caused the vessel’s failure. He does not contend that the wall would have been too thin to withstand normal stresses (other than bumping) if it had not also been subjected to stresses arising from variations in its thickness. Moreover, it is undisputed that the thickness of the wall in the area of the initial crack (which was subjected to the greatest amount of mechanical stress when the pot was lifted because of its proximity to the handle) was .080 inches and that appellant’s quality control standards specify a minimum thickness of only .045 inches. No other evidence of a minimum dimension legally appropriate in this regard was introduced. The experts of both parties agreed that variation in thickness affects the rate at which heat flows through ceramic material. It is undisputed that this rate is inversely proportional to thickness and that, consequently, it would be the thicker portions of the vessel’s wall that would be subjected to greater thermal stress of this type instead of the thinner portions. The testimony of appellee’s witness is insufficient' to support a finding of any other undesirable effect resulting from the variation of the bowl’s thickness. Q. Now, sir, you have indicated that there was this variance in thickness of merely 100 percent from one side of the coffee percolator to the other. What effect would this have on the internal stress of this object as a whole? A. Well, if anybody, of course, there are internal stresses that are not completely removed by the healing process to which it is subjected in manufacture and when the stresses, could be a despairity [sic] in stresses between the very thin side and the very thicker side in addition to internal stresses to something like a thermal stress such as would be present when filled with coffee that is just below the boiling point I presume, the thin side would obviously transmit heat more rapidly than the thicker side and this would tend to magnify the unbalance of stresses that might be present at this point. Record at 30-31. Insofar as we can determine, he postulated the existence of inherent “stresses” in the ceramic material from which the pot’s bowl was made and which the manufacturing process did not completely remove. He gave no explanation of the nature of these stresses and no evidence of their actual existence was introduced during the trial. To allow recovery on the basis of such a vaguely articulated and completely unsubstantiated theory would be inconsistent with traditional notions of the quantum of evidence sufficient to permit a case to go to the jury. We would find, therefore, that there is insufficient evidence in the record to permit the jury, to conclude that variations in the thickness of the wall constituted a defect. Because of other evidence, discussed supra, from which the jury could have found a different defect, it is not necessary for us to make this determination. Appellant did not request the trial judge to require the jury to return a special verdict identifying the defect, if any, under Fed.R.Civ.P. 49(a) and it cannot complain on appeal of its failure to do so.

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

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

UNITED STATES of America, Appellee, v. Joseph Anthony LAMATTINA, a/k/a Joe Black, Defendant, Appellant. No. 88-1208. United States Court of Appeals, First Circuit. Heard May 3, 1989. Decided Nov. 21, 1989. Richard M. Egbert, Boston, Mass., for defendant, appellant. Frank J. Marine, Dept, of Justice, Washington, D.C., with whom Jeremiah T. O’Sullivan, U.S. Atty., Boston, Mass., and Gregg L. Sullivan, Sp. Atty., Dept, of Justice, were on brief for the U.S. Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges. TORRUELLA, Circuit Judge. After a jury trial, defendant Joseph Anthony Lamattina (“Lamattina”) was found guilty of unlawfully making an extortionate extension of credit (18 U.S.C. § 892(a)) (one count) and attempting to collect an extension of credit by extortionate means (18 U.S.C. § 894) (two counts). On appeal, Lamattina challenges the verdict based on insufficiency of the evidence and assigns three errors related to the admissibility of evidence. We affirm the district court on all assignments of error. BACKGROUND The facts which the jury could have found are as follows. In 1982, William DiStefano (“DiStefano”) was the owner of an unprofitable used car business, as well as a clothing store. When he experienced difficulty in repaying several commercial loans, he placed a mortgage on his girlfriend’s house. But even that soon proved to be insufficient and he then turned to less conventional channels. DiStefano contacted Anthony Stancatto (“Stancatto”) in 1982, and asked him to arrange a meeting with appellant. DiStefano had known appellant since 1970 and was aware of his reputation as a “loan shark.” When they met, DiStefano asked appellant for a $5,000 loan. Appellant took the request under advisement. At a second meeting, appellant granted DiStefano the loan, at an interest rate of 5% per week. No documents were ever signed. DiStefano testified that at the time the loan was made, he understood he would get hurt if he failed to repay the loan. Thereafter, DiStefano made weekly interest payments of $250.00. In February 1983, DiStefano borrowed another $5,000 from appellant, this time at 3% interest per week. Once again, he did not sign any documents. In addition to the interest payment, DiStefano also lent appellant a car, which, they agreed, appellant could use until DiStefano repaid the second loan. Appellant, however, returned the car soon after he discovered that it had been stolen. DiStefano then sold the car and used the proceeds to repay the second loan. Barely a month later, DiStefano again borrowed $5,000 from appellant at 3% interest per week. He testified that it was his understanding, at that time, that if he failed to pay off the loan, appellant would hurt him. By December 1983, DiStefano had fallen behind in the interest payments on the two outstanding loans. He began “hiding” from appellant, other “loan sharks,” and state authorities who were investigating him regarding his used car business. At about the same time, appellant went to DiStefano’s store and told DiStefano’s girlfriend: “tell him he took my blood, I’ll take his.” Soon thereafter, DiStefano surrendered to the state authorities. After meeting with FBI agents, he agreed to cooperate with them. On February 6, 1984, DiStefano had a tape recorded conversation with appellant, in which appellant told DiStefano that he had to repay the loan. DiStefano asked appellant whether there was any way that he could “start taking it off the top.” This refers to a practice whereby the debtor starts making principal payments. Although it is less favorable to the creditor, it enables the creditor to get back all his money when he thinks the principal is in danger. Appellant directed DiStefano to contact Stancatto the following day in order to make arrangements in this regard. He warned DiStefano that he had “no place ... to hide.” After a meeting with Stancatto on February 7, and another with appellant, DiStefano agreed to pay $200 a week until a total of $15,000 was paid. SUFFICIENCY OF THE EVIDENCE Appellant avers that the government’s proof was insufficient to establish the elements of the crime beyond a reasonable doubt. In considering the sufficiency of the evidence in a criminal case, the proper standard is whether, “viewing the evidence in the light most favorable to the government and without assessing the credibility of the witnesses,” a reasonable person could have found the defendant guilty beyond a reasonable doubt. United, States v. Machor, 879 F.2d 945, 948 (1st Cir.1989). Under 18 U.S.C. § 892(a), it is a crime to make any extortionate extension of credit. An extortionate extension of credit is any: extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person. 18 U.S.C. § 891(6) (emphasis supplied). The term “understanding” as used in this section, is not limited to a mutual agreement. The term includes cases where it is recognized by the parties that illegal means or violence will be used to collect the debt. United States v. DeVincent, 546 F.2d 452, 455 n. 1 (1st Cir.1976), cert. denied, 431 U.S. 903, 97 S.Ct. 1694, 52 L.Ed.2d 387 (1977). Appellant’s contention is that there was no evidence from which a reasonable jury could infer that the understanding between the parties was that if DiStefano delayed or failed in his payments, DiStefano would suffer harm by violent or illegal means. After reviewing the evidence in the light most favorable to the prosecution, we find that it was more than sufficient to infer the requisite “understanding.” DiStefano repeatedly testified that at the time he got the loans he thought that he would get hurt if he did not repay them. He also specifically stated that he was afraid of appellant when he had fallen behind in the interest payments. Additionally, appellant appears to have threatened DiStefano on two separate occasions. First, he went to DiStefano’s store and communicated a threat to DiStefano’s girlfriend. Second, he directed DiStefano to meet with Stancatto and warned he had “no place ... to hide.” Although these threats were made after the time of the loans, they may still shed light on appellant’s intentions when he made the loans. Surely, this evidence is more than sufficient to reasonably infer the requisite “understanding.” EXPERT TESTIMONY At trial, the government presented the testimony of FBI Agent Arthur Eberhart. Given Eberhart’s experience, training and background in loansharking cases, the district court qualified him as an expert witness. He testified regarding the meaning of terms used in the government’s recorded conversations. For instance, he explained that in loansharking transactions “juice” refers to the interest. Eberhart also explained the modus operandi of loanshark operations. Finally, Eberhart testified that, after reviewing the transcript of the recorded conversations and based on his training and experience, he was of the opinion that the conversation involved a loansharking transaction. Appellant mounts a dual attack on the admissibility of Eberhart’s testimony. He finds Eberhart’s testimony inadmissible because it constitutes an opinion as to defendant’s state of mind, Fed.R.Evid. 704(b), and because it is unhelpful or unnecessary, Fed.R.Evid. 702. Appellant does not dispute that as a general rule an expert witness may state an opinion on an ultimate fact. Clearly, Fed.R.Evid. 704 effectively abolished the blanket prohibition on opinions about an ultimate issue. Instead, he relies on the 1984 amendment to the rule, which excludes opinions about defendant’s mental state or condition constituting an element of the offense charged. Fed.R.Evid. 704(b). In this case, however, Eberhart did not testify as an expert on defendant’s state of mind. He explained only what certain loansharking terms meant and opined that the recorded conversations involved loansharking. At the most, this testimony may have provided the jury with some basis for an inference as to defendant’s state of mind. This is not enough. United States v. Angiulo, 847 F.2d 956, 975 (1st Cir.1988). Appellant also argues that the expert’s opinion was inadmissible under Fed.R.Evid. 702. This rule provides as follows: If scientific, technical, or ohter specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (Emphasis supplied). Under Fed.R.Evid. 702 the proper inquiry is "whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject matter involved....” United States v. Rivera-Rodriguez, 808 F.2d 886, 888 (1st Cir.1986) (quoting from Fed.R. Evid. 702, Advisory Committee Notes). In determining whether to admit expert testimony, the trial court has wide discretion. Hamling v. United States, 418 U.S. 87, 108, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590 (1974). We find that the district court did not abuse its discretion in admitting the Eberhart testimony. Expert testimony, such as that of Eberhart, is helpful in cases where juries must determine the meaning and significance in recorded conversations of the jargon used in criminal operations. Without Eberhart’s specialized knowledge, the jury would probably have been at a loss to understand the significance of part of the evidence. See United States v. Angiulo, 847 F.2d at 975. No error was committed. THE FEBRUARY 7 TAPE RECORDED CONVERSATION Appellant challenges the admissibility of the February 7 tape recorded conversation between DiStefano and Stancatto. According to appellant, the district court should have suppressed redacted portions of this conversation because they are “not relevant on the matter on trial and highly inflammatory and prejudicial.” Part of this conversation referred to DiStefano’s transactions with one Peter Limone. We find appellant’s argument totally unconvincing. It was appellant who directed DiStefano to meet with Stancatto to arrange loan repayment. The thrust of the conversation between DiStefano and Stancatto concerned this arrangement. This part of the conversation is highly relevant to establish the charged offense. As to DiStefano’s transactions with Limone, we do not find that reference to be prejudicial to appellant. If anything, the conversation about DiStefano’s transactions with Li-mone supports appellant’s theory that the "loansharks” were Limone and others. EVIDENCE ABOUT FIREARMS Lastly, appellant argues that the district court erred in allowing DiStefano to testify that he turned over three pistols to an FBI agent. Because appellant failed to object during DiStefano’s testimony, he did not preserve this argument for appeal. We, therefore, will not consider it now for the first time. Affirmed. . We find appellant’s other asseverations on this point to be totally without merit. They are not directed to the sufficiency of the evidence but to its evaluation.

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

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

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

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

MENGELKOCH et al. v. INDUSTRIAL WELFARE COMMISSION et al. No. 375. Decided October 28, 1968. Marguerite Rawalt for appellants. Thomas C. Lynch, Attorney General of California, and Edward M. Belasco, Jay L. Linderman, and William L. Zessar, Deputy Attorneys General, for appellees. Per Curiam. A three-judge federal court, convened pursuant to 28 U. S. C. § 2281, determined that “there is no jurisdiction for a three-judge court” and entered an order dissolving itself. 284 F. Supp. 950, 956. The single district judge in whose court the case was originally filed considered further and dismissed the case without prejudice under the doctrine of abstention, stating in his memorandum opinion that “[t]he order dissolving the three-judge court is incorporated in this memorandum by reference.” 284 F. Supp. 956, 957. Appellants appeal from both judgments. In these circumstances, we have no jurisdiction to entertain a direct appeal from the decision of the single judge; such jurisdiction is possessed only by the appropriate United States Court of Appeals. 28 U. S. C. § 1291. Moreover, we have held that when, as here, a three-judge court dissolves itself for want of jurisdiction, an appeal lies to the appropriate Court of Appeals and not to this Court. Wilson v. Port Lavaca, 391 U. S. 352. Although the appellants have lodged in the Court of Appeals for the Ninth Circuit a protective appeal from the decision of the single judge, it does not appear from the record that such, an appeal has been filed with respect to the three-judge order. Therefore, we vacate the order of the three-judge court and remand the case to the District Court so that a timely appeal may be taken to the Court of Appeals. See Wilson v. Port Lavaca, supra; Utility Comm’n v. Pennsylvania R. Co., 382 U. S. 281, 282. The appeal from the decision of the single judge is dismissed for want of jurisdiction. It is so ordered. We think it makes no difference in principle that in Wilson v. Port Lavaca the single judge actually adopted the opinion of the three-judge court as his own.

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?

EARL R. COMPTON and Carolyn W. Compton, Plaintiffs-Appellants, v. AETNA LIFE INSURANCE AND ANNUITY COMPANY, Defendant-Appellee. No. 91-7356. United States Court of Appeals, Eleventh Circuit. March 25, 1992. David C. Johnson, Johnson & Cory, Ronald 0. Gaiser, Jr., Birmingham, Ala., for plaintiffs-appellants. Michael C. Quillen, Cabaniss, Johnston, Gardner, Dumas & O’Neal, Samuel M. Hill, Birmingham, Ala., for defendant-appellee. Before COX, Circuit Judge, JOHNSON and REAVLEY , Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. REAVLEY, Senior Circuit Judge: Appellants Earl and Carolyn Compton sued appellee Aetna Life Insurance and Annuity Co. (Aetna) for breach of contract and fraudulent suppression, among other things. After dismissing the Comptons’ related claims, the district court granted Aetna summary judgment on the Comp-tons’ contract and suppression claims. We affirm. I. BACKGROUND In September 1988, the Comptons applied for health insurance coverage under a policy issued by Aetna (the Policy). Aetna developed the Policy exclusively for members of the Professional Association of Crafts and Trades (PACT) and executed an insurance contract with PACT. Upon receiving the Comptons’ application, Aetna sent the Comptons a certificate (the Certificate) that described the Comptons’ coverage under the Policy, but expressly made the Policy “the whole contract” between Aetna and the Comptons. The Certificate froze the Comptons’ initial monthly premium at $172.40 for one year and then stated: Premium Rates — Premiums for each certificate year are based on the age of each Covered Person on the first day of that year and the table of rates then in effect. Premiums are expected to increase each year. Changes In Premium Table — Aetna has the right to change the table of premium rates. The change will take effect on the first day of the certificate year. Aetna must provide the Member with written notice of the change at least 30 days before the effective date. The Certificate concludes with the following: Policy Changes — The policy may be changed at any time by written agreement between Aetna and PACT. The consent of the Insured or any other person is not needed. All agreements made by Aetna are signed by one of its executive officers. No person can change or waive any of the policy terms or make any agreement binding on Aetna. PACT will not have to give approval of a change in the policy if PACT has asked for the change and Aetna has agreed to it. The Certificate’s front page states: Please read this certificate. If the insurance does not meet your needs, send this certificate back, within 10 days after you receive it, to Aetna or the representative through whom it was purchased. A full refund will be made. Then the insurance will be as though it had never been in force. The Comptons did not exercise this option. Although the Comptons do not admit that they received a rider with the Certificate, they do admit that they received Rider 24488 (the Rider) from Aetna. The Rider makes the following changes in the Policy and Certificate as of October 1, 1988: the Premium Rates section and the Changes in Premium Table section are deleted and replaced by the following: Premium Rates — Premiums for each certificate year are based on the age of each Covered Person on the first day of that year and the table of rates then in effect on the premium due date. Premiums may depend on smoker/non-smoker status, family discount, residence, sex, current loss experience class for renewals, and such other factors as Aetna may determine from time to time. Changes in Premium Table — Aetna has the right to change the table of premium rates. The change will take effect on any premium due date. Aetna must provide the insured with written notice of the change at least 30 days before the effective date. An Aetna agent signed the Rider. Approximately one month after purchasing the Certificate, Mrs. Compton suffered a stroke and received approximately $90,-000 in Policy coverage from Aetna. On the Certificate’s first anniversary, in September 1989, Aetna raised the Comptons’ monthly premium from $172.40 to $543.10. In March 1990, Aetna increased the premium to $641.39. In September 1990, Aetna increased the premium to $842.36. According to the uncontroverted affidavit of Gregory W. Chicares, an Aetna actuary, the Comptons’ premium increased because of: (1) staggered, across-the-board Policy increases totaling 113.2% due to rising health care costs; (2) the fact that Mrs. Compton’s claims on the Policy exceeded the Comptons’ premium payments, which placed them in the highest of six risk groups under the Policy and increased their premiums by 50%; (3) the Comptons' aging (6.63% for Mrs. Compton and 12.77% for Mr. Compton); (4) the fact that Aetna began to account for the sex of its insureds under its rating system (3.94%); (5) the area of the Comptons’ residence (5.7%); and (6) the fact that the Comptons’ premium was payable monthly (5.8%). The Comptons claim that Aetna breached the Certificate when it increased their premium by 489% over the course of two years. They also claim that Aetna fraudulently concealed the basis for its premium increases. The district court rendered summary judgment against the Comptons on these claims because the Comptons failed to produce any substantial evidence to show that the Rider was not part of the contract between Aetna and the Comptons, because Aetna increased the Comptons’ premium in accord with the Rider, and because the Rider disclosed the basis for the premium increases. II. DISCUSSION Under the undisputed facts recited, Aet-na prevails as a matter of contract and tort law. A. Breach of Contract The Comptons bought the Certificate and continued their coverage under it after being advised that Aetna reserved the right to change the Certificate’s terms upon agreement with PACT. Aetna exercised that right in adopting the Rider, and increased the Comptons’ premium according to the Rider. In fact, the only increase that Aetna based on a factor that was not explicitly listed in the Rider was the relatively insignificant increase of 5.8%, which Aetna attributed to the Comptons’ manner of premium payment. Aetna based this increase on the Rider’s catch-all clause. The Comptons invite us to interpret Aetna’s repeated use of the term “table of rates” to mean that, even under the Rider, Aetna was required to have employed a single table of rates to determine the Comptons’ premium. We refuse. The Rider lists several factors that Aetna planned to consider in its premium determinations. The fact that Aetna used the term “table” in the singular does not relegate Aetna to basing its premiums on only two of the factors that it listed. Webster defines a “table” as “a systematic arrangement of data usu[ally] in rows and columns for ready reference.” Webster’s Ninth New Collegiate Dictionary 1200 (1985). A single table may account for more than two variables. Nor is it significant that Aetna may never have determined the Comptons’ premiums from a single table; the language that Aetna employed in the Certificate and Rider did not preclude it from taking into account all of the factors that it indicated would be relevant to its premium determinations. The Comptons also argue that the experience rating system employed by Aet-na made the Comptons’ premium depend on their use of the Policy, not any table. The Comptons’ premium did depend to some extent on their history of claims under the Policy. Based on the amount of their claims compared to their premiums paid, Aetna placed them into a risk pool and based a premium increase percentage on their risk-pool number. Thus, as expressly provided in the Rider, Aetna used the Comptons’ claim experience as one factor in calculating their premium. This accords with, rather than contradicts, the Rider’s “table of rates” language. Finally, the Comptons claim that Aetna breached the Certificate’s express terms by raising their premium more than once in a year. But the Rider expressly deletes from the Certificate the provisions that the Comptons rely upon. The Rider replaces those provisions with the statement, “Aetna has the right to change the table of premium rates. The change will take effect on any premium due date.” The Comptons’ premium was due each month. Aetna breached no contract by raising the Comptons’ premium semi-annually. B. Fraudulent Suppression Not only do the Comptons admit having received the Rider from Aetna, they admit receiving a letter from Aetna two months before the first anniversary of their policy that explains that their rates will be based on claim experience, gender, area, and age. There is no evidence that Aetna, by act or omission, concealed any fact from the Comptons, let alone that Aet-na intentionally deceived them. See Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989) (“to support a cause of action for fraudulent suppression [under Alabama law], one must produce evidence of a present intent to deceive by the suppression or active concealment of an existing material fact”). III. CONCLUSION We recognize that it may seem unfair to allow Aetna to alter the Certificate’s terms without the Comptons’ consent and begin basing the Comptons’ premium in part upon the amount that they used their health insurance. But whether these types of insurance policies should be allowed is a legislative question. This court decides only the breach of contract and fraudulent suppression claims. AFFIRMED. . However, careful examination of the Comp-tons’ premiums suggests that Aetna did not egregiously take advantage of the Comptons. The rationale behind group insurance is to shift the risk of financial loss from a catastrophic illness such as the one suffered by Mrs. Compton to a group. A small number of the group use the premiums of the whole to offset the costs of treating a major illness.- Contrary to the Comp-tons’ arguments, their Certificate effectively shifted the risk of financial ruin from Mrs. Compton’s stroke to the PACT policyholders. Without any premium increase due to Mrs. Compton’s stroke, the Comptons’ monthly premium would have risen to approximately $516 by September 1990 due to the Comptons’ aging, area of residence, and (mostly) to skyrocketing health care costs in this country. Because of Mrs. Compton's stroke, Aetna charged the Comptons approximately $842 per month. But an Aetna actuary testified that the Comptons' position in the highest claim experience pool is calculated based on a three-year rolling average. This means that Mrs. Compton’s $90,000 claim against the Policy could only be used to increase her premium for three years. Thus, at the very most, Aetna asked the Comptons to pay (12 months) x (3 years) x ($842 — $516) = $11,736 in extra premiums as a result of Mrs. Compton’s $90,000 claim. The Comptons thus succeeded in shifting 86.9% of the cost of her treatment to the PACT members who bought into Aetna’s Policy.

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

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

UNITED STATES of America, Plaintiff-Appellant, v. Sam VAGLICA, Steve Guggino, Henry Trafficante, Berthold John Haas and Isabel Margaret Seeley, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Alfonso SCAGLIONE, Wade Robert Westmoreland, Julius L. Richardson, Peter Richardson, Phyllis A. Moore, a/k/a Annie Moore, and Oliver Hurley, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Luis Henry FIGUEREDO, Jr., Louis Henry Figueredo, Sr., Guy Stein, Sr., Omer Thomas Caron, Charline Albritton, James I. Black, Manuel Llano and A. T. Edwards, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Salvatore CASTELLANA, Joseph Carl Castellana, James Camilo Castellana, Helen Louise Hawkins and Thomas Henry Peterson, Defendants-Appellees. Nos. 73-1149, 73-1255, 73-1256 and 73-1588. United States Court of Appeals, Fifth Circuit. March 8, 1974. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for the United States. John S. Matthews, Henry Gonzalez, Thomas J. Hanlon, Tampa, Fla., for Sam Vaglica and others. Jack T. Edmund, Robert E. Pyle, Lake Alfred, Fla., for Alfonso Scaglione and others. Barry Cohen, Paul Antinori, Jr., Raymond E. LaPorte, Richard A. Bokor, Henry Gonzalez, Tampa,-Fla., Clinton A. Curtis, Kenneth L. Connor, Lake Wales, Fla., John D. Demmi, Tampa, Fla., J. Hardin Peterson, Lakeland, Fla., for Luis Henry Figueredo, Jr., and others. Henry Gonzalez, Robert W. Knight, Tampa, Fla., for Salvatore Castellana and others. Before THORNBERRY, SIMPSON and CLARK, Circuit Judges. PER CURIAM: In each of these appeals, which we consolidated for oral argument, the Government is challenging a district court’s dismissal of an indictment count charging multiple defendants with conspiracy to conduct an illegal gambling enterprise in violation of 18 U.S.C. §§ 371 and 1955. The district court dismissed the count in each case on the ground that it violated Wharton’s Rule. We have reserved our holding in these cases pending the court’s disposition of an earlier-argued case involving exactly the same issue. We have now held in United States v. Pacheco, 5th Cir. 1974, 489 F.2d 554, that a two count indictment charging both a substantive violation of and a conspiracy to violate 18 U.S.C. § 1955 does not violate Wharton’s Rule. Therefore, we reverse the district court’s dismissals and remand for trial. See United States v. Pacheco, supra. Reversed and remanded. . “ . . . When to the idea of an offense plurality of agents is logically necessary, conspiraey . . . cannot be maintained . . . ” 2 Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932).

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

DELTA AIR LINES, INC. v. AUGUST No. 79-814. Argued November 12, 1980 Decided March 9, 1981 Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Blackmtjn, JJ., joined. Powell, J., filed an opinion concurring in the result, post, p. 362. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Stewart, J., joined, post, p. 366. E. Allan Kovar argued the cause for petitioner. With him on the briefs were Max G. Brittain, Jr., William H. Du Ross III, and Robert 8. Harkey. Susan Margaret Vance argued the cause for respondent. With her on the brief was Carole K. Bellows. Elinor Hadley Stillman argued for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Deputy Solicitor General Wallace, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager. Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by E. Richard Larson and Bruce J. Ennis for the American Civil Liberties Union; by John B. Jones, Jr., Norman Redlich, William L. Robinson, Norman J. Chachkin, and Beatrice Rosenberg for the Lawyers’ Committee for Civil Rights Under Law; and by Martha A, Mills and Sybille C. Fritzsche for the Lawyers’ Committee for Civil Rights Under Law of Chicago. Briefs of amici curiae were filed by Aldus S. Mitchell and Sophia H. Hall for the National Association for the Advancement of Colored People; and by Mary Ellen Hudgins for the Northwest Women’s Law Center et al. Justice Stevens delivered the opinion of the Court. Pursuant to Rule 68 of the Federal Rules of Civil Procedure, if a plaintiff rejects a defendant’s formal settlement offer, and if “the judgment finally obtained by the offeree is not more favorable than the offer/' the plaintiff “must pay the costs incurred after the making of the offer.” The narrow question presented by this case is whether the words “judgment finally obtained by the offeree” as used in that Rule should be construed to encompass a judgment against the offeree as well as a judgment in favor of the offeree. Respondent Rosemary August (plaintiff) filed a complaint against petitioner Delta Air Lines, Inc. (defendant), alleging that she had been discharged from her position as a flight attendant solely because of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. She sought reinstatement, approximately $20,000 in backpay, attorney’s fees, and costs. A few months after the complaint was filed, defendant made a formal offer of judgment to plaintiff in the amount of $450. The offer was refused, the case was tried, and plaintiff lost. The District Court entered judgment in favor of defendant and directed that each party bear its own costs. Defendant then moved for modification of the judgment, contending that under Rule 68 the plaintiff should be required to pay the costs incurred by defendant after the offer of judgment had been refused. The District Court denied the motion on the ground that the $450 offer had not been made in a good-faith attempt to settle the case and therefore did not trigger the cost-shifting provisions of Rule 68. The Court of Appeals affirmed on the same ground, 600 F. 2d 699 (CA7 1979), holding that Rule 68 applied only if the defendant’s settlement offer was sufficient “to justify serious consideration by the plaintiff.” In finding a reasonableness requirement in the Rule, the Court of Appeals did not confront the threshold question whether Rule 68 has any application to a case in which judgment is entered against the plaintiff-offeree and in favor of the defendant-offeror. Our resolution of the case, however, turns on that threshold question. The answer is dictated by the plain language, the purpose, and the history of Rule 68. I Rule 68 prescribes certain consequences for formal settlement offers made by “a party defending against a claim.” The Rule has no application to offers made by the plaintiff. The Rule applies to settlement offers made by the defendant in two situations: (a) before trial, and (b) in a bifurcated proceeding, after the liability of the defendant has been determined “by verdict or order or judgment.” In either situation, if the plaintiff accepts the defendant’s offer, “either party may then file the offer... and thereupon the clerk shall enter judgment.” If, however, the offer is not accepted, it is deemed withdrawn “and evidence thereof is not admissible except in a proceeding to determine costs.” The plaintiff’s rejection of the defendant’s offer becomes significant in such a proceeding to determine costs. Under Rule 54 (d) of the Federal Rules of Civil Procedure, the party prevailing after judgment recovers costs unless the trial court otherwise directs. Rule 68 could conceivably alter the Rule 54 (d) presumption in favor of the prevailing party after three different kinds of judgments are entered: (1) a judgment in favor of the defendant; (2) a judgment in favor of the plaintiff but for an amount less than the defendant’s settlement offer; or (3) a judgment for the plaintiff for an amount greater than the settlement offer. The question presented by this case is which of these three situations is described by the words “judgment finally obtained by the of-feree... not more favorable than the offer.” Obviously those words do not encompass the third situation — a judgment in favor of the offeree that is more favorable than the offer. Those words just as clearly do encompass the second, for there can be no doubt that a judgment in favor of the plaintiff has been “obtained by the offeree.” But inasmuch as the words “judgment... obtained by the offeree” — rather than words like “any judgment” — would not normally be read by a lawyer to describe a judgment in favor of the other party, the plain language of Rule 68 confines its effect to the second type of case — one in which the plaintiff has obtained a judgment for an amount less favorable than the defendant’s settlement offer. This reading of the plain language of the Rule is supported by other language contained in the Rule. The Rule applies when the defendant offers to have “judgment... taken against him.” Because the Rule obviously contemplates that a “judgment taken” against a defendant is one favorable to the plaintiff; it follows that a judgment “obtained” by the plaintiff is also a favorable one. In sum, if we limit our analysis to the text of the Rule itself, it is clear that it applies only to offers made by the defendant and only to judgments obtained by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained the judgment. II Our interpretation of the Rule is consistent with its purpose. The purpose of Rule 68 is to encourage the settlement of litigation. In all litigation, the adverse consequences of potential defeat provide both parties with an incentive to settle in advance of trial. Rule 68 provides an additional inducement to settle in those cases in which there is a strong probability that the plaintiff will obtain a judgment but the amount of recovery is uncertain. Because prevailing plaintiffs presumptively will obtain costs under Rule 54 (d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made. If a plaintiff rejects a Rule 68 settlement offer, he will lose some of the benefits of victory if his recovery is less than the offer. Because costs are usually assessed against the losing party, liability for costs is a normal incident of defeat. Therefore, a nonsettling plaintiff does not run the risk of suffering additional burdens that do not ordinarily attend a defeat, and Rule 68 would provide little, if any, additional incentive if it were applied when the plaintiff loses. Defendant argues that Rule 68 does provide such an incentive, because it operates to deprive the district judge of the discretion vested in him by Rule 54 (d). According to this reasoning, Rule 68 is mandatory, and a district judge must assess costs against a plaintiff who rejects a settlement offer and then either fails to obtain a judgment or recovers less than the offer. Therefore, nonsettling plaintiffs could not reject settlement offers in the expectation that the judge might exercise his discretion to deny the defendant costs if the defendant wins. If we were to accept this reasoning, it would require us to disregard the specific intent expressed in Rule 54 (d) and thereby to attribute a schizophrenic intent to the drafters. If, as defendant argues, Rule 68 applies to defeated plaintiffs, any settlement offer, no matter how small, would apparently trigger the operation of the Rule. Thus any defendant, by performing the meaningless act of making a nominal settlement offer, could eliminate the trial judge’s discretion under Rule 54 (d). We cannot reasonably conclude that the drafters of the Federal Rules intended on the one hand affirmatively to grant the district judge discretion to deny costs to the prevailing party under Rule 54 (d) and then on the other hand to give defendants — and only defendants — the power to take away that discretion by performing a token act. Moreover, if the Rule operated as defendant argues, we cannot conceive of a reason why the drafters would have given only defendants, and not plaintiffs, the power to divest the judge of his Rule 54 (d) discretion. See Simonds v. Guaranty Bank & Trust Co., 480 F. Supp. 1257, 1261 (Mass. 1979). When Rule 68 is read literally, however, it is evenhanded in its operation. As we have already noted, it does not apply to judgments in favor of the defendant or to judgments in favor of the plaintiff for an amount greater than the settlement offer. In both of those extreme situations the trial judge retains his Rule 54 (d) discretion. In the former his discretion survives because the Rule applies only to judgments “obtained by the offeree”; in the latter, it survives because the Rule does not apply to a judgment “more favorable than the offer.” Thus unless we assume that the Federal Rules were intended to be biased in favor of defendants, we can conceive of no reason why defendants — and not plaintiffs— should be given an entirely risk-free method of denying trial judges the discretion that Rule 54 (d) confers regardless of the outcome of the litigation. The Court of Appeals, perceiving the anomaly of allowing defendants to control the discretion of district judges by making sham offers, resolved the problem by holding that only reasonable offers trigger the operation of Rule 68. But the plain language of the Rule makes it unnecessary to read a reasonableness requirement into the Rule. A literal interpretation totally avoids the problem of sham offers, because such an offer will serve no purpose, and a defendant will be encouraged to make only realistic settlement offers. The Federal Rules are to be construed to “secure the just, speedy, and inexpensive determination of every action.” Fed. Rule Civ. Proc. 1. If a plaintiff chooses to reject a reasonable offer, then it is fair that he not be allowed to shift the cost of contimiing the litigation to the defendant in the event that his gamble produces an award that is less than or equal to the amount offered. But it is hardly fair or evenhanded to make the plaintiff’s rejection of an utterly frivolous settlement offer a watershed event that transforms a prevailing defendant’s right to costs in the discretion of the trial judge into an absolute right to recover the costs incurred after the offer was made. Ill This interpretation of the language of the Rule and its clear purpose is further compelled by the history of Rule 68. Rule 68 is an outgrowth of the equitable practice of denying costs to a plaintiff “when he sues vexatiously after refusing an offer of settlement.” The 1938 Advisory Committee Notes to the original version of the Rule merely cited three state statutes as illustrations of the operation of the Rule. These three statutes, from Minnesota, Montana, and New York, mandated the imposition of costs on a plaintiff who rejected settlement offers and failed to obtain a judgment more favorable than the offer. All three States had other provisions, similar to Rule 54 (d), providing for the recovery of costs by a prevailing party. Therefore, the only purpose served by these state offer-of-judgment rules was to penalize prevailing plaintiffs who had rejected reasonable settlement offers without good cause. As defendant notes, other States have or had similar rules. But with one exception all of the cases cited by plaintiff, defendant, and the EEOC as amicus involving state cost-shifting rules were cases in which the plaintiff prevailed. The commentators, including the members of the Advisory Committee, have agreed with our interpretation of the Rule. At a symposium held shortly after the Rules were issued in 1938, one of the members of the Advisory Committee presented the Rule as “a means for stopping the running of costs where the defendant admits that part of the claim is good but proposes to contest the balance.” The Advisory Committee Notes to the 1946 Amendment to the Rule indicate that the Rule was designed to “save” a defendant from having to reimburse the plaintiff for costs incurred after the offer was made and not to make mandatory the court’s discretionary power to tax costs against the plaintiff in the event the defendant prevails. The fact that the defense bar did not develop a practice of seeking costs under Rule 68 by making nominal settlement offers is persuasive evidence that trial lawyers have interpreted the Rule in accordance with its plain language. Thus the state rules upon which Rule 68 was modeled, the cases interpreting those rules, and the commentators’ view of the Rule are all consistent with, and in fact compel, our reading of its plain language. Although defendant’s petition for certiorari presented the question of the District Judge’s abuse of discretion in denying defendants costs under Rule 54 (d), that question was not raised in the Court of Appeals and is not properly before us. We therefore affirm the judgment of the Court of Appeals. It is so ordered. Rule 68, as amended in 1966, provides: “At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.” The formal offer of judgment submitted by the defendant to the attorney for the plaintiff read as follows: “Pursuant to Rule 68 of the Federal Rules of Civil Procedure, defendant hereby offers to allow judgment to be taken against it in this action, in the amount of $450 which shall include attorney’s fees, together with costs accrued to date. This offer of judgment is made for the purposes specified in Rule 68, and is not to be construed either as an admission that the defendant is liable in this action, or that the plaintiff has suffered any damage.” App. 34. Senior District Judge Hoffman stated: “While there is little authority on the point, this Court is satisfied that in order to be effective, a Rule 68 offer must be made in a good faith attempt to settle the parties’ litigation and, thus, must be at least arguably reasonable. “If the purpose of the rule is to encourage settlement, it is impossible for this Court to concede that this purpose can be furthered or aided by an offer that is not at least arguably reasonable. “Finally, while the Court did ultimately find itself constrained to enter its judgment for the defendant, the Court certainly did not find the plaintiff’s claim to be wholly specious. In the opinion of this Court and in the particular facts and circumstances of this case, an offer of only the sum of $450 could only have been effective were the plaintiff’s claim totally lacking in merit or were there present additional factors which would mitigate in favor of the defendant.” Id., at 11-12. “Against that general background, the Rule 68 offer of judgment of less than $500 before trial is not of such significance in the context of this case to justify serious consideration by the plaintiff. At oral argument the defendant urged that even an offer of $10 would have met the requirements of Rule 68 and served the purpose of shifting cost liability. If that were so, a minimal Rule 68 offer made in bad faith could become a routine practice by defendants seeking cheap insurance against costs. The useful vitality of Rule 68 would be damaged. Unrealistic use of the rule would not encourage settlements, avoid protracted litigation or relieve courts of vexatious litigation.” 600 F. 2d, at 701. (Footnote omitted.) In multiclaim litigation, such a party may, of course, be defending against a counterclaim or a cross-claim, but the effect of the Rule can most readily be explained by reference to cases involving a single claim by one plaintiff against one defendant. For that reason, as well as the fact that this case involves such a claim, we simply refer to the parties as “plaintiff” and “defendant.” No issue is presented in this case concerning the amount or the items of costs that defendant seeks to recover. Rule 54 (d) provides, in relevant part: “(d) Costs “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs....” Advisory Committee’s Notes on Fed. Rule Civ. Proc. 68, 28 U. S. C. App., p. 499; 12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973); 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 68.02, p. 68-4 (1979). This incentive is most clearly demonstrated by the situation in which the defendant’s liability has been established “by verdict or offer of judgment” — or perhaps by an admission — and the only substantial issue to be tried concerns the amount of the judgment. In that context, the opportunity to avoid the otherwise almost certain liability for costs should motivate realistic settlement offers by the defendant, and the risk of losing the right to recover costs provides the plaintiff with an additional reason for preferring settlement to further litigation. Delta argues that this additional incentive provided by Rule 68 is taking on increased importance as more district judges, like the District Judge here, are exercising the discretion granted by Rule 54 (d) to deny costs to prevailing defendants. Defendant contended at oral argument that a settlement offer of one penny should trigger the cost-shifting provision of the Rule if the defendant prevails. Tr. of Oral Arg. 5. Defendant argues that our construction of the Rule is anomalous because under Rule 68, a defendant who prevails is in a less favorable position than if he had lost the case but for an amount less than the offer. Reply Brief for Petitioner 10. The argument is applicable, however, only in a narrowly limited category of cases. First, because the prevailing defendant normally recovers costs, the argument is relevant only in the relatively few cases in which special circumstances may persuade the district judge to exercise his discretion to deny costs to the prevailing party. And second, even within that small category, the argument is only valid if the settlement offer is for an amount less than the recoverable costs. For if the plaintiff obtains a judgment for an amount less than the offer but greater than the cost bill, the net liability of the defendant will be greater than the burden of paying his own costs after a victory on the merits. The fact that a defendant may obtain no benefit from a settlement offer for an amount less than his probable taxable costs is surely not a sufficient reason to disregard the plain language of the Rule, or to question its efficacy in motivating realistic settlement proposals in cases in which the defendant recognizes a significant risk that the plaintiff will obtain a judgment. In sum, the effect of a literal interpretation of Rule 68 is to attach no practical consequences to a sham or token offer by the defendant. Since there is no reason to encourage such token offers, the Rule quite sensibly leaves the parties in the same position after such an offer as they would have been in if no such offer had been made. See n. 21, infra. Moreover, because Rule 68 has no application at all to offers made by the plaintiff, the plaintiff may not divest the district judge of his Rule 54 (d) discretion by making a sham offer. Defendant also argues that it should be permitted to use Rule 68 to recover costs in this manner because district judges have recently been exercising their discretion to deny prevailing defendants costs in too many cases. Reply Brief for Petitioner 8; Tr. of Oral Arg. 14. Since Rule 68 was promulgated prior to this alleged misapplication of Rule 54 (d), it surely was not intended to remedy a problem that had not yet surfaced. Of course, there really is no reason to assume that district judges are repeatedly abusing their Rule 54 (d) discretion. If we make the more probable assumption that they are denying costs to the prevailing party only when there would be an element of injustice in a cost award, the burden of defendant’s argument is not only that a special privilege should be granted to defendants but also that its primary effect will be to thwart the administration of justice. See Note, Rule 68: A “New” Tool for Litigation, 1978 Duke L. J. 889, 895: “An offer by a defendant of ten dollars at the beginning of a difficult and complex case, or of a case based on a novel legal theory, is not likely to produce an. early settlement of the case, which is the purpose of the rule. Yet, if the rule is not limited to cases in which the plaintiff prevails, the ten dollar offer will have the effect of assuring that the defendant is awarded practically all of his costs if he prevails, even if there are good reasons why the defendant should not be awarded his costs. This is clearly not the result that the rulemakers envisioned. If interpreted to require that the plaintiff secure at least some relief, the rule would insure that token offers will not be made because nothing would be gained by them. In most cases, the defendant, as the prevailing party, will be entitled to costs under rule 54 (d). When the defendant is not so entitled, he ought not be able to employ rule 68 to override the discretion that the court would otherwise have, in order to compel the awarding of costs.” Moreover, because the defendant’s settlement offer is admissible at a proceeding to determine costs, a defendant could use a reasonable settlement offer as a means of influencing the judge’s discretion to award costs under Rule 54 (d). 12 C. Wright & A. Miller, Federal Practice and Procedure § 3001, p. 56 (1973). One of the members of the Advisory Committee, Robert G. Dodge, indicated at a symposium on the new Rules that the Rule was based on “statutes which are widely prevalent in the states....” American Bar Association, Rules of Civil Procedure for the District Court of the United States with Notes as prepared under the direction of the Advisory Committee and Proceedings of the Institute on Federal Rules, Cleveland, Ohio 337 (1938) (hereinafter Institute on Federal Rules). 2 Minn. Stat. § 9323 (Mason 1927) provided: “At least ten days before the term at which any civil action shall stand for trial the defendant may serve on the adverse party an offer to allow judgment to be taken against him for the sum, or property, or to the effect therein specified, with costs then accrued. If within ten days thereafter such party shall give notice that the offer is accepted, he may file the same, with proof of such notice, and thereupon the clerk shall enter judgment accordingly. Otherwise the offer shall be deemed withdrawn, and evidence thereof shall not be given; and if a more favorable judgment be not recovered no costs shall be allowed, but those of the defendant shall be taxed in his favor.” 4 Mont. Rev. Codes Ann. § 9770 (1935) provided: “The defendant may, at any time before the trial or judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the sum or property, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence upon the trial; and if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs, but he must pay the defendant’s costs from the time of the offer.” N. Y. Civ. Prac. Law § 177 (Cahill 1937) provided: “Before the trial, the defendant may serve upon the plaintiff’s attorney a written offer to allow judgment to be taken against him for a sum, or property, or to the effect, therein specified, with costs. If there be two or more defendants, and the action can be severed, a like offer may be made by one or more defendants against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serve upon the defendant’s attorney a written notice that he accepts the offer, he may file the summons, complaint, and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance be not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fail to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time.” See 2 Minn. Stat. §§ 9471-9473 (Mason 1927); 4 Mont. Rev. Codes Ann. §§ 9787, 9788 (1935); N. Y. Civ. Prac. Law §§ 1470-1475 (Cahill 1937). In each of these States, the general statute providing for recovery of costs by prevailing defendants was, unlike Rule 54 (d), mandatory. See, e. g., 4 Mont. Rev. Code Ann. §§ 9787-9788 (1935); 2 Minn. Stat. § 9471 (Mason 1927); N. Y. Civ. Prac. Law §§ 1470-1475 (Cahill 1937). Inasmuch as those statutes did not give trial judges discretion to deny costs to prevailing defendants, the state antecedents of Rule 68 did not perform any cost-shifting function in cases in which the defendant prevailed. In those States — as is true under Rule 68 — a sham settlement offer had no practical consequences; it left the parties in the same situation as if no offer had been made. See n. 12, supra. Therefore, the state offer-of-judgment statutes provide support for the view that Rule 68 applies only to prevailing plaintiffs. See, e. g., Cal. Civ. Proc. Code Ann. § 998 (West 1980); Yeager v. Campion, 70 Colo. 183, 197 P. 898 (1921); Wordin v. Bemis, 33 Conn. 216 (1866); Prather v. Pritchard, 26 Ind. 65 (1866); West v. Springfield Fire & Marine Ins. Co., 105 Kan. 414, 185 P. 12 (1919); Wachsmuth v. Orient Ins. Co., 49 Neb. 590, 68 N. W. 935 (1896); Herring-Hall-Marvin Safe Co. v. Balliet, 44 Nev. 94, 190 P. 76 (1920); Hammond v. Northern Pacific B. Co., 23 Ore. 157, 31 P. 299 (1892); Sioux Falls Adjustment Co. v. Penn. Soo Oil Co., 53 S. D. 77, 220 N. W. 146 (1928); Newton v. Allis, 16 Wis. 197 (1862). See cases cited in n. 22, supra; see also Miklautsch v. Dominick, 452 P. 2d 438 (Alaska 1969); Brown v. Nolan, 98 Cal. App. 3d 445, 159 Cal. Rptr. 469 (1979); Schnute Holtman Co. v. Sweeney, 136 Ky. 773, 125 S. W. 180 (1910); Watkins v. W. E. Neiler Co., 135 Minn. 343, 160 N. W. 864 (1917); Petrosky v. Flanagan, 38 Minn. 26, 35 N. W. 665 (1887); Woolsey v. O’Brien, 23 Minn. 71, 72 (1876); Morris-Turner Live Stock Co. v. Director General of Railroads, 266 F. 600 (Mont. 1920); Margulis v. Solomon & Berck Co., 223 App. Div. 634, 229 N. Y. S. 157 (1928); Smith v. New York, O. & W. R. Co., 119 Misc. 506, 196 N. Y. S. 521 (1922); McNally v. Rowan, 101 App. Div. 342, 92 N. Y. S. 250, aff’d, 181 N. Y. 556, 74 N. E. 1120 (1905); Ranney v. Russell, 10 N. Y. Super. 689, 690 (1854); Benda v. Fana, 10 Ohio St. 2d 259, 227 N. E. 2d 197 (1967); but see Terry v. Burger, 6 Ohio App. 2d 53, 216 N. E. 383 (1966). Some commentators assume that the Rule, even when applicable, operates to deny costs to a prevailing plaintiff and not to impose liability for defendants’ costs on that plaintiff. Wright and Miller’s treatise indicates: “Rule 68 is intended to encourage settlements and avoid protracted litigation. It permits a party defending against a claim to make an offer of judgment. If the offer is not accepted, and the ultimate judgment is not more favorable than what was offered, the party who made the offer is not liable for costs accruing after the date of the offer. “This device was entirely new to the federal courts when the Federal Rules were adopted in 1938. But it was familiar in state practice. And the general principle, that a party may be denied costs when he sues vexatiously after refusing an offer of settlement, and recovers no more than he had been previously offered, has been held to be within the powers of an equity court regardless of the existence of a rule such as this one. “Although the privilege of an offer of settlement is extended only to the party defending against a claim, it furnishes a just procedure to all parties concerned. It is fair to the claimant because it does the defending party no good to make an offer of judgment that is not what the claimant might reasonably be expected to recover; he will not free himself of the costs if the judgment recovered is more than the offer. It is certainly fair to the defending party because it allows him to free himself of the court costs by offering to make a settlement. It is of great benefit to the court because it encourages settlements and discourages vexatious suits and thus diminishes the burden of litigation.” (Footnotes omitted.) (Emphasis supplied.) 12 C. Wright & A. Miller, Federal Practice and Procedure §3001, p. 56 (1973). Moore uses similar language in his treatise, stating that an offer of judgment will “operate to save [the defendant] the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered!’ 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 68.06, p. 68-13 (1979) (emphasis supplied). See also Dobie, The Federal Rules of Civil Procedure, 25 Va. L. Rev. 261, 304, n. 195 (1939) (“[I]f the offer is not accepted, it, of course, relieves the offering defendant of the burden of future costs, thereby constituting an inducement to the making of such offers”). Mr. Dodge stated: “This rule is based upon statutes which are widely prevalent in the states, and it affords a means for stopping the running of costs where the defendant admits that part of

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?

TOTTEN et ux. v. HARLOWE et al. No. 6675. United States Court of Appeals for the District of Columbia. Argued Nov. 18, 1936. Decided Dec. 21, 1936. Edward S. Duvall, Nelson Wilson, and Jacob N. Halper, all of Washington, D. C., for appellants. Paul E. Lesh and B. Woodruff Weaver, both of Washington, D. C., for appellees. Before MARTIN, C. J., and ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ. PER CURIAM. In this appeal appellants ask to have set aside a substitution of trustees under a deed of trust executed in October, 1929. Four hundred and ninety notes aggregating $385,000 were made and delivered on the security of the property conveyed in the trust. The original trustees were Luther A. Swartzell and Edmund D. Rheem. Good cause existed why they should be removed and new trustees substituted, and in February, 1931, a suit was instituted by Elizabeth S. Moore for this purpose. In March, 1931, the Supreme Court of the District made a decree in her suit substituting Francis W. Hill, Jr., and the Second National Bank of Washington as trustees. In the Moore suit no other noteholder appeared or was made a party, nor was the action prosecuted as a class suit. In November, 1932, appellees, holding notes of an approximate value of $88,000 secured by the deed of trust, sought in the same court judicial foreclosure of the trust and the appointment of a receiver pendente lite, alleging default in payment of taxes. The court appointed a receiver, who operated the property continuously thereafter until November 27, 1935, when the decree now appealed from was signed. The receiver paid the taxes and ended the default. Howe Totten, one of appellants, was at the time of the institution of the suit owner of the property, and Priscilla S. Totten, coappellant, his wife, was made a party solely because of her inchoate right of dower. Subpoenas were directed to both appellants, and Howe Totten appeared — but Mrs. Totten was not served, though an alias subpoena and a pluries subpoena were issued during the progress of the receivership. A second pluries subpoena was issued in. 1934 and served. The first question presented arises as the result of her motion, by special appearance, to quash the service of this subpoena for failure to serve within proper time. The trial court found there had been no discontinuance and no prejudice and overruled the motion. This was correct. Besides — Mrs. Totten has since pleaded to the merits and thus waived her special appearance. See Guarantee Savings, Loan & Inv. Company v. Pendleton, 14 App.D.C. 384; Boss v. Hagan, 49 App.D.C. 106, 261 F. 254, 8 A.L.R. 1508. On December 5, 1934, the lower court granted appellees’ motion for leave to file an amendment to the bill designed. to secure the appointment of new trustees on the theory that the substitution of trustees in the Mo'ore suit had been ineffectual. Appellants answered this amendment on December 26th. Thereafter, in February, 1935, they moved to set aside the order appointing the receiver, alleging payment of the taxes, to which motion appellees countered by asking leave to file an amendment alleging default in the payment of the principal of the debt. Leave to amend was in this instance denied. What the court below did was to confine the amendment of the bill to the single object of securing a reappointment of the same trustees. The complaint was otherwise dismissed, and the only error complained of by appellants on this -appeal is that the same trustees formerly appointed in the Moore suit were reappointefi in the present suit, the theory being that the appointment in the first instance was in all respects correct and that the action of the court in holding it ineffectual was error. But in either case the result is the same. In this respect nothing that happened can prejudice appellants’ interests, and therefore there is nothing of a practical nature of which they may complain. The court, in declining to permit an amendment of the bill to show a default in the entire debt, went as far in their favor as they had any right to expect or to demand, and the case below left them in possession of the property in spite of the default and with the same trustees, of whom they do not complain. In these circumstances it seems to us that the appeal is wholly bootless, since in either view the result will be the same. However, since the question whether the substitution in the Moore suit was or was not correct was urged on us, we have given that question consideration. The statute (title 25, § 204, D.C.Code of 1929) provides that whenever it becomes proper to appoint new trustees “it shall be lawful for any party interested in the execution of such trusts to apply to said court by petition, setting forth the appropriate facts and asking for the appointment of a new trustee in his place, * * * Provided, That any rule to show cause issued in such case shall be served upon the existing trustee, as provided in said sections [sections 201, 209].” While we are of opinion that the statute might desirably have contained a provision requiring notice, actual or constructive, to all parties in interest, it does not; and a similar statute in the state of Maryland (Code Pub.Gen.Laws 1924, art. 16, § 97), applicable to the appointment of trustees to sell and apply the proceeds of a decedent’s real or personal property to the payment of debts, provides: “the court, upon the petition of any person interested in the sale of such property, may appoint a trustee,” etc. And the Court of Appeals of Maryland, construing this statute, which it will be observed is in almost identical language with that of the District of Columbia, said: “It is contended, hpwever, that the court was without jurisdiction to make the appointment of trustees in this case, because all the parties in interest were not made parties to the proceedings. There is no force in this objection. Under the provisions of Code, art. 16, § 79, upon the petition of any person interested in the property the court may appoint the trustee.” Kennard v. Bernard, 98 Md. 513, 56 A. 793, 794. The same doctrine is announced in Jencks v. Safe Deposit & Trust Co., 120 Md. 626, 87 A. 1031, and Fulton v. Harman, 44 Md. 251. In all three cases the Court of Appeals of Maryland held that it was not necessary to have a class or representative suit, but that by the terms of the statute the application could be made by any party in interest. Because a contrary view of this question might disturb titles to real estate acquired through substituted trustees appointed at the instance of only a part of the parties in interest, and because also of the precise language of the statute itself and the lack of procedural provisions providing for bringing in other parties, we adopt the view expressed by the Maryland court, and in that view we are of opinion that the appointment of trustees in the Moore suit was validly made. But because in this case there was no prejudice to appellants, and because also all parties in interest were properly before the court, and the court under those conditions had undoubted jurisdiction to appoint new trustees if proper cause was shown therefor, we are of opinion that the substitution of the same trustees in the later suit was harmless error and, therefore, affirm the decree of the court below. Affirmed.

What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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 E. WHITE, Plaintiff-Appellee, v. ARCO/POLYMERS, INC. and Oil, Chemical & Atomic Workers Union, AFL-CIO, Local No. 4-227, Defendants-Appellants. No. 82-2505. United States Court of Appeals, Fifth Circuit. Dec. 12, 1983. Baker & Botts, Richard R. Brann, Douglas W. Sanders, Houston, Tex., for ARCO. Bray & Watson, Patrick M. Flynn, Houston, Tex., for OCAW. Mandell & Wright, Sidney Ravkind, Houston, Tex., for plaintiff-appellee. Before WISDOM, REAvLEY, and JOHNSON, Circuit Judges. JOHNSON, Circuit Judge: The district court found that ARCO/Polymers, Inc. (ARCO) fired employee Frank E. White without just cause, in violation of its collective bargaining agreement with the Oil, Chemical & Atomic Workers International Union, Local 4-227, AFL-CIO (OCAW), and that OCAW violated its duty of fair representation to White by dropping his discharge grievance short of arbitration. ARCO and OCAW contend that the district court clearly erred in finding that White was a nonprobationary employee entitled to the protection of the just cause and arbitration provisions of the collective bargaining agreement. We agree. The judgment of the district court is reversed. I. On November 11, 1974, White, a black man, began work for ARCO as a probationary Operator Trainee in the Styrene Unit of ARCO’s Harris County, Texas petrochemical manufacturing plant. The terms and conditions of White’s employment were set by ARCO’s 1973-75 collective bargaining agreement with OCAW Local 4-227. That contract provided that new employees, like White, were on probation for the first ninety days worked. Probationary employees were not covered by the “just cause for discharge” and “grievance procedure” provisions of the contract. Management could fire them simply for general dissatisfaction with their progress, efficiency, or attitudes; if it did, they had no right to expect the Union to champion their claims for redress. In mid-February 1975, ARCO and OCAW signed a new two-year collective bargaining agreement. The 1975-77 version of their contract extended the probationary period from ninety days worked to 120 days worked. All other pertinent provisions remained the same. On May 8, 1975, ARCO fired White. It gave as its reasons White’s supervisors’ reports that White had now shown initiative in learning his duties, that he did not adequately perform the duties assigned to him, and that he did not get along with his co-workers. White promptly filed a written grievance through OCAW Local 4-227 in which he claimed that his termination was without just cause. The Union pressed White’s grievance through the first three steps of the grievance procedure, but at each step ARCO denied the grievance. At the conclusion of the third step, the Union decided that ARCO was right in contending that White was a probationary employee, concluded that ARCO had shown reasons adequate to justify its decision not to make him a permanent employee, and elected to withdraw the grievance. In late June 1975, White filed a charge against the Union with the Equal Employment Opportunity Commission (EEOC) claiming that the Union had discriminated against him because of his race. In late August 1976, the EEOC issued a determination finding that no reasonable cause existed to believe that the Union had violated Title VII of the Civil Rights Act of 1964 in the manner alleged. White filed this action the following day. White’s original complaint charged that ARCO and OCAW had discriminated against him on the basis of race, in violation of 42 U.S.C. § 1981, and that OCAW had breached its duty of fair representation, in violation of 29 U.S.C. § 151, et seq. White’s legal theory supporting the fair representation charge was that, notwithstanding the fact that he had been fired on the last day of the 120-days worked probationary period, he was entitled to the benefit of the 90-days worked probationary period (and thus the just cause and arbitration provisions) of the contract in force at the time he was hired. In November 1980 White filed a proposed pre-trial order and proposed findings of fact and conclusions of law. In both, he admitted that he had been terminated on the final day of the 120-days worked probationary period; in both, he adhered to his assertion that his probationary period ended with his ninetieth day worked. ARCO and OCAW’s proposed pretrial order stated their agreement with White’s concession that he had been terminated on the final day of the 120-days worked probationary period. They defended by denying that racial discrimination had played any part in their respective decisions, and by arguing that White’s probationary term was governed by the 1975-77 collective bargaining agreement. In September 1981, White filed an amended complaint. It was in all respects identical to his original complaint, except that he added to the paragraph charging OCAW with breach of its duty of fair representation the assertion that “Plaintiff[] had a contractual right to be evaluated under the 90-day contract provision, and Defendant ARCO violated that right.” At trial, White testified that he was discharged after the expiration of the 90-days worked probationary period which, according to White, was the only probationary period applicable to him. At no time did White testify that his discharge occurred after the 120-days worked probationary period. Neither did any other witness. To the extent that it was discussed, the testimony was to the contrary. So matters stood until White submitted his post-trial proposed findings of fact and conclusions of law. In that memorandum, White reasserted his earlier-espoused theory that he was legally entitled to consideration under the superseded contract’s 90-days worked probationary period. But in addition he contended for the first time that he had completed the 120-days worked probationary period. He calculated the total number of working days elapsed between his first day and his discharge at 125. From that computation and from his claim of right to the original period, he argued that by any measure he was a nonproba-tionary employee on the date of his discharge. ARCO met White’s new factual assertion head on. Apparently eschewing argument that his earlier admissions, and failure to raise this theory during trial, barred its assertion post-trial, it contended that White’s computation was erroneous in its failure to deduct holidays and absences in order to arrive at days actually worked. The district court found that neither ARCO nor OCAW discriminated against White because of his race, and entered judgment for the defendant on White’s section 1981 claim. But as to his breach of contract and fair representation claims, the district court found for White wholly on the basis of his new theory. Taking judicial notice of the • calendar and subtracting weekends and holidays listed in the Union contract, it concluded that White was fired on his 125th day of work. The court buttressed this conclusion by reference to a written evaluation of White made by an ARCO employee and entered into evidence by ARCO, in which the employee stated that he had kept up with the day’s work by White and White had “made it” through probation. On the basis of that evidence, the court found that White was a nonproba-tionary employee on the date of his discharge. The court’s legal conclusions rested on that finding. The district court decided that “in making the decision to fire Mr. White, ARCO used standards appropriate for a probationary employee but inappropriate for a permanent employee subject to termination only for just cause.” As to OCAW, the district court found that “[t]he Union withdrew the grievance because it accepted without investigation the Company’s contention that Mr. White was a probationary employee and therefore not entitled to go through the grievance procedure” and because it believed that “Mr. White was not performing well enough to become a permanent employee.” The court concluded that “in accepting without question the Company position that Mr. White was on probation when fired, in failing to ascertain that Mr. White actually had completed probation at the time of his termination, and in dropping his grievance on the unfounded assumption that he was not entitled to go through the grievance procedure, the Union failed to represent Mr. White fairly.” It held ARCO liable for breaching the contract and OCAW liable for violating its duty of fair representation to White. ARCO and OCAW responded with a joint motion for reconsideration. They pointed out that White did not claim, either before or during trial, that he had completed the 120-days worked probationary period, but to the contrary had repeatedly admitted that he was terminated on the final day of that period. They noted that an accurate computation of days worked would require deduction of days absent. Finally, they asked that the court reopen the record to allow them to document the fact that White had not completed the 120-day period. The court refused, stating that it believed that White’s pleadings and testimony gave adequate notice that his completion of the 120-day period was at issue; it also rested its decision on ARCO’s failure to assert, in response to White’s post-trial proposed findings of fact, that the presence of the days-worked issue was a surprise. ARCO and OCAW appeal. II. As the district court correctly observed, the burden of adducing adequate, persuasive evidence fell to plaintiff White. In order to prevail on his claims that ARCO breached the Union contract and that OCAW failed fairly to represent him, White first had to establish that he was not a probationary employee and hence was entitled to the protection of the just cause and grievance procedure provisions of the contract. White ultimately relied on the assertion that he had worked more days than those constituting the probationary period in order to establish the critical prerequisite of nonprobationary status; the district court predicated its conclusions of liability on a finding that he indeed had completed the lengthier period. The question is whether that factual finding is clearly erroneous. The Supreme Court has held that a finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 1788 n. 14, 72 L.Ed.2d 66 (1982) quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). This Court has elaborated on that explication with explanation that clear error exists where (1) the findings are without substantial evidence to support them, (2) the court misapprehended the effect of the evidence, and (3) if, although there is evidence which if credible would be substantial, the force and effect of the testimony, considered as a whole, convinces the Court that the findings are so against the great preponderance of the credible testimony that they do not reflect or represent the truth and right of the case. Merchants National Bank v. Dredge General G.L. Gil-lispie, 663 F.2d 1338, 1341 (5th Cir.1981), cert. dismissed, 456 U.S. 966, 102 S.Ct. 2263, 72 L.Ed.2d 865 (1982), citing Western Cotto-noil Co. v. Hodges, 218 F.2d 158, 161 (5th Cir.1954). Normally, factual assertions in pleadings and pretrial orders are considered to be judicial admissions conclusively binding on the party who made them, Myers v. Manchester Insurance & Indemnity Co., 572 F.2d 134 (5th Cir.1978); State Farm Mutual Auto Insurance Co. v. Worthington, 405 F.2d 688, 686 (8th Cir.1968); Mull v. Ford Motor Co., 368 F.2d 713, 716 (2d Cir.1966). ARCO and OCAW did not insist on strict adherence to this precept: instead of arguing when the issue came up that it was foreclosed by White's earlier admissions that he had been dismissed on the final day of the 120-days worked probationary period, they argued that White's computation of the number of days he had worked was incorrect because it omitted days absent. By failing to contend that White's admissions barred his subsequent assertion of the contrary position, they effectively waived the argument that the issue was irreversibly settled. Loose v. Offshore Navigation, Inc., 670 F.2d 493, 498 (5th Cir.1982); Genusa v. City of Peoria, 619 F.2d 1203, 1208 (7th Cir.1980). But although White's admissions can no longer be considered conclusive, they do still operate as adverse evidentiary admissions properly before the district court in its resolution of the factual issue. Frederic P. Wiedersum Associates v. National Homes Construction Corp., 540 F.2d 62, 65 (2d Cir.1976); see ante note 5. The relevant question is, then, whether White introduced at trial evidence sufficient to show that, notwithstanding his prior concessions to the contrary, he actually had worked more than 120 days. Our examination of the record leads us to the firm conclusion that he did not. At trial, he did not testify that he had worked more than 120 days, see ante note 3. The only witnesses mentioning the point at all were defense witnesses who testified that White had not completed the 120-days worked probationary period when he was terminated; White did not cross-examine those witnesses on the point. That the Union processed his grievance through the first three levels cannot be considered to raise an inference that he had finished probation: the district court specifically found that the Union did not consider his employment status until completion of the third level, when it accepted ARCO's position that he was still on probation when discharged. Neither can we attach persuasive import to the defendant's failure to introduce records showing that White missed work on scheduled working days. To do so would, in the absence of the defense's need to refute affirmative evidence that he indeed had completed probation, effectively shift the burden of proof to the defense. The only indication in the record that White had obtained permanent status was a co-worker’s statement, contained in a performance evaluation submitted by ARCO, that it “looked like” White had made it through his probationary period and “if” he made it, the company had “messed up.” The comment was not mentioned at trial. There is no evidence on what sources, if any, the employee relied in making his comment. Review of the record as a whole leads us to the conclusion that there is not substantial evidence to support the finding that White completed his probationary period before he was terminated. That finding, and the district court’s conclusions of liability predicated on it, must fall. This includes the finding of liability against the Union as well as the finding of liability against the Company. The district court found that the Union violated its duty of fair representation to White by dropping his grievance short of arbitration on the unfounded assumption that he was a probationary employee not entitled to the grievance procedure. A breach of the statutory duty of fair representation occurs only when a union acts arbitrarily, discriminatorily, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). In the instant case, the Union took White’s grievance through the first three steps of the grievance procedure. See ante 720 F.2d 1393 & n. 1. Only after proceeding through the third step and hearing testimony from supervisors and employees that White’s performance was unsatisfactory did the Union elect to withdraw the grievance. At this point, the Union concluded that ARCO was correct in contending that White was a probationary employee and that ARCO had offered adequate reasons to justify its decision to discharge him. The district court found that the Union did not act in good faith because it did not undertake an independent investigation of White’s probationary status. The court stated that it would have been a simple task for the Union to tabulate the number of days that White worked. Despite the simplicity of the task, however, any failure to calculate the number of days White worked does not establish bad faith on the part of the Union in the instant case. It was not until White filed his post-trial proposed findings of fact and conclusions of law that he contended for the first time that he had completed the 120-day probationary period. Since prior to that time White did not contest that he had been fired on the last day of the 120-day period and argued only that the 90-day period applied to him, the Union’s failure to investigate the number of days he had worked could not constitute action in bad faith. The district court incorrectly concluded, therefore, that the Union breached its statutory duty of fair representation. III. White has not asked this Court to rule on his original argument that he was legally entitled to the protection of the 90-days worked probationary period. Neither has he asked that the case be remanded to the district court for its consideration of that argument if the court’s initial disposition of this case is reversed. He has abandoned the argument. Richardson v. City of Indianapolis, 658 F.2d 494, 499 (7th Cir. 1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982). In this circumstance, we can only reverse the district court’s judgment as to both the Company and the Union. REVERSED. . Under the 1975-77 Union contract, the filing of a written grievance constituted the first step of the grievance procedure. The second step of the grievance procedure was a meeting between the general foreman and chief committeeman. The third step was an appeal to the plant manager. The fourth step was arbitration. . He also included class allegations on behalf of similarly situated black and Mexican-American employees at the ARCO plant. White subsequently filed an unopposed motion to dismiss class allegations. The motion was promptly granted. . The pertinent portions of White’s testimony are as follows: Q. Can you tell from the last article, looks like 28, what the term of this new agreement is, when it was effective? A. This agreement shall be effective from January 8, 1975 through January 7, 1977 and thereafter for — from year to year unless terminated by either party. Q. It sounds like they finally reached an agreement in February and then made it effective back to January 8, 1975, isn’t that right? A. I don’t know if that’s right or not. Because I’m working with the same union and we changed a lot of things in the contract and a lot of things weren’t changed on the existing contract. Q. That’s the way it happens in negotiations. A. Right. But if I was on my same job, the ones who was hired under 90-day contracts, this 90 days binds regardless when January comes they get a new 120 days then under the old contract as far as the probation period. Q. There is no doubt in your mind that this new contract the one for 1975-77 had 120 working days probation in it? A. Right. I know that. But that’s the one I was hired under. Q. You were hired under contract that expired January 7, 1975? A. Right. * * * * * * Q. You didn’t know about the 120 days probation, you didn’t know about that? A. I wasn’t concerned really because I wasn’t under 120 days probation. I was going by what my representative I have tells me. I was under a 90 day probation period. I wasn’t concerned at the time with 120 days. . White does not appeal that decision. . Admissions made in superseded pleadings are as a general rule considered to lose their binding force, and to have value only as evidentiary admissions. 3 Moore's Federal Practice & Procedure ¶ 15.08[7] at 15-128 (1982), citing Borel v. United States Casualty Co., 233 F.2d 385, case 11(5th Cir.1956). But where, as in this case, the amendment only adds allegations, deleting nothing stated in the prior pleadings, admissions made in the prior pleadings continue to have conclusive effect. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 601 (5th Cir. 1981). . Careful examination of the district court's decision discloses that it accepted the defendants' interpretation of the probationary period to include only days actually worked, rather than working days elapsed since hire. Before trial, White's action was consolidated with a similar one brought by former ARCO employee Freddie Woods. Woods was hired on March 11, 1974 and discharged on July 19, 1974, in part for excessive absenteeism. Woods' attendance records, submitted into evidence by ARCO in support of his claim that it fired Woods for legitimate business reasons, showed that of 98 working days between his hire and discharge, he was absent 9 and worked 89. The district court found that Woods was discharged before he completed the 90-day probationary period then indisputably in effect. Refusal to accept the defendants' interpretation of the probationary period would have mandated a finding that Woods had attained permanent status before he was fired. . White and the district court draw a negative implication from the fact that ARCO submitted co-plaintiff Woods’ attendance record, but did not offer White’s. The comparison is flawed. Woods’ attendance was in dispute because that was one of the reasons given by ARCO for his discharge, see ante note 6. White was discharged for reasons other than absenteeism. As neither'the pleadings, the course of trial, nor defensive needs required the submission of White’s attendance records, no inferences can be drawn from their absence. . Pursuant to the collective bargaining agreement in the instant case, probationary employees were not entitled to the grievance procedures.

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

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

Anthony L. MANNI, Defendant, Appellant, v. UNITED STATES of America, Appellee. No. 6956. United States Court of Appeals First Circuit. March 28, 1968. Joseph D. Steinfield, Boston, Mass., by appointment of the Court, with whom Hill & Barlow, Boston, Mass., was on brief, for appellant. John M. Callahan, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Albert F. Cullen, Asst. U. S. Atty., were on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. This is an appeal from a conviction on three counts of an indictment charging violation of the Federal Firearms Act, 15 U.S.C. § 902(e). The only question raised is the propriety of the court’s denial, after an evidentiary hearing, of defendant’s motion to suppress the firearms in question, together with some admissions made by the defendant. 270 F.Supp. 103. The court warrantably found the following. Treasury agents, one Ho-ban and another, learned that a man by the name of Anthony Manni, living at a certain address in Massachusetts, had purchased eleven small arms in New Hampshire. Hoban obtained a description and the maker’s numbers of the arms, and a photograph of Manni. He also learned from the state crimihal 'records that an Anthony Manni of the same address had been convicted of a felony, a necessary element of the offense stated in section 902(e). Even if this was the same Manni, however, Hoban did not know whether Manni had brought the arms into Massachusetts, another element of the offense, or, if so, where they were. On four occasions Hoban visited Manni’s house with another agent, but found only his wife. He told her that he was a Treasury Agent who wanted to talk to her husband, asked her (as he testified without contradiction) where Manni could be found, and tried without success to find him. On March 31, 1966 the agents called again, and Mrs. Manni informed them that Manni was out. They drove away and parked nearby. Ten minutes later they saw defendant Manni, recognizable from his photograph, enter the apartment building. They followed, and when they reached his door it was partly open. “Hoban knocked and the defendant turned toward him. Hoban held up his pocket commission and told the defendant he was from the Treasury Department and had been trying to get hold of him. Manni said: ‘Come in.’ ” 270 F.Supp. at 105. The agents entered, told defendant of their purpose, and stated that he need not answer questions and was entitled to the advice of a lawyer. In plain sight, in a cabinet with a glass door, Ho.ban could see a number of firearms, some of which, when asked, defendant admitted buying in New Hampshire, but added that he had brought them to Massachusetts disassembled. Hoban requested permission to inspect them, and on receiving it, discovered some on which the numbers coincided with his records. He then asked the defendant if he had done time in state prison, and upon receiving an affirmative answer arrested him, seizing the firearms in the cabinet. No other search was conducted. The court found that before the agents’ entry, conversation, and observation, they did not have probable cause to obtain a warrant. It also found that the purpose of the entry was to engage in the conversation the agents had been seeking for some time, and that Manni knew of this purpose. On this record defendant’s case is even less tenable than was the defendant’s in Robbins v. MacKenzie, 1 Cir., 1966, 364 F.2d 45, cert. denied 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140. While we do not say that the fact that the officers fail to explain to a householder that he need not admit them may not sometimes be relevant on the issue of voluntariness of the consent, the consent was clearly voluntary here unless such a warning must always be given. This entry took place before Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Cf. Stoval v. Denno, 1966, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Whether post-Mmmcto we would have to hold that the officer must not only inform the defendant that he need not talk, but must also inform him that he need not afford entry to talk although defendant has an apparent option to talk outside, we need not determine. See dissenting opinion of Mr. Justice White in Commonwealth v. Painten, 1968, 389 U.S. 560 at 566-567, 88 S.Ct. 660, 19 L.Ed.2d 770. Nor need we decide whether opening a glass door to reach a visible object, as distinguished from picking it up when lying loose, e. g., Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Fagundes v. United States, 1 Cir., 1965, 340 F.2d 673, is a search. What the officers had already seen and heard justified the arrest, and the arrest, in turn, justified the seizure. Affirmed. . Hoban did not offer to supply a lawyer, but when defendant later realized he was in trouble, he asked permission to call his lawyer and put through a call, but found him away. . This supported finding distinguishes our recent case of Niro v. United States, 1 Cir., 1968, 388 F.2d 535, even if we were to assume that the principle there enunciated applies when the agents were merely seeking to talk rather than to bypass the necessity of obtaining a warrant. . The problems in Commonwealth of Mass, v. Painten, 1 Cir., 1966, 368 F.2d 142, cert. dismissed, 389 U.S. 560, 88 S.Ct. 660, 19 L.Ed.2d 770 are not involved here. . The defendant’s ready complaisance may be wondered at, but the answer is found in his mistaken (see section 901(3)) belief that carrying disassembled guns was not interdicted. . We remain of the view that proving consent to a search after a voluntary entry requires a strong showing. See Robbins v. MacKenzie, supra, 364 F.2d at 49.

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

Are there two issues in the case?

John Howard GRIMES, Plaintiff-Appellant, v. OWENS-CORNING FIBERGLASS CORPORATION, a Delaware corporation; Pittsburgh Corning Corporation, a Pennsylvania corporation; Celotex Corporation, a Delaware corporation; Fiberboard Corporation, Pabco Industrial Products Division, a Delaware corporation; Armstrong Cork Company, a Pennsylvania corporation; Eagle-Picher Industries, Inc., an Ohio corporation; Keene Corporation, a Delaware corporation; H.K. Porter Company, Inc., Thermoid Division, a Delaware corporation; Asbestos Textile Institute, an unincorporated trade association, Defendants-Appellees. Doris E. SAUNDERS, Personal Representative, of the Estate of Melvin H. Saunders, Plaintiff-Appellant, and Melvin H. Saunders; Clara Faulk Long, Administratrix and Personal Representative of the Estate of Norman Long; deceased; Eleanor M. Adams, Executrix and Personal Representative of the Estate of Norman Long, deceased; Matilene S. Shank, Executrix and Personal Representative of the Estate of Charles G. Shank, deceased; Kathryn C. Furlough, Executrix and Personal Representative of the Estate of Isaac Furlough, deceased, Plaintiffs, v. PORTER-HAYDEN COMPANY, a Maryland corporation, Defendant-Appellee, and Pittsburgh Corning Corporation, a Pennsylvania corporation; Celotex Corporation, a Delaware corporation; Eagle-Picher Industries, Inc., an Ohio corporation; Owens-Corning Fiberglass Corporation, Keene Corporation, a Delaware corporation; H.K. Porter Company, Inc., Thermoid Division, a Delaware corporation; Raymark Industries, Inc., a Connecticut Corporation; Owens-Illinois Glass Company, an Ohio Corporation; Southern Textile Company, a Delaware Corporation, Defendants. Nos. 86-2586, 86-2587. United States Court of Appeals, Fourth Circuit. Argued Oct. 8, 1987. Decided April 8, 1988. Joel I. Klein, Washington, D.C., (Christopher D. Cerf, Onek, Klein & Farr, Washington, D.C., Robert R. Hatten, Patten, Wornom & Watkins, Newport News, Va., Richard Glasser, Glasser & Glasser, Norfolk, Va., on brief), for plaintiffs-appellants. John Y. Perason, Jr. (Willcox & Savage, P.C., Norfolk, Va., Carter A. Anderson, Jr., Anderson & Padrick, Virginia Beach, Va., on brief), for defendants-appellees. Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge. ERVIN, Circuit Judge: Plaintiffs Saunders and Grimes appeal from the dismissal of their asbestosis claims as barred under the Virginia statute of limitations. Va.Code Ann. § 8.01-243(A). They contend that the Virginia statute does not apply retroactively to them, rather, admiralty law provides the proper limitations period. Alternatively, plaintiff Saunders argues that an amendment changing the time of accrual for the Virginia statute of limitations to the date on which the diagnosis is communicated to the patient has retroactive effect and subsequently saves his claim. Va.Code Ann. § 8.01-249.4. We agree with Saunders and Grimes and find that the admiralty statute of limitations applies rather than that of Virginia state law. Accordingly, we reverse the district court’s dismissal of plaintiffs’ claims. We need not address the issue raised by Saunders concerning the retroactivity of the amendment to the Virginia statute of limitations. I. Melvin H. Saunders, now deceased, and John Howard Grimes were employed by shipyard companies until they became totally disabled by asbestosis. On November 6,1981, Mr. Saunders was told by an examining physician that he possibly had asbestosis. This condition was not confirmed until March 16, 1982. On December 9, 1983, plaintiff Saunders filed this products liability action against various asbestos-related industries in the United States District Court for the Eastern District of Virginia. Plaintiff Grimes was diagnosed as having asbestosis on February 22, 1982, and filed suit more than two years later on May 30, 1984. On June 6, 1986, the defendant manufacturers moved to dismiss the plaintiffs’ claims as time-barred. Treating the motions to dismiss as motions for summary judgment, the court dismissed the claims based on two findings. First, the district court below found that the holding in Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir.1985) (en banc) cert. denied, Oman v. H.K. Porter Co., 474 U.S. 970, 106 S.Ct. 351, 88 L.Ed.2d 319 (1985), applied retroactively. In Oman, this court overruled White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981) (White II), and held that admiralty jurisdiction does not extend to damage claims by land-based shipyard employees for damages induced by asbestos exposure. The Oman plaintiffs filed their claims more than two years after the date on which their causes of action accrued. Pursuant to our ruling in that case, the claims were subject to Virginia’s two-year statute of limitations rather than admiralty’s three-year statute of limitations, and were thus barred. In this case, Saunders and Grimes timely filed under the three-year admiralty statute of limitations. However, if the two-year Virginia limitations statute applies, Grimes’ claim is barred, and Saunders’ claim survives only if the 1985 amendment is applied retroactively. Second, the district court found Saunders’ alternative claim was not preserved by the 1985 amendment to the Virginia statute of limitations. Prior to July 1, 1985, actions for asbestos-induced injuries, like all personal injury actions, were deemed to accrue “from the date the injury is sustained in the case of injury to the person ...” Va.Code Ann. § 8.01-230; Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981). Saunders stipulated that his disease was diagnosable as of November 6, 1981. As his complaint was not filed until December 10, 1983, Saunders’ claim is barred under the general Virginia statute of limitations. Pursuant to Va. Code Ann. § 8.01-249.4 as amended July 1,1985, asbestos claims accrue when a diagnosis of an asbestos-related disease is communicated to the patient. For Saunders, the date of communication was arguably March 16,1982, placing his claim within the limitations period of the amended statute. The district court found that the amendment did not apply retroactively and dismissed Saunders’ alternative claim. II. The primary issue before this court is whether the rule in Oman, requiring use of Virginia’s two-year statute of limitations instead of admiralty’s three-year statute, applies retroactively to the cases at bar. At first blush, the issue here is almost the same that this court faced in Zemonick v. Consolidation Coal Co., 762 F.2d 381 (4th Cir.1985), rev’d 796 F.2d 1546 (4th Cir.1986) (en banc), cert. denied, — U.S. -, 107 S.Ct. 671, 93 L.Ed.2d 723 (1986). In Zemonick, we considered which statute of limitations applied to an employee suit against an employer and a union. Plaintiff had filed his action within the applicable state limitations period. While the case was pending, the Supreme Court established a six-month federal limitations period in an identical action. DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In DelCostello, the Supreme Court applied the new statute of limitations retroactively to the parties before it without undertaking the balancing test suggested by Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Zemonick, this court ultimately held en banc that the absence of a Chevron test in DelCostello indicated that the new limitations period was to apply uniformly and not on a case-by-case basis. In dictum, we noted that even under a Chevron analysis, the new statute of limitations should apply retroactively. The DelCostello-Zemonick line of analysis closely parallels the relationship between Oman and the claims of Saunders and Grimes. As with DelCostello, our holding in Oman did not include a Chevron analysis. The defendant manufacturers argue that Zemonick dictates that if the pivotal opinion establishing a new limitations period does not undertake a Chevron analysis, the new statute of limitations applies retroactively without exception. They contend that the omission of Chevron analysis in Oman signals that Virginia’s two-year statute of limitations applies retroactively to Saunders’ and Grimes’ claims. It is clear that the district court agreed with this analysis when it found appellants’ claims were untimely. In light of two recent Supreme Court opinions, however, these comparisons between Zemonick and the cases before us are ineffective. In St. Francis College v. Al-Khazraji, — U.S. -, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), and a follow up decision in Goodman v. Lukens Steel Co., — U.S. -, 107 S.Ct. 2617, 96 L.Ed.2d 592 (1987), the Supreme Court did not focus on the controlling opinion’s use or nonuse of the Chevron test when considering re-troactivity. Instead, the Court looked at whether the law in the plaintiff’s circuit was unclear at the time his or her cause of action accrued. This threshold factor for nonretroactivity is essentially the first of the three qualifications in the Chevron test. In these two opinions, the Court emphasized that under Chevron, nonretroactivity is appropriate when a decision overrules “clear Circuit precedent on which the complaining party is entitled to rely.” Goodman at 2621. Using this standard, the court applied a two-year statute of limitations, Pa.Stat. Ann. Tit. 12 § 34, retroactively in Goodman and prospectively in St. Francis. When Goodman filed his § 1981 claim in 1973, the Third Circuit had not ruled on which statute of limitations applied. In 1977, the Third Circuit, in a holding since overruled, established a six-year statute of limitations, Pa.Stat.Ann. tit. 12 § 31, for § 1981 claims. Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894 (1977), overruled in Goodman v. Lukens Steel Co., 777 F.2d 113 (3rd Cir.1985). In 1980, during the time period when the six-year statute of limitations was clearly in effect, appellant in St. Francis filed his 1981 claim. In 1985, the Third Circuit in Goodman reversed itself and endorsed the two-year limitations period. Because plaintiff Goodman had no clear indication, of which statute applied, and thus incurred no detrimental reliance, the Supreme Court applied the new two-year statute of limitations retroactively. In St. Francis, the Court recognized that appellant did have clear circuit precedent on which he was entitled to rely. With this finding appellant satisfied the first tier of the Chevron test. Upon further examination, the Court also recognized that the requirements of the second and third tier were met, and endorsed nonretroactivity in St. Francis. Thus, in both cases, Goodman and St. Francis, the Supreme Court’s decisions turned on whether there was “clear Circuit precedent on which the complaining party was entitled to rely.” Goodman at 2621. III. In light of the holdings in St. Francis and Goodman, we do not apply automatically the new limitations period established in Oman to appellants’ claims. Both Saunders and Grimes filed their suits when Fourth Circuit precedent clearly held that admiralty’s three-year statute of limitations applied to such claims. When Saunders and Grimes filed their claims: 1) a unanimous panel of the Fourth Circuit had expressly held that admiralty jurisdiction applied to such cases, White 11; 2) the Supreme Court had denied certiorari in White II; and 3) the Fourth Circuit had denied a later petition to reconsider White II en banc. Saunders and Grimes need not prove actual reliance on this precedent, but only the existence of “past precedent on which litigants may have relied.” Chevron, 404 U.S. at 106, 92 S.Ct. at 355. Having found the threshold tier of the Chevron test satisfied, we subsequently consider the facts in terms of the second and third tiers. In Cash v. Califano, 621 F.2d 626 (1980), this court discussed the interrelated nature of the three Chevron factors, indicating each separate tier need not be fully satisfied in order to preclude retroactivity. See, also Ramey v. Harber, 589 F.2d 753, 757-60 (4th Cir.1978), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979). However, because we find in this case that the second and third factors are independently satisfied, it is unnecessary to balance the three tiers among themselves. The second Chevron standard requires us to examine the purpose of the new statute of limitations and to determine whether retroactive application will further or retard its operation. Actually, this court did not create a new statute of limitations in Oman. We narrowed the scope of admiralty jurisdiction such that Virginia’s preexisting statute of limitations, Va.Code Ann. § 8.01-243(A), now controls. We look to Oman to discern the purpose of the change in jurisdiction in order to consider the second Chevron factor. In contrast to Zemonick, Oman does not identify a need for a national, uniform statute of limitations. Under the facts of Zem-onick, we recognized that retroactive application filled a particular need for uniformity in labor law. “ ‘[T]he importance of uniformity in limitations periods’ in labor law which ‘was a major consideration in the DelCostello opinion itself’ favors retroac-tivity.” Zemonick, 762 F.2d at 393, citing Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1315 (7th Cir.1984). Conversely in Oman, by limiting the exercise of admiralty jurisdiction, this court precluded the application of a uniform admiralty statute of limitation. Instead, each individual state determines the appropriate limitations period. Thus the absence of a uniform application is not a major concern in the analysis of the second factor. As stated in Oman, this court’s purpose for refusing to exercise admiralty jurisdiction rests in great part on the federal courts’ deference to the states’ sovereign powers. “Virginia’s statute of limitations is a matter of state concern, governed by state law, which we do not interfere with in this case.” Oman at 232. Arguably, Virginia’s sovereign powers are furthered by retroactive application of Oman. Upon closer look however, this court finds that nonretroactivity on such a limited scale as the one at bar does not infringe upon the sovereign rights of the Commonwealth of Virginia. Only a limited and identifiable class of possible claimants, those who were entitled to rely on White II, will be able to take advantage of the nonretroactive application of Oman. As discussed previously, these persons had absolutely no indication from this court that their claims would not fall within admiralty jurisdiction. The Virginia Supreme Court has held that the general policy of its limitations statutes is to prevent a plaintiff from purposefully delaying suit to the prejudice of the defendant. “In short, statutes of limitation serve an important and salutary purpose. Without them, defendants could find themselves at the mercy of unscrupulous plaintiffs who hoard evidence that supports their position while waiting for their prospective opponents to discard evidence that would help make a defense.” Burns v. Board of Supervisors of Stafford County, 227 Va. 354, 315 S.E.2d 856 (1984). The concerns of the Commonwealth’s Supreme Court do not arise with appellants’ claims. There is no evidence that Saunders or Grimes delayed filing claims in order to sabotage appellees’ defense. The manufacturers were not caught by surprise when Saunders and Grimes did file suit. For purposes of the second tier analysis, we find initially that no need exists for a national uniform statute of limitations. Furthermore, Virginia’s express rationale for its limitations periods has not been abused. In light of these findings we hold that the narrow exception created by nonretroactive application for those plaintiffs who relied on White II does not violate the sovereign powers of the Commonwealth of Virginia. The second tier of the Chevron test is satisfied. The third factor requires weighing the equities. Unlike the plaintiffs in Zemon-ick, Saunders and Grimes reasonably relied on clear circuit precedent when they filed their claims within the admiralty statute of limitations. Moreover, prospective application of Oman causes no gross inequity to appellee-manufacturers. At the time of Saunders’ and Grimes’ exposure, the manufacturers had no expectation that they would be shielded from liability by a change in admiralty law. Although all the parties came to court with clean hands, a balance of the equities favors Saunders and Grimes in light of their reliance on our ruling in White II. Thus, under the Chevron analysis, we do not apply our ruling in Oman retroactively to the claims of Saunders and Grimes. The district court’s summary judgment ruling in favor of the appellees is reversed. In light of this ruling, we do not address the issue raised by Saunders regarding Va.Code Ann. § 8.01-249.4 and its retroactive application. The case is remanded to the district court for proceedings consistent with this opinion. REVERSED AND REMANDED. . Doris L. Saunders is the personal representative of the estate of Mr. Saunders in this action. We refer interchangeably to Melvin and Doris Saunders as plaintiffs. . In Oman, this court adopted a nexus test by which we considered the following four factors in analyzing whether or not a given claim falls within admiralty jurisdiction: "(1) the function and role of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and the type of injury; and (4) traditional concepts of the role of admiralty law.” Oman at 230. First, under the facts in Oman, defendant-manufacturers marketed maritime products; however, plaintiffs functioned as pipe coverers and insulators, not sailors. Second, the involvement of ships was incidental to the nature of plaintiffs’ asbestos claims. Third, causes of asbestosis are not inherently linked to maritime activity. Fourth, the issues in plaintiffs’ suits did not require the special expertise of a court in admiralty. Only the initial part of the first factor favored plaintiffs’ position. Thus, this court in Oman found that admiralty jurisdiction does not extend to asbestos suits by land-based shipyard employees. . All parties involved accept that if admiralty jurisdiction is denied, Virginia’s general two-year personal injury statute of limitations applies. Va.Code Ann. § 8.01-243(A). As previously noted, the parties here dispute the application of the statute’s amendment. Va.Code Ann. § 8.01-249.4. We do not decide this question. . In White we found that the doctrine of laches applies to claims within admiralty jurisdiction. Pursuant to 46 U.S.C.App. § 763a, all maritime claims accruing since October, 1980, are controlled by a federal three-year statute of limitations. This change from laches to a federal statute of limitations is of no consequence in this case. Both sides stipulate, and the court agrees, that if admiralty jurisdiction is exercised, plaintiffs’ claims are timely. . In Chevron, the Supreme Court set forth three separate tests to be met in determining whether a decision should be applied other than retroactively. First, the decision to be applied nonretroac-tively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that 'we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Finally, we have weighed the inequity imposed by retroactive application.... Id. at 106, 107, 92 S.Ct. at 355, 355 (citations omitted).

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?

Frank L. BIRD, Trustee of the Frank L. Bird Profit Sharing Trust, Frank L. Bird, Individually, and Joan Shea, Appellees, v. SHEARSON LEHMAN/AMERICAN EXPRESS, INC., and Raymond R. Clements, Appellants. No. 721, Docket 90-7688. United States Court of Appeals, Second Circuit. Argued Dec. 13, 1990. Decided Jan. 17, 1991. Jeffrey L. Friedman, New York City (Theodore A. Krebsbach, New York City, on the brief), for appellants Shearson Lehman/American Express, Inc. and Raymond R. Clements. Donald R. Holtman, Hartford, Conn. (Katz & Seligman, Hartford, Conn., on the brief), for appellees Frank L. Bird, Trustee of the Frank L. Bird Profit Sharing Trust, Frank L. Bird, Individually, and Joan Shea. Before TIMBERS, KEARSE and MINER, Circuit Judges. TIMBERS, Circuit Judge: Appellants Shearson Lehman/American Express, Inc. (Shearson) and Raymond R. Clements appeal from an order entered July 16, 1990 in the District of Connecticut, Jose A. Cabranes, District Judge, denying their motion to compel arbitration of a claim brought by appellees Frank L. Bird, Individually and as Trustee of the Frank L. Bird Profit Sharing Trust, and Joan Shea for breach of fiduciary duty pursuant to the Employee Retirement Income Security Act (ERISA). 29 U.S.C. § 1001 et seq. (1988). On appeal, appellants contend that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. (1988),' requires that agreements to arbitrate statutory ERISA claims are enforceable. For the reasons that follow, we reverse the judgment of the district court and remand for proceedings consistent with this opinion, including arbitration forthwith. I. We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. Frank L. Bird is the Trustee and a participant and beneficiary in the Frank L. Bird Profit Sharing Trust (the Trust). Joan Shea is a participant and beneficiary in the Trust. The Trust was established to provide for the retirement of its participants and beneficiaries and is governed by the terms of ERISA. Raymond Clements, a broker and vice president of Shearson, solicited Bird as a client. Bird was interested in investing the assets of the Trust. At their first meeting, Bird alleges that he explained to Clements that the investment objectives for the Trust were long term growth and safety of the Trust’s assets. In his capacity as Trustee, Bird invested all the assets of the Trust in a securities account with Shearson. Bird signed Shearson’s standard “Customer’s Agreement” prior to opening the account. That agreement contained an arbitration clause which provided that “Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors of the New York Stock Exchange, Inc. and/or the American Stock Exchange, Inc. as I may elect.” All of the Trust’s assets, a total of $62,-205.56, were deposited in the account. Fifty-five transactions were made in the account between July 24, 1984 and May 28, 1986. At the end of that period, $13,427.53 remained in the account. Appellees allege that the assets of the Trust were diminished due to mishandling by appellants, who allegedly made high risk investments on behalf of the Trust in disregard of the stated investment objectives of the Trust. On July 21, 1987, appellees commenced this action and filed the complaint in the District of Connecticut. Count one of the complaint alleged a breach of fiduciary duties under ERISA. 29 U.S.C. § 1104 (1988). Count two alleged that the account had been churned in violation of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1988), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5 (1990). The complaint also set forth various state law claims; these subsequently were dismissed. On August 18, 1987, appellants filed a motion invoking the arbitration clause in the Customer’s Agreement and seeking a stay of proceedings in the district court. The district court granted the motion as to the securities law claim, but denied the motion as to the ERISA claim. We affirmed the district court’s decision. Bird v. Shearson Lehman/American Express, Inc., 871 F.2d 292 (2 Cir.1989) (Bird I). We held that Congress intended to preclude a waiver of judicial remedies for statutory ERISA claims, but not for contractual claims involving ERISA-covered plans. Id. at 298. Appellants filed a petition for a writ of certiorari in the Supreme Court. In the meantime, the Supreme Court filed its opinion in Rodriguez de Quijas v. Shearson/American Express, Inc., 109 S.Ct. 1917 (1989). In Rodriguez, the Court held that agreements to arbitrate statutory claims arising under the Securities Act of 1983 were enforceable. Subsequently, the Court granted certiorari in Bird I, vacated our judgment, and remanded the case for reconsideration in light of Rodriguez. Shearson Lehman/American Express, Inc. v. Bird, 110 S.Ct. 225 (1989). On January 19, 1990, we entered an order remanding the case to the district court for reconsideration in light of Rodriguez. On July 16, 1990, the district court, in a thoughtful opinion, affirmed its original decision. The district court reasoned that “Rodriguez [was] consistent with the Supreme Court’s other recent rulings on arbitration and therefore [did] not significantly change the legal landscape in which this issue was originally considered.” The district court held that statutory ERISA claims were not subject to compulsory arbitration. The court denied appellants’ motion to compel arbitration and for a stay of the district court proceedings pending arbitration. This appeal followed. II. Initially, we set forth our standard of review. “[A] court asked to stay proceedings pending arbitration in a case covered by the [FAA] has essentially four tasks: first, it must determine whether the parties agreed to arbitrate; second, it must determine the scope of that agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it must then determine whether to stay the balance of the proceedings pending arbitration.” Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2 Cir.1987) (citations omitted). We review the district court’s determinations on those issues de novo. Id. at 846. In Bird I, we affirmed the district court’s holding that Bird and Shearson entered into a valid arbitration agreement that encompassed the ERISA claim. Bird I, supra, 871 F.2d at 295. We see no reason to disturb that holding. Accordingly, the only issue before us on the instant appeal concerns the third element, i.e., whether Congress intended statutory claims created by ERISA to be nonarbitra-ble. III. We turn first to appellants’ contention that the FAA requires that their agreement to arbitrate be enforced notwithstanding the fact that appellees’ claim is for a breach of fiduciary duties under ERISA. We agree. In Bird I, we held that the text of ERISA — particularly the provisions for exclusive federal jurisdiction of statutory claims, the remedial nature of the statute, and the underlying purposes of ERISA— compelled the conclusion that “Congress intended the federal courts to be the exclusive forum for resolving disputes of substantive rights.” Bird I, supra, 871 F.2d at 295. We are told that Bird I was motivated, in part, by an “outmoded presumption of disfavoring arbitration proceedings”. Rodriguez, supra, 109 S.Ct. at 1920. Rodriguez makes it clear that that is no longer tenable. Accordingly, we now reach a contrary result. The FAA, “reversing centuries of judicial hostility to arbitration agreements, was designed to allow parties to avoid ‘the costliness and delays of litigation,’ and to place arbitration agreements ‘upon the same footing as other contracts . . . Scherk v. Alberto-Culver Co., 417 U.S. 506, 510-11 (1974) (footnote and citation omitted). Section 2 of the FAA provides that “an agreement in writing to submit to arbitration an existing controversy ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at láw or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1988). “Section 2 [of the FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983); see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985) (the FAA “requires that we rigorously enforce agreements to arbitrate”). The “duty to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights.” Shear-son/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). Congress, however, may override the presumption favoring arbitration agreements by a contrary provision in another statute. Id. The burden of demonstrating such congressional intent rests with the party opposing arbitration. Rodriguez, supra, 109 S.Ct. at 1921; McMahon, supra, 482 U.S. at 227. The party contending that an agreement to arbitrate a statutory claim is not enforceable must show that “Congress intended in a separate statute to preclude a waiver of judicial remedies . . . .” Rodriguez, supra, 109 S.Ct. at 1921. “[S]uch an intent ‘will be deducible from [the statute’s] text or legislative history,’ or from an inherent conflict between arbitration and the statute’s underlying purposes.” McMahon, supra, 482 U.S. at 227 (citations omitted). Applying these standards in a series of recent cases, the Supreme Court has upheld arbitration agreements involving various statutory claims. E.g., McMahon, supra, 482 U.S. at 227-38 (claim under § 10(b) of the Securities Exchange Act of 1934); id. at 238-42 (claim under civil provisions of Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628-40 (1985) (claim under Sherman Antitrust Act). Most recently, the Court held that agreements to arbitrate claims brought pursuant to the Securities Act of 1933 are enforceable. Rodriguez, supra, 109 S.Ct. at 1919-21. In so holding, the Court overruled its holding in Wilko v. Swan, 346 U.S. 427 (1953) (a 1933 Act decision), which it stated “rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law” and had “fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez, supra, 109 S.Ct. at 1920. Prior to Rodriguez, courts of appeals that considered the enforceability of agreements to arbitrate claims derived from ERISA reached varying conclusions. Compare Bird I, supra, 871 F.2d at 298 (agreement to arbitrate statutory ERISA claims is not enforceable) and Barrowclough v. Kidder, Peabody & Co., Inc., 752 F.2d 923, 941 (3 Cir.1985) (same) with Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds, Inc., 847 F.2d 475, 477-79 (8 Cir.1988) (agreement to arbitrate statutory ERISA claim is enforceable). No court of appeals has considered this issue since Rodriguez. This ease is one of first impression. (A) We consider next the text and legislative history of ERISA. We find nothing in the text or legislative history explicitly addressing the issue of whether Congress intended to preclude a waiver of a judicial forum for claims arising from the substantive guarantees of ERISA. We also find nothing in the text or legislative history that compels us to reach that conclusion by implication. We are aware that one of the means by which Congress sought “to protect ... participants in employee benefit plans and their beneficiaries” was “by providing ... ready access to the Federal courts.” 29 U.S.C. § 1001(b) (1988). This provision, however, does not speak to whether Congress intended to require that parties avail themselves of that forum. Sulit, supra, 847 F.2d at 478. It does not follow that “by permitting a federal judicial forum Congress also intended to override the Arbitration Act’s aim of ensuring the enforcement of privately made agreements in which parties ... have chosen to forego an available judicial forum in favor of arbitration.” Id. at 479. Similarly, the fact that Congress provided for exclusive federal jurisdiction of claims brought to enforce ERISA’s substantive provisions, 29 U.S.C. § 1132(e) (1988), speaks only to which judicial forum is available, not to whether an arbitral forum is available. Moreover, the Supreme Court has upheld an arbitration agreement which was involved in a dispute grounded in a statute that similarly provides for exclusive federal jurisdiction. E.g., McMahon, supra, 482 U.S. at 227 (Securities Exchange Act of 1934, 15 U.S.C. § 78aa (1988)). In short, “any claim that the jurisdictional language of ERISA evidences a congressional intent to foreclose arbitrability would appear to be untenable in light of McMahon and [Rodriguez ].” Southside Internists Group v. Janus Capital Corp., 741 F.Supp. 1536, 1541 (N.D.Ala.1990). Liberal procedural provisions that facilitate bringing ERISA claims in federal court pursuant to § 1132 also do not compel a conclusion that Congress intended such claims to be nonarbitrable. The Supreme Court rejected that reasoning in Rodriguez. It declined to imply such an intent based on similar provisions that govern claims brought in the federal courts pursuant to the Securities Act of 1933. Rodriguez, supra, 109 S.Ct. at 1920. We hold that ERISA’s text and legislative history do not support a conclusion that Congress intended to preclude arbitration of claims brought pursuant to it. (B) We turn next to whether arbitration is inconsistent with ERISA’s underlying purposes. We hold that it is not. In its statement of findings and declaration of policy, Congress explained the circumstances leading to the passage of ERISA and the purpose of the legislation: “that despite the enormous growth in [pension] plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans; that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; and that it is therefore desirable ... that minimum standards be provided assuring the equitable character of such plans and their financial soundness.” 29 U.S.C. § 1001(a) (1988). “A reading of the statute’s legislative history compels the conclusion that ERISA’s purpose is to secure guaranteed pension payments to participants by insuring the honest administration of financially sound plans.” Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2 Cir.), cert. denied, 459 U.S. 1039 (1982); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113 (1989) (“ERISA was enacted ‘to promote the interests of employees and their beneficiaries in employee benefit plans,’ and ‘to protect contractually defined benefits’ ” (citations omitted)). Allowing parties to provide by agreement that their disputes will be resolved in arbitration is not inconsistent with those purposes. “By agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi, supra, 473 U.S. at 628. Thus, arbitration is inconsistent with the underlying purposes of a statute “where arbitration is inadequate to protect the substantive rights at issue.” McMahon, supra, 482 U.S. at 229. A presumption that arbitration is an inadequate forum in which to resolve disputes based on complex federal statutes is untenable in light of recent Supreme Court decisions. Id. at 232; Mitsubishi, supra, 473 U.S. at 633-34. Rodriguez put to rest “ ‘the old judicial hostility to arbitration.’ ” Rodriguez, supra, 109 S.Ct. at 1920 (citation omitted). Appellees suggest no reason why the substantive rights guaranteed by ERISA will be jeopardized if the arbitration agreement is enforced. We are aware of no such reasons. As in Rodriguez, “ ‘[t]here is nothing in the record before us nor in the facts of which we can take judicial notice, to indicate that the arbitral system ... would not afford the plaintiff[s] the rights to which [they] are entitled.’ ” Id. at 1921 (citation omitted). Accordingly, we disagree with those courts that have expressed the fear that substantive rights guaranteed by ERISA may be foreclosed by an arbitration agreement. E.g., Barrowclough, supra, 752 F.2d at 941; Amaro v. Continental Can Co., 724 F.2d 747, 752 (9 Cir.1984). Similarly, ERISA’s remedial nature, Firestone, supra, 489 U.S. at 108, is not compromised “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, [since] the statute will continue to serve ... its remedial ... function.” Mitsubishi, supra, 473 U.S. at 614. The Supreme Court has upheld agreements to arbitrate claims arising under other remedial statutes. E.g., McMahon, supra, 482 U.S. at 240 (considering remedial role of RICO); Mitsubishi, supra, 473 U.S. at 636-37 (considering remedial role of antitrust legislation). Appellees contend that their view is supported by a line of cases that held that arbitrations of claims under Title VII of the Civil Rights Act of 1964, Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Pair Labor Standards Act, Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981), and 42 U.S.C. § 1983 (1988), McDonald v. City of West Branch, 466 U.S. 284 (1984) were not preclusive in subsequent litigation to vindicate rights under those statutes. We disagree. In those three cases, the arbitrations were commenced pursuant to a clause in a collective bargaining agreement negotiated by the union, rather than the employee. They rely partially on the reasoning that an employee should not be bound by an arbitration clause he did not negotiate “where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine, supra, 450 U.S. at 737. The Court was concerned with the fact that the union’s interest might not coincide with the employee’s and, therefore, the union’s representation at arbitration might not be adequate. McDonald, supra, 466 U.S. at 291; Barrentine, supra, 450 U.S. at 742; Gardner-Denver, supra, 415 U.S. at 58 n.19 The instant case does not raise such concerns. Bird signed the agreement that contained the arbitration clause. He cannot complain that his rights were bargained away by a third party. Although Shea did not sign the agreement, her interests and claims are essentially identical to Bird’s. Under such circumstances, requiring Shea to arbitrate does not work an injustice. Cf. Barrowclough, supra, 752 F.2d at 938-39 (beneficiaries are bound by principal’s agreement to arbitrate when they “claim no present entitlement to the [benefits] and press no claims separate from his”). We also do not find arbitration inconsistent with the enforcement and oversight responsibilities granted to the Secretary of Labor. The Secretary is involved in reporting requirements, 29 U.S.C. § 1021 (1988), is authorized to commence an action for a plan fiduciary’s breach of duty, 29 U.S.C. § 1132(a)(2) (1988), and is authorized to participate in litigation commenced by plan participants, 29 U.S.C. § 1132(h) (1988). Moreover, the Secretary is vested with broad investigatory powers to determine compliance with ERISA’s provisions. 29 U.S.C. § 1134 (1988). “We are reluctant to conclude that the mere fact of administrative involvement in a statutory scheme of enforcement operates as an implicit exception to the presumption of arbitral availability under the FAA.” Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195, 198 (4 Cir.), cert. granted, 111 S.Ct. 41 (1990). Arbitration of ERISA claims will not impede the Secretary’s supervisory and enforcement responsibilities. “[Ijmplemen-tation of the statutory purpose is [not] dependent upon the [Secretary’s] involvement in each and every allegation [under ERISA].” Id. Finally, one of the purposes of ERISA is to “bring a measure of uniformity in an area where decisions under the same set of facts may differ from state to state.” H.R. Rep. No. 533, 93rd Cong. 1st Sess. 12 (1973), reprinted in 1974 U.S.Code Cong. & Admin.News 4639, 4650. This desire has led the Supreme Court to conclude that Congress intended that “courts ... develop a ‘federal common law of rights and obligations under ERISA-regulated plans.’ ” Firestone, supra, 489 U.S. at 110 (citation omitted). We are not persuaded that the fact that federal common law is to be created and applied to ERISA disputes alleging breaches of fiduciary duties creates an inherent conflict with arbitration. First, we do not believe that our holding will prevent the development of federal common law in this area. Our holding does not prohibit plaintiffs from bringing ERISA claims alleging a breach of fiduciary duty in federal courts. We merely hold that parties may provide by agreement that such claims will be arbitrated. If such agreements are the result of unequal bargaining power between the parties, general principles of contract law will bar enforcement. Second, the import of recent Supreme Court decisions is that arbitration is not to be distrusted no matter what the source of law to be applied is. Third, an arbitration determination is subject to review by the federal courts through a motion to enforce or to vacate the award. Arbitration is not inconsistent with the underlying purposes of ERISA. Appel-lees have not sustained their burden of demonstrating that the text, legislative history, or underlying purposes of ERISA indicate that Congress intended to preclude a waiver of a judicial forum for claims arising under it. Accordingly, we hold that statutory claims arising under ERISA may be the subject of compulsory arbitration. IV. To summarize: We hold that Congress did not intend to preclude a waiver of a judicial forum for statutory ERISA claims. We further hold that the FAA requires courts to enforce agreements to arbitrate such claims. The district court, therefore, erred in denying appellants’ motion to compel arbitration of appellees’ ERISA claim and for a stay of the district court proceedings pending arbitration. Reversed and remanded with instructions that arbitration proceed promptly. The mandate shall issue forthwith.

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

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

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

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

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

UNITED STATES of America, Plaintiff-Appellee, v. Darwin Andrew BEATTY, Defendant-Appellant. No. 16240. United States Court of Appeals Sixth Circuit. Aug. 31, 1965. Richard G. Hutchins, and Ronald Hutchins, Flint, Mich., for appellant. Paul J. Komives, Detroit, Mich. (Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief), for appellee. Before WEICK, Chief Judge, O’SULLIVAN, Circuit Judge, and BOYD, District Judge. PER CURIAM. Appellant brings this appeal from a conviction and sentence in the District Court for knowingly failing to report for civilian work as deemed appropriate by his local draft board and State Selective Service Headquarters in violation of Section 462, Title 50 Appendix, United States Code. Appellant, a Jehovah Witness, sought exemption from service under the Universal Military Training and Service Act (Title 50, U.S.C.) on the ground that he was a .minister within the meaning of Sections 456(g) and 466 (g) (1); (2) and (3) of said Act. He was denied such exemption and classified 1-0 by his board as a Conscientious Objector. When directed to report for work of national importance pursuant to this classification, appellant refused to do so, and as a result was indicted and convicted as aforesaid. Appellant’s principal contention on this appeal is that he made out a prima facie case before his local board establishing himself to be a minister as defined in the Training and Service Act aforesaid, and that the board’s denial of his requested ministerial classification represented arbitrary action on its part. Appellant submits the District Court was in error in refusing to accept these views of the matter. The contents of appellant’s file, accumulated by his local board, reflects that he was ordained a minister on February 8, 1958, in the Watchtower Bible and Tract Society. However, this fact alone would not render appellant a minister within the meaning of the Training and Service Act as would entitle him to the ministerial exemption here sought. United States v. Willard, 312 F.2d 605 (CA 6,1963). To be entitled to such classification, one must be regularly engaged in preaching and teaching his religion as a vocation, in administering its rites and in discharging the duties of a minister. 50 U.S.C. App. § 466(g) (2). Appellant first claimed a ministerial classification on May 12, 1960. In support of his petition for such, a number of letters and affidavits were presented to his local board. In addition appellant testified concerning his status before his board on several occasions. The record reflects appellant was engaged in activities relating to his sect or organization for an estimated sixteen to twenty hours per week, which included door to door visitation, conducting bible study groups and delivering public addresses and sermons. During this period appellant was employed by an advertising firm for approximately twenty hours per week distributing its materials. It is not entirely clear as to what extent responsibility rested upon appellant in the established hierarchy of his denomination, but it is clear that he was not a presiding minister or its equivalent, a congregational servant. The appellant’s case has been considered four times by his local board and once by the appeal board of his area since his first petition aforesaid. In each instance a ministerial classification was denied. If there is in this case a factual basis in the proof for such classification, this Court has no authority to substitute its judgment for that of appellant’s board. In this type of case, as was pointed out in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567, our power of review is a narrow one. The Supreme Court in that opinion said: The provision making the decisions of the local boards ‘final’ means to us that Congress chose not to give administrative action the customary scope of judicial review * * *. The decisions of the local boards * * * are final even though they may be erroneous.” it Since the ministerial exemption herein is a matter of legislative grace, a registrant under the within Act has the burden of establishing his right to such exemption. The District Court in this case found appellant failed to meet this burden. With its decision we agree since there is clearly present a factual basis to support the board’s decision that appellant was not a minister within the meaning of the Training and Service Act herein. We can not agree with appellant’s contention that he met the vital requirement of regularly preaching and teaching his religion as a vocation. We add that the record does not disclose that appellant’s classification resulted from arbitrary action on the part of those administering the Selective Service System. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132; Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428; United States v. Willard, supra; United States v. Clark, 307 F.2d 1, (CA 6, 1962). Appellant’s challenge concerning the sufficiency of the indictment in this case is found to be without merit. Basic facts covering the essential elements of his offense were alleged with sufficient particularity to fairly apprise appellant of the nature of the charge against him. Butzman v. United States, 205 F.2d 343, (CA 6, 1953), cert. den. 346 U.S. 828, 74 S.Ct. 50, 98 L.Ed. 353. Finding no reversible error in the action of the District Court, its judgment is affirmed.

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

Are there two issues in the case?

BABBITT, SECRETARY OF THE INTERIOR, et al. v. YOUPEE et al. No. 95-1595. Argued December 2, 1996 Decided January 21, 1997 James A. Feldman argued the cause for petitioners. With him on the briefs were Acting Solicitor General Del-linger, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Anne S. Almy, Robert L. Klarquist, and Andrew C. Mergen. Rene A. Martell argued the cause for respondents. With him on the brief were Daniel L. Minnis and D. Michael Eakin. Briefs of amici curiae urging affirmance were filed for the Allottees Association and Affiliated Tribes and Bands of the Quinault Reservation et al. by Joel Jasperse and Thomas E. Luebben; and for the Pacific Legal Foundation by James S. Burling. Justice Ginsburg delivered the opinion of the Court. In this case, we consider for a second time the constitutionality of an escheat-to-tribe provision of the Indian Land Consolidation Act (ILCA). 96 Stat. 2519, as amended, 25 U. S. C. § 2206. Specifically, we address § 207 of the ILCA, as amended in 1984. Congress enacted the original provision in 1983 to ameliorate the extreme fractionation problem attending a century-old allotment policy that yielded multiple ownership of single parcels of Indian land. Pub. L. 97-459, §207, 96 Stat. 2519. Amended §207 provides that certain small interests in Indian lands will transfer — or “escheat” — to the tribe upon the death of the owner of the interest. Pub. L. 98-608, 98 Stat. 3173. In Hodel v. Irving, 481 U. S. 704 (1987), this Court held that the original version of §207 of the ILCA effected a taking of private property without just compensation, in violation of the Fifth Amendment to the United States Constitution. Id., at 716-718. We now hold that amended § 207 does not cure the constitutional deficiency this Court identified in the original version of §207. I In the late Nineteenth Century, Congress initiated an Indian land program that authorized the division of communal Indian property. Pursuant to this allotment policy, some Indian land was parcelled out to individual tribal members. Lands not allotted to individual Indians were opened to non-Indians for settlement. See Indian General Allotment Act of 1887, eh. 119, 24 Stat. 388. Allotted lands were held in trust by the United States or owned by the allottee subject to restrictions on alienation. On the death of the allottee, the land descended according to the laws of the State or Territory in which the land was located. 24 Stat. 389. In 1910, Congress also provided that allottees could devise their interests in allotted land. Act of June 25, 1910, ch. 431, §2, 36 Stat. 856, codified as amended, 25 U. S. C. § 373. The allotment policy “quickly proved disastrous for the Indians.” Irving, 481 U. S., at 707. The program produced a dramatic decline in the amount of land in Indian hands. F. Cohen, Handbook of Federal Indian Law 138 (1982) (hereinafter Cohen). And as allottees passed their interests on to multiple heirs, ownership of allotments became increasingly fractionated, with some parcels held by dozens of owners. Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 77 (1984) (hereinafter Lawson). A number of factors augmented the problem: Because Indians often died without wills, many interests passed to multiple heirs, H. R. Rep. No. 97-908, p. 10 (1982); Congress’ allotment Acts subjected trust lands to alienation restrictions that impeded holders of small interests from transferring those interests, Lawson 78-79; Indian lands were not subject to state real estate taxes, Cohen 406, which ordinarily serve as a strong disincentive to retaining small fractional interests in land. The fractionation problem proliferated with each succeeding generation as multiple heirs took undivided interests in allotments. The administrative difficulties associated with multiple undivided ownership in allotted lands gained official attention as early as 1928. See L. Meriam, Institute for Government Research, The Problem of Indian Administration 40-41 (1928). Governmental administration of these fractionated interests proved costly, and individual owners of small undivided interests could not make productive use of the land. Congress ended further allotment in 1934. See Indian Reorganization Act, ch. 576, 48 Stat. 984, 25 U. S. C. § 461 et seq. But that action left the legacy in place. As most owners had more than one heir, interests in lands already allotted continued to splinter with each generation. In the 1960’s, congressional studies revealed that approximately half of all allotted trust lands were held in fractionated ownership; for over a quarter of allotted trust lands, individual allotments were held by more than six owners to a parcel. See Irving, 481 U. S., at 708-709 (citing Senate Committee on Interior and Insular Affairs, Indian Heirship Land Survey, 86th Cong., 2d Sess., pt. 2, p. x (Comm. Print 1960-1961)). In 1983, Congress adopted-the fractionated ownership of allotted lands. Pub. L. 97-459, tit. II, 96 Stat. 2517. Section 207 of the ILCA — the “escheat” provision — prohibited the descent or devise of small fractional interests in allotments. 96 Stat. 2519. Instead of passing to heirs, such fractional interests would escheat to the tribe, thereby consolidating the ownership of Indian lands. Congress defined the targeted fractional interest as one that both constituted 2 percent or less of the total acreage in an allotted tract and had earned less than $100 in the preceding year. Section 207 made no provision for the payment of compensation to those who held such interests. Hodel v. Irving, this Court invalidated §207 on the ground that it effected a taking of property without just compensation, in violation of the Fifth Amendment. 481 U. S., at 716-718. The appellees in Irving were, or represented, heirs or devisees of members of the Oglala Sioux Tribe. But for §207, the appellees would have received 41 fractional interests in allotments; under § 207, those interests would escheat to the Tribe. Id., at 709-710. This Court tested the legitimacy of §207 by considering its economic impact, its effect on investment-backed expectations, and the essential character of the measure. See id., at 713-718; see also Penn Central Transp. Co. v. New York City, 438 U. S. 104, 124 (1978). Turning first to the economic impact of §207, the Court in Irving observed that the provision’s income-generation test might fail to capture the actual economic value of the land. 481 U. S., at 714. The Court next indicated that § 207 likely did not interfere with investment-backed expectations. Id., at 715. Key to the decision in Irving, however, was the “extraordinary” character of the Government regulation. Id., at 716. As this Court noted, §207 amounted to the “virtual 1] abrogation of the right to pass on a certain type of property.” Ibid. Such a complete abrogation of the rights of descent and devise could not be upheld. Id., at 716-717. II In 1984, while Irving was still pending in the Court of Appeals for the Eighth Circuit, Congress amended §207. Pub. L. 96-608, § 1(4), 98 Stat. 3173. Amended §207 differs from the original escheat provision in three relevant respects. First, an interest is considered fractional if it both constitutes 2 percent or less of the total acreage of the parcel and “is incapable of earning $100 in any one of the five years [following the] decedent’s death” — as opposed to one year before the decedent’s death in the original § 207. 25 U. S. C. § 2206(a). If the interest earned less than $100 in any one of five years prior to the decedent’s death, “there shall be a rebuttable presumption that such interest is incapable of earning $100 in any one of the five years following the death of the decedent.” Ibid. Second, in lieu of a total ban on devise and descent of fractional interests, amended § 207 permits devise of an otherwise escheatable interest to “any other owner of an undivided fractional interest in such parcel or tract” of land. 25 U. S. C. § 2206(b). Finally, tribes are authorized to override the provisions of amended §207 through the adoption of their own codes governing the disposition of fractional interests; these codes are subject to the approval of the Secretary of the Interior. 25 U. S. C. § 2206(c). In Irving, “[w]e expressed] no opinion on the constitutionality of §207 as amended.” 481 U. S., at 710, n. 1. §207, the interests in this case would escheat to tribal governments. The initiating plaintiffs, respondents here, are the children and potential heirs of William Youpee. An enrolled member of the Sioux and Assiniboine Tribes of the Fort Peck Reservation in Montana, William Youpee died testate in October 1990. His will devised to respondents, all of them enrolled tribal members, his several undivided interests in allotted trust lands on various reservations in Montana and North Dakota. These interests, as the Ninth Circuit reported, were valued together at $1,239. 67 F. 3d 194,199 (1995). Each interest was devised to a single descendant. Youpee’s will thus perpetuated existing fractionation, but it did not splinter ownership further by bequeathing any single fractional interest to multiple devisees. In 1992, in a proceeding to determine the heirs to, and claims against, William Youpee’s estate, an Administrative Law Judge (ALJ) in the Department of the Interior found that interests devised to each of the respondents fell within the compass of amended § 207 and should therefore escheat to the tribal governments of the Fort Peck, Standing Rock, and Devils Lake Sioux Reservations. App. to Pet. for Cert. 27a-40a. Respondents, asserting the unconstitutionality of amended § 207, appealed the ALJ’s order to the Department of the Interior Board of Indian Appeals. The Board, stating that it did not have jurisdiction to consider respondents’ constitutional claim, dismissed the appeal. Respondents then filed Court for the. District of Montana, naming the Secretary of the Interior as defendant, and alleging that amended § 207 of the ILCA violates the Just Compensation Clause of the Fifth Amendment. The District Court agreed with respondents and granted their request for declaratory and in-junctive relief. 857 F. Supp. 760, 766 (1994). The Court of Appeals F. 3d 194 (1995). That court carefully inspected the 1984 revisions to §207. Hewing closely to the reasoning of this Court in Irving, the Ninth Circuit determined that amended § 207 did not cure the deficiencies that rendered the original provision unconstitutional. In particular, the Ninth Circuit observed that amended § 207 “continue[d] to completely abolish one of the sticks in the bundle of rights [constituting property] for a class of Indian landowners.” 67 F. 3d, at 200. The Ninth Circuit noted that “Congress may pursue other options to achieve consolidation of . . . fractional interests,” including Government purchase of the land, condemnation for a public purpose attended by payment of just compensation, or regulation to impede further fractionation. Ibid. But amended §207 could not stand, the Ninth Circuit concluded, for the provision remained “an extraordinary and impermissible regulation of Indian lands and effected] an unconstitutional taking without just compensation.” Ibid. On the petition of the United States, we granted certiorari, 517 U. S. 1232 (1996), and now affirm. HH h — I HH In determining whether the 1984 amendments to § 207 render the provision constitutional, we are guided by Irving. The United States maintains that the amendments, though enacted three years prior to the Irving decision, effectively anticipated the concerns expressed in the Court’s opinion. As already noted, amended § 207 differs from the original in three relevant respects: It looks back five years instead of one to determine the income produced from a small interest, and creates a rebuttable presumption that this income stream will continue; it permits devise of otherwise escheatable interests to persons who already own an interest in the same parcel; and it authorizes tribes to develop their own codes governing the disposition of fractional interests. These modifications, according to the United States, rescue amended §207 from the fate of its predecessor. The Government maintains that the revisions moderate the economic impact of the provision and temper the character of the Government’s regulation; the latter factor weighed most heavily against the constitutionality of the original version of § 207. The narrow revisions Congress made to § 207, without benefit of our ruling in Irving, do not warrant a disposition different from the one this Court announced and explained in Irving. Amended § 207 permits a five-year window rather than a one-year window to assess the income-generating capacity of the interest. As the Ninth Circuit observed, however, argument that this change substantially mitigates the economic impact of §207 “misses the point.” 67 F. 3d, at 199. Amended §207 still trains on income generated from the land, not on the value of the parcel. The Court observed in Irving that “[e]ven if . . . the income generated by such parcels may be properly thought of as de minimis,” the value of the land may not fit that description. 481 U. S., at 714. The parcels at issue in Irving were valued by the Bureau of Indian Affairs at $2,700 and $1,816, amounts we found “not trivial.” Ibid. The value of the disputed parcels in this case is not of a different order; as the Ninth Circuit reported, the value of decedent Youpee’s fractional interests was $1,289. 67 F. 3d, at 199. In short, the economic impact of amended § 207 might still be palpable. Even if the economic nificantly less than the impact of the original provision, the United States correctly comprehends that Irving rested primarily on the “extraordinary” character of the governmental regulation. Irving stressed that the original §207 “amount[ed] to virtually the abrogation of the right to pass on a certain type of property — the small undivided interest — to one’s heirs.” 481 U. S., at 716; see also id., at 717 (“both descent and devise are completely abolished”). The Irving Court further noted that the original §207 “effectively abolish[ed] both descent and devise [of fractional interests] even when the passing of the property to the heir might result in consolidation of property.” Id., at 716. As the United States construes Irving, Congress cured the fatal infirmity in § 207 when it revised the section to allow transmission of fractional interests to successors who already own an interest in the allotment. Congress’ creation of an equipped to receive fractional interests by devise does not suffice, under a fair reading of Irving, to rehabilitate the measure. Amended §207 severely restricts the right of an individual to direct the descent of his property. Allowing a decedent to leave an interest only to a current owner in the same parcel shrinks drastically the universe of possible successors. And, as the Ninth Circuit observed, the “very limited group [of permissible devisees] is unlikely to contain any lineal descendants.” 67 F. 3d, at 199-200. Moreover, amended § 207 continues to restrict devise “even in circumstances when the governmental purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with the further descent of the property.” Irving, 481 U. S., at 718. William Youpee’s will, the United States acknowledges, bequeathed each fractional interest to one heir. Giving effect to Youpee’s directive, therefore, would not further fractionate Indian land holdings. also contends that amended § 207 satisfies the Constitution’s demand because it does not diminish the owner’s right to use or enjoy property during his lifetime, and does not affect the right to transfer property at death through nonprobate means. These arguments did not persuade us in Irving and they are no more persuasive today. See id., at 716-718. The third alteration made in amended §207 also fails to bring the provision outside the reach of this Court’s holding in Irving. Amended §207 permits tribes to establish their own codes to govern the disposition of fractional interests; if approved by the Secretary of the Interior, these codes would govern in lieu of amended § 207. See 25 U. S. C. § 2206(c). The United States does not rely on this new provision to defend the statute. Nor does it appear that the United States could do so at this time: Tribal codes governing disposition of escheatable interests have apparently not been developed. See Tr. of Oral Arg. 42-43. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed. As originally enacted, §207 provided: “No undivided fractional interest in any tract of trust or restricted land within a tribe’s reservation or otherwise subjected to a tribe’s jurisdiction shall descedent [sic] by intestacy or devise but shall escheat to that tribe if such interest represents 2 per centum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat.” 96 Stat. 2519. In 1990, Congress enacted minor revisions to §207 that are not relevant here. Pub. L. 101-644, § 301,104 Stat. 4666-4667. Amended §207, codified at 25 U. S. C. §2206, provides: “(a) Escheat to tribe; “No undivided interest held by a tract of trust land or restricted land within a tribe’s reservation or outside of a reservation and subject to such tribe’s jurisdiction shall descend by intestacy or devise but shall escheat to the reservation’s recognized tribal government, or if outside of a reservation, to the recognized tribal government possessing jurisdiction over the land if such interest represents 2 per centum or less of the total acreage in such tract and is incapable of earning $100 in any one of the five years from the date of the decedent’s death. Where the fractional interest has earned to its owner less than $100 in any one of the five years before the decedent’s death, there shall be a rebuttable presumption that such interest is incapable of earning $100 in any one of the five years following the death of the decedent. “(b) “Nothing in this section shall fractional interest to any other owner of an undivided fractional interest in such parcel or tract of trust or restricted land. “(c) Adoption of Indian “Notwithstanding the provisions Indian tribe may, subject to the approval of the Secretary, adopt its own code of laws to govern the disposition of interests that are escheatable under this section, and such codes or laws shall take precedence over the escheat provisions of subsection (a) of this section, provided, the Secretary shall not approve any code or law that fails to accomplish the purpose of preventing further descent or fractionation of such escheatable interests.” In Irving we relied on Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). Because we find Irving dispositive, we do not reach respondents’ argument that amended § 207 effects a “categorical” taking, and is therefore subject to the more stringent analysis employed in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992).

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?

MESARD v. BRENNER. In re AMERICAN MOTOR PRODUCTS CORPORATION. No. 164. Circuit Court of Appeals, Second Circuit. April 10, 1939. David W. Kahn, of New York City, for appellant. Copal Mintz, of New York City, for appellee. Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge. The plaintiff; as trustee in bankruptcy of American Motor Products Corporation, brought, on April 19, 1938, his bill of complaint in equity in the District Court for the Southern District of New York to set aside the transfer by the bankrupt to the defendant of a negotiable warehouse receipt issued by Baker & Williams Storage Warehouses. The receipt was for 795 cartons and 1 keg of automobile parts and the transfer was claimed to be voidable upon four grounds, viz: that it was a preferential transfer under the Bankruptcy Law; also under Sec. 15 of the New York Stock Corporation Law, Consol.Laws, c. 59; was made without consideration and with intent to hinder, delay and defraud creditors; and, being without consideration, was in violation of Sec. 274 of the New York Debtor and Creditor Law, Con-sol.Laws, c. 12. The defendant moved to dismiss the bill on the ground that the plaintiff had an adequate remedy at law and in the alternative requested a transfer of the cause to the law side of the district court under Equity Rule No. 22, 28 U.S.C. A. following section 723. The transfer to the law side was ordered. The plaintiff then moved for leave to amend the bill of complaint in equity. Leave so to do was granted and an amended bill was filed. The amended bill alleged that the American Motor Products Corporation filed its petition for reorganization under 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, in the District Court for the Southern District of New York on May 28, 1937; that its petition was approved the same day and that thereafter, on October 22, 1937, an order in such proceedings was duly entered adjudging it a bankrupt and providing for its liquidation. The plaintiff was appointed trustee in bankruptcy on November 9, 1937. The transfer of the warehouse receipt between May 24, and May 28, 1937, was alleged together with the facts on which it was claimed to be voidable. These allegations were accompanied by others to the effect that the merchandise had been sold free and clear of liens on January 17, 1938, under an order of the referee in bankruptcy; that $5,000 had been realized on the sale; and that the plaintiff was holding those proceeds in a separate fund pending the determination of the claims of the defendant. It was also alleged that the plaintiff and the defendant had on March 16, 1938, entered into a stipulation, duly approved by the referee in bankruptcy, which was attached to the bill as Exhibit A. The material parts of that stipulation follow: “1. The $5,000 now held by the Trustee as the proceeds óf the sale of the warehoused merchandise shall, for all purposes, be deemed and accepted as the full substitute for, and equivalent of, the merchandise previously in the warehouse of Baker & Williams, under a negotiable warehouse receipt held by Brenner, without prejudice to the rights and status of the respective parties. “2. The Trustee shall, within thirty (30) days from the date hereof, commence, and thereafter prosecute, a plenary action in the United States District Court for the Southern District of New York, in which shall be determined the rights of the respective parties to said money as the substitute of said merchandise. Save that the Trustee shall proceed by plenary action, no stipulation is hereby made as to form of action or remedy. “3. The above mentioned warehouse receipt shall, without prejudice, be delivered to David W. 'Kahn, Esq., to be held by him, pending the final determination of the plenary suit to be brought as aforesaid, but, regardless of the outcome of the said suit, no action shall be brought on said warehouse receipt, the fund of $5,000 realized on the sale of the merchandise in the warehouse to stand, for all purposes, in place thereof. If the transfer of the warehouse receipt is set aside in the plenary suit it shall be surrendered to the warehouse. On the other hand, if the transfer of the said receipt by the bankrupt to Brenner is sustained, Brenner shall receive the fund aforementioned. “4. Brenner shall discontinue, without costs, the action commenced by him in the Supreme Court, New York County, against Baker & Williams, and no further suit will be instituted against the Warehouse in the future. “5. Brenner shall desist from any further or additional objection to, or attack upon, the above mentioned orders. The Trustee waives costs, if any, on the appeal taken and motion for leave to appeal. The .Trustee consents that the appeal bond posted by Brenner be cancelled. “6. The motion now pending before Judge Caffey for an injunction against Brenner shall be withdrawn. “7. The Trustee shall apply to the Referee for an order approving and putting into effect the provisions hereof.” The relief sought included a determination of the rights of the parties in respect to the proceeds of the sale and an injunction to restrain the defendant from instituting any suit or "proceeding either against the plaintiff or others “for the recovery or conversion of the merchandise embraced by the warehouse receipt aforementioned or the proceeds realized upon the sale of said merchandise ;***”. After the amended bill was filed the district judge remained of the opinion that the cause should be transferred to the law side and so ordered with leave to the plaintiff to amend his complaint “to plead such action at law as he may deem advisable”. The appeal is from this order. Though the bill contains a prayer for an injunction it is to be noted that there is no allegation whatever that the defendant has not complied^n all respects with the stipulation entered into before this suit was brought; nor that he has threatened not to comply with it; nor that the^plaintiff has any reason whatever for believing, or that he does believe, that the defendant will not •comply with the terms of the stipulation. In the absence of any such allegations the bill shows on its face that the prayer for an injunction was absolutely groundless. The plaintiff’s own attorney had possession, in accordance with the stipulation, df the warehouse receipt and the fund realized from the sale of the merchandise covered by it was held by the plaintiff and was to be 'treated in all respects as the merchandise itself “without prejudice to the rights and' status of the respective parties”. The defendant had discontinued his suit against the warehouse and agreed not to bring another; had agreed not to attack the orders which had been made and the plaintiff had agreed that the pending motion for an injunction against the defendant would be withdrawn. Since the bill itself completely negatives the right of the plaintiff to an injunction, no need for injunctive relief prevented the court from ordering the cause transferred to the law side in the exercise of its discretion. King Mechanism & E. Co. v. Western Wheeled Scraper Co., 7 Cir., 59 F.2d 546; Root v. Lake Shore & M. S. Ry. Co., 105 U.S. 189, 26 L.Ed. 975. The order was, therefore, without error provided the plaintiff had a 'plain, adequate and complete remedy at law.. 28 U.S.C.A. § 384. In so far as the action wás one to recover a preferential transfer, he had such a remedy at law. Schoenthal v. Irving Trust Co., 287 U.S. 92, 53 S.Ct. 50, 77 L.Ed. 185. It is doubtful whether the bill does adequately allege any cause‘of action for a fraudulent transfer. At any rate no distinction between the counts has been made and we therefore treat them, as have the parties, alike to the extent that the proper disposition of the preference counts will also control as to the others. The clear showing that the plaintiff had no-adequate remedy at law which is necessary to entitle him to equitable relief was not made and so error in ordering the transfer to the law side of the court has not been shown. Schoenthal v. Irving Trust Co. supra. Affirmed.

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

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