opinion: BRIGGS v. PENNSYLVANIA R. CO.
  No. 16, Docket 20596.
  Circuit Court of Appeals, Second Circuit
  Oct. 30, 1947.
  Writ of Certiorari Granted Feb. 16,1948.
  See 68 S.Ct. 609.
  Alfred T. Rowe, of New York City, (Anthony Sansone, of Mamaroneck, N. Y., of counsel), for plaintiff-appellee.
  Louis J. Carruthers, of New York City (William J. O’Brien and Arthur R. Douglas, both of New York City, of counsel), for defendant-appellant.
  Before L. HAND, SWAN and CHASE, Circuit Judges.
  CHASE, Circuit Judge.
  In Briggs v. Pennsylvania R. Co., 2 Cir., 153 F.2d 841, 163 A.L.R. 1281, we reversed a judgment for the defendant in this case. The District Court as directed by our mandate then entered a judgment on the verdict for the plaintiff but in addition included interest from the date of verdict to the date of entry of judgment. The defendant moved to resettle the judgment by disallowing such interest. Relying upon Louisiana & Arkansas Ry. Co. v. Pratt, 5 Cir., 142 F.2d 847, 153 A.L.R. 851, the District Court denied the motion and the defendant has appealed.
  The nature of the suit and the reasons for our reversal of the former judgment are stated in our previous opinion, with which familiarity will be assumed, and only what is needed to present the present issues will be repeated. During the trial a motion to dismiss the suit for lack of jurisdiction was made by the defendant. The court reserved decision on the motion and submitted the cause to the jury which, on February 15, 1945, returned a plaintiff’s verdict. The -motion to dismiss was granted, however, on April 19, 1945 and judgment for the defendant whs duly entered. We reversed that judgment on January 7, 1946 and by mandate of January 23, 1946 directed that judgment on the verdict for the plaintiff be entered. We neither did, nor were requested to, give any directions as to interest. On January 28, 1946 the judgment on our mandate was entered for the amount of the verdict and for interest from the date of the verdict as above stated.
  Some modification of this judgment is required. The relevant federal statute, 28 U.S.C.A. § 811, provides that interest on judgments “shall be calculated from the date of the judgment, * * *.” The action is based solely upon the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., and, being a suit to enforce liability under a federal statute, federal law controls. Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157; Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. The measure of damages is fixed by that law. Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367. Federal law likewise governs in respect to interest. Murphy v. Lehigh Valley R. Co., 2 Cir., 158 F.2d 481; Louisiana & Arkansas Ry. Co. v. Pratt, supra. Since no judgment could have been entered until the motion pending after verdict had been decided by the trial court, no interest can be. allowed between the date of the verdict and May 28, 1945 when that motion was decided and the judgment for the defendant was erroneously entered. Murphy v. Lehigh Valley R. Co., supra.
  The remaining question is whether interest should be allowed from the date a judgment for the plaintiff on the verdict would, in the absence of error in decision, have been entered, viz., the date when the original judgment for the defendant was entered by order of court; or from January 28, 1946, the date when judgment for the plaintiff was actually entered after our mandaie went down. And if the latter date is the correct one, we must decide whether we now have any power to amend that mandate to make the judgment date nunc pro tunc that of the original judgment and, if so, whether that power ought to be exercised.
  It is true that subsequent events have shown that on the date of the original judgment the plaintiff was entitled to have a judgment entered on the verdict and that this judgment would have borne interest •until it was paid. But from a practical ■standpoint it is equally true that the plaintiff then was “entitled” only to have the trial judge decide the pending motions and ¡direct the entry of such judgment as he fairly determined to be lawful and just. That is exactly what the trial judge did. Thereafter the plaintiff was “entitled” only to take whatever action by way of appellate review the law afforded her. The delay in the entry of the proper judgment was necessary in the sense that time for appellate review was required; it was only after the ordinary appellate proceedings had been completed that the plaintiffs’ cause of action had reached the point where her right to a judgment on the verdict was judicially established. That judgment was then •promptly entered. The date of its entry 'became the judgment day from which interest is to be computed under the statute. It was, under the circumstances, the first day when the judgment could have been .entered. See Murphy v. Lehigh Valley R. «Co., supra.
  The only judgment which could -fhen lawfully have been entered was, how,ever, one which conformed to the mandate ,of this court. That directed judgment in -the amount of the verdict but made no di-rec.tion whatever as to interest. When our ¡mandate specifically directs th'e entry of judgment for a designated amount, the ¡District Court is without power to enter 'judgment for a different sum. In re Washington & Georgetown R. Co., 140 U.S. 91, 11 S.Ct. 673, 35 L.Ed. 339; Thornton v. Carter, 8 Cir., 109 F.2d 316. So here the .error was not alone in the inclusion .of ’interest on the verdict to the date of the ,original judgment but extended also to •the inclusion of interest on the verdict up -to the date of the judgment on the mandate,
  For present purposes we will assume .that we could, and had the matter been timely called to our attention, would ¡have directed by our mandate the entry <of judgment for the plaintiff nunc pro tunc as of the day on which the original judgment for the defendant was entered. See Ireland v. Connecticut Co., 112 Conn. 452, 152 A. 614. But see Reed v. Howbert, 10 Cir., 77 F.2d 227; 1 Freeman on Judgments, 4th Ed., sec. 68. It is now too late, however, to recall the mandate and do that. The term in which it went down passed without any application having been made for its recall and amendment. While we have the power in this, the succeeding, term to act to that end, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 1281, 88 L.Ed. 1250, 1596, it is only in the most exceptional of circumstances, as where there has been a fraud upon the court, that it should be exercised. These circumstances are not present here. Nachod v. Engineering & Research Corp., 2 Cir., 108 F.2d 594; Dobson v. United States, 2 Cir., 31 F.2d 288, certiorari denied 278 U.S. 653, 49 S.Ct. 179, 73 L.Ed. 563. In so far as Blair v. Durham, 6 Cir., 139 F.2d 260, and Louisiana & Arkansas Ry. Co. v. Pratt, supra, may be in conflict herewith, we decline to follow them.
  The judgment is modified to exclude all interest upon the amount of the verdict up to the date judgment was entered and, as so modified, it is affirmed.
  Louisiana & Arkansas Ry. Co. v. Pratt, supra, does not necessarily have to be read to the contrary, since it may ■well be that the date of the verdict there coincided with that of the judgment for the defendant.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.