source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    EXXON CORPORATION, successor by merger to Esso International, Inc., Plaintiff-Appellee, v. A. L. BURBANK & COMPANY, LTD., Defendant-Appellant, and United States of America, Defendant-Appellee.
    No. 177, Docket 74-1649.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 11, 1974.
    Decided Jan. 31, 1975.
    Paul F. McGuire, New York City (Kirlin, Campbell & Keating, New York City, on the brief), for plaintiff-appellee.
    Alfred A. Meyer, New York City (Burke & Parsons, New York City, on the brief), for defendant-appellant.
    Warren A. Schneider, Atty., Admiralty & Shipping Section, U. S. Dept, of Justice, New York City (Paul J. Curran, U. S. Atty., S. D. N. Y., Carla A. Hills, Asst. Atty. Gen., U. S. Dept, of Justice, Gilbert S. Fleischer, Atty. in Charge, Admiralty & Shipping Section, U. S. Dept, of Justice, New York City, on the brief), for defendant-appellee.

      Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, District Judge.

       United States District Judge for the Southern District of New York, sitting by designation.

   MULLIGAN, Circuit Judge:

On or about March 5, 1965 Exxon Corp. and A. L. Burbank -and Co., Ltd., operating agent for various seafaring vessels, entered into a contract which provided that Exxon would sell fuel oil to Burbank for the remainder of the calendar year 1965. Accordingly, in October 1965 a quantity of fuel oil was delivered by Exxon in Venezuela to the S. T. Atlas, for which vessel Burbank was acting as operating agent. The amount due Exxon for this oil delivery, $22,006.00, was never paid, and this arrears has prompted the instant litigation.

The registered owner of the Atlas from August 27, 1958 until her judicial sale on March 10, 1966 was at all times Tankers & Tramps Corp. (Tankers). The Atlas was constructed pursuant to Title XI of the Merchant Marine Act, 46 U.S.C. § 1271 et seq., whereby the United States government, acting through its Maritime Administrator (Maritime), insured payment of the unpaid balance of the vessel’s purchase price. More specifically, this meant that the first preferred mortgage and its accompanying promissory note, held by the Bowery Savings Bank, were insured by the federal government.

On September 26, 1960 this mortgage was transferred to the Irving Trust Co. (Irving); simultaneously, Tankers issued to Irving additional bonds, to replace the original promissory note, and ' these bonds too were federally insured.

On August 9, 1963 Tankers gave the government a new promissory note, in consideration of a government loan constituting the amount of a mandatory redemption of its bonds; to secure payment of this note, Tankers executed in the government’s favor a second preferred mortgage on the Atlas.

On November 4 of the same year Tankers and the government’s Military Sea Transportation Service (MSTS) entered into a written charter agreement, signed by defendant Burbank as agent for Tankers, whereby the Atlas was chartered to the United States for a minimum of 5 years; this charter was in force at the time of the fuel-oil sale that is the subject of this action. Under the terms of the charter the anticipated rate for fuel oil was included in a freight rate to be paid by MSTS; in case of a rise in fuel-oil prices, a corresponding rise in the freight rate was provided for.

On July 1, 1964 Tankers and Burbank entered into an agency agreement concerning the Atlas’s operation. Pursuant to this agreement an account was established at Irving (“payment account”) to receive the earnings of the vessel, i. e., freight paid by the government under the charter, and from which Burbank could withdraw the funds needed to pay the Atlas’s operating expenses, including, naturally, fuel oil.

Approximately a year later, Tankers, being unable to make the payment necessary to redeem certain bonds due, successfully applied to Maritime for an advance loan of $276,000.00, and to Irving for an advance loan of $325,000.00. Consequently, on July 26, 1965, contracts were executed between Tankers and Maritime (contract No. MA-3927), and Tankers, Irving, and the government (contract No. MA-3928). The latter is excerpted in significant part in the margin.

In accordance with the latter contract a “cash collateral” account was set up at Irving to receive the earnings of the Atlas, out of which the advances from Irving and Maritime could be repaid. Burbank, as the ship’s agent, had no authority to withdraw funds from this account for the ship’s operating expenses, but rather had to submit statements for expenses to Maritime for approval; if approval was forthcoming, funds would be transferred from this account to the other “payment” account at Irving, discussed supra, from which Burbank could make payment. There was testimony which indicated that Maritime’s approval was routinely given for operating expenses.

In October 1965 Irving was repaid in full for its advance to Tankers.

In December of the same year Burbank sought transfer of $40,948.65 from the “collateral” account to the “payment” account, so that Burbank could pay off certain operating expenses, including the fuel-oil bill from plaintiff. However, on January 6, 1966 and without prior notice to Burbank, Maritime withdrew $210,000.00 from the collateral account to be applied toward repayment of the still-outstanding Maritime advance. This withdrawal so depleted the collateral account that insufficient funds remained to pay off the operating expenses charged, including plaintiff’s fuel-oil bill.

Exxon sued both Burbank and the federal government in order to secure payment for the oil. The case was tried before the Hon. Robert L. Carter in the Southern District of New York, who, on March 14, 1974, rendered judgment for plaintiff against Burbank for $31,111.00, inclusive of interest, plus costs; plaintiff’s suit against the United States, and a cross-claim by Burbank against the United States, were both dismissed.

Burbank now appeals solely from that part of the judgment that dismissed its cross-claim against the government. It is now undisputed that plaintiff is to be paid for its fuel oil; the only unresolved question is whether Burbank or the government is to pay.

Essentially, Burbank contends that it was inequitable for the United States to pay itself for its maritime advance out of fhe “collateral” account without first taking care of all operating expenses for which Burbank had not been reimbursed. In this regard Burbank reads contract No. MA — 3928 to allow repayment of the Maritime advance only after payment of the ship’s operating expenses.

We do not agree. It is clear from the plain language of the contract that Maritime had sole discretion as to how the funds were to be applied. The contract reads in pertinent part:

Irving shall retain and hold each such payment of charter hire or other monies until Maritime shall have determined the amount (if any) to be paid to the Company [Tankers] (or its agent [Burbank]) for the continued current operation of the Vessel; and Irving shall disburse such payment of charter hire or other monies to Maritime and/or the Company (or its agent) and in such amount as Maritime shall direct. .
The Company hereby authorizes, directs and empowers, Irving and Maritime respectively to apply any and all charter hire and other monies received under the Assignment to payment or prepayment of the Irving Advance and to payment or prepayment of the Maritime Advance respectively, (emphasis added).

From this language we can discern no contractual obligation on the part of the government to pay out for any operating expenses first, before retiring the debt owed to it. Indeed, the express purpose of contract No. MA-3928 was “to further secure the repayment to Irving of the Irving Advance and to Maritime of the Maritime Advance,” rather than to insure the payment of the Atlas’s expenses.

Therefore it appears that Mari-' time had every contractual right to take the action it did. In reply Burbank asserts that Maritime should be equitably estopped from paying itself before paying expenses because, in the past and as a matter of routine, Maritime always approved requests for reimbursement of expenses.

We disagree. Prior to Maritime’s action to repay its own advance, the Atlas had fallen into a precarious financial position, a fact that was known (or should have been known) to Burbank; therefore, the latter should have expected that Maritime, at any future time and in accordance with the express terms of the contract, would abandon any routine approval of expense requests and protect its own investment by using the funds to repay its advance. In fact shortly thereafter the vessel was arrested in a foreclosure libel filed by the government.

Affirmed.

      . “That, in consideration of Maritime making the Maritime Advance and Irving making the Irving Advance. . . and in order to further secure the repayment to Irving of the Irving Advance and to Maritime of the Maritime Advance, the parties hereto for themselves, their successors and assigns hereby covenant and agree as follows:
      1. That the Assignment and all monies received thereunder or in respect thereof and held by Irving until applied as herein provided shall be and remain as security, (a) for the Irving Advance until the Irving Advance has been paid in full and (b) for the Maritime Advance, subject to the prior payment in full of the Irving Advance, until the Maritime Advance has been paid in full.

        3. That after the Irving Advance has been paid in full (i) Irving shall immediately upon receipt by it of each payment of charter hire or other monies under the Assignment advise Maritime in writing of the date and type of payment, amount, and such other information as Maritime may reasonably request with respect thereto; (ii) Irving shall retain and hold each such payment of charter hire or other monies until Maritime shall have determined the amount (if any) to be paid to the Company (or its agent) for the continued current operation of the Vessel; and (iii) Irving shall disburse such payment of charter hire or other monies to Maritime and/or the Company (or its agent) and in such amount as Maritime shall direct.
      4. The Company hereby authorizes, directs and empowers, Irving and Maritime respectively to apply any and all charter hire and other monies received under the Assignment to payment or prepayment of the Irving Advance and to payment or prepayment of the Maritime Advance respectively.”

      . To this extent we disagree with the opinion of Judge Carter below, when he says: “Pursuant to these contracts the owner agreed to apply all monies it received, except those for operating expense, to pay its indebtedness to Irving and the government” (emphasis added). We can find no such exception within the four corners of the contract.


author: CHAMBERS, Circuit Judge:

text:
    Margaret M. LEVERSEN, as Executrix of the Estate of Leonard A. Leversen, now Deceased, Plaintiff-Appellant, v. The BOEING COMPANY, a corporation, Defendant-Appellee. Carol Elizabeth SCHLEMMER, as Administratrix of the Estate of Walter Ralph Schlemmer, now Deceased, Plaintiff-Appellant, v. The BOEING COMPANY, a corporation, Defendant-Appellee. (Santa Monica Air Crash Cases)
    Nos. 72-2587, 72-2591.
    United States Court of Appeals, Ninth Circuit.
    Jan. 27, 1975.
    As Amended May 5, 1975.

      D. Cathcart (argued), of Magana & Cathcart, Los Angeles, Cal., for plaintiff s-appellants .
    B. Boyd Hight Jr. (argued), of O’Melveny & Meyers, Los Angeles, Cal., for defendant-appellee.
    Before CHAMBERS, MERRILL and WALLACE, Circuit Judges.
   OPINION

CHAMBERS, Circuit Judge:

Leonard A. Leversen and Walter R. Schlemmer were the captain-pilot and the first officer (co-pilot) of a United Airlines flight crew that crashed into the ocean near Santa Monica as they were flying a nearly-new Boeing 727 jet aircraft on a regularly scheduled flight. No one aboard survived the crash.

There was more than one defendant, but only Boeing remains. The district court sitting in admiralty without a jury found Boeing’s flight manual was defective in its instructions on loss of electric power. The crew could have been following the manual and the procedure set forth therein could have been a proximate cause of the crash. But the trial court decided it could not find the faulty manual to be a proximate cause and found it was not a proximate cause. There was evidence that the United crews had been instructed to disregard the Boeing manual on the loss of electric power for instruments and employ a different procedure. Whatever presumptions there are in the field, it would be hard to presume the crew followed Boeing’s manual and rejected their employer’s instructions.

Additionally, the court’s finding that electric power for the instruments was never significantly interrupted at the relevant time undercuts the whole theory that a faulty manual caused the trouble.

We fully realize that in the recent years there has been a slackening of required proof in negligence cases and particularly in air crash cases. A great deal of speculation is permitted. The old rules of inferences on inferences being bad are pretty well gone.

But we simply cannot find yet any authority which requires the fact trier, when he has an abiding doubt reasonably based on all the evidence, to always find a defendant furnished a proximate cause, even though its violation of its duty of care was established.

After carefully reading the record, we cannot say the court’s findings were clearly erroneous.

We have some confidence that the survivors must have received a type of workmen’s compensation, and thus the dependents do not go away with nothing. Today, society demands that in cases such as this someone must pay. But things have not yet reached the point that courts are required to hold that everyone sued must pay.

We affirm.

Ruling as we have, we do not need to consider Boeing’s cross appeals.

      . The flight engineer was Keith R. Ostrander. Apparently the cockpit was occupied by Leversen, Schlemmer and Ostrander. Warren H. LeRoy, Eugene J. Blondeau, Charles A. Reynolds and Daniel B. Callahan were United Airlines crew members, but their status on the flight was apparently that of crew passengers. The latter four presumably were seated in the passenger cabin. Action in behalf of the heirs of all seven were filed, but only the representatives of Leversen and Schlemmer remain in the case as plaintiffs-appellants. No representatives of passengers are before this court.


author: EDWARDS, Circuit Judge.

text:
    Dolores Marie MEADOWS, Plaintiff-Appellant, Cross-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellee, Cross-Appellant, Local 862, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants-Appellees.
    Nos. 74-1258 and 74-1259.
    United States Court of Appeals, Sixth Circuit.
    Jan. 24, 1975.

      James C. Hickey, Ewen, MacKenzie & Peden, Louisville, Ky., Thomas L. Hogan, Louisville, Ky., for plaintiff-appellant, cross-appellee.
    Arthur W. Grafton, Edgar A. Zing-man, Sheryl G. Snyder, Jon L. Fleischaker, Louisville, Ky., Herbert L. Segal, Irwin H. Cutler, Jr., Louisville, Ky., for defendant-appellee, cross-appellant.
    Mary-Helen Mautner, EEOC, Washington, D. C. (William A. Carey, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, EEOC, on brief) for amicus curiae.
    Before EDWARDS and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   EDWARDS, Circuit Judge.

Plaintiff appeals from the denial of back pay and retroactive seniority after the District Court for the Western District of Kentucky had found that she and the class of women job applicants she represents had been denied jobs, in violation of the prohibition against sex discrimination in employment contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15 (1970), as amended, 42 U.S.C. §§ 2000e to 2000e — 17 (Supp. II, 1972). She also claims that the class involved was unduly restricted by the District Judge and that he ordered an inadequate amount of attorney fees.

This controversy arose when defendant Ford Motor Company began hiring employees for a new Ford Truck Plant in Jefferson County, near Louisville, Kentucky. Plaintiff Meadows applied for a production line job on October 10, 1969. She was not hired and heard nothing concerning her application but learned that Ford had hired over 900 men and no women. She then filed a charge of discrimination before the Equal Employment Opportunity Commission on January 14, 1970 alleging that the Ford Motor Company and Local 862, UAW were discriminating against her and other women similarly situated. The EEOC issued her a notice of right to sue and plaintiff Meadows filed this action in the District Court alleging that Ford employed a 150 lb. limitation on production line hires so as to eliminate women.

The case was heard by discovery and the taking of depositions. The District Judge entered findings of fact and conclusions of law on August 29, 1973, and followed by a final judgment which recorded his critical holdings as follows:

2. There are thirty-one (31) members of the Class represented by the Plaintiff in the instant action; the names, address and telephone numbers of the said members of the class are attached hereto and made a part hereof as if fully copied herein.
3. The use by the Defendant under the circumstances before the Court of the 150 pound weight requirement for eligibility for employment on its production line at its Kentucky Truck Plant constitutes an unlawful employment practice pursuant to the terms of the Civil Rights Act of 1964, 42 U.S.C. § 2000e — 1 et seq. (sic).
4. Neither the Plaintiff nor any member of the class is entitled to any award of damages. Plaintiff is awarded its costs herein expended and counsel fees in the sum of $11,500.00.
5. The Defendant, Ford Motor Company, be and hereby is permanently enjoined and prohibited from applying the 150 pound weight requirement for eligibility for employment on its production line at its Kentucky Truck Plant.
6. The names of the Plaintiff and the thirty-one (31) members of the class represented by the Plaintiff shall be placed by the Defendant in a priority employment pool in the order of the dates of their original application for production employment. The names of all other applicants for production employment are to be placed in a general pool in accordance with the present practice of Defendant. As production employment positions become available, Defendant shall select names from the two pools of applicants at a set ratio of one name from the priority pool for every three names from the general pool, and these individuals are to be notified by the Defendant of the job openings as they occur and given a reasonable opportunity to appear for a pre-employment physicial examination and the other processes regularly required of such applicants.

The District Judge defined the class of plaintiffs as those women who had applied for jobs at the Kentucky Truck Plant between April 1, 1971, and April 13, 1972, and who were refused jobs.

The District Judge also retained jurisdiction of the case to supervise implementation of his judgment.

The record showed that the two union defendants exercised no control over Ford hiring practices and the case as to them was dismissed by the District Court. No appeal was taken from this decision.

The Ford Motor Company waived its appeal from the portion of the District Judge’s judgment finding it guilty of discriminatory practices and requiring it to terminate them and to establish a priority system for offering employment to some 31 identified discriminatees.

On this appeal we deal only with plaintiffs’ complaints 1) that the District Judge’s judgment by refusing back pay and retroactive seniority failed to make them whole and failed to deter similar discrimination in the future, 2) that the District Judge defined the class of discriminatees too narrowly, and 3) that the attorney fees awarded did not consider all of the work performed in this litigation.

BACK PAY

The District Judge’s reasoning on the back pay issue is set forth in an opinion as follows:

However, having determined that liability for discrimination exists is not the same as finding that an award of money damages is in order. Indeed, the Court has found absolutely no authority for awarding money damages in a case like the present one. Under the relevant statute, 42 U.S.C. § 2000e(5) (sic), the only money damages that can be awarded are in the form of back pay. No court whose decision has been réported has been willing to award back pay to a group of persons who were never in the employ of the employer-defendant in the first place. Back pay has been awarded in cases of discriminatory refusal to promote or to transfer, and to some individuals who were discriminatorily denied jobs in the first instance, but in all of these situations, the amount of speculation as to just who was damaged and how much has been minimal. For instance, in the case of Bowe v. Colgate, 416 F.2d 711 (C.A.7, 1969), it was quite clear as to which persons were damaged and how they should be compensated. That is not the case here. Assuming that the class of plaintiffs can be more or less exactly defined, there is no way to calculate which of them would have been hired, or when, or what other circumstances would have intervened in the meantime. In other words, there is no basis on which an award in any amount can be justified. Although all reductions of legal injury to money damages are somewhat speculative, in other cases, the damaged party is absolutely identified, which is not the case here. The fact that Ford has been found guilty of sexual discrimination does not mean that it must pay whatever damages to which the Plaintiff believes that she is entitled. Unless the Court is directed to some authority to the contrary, it does not intend to make an award of money damages in this case.

The District Judge also entered the following conclusion of law:

6. The Court, being unable to determine from the records when plaintiff or any members of her class would have been employed, had it not been for the discriminatory practices of the defendant, concludes that it is without authority to award any backpay or any monetary damages to plaintiff or any members of her class. The only cases in which backpay has been awarded to a potential employee, who was discriminated against and not employed, are those involving individual employees where it was definitely shown that they would have been entitled, on a date certain, to be employed and after computation could be made of the wages to which they were entitled. See Gates v. Georgia Pacific Corporation, 326 F.Supp. 397 (D.C.Or. 1970). Any award of damages in this case, therefore, would be speculative and must be denied.

We believe the District Judge was in error in concluding that the difficulties of ascertaining the amount of damages suffered deprived him of authority to award back pay. The statute relating to back pay is 42 U.S.C. § 2000e — 5(g) (1970). The statutory language extant at the time this suit was filed was:

(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice). Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any- back pay, if such individual was refused admission, suspended, or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex or national origin or in violation of section 704(a). 42 U.S.C. § 2000e-5(g) (1970).

The statute was reenacted in 1972, effective for all charges then pending with the EEOC, so as to add a statute of limitations providing that, “Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.” 42 U.S.C. § 2000e—5(g) (Supp. II, 1972), amending, 42 U.S.C. § 2000e—5(g) (1970).

The legislative history of this provision is also illuminating:

Section 706(g) — This subsection is similar to the present section 706(g) of the Act. It authorizes the court, upon a finding that the respondent has engaged in or is engaging in an unlawful employment practice, to enjoin the respondent from such unlawful conduct and order such affirmative relief as may be appropriate including, but not limited to, reinstatement or hiring, with or without back pay, as will effectuate the policies of the Act. Back pay is limited to that which accrues from a date not more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the aggrieved person(s) would operate to reduce the back pay otherwise allowable.
The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination. 118 Cong.Rec. 7168 (1972) (Conference Report) (Emphasis added.)

We approach decision of this issue, keeping in mind the classic treatment of the damage issue by the United States Supreme Court in the Story Parchment Co. case:

Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the ease, which he alone is responsible for making, were otherwise. Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 379, [47 S.Ct. 400, 71 L.Ed. 684]. Compare The Seven Brothers (D.C.), 170 F. 126, 128; Pacific Whaling Co. v. Packers’ Ass’n, 138 Cal. 632, 638, 72 P. 161. As the Supreme Court of Michigan [Gilbert v. Kennedy, 22 Mich. 117, 130 (1871)] has forcefully declared, the risk of the uncertainty should be thrown upon the wrongdoer instead of upon the injured party.
¡i. # # * # %
“To deny the injured party the right to recover any actual damages in such cases, because they are of a nature which cannot be thus certainly measured, would be to enable parties to profit by, and speculate upon, their own wrongs, encourage violence and invite depredation. Such is not, and cannot be the law, though cases may be found where courts have laid down artificial and arbitrary rules which have produced such a result.” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563-64, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931).

We recognize, of course, that the words were spoken in the context of tort cases. But in tort and in discrimination cases the basic objective of damages is the same — to make the- injured party whole to the extent that that can be done.

We also recognize that to some extent we write on a clean slate. No case exactly in point has been cited to us and we have found none. Most of the case law in which back pay awards have been granted because of unlawful discrimination in employment practices have involved either illegal discrimination (via discharge or failure to promote) against employees who were union members or adherents or against employees who were Negroes.

Here, of course, we deal with a record showing discrimination against women in hiring practices. Congress, however, appears to have modeled the remedial features of Title VII upon the National Labor Relations Act. See 110 Cong.Rec. 6549 (1964) (remarks of Sen. Humphrey). See generally Davidson, “Back Pay” Awards Under Title VII of the Civil Rights Act of 1964, 26 Rut.L.Rev. 741 (1973); Note, Equal Employment Opportunity: The Back Pay Remedy Under Title VII, 1974 U.Ill.L.For. 379 (1974). In addition, the prohibition against sex discrimination is contained in the same sentence of Title VII as the prohibition against race discrimination. 42 U.S.C. § 2000e — 2 (1970), as amended, 42 U.S.C. § 2000e — 2 (Supp. II, 1972). We believe, therefore, that the great amount of case law mandating back pay awards in these two situations which we have just cited is strong precedent for our instant case.

In this regard we find the leading Supreme Court case on back pay awards occasioned by illegal union discrimination in hiring practices to be instructive:

Second. Since the refusal to hire Curtis and Daugherty solely because of their affiliation with the Union was an unfair labor practice under § 8(3), the remedial authority of the Board under § 10(c) became operative. Of course it could issue, as it did, an order “to cease and desist from such unfair labor practice” in the future. Did Congress also empower the Board to order the employer to undo the wrong by offering the men discriminated against the opportunity for employment which should not have been denied them?
Reinstatement is the conventional correction for discriminatory discharges. Experience having demonstrated that discrimination in hiring is twin to discrimination in firing, it would indeed be surprising if Congress gave a remedy for the one which it denied for the other. The powers of the Board as well as the restrictions upon it must be drawn from § 10(c), which directs the Board “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” It could not be seriously denied that to require discrimination in hiring or firing to be “neutralized,” Labor Board v. Mackay Co., 304 U.S. 333, 348, [58 S.Ct. 904, 911, 82 L.Ed. 1381], by requiring the discrimination to cease not abstractly but in the concrete victimizing instances, is an “affirmative action” which “will effectuate the policies of this Act.” Therefore, if § 10(c) had empowered the Board to “take such affirmative action as will effectuate the policies of this Act,” the right to restore to a man employment which was wrongfuly denied him could hardly be doubted. Even without such a mandate from Congress this Court compelled reinstatement to enforce the legislative policy against discrimination represented by the Railway Labor Act. Texas & N. O. R. Co. v. Railway Clerks, 281 U.S. 548 [50 S.Ct. 427, 74 L.Ed. 1034]. Attainment of a great national policy through expert administration in collaboration with limited judicial review must not be confined within narrow canons for equitable relief deemed suitable by chancellors in ordinary private controversies. Compare Virginian Ry. v. Federation, 300 U.S. 515, 552, [57 S.Ct. 592, 81 L.Ed. 789.] To differentiate between discrimination in denying employment and in terminating it, would be a differentiation not only without substance but in defiance of that against which the prohibition of discrimination is directed. trative application. We find no justification whatever for attributing to Congress such a casuistic withdrawal of the authority which, but for the illustration, it clearly has given the Board. The word “including” does not lend itself to such destructive significance. Helvering v. Morgan’s, Inc., 293 U.S. 121, 125, [55 S.Ct. 60, 79 L.Ed. 232] note. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187-89, 61 S.Ct. 845, 849, 85 L.Ed. 1271 (1941).

But, we are told, this is precisely the differentiation Congress has made. It has done so, the argument runs, by not directing the Board “to take such affirmative action as will effectuate the policies of this Act,” simpliciter, but, instead, by empowering the Board “to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.” To attribute such a function to the participial phrase introduced by “including” is to shrivel a versatile principle to an illus-

The leading case in this circuit upon the award of back pay was written by Judge Miller in the context of a race discrimination case involving promotional opportunities:

The finding of discrimination by the district court, in addition to the nature of the relief (compensatory as opposed to punitive), and the clear intent of Congress that the grant of authority under Title VII should be broadly read and applied mandate an award of back pay unless exceptional circumstances are present.
Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. Although appellate courts are loathe to interfere with the exercise of such discretion by a trial court, it is recognized that it is not free from appellate scrutiny. In Moody v. Albemarle Paper Co., 474 F.2d 134, 141 (4th Cir. 1973), [cert. granted, 419 U.S. 1068, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974) (No. 74-389)] the Fourth Circuit said:
Discretion in a legal sense necessarily is the responsible exercise of official conscience on all the facts of a particular situation in the light of the purpose for which the power exists. Bowles v. Goebel, 151 F.2d 671, 674 (8th Cir. 1945) (emphasis added). Thus in determining the proper scope of the exercise of discretion, the objective sought to be accomplished by the statute must be given great weight. Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 88 L.Ed. 754 (1944). Where a district court fails to exercise discretion with an eye to the purposes of the Act, it must be reversed. Wirtz v. B. B. Saxon Co., 365 F.2d 457 (5th Cir. 1966); Shultz v. Parke, 413 F.2d 1364 (5th Cir. 1969).
We find no reasonable basis for denial of such relief on the present record. The 1968 change in Timken’s seniority system does not ameliorate the injury already suffered. Good faith by Timken either during the 1965 — 68 period or thereafter is not a valid defense to a claim for back pay. The court in Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972), went to great lengths to emphasize the good faith of the defendant. Nevertheless, the court remanded the case, stating that the district court on reconsideration “will, of course, include the appropriate remedy, back pay, limited or full, etc., as needed to effectuate the Act.” Id. at 360. Head v. Timken Roller Bearing Co., 486 F.2d 870, 876-77 (6th Cir. 1973). (Footnote omitted.)

See also Thornton v. East Texas Motor Freight, 497 F.2d 416 (6th Cir. 1974).

Other circuits have reached similar results. Thus in the Georgia Power case the Fifth Circuit said:

2. Equitable Discretion
Title VII was enacted with the legislative objective of disestablishing the racial and sexual caste systems which had remained ingrained in the American economy since slavery and coverture. The Act, in authorizing courts to grant equitable relief to those who might be injured by its breach, expressly and impliedly includes the discretion to award back pay. Given this court’s holding that “[a]n inextricable part of the restoration to prior [or lawful] status is the payment of back wages properly owing to the plaintiffs”, Harkless v. Sweeny Independent School District, 427 F.2d 319, 324 (5th Cir. 1971), it becomes apparent that this form of relief may not properly be viewed as a mere adjunct of some more basic equity. It is properly viewed as an integral part of the whole of relief which seeks, not to punish the respondent but to compensate the victim of discrimination. See NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969); Oil, Chemical and Atomic Workers, Inc. (sic) Union v. N.L.R.B., Part III, 144 U.S.App.D.C. 167, 445 F.2d 237 (1971). Cf. Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946).
United States v. Georgia Power Co., 474 F.2d 906, 921 (5th Cir. 1974).

And the Fourth and Seventh Circuits have given an even broader reading to Title VII back pay entitlement in Moody v. Albemarle Paper Co., 474 F.2d 137 (4th Cir. 1973), cert. granted, 419 U.S. 1068, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974) (No. 74 — 389); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). _

In the Pettway case Judge Tuttle examined the practical problems of awarding back pay in another race discrimination case involving promotion rights in language which we commend to the attention of the District Judge on remand of our instant case;

3. Determination oí the award. Having decided that the district court should grant back pay to the members of the class, a multitude of questions arise concerning the period of time encompassed by the back pay, the burden of proof, and the mechanics of computation. Some guidelines for the district court will be set forth.
Initially, we approve the district court’s intention of referring the back pay claims to a Special Master, Fed.R. Civ.P. 53. United States v. Wood, Wire & Metal Lathers Int. Union, Local 46, 328 F.Supp. 429, 441 (S.D.N.Y.1971). However, the court and the parties may also consider negotiating an agreement. E. g., Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 3, 18 (S.D.Tex.1972), 491 F.2d 1364 (5th Cir. 1974); United States v. Wood, Wire & Metal Lathers, Int. Union, Local 46, supra, 328 F.Supp. at 444 n. 3. An alternative is to utilize the expertise of the intervening Equal Employment Opportunity Commission to supervise settlement negotiations or to aid in determining the amount of the award.
»fc $ $ sf: *

This Court has recently addressed the issue of the burden of proof on back pay claims in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364. This Court pointed out that once a prima facie case of discrimination against the 'class alleged is made out, a presumption for back pay arises in favor of class members. However, this presumption was found to be tempered by an initial burden on the individual employee to bring himself within the class and to describe the harmful effect of the discrimination on his individual employment position:

“Therefore, the class represented by Johnson, having established a prima facie case of employment discrimination, is presumptively entitled to back pay . . .. Since, at the same time, the initial burden is now placed on the individual labor department employee to show that he is a member of the recognized class subject to employment discrimination, we think it is appropriate to offer some preliminary observations concerning the manner in which the presumption in favor of the class and the initial burden placed upon an individual employee may be reconciled by the district court.
* * * * * * “The district court’s task will be further complicated since the only criteria which Goodyear previously imposed for transfer have been found by this court to be invalid under Title VII. If an employee can show that he was hired into the labor department before April 22, 1971 and was subsequently frozen into that department because of the discriminatory employment practices established here, then we think the individual discriminatee has met his initial burden of proof unless there are apparent countervailing factors present.” Id. at 1379.

This holding is entirely consistent with, and flows from our decision in Georgia Power that the presumption in favor of a member of a class discriminated against does not per se entitle an employee to back pay without some individual clarification. 474 F.2d at 921-922.

This Court in Goodyear then went on to detail the burden on the employer:

“ . . . It will be incumbent upon Goodyear to show by convincing evidence that other factors would have prevented his transfer regardless of the discriminatory employment practices. If Goodyear wishes to show that a labor department employee would not be qualified for any other job then its proof must be clear and convincing. Any doubts in proof should be resolved in favor of the discriminatee giving full and adequate consideration to applicable equitable principles.” Id. at 1379, 1380.

There, just as in this case, our prior decision in Cooper v. Allen, supra, 467 F.2d at 840, was instructive. In Cooper, the district court had placed the burden on the plaintiff to show, disregarding the discriminatory testing, that he was the most qualified for the job for which he was seeking back pay. This Court reversed:

“On remand the City must prove by clear and convincing evidence that, in the light of the enumerated qualifications, Cooper would not have been entitled to the job even had there been no requirement to take and pass the Otis test. That is, the City must show that the person actually hired was on the whole better qualified for the job.” Id. at 840.
Reading these earlier decisions together, it is clear that the burden of proof formulated by this Court conceives an initial lighter burden on the back pay claimant with a heavier weight of rebuttal on the employer. Therefore, the maximum burden that could be placed on the individual claimant in this case is to require a statement of his current position and pay rate, the jobs he was denied because of discrimination and their pay rates, a record of his employment history with the company and other evidence that qualified or would have qualified him for the denied positions, and an estimation of the amount of requested back pay. The employer’s records, as well as the employer’s aid, would be made available to the plaintiffs for this purpose. The burden then shifts to the company to challenge particular class members’ entitlement to back pay. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 258-60 (5th Cir. 1974). (Footnotes omitted.)

Judge Tuttle continued then to discuss the complexity of a back pay award in a discrimination case involving denial of promotions. He then turned to the ingredients of back pay and his conclusion:

Finally, the ingredients of back pay should include more than “straight salary.” Interest, overtime, shift differentials, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay. Adjustment to the pension plan for members of the class who retired during this time should also be considered on remand.
Conclusion
The declaratory and affirmative injunctive relief should alleviate the perpetuated effects of the company’s intentional discrimination and testing and educational requirements. Back pay should compensate for economic losses suffered during the period of testing and before the implementation of this decision. Nevertheless, two additional elements of relief are necessary. The district court should establish a complaint procedure by which a member of the class may question the interpretation or implementation of the district court’s decree. See United States v. Georgia Power, supra, C.A. Nos. 12355, 11723, 12185. The procedure should include the filing of a complaint with the personnel department of the company and the proper committee of the Board of Operatives (described infra). Finally, the district court should retain this case on the docket for a reasonable time to insure the continued implementation of equal employment opportunities. Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1383; Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 429. Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 263—264. (Footnotes omitted.)

Additionally, we note that two circuits have already entered orders requiring affirmative action to make whole parties who have been discriminatorily refused employment at the hiring office. In a very recent case the Fifth Circuit said:

The remedies authorized in Title VII specifically include back pay. As indicated above, the purpose of Title VII is to make the discriminatee whole and eliminate the effects of past discrimination as far as possible. Where the discriminatee has suffered economic injury in the form of lost wages, back pay is normally appropriate relief. Harkless v. Sweeny Independent School District, 5th Cir. 1970, 427 F.2d 319, 324. Franks v. Bowman Transportation Co., 495 F.2d 398, 421 (5th Cir.), cert. denied, 419 U.S. 1050, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974).

See also, Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973), cert. granted, 419 U.S. 1068, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974).

As we have already indicated, we believe that the District Judge erred in holding that he was without authority to enter back pay awards to the discriminatees before him. In addition to the injustice to the victims of illegal discrimination, such a policy prohibiting back pay because of the difficulty of computing it actually would encourage employers who had the inclination to disregard this act to do so with impunity, knowing that in the end the worst that could happen to them is that they might be ordered to hire women wholly prospectively. We recognize the practical difficulties of determining that actual damage has occurred. The initial burden of proof rests upon the job claimant to establish that she sought employment and that she was eligible for a then-existing job. She can, of course, take advantage of Ford employment records in establishing a prima facie case. At this point the .burden would then shift to Ford to show a legitimate business reason for the job refusal. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28.L.Ed.2d 158 (1971).

Assuming that eligibility for back pay was ascertained within the realm of reasonable probability (and no more can be asked here), evidence would also have to be taken pertaining to mitigating of damages because some of these claimants may have secured work in the meantime.

Reference of these back pay claims to a Special Master and pretrial conferences before him to narrow the fact disputes which need actual testimony are practical answers to some of the problems presented by claims for back pay awards.

If eligibility and discriminatory refusal are established, then back pay should be fully awarded, including compensation for fringe benefits then enjoyed by employees. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974).

SENIORITY

Whatever the difficulties of determining back pay awards, the award of retroactive job seniority offers still greater problems. Seniority is a system of job security calling for reduction of work forces in periods of low production by layoff first of those employees with the most recent dates of hire. It is justified among workers by the concept that the older workers in point of service have earned their retention of jobs by the length of prior services for the particular employer. From the employer’s point of view, it is justified by the fact that it means retention of the most experienced and presumably most skilled of the work force. Obviously, the grant of fully retroactive seniority would collide with both of these principles.

In addition, where the burden of retroactive pay falls upon the party which violated the law, the burden of retroactive seniority for determination of layoff would fall directly upon other workers who have themselves had no hand in the wrongdoing found by the District Court.

There is, however, no prohibition to be found in the statute we construe in this case which prohibits retroactive seniority and, of course, the remedy for the wrong of discriminatory refusal to hire lies in the first instance with the District Judge. For his guidance on this issue we observe, however, that a grant of retroactive seniority would not depend solely upon the existence of a record sufficient to justify back pay under the standards of the Back Pay Section of this opinion. The court would, in dealing with job seniority, need also to consider the interests of the workers • who might be displaced as well as the interests of the employer in retaining an experienced work force. We do not assume, as our brethren in the Fifth Circuit appear to (Local 189, AFL—CIO, CLC v. United States, 416 F.2d 980, cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970)), that such reconciliation is impossible, but as is obvious, we certainly do foresee genuine difficulties. See also Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3d Cir.), vacated, 414 U.S. 970, 94 S.Ct. 293, 38 L.Ed.2d 214 (1973), reinstated, 497 F.2d 403, (3d Cir. 1974). Cf. Local 189, supra; Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir.), cert. denied, 43 U.S.L.W. 3330, 419 U.S. 1050, 95 S.Ct. 625, 42 L.Ed.2d 644 (1974) (No. 74-424).

On remand the District Judge may desire to hear the policy questions involved in this problem before remanding the individual claims to the Master. For purposes of that hearing notice should be given to the employees likely to be affected and intervention should be allowed from appropriate representatives.

What we have said concerning job seniority does not, of course, apply to the fringe benefits of employment. Where vacation schedules or pension rights (or other fringe benefits) are determined by date of hire, we perceive no reason why that date in these cases should be other than the date which the trial court fixes as the date when the employee would have been hired, absent the illegal hiring practice which the District Court has identified and enjoined.

THE CLASS

We affirm the determination of the class as set forth in the District Judge’s opinion and order, except that membership therein should also be allowed to applicants between April 1, 1971, and January 26, 1973, when the 150 lb. rule was enjoined. We find no abuse of discretion in the District Judge’s refusal to accept an amendment to this complaint so as to add to the problems of these plaintiffs and this plant (the Kentucky Truck Plant) the problems of applicants for employment at the Grade Lane Auto Assembly Plant. No present plaintiff applied for or was refused employment at the Grade Lane plant, and we do not perceive that reversal is mandated in the interests of judicial economy. Hopefully this case will supply applicable precedent if indeed the same practices prevailed at Grade Lane.

ATTORNEY FEES

We likewise find no abuse of discretion in the District Judge’s award of attorney fees covering the work performed up to the dates considered by him. The case has, however, required additional legal services, thereafter both in the District Court and on appeal which were not dealt with by his judgment. We therefore vacate the fee portion of the judgment and remand this aspect of the appeal for further consideration.

The judgment of the District Court is affirmed as modified above, and the case is remanded to the District Court for further proceedings consistent with this opinion. Costs to appellants.

      . Local 862, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.

      . See, e. g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937); NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); Radio Officers v. NLRB, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1953); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941).

      . See, e. g., Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); Thornton v. East Texas Motor Freight, 497 F.2d 416 (6th Cir. 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973), cert. granted, 419 U.S. 1068, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974) (No. 74-389); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971).

      . The relief provisions of Title VII were derived from a similar provision in the National Labor Relations Act, 29 U.S.C.A. § 160(c). Monetary awards by the National Labor Relations Board under this authority have been based upon net back pay, and legislative history indicates that Congress felt that the Title VII remedy should be similar. 110 Cong.Rec. 6549 (1964); Developments — Title VII, [84 Harv.L.Rev. 1109] supra note 8, at 1259 n. 349.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Maria IANUZZI, Plaintiff-Appellant, v. SOUTH AFRICAN MARINE CORPORATION, LTD., Defendant & Third-Party Plaintiff-Appellee-Cross-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third-Party Defendant-Cross-Appellee.
    No. 466, Docket 74-1902.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 7, 1975.
    Decided Feb. 10, 1975.

      Martin L. Katz, Brooklyn, N.Y. (Paul A. Gritz, Brooklyn, N.Y., on the brief), for plaintiff-appellant.
    William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, New York City, Thomas F. Molanphy, New York City, of counsel), for defendant and third-party plaintiff-appellee-cross-appellant.
    Joseph N. Cohen, New York City (Alexander, Ash, Schwartz & Cohen, Sidney A. Schwartz, New York City, of counsel), for third-party defendant-cross-appellee.
    Before SMITH, OAKES and TIMBERS, Circuit Judges.

      . See, Turchio v. D/S A/S Den Norske Africa, O.G., 509 F.2d 101 (2d Cir. 1974).

   J. JOSEPH SMITH, Circuit Judge:

On November 24, 1968, Mario Ianuzzi, a longshoreman in the employ of International Terminal Operating Co., Inc. (ITO), was fatally injured while working on board the M/V South African Huguenot, owned by South African Marine Corporation, Ltd. (South African). Ianuzzi’s wife Maria, his administratrix, commenced this action against South African in the United States District Court for the Southern District of New York to recover damages for the death of her husband, relying on theories of negligence and unseaworthiness. South African impleaded ITO, seeking indemnity for breach of ITO’s warranty of workmanlike service. At the conclusion of the evidence, the court, Richard Owen, Judge, dismissed the negligence claim for failure of proof, but submitted the unseaworthiness claim to the jury. The jury found, in response to an interrogatory, that plaintiff had failed to make out her claim of unseaworthiness, and the court entered judgment for South African in plaintiff’s action on the basis of that finding. South African and ITO then agreed to submit the third-party claim to the court, rather than risk an inconsistent determination by the jury. That claim was dismissed by the court. Plaintiff appeals from the dismissal of her negligence claim, and South African has taken a protective cross-appeal from the dismissal of its third-party claim. We affirm.

I. THE PROCEEDINGS IN THE DISTRICT COURT

It is undisputed that, at the time of the accident, Ianuzzi’s gang of longshoremen was engaged in loading cargo with the Huguenot’s hydraulic winch system. The method employed involved the use of two separate booms, each with its own winch. One boom, called the “up and down” boom, was positioned with its head directly over the hatch. The other, known as the “burton” boom, was positioned over the pier. The falls (hoisting lines) from the two booms were “married,” that is, joined together to a single cargo hook. The loading operation would start with the burton fall in a vertical position, that is, with the cargo hook hanging over the pier directly under the head of the burton boom. Once the cargo was attached to the hook, the winch operator would raise the cargo up off the pier by putting the controls for the burton winch in the “hoist” position. When the cargo was high enough to pass over the ship’s rail with sufficient clearance, the winch operator would move it horizontally to a position directly over the hatch by gradually taking in the up and down fall while simultaneously slacking off on the burton fall. With the cargo over the hatch, simply letting out the up and down fall would lower the cargo through the hatch and into the hold. The entire operation was thus accomplished solely by taking in and slackihg off the falls in the proper sequence, while the booms themselves remained stationary.

According to plaintiff’s witnesses, while the longshoremen were loading cars in the above manner Ianuzzi was on the Huguenot’s main deck, leaning over the coaming of the number three hatch — the same hatch through which the cars were being lowered. As the winch operator was “burtoning” a car across from the pier to the hatch, the burton winch began slacking off too quickly, causing the car to drop suddenly and swing in a downward arc. As the car swung over the hatch coaming, it supposedly struck Ianuzzi and knocked him down the hatch to the upper ’tween deck.

This version of the accident was supported by the testimony",of Coppola, the winch operator; Garofala, the hatch boss; and Scotto, the gangwayman. Coppola did not actually see the car strike Ianuzzi, but he testified to the fact that the car swung erratically. Garofala was on the upper ’tween deck at the time of the accident, and it was his testimony that as he looked up he saw Ianuzzi leaning over the coaming, being struck by the car, and falling through the hatch. Scotto, who was on the main deck giving signals to Coppola, said -that as the car swung he turned and ducked, and that as he did so he saw the car strike Ianuzzi and knock him down the hatch.

In order to fix liability on the shipowner under this factual theory, plaintiff of course had to establish that the car swung because of winch malfunction, rather than solely because of operator error. In order to meet this burden, plaintiff produced an expert witness, Ferenczy, who testified regarding the operational characteristics of the Huguenot’s hydraulic winches. The winch controls operated by Coppola were remote controls; that is, they were not located directly on the winches, but rather were connected by a hydraulic system to the manual controls on the winches themselves. Movement of the remote control would exert pressure at one end of an enclosed volume of hydraulic fluid within the system. Since the fluid is noncompressible, any pressure exerted at one end of the system would be transmitted at full strength throughout the system; thus, at the manual end, the pressure would be equal to the pressure exerted at the remote end. The manual control, therefore, would move to reflect exactly the movement of the remote control by the winch operator. If the remote control were moved five degrees, for example, the manual control would respond by moving five degrees.

The key to proper operation of a hydraulic system such as this is the non-compressibility of the hydraulic fluid. If a compressible substance, such as air, were allowed to enter the system, then the pressure exerted at the remote end would be absorbed, at least in part, in the compression of the air. The result would be that the manual control, rather than following the remote control exactly, would lag behind it to a degree dependent on the amount of air in the system. Thus, if the remote control were moved five degrees, the manual control would respond by moving perhaps only two or three degrees.

It was Ferenczy’s expert opinion that, if the swooping of the car occurred as Coppola testified, the cause would have been air in the remote system. According to Ferenczy, the winchman would move the remote handle a small amount at first, but would not get the desired result; he would then subconsciously move the handle even further, and when the system finally responded it would do so too quickly. Apparently, plaintiff relied essentially on this opinion to establish her claim of unseaworthiness. With regard to negligence, she attempted to show that South African had notice of this defect in the winch through the testimony of Coppola, who had complained about the operation of the remote control handles to the ship’s personnel, and of Scotto, who had relayed to the ship’s personnel several complaints about the handles by Coppola and other winch operators. The evidence was undisputed, however, that the complaints by the winch operators had to do with “stiffness” in the handles. South African produced two experts of their own, Napolitano and Wheeler, who testified that air in the remote system would not have resulted in stiffness in the handles, but rather in loose, “mushy” operation. Ferenczy himself had to agree that stiffness would not result from an air pocket, making the testimony in that regard uncontradicted. In addition, it was Coppola’s testimony that he did not experience any trouble with the handles at the time of the accident, that his earlier problems did not recur at the time of the accident, that the accident occurred when the bur-ton slackened all at once, and that this particular problem had not occurred pri- or to the accident. The district court, therefore, refusing to permit plaintiff to equate “stiffness” in the handles with “looseness” or “mushiness,” held that plaintiff had failed as a matter of law to prove that whatever defect (if any) that caused the accident was a defect of which South African had notice; thus, it dismissed plaintiff’s negligence claim.

The claim of unseaworthiness still presented a jury issue, however, but the case was hardly as clear as it might have appeared from a consideration of plaintiff’s evidence alone. South African and ITO claimed that the accident did not occur as theorized by plaintiff at all. In their version, Ianuzzi was not killed by a fall from the main deck to the upper ’tween deck; rather, they presented evidence indicating that he was on the upper ’tween deck all the time, and that he was killed when a carpenter named Andre (employed neither by South African nor ITO) dropped a piece of lumber through the number three hatch onto Ianuzzi’s head. According to Andre, he was passing lumber down to the upper ’tween deck where it was being used by other carpenters to chock the cars that were being loaded. He would lean over the hatch coaming, holding out the lumber vertically in such a way that the ends of the boards extended about two feet over his head. When he got the “all clear” signal from a carpenter below, he would release the lumber, allowing it to drop straight down in its vertical position. He testified that, as he was leaning over the coaming with one load of lumber, preparing to drop it, the boards were suddenly knocked from his hands by something (presumably, the car) swinging over his head. He hit the deck to get out of the way, and when the danger had passed he became aware of a commotion in the hold. Looking over the coaming, he saw a man lying on the deck, apparently injured. He concluded that he must have dropped the lumber on the man (who turned out to be Ianuzzi), and told the ship’s crew and the police that that was what happened.

In support of Andre’s testimony, ITO introduced the testimony of Dr. DiMaio, who performed the autopsy on Ianuzzi. He testified that Ianuzzi’s only injury was a fracture on the very top of the skull, and that this injury was compatible with a blow to the head from a piece of lumber dropped from directly above. On cross-examination, he conceded that the injury was also compatible with a fall directly on the top of the head, but thought that if that had happened there would likely have been other injuries as well.

The parties agreed that the case would first be submitted to the jury on plaintiff’s unseaworthiness claim alone, reserving the third-party claim for subsequent determination. Plaintiff’s claim thus went to the jury on these apparently conflicting factual theories, with instructions to return answers to interrogatories rather than a general verdict. In response to the first interrogatory, the jury reported its finding that plaintiff had not established her claim of unseaworthiness in the manner contended. Judgment for South African was entered on this finding. As to the third-party claim (which was not rendered moot by the defendant’s judgment in the main case because South African still might have been entitled to reimbursement for attorneys’ fees), South African and ITO agreed to submit it to the court for a determination not inconsistent with the jury’s verdict. In a memorandum and order filed June 17, 1974, the court found that “the sole cause of Ianuzzi’s death was a piece of lumber dropped upon him by one Andre. . . . ” Accordingly, it dismissed the third-party claim.

II. THE ISSUES ON APPEAL

Plaintiff contends that her negligence claim was erroneously removed from the jury’s consideration. She apparently concedes that the proof was deficient if she was required to show notice of the specific defect that caused the accident. She argues, however, that such a requirement is an improperly strict statement of the law: In her view, the shipowner was under a duty to stop using the winches because of the complaints that had been made, and it would have been proper for the jury to find negligence in the event such a duty was breached, even though it might not be able to find that the defective condition complained of was the defective condition that caused the accident. South African disputes plaintiff’s contention as a question of law, and further makes what is essentially a harmless error argument: Even if the negligence issue should have gone to the jury, a finding of negligence would have been impossible in light of the finding on the unseaworthiness claim.

We would hesitate to affirm on the latter ground. There may be some authority in our decisions for this “harmless error” rationale, Spano v. Koninklijke Rotterdamsche Lloyd, 472 F.2d 33, 35 & n. 1 (2d Cir. 1973) (per curiam), but we have also indicated our reluctance to require strict logical niceties in the functioning of the jury in our trial system. Henry v. A/S Ocean, 512 F.2d 401, at 405-406 (2d Cir. 1975). While it may be difficult for a lawyer or a judge “to imagine, especially on the facts of this case, how an owner could be negligent, if the ship was not unseaworthy,” Spano, supra, 472 F.2d at 35 n. 1, we hesitate to confine the imagination of the jury within such narrow bounds. The jury may very well have a “right to an idiosyncratic position,” Malm v. United States Lines, 269 F.Supp. 731 (S.D.N.Y.), aff’d on opinion below, 378 F.2d 941 (2d Cir. 1967) (per curiam), and we would not deprive it of that right here. Accordingly, we decline to base our decision on this ground.

We do, however, find merit in South African’s objection to plaintiff’s argument as a proposition of law. Plaintiff is really seeking to turn this into a res ipsa loquitur case, where negligence may be found even though the plaintiff is unable to show precisely what went wrong. But here, the winch was being operated by an employee of ITO, not of South African, and thus the “control” element of res ipsa loquitur is lacking. Irwin v. United States, 236 F.2d 774, 776 (2d Cir. 1956). Since res ipsa loquitur is not involved, plaintiff’s theory would require us to hold South African potentially liable in a situation where, assuming it breached a duty by continuing to operate the winches, the resultant accident was not within the scope of the risk foreseeably incurred by that breach of duty. This we decline to do. Notice of the particular defect causing the accident is necessary if a shipowner is to be held liable in negligence for failing to take defective equipment off the line. See, Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318, 1320 (2d Cir. 1973).

As noted above, plaintiff appears to concede that there was a failure of proof on the question of notice, and she does not urge us to upset the district court’s finding in that regard. Because of the importance of preserving factual issues for the jury, however, we have independently searched the record for any evidence that might have tended to establish notice. We find that this is the rare case where proof was so entirely lacking on that essential element of plaintiff’s case that the district court’s ruling need not be disturbed, even though it is normally preferable to put the issue to the jury under appropriate instructions and with specific interrogatories.

In light of our disposition of plaintiff’s appeal, there is no occasion to consider South African’s protective cross-appeal.

Affirmed.

      . These witnesses and Ianuzzi had all known each other since their boyhood days in Italy.

      . In a pretrial deposition, Scotto had said that he had not actually seen the car strike Ianuzzi, but that he turned just in time to see him falling. When confronted with this inconsistency at trial, Scotto claimed a lack of memory with regard to his deposition testimony.

      . By stating that this is a necessary element of plaintiffs claims, we by no means indicate that it is sufficient.

      . The manual controls operated the winches by means of separate hydraulic systems, referred to as the main systems. The hydraulic systems linking the remote with the manual controls were called the remote systems. Since the remote systems are designed to enable the winchman to govern the operation of the manual controls by using the remote controls, the remote systems are also referred to as “master” systems, and the main systems as “slave” systems.

      . There is no testimony that air in the system by itself could cause the winch to run free, and no claim of notice of any such running on any other occasion.

      . South African objected to this opinion on the ground that Ferenczy’s assumed response of the winchman was inconsistent with Coppola’s testimony as to what he actually did with the handles at the time of the accident.

      . The record contains no indication of the relationship between New Jersey Export Marine Carpenters, Andre’s employer, on the one hand, and South African and/or ITO on the other.

      . A careful reading of the transcript may support a theory of the facts which resolves the apparent contradictions in the testimony.
      First, the testimony that Ianuzzi was actually struck by the car might be discounted to some extent. Garofala was standing directly beneath Ianuzzi, and probably would not have been able to tell if the car struck him, brushed him lightly (or perhaps just caught his clothes), or did not actually Kit him at all but rather simply caused him to lose his balance and fall while attempting to duck. And Scotto’s testimony as to the actual striking is undermined by his prior deposition testimony. See, note 3, supra.

      Second, to say that Ianuzzi was on the upper ’tween deck all the time is wholly unsubstantiated by the evidence. No one was able to place him there, and Garofala, who clearly was on the upper ’tween deck, testified unequivocally that Ianuzzi was in fact on the main deck. Even Andre testified that Ianuzzi was on the main deck just prior to the accident.
      Third, Andre’s admission might be qualified by the facts that neither he nor anyone else testified that they actually saw the lumber hit anybody, and that he was unaware when he looked back down in the hold that the injured party was Ianuzzi. This latter factor is important because of Andre’s testimony that Ianuzzi had been on the main deck: Had he realized that it was Ianuzzi who was injured, he might not have been so quick to assume that the injury was caused by the falling lumber. In addition, it must be remembered that it was the swinging car that knocked the lumber out of Andre’s hands; thus, if Ianuzzi fell because of the swinging car, he would have fallen at precisely the same time that Andre dropped the lumber. If Andre did not see the fall, this temporal coincidence probably reinforced his belief that the lumber caused the injury.
      Fourth, Ianuzzi lingered for several days in a hospital before he died, and the cause of injury on the hospital records was based on what Andre told the hospital staff. Thus, when Dr. DiMaio commenced his autopsy, he had before him a hospital report stating that the cause of injury was lumber falling on Ianuzzi’s head. The autopsy report simply confirmed that the injuries were compatible with this cause; it did not purport to be a completely independent finding. And Dr. DiMaio did admit that if Ianuzzi had fallen upside down — a position consistent with Garofala’s testimony that Ianuzzi was leaning over the coaming — and landed on his head, he could have received injuries similar to those actually observed.
      Putting these factors together results in the following possible theory: Ianuzzi was on the main deck, and was leaning over the coaming. When the car swung, either it struck him lightly or he lost his balance trying to duck. He fell down the hatch .head first, receiving a fractured skull as his only injury. Andre did not see Ianuzzi fall, and when he realized that someone was hurt it was natural for him to assume that it was because of the lumber he dropped. He told this to the police and the hospital staff, and this version of the accident found its way into the medical reports, coloring the ultimate conclusion of the autopsy report.
      While this is a possible theory, we do not mean to imply that any verdict should have been directed, or that any factual finding of the district court was clearly erroneous. Such a ruling would be inappropriate considering the confusion in the record.

      . South African argues that plaintiff is barred from raising this argument here because she failed to raise it in the district court. While the argument may not have been made in these precise terms, the parties and the court did discuss the question of notice in some detail, and this argument is sufficiently related to those raised in the district court that to bar plaintiff from raising it here could be justified only by too great a dedication to technicalities.


author: SAMUEL P. KING, District Judge:

text:
    Don ROTHMAN, as receiver of Highlander, Inc., a corporation dba Highlander Sanitarium, Debtor in Proceedings under Chapter XI, Plaintiff-Appellant, v. HOSPITAL SERVICE OF SOUTHERN CALIFORNIA dba Blue Cross of Southern California and Secretary of Health, Education and Welfare, Defendants-Appellees.
    No. 72-2232.
    United States Court of Appeals, Ninth Circuit.
    Feb. 3, 1975.

      Robert G. Leff (argued), Beverly Hills, Cal., for plaintiff-appellant.
    Barbara L. Herwig (argued), Washington, D.C., for defendants-appellees.
    Before BROWNING and GOODWIN, Circuit Judges, and KING, District Judge.

       The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   OPINION

SAMUEL P. KING, District Judge:

Plaintiff-appellant made á claim to reimbursements for the cost of services provided between January 1, 1967, and January 31, 1968, under the Medicare provisions of the Social Security Act, 42 U.S.C. § 1395 et seq. (hereinafter referred to as the Medicare Act). On April 12, 1972, the district court dismissed the case for the second time, finding no jurisdiction to review the administrative determination as to the amount allegedly owed to Highlander, Inc., as a “provider of services” under the Medicare Act. On April 18, 1972, Proposed Findings of Fact, Conclusions of Law, and Judgment prepared by the Defendants were submitted to the court. The District Court signed and entered its Findings of Fact, Conclusions of Law and Judgment on April 19, 1972. Pursuant to Local Rule 7(a), permitting objection to the form of the findings, Plaintiff on April 24, 1972, served his objections. At that time Plaintiff contended that the findings were insufficient, that the District Court had subject matter jurisdiction, and that the administrative review proceedings were unconstitutional. When the District Court did not alter its Findings of Fact, Conclusions of Law, and Judgment, this appeal was brought.

In this appeal, Appellant raises three issues: (1) whether the district court has jurisdiction to review determinations of the reasonable costs to be reimbursed to a provider of services under the Medicare Act; (2) whether the administrative review of his claim for reimbursement was inadequate and unconstitutional due to insufficient adjudicatory safeguards; and (3) whether there was error in the District Court’s Findings of Fact, Conclusions of Law, and Judgment because of a violation of the provisions of Local Rule 7(a).

I. Jurisdiction to Review:

Although the Medicare Act itself contains no express provision affording judicial review of the Secretary’s determinations as to the reasonable costs reimbursed to a provider of services, Appellant argues that the Administrative Procedure Act (hereinafter referred to as “A.P.A.”), 5 U.S.C. § 701 et seq., gives the district court the right to review such determinations. We have held that the A.P.A. provides jurisdiction for review of agency action in district courts unless such jurisdiction is otherwise barred. State of Washington v. Udall, 417 F.2d 1310, 1319-20 (9th Cir. 1969); see also C. Byse & J. Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 326-31 (1967). The only possible bars to jurisdiction to review in this instance would appear to be those embodied in the A.P.A. itself, i. e., that the agency action in question is committed by law to the discretion of the agency, or that there is clear and convincing evidence of congressional intent to preclude review expressed in the statute itself or in its legislative history. 5 U.S.C. §§ 701(a)(1), (2); Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

The presence of statutory guidelines for reasonable cost determinations in 42 U.S.C. § 1395x(v)(l) coupled with the § 1395g mandate that the Secretary pay providers for services furnished indicates that decisions concerning reimbursable costs were not intended to be wholly within the discretion of the Social Security Administration.

We have found no clear and convincing evidence in the Medicare Act itself or in its legislative history that Congress intended to preclude review of such decisions. Under 42 U.S.C. § 1395ii, 42 U.S.C. § 405(h) applies to the Medicare Act. § 405(h) provides in relevant part:

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decisions of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided.

The second sentence might appear to bar judicial review except as provided in the Medicare Act itself, and thus to bar review under the A.P.A. This interpretation of the second sentence was rejected by the Second Circuit in a series of cases holding that § 405(h) bars judicial review under the A.P.A. only where a litigant seeks to by-pass procedures provided by the Act for review of specified agency decisions. If the act itself provides no procedures for judicial review of a particular agency decision, the second sentence of § 405(h) does not preclude review under the A.P.A. Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966); Aquavella v. Richardson, 437 F.2d 397 (2d Cir. 1971); Kingsbrook Jewish Medical Center v. Richardson, 486 F.2d 663 (2d Cir. 1973). This interpretation of the second sentence of § 405(h) has been followed in other circuits. See, e. g., Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972); Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972).

In Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973) we adopted this interpretation of the second sentence of § 405(h) by necessary implication. We declined to accept the full sweep of the Cappadora holding that all agency orders denying reopening were reviewable under the A.P.A., but we did so only because we found in the first sentence of § 405(h) an expression of congressional intention that agency decisions (including orders denying reopening) were not subject to judicial review if in the particular circumstances review would be barred by accepted principles of res judicata. Had we viewed the second sentence of § 405(h) as barring A.P.A. review in any event, discussion of res judicata would have been unnecessary. The opinion in Stuckey expressly states that where an agency decision is not final under res judicata principles, judicial review is available. Two such cases are identified. 488 F.2d at 911: Both involve orders denying reopening. Since we held in Filice v. Celebrezze, 9 Cir., 319 F.2d 443, 445-46, that such orders are not reviewable under § 405(g) (the only express provision for review under the Social Security Act), Stuckey necessarily means that such agency decisions are reviewable under the A.P.A. despite the second sentence in § 405(h).

The first sentence in § 405(h) as interpreted in Stuckey does not bar review in the present case because Appellant had no prior opportunity to seek judicial review of the Secretary’s denial of his claim for reimbursement. The second sentence does not bar review because none of the specific review provisions of the Medicare Act are applicable to such determinations. The general principle therefore applies that A.P.A. review is available because Congress has not indicated that it should not be.

Since a reimbursable cost determination is not made on “the record of agency hearing provided by statute,” such a determination is not reviewable under § 706(2)(E) of A.P.A. for insufficiency of evidence. However, it appears to be reviewable under § 706(2)(A)(B)(C) and (D) for compliance with constitutional and statutory provisions, or for arbitrary or capricious agency action. To the extent that Appellant’s complaint may not allege such grounds for review, he would presumably be entitled to amend since no answer has yet been filed.

II. Adequacy of Administrative Review:

Appellant next urges that the administrative review of his claim conducted by the Blue Cross Association Committee was inadequate and unconstitutional in that it was not impartial and did not have sufficient adjudicatory safeguards. The question whether the administrative determination in this case was made in compliance with the Medicare Act and the Constitution was not suitably raised below and is not properly before this Court.

Plaintiff did not at any time prior to entry of the District Court’s judgment on April 19, 1972, seek to challenge the administrative procedure of reviewing his claims on the ground it violated constitutional rights. _ The District Court in its Memorandum Opinion stated:

In the case before us, plaintiff does not challenge the statutory authority of the Secretary, nor does he raise any constitutional questions. What is at issue here is whether the provider has been overpaid and whether this court has jurisdiction to review a final determination by the Secretary on this matter.

It is a well-established principle that in most instances an appellant may not present arguments in the Court of Appeals that it did not properly raise in the court below. See Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); United States v. Tanks, 464 F.2d 547 (9th Cir. 1972); Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968); Stephens v. Arrow Lumber Co., 354 F.2d 732 (9th Cir. 1966); Wagner v. Retail Credit Co., 338 F.2d 598 (7th Cir. 1964); Partenweederei, Ms Belgrano v. Weigel, 313 F.2d 423 (9th Cir. 1962). Plaintiff has not presented persuasive arguments for making an exception to this rule.

III. Violation of Local Rule 7(a):

Appellant alleges finally that the District Court’s Findings of Fact, Conclusions of Law, and Judgment were erroneous because Local Rule 7(a) was violated. The alleged violation is that the District Court failed to wait five days after submission of proposed findings to sign and file said documents or otherwise provide Plaintiff an opportunity to object as to the form of said findings. Because we are remanding this case to the District Court, the issue whether a violation of Local Rule 7(a) occurred is now moot.

Accordingly, the District Court’s ruling that it had no jurisdiction to review Appellant’s claim is reversed, and we remand the case for further proceedings on any issues raised by the Plaintiff which are within the scope of judicial review provided by the A.P.A.

      . This action was originally brought by Appellant’s predecessor, A. J. Bumb as Receiver for Highlander, Inc., dba Highlander Sanitarium (hereinafter referred to as Highlander). The complaint alleged that the defendants, Hospital Service of Southern California (Blue Cross of Southern California) and the Secretary of • Health, Education and Welfare (hereinafter referred to as the Secretary), owed Highlander a total of $65,085.79 for services rendered from January 1, 1967 through January 31, 1968.
      Defendants’ motion to dismiss the complaint on the grounds that the District Court lacked jurisdiction over the subject matter and that plaintiff had failed to state a claim upon which relief could be given was granted.
      On appeal, in Bumb v. Hospital Service of Southern California, 440 F.2d 1077 (9th Cir. 1971), this Court remanded the case, ruling that the jurisdictional question was unclear and that the filing of the suit was in any event premature if there were remaining administrative remedies available to the plaintiff.
      The District Court upon remand, ordered the Plaintiff to file a memorandum discussing whether the case should be dismissed for failure to exhaust administrative remedies or if no remedies existed, whether the court should affirm its prior dismissal. Plaintiff failed to submit the ordered brief and the District Court on its own motion entered an order to show cause why the action should not be dismissed for failure to prosecute. After a hearing on this matter, the court dismissed the action on March 3, 1972.
      On March 21, 1972, Plaintiff moved to vacate the judgment of dismissal. Hearing on the motion was held on April 10, 1972, at which time all parties agreed that administrative remedies had been exhausted. On April 12, 1972, the District Court again dismissed the case.

      . Highlander, Inc., was an extended care facility which qualified as a “provider of services” under the Medicare Act. § 1395x(u) of the Medicare Act defines a provider of services as “a hospital, extended care facility, or home health agency.”

      . Local Rule 7(a) states in relevant part:
      Unless the court otherwise directs, no document governed by this Rule will be signed unless opposing counsel shall have endorsed thereon an approval as to form or shall have failed to serve and file with the clerk, within five days after service of a copy thereof as shown by endorsement on the original or by affidavit or service a statement of objection to form and the grounds thereof.

      . § 1395g of the Medicare Act provides that the Secretary shall make periodic reimbursement to each provider of services. The total amount to be paid to a provider pursuant to § 1395f(b) is the “reasonable cost” of services to Medicare beneficiaries, as determined under § 1395x(v).

      . One Senate Report states:
      Hospitals, extended care facilities, and home health agencies would be entitled to hearing and judicial review if they are dissatisfied with the Secretary’s determination regarding their eligibility to participate in the program. It is intended that the remedies provided by these review procedures shall be exclusive.
      S.Rep.No.404, 89th Cong. 1st Sess. 54-55 (1965). U.S.Code Cong. & Admin.News, p. 1995. This statement applies only to the mode of review for those questions made expressly reviewable by § 1395ff(c). Appellant’s claim is not one governed by § 1395ff(c). See note 8, infra.

      . One of these Second Circuit cases is exactly like the one at hand; but in each case, the court’s view of § 405(h) and § 1395Ü led to the conclusion that there was jurisdiction to review the appellant’s claim under the A.P.A. In Cappadora, the court held that there was jurisdiction to review a decision of the Secretary not to reopen what had become a final and binding disallowance of a claim for benefits under the Social Security Act, 42 U.S.C. § 401 et seq. In Aquavella, while noting that jurisdiction was proper under 28 U.S.C. § 1331, the Second Circuit relied upon the Cappadora court’s view of § 405(h), and held that that district court had jurisdiction to review the Secretary’s decision to suspend payments to a provider of services under the Medicare Act. Although the Aquavella court expressly excluded from its decision any issue concerning a determination on the merits as to how much a provider was owed (at 402), the Kingsbrook court noted that 28 U.S.C. § 1331 jurisdiction existed, and held that the district court had jurisdiction to review an H.E.W. refusal to initiate a retroactive corrective adjustment of a provider reimbursement when a change in regulations resulted in an underpayment to the provider. In so doing, the court reversed a district court decision which had distinguished Aquavella on the grounds that it did not apply to questions of how much a provider was owed. See Kingsbrook Jewish Medical Center v. Richardson, 355 F.Supp. 965, 971 (E.D.N.Y.1973).

      . The Medicare Act provides judicial review of administrative determinations where an individual is dissatisfied with a determination as to his entitlement for benefits of the amount of benefits received, if the amount in controversy is at least $1,000, 42 U.S.C. § 1395b, and where an institution or agency is dissatisfied with a determination that it is not a provider of services or with a decision terminating its contract, 42 U.S.C. § 1395ff(c).

      . By Pub.L. 92-603, Title II, § 243(a), 86 Stat. 1420 (October 30, 1972), Congress added § 1395oo which specifically deals with the reviewability of reimbursement determinations affecting providers of services (pursuant to agreements under § 1395cc). The statute establishes a Provider Reimbursement Review Board and authorizes a civil action in certain cases. Thus, this decision, and others in this area, will have very limited application.


author: PER CURIAM:

text:
    Application of William JONES et al., Petitioners-Appellants, v. Robert C. MEADE et al., First Respondents-Appellees, Hector H. Gayle, Executive Director, et al., Second Respondents-Appellees, John Maylott and Gerald B. Cruise, Department of Housing and Urban Development, Third Respondents-Appellees.
    No. 528, Docket 74-2030.
    United States Court of Appeals, Second Circuit.
    Submitted Jan. 9, 1975.
    Decided Feb. 10, 1975.
    Robert Rivers, Westbury, N. Y., for petitioners-appellants.
    Richard J. Osterndorf, Mineóla, N. Y., for first respondents-appellees.
    Ralph A. Nappi, Port Washington, N. Y., for second respondents-appellees.
    Harold J. Friedman, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Paul B. Bergman, Asst. U. S. Atty., of counsel), for third respondents-appellees.
    Before SMITH, OAKES and TIMBERS, Circuit Judges.
   PER CURIAM:

The order of the district court is affirmed for the reasons set forth in Judge John R. Bartels’ opinion, 378 F.Supp. 286 (E.D.N.Y.1974).


text:
    Gerrit VAN DE STEEG and Eileen Van de Steeg, Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
    No. 73-3173.
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1975.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., for appellant.
    Thomas H. Macbride, of Macbride, Sax & Maclver, Seattle, Wash., for appellee.
    Before VAN OOSTERHOUT, WALLACE and SNEED, Circuit Judges.

       Honorable Martin D. Van Oosterhout, Senior United States Circuit Judge, Eighth Circuit, sitting by designation.

   OPINION

PER CURIAM:

The judgment is affirmed for the reasons stated in the opinion of the Tax Court, reported at 60 T.C. 17 (1973).

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. George HARRIS, Defendant-Appellant.
    No. 74-3303.
    United States Court of Appeals, Fifth Circuit.
    March 31, 1975.
    Robert K. Upchurch, Tupelo, Miss. (Court-appointed), for defendant-appellant.
    H. M. Ray, U. S. Atty., Alfred E. Moretón, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

In all essential respects, this case is similar to United States v. Odland, 7 Cir., 1974, 502 F.2d 148. We approve the principles delineated in that case and affirm the conviction.

Affirmed.