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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DETECTIVE INTELLIGENCE SERVICE, INC., Respondent. No. 26571. United States Court of Appeals, Ninth Circuit. Aug. 24, 1971. Daniel M. Katz (argued), Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for appellant. Boyd Burnison (argued), of St. Sure, Moore, Hoyt & Sizoo, Oakland, Cal., for appellee. Before HAMLEY and KOELSCH, Circuit Judges, and BYRNE, District Judge. The Honorable William M. Byrne, Senior United States District Judge for the Central District of California, sitting by designation. HAMLEY, Circuit Judge: The National Labor Relations Board (Board) applies to this court pursuant to section 10(e) of the National Labor Relations Act (Act), as amended, 29 U. S.C. § 160(e), for enforcement of its order issued against Detective Intelligence Service, Inc. (Employer). The Board ordered the Employer to cease and desist from violating section 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5), (1), to bargain with the certified representative of certain employees, and to post appropriate notices. The Employer defends its refusal to bargain on the ground that the certification, as clarified by the Board, is invalid. The background of this dispute extends to July 9, 1968, when the International Union of Guards and Watchmen, Independent (Union), filed a petition with the Board for certification as the bargaining representative for “[a]II employees employed by the employer as guards, watchmen, Patrolmen, Fire Patrol and/or Special Police.” On July 19, 1968, the Union and Employer entered into a Stipulation for Certification upon Consent Election which included a paragraph defining the scope of the collective bargaining unit as follows: “All security officer employees of the Employer working out of its Oakland, California location, including regular part-time employees; excluding office clerical employees, salesmen, part-time employees who have not worked in the calendar quarter ended June 30, 1968, and supervisors as defined in the Act.” The stipulation also included the standard provision defining those eligible to vote in the election based upon the payroll period of July 13, 1968. The stipulation was signed by the Regional Director of the Board. The Union won the election by a vote of fifty-four to thirty-three. There were one hundred and twenty-four eligible voters. The Regional Director certified the Union as representative on August 28, 1968, describing the bargaining unit precisely as it had been described in the stipulation. On February 7, 1969, the Union filed a petition with the Board requesting a clarification of the unit description set forth in the certification. The Union proposed that the unit description be clarified to read: “All security officer employees of the Employer working out of its Oakland, California location, excluding office clerical employees, salesmen, and supervisors as defined by the Act.” A hearing was held on the petition on February 26, 1969, and the case was ordered transferred to the Board on March 12, 1969. The Union contended that the description was ambiguous and should be clarified to clearly include all regular part-time employees. The Employer, opposing the petition, argued that the description unambiguously excluded part-time employees hired since the specified quarter. The Board found that the portion of the unit description excluding part-time employees who had not worked in the calendar quarter ended June 30, 1968, had been intended by the parties as the formula by which the eligibility of part-time employees to vote in the election was to have been determined, and that it was mistakenly included in the unit description. The Board affirmed the rulings of the Hearing Officer and issued an order on June 26, 1969, clarifying the unit description as follows : “All security officer employees of the Employer working out of its Oakland, California location including regular part-time employees, excluding office clerical employees, salesmen and supervisors as defined in the Act.” The Union requested the Employer to bargain with it as representative of the unit as clarified, and filed a charge with the Board when the Employer refused. A complaint issued from the Board charging a refusal to bargain in violation of the Act. The Employer’s answer asserted that it had bargained “with respect to all employees * * * except for part-time employees who have not worked in the calendar quarter ended June 30, 1968.” The Board transferred the cause to itself and gave notice to show cause why the General Counsel’s motion for summary judgment should not be granted. The Employer’s response contended that the original unit description was unambiguous, was not the result of inadvertent error and that the Board had no power to modify a bargaining unit stipulated by the Employer and Union and approved by the Regional Director. The Board granted the motion for summary judgment on the ground that the issues were identical to those decided by the Board in the representation proceeding and that the Employer was not entitled to relitigate them, in the absence of special circumstances. The Board found, on the basis of the record, that the Employer’s refusal to bargain violated section 8(a) (5) and (1) of the Act, 29 U.S.C. § 158(a) (5), (1), issued the above-described order and applies for its enforcement. The parties agree that the only question in this case is the propriety of the clarification decision. If the Board acted properly in eliminating the disputed language from the unit description, its order should be enforced, there being no other dispute as to the underlying facts. The Board contends that there was no abuse of discretion in its clarification action.' While conceding that the Board has wide discretion to independently establish the scope of a bargaining unit, the Employer urges that once the Union and Employer have, by stipulation, defined and described that unit, and it has been approved by the Regional Director, the Board is without power to modify the unit description. It is true that the considerations applicable when the Board itself determines a bargaining unit may not be the same as those that control when it interprets a stipulation for a consent election. In the latter circumstances the primary question is the intent of the parties. NLRB v. J. J. Collins’ Sons, Inc., 332 F.2d 523, 525 (7th Cir.1964); NLRB v. Joclin Manufacturing Co., 314 F.2d 627, 633-634 (2d Cir.1963). For instance, community of interest of employees is a significant doctrine when the Board is drawing an appropriate unit, but it has been considered insufficient to override the intent of the parties when the parties fix the unit in a stipulation. NLRB v. Midwest Television Inc., Station WMBD-AM-FM-TV, 370 F.2d 287, 289 (7th Cir.1966); Tidewater Oil Co. v. NLRB, 358 F.2d 363, 366 (2d Cir.1966). However, where a stipulation is ambiguous, the Board has authority to interpret the agreement according to what it finds to have been the intent of the parties. NLRB v. Joelin Manufacturing Co., 314 F.2d 627, 634 (2d Cir. 1963). Likewise, where the inclusion or exclusion of employees within the stipulated unit could violate some settled Board policy or statutory provision the Board may take account of such policy or statute. Tidewater Oil Co. v. NLRB, 358 F.2d 363, 366 (2d Cir.1966); NLRB v. Joclin Manufacturing Co., 314 F.2d 627, 634-635 (2d Cir.1963). The Board may also resort to the community of interest doctrine to aid its resolution of ambiguity in a stipulation. NLRB v. Midwest Television, Inc., Station WMBD-AM-FM-TV, 370 F.2d 287, 289 (7th Cir.1966). In its clarification decision, the Board found that the original unit description contained “inconsistencies leading to an absurd result” and that it could not “reasonably be regarded as reflecting the parties’ intention.” The original stipulation had specifically included the Employer’s regular part-time employees within the unit. Due to the rate of turnover, disclosed at the clarification hearing, the Employer’s work force was becoming increasingly composed of part-time employees hired since June 30, 1968. The disputed language thus assured that part-time employees, the bulk of the unit deemed appropriate by the parties at the time of the election, would be eliminated from the unit, substantially altering the nature of the unit as time went on. The Board found that the disputed language articulated a traditional formula for determining the eligibility of part-time employees to vote in a representation election, and had been inadvertently included in the unit description portion of the stipulation and later certification. Having determined the agreement as written included a mistake, the Board corrected it to conform with what it concluded was the intention of the parties. We are not convinced that such correction went beyond the Board’s authority to police its own certifications. Although the Board did not specifically find an ambiguity in the language of the description, the internal inconsistencies of the language placed the Board in a position not unlike that it must assume when interpreting an ambiguous stipulation. The evidence presented at the clarification hearing, which consisted directly of each side’s protestations of what it had believed at the time, and the language of the stipulation itself were inconclusive to determine the parties’ intention. In such circumstances, when dealing with an ambiguous stipulation, the Board is entitled to employ a de novo approach in considering the appropriateness of including the disputed employees within the unit, an approach which includes consideration of the factor of community of interest. See International Union of Elec. R. & M. Wkrs. v. NLRB, 135 U.S.App.D.C. 355, 418 F.2d 1191, 1201 (1969). We do not believe that consideration of the work interests and job functions, brought out at the clarification hearing, along with consideration of other facts and inferences, was improper in the ease before us. We conclude that the Board’s action in the clarification proceeding was within its authority, and that its determination as to the intent of the parties is a reasonable one on the whole record. Enforcement of the Board’s order is granted.

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"?

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

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

SANTA FE PAC. R. CO. v. ICKES, Secretary of the Interior, et al. No. 8956—7. United States Court of Appeals District of Columbia. Argued Nov. 13, 1945. Decided Feb. 4, 1946. GRONER, C. J., dissenting. Mr. Lawrence Cake, of Washington, D. C., for appellant. Mr. Ernest F. Horn, Principal Attorney, Office of the Solicitor, Department of Interior, of Washington, D. C., of the Bar of the Supreme Court of California, pro hac vice, by special leave of Court, with whom Mr. Harry M. Edelstein, Assistant Solicitor, of Washington, D. C., and Mr. Sidney B. Jacoby, Senior Attorney, Department of Interior, of Chicago, 111., were on the brief, for appellees. Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices. CLARK, Associate Justice. The Santa Fe Pacific Railroad Company-brought two actions in the District Court requesting relief by way of injunction and mandamus to compel the Secretary of the Interior to determine the Railroad’s right to certain lands selected in accordance with Acts of 1874 and 1904 , without regard to the release executed by the Santa Fe under Title III, Part II, § 321 of the Transportation Act of 1940. The District Court dismissed both complaints on the merits. The Santa Fe’s predecessor in interest, the Atlantic and Pacific Railroad Company, had received lands under an “aid of construction” granting act enacted in 1866. Section 3 of that Act provided for the basic grants to Santa Fe’s predecessor, and gave the railroad the right to select indemnity lands where lands within the primary limits of the grant “shall have been granted, sold, reserved, occupied by homesteád settlers, or pre-empted, or otherwise disposed of * * *,” as well as the right to select agricultural Lands in substitution for reserved mineral lands within the original grants. No rights involving these “indemnity” lands are in controversy here. However, it later developed that subsequent to the time when the railroad’s rights attached to particular lands under the 1866 Act some of the original grants came into the possession of settlers whose entry or filing was allowed under the preemption or homestead laws. The United States, desiring to confirm title to such lands in the homesteaders, passed Acts in 1874 and 1904 permitting the railroad, when requested to do so by the Secretary of the Interior, to reconvey to the government land, as to which title had vested in the railroad, thus making it possible for the government to perfect title in the later claimants. In consideration for the reconveyances under these Acts the railroad gained the right to select “lieu” lands to replace those given up. The controversy here arose out of the i econveyances by the railroad of lands which enabled the government to perfect title in various homesteaders. The situation thus created should be distinguished from the right to select “in-deinnity” lands under Section 3 of the 1866 Act where land covered by the initial grant was found to be already in the rightful possession of others, or otherwise unavailable to the railroad. The later Acts were passed to remedy a situation wherein the railroad’s rights were prior in point of time, thus requiring a reconveyance to the United States by the railroad in order' that the government might pass good title to subsequent settlers. In case No. 8957 the Santa Fe in 1916, at the request of the Secretary of the Interior, reconveyed to the United States certain lands in accordance with the terms of the 1874 Act, and in 1943 sought to exercise its right of selection accruing as a result of the 1916 relinquishment. In case No. 8956 the Santa Fe in 1911 again, upon a similar request, reconveyed' lands under the provisions of the 1904 Act and in August of 1940 it applied to select lands in replacement for those given up at the government’s request under that Act. While its request was pending, the railroad in December 1940 filed with the See-retary of Interior a release under the Transportation Act of 1940 of “any and all claims of whatever description to lands, interests therein, compensation or reimbursement therefor on account of lands or interest granted, claimed to have been granted, or claimed should have been granted by any act of the Congress to Santa Fe Pacific Railroad Company or to any predecessor in interest in aid of the construction of any portion of its railroad.” , The Commissioner of the General Land Office and the Secretary of the Interior thereafter rejected both of appellant’s applications to select “lieu” lands on the grounds that the release under the 1940 Act covered the claims in question and that they could not be asserted after the filing and acceptance of the release. The release was filed to enable the railroad to enjoy the full applicable commercial rates on certain types of government traffic which had previously been transported at “land grant” rates, and the Santa Fe concedes that it was effective to wipe out any claims it may have had to indemnity lands as provided for in the original granting Act of 1866, and admittedly as a result of the release the Santa Fe actually surrendered and gave up claims to hundreds of thousands of acres o.f land which it would otherwise have been entitled to demand be patented to it. However, in bringing these appeals the Santa Fe seeks to establish that, contrary to the District- Court! holding, the 1874 and 1904 Acts are to be regarded as separate pieces of legislation, conferring on the railroad under the circumstances shown to exist here, a positive right to select lands to replace those reconveyed. Santa Fe maintains that its rights arising under the later acts are not claims for lands granted “in aid of construction” and hence not covered or contemplated by the 1940 Act and the release filed under it. Shortly stated, the railroad’s position here is that the Acts of 1874 and 1904 are not amendments of the Act of 1866, nor Acts granting land in aid of construction, but were enacted to enable the United States to recover title to lands then the property of the railroad in consideration for which it offered a quid pro quo in the form of exchange of other lands belonging to the United States. The lower court has held that the three enactments, i. e., the 1866, 1874 and 1904 Acts, are but parts of a single legislative scheme. Further, it concluded that the 1940 Act, in relation to the granting acts, was intended “ * * * to wipe the slate clean of such claims by any railroad which enjoyed the benefits of the rate concessions made by the Transportation Act of 1940.” Santa Fe Pac. R. Co. v. Ickes, D.C. 57 F.Supp. 984, 986, 987. If we were to accept the position taken by the government and sustained by the lower court to the effect that the 1874 and 1904 Acts are but amendatory of the 1866 Act we would be constrained to hold that the railroad gave up all of its claims under these acts when it filed its release under the 1940 Act. However, we have carefully examined the three “granting acts” in issue in the light of § 321 of the Transportation Act of 1940, and, for reasons which follow, cannot accept the conclusion reached by the District Court. In interpreting the 1940 Act the Secretary of Interior, judging from the form in which the release was drawn, then considered it applicable only to claims for lands “granted in aid of construction.” But the government in its brief suggests a wider significance to the quoted words than we think can be implied. With this latter interpretation we do not agree. Furthermore, it is perfectly apparent from the language of the release itself that the construction of the 1940 statute now contended tor by the Secretary is, as we have seen, at variance with that put upon the same statute by the selfsame Secretary of the Interior when performing his statutory duty of prescribing its terms in conformity with the statute. Though the legislative history of this particular statute is of little aid on this point, it seems hardly reasonable that Congress should have intended to have the release required under the 1940 Act apply .to any claims other than those for lands granted in aid of construction. Otherwise, it is conceivable that the railroads would be required to relinquish land claims which might in no way be related to the lands granted as construction inducements. Having thus limited the application of the release under the 1940 Act, we proceed to an appraisal of the respective positions of the parties. There is of course no question but that the 1866 Act provided for grants “in aid of the construction.” Santa Fe Pac. R. Co. v. Work, 267 U.S. 511 45 S.Ct. 400, 69 L.Ed. 764. The rights accruing to the railroad under such a grant are contractual; the railroad receiving the land in return for building and operating a line. Burke v. Southern Pac. R. Co., 234 U.S. 669, 680, 34 S.Ct. 907, 58 L.Ed. 1527. Further, it will be agreed that the road’s rights stemming from the later exchange acts are likewise contractual by nature. Santa Fe Pacific R. Co. v. Fall, 259 U.S. 197, 42 S.Ct. 466, 66 L.Ed. 896. It is from this foundation that the government argues that the right to make selections under the 1874 and 1904 Acts is essentially the same as the right to make selections • of indemnity lands under the 1866 Act. Hence, it is urged that the release under the Act of 1940 wipes out the railroad’s claims under all three pieces of legislation. The railroad counters with the proposition that these are separate statutes enacted for clearly different primary purposes and thus ought not to be read as one in relation to the 1940 Act. We perceive substantial reasons for endorsing the point of view advanced by the railroad insofar as it denies that the 1874 and 1904 Acts are to be interpreted as “'grants, in aid of construction.” We may concede, for the purposes of this opinion, that the acts here in issue are “granting” acts, and also that they create contractual rights in many ways comparable to those arising under the original granting Act of 1866 which was in “aid of construction”; however, it does not necessarily follow, as the government contends, that the road’s claims under the later acts are all properly identifiable with the 1866 Act. In support of this view we observe that: (1) The lands released pursuant to the 1874 and 1904 Acts had for all practical purposes vested in the railroad. The railroad’s rights were not, therefore, at the time of release, to be classed as mere naked claims, as was the case with regard to “indemnity” rights provided for in the 1866 Act. (2) While the lands recon-veyed had been acquired as grants in “aid of construction,” the railroad was under no compulsion to release them, and it did so only because of a new promise by the government which guaranteed replacement lands. This transaction cannot be rightly termed ancillary to or amendatory of the original grant. It was not the receiving of a grant in “.aid of construction”; the construction phase was long since passed. It was a new bargain, entered into for a new consideration and for a different purpose. Our decision rests on what we regard as the distinctly separate character of the contractual obligations. Under the 1866 Act the government granted land as an incentive to build. Under the 1874 and 1904 Acts the government granted land in exchange for that which it wished others to have free from any possible claims of the railroads, which admittedly had good title. To say that because the lands relinquished were granted “in aid of construction” other land claims accepted in place and stead of the relinquished lands are to be regarded .as subject to the terms of the original grant is, we think, to ignore the succeeding transactions and vitiate contractual rights arising wholly independently of the original Act. We do not believe that such was the intention of Congress. Viewed from a slightly different perspective, it will be seen that the government could not have reached the lands relinquished under the 1874 and 1904 Acts had the railroad refused to reconvey, as it had the unquestioned right to do. This was specifically admitted by the Solicitor for appellees in the oral argument in re sponse to a direct question from the court. Admittedly also the lands under given up by reconveyance would not have been returned to the government by the release under the 1940 Act. But the government now contends that the voluntary giving up of the once vested lands the provisions of the 1874 and 1904 Acts, throws the railroad’s claims back unto the same footing as those for “indemnity” lands which had never been selected under the 1866 Act. The dignity of the railroad’s rights is thus depreciated by its agreeing to do business with the government at the government’s request under the later acts. We cannot agree that such result was in contemplation when the 1874 and 1904 Acts were passed. In our view the rights acquired through relinquishment of vested interests stand equal in strength to the actual holding of the initial grants. In other words, the selection rights accruing from the sub-, sequent transactions are equivalent to the rights in the lands given up and are not, and were not intended to be, effected by the 1940 Act. This, we conceive to be a much sounder approach than that urged by the government which would require us to consider all transactions as a part of one inseparable contractual arrangement whereby the strength of the railroad’s claims must be judged by the terms of the 1866 Act. Even regarding the Acts of 1866, 1874 and 1904 as a part of the same “legislative scheme” does not preclude the result we have reached. Unquestionably the acts are by their character related to the same general problem of adjusting railroad land claims, but this does not foreclose the possibility of separate rights being established as they were by reason of independent transactions in accordance with the respective provisions of the different statutes. The inherent relationship of the acts does not require that we regard them all as “grants in aid of construction,” or a reading forward or backward into the others, the terms of any one of them. Further, we do not find this to he a case where the court is bound on any theory to accept the latest statutory interpretation applied by the administrative officer. In reaching the decision that the Railroad is entitled to have its selections under the 1874 and 1904 Acts reviewed without reference to the 1940 Act release, we have been most mindful of the policy considerations behind the respective pieces of legislation. We believe that neither policy nor precedent is offended by the decision we have reached but rather, that the result will more clearly define and establish the respective interests involved in accordance with the intent of the Congress. Reversed. Judge GRONER is of opinion that the applicable section of the Transportation Act of 1940 is broad enough to cover the lands in dispute, and accordingly is for affirming the judgments of the District Court. Act of June 22, 1874, c. 400, 18 Stat. 194, 43 U.S.C.A. § 888. Act of April 28,1904, c. 1810, 33 Stat. 556. Act of September 18, 1940, c. 722, 54 Stat. 954, Section 321 (b), 49 U.S.C.A. § 65, reading in part: “If any carrier by railroad furnishing such transportation, or any predecessor in interest, shall have received a grant of lands from the United States to aid in the construction of any part of the railroad operated by it, the provisions of law with respect to compensation for such transportation shall continue to apply to such transportation as though subsection (a) of this section had not been enacted until such carrier shall file with the Secretary of the Interior, in the form and manner prescribed by him, a release of any claim it may have against the United States to lands, interests in lands, compensation, or reimbursement on account of lands or interests in lands which have been granted, claimed to have been granted, or which it is claimed should have been granted to such carrier or any such predecessor in interest under any grant to such carrier or such predecessor in interest as aforesaid. * * * ” 57 F.Supp. 984. The question in the two cases is the same. In one, No. 8957, the 1874 Act is in issue and in the other the 1904 Act. Act of July 27, 1866, c. 278, 14 Stat. 292. The major difference between the two Acts is that the one passed in 1874 applied to all railroad land grants while the 1904 Act was applicable only to the Atlantic and Pacific grant in New Mexico. In accordance with the terms of the statute there were excepted from the release, “ * * * lands sold by the company to innocent purchasers for value prior to September 18, 1940, lands embraced in selections made by the company and approved by the Secretary of the Interior prior to September 18, 1940, or lands which have been patented or certified to the company. * * * ” After quoting from the 1940 Act the government’s brief, footnote 7, pg. 14, case No. 8956, sets forth: “In other words, the releases to be filed by the land grant railroads wore not limited in their application to any particular grants or to any typo of claims arising under the grants, but were to apply to any claim to land under any grant.” For a recent Congressional expression^ on the matter of the Federal Government’s policy regarding the recapture of lands vested in the railroads under various granting acts see: House Report No. 393, 79th Congress, 1st Session, March 26, 1945. (H. R. 694) pg. 12, “ * * * It has been suggested that as a condition to the surrender by the Government of its right to. these land-grant deductions the land-grant railroads ’ should be required to reconvey to the United States any of the granted lands still held by them. Aside from the fact that, as previously stated herein, the Government has already been more than fully reimbursed for the lands granted by it, this suggestion has been shown by the testimony to be neither equitable nor practicable. “A large portion of the remaining land-grant lands are held by roads such as the Union Pacific and Central Pacific whose grants contained no requirement for reduced charges- on Government traffic. As to the theory on which those roads should be required to give up such lands the committee has heard no suggestion. * * * “Also among the land-grant roads themselves will be found many which have little or no granted lands remaining to them. The burden of such a condition would thus fall most unevenly even upon the land-grant lines.” The fact that title had vested was not disputed by appellees either in their brief or oral argument, and we do not regard it necessary to discuss here the mechanics incident to the issuance of patents confirming title to such lands. This difference in purpose is well illustrated by the following language from Santa Fe Pac. R. Co. v. Work, 267 U.S. 511, 516, 45 S.Ct. 400, 401, 60 L.Ed. 764: “The Act of 1874 was passed to help homestead and other settlors who were in hard case because they had established their settlement after the grant to the railroad company was held to have attached. The question when it did attach was for a long time doubtful and the subject of litigation. This act of 1874 was intended to induce the railroad companies to relinquish such lands thus illegally occupied as against them by promising in lieu thereof other lands of equal area in both odd and even sections within the prescribed limits.” Cf.: Ickes v. Underwood, 78. U.S. App.D.O. 396, 341 F.2d 546; and United States ex rel. Jordan v. Ickes, 79 U. S.App.D.O. 334, 343. F.2d 152; cited in the government’s brief.

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?

David Walter COPELAND, Plaintiff-Appellant, v. Tom GREEN and Kelly L. York, Defendants-Appellees. No. 90-7506 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Dec. 27, 1991. Before HATCHETT, Circuit Judge, JOHNSON and CLARK , Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals of the Eleventh Circuit. PER CURIAM: David Walter Copeland is a repeat litigant. In March 1990, he filed eight complaints with the district court, and he sought to proceed in forma pauperis in each of these lawsuits. On March 27,1990, the district court dismissed the eight lawsuits as frivolous and ordered that any future complaints submitted by Copeland not be filed unless approved by a judge of the court. This order was the subject of a previous appeal to this court, which was dismissed for want of prosecution. Following the March 27, 1990, order, Copeland continued to deluge the district court with complaints and other papers. The district court entered an order requiring Copeland to appear and show cause why he should not be sanctioned for this abuse of his access to the court. Following a hearing at which Copeland appeared on his own behalf, the district court entered an order that (1) enjoined Copeland from entering the Hugo L. Black Courthouse in Birmingham, Alabama, until further order of the court; (2) directed Copeland to deliver any paper that he wished to file with the clerk of the district court through the United States Mail, rather than in person to the courthouse; and (3) directed that any paper thus received from Copeland be marked by the clerk, “Received,” and not marked “Filed,” unless and until the paper was first submitted by the clerk to a judge of the court and approved by the judge for actual filing. It is this order that is the subject of this appeal. There is no doubt that the district court had the power to devise an injunction to protect itself against Copeland’s abuses. We hold, however, that the provisions barring Copeland from entering the federal courthouse in Birmingham and from delivering documents to the Clerk of Court are impermissibly restrictive of his right to access to that court. In all other respects, the district court’s order complies with constitutional mandates. Accordingly, the district court’s order is AFFIRMED in part and REVERSED in part, and the case is REMANDED with instructions that the district court enter an order consistent with this opinion. Copeland’s motions, filed with this court, for the FBI to provide a copy of his complete file, for the U.S. Marshal Service to provide a copy of his complete file, and to require Tom Green to vacate the office of the U.S. Marshal are DENIED. . See Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986).

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

Marvin MILLER, Plaintiff-Appellant, v. PEOPLE OF the STATE OF CALIFORNIA, James Musick, Sheriff of the County of Orange, Cecil Hicks, District Attorney for the County of Orange, the Municipal Court of the County of Orange, Harbor Judicial District, Defendants-Appellees. No. 75-1384. United States Court of Appeals, Ninth Circuit. April 11, 1977. Rehearing and Rehearing En Banc Denied June 6, 1977. Burton Marks, Los Angeles, Cal., argued, for plaintiff-appellant. Evelle J. Younger, Atty. Gen., Frederick R. Millar, Deputy Atty. Gen., Los Angeles, Cal., Cecil Hicks, Jr., Dist. Atty., Oretta D. Sears and Cliff Harris, argued, Deputy Dist. Attys., Santa Ana, Cal., for defendants-appellees. Before CHAMBERS and ELY, Circuit Judges, and SOLOMON, District Judge. Honorable Gus G. Solomon, Senior District Judge for the District of Oregon, sitting by designation. PER CURIAM: For the background of this obscenity case, one should examine Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and Miller v. California, 418 U.S. 915, 94 S.Ct. 3206, 41 L.Ed.2d 1158 (1974) (Miller II). After Miller II was decided, Miller came to the United States District Court for the Central District of California with a petition for habeas corpus on his state incarceration, the penalty on his original Orange County, California, conviction. He still has a few days to serve on his jail sentence which awaits the outcome of this appeal before time serving begins again. In his petition for habeas corpus in a conclusory way (inter alia), he asserts the state conviction was infirm because of double jeopardy, collateral estoppel and res judicata, all arising out of other trials in Los Angeles County (next door to Orange) preceding in time the Orange County conviction. The contentions are attractive. In argument, Miller’s counsel advises that the issues were repeatedly asserted at every stage of the passage of the case through the California state courts. Counsel for the People of the State of California disagrees with the statement and denies the three points were really presented along the state route. So we come to this: If Miller’s counsel is correct in his recollection, all of his present contentions were concluded by Miller II, supra. If counsel for the People is correct in his recollection, then the habeas corpus has no business being here on issues not presented to the state courts. As to issues raised by the habeas corpus petition and not mentioned above, the district court was clearly correct. The trial court’s order of dismissal is AFFIRMED.

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

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

MEDLIN, Mitchel C., Theurer, James, Reed, William and McClintock, Earl, DeVault, Donald C., v BOEING VERTOL COMPANY, Bowers, James and Owens, E. v. LOCAL 1069 OF the UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW). Medlin, Mitchel C., Theurer, James, Reed, William and McClintock, Earl, DeVault, Donald C., Appellants in No. 79-1027 Boeing Vertol Company, Appellant in No. 79-1028 Local 1069 of the United Automobile Aerospace and Agricultural Implement Workers of America (UAW), Appellant in No. 79-1029. Nos. 79-1027 to 79-1029. United States Court of Appeals, Third Circuit. Argued Nov. 15, 1979. Decided April 22, 1980. John W. Nails, Chester, Pa. (argued), for Mitchel C. Medlin, James Theurer, William Reed, Earl McClintock and Donald C. De-Vault. Paula R. Markowitz (argued), Markowitz & Richman, Philadelphia, Pa., for Local 1069 of the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Jerome A. Hoffman (argued), Jeffrey G. Weil, Barbara P. Ianacone, Dechert Price & Rhoads, Philadelphia, Pa., for Boeing Vertol Company, James and Owens E. Bowers. Before HUNTER, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. 1. In this appeal we have raised, sua sponte, the question of subject matter jurisdiction. The original action was filed in state court by five employees against their former employer, Boeing Vertol Company. The employer filed a third party action against the union, Local 1069 of the United Automobile, Aerospace and Agricultural Implement Workers of America, which had represented the employees. The case was removed by the union to federal district court without objection where it was decided on tne merits. Because we conclude that the district court did not have subject matter jurisdiction to adjudicate plaintiffs’ claims we will vacate the judgment of the district court and remand to the district court with instructions to remand the case to the state court. I 2. Plaintiffs, five former employees of Boeing Vertol, were originally laid off by the company between 1969 and 1970. In early 1973 they were sent notices offering them reinstatement with their previously accrued seniority if they accepted immediately. Each plaintiff promptly quit other jobs and accepted the offer. 3. Shortly after their return to Boeing Vertol, however, they were informed by the company that it had erroneously interpreted the relevant provision of the collective bargaining agreement and that, in fact, they were not entitled to their prior seniority. In May 1973 the Union filed a grievance on behalf of the employees. The grievance claimed that the company’s original interpretation of the collective bargaining agreement was correct and that the new interpretation constituted a unilateral change in the binding agreement by the company. The dispute was eventually submitted to arbitration and, on July 17, 1975, was resolved in favor of the company’s interpretation of the contract. 4. Meanwhile, in May 1975, the plaintiffs were once again laid off. In March 1977 four of the plaintiffs brought this action in the Court of Common Pleas of Delaware County, Pennsylvania alleging misrepresentation in the reinstatement letter and breach of the contract created by the letter. They were joined in February 1978 by the fifth plaintiff. The Defendants . . knew or should have known at the time of sending out its original letter . . that Plaintiff was not entitled to retain his seniority rights and therefore falsely represented to Plaintiff that he would retain his seniority rights in order to induce him to return to his employment with the Boeing Vertol Company. If the Defendant did not know at the time of sending out the letter ... of the fact that [Plaintiff] was not entitled to his seniority rights then the company acted negligently in failing to discover this error. 5. Boeing Vertol, in defense, alleged that the layoffs in 1975 took place pursuant to the collective bargaining agreement and that the only contract between Boeing and the plaintiffs was that agreement. Moreover, Boeing asserted that all five plaintiffs were, at all relevant times, employees of the Company and that the collective bargaining agreement provides that “the exclusive remedy for the disposition of any claim, dispute or grievance of any kind of any employee against the Company” shall be the grievance procedure of the bargaining agreement. Therefore, the company argues, the failure to process their misrepresentation and breach of contract claim through the grievance procedure forestalls the instant lawsuit. 6. In May of 1978, Boeing Vertol filed a third party complaint which joined Local 1069 as an additional defendant in the suit. See Pa.R.Civ.P. 2252-2255. The complaint by the company against the union contains two counts. It alleges first, that it was the union’s false representation which misled the plaintiffs and caused their injury, and second, that the union should have processed the plaintiffs’ misrepresentation claim through the mandatory grievance procedure. On each of these counts, Boeing Ver-tol contends, in the alternative, that the union is solely liable to the plaintiffs, but that if Boeing is liable, the union is jointly and severally liable, and that if Boeing is liable, it is entitled to recover all amounts it has expended, in indemnity from the union. 7. The union promptly removed the case to federal court on the ground that Boeing Vertol’s complaint stated a federal cause of action against the union. Removal was not challenged, and the district court proceeded to trial on the merits of the case. The trial, however, was terminated at the conclusion of the employees’ case. No evidence was received on the third party claim. The Defendant’s letter . . constituted an offer, included in the offer was the promise by Boeing Vertol Company that if the Plaintiff returned to work he would be given seniority rights dating back to [his original hiring date]. Plaintiffs return to work constituted an acceptance of this offer and created a contract between the Plaintiff and the Defendant Boeing Vertol Company. The Defendant breached this contract in March of 1975, when it revoked the Plaintiffs original seniority rights. . II 8. At the outset, we must emphasize the nature of our inquiry. Because removal was not challenged in this case, our purpose is not to review the procedures utilized in this case for compliance with the general federal removal statute. 28 U.S.C. § 1441 (1976). Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). Any irregularity in these procedures has been waived. See American Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-17, 71 S.Ct. 534, 541, 95 L.Ed. 702 (1951). 9. It is beyond dispute, however, that failure to challenge removal cannot confer subject matter jurisdiction which it does not otherwise possess upon the federal district court. See Id. at 17-18, 71 S.Ct. at 542 (“The jurisdiction of the federal court is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties.”) It is the responsibility of this court to inquire, sua sponte, into the question of the subject matter jurisdiction of the district court. Pharmadyne Laboratories, Inc. v. Kennedy, 596 F.2d 568, 570 n. 3 (3d Cir. 1979); In re Trimble Co., 479 F.2d 103, 110 (3d Cir. 1973); see Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908); Cameron v. Hodges, 127 U.S. 322, 325, 8 S.Ct. 1154, 1155, 32 L.Ed. 132 (1888). The exact limits of our task have been set by the Supreme Court. [Wjhere after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court. Grubbs v. General Electric Credit Corp., 405 U.S. at 702, 92 S.Ct. at 1347 (emphasis added). 10. We shall begin by examining each of the complaints to determine whether the case, as it first appeared in federal court, was properly within our subject matter jurisdiction. We then consider the claims as they stood at the time of judgment. Because we conclude that at no time during the proceedings was there a federal cause of action, we find it unnecessary to pass upon a number of thorny jurisdictional problems. Ill 11. We first examine the third party complaint, filed by Boeing Vertol against the union, which provided the alleged basis for the removal of this case. The first count of that two count complaint alleges misrepresentation by the union to the plaintiff employees. This is a nonfederal claim which need not concern us here. 12. The second count of the complaint alleges that plaintiffs’ claims should have been processed as a grievance under the terms of the collective bargaining agreement and that the collective bargaining agreement provides that the grievance procedure is the sole remedy for the disposition of claims by employees against the company. It is urged that these allegations state a cause of action for breach of the union’s duty of fair representation. Boeing also contends that the complaint states a cause of action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976), for breach by the union of the collective bargaining agreement. We disagree with both arguments. 13. The duty of fair representation is the duty owed by the union to the employees to represent their interests fairly and in good faith. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964); Nedd v. United Mine Workers, 400 F.2d 103, 105-06 (3d Cir. 1968); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318 (3d Cir. 1963). This duty arises out of the union-employee relationship. Nedd v. United Mine Workers, 400 F.2d at 106, and the Labor Management Relations Act, 29 U.S.C. §§ 158-159 (1976), which creates and defines that relationship. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1013-14 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 857-58 (8th Cir. 1975); Smith v. Local 25, Sheet Metal Workers Int’l Ass’n, 500 F.2d 741, 746 (5th Cir. 1974). To violate the duty, however, it is necessary that the union act with a bad faith motive. Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 859 (8th Cir. 1975); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 185 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. In order to state a claim for breach of this duty, it is essential that plaintiffs allege a bad faith motive on the part of the union. Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); accord, Anderson v. United Transp. Union, 557 F.2d 165, 168 (8th Cir. 1977); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 186 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). The instant complaint contains no such allegation. A mere allegation that a grievance “should have been” processed through a grievance procedure does not satisfy this requirement. See generally Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Accordingly, we hold that the second count of Boeing Vertol’s complaint against the union does not state a federal cause of action for breach of the union’s duty of fair representation. 14. Nor do we believe that the third party complaint alleges a cause of action under section 301(a). Section 301(a) does not grant jurisdiction over all disputes between unions and employees. This court has repeatedly stated that section 301(a) provides jurisdiction only over suits for violation of contracts between an employer and a labor organization. See Leskiw v. International Bhd. of Electrical Workers, 464 F.2d 721, 722-23 (3d Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972); Adams v. Budd Co., 349 F.2d 368, 369-70 (3d Cir. 1965). The company has alleged no duty owed by the union to process all employee grievances. The only contractual provision cited by the company states that the grievance procedure is exclusive. There is no indication that this imposes a duty on the union to the company to process every grievance presented by employees. Indeed, the contract itself, submitted as an exhibit to the company’s pleadings, and incorporated therein by reference, provides that the processing of a grievance beyond step one proceeds only if a union representative “considers the grievance valid.” Collective Bargaining Agreement, Article VI, § 1. Step one does not require union participation. In addition, the contract sets time limits which, if not adhered to, preclude further consideration of any grievance or render a grievance void. Collective Bargaining Agreement, Article VI, § 2. Finally, the contract describes the effect of a disposition of a grievance that is “accepted by the union.” These provisions, which define the grievance procedure belie any claim of a duty on the union to process all grievances. Therefore, we conclude that the company has not stated a federal cause of action under section 301(a). IV 15. The company urges that jurisdiction may be based on the employees’ complaint against Boeing Vertol. They argue that the complaint, in substance, alleges a cause of action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976). Although we agree that we must look beyond the fact that section 301(a) is not expressly mentioned in the complaint and examine the true substance of the complaint, see Jones v. General Tire and Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976); Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 376 F.2d 337, 340 (6th Cir. 1967), affd., 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), we do not agree that the substance of plaintiffs’ claim falls within section 301. 16. As previously mentioned, section 301(a) provides jurisdiction only over suits for violation of contracts between an employer and a labor organization. See Leskiw v. International Bhd. of Electrical Workers, 464 F.2d at 722-23; Adams v. Budd Co., 349 F.2d at 369-70. In this case, the plaintiffs’ claims are based only on the independent rights allegedly created by the letters of reinstatement. The collective bargaining agreement, and the arbitration which resulted therefrom, constituted no more than a backdrop for the plaintiffs’ claim against the company for inducing them to return to Boeing under a false promise of seniority. Until the arbitration had been resolved, and the contract finally interpreted, the plaintiffs could not have claimed that Boeing’s promise was false. Thus, these were not rights arising in any way under the collective bargaining agreement. Cf. Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968) (heart of complaint was “no-strike” clause in collective bargaining agreement); Leskiw, 464 F.2d at 723 (rights asserted to be independent of labor contract). Accordingly, plaintiffs’ claims are not within section 301(a). 17. Nor is jurisdiction conferred by the fact that the company raises the collective bargaining agreement in defense, as a bar to this action. First, it is doubtful that defendant alleges a violation of the collective bargaining agreement. The defense alleges only that the agreement interposes a bar to the instant action. However, even assuming, arguendo, that the defendant Boeing Vertol alleges a violation of the collective bargaining agreement, this court would not have jurisdiction over plaintiffs’ claims. 18. Section 301(a) invokes the jurisdiction of 28 U.S.C. § 1337 (1976), which provides federal subject matter jurisdiction over “any civil action or proceeding arising under any Act of Congress regulating commerce. . . .” Avco Corp., 390 U.S. at 561-62, 88 S.Ct. at 1238 (quoting 28 U.S.C. § 1337 (1976)). The “arising under” requirement of section 1337 has been interpreted to be the same as that found in 28 U.S.C. § 1331, the grant of general federal question jurisdiction. Yancoskie v. Delaware River Port Authority, 528 F.2d 722, 725 (3d Cir. 1975); see Peyton v. Railway Express Agency, Inc., 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525 (1942) (discussing predecessor to section 1337). It is well settled that the existence of a federal defense to a nonfederal claim is insufficient to satisfy the “arising under” requirement. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). For an action to arise under federal law a right under federal law must be an element, and an essential one, of the plaintiffs’ claim. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). It is therefore clear that the invocation of the collective bargaining agreement in defense did not confer jurisdiction upon the district court. V 19. Although we have determined that none of the complaints, as they first appeared in federal court, stated federal causes of action, this does not end our inquiry. In ascertaining the existence of federal subject matter jurisdiction over a removed case, we must examine the posture of the case at the time of trial and when judgment is entered as well as at the time of removal. See American Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-17, 71 S.Ct. 534, 541-542, 95 L.Ed. 702 (1951); Grubbs v. General Electric Credit Corp., 405 U.S. 699, 704-06, 92 S.Ct. 1344, 1348-49, 31 L.Ed.2d 612 (1972). In Finn, for example, the Supreme Court found jurisdiction to be lacking because of the presence of nondiverse parties not only at the time of removal, but also at the time of judgment. To our knowledge, however, this requirement has not yet been applied to federal question jurisdiction. We can conceive of two possible interpretations of the Finn Rule. If a claim is deemed to arise under federal law only when the complaint states a federal cause of action, it would be possible to confine the necessary inquiry to the face of-the complaint as it existed at the time of trial or judgment. On the other hand, it may be sufficient to confer jurisdiction, that the claim itself, as it existed at the time of trial or judgment, was a claim arising under federal law. In this case, however, it is unnecessary to select an interpretation. If the first characterization is correct, we need only note that none of the complaints have been amended since the case first appeared in federal court. If the second interpretation is correct, we need only observe that later proceedings and materials submitted outside of the complaints neither changed the nature of any of the claims nor supplied the required missing elements of any of the purportedly federal claims. We therefore conclude that none of the claims in this case arose under federal law. VI 20. Our finding that no federal question is raised in this case does not end our inquiry into federal subject matter jurisdiction because it has been argued that diversity of citizenship exists. The employees note that one of the five plaintiffs is of diverse citizenship from the defendants and urge us to find the claim of that plaintiff to be separate and independent of those of the other plaintiffs. This, they contend, would establish jurisdiction over the entire case under 28 U.S.C. § 1441(c) (1976). 21. Section 1441(c) provides that: Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. Even assuming, without deciding, that the claim is separate and independent, we believe the contention to be without merit. Section 1441(c) requires that the separate and independent claim “would be removable if sued upon alone.” Section 1441(b), in defining removability, requires, in cases of removal based on diversity, that “none of the parties in interest properly joined and served as defendants [be] a citizen of the State in which such action is brought.” As all defendants in this case were citizens of the state in which the action was brought, Pennsylvania, the claim would not have been removable if sued upon alone. We therefore conclude that section 1441(c) does not provide a basis for jurisdiction over the instant case. VII 22. In light of the above, we believe that the district court improperly exercised subject matter jurisdiction over this case and, therefore, that the case was improperly removed. We, therefore, will vacate the judgment of the district court and remand the case to the district court with instructions to remand the action to the Court of Common Pleas of Delaware County, Pennsylvania. . At the court’s request, the parties have submitted supplemental briefs on this issue. . The operative allegations were repeated in haec verba for each of the five plaintiffs. . Specifically, we note that with this resolution of the case it is unnecessary to consider the effect of the doctrine of pendent jurisdiction which is ordinarily to be determined at the time of the pleadings, not on the facts as they may eventually be established. See Lentino v. Fringe Employee Plans, 611 F.2d 474, 478-79 (3d Cir. 1979). It is similarly unnecessary to decide whether, in this context, jurisdiction is properly exercised where a federal claim is alleged in a complaint, but is ultimately shown to be nonfederal or where no federal claim is alleged in a complaint, but the plaintiffs claim is eventually shown to be federal. . We are doubtful as to whether a cause of action which “arises out of the union-employee relationship and pervades it,” Nedd v. United Mine Workers, 400 F.2d at 106, may be raised by the employer, an outsider to that relationship. Because of our disposition of this case, however, we need not reach that question here. . Section 301(a) provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organization, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. . We do not intimate that the clause in the contract which makes the grievance procedure the exclusive method of dispute resolution is not a valid defense to the employees’ claims. We merely observe here that it does not serve to impose a duty on the union. . We do not believe that the requirement of Grubbs that we consider only the original jurisdiction of the federal courts, see part II, supra, precludes this inquiry. It would be odd, indeed, to suggest that the federal courts could exercise removal jurisdiction pursuant to section 1441(c) over a claim not otherwise within its original jurisdiction when removal was challenged but may not exercise jurisdiction over the same claim when the removal is not challenged. . Whether similar claims by multiple plaintiffs against a single defendant constitute “separate and independent” claims for purposes of 28 U.S.C. § 1441(c) is not clear. Compare Stokes v. Merrill Lynch, Pierce, Fenner & Smith, 523 F.2d 433, 437-38 (6th Cir. 1975); Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798, 801 (5th Cir. 1973); Lowenschuss v. Gulf & Western Industries, Inc., 419 F.Supp. 342 (E.D.Pa.1976) (multiple plaintiffs’ claims are separate and independent) with Schwartz v. Merrill Lynch, Pierce, Fenner & Smith, 424 F.Supp. 672, 673-74 (N.D.Cal.1976); U.S. Industries, Inc. v. Gregg, 348 F.Supp. 1004, 1011 (D.Del.1972), rev’d on other grounds, 540 F.2d 142 (3d Cir. 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2972, 53 L.Ed.2d 1091 (1977) (multiple plaintiffs’ claims are not separate and independent). . 28 U.S.C. § 1441(b) (1976) provides: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. . We note that the parties will not be prejudiced by this remand, since they will be able to return to state court unhampered by the statute of limitations. See 42 Pa.Cons.Stat.Ann. §§ 5503, 5103 (Purdon 1979 Pamphlet).

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

PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. DAVIN. (Circuit'Court of Appeals, Fourth Circuit. April 14, 1925.) No. 2330. Insurance @=>349(1) — Policy held lapsed1 for nonpayment of premium. A provision of a life policy that, on default in payment of a premium, the policy should lapse, and, in the absence of other election by insured, the cash surrender value, less any indebtedness of insured to the company, should be applied as a premium to pay for extended insurance in the amount of the face of the policy, less any such indebtedness, held valid, and where, when a premium became due and was not paid, insured was indebted on a note given for a prior premium which, with interest, exceeded the surrender value, the policy automatically terminated on expiration of the time of grace allowed for payment of the premium. In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington; George W. Me-Clintic, Judge. Action at law by John W. Davin, administrator of the estate of William J. Quinn, deceased, against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant brings error. Reversed. Douglas W. Brown, of Huntington, W. Va. (Fitzpatrick, Brown & Davis, of Huntington, W. Va., on the brief), for plaintiff in error. Connor Hall, of Huntington, W. Va. (Dee-gan & Hall, of Huntington, W. Va., on the brief), for defendant in error. Before WOODS, WADDILL, and ROSE, Circuit Judges. ROSE, Circuit Judge. This is a suit against the Pacific Mutual Life Insurance Company of California, plaintiff in ' error, brought by the defendant in error, John W. Davis, as administrator of William J. Quinn, deceased, suing for his own use and benefit as such administrator and for Andrew’ J. Dalton and John A. Kelly, upon a policy of insurance, issued by the plaintiff in error, upon the life of Quinn. Dalton and Kelly were creditors of the deceased for something over $9,000, and as security for their debt he had, during his lifetime, assigned the policy to them. Dor clearness and brevity, the plaintiff in error, the defendant in error, the deceased, and Dalton and Kelly, will be referred to as the company, the administrator, the insured, and the assignees, respectively. While the trial below was to a jury, no issue of fact was there, or is here, in dispute as was recognized by each party moving for a directed verdict in its favor and asking for no other instructions. On the 2d of June, 1920, the company issued to the insured, who was then 26 years old, the policy sued on. It was for $25,000, and the annual premium upon it was $420, payable annually in advance on the 2d day of June of each year. The premium for the first year was paid in cash at the time the policy was issued, and on the 2d of June, 1921, the second premium was met in like manner. The third premium fell due on June 2, 1922. No payment was then made on it, but on the 1st of August of that year the e.ompany accepted from the insured his promissory note payable on September 2, 1922, for $437.50, with interest at 6 per dent, from June 2, 1922. The amount of the note covered not only the premium on his life insurance policy, but an additional sum of $17.50 as premium on an accident annexed to it. By the terms of the policy, either party could terminate the accident provision, and with it, the right to receive and the obligation to pay $17.50 of the amount promised and subsequently it was terminated, but after the $17.50 included in the note had been earned by the company. This note was not paid at maturity, and, indeed, nothing was done as to it until the 2d day of January, 1923, when the company received $35 on its account reducing the amount then due upon it, principal and interest, to $417.81. It is stated that this payment was made by the assignees for the purpose of reducing the amount due on the note below the cash surrender value of the policy so that the company could safely continue the policy in force for a while longer. On June 2,1923, another premium of $420 fell due. It was not paid and no payment was ever made on the note except the. $35 already mentioned. On the 2d of June, 1923, the amount owed the company on the note, principal and interest, was $428.27, and the premium due in advance on that day amounted to $420 more. The cash surrender value of the policy was then $425, so exclusive of the premium due June 2, 1923, the deceased then owed the company $3.27 more than the amount of its then cash surrender value. The insured died on May 13, 1924, without he or anybody else having made further payments on account of the note or the policy, or, indeed, without anybody, so far as the record discloses, having since January 2, 1923, communicated with the company concerning it. The company regarded the policy as having lapsed months before the death of the insured. The administrator contended that the policy was in force at the time of the insured’s death, and that he was entitled to collect the face of it less the sum due on the note, and the premium overdue since June 2, 1923, with interest on the balance, making $24,850.82. The court agreed with the administrator and instructed a verdict accordingly. The company bases its claim that the policy had lapsed before the death of the insured upon certain provisions of it. They in substance provide that upon default in the payment of a premium, the company was to be under no liability except such, if any, as was set forth in certain paragraphs of the policy headed’ “Nonforfeiture and Automatic Nonforfeiture.” By those provisions, the insured was given the right to elect within three months after the default in payment of the premium, but not later, any one of three options with the? further provision that in the event of no such election, the insurance was to be automatically continued as provided in option three. The insured made no election, nor did any one for him, so that his rights under the policy are governed solely by option 3, which reads: “That the insurance for the face amount of this policy, less any indebtedness thereon to the company, will be continued in force from date of default for such term as is hereinafter provided, but without the right to loans.” It defines cash surrender value as “equal to the entire reserve on the face amount of this policy, computed according to the American Experience Mortality Table and interest at the rate of 3% per cent, per annum. Any indebtedness hereon shall be deducted from the cash surrender value.” “The amount of the paid-up life insurance, or the term of the paid-up term insurance, shall he such as the amount of the cash surrender value reduced by the amount of any indebtedness thereon to the company will purchase or buy, as the net single premium at the attained age of the insured based on the American Experience Mortality Table, and interest at the rate of 3% per cent, per annum.” Now, the note of the insured had been given for the third annual premium. If it had been paid, as it was not, the cash surrender value on June 2, 1923, of the policy would have been $425, which would have bought extended term insurance for 2 years and 50 days; but there was an indebtedness, and that indebtedness exceeded, by $3.27, the amount of the cash surrender value. The provision is clear that the policy was to be continued for only such term as the amount of the cash surrender value reduced by the amount of any.indebtedness, due on the policy, would purchase. There was nothing with which to buy any extended insurance whatever, so that the policy automatically terminated at the end of the 31 days’ grace given by its terms; that is, at the close of July 3, 1923. So the company then assumed, and still insists. The administrator says that even if the provisions of the policy relied on by the company are valid and are to receive the construction which the company puts upon them, nevertheless the policy was still in force, because it provides that failure to repay a loan or interest thereon “shall not avoid this policy unless the total indebtedness thereon to the company shall exceed the ■ cash surrender value at the time of such failure, nor until thirty-one days after notice of such fact shall have been mailed by the company to the last known address of the insured and of the assignee, if any, from the home office of the company.” It is admitted that no notice of forfeiture for the nonpayment of the note was ever sent, nor was any required. The policy was not forfeited for the nonpayment of the note. What happened was that the premium fell due on the 2d of June, 1923. It was not paid at that time, nor during the 31 days of grace. Entirely irrespective of whether a note was outstanding or not, the insured had the right to elect any one of the three options given him by the policy, and upon his failure so to elect, automatically the policy for itself elected the third option, and then for the first time the fact that he owed any money on the note properly entered into consideration. His policy was to be extended for such time as could be paid for by the cash surrender value after all indebtedness due by him was deducted from it. It so happened that when the indebtedness due by him was deducted from the cash surrender value of his policy, the result was a minus quantity, and he was not entitled to any extension at all. This is a very different situation from that contemplated by the policy provision relied on by the administrator. The main stress of the latter’s argument to sustain the judgment below, however, rests upon his contention that option 3 does not appear to mean what the company says it does mean, and being ambiguous, the ambiguity must be resolved against the company; secondly, even if it is to be construed as meaning what the company says it does, it is so unfair as to be invalid. We can see nothing uncertain in the provision. To us, it seems perfectly clear. It says in effect that when the option No. 3 is chosen by the insured or automatically comes into force because of his failure to elect either of the others, certain things shall happen. From the cash surrender value of his policy at the time shall be deducted the amount of any indebtedness he owed the company. The balance shall be used in buying for him insurance in the amount of the face of his policy less the indebtedness he owed the company for such length of time as at his age, in accordance with certain definitely described tables, the balance is sufficient to pay. This is perfectly clear, and it means just what it says, and it cannot be understood as meaning anything else. It is to be remembered that the policy is forfeited for nonpayment of premium, or would be, except for the provision in it with which we are now concerned. In the absence of statute, the parties may agree for whatever grace, be it great or small, the company may be willing to give and the assured is willing to accept. It is a pure matter of contract. Moreover, whether the company shall agree that the extended term insurance shall be for the amount of the face of the policy, or for an amount less than the face, does no harm to the insured. The provision is that he is to get paid-up term insurance for so long as the net amount to the credit of his cash reserve will suffice to pay. That is to say, if the face of his policy was $20,000 and he owed the company $10,000 and the amount to the credit of its cash reserve would presumably buy paid-up term insurance for $20,000 for-one-half the time, it would buy it for $10,000, so that whatever the insured lost in the amount of the paid-up policy he gained in the length of time during which it would be in force. The provision made by the company is more favorable to the insured than is required by the statute law of West Virginia. Barnes Code, chapter 34, § 34 A. It is said, however, that in this way the company received a double payment of its indebtedness: First, by deducting the indebtedness from the cash reserve; and, second, by again deducting it from the face of the policy as has already been pointed out. Deduction from the face of the policy is an altogether immaterial matter, for, as already pointed out, what the insured loses in the amount of the policy he gains in the time for which it is extended. Quite obviously, for the protection of the company, it must deduct any indebtedness due the company from the cash reserve before it can apply the cash reserve to buying extended insurance, for if it did not do so, the insured would get insurance for which he had not paid, and for which, if he did not happen to die, within the period of extension, he never would pay and never could be compelled to pay. What we have said disposes of the further contention of the administrator that in some way the company is charging the insured upwards of 6 per cent, on his loan. It i's doing nothing of the kind. There is no foundation that we can see for this contention. In accordance with the plan agreed upon between the company and himself when he took the policy, the net cash reserve is used to buy its ordinary value in extended term insurance in the manner prescribed in the policy, and that i's all there is to it. It follows that the learned court below should have instructed the jury to find for the company and not for the administrator. Reversed.'

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

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

MISSOURI PACIFIC RAILROAD COMPANY 5¼% SECURED SERIAL BONDHOLDERS’ COMMITTEE, Appellant, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Debtor, et al., Appellees. Bolton SULLIVAN and Stewart Huston, Independent Directors of Missouri Pacific Railroad Company, Appellants, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Debtor, et al., Appellees. Charles H. ALBERS, Frances M. Blakely, C. W. Boden, Avery Brundage, John Katsulos, Margaret L. Kent, Paul E. Kling, Thomas B. Shearman, James Sullivan and Edith Westercamp, Owners of Certain Shares of New Orleans, Texas & Mexico Railway Company, Appellants, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Debtor, et al., Appellees. Nos. 15471, 15472, 15475. United States Court of Appeals Eighth Circuit. Feb. 28, 1956. C. Ives Waldo, Jr., Chicago, Ill. (George S. Roudebush, St. Louis, Mo., Harry B. Sutter, James J. McClure, Jr., Chicago, Ill., Jones, Hocker, Gladney & Grand, St. Louis, Mo., Hopkins, Sutter, Owen, Mulroy & Wentz, Chicago, Ill., on the brief), for appellants in No. 15,475. Russell L. Dearmont, St. Louis, Mo. (Thomas T. Railey, St. Louis, Mo., on the brief), for appellees, Guy A. Thompson, as trustee, Missouri Pac. R. Co., and others, debtors, and in behalf of other appellees generally. Briefs filed on former appeals, Nos. 15,335, 15,336 and 15,337 as reported in 225 F.2d 761, were again submitted to the Court in the instant appeals. Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTER-HOUT, Circuit Judges. . The appellant, Missouri Pacific Railroad Company 5)4% Secured Serial Bondholders Committee, should not be confused with one of the appellees — Protective Committee for Secured Serial 5)4% Gold Bonds of the Missouri Pacific Railroad Company. The appellant is commonly known as the Cubbins Committee, and the named appellee as the Smith Committee. WOODROUGH, Circuit Judge. After the Plan of Reorganization (sometimes called the Agreed System Plan) for the three principal debtors and their subsidiary debtors herein was approved by the Order of Judge Moore on February 25, 1955, 129 F.Supp. 392, the Interstate Commerce Commission submitted the Plan for acceptance or rejection by creditors and stockholders voting by classes in accordance with Section 77, sub. e of the Bankruptcy Act, 11 U.S.C.A. § 205, sub. e and two classes of security holders, namely Class 3 and Class 19, failed to accept it by a vote of more than two-thirds of those voting as required by the section. Class 3 consisted of slightly over 4 per cent of the New Orleans, Texas and Mexico Railway Company capital stock which is outstanding in the hands of the public and shares of that stock pledged to secure Missouri Pacific 554% Secured Serial Bonds and Class 19 consisted of the Missouri Pacific 5}4% Secured Serial Bonds. A hearing was accordingly held by Judge Moore in July, 1955, on the question of confirming the Plan as contemplated by Section 77, sub. e of the Bankruptcy Act. All of the testimony and exhibits accepted in evidence at the pri- or approval hearing were then before the Court and evidence was adduced showing that no substantial changes in conditions had arisen after the approval to justify withholding confirmation of the Plan. Financial exhibits bringing exhibits offered at the approval hearing down to date were offered and received in evidence and there was additional evidence tending to support the Plan in respect to its treatment of Classes 3 and 19. No testimony was offered on behalf of Class 3 or Class 19. The Court found that “the Plan makes adequate provision for fair and equitable treatment for the interests or claims of those rejecting it and such rejection is not reasonably justified in the light of the respective rights and interests of those rejecting it and all the relevant facts.” 11 U.S.C.A. § 205, sub. e. The Court also found that “the Plan of Reorganization among other things provides for the merger or consolidation of Debtor Companies. Such a merger or consolidation was voluntarily initiated by Debtor Companies.” In general and detailed findings the Court found that all the requirements of the Act had been complied with and it confirmed the Plan. These three appeals to obtain reversal of the Order Confirming the Plan are taken by the same parties that appealed to this Court from the Order Approving the Plan, 8 Cir., 225 F.2d 761. After establishing jurisdiction here by duly filing Notices of Appeal, they have entered into stipulations subject to this Court’s approval for the purpose of expediting the appeals and the ultimate decision thereof. We find the stipulations to be competent and sufficient for the purposes of the appeal and have received and considered them. Nos. 15,471 and 15,472 It appears from the stipulations of the parties who prosecute these appeals in Nos. 15,471 and 15,472, and from the Record in these appeals that the issues which they now raise in these two appeals from the Orders Confirming the Plan are the same as those urged by them on their prior appeals from the Orders Approving the Plan, (Nos. 15,335 and 15,336, 225 F.2d 761), and all of the records, evidence, points relied on and contentions of their prior appeals are again presented here in addition to the record of the proceedings upon the Order Confirming the Plan. No new briefs have been filed here by the appellants in these two appeals and they waived oral argument in this Court. In No. 15,471 the Record shows that the appellant 5%% Secured Serial Bondholders’ Committee opposed the approval of the Plan in the District Court on many specified grounds but on the appeal from the Approval to this Court (No. 15,335), the appellant “relied in its brief and oral argument upon the single point that ‘The present Agreed System Plan is illegal because there has been no compliance with the provisions of Section 5 of the Interstate Commerce Act (49 U.S.C.A. § 5)’ * * * " 225 F.2d 761, loc. cit. 764. That point received full consideration by the Commission, the District Court, 129 F.Supp. 392, this Court, 225 F.2d 761, and on application for certiorari by the Supreme Court. Albers v. Thompson, certiorari denied, 76 S.Ct. 347, January 31, 1956. We consider it again as it is again presented on this appeal and on appeal No. 15,475, hereinafter discussed, and hold as we did in No. 15,335 that Judge Moore has fully supported his conclusions that the Plan should be confirmed as to the merger provisions embodied in it. The appeal in No. 15,471 therefore affords no ground for reversal of the judgment Confirming the Plan which is appealed from. In No. 15,472 the Record shows that the appellants Bolton Sullivan and Stewart Huston, so-called “Independent Directors of Missouri Pacific Railroad Company", were permitted to participate in the hearing on the approval of the Plan subject to the objection that “they have no authority to represent the Debtor, its Board of Directors or any defined or determinable group-of creditors, stockholders or others having a right to be heard.” On the appeal in No. 15,336 we held, 225 F.2d 761, loc. cit. 764, that these appellants “have no authority to represent ‘any party in interest’ within the intendment of Section 77, sub. e, or to represent ‘any * * * interested party’ within Section 77, sub. e (13)” and we directed “that their appeal be dismissed.” On reconsidering the same matter here, we reach the same conclusion and direct that this appeal, No. 15,472, be dismissed. No. 15,475 In No. 15,475 the appellants, owners of certain shares of stock of New Orleans, Texas and Mexico Railway Company, have also entered into a stipulation whereby their objections to the Approval of the Plan as well as their objections to the Confirmation of it, and all of the proceedings relative to both sets of objections and both judgments have been brought up. They have filed a new brief and assign as their point for reversal that the Plan does not make adequate provision for fair and equitable treatment of appellants and that their rejection of the Plan was justified. They also resubmit the prior briefs which they submitted to this Court on their appeal from the Order of Approval of the Plan (No. 15,337). Their position and contentions against Confirmation of the Plan have also been presented to this Court by their counsel in oral argument. We have not failed to notice the contentions of these appellants that under the particular provisions of Section 77, sub. e of the Bankruptcy Act, the former decision of this Court affirming the District Court’s Approval of the Plan does not control or do away with the necessity of a hearing and decision upon that Court’s Confirmation of the Plan. The Order of Approval was entered on February 25, 1955. It does not necessarily follow that treatment which was fair and equitable on the earlier date was equally so at the later time in July, 1955, when confirmation was in issue. But the record shows that the question of the value of the stock owned by these appellants and the treatment that should be accorded them in the reorganization has been completely and profoundly studied and expert, informed opinion fully supports the finding of the District Court that the valuation ascribed to it for reorganization purposes in the Plan and the means of compensation included in the Plan are fair and equitable. Though they had full opportunity to do so, the appellants offered no testimony either on the hearing to Approve or on the later hearing to Confirm the Plan that their stock had any greater value or that it should receive any other or better treatment than has been accorded it. On full consideration and re-consideration, we are satisfied that the action of the Commission in respect to the securities of these appellants was based on competent and substantial evidence and that there was no error as respects these appellants in the Order of the District Court Confirming the Plan. The opinion No. 4590, Order No. 4590-A and “Order, Judgment and Decree” of the District Court filed September 19, 1955, appealed from in 15,471 and 15,475 are 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 "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?

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

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

MANN v. PEOPLES FIRST NAT. BANK & TRUST CO. SHERWOOD DISTILLING CO. v. PEOPLES FIRST NAT. BANK & TRUST CO. Nos. 6700, 6701. United States Court of Appeals Fourth Circuit. Argued Nov. 13,1953. Decided Jan. 4, 1954. Wilson K. Barnes, Baltimore, Md. (William Hoffenberg, Baltimore, Md., on brief), for appellants. Richard F. Cleveland, Baltimore, Md. (William A. Fisher, Jr., Baltimore, Md., •on brief), for appellee. Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges. PARKER, Chief Judge. These are appeals in the involuntary bankruptcy proceedings instituted against one Louis Mann and the Sherwood Distilling Company, a corporation in which he is the sole stockholder. An adjudication of bankruptcy has not been had in either of these proceedings; but, while they are still pending, the Peoples First National Bank and Trust Company of Pittsburgh (hereafter called the bank) has filed a petition that it be allowed to sell the Distilling Company stock which Mann had pledged with the bank as security for a loan. From an order granting the leave to sell, 116 F.Supp. 852, both Mann and the company have appealed. The facts are that Mann is the sole stockholder in the company, owning its entire capital stock of 980 shares. He and the company were sued by the bank on a note secured by a pledge of the stock and certain whiskey certificates, and the right to recover on the note and to hold the stock and whiskey certificates as collateral thereto was put in issue in that case. Judgment was rendered in favor of the bank and against both Mann and the company for the sum of $694,600, and the judgment was affirmed by this court on January 3,1952. Sherwood Distilling Co. v. Peoples First National Bank & Trust Co., 4 Cir., 193 F.2d 649. Re^ hearing was denied February 18, 1952. See 4 Cir., 194 F.2d 387. Petitions in involuntary bankruptcy were filed against both Mann and the company on May 22, 1952. In the petitions it was alleged that both Mann and the company were insolvent, that they had made preferential transfers of property while insolvent and had allowed the bank to acquire under its judgment liens upon their property which they had failed to vacate or discharge. On June 4, 1952, Mann and the company filed motions to dismiss the bankruptcy proceedings and on the same date filed answers denying insolvency and pleading other defenses. On December 5, 1952, the motions to dismiss the proceedings were denied but no action was taken toward hearing the issues raised by the answers. On January 16, 1953, the petitioning creditors filed petition asking that Mann and the company be required to file their books, papers and accounts for inspection and these were duly filed in accordance with order entered on the petition. On February 9,1953, before these had been filed, the bank filed a petition in the Mann case asking that it be allowed to sell the stock in the company which it held as pledgee, stating that, if it were allowed to do so, it would purchase the stock or cause it to be purchased if this could be done for not more than $25,000 and would then, as sole stockholder of the company, consent for it to be adjudicated a bankrupt or take the necessary steps to have it file a voluntary petition in bankruptcy. The pertinent paragraphs of the petition are as follows: “7. That Peoples Bank desires to sell the said 980 shares of the stock of Sherwood, at public sale, pursuant to its rights as pledgee, and/or as a judgment creditor of Sherwood and/or Mann, and is advised and believes that it has the right to sell such stock, notwithstanding the pending petitions in bankruptcy in these causes, but Peoples Bank is further advised that it is appropriate to obtain the prior approval of this Honorable Court, in which these bankruptcy causes are pending. “8. That Peoples Bank believes said 980 shares of stock of Sherwood are of only nominal value, if any, in view of Sherwood’s financial condition; Peoples Bank represents that it will purchase such stock at such sale, or cause it to be purchased by a nominee, if the same can be purchased at such sale for not more than $25,000, and Peoples Bank further represents that if and when it or its nominee becomes the owner of such stock, it will promptly take or cause to be taken the necessary steps to consent to adjudication by Sherwood in the present proceedings, or to place Sherwood in voluntary bankruptcy, in this Court; and Peoples Bank further represents that the sole reason for such contemplated procedures is to expedite an orderly liquidation of Sherwood’s assets for the benefit of all of Sherwood’s ¡creditors as their rights may be determined pursuant to law.” Mann filed answer in which he denied that the shares of stock in the Distilling Company had been pledged to the bank and alleged that the books of the Distilling Company showed that they had a value of $596,614.13, as of April 30, 1952, less than a month prior to the filing of the petition to have the company adjudged bankrupt. The judge below, taking judicial notice of what was at- issue in the suit by the bank on the note and collateral, found that the shares of stock had been validly pledged to the bank and granted it authority to sell them as pledgee, holding that the bank had the right to make the sale without obtaining-the court’s permission and that there was nothing in the purpose for which the sale was desired which would justify the court in refusing to permit it. We think that the judge below was correct in holding that he could take judicial notice of the proceedings had before him in the prior suit to which Mann and the Distilling Company as well as the-bank were parties. Morse v. Lewis, 4 Cir., 54 F.2d 1027, 1029; Fletcher v. Bryan, 4 Cir., 175 F.2d 716; Ellis v. Cates, 4 Cir., 178 F.2d 791, 793. The record in that case, which was before us on appeal, shows that the validity of the pledge of the stock was expressly put in issue by the pleadings, that evidence was taken at length with regard thereto, that the matter was covered by the charge of the court and that the jury’s verdict found the issues in favor of plaintiff. The fact that the judgment may not have dealt with the pledged collateral is not conclusive where it is otherwise shown by the record in the case that the matter was at issue and duly passed upon. The parties are not entitled to try over again an issue which has been tried and decided in the prior litigation. We do not think, however, that the order allowing the sale of the stock by the pledgee can be sustained when it appears that there is a controversy as to the solvency of the corporation upon which the value of the stock necessarily depends, that this-controversy has been raised in an involuntary bankruptcy proceeding against the corporation which it is contesting, that this proceeding has been pending in court for more than a year without having been decided, and that the bank has admitted in its petition that its purpose in asking the sale is to have the stock’bought in by someone who will consent to an adjudication in bankruptcy. The provisions of the bankruptcy act, 11 U.S.C.A. § 1 et seq., providing for a hearing in involuntary proceedings cannot be bypassed in this way. It is no answer to say that the pledgee has the right to sell the stock pledged with it as collateral whether the pledgor or the corporation is solvent or insolvent, and that its purpose in making the sale is immaterial. It is the duty of the court from the time of the filing of the petition in bankruptcy to take all necessary action to protect the assets of the estate of the alleged bankrupt. Not only should the court not consent to a sale which might result in assets being sacrificed pending adjudication but should use its power to prevent their being sacrificed when it appears that a sale might have this effect; and the fact that the sale is sought for the purpose of avoiding a hearing on the issues of insolvency is an added reason why permission to make the sale should not be granted. In the case before us, petitions in involuntary bankruptcy had been pending for more than a year against both Mann and the company, who claimed that they were not insolvent but that the stock of the company v/as worth more than half a million dollars. The bank alleged that the stock had only nominal value and stated that it was willing to put up only $25,000 for the purpose of buying it in. Whatever the value of the stock, it is perfectly clear that it would bring little or nothing if sold while the petition in bankruptcy was pending; for unless a purchaser had some such motive in making the purchase as is avowed in the petition he would not ordinarily be willing to buy into a law suit. This court dealt with a somewhat similar situation in Wingert v. Kieffer, 4 Cir., 29 F.2d 59, 60, where we said: “It is ordinarily true that the pledgee of stock, unless restrained by the bankruptcy court, may proceed to sell under the power of sale contained in the pledge without asking the consent of the court. But it by no means follows that the court should allow the pledgee to make such sale, where it appears that the pledgee is one of the petitioners in the bankruptcy proceeding, and, as such, has invoked the power of the court to handle the estate of the alleged bankrupt, and, by the filing of the petition and securing the appointment of receivers, has made it impossible for him to protect his interest on the sale. The power of the court to enjoin the sale by the pledgee cannot be doubted. Alle-bach v. Thomas, 4 Cir., 16 F.2d 853. And we think that ordinarily the court should not hesitate to exercise the power where it appears that, while a petition in bankruptcy is pending, and before there has been an adjudication, a petitioning creditor attempts to sell property pledged or mortgaged to him by the alleged bankrupt.” In the case of Wingert v. Kieffer, a receiver for the assets of the alleged bankrupt had been appointed pending adjudication of bankruptcy and the language above quoted was used to express our disapproval of the practice of permitting a sale of pledged assets where the pledgee had filed the petition in bankruptcy and the pledgor had been rendered impotent to protect his interest on the sale. The same principle should apply where the filing of petitions against both the pledgor and the corporation whose stock he has pledged will render it practically impossible for him to protect his interest and will have the effect of destroying the sale value of the stock. A pledgee asking a sale for the mere purpose of liquidating his collateral and applying the proceeds on the debt of pledgor is in a very different position from a pledgee asking a sale for the purpose of avoiding a hearing on the issues raised by a petition and answer in bankruptcy. Some of the cases, without considering any such circumstances as are here involved, lay down in general terms the rule that in ordinary bankruptcy proceedings the court will not enjoin a sale by a pledgee. In re Mayer, 2 Cir., 157 F. 836; In re Hudson River Navigation Corporation, 2 Cir., 57 F.2d 175. This is not the rule applied in reorganization proceedings under recent -amendments of the Bankruptcy Act; and in such a proceeding in which the power •of a bankruptcy court to enjoin sale by pledgees was sustained the Supreme ‘Court refused to express an opinion as to whether the rule should be applied in •ordinary bankruptcy. Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago, R. I. & P. R. Co., 294 U.S. 648, 676, 55 S.Ct. 595, 79 L.Ed. 1110. The power of the bankruptcy court to enjoin the foreclosure of a mortgage on real estate, however, is expressly recognized (Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645; Straton v. New, 283 U.S. 318, 321, 51 S.Ct. 465, 75 L.Ed. 1060), and there can be no difference between the power to enjoin sale under a mortgage and sale under a pledge. As said by the Supreme Court in the case of Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. R. Co., supra [294 U.S. 648, 55 S.Ct. 606], “So far as constitutional power is concerned, there is no difference between an injunction restraining the enforcement of a real estate mortgage and one restraining the enforcement of a pledge by the sale of collateral security”. And there is no difference that we can see between the two when the question under consideration is the protection of the estate of the bankrupt. The enforcement of the lien of a pledge by sale of the pledged property is not different, for the purposes of the question here under consideration, from the enforcement of any other lien (In re Henry, D.C., 50 F.2d 453); and the rule applies that the court of bankruptcy “may inquire into the validity of liens, marshal them, and control their enforcement and liquidation.” Straton v. New, supra, 283 U.S. 318, 321, 51 S.Ct. 465, 466, 75 L.Ed. 1060. While a court of bankruptcy should not ordinarily interfere with the right of a pledgee to sell the pledged property, it is clearly within the power and duty of the court to protect assets which may come into the hands of the trustee in bankruptcy upon an adjudication, See Gins v. Mauser Plumbing Supply Co., 2 Cir., 148 F.2d 974, 979; and the court should certainly not give its consent to a sale by the pledgee under such circumstances as here exist, where there is a controversy as to the value of the stock and the stock, even if it has value, will probably sell for little or nothing in view of the pending bankruptcy proceedings, and where the sale is sought for the purpose of defeating a hearing on the questions raised by the answers to the bankruptcy petitions. See In re Henry, D.C., 50 F.2d 453; In re Purkett Douglas & Co., D.C., 50 F.2d 435; Grabosky v. Kephart, 3 Cir., 72 F.2d 542. There is nothing to the contrary in Hiscock v. Varick Bank, 206 U.S. 28, 27 S.Ct. 681, 51 L.Ed. 945, relied upon by appellee. That case held merely that the bankruptcy act did not deprive a lienor of any rights or remedies with respect to collateral held by him and that a sale by a pledgee made after the filing of a petition in bankruptcy would not be set aside under the circumstances there appearing. There was no holding that the court was without power to enjoin a sale for the protection of the bankrupt’s interest in pledged collateral or that the court should authorize the pledgee to make a sale for the purpose of having it purchased for a nominal sum and used to defeat a hearing in a pending bankruptcy proceeding. See also Collier on Bankruptcy, 14 ed., vol. 3, p. 270. Whether a pledgee should be permitted to sell pledged property pending an adjudication of bankruptcy is, under ordinary circumstances, a matter resting in the sound discretion of the court of bankruptcy. Under the circumstances appearing in this case, however, we do not think that the order permitting the sale falls within the limits of a sound discretion but that an order staying the sale should have been entered pending the hearing on the petitions for adjudication. The learned trial judge in granting the order permitting the sale adverted to the fact that the alleged bankrupts had been guilty of dilatory tactl-which had unnecessarily delayed bankruptcy proceedings and hinder, bank in the assertion of its rights under its judgment and pledge. We do not doubt that the bank has proceeded in good faith in the steps it has taken or that in entering the order permitting the sale the trial judge was endeavoring to expedite proceedings which were being unduly delayed. We do not think, however, that under the circumstances heretofore set forth sale of the stock should be permitted until the petitions for adjudication in bankruptcy have been passed upon. The order appealed from will accordingly be reversed and the cases will be remanded for further proceedings not inconsistent herewith. 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 "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?

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

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 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?

Richard A. HOWERTON, Appellant, v. Hugh F. RIVERS et al., Appellees. No. 17989. United States Court of Appeals District of Columbia Circuit. Argued Oct. 8, 1963. Decided Nov. 21, 1963. Mr. Morton E. Yohalem, Washington, D. C. (appointed by this court) for appellant. Mr. R. Daniel Devlin, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Robert B. Norris, Asst. U. S. Attys., were on the brief, for appellees. Before Prettyman, Senior Circuit Judge, and Wilbur K. Miller and McGowan, Circuit Judges. . This section provides: “A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.” PER CURIAM. In 1954 appellant was convicted on two counts of violating the federal narcotics acts (21 U.S.C. § 174 and 26 U.S.C. § 2553(a)) and was sentenced to concurrent terms of three to nine years. On July 21, 1960, after serving approximately six years of the sentence, the appellant was conditionally released; he had earned 864 days of mandatory good time pursuant to 18 U.S.C. § 4161, and 269 days of industrial good time pursuant to 18 U.S.C. § 4162. On June 7, 1962, having found that appellant had violated his parole, the District of Columbia Parole Board revoked his parole pursuant to 24 D.C.Code §§ 205-206; deprived him of all good time earned, namely, 1133 days; and committed him to serve the full term expiring May 2, 1965. The maximum sentence imposed in 1954 normally would have expired on July 30, 1963. The appellant sought to challenge his recommitment by writ of habeas corpus in the District Court. That court granted appellee’s motion for summary judgment. Appellant contends that the District Parole Board should have acted pursuant to 18 U.S.C. § 4205 and 18 U.S.C. § 4207, rather than 24 D.C.Code §§ 205-206, in revoking his parole, since appellant was convicted for a federal crime rather than for an offense made criminal by the District of Columbia Code. This distinction becomes important to the appellant because it is argued that the parole board would have had discretion under 18 U.S.C. § 4207 to recommit appellant for less than the full remaining sentence, while under 24 D.C.Code § 206 there is no such discretion. Therefore, it is contended, since the Board purported to act under the D.C.Code, the action taken by it in this case was without benefit of any assumption by it of the existence of such discretion; and this constituted error. Appellant also argues that, in so far as the recommitment extends beyond the date upon which the maximum term imposed would have expired, the recommitment is not authorized by statute or, if so authorized, contravenes the Fifth Amendment. We find no merit in either contention. It is clear that the 1932 act— the predecessor to the present provisions —establishing the D. C. Parole Board, transferred authority over prisoners held in District prisons to the D. C. Board. It is also clear that the provisions of the District parole act, rather than the federal parole law, were to be applied to these prisoners. Sims v. Rives, 66 App. D.C. 24, 84 F.2d 871, cert, denied, 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402 (1936). See also, Story v. Rives, 68 App. D.C. 325, 97 F.2d 182, cert, denied, 305 U.S. 595, 59 S.Ct. 71, 83 L.Ed. 377 (1938); Gould v. Green, 78 U.S.App. D.C. 363, 141 F.2d 533 (1944); Noll v. Board of Parole, 89 U.S.App.D.C. 206, 191 F.2d 653 (1951); and Clokey v. United States, 310 F.2d 86 (4th Cir. 1962). The Fourth Circuit case of Gilstrap v. Clemmer, 284 F.2d 804, does not point towards a different result, because the court was there dealing with the question of whether the federal parole law or the D. C. parole law applied to a person convicted under the D.C.Code. Congress presumably can handle these varying situations in varying ways. Although it might be more logical for Congress to prescribe uniformity in the parole treatment of all United States prisoners, whether “D. C.” prisoners or “federal” prisoners, it is not urged upon us in this proceeding that it has done so. As for the second contention, the question is not yet ripe for review. It is true that the maximum sentence would have expired on July 30, 1963, if it had run without interruption. However, the record shows that the appellant left this jurisdiction in violation of his parole sometime prior to August 18, 1961, and went to New York. Moreover, he was there convicted of a crime and imprisoned in a New York prison for at least eight months, being released on May 15, 1962. Under no theory could it be contended that his 1954 sentence ran during this period. Thus, the maximum time originally imposed would not expire until sometime in 1964, even if appellant’s contention were accepted. In any case, we consider this court!s opinion in Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311, as dispositive on the merits of the argument. Affirmed. . This section provides: “A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. “The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the 'terms and conditions thereof. “If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.” . Section 205 provides: “If said Board of Parole, or any member thereof, shall have reliable information that a prisoner has violated his parole, said board, or any member thereof, at any time within the term or terms of the prisoner’s sentence, may issue a warrant to any officer hereinafter authorized to execute the same for the retaking of such prisoner. Any officer of the District of Columbia penal institutions, any officer of the Metropolitan Police Department of the District of Columbia, or any federal officer authorized to serve criminal process within the United States to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such prisoner and returning or removing him to the penal institution of the District of Columbia from which he was paroled or to such penal or correctional institution as may be designated by the Attorney General of the United States.” Section 206 provides: “When a prisoner has been retaken upon a warrant issued by the Board of Parole, he shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. At such hearing he may be represented by counsel. The Board may then, or at any time in its discretion terminate the parole or modify the terms and conditions thereof. If the order of parole shall be revoked, the prisoner, unless subsequently reparoled, shall serve the remainder of the sentence originally imposed less any commutation for good conduct which may be earned by him after 1ns return to custody. For the purpose of computing commutation for good conduct, the remainder of the sentence originally imposed shall be considered as a new sentence. The time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced. * * * ” . The appellant’s brief points out this variance between the two parole schemes and assumes that such difference exists. . The decision turned primarily upon the second paragraph of 24 D.C.Code § 206 which reads as follows: “In the event a prisoner is confined in, or as a parolee is returned to a penal or correctional institution other than a penal or correctional institution of the District of Columbia, the Board of Parole created by section 723a of title 18, U.S.Code, shall have and exercise the same power and authority as the Board of Parole of the District of Columbia had the prisoner been confined in or returned to a penal or correctional institution of the District of Columbia.”

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