author: FAIRCHILD, Circuit Judge.

text:
    AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, LOCAL 550, TWU, AFL-CIO et al., Plaintiffs, v. AMERICAN AIRLINES, INC., Defendant. Appeal of Darlene PRESTON et al., in No. 72-1336. Appeal of Bonnie PULSKAMP et al., in No. 72-1503. AIR LINE STEWARDS AND STEWARDESSES ASSOCIATION, LOCAL 550, TWU, AFL-CIO et al., Plaintiffs, v. TRANSWORLD AIRLINES, INC., Defendant. Appeal of Patricia A. SANTINI et al., Darlene PRESTON et al., Plaintiffs-Appellants, v. AMERICAN AIRLINES, INC., et al., Defendants-Appellees.
    Nos. 72-1336, 72-1503, 72-1335, 72-1399.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 11, 1973.
    Decided Dec. 21, 1973.

      Bradley D. Steinberg, Arnold I. Shure, Charles Pressman, Ronald Bailis, Chicago, Ill., Elnora Beth Livezey, Los Angeles, Cal., for plaintiffs-appellants.
    Gilbert Feldman, Laurence A. Carton, Joseph P. Carr, Chicago, Ill., for defendants-appellees.
    Lutz Alexander Prager, Equal Employment Opportunity Commission, Office Gen. Counsel, Washington, D. C., for amicus curiae.
    Before KILEY, FAIRCHILD and STEVENS, Circuit Judges.
   FAIRCHILD, Circuit Judge.

These appeals form a sequel to Air Lines Stewards, etc., Loc. 550 v. American Airlines, Inc., 455 F.2d 101 (7th Cir., 1972), and some of the background facts appear there. That decision, affirming denial of intervention by EEOC, was filed January 18, 1972. Thereafter notices of hearing in the district court on approval of the settlement, referred to at 455 F.2d 103, were mailed to members of the class in each action. A hearing was held. Plaintiff union (ALSSA) and the defendants supported the settlement, and the support of several individual members of the class was made known. Objections on behalf of dissatisfied members of the classes, including several named individual plaintiffs, were filed or made known at the hearing.

On March 17, 1972, a judgment was entered in each action (American Airlines, Inc., and Trans World Airlines, Inc., being the respective defendants), approving the settlement, ordering it implemented, and dismissing the action on the merits. Appeals were filed by members of the classes, including certain named plaintiffs, in each cáse. A related action against American and ALSSA was also dismissed, and those plaintiffs appealed.

Appellants contend that the district court should not have approved the settlements because ALSSA (certified bargaining agent for airlines cabin attendants under the Railway Labor Act), which negotiated the settlements disposing of the interests of members of the class, had interests antagonistic to them. Appellants also maintain that they were entitled to exclude themselves from the action and avoid the binding effects of the judgments. Other arguments are urged in addition.

Until October, 1970, defendant airlines followed the practice of discharging, permanently, a stewardess who became pregnant. On August 18, 1970, ALSSA and 12 stewardesses who had lost their jobs under this policy commenced an action against American challenging this practice as unlawful sex discrimination, in violation of 42 U.S.C. § 2000e et seq. The complaint asserted that the action was within Rule 23(b)(2), F.R.Civ.P., and that the class consisted of all present and former American stewardesses employed at any time since July 2, 1965, the effective date of the Civil Rights Act of 1964, who had been, desired to be, or would in the future desire to be, pregnant. The complaint sought declaratory, injunctive, and monetary relief. On the same day, ALSSA and five individuals filed a similar action against TWA.

Counsel for ALSSA signed the complaint as attorney for the plaintiffs and conducted the litigation and negotiations for settlement. He did not consult the individual plaintiffs nor any other members of the class concerning the terms of settlement.

By October, 1970, ALSSA and the airlines had made collective bargaining agreements which eliminated the challenged practice prospectively. Thus, although the class defined by the complaints included currently employed stewardesses who, presumably, had an interest in the declaratory and injunc-tive relief sought, that segment of the class had little further interest in the action, except for such interest as the junior among them would have adverse to the reinstatement of previously discharged stewardesses. Since the currently employed stewardesses were more actively the constituents of ALSSA, the change of circumstances made ALSSA at least a less adequate representative of the remaining members of the class than it may have been considered for the entire original class.

In July, 1971, counsel agreed on a settlement, subject to court approval. The proposed terms required discharged stewardesses who desired re-employment to notify the airline within 60 days from court approval. They would then be placed on a preferential hiring list, to be employed to fill vacancies before others were hired. When offered a job, a stewardess must accept within 10 days and meet specified standards of physical condition. The airline would have no liability whatsoever to any stewardess who failed, timely, to give the notice of desire to be re-employed or notice of acceptance of an offer. If reemployed, the stewardess would start with the same seniority as she had up to the date of termination, in the case of TWA, or that seniority plus 90 days additional in the case of American. Under the agreement, an order would be entered defining the class, in each case, as all former stewardesses who were removed from the payroll because of pregnancy, between July 2, 1965 and July 31, 1969, in the case of TWA, and August 11, 1970, in the case of American. If approved the settlement and resulting judgment, would bind all members of the class.

It does not appear that the district court made any order concerning the maintenance of these actions as class actions, pursuant to Rule 23(c)(1), until July 16, 1971, after the settlement had been proposed. On that date, the court ordered that the class in each action be redefined in accordance with the settlement agreement, and that the action be maintained as a class action. The order did not expressly address the fulfilment of the prerequisites listed in Rule 23(a) nor of any additional requirement of Rule 23(b). Presumably the court did not consider (b) (3) applicable, as it did not order a notice pursuant to (c)(2). Notices of hearing on approval of the settlement were sent out, both in July, after which the hearing was delayed by the appeal, and again the next February.

At or before the March, 1972 hearing on approval of the settlement, opposition to it was manifested by some of the named plaintiffs and by other members of the class in each action. With some variations, the objectors wanted all, or more nearly all, of the “whole loaf”, i.e., reinstatement with seniority accrued to date, and back pay. Several members of the American class, the appellants here in No. 72-1503, had brought their own action July 14, 1971 in the Central District of California. They had attempted to opt out of the instant action, their California action, meanwhile, having been stayed. The district court heard objecting plaintiffs and class members, and their attorneys, only in the capacity of objectors, and in effect recognized ALSSA as the sole representative plaintiff, representing all class members, including the individual named plaintiffs.

The judgments entered as a result of the hearings determined that “Plaintiffs”, without distinguishing between ALSSA and other plaintiffs, are adequate representatives of the class and have adequately represented them; that the action is a Rule 23(b)(2) class action; that the judgment is binding on all members of the class; and that the settlement is fair, reasonable, and adequate for all.

On February 28, 1972, Darlene Preston, a plaintiff in the action against American, above referred to, had brought a new class action against American and ALSSA predicated upon a claim of unlawful discrimination similar to that in the earlier complaint, and upon a claim that ALSSA failed to fulfill its duty of fair representation. Judgment was entered March 20, 1972 dismissing the complaint, apparently on the ground that the claims had been ad-judicatéd by the judgment of March 17, 1972.

1. ALSSA’s Representation of the Class.

Mr. Feldman, counsel for ALSSA, and attorney of record for all the plaintiffs, testified in support of the settlement.

He took into consideration the proposition that the answer to the ultimate question of liability, common to all members of the class, i. e., whether the discharge policy was a violation of the Act, was less than a certainty. He felt that about 90% of the members of the class faced a serious legal question as to recovery because they had been terminated long before any complaint was filed with EEOC and these stewardesses might not be able to rely on the later filing by other members of the class. He noted that the circumstances of termination varied and that these differences might raise questions concerning recovery by members of the class. The airlines had terminated some on the ground of pregnancy, and others on the ground that they had concealed pregnancy, in violation of a company rule. Others had voluntarily resigned after becoming pregnant, and others resigned, but claimed they were coerced.

“An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or .... "

Mr. Feldman testified that ALSSA made the decision to agree to the settlement. One advantage was that it afforded an opportunity to every member of the class to return to work, including those against whom the statute of limitations defense might have been urged, as well as those whose claim did not have that problem; those whose termination had clearly been grounded on pregnancy, as well as those who had less clearly been terminated for that cause.

Mr. Feldman conceded that ALSSA had obligations to groups which had conflicting interests. Junior currently employed stewardesses would be harmed by immediate reinstatement of former stewardesses, and the settlement did not provide such reinstatement. Seniority has a very important effect on stewardesses’ trip assignments and the like. Thus the former stewardesses who were reemployed pursuant to the settlement would want seniority to accrue during the period they had been out of the job, but the greater the seniority awarded to them, the larger the number of currently employed stewardesses who would be put to disadvantage. Mr. Feldman testified that the extent of seniority agreed on represented a compromise of the interests of the various groups.

The airlines said they were unwilling to negotiate concerning back pay. Mr. Feldman conceded that if the matter were litigated and liability established, there would probably be individual members of the class who could establish back pay claims. He estimated that full litigation would consume about five years. ALSSA decided to subordinate the interest of those who wanted to recover money to the interest of those who desired to return to work. This, he said, was an example of bargaining agent responsibility, to resolve in good faith the conflict in interest between groups, both of which are represented by the union.

Rule 23(a)(3) requires that the claims of a representative plaintiff be typical of the claims of the class and (4) requires that the representative plaintiff will fairly and adequately protect the interests of the class. It has been indicated “that the reasons for requiring an individual plaintiff in a class action to be a member of the class do not necessarily preclude an association from representing a class where its raison d’etre is to represent the interest of that class.” It seems clear, however, that unless ALSSA’s status as certified bargaining agent under the Railway Labor Act alters the situation, it cannot, under the circumstances, be treated as the equivalent of a group of former stewardesses terminated on account of pregnancy, and thus members of and adequate representatives of, the class.

ALSSA admittedly considered and to some extent protected the interests of the currently employed stewardesses in working out the settlement. They, who are presently presumably in control of ALSSA, are not members of the class as now defined, and they have antagonistic interests. In Hansberry v. Lee, 311 U.S. 32, 45, 61 S.Ct. 115, 85 L.Ed. 22 (1940), the Supreme Court held that a judgment in a class action can only bind absent class members where the representative’s interests coincide with those of the balance of the class.

Counsel for ALSSA apparently would concede that if ALSSA were deemed merely an association of presently employed stewardesses, or even of both presently and formerly employed stewardesses, it would not be deemed an adequate representative of the class. Counsel argues, however, that ALSSA’s role as an exclusive collective bargaining agent for the stewardesses employed by these airlines gives it the power to accommodate and adjust the rights of present and former stewardesses which spring from Title VII, subject only to its obligation of fair representation. If this position were adopted, it need only be shown that ALSSA acted in good faith and in a manner which could be deemed fair, in making the choices involved in the settlement. Approval of the settlement could then be set aside only if the findings of good faith and fairness were found clearly erroneous.

In Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 200, 65 S.Ct. 226, 231, 89 L.Ed. 173 (1944), the Supreme Court held that the Railway Labor Act, in requiring the carrier to bargain with the chosen representative, operated to exclude any other representative, and deprived minority members of the craft of the right to choose a different representative or to bargain individually as to matters which are properly the subject of collective bargaining. It follows that the representative may make contracts having unfavorable effects on some of those represented, but the representative has “the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.” A similar holding was reached under the National Labor Relations Act in Ford Motor Co. v. Huffman, 345 U.S. 330, 336, 73 S.Ct. 681, 97 L.Ed. 1048 (1953).

In Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1963), the Supreme Court dealt with challenges to the resolution of grievances pursuant to a multi-party collective bargaining agreement. At p. 349, 84 S.Ct. at p. 371, the Court said, concerning the antagonistic interests of two groups, that “both groups [were] represented by the same union, whose president supported one group and opposed the other at the hearing before the Joint Conference Committee. But we are not ready to find a breach of the collective bargaining agent’s duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another.”

In Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), a union member who had been discharged sued the union for its refusal to take the grievance to arbitration under the collective bargaining agreement. The Supreme Court found no evidence of personal hostility or bad faith on the part of the union officers, and set aside a verdict in favor of the plaintiff. “Having concluded that the individual employee has no absolute right to have his grievance arbitrated under the collective bargaining agreement at issue, and that a breach of the duty of fair representation is not established merely by proof that the underlying grievance was meritorious, we must conclude that that duty was not breached here.” p. 194, 87 S.Ct. p. 919.

Counsel suggests that accommodation of the Railway Labor Act with Title VII of the Civil Rights Act of 1964 requires that the collective bargaining representative be accorded the same power, and held to the same degree of duty as the cases just cited accord it in the formulation and administration of collective bargaining agreements and the rights of individual employees thereunder. We are unable to agree.

Title VII, unlike the National Labor Relations Act and Railway Labor Act, does not create nor necessarily recognize powers of exclusive representation, either for those currently employed in the unit nor for a group which would include those claiming to have been unlawfully discharged. The situation is not parallel, and it does not seem to us that policy reasons militate in favor of similar status for the bargaining representative. An individual who claims to have been the victim of unlawful discrimination has the right to redress individually, whether the discrimination was an isolated act or a general practice.

“The real party in interest in conciliation endeavors is the employee alleged to have been discriminatorily treated. He is completely free to accept or reject the proposals of union or employer as well as the position taken by the [Equal Employment Opportunities] Commission.” Air Lines Stewards, etc. Loc. 550 v. American Airlines, Inc., 455 F.2d 101, 106 (7th Cir., 1972).

Surely the fact that a labor organization is defined in 42 U.S.C. § 2000e and made a potential defendant in unlawful employment practice cases does not, as counsel seems to suggest, indicate an intention on the part of Congress that a collective bargaining representative play a special role in Title VII actions to redress unlawful employment practices by an employer.

We think a union may serve its members by being plaintiff in a suit to vindicate their civil rights. “There is nothing in the law which precluded the Union from recognizing the injustice done to a substantial minority of its members and from moving to correct it.” Bowe v. Colgate-Palmolive Company, 416 F.2d 711, 719 (7th Cir., 1969). When it espouses the interest of one group of its members, it doubtless has an obligation of fairness to any members whose interests are in conflict. But except for the area of collective bargaining and its necessary incidents, the union has no unique authority to compromise the rights of its members. Its adequacy as a representative party in a class suit, and its authority to compromise the rights of its members in a class suit when such rights do not arise out of collective bargaining agreements are to be tested and judged in the ordinary way.

2. The Right of Class Members to Exclude Themselves From the Actions Originally Brought.

Appellants argue that the district court must offer the members of the class the opportunity to “opt out”, or exclude themselves from the class. Rule 23(c)(2) requires that such opportunity and an alternative opportunity to enter an appearance through counsel, must be afforded in any class action maintained under Rule 23(b)(3). Unless a class action is maintained under Rule 23(b)(3), no right to opt out exists. All members of the class are bound by the judgment.

On July 16, 1971, when the first orders dealing with the actions as class actions were entered, the court did not expressly address the question whether or not they fell under Rule 23(b)(3). In the judgments, the court held they fell under Rule 23(b)(2), thus foreclosing the opportunity of any member of the class to exclude herself.

Rule 23(b)(2) applies to class actions in which

“the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. ...”

When these actions were filed, the class included both stewardesses who had been terminated for pregnancy and those who might in the future be terminated for that cause. The latter were primarily, perhaps solely, interested in a declaration that the practice of termination for that reason is unlawful and an injunction against it. As to that group, (b) (2) would clearly be applicable.

Subdivision (b)(3) applies where:

“the court finds that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fair and efficient adjudication of the controversy.”

All the stewardesses share the common question of whether the diseharge-for-pregnaney policy was lawful. Those who had already been discharged were interested in reinstatment with or without back pay, and assuming a favorable decision on the common question, the entitlement of any particular former stewardess to reinstatement, back pay, and accrued seniority would depend on the facts peculiar to her. The amount of back pay would be computed separately for each, and reduced by her interim earnings. Mr. Feldman’s testimony shows other differences among individual cases. Some who had not filed with EEOC might have difficulty in establishing the right to rely on the filings of others. The manner and stated cause of termination of employment varied.

As to the discharged stewardesses, the class actions would, even at the beginning, have had to be maintained under (b)(3), with each such stewardess having the right to exclude herself, or appear through counsel.

When the airlines ended their discharge policy, the actions became virtually moot as far as the currently employed stewardesses were concerned, and purely prospective relief against the practice became of little moment. The (b)(3) character of the actions, while always present as to the discharged stewardesses, became even more obvious.

In Gerstle v. Continental Airlines, Inc., 50 F.R.D. 213 (D.Colo., 1970), a former stewardess brought a class action, seeking injunctive relief, back pay, and reinstatement for stewardesses terminated because of marriage. The airline had dropped the policy after terminating plaintiff. The court held that in view of the change in policy there was no case for injunctive relief, but that the action should proceed under (b)(3) as to the other types of relief. The present actions are similar.

We have no doubt that even in a class action subject to (b) (3), situations could arise where individual members of a class so clearly acquiesced in and accepted the efforts of their union or other plaintiff for so long a period and under such circumstances that they would be estopped from exercising their right to exclude themselves and “spoiling” a settlement obtained by such efforts. Nothing revealed in this record puts these cases in that posture.

The actions originally brought against the two airlines should have been, and should henceforth be treated as (b)(3) class actions with the attendant right of a class member, for a reasonable interval, to exclude herself or appear through counsel pursuant to Rule 23(c) (2).

3. Remand of the Actions Originally Brought Against the Two Airlines.

On remand, the district court should:

(1) Permit one or more of the named plaintiffs or other members of the class in each action to replace ALSSA as the representative of the class. If it should appear desirable for adequate representation of all class members, subclasses, each with its own representative, may be created.

(2) Require that notices, pursuant to Rule 23(c)(2) be sent, offering to each member of the class the opportunity to exclude herself from the class or appear through counsel.

(3) Proceed with the litigation unless settlement as to some or all issues is agreed on by the appropriate parties, and approved, on notice, by the court.

4. The Preston Action Brought in February, 1972.

We express no conclusions with respect to this action except that, since it was dismissed on the theory that the claims therein have been adjudicated by a judgment now being reversed, the judgment dismissing it should also be reversed.

The judgments appealed from are reversed and the causes remanded for further proceedings consistent with this opinion. Circuit Rule 23 shall apply on remand.

      . Rule 23(b) (3) provides:
      “An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
      (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (O) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”
      Rule 23(c) (2) provides :
      “(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.”

      . Rule 23(e) requires notice to class members of a proposed settlement. The appellants contest the adequacy and accuracy of the notice procedures used here. In light of our disposition of the balance of the case, we do not reach this issue.

      . Rule 23(b) (2) provides:

      . Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2d Cir., 1968).

      . See Cook County College Teachers U., Loc. 1600, A.F.T. v. Byrd, 456 F.2d 882, 885 (7th Cir., 1972) ; Mungin v. Florida East Coast Ry. Co., 318 F.Supp. 720 (M.D.Fla., 1970), aff’d 441 F.2d 728 (5th Cir., 1971), cert, denied sub nom. Howard v. Florida East Coast Ry. Co., 404 U.S. 897, 92 S.Ct. 203, 30 L.Ed. 2d 175; Amalgamated Meat Cutters of No. Am. v. Safeway Stores, Inc., 52 F.R.D. 373, 375 (D.Kan., 1971). Amalgamated Meat Gutters is similar to the present case. There, certain of the defendant’s female employees and their union filed a class action alleging that the defendant had failed to pay men and women the same wage for the same work, a violation of 42 U.S.C. § 2000e-5(e). The union and the employer negotiated a compromise and sought the court’s approval under Rule 23(e). Certain of the class members, including one of the individual named plaintiffs, objected to the compromise as unfair. The district court refused to approve the settlement and ordered independent counsel appointed for the dissenting class members. The court observed that:
      “However, counsel for the plaintiffs has appeared in a dual capacity — that is, both the Union’s attorney and attorney for the Class members. It is apparent from the communications in the file, as well as the expressions in open court, that the interests of the Union as a plaintiff, and the interests of at least a portion of the members of the Class are in conflict and not identical.” 52 F.R.D. at 375.

      . 42U.S.C. §2000e-5(g).


source: Caselaw Access Project

author: KELLEHER, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marion Bruce PHELPS, Defendant-Appellant.
    No. 73-1260.
    United States Court of Appeals, Ninth Circuit.
    Jan. 11, 1974.
    Philip Scott Ryan (Argued), J. C. Brittain (Argued), of Ryan & Wilridge, San Francisco, Cal., for defendant-appellant.
    James L. Browning, Jr., U. S. Atty., John Milano, Dennis M. Nerney, Asst. U. S. Attys., (Argued), San Francisco, Cal., for plaintiff-appellee.
    Before GOODWIN and WALLACE, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation.

   KELLEHER, District Judge:

Appellant and six others were charged in an eight count indictment with conspiracy to manufacture and distribute controlled substances, in violation of 21 U.S.C. §§ 841, 844 and 846. Appellant was named in four counts: in count two he was charged with the sale of phency-clidine hydrochloride (PCP), a proscribed substance; in count three he was charged with a further and separate sale thereof on a later date; in count four he was charged with possession thereof with the intent to distribute; and in count eight he was charged with conspiracy to violate the laws of the United States pertaining to the possession and distribution of controlled substances.

The appellant and other defendants in the trial court moved to suppress all items of evidence seized as a result of simultaneous raids carried out in three separate locations. The primary grounds relied upon and with which we are here concerned, were alleged noncompliance with 18 U.S.C. § 3109, which provides:

“BREAKING DOORS OR WINDOWS FOR ENTRY OR EXIT.—
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a.person aiding him in the execution of the warrant.”

After three days of pretrial eviden-tiary hearings, the trial court granted two of the motions to suppress but denied appellant’s motion based on the search of his residence. This denial and the subsequent admission into evidence of the fruits of this search constitutes the basis of appellant’s case on appeal. All the fruits of the search, admittedly, were highly probative of defendant’s guilt of the charges of which he stands convicted; we treat the admission of the challenged evidence as prejudicial error if wrongfully admitted.

During trial, appellant’s motion for judgment of acquittal with respect to the conspiracy charge of count eight was granted. Thereafter, the jury returned a verdict of guilty as charged on counts two, three and four. Appellant moved for a new trial on the grounds that, inter alia, the introduction of evidence seized in the raid on appellant’s home violated 18 U.S.C. § 3109. The motion was denied and appellant filed a timely notice of appeal from the judgment of conviction.

On appeal appellant asserts that: (1) the federal agents failed to comply with 18 U.S.C. § 3109, and (2) by not proving any facts showing exigent circumstances to justify a ten-second delay before forcible entry into the appellant’s home, the government has failed to meet its burden to excuse non-compliance with 18 U.S.C. § 3109.

The only facts with which we are here concerned are those upon which the trial court based its findings in denying the motion to suppress evidence seized at the home of the appellant. Viewed, as it must be, in the light most favorable to the appellee, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the evidence established facts as follows:

A daytime entry into appellant’s residence in Burlingame was made by three federal narcotics agents who had warrants authorizing, respectively, the search of the premises and the arrest of appellant. One of the agents, at approximately 1:00 p. m., knocked at the front door of appellant’s residence at least twice and loudly announced that he and the others with him were federal agents with a search warrant for the premises. After hearing dog-barking and movement, but no other response, he forced open the door, entered the residence and in the kitchen found appellant who appeared slow to react, listless and apparently recovering from a dose of some unknown drug. An interval of five or ten seconds elapsed between the time that the agent first knocked and announced his identity and purpose and then he repeated this procedure; thereafter, another five to ten seconds elapsed and the agent then forced open the door and entered the premises. Another federal agent was at a side door of the premises, heard shouting at the front door, and entered the premises after the front door was forced and after the agents there made their entry.

Appellant here relies on his own testimony and that of other of his witnesses generally to the effect that there was no prior knocking heard by him or reacted to by his dog, as could be expected when a stranger knocked. The trial court apparently disbelieved this evidence as probative in any way of the absence of prior knocking. We cannot disturb this finding of the trial court unless convinced that it is clearly erroneous. United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (en banc). We are not so convinced.

We are faced with a narrow issue, but one of importance to those concerned with the proper application of a statute clearly designed to inhibit the overly zealous intrusion into the sanctity of the home by officers overly eager to execute a warrant. The narrow issue is as follows: On this record can we hold as a matter of law that there was error by the trial court in finding that the government agent was “refused admittance” so as to authorize him to “break open any . . . door ... of a house”, within the meaning of 18 U.S.C. § 3109? We think not and, accordingly, affirm the judgment of conviction.

Taken as a whole, powerful arguments and strong showings were made in the trial court by the several defendants in support of their various motions to suppress. But the power and strength of the several motions cannot be regarded in their totality so as to avail this appellant on his case here. Despite his efforts to persuade us by the record of other extraneous acts by other agents at other premises, we are constrained to consider only the evidence relating to the narrow issue of whether the forced entry of the appellant’s premises was contrary to law; that is the only issue before us.

Appellant relies heavily for his case here on some of the occurrences and some of the acts of government agents related to raids, searches and seizures of residences other than his own, but of co-defendants. Many pages of his briefs are devoted to recitals of government action, and to an invitation to us to view the motion pictures of the “Garbersville Raid”. We are sufficiently informed by the record to observe that in these other raids there appeared to be action by the officers which the law proscribes under section 3109 and otherwise. The trial court, quite properly, recognized this and granted suppression motions by the co-defendants in each case where illegality was shown. The related evidence, therefore, was neither offered nor admitted against any defendant, including the appellant.

No matter what our view may be of illegal police action by other agents in other and even related raids, we cannot here impose sanctions therefor on the government or the agent here involved by denying the use of evidence properly obtained against the appellant. There is no applicable doctrine of guilt by association from which the action of the agent here involved may be tainted by shortcomings of other agents not here involved.

Appellant, in his briefs, makes clear in several ways his claim of attribution to the agent here of the sins of his fellows. Expressly, he refers to and relies on three raids, four broken windows, one dead man and other occurrences, all extraneous to the case before us. On such a basis he urges us to treat this ease as one in which the exclusionary rule should be invoked as “a condemnation of the senseless violence and bloodshed which has stained these proceedings from their inception.” We decline to do so because the case he seeks to make here is not the ease before us.

The trial court adopted and applied the very high concepts and strong action espoused here by the appellant. Full consideration was given to each of the motions to suppress, the evidence offered was considered in support of each and there was applied the proper standard to all; the respective orders were highly discriminating and resulted in the application of sanctions where justified. The full measure of judicial condemnation was then applied where deserved; a stern warning was thereby given to federal agents concerning their wrongful conduct.

After oral argument and subsequent to submission of this case, the appellant informed the court of what is submitted as new and remedial “forced entry” regulations promulgated by the Drug Enforcement Administration subsequent to the events here involved. We conclude that all necessary remedial action has been taken, absent our judicial admonition. The standards promulgated were apparently anticipated by the trial judge. His rulings comported therewith.

We conclude that, taking all the circumstances shown by the evidence, the trial court did not improperly determine that the officer was “refused admittance” within the meaning of the statute.

We have reviewed the authorities on the question of whether some rule of law has evolved which lays down set rules as to the length of time an officer must wait before he may be deemed to have been “refused admittance” within the meaning of the statute. We are persuaded that proper construction rejects the set' rule approach.

We are satisfied with the propriety and controlling effect of the rule as stated and applied by this court in McClure v. United States, 332 F.2d 19, 22 (9th Cir. 1964), cert, denied 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965). This Court declared the rule as follows:

“There are no set rules as to the time an officer must wait before using force to enter a house; the answer will depend on the circumstances of each case.”

Appellant contends here for what might be called a “ten-second rule.” He predicates his contention on his reading of the record that no more than ten seconds elapsed between knock and entry. We think that the record supports a finding of a slightly longer time interval. But it matters not that the record reveals ten, fifteen, or twenty seconds, for the true rule rejects time alone, even “an exceedingly short time,” such as ten seconds, as the decisive factor. See Jackson v. United States, 354 F.2d 980 (1st Cir. 1965). See also, the recent holding of this Court in which approval was given to the opening of an unlocked door simultaneously with the announcement. United States v. Bustamante-Ga-mez et al., 488 F.2d 4 (9 Cir. 1973). This Court has recently approved a ten-second interval before forceful entry in circumstances no more exigent than here presented. United States v. Allende et al., 486 F.2d 1351 (9th Cir., decided November 5, 1973). We deem the decision controlling here.

Since we conclude that the Court below, on ample evidence, found substantial compliance with the statutory requirement that the agent be “refused admittance” there is no need to, and we do hot, consider appellant’s contention that the government failed to justify its non-compliance with that statutory requirement.

Judgment affirmed.


author: ELY, Circuit Judge: MURPHY, District Judge.

text:
    NORDDEUTSCHER LLOYD, Appellant, v. JONES STEVEDORING COMPANY, Appellee.
    No. 71-1122.
    United States Court of Appeals, Ninth Circuit.
    Dec. 14, 1973.
    Lester Howard Clark (argued), John A. Flynn (appeared), of Graham & James, San Francisco, Cal., for appellant.
    Donald R. Hazlewood (argued), Robert C. Taylor, San Francisco, Cal., for appellee.
   OPINION

Before ELY and TRASK, Circuit Judges, and MURPHY, District Judge.

ELY, Circuit Judge:

Jessie Culberson, a longshoreman employee of Jones Stevedoring Company (stevedore), was injured while working on a ship owned by appellant Nord-deutscher Lloyd (vessel). When Culber-son brought suit against the vessel for negligence and unseaworthiness, the vessel filed a third-party complaint against the stevedoring company. In that complaint, the vessel sought indemnity from the stevedore for any liability incurred by it to Culberson. Its third-party claim was based on (1) the stevedoring company’s breach of its implied warranty of workmanlike service and (2) an express indemnity clause contained in its contract with the stevedore. After the longshoreman’s suit against the vessel was settled by compromise, the third-party action proceeded to trial. The jury returned a verdict in favor of the stevedore. The vessel’s appeal emphasizes only the indemnity clause, and it vigorously argues that a jury instruction relating to that clause was prejudi-cially erroneous. We agree.

On the date of the accident, October 13, 1964, the existing contract contained the following indemnity clause:

“The Stevedoring Company agrees to indemnify and hold harmless the Steamship Company against any claim or action whatever, which may be made or brought by an employee of the Stevedoring Company, or any other person or persons, for personal injury or death sustained on or around the company’s vessels arising out of the work of the Stevedoring Company, excepting where such injury or death is caused solely by the fault of the ship’s officers, crew or equipment.” (Emphasis added.)

It is well settled that an action based on a stevedoring contract is maritime in nature and is to be controlled by federal, and not state, law. American Stevedores, Inc. v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011 (1947); A/S J. Ludwig Monwinkles Rederi v. Commercial Stevedoring Co., 256 F.2d 227 (2d Cir. 1958), petition for cert, dismissed, 358 U.S. 801, 79 S.Ct. 9, 3 L.Ed.2d 49 (1958). Moreover, this type of indemnity agreement, which was common prior to recent Congressional action, does not violate public policy. United States v. Arrow Stevedoring Co., 175 F.2d 329 (9th Cir. 1949), cert, denied, 338 U.S. 904, 70 S.Ct. 307,. 94 L.Ed. 557 (1949).

“Under the sole fault indemnity clause applicable in this ease if the shipowner North German Lloyd proves by a preponderance of the evidence that a claim has been made

The injury to the longshoreman occurred while he was walking across a deckload of lumber aboard the ship. The lumber was covered by a tarpaulin, and Culberson fell through a gap or hole at the top of the load of lumber. At the trial both the vessel and the stevedore introduced evidence that the accident was due to the negligence of the other. The District Court, in submitting the case to the jury, quoted the indemnity provision and then further instructed the jury:

“This provision of the stevedoring contract between the third-party plaintiff and the third-party defendant states a contract of indemnity running in favor of the third-party plaintiff. If you find that this provision of the contract has been breached then you should return a verdict in favor of the third-party plaintiff. On the. other hand, if you find that this provision of the contract has not been breached then you should return a verdict in favor of the third-party defendant.” against the shipowner for personal injuries arising from the work of the stevedoring company on or about the company’s vessel and if you find that Jones Stevedoring Company does not by a preponderance of the evidence show that the injury was due to the sole fault of the vessel, crew, officers or equipment then the shipowner North German Lloyd is entitled to be reimbursed by Jones Stevedoring Company for any damages paid for the injury.”

The vessel, after proffering a different instruction, objected to that given by the court, and we think properly so. The court’s instruction ignored the contractual agreement between the parties and failed to afford the jury with adequate guidance. That instruction, expressed in terms of breach of contract, could have created confusion. Furthermore, it failed to indicate upon whom rested the burden of proof. We agree with the vessel that if the indemnity provision is applicable the stevedore company is liable unless it can establish by a preponderance of evidence that the accident was the sole fault of the vessel’s officers, crew or equipment. The jury should have been so instructed.

The only relevant decision in point that we have discovered or which the parties have cited is Pierce v. Erie R. R., 264 F.2d 136 (2d Cir. 1959). In Pierce an injured longshoreman recovered from the ship on his unseaworthiness claim, and the ship sought indemnity from the stevedoring company. There, the indemnity clause was narrower and required the stevedoring company to indemnify the vessel for injuries arising out of- the stevedoring operations except when such injury was due solely to the negligence of the vessel. The longshoreman recovered from the vessel for unseaworthiness, but in the third-party action neither the vessel nor the stevedoring company introduced evidence of the other’s negligence. Since no evidence of negligence on the part of either party was offered, the court affirmed the trial court’s decision that the vessel was entitled to be indemnified. Although the court in Pierce disclaimed any decision as to the burden of proof under the clause, 264 F.2d at 140, its holding inferentially supports our conclusion.

Aside from the Second Circuit’s decision in Pierce, other considerations lead us to believe that the burden should have been placed upon the stevedore in this case. The contract was made by two commercial entities familiar with the problems and dangers of stevedoring work. It is logical to infer that the parties intended that the burden on the sole fault issue should properly fall on the stevedore. This is because any accident which occurs in connection with steve-doring operations is likely to be unobserved by the vessel’s officers or crew and most assuredly observed by someone connected with the stevedore. Furthermore, the language of the clause, couched in terms of an exception to the indemnity rights of the vessel suggests that the issue of the vessel’s sole fault is in the nature of an affirmative defense which must be pleaded and proved by the stevedore. Even if the wording has resulted from a mere choice of form by the draftsman, it does serve as a recognizable guide to the burdens of pleading and of proof. C. McCormick, Law of Evidence § 318 at 674 (1954).

The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

MURPHY, District Judge.

I respectfully dissent, but I agree with Judge Ely that the charge by the trial court on the issue of burden of proof was of little or no aid to the jury. However, neither party objected to it, and its legality is not before us. In fact, appellant unequivocally states, “* * * the only issue presented by its appeal is whether the trial court erred in refusing to instruct on the burden of proof under the sole fault indemnity clause of the written contract.” (Emphasis mine.) (Appellant’s Opening Brief, p. 7).

The requested instruction which the court refused to give is quoted in full by Judge Ely in his footnote 3. I quote it again. To this refusal appellant made timely objections.

I respectfully submit, therefore, that the only issues before us are:

Was it error not to give the requested instruction? And if it was not, as I maintain, was it plain error under Rule 51 to charge the jury as the trial court did? (The charge is quoted by Judge Ely on page 3 of his opinion).

I add the following to Judge Ely’s recitation of the facts:

The on-deck storage of the cargo of lumber occurred at Eureka, California. Some time between Eureka and Stockton, California, where it was to be discharged by appellee, Jones Stevedoring Company, it was covered with tarpaulin and secured by lashings by the ship’s crew.

The lumber was large cut pieces of redwood. It was laid parallel to the fore and aft line of the ship on both the port and starboard sides, the ends being butted to each other running the length of Nos. 4 and 5 hatches. Layer by layer the load was built up in table-top fashion. At trial the vessel offered evidence of defendant stevedore’s fault by proving (1) that Culberson, the injured longshoreman and employee of defendant, walked on the tarpaulin-covered lumber when he could have walked between the rail of the vessel and the cargo of lumber, and (2) that gaps in a deckload of lumber were common and customarily found in such stowage, and (3) that defendant failed to conduct a reasonably adequate inspection of the work area, which it claimed would have revealed the void in the deckload of lumber.

The defendant offered evidence (1) that the defendant’s boss and safety man, accompanied by the vessel’s mate and some of its crew, walked up and down the tarpaulin-covered deck cargo without incident, and (2) that Culberson walked on top of the cargo to the No. 4 hatch, where he helped rig some gear, and then walked back on the top of the cargo towards the No. 5 hatch where his gang was beginning to uncover the cargo, when he stepped into a large void covered by the tarpaulin. He testified that the deck load was as solid as a heavy table, and even though it had been raining that morning there was no depression or pool of water on the tarpaulin to indicate the void. Defendant also offered evidence tending to prove that the void was probably a sounding well to permit the sounding of the bilges while at sea.

Appellant’s requested instruction, which the trial court refused to give, incorrectly stated the applicable law. Perhaps it was an afterthought, since the vessel’s proof at trial far transcended its obligation if the requested instruction was sound. The requested instruction put on the stevedore the burden of proving, by a preponderance of the evidence, a nonpleaded affirmative defense, i. e., that the injury was due to the sole fault of the vessel’s crew, officers and equipment; and at the same time relieved the shipowner from proving, by a preponderance of the evidence, the breach of the indemnity agreement.

Judge Ely suggests (p. 4) that the issue of the vessel’s sole fault “is in the nature of an affirmative defense which must be pleaded and proved by the stevedore.” This is contrary to appellant’s position on appeal. E. g., on pages 11 and 12 of its Opening Brief it says: “Once the shipowner establishes these elements ((1) that a claim has been made against the shipowner for personal injuries; (2) that the personal injury was sustained on or about the company’s vessel; and (3) that it arose from the work of the stevedoring company), he has presented a prima facie case which will allow recovery against the stevedor-ing company. This has the effect of shifting to the stevedoring company the burden of producing evidence that the ship’s master, crew or equipment were solely at fault. In the event that the stevedoring company comes forward with evidence which shows some fault, although not sole fault, on the part of the shipowner, the burden then shifts back to the shipowner to establish that the stevedoring company, or some third party, was also at fault. Should the shipowner then establish such fault, the shipowner is entitled to indemnity, since he has shown that the accident was not the sole fault of the vessel’s master, crew or equipment.” (Emphasis mine.)

Implied in the indemnity agreement is the obligation of the shipowner, as a third-party plaintiff, to prove, by a preponderance of the evidence, that the claim of the injured party is bottomed on some fault of the stevedore, be it negligence, assault or some other tort— without such proof there is no breach. The shipowner was not suing for a declaratory judgment but for indemnification of damages it sustained.

Not too long ago we indicated that the burden of proof of negligence in a shipowner-stevedore express warranty situation is on the shipowner. In United Fruit v. Marine Terminals Corporation, 376 F.2d 1007 (9th Cir. 1967), a longshoreman was injured while unloading bananas from a ship owned by United Fruit. He was injured while standing at the bottom of an access trunkway shaft by a wooden board which fell from a rack down the shaft. United Fruit based its claim over on the stevedore’s warranty of workmanlike service and on its written agreement, which provided:

“It is agreed between the parties that the stevedore . . . shall be responsible for all personal injuries without exception if caused in whole or in part by the negligence, whether active or passive, of the stevedore, and the stevedore does hereby indemnify and hold harmless the company.” 376 F.2d at 1008.

The indemnity clauses in United Fruit and in the present case are essentially similar. The shipowner will be indemnified by the stevedore under both clauses if negligence on the part of the stevedore is shown. It is clear from the plain language of the clause in United Fruit that some showing of the stevedore’s negligence is required. The indemnity clause in the present case is basically (although not exactly) the negative of the United Fruit clause. It requires, for indemnification, a showing of some negligence on the part of the s+evedore or on the part of anyone other than the ship’s officers, crew or equipment. Because the essential requirements are the same under both clauses, the burden of proof should likewise be the same.

The lower court in United Fruit held that under the agreement the shipowner was not entitled to indemnification by the stevedore, finding that United Fruit had failed to show negligence on the part of the stevedore. The Court of Appeals affirmed, holding that the lower court’s finding was not clearly erroneous. In a footnote the appellate court acknowledged that in attempting to show the stevedore’s negligence the shipowner had “an almost impossible burden of proof,” 376 F.2d at 1009 n. 1. United Fruit clearly supports the conclusion that in a shipowner-stevedore indemnification case such as the present one, the burden of proof is on the shipowner.

Judge Kilkenny, as a District Judge in Waterman Steamship Corp. v. Brady-Hamilton Stevedore Co., 243 F.Supp. 298 (D.Or.1965), came to the same conclusion.

In that case a longshoreman had been injured and the shipowner settled with him and sued the stevedore, Matson. The stevedore was hurt on the lower ’tween deck level of hatch No. 3 when, stepping backwards into a space where two hatch boards were missing, he sustained substantial injuries. After the settlement Waterman, the steamship owner, claimed that the stevedore Mat-son was obligated to indemnify it for the sums paid in settlement of the claim. The indemnity clause in the contract between them provided:

“ * * * among other things, that Matson should:
“ ‘ * * * hold harmless the vessel, its owners and operators from any claims or damage to the ship and its equipment, damage to or loss of cargo, personal injury and/or death of any person which shall result from any of the following:
(1) The contractors use of his own defective gear or equipment, and (2) contractors negligent or improper use of owners and/or vessels gear or equipment, and (3) negligence of the contractor, his agents, servants and employees, when such negligence is the primary or concurrent cause of such damage, loss, personal injury and/or death. * * ” 243 F. Supp. at 300-301.

Judge Kilkenny held:

“A proper construction of the ‘hold harmless’ clause agreed on between the parties limits the contractor’s liability to the three categories expressly mentioned. None of those encompass the negligence or unseaworthy condition of the ship. Libelant recognizes this limitation, but attempts to come within the ‘concurrent clause’ of subsection (3). Libelant’s failure to prove causative negligence on the part of Matson destroys this contention. Consequently, I must find in favor of Matson.” 243 F.Supp. at 302.

Pierce v. Erie R. R. Co., 264 F.2d 136 (2d Cir. 1959), is relied upon (by the vessel and by Judge Ely) to support the conclusion that the burden of proof is on the stevedore to establish that the accident was the sole fault of the ship’s officers, crew or equipment. Such reliance is misplaced. Pierce implies only that the burden of going forward with the evidence rests with the stevedore.

The longshoreman, Pierce, recovered a judgment against Erie on the theory of unseaworthiness for injuries received when he slipped on a spot of oil or grease on the deck of the lighter he was loading and fell under a draft of logs which was being lowered to the deck. The trial court decided against the stevedoring company, Spencer, on Erie’s third-party complaint based upon the indemnification provision of the agreement between the stevedore and Erie. The indemnification clause read as follows :

“Sixth: 1. The Contractor assumes all liability for loss or damage to property and injury to or death of persons (including workmen’s compensation) of:
“(a) itself, its officers, agents or employes
“(b) the Railroad, its officers, or agents or employes
“(e) all other persons or corporations, including the property being handled by the Contractor under this agreement and the Railroad’s tools, machinery and equipment used by the Contractor for that purpose; arising from any and all causes in connection with the handling of freight hereunder, and will indemnify the Railroad against any and all expense in connection therewith, except when such loss, damage, injury or death is due solely to the negligence of, or conditions created solely by the Railroad, its officers, agents or employes.
* *****
“3. The Contractor will indemnify and save harmless the Railroad of and from any and all claims, demands, suits, costs, damages, judgments, fines or penalties, and any and all expenses, disbursements or costs incurred, or paid in connection therewith, or in connection with the handling or defense of such matters, arising from, connected with, or imposed or incurred as a result of the Contractor’s failure to comply with and fulfill all of the terms, conditions and obligations or assume its full responsibility and liability, under this section or any other section of this Agreement.” 264 F.2d at 137 n. 1.

No evidence of negligence was introduced either in the original action (longshoreman v. Erie) or in the third-party actio'n (Erie v. stevedore).

The exception to the general assumption of liability is implemented only when the negligence’ of the railroad is shown. Since negligence was not an issue, the limited exception clause had no effect on the outcome of the case. The basis of the decision holding that the railroad was entitled to indemnification was the first part of the indemnity clause in which the stevedore generally assumed liability for injury or loss.

The stevedore was held liable not because it failed to carry the burden of proof on negligence but rather because it failed to raise the issue by going forward with evidence of negligence. There is no implication in Pierce that the burden of proof rests upon the stevedore (or for that matter upon the railroad).

This conclusion is clearly supported by the court’s statement that:

“The third-party pleadings between Erie and Spencer present no issue as to the now asserted negligence of the former, so that the question of the possible burden of proof in that connection is not open to present inquiry.” 264 F.2d at 140.

Further, the court implies that the burden of going forward with the evidence rests with the stevedore by finding that “had Spencer introduced testimony on the subject as against Erie in the indemnity cause, the District Judge would have been required to make an appropriate finding.” 264 F.2d at 139.

The remaining issue relates to the plain error rule. Since no objection to the charge as given was made, it cannot be considered “plain error”. Rule 51, F.R.Civ.P., states that:

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.”

In the leading case, Hargrave v. Wellman, 276 F.2d 948, 950 (9th Cir. 1960), we said that the Ninth Circuit

“ * * * on a number of occasions held that the ‘plain error’ rule may not be utilized in civil appeals to obtain a review of instructions given or refused, where the ground asserted was not voiced in the trial court.”

In Bertrand v. Southern Pacific Co., 282 F.2d 569 (9th Cir. 1960), cert, denied, 365 U.S. 816, 81 S.Ct. 697, 5 L.Ed. 2d 694 (1961), the Court held that the failure to object to the giving of an instruction by stating distinctly the matter and the ground of the objection precluded appellant from obtaining review of the giving of the instruction. The Court said that “whatever the rule may be elsewhere, in this circuit (9th) the ‘plain error’ rule may not be utilized in civil appeals to obtain a review of instructions given or refused, where the ground asserted was not raised in the trial court.” 282 F.2d at 572. In accord, Bock v. United States, 375 F.2d 479 (9th Cir. 1967); Monsma v. Central Mutual Insurance Co., 392 F.2d 49 (9th Cir. 1968).

I would affirm.

       Honorable Thomas P. Murphy, Senior United States District Judge, Sharon, Connecticut, sitting by designation.

      . We recognize that our opinion in this case will have little precedential value, since Congress, in the Longshoremen’s and Harbor Worker’s Compensation Act Amendments of 1972, declared that contractual indemnity agreements between a shipowner and a stevedoring company are no longer valid insofar as sucli contracts concern an injury to a longshoreman aboard the vessel. 33 U.S. C. § 905(b) (Supp. II, 1972), amending 33 U.S.C. § 905 (1970).

      . Id.

      . The vessel requested the following instruction :

      . “Under the sole fault indemnity clause applicable in this case if the shipowner Norddeutscher Lloyd proves by a preponderance of the evidence that a claim has been made against the shipowner for personal injuries arising from the work of the stevedoring company on or about the company’s vessel and if you find that Jones Stevedoring Corn-pany does not by a preponderance of the evidence show that the injury was due to the sole fault of the vessel, crew, officers, or equipment then the shipowner Norddeutseher Lloyd is entitled to be reimbursed by Jones Stevedoring Company for any damages paid for the injury.”

      . Although the word “negligence” is not used in the indemnity agreement, it certainly is included under “any claim or action * * * for personal injury or death sustained on or about the company’s vessel arising out of the work of the stevedoring company.”


author: STEVENS, Circuit Judge.

text:
    Willard D. EASON et al., Plaintiffs-Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION and Dave Waite Pontiac, Inc., Defendants-Appellees.
    No. 72-1722.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 19,1973.
    Decided Dec. 28, 1973.
    Certiorari Denied April 22, 1974.
    See 94 S.Ct. 1979.

      James E. Hughes, James K. Sommer, Indianapolis, Ind., for plaintiff s-appellants.
    David B. Hughes, Alan W. Boyd, James M. Seerest, Indianapolis, Ind., for defendants-appellees.
    Before KILEY and STEVENS, Circuit Judges, and WYZANSKI Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr., of the District of Massachusetts, is sitting by designation.

   STEVENS, Circuit Judge.

Plaintiffs are shareholders of a corporation which purchased a car leasing business from one of the defendants. In connection with the transaction, the corporate purchaser issued 7,000 shares of its stock to the seller, and the plaintiffs individually guaranteed certain liabilities assumed by the purchaser. Plaintiffs accuse both defendants of fraud and seek relief under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 USC § 78j(b), and Securities and Exchange Commission Rule 10b-5. The question presented is whether their claim is foreclosed by the so-called “Bimbauw, rule” which limits private relief for a violation of Rule 10b-5 to persons who were either purchasers or sellers of a security.

“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange,
“(a) To employ any device, scheme, of artifice to defraud,
“(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 CFR § 240.10b-5.

The appeal is from an order dismissing plaintiffs’ third amended complaint and denying leave to file a fourth. The essential facts are quite simple. Prior to October 31, 1969, one of the defendants (Dave Waite Pontiac, Inc.) operated a Pontiac dealership and also an automobile leasing division. Purchases of cars for the leasing business were financed by General Motors Acceptance Corporation, the Second defendant. Bank Service Corporation, a company in which the plaintiffs owned stock, entered into an agreement to purchase the leasing business. As consideration for the business, Bank Service issued 7,000 shares of its stock to Waite and assumed the liabilities of the leasing business, including notes payable to GMAC, and the individual plaintiffs delivered a guarantee of those notes, as well as a guarantee of future liabilities, to GMAC.

The leasing business failed; Bank Service became insolvent and defaulted on the notes. GMAC then brought suit in a state court to recover on the guarantees. Plaintiffs countered with this federal action, accusing both defendants of fraud and seeking rescission of the guarantees.

Plaintiffs seek to avoid Bimbaum’s purchaser-seller limitation on private relief under Rule 10b-5 in various ways. They contend that their guarantees were securities which they sold to GMAC; that the underlying notes are securities which they are being forced to purchase ; that they were indirect sellers of the 7,000 shares of corporate stock; and, in all events, that the Birnbaum limitation should be disavowed in this circuit. Since it would not be necessary to consider stretching the definitions of “purchasers,” “sellers,” and “securities” if there were no Birnbaum rule, we think it appropriate to examine the viability of that rule first. For purposes of decision, therefore, we assume that the only purchase or sale of a security involved in the transaction was the transfer of 7,000 shares of stock from Bank Service to Waite, and we reject the suggestion that plaintiffs should be characterized as “sellers” of that stock. The question which is thus presented is whether, notwithstanding the fact that they were neither purchasers nor sellers of a security, plaintiffs may obtain relief under Rule 10b-5. In answering that question, we first note that a violation of Rule 10b-5 has been alleged and then consider whether any remedy is available to these plaintiffs.

I.

For present purposes it is conceded that material misstatements and omissions attributable to both GMAC and Waite have been adequately alleged. The 7,000 shares of Bank Service stock were unquestionably “securities” within the meaning of Rule 10b-5. It is also settled that the issuance and delivery of such shares constituted a “sale,” and further, that even though the alleged fraud related to the value of the assets acquired, rather than the value of the security delivered, the deception was “in connection with” the sale of a security. Finally, “the fact that the transaction [was] not conducted through a securities exchange or an organized over-the-counter market is irrelevant to the coverage of § 10(b).” Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6, 10, 92 S.Ct. 165, 168, 30 L.Ed.2d 128. In short, defendants do not challenge the conclusion that a violation of Rule 10b-5 has been alleged. Nor would they dispute a federal court’s jurisdiction to entertain an appropriate claim by the corporation, Bank Service. The disputed question is whether plaintiffs, as individual shareholders of Bank Service and guarantors of its indebtedness to GMAC, may assert a Rule 10b-5 claim.

II.

The question of plaintiffs’ right to relief has three aspects: (a) whether they have “standing,” (b) whether they are protected by the rule, and (e) whether overriding considerations of policy should defeat their claim.

A.

Neither the statute nor Rule 10b-5 expressly authorizes a private remedy. Nevertheless, in a 1946 decision which is now universally followed, Judge Kirkpatrick held that a civil action could be maintained by a member of the class “for whose special benefit the statute was enacted.” The Birnbaum case, decided six years later, has been read as holding that only the purchaser or the seller of a security may maintain such an action; this purchaser-seller limitation has been frequently described as a “standing requirement.”

This “standing requirement” may be interpreted in two quite different ways. On the one hand, it may signify that only purchasers or sellers of securities have legal rights that are protected by Rule 10b-5. In this sense, the analysis of the plaintiff’s status — that is to say, his relationship to defendant’s violation of Rule 10b-5 — really determines whether the plaintiff is a person who has suffered a legal wrong.

On the other hand, as the term “standing” is more properly used, it assumes that the plaintiff is a member of the class protected by the rule at issue, 'and addresses the question whether he has a sufficient interest in a real controversy with the defendant to entitle him to invoke the jurisdiction of a federal court. Thus, for example, although a taxpayer, in common with the rest of the citizenry, may be protected by the rule he invokes, he may lack standing to litigate an issue because of the “case” or “controversy” limitation on the exercise of federal judicial power. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. In this sense, the requirement that the plaintiff must have “standing” raises a jurisdictional question under Article III of the United States Constitution.

The Birnbaum rule has been interpreted as a standing requirement in this constitutional and jurisdictional sense. We are satisfied that such an interpretation of Birnbaum is unwarranted and we have no doubt that the plaintiffs’ interest in the controversy before us is sufficient to satisfy the requirements of Article III. Indeed, the parties with a vital stake in the outcome of the dispute are the individual plaintiffs on the one hand and GMAC on the other. One or the other will suffer a loss of approximately $300,000 — the balance allegedly due on the loans made by GMAC to which plaintiffs’ guarantees apply. This dispute may certainly be regarded as a “case” or “controversy” between these parties within the meaning of Article III.

In the Bimbaum case itself Judge Hand made no reference to the Constitution and did not mention the word “standing.” The decision in that case turned on the court’s evaluation of the kind of conduct which was forbidden by Rule 10b-5. The court concluded that the rule was “directed solely at that type of [manipulative] or fraudulent practice usually associated with the sale or purchase of securities . . . ” 193 F.2d at 464. Since the rule at that time was thought to relate only to public sales of securities, the prohibition of that type of activity was quite reasonably understood as intended to afford “protection only to the defrauded purchaser or seller.” Ibid. As conceived by its author, the purchaser-seller limitation was thus a description of the court’s understanding of the class of persons protected by Rule 10b-5.

Instead of stating the issue in terms of standing, we think it is more useful to ask whether the plaintiffs were members of the class for whose special benefit Rule 10b-5 was adopted. This is the inquiry which is suggested in Judge Kirkpatrick’s opinion which originally articulated the basis for finding an implied private remedy under Rule 10b-5.

B.

Judge Hand’s formulation of the “Bimbaum rule” in 1952 was an identification of the persons to whom Rule 10b-5 “extended protection.” Protection against the type of fraudulent practice usually associated with the sale or purchase of securities appropriately extended “only to the defrauded purchaser or seller.” In the last two decades, however, the rule has been interpreted to encompass additional types of misconduct and to extend protection to a variety of persons not included within the traditional definition of either purchaser or seller. Thus, issuers, trust beneficiaries, merging corporations, minority shareholders in short form mergers, parties to incomplete transactions, offerees, and others have been treated as though they were sellers and thereby accorded the protection of the rule. The course of judicial decision since 1952, when Birnbaum was decided, has actually recognized that the class of protected persons is broader than merely purchasers and sellers.

The language of Rule 10b-5 itself describes any act or practice which operates as a fraud or deceit “upon any person in connection with the purchase or sale of a security.” The Supreme Court has repeatedly stated that this language should be given a broad and flexible construction. Construing the words “any person” to include a purchaser or a seller but no one else is not consistent with that admonition. Nor does the so-called rule really have integrity when the words “purchaser” and “seller” are construed as flexibly as has been necessary in order both to decide 10b-5 cases properly and also to continue to pay homage to the Birnbaum rule. Moreover, a formal purchaser-seller limitation is not consistent with the overriding requirement that, in construing the 1934 Act, “form should be disregarded for substance and the emphasis should be on economic reality.” Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564.

Congress, the Supreme Court, and the Commission have all used the term “investors” to describe the class of persons protected by Rule 10b-5. Thus, the statutory authorization for the rule refers to the prohibition of deceptive devices “for the protection of investors.” And speaking for a unanimous court in Superintendent of Insurance v. Bankers Life & Casualty Co., Justice Douglas stated that the crux of the case was the fact that “Manhattan suffered injury as a result of deceptive practices touching its sale of securities as an investor.” 404 U.S. 6, 12-13, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (emphasis added).

In its brief as amicus curiae in that case, the Securities and Exchange Commission also stressed the statutory purpose, implemented by Rule 10b-5, to protect investors from all forms of securities fraud. Instead of attaching significance to the fact that Manhattan was the seller of the government securities, the Commission stated: “Manhattan not only suffered an injury as a result of the fraudulent dealings in its government securities, it suffered that injury in its capacity as an investor.” Although no Supreme Court holding is inconsistent with the view that only purchasers or sellers of securities are protected by Rule 1 Ob-5, we think the Court’s opinions fairly imply that the rule was intended to protect a broader class of persons. The emphasis on the injured party’s status as an investor indicates that the protection of the rule extends to persons who, in their capacity as investors, suffer significant injury as a direct consequence of fraud in connection with a securities transaction, even though their participation in the transaction did not involve either the purchase or the sale of a security.

The plaintiffs in this case were certainly “investors” in the transaction which is allegedly tainted by fraud. Their interest as stockholders of Bank Service Corporation was apparently sufficient to induce them to execute substantial personal guarantees. As individual guarantors they were direct parties to the transaction in dispute. If, as plaintiffs have alleged, the transaction was consummated in violation of Rule 10b-5, we believe the plaintiffs, as investors and as principals in the transaction, suffered a legal injury which may be redressed by a federal court.

C.

In addition to suggesting that the Birnbaum rule is constitutionally compelled, it has been argued that the purchaser-seller limitation should be retained to forestall an unmanageable flood of federal litigation, and to preserve national consistency in the interpretation of federal securities legislation. We find neither of these arguments persuasive.

The volume of 10b-5 litigation has already expanded dramatically and will no doubt continue to do so whether or not the purchaser-seller limitation is rejected. The extent to which a refusal to adhere to Birnbaum will affect that volume is really a matter of speculation. The fact that the purchaser-seller limitation is unacceptable does not mean that there will be no limit of any kind of the availability of private relief. For in each case the plaintiff will have to demonstrate membership in the “special class” protected by Rule 10b-5 and inj ury as a direct consequence of the alleged violation. The number of parties who may invoke Rule 10b-5 without the purchaser-seller limitation may not differ materially from the number who would recover by persuading a court to interpret the purchaser-seller concept flexibly.

Assuming, however, that a complete abandonment of Birnbaum will significantly increase our workload, we may not for that reason reject what we believe to be a correct interpretation of the statute or the rule. Indeed, the volume of future litigation that was more clearly predictable as a consequence of the Supreme Court’s holding in the Bankers Life case was not even mentioned in the Court’s opinion as a possible objection to its broadened interpretation of Rule 10b-5 as encompassing the misuse of proceeds of sale. The fear that the volume of 10b-5 litigation may actually impair the effective operation of organized securities markets, see Her-pich v. Wallace, supra, 430 F.2d at 804, is not, in our opinion, well founded; but if we are wrong, the Securities and Exchange Commission has both the power and the expertise to adopt appropriate amendments to the rule. As the Commission has repeatedly stated, it is now of the view that the purchaser-seller limitation is an artificial restriction inconsistent with the intent of the underlying statute. That view merits our respect.

Nor do we believe that Birnbaum, should be followed simply to preserve national consistency in the interpretation of federal securities legislation. We are inclined to think that the extent of the consistency in applying Birnbaum is overstated and is less important than an independent appraisal of an important issue arising in an area of the law which, despite the age of the statute, is still in an embryonic stage of development. See Dasho v. Susquehanna Corp., supra, 461 F.2d 11, 23 at n. 26. In all events, the only sure way to achieve consistency throughout the federal judiciary on a question of this character is for the Supreme Court to resolve such conflict among the circuits as does exist.

As Judge Sprecher demonstrated in Jannes v. Microwave Communications, Inc., 461 F.2d 525, 528-530 (7th Cir. 1972), the basic holding of Birnbaum was repudiated by a unanimous Supreme Court in the Bankers Life case. We are convinced that the purchaser-seller limitation is nothing more than an appendage to that holding without independent justification. We hold that it is not part of the law of this circuit.

The judgment is reversed and the case is remanded for further proceedings.

      . Section 10(b) of the Act provides:
      “It shall be unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.”

      . Rule 10b-5 provides:

      . A subsidiary which operated the business also allegedly became “defunct.”

      . See Dasho v. Susquehanna Corp., 461 F.2d 11, 27 (7th Cir. 1972).

      . Hooper v. Mountain States Security Corp., 282 F.2d 195, 201-203 (5th Cir. 1960) cert, denied 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693. Not only did the Supreme Court cite Hooper with approval in Superintendent of Insurance v. Bankers Life and Casualty Co., 404 U.S. 6, 10-11, 92 S.Ct. 165, 30 L.Ed.2d 128, but the same analysis is applicable to the transaction in the Bankers Life case itself. The fraud related to the use of the proceeds of the sale of Manhattan’s bonds, rather than the sale of those bonds or even the price at which Manhattan stock was sold to Begole.

      . Presumably such a claim, at least for rescission, would have no value since the 7,000 shares of Bank Service stock which might be recovered are now worthless.

      . Kardon v. National Gypsum Co., 69 F. Supp. 512, 514 (5E.D.Pa.1946).

      . Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), cert, denied, 343 U.S. 956, 72 S.Ct. 1051, 96 L.Ed. 1356 (A. N. Hand, J.).

      . Cf., Judge Cardozo’s classic analysis in Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99, 100 (1928) : “What the plaintiff [seeking to sue in tort] must show is ‘a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to someone else, in conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to anyone.”

      . Professor Wright summarizes the scope of the doctrine as follows :
      “The law of standing is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action. In theory, of course, it is not so limited. The person suing for breach of contract or for a tort must satisfy the court that he has standing to bring such a suit, but in practice such suits are brought only by persons harmed by the supposed wrong, and his standing to sue is self-evident. It is only where the question is of a public nature that the interested bystander is likely to attempt suit.”
      C. A. Wright, Federal Courts, § 13, p. 39 (1970 ed.).

      . See Herpich v. Wallace, 430 F.2d 792, 805 (5th Cir. 1970) ; Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 343 (9th Cir. 1972). In the latter case the court stated that the purchaser-seller limitation is “required as a matter of constitutional necessity.” See, also, Manor Drug Stores v. Blue Chip Stamps, 492 F.2d 136 at 146 (9th Cir. Oct. 15, 1973), (Hufstedler, J., dissenting).

      . Thus, at page 513 of 69 F.Supp. he stated :
      “It is also true that there is no provision in See. 10 or elsewhere expressly allowing civil suits by persons injured as a result of violation of Sec. 10 or of the Rule. However, ‘The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if; (a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and (b) the interest invaded is one which the enactment is intended to protect. * * * ’ Restatements, Torts, Vol. 2, Sec. 286. This rule is more than merely a canon of statutory interpretation. The disregard of the command of a statute is a wrongful act and a tort. As was said in Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, ‘This is but an application of the maxim, Ubi jus ibi remedium.’ ” And on the following page:
      “The other point presented by the defendants is that, under the general rule of law, civil liability for violation of a statute accrues only to a member of a class (investors) for whose special benefit the statute was enacted — an argument applied to both Sec. 10 and to Rule X-10B-5. Sec. 10 prohibits deceptive devices ‘in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.’ I cannot agree, however, that ‘investors’ is limited to persons who are about to invest in a security or that two men who have acquired ownership of the stock of a corporation are not investors merely because they own half of the total issue.”

      . Hooper v. Mountain States Security Corp., supra.

      . James v. Gerber Products Co., 483 F.2d 944 (6th Cir. 1973).

      . Dasho v. Susquehanna Corp., 380 F.2d 262, 267 (7th Cir. 1967), (Fairchild, J., concurring) , cert, denied Bard v. Dasho, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 470; see also Dasho v. Susquehanna Corp., 461 F.2d 11, supra.

      . Vine v. Beneficial Finance Co., 374 F.2d 627 (2d Cir. 1967), cert, denied 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460.

      . A. I. Brod & Co. v. Perlow, 375 F.2d 393 (2d Cir. 1967).

      . Manor Drug Stores v. Blue Chip Stamps, supra.

      . See generally A. R. Bromberg, Securities Law: Fraud Sec. Rule 10b-5, § 8.8, (1971).

      . See, e.g., Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 31 L.Ed.2d 741.

      . See § 10(b) quoted in footnote 1, supra.

      . Earlier in the opinion Justice Douglas stated that Manhattan “was injured as an investor through a deceptive device . . . ” 404 U.S. at 10, 92 S.Ct. at 168.

      . “While Congress had no purpose to regulate transactions which comprise no more than internal corporate mismanagement, it sought to protect securities investors, including corporations such as Manhattan, from all forms of securities fraud.” Brief for the Securities and Exchange Commission at 23.

      . Id. at 29.

      . See, e.g., Judge Hufstedler’s dissent in Manor Drug Stores v. Blue Chip Stamps, 492 F.2d 136 at 146 (9th Cir. Oct. 15, 1973)

      . See Mount Clemens Industries, Inc. v. Bell, supra, 464 F.2d at 342.

      . As Judge Wisdom has noted:
      “In recent years, the rule has been applied in such a variety of situations that one can scarcely find an issue of the advance sheets of the Federal Supplement and Federal Reporter that does not contain an opinion on § 10(b). This extraordinary expansion of subject-matter coverage by § 10(b) and Rule 10b-5, coupled with the possibility of extraordinarily great liability, has moved courts to limit the class of persons who may recover to purchasers or sellers of securities.” Rekant v. Desser, 425 F.2d 872, 877 (5th Cir. 1970).

      . It is not unlikely that the principal cause of concern about the increase in this type of litigation is an assumption that it will always be much easier to allege and prove a 10b-5 case than a common law fraud case. That assumption may not be warranted because it is not necessarily true that the strict standards of disclosure which appropriately apply to transactions in which there is a dramatic disparity in the parties’ access to material information will automatically and totally apply to negotiated transactions in which the parties typically rely on contract warranties and pre-closing inspections or audits as a basis for the investment decision. A flexible statute which emphasizes the relevance of the context in which a transaction takes place should neither limit its protection to an arbitrarily defined class of purchasers and sellers, nor arbitrarily assume that every purchaser and every seller is entitled to precisely the same disclosure. See Comment, The Prospects for Rule X-10B-5: An Emerging Remedy for Defrauded Investors, 59 Yale L.J. 1120, 1143 (1950).

      . Section 4 of the Clayton Act expressly authorizes “any person . . . injured in his business or property by reason of” an antitrust violation to sue for damages. Although that broad language opened “nearly limitless possibilities” for damage recovery, a case by case evaluation of what may be described either as the “standing” issue or the concept of injury has resulted in a significant limitation on the potential scope of recovery. See generally In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F. 2d 122 (9th Cir. 1973), and the many cases cited therein. We question whether the rejection of the purchaser-seller limitation in Rule 10b-5 litigation will have any more disastrous consequence than the rejection of any one of, the “talismanic rubrics” identified in that opinion. Either a “target area” or a “direct injury” analysis would seem preferable to a somewhat tattered purchaser-seller rubric. In any event, we deliberately avoid the temptation to try to formulate .a succinct substitute for Birnbaum, trusting that the appropriate limits to the rule will best be defined through the process of case by case adjudication.

      . Bromberg has noted that “the buyer condition lias been stretched by broad interpretation to include almost any shareholder affected by a corporate transaction.” 2 A.R. Bromberg, Securities Law, § 8.8, p. 222. We also note that our decision in Dasho v. Susquehanna Corp., 380 F.2d 262, supra, is frequently cited for the proposition that Birnbaum is the law of this circuit. In Dasho, however, Judge Fairchild merely explained why the Birnbaum formulation would not defeat plaintiff’s claim, since merging corporations are both sellers and purchasers of securities. Id. at 269-270, cited with approval in Securities and Exchange Commission v. National Securities, Inc., 393 U.S. 453, 467-468, 89 S.Ct. 564, 21 L.Ed.2d 668.

      . This opinion has been circulated to all judges in regular active service; no judge has requested that the case be reheard ere banc.